The Victims, Witnesses, and Justice Reform (Scotland) Bill was published by the Scottish Government in April 2023. The Bill has now been approved by the Scottish Parliament. Among other things, it introduces a number of significant changes to the Scottish criminal justice system, for instance, through the introduction of a Sexual Offences Court (Section 37), and the creation of the office of Victims and Witnesses Commissioner for Scotland (Schedule 1). One other significant change made by the Bill, and the one focused on here, is the imminent removal of the ‘not proven’ verdict in Scots Law. This blog post explores the factors which motivated the move and explains how the law has changed.
What is the not proven verdict?
At present, Scots Law recognises three different verdicts which can be returned in a criminal trial: ‘guilty’, ‘not guilty’ and ‘not proven’. Both the not guilty and not proven verdicts are verdicts which result in an acquittal. Both verdicts mean that the accused cannot be tried again for the same offence, except under the very limited circumstances provided for in the Double Jeopardy (Scotland) Act 2011. There is no statutory, common law, or generally accepted definition of the not proven verdict. Nor is there an accepted definition of the difference between the not proven and not guilty verdicts.
Why does the Bill remove the not proven verdict?
The not proven verdict has been a controversial feature of Scots Law for some time and a recent Scottish Government consultation on the subject highlighted a number of concerns surrounding its continued use in Scottish jury trials. They are discussed more fulsomely below, but in short, are that: the difference between not guilty and not proven is unclear; that a not proven verdict is stigmatising for the accused; that the not proven verdict may reduce the number of convictions; and that not proven is disproportionately used in cases involving rape and attempted rape.
Principally, many argue that the difference between not guilty and not proven verdicts remains unclear. Indeed, as was mentioned above, no authoritative definition of the not proven verdict, or how it differs from not guilty, actually exists. Judges in criminal trials cannot provide direction on this matter to confused juries. Rather, the Appeal Court has directed judges not to attempt to describe the difference in verdicts to juries, holding that “in our view it is highly dangerous to endeavour to explain what the not proven verdict is in relation to the not guilty verdict”.[1] Resultingly, no judicial direction is to be given to juries beyond guidance that there are three possible verdicts, and that both not proven and not guilty will result in an acquittal.[2] It has therefore been difficult for juries to understand when each verdict ought to be returned, producing inconsistency between the way that these verdicts are used between different cases.
The history of the two verdicts does not assist with understanding how each verdict ought to be used in a modern criminal context, either. The creation of the three-verdict system was, seemingly, a historical accident. Scots Law had a two-verdict system of guilty and not guilty in jury trials as early as the sixteenth century.[3] Professors James Chalmers and Fiona Leverick have, however, explained that the not proven verdict appeared later in time. They write that the not proven verdict in fact didn’t emerge until the seventeenth century. The verdict accompanied a procedural change, whereby juries returned ‘special verdicts’ having considered whether the factual allegations on an indictment were proven or not proven. With the question of whether the factual allegations were proven or not determined by the jury, the ‘actual inference of guilt or its absence was left to be drawn by the judge’.[4] This procedural change meant that guilty and not guilty verdicts had largely fallen out of use. However, in the early-eighteenth century, the right of a jury to return a verdict of not guilty was re-established. [5] This was used in addition to the two special verdicts of proven and not proven. Following that, the special verdict system itself then began to fall into disuse, and by the nineteenth century the modern three-verdict system of guilty, not guilty, and not proven had emerged.
Related to this lack of clarity between verdicts, the misunderstanding and confusion surrounding when not proven ought to be used has been described as traumatising to victims ‘as it is a verdict that they do not trust or understand.’[6] Additionally, it leaves a ‘lingering stigma on the accused’.[7] This is because many incorrectly assume there is a substantive difference between the verdicts, with a not proven verdict still often carrying a popular presumption of guilt. The verdict is incompatible with the presumption of innocence and instead too often leads to stigmatisation despite an acquittal. This is particularly dangerous where it is unclear to a jury how, and when, not proven ought to be used.
Next, there is evidence that the existence of not proven may reduce the number of convictions following a criminal trial. A 2019 large-scale mock jury study found that the removal of the not proven verdict may incline jurors towards a guilty verdict in trials which were finely balanced.[8] The study found that ‘individual jurors were significantly less likely to favour a guilty verdict when the not proven verdict was available’.[9] This finding has featured in arguments for both reform, and preservation, of the three-verdict system. Indeed, for some, the not proven verdict acts as an important safeguard that reduces the risk of wrongful conviction, allowing a jury to select a verdict which to some appears to be a middle-ground between a conviction, and a not guilty acquittal.
However, what is also clear is that there is a disproportionate usage of the not proven verdict for rape and attempted rape cases. This was highlighted by Rape Crisis Scotland who launched a campaign in 2018 called “End Not Proven”. The campaign demonstrated the disproportionate use of not proven in rape cases, with such verdicts accounting for 44% of rape and attempted rape acquittals in 2019/2020, in comparison with 20% for all crimes and offences.[10] It has been suggested by campaigners that the existence of the third verdict in particular may contribute to the acquittal of defendants who committed the offence, and causes particular trauma to victims. This is particularly significant given that these cases have the highest total acquittal rate of any crime.[11]
How has the Bill changed the law?
The Victims, Witnesses, and Justice Reform (Scotland) Bill is the mechanism through which the not proven verdict will be withdrawn from Scottish juries. The Bill abolishes the verdict in all criminal trials in Scotland, replacing it with a two-verdict system of guilty and not guilty (Section 35 and Section 36). Under this system, a two-thirds majority of jurors would be required for a conviction (10 of 15 jurors, a change from the previous requirement of a simple majority of 8 jurors of 15). These changes have been made together in the Bill. The 2019 large-scale jury study conducted by the Scottish Government indicates that a change from a simple majority to a two-thirds majority may increase the number of acquittals.[12] This change will interact with the removal of not proven, and there is some suggestion that it will provide a necessary counterbalance to this change.[13]
Conclusion
The removal of the not proven verdict follows a lengthy period of campaigning and consultation. Despite the long history of the verdict in Scots law, several factors culminated in the Scottish Government decision to legislate on the issue, reforming the options available to Scottish juries. Although there appear to be many benefits to removing the not proven verdict, reforming criminal trials is a complex business, with many potentially unintended consequences. It remains to be seen how the removal of the not proven verdict will impact the efficacy of Scottish criminal trials.
Cassandra Somers-Joce.
Cassandra Somers-Joce studied law at Oxford University, where she is currently a non-stipendiary lecturer. She has previously taught public law at King’s College London, in addition to holding research roles at the University of York and Durham University.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] MacDonald v HM Advocate 1996 SLT 723.
[2] Judicial Institute for Scotland, Jury Manual, page 109.1, last updated 1 July 2020.
[3] Ian Willock, The Origins and Development of the Jury in Scotland (The Stair Society, 1966), Chapter 10.
[4] Ibid, pp 218-219.
[5] This development is commonly attributed to the 1728 trial of Carnegie of Finhaven.
[6] Justice Secretary Angela Constance speaking at the Meeting of the Scottish Parliament, Tuesday 16 September 2025 (available <https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/meeting-of-parliament-16-09-2025?meeting=16573&iob=141496> accessed 13 October 2025).
[7] Ibid.
[8] Rachel Ormston, Professor James Chalmers, Professor Fiona Leverick, Professor Vanessa Munro, Lorraine Murray, Scottish Jury Research: Findings from a Large Scale Mock Jury Study (Scottish Government, October 2019), available at < https://www.gov.scot/publications/scottish-jury-research-fingings-large-mock-jury-study-2/documents/> accessed 13 October 2025.
[9] Ibid, page viii.
[10] Rape Crisis Scotland, ‘End Not Proven’ https://www.rapecrisisscotland.org.uk/campaigns-end-not-proven/ (accessed 3 October 2025).
[11] Scottish Government, ‘The not proven verdict and related reforms: consultation’ (13 December 2021), available at <https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation/pages/3/> accessed 13 October 2025.
[12] Rachel Ormston, Professor James Chalmers, Professor Fiona Leverick, Professor Vanessa Munro, Lorraine Murray, Scottish Jury Research: Findings from a Large Scale Mock Jury Study (Scottish Government, October 2019), available at < https://www.gov.scot/publications/scottish-jury-research-fingings-large-mock-jury-study-2/documents/> accessed 13 October 2025. The study compared a system where unanimity is required with a ‘simple majority’ system.
[13] Scottish Government, ‘The not proven verdict and related reforms: consultation’ (13 December 2021), available at <https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation/pages/5/> accessed 13 October 2025.