When justice pretends to be certain

The recent justice reforms treat juries as if they are expected or capable of somehow divining ‘the truth’ through an opaque system. A radical look at justice would ask what the pursuit of truth actually looked like.

So, Scotland’s not proven verdict is being scrapped.

Depending on who you ask, this is either a bold new leap forward for survivors of sexual violence – or the legislative equivalent of putting up new curtains while the foundations quietly rot.

It’s being hailed as a landmark moment, particularly in the fight against sexual violence. The argument goes like this: not proven has been overused in rape cases, leaving survivors without closure and accused men with a cloud of suspicion. So, we get rid of it, and suddenly the system is fairer, clearer, and more just.

Except – is it?

Let’s rewind. Scotland has always been a bit of a legal eccentric. While most countries make do with two verdicts in criminal trials (guilty or not guilty), we stumbled into having three: guilty, not guilty, and not proven.

Here’s the kicker: in law, not proven and not guilty mean the same thing. There is no statutory definition of not proven, no case law that fixes its meaning, and judges are actively discouraged from explaining it. Both verdicts are acquittals. Both mean the accused walks free, cannot be retried for the same offence (save for exceptional circumstances), and has no criminal record.

There is no legal difference.

But culturally? Socially? Not proven has always carried a particular sting. It’s the jury’s way of saying, “We think you probably did it, but the Crown didn’t quite prove it.” It’s acquittal with an asterisk. That’s why it has been called the “bastard verdict” – a halfway house between conviction and exoneration.

Critics say that not proven stigmatises the accused without convicting them, undermining the principle of presumed innocence. It confuses the public, denies closure to victims, and muddies the verdicts with ambiguity. But proponents argue the opposite: that it is the most honest verdict in the system. Because it at least acknowledges what juries actually do.

The central principle of Scots law is simple: the prosecution must prove guilt beyond a reasonable doubt. That’s not the same as proving innocence. No one is asked to prove they didn’t do it. So, in theory, the only two verdicts we really need are: proven (the Crown discharged its burden) and not proven (the Crown didn’t).

That’s it. Clean. Honest.

The introduction of not guilty in the eighteenth century muddied the waters. Suddenly, a jury’s job wasn’t to test the Crown’s case, but - implicitly – to declare innocence. That’s not what a trial is supposed to be about. Trials aren’t omniscient truth-seeking. They’re about whether the state met its burden. And if you accept that, then not proven isn’t a ‘cop-out verdict’. It’s the most accurate description of what the system actually does.

But then we run headlong into the hardest category of cases: rape and sexual assault.

Sexual violence is notoriously hard to prosecute. Evidence is often limited or ambiguous. Scots law’s corroboration requirement sets a particularly high bar. And juries bring their own baggage – rape myths, stereotypes, expectations about how a “real” victim should behave.

The result? Acquittals. Lots of them. And not proven disproportionately so.

Campaigners argue that scrapping not proven will help survivors, because juries will be forced into a binary: guilty or not guilty. No more hiding behind the ‘middle option’. It’s a powerful argument, and it carries moral weight. But does it change outcomes? Or does it just change the packaging?

Because here’s the uncomfortable truth: if a jury isn’t persuaded beyond a reasonable doubt, they won’t convict - whether they call it not proven or not guilty. Abolishing the verdict won’t generate evidence where none exists or sweep away jurors’ prejudices. At best, this is a cosmetic reform. At worst, it’s tokensim: a big political gesture that makes Parliament look decisive while structural problems remain untouched.

Here’s what unsettles me the most: juries aren’t truth machines. They’re fifteen strangers in a room, asked to assess evidence they may not understand, shaped by lawyers incentivised to ‘perform’ persuasion rather than uncover truth. Indeed, juries aren’t given a manual for weighing evidence; they’re left to rely on gut feeling, cultural bias, and whether the Crown’s case came across as more convincing than the defence’s performance.

“Scrapping not proven isn’t reform. It’s cosmetics. It’s putting a new number on the door of a house with collapsing beams and pretending it’s safe to live in.”

And this is where Scotland’s real problem lies. We keep talking as though the issue is one quirky verdict, when the deeper flaw is that the whole trial system asks jurors to do the impossible. Juries are told they must decide whether the Crown has proven its case “beyond a reasonable doubt”. But what does that mean? Judges won’t explain it. The law doesn’t define it. Jurors are left to make it up, draw on instinct, prejudice, and the persuasiveness of whichever lawyer ‘performed’ better that day.

That vagueness has always been baked into Scots law. Remember, not proven itself has never had a statutory or common law definition. Judges are actively discouraged from clarifying it, precisely because earlier attempts caused appeals. There are ample cases showing juries returning not proven verdicts without ever having the option explained to them. The verdict survived not because it was principled, but because the system shrugged and said, “Well, everyone knows what it means.” Except they don’t.

Layer onto that Scotland’s high bar of corroboration rule, and the cracks widen. In law, you need two independent sources of evidence to prove the Crown’s case. On paper, recent reforms have made this less of an obstacle for rape cases: distress evidence, backed by a timely statement, can now corroborate a complainer’s account. That change is real progress – more cases now make it to trial.

But getting into court isn’t the same as securing a conviction. Jurors are still asked to apply “beyond a reasonable doubt” without guidance, to weigh credibility without a framework, and to reconcile corroboration rules they barely understand. No wonder rape cases collapse. No wonder not proven became the pressure valve for jurors who suspected guilt but weren’t certain the Crown had cleared the evidential hurdles.

So the problem isn’t really adversarial theatre versus inquisitorial truth-seeking. It’s that Scots law has hard-wired ambiguity into the trial process, and then acts surprised when ambiguous verdicts come back.

So yes, something is fundamentally broken. And no amount of tinkering – whether it’s scrapping a verdict or polishing up jury directions – gets us out of that hole. If anything, gestures like this let us dodge the real question: do we want a justice system designed to look fair, or one actually built to deliver fairness? 

By forcing juries into a binary, we’re pretending they can deliver certainty. That guilt is either 100% proven or 100% disproven. But human experience, and jury deliberations, don’t work like that. Doubt, suspicion, uncertainty – they all live in the cracks.

Not proven was at least an acknowledgement of that. Messy, imperfect, but real.

Now we’re left with two verdicts that both distort reality. Guilty, as if we can ever be fully certain of another person’s actions beyond the fragments of evidence left behind. And not guilty, as if innocence has been magically established, when in fact all that’s happened is that the state didn’t quite meet its burden.

Scrapping not proven won’t deliver justice for survivors. It won’t clean up courtroom culture. It won’t make juries less biased or lawyers less theatrical. It won’t even make verdicts clearer, because jurors and the public will still project their own meanings onto not guilty. What it does do is let politicians look like they’re ‘doing something’, without reforming the system that produces these problems in the first place.

If we were serious about fixing the justice system, the conversation wouldn’t start and end with a verdict. We’d be asking why rape cases remain so notoriously difficult to prosecute, and whether our evidential rules make that problem worse. We’d be interrogating why Scotland clings so tightly to courtroom theory, when other countries build their systems around something more radical: actually finding the truth. Or scrapping the use of juries.

We’d be wondering why legal aid is still a patchwork scheme rather than a proper public defender service. We’d be asking why jurors are left to wrestle with concepts like “ beyond a reasonable doubt” with almost no guidance, as though they’ve observed jurisprudence by osmosis.

Those are the cracks in the foundations. Scrapping not proven isn’t reform. It’s cosmetics. It’s putting a new number on the door of a house with collapsing beams and pretending it’s safe to live in.

But here’s the thing: law is human made. Juries, verdicts, rules of evidence – none of these fell from the Sky. They were invented. They can be reinvented. Scotland has always done things a little differently. So why not now? Why not admit that our justice system is faltering, and ask what a system built for truth and fairness in the twenty-first century would actually look like?

That’s the reform worth fighting for.

Not a verdict swapped out for another – but a justice system that doesn’t need to pretend at certainty, because it dares to pursue truth.