UofG Centre for Public Policy

19 September 2025: This week, the Scottish Parliament passed the Victims, Witnesses, and Justice Reform (Scotland) Bill, which will abolish the ‘Not Proven’ verdict, a third verdict unique to Scotland. In this Policy Insights piece, Professors James Chalmers, Fiona Leverick, and Vanessa Munro explore the argument they made for abolishing the verdict in 2021 and crucially what happens next.

Policy Insights by Professor James Chalmers and Professor Fiona Leverick (University of Glasgow) and Professor Vanessa Munro (University of Warwick).

This is a version of a post previously published on the University of Glasgow School of Law blog in December 2021, updated in light of the Scottish Parliament voting to pass the Victims, Witnesses, and Justice Reform (Scotland) Bill on 17 September 2025.

In 2021, our paper “Beyond Doubt: The Case against ‘Not Proven’” was published by the Modern Law Review (open access and free to read). The article set out the case for abolishing Scots law’s distinctive “third verdict” in criminal cases. It drew on two empirical research projects: (a) a large-scale and pioneering mock jury deliberation study (the Scottish Jury Research), which explored in detail how juries operated both with and without this third verdict, and (b) a programme of interviews with complainers whose cases had concluded with a not proven verdict.

On 17 September 2025, the Scottish Parliament passed the Victims, Witnesses, and Justice Reform (Scotland) Bill, which will abolish the not proven verdict. In this Policy Insights piece, we summarise the argument which we made for abolition in 2021, and comment briefly on what happens now.

Where are we and how we got here

Scotland, unusually, has two possible verdicts of acquittal in criminal cases: not guilty and not proven. The existence of the not proven verdict in Scots law is a historical accident. “Not proven” was introduced in the early 17th century when juries were for a period asked to discharge a different function from that expected of them before or today, stating whether individual facts were proven or not proven. After that system of “special verdicts” ended – with the jury’s right to return a general verdict of “not guilty” being reasserted in 1728 – the language of “not proven” persisted and jurors continued to use it as one of two possible verdicts of acquittal alongside not guilty. In modern practice, juries are simply told that there are two acquittal verdicts open to them which have the same effect and are not given a definition of either verdict or guidance as to how they might distinguish them.

The debate over the not proven verdict

The case against permitting not proven verdicts (the debate has run since at least 1846) has consistently been a combination of three arguments: that the verdict is incompatible with the presumption of innocence, encourages jurors to avoid the proper discharge of their functions, and casts an unwarranted stigma on the accused.

The case for permitting not proven verdicts has taken two forms: either that while Scots law might not design a three verdict system if starting today from a blank slate, it has adopted such a system and the case for changing the status quo has not been demonstrated; or, more positively, that the verdict benefits the accused by reducing the risk of wrongful conviction and also by allowing the jury positively to declare innocence in appropriate cases.

In more recent years, the debate has shifted in two key ways: (a) emphasising the interconnection of the verdict with other distinctive aspects of the Scottish criminal justice system (the 15 member jury and the use of simple majority verdicts) and (b) the emergence of specific concerns about the use of the verdict in sexual offence trials. In this latter respect, it has been suggested (in the verdict’s favour) that it allows jurors to signal to a complainer that they were not in fact disbelieved; it has also been suggested (against the verdict) that it is particularly distressing for complainers in such cases.

Rebutting the arguments in favour of the not proven verdict

New empirical evidence from the Scottish Jury Research project allowed us to undertake a fuller and more informed analysis of the arguments for and against the not proven verdict than previously possible.

While mock jurors believe that they are sending a particular message through their choice of the not proven verdict, the meaning of that message is variable and is not always received as intended. In sexual offence cases, in particular, there is a mismatch between what jurors believe they are communicating to complainers and the message which is actually heard. In terms of communication to the wider community, the lack of any clear and settled meaning for the verdict, and differing juror understandings as to what it signifies and when it should be used, undermines any potential communicative function and makes it difficult for criminal justice professionals to explain to complainers how they should best interpret the jury’s verdict.

Evidence from the Scottish Jury Research suggests that the not proven verdict may reduce the propensity of jurors to convict. However, this does not itself demonstrate that it operates as a safeguard against wrongful conviction. It may equally result in the acquittal of the factually guilty. The use of the verdict is particularly prevalent, but particularly problematic, in sexual offences, where it may enable juries to give weight to myths and stereotypes in avoiding verdicts of conviction. And while there is no clear evidence that the verdict does in fact safeguard against wrongful conviction, its existence has been used to justify Scots law not introducing other measures which would, meaning that it may in fact be actively harmful in this regard.

Arguments against the retention of the not proven verdict

This serves to rebut the core arguments in favour of the not proven verdict. In addition, we would note two strong arguments against its retention in the Scottish criminal justice system.

The first is in terms of the stigma that attaches to the verdict – in the Scottish Jury Research, jurors regarded it as a lesser acquittal than not guilty (“you walk away innocent, but everybody knows”). We do not know to what extent stigma is in fact experienced by those acquitted via not proven, but regardless, there is a normative argument that an acquittal verdict should not be stigmatising, and that in itself is a powerful argument against its retention.

The second argument is that it risks a loss of public confidence in the criminal justice system, as it allows jurors to use it as a compromise verdict to bring deliberations to an end, rather than engaging in more rigorous discussions. There is empirical evidence from the Scottish Jury Research that the verdict operates in precisely this way, with participants using it to bring deliberations to a premature end. There was also evidence that this use was ‘read into’ the verdict outcome by sexual offence complainers, undermining their belief that jurors discharged the weighty responsibility placed upon them with appropriate diligence.

Could we keep “not proven” and abolish “not guilty”?

An occasional response to criticisms of the three verdict system was to argue that if Scots law were to move to two verdicts, it should be not guilty that is abolished, with a system of “proven” and “not proven” being introduced. Invariably, the argument made here was that the jury’s role is not one of determining guilt or innocence, but simply of assessing proof. That is not a position we would support.

For one thing, it represents a very denuded conception of the jury's role, which is not limited simply to questions of ‘what happened’. It frequently involves an evaluative role – such as, for example, determining whether the use of a particular level of force in self-defence was reasonable – a point recognised by early decisions of the Scottish courts which suggested that a judge might legitimately withdraw the option of ‘not proven’ from the jury in cases which turned solely on such a question.

Moreover, it would be odd, given the demonstrable problems of the not proven verdict, if a decision had been taken to retain it rather than not guilty – against which no case has been made. We are not starting from a clean sheet here. A single acquittal verdict of not proven would be likely to carry a residual element of stigma. It would also have been unlikely to be well understood by anyone outside the jurisdiction, who may attach a stigmatic meaning to it through lack of understanding, especially as the verdict would be out of step with the use of not guilty by the vast majority of other legal systems.

What next?

Once the Bill passed by Holyrood receives Royal Assent, the Scottish Government will have to set dates for bringing its provisions into force. The Bill deals with a wide range of issues and some of these – such as proposals for independent legal representation for complainers, which two of us have with others previously written about on the Centre for Public Policy blog – will require significant preparatory work before they can be implemented. In contrast, the logistics of abolishing the not proven verdict are much simpler and the Justice Secretary has said that this will be her “first priority” after passing the Bill.

The abolition of the third verdict sits alongside a change to the majority required for conviction. Previously, only eight jurors out of fifteen were required to support a guilty verdict in order to return a conviction – an approach very different to most comparable jury systems, which require either unanimity or something close to it. The Bill modifies this rule slightly, so that a two-thirds majority (ten of fifteen) is required for conviction. This is intended to alleviate concern that abolishing not proven removes a safeguard against wrongful conviction, although it still takes an approach very different from other systems. Against that, it has raised concern from bodies such as Rape Crisis Scotland that it may prove an impediment to achieving convictions in rape cases.

The effect of this change in the jury majority rule is difficult to assess, whether alone or in combination with the move to a two-verdict system: there is no experimental research or practice elsewhere that speaks to it directly. We do know that even in systems which always require complete unanimity for any verdict it is rare for juries to fail to return one, suggesting that juries are normally effective at achieving consensus even if the Scottish system does not formally require that. Its effects may therefore be limited. It is fair to say, however, that regardless of the principled case for removing not proven, the effects of changes like this, while real, may be small in numerical terms. That is why the Bill is better viewed as a package of a wide range of measures, many specifically focused on sexual offence cases, which will hopefully in aggregate make a real difference to the difficulties of achieving justice. The vote to pass the Bill is significant but simply one step in a very long programme of work.

Authors

Fiona Leverick is Professor of Criminal Law and Criminal Justice at the University of Glasgow

James Chalmers is Regius Professor of Law at the University of Glasgow

Vanessa Munro is Professor of Law at the University of Warwick

^{Image by Zolnierek from Getty Images Pro via Canva Pro}

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UofG Spotlight podcast - 5: Tax and spending pledges and 'Not Proven'

Professor James Chalmers spoke about the paper 'Beyond Doubt: The case against 'No Proven'' on our UofG Spotlight podcast in 2021.

Listen back to the episode

Policy Insights

The Centre for Public Policy’s ‘Policy Insights’ series gets into the detail of policy challenges facing Scotland, the UK and international communities, taking a longer-form approach compared to our regular blogs series.

It allows academic researchers from the University of Glasgow and beyond the opportunity and flexibility to provide more in-depth analysis into nuanced and multi-layered policy issues, offering solutions and ways forward.

First published: 19 September 2025