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End Not Proven

Two weeks ago we launched our Holyrood asks: 6 actions we want candidates and parties to commit to that would improve the landscape for survivors of sexual violence in Scotland.

All of these asks are critical – but today we want to talk about just one: End Not Proven.

Uniquely, Scotland has three verdicts – Guilty, Not Guilty and Not Proven. Not Guilty and Not Proven have the same impact – they are both acquittals, and there are no legal consequences for the accused if they get a Not Proven verdict.

But why does it need to go?

Firstly, the Not Proven verdict is used disproportionately in rape and attempted rape cases. In 2018/19 40% of acquittals in rape and attempted rape cases were Not Proven, compared with 19% of all crimes and offences.

Research has shown that the Not Proven verdict is widely misunderstood – not surprising given it has entirely the same consequences as Not Guilty – with some people taking it to mean the case can be retried (it can’t) or believing it hints at guilt (legally this is not the case).

Recent evidence highlighted that juries hold problematic attitudes towards rape complainers (legal term) which is unsurprising when taken alongside attitudinal surveys. These surveys show time and time again harmful ideas about sexual violence, victim-blaming and misguided expectations of how people respond to rape are still deeply held by the Scottish public, who are ultimately past, present and future jurors. There is a very real reluctance to convict in rape cases – conviction rates are still shamefully low, the lowest of any crime type; quite simply this means that guilty men are walking free, and survivors are left without justice.

Nobody doubts that being a jury member in a trial is an immensely difficult task, but increasingly a picture builds of the Not Proven verdict being handed out as consolation prize for victim-survivors. Listening to the voices of those who have received this verdict shows that this is not how it is received.

It has been described to us as a ‘cop-out’, perceived an ‘easy option’ so that jurors can walk away from what are often intense and gruelling trials falsely feeling as though they gave the complainer (legal term) something.

We have been proud to work alongside Miss M – and many other survivors – who have argued powerfully for the Not Proven verdict to go. Far from the closure that people might assume this verdict provides, we have heard from countless survivors who say that it has left them with more questions than answers, more uncertainty and more anxiety.

“I gave up three years of my life for them to take less time than I do to get ready to go to work in the morning to come up with ‘we didn’t make a decision’. And I think that if they had say, if I had been waiting there for at least a day and a half, I would have at least known that they argued it and thought about it well, but that they just reiterated to me the fact that they were confused, manipulated, and then told, look, you don’t have to choose.’ – Participant 2, Piecing Together Puzzles, Prof. Vanessa Munro

The commitments we’ve seen across the Political spectrum in the last week are welcome, encouraging, and the product of years of survivor activism and advocacy.

Commentators are right to point out that ending Not Proven alone will not address all of the issues that survivors experience in the justice system and beyond, far from it.

But if we are a country that values compassion and justice, then it’s time to End Not Proven.