Why SNP must take fears of surge in miscarriages of justice after January 1 seriously
The Law Society has warned that the two-thirds majority that will be required to secure a conviction is ‘significantly less’ than the unanimity or near unanimity required by other legal systems
On January 1, Scotland will ring in the new year with a landmark change in the law that consigns the controversial third verdict of ‘not proven’ to the history books.
But while some will celebrate the removal of this legal oddity, which dates back to the 1600s, many lawyers are worried that the risk of miscarriages of justice will be substantially increased.
This concern prompted the majority required for conviction to be increased from eight jurors out of 15 to ten. However, Stuart Munro, convener of the Law Society's Criminal Law Committee, said that this was still "significantly less" than the unanimity or near unanimity required for a guilty verdict in similar jurisdictions such as England and Wales.
‘Clear, unambiguous outcomes’
Defending the decision, Justice Secretary Angela Constance said not proven verdicts “can cause victims and families profound distress, and can also leave a lingering stigma for the accused” because of the lack of closure, whereas having two verdicts would “provide clear, unambiguous outcomes”.
The not proven verdict was seen as one factor behind the low conviction rate for sexual offences, with juries taking what some saw as the easy way out in situations that were difficult to call. If the new system works well and more rapists end up behind bars, then so much the better.
However, just as the Law Society, which had argued that not proven should be retained as a “longstanding safeguard against miscarriages of justice in Scotland”, is going to keep a close eye on the effects of the new system, so must the Scottish Government.
More clarity in the legal system is welcome, but life is often not that simple and justice must, quite obviously, always be the central aim of any justice system. An incorrect verdict not only blights the lives of those who have been wrongly accused, it means the real perpetrator escapes justice and is less likely to be caught even if the error is eventually realised.
We are confident that juries will do their best but we all make mistakes and it is the job of politicians to design systems to ensure they are kept to an absolute minimum.