'Not proven' verdict had its place, but must be binned in modern Scotland

As we have seen, juries can deliver a verdict of guilty and the accused becomes the convicted, or they can say “not guilty” or “not proven” and the accused is acquitted and walks free. That’s supposedly without a stain on their character, though it has long been argued that “not proven” really means that the jury doesn’t think you are entirely innocent, but they also do not think the Crown proved the case against you beyond a reasonable doubt – a huge consideration in bygone days when being found guilty got you hanged. No wonder Sir Walter Scott called it the “bastard verdict”.

It is the history of the verdict which I find fascinating and which is leading me to my conclusion later in this column. Remember that juries up until 1728 were expected to find charges “proven” or “not proven” and it was only when one jury found an accused “not guilty” – James Carnegie of Finhaven, who accidentally killed the Earl of Strathmore in that year – that the verdicts began to change until “guilty”, “not guilty” and “not proven” became the three standard verdicts.

The history of “not proven” is undoubtedly controversial. I went into some detail about the infamous Ardlamont Mystery of 1893 in which the accused, Alfred John Monson, was acquitted by a “not proven” verdict on the charge of murdering Lieutenant Cecil Hambrough, even though there was ample evidence of Monson’s guilt. As I showed last week, the jury did not know that Hambrough had an affair with Monson’s wife or else the verdict might well have been guilty.

Sex was at the core of the most famous or infamous trials that ended in a “not proven” verdict. I wrote extensively about the case of Madeleine Smith in 2017, and I would urge readers with internet access to read my full account of the events of 1857 – it was published on September 26, 2017, and is easily found using the National’s search engine.

READ MORE: Not proven verdict: Miss M speaks out on proposed Scots Law change

I have subsequently carried out further research into the Smith case, while it continues to intrigue historians, lawyers and the general public. Donald Findlay QC also gave a series of lectures and writings in which he used the Smith case to back the retention of “not proven”, pointing out that Scotland almost uniquely has a 15-person jury and an accused can be convicted on a simple majority – he claimed he would get a lot more “not guilty” verdicts if that was the only acquittal verdict.

I am sure Findlay would have won at least a “not proven verdict” for Smith. Here’s a brief summary of what happened in Glasgow in 1857.

Emile L’Angelier, a poor apprentice nurseryman and warehouseman born in Jersey of French extraction, died from arsenic poisoning on March 23 in that year. He and Madeleine Smith, daughter of a wealthy architect, had engaged in a passionate affair over three years until she agreed to marry a rich man, William Minnoch. The affair continued even after that agreement, L’Angelier trysting with her in the grounds of their large home at Rhu near Helensburgh or in the family’s townhouse in Glasgow.

Now 22, Smith was soon charged with murder and attempted murder – L’Angelier had suffered two previous arsenic poisonings – and the sensational trial proceeded at the High Court in Edinburgh from June 30. The Crown argued that Smith poisoned L’Angelier after he threatened to go public with their correspondence, described as “lascivious”. The National Records of Scotland has preserved the trial records and those letters, one of which reads: “My nightdress was on when you saw me. Would to God you had been in the same attire. We would be happy.”

ON another occasion she wrote: “If we did wrong last night it was the excitement of our love. Tell me, pet, were you angry at me for allowing you to do what you did – was it very bad of me? We should, I suppose, have waited till we were married.”

Women enjoying sex was not the done thing in Victorian Scotland and the newspapers took great delight in publishing every salacious detail. There was also no doubt that Smith had bought arsenic, and could have administered it to him in a cup of chocolate or cocoa that she often gave him when meeting on cold nights.

Crucially, however, she stated that she had not met L’Angelier any time in the three weeks of his poisonings, and the Crown could not prove otherwise.

Her defence counsel John Inglis mounted a brilliant defence based on the fact that the Crown had no corroboration of the poisoning and had failed to place Smith and L’Angelier together on the night of his killing. I had not appreciated in 2017 the significance of the forensic evidence, or lack of it – the postmarks on the envelopes became a matter of huge importance in the courtroom and it transpired that the police had stuffed the letters into the wrong envelopes, thus wiping out what might have been conclusive evidence.

Inglis also showed that L’Angelier was known to give himself doses of arsenic, and thus suggested that the victim had perhaps committed suicide. In one letter he had written: “I never was so unhappy in my life. I wish I had the courage to blow my brains out.”

John Inglis, later judge Lord Glencorse and the Lord President of the Court of Session, sowed so many seeds of doubt in the jury’s minds that they found Madeleine Smith not guilty on the attempted murder and not proven on the murder charge. The public in court cheered to the echo.

Smith moved south and married a teacher of drawing, becoming Mrs Lena Wardle. One of her neighbours was the writer W Somerset Maugham. He wrote in 1919 of a meeting with her 12 years previously: “My next door neighbour was a very quiet prim old lady, becoming acquainted with her, I gradually connected her with the heroine of a celebrated murder case which had excited the world 50 years before. She had been tried and found not guilty but the evidence was so damning that, notwithstanding the verdict, the general opinion was that she had in point of fact committed the crime. She discovered that I had found out her identity and presently said to me, ‘I suppose you want to know whether I did it or not. I did, and what’s more, if it were to happen again, I’d do it again’.”

The Smith family was socially destroyed by the scandal, and Smith herself split up with Wardle after which she moved to New York and married an elderly gentleman named Sheehy who predeceased her. Madeleine Smith died of kidney disease in New York on April 12, 1928, at the age of 92. Her gravestone says simply Lena Sheehy.

THERE have been numerous other highly controversial “not proven” verdicts, but the one which convinced most people recently that the verdict had to go was that of Francis Auld’s killing of Amanda Duffy in 1992. The mutilated body of the 19-year-old student was found on waste ground in Hamilton, and Auld was soon a suspect as he had been seen with her earlier that night.

The details of that homicide are still painful to read, but the jury seems to have been convinced by Auld’s account that he had left Amanda with a man called Mark – no such suspect was ever found. They also seemed unconvinced by forensic evidence that a bite mark on Amanda’s breast matched the dentistry of Auld.

For whatever reason, the jury by a majority decided that the case against Auld was not proven. He walked free from court, but in 1995, Amanda’s parents Joe and Kathleen sued Auld in the civil courts where the standard of proof is lower. Auld, who had moved to England, did not contest the case and the Duffys won a £50,000 payout.

Later the Crown Office attempted to have Auld re-tried after the 2011 ending of the so-called double jeopardy rule which meant suspects could only be tried once for the same offence. Judges ruled against the re-trial, however, and Auld died in 2017 of pancreatic cancer.

There have been many other “not proven” controversies, the most bizarre of which was when the then Celtic manager Neil Lennon was attacked by Hearts fan John Wilson in full view of thousands inside Tynecastle stadium and millions watching on television in 2011. The prosecution had argued for a conviction of assault aggravated by religious prejudice but Wilson denied that element and the jury found the assault charge not proven. He was found guilty of breach of the peace, however, and was sentenced to eight months’ imprisonment.

I have mentioned just four not proven cases, but there are many, many more. But what lessons can we learn from the history of the verdict?

At the start of this short series I promised to give my take on the verdict and whether or not it should be abolished. I hope the history I have written about over the past three weeks has helped you make up your own mind.

I recently read a plea for retaining the verdict written by Tony Lenehan, the estimable president of the Scottish Criminal Bar Association, but I’m going to disagree with him.

He wrote: “The argument behind abolishing the ‘not proven’ verdict must be that juries can’t be trusted to convict the guilty. They’re letting people off with ‘not proven’ when they should be finding them guilty. If we remove that option then they’ll be forced to find them guilty.

“Leaving aside how insulting that view is of the general population’s mental powers, where is the sense in it?”

READ MORE: The 'Not Proven' trial that served as inspiration for the Sherlock Holmes books

He adds: “There is no objectively justifiable or rational sense in abolishing the verdict. Where we presume people to be innocent until proven guilty, and the evidence does not prove guilt, then limiting the range of expression of an acquittal verdict cannot serve a legitimate purpose. Those who advocate it must hope to blur the lines, lower the bar and thus force more guilty verdicts where the evidence didn’t justify it.

“If I’m right that it is the politicians’ awe of the power of victims’ organisations, and the perceived treasure trove of ‘emotion only’ voters that funds this abolition, then it is the duty of reasonable, rational people to look beyond the emotional attractions on offer and use good sense to reach decisions.”

Our politicians seem set to try and cancel the “not proven” verdict, but it will be opposed by the high and mighty in the Scottish legal system.

History has shown us that “not proven” had its place in the Scottish criminal justice system, but there are reasons for believing that it is out of date. Had the science of ballistics been more advanced in 1893, I have no doubt that Alfred Monson would either have been convicted or wholly cleared of causing the death of Cecil Hambrough. Had forensic science not been in its infancy in 1857, I have no doubt that Madeleine Smith would have hanged for the murder of her former lover.

It is the vast improvement in detection of crime, especially with DNA analysis, and the fact that double jeopardy no longer applies – if new evidence is found then an accused can be re-tried – which leads me to say that we should consign “not proven” to the dustbin of history.