What are we to make

of the Not Proven verdict

in the Wilson case?

John Brown

 

As an avid reader of the Scottish Review I have followed your ongoing debate about Scottish sectarianism with interest. From the outset contributors developed clear partisan themes, traded robust arguments and provided me with some thought-provoking entertainment which enabled me to better understand the different sides.
     I find it difficult to identify first-hand personal examples of sectarian prejudices such as those experienced by members of other minority groups and attribute this to being the product of a 'mixed' marriage, brought up in a Scottish/Italian family where football is not a topic of conversation, except when fixtures infuriatingly invade 'normal' television viewing or the 'national' sport takes up an inordinate amount of the BBC Scotland news slot. To me the Scottish Review debate is healthy, if somewhat narrow.
     More recently, however, the exchanges have started to become more esoteric and semantic – quite inappropriate for such a passionate, political and sporting subject. Therefore I may be tempted to skip the 'read more' button for some pages of the Scottish Review and seek further enlightenment on the subject of religious sectarianism elsewhere. Something I am not yet guilty of.
     But my fears about the quality of debate may be ill-founded given the outcome of the prosecution in the Neil Lennon/John Wilson case [in which Wilson, a Hearts fan, was accused of a sectarian attack on the Celtic manager]. There is nothing like a Not Proven verdict for generating discussion and I note that in this particular case it prompted an early online statement from the lord advocate himself.
     I have always liked the Scottish Not Proven verdict (I am not a lawyer or a criminal or a judge) and have in fact been party to its use on two separate cases as a juror. On both occasions I and my fellow jurors were clear that the accused was guilty but the procurator fiscal had got it wrong. It is possible that on one occasion we got it wrong and misunderstood the facts of the case and/or the directions given by the sheriff, but this is perhaps a generally accepted risk associated with all trials by jury. In the other case the judge commented on our detailed understanding of the evidence and seemed to welcome the outcome. Predictably, more nuanced variations on both of these aspects of the Not Proven verdict were pushed forward by commentators on the case.

 

     In light of the religious sectarianism element of this particular Not Proven case it is ironic that our well-established and distinctively Scottish verdict is thought to be rooted in religious oppression. At a time when the Crown persecuted the Covenanters, popular support made it impossible to convict them in a jury trial, so Scottish judges began restricting the jury's role. Instead of announcing whether the defendant was 'Guilty' or 'Not Guilty' the jury was instead required to decide whether specific factual allegations were 'Proven' or 'Not Proven'; and the judge would then decide whether to convict.
     In the 1720s a jury was encouraged once again to use the Not Guilty verdict, and ever since all juries in Scotland have had the right to use it as well as well as Proven or Not Proven. A traditional account which perhaps should not be overlooked when considering the context and implications of the Neil Lennon/John Wilson case.
     Another distinctive requirement of Scottish law which I have always liked is corroboration of evidence – recognised as a fundamental safeguard to help strengthen evidence by making it more credible and reliable, thus reducing the risk of injustice and avoiding 'his word against mine' situations. In the Neil Lennon/John Wilson case news reports did not make it clear to me whether or not essential elements of the charge concerning religious sectarianism were in fact corroborated. The statement by the lord advocate implies they were not, and perhaps this is where the Crown got it wrong in the eyes of the jury who also maybe got it wrong.
     In my view, the Crown took a chance and hoped the jury would accept uncorroborated evidence in a controversial element of a high-profile case. Was this a risky misjudgement prompted by a political priority and likely to be repeated in future instances of hate crime? Or is it a wider and more general change of approach by the Crown towards removal of the requirement to corroborate the charge before conviction?

 

John Brown is a retired civil servant (DWP and Cabinet Office) and now an amateur ceramic artist