The president of The Faculty of Advocates Criminal Bar Association has warned that controversial reforms to Scotland's justice system risk “sending people who have not been proven guilty to jail”. 

It comes after a cross-party committee backed proposals to scrap Scotland’s unique ‘not proven’ verdict while rejecting plans to reduce jury sizes.

The measures are included in the Victims, Witnesses and Justice Reform (Scotland) Bill, which is currently being considered by Holyrood.

In their Stage 1 report on the new Bill, published last week, MSPs on The Criminal Justice Committee supported the Bill’s abolition of the ‘not proven’ verdict in Scotland’s courts.

In their report, the MSPs said: “On the balance of evidence, having heard arguments for and against, we believe the not-proven verdict has had its day and should be abolished.”

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They added that they “do not think it is satisfactory to have a verdict in a criminal trial which has no accepted legal definition” and went on to note that a not-proven verdict could have a “devastating impact” on victims and may also leave accused persons with a “lingering stigma”.

However, the committee expressed concerns about reducing jury sizes and moving from a simple majority verdict to a two-thirds verdict.

Currently, a simple majority is required for a guilty verdict in a Scottish court, which means eight out of 15 jurors.

But while the Bill seeks to reduce the number of jurors in criminal trials from 15 to 12, the number of jurors needed for a guilty verdict would remain at eight.

The MSPs said they had not heard “convincing evidence in favour of the specific proposals.”

The Herald: The Victims, Witnesses and Justice Reform (Scotland) Bill, which is currently being considered by HolyroodThe Victims, Witnesses and Justice Reform (Scotland) Bill, which is currently being considered by Holyrood (Image: PA)

They also pointed to concerns from Lord Advocate Dorothy Bain KC that the change could make it “far more difficult” to convict people.

As a result, the committee recommended that if the Government did proceed with the abolition of the not-proven verdict, it “cannot support the proposed changes to jury size and majority because we have not heard compelling evidence to support this”.

In the wake of the report, Tony Lenehan KC warned that Scotland is bound for “the weakest presumption of innocence” in any common law system in the world if the ‘not proven’ verdict is scrapped without any balancing provisions.

He told The Herald: “The reason an eight out of 15 jury verdict has been tolerated is because we have the safeguard that is the not proven verdict, and that was recognised by politicians in the lead up to the victim’s bill.

“Eight out of 12 itself would have been the lowest percentage of jurors in the world required for a conviction. Other countries ordinarily have 12 jurors and 10 of them are required to convict someone.

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“There needs to be another safeguard put in place unless they are open about the fact that what they want to do is cheapen a guilty verdict, so they get more people convicted.

“This would simply reduce the value of a guilty verdict to the point where they are sending people who have not been proven guilty to jail.

“I think this would be Scotland’s legal shame, that we value the presumption of innocence of our citizens at such a low level.

“What they should be doing is following examples from other places in the world and seek a unanimous vote for a guilty verdict and if that can’t be reached, accept a 10 out of 12 majority. It is a proven reliable and confidence inspiring way of administering justice. This will undermine public confidence in the whole Scottish justice system.”

Mr Lenehan’s comments come after The Law Society of Scotland cautioned against plans to scrap the ‘not proven’ verdict after The Criminal Justice Committee rejected plans to reduce jury sizes.

Law Society of Scotland president Sheila Webster said the society had “significant concerns” about the section of the cross-party group’s report on the Victims, Witnesses and Justice Reform (Scotland) Bill dealing with the ‘not proven’ verdict.

She stated: “It appears that committee members support scrapping the third verdict despite acknowledging they don’t know what the impact of that decision will be.

“Scrapping not proven without any balancing provisions would be an entirely unacceptable outcome with unforeseeable outcomes.

“If there is insufficient evidence to decide on jury size and verdict majority, then not proven must be retained.”

In response, Justice Secretary Angela Constance said she welcomed the MSPs’ backing for abolishing the ‘not proven’ verdict.

She said: “I welcome the Criminal Justice Committee’s backing of our proposal to abolish the not proven verdict in the Victims, Witnesses and Justice Reform (Scotland) Bill, which is based on significant and longstanding concerns, compelling independent research and extensive stakeholder engagement. Survivors and families have shown immense bravery and dedication in campaigning for this to improve our legal system.

“The Bill also proposes to change jury size and majority which the committee has not supported. There are complex and finely balanced judgements in relation to the proposals, therefore I will continue to work with, and listen to, the voices of partners from across the justice system, as well as victims themselves, as the Bill progresses.”