Last month the Cabinet Secretary for Justice, Keith Brown MSP, launched a three-month long consultation on the Not Proven verdict (and other aspects of the Criminal Justice System) and invited responses from the public. The Justice Secretary acknowledged that there are some ‘strong opinions’ on the verdict. We publish here an open letter the Justice Secretary, written by the Irish historian and writer Owen Dudley Edwards, giving his opinion on the verdict.
The Proposal that the ancient Scottish verdict of NOT PROVEN be abolished is now open for Conversation under Scottish Government auspices, on which Owen Dudley Edwards FRSE, FRHistS writes
To the incumbent minister, Keith Brown MSP:
19 January 2022
Dear Justice Secretary
The case against ‘NOT PROVEN’ is ‘NOT PROVEN’ and can never be anything else. The most that can be claimed against it is that verdicts of ‘GUILTY’ or ‘NOT GUILTY’ might in certain circumstances be more likely correct than ‘NOT PROVEN’ but even there time might alter the balance in the direction of ‘NOT PROVEN’, new data emerging under scrutiny or old data being accorded more weight than hitherto.
The notion that a verdict of ‘NOT PROVEN’ never proves the best verdict is obviously impossible to prove. Legal systems in our archipelago have evolved in part by reliance on legal fictions, e.g. the old oath demanding that witnesses swear to tell the truth, the whole truth, and nothing but the truth, was impossible of realisation. No single person can know the whole truth of any event, and no witness however honest can be sure that their testimony contains nothing but the truth. The frequent addition ‘so help me God’ was in fact a tacit admission that the whole truth and nothing but the truth were impossible goals for human control. In the present case, with due respect to the Scottish Government, it will be impossible to conclude that ‘NOT PROVEN’ can never be the true verdict in any future trial. If it be charged that it is a verdict less satisfactory to the ends of justice than ‘GUILTY’ or ‘NOT GUILTY’, such a conclusion could never be more than a matter of opinion, which is to say a matter of personal prejudice. The juror who finds a case NOT PROVEN merits more trust than one who plumps for GUILTY or NOT GUILTY.
‘NOT’ PROVEN’ IN SCOTLAND
He was certainly severe against ’NOT PROVEN’ in his diary on Tuesday 20 February 1827 (Scott’s spelling retained):
At court, and waited to see the poisoning woman. She is clearly guilty but as one or two witnesses said the poor wench hinted an intention to poison herself the jury gave that bastard verdict Not Proven. I hate that Caledonian Medium quid. One who is not proved guilty is innocent in the eye of law. It was a face to do or die, or perhaps to do to die. Thin features which had been handsome, a flashing eye, an acute and aquiline nose, lips much markd, as arguing decision and I think bad temper — they were thin and habitually compressd, rather turnd down at the corners, as one of a rather Melancholy disposition. There was an awful crowd but sitting with the bar I had the pleasure of seeing much at my ease the Constables knocking other folks about, which was of course very entertaining.
W. E. K. Anderson, admirable editor of The Journal of Sir Walter Scott (1972, 1998), noted (p. 317n) the Whig advocate Henry Cockburn also present at the trial (Rex v Mary Elder or Smyth) recalling in his Circuit Journeys (Entry for 12 April 1838):
Scott’s description of the woman is very correct. She was like a vindictive masculine witch. I remember him sitting within the bar, looking at her. Lockhart [Scott’s biographer] should have been told that as we were moving out, Sir Walter’s remark on the acquittal was: ‘Well, sirs! all I can say is, that if that woman was my wife, I should take good care to be my own cook.’
Scott’s closest friend in the Tory Government at this point was the Lord Advocate Sir William Rae, who certainly needed his advice. They had dined together as recorded on Tuesday 6 February (Journal p. 310):
There had been a judiciary trial yesterday in which something curious had occurred. A woman of rather the better class, a farmer’s wife, had been tried on the 5th for poisoning her maid servant. There seems to have been little doubt of her guilt but the motive was peculiar. The unfortunate girl had an intrigue with hr son, which this Mrs Smith (I think that is the name) was desirous to conceal from some ill-advised puritanic notions and also for fear of her husband. She could find no better way of hiding the shame than giving the girl (with hr own knowledge and consent I believe) potions to cause abortion, which she afterwards changed for arsenic as the more effectual silencing medicine. In the course of the trial one of the jury fell down in an epileptic fit and on his recovery was far too much disorderd to permit the trial to proceed. With only fourteen jurymen it was impossible to go on. But the Advocate says she shall be tried anew since she had not tholed an assize. Sic Paulus ait et recte quidem. [So said Paul — and rightly.] But having been half tried I think she should have some benefit of it, as far as saving her life if convicted on the second indictment. The Advocate declares however she shall be hanged, as certainly she deserves. But it looks something like hanging up a man who has been recovered by the surgeons, which has always been accounted harsh justice.
If this is our evidence for declaring Scott the enemy of ‘NOT PROVEN’, it is ‘NOT PROVEN’ itself. Taking the two diary entries together (and only two weeks separate them) Scott would appear to have condemned ‘NOT PROVEN’ while simultaneously deploring the outcome in the case as just but unfair, his unease deepened by his friendship with the Advocate who was demanding the gallows as vindication of his indictment of the prisoner.
Robin Mayhead, in ‘Scott and the Idea of Justice’ (A. Norman Jeffares ed., Scott’s Mind and Art) directs us to chapter 5 of The Heart of Midlothian (1818), viz.:
‘The case of Effie (or Euphemia) Deans’, resumed Saddletree, ‘is one of those cases of murder presumptive, that is, a murder of the law’s inferring or construction, being derived from certain indicia or grounds of suspicion.’
‘So that’ said the good woman, ‘unless poor Effie has communicated her situation, she’ll be hanged by the neck, if the bairn was still-born, or if it be alive at this moment.’
‘Assuredly’, said Saddletree, ‘it being a statute made by our sovereign Lord and Lady, to prevent the horrid delict of bringing forth children in secret.
The crime is rather a favourite of the law, this species of murther being one of its ain creation.’
‘Then, if the law makes murthers’, said Mrs Saddletree, ‘the law should be hanged for them; or if they wad hang a lawyer instead, the country wad find nae faut.’
So Scott’s deploring ‘NOT PROVEN’ proves a much more formidable witness against the restriction of alternatives to ‘Guilty’ and ‘Not Guilty’, and the entire novel turns on Jeanie Deans’s pilgrimage to London to win a pardon for her otherwise doomed sister, which she gains from Queen Caroline, the real ruler of Britain who keeps her husband George II occupied by the mistresses she chooses for him: it is a novel in which the men are morally and intellectually inferior to the women.
The citation ‘So says Paul — and rightly’ is Scott’s characteristic undercurrent of sardonic irony, since the relevant passage in Paul’s first epistle to Timothy, chapter 2, declares Paul himself chosen by God between Whom and humanity there is only the manhood of Christ Jesus (a text beloved of Protestants by apparently eliminating the Pope &c) and then promptly himself instructs women to ‘adorn themselves in modest apparel, with shamefacedness and sobriety, not with braided hair, or gold, or pearls, or costly array … Let the woman learn in silence with all subjection. But I suffer not a woman to teach, nor to usurp, authority over the man, but to be in silence’. Was Paul rather than Peter the first infallible Pope? In other words, Scott as a witness against ‘NOT PROVEN’ leaves its case stronger.
‘They keep the thing as quiet as they can for fear of riot but if I were a Doctor I would be afraid of my windows on Monday and well if they get off with a pebbling.
‘NOT PROVEN’ endows the jurors’ verdict with some intellectual respectability. It invites the critic to share the juror’s problems in assessing the relative value of varying forms of evidence, whereas a verdict of ‘Guilty’ or ‘Not Guilty’ may seem as arbitrary as the toss of a coin. It openly shared other distinctive traits of Scots criminal law — the majority verdict, the totality of jurors being the odd number of 15 where the English restriction to 12 increases the likelihood of deadlock, the insistence that the trial should begin with indictment, demurrer, and pleas followed at once by the calling of prosecution evidence with no opening speech for the prosecutor: in England, Ireland and other jurisdictions the presentation of evidence in a prosecutor’s initial oration (before a witness is sworn or an exhibit produced) may fix jurors’ minds into a premature assumption of the prisoner’s guilt. Fundamentally, the English and Irish traditions presume a jury being expected to follow instructions, the Scottish tradition presumes jurors’ ability to think for themselves. It accords with the tradition of the democratic intellect implicit in the monarch’s being king/queen of the Scots rather than being a supreme landlord whose holding is ‘Scotland’, in the Protestant Scots wanting congregations’ choice of ministers, in belief in higher education of the masses rather than its restriction to the upper classes, in making intellectual materials available to the widest possible audience as shown in the publications and societies explaining the bases of knowledge and printing major documents of past and present for public consumption, in what we call the Scottish Enlightenment.
The same criminological danger of a prejudiced public is true today, with all forms of modern media communication liable to infect communities with demands for punishment of arrested persons. Formal instructions to jurors not to be influenced beyond the evidence presented in the court-room are unlikely to command total obedience however much individual jurors may try to pursue objectivity. ‘NOT PROVEN’ as a possible verdict reminds jurors that life may not always dictate a crude polarisation between Guilty and Not Guilty. Before the trial Scott had evidently been informed by Rae that MacDougal was as guilty as Burke, and once a prosecution parcels its prisoners into a near equality of Guilt, Crown counsel may be intellectually scarcely capable of allowing for Guilt’s vastly different levels. The English system also hastens and was intended to hasten juror unanimity the tradition taking shape when nourishment was withheld until a verdict from the entire jury was given, as summed up by Alexander Pope in The Rape of the Lock ((1714) Canto I, lines 21-22):
The hungry judges soon the sentence sign,
And wretches hang that jury-men may dine.
‘NOT PROVEN’ IN ENGLAND?
Stanley Miles which had happened when Bentley was in police custody but was reported as calling to Craig ‘let him have it’, while Craig was being pursued by Miles. Craig being under age (16) could not be sentenced to death, and Bentley (19, but mentally retarded) was doomed on the Gilbertian ‘A victim must be found’. A principal cause of this patent violation of justice was the presiding judge at the 1952 trial, Lord Chief Justice Rayner Goddard whose flagrant violation of judicial impartiality was dissected and denounced (after Bentley had received a posthumous pardon in 1993) by Lord Chief Justice Bingham on 30 July 1998. It’s important to notice that Goddard is recognised as the first non-political appointment of Lord Chief Justice down the centuries, since partisan accusations of judicial bias have been frequently made against Tory or Unionist judges. ‘NOT PROVEN’ is an obvious answer to the biases of the 1950s, and would have been a justifiable verdict on the guilt of Bentley, perhaps the best, since public opinion would have thought it unfair to see the brave Constable Miles unavenged. Bingham’s judgment reminds us that a thoroughly unprincipled judge thirsting for vengeance and the demagogic applause of the popular press might sweep the objections of juries and colleagues aside, all the more when as in this case the Home Secretary, Sir David Maxwell Fyfe, fully shared Goddard’s admiration for flogging and hanging, and revived Government persecution of homosexual men resulting in the conviction of Alan Turing in 1952 and his suicide in 1954. Against such men as Goddard and Fyfe the existence of a ‘NOT PROVEN’ verdict might not have been decisive but it would at least have extended the alternatives to legal brutality. It also would have given some solace to the police, often — and understandably — unscrupulous in exacting punishment for the killing of their police comrades. A ‘NOT PROVEN’ perspective would also enable realism to replace either the insistence that the police are perfect and always ‘do a great job’ or that they are sadistic perjurers: as a rule they are simply human beings like the rest of us, swayed by emotions such as courage and comradeship.
As a member of SNP I have a duty to help defend Scotland’s heritage with particular concern for its unique features, often endangered by Scottish submission to London fashion. Throughout history, what a metropolis did not understand, it wanted to abolish. It is for today’s generations to preserve the good that our history has left us.
OWEN DUDLEY EDWARDS
School of History, Classics, and Archaeology
University of Edinburgh