Tag Archives: Scots Law

Just Because He Has Previous

The Scottish Law Commission has submitted a report which suggests that a fundamental principle of Scots Law is illogical and incoherent, and that it should be changed.


The principle being challenged is that the prosecution cannot use previous convictions to help prove their case against an accused person.

It is based on the belief that in order to ensure that the accused is given a fair trial, his innocence must be presumed until it can be proven otherwise. And the proof must be based on the specific facts of the specific offence.

However English Law differs from Scots Law in that it does permit the use of previous convictions as important explanatory evidence. The case of Peter Tobin has been cited in support of this change:

When Peter Tobin was on trial in England for the murder of Dinah McNicol, the jury were told that Tobin had been convicted for murdering Vicky Hamilton and this fact had been used as evidence to establish his behaviour patterns.

In Scots Law, this would not have been permissible evidence, despite the fact that it helped secure Tobin’s conviction in England. In some quarters, the feeling is that Scots Law needs to change to ensure that its laws are not preventing convictions that otherwise would have been made.

It is argued that how the accused behaved in the past can be relevant to whether he behaved in a similar way in relation to the offence with which he is charged today. In an important sense, this is correct.

People do naturally fall into particular patterns of behaviour, which have a tendency to recur; particularly patterns of behaviour that reflect deep psychological problems or extreme sociopathic preferences.

But I think it is difficult to understand how a past conviction could be used as evidence that the accused committed this particular offence today. Whilst a past conviction may suggest a psychological disposition to a certain type of behaviour, it does not prove that, on this occasion, this offence was committed by this individual.

Nor, as a matter of fact, does it prove a pattern of behaviour actually exists.

Unless, when the previous conviction was made, the existence of a pattern had been correctly established based on even earlier behaviour, the fact that the accused was convicted of an offence in the past must fall short of proving that the individual has a tendency to act in this way.

One instance of behaviour, which it may well have been, does not count as a pattern. Nor does it become a pattern by dint of being held up next to the current offence; it suggests the possibility of a pattern, but only if an assumption has already been made that the past offence was an instance of a behavioural disposition.

And in my view, this is precisely the prejudice that should not be allowed to creep in to our legal system. It would be too easy to make a mistake based on the assumption that if he has done it once, he is more likely to have done it twice.

Nor would it allow for the possibility that the previous conviction was incorrect and that a miscarriage of justice had occurred in the past.

It would be a disaster for our justice system if an individual, who was wrongly convicted in the past, yet was unable to prove his innocence afterwards, was nonetheless assumed to have committed this particular offence today, just because he has previous.

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An Embarrassing Milestone

Despite being the only individual convicted for the Lockerbie Bombing, Abdelbaset Ali Mohmed al Megrahi was released on compassionate grounds in 2009 by the Scottish Government.

Megrahi was released from prison almost 1000 days ago because he was suffering from terminal prostate cancer. But he has been kept alive by medication available in Libya, which is not available in the UK.

According to David Cameron, the Scottish Government’s decision to release Megrahi has therefore turned out to be the wrong decision, and an insult to the families of the 270 people murdered. And the Scottish Conservative Party Chief Whip, John Lamont, has weighed in to call it an ‘embarrassing milestone’ for the Scottish Government.

Many will agree with these comments. But opinion is divided. Some might consider these comments to be a rather crass attempt to deflect attention away from many of the unsavoury deals that are made in the complex game of international politics. Megrahi’s case is no different.

The very fact that Megrahi was convicted in the first place, despite crucial evidence apparently being withheld at the time, suggests that the need to find someone (anyone) to blame for the atrocity, was much more important than leaving the case unsolved.

Professor Robert Black, in an interview with The Scotsman newspaper in 2005, called it “the most disgraceful miscarriage of justice in Scotland for 100 years”.

Whether or not Megrahi was guilty, a scapegoat had to be found. But the fact that he was subsequently released on compassionate grounds is a reminder of how far this, and previous Governments, have been prepared to go to make deals that served their own private interests and agendas.

The Scottish Government claims to have made the decision according to the principles of Scots Law. If due process was followed, then fair enough. But whether the medical grounds for his release were sound is another question entirely.

Something doesn’t feel right about the whole situation.

The circumstances surrounding Megrahi’s release come dangerously close to either implying that a mistake was made in the original conviction, or that serious pressure was being exerted from other countries to ensure that, come what may, he was not left to die in a Scottish prison.

Either way, it was a huge gamble for the Scottish Government to take.

Despite Cameron’s public criticism of the decision, 1000 days later, I find it quite difficult to believe that the UK Government would not have intervened much earlier in the process, had it strongly opposed Megrahi’s release at the time.

It is just too convenient to argue that the decision was outside the jurisdiction of the UK Government and that it had no choice but to accept that it was a decision solely for the Scottish Government to make. I am sure that the UK Government would have found a way of blocking the move, had it so wished.

And now that the core assumption on which the gamble was predicated has not transpired, politicians throughout the country are lining up to criticise and ridicule the Scottish Government’s decision.

But the ‘embarrassing milestone’ is not so much that Megrahi has not yet died from his terminal illness.

The embarrassing milestone is that almost one quarter of a century later, the truth about this case has still not come out, for whatever reason, and the wider network of people behind the bombing have still not been brought to justice.

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“That bastard verdict, not proven”

Scots Law is quite unique in that it allows three possible verdicts as the outcome of a criminal trial: ‘guilty’, ‘not guilty’ and ‘not proven’. The ‘not proven’ verdict has been in Scots Law for over 200 years and has its roots in a differently structured legal system, in which juries found the facts ‘proven’ or ‘not proven’.

Today the ‘not proven’ verdict remains in Scots Law as a third choice between ‘guilty’ and ‘not guilty’ and is typically used in cases where the jury cannot say, beyond reasonable doubt, that the accused is guilty, but where they do not want to say that he is innocent either.    

So the idea is this: if the guilt of the accused cannot be proven beyond all reasonable doubt, but the jury does not want to find the accused ‘not guilty’, because doing so would not accurately describe their belief about the accused, or doing so may be deemed to have unpalatable moral connotations, the ‘not proven’ verdict is usually thought the better (easier) option.  

The ‘not proven’ verdict is essentially an acquittal, and for all intents and purposes it has the same legal consequences as ‘not guilty’. It is no wonder that Sir Walter Scott called it ‘that bastard verdict, not proven”. It is a half-way house between ‘guilty’ and ‘not guilty’, constructed from properties and features of both and perhaps not quite appearing to be legitimate in its own right. It effectively enables juries to express their doubts about the evidence presented against the accused, but in a manner that makes them feel somewhat easier about acquitting him.    

An individual is either guilty or not guilty of committing a crime. The fact that an event occurred as described can be either proven or not proven. Being unable to prove that an event occurred as described does not mean that the individual is not guilty, it just means that the facts have not been presented in such a manner that they prove beyond all reasonable doubt that the individual is guilty.

Arguably, it can be difficult in certain circumstances to judge with absolute certainty that an event occurred as described, and rather than find someone guilty of a crime for which there is insufficient factual evidence, it may be easier to fall back on the ‘not proven’ verdict.

However, when an event occurs in front of thousands of witnesses, and is captured live on television, the evidence surely begins to mount. And when an individual admits to being guilty when questioned in court, surely the facts speak for themselves and the outcome should be obvious? Not in Scotland, where lunacy is allowed to prevail. That bastard verdict, indeed.

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