The Scottish Government has produced three proposals with draft legislation to change the criminal justice system in Scotland. The first is to abolish the verdict of "not proven". In criminal trials, there have been three possible outcomes since the 17th century – “guilty”, “not guilty”, and “not proven”. The general perception among the public is often that a "not proven" verdict suggests a judge or jury believes the accused person is guilty, but does not have sufficient evidence to convict. Critics of the “not proven” verdict also say it can stigmatise an accused person by appearing not to completely clear them, and that it can fail to provide closure for victims. However, some legal experts believe it can offer additional protection to an accused person by helping to ensure that they will not be convicted if the jury has any doubts.

And the Law Society of Scotland has warned there could be an increase in miscarriages of justice if “not proven” is scrapped. A study that was carried out in 2019 found that removing the not proven verdict might incline more jurors towards a guilty verdict in finely balanced trials.

The second change is that the number of jurors in criminal trials is to be reduced from 15 to 12, which would bring Scotland into line with England. At least 8of the 12 jurors will need to agree that the accused is guilty for them to be convicted, rather than the current simple majority of 8 out of 15.

The third proposed change is that rape and attempted rape trials should be held without a jury, and a single judge would decide whether or not the accused is guilty. The Scottish government tried to introduce judge only, or juryless trials during the Covid pandemic. But there was such an outcry, the plan had to be scrapped. The Scottish Government says that the right to a fair trial does not necessarily mean the right to a jury trial. In fact in 2019-20 just 16% of criminal cases were heard by a jury. 84% were less serious, and were dealt with by a single judge in the lower courts. The key factor behind this is conviction rates, which stand at around 88% for all crimes, but only 43% for rape and attempted rape. Lawyers who would normally act for the accused have protested, and are refusing to work on rape and attempted rape cases unless there is a jury.