Meeting of the Parliament (Hybrid) 15 December 2021
I refer members to my entry in the register of members’ interests.
The Scottish legal system takes great pride in its reputation—specifically in elements that mark it as being different, including the not proven verdict and the requirement for corroboration. Those are held up as iconic elements of an historic system, and are—according to some—worthy of protection. However, not everyone shares that view, and it is often those whom the system hears from least, but whom it should be designed to protect, who argue most ardently for reform.
That is exactly the case with the not proven verdict. That historical accident remains in our system as a legacy from when juries adjudicated specific facts rather than assessed guilt or innocence. Organisations that support the complainers—or victims and survivors of crime—as well as victims and survivors themselves have been telling us for years that the not proven verdict is deeply problematic.
The not proven verdict is reached disproportionately in rape and attempted rape cases. In 2019-2020, the overall incidence of not proven verdicts was 1 per cent. Among jury trials it was 5 per cent, but in rape or attempted rape trials it was 25 per cent. We know that it accounts for nearly double the amount of acquittals in rape and attempted rape cases compared with acquittals for all crimes and offences.
So, why does that matter? The not proven verdict has exactly the same impact as a not guilty verdict and can be as distressing—if not more so—for the complainer as a not guilty verdict. The not proven verdict has no legal consequences for the accused. It is reached disproportionately in serious sexual offence cases. Given the already woeful prosecution rates for such offences, that means that women tend to bear the brunt of such verdicts.
Clear evidence from independent jury research shows that jurors do not understand the not proven verdict and do not really know what it means. It is not defined in law or practice, nor is the difference between it and a not guilty verdict defined. Indeed, the appeal court of the High Court of Justiciary has instructed judges not to attempt to describe the difference and has called it “highly dangerous” to do so. That means not only that it is not well understood but that, because of poor understanding, it is reached inconsistently. Also, when it is reached, there is a clear mismatch between the messages that are sent by the jury in reaching the verdict, and those that are received by the public. No one knows what it means.
In 2019-20, 43 per cent of solemn sexual offence cases led to convictions, compared with 77 per cent of solemn prosecutions as a whole. That says much about society’s attitudes to victims and survivors of rape, and it is clearly bound up in patriarchal structures that victim blame and do not believe women.
However, whatever the reasons for it, the low conviction rate for rape indicates that there is unwillingness to convict. There is evidence to suggest that the not proven verdict is reached as a soft acquittal opinion. There are real worries that the existence of the verdict gives juries in rape trials “an easy out” and that it contributes to guilty people walking free.
The not proven verdict enables rape myths and the stigma that is attached to them to be propagated. Complainers in such cases say that it does nothing to encourage them or others who have suffered gender-based violence to have faith in the criminal justice system. None of that helps complainers, victims and survivors of sexual crimes, and none of it aids the work that we must do to ensure that our justice system is able to tackle the imbalances and inequalities of power in society.
I will close with the words of a survivor who has campaigned passionately for the abolition of the not proven verdict, who said:
“get rid of the not proven verdict as it’s degrading, heartbreaking and they all laugh in our face because in my eyes they got away with their disgusting acts of abuse and as always told me ‘no one will believe you if you tell’. That is exactly how it feels.”
17:35