THE ‘NOT PROVEN’ VERDICT
An open letter to Keith Brown, Justice Secretary
by Owen Dudley Edwards

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.

NOT PROVEN

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

1. Opinions of great minds, whether legally, theologically or sociologically trained, are unlikely to be infallible.  Sir Walter Scott (1770-1832) is frequently cited against ‘NOT PROVEN’, and he commands respect as the father of the modern historical novel and of social history, as well as for his personal generosity of hospitality and warm friendship to political opponents such as the poets Byron and Thomas Moore.   

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 5^th 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.

• In late 1828, Scott found himself scrutinising the case of Burke and Hare.   Burke was put on trial, on Christmas Eve non-stop into Christmas Day.  Burke was found guilty of murder but (as leading counsel on both sides) noted, he was delighted that his mistress and fellow-defendant Helen Dougal or MacDougal was found ‘NOT PROVEN’, while he was found ‘Guilty’.  Burke’s and Hare’s business of supplying their recent murder victims to the doctors, specifically to the great anatomist Robert Knox, had now been discovered, and the Edinburgh public demanded corresponding victims for the gallows. MacDougal refused to turn King’s evidence against William Burke, and Lord Advocate Sir William Rae in desperation persuaded William Hare and his wife Margaret to become prosecution witnesses. Scotland’s criminal law was then in a higher state of civilisation than England’s:  specifically, prisoners in Scotland were permitted to have the best advocates at the Scottish bar appear and plead for them without fee whereas in English trials up to 1836 only lawyers employed by the prosecution could address the jury. The brilliant and experienced Henry Cockburn, briefed for Helen MacDougal, thought her chances were better by seeking a ‘NOT PROVEN’ verdict. Rae’s lack of forensic sense had appeared in the indictment where both Burke and MacDougal were arraigned for three murders, although MacDougal had not been present at two of them and she had tried to prevent the only one she witnessed. But so widespread and so intense was the howling for scapegoats that an innocent prisoner under indictment might be hanged if the jury were not reminded of NOT PROVEN, and knew that when the trial was over they themselves might face the vengeance of a bloodthirsty populace from whom they had been chosen and among whom each juryman would return to dwell. Walter Scott was evidently informed rather than consulted by his friend Rae and five days before the trial wrote his son Charles:

‘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.

• The availability of a ‘NOT PROVEN’ verdict has not saved prisoners whose guilt has been forced on a jury by a bullying judge and a weak defence counsel, or by a forceful prosecutor intimidating a weak judge. Regina vs Jessie McLachlan (1862),, under Lord (George) Deas condemned a woman to death commuted to lengthy imprisonment, although (as she pointed out from the dock) as strong a case exists against an entirely different person, James Fleming.  Re v Oscar Slater (1909) under Lord (Charles John) Guthrie had the same outcome, the real culprit remaining unknown although after imprisonment until 1927 Slater himself was absolutely cleared. Both cases were tried by tyrannical judges intimidating counsel and jurors, the possibility of ‘NOT PROVEN’ being swept aside. After public outcry and governmental reappraisal McLachlan served 15 years imprisonment, Slater 18. Both commutations evidently recognised a status between Guilty and Not Guilty but the failure of the initial trials to use ‘NOT PROVEN’ produced new sentences seeming to imply that the prisoner was probably but not certainly guilty (and a tacit admission of the judges’ bias). ‘NOT PROVEN would have been better justice, and should have been more firmly noted as a possible verdict, by a better judge.

      ‘NOT PROVEN’ IN ENGLAND?

• English criminological history contains doubtful cases which might have been saved from miscarriage had a ‘NOT PROVEN’ verdict been available to the juries: examples include Regina v Florence Maybrick (1889), Rex v John Alexander Dickman (1910), Rex v Steinie Morrison (1911),  Rex v Frederick Bywaters and Edith Thompson (1922), Rex v Timothy John Evans (1950), Regina v Christopher Craig and Derek Bentley (1952), and the Evans trial requires examination of Regina v John Reginald Halliday Christie (1953), Christie having been the chief witness for the prosecution against Evans. All these cases received full reports of the trial, scholarly introductions and (where necessary) Appendices in the Notable British Trials series published by Hodge of Edinburgh. 

• Steinie Morrison’s death sentencefor murder was commuted to lifeimprisonment by Winston Churchill, Home Secretary 1910-11. Morrison himself committed suicide while in prison in 1921, still protesting his innocence. The historian Julian Symons, who studied his trial in some detail in A Reasonable Doubt (1980), drew attention to the summing up of Mr Justice (Charles) Darling which closed by pointing out that in Scotland it was possible to return a verdict of ‘Not Proven’ but there was no such way out for an English jury: ‘If it is “Not Proven”, they must not say, “Oh, it is not proven, but we find him guilty”, they must say, “It is not proven therefore we acquit him”’.  The English jury clearly disregarded this, taking 35 minutes to find the prisoner guilty: Darling in his mandatory sentence of death that followed, carefully avoided saying he agreed with the verdict (although judges usually stated such agreement). Churchill was probably influenced by Darling to commute the sentence, both of them showing more respect for ‘NOT PROVEN’ as a permissible verdict than for the English limitation of jury alternatives.  Churchill had an exceptional intellect, with a vigorous dislike of letting questionable decisions prevail without inspection.  In 1910 he had spent some time trying to find alternative conclusions to the verdict and death sentence in Rex v John Alexander Dickman and evidently regretted having to let them stand for want of a satisfactory alternative. Churchill was also aware of the widespread anti-Semitism of these years which may well have explained the jury’s speed in condemning Morrison, and perhaps also the Scottish majority verdict against Slater (who like Morrison was a foreigner).  See also Eric Linklater, The Corpse on Clapham Common (1971).  

• Florence Maybrick in 1889 and Edith Thompson in 1922 were victims the ambiguity of whose indictments would have made the option of ‘NOT PROVEN’ highly desirable   in the cause of justice. In each case the presiding judge used the charges of adultery to inflame the jury against the woman prisoner. James Maybrick, Florence’s husband, used to take arsenic to increase his sexual potency (his own adultery was widespread) and also to safeguard against the effect of larger doses, and his wife apparently administered a dose or doses to him at his insistence. Her judge, Sir James Fitzjames Stephen, was disintegrating physically and mentally, but his forceful authoritative manner dominated the jury ensuring their verdict of Guilty:  the Home Secretary (Henry Matthews) and the Lord Chancellor (Hardinge Giffard, Earl of Halsbury) were convinced that Florence Maybrick administered arsenic to her husband with intent to kill him, but had to confess there was no proof that any poison she administered was the cause of his death — nor was there any obvious motive for his murder — so they sentenced her to prison for an offence with which she had not been charged. It was a classic case of the kind for which the availability of ‘NOT PROVEN’ was essential.

• Edith Thompson married Percy Thompson in 1916, grew bored with him and became attracted to Frederick Bywaters for which her husband inflicted bruises on her and ejected him from their house:  she then wrote many letters to Bywaters who was on board ship as a steward, wildly imagining torrid operatic relations between herself and her husband including fictions of murderous attacks by her on him.  Bywaters sincerely believed them, and waylaid and killed Percy Thompson on 3 October 1922 when he and Edith were returning from a visit to their local theatre in Ilford. He began by demanding that Thompson divorce her, which Thompson refused to do.   Edith Thompson tried to prevent the murder. At their trial for murder Bywaters used every opportunity to stress her absolute innocence of participation in preparation or execution of the crime and went to the gallows still protesting her innocence. But Mr Justice Montague Shearman used the letters to impress on the jury that their content was the work of an adulteress inciting Bywaters to murder and therefore showed her deserving the same capital sentence.  Here again the letters bearing no incitement of the ultimate murder made a prosecution case whose merit at best was ‘NOT PROVEN’. If pillars of late Victorian and early postwar society believed that adultery by wives must be denounced to save society from degeneration, ‘NOT PROVEN’ could have enabled them to preach the sermon without descending to lynch law. But in 1922-23 the Home Secretary William Bridgeman was no Winston Churchill.

• Derek Bentley was hanged on 28 January 1953 for the murder of Police Constable  

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.

• The trials of Tim Evans in 1950 and Reg Christie in 1953 raise parallels more frequent in most jurisdictions than seem sufficiently acknowledged.  As the police in Scotland, England or anywhere else seek to bring home Guilt against a prisoner, it may be that in reality the chief witness for the prosecution is as guilty as the accused, and the Crown must hope that he or she is not more so. It brings us back to Burke and Hare when William and Margaret Hare were made King’s Evidence and suffered to tell highly self-protective versions to incriminate Burke and MacDougal (ironically Margaret Hare seems to have been as guilty if not as fully as her husband, and he may have been more guilty than Burke or at least far less conscience-stricken). The Evans trial starred Christie in Hare’s part. Contemporaries seem to have been convinced of Hare’s guilt as well as of Burke’s:  how many people in 1950 saw the possibility of Christie’s, although Evans ultimately declared Christie the true murderer after initially floundering in confessions apparently induced by rough police methods? Not the jury, which took no more than 40 minutes to find Evans guilty of the murder of his 1-year-old daughter Geraldine. The Labour Home Secretary, James Chuter Ede, declined to pardon Evans, but concluded that this had been wrong when Christie’s guilt of several murders became evident, most of them on Christie’s own repulsively conceited confessions made with a view to proving his own insanity: Chuter Ede out of office (replaced by the Tory Maxwell Fyfe) called for a posthumous pardon for Evans.  Evans had initially been charged with the murder of his own wife Beryl, to which Christie confessed in 1953 while on trial for the murder of his wife Ethel.   Christie may well have been guilty of several more than the seven he ultimately claimed (remarking to his psychiatrist ‘the more, the merrier’). At first, he denied killing Geraldine Evans though he may have implied an admission later.   Ludicrously, initial re-examinations of the Evans case after Christie’s execution attempted to blame him for Beryl Evans’s death: it was as though ‘NOT PROVEN’ — so often ignored in English courts as a basis for comparison (as made by Darling, J. in the Morrison trial) — now came back to hang over Evans’s innocence.  But he won his pardon in 1966. The Commons voted to abolish capital punishment for murder on 8 November 1965. Chuter Ede, who had campaigned for it in his last years, died three days later.  

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.

Yours faithfully,

OWEN DUDLEY EDWARDS

School of History, Classics, and Archaeology

University of Edinburgh