In Scots law, juries can return 'guilty', 'not guilty' or 'not proven' verdicts.
Mahnus Linklater suggests that this system be exported to England and Wales, especially in rape cases.
He claims that in cases where we now know or have a strong suspicion that a miscarriage of justice has occurred in imprisoning an innocent man, that these cases could have been avoided if NP was available to juries.
I disagree. In order to say a person is guilty, the prosecution must prove beyond all reasonable doubt (90% or more sure) that the accused did the crime he is being charged with. Juries, to pronounce a man guilty, must be virtually certain of his guilt. I suspect 'NP' is not this very, very high standard, but somewhat lower. What Linklater is suggesting is that even though juries in these cases were convinced beyond all reasonable doubt, they would still have gone for the easier to prove 'NP' option. Seems a little illogical.
In the case of rape, however, the situation is reversed. Only a very small number of reported rapes result in conviction. Most of the time it comes down to 'he said, she said' and juries are often not convinced beyond all reasonable doubt that the man is guilty. Linklater suggests that a verdict of 'not proven' would be better than the 'not guilty' verdict currently being pronounced which not only says the man didn't do it (fine), but also suggests what the woman has said incourt was a lie. Now, I agree with that fluffy reason to bring it in- to say 'this woman is not necessarily a liar, it is simply that there was insufficient evidence'- but I don't think it outweighs the stigma attached to the defendant. He has been accused of rape- a very serious crime in the eyes of all but the worst mysogenists- in an English court, he can say 'look, I was proved not guilty. No one can say I did it'. In an not proven verdict, he must continue to carry the stigma of the accusation but will never be able to disprove it (autre fois applies to NP verdicts as it does to any other verdict). Hardly fair on the defendant.
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2 comments:
If 'not proven' leads to a retrial, what's the point of a retrial with no new evidence? If it doesn't, what's the difference between it and 'not guilty' in the first place?
I got the impression that 'not proven' did not lead to a re-trial.
Whilst NG and NP both have the same effect regarding re-trial, they are different in attitudes to the accused.
If the accused is found NG, he has 'proven' his innocence. No one could truthfully say that he had done it.
If the accused is found NP, he may or may not be guilty, no one knows. He cannot use the result of the trial to 'prove' his innocence or others to prove his guilt. It's almost like being a 'person of interest' for the rest of your life.
Scots law is crazy though!
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