Defending the ‘Bastard Verdict’

I did not imply that!

I make no claims to any expertise here but when the Scottish Tories campaign against something uniquely Scottish, I reach for my keyboard.

In 2001, the ‘colourful’ Donald Findlay QC, Rangers man and, I’d thought, a defender of the Union wrote ‘The Bastard Verdict’ defending the ‘Not proven’ verdict.

Findlay, right: Image Daily Record

It seems to be out of print, with only this short description to be found:

The bastard verdict or, to give it its proper title, the not proven verdict is one of the most controversial in British justice. In England, the accused is either guilty or not guilty but, in Scotland, the jury can also opt to return a verdict of not proven – and, in a third of of all jury trials in Scotland, this is exactly what happens. In Bastard Verdict, Donald Findlay QC cross-examines the evidence for and against not proven. Using recent cases to review the Scottish justice system, he interrogates its strengths and weaknesses. Many think that a not proven verdict generally means that the person on trial is guilty but there is simply not enough evidence to convict him or her. But is this an accurate assessment of this controversial piece of Scots Law? And, when this is verdict is delivered, what does it mean for the perpetrators and the victims of crime? Is not proven simply one verdict too many and should the Scottish system be brought into line with England? Donald Findlay QC is in the perfect position to answer these questions. At the forefront of Scottish defence law for decades, he has defended many high profile cases and his record of obtaining either a not guilty or a not proven verdict for those he represents is second bar none. In Bastard Verdict, Findlay defends the not proven verdict and argues for a radical shake-up of our legal system. Rather than have Scots law conform to that of England, he suggests a move away from the legal system that Cromwell imposed on Scotland and a return to the original principles of old Scots Law.

That last sentence has me interested.

There is an extended treatise from 2005, by Joseph M Barbato of Purdue University, West Lafayette, Indiana, no less and freely available which concludes:

Lord Cooper goes further to consider “Scots Law from a wider standpoint
than merely local or domestic,” seeing his country’s legal tradition as “a thing to be prized both in Scotland and beyond its Borders. His vision is much more grandiose: “Scots law as it stands gives us a picture of what will some day be the law of the civilised nations, -namely a combination between the Anglo-Saxon system and the Continental system. As for the present, “[i]n respect of the intermediate position which it now occupies between the two great schools of legal thought, Scots Law is at the moment unique.

For all 40 pages go to:

Several, perhaps most, readers will know more about this than I do. On your marks, GO!

Footnote: Purdue University founded by John Purdue (1802-1876), the son of Charles and Mary Purdue. Purdue was the only son in a family of nine children born to this Scottish immigrant and his wife. 

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7 thoughts on “Defending the ‘Bastard Verdict’”

  1. Interesting. I know little about law, but Scots Law was always seemingly respected as being more civilised than English law.
    If the English had had a ‘not proven’ option as part of their law system, might it have saved lives? I am remembering the case of at least one, a young learning disabled man implicated in a murder (of a policeman I think) case in England in the 1960’s and he was hanged. How horrific. Along with other cases, it turned out really he was innocent, which would have meant he would not have been killed (murdered) by the English state. There was a play about it many years ago, on BBC(!) when they did good tv like Play for Today etc…those were the days…but now, no more drama at all that does not fit with the BritNat states’ agenda, how terrifying.
    Capital punishment is a failing of any state, and on that note, let’s not allow the BritNats to have any say in Scots Law, it’s absolutely sacrosanct!
    One last thing, you cannot be sent to prison for ‘debt’ in Scotland as you still can in England. That is, as far as I am concerned a sign of a more civilised society, it’s also why the English state run BBC cannot threaten people with jail if they do not pay the TV tax. That must never ever be allowed to be changed by the BritNats.

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  2. Up to the point where the 3rd verdict of a jury was used, the options were simply “proven” or “not proven”; the decision over guilt or innocence being left to the sheriff. “Not guilty” came about by a jury asserting that the evidence was so overwhelmingly in favour of the defendant that a “not proven and clearly not guilty” (or words to that effect) verdict was delivered.

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  3. The jury is supposed to decide which “facts” have been proved and which have not been proved. Their role is not to decide on guilt or innocence as such. It is the verdicts of Guilty and Not Guilty which are the “bastard verdicts” in Scotland. The verdicts should really be Proven and Not Proven.

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  4. The onus is on the Crown to prove it’s case.
    Having been a juror in a High Court case where the verdict was not proven,I can say that this option has great value.
    There were jurors whose gut feeling was that the accused was guilty of something but were eventually persuaded that the prosecution had failed to prove the charges.
    Without the ability to say the words “not proven”,it would have been very difficult to arrive at a fair verdict.
    I agree that it should be proven or not proven as it crystallises the principle that the case has to be proved.

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  5. Thanks John for that link to the Barbado treatise. Its a long and interesting read. There are some sad historic Scottish cases referenced within the document that still resonate today. I found this extract from the treatise concerning Bill Clinton and the ” not proven” verdict interesting. Undue restrictions in the presentation of evidence to hearings is also worthy of note particularly as similar events have occurred recently with the Alex Salmond inquiry in Parliament.

    Not Proven.
    American Bastardization of That Bastard Verdict For Americans, the verdict of “not proven” was made famous that same year, prior to the case of Pan Am 103, when Senator Arlen Specter, a Pennsylvanian republican, chose it over a guilty vote during the impeachment trial of President William Jefferson Clinton. 3°° Relying on the “tradition in Scottish courts,” he voted not proven rather than not guilty when the roll was called for the Senate’s verdict.30 1 One reason for his vote of not proven was that the Senate prohibited live testimony from witnesses, and only allowed videotaped testimony from three of the fifteen witnesses on the list from the House.3 °2 This limitation, he suggested, tied one hand behind the back of the House prosecutors.30 3 “This is not to say the president is not guilty, but to specifically say that the charges have not been proven,” he explained. 3 04 “My view is the Senate has done ,,305 partial justice. Specter’s choice of intermediacy was based on “undue restrictions” imposed on House Managers in the presentation of their case, which resulted in the hearing of only part of the evidence.3 0 6 He knew when he cast a vote for acquittal that there was a risk of backlash from both sides of the political spectrum.30 7 Still, he held to the view that: 296. Mark Libbon, Walsh Says He Likes Bush’s Conservatism, SYRACUSE POSTSTANDARD, Nov. 28, 1999, at A10. 297. Miller & Farley, supra note 290. 298. Id. 299. Id. 300. Rovella, supra note 293. 301. Specter Says House Failed to Prove Case, INTEILIGENCER J. (Lancaster, PA), Feb. 11, 1999, at Al. 302. Id. 303. Id. 304. Id. 305. Id. 306. Specter Justifies His “Not-Proven” Verdict, PrnSBURGH PosT-GAzEITE, Feb. 11, 1999, at A 12 [hereinafter Specter Justifies]. 307. Lisa Fine, Specter Blasted for Vote in Trial, INTELIGENCER J. (Lancaster, PA), Feb. [Vol. 15.3 SCOTLAND’S BASTARD VERDICT House Managers could not meet the heavy burden of proof beyond a reasonable doubt …. [O]n this record, the proofs are not present …. Given the option [of not proven] in this trial, I suspect that many Senators would choose ‘not proven’ instead of ‘not guilty’ …. The President has dodged perjury by calculated evasion and poor interrogation. Obstruction of justice fails by gaps in the proofs.3 °8 Regardless of Specter’s suspicions, “there was a pause of hushed murmuring on the Senate floor” when he announced his unique vote.

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