Not proven
But Scotland is reforming jury trial anyway
The centuries-old Scottish jury verdict of “not proven” is to be abolished from this week in what’s seen by some as an attempt to increase the proportion of rape convictions. But before an accused person can be convicted in Scotland, at least 10 members of a 15-person jury will now have to agree on a guilty verdict — rather than eight as at present.
The reforms are included in wide-ranging legislation passed by the Scottish parliament in the autumn. For trials that begin on or after 1 January 2026, Scottish criminal courts will be left with just two possible verdicts: guilty or not guilty.
Majority verdicts across the UK
Until now, a Scottish jury with 15 members could have convicted an accused even if seven jurors had voted to acquit. In future, it will still be possible for jury to deliver a guilty verdict even if five — or, in some cases, four — members were not persuaded of the accused’s guilt.
From next week,1 a majority verdict of guilty may be delivered if,
in the case of a jury consisting of 14 or 15 jurors, at least 10 of the jurors are so in favour
in the case of a jury consisting of 13 jurors, at least 9 jurors are so in favour,
in the case of a jury consisting of 12 jurors, at least 8 jurors are so in favour.
In England and Wales, by contrast, a verdict need not be unanimous if,
in a case where there are not less than 11 jurors, 10 of them agree on the verdict; and
in a case where there are 10 jurors, nine of them agree on the verdict.
Provisions in Northern Ireland are similar to those in England and Wales.
Not proven
The not proven verdict amounted to an acquittal. Beyond that, nobody really knew what it meant. There was no generally accepted definition, either in statute or in case law.2
For that reason, trial judges were instructed not to explain “not proven” to juries. And, until now, it has not been lawful to ask jurors how they understood it. Some apparently thought, entirely wrongly, that it could lead to a retrial.
Rape Crisis Scotland
In 2018, the campaign group Rape Crisis Scotland launched a campaign to end the not proven verdict in cases of rape and attempted rape. It argued:
Mock juries
Wide-ranging research was commissioned by the Scottish government using mock juries. Researchers reported in 2019 that:
reducing jury size from 15 to 12 might lead to more individual jurors switching their position towards the majority view;
asking juries to reach a unanimous or near-unanimous verdict might tilt more jurors in favour of acquittal; and
removing the not proven verdict might incline more jurors towards a guilty verdict in finely balanced trials.
The Scottish government issued a public consultation at the end of 2019 and summarised the responses six months later. Legislation was announced in 2022 and passed this year. The three leading academics who supported the reform recently explained its significance.
Jury research
The legislation also allows Scotland’s senior appeal judge to permit jury research. From Thursday, Scotland will be the only part of the United Kingdom where it will be lawful to “obtain, disclose, solicit or publish particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations”. Research may also be commissioned and published by Scottish ministers.
Comment
Until 1967, jury verdicts in England and Wales had to be unanimous. The introduction of majority verdicts was seen as an unwelcome concession to human frailty: one or two jurors might succumb to improper pressure or act perversely.
To an English lawyer, the idea that an accused could be convicted on a bare majority of eight votes to seven seemed alarming. A two-thirds majority of 10 to five doesn’t look much better.
But what seemed indefensible was to have retained a verdict whose meaning was entirely obscure, even to juries.
Responding to the government’s consultation, some representatives of the Scottish legal profession argued that abolishing the not proven verdict would lead to more wrongful convictions. Juries would no longer be able to say to an accused, through their verdicts, “we think you may have done it but we’re going to let you off because we’re not sure”.3
Others, such as Rape Crisis Scotland, said that retaining the not proven verdict would lead to more wrongful acquittals. Until now, jurors could the use the verdict to criticise an accused person’s behaviour without making a finding of guilt. But even that was open to doubt because there was disagreement over the degree of stigma attached to the verdict.
Are these changes justified? Only if they can improve the ability of the courts to do justice. Increasing the number of rape convictions is not, in itself, a legitimate objective. The jury reforms will be judged a success only if they help convict the guilty and acquit the innocent.
Because of public holidays, new trials in Scotland will not begin on the first four days of January 2026.
Except under the very limited circumstances included in the Double Jeopardy (Scotland) Act 2011.
My paraphrase.
"Increasing the number of rape convictions is not, in itself, a legitimate objective."
That should not need saying but it seems from the comments of Rape Crisis Scotland that it does.
If ever I serve on a jury in a rape case or indeed any other case the question I will ask myself and ask the other jurors to ask themselves is "Has the prosecution made out the case beyond reasonable doubt?" - not "Will an acquittal distress the complainant?". If it does that's just too bad.
Anyone disagree?
In England and Wales a jury cannot decide on its own to reach a majority verdict. It can only do so if permitted by the trial judge. This is in contrast to Scotland where the legislation permits a majority verdict as a standing option from the start for all juries.
When all juries in England & Wales go out to deliberate, they are directed that they must try to reach a unanimous verdict. It is only if they do not come back with a verdict after some time that a judge may (not must) decide to give a direction for a majority verdict. Technically the minimum deliberation time before a judge can consider a majority direction to the jury is 2 hours, but in reality that time is likely to be much longer depending on the charges and nature of the case.
It is not possible to know exactly how many jury verdicts in England & Wales are majority verdicts because the courts only record majority guilty verdicts. But of all guilty verdicts the overwhelming majority are unanimous verdicts (85+%).
Most other jurisdictions with juries require unanimous verdicts. In England and Wales we start from the position that the jury must strive for unanimity and only a judge can decide eventually if a heavily weighted majority will be allowed. The Scottish approach of allowing a jury to convict a defendant by a 10-5 majority from the outset is an international anomaly and raises serious concerns about unsafe convictions.