Sorry I don't agree. You would do more good if you would investigate the extension of the defined Scottish crime of "culpable homicide" to other areas of the law. That is like the US 2nd degree murder charge - no intent to kill but knowingly breaking the law when you did so. Extending that to such crimes as "culpable actual harm" or "culpable serious harm" would be a real step forward. A thief can be tried as a thief, but a car thief who panics and runs over the car's owner would be in line for a much heavier sentence by removing the need to conclusively prove intent to kill or maim.

KR, Stockport,

The "not guilty" verdict in English law is not the same as innocence. It merely means that the prosecution has not shown beyond reasonable doubt that the defendant is guilty. It is essentially the same as a "not proven" verdict. There is no need, nor should there be, for a defendant to prove his innocence and consequently no need for a third verdict.
In terms of rape cases, the not guilty verdict is exactly the same as for other cases. It doesn't mean that the jury have decided that the complainant is lying, it merely means that they can't be sure beyond reasonable doubt.

Michael, London,

This verdict sounds irrelevant. The accused cannot be retried and still goes free, the same as not guilty, so what injustice would it prevent? I am afraid that the distinction in terminology would be lost on most people as the actual effect is the same as not guilty.

Claire, Henley, UK

From my experiencei found the British justice system is barbaric ,outdated and not fit for 21st century because of some people running it.
You are easily convicted but it is a struggle to launch an appeal or it will get rejected.
There must be a huge number of misscarriage of justice that we will never hear about,,
My life had turned upside down by wrong conviction I lost my home ,,could not continue my law degree lost all my friends and I found impossible to fight the system.
The burglar I shared the cell with in my opinion was more honest than the judge.

Hany , London,

"Against a background of steadily diminishing civil liberties", Mr. Linklater proposes to dilute the most fundamental civil liberty of all, the presumption of innocence. He also proposes to do it for one of the most serious crimes of all. God help us.

There is of course, another way to tackle low conviction rates. Bring fewer cases where the evidence is likely to prove inadequate to secure a conviction. Or is that too radical?

Simon Moss, Paris, France

And why, pray, would an English jury need the option of "not proven" when deciding if the Scots loathe them? They're either not guilty or guilty as accused. And there isn't a jury in England that would have reasonable doubt over its verdict.

Let's settle the West Lothian question before the Scots take over our legal system as well as our political one.

Julian Cox, London, England

The best solution would be to introduce the not proven verdict in England, and where there is such a verdict, allow further proescution for the same offence where there is new evidence. This would be better than the government's inconsistent attack on double jeopardy. The binary nature of "guilty"/"not uilty" is not adequate for the modern day and puts jurors in a difficult position. The police in England and victims groups also have consistently said that "not guilty" is widely perceived as meaning "innocent" and is seen as a slap in the face of victims (who have undoubtedly suffered a crime) but where there is not enough evidence to convict.

FA, London,

In England cases where the jury fails to reach a verdict seem to be coming more frequent (or is it simply that there have been a number of examples in recent high profile murder cases?) This would seem a situation where a 'not proven' verdict could properly be applied. At present, it is customary for the CPS to drop proceedings after a jury has failed to reach a verdict for a second time, and for the trial judge to record a formal acquittal. These are cases where real doubt exists as to guilt or innocence and it seems morally questionable that the defendant be able to proclaim his 'innocence' in such circumstances.

Ann Lyon, Plymouth,

Advocating the use of the not proven verdict to give some comfort to a rape victim stinks of tokenism. The alleged rapist will not serve any jail time, have a criminal record or appear on the sex offenders register. Only people who know the alleged rapist well will know that the jury reached the not proven verdict. This does not seem to do anything to help the victim.

Eilidh, Glasgow, Scotland

Sorry Magnus but your case you make is not proven!

Joe, London,

Er, In england we have not guilty beyond resonable doubt and guilt beyong resonable doubt. Not proven is just the same as not guilty since not guilty itself means not proven beyond resonable doubt. The idea of keeping this third option was so that the courts could get round the law that someone could not be tried again if found not guilty. However in England and Wales we no longer have this law and so have no need for this loophole. Remember no person has been declared innocent after a trial in England and Wales, AS Paul says all a not guilty verdict is, is a statement that they is still some doubt as to guilt. There maybe more doubt as to innocence, but that is not the question in our courts since we are not tried on a basis of innocent and not innocent.

Kelly, uk,

there is talk of the not proven verdict being ditched in scotland.

john, glasgow, uk

Sorry to say but one of the closing statements of this peice is still ringing in my ears.
See:
"But given that the balance is so heavily tilted at present against women, that would be a small price to pay."

As much as I am sorry the conviction rates are currently what they are, this is no justification to lable innocent people (let's be fair, men) with a name for which there is no clearing themselves.
Of course sympathy should lie with the victim in such cases but this does not grant licence to apply a broad tarnishing brush too all unfortunates that end up in the dock, for which there is ample evidence that it can turn out to be a possible' fictitious and frivilous case to begin with, ending their own security in life.
Maybe coming down harder on those who 'cry' rape than are actually put through this terrible ordeal then perhaps women coming forward would not be in such a traumatic circumstance to start out.

Jase, Den Haag, Netherlands

Not proven should be extended to civil cases. At present, a judgment against a litigant can be made "on the balance of probabilities" which is unjust because a probability is not conclusive evidence.

S Mann, Tunbridge Wells,

That there is something wrong with the judicial system all will agree but in this country we are innocent until proven guilty and the not proven verdict just states that the defendant is guilty but we could not prove it, not a suitable verdict by any means.

The current obsession with continually trying people for the same crime is also a poor way of handling things as it allows the prosecution to be incompetent and later to do a better job, get more information and try again, and again.

The basic of the judicial system is we are innocent, will be prosecuted once for a crime and if the case is strong enough found guilty otherwise the defendant should be able to get on with their lives.

joseph Kellie, Edinburgh, Scotland

The writer appears not to understand the nature of the burden of proof in English criminal law (..allowing a jury to decide that there remains an element of doubt about the prosecution case would be of enormous benefit.") (..by a jury deciding that neither side had definitively proved its case."). Since the prosecution has to prove its case beyond reasonable doubt, we already have a verdict for "doubtful" cases: not guilty. A not guilty verdict does not imply that the victim is lying, simply that the prosecution has not discharged its burden.

Paul Bridgeland, Brussels,

I'm afraid Magnus has become a bit confused.

"by a jury deciding that neither side had definitively proved its case."

The defence never has to prove anything. The Crown has to prove beyond a reasonable doubt. The defence has the right to challenge the evidence and produce evidence to show a reasonable doubt.

That means that to find someone guilty, any remaining doubt should not be reasonable.

If we add the idea that the jury can say, "well we had a bit more doubt than that, but the prosecution had a point" Then all we would be doing is stating the blindingly obvious. Most cases bought before the courts meet the test of a prima facie case to answer, otherwise they are thrown out.

If the point of this is that juries are convicting people because "they think the prosecution has a point" despite their reasonable doubts then they are not doing their job properly.

Nice article as usual though.

Best wishes

Raj, Portland, Oregon, USA

I was on an American jury, on which all 12 must agree. If we'd been able to bring in a verdict of "Not Proven" instead of "Not Guilty", it wouldn't have taken us two days, slowing down the judicial process.x

Tina Rhea, Greenbelt, Maryland US

If the prosecution fails to prove its case beyond reasonable doubt, the defendant is entitled to be acquitted. A 'middle' verdict would be regarded as a second-class acquittal, unsatisfactory both for the prosecution, who would still see the defendant walk free, and for the defendant, whose name would not be properly cleared.

However, it would reduce confusion about the role of the jury and the burden of proof (a confusion which Mr Linklater seems to share) if the guilty and not guilty verdicts could both be abolished and replaced with proven and not proven. A not proven verdict would then lead to a full and unstinting acquittal, as it should always have done.

G Adamson, LONDON, UK

Magnus, as your historical citation shows, 'not proven' is not the bastard verdict - at least, not in Scots Law. That description falls to the verdict 'not guilty'. Only God can say whether or not the panel (accused) is either innocent or guilty. All that a jury can sensibly decide is whether or not the charge has been 'proven' or 'not proven' on the basis of the evidence advanced in court. All else, whether 'guilty' or 'not guilty' is nonsense based on a lack of understanding of the meaning of the terms 'guilty', 'not guilty', 'proven' and 'not proven'.

Brian D Finch, Brigadoon,

In Italy the 'not proven' verdict has been part of the legal system for years. Only recently, in an attempt to guarantee a fair verdict for everyone, Italian law cancelled this possibility. From the Italian point of view, the battle to cancel the 'not proven' verdict was inspired by values such as respect and dignity for the person under judgement: it is to Court and prosecutors to offer evidence to declare someone 'guilty'. If they are not able to do this, it is fair that all persons are to be judged 'not guilty'. In fact, a 'not proven' verdict always casts a shadow on the person judged, who appears to be 'not guilty' but his innocence and dignity inevitably in doubt...

Claudio Arciprete, Turin, Italy

Well said Magnus. Another good system the English courts could adopt would be the Scottish jury system of 15 jurors, with a simple majority being required for conviction rather than the English requirement of 10/2 or better.

Robert Dey, Dunfermline, Fife

The writer appears not to understand the nature of the burden of proof in English criminal law: ("..allowing a jury to decide that there remains an element of doubt about the prosecution case would be of enormous benefit.") ("..by a jury deciding that neither side had definitively proved its case."). Since the burden is on the prosecution to prove its case beyond reasonable doubt, we already have a verdict for "doubtful" cases: not guilty. A not guilty verdict does not imply the victim is lying, simply that the prosecution has failed to discharge its burden.

Paul Bridgeland, Brussels, Belgium