Verdict of Not Proven No Longer Competent

Orders of the Day — Criminal Justice (Scotland) Bill [Lords] – in the House of Commons at 3:39 pm on 7th June 1995.

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'. In any criminal proceedings the verdict of not proven shall no longer be competent:.—[Mr. Home Robertson.]

Brought up, and read the First time.

Photo of John Home Robertson John Home Robertson , East Lothian

I beg to move, That the clause be read a Second time.

New clause 5 would do away with the device which allows Scottish juries to let an accused person off while indicating that they think that he probably committed the crime. That is obviously a thoroughly unsatisfactory state of affairs. Our famous not proven verdict is a sort of formal cop-out, which has been regard with much curiosity, but which has not been adopted in any other jury system on the planet, as far as I know.

I strongly believe that amendments to Scots law should be made in a Scottish legislature. I am confident that that will be possible perhaps in three years' time, but I know that the availability of this widely misunderstood hybrid verdict is giving rise to serious problems now. As, for the time being, this House is the only place in which Scots law can be amended, I hope that the House will give serious consideration to the proposal.

I hope that it is clear from my reputation that I cherish Scotland's institutions and its traditions, and perhaps even our national idiosyncrasies, but it is abundantly clear to me that this particular example is far more bother than it is worth. It is making real mischief and devaluing the quality of Scottish justice. I understand that the distinction between not proven and not guilty dates back to a trial in 1728, in which the jury was so unimpressed by the prosecution case that it decided that the established verdict of not proven would not be clear enough in that particular case. The jurors set a Scottish precedent by finding the accused not guilty. That is where it all started.

Ever since then, Scots juries have had a menu of three verdicts available to them. The first is not guilty, which means what it says. The second is guilty, which means very guilty. The third is not proven, which is interpreted as meaning that the jury thinks that the accused is possibly or probably guilty, but has the effect of acquitting him.

The not proven verdict is a comprehensive cop-out. The accused person may be technically and effectively acquitted. Of course, he cannot be retried for the same offence, but it leaves an indelible smear on the character and record of that acquitted person. That is a thoroughly undesirable departure from the principle that we are all innocent until proven guilty.

On Monday this week, a jury returned a not proven verdict on a lawyer who had been accused of a drugs offence. In theory, he has been acquitted, but it is fair to assume that his reputation is blemished, and that his career is likely to be affected as a consequence of that not proven verdict. He is not guilty but, after that verdict, he is not innocent, either.

I appreciate that the not proven verdict is a welcome bolthole for a guilty person who would otherwise be sentenced but, by the same token, it is an intolerable burden for an innocent person to carry, and all the worse because one cannot appeal against a not proven verdict to clear one's name.

The situation is even worse for the victims of crime in these cases. They have a clear message from the jury that the original accused person may well be guilty, but that person walks away without a sentence and the police cannot reopen the case against him or anyone else. Clearly, that is an especially traumatic and unsatisfactory state of affairs for victims and the relatives of victims of serious or violent crime.

3.45 pm

We are all indebted to Kathleen and Joe Duffy for the thoughtful and constructive campaign that they have been waging since the extraordinary conclusion of the trial of the man accused of murdering their 19-year-old daughter, Amanda, in 1993. My hon. Friend the Member for Hamilton (Mr. Robertson) has been closely involved with the Duffy family as their Member of Parliament, and the House will know that he has been pressing for many years for the abolition of the not proven verdict. I have no doubt that he will seek to catch your eye, Madam Speaker.

I do not anticipate that the new clause will command the unanimous support of the Scottish legal profession. Indeed, it would be unusual and worrying if it did. I fully realise that a not proven verdict must be a useful last straw for a desperate defence advocate to grasp, but there is plenty of evidence of long-standing concern about this curious formula among prominent lawyers in Scotland.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

Ignoring lawyers for a moment—it is always a pleasure to ignore them—does my hon. Friend think that the not proven verdict has any merit at all?

Photo of John Home Robertson John Home Robertson , East Lothian

I do not think that it has any merit whatever, but my hon. Friend will no doubt seek to participate in the debate later.

I see no useful purpose in maintaining the distinction, or cop-out. The accused person should be acquitted or convicted; no middle way should be available. That has been said down through the years. The most famous quotation is perhaps that from Sir Walter Scott who described the verdict as

that bastard verdict, illogical, contrary to legal principle and wholly indefensible". Much more recently, Lord Wheatley described it as

indefensible in logic and a relic of procedures long-since abandoned". I cannot resist mentioning my favourite Scottish lawyer, my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), who has been campaigning against the not proven verdict for many years—starting, I think, with a ten-minute Bill on 5 February 1969, when he represented Aberdeen, South. It remains to be seen whether the present hon. Member for Aberdeen, South (Mr. Robertson) will do likewise.

The not proven verdict may be a rather quaint Scottish tradition, but I submit that nostalgia cannot be a sound basis for good justice. The not proven verdict is a device for sidestepping justice and has been tolerated for far too long.

Above all, it is time for the Government to come off the fence. Lord Rodger, the Lord Advocate, has said publicly that he is uneasy about this verdict. At one stage, the Government said that they were awaiting the outcome of the English Royal Commission on Criminal Justice, which came out strongly against the idea of introducing scope for a not proven verdict to be used by English juries. The Secretary of State for Scotland undertook to review the issue back in 1993, but I understand that the review concluded with yet another question—what should he done about majority verdicts if the not proven option were to be removed?

It looks to me as if the Government have copped out of the opportunity to deal with Scotland's notorious cop-out verdict. The Secretary of State has found refuge in another fudge. I accept that the point about majority verdicts must be dealt with, but the fact remains that the not proven verdict is not a serious verdict. It is a formula which should be consigned to history. The case against it has been conclusively proven, and I commend the new clause to the House as a way of dealing with the problem once and for all.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

The hon. Member for East Lothian (Mr. Home Robertson) moved the new clause with commendable brevity. I wish that I could be quite as congratulatory about the terms in which he did so.

I do not mind attacks on lawyers—that is part of the rations on these occasions—but when the hon. Gentleman is reduced to praying in aid Sir Walter Scott, it is worth pointing out, as I think I did on Second Reading, that one of the reasons that Sir Walter Scott was driven to write the Waverley novels was the fact that, up to then, he had had a rather unsuccessful career at the Scottish Bar. While he may be regarded as an authority on the 19th-century novel, he is not generally regarded as someone upon whom great reliance can be placed in important matters of Scots law.

The hon. Member for East Lothian is quite right, to the extent that part of his thesis is that no legal system can survive if it does not submit itself to scrutiny from time to time about its practice and its procedure. That is especially the case when there is a wave of public opinion, to which reference has been made, which appears to support a change which seems right superficially.

It is always important and significant, however, to have regard to the extent to which a change of the kind proposed in the new clause may have profound and far-reaching consequences. In my judgment, the new clause has such consequences, to which the hon. Gentleman has not addressed himself, either in the speech with which he moved the new clause or, indeed, in producing a series of consequential amendments to deal with some of the difficulties which the simple abolition of the not proven verdict would undoubtedly bring about.

There is no justification for keeping the not proven verdict simply because it is peculiarly Scottish or because it has been long established in the Scottish system of law. The case for its abolition must depend on whether it is frustrating justice. It must also depend on a proper understanding of Scottish legal procedure.

As the Government's consultation document "Improving the Delivery of Justice in Scotland" pointed out, much of the recent criticism of the not proven verdict proceeds on misconceptions about its nature and its effect. People genuinely believed that, if a person was found not proven, he or she could be prosecuted again if fresh evidence became available, not understanding that the not proven verdict is a verdict of acquittal—the Scottish equivalent of a person tholing his or her assize. Another part of the public's misconception is that, if an individual is found to be not proven, no one else can ever be prosecuted for the crime said to have been committed.

Before we rely too much on a wave of public opinion, one has to ask oneself about the extent to which that public support for change is based on a proper understanding of the existing legal principles involved.

Photo of John McFall John McFall , Dumbarton

The hon. and learned Gentleman mentioned public opinion. Does he accept that the public look to the law as it exists, and that the job of the Crown is to prove beyond reasonable doubt the guilt of an individual? If it proves that, the case is proven, and if it does not prove that, the case is not proven. Logically and simplistically, the case for a two-verdict system is manifest.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

The hon. Gentleman gave the game away when he said "simplistically". I shall come to that. The difficulty—perhaps it is not a difficulty but an important feature—of the not proven verdict is that it is a sophisticated verdict in a sophisticated legal system. I shall explain why it should be retained.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

Will the hon. and learned Gentleman give way?

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

No. I want to make some progress, as I am sure that many hon. Members wish to catch Madam Speaker's eye.

It is often said—indeed, the hon. Member for East Lothian said it—that not proven is an easy way out for the jury. In my professional practice—perhaps I ought to declare an interest having been a member of the Faculty of Advocates for some 27 years—I do not recall more than a couple of trials in which a not proven verdict was reached when I felt that justice had been impeded or had not been done. Indeed, I confess that more often I felt a considerable sense of injustice when there was a ringing cry of not guilty, which is what I understand the hon. Gentleman would prefer to a verdict of not proven.

As I have said, not proven is a sophisticated verdict in what we are right to regard as a sophisticated legal system. The circumstances in which it is appropriate may not be capable of scientific prediction, but the law is not an empirical but a normative discipline. The verdict allows juries, sheriffs and justices of the peace sitting alone the opportunity to express a shade of meaning concerning an acquittal different from what they believe would be justified by the use of the words "not guilty".

We should be justified in removing the not proven verdict from our procedure only if it could be shown that it stood in the way of best practice. The hon. Gentleman talked about what response such a verdict might produce in the mind of the victim, and I can offer some anecdotal evidence pointing in the opposite direction from that in which he sought to point the House. In the mind of one of my constituents who was the victim of a sexual assault, that verdict has continued to provide a justification for her courage in exposing herself to cross-examination in open court.

Anyone with any understanding of the position in which a female victim finds herself when she claims that she has been the subject of a sexual assault will appreciate the fact that it is often an act of considerable bravery for that individual to stand in court, give evidence and be subjected to a rigorous and sometimes most unpleasant cross-examination about her sexual history. That may happen less now, but it still happens to some extent if the court regards it as relevant.

In the case that I mentioned, my constituent took comfort from the fact that, although her evidence was apparently insufficient on its own to bring home guilt on her assailant, she did not face what she would have regarded as the horror of seeing him offered the unqualified certificate of good character to which a not guilty verdict would have entitled him.

If the not proven verdict is such an anomaly, why do juries use it at all? Anyone who observes the jury system over a long period is bound to come to the view that juries display innate common sense and judgment, and that, by and large, jurors get it right on the evidence laid before them. I understand the occasional outpouring of grief of anxiety, or even outright anger, that arises when a not proven verdict is returned, but sympathy and understanding of those emotions should not blind us to the fact that, in serious cases, decisions about guilt and acquittal are taken by the jurors empanelled for that purpose, not by the system of verdicts.

I am by no means convinced that the relatives of someone who has been murdered would feel any more comfortable because a verdict of not guilty rather than a verdict of not proven had been returned. My instinct tells me that, if one can measure such things, they are likely to feel even more distressed.

The hon. Gentleman implied that there was some stigma attached to a not proven verdict. However, I have had several clients who have been admitted—to use a neutral expression—to that verdict, and in my professional experience no one has ever expressed any anxiety about the fact that that was the result of the trial.

Any alteration to the three verdicts available to juries in Scotland cannot be considered in isolation. That is a fundamental weakness in the hon. Gentleman's approach. As I said at the outset, apart from the merits of the verdict, one must have regard to its consequences.

It is not often appreciated that in Scotland a person can be convicted of the most serious charge in the calendar of our criminal law, the charge of murder, on a verdict of eight votes to seven. In such cases, in which the movement of one juror from one side of the argument to the other can have such profound results, the not proven verdict is an important protection in cases in which a simple majority would be sufficient.

Even if the hon. Gentleman were right to suggest that, for the reasons he cites, the not proven verdict should be removed, he could not escape the consequences. He must reconsider the number of jurors, for example, and the majority.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

It is all very well for the hon. Member for East Lothian (Mr. Home Robertson) to assent from a sedentary position, but I have looked through the Order Paper without seeing the consequential amendments which he is proposing in the event that the amendment to which he has just spoken is carried.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

Propriety demands that I should not respond to the sedentary intervention from the hon. Member for Bolsover.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

The hon. Gentleman has repeated his remark in order that you may not hear it on a second occasion, Madam Speaker. Clearly you have what one might describe as discreet hearing.

4 pm

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

Yes.

I do not wish to detain the House any longer. In many ways, the arguments have been well rehearsed for a long period. A fundamental weakness of the hon. Member for East Lothian's position is his failure to tell the House what the consequences of the amendment would be, or what his proposals would be to deal with those consequences.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

In defending the verdict of not proven, the hon. and learned Gentleman cannot deny that there is public concern about it. Is he suggesting that it is a rare event and confined to few cases?

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

No. I do not have the statistics, but no doubt the Minister will be able to advise the House on that. [Interruption.] As if in response to that signal, pieces of paper are fluttering about parts of the House. In a sense, the number of occasions in which the verdict is returned is neither here nor there, as the logic of the verdict is the same whether it is returned on a few occasions or a large number.

Reference has been made to the fact that this is an issue to which the House has had its attention drawn on many occasions in the past, and no doubt will again. On this occasion, the effort that the hon. Gentleman has made is thwarted not simply by the nature of his arguments, but by his failure to provide a clear indication of the consequences he expects, and how those should be met.

Photo of Malcolm Chisholm Malcolm Chisholm , Edinburgh Leith

I wish to oppose the new clause moved by my hon. Friend the Member for East Lothian (Mr. Home Robertson). In doing so, I join the massed ranks of the judges of Scotland, the Law Society of Scotland, the Faculty of Advocates, the Scottish Council for Civil Liberties and the rape crisis centres and victim support organisations in Scotland—in other words, the majority of informed opinion in Scotland. I could add another esteemed organ of informed opinion in Scotland to that list—the Scottish conference of the Labour party. I hope that their views have some effect on some of my hon. Friends, if not on Conservative Members.

The counter-arguments are driven by the campaign in Hamilton; we all have great sympathy with the circumstances which led to that campaign, and we understand some of the reasons which led to it. But we must stand back from that campaign and say that it is based on a fundamental misconception. The primary and obvious alternative to the not proven verdict is not guilty. Without going into details of the case, if the verdict of not proven had not been given, the verdict would probably have been not guilty.

Hon. Members wishing to abolish the not proven verdict may be saying that those people who receive that verdict should be found guilty—to some extent, that comes through from the Hamilton campaign—but they must realise that we could be faced with a great increase in the number of miscarriages of justice in Scotland if that came about. That would not be acceptable.

Various arguments were used against the verdict by my hon. Friend the Member for East Lothian, one of which was the suggestion that a lot of the people concerned were in fact guilty. I found some of his arguments confusing. He went on to say that the verdict places a stigma on the person who is found not proven. As he has already said that most of them are guilty, I do not see how he regards that as a problem.

More fundamentally, I refer to the comments of the hon. and learned Member for Fife, North-East (Mr. Campbell), who is a distinguished member of the Faculty of Advocates. He said that he has not come across the problem of stigma, and my hon. Friend the Member for Hamilton (Mr. Robertson) agreed with him from a sedentary position. So I do not think that the problem of stigma is serious. When all is said and done, a not-proven verdict is an acquittal.

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

I did not agree with that assertion. Does my hon. Friend agree with the hon. and learned Member for Fife, North-East (Mr. Campbell) that rape victims should be happy that such a verdict leaves a stigma behind? After all, that is the only consolation which alleged rape victims can have if acquitted not proven is the verdict at the end of the trial. Is my hon. Friend happy with that?

Photo of Malcolm Chisholm Malcolm Chisholm , Edinburgh Leith

I shall discuss the position of rape victims in detail. The main reason that I have been prompted to make this speech is because I have been lobbied by the rape crisis centre in Edinburgh, which is supported by other rape crisis centres in Scotland. I hope that my hon. Friend will forgive me for not discussing that matter now.

It has been suggested that not proven is a confusing verdict. If we were to get rid of everything that is confusing in the Scottish legal system, we would dismantle quite a lot. More seriously, the not proven verdict can be explained. A judge can explain the options open to the jury, and it is not confusing if it is explained clearly to the jurors and the public at large. My hon. Friend the Member for East Lothian suggested that a not proven verdict is unsatisfactory for victims, but it is far more satisfactory to victims than a blanket not-guilty verdict.

The rape crisis centre in Edinburgh and the people it represents feel passionately about this issue. Other women's organisations in Edinburgh have also raised the issue with me.

A verdict of not proven is commonly used in rape trials. The consultation document says that, in the High Court, almost 50 per cent. of acquittals for rape are as a result of not proven verdicts. That is a high figure. If such a verdict is abolished, we shall load the dice even more against women in rape trials, and goodness knows the dice are already heavily loaded against them. I do not know the Scottish figures, but I shall table a parliamentary question later. In England in 1993, in only 10 per cent. of reported rapes was a man eventually found guilty. The figure for England in 1985 was 24 per cent., so I shall be interested to know whether it is the same in Scotland.

That illustrates the serious problem that women face in being believed on accusations of rape. If the not proven verdict is taken away and such verdicts in the High Court become not-guilty verdicts, the credibility, honesty and reliability of women will be further called into question. If women know that that verdict is not available, it will not only be a serious problem for victims of rape but women will be discouraged from coming forward with complaints of rape. I therefore cannot express too strongly the fact that rape crisis organisations feel that this is a major issue for them and those they represent.

Photo of Mrs Maria Fyfe Mrs Maria Fyfe , Glasgow Maryhill

I share my hon. Friend's concern about rape victims. I agree that there are a large number of acquittals, whether as a result of not guilty or not proven verdicts. But does he agree that the real problem is the standard of proof that must be attained, and that, because it is difficult to prove rape to a jury's satisfaction, the not proven verdict tends to be a bolthole for juries who are not satisfied whether a person is positively guilty or not guilty?

Photo of Malcolm Chisholm Malcolm Chisholm , Edinburgh Leith

In a sense, my hon. Friend repeats the fundamental driving force of the abolition campaign, which is the assumption that not proven verdicts would become guilty verdicts. I hope that I do not misrepresent my hon. Friend in saying that.

The rape crisis organisations, of all people, should be sensitive to that issue. They know, as everyone knows, that the tiny percentage of guilty verdicts in rape cases does not reflect the number of men who really are guilty. They know that many guilty men walk free. Nevertheless, they want the "not proven" verdict to stay. Obviously, they want more convictions; obviously, they want more people to be found guilty who are guilty, but the two are not mutually exclusive.

Not proven falls on the same side of the divide as not guilty, and therefore the not provens would tend to become not guilty rather than guilty. That is the fundamental argument that must be made in the debate. It is the fundamental misunderstanding of the campaign to abolish it.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

In cases involving the complaint of rape, would it not be more helpful if women complainers were given the type of protection extended to young children, as they are defined as vulnerable witnesses?

Photo of Malcolm Chisholm Malcolm Chisholm , Edinburgh Leith

I agree entirely with my hon. Friend. A great many changes must be made in the way in which rape victims are treated in court. In the new phase of the zero tolerance campaign, which has just begun, one of the demands is that there should be a review of the whole judicial system as it impinges on women victims.

Moving to a conclusion, I wish to echo—perhaps an unusual thing for an Opposition Member to do—the words of the consultation document: that the three verdicts were a pragmatic recognition of reality. That is true in rape cases and in many other cases. It represents reality.

Today I spoke to at least one English Member—I shall probably speak to a few more in the next hour or so—who said that he wished that the not proven verdict was available in England because it would solve many of the problems that he has witnessed in the courts when people get off not guilty. He was thinking not of rape cases but of other situations in which it would be better that someone should be found not proven rather than not guilty.

My hon. Friend the Member for East Lothian has not made his case. I think we must say that the case against that verdict is not proven, and we should retain it.

Photo of Mr Bill Walker Mr Bill Walker , North Tayside

I shall make a brief speech.

First, I think that it would be wrong to change the position on the statute book, because we claim, properly and rightly, that we like the uniqueness of our Scottish legal system and the not proven verdict is probably one of the most distinctive parts of the Scottish legal system.

I listened with great care to the hon. and learned Member for Fife, North-East (Mr. Campbell), who made a speech that surely convinced the House of the huge merit there is in not having full-time Members of Parliament. The advantage of having Queen's counsel come here to give us their experience in the courts is valuable when we discuss something of which few of us have any real experience—what happens in the courts and the pressures on people who appear in court.

The hon. and learned Member made a massive contribution to the retention of the not proven verdict, in a way that only someone with his background and experience could have done. For that we must be thankful. I hope that the House will listen carefully to what he says. It is sad that we have so few Queen's counsel now representing Scottish parliamentary constituencies. In my opinion, we need them, as we need people with other backgrounds and experiences, so that the House can properly and adequately debate the complexities—we are discussing a fairly complex situation—and listen to the experience of people who have travelled the course and understand what is involved.

I hope that the House will reject the new clause.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

I was struck by some of the things said by the hon. and learned Member for Fife, North-East (Mr. Campbell), especially about cases involving the allegation of rape. I was also much impressed by the speech of my hon. Friend the Member for Edinburgh, Leith (Mr. Chisholm), and it is his lead that I would follow, especially in respect of complainers in rape cases. In spite of what the hon. and learned Member for Fife, North-East said about the cross-examination of complainers in rape cases, I continue to believe that they are confronted with a terrible ordeal. Despite what he said, I still believe that, in some cases, a complainer has her sexual history trawled through by the counsel for the defence.

I should like more protection to be given to complainers in rape cases. The Under-Secretary of State for Scotland well knows my position. I have argued that the Prisoners and Criminal Proceedings (Scotland) Act 1993—I think, section 33—could be amended so that complainers in rape cases could be defined as vulnerable witnesses and benefit from the use of television links in court cases. Until now, Ministers and other lawyers in the House have rejected such a radical measure, but the definition of a vulnerable witness could be extended to cover citizens with learning disabilities.

There are witnesses in cases who need extra protection. Certainly, complainers in rape cases should be placed in that category. The squalid trawling of sexual history still takes place—I do not care what the hon. and learned Member for Fife, North-East says. Complainers in such cases undergo a dreadful ordeal. If, by amending the 1993 Act, we could diminish that ordeal, we would all benefit as a nation, not just the complainers and their families. If the difficulties faced by complainers in rape cases were reinforced by the abolition of the third verdict of not proven, I would vote against the measure on those grounds.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs) 4:15 pm, 7th June 1995

I did not mean to convey, and I hope that the hon. Gentleman did not understand me to convey, the notion that I was in any way unsympathetic to the way in which the law has developed in relation to the protection of those alleging rape from the sort of analysis of previous sexual history that certainly used to occur. I am entirely in favour of that development. Such analysis occurs much less frequently than it did under the law, even as recently as 10 or 15 years ago.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

I am grateful to the hon. and learned Gentleman for his intervention. I know from my experience of the benefit of his company on Standing Committees discussing miscellaneous provisions legislation that he is extremely sympathetic to the position of the complainer in sexual assault cases. I readily acknowledge that the complainer in such cases today does not face the extreme ordeal that complainers faced 10, 15, 20 or 30 years ago. The same holds true for child witnesses in cases involving child abuse, sexual abuse and neglect.

But that is not to say that being in the witness box and being cross-examined by a highly articulate and sometimes sarcastic defence counsel who is keen to trawl through a woman's sexual history are not a terrible ordeal. On that count alone, I am grateful to my hon. Friend the Member for Leith for his contribution. We must do a great deal more for complainers in rape cases to ease the harsh difficulties that they face when giving evidence and to persuade others to come forward to report cases of rape—too many cases go unreported.

To follow on from the speech of my hon. Friend the Member for Leith, I think that my hon. Friend the Member for East Lothian (Mr. Home Robertson) should take account of the serious reservations that have been expressed about his new clause.

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

I am very grateful to my hon. Friend the Member for East Lothian (Mr. Home Robertson) for moving new clause 5. Hon. Members know that I have strong personal views on the subject and, as this short debate has shown, there is a division of opinion in Scotland and even within political parties about the not proven verdict. Therefore, among the Opposition—and, I hope, the Government as well—there will be a free vote at the end of the debate on new clause 5. My views are well known and I shall expand on them, but my right hon. and hon. Friends are free to vote in whichever Lobby they believe is right and proper, bearing in mind the future reputation of the Scottish legal system.

The first question that must be dealt with in relation to the abolition of the not proven verdict and the three verdicts in Scotland is what those verdicts actually are. There are three verdicts available in Scottish courts, which are known colloquially as not proven, not guilty and guilty. That is what the general populace believe the verdicts to be and, in that respect, Scotland is unique among the judicial systems of the world.

However, those are not the formal titles of the verdicts in the Scottish Office. On 23 June 1993, the Under-Secretary of State, the hon. Member for Edinburgh, West (Lord James Douglas-Hamilton), who will reply to the debate on behalf of the Government, answered my parliamentary question requesting a breakdown of the number of guilty, not guilty and not proven verdicts that were handed down in jury trials in Scottish courts. He answered the question in the following terms: High Court:Acquitted Not Guilty, Acquitted Not Proven, Charge Proved".— [Official Report, 23 June 1993; Vol. 227, c. 208.] From the point of view of the Scottish Office, which is in charge of the judicial system, the public are wrong. The three verdicts are not guilty, not guilty and not proven; people are acquitted not guilty, acquitted not proven and charge proved.

I believe that there is a case for reducing the number of verdicts to two, and whether they should be charge proved and acquitted not proven is, quite frankly, a matter of sophistry—to coin a phrase that has been in the news recently. The not proven verdict creates problems simply because there are three verdicts, the terms of which cannot even be agreed. The existence of those three verdicts has led to confusion and, I believe, to an undermining of faith in the Scottish criminal justice system.

The hon. and learned Member for Fife, North-East (Mr. Campbell), who is a distinguished member of the legal profession and a Queen's counsel, told the House that there was a wave of adverse public opinion about the not proven verdict—which he asked us to ignore or at least discount—because people were confused. If there is such confusion about the terminology of the verdicts in the courts, it is not surprising that there is some confusion among the general population.

What about those poor people who serve on juries? At the end of trials, the sheriffs or judges often do not make clear the differences between the three verdicts. Sheriff Francis Middleton retired last year after a lifetime in the legal profession. He said that it was extraordinary that, during his time on the Bench, he never felt obliged to explain to juries the difference between acquitted not guilty and acquitted not proven. It is assumed that people know the difference but, as I have shown, the Scottish Office itself uses phraseology that is entirely different from that used by the judges and the sheriffs in court. Therefore, it is scarcely surprising that members of the public, as well as jury members, are confused.

When the award-winning BBC programme "Focal Point" examined the not proven verdict, it found that 48 per cent. of those who had served on juries believed that a not proven verdict was an open verdict and that the cases could be brought back to court. The people we are charging with the responsibility of arriving at verdicts in court cases share the same confusion as the general public about the not proven verdict. That cannot be good for the reputation, integrity and efficacy of the criminal justice system in Scotland.

Why is the not proven verdict an issue in Scotland, and why should it have become a matter of public controversy in Scotland? It is not simply because of the Amanda Duffy case, although that was horrifying and devastating to the individual concerned, to her parents and to members of the local community in my constituency. That was not the issue that brought the concern to the public mind, although the campaigning zeal of the Duffys certainly made it a bigger issue that it might have been.

It was always a matter of controversy. When my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) represented the constituency of Aberdeen, South, he presented a private Member's Bill to abolish that verdict. The controversy rumbled on long before the murder of Amanda Duffy.

There is worry and concern in Scotland about the presumption of innocence. It was interesting that the hon. and learned Friend the Member for Fife, North-East, with all his legal reputation and his affection and admiration for the Scottish legal system, did not find it necessary even to mention the concept of the presumption of innocence that lies at the heart of the legal system in our democracy. Everyone is presumed to be innocent unless he or she is found guilty beyond the bounds of reasonable doubt.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

The hon. Gentleman's attack on me is unjustified. Anyone who are knows anything about the Scottish legal system knows that the presumption of innocence stands at its heart. I would not have thought that, in a debate largely involving Scottish Members, it should be necessary to rehearse something that we know to be fundamental.

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

The hon. and learned Gentleman knows that it is fundamental, but the contention is that a not proven verdict undermines the presumption of innocence. We can either believe that the presumption of innocence is important and must be protected or we can believe in its limitation by the not proven verdict. We cannot have it both ways.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

With the greatest respect to the hon. Gentleman, the fact that there are two verdicts of acquittal does not undermine the presumption of innocence or the onus of proof that rests on the Crown throughout. If the onus of proof is not discharged, the jury can choose to say that the individual is not guilty, which is a certificate of credibility, or that the individual is not proven.

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

It is not the individual, but the case, that is found to be not proven. The individual is presumed to be innocent. It is an acquittal, but not proven.

The hon. and learned Gentleman seems unusually satisfied with the fact that someone can leave a court with less than a full acquittal. That must undermine fundamentally the presumption of innocence because, whatever he says, people leave court with a not proven verdict and a stain on their reputation; the community at large in Scotland then assumes that the individual was guilty, but there was not enough evidence. The hon. and learned Gentleman and some of my hon. Friends seem to imply that when they talk about other court cases, including rape cases, where people are satisfied with a not proven verdict as it appears to be different from a full acquittal. We should not be satisfied with the differentiation between the two categories, and a not proven verdict certainly undermines the presumption of innocence.

Photo of Mr Bill Walker Mr Bill Walker , North Tayside

The hon. Gentleman said that the people of Scotland take a certain view following a case resulting in a not proven verdict. I suggest that there are cases where someone was found not guilty, but people in Scotland felt that that person was guilty but the case failed because the evidence did not stand up. It does not change attitudes and views. If the hon. Gentleman calls that in aid to support his case, he must realise that such a view is prominent when the feeling is that the Crown has somehow failed to make a case in court against an individual.

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

If the Crown fails to make the case, the individual deserves to leave the court with a verdict of not guilty, whatever the assumption may be. Not proven is a particular category designed to make sure that a person leaves the court with less than a full acquittal and less than the presumption of innocence with which that individual should enter and leave the court in circumstances where the Crown has not been able to persuade the jury that the individual is guilty. There is a legacy of frustration left behind by victims and their families where all that remains is a mystery. People throughout Scotland feel that the not proven verdict leaves in its wake an air of constant frustration and aggravation that cannot do the system any good.

4.30 pm

I am not alone in that view. My hon. Friend the Member for East Lothian quoted the Lord Advocate. I know that we are not permitted to quote his speeches in the House of Lords, but in this instance he was speaking to Scotland on Sunday. He is Scotland's senior Law Officer and if the hon. Member for Tayside, North (Mr. Walker)—who has just rapidly departed the Chamber—is influenced by lawyers, presumably the Lord Advocate is someone to whom he should listen.

Despite the fact that the Lord Advocate is a member of the Government, he has a refreshingly high reputation as a Scottish Office Minister. He told Scotland on Sunday:It is certainly something which, if one were starting out to design a legal system today, starting afresh, I don't think there's any evidence that you would introduce three verdicts. I don't think it is something that has such obvious benefits that one would design it in. If that is a defence of the not proven verdict, it is mighty weak. The Lord Advocate seems to be suggesting, given the opportunity that the Bill presents, that we should design out the not proven verdict—if it should have been designed in the first place.

More devastating even than the words of the Lord Advocate were those of the Royal Commission on criminal justice in England and Wales. After extensive studies and deliberation, it published the year before last its conclusions on changes that should be made to the English system, bearing in mind some of the advantageous and strong aspects of the Scottish system. In 1992, the Lord Advocate wrote to me: Although the remit of the Royal Commission does not extend to Scotland, the Secretary of State has already undertaken to give careful consideration to any recommendations which have a bearing on the Scottish criminal justice system. Due consideration will be given to anything which the Royal Commission may have to say about the Not Proven verdict at that time. The eyes of the Scottish Office and of the Secretary of State were on the deliberations, and the royal commission was aware that people in Scotland—especially those responsible for such legislation—would study its recommendations carefully. At paragraph 75, the royal commission, chaired by Viscount Runciman, said of Scotland's unique not proven verdict: During our deliberations we considered the case for introducing into England and Wales the Scottish verdict of 'not proven'. This is available in Scotland as an alternative to 'not guilty' although it still counts as an acquittal. Most of those who gave evidence to us did not favour such a verdict. We too regard it as an unsatisfactory option, particularly from the point of view of the defendant, who is left with a cloud hanging over his or her reputation. If the jury does not convict, it means that the prosecution have been unable to discharge the burden of proof and the defendant should in our view be entitled to the verdict of not guilty.

Photo of Mr William Ross Mr William Ross , East Londonderry

How many accused people did the hon. Gentleman find during his extensive studies who were dissatisfied with a verdict of not proven being brought against them?

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

Quite a number. The hon. and learned Member for Fife, North-East said that many of his clients were extremely pleased with a not proven verdict. The people who were happiest were those who were guilty but got off. During the Duffy campaign, the campaigners met a lady who had been charged with resetting a girocheque. The case went to trial and was found not proven. Weeks later, a postman in the same area was charged with resetting girocheques, including those for which the lady had been charged and convicted. The not proven verdict will stay with her. Technically, it was an acquittal, but there will be a stain on her character for the rest of her life. There are people who feel that a stain remains on their character.

I quoted a passage from the report of the Royal Commission on criminal justice. It reflected an emphatic view, which happens to be shared by the hon. Member who represents the Duffy family. It is the view of the royal commission that was set up by the Government to examine in enormous depth all aspects of the English criminal justice system. The royal commission was asked to examine what parts of the Scottish system should be translated to the English system. I repeat its conclusion: If the jury does not convict, it means that the prosecution have been unable to discharge the burden of proof and the defendant should in our view be entitled to a verdict of not guilty. It should not be assumed that, because there was a campaign about a murder one Saturday night in Hamilton town centre, the verdicts of individual courts can also be assumed. We want to eliminate the possibility that juries will go for a cop-out verdict that leaves neither the defendant nor the victim satisfied at the end of the day.

It was suggested by my hon. Friend the Member for Edinburgh, Leith (Mr. Chisholm) that the removal of the not proven verdict would lead to more miscarriages of justice, on the ground that there would be more guilty verdicts instead of acquittal non proven verdicts. I ask my hon. Friend and others who think along those lines whether it would have been better in cases in England if the stain on the characters of the defendants lived on when they were ultimately found to be innocent. Does anyone imagine that the campaign that was mounted on behalf of the Birmingham Six would have continued with the vigour and ultimate success that it reflected if those defendants had been found not proven instead of guilty?

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

There would have been one consequence. They would not have spent many years in prison.

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

Yes, that would have been one consequence. But, at the end of the day, they would not have been proved to be innocent. Does anyone imagine that those defendants would not have been suspected of guilt throughout the campaign? The reality is that, at the end of the campaign, the six were found to be innocent. They were not acquitted not proven, with the reputation that goes with that.

Photo of Malcolm Chisholm Malcolm Chisholm , Edinburgh Leith

It is my view that the alternative to not proven is not guilty. The implication behind the argument of those who say that the removal of the not proven verdict will lead to more convictions is that there will be more miscarriages of justice. It is those who want to get rid of the verdict who tend to make the assumption that there will be more convictions.

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

No, they do not make that assumption. There will be more guilty verdicts and more not guilty verdicts. The third of the verdicts that are not proven will have to be distributed either as guilty or not guilty, or proven or charge proved, whatever terminology is adopted. The campaign is designed to reduce the number of verdicts to two, the number that applies in every other country. It is not directed to decide which of the various terms will be used.

My hon. Friend the Member for East Lothian is not approaching the problem in rape cases in the right way. If there is a problem in rape cases in securing convictions—I am sure that I have the hon. and learned Member for Fife, North-East on my side—it does not rest with the number of verdicts or the potential for acquittal; the problem rests with the mechanisms by which the evidence is presented, including the standard of proof required. It has nothing to do with the verdicts that are available.

I have responded in writing to the rape crisis centres that have written to me. I have told them that, if they are satisfied with juries going for the not proven cop-out, they are doing a disservice to those who find themselves in court.

Photo of Jim Wallace Jim Wallace , Orkney and Shetland

It is important that the hon. Gentleman clarifies that point as, unreasonably, other inferences may be drawn from what he said, and from what his hon. Friend the Member for Glasgow, Maryhill (Mrs. Fyfe) said, when referring to the problem of the standard of proof in rape trials. Is it the policy of the Labour party that guilt must be proved beyond reasonable doubt? That is the standard of proof. Is there any question in rape trials that that standard of proof should be changed?

Photo of Mr George Robertson Mr George Robertson Shadow Secretary of State

Of course not. The whole question of how rape trials should be conducted and the admissibility of proof must be looked at separately and distinctly from the verdicts. People who take consolation from there being two acquittal verdicts do not address the serious problem with getting convictions in rape cases. The whole basis of what I am saying today and what I have said before is that the presumption of innocence must remain. The standard of proof must also remain.

If there is a problem in dealing with allegations of rape and convictions in rape cases, it has nothing whatever to do with the verdicts. Indeed, one of the strong criticisms of the not proven verdict is that, increasingly, juries are using it as a cop-out from making a decision. The decision might be for guilty or not guilty, but having the cop-out relieves juries, especially in rape trials, of the obligation of coming to a firm conclusion on what they have heard in court.

The hon. and learned Member for Fife, North-East says that my hon. Friend's new clause is defective because there are no consequential amendments and it does not take into account any consequential effects that it would have if passed. The fact is that the issue of the not proven verdict stands on its own. Yes, it may ultimately be connected with the majority that applies in a Scottish jury, but it is not inextricably linked to it. They both stand on their own and they can be adjusted on their own.

I personally believe that, if we were to remove the not proven verdict, ideally we should then change the majority required for a jury to convict; but there is no necessity to do that simply as a consequence of the new clause. The hon. Member for Orkney and Shetland (Mr. Wallace), in trying to undermine my hon. Friend's new clause, is taking the argument—it is a further argument rather than part of exactly the same argument—further.

The hon. Member for Tayside, North, who has departed, having given us the benefit of his wisdom, tells us that we should listen to experts, because on this rare occasion he happens to agree with the hon. and learned Member for Fife, North-East. The fact that he can ignore practically everything else that the hon. and learned Gentleman says seems to have no consequence at all. I wonder whether the hon. Gentleman is trying to establish a precedent, that we should always listen to the lawyers, that only lawyers can be experts on the law, when he is so eloquent in his praise of the hon. and—I suppose that we have to say "learned"—Gentleman on this occasion.

The Lord Chancellor of England, who does not hold any English legal qualification at all, takes almost exactly the same view. If the legal profession in England is united on one thing, the Lord Chancellor will be determined to alter it, and he has not been put off at all by the massed ranks of the English legal establishment. I think that these arguments do not hold strongly.

Who at the end of the day is still in favour of three verdicts in the Scottish courts? Not the victims, who are left hanging in the air of frustration and mystery that comes at the end of a trial when a not proven verdict is handed down. Certainly not the recipient, unless he or she was guilty and is relieved at having been acquitted, because the recipient is left with a stigma, which, as the English royal commission identified, is impossible for him or her to clear.

The system cannot be satisfied with a situation that undermines the presumption of innocence. The public, who are at best confused by,and at worst hostile to the idea of the not proven verdict, certainly are not in favour of having three verdicts. The legal profession may well be, especially those who are in criminal cases on the defence side, because it is an entirely suitable deployment of their skills to go for three verdicts instead of just two. Those who were clearly guilty but feel that they have got off could be in favour of it as well.

Much more seriously, juries who do not want to take a straightforward decision based on the case that has been put before them will be pleased to have three verdicts in the Scottish courts. I do not believe that that is a sufficient strength of opinion to weigh against the arguments that have been deployed.

4.45 pm

I accept that there are strong views on the other side of the issue. There are people who believe that three verdicts make our system more flexible, who believe that three verdicts give the jury in a Scottish trial more choice and, therefore, more chances to get it right at the end of the trial, and there are some people in Scotland who firmly believe that we should not bring our legal system into line with those in every other country in the world. They are entitled to that view. I disagree with them, but it is a strong view and many hon. Members have expressed it in this brief debate.

The Opposition will have a free vote, and my hon. Friends who have listened to the debate and others can vote according to their conscience and according to the way in which they feel their opinion should go. I personally will be in the Aye Lobby at the end of the debate.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

This has been a useful debate. The hon. Member for East Lothian (Mr. Home Robertson) suggested that a not proven verdict would result in no further proceedings, but proceedings can be taken against another person—for example, an associate of the person who was the subject of the not proven verdict. That is an important point.

The hon. and learned Member for Fife, North-East (Mr. Campbell) made a persuasive and convincing speech. Most judges, whether in the sheriff, district or High Court, would agree with the tenor of what he was saying. Certainly, in relation to witnesses in rape cases, what he said was particularly relevant and strongly felt.

I can tell the hon. Member for Greenock and Port Glasgow (Dr. Godman) that there have been huge improvements in the treatment of rape cases. The police are now much more sensitive in their dealings with such cases, and great efforts have been made. As the hon. Gentleman knows, steps forward on video evidence have already been taken in legislative provisions. Clauses 17 to 20 of the Bill will facilitate the giving of evidence by other witnesses for whom it would be particularly distressing to recount events in court. No doubt we shall constantly review that matter in future years.

Photo of Mrs Maria Fyfe Mrs Maria Fyfe , Glasgow Maryhill

We all appreciate that there have been some improvements in the way in which rape cases are conducted in court, but nevertheless we still have to examine the fact that there are a surprisingly large number of acquittals, whether they are acquittals on the basis of a not guilty or a not proven verdict. We cannot believe that so many women are lying, so has the Minister any proposals to undertake further reforms in the way in which rape trials in particular are conducted? If so, could we see them before the Bill is concluded?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

The hon. Lady raises a rather different point concerning the trauma experienced by witnesses in rape cases or cases of serious sexual assault when, having gone through the process of giving evidence, they find that their evidence is disbelieved. The not proven verdict is a help in such circumstances because it means that the woman will feel that her evidence has not been given in vain and has been registered strongly by the jury in its verdict.

I did once secure the acquittal of a man on a not proven verdict whose case arose out of an episode in the constituency of the hon. Member for Hamilton (Mr. Robertson). I can say only that he was grateful for that verdict, as no doubt would many of the clients of the hon. and learned Member for Fife, North-East have been. Therefore, I would not for a moment suggest that all the representations are one way.

The three-verdict system has been part of the Scottish criminal law for more than two and a half centuries, but we do not regard the not proven verdict as anachronistic. It has been used in a significant number of cases—broadly one fifth of cases in recent times.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

Can the Minister confirm that the not proven verdict is available not only to jurors but, in certain cases, to judges? It is available to justices of the peace and sheriffs sitting in summary jurisdiction.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

That is true.

Our consultation exercise of 1994 cleared up many misunderstandings. Two out of three responses supported the retention of the three verdicts. As the hon. Member for Edinburgh, Leith (Mr. Chisholm) pointed out, a substantial body of opinion supports the not proven verdict, and the balance of opinion in our consultation was strongly in favour of its retention. Its practical usefulness is shown by the fact that it continues to be used regularly; it may also be a more satisfactory acquittal verdict for many victims and witnesses, who feel in such cases that their evidence has not been disbelieved. That partly meets the point made by the hon. Member for Glasgow, Maryhill (Mrs. Fyfe).

In the light of the evidence amassed by the consultations, I believe that the new clause should be rejected and that the not proven verdict should be retained.

Photo of Dr Norman Godman Dr Norman Godman , Greenock and Port Glasgow

I am grateful to the Minister for showing characteristic courtesy in giving way. A moment ago, referring to my intervention, he suggested that complainants in rape cases were treated more compassionately than hitherto. No one would deny that, and the change has been welcome; but, in referring to clauses 17 to 24, was the Minister suggesting that complainants in such cases would receive protection akin to that given to child witnesses by way of sections 33 to 35 of the Prisoners and Criminal Proceedings (Scotland) Act 1993? If so, I shall be the first to stand up and cheer him.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

Clause 18 will enable a video-recorded statement by a witness who gives evidence and adopts that statement to be admitted as evidence of the facts spoken to in the statement. I realise that not all the measures in the Bill may go as far as the hon. Gentleman would like them to, but the position will be reviewed in due course.

Earlier, I mentioned the case of Madeleine Smith, a young girl charged with poisoning her boyfriend. The jury could not bear the thought of bringing in a guilty verdict and sending to the gallows a vivacious young girl with much to offer in the future. That is why it brought in its not proven verdict—although jury members frankly admitted that they did not believe it.

Photo of John Home Robertson John Home Robertson , East Lothian

The Minister said that this had been a useful debate. I submit that it will have been useful only if it leads to our removing the anomalous verdict of not proven from the Scottish legal system.

The hon. Member for Tayside, North (Mr. Walker) made an interesting little speech, showing his fawning support for everything that QCs ever say and his keenness on supporting all that is good in Scotland. Given his record of voting to dismantle much that is good in Scotland over the past 16 years, many of us will take that with a heavy pinch of salt.

Photo of Mr Bill Walker Mr Bill Walker , North Tayside

As ever, the hon. Gentleman is courteous. Does he not agree that, when his record of voting against measures that he thinks affect Scotland adversely in opposition to his party is equal to mine, he can be as critical as he likes?

Photo of Mr Michael Morris Mr Michael Morris , Northampton South

Order. I think that that is one-all.

Photo of John Home Robertson John Home Robertson , East Lothian

I had forgotten that the hon. Member for Tayside, North was so sensitive. I shall try to be more careful in future.

The hon. and learned Member for Fife, North-East (Mr. Campbell) made some serious points and some lawyer's points: there is, of course, a distinction. He raised a serious point about majority verdicts. He is right: if the not proven verdict were removed from the menu available to juries, it would be necessary to do away with the simple majority that is currently required in Scotland. That is a matter which would need to be addressed in short order.

My complaint about the Government is that they have been dancing around the issue for a long time. They keep finding different excuses for not changing the law. The matter has been considered for them enough. The hon. and learned Member for Fife, North-East is right to say that the matter could and should be addressed. However, I found his other points less persuasive.

I appreciate that it must be attractive for a defence counsel to have the long-stop of persuading a jury that there is sufficient doubt to bring in a not proven verdict. The trouble is that there is a fundamental lack of logic in the three-option list of verdicts. One can acquit, convict or produce what can be best be described as a grudging acquittal. However, it is still an acquittal. There is no logic in a verdict of that nature. It simply creates the odd phenomenon of either qualified innocence, which carries a stigma—a principle that I find repugnant—or qualified guilt, which carries no penalty. What earthly use can that serve? It is a major anomaly, which ought to be addressed. The House is the only place where it can be addressed until such time as we have a Scottish Parliament.

My hon. Friend the Member for Edinburgh, Leith (Mr. Chisholm) raised serious concerns about the implications of the abolition of the not proven verdict for rape cases. If there are such concerns, he is right to express them and I appreciate the anxiety that is felt. However, my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) made the point that there are other ways to ensure that there is better quality and that more effective evidence can be laid in such cases to make it easier to get convictions, where they are appropriate.

I feel that the priority must be good justice. The not proven verdict provides no justice for anybody. For that reason, I am inclined to press new clause 5 to a vote.

Question put, That the clause be read a Second time:—

The House divided: Ayes 117, Noes 325.

Division No. 159][5.00 pm
AYES
Ainger, NickJackson, Helen (Shef'ld, H)
Ashton, JoeJamieson, David
Austin-Walker, JohnJowell, Tessa
Barnes, HarryKilfoyle, Peter
Barron, KevinLewis, Terry
Bayley, HughLloyd, Tony (Stretford)
Bell, StuartMcCartney, Ian
Bennett, Andrew FMacdonald, Calum
Benton, JoeMcFall, John
Berry, RogerMcMaster, Gordon
Bradley, KeithMcNamara, Kevin
Bray, Dr JeremyMarshall, Jim (Leicester, S)
Brown, N (N'c'tle upon Tyne E)Martin, Michael J (Springburn)
Caborn, RichardMaxton, John
Callaghan, JimMeacher, Michael
Campbell-Savours, D NMichael, Alun
Clapham, MichaelMichie, Bill (Sheffield Heeley)
Clark, Dr David (South Shields)Milburn, Alan
Clarke, Tom (Monklands W)Miller, Andrew
Clelland, DavidMitchell, Austin (Gt Grimsby)
Clwyd, Mrs AnnMoonie, Dr Lewis
Coffey, AnnMorgan, Rhodri
Cohen, HarryMorley, Elliot
Cousins, JimMorris, Rt Hon Alfred (Wy'nshawe)
Davies, Bryan (Oldham C'tral)Mowlam, Marjorie
Davies, Ron (Caerphilly)Mullin, Chris
Denham, JohnMurphy, Paul
Dixon, DonO'Brien, Mike (N W'kshire)
Dowd, JimO'Brien, William (Normanton)
Dunnachie, JimmyOlner, Bill
Dunwoody, Mrs GwynethParry, Robert
Eagle, Ms AngelaPatchett, Terry
Eastham, KenPickthall, Colin
Etherington, BillPope, Greg
Evans, John (St Helens N)Prentice, Bridget (Lew'm E)
Fisher, MarkPrentice, Gordon (Pendle)
Flynn, PaulPurchase, Ken
Fraser, JohnRadice, Giles
Fyfe, MariaRaynsford, Nick
Galbraith, SamReid, Dr John
Gapes, MikeRobertson, George (Hamilton)
Garrett, JohnRoche, Mrs Barbara
Gerrard, NeilRogers, Allan
Golding, Mrs LlinRowlands, Ted
Gordon, MildredSheldon, Rt Hon Robert
Grocott, BruceSpellar, John
Hall, MikeSteinberg, Gerry
Hanson, DavidStevenson, George
Henderson, DougSutcliffe, Gerry
Heppell, JohnThompson, Jack (Wansbeck)
Hill, Keith (Streatham)Timms, Stephen
Hoon, GeoffreyTurner, Dennis
Howarth, George (Knowsley North)Wigley, Dafydd
Hughes, Kevin (Doncaster N)Williams, Alan W (Carmarthen)
Hughes, Robert (Aberdeen N)Worthington, Tony
Hughes, Roy (Newport E)Young, David (Bolton SE)
Hutton.John
Illsley, EricTellers for the Ayes:
Ingram, AdamMrs. Helen Liddell and
Jackson, Glenda (H'stead)Mr. John Home Robertson.
NOES
Ainsworth, Peter (East Surrey)Curry, David (Skipton & Ripon)
Ainsworth, Robert (Cov'try NE)Darling, Alistair
Aitken, Rt Hon JonathanDavidson, Ian
Alexander, RichardDavies, Quentin (Stamford)
Alison, Rt Hon Michael (Selby)Davis, David (Boothferry)
Allason, Rupert (Torbay)Day, Stephen
Alton, DavidDeva, Nirj Joseph
Ancram, MichaelDevlin, Tim
Anderson, Ms Janet (Ros'dale)Donohoe, Brian H
Arbuthnot, JamesDouglas-Hamilton, Lord James
Arnold, Jacques (Gravesham)Dover, Den
Arnold, Sir Thomas (Hazel Grv)Duncan, Alan
Ashby, DavidDuncan-Smith, Iain
Atkins, RobertDunn, Bob
Atkinson, David (Bour'mouth E)Durant, Sir Anthony
Atkinson, Peter (Hexham)Dykes, Hugh
Baker, Nicholas (North Dorset)Eggar, Rt Hon Tim
Baldry, TonyElletson, Harold
Banks, Matthew (Southport)Emery, Rt Hon Sir Peter
Banks, Robert (Harrogate)Enright, Derek
Batiste, SpencerEvans, David (Welwyn Hatfield)
Battle, JohnEvans, Jonathan (Brecon)
Beggs, RoyEvans, Nigel (Ribble Valley)
Beith, Rt Hon A JEvans, Roger (Monmouth)
Benn, Rt Hon TonyEvennett, David
Beresford, Sir PaulEwing, Mrs Margaret
Bermingham, GeraldFaber, David
Biffen, Rt Hon JohnFabricant, Michael
Bonsor, Sir NicholasFenner, Dame Peggy
Booth, HartleyField, Barry (Isle of Wight)
Boswell, TimForman, Nigel
Bottomley, Peter (Eltham)Forsyth, Rt Hon Michael (Stirling)
Bottomley, Rt Hon VirginiaForsythe, Clifford (S Antrim)
Bowden, Sir AndrewForth, Eric
Bowis, JohnFoster, Don (Bath)
Brandreth, GylesFoulkes, George
Brazier, JulianFowler, Rt Hon Sir Norman
Bright, Sir GrahamFox, Dr Liam (Woodspring)
Brown, M (Brigg & Cl'thorpes)Freeman, Rt Hon Roger
Browning, Mrs AngelaFrench, Douglas
Bruce, Ian (Dorset)Fry, Sir Peter
Bruce, Malcolm (Gordon)Gale, Roger
Burns, SimonGardiner, Sir George
Burt, AlistairGarnier, Edward
Butler, PeterGill, Christopher
Campbell, Mrs Anne (C'bridge)Gillan, Cheryl
Campbell, Menzies (Fife NE)Godman, Dr Norman A
Carlisle, John (Luton North)Godsiff, Roger
Carlisle, Sir Kenneth (Lincoln)Goodlad, Rt Hon Alastair
Carrington, MatthewGoodson-Wickes, Dr Charles
Cash, WilliamGorman, Mrs Teresa
Channon, Rt Hon PaulGorst, Sir John
Chapman, SydneyGraham, Thomas
Chidgey, DavidGrant,Sir A (SW Cambs)
Chisholm, MalcolmGrant, Bernie (Tottenham)
Clappison, JamesGreenway, Harry (Ealing N)
Clark, Dr Michael (Rochford)Greenway, John (Ryedale)
Clarke, Eric (Midlothian)Griffiths, Peter (Portsmouth, N)
Clarke, Rt Hon Kenneth (Ru'clif)Hague, William
Clifton-Brown, GeoffreyHamilton, Neil (Tatton)
Colvin, MichaelHampson, Dr Keith
Congdon, DavidHanley, Rt Hon Jeremy
Conway, DerekHannam, Sir John
Coombs, Anthony (Wyre For'st)Hardy, Peter
Coombs, Simon (Swindon)Hargreaves, Andrew
Cope, Rt Hon Sir JohnHarris, David
Corbett, RobinHawkins, Nick
Corbyn, JeremyHawksley, Warren
Cormack, Sir PatrickHayes, Jerry
Corston, JeanHeald, Oliver
Cran, JamesHeathcoat-Amory, David
Cummings, JohnHendry, Charles
Cunningham, Jim (Covy SE)Hicks, Robert
Currie, Mrs Edwina (S D'by'ire)Higgins, Rt Hon Sir Terence
Hill, James (Southampton Test)Neubert, Sir Michael
Hogg, Rt Hon Douglas (G'tham)Newton, Rt Hon Tony
Hordern, Rt Hon Sir PeterNicholls, Patrick
Howarth, Alan (Strat'rd-on-A)Nicholson, David (Taunton)
Howell, Rt Hon David (G'dford)Nicholson, Emma (Devon West)
Hoyle, DougNorris, Steve
Hughes, Robert G (Harrow W)O'Hara, Edward
Hughes, Simon (Southwark)O'Neill, Martin
Hunt, Rt Hon David (Wirral W)Onslow, Rt Hon Sir Cranley
Hunt, Sir John (Ravensbourne)Oppenheim, Phillip
Hunter, AndrewOttaway, Richard
Hurd, Rt Hon DouglasPage, Richard
Jack, MichaelPatnick, Sir Irvine
Jackson, Robert (Wantage)Pattie, Rt Hon Sir Geoffrey
Jenkin, BernardPawsey, James
Jessel, TobyPeacock, Mrs Elizabeth
Jones, Barry (Alyn and D'side)Pickles, Eric
Jones, Gwilym (Cardiff N)Pike, Peter L
Jones, Robert B (W Hertfdshr)Powell, William (Corby)
Key, RobertPrimarolo, Dawn
Khabra, Piara SRendel, David
King, Rt Hon TomRichards, Rod
Kirkhope, TimothyRiddick, Graham
Kirkwood, ArchyRobathan, Andrew
Knapman, RogerRoberts, Rt Hon Sir Wyn
Knight, Mrs Angela (Erewash)Robertson, Raymond (Ab'd'n S)
Knight, Greg (Derby N)Robinson, Mark (Somerton)
Knight, Dame Jill (Bir'm E'st'n)Roe, Mrs Marion (Broxbourne)
Knox, Sir DavidRoss, William (E Londonderry)
Kynoch, George (Kincardine)Rowe, Andrew (Mid Kent)
Lait, Mrs JacquiRumbold, Rt Hon Dame Angela
Lamont, Rt Hon NormanRyder, Rt Hon Richard
Lang, Rt Hon IanSackville, Tom
Lawrence, Sir IvanSainsbury, Rt Hon Sir Timothy
Legg, BarryShaw, David (Dover)
Leigh, EdwardShaw, Sir Giles (Pudsey)
Lennox-Boyd, Sir MarkShephard, Rt Hon Gillian
Lidington, DavidShepherd, Colin (Hereford)
Lightbown, DavidShepherd, Richard (Aldridge)
Lilley, Rt Hon PeterShersby, Michael
Lloyd, Rt Hon Sir Peter (Fareham)Simpson, Alan
Lord, MichaelSims, Roger
Loyden, EddieSkinner, Dennis
Luff, PeterSmith, Chris (Isl'ton S & F'sbury)
Lyell, Rt Hon Sir NicholasSmith, Sir Dudley (Warwick)
Lynne, Ms LizSmyth, The Reverend Martin
McAllion, JohnSpeed, Sir Keith
McAvoy, ThomasSpencer, Sir Derek
MacGregor, Rt Hon JohnSpicer, Sir James (W Dorset)
MacKay, AndrewSpicer, Michael (S Worcs)
Maclean, DavidSpink, Dr Robert
McLoughlin, PatrickSpring, Richard
McNair-Wilson, Sir PatrickSproat, Iain
Madden, MaxSquire, Robin (Hornchurch)
Maddock, DianaStanley, Rt Hon Sir John
Madel, Sir DavidSteel, Rt Hon Sir David
Maitland, Lady OlgaSteen, Anthony
Malone, GeraldStephen, Michael
Mandelson, PeterStern, Michael
Mans, KeithStrang, Dr. Gavin
Marland, PaulStreeter, Gary
Marlow, TonySumberg, David
Marshall, David (Shettleston)Sweeney, Walter
Marshall, John (Hendon S)Sykes, John
Marshall, Sir Michael (Arundel)Taylor, Mrs Ann (Dewsbury)
Martin, David (Portsmouth S)Taylor, Ian (Esher)
Marttew, EricTaylor, John M (Solihull)
Mates, MichaelTaylor, Matthew (Truro)
Meale,AlanTemple-Morris, Peter
Merchant, PiersThompson, Sir Donald (C'er V)
Michie, Mrs Ray (Argyll & Bute)Thompson, Patrick (Norwich N)
Mitchell, Sir David (NW Hants)Thornton, Sir Malcolm
Moate, Sir RogerThurnham, Peter
Monro, Sir HectorTouhig, Don
Montgomery, Sir FergusTownsend, Cyril D (Bexl'yh'th)
Mudie, GeorgeTredinnick, David
Trotter, NevilleWhittingdale, John
Twinn, Dr IanWicks, Malcolm
Tyler, PaulWiddecombe, Ann
Vaughan, Sir GerardWiggin, Sir Jerry
Viggers, PeterWilkinson, John
Walden, GeorgeWilletts, David
Walker, Bill (N Tayside)Winterton, Mrs Arm (Congleton)
Wallace, JamesWinterton, Nicholas (Macc'f'ld)
Ward, JohnWise, Audrey
Wardle, Charles (Bexhill)Wood, Timothy
Waterson, NigelYoung, Rt Hon Sir George
Watson, MikeTellers for the Noes:
Wells, BowenMr. Michael Bates and
Whitney, RayMr. Andrew Mitchell.

Question accordingly negatived.