Lawyers sound alarm over abolition of Scotland's controversial not proven verdict

Legal figures have sounded alarm bells over the abolition of Scotland’s controversial not proven verdict as part of sweeping changes to the justice system put forward by the Scottish Government.

Justice secretary Angela Constance said the “landmark legislation” was among the most significant in the history of devolution and would put victims and witnesses at the heart of the justice system.

But lawyers insisted the not proven verdict “has been a vital cornerstone of the Scottish justice system for centuries”, and also raised fears a pilot of judge-only trials for rape cases could put the right to a fair trial “in jeopardy”.

The Victims, Witnesses and Justice Reform Bill proposes abolishing the not proven verdict in all criminal trials “to help create a clearer, fairer and more transparent decision-making process”. It will also reduce juror numbers from 15 to 12 and increase the jury majority required for conviction to at least two-thirds.

The High Court in Edinburgh

It aims to address a number of issues around serious sexual offences, including by creating a new specialist sexual offences court and granting an automatic life-long right of anonymity for victims of sexual offences. In Scotland, unlike elsewhere in the UK, there is no automatic legal right to anonymity.

The Bill will also enable a pilot that would see rape trials conducted by a single judge without a jury. Nicola Sturgeon previously committed to abolishing the third verdict in the Scottish legal system. Not proven, which has the effect of acquitting the accused, is unique to Scots law and there is no equivalent in other jurisdictions.

However, it has long been controversial, with jury research previously highlighting confusion about its meaning and effect. There is cross-party support for its abolition.

Ms Constance said: “This landmark legislation is among the most significant since devolution and will ensure fairness is cemented into the bedrock of Scotland’s modern-day justice system. Building on the experiences of survivors, victims, and their families, these key reforms will make justice services more sensitive to the trauma it can cause.

“This Government has been clear we must take action to improve the experience of those who suffer sexual abuse. The majority are women, who must be supported to have trust and confidence that the processes of justice will serve their needs, allow them to give their best evidence and support them in their recovery.”

She also hailed the creation of a new independent commissioner for victims and witnesses.

Ms Constance said there was “substantial evidence that the not proven verdict in many instances retraumatises victims and survivors because of its lack of clarity”.

Earlier, the chief executive of Rape Crisis Scotland welcomed plans to scrap the verdict, saying she had “no doubt that guilty men are walking free”. Speaking to the BBC’s Good Morning Scotland radio programme, Sandy Brindley said the changes were a “really positive development”.

However, advocate Thomas Ross KC took the opposite view, saying jurors should be trusted to carry out the job they have been given. He told the programme: “I work with prosecutors every day, I don’t hear them saying that they’re concerned about the conviction rate.”

Previously, the Law Society warned there could be an increase in miscarriages of justice if not proven was scrapped as a verdict. The society’s president, Murray Etherington, said: “The right to a fair trial is a cornerstone of the Scottish criminal justice system. Even on a pilot basis, judge-only trials will put that fundamental right in jeopardy with no discernible benefits.

“By its very definition, a jury is a better reflection of Scottish society than a single judge can possibly be. Juries act as an essential and effective safeguard against the potential for unconscious biases to unfairly influence trial outcomes.

“Undermining the foundations of the Scottish justice system to increase conviction rates is a dangerous approach, which will create a serious risk of injustice.

“We support the overall aim of the legislation to deliver a more person-centred approach to practices within the Scottish criminal justice system, but fundamental changes such as the introduction of judge-only trials and the abolition of the not proven verdict must not be made at the expense of the right to a fair and just trial."

Scottish Conservative justice spokesman Jamie Greene said: “There are long overdue measures in this Bill we can support, including the abolition of the not proven verdict, which the Scottish Conservatives have long called for, and anonymity for sexual offence victims. However, we share reservations about a move to juryless trials, given that it is a basic tenet of Scots law that those prosecuted for the most serious offences are tried before their peers.”

He criticised the lack of proposals to increase the use of bans on criminals entering the local areas of a victim and vowed to fight to strengthen the legislation, adding: “This really is a missed opportunity, a Victims’ Bill in name only.”

David McKie, partner at Levy and McRae solicitors, said: “The not proven verdict has been a vital cornerstone of the Scottish justice system for centuries. It is grounded on a fundamental pillar of the trial process, that the Crown proves its case beyond reasonable doubt. I see no reason to abolish the verdict and am concerned at what appears a further erosion of the rights of an accused person in this country.”

Green MSP Maggie Chapman said scrapping not proven was “a welcome and long overdue change”. She said: “Having a third option as a possible verdict in criminal trials can be confusing for juries and is considered by many to be unfair on both complainers and the accused.

“It is a damaging anomaly that is used disproportionately in sexual violence cases. Survivors of such cases deserve closure, support and unambiguous justice. There is also a harmful stigma associated with the not proven verdict. Anyone who has been cleared of a crime would want to hear the words ‘not guilty’ rather than ‘not proven’.”

Liberal Democrat MSP Liam McArthur said: “For some time now, our party has been calling for reform, which strikes a balance between the rights of the accused and the needs of victims. I am pleased to see the Government now taking action in this area.

“Not proven has been problematic in a modern legal context, not least because there is no fixed definition of this verdict. By appearing not to clear an accused person of charges, it stigmatises defendants, fails to provide closure for victims and creates confusion for the wider public.

“While these reforms are important, they come against a backdrop of cuts to justice budgets by this SNP-Green administration, which threaten to hamstring investigations and prosecutions. The Scottish Government must now properly invest in our justice system, so that we can deal with court backlogs, cut crime and boost public confidence.”