Ramblings of a Scottish Student

This is the Second part of the answer to an E-mail that I received from a reader a while back about how the Scottish Criminal Cases Review Commission first into the overall appeal process in Scotland. If you have no understanding of basic criminal procedure in Scotland then it might be helpful for you to read Part One.

The Scottish Criminal Cases Review Commission is a independent body who are funded by the Scottish Government. They are independent from the Crown Office, Procurator Fiscal, defence teams, judiciary etc.

They can review cases where it is believed that there has been a miscarriage of justice, but only once the normal appeals process has been exhausted. A panel will review the case in an independent and impartial way (although they have faced criticism in the past for their apparent lack of independence and impartiality) and have the power to refer a case back to the High Court where they believe a miscarriage of justice may have taken place (and if it is in the interests of justice to do so).

People can make an application to the SCCRC as many times as they wish, but the SCCRC may refuse to look at cases it has decided not to refer where no new issues are being raised. Judicial Review of a decision by the SCCRC is possible where they have decided not to refer the case back to the High Court.

There are lots of small procedural rules that it’s not worth getting bogged down in (mainly in relation to time bars following a referral).

So, essentially the SCCRC fits into the appeals process as the final stages of appeal as it is normally a requirement that the normal appeals process has been followed.

I’ve decided to address (briefly) the issue of impartiality and independence here as it is bound to come up from someone having read the post.

There are questions surrounding the independence and impartiality of the SCCRC given that it is funded by parliament, its members are appointed by the Queen on the advice of the First Minister and that it is accountable to parliament in relation to its funding. At the same time it claims to be an independent body.

I believe that these questions are entirely valid and are some that should be addressed by the Scottish Government while they are carrying out consultations on the legal profession. It’s not the most independent and impartial organisation when it is accountable to Parliament. Yes, its funds have to come from somewhere and they should be public given the SCCRC’s role in the Criminal Justice System. Should its accountability be to Parliament? That’s a tough one. Thoughts welcome on the back of a postcard to the usual address.

In Scotland we are blessed with the novelty of having three verdicts that the jury have to choose from. The three verdicts are “guilty”, “not guilty” and “not proven”. The latter has come to be known as the “bastard” verdict.

The story of how we came to be in this somewhat unique situation is an interesting one and it is this story which I intend to retell in this post as well as examining the usefulness of the “bastard” verdict. Only a verdict of “guilty” will result in conviction while both “not guilty” and “not proven” are acquittal verdicts.

Historically, the two verdicts which were available to Scots juries were “proven” and “not proven”. However in a dramatic case in 1728 a Scottish jury found a man “not guilty” using a process used as Jury nullification. Let me explain.

Jury nullification is traditional power of juries, not normally disclosed to jurors by the system when they are instructed as to rights and duties. Essentially jury nullification is any rendering of a verdict by a trial jury, acquitting a criminal defendant despite the defendant’s violation of the letter of the law. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops in response to repeated attempts to prosecute a statutory offence, it can have the practical effect of disabling the enforcement of the statute. Jury nullification is thus a means for the people to express opposition to an unpopular legislative enactment.

The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law, than officials who may be unduly influenced to follow merely the established law.

Anyway, what relevance has this to do with the “not proven” verdict in Scots Law? Well quite simply in 1728 Carnegie of Finhaven accidentally killed the Scottish Earl of Strathmore. The jury was asked to find the case against him as “proven” or “not proven”. To have found the case against Carnegie of Finhaven as proven would have resulted in a mandatory death sentence. The jury felt that while Carnegie of Finhaven was guilty according to law that to bring in a verdict of proven was unjust. So, they exercised their “historic right” to bring in a verdict of “not guilty”. Overtime the use of the “not guilty” verdict grew and we come to the situation we are in today. The “not proven” verdict is now rarely used and is usually used when the jury is unsure as to the accused’s guilt or innocence (technically this should be not guilty as the accused is to be given the benefit of any doubt). It has resulted in a stigma forming around it because of this new interpretation and accused persons often leave court having had their case found “not proven” with the question of their guilt still hanging over them. This is what lead to it getting referred to as the “bastard verdict”. In law, there is no difference between a “not proven” and “not guilty” verdict. Both acquit the accused of that crime and mean that they can never be tried again in relation to that offence.

Now that the background and the interesting story has been told it is time to move onto the future of the “not proven” verdict.

In my opinion, the only sensible thing to do is abolish the verdict. There is no need for it given our system. In criminal law an accused person should be given the benefit of any doubt and as such if there is doubt as to their guilt then the only correct verdict is one of “not guilty”. The three verdict system can be confusing for jurors and those accused of a crime.

There are many misconceptions surrounding the “not proven” verdict including the belief that a person can be tried again for the crime if a “not proven” verdict is returned. This is not the case as once you have been acquitted of a crime in Scotland it is not possible to retry a person for the same crime. It is quite possible that juries have this in their mind, despite a direction from the judge to the contrary, when they are returning their verdict. The verdict which a jury returns might be different if the true effect of the “not proven” verdict was widely known.

Also, an accused person leaves court with a question hanging over them in relation to their guilt. This is not acceptable. If an accused person is acquitted in a court of law then they have the right to go about their daily business without this question hanging over them. This is even more concerning in cases which have attracted a lot of media attention or cases which involve murder or rape.

To conclude, my opinion of the “not proven” verdict is quite simple. As quirky as it is there is no place in our legal system for it. The presence of a third verdict is confusing for many lay people and as such complicates the criminal justice system. As such, it should be abolished.

A while back I was sent an E-mail from a reader asking how the Scottish Criminal Cases Review Commission (SCCRC) fit into the Criminal Appeals Process in Scotland. It’s taken me a while to get round to this post while I filled in a few gaps in my knowledge.

The SCCRC is a public body that was first established in 1995 as part of the Criminal Procedure (Scotland) Act 1995 (which has subsequently been amended by the Crime and Punishment (Scotland) Act 1997).

I’ve decided that this is quite complex and it’ll require two separate posts to explain. The first one is on basic criminal procedure and the second one will be about appeals and the role that the SCCRC plays in this process.

There are some changes taking place in the criminal justice process in Scotland just now and I’ll point these out as I get to them.

In Scotland there are three main courts dealing with criminal cases and these are:

• Justice of the Peace Courts
• Sheriff Court
• High Court of Justiciary

The Justice of the Peace courts are replacing District Courts. They are presided over by a lay Justice of the Peace (JP) who sits with a legally qualified clerk. The Clerk advises the JP on matters of law and procedure. The maximum sentence that a JP can impose is 60 days in prison or a fine not exceeding £2,500. However, it’s not this straight forward. In the City of Glasgow the District Court is presided over by a legally qualified Stipendiary Magistrate who can impose a maximum sentence of 12 months imprisonment or a fine not exceeding £10,000.

The Sheriff Court is by far the busiest of all courts in Scotland as it deals with both civil and criminal cases. When it sits as a criminal court it can use one of two procedures: Summary or Solomn. The procedure used is decided by the Procurator Fiscal Service when they decide to prosecute.

When the Sheriff Court follows the Summary procedure a Sheriff sits alone and decides on both questions of fact and law. When the Sheriff Court follows the solomn procedure the sheriff sits with a jury of 15 and the jury decides upon issues of fact while the sheriff decides upon matters of law. The sentencing powers of a sheriff sitting in Solomn are greater than those of the sheriff sitting in Summary. More serious cases will be dealt with under the solomn procedure.

The High Court of Justiciary is the supreme criminal court in Scotland. There is no limit on its sentencing powers (except certain ones prescribed by statute). It sits as both a trial court (usually with 1 judge and a jury of 15) and an appeal court (usually with three judges, although it can be as many as five or seven).

The High Court of Justiciary hears appeals from the lower criminal courts as well as from itself. There is no appeal from the High Court of Justiciary to the House of Lords. However, under the Scotland Act appeals can be lodged to the Judicial Committee of the Privy Council (soon to be the Supreme Court) on a devolution minute.

I’ll leave it until Friday before I post the second part to this. If you have any questions then post them as comments or send me an E-mail (see my profile) and I’ll try and answer them.