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For hundreds of years, Scotland has been one of the only countries in the world – and the only in Europe – to present three possible verdicts in criminal trials: guilty, not guilty, or not proven.
Now a campaign spearheaded by rape survivors and charities seeks to change that, calling for the abolition of the controversial “not proven” verdict which they argue is disproportionately used in rape cases.
The campaign was born when a woman known only as Miss M successfully sued Stephen Coxen, her accused rapist, in a civil court in 2015 following a not proven verdict in a criminal trial. It was the first civil damages action for rape following an unsuccessful criminal prosecution in almost a century.
The not proven verdict is designed to indicate a lack of evidence to prove a case beyond reasonable doubt. But in practice it has the same effect as a not guilty verdict. The accused is acquitted – and innocent in the eyes of the law. Launching the campaign, Miss M highlighted the confusion this can cause for juries and the public, and what this means for justice in Scotland.
“Some think not proven means that the sheriff or jury believe the accused is guilty, but don’t have enough evidence, and others aren’t so sure,” she explains. “In amongst the uncertainty, what we know for sure is that not proven is most commonly used in cases of rape and sexual violence. I fear – as someone who received a not proven verdict and spent three long years fighting the Scottish legal system subsequently – that the not proven verdict means those who are raped are unfairly left without justice and those who rape face no consequence, no sanction for their actions.”
Rape Crisis Scotland, who are working with Miss M on the End Not Proven campaign which is also supported by a number of Scottish women’s organisations, notes that in 2016/17 only 39 per cent of rape and attempted rape cases brought to court resulted in convictions. This is the lowest rate for any type of crime. The not proven verdict was handed down in nearly 30 per cent of rape acquittals, compared with only 17 per cent of all other crimes and offences.
For Sandy Brindley, chief executive of Rape Crisis Scotland, the not proven verdict can compound a process which is already particularly distressing for survivors of rape. “Many rape complainers tell of how devastating it has been to get this verdict, after going through the ordeal of giving evidence in a criminal trial,” she says. “We have a real concern that this verdict may be contributing to guilty men walking free following being tried for rape.”
This is not the first time the not proven verdict has come under scrutiny in Scotland. When Amanda Duffy was murdered in 1992, the man accused of killing her was given a not proven verdict at trial. Amanda’s father Joe Duffy has fought ever since to get rid of the verdict.
Holyrood’s justice committee have also criticised the verdict, concluding three years ago that it was on “borrowed time” and served little purpose in the legal system. As well as noting the lack of closure for victims, their report also highlighted how a not proven verdict risks defaming innocent people who are accused of criminal activity.
The verdict divides opinion within the legal community, but Debbie Wilson, convener of the Law Society of Scotland’s criminal law committee, says it needs serious thought. “The not proven verdict has been a cornerstone of Scots criminal law and our rules of evidence for centuries,” she says. “As such no serious consideration can be given to its abolition in isolation and without first establishing what additional safeguards should be put in place.
“Our criminal justice system must be fair to victims of crime and those accused of crime, avoiding miscarriages of justice and ensuring that the public can have confidence in the protections of the justice system.”
The future of the not proven verdict is a matter for the Scottish Parliament, which presides over most aspects of criminal and civil law, the courts and prosecutions. So Rape Crisis Scotland is asking supporters of the campaign to consider sharing any personal experiences of the not proven verdict with the charity, and to lobby their MSPs.
Despite unsuccessful previous campaigning efforts, the End Not Proven campaign is optimistic, given that the issue is already being examined in research commissioned by the Scottish government and carried out by the University of Glasgow, which is expected to report its findings in late 2019.
For Miss M, though, the issue is ultimately straightforward and comes down to the experiences of rape survivors within an already complicated and often distressing legal system.
“Reporting rape is never going to be easy, but I shouldn’t have had to fight against the justice system in my pursuit for fairness,” she says.
“I am calling on the Scottish government to give survivors a chance. There is no convincing argument to retain the outdated verdict: it’s time to scrap not proven for good.”
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