'Not proven' verdict will be abolished for rape cases in Scotland

‘Not proven’ verdict will be abolished for rape cases and defendants will face juryless trials amid sweeping justice reforms in Scotland

  • Third option for jurors axed in bid to increase Scotland’s low rape conviction rate
  • As part of the changes, victims will have a ‘tsar’ to stand up for their rights

Sweeping justice reforms will see the abolition of the controversial not proven verdict – and a plan to introduce juryless rape trials.

In the biggest shake-up of the legal system for decades, the centuries-old third option for jurors will be axed in a bid to increase Scotland’s low rape conviction rate.

As part of the changes, victims will have their own ‘tsar’ to stand up for their rights – and a specialist sex crimes court will be set up.

Anti-rape campaigners welcomed the new Bill but the proposed legislation has sparked a backlash among lawyers and opposition politicians over the potential erosion of key cornerstones of the Scottish justice system.

Sandy Brindley, chief executive of Rape Crisis Scotland, said: ‘There is a huge amount of research and evidence to suggest that these steps will not only make engaging with the justice system easier for survivors but lead to more justice being done.’

Sandy Brindley (pictured), chief executive of Rape Crisis Scotland, said: ‘There is a huge amount of research and evidence to suggest that these steps will not only make engaging with the justice system easier for survivors but lead to more justice being done.’

But Murray Etherington, president of the Law Society of Scotland, backed by the Faculty of Advocates, criticised the proposed pilot scheme to allow judges to try people for rape – which carries a possible life sentence – without juries.

He said: ‘Juries act as an essential and effective safeguard against the potential for unconscious biases to unfairly influence trial outcomes. Even on a pilot basis, judge-only trials will put that fundamental right in jeopardy, with no discernible benefits.’

Critics of the not proven verdict, which dates from the 17th century, say it creates confusion for jurors and can stigmatise people amid limited public understanding it is an acquittal.

But supporters of not proven say it is a unique feature of the Scots legal system and scrapping it could lead to more wrongful convictions.

The Victims, Witnesses and Justice Reform (Scotland) Bill, will also change the size of criminal juries from 15 to 12, with eight guilty verdicts enough to secure a conviction – compared to a minimum of ten in England, where unanimous decisions are strongly encouraged.

However, lawyers and Rape Crisis Scotland said it was possible the change will lead to more acquittals by raising the bar for conviction as, under the present system in Scotland, eight guilty verdicts from a pool of 15 jurors – a simple majority – are needed.

The Faculty of Advocates has warned that ditching not proven could undermine the provision of ‘fair and equitable justice’.

But groups such as Rape Crisis Scotland believe the verdict prevents victims getting justice.

They say if it was ditched, juries would be more likely to opt for guilty verdicts, helping to push up low conviction rates.

Not proven accounts for 38 per cent of rape acquittals. The conviction rate for rape and attempted rape is down from 53 per cent in 2011-12 to 51 per cent in 2020-21, though that figure was 8 percentage points higher in 2020-21 than the previous year.

Supporters of not proven defend it as a way to prevent miscarriages of justice. Seven of the eight legal groups which responded to a consultation wanted to keep the current system. In contrast, Ms Brindley said she has ‘no doubt that guilty men are walking free’.

However, Rape Crisis Scotland had ‘concerns about the Bill’s proposed changes to jury majority from eight out of 15, to eight out of 12’. It said: ‘We know that juries are reluctant to convict in rape cases and any change in jury majority could have a significant impact on convictions.’

Thomas Ross, KC, a specialist in homicide cases, said: ‘There could be more acquittals and more angry complainers – the exact opposite of what victims’ campaigners had hoped to achieve.’

A pilot for juryless rape trials was suggested by the Lord Justice Clerk Lady Dorrian after a review which found that jurors can have outdated attitudes to sexual crime. The study said some may believe rape myths – for example questioning the honesty of alleged victims who do not fight back against their attackers.

But critics fear this could represent the thin end of the wedge, preparing the ground for the end of juries in other cases, such as murder. Mr Ross said the planned changes amount to ‘terrifying political interference that could turn Scotland into North Korea’.

He said the pilot of juryless trials may never happen amid a backlash against the proposal.

‘There could be witch-hunts against judges,’ he warned.

‘At the moment, you have 15 anonymous jurors but now judges will be under a huge amount of pressure to convict because there is a political agenda to push up the conviction rate and those who don’t do so will find themselves under a lot of scrutiny.’

Tony Lenehan, chairman of the criminal bar association of the Faculty of Advocates, said: ‘The most alarming part of the Bill is the proposal for juryless rape trials because it is anti-democratic.

‘We trust our citizens to elect governments and we trust them to take decisions about the guilt or otherwise of an alleged murderer, but it has been decided that citizens are not able or intelligent enough to take decisions about matters of sexual intimacy, which are well within their experience.’

Tory justice spokesman Jamie Greene said his party ‘shares reservations about a move to juryless trials, given it is a basic tenet of Scots law that those prosecuted for the most serious offences are tried before their peers’.

Justice Secretary Angela Constance said: ‘This Bill will put victims and witnesses at the heart of the justice system. It is testament to the efforts of many campaigners who have worked to ensure the processes of justice better serve victims, witnesses and vulnerable parties.’

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