Not Proven

My Fife-born and Edinburgh-raised father used to say that he hoped for a not proven on the Day of Judgement. There are heavyweight arguments on either side of the old dispute over that verdict in Scots Law, but they have nothing to do with why it was being abolished.

Every organisation that has campaigned for this change has done so because it regarded a conviction rate as "too low", which can only mean lower than 100 per cent. Those organisations are already complaining about the corresponding increase in the threshold for conviction, from eight out of 15 jurors to 10, which is still rather low. They had wanted trials by judges without juries, an objective on which they have not given up, and they are determined to abolish the requirement of corroboration, which was significantly weakened last October by a ruling that two statements from the same person could sometimes corroborate each other. Guess when? There had been another such weakening a year earlier. Within and beyond Holyrood, the people behind all of this are the people behind gender self-identification.

The SNP might have been expected to favour something so distinctively Scottish as not proven, which is used in only one per cent of cases, never mind corroboration, which is used in every case except those relating to certain minor road traffic offences. But one of the verdicts that a predominantly female jury in Scotland's most liberal city delivered on Alex Salmond was of not proven, and while his enemies could hardly abolish the not guilty verdict that it had delivered on the other 12 charges, they can at least avenge themselves upon his ghost by doing this. The SNP would also have been far less gung-ho for the war in Ukraine if Salmond had not been employed by RT.

The existence of the not proven verdict has never obliged any jury to use it. On either side of the Border, if the jury were not unanimously convinced beyond reasonable doubt of the guilt of the accused, then it ought to deliver a verdict of not guilty, which ought to be an enduring verdict, affording lifelong protection from double jeopardy. But if England ever was that country for most people, then it is certainly not now. I myself was convicted after a judge had specifically instructed a jury to "disregard" the concept of conviction beyond reasonable doubt, and then first imprisoned because my enemies had been politically well enough connected to have me charged with an offence to which there was no defence, so that all that mattered was to be well enough in with the highly politicised Crown Prosecution Service.

The second time, a judge who had pronounced me "exonerated" of the original allegation's ever even having been made, nevertheless sent me back to prison after I had pleaded guilty on the legal advice that I was indefensible before a jury in the North East because it was bound to be full of people who would take one look at anyone as well-dressed, well-spoken and well-read as I was, hate me on the spot, and convict me out of spite, entirely regardless of any evidence or lack of it. That had happened to me the last time, and it would have happened again, so I had been advised that my only hope was to plead guilty, despite there being literally no evidence against me. Of course I had already lost quite enough elections here to have known these things for decades, but it was still quite something to be given them as counsel in that sense; to be told that bookishness and articulacy were "sinister" and "deviant" to my peers by whom I was to have been tried.

Nor had I any expectation that a judge might have intervened in the face of the total lack of evidence, since that had never happened to me yet. A judge is a salaried employee of the same State that brings the prosecution, and a judgeship in a criminal court is a salaried and pensionable reward for 30 years of success as a contracted freelance prosecutor. Anyone who has ever dealt with the Crown Court has seen how weighted towards the Crown it was. Add to that the fact that Tony Blair's infamous Criminal Justice Act 2003, which admitted hearsay evidence, removed the protection against double jeopardy, and provided for Crown Court trials by a judge without a jury (the first ever such resulted in a life sentence), also effectively made it possible to be convicted of having previously been convicted.