IN 2013, a woman known as Miss M was raped while on a night-out in Fife. Two years later, when her case was taken to a High Court trial, the jury reached a verdict of not proven. Recounting how she felt when this news was delivered, Miss M said: "It was an insult to the trauma I had been through and to the tenacity I had shown over the last two years … the not proven verdict felt like I had been given a life sentence.”

Scotland is highly unusual in allowing juries to reach a not proven verdict in criminal trials. Dubbed “that bastard verdict” by Sir Walter Scott, it is often perceived as an acquittal laced with a spicy caveat: we actually think you did it, but the evidence isn’t quite there. Not surprisingly, it’s a verdict reached disproportionately in rape and attempted rape cases where open-and-shut evidence is notoriously difficult to obtain. Victims are left with a lack of closure, a mistrust of the justice system and a sense of shame; if only they’d tried harder, if only they’d had more proof. As if they weren’t already blaming themselves enough.

The abolition of not proven is something Miss M has lobbied for tirelessly alongside Rape Crisis Scotland. Though Miss M eventually did get personal justice of sorts, successfully suing her rapist in the civil courts, she says she shouldn’t have had to fight so long and hard for it – and neither should any other victim of such a traumatic crime.

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At a time when concern for women’s safety permeates the public consciousness and the Scottish election inches closer, First Minister Nicola Sturgeon has intimated a review of the not proven verdict may be in store if we’re to address Scotland’s “shamefully low” conviction rates for sexual offences. This has received cross-party support; the Tories and Scottish Greens have pledged to scrap not proven altogether.

Donald Findlay QC, a supporter of the not proven verdict, has dubbed these declarations “voter candy” – a curious contention when I’d wager a significant portion of the electorate doesn’t have a decent grasp of what the not proven verdict is and why it’s used. And who could blame us? It is mired in debate and has been for decades. Doing away with not proven is not a quick fix, nor an issue widely understood. If it’s candy, it’s a bag of Revels.

This confusion naturally extends to juries. A large-scale mock jury study conducted on behalf of the Scottish Government and published in 2019 found some evidence of inconsistency and uncertainty among jurors about the meaning of a not proven verdict, in part because it has no specific definition. Though not proven results in an acquittal, meaning the accused is innocent in the eyes of the law, some juries saw it as a compromise, or a way to signal – where evidence was insufficient – that the accused was guilty. This interpretation is often scoffed at by legal experts, but is it surprising it’s deciphered in this way? If guilt has to be proven beyond reasonable doubt and some reasonable doubt exists, Scottish juries have two options to acquit but scant guidance as to which choice is appropriate. Is there really a place for such a lack of clarity in our legal system?

Professor Vanessa Munro, an academic involved in the jury study, carried out further research last year focusing on the experiences of people involved in cases where a not proven verdict had been delivered. Interviewing rape survivors and a bereaved family member of a female homicide victim, she found participants were often unaware pre-trial of the existence of the not proven verdict. Some believed not proven was an easy way out for jurors who, in a high-pressure situation, were steered by defence counsel towards a verdict which in the participants’ view amounted to sitting on the fence. It’s important to note corroborating evidence existed in these cases, from audio recordings and text messages to DNA samples. Yet it wasn’t enough. One participant commented of the jury: “If they actually had to make this cold decision between guilty and not guilty, I would hope it might mean that they would think about it a bit more.”

It is perhaps naïve to think a two-verdict system would result in significantly higher conviction rates in sexual offence cases. Rape conviction rates in England and Wales, where not proven is not an option, fell to a record low last year. However, the Scottish jury research did find removing the not proven verdict might incline more jurors towards a guilty verdict where warranted. Sandy Brindley, chief executive of Rape Crisis Scotland, recently said that even if the removal of this verdict made a difference in preventing wrongful acquittal in one in every 100 cases, it would be a worthwhile step forward.

Of course, the not proven verdict is available in all criminal trials, not just those pertaining to sexual assault. There’s a concern its abolition could result in the incarceration of innocent people who don’t have access to adequate legal aid. In my view, the risk of this happening in sexual crime cases is minimal because, as mentioned, they are much harder to prove and false rape allegations are incredibly rare.

Is there an argument, then, for treating crimes of a sexual nature differently? That certainly seems to be the conclusion of a new review chaired by Lord Justice Clerk Lady Dorrian into improving the management of sexual offence cases. Recommendations in the report include the introduction of a specialist court to deal with serious sexual offences, presided over by trauma-informed judges and sheriffs; the provision of plain language directions by the judge to jurors, who would also be educated on rape myths and stereotypes; and a pilot of single-judge rape trials to assess their suitability.

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If we take a holistic approach to systemic change that accounts for the obstacles faced in reporting, understanding and assessing this type of crime, we may make progress yet. Getting rid of the not proven verdict alone is not enough to help obtain justice for survivors of rape and sexual assault, and it is misleading of politicians to suggest it is the silver bullet. But it’s a welcome first step.

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