Not Proven

For nearly three hundred years this was true, and much writing about Scots law — including a great deal still circulating online — treats "not proven" as a permanent, defining feature of the system alongside "guilty" and "not guilty." It no longer is. The Scottish Parliament passed the Victims, Witnesses, and Justice Reform (Scotland) Bill in September 2025; it received Royal Assent on 30 October 2025; and "not proven" became unavailable as a verdict in new criminal trials from 1 January 2026. Any source describing Scotland's "three verdicts" as current, uncaveated fact is describing a system that no longer exists for new cases.

For a legal-history topic that has genuinely changed law within the last year, the series' three-tier framework is especially important here. Settled law includes the fact and date of abolition (Royal Assent 30 October 2025, effective for new trials from 1 January 2026) and the change to the jury conviction threshold — both confirmed directly by the Scottish Government's own published announcement and corroborated by independent legal and press reporting. Traditional accounts include the standard historical narrative that the verdict emerged from the 1728 Carnegie of Finhaven case and that juries asserted an "ancient right" to acquit against the weight of proven facts — an explanation repeated by near-contemporary commentators (Hume, Arnot) and accepted by most modern historians, but reconstructed from historical record rather than documented in a single contemporaneous legal ruling explaining the shift in those terms. Contested or unverified claims include the specific attribution of the "bastard verdict" nickname to Sir Walter Scott — frequently repeated in modern press coverage and even in the 2025 abolition's own media coverage, but which this article flags, as instructed, as traditional/disputed rather than confirmed against a definitively located primary-source citation.

What "Not Proven" Actually Was

For most of its history, Scottish criminal trials offered juries three possible verdicts rather than the two familiar from most other common-law systems: guilty, not guilty, and not proven. Both "not guilty" and "not proven" functioned as full acquittals with identical legal effect — an acquitted person faced no conviction and no further criminal consequence either way — but they carried very different social and reputational connotations. "Not guilty" was widely understood as an affirmative statement that the accused had not committed the offence; "not proven" was understood, often uncomfortably, as meaning the prosecution had failed to prove its case to the required standard, without clearly affirming the accused's innocence. This ambiguity was exactly what made the verdict so controversial: critics argued it left acquitted people under a lingering cloud of suspicion, while complainers — particularly in sexual offence cases, where "not proven" verdicts were disproportionately common — experienced it as neither vindication nor a clear rejection of their account.

Origins: The Carnegie of Finhaven Case and the "Ancient Right"

The verdict's emergence is traditionally traced to the 1728 trial of Carnegie of Finhaven for killing the Earl of Strathmore. Carnegie had, on the facts, undoubtedly killed the Earl, but his defence counsel, Robert Dundas, argued that the jury retained an underlying, longstanding right to decide the ultimate question of guilt for itself rather than being confined to narrow factual findings that a judge would then convert mechanically into a legal verdict. The jury acquitted Carnegie outright, reasserting what contemporaries described as an "ancient right" of juries to determine guilt broadly, not merely specific facts. Historians including the institutional criminal-law writer David Hume (the advocate, not the philosopher — see this series' Institutional Writers card for the distinction) and the 18th-century lawyer and writer Hugo Arnot connected this shift to the fraught political environment of earlier Scottish criminal trials, particularly the prosecution of Covenanters, where juries sympathetic to defendants effectively used narrow verdicts to avoid being forced into convictions they found politically or morally unacceptable. Over the following decades, "not proven" solidified as the formal middle option available whenever a jury was unwilling to affirmatively acquit but equally unwilling to convict.

The Jury System It Operated Within

Historically, Scottish criminal juries in solemn (jury) trials comprised 15 members — already unusual by the standards of most other common-law jurisdictions, which typically use 12 — and required only a simple majority (8 of 15) to convict. This comparatively low conviction threshold was frequently cited by critics as part of a wider pattern of concern about Scottish jury verdicts, and it became directly entangled with the "not proven" abolition debate: reformers and opponents alike recognised that removing the third verdict option without adjusting the conviction threshold could make convictions easier to secure than intended, since jurors who might previously have compromised on "not proven" would now be forced to choose between guilty and not guilty only.

The "Bastard Verdict" Nickname — A Flagged Attribution

The verdict's most famous nickname — "that bastard verdict" — is almost universally attributed in modern press and legal commentary to the novelist and advocate Sir Walter Scott, usually dated to 1827. This attribution is repeated extremely widely, including in substantial press coverage of the 2025 abolition itself. However, consistent with this article's instruction to treat it carefully, it should be flagged as a traditional/disputed attribution rather than a fully primary-source-verified quotation: readers should understand that while the Scott attribution is the standard account repeated across legal-historical sources, this article has not independently traced it to a definitively located, unambiguous primary document, and some caution in treating it as settled fact is appropriate.

The Long Road to Abolition

Calls to abolish "not proven" are not new. Reform campaigns and parliamentary proposals date back to at least the 1960s, driven by persistent concerns on two fronts: that the verdict left acquitted defendants under unfair lingering suspicion without ever delivering a clean acquittal, and that it was disproportionately returned in cases — especially sexual offence prosecutions — where complainers experienced it as a particularly unsatisfying, ambiguous outcome that neither convicted the accused nor affirmed the complainer's account. By 1999, roughly a third of all jury acquittals in Scotland were "not proven" rather than "not guilty," a statistic frequently invoked in reform debates as evidence the verdict was being used as a routine compromise rather than a rare, specific tool. Even so, abolition was not straightforward politically: a 2016 parliamentary vote rejected removing the verdict by a wide margin (80 to 28), reflecting genuine division — including within the legal profession — about whether scrapping "not proven" would actually improve fairness, or whether it would simply shift the same underlying uncertainty onto a binary choice between guilty and not guilty without resolving the deeper problem.

The 2025 Reform and What Actually Changed

The Victims, Witnesses, and Justice Reform (Scotland) Bill passed the Scottish Parliament on 17 September 2025 and received Royal Assent on 30 October 2025, becoming the Victims, Witnesses, and Justice Reform (Scotland) Act 2025. From 1 January 2026, "not proven" is no longer available as a verdict in new Scottish criminal trials, leaving only guilty and not guilty. Crucially, the reform did not stop there: recognising the concern that removing the middle option could make convictions too easy to secure on a simple majority, the Act simultaneously raised the jury conviction threshold from a simple majority (8 of 15 jurors) to a two-thirds majority (10 of 15 jurors). Scotland's Cabinet Secretary for Justice, Angela Constance, framed the verdict as "widely misunderstood" and lacking any statutory definition, while noting its tendency to leave "a lingering stigma for the accused" and to risk public confidence in the justice system more broadly. The wider Act also includes provisions enabling more detailed research into jury deliberations and reforms addressing the influence of so-called "rape myths" on verdicts, reflecting the reform's origins partly in long-running concerns about sexual offence prosecutions specifically.

Live Debate: Did the Reform Go Far Enough, or Too Far?

Abolition did not end the controversy — it relocated it. The Law Society of Scotland and other legal commentators have publicly described the package of changes as sending the criminal justice system into "uncharted waters," reflecting genuine, current professional disagreement about whether raising the jury threshold to two-thirds adequately compensates for removing the middle verdict, or whether the reform package as a whole has been adequately tested before implementation. Some practitioners worry the higher threshold could make some convictions harder to secure than intended, potentially undermining one of the reform's stated goals (improving outcomes in sexual offence prosecutions); others argue the change still does not go far enough in addressing underlying concerns about corroboration requirements and conviction rates. This is a live, unsettled debate in Scottish legal and political circles as the new system beds in, not a resolved question — and any account suggesting unanimous professional or political agreement on the reform's adequacy would be inaccurate.

• Scotland used 15-person criminal juries, not the 12-person juries familiar from England, the US, and many other common-law systems — a distinctive feature that remains unchanged even after the "not proven" reform.
• At its peak documented use, around a third of all Scottish jury acquittals were "not proven" rather than "not guilty" — suggesting it was functioning as a routine compromise verdict, not a rare exception.
• The verdict's traditional origin story involves a real 1728 murder case — the trial of Carnegie of Finhaven for killing the Earl of Strathmore — not an abstract legal reform.
• A 2016 Scottish Parliament vote rejected abolishing "not proven" by a wide margin (80–28), only for the Parliament to abolish it less than a decade later in 2025.
• The nickname "that bastard verdict," widely attributed to novelist Sir Walter Scott, is one of the most repeated phrases in Scottish legal history — yet this article flags that attribution as traditional rather than fully primary-source confirmed.
• Scotland's abolition of "not proven" came bundled with a rise in the jury conviction threshold from a simple majority (8 of 15) to two-thirds (10 of 15) — a direct legislative response to fears that scrapping the middle verdict would make convictions too easy.
• The reform Act also includes provisions allowing more detailed research into how Scottish juries actually deliberate — a rare and legally significant window into jury decision-making that most jurisdictions tightly restrict.
• The Law Society of Scotland publicly described the bundled reforms as sending the system into "uncharted waters" — a striking statement of professional uncertainty about a change already enacted into law.

• Outdated, not current: "Scotland currently has three criminal verdicts: guilty, not guilty, and not proven." Correct: This was true for nearly three centuries but is no longer accurate for new trials from 1 January 2026, following the 2025 Act.
• Traditional, not fully verified: "Sir Walter Scott definitely coined the term 'that bastard verdict' in 1827." More accurate: This attribution is widely and consistently repeated across legal and popular sources, but should be treated as a traditional attribution rather than a fully primary-source-confirmed fact.
• Oversimplified: "Not proven and not guilty were legally different outcomes." Correct: They had identical legal consequences (full acquittal); the difference was social and reputational, not a difference in formal legal effect.
• Disputed, not settled: "Everyone in the Scottish legal profession supports the 2025 reform package." Correct: The Law Society of Scotland and other commentators have raised significant, ongoing concerns about the combined effect of abolishing the verdict and raising the jury conviction threshold.