In the trial regarding the death of our son, Barry McLean, there were originally three charges against the accused. These were: Murder; Assault; and Threatening behaviour with an offensive weapon.
During the proceedings charges two and three were dissolved allowing the jury to concentrate on charge one which was murder. The jury failed to identify that murder or even culpable homicide had been committed and returned with an acquittal which allowed the accused to walk free from the High Court. The current system failed and allowed two charges to be dissolved without any safety precautions being in place.
The Judge operates on the basis of a “Reasonable Doubt” about the jury’s verdict, the Perverse Acquittal provides a safety net for the Judge, although the judge’s word is final on the law and the jury’s word is final on the facts. This process would only be used by the judge when he/she thinks that the verdict is not just simply wrong, but actually perverse and has the power to intervene and forward the case to the High Court of Judiciary.
The Perverse Acquittal flow chart (published on the petition's page on the website) provides a safety net and clear route to be taken when the judge believes that the verdict delivered by the jury is fundamentally wrong, for example: irrational decision which is completely unsupported due to the amount of evidence provided by the Crown Prosecution Service and which has not included in the jury’s decision of the verdict to be delivered to the court. Sometimes the jury do not fully assess the information provided over the course of the trial, or there may be too much information which may cause confusion to jury member/s and lead to the wrong verdict being delivered to the court.
A flow chart showing the suggested process for dealing with pervers acquittals will be provided alongside this petition. The flow chart is easy to follow as it clearly indicates a clear route to be taken for the following:
• Guilty – Sentenced
• Not Guilty – a Judge may decide that the acquittal is perverse
• The verdict could then be referred to High Court of Judiciary for review
• If the High Court of Judiciary agrees with the referral – Retrial
• If the High Court of Judiciary does not agree with referral, the verdict stands.
The Justice & Social Affairs Research Unit has confirmed that both the Scottish Government and the Crown Office are not aware of any work which has been done in relation to the issue of Perverse Acquittal.
The Perverse Acquittal information and flow chart has been forwarded to the following persons: Lord Advocate (Frank Mulholland QC), Justice Committee (Margaret Mitchell).