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by Margaret Taylor
06 September 2022
Not proven verdict set to be scrapped

Not proven verdict set to be scrapped

Campaign group Rape Crisis Scotland has welcomed the news that the Scottish Government plans to eliminate the not-proven verdict from the justice system.

Currently there are three verdicts available for juries to use at trial – guilty, not guilty and not proven – with the latter two both exonerating accused of any wrongdoing.

It is thought that there is some confusion over the purpose of the not-proven verdict, however, and a public consultation carried out earlier this year showed widespread support for scrapping it.

In her programme for government, announced today, First Minister Nicola Sturgeon said a move to a two-verdict system would be included in a Criminal Justice Bill that will be brought before parliament in the coming year.

“Amongst other measures, this bill will provide for the abolition of the not proven verdict,” she said.

“If approved by parliament, this will be a change of truly historic significance in Scotland, and one firmly intended to improve access to justice for victims of crime.

“This bill will also deliver statutory protection of the anonymity of complainers in sexual offence cases.”

Rape Crisis Scotland was one of the most vocal supporters of the move to a two-verdict system, arguing that the use of not proven led to ambiguity about the outcome of sexual offences cases in particular.

After Sturgeon made her announcement the organisation noted the role many rape survivors have played in campaigning for the change, adding on Twitter: “Good news! The Scottish Government have listened to calls for reform and committed to introducing anonymity for victims of sexual crimes and removing the not proven verdict.

“Moving to a two-verdict system will mean a clearer, fairer process for jurors and for survivors, eliminating the lack of certainty and ambiguity of not proven and providing a greater sense of closure.

“Guaranteed anonymity for complainers in sexual offence cases is a huge step forward in widening access to justice and ensuring greater protection for survivors.

“We're proud to have campaigned alongside survivors on these issues to ensure a safer, fairer and more accessible experience of the criminal justice system for those report sexual crimes.”

Research carried out by University of Glasgow legal academics Professor James Chalmers and Professor Fiona Leverick last year highlighted that not proven is thought to be used disproportionally in sexual offences cases as a means of giving juries “an easy way out” of having to make a particularly difficult decision.

Chalmers noted that, as it is a verdict of acquittal, not proven “has exactly the same legal effect as not guilty”, but added that abolishing it is “likely to require reconsideration of other aspects of Scotland’s jury system, particularly verdicts of conviction being returned by a simple majority”.

In its response to the public consultation, the Law Society of Scotland noted that “abolishing the not proven verdict while leaving majority verdicts intact would materially increase the risk of wrongful convictions”.

Tony Lenehan, chair of the Scottish Criminal Bar Association, said moving to a system where at least two thirds of jurors rather than a simple majority of one were in favour of convicting would be necessary to ensure a future two-verdict system is robust.

“It’s about keeping a balance which avoids the risk of innocent people going to jail,” he said.

“Scotland is the only system I’m aware of where a single vote tips the balance from guilty to not guilty. It’s been recognised that the existence of the third verdict operates as a safeguard for those marginal cases.

“So we’re not convicting people on poor evidence, what we insist on is that you keep the balance point the same - if you remove that safeguard then you have to look at a qualified majority.

“If you slide one measure one way then you have to slide another measure the other way.”

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