Donald Finlay QC leading the van in defence of the peculiarly Scottish verdict of ‘not proven’ could hardly have wished for a better showcase than his present remit at Edinburgh High Court – that of defending Luke Mitchell on trial for the murder of his girlfriend Jodi Jones.
Today's front page in The Scotsman, as the jury retire to consider their verdict, has him proclaiming 'There is not a single piece of evidence' to link his client to the killings.
Given the evidence led, few would disagree with the general feeling that in Luke Mitchell we are dealing with a strange boy, one who tends to stretch the boundaries of the socially acceptable, indulging in practices which many find abhorrent.Neither is he big on emotion, a deep and, some might say, disturbed boy who is destined always to be an outsider. But these facts, coupled with a very thin plea for ‘specialist knowledge’ of the whereabouts of the body, and a shaky alibi, singularly fail to provide the chain of evidence from which only one conclusion – the guilt of the accused – can be drawn.
Given the nature of the case and the publicity generated prior to the trial, I would not be surprised if the jury feel under pressure to refrain from returning a not guilty verdict and perhaps not guilty is not quite right either. I feel that Luke Mitchell may well have killed Jodi Jones but ‘feelings’ of that nature have no place in the High Court where, not so long ago, Mitchell may well have been on trial for his life.The Crown have failed to reach the required burden of proof – that of ‘guilt beyond reasonable doubt’ and therefore only two verdicts are open to them. The case of Luke Mitchell is a timely reminder of why the ‘Not Proven’ verdict should be retained in Scots Law.
4 comments:
Having served on a jury which reluctantly acquitted a young man of rape, I wish that the "Not Proven" clause were part of English law too.
I've always understood the difference between not proven and not guilty is that NP means that the evidence against the accused is not completely convincing whereas NG means that the evidence may prove that the accused has broken the law but the jury does not agree that this necessarily means that a crime has been committed.
Or, to put it another way, the jury feel that they if they had been in the accused's position they would not believe that they were doing any criminal harm by behaving in the same way that led to the charge.
A perfect example, had it been tried in Scotland, would have been the case against Clive Ponting. There is no question that, according to the law, he had knowingly and deliberately breached the Official Secrets Act. Equally, there is no question that the jury considered that he had done the right thing and did not deserve to be convicted of a crime.
In my view, that is the correct spirit of the NG option. NP would have been appropriate if, for example, the prosecution had failed to convince the jury that Ponting had actually leaked confidential documents.
It seems to me that juries now tend to return verdicts of NG when they ought to return NP. That is a pity. We ought to emphasise the sensible distinction between failing to prove the facts of the charge beyond a reasonable doubt (Not Proven) and proving that law has been broken but the jury of the accused's peers do not accept that such a breach does them any harm (Not Guilty).
This is a valuable safeguard against bad legislation. It should not be lost.
Law is far too important to be left to lawyers and legislators.
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