JUSTICE is rarely served by political populism. If it was, we’d never have abolished hanging in murder trials in 1965. Scottish attitude surveys repeatedly reveal if you held a referendum tomorrow on whether to bring back the death penalty it would be a vote winner.

No serious politician has suggested the revival of the death penalty. And yet political populism is back with a vengeance in the run-up to the Holyrood elections.

Promises of laptops for all kids – one year after lockdown when they could have used them. Double money for this and more for that. Promises of doing things that have never been delivered in over two decades of devolution.

Repeated failures in relation to education, health, housing and tackling poverty are kicked into the long grass as “future ambitions”. Much easier to do a bit of pork barrel politics and populism.

Which brings us to last week’s calls for the abolition of the not proven verdict. The Tories and Greens are for scrapping it. The SNP say it has to go too.

The reasoning of Nicola Sturgeon was discombobulating. She now supported its demise because of the “mounting evidence of a relationship between not proven and low conviction rates for rape and sexual assault cases”.

What does this even mean? You don’t trust the verdicts of our jury system? You think people who were acquitted of criminal charges should have been found guilty? That it’s time to change our legal system to jail groups of people politicians don’t like?

Whatever the logic, last week’s calls were backward facing and devoid of principle. You might as well reform our system of justice by doing a Twitter poll or asking folk on TikTok to express a view by video.

There is no quick or easy fix to the complexities of life. You jettison the presumption of innocence in criminal cases at the peril of eradicating justice itself.

The not proven verdict is unique to Scots law and is said to have emerged around 1660 when juries refused to convict on prosecutions brought under unpopular or repressive statutes.

The late Professor Ian Willock of Dundee University noted that from the 17th century Scottish juries would find charges either proven or not proven. The inference of guilt or innocence was left to the judge.

Professor Willock attributed this approach to the 1662 case of Marion Lawson who was accused of murdering a newborn child; the jury was unwilling to convict on the evidence presented.

A criminal trial is only concerned with the evidence. The purpose of a trial is to establish whether the Crown’s case is proved beyond a reasonable doubt. Its function is not necessarily to provide an opportunity for the accused to establish his or her innocence.

The not proven verdict has been subject to constant debate over the centuries. Hard cases make bad law; and Scotland’s legal history is full of examples of cries for reform whenever someone is acquitted for want of evidence.

The not proven verdict was examined comprehensively by the Thomson Committee in 1975 and the Scottish Office “Firm and Firm” white paper in 1994. Both examinations concluded that not proven should be retained.

Back in 1994, I interviewed the late Lord McCluskey – then a sitting High Court judge – on the controversy of our third verdict. Lord McCluskey lambasted the then government for its “shallow and slapdash” approach to the reform of Scots law. I hesitate to think what he would have thought of the position last week.

Lord McCluskey suggested that instead of asking a jury whether the accused was guilty or not guilty the judge should ask “has the Crown proved the case?” A proved case would result in a pronouncement of guilty, while a not proved case would result in acquittal.

It’s important to remember our juries of 15 people can convict on an 8:7 majority, whereas in England and the USA a unanimous decision is required from a jury of 12. In 1967, English law was changed to allow majority jury verdicts of 11:1 or 10:2.

If not proven was abolished, we couldn’t keep our system of simple majority. The Scottish Government’s own jury research in 2019 confirmed that an Anglicisation of our system “might incline more jurors towards an acquittal”.

The research found, “there were no statistically significant differences in the number of guilty versus acquittal verdicts returned between 12 and 15 person juries, two-verdict and three-verdict juries, or between juries asked to reach a simple majority and those asked to reach a unanimous verdict”.

As I’ve said there are no quick fixes. Be careful what you wish for. Politicians would do well to reflect on the practice of calling for substantial law reform on the back of a couple of tweets to garner votes on May 6.