Calls to end ‘not proven’ verdict in Scottish law

COURTS: Fife rape victim launches her campaign to abolish ‘confusing’ verdict after legal battle

A woman who won a civil rape case is spearheading a new campaign to end the not proven verdict in Scottish criminal trials.

The woman, known as Miss M, is joined by a host of women’s and antiviolence organisations in calling for the “confusing” verdict to be scrapped.

The End Not Proven campaign argues it is used disproportionately in sexual violence cases and fears it gives juries an “easy out” when reaching their decision.

They say they want to hear the experiences – positive or negative – of people who have been affected by the not proven verdict.

Miss M, who cannot be named for legal reasons, was awarded £80,000 in damages last month against a man who had previously been cleared of raping her.

She sued Stephen Coxen, accusing him of raping her in St Andrews, after a night out in September 2013.

Coxen, of Bury in Lancashire, denied the charges and in November 2015 a jury acquitted him on a not-proven verdict in a criminal trial.

Following a recent civil case at the Personal Injury Court in the Edinburgh Sheriff Court building, Sheriff Robert Weir QC ruled she had been raped.

Miss M said: “It is not justice that motivated me to start this campaign to end the not proven verdict in Scotland, it was injustice.”

Uniquely, Scotland has three verdicts – guilty, not guilty and not proven. Not guilty and not proven have the same result, both being verdicts of acquittal.

Miss M said the not proven verdict is “clouded with ambiguity”.

“The certainty we apply to guilty and not guilty does not apply to not proven,” she said.

“In amongst the uncertainty, what we know for sure is that not proven is most commonly used in cases of rape and sexual violence.

“I fear – as someone who received a not proven verdict and spent three long years fighting the Scottish legal system subsequently – that the not proven verdict means that those who are raped are unfairly left without justice and those who rape face no consequence, no sanction for their actions.

“What message does this send to society?

“Reporting rape is never going to be easy but I shouldn’t have had to fight against the justice system in my pursuit for fairness. It didn’t have to be this difficult.

“I am calling on the Scottish Government to give survivors a chance. There is no convincing argument to retain the outdated verdict, it’s time to scrap not proven for good.”

Rape Crisis Scotland is launching the End Not Proven campaign alongside Miss M.

They state that in 2016-17, only 39% of rape and attempted rape cases resulted in convictions, the lowest rate for any type of crime.

Nearly 30% of acquittals were not proven, compared with 17% for all crimes and offences.

The campaign is supported by Engender, the Scottish Women’s Rights Centre and Zero Tolerance.

Scottish Women’s Aid, which is also backing the drive, said: “Not proven is a third verdict that disproportionately impacts survivors of rape, many of whom are also survivors of domestic abuse.

“A verdict that is often interpreted as ‘we probably believe you but we don’t have the evidence’ is just another element of a justice system that fails us time after time.

“Not proven is not justice and we stand by Miss M and those who want an end to this non-verdict.”

This is just another element of a justice system that fails us time after time. SCOTTISH WOMEN’S AID

The campaign to rid Scots law of the not proven verdict in criminal trials is not a new one. Since the muddying of legal waters in the 18th Century – juries previously found cases proven or not proven and judges were left to establish guilt – it has been a national oddity.

Experts insist it still has its place – allowing the jury to acquit without unequivocally stating an accused is innocent because the prosecution has failed in its job to prove a case beyond reasonable doubt.

This is not an “easy out” as campaigners have suggested – the accused will still be freed and the burden of such a decision must weigh heavily on jury members.

However, it leaves its own problems, not least among laypeople without the benefit of legal insight.

Anything other than a not guilty verdict risks leaving a stain of presumed guilt lingering on the accused, while the victim inhabits a post-verdict no-man’s land.

The situation is exacerbated by ability to seek recourse in civil law, with its lower bar of proof.

Clearly, there is a debate to be had on the merits or otherwise of the present methods of deciding criminal cases.

It will, rightly, be led by politicians and law lords wellversed in the intricacies of the legal system.

But when it is victims of crime who are demanding change, they must be heeded.

Stephen Coxen was successfully sued for damages by a woman he was previously cleared of raping in St Andrews in 2013.