Editing Not proven (section)

==History==
By the early 17th century, the standard practice of juries in Scotland was to return a finding of "fylet, culpable and convict" or "clene, innocent and acquit".<ref>{{cite book|title=The Origins and Development of the Jury in Scotland|year=1966|last=Willock|first=Ian|page=217|publisher=Stair Society}}</ref> This changed in the late 17th century, at which point the role of the jury became simply to "declare whether or not the facts alleged had been proved", with the judge left to determine, based on that declaration, whether the accused was guilty or not.<ref>{{cite book|title=The Origins and Development of the Jury in Scotland|year=1966|last=Willock|first=Ian|pages=218–19|publisher=Stair Society}}</ref>

There is some disagreement between historians as to why this change happened. [[David Hume]] and [[Hugo Arnot]] argue that it was rooted in religious oppression. The Crown persecuted the [[Covenanters]] but popular support made it impossible to convict them in a jury trial. To pare the power of the jury, the Scottish judges began restricting the jury's role: no longer would the jury announce whether the accused was "guilty" or "not guilty"; instead it would decide whether specific factual allegations were "proven" or "not proven"; and the judge would then decide whether to convict.

===Reintroduction of "not guilty"===
In 1728, in the trial of [[Carnegie of Finhaven]] for the [[murder]] of the [[Charles Lyon, 6th Earl of Strathmore and Kinghorne|Earl of Strathmore]], the defence lawyer ([[Robert Dundas, of Arniston, the elder|Robert Dundas]]) persuaded a jury to reassert its ancient right of acquitting, of finding an accused "not guilty", in spite of the facts being proven. The law required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the evidence proved that the accused had killed the Earl. Carnegie had undoubtedly killed the Earl, but had also clearly not intended to do so. If the jury brought in a "proven" verdict they would in effect constrain the judge to find Carnegie guilty of murder, for which the punishment was [[hanging]]. To avert this outcome, the jury asserted what it believed to be their "ancient right" to judge the whole case and not just the facts, and brought in the verdict of "not guilty".

The reintroduction of the "not guilty" verdict was part of a wider movement during the 17th and 18th century which saw a gradual increase in the power of juries,{{citation needed|date=December 2021}} such as the trial of [[William Penn]] in 1670, in which an English jury first gained the right to pass a verdict contrary to the law (known as [[jury nullification]]), and the trial of [[John Peter Zenger]] in New York in 1735 in which jury nullification is credited with establishing [[Freedom of the press in the United States|freedom of the press]] as a firm right in what became the United States. Legal academic Ian Willock argues that the 1728 case was "of great significance in calling a halt to a process of attrition which might have led to the total extinction of the criminal jury".<ref name="sln" />

Although jurors continued to use both "not guilty" and "not proven" after 1728, jurors tended to favour the "not guilty" verdict over the "not proven" and the interpretation changed.{{citation needed|date=October 2022}}

===Calls for reform===
There have been repeated calls to abolish the "not proven" verdict since the middle of the 20th century.<ref>{{Cite book | author = John Gray Wilson | title = Not Proven | publisher = Secker and Warburg | year = 1960 | pages = 7–8 }}</ref> In 1975, the Thomson Committee on Criminal Procedure in Scotland (chaired by [[Roy Thomson, 1st Baron Thomson of Fleet|Lord Thomson]]) recommended retaining the three-verdict system.<ref>{{cite web|url=https://www.gov.scot/Publications/2012/07/4794/17|title=Reforming Scots Criminal Law and Practice: The Carloway Report: Footnotes|access-date=29 October 2018}}</ref> The [[Scottish Office]] consulted on removing "not proven" in 1994.<ref name="holyrood">{{cite web|url=http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10386&i=95618|title=Official Report: Meeting of the Parliament 25 February 2016|date=25 February 2016|access-date=29 October 2018}}</ref> Unsuccessful attempts to scrap the "not proven" verdict were made in Parliament by [[Donald Dewar]] in 1969, [[George Robertson, Baron Robertson of Port Ellen|George Robertson]] in 1993 (prompted by the trial outcome in the [[murder of Amanda Duffy]]) and [[Donald Macaulay, Baron Macaulay of Bragar|Lord Macauly of Bragar]] in 1995.<ref name="holyrood" /> A members' bill to abolish the "not proven" verdict was debated in the [[Scottish Parliament]] in 2016, but was rejected by 80 votes to 28.<ref>{{cite news|url=https://www.scottishlegal.com/article/msps-reject-attempt-to-abolish-not-proven-verdict-from-scots-law|title=MSPs reject attempt to abolish 'not proven' verdict from Scots law|date=26 February 2016|access-date=29 October 2018|work=[[Scottish Legal News]]}}</ref>

Proponents of reform argue that the "not proven" verdict is widely regarded as an [[acquittal]] used when the [[judge]] or [[jury]] does not have enough [[Evidence (law)|evidence]] to [[Conviction|convict]] but is not sufficiently convinced of the accused person's innocence to bring in a "not guilty" verdict. Essentially, the judge or jury is unconvinced that the suspect is innocent, but guilt has not been proven "beyond [[reasonable doubt]]".<ref name="borrowed" /> Conversely, its opponents argue that a two-verdict system would lead to an increase in wrongful convictions.<ref name="In3V"/>

Following a not proven verdict in a criminal trial in 2015, Miss M successfully sued Stephen Coxen in the civil courts, in what was the first civil damages action for rape following an unsuccessful criminal prosecution in almost 100 years. In 2018, Miss M launched #EndNotProven alongside Rape Crisis Scotland, calling for Not Proven to be removed and citing the disproportionate use in rape cases, the widespread misunderstandings of the verdict and fears that it is being used as an 'easy way out' by jurors.<ref>{{Cite web|url=https://www.rapecrisisscotland.org.uk/campaigns-end-not-proven/|title=End Not Proven|website=Rape Crisis Scotland|access-date=2024-03-13}}</ref>

In April 2023, the Scottish government published the Victims, Witnesses, and Justice Reform Bill which, if passed, will abolish the not proven verdict.<ref>{{cite web|url=https://www.gov.scot/publications/victims-witnesses-and-justice-reform-bill-factsheet/|title=Victims, Witnesses, and Justice Reform Bill: factsheet|website=Gov.scot|date=26 April 2023|access-date=26 April 2023}}</ref> In April 2024, the Scottish Parliament voted to advance the bill to Stage 2, where members can submit amendments on the bill to committee.<ref>{{cite web|url=https://www.parliament.scot/bills-and-laws/bills/victims-witnesses-and-justice-reform-scotland-bill/stage-1/|title=Victims, Witnesses, and Justice Reform (Scotland) Bill|website=Parliament.scot|date=23 April 2024|access-date=4 June 2024}}</ref>