Guilty… of sweeping away legal tradition in a mad rush for change

AS the daughter of a wealthy Glasgow architect, Madeleine Smith was expected to marry someone of her own social standing.

Instead she began a passionate clandestine affair with Pierre Emile L’Angelier, a gardener from the Channel Islands.

When she broke it off to prevent a scandal, her lover tried to blackmail her by threatening to expose some of the couple’s steamy letters.

And when L’Angelier died from arsenic poisoning, Smith was accused of killing him, and brought to a sensational trial in 1857 – during which public opinion sided ostensibly with her.

Smith walked free after a jury found the murder charge not proven, in a case which showed that while the ‘third verdict’ is highly contentious, it is part of a system that allows a full range of mitigating circumstances to be weighed in the balance.

But it could be about to be consigned to oblivion – joining smacking and fracking on Holyrood’s ever-increasing ‘banned’ list.

Tomorrow (October 9, 2019) Justice Secretary Humza Yousaf will unveil the results of a major research exercise, which could lead to a consultation on the abolition of not proven.

You might dimly recall that the SNP has some form when it comes to the overhaul of criminal justice.

Under former Justice Secretary Kenny MacAskill – who believed not proven was ‘past its sell-by date’ – ministers once tried to get rid of the historic principle of corroboration.

The notion of requiring two sources for evidence was deemed old-fashioned, and a barrier to convictions, particularly in hard-to-prove sex crime prosecutions – but it was shelved after a fierce backlash spearheaded by lawyers.

The bitterly divisive plan had been opposed by all but one of the country’s judges – Lord Carloway, who had devised it, and is now Lord President, the most senior judge in Scotland.

In 2014, the late Lord McCluskey attacked the move to end corroboration, and wrote in the Mail that all criticism of the SNP was ‘strategically ignored by the present government when it is deemed incompatible with its overall agenda’.

He added: ‘The trend for relentless legal reforms – interference with long-established laws – has gathered pace under the SNP and it’s a process that has been accompanied by a blurring of important boundaries.’

Mr MacAskill was sacked weeks later, the SNP staged a U-turn – and corroboration was saved.

None of which inspires much confidence that the party can be trusted with the business of potentially casting aside centuries of legal tradition.

True, the law on double jeopardy was changed – so that the Crown could prosecute someone twice for the same crime if new evidence emerged – allowing the eventual conviction of serial killer Angus Sinclair in 2014 for the infamous 1977 World’s End pub murders.

But it did represent the removal of a key defence of individual liberty, which was originally designed to prevent the state repeatedly targeting the same suspect: such incremental change has seen a gradual erosion of ancient custom and practice.

Not proven, for all its faults, does allow juries to express the opinion that while they are satisfied the accused should not be convicted, they are not in a position to say definitively that the suspect didn’t commit the crime.

While the legal effect of not proven is the same as acquittal, a shadow of suspicion can linger.

Families in cases where an alleged murderer or rapist escaped with a not proven verdict can be understandably angry, because it leaves them in limbo – denying them the closure they need to get on with their lives.

Among them are the relatives of drama student Amanda Duffy, murdered in 1992 at the age of 19, whose suspected killer Francis Auld walked free on a not proven verdict.

An attempt to re-indict him under double jeopardy reforms failed, and Auld died in 2017.

In another case, a man accused of rape was freed with a not proven verdict, but his alleged victim, known as Miss M, successfully sued him in the civil courts, and is now calling for the verdict to be scrapped.

And the late Glasgow gangland figure Thomas McGraw secured a not proven verdict on cannabis-smuggling charges.

But proponents of not proven, including veteran defence lawyer Donald Findlay QC, are adamant that its abolition would be a retrograde step that would lead to many more acquittals, rather than the guilty verdicts suffering relatives crave.

As for the view of Crown prosecutors, well, they’re strictly neutral, of course, though back in 2014, the Faculty of Advocates said not proven should be dropped if corroboration was abolished, and at that time the Faculty was led by James Wolffe QC – now Lord Advocate.

The research to be published tomorrow involved members of the public sitting on mock juries and being asked their view on verdicts.

Former High Court judge Lord Bonomy had been enlisted to come up with safeguards to allow corroboration to be ditched, and it was his work that led to the idea of researching how juries make their decisions.

It’s the outcome of that extensive research that will be made public this week.

One of the plans said to be on the table as part of Mr Yousaf’s shake-up is the introduction of two verdicts of proven and not proven.

But this wouldn’t end the controversy – after all, not proven would still exist.

Arguably, it’s a proposal – like many others produced by this government – that risks perpetuating the very problem it set out to solve.

Last year, a study by researchers at Edinburgh Napier University concluded that it was ‘unjustified’ to claim that not proven decreases the likelihood of guilty verdicts.

In fact, experts said other jurisdictions ‘might do well to consider introducing the not proven verdict as it might aid jurors in communicating their belief of guilt more adequately than is currently available under the two-horse guilty/not guilty system’.

Meanwhile, a consultation to be launched at the same time as the new jury research is published will also raise the idea of reducing the number of jurors from 15 to 12.

Smaller juries would be easier to administer and cost taxpayers less – it could save about £500,000 annually in juror allowances alone.

Granted, many of us see jury service as something of a bind anyway, so this is an option that might well win favour from anyone fed up with receiving those ominous citations in the post.

But a strategy based mainly on trying to economise should be regarded with extreme caution – after all, just look at the state of Police Scotland.

Yet, after generations of largely circular debate, Mr Yousaf could become the minister who finally slashes jury sizes and brings down the axe on ‘that bastard verdict’ – as not proven was branded by Sir Walter Scott.

Scottish justice is indeed in grave need of reform, because too often the courts appear disconnected from the priorities of the public they serve.

But it would be reckless to sweep away yet another pivotal plank of Scots law – simply to sate Holyrood’s prohibitionist tendencies.

*This column appeared in the Scottish Daily Mail on October 8, 2019.