Meeting of the Parliament (Hybrid) 15 December 2021
I give this speech on behalf of my colleague, Claire Baker MSP, who is unable to contribute because of technical difficulties. I also take this opportunity to thank the Presiding Officer and members for their indulgence.
I am pleased to contribute to this afternoon’s debate. The motion is focused on the removal of the not proven verdict—a position that I previously supported when my former colleague Michael McMahon promoted a member’s bill on the matter. The debate allows for some broader reflection on related issues.
The arguments that were made in 2016 for removing the not proven verdict remain today. Rape Crisis Scotland states that almost a quarter of trials for rape or attempted rape result in a not proven verdict. The verdict is shown to be used disproportionately in rape and attempted rape cases. In 2019-20, 44 per cent of acquittals in rape and attempted rape cases were based on the not proven verdict, in comparison with 20 per cent for overall crime.
There is evidence that juries find the verdict to be confusing. There is the misunderstanding that it is in some way different from a not guilty verdict, or that it provides a third verdict. Rape Crisis Scotland has described it as “an easy out” for juries that results in guilty people walking free. It also results in people who receive the verdict still being regarded with suspicion, as though they have in some way evaded the jury.
I welcome the consultation, but, given that it is more than five years since the then Justice Committee worked on the previous bill, we can anticipate the debate and the positions that will likely be taken. At that time, the Justice Committee described the verdict as “living on borrowed time”. The Government should conclude the consultation, but it should realise that change also requires leadership and that there are parliamentary consensus and manifesto commitments about delivering on the matter.
However, I do not underestimate how difficult the matter is. The briefing from the Law Society of Scotland reminds us that the principles of our system are the presumption of innocence, respect for the rights of all involved and minimisation of the risk of wrongful conviction.
However, I argue that there is, in cases of rape and attempted rape, an imbalance that fails women and girls and denies them justice. In Scotland, only 43 per cent of rape and attempted rape cases result in a conviction, compared with the overall conviction rate of 88 per cent—a figure that is more than double the level of successful convictions for rape and attempted rape.
In 2019-20, 2,343 rapes and attempted rapes were reported to the police—we must remember that it is an underreported crime—but there were only 300 prosecutions and just 130 convictions, which is surely not acceptable. Even though we are talking about a crime that is, overwhelmingly, committed against women by men, that causes extreme distress and trauma, and which can have long-lasting effects on people, it is a crime that is extremely difficult to prosecute. Even when a case is prosecuted, it is difficult to get a conviction.
Rape is a crime that is often not even recognised as a crime, and it is one in relation to which, for the perpetrator, there is a reasonable likelihood that there will be no consequences. We have seen women taking their cases to the civil courts in order to gain justice and have the crime acknowledged, but that is not the appropriate route for the severity of the crime. Following the case of Denise Clair, who bravely waived her anonymity to speak about her experience, I have raised concerns about women having to resort to use of the civil courts.
In 2018, Miss M successfully sued Stephen Coxen in a Scottish civil court, with the sheriff saying that the evidence against Coxen was “compelling” and “persuasive”. That followed a not proven verdict in 2016. It was the first time that someone who had been cleared in a criminal trial was subsequently sued.