The not proven verdict and related reforms

Recently the right to avoid double jeopardy has been breached. The excuse has been that fresh evidence may come to light, there are advances in eg DNA evidence etc. This has the effect of preventing many innocent people getting on with their lives. Where someone is found NOT GUILTY that should be the end of it. However I can see that sometimes the prosecution bungles its case preventing a guilty verdict to criminal standards. In this case it is appropriate that the jury decides that the case is NOT PROVEN - and in this case I could see that (let us say at the judge's discretion) the prosecution should be allowed to bring a fresh case (under highly specific circumstances) within a fixed period of time (say 3 or 5 years - which might depend on the nature of the crime of which the person stands accused). If the time limit is exceeded then the person whose case has been found NOT PROVEN should be deemed NOT GUILTY. This way the matter of double jeopardy would be codified.

At the moment double jeopardy seems unjust and arbitrary. This way we could have a transparent system.

In effect what this would mean is that where the jury thought the accused was guilty beyond all reasonable doubt then the verdict would be GUILTY/PROVEN. Where the jury found that the person was guilty on the balance of probabilities (the civil standard), but not to the criminal standard then the verdict would be NOT PROVEN. But when the jury finds someone NOT GUILTY then that really should be the end of it,

The fact is that in very many cases we do not KNOW for sure. There are miscarriages of justice where an innocent person is found Guilty. Actually what has happened is that the case has been found to be proven and the guilt of the accused is therefore assumed. So PROVEN more accurately states what has gone on.

This also has the advantage of retaining the Scottish tradition.

I think I have explained this above.
In the case of NOT GUILTY we should understand that the jury is sure that the accused did not do it
In the case of GUILTY the jury is sure to criminal standards that the accused did what is alleged.
In the case of NOT PROVEN the implication is that the accused may well have done it and that if various criteria are met a fresh prosecution could be made, This is different from a mistrial where necessarily everything starts again.

There are people who have complained about a NOT PROVEN verdict in the past because they wanted a guilty verdict. These people are deluded because if there were no NOT PROVEN verdict the only thing a jury could do would be to declare the accused NOT GUILTY - which would be even worse. Under my proposals in the case of a NOT PROVEN verdict there is more chance of a replay and a guilty verdict,

Because there is a clear implication that "Hmmm we think you done it but we cannae be sure".

Clearly many an aggrieved person who does not get the verdict they want will be further traumatised - but this would not happen if my proposals were implemented.

However those who are most traumatised are those who want revenge - and mostly what they need is counselling, because brooding on perceived offence is self-injurious.

With any requirement for unanimity it only takes one bolshie person to prevent a verdict being reached. On the other hand I think an 8/7 split is not acceptable for a guilty verdict.

So I would keep 15 and make 10 the threshold for guilty and for not proven.

I have chosen the best option, but I although I suggested 10/15 in the last question this may be too low. 12/15 would be better.

By returning (if they think fit) a not proven verdict under my proposals this would not necessarily be an acquittal. However if they found someone not guilty that should be an acquittal against which there should be no comeback.

If 12/15 cannot agree that Guilty is right then the question becomes can 12/15 agree that NOT PROVEN is the correct verdict. If so then NOT PROVEN it is, but if 12/15 cannot even agree on NOT PROVEN then the verdict is properly NOT GUILTY.

First I do not think that these issues should be articulated.
Second I think that there should not be a presumption in general for reforming corroboration, but there is no harm in keeping it under review. So we should not start by saying "we must reform it" because that implies "something-must-be done-ery" which normally produces bad results. But if specific amendments are proposed then they should be considered on their merits.

What I do know is that the current system leads to the police badgering and harassing people into providing so-called corroboration in attempts to make cases stand up.

With two verdicts instead of three the opportunities for miscarriage of justice escalate so safeguards are ever more important.

The public/media furore around some cases is likely to pressure jury members - so the case for safeguards remains very strong

I am not qualified to judge. That should be a task for a Royal Commission to make recommendations.

Again I do not have the necessary expertise to be able to offer specific suggestions regarding safeguards.

Particularly in sexual cases it is already the case that important evidence cannot be led. This needs rolling back. Of course we do not want a trial system which traumatises a complainant and we do not want the sort of aggressive cross=examination which could exacerbate this, but the current rules are too arbitrary and too rigid.

My own view is that in many sexual cases and many cases of domestic violence there needs to be a way of resolving matters between the parties which can take the place of a "trial" as such - which so often actually resolves nothing for any of the parties concerned and actually prevents many people coming forward in the first place.

If such a system were to be instigated (Truth and sometimes some sort of Reconciliation) then this would obviate many of the corroboration problems which arise at the moment. Many genuine victims want a recognition of what has happened, but not necessarily the punishment of the wrongdoer.

This is not a matter to be treated on its own. The public in general is woefully ignorant of the Law generally. All laws need to be in plain English and people's rights - and duties - need teaching in schools. The only way for a subject to be taken seriously in schools is for it to be examinable. The only way for exams to be taken would be if employers and universities were to accept the qualifications. The matter of corroboration and how it works should be a part of this process.

There is, however, a down side: detailed knowledge of the law will allow more bad actors to conspire effectively to pervert justice.

Any weakening of corroboration rules is likely disproportionately and negatively to affect those with mental disabilities and those particularly older people afflicted with dementia of one sort or another.

not at this time

Any move designed to increase conviction rates is likely to produce more miscarriage of justice and hence eg innocent people incarcerated or otherwise ruined

not directly that I can think of.

While the issues raised in this paper are all fair enough in their own way, the general emphasis on "nailing more people" and, by implication, cramming our prisons ever more overfull illustrates the wrong mindset. Generally complainants want recognition of their woes (which may or may not be associated with the allegations they make), but this does not necessarily imply the punishment, never mind the incarceration, of those in whom they choose to invest their woes (sometimes appropriately, sometimes not). Society and the media and politicians exacerbate this by winding the complainants up and demanding ever more severe "justice" to take the place of resolution. Of course while the threat of trial and punishment hang over someone's head they will not admit to causing any harm and thereby any trauma is exacerbated.
The lure of the cash register is ever more important and this too needs setting back.