Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, December 15, 2021

Official Report 1050KB pdf

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Ending the Not Proven Verdict

I remind members of the Covid-related measures that are in place and that face coverings should be worn when moving around the chamber and across the Holyrood campus.

The next item of business is a debate on motion S6M-02553, in the name of Jamie Greene, on ending the not proven verdict. I ask members who wish to participate in the debate to please press their-request to speak buttons now.

I call Jamie Greene to speak to and move the motion.

There is nobody on the Government front bench.

You are quite right: there is no one on the Government front bench.

There is now. Thank you.

16:51  

I am pleased and privileged to use our precious commodity of Opposition business to have today’s debate. [Interruption.] Apologies, but may I continue?

The debate is important. Tomorrow, I am launching the consultation for my member’s bill, the victims (criminal justice and fatal accident inquiries) (Scotland) bill. It is not the catchiest of titles, but contained in the bill there are a number of sensible proposals that seek to strengthen the rights of victims in Scotland, empowering them in relation to decisions that affect their daily lives and granting them wider access to information that they should already be given freely. The bill seeks to make them feel safer by ensuring that dangerous criminals stay away from them, their homes and their families.

None of the above should be controversial or seem unreasonable to us as a Parliament. I would even go as far as to say that improving the rights of victims of crime should be wholly incontrovertible and not even require a member’s bill in the first place. However, we are where we are.

When the consultation is published tomorrow, I will ask members, the Government, stakeholders and the wider public to look carefully at my proposals and respond with their views and opinions. However, there is another part to my bill, which forms the basis of my motion—our call to end the three-verdict outcome in the Scottish courts through the removal of the not proven verdict. We do that unapologetically. It was an explicit promise in our manifesto, an issue on which we have led the way and one on which we now want Parliament to finally take a stand. I cannot see why we would not want to do so.

Of course, there is opposition to the proposal—change is not always welcome, and change is not always easy. It would be the most profound overhaul of the justice system in 300 years. However, we are not alone in that position—every party went into the Scottish election promising action. It is not a new debate, which makes my point. We have been having the debate for years, for decades, for centuries. The debate goes from as far back as 1846, when the system was criticised, to as recently as 2013, when a private member’s bill to abolish the verdict was considered in the previous session of Parliament. Five years ago, Christine Grahame, who was then the convener of the Justice Committee, said:

“the not proven verdict is often deeply unsatisfactory for victims and is often no better for the accused. Like many members of the committee, I believe that the not proven verdict is on borrowed time.”—[Official Report, 25 February 2016; c 81.]

Its time has run out and now we must act.

I am delighted that the member is trolling the archives for my words of wisdom, but he will also recall that, at the time, I opposed the abolition of corroboration because not proven, corroboration, the size of jury and having a majority or a unanimous verdict are all interlinked, so it is a very complex issue.

I am glad that the member raises that issue, and I will cover that point explicitly in my comments.

I hope that there is consensus in the chamber on the need to act, because I think that there is consensus that the current three-verdict system is simply not fit for purpose, not least for the victims of the sort of crimes that we often talk about in this chamber—women and girls, mostly, who suffer gender-based violence including domestic abuse, rape and sexual assault; the very people we so often make promises to.

We are very good at talking the talk when it comes to those promises, but now it is time to walk the walk. There must be more than 60,000 criminal cases in our backlogged courts—a number that is growing by the day. More than 70 per cent of trials in the High Court relate to serious sexual offences. We know that the prosecution rate of rape trials is abnormally and unacceptably low. Last year, out of more than 2,000 reported incidents, only 130 were successfully prosecuted.

We also know that 30 per cent of acquittals in rape trials were down to not proven verdicts compared with just 17 per cent of acquittals for all crimes and offences. That clear imbalance must be addressed. That is my view, and that is also the view of the victims of crimes, many of whom are left utterly confused, perplexed, bewildered and even angry after a not proven verdict.

Equally, it leaves a cloud—a shadow of doubt—over those who walk free; those who have been found neither guilty nor not guilty. It was put by Professor James Chalmers as being a verdict that

“stigmatises the accused, operating by a nudge and a wink, carrying a meaning which no-one is willing to articulate”.

I make the case today that, if the accused is not guilty, they deserve to be labelled as such. Our proposition is widely backed by those on the front line who are helping the victims of crime, including Scottish Women’s Aid, the Scottish Women’s Rights Centre and Rape Crisis Scotland, which publicly stated that there are

“real worries that the existence of the not proven verdict gives juries in rape trials an easy out and contributes to guilty people walking free.”

The First Minister was very clear on the not proven verdict. She said that

“there is mounting evidence and increasingly strong arguments that the not proven verdict”

is part of the low conviction rate.

Humza Yousaf, when he was the justice secretary, said that the research was absolutely clear that the not proven verdict causes

“confusion for many jurors”

and

“causes significant distress.”

I do not disagree with Humza Yousaf, nor do I disagree with the First Minister. Neither do I disagree with Lorna Slater, who said that the

“ambiguous third option ... is confusing ... and unfair on both complainers and the accused”

and that

“its time needs to end.”

Its time does need to end, which is why I am asking them and every other member to demonstrate today that we mean what we say and that we will deliver on what we promised in our manifestos.

I will address the point that the not proven verdict cannot be changed in isolation. I accept that. Corroboration, the size of juries, majority verdicts, juryless trials and dedicated specialist courts are all live, connected and important issues. However, those should not act as barriers to change or reasons to delay. The fact that something has always been that way does not mean that it should always be that way. The question that we should be asking ourselves is what we need to change in our trials, courts or juries to facilitate that move. We need to consider the “what”, not the “if”. In doing so, we should make the voices of dissent part of the solution to change, not a barrier to it.

At the end of the day, we sometimes need to make difficult decisions. We often say that the issue has been rumbling on for years. It has been. I am asking members to set aside their prejudices against or views on the motion. I am asking them not to kick the issue further into the long grass. Doing that is simply not an option. Doing nothing is not an option. Delay is not an option. By voting for my motion, we can and will send a strong message to the victims of crime that we, as a Parliament, are willing to act now. We must act.

I move,

That the Parliament believes that the current three verdict judicial system in Scotland’s criminal courts is not fit for purpose, as it frequently does not deliver justice for the victims of many heinous crimes, including gender-based violence, rape and domestic abuse, and therefore calls for the removal of the not proven verdict.

16:59  

Just to be clear, I will move the amendment in my name and I will also support the Labour Party’s amendment. I will not support the motion from Jamie Greene. I should also say at the outset that I intend to look at the bill that he intends to bring forward. I will look at it genuinely to see whether there are further things that we can do. He is right to say that we should continue to try to improve how victim centred our system of justice is. It is my view that much of what I know of the bill—and I do not know all about it—replicates things that we already do or that are in train. However, I will look at the bill in good faith.

The Scottish legal system has evolved substantially over the centuries, and it is vital that the justice system develops in response to new evidence and in line with the values of the people of Scotland. Jamie Greene rightly said that he was following through on a manifesto commitment, and that is exactly what I am doing when I say that we will consult on the issue. That is what we said we would do. He is right to have quoted the First Minister, who said that there is a strong case for looking at this again. I reflect and agree with those sentiments. Our commitment is to consult on this.

Juries have played a crucial role in the Scottish criminal justice system for hundreds of years, and I am grateful to those who have carried out the important public duty of serving on them. It is, however, important that we reflect on the findings of the independent jury research that was published in 2019, which was not available during the earlier considerations by Parliament and other parties, which Jamie Greene referred to. It was the largest and most realistic study of its kind ever undertaken in the United Kingdom. It considered the unique Scottish jury system of 15 jurors, three verdicts—including not proven—and the simple majority. Those things are inextricably interlinked. The research highlighted inconsistent views on the meaning and effect of the not proven verdict and how it differs from not guilty.

It is also vital that we involve the public and stakeholders in these discussions. That is why, after the report’s publication, we held events across the country with legal professionals, the third sector and survivors. I have had a number of conversations with survivors, as I know Jamie Greene and others have also had, in which concerns have been raised regarding the not proven verdict, such as a lack of understanding, perceived stigma and the trauma that the verdict can cause.

I am also aware that, more recently, the third verdict has been criticised due to the higher rates of not proven acquittals in rape and attempted rape cases. Some campaigners have suggested that the existence of the third verdict might contribute to the acquittal of defendants who committed an offence and therefore causes particular trauma to victims.

I take the views of survivors very seriously. As I said, I have spoken to them directly. Furthermore, in our programme for government, we have committed to giving serious consideration to the recommendations of the Lord Justice Clerk’s review on improving the management of sexual offence cases. That report has the potential to drive transformational change across the system, beyond sexual offence cases. However, these are complex issues, and many other stakeholders have made their views clear that the third verdict should be retained or—as I have tried to do—they have highlighted the interconnectedness of the system, emphasising that the three verdicts, a simple majority being required for conviction and the size of the jury are so interrelated that it would not be possible to meaningfully assess those factors separately from one another. Others argue that the corroboration rule, which requires more than a single source of evidence, should also be part of the consideration.

Earlier this year, over 1,000 Scottish-qualified solicitors took part in an online survey and responded to a question on what the legal profession thinks about the current three-verdict criminal justice system in Scotland. Over 70 per cent of those who responded said that they believed that the not proven verdict should be retained, primarily due to their view that it provides an important safeguard to prevent wrongful convictions.

The cabinet secretary seems to be going to great lengths to excuse the status quo. He is the fourth justice secretary to promise action on the issue. What comfort can he give victims of crime that the Government will finally take the action that it promised them?

I think that it is really wrong for Jamie Greene to characterise what I have said up to this point as defending the status quo. I am laying out the reasons why we are consulting on the issue. In consulting on it, I am doing what my party said that it would do when we won the election a few months ago. He is right to pursue his manifesto, and I am pursuing mine. It is not a surprise to anybody that we would do it in this way.

I have just mentioned that 70 per cent of those lawyers who were polled were for retaining the verdict. I think that it is right, even if I were not to agree with them, that we should consult the legal profession as we go forward with what he has rightly said is one of the biggest changes to the legal framework in many years. We are doing what we said we would do.

Furthermore, we have to be mindful that the not proven verdict affects all cases, not just sexual offences. In 2019-20, there were 1,039 not proven verdicts, the majority of which were for crimes that were not sexual in nature. We cannot simply disregard the complexity. The implication of the motion is that we should go straight to abolishing the not proven verdict, regardless of the other things that are related to it in the system. I do not support that—I think that we have to consider those things together. We also have to take into account the opposing views, some of which I have just set out.

I have been very clear, however, that I have serious concerns about the not proven verdict. That is not a justification of the status quo. There is clearly a breadth of informed and principled opinion on the matter, and we owe it to all in the justice system to robustly consider and, where appropriate, challenge those views. We need a holistic, evidence-based approach in which we address the whole system as well as considering wider potential reforms—such as those that I mentioned from the Lord Justice Clerk’s review—instead of rushing to action without pausing to think through the consequences for the rest of the system. That is why, earlier this week, the Scottish Government launched a consultation on those interrelated matters. I encourage all those with an interest to consider it and respond in due course.

As I said, some argue that the corroboration rule regarding a single source of evidence should be looked at. Those are important matters on which many people, whether it is the Law Society of Scotland or the Faculty of Advocates, have very serious views. If we want to make a major change to the system that is sustainable, it is only right that we consult those who are most directly involved in administering the system as well as those who are affected by it. For that reason, I ask the Parliament to support the amendment in my name.

I move amendment S6M-02553.3, to leave out from “believes” to end and insert:

“recognises concerns held by many about the current three verdict system, including issues raised in independent jury research that suggest jurors may have inconsistent views on the meaning and effect of the not proven verdict; further recognises the concerns raised by the complainers of particularly heinous crimes, including gender-based violence, rape and domestic abuse, that the not proven verdict is more often applied in crimes of rape and attempted rape compared to other crimes; notes the strong case that can be made for the abolition of the not proven verdict; further notes that the Scottish jury system is a complex, inter-related system and that verdicts must be considered alongside other key aspects of jury size, majority and corroboration, and against the background of wider, related work, including the recommendations of the Lord Justice Clerk’s review on the management of sexual offence cases, and encourages all those with an interest to consider and respond to the current Scottish Government consultation on the not proven verdict and related reforms.”

17:06  

I warmly welcome the debate, and I will move the amendment in the name of Pauline McNeill, which says that we recognise that many survivors of sexual crimes find their experiences of the justice system to be retraumatising, that we believe that improving the experience of women and girls requires changes throughout the justice system, and that we recognise that the current backlog of cases disproportionately impacts on women and girls.

Although the figures for most crimes in Scotland have fallen over the past decade, the figures for sexual offences continue to rise. That might be because more women are reporting offences or it might be that overall levels of sexual violence are increasing. In 2019-20, which is the last year for which we have figures, 44 per cent of rape and attempted rape cases resulted in a not proven verdict. That suggests that there was evidence but that the jury felt that it did not meet the threshold of being beyond reasonable doubt.

In many rape cases, the issue of whether there was consent is the main issue at trial. There is no doubt that society’s attitudes towards women and girls impact on the decisions that juries take. Lady Dorrian’s report looked at that issue and suggested providing better training and support for juries. Trials without juries have also been suggested, as well as a range of other changes, including the introduction of specialist courts.

On behalf of the Labour Party, I say that the justice system needs to be more responsive to survivors’ experiences, and that includes the police and the courts. There is much agreement across the political parties that are represented in the Parliament on what needs to be done. However, the policy as outlined by the Government and the authorities is very different from the testimony that we hear from survivors, who continue to describe their experiences of a justice system that they feel fails them, that they find to be traumatic and that does not work for them. The Criminal Justice Committee has met survivors, some of whom still have cases going through the system, and it is clear that they feel that the justice system continues to fail women.

We need a justice system in which staff dealing with cases in every part of the system are trained in trauma-informed approaches. Problematic attitudes towards sexual violence need to be addressed in all parts of the justice system, including in the courts and the police service, through education and changing the way that we deal with cases. It is clear that a range of measures need to be taken to deliver the justice system that victims of crimes often feel they are denied.

The Lord Advocate has said that cases of sexual violence make up 70 per cent of the workload of the High Court. That proportion has increased dramatically over the decades. Of that 70 per cent of cases, 80 to 85 per cent go to trial. Therefore, the current backlog disproportionately involves women and girls as victims of crime. We need to consider how we can deal with those cases more quickly and whether changes could be brought in, perhaps as pilots, that could speed up how those cases are brought to a conclusion.

I welcome the debate that has been secured today by the Conservative Party to consider the not proven verdict as part of a wide range of changes that need to be made to the legal system. Our legal system should have criminal laws that reflect the values of the society that we aim to have. We have a justice system that continues to work in the interests of male perpetrators of violence and against the interests of women and girls. In other cases, too, the interests of victims are not in the centre in the way that I believe we would all want.

I welcome the fact that we are debating these issues today, and I look forward to the rest of the debate. There was previously a member’s bill on the issue, and I know that we will be considering it again. I welcome the fact that the Government has come forward with a consultation to consider the not proven verdict, in particular, so that all voices can be heard before draft legislation is brought to the chamber.

I move amendment S6M-02553.1, to insert at end:

“; recognises that many survivors of sexual crimes find their experiences of the justice system to be re-traumatising, and believes that improving the experience of victims will require improvements throughout the criminal justice process and that this must start with clearing the backlog of court cases, which disproportionately affects access to justice for women and children, as a priority.”

17:11  

I, too, pay tribute to campaigners such as Speak Out Survivors, Miss M and others for their courage, candour and commitment to change in order to deliver improvements in how our justice system deals with the heinous crimes of sexual violence and rape against the backdrop of what is happening, as Katy Clark just rightly described.

This proposal has been the subject of cross-party discussions through the course of the previous session and during the early months of this one. I thank colleagues across the Parliament as well as the current and previous justice secretaries for the collaborative approach that has been taken on the issue. The discussions have been informal and behind the scenes, and I think that it is right that we now have an opportunity to debate the matter in a more public sense, so I thank Jamie Greene for providing this opportunity. His motion perhaps jumps the gun, but I think that it points to the right direction of travel. We will support the Government’s amendment as well as Pauline McNeill’s amendment, which makes an important argument about the risks of retraumatising victims.

For some time, Scottish Liberal Democrats have been sympathetic to calls for the not proven verdict to be dropped. It does not really sit well in a modern legal context, not least because there is no fixed legal definition of the verdict, which was established through custom and precedent in the Scottish courts in the 17th and 18th centuries. We know from the 2019 research that the cabinet secretary referred to that it can be confusing for juries, leading to higher rates of acquittal, as Humza Yousaf has previously acknowledged. It is confusing for the public, too, as it often stigmatises an accused person by appearing not to clear them of charges. It routinely fails to provide closure for victims. The case for change is therefore strong, if not compelling.

However, we do a disservice to those campaigning for change, to those who are tasked with enforcing our laws and to our legal system itself if we ignore or downplay the complexities or interconnections that I think have been acknowledged this afternoon. I note that the Law Society briefing points to the concerns that have been raised across the profession, even among some of those who are supportive of a move from three verdicts to two.

It is important that we understand those concerns, that we reflect on them and that we seek, as far as possible, to address them. I welcome the launch of the consultation over the past few days. It presents a chance to consider a range of views, including those of opponents, and, crucially, those of victims and those with lived experience.

The consultation will need to consider not just the not proven verdict, as Christine Grahame rightly highlighted in her intervention. It will need to consider the size and make-up of juries and of the majorities that are needed to convict, and the right to legal anonymity for victims in sexual offences prosecutions, which exists in other parts of the United Kingdom but does not exist here, notwithstanding the steps that are often taken by courts to protect that anonymity. It should look again at corroboration, although I hope that lessons have been learned and that the Scottish Government will not seek to rerun battles through the abolition of corroboration. Importantly, it should do more to protect victims from being retraumatised by the justice system that is supposed to protect them. That was very well picked up in Pauline McNeill’s amendment.

Lord Carloway stated recently that

“Cross-examination should not be used as a means of intimidating or humiliating witnesses”,

and he is absolutely right. There is a great deal of common ground in that area, and I hope that we can continue in that vein while also having the necessary challenge function as we pursue the improvements that we all believe are required.

I thank Jamie Greene again for enabling the debate—if not perhaps for wanting to bypass the consultative process that is needed before we arrive at an end point, which I sense has a growing inevitability about it.

17:15  

Three weeks ago, the chamber stood united to condemn violence against women. We remembered women who had had their lives cut tragically short and we promised to improve the safety and wellbeing of women in Scotland.

During that debate, I mentioned that we needed to legislate better to eliminate violence against women. One way of doing that would be to end the not proven verdict, as it is commonly used in sexual crime, particularly in rape cases. Several women’s rights organisations, including Rape Crisis Scotland, have supported the ending of the not proven verdict; their position is clear that that court ruling must go.

During the Scottish National Party’s time in government, the number of sexual crimes has more than doubled. The conviction rate for rape currently stands at 46.1 per cent, which is lower than that for other crimes. In 2019-20, the not proven verdict was used as an equal acquittal verdict 74 times in rape and attempted rape cases. That figure makes up 44 per cent of the acquittal verdicts that were issued in the 300 cases that proceeded to court in Scotland. Those statistics prove that the not proven verdict disproportionately impacts women, which is why the Scottish Conservatives are committed to ending it through our victims law.

The Scottish Conservatives first called for the abolition of the not proven verdict more than a year ago. In 2019, “Equally Safe: Scotland’s strategy to eradicate violence against women” was published. It contained a commitment to

“undertake research into jury decision making to improve understanding of the factors that influence juries’ decisions in solemn criminal cases.”

The strategy was published almost three years ago, but the Scottish Government announced that consultation was finally under way only a few days ago. Similarly, the Scottish Greens called for the not proven verdict to be scrapped in their 2020-21 manifesto. Why the delay?

Should the Scottish Government continue to dither over the scrapping of the not proven verdict, the justice system could continue to fail more women.

Will the member take an intervention?

I have only four minutes and I would like to make some progress—I am sorry.

We cannot continue to ignore a justice system that favours the perpetrator over the victim. If we do, the words that we all spoke three weeks ago were for nothing and will have achieved nothing.

Today, women and girls are more confident in reporting incidents. Sadly, low conviction rates and incidents of a not proven verdict jeopardise that confidence, which could lead to fewer attacks being reported to begin with. The conviction must be aligned to support women and girls.

We need to go further than ending the not proven verdict. We need other laws, such as Michelle’s law and Suzanne’s law, to be fully implemented to support victims and their families. The Scottish Conservatives have pushed for better legislation to support victims, and the Scottish Government must realise that the current justice system is not fit for purpose.

When we look at the amendments, it is clear that political parties are not worlds apart in looking at ending the not proven verdict, but progress has been at a snail’s pace. I understand that the justice system is complex and interrelated and I realise the Scottish Government’s desire for a consultation. However, we need to realise too that many are frustrated by the time that it has taken for the Scottish Government to take the matter seriously. I can understand why a woman who has been subjected to a heinous crime such as rape might feel at present that the justice system will not allow for them to have closure, free of stigma, should the verdict be viewed as not proven.

I look forward to the day when women and girls feel that the justice system works for and not against them. Ending the not proven verdict is the right thing to do. It is an important step towards stronger legislation that protects women and girls, and I am sure that MSPs of all parties will support that objective.

17:19  

Like Martin Whitfield, I am a late substitute to the debate. We shall see how we get on.

We have the three verdicts and the suggestion is that we move to two. That clearly would be simpler and more clear cut than the present system.

I welcome the Government’s consultation. It is clearly a more complex question than some are suggesting. As we have heard, among the points to be considered are the size of the jury, the majority required and corroboration, as Christine Grahame pointed out earlier.

Apart from its final few words, I also agree with quite a lot in the Conservative motion and with some of what Jamie Greene said. We want to improve the system. We want to give women who have been victims of rape or other violence a better result.

If we are moving from three verdicts to two, the question for me is what the two verdicts should be. The main suggestion is that we should drop the not proven verdict, but I suggest that that is not the only option. Perhaps we should consider that the two options could be proven and not proven. If the choice is between keeping not guilty or keeping not proven, which is better? Which is more honest? As I understand it, the question for the jury is whether the Crown has proven its case.

Beyond reasonable doubt.

Christine Grahame reminds me that it has to be proven beyond reasonable doubt.

For example, the accused might be innocent or they might be guilty but the Crown has failed to prove its case. In that kind of situation, is it really right or honest to say that that person is not guilty? Would it not be better and more honest to say that the case is not proven?

I understand that there is some support among legal professionals for the verdicts to be proven and not proven, but I accept that that is currently a minority view and the trend is towards dropping not proven. My purpose is really just to ask that all options be considered and that we do not immediately jump to conclusions about which verdict should be dropped.

Again, I welcome the consultation and I encourage as many people as possible to take part in it. I hope that the Government, Jamie Greene, the Opposition and the whole Parliament will listen to the responses that come in with genuinely open minds.

17:22  

I give this speech on behalf of my colleague, Claire Baker MSP, who is unable to contribute because of technical difficulties. I also take this opportunity to thank the Presiding Officer and members for their indulgence.

I am pleased to contribute to this afternoon’s debate. The motion is focused on the removal of the not proven verdict—a position that I previously supported when my former colleague Michael McMahon promoted a member’s bill on the matter. The debate allows for some broader reflection on related issues.

The arguments that were made in 2016 for removing the not proven verdict remain today. Rape Crisis Scotland states that almost a quarter of trials for rape or attempted rape result in a not proven verdict. The verdict is shown to be used disproportionately in rape and attempted rape cases. In 2019-20, 44 per cent of acquittals in rape and attempted rape cases were based on the not proven verdict, in comparison with 20 per cent for overall crime.

There is evidence that juries find the verdict to be confusing. There is the misunderstanding that it is in some way different from a not guilty verdict, or that it provides a third verdict. Rape Crisis Scotland has described it as “an easy out” for juries that results in guilty people walking free. It also results in people who receive the verdict still being regarded with suspicion, as though they have in some way evaded the jury.

I welcome the consultation, but, given that it is more than five years since the then Justice Committee worked on the previous bill, we can anticipate the debate and the positions that will likely be taken. At that time, the Justice Committee described the verdict as “living on borrowed time”. The Government should conclude the consultation, but it should realise that change also requires leadership and that there are parliamentary consensus and manifesto commitments about delivering on the matter.

However, I do not underestimate how difficult the matter is. The briefing from the Law Society of Scotland reminds us that the principles of our system are the presumption of innocence, respect for the rights of all involved and minimisation of the risk of wrongful conviction.

However, I argue that there is, in cases of rape and attempted rape, an imbalance that fails women and girls and denies them justice. In Scotland, only 43 per cent of rape and attempted rape cases result in a conviction, compared with the overall conviction rate of 88 per cent—a figure that is more than double the level of successful convictions for rape and attempted rape.

In 2019-20, 2,343 rapes and attempted rapes were reported to the police—we must remember that it is an underreported crime—but there were only 300 prosecutions and just 130 convictions, which is surely not acceptable. Even though we are talking about a crime that is, overwhelmingly, committed against women by men, that causes extreme distress and trauma, and which can have long-lasting effects on people, it is a crime that is extremely difficult to prosecute. Even when a case is prosecuted, it is difficult to get a conviction.

Rape is a crime that is often not even recognised as a crime, and it is one in relation to which, for the perpetrator, there is a reasonable likelihood that there will be no consequences. We have seen women taking their cases to the civil courts in order to gain justice and have the crime acknowledged, but that is not the appropriate route for the severity of the crime. Following the case of Denise Clair, who bravely waived her anonymity to speak about her experience, I have raised concerns about women having to resort to use of the civil courts.

In 2018, Miss M successfully sued Stephen Coxen in a Scottish civil court, with the sheriff saying that the evidence against Coxen was “compelling” and “persuasive”. That followed a not proven verdict in 2016. It was the first time that someone who had been cleared in a criminal trial was subsequently sued.

Will the member take an intervention?

I am sorry, Ms Grahame. The member is now over time and is concluding.

I apologise.

Much is made of the lesser burden of proof in civil cases. Lady Dorrian’s report on justice responses to sexual crimes examines the way in which juries hear rape cases. I acknowledge the arguments that are made for reforming the requirement for corroboration in Scots law. Corroboration presents a barrier to convictions in sexual assault cases, but we should recognise that 300 cases did not reach trial in Scotland—

Please conclude, Mr Whitfield.

Under the current system, there is no evidence to support the argument that more cases going to court will result in a higher conviction rate.

Thank you, Mr Whitfield.

More people must experience trauma but achieve no conviction—

Thank you.

17:27  

I understand why Jamie Greene lodged his motion on behalf of his party. He is on the Criminal Justice Committee, as I am, so he has heard at first hand the heartbreaking evidence from witnesses about their feeling that they have been failed, and sometimes—in cases such as those that we are discussing—even retraumatised by the justice system.

However, there can be no doubt that today’s motion is nothing more than simple politicking, because Jamie Greene knows, as other members have said, that the Scottish Government is currently reviewing the not proven verdict. As members of the Criminal Justice Committee, he and I both know that there is a genuine and cross-party commitment to ensuring that Scotland’s justice system is fair and transparent, and that it meets the needs of modern society. The three-verdict legal system, which is unique to Scotland, has long been divisive, and we all have our personal views on it.

Although it is likely that I share the sentiments of Mr Greene, Ms Gallacher and other Tory members who have spoken on the issue, Mr Greene knows that our legal system is very complex, that we must think carefully about what to do and that we must not make the situation worse for complainers—as Rape Crisis Scotland fears we could.

The detailed and extensive consultation that has been launched will ensure that the matter is considered carefully and that all aspects of it are taken into account. As members know, the consultation opened on Monday and will run until March. The important and integral issues of jury size, the majority that is required for conviction and the requirement for corroboration will also be taken into account.

The issues are complex, and our Parliament has been here before with the requirement for corroboration, to which, ultimately, no changes were made. Therefore, a period of thorough consultation is needed to ensure that we get it right. Unfortunately, that means that the process will take some time, but I would prefer that the job be done well rather than rushed through, with the outcome being its not being fit for purpose. Legal professionals, the third sector and people who have lived experience of the system all need time to give considered opinions. We cannot reach a decision until we have listened to all the key stakeholders and have a full understanding of how all the different parts of the system might work together.

The Scottish Government is committed to ensuring that victims’ rights are at the heart of delivering justice. The programme for government promised to make it a priority to put the voices of victims and a trauma-informed approach at the heart of Scottish justice. This year, the Scottish Government will unveil a new funding programme that will ensure that there is practical and emotional support in place for victims, survivors and witnesses of crime.

We will also introduce a new framework that will be specific to the justice system and will give staff the knowledge and skills that they need to understand and adopt a trauma-informed approach. That will help them to support victims more compassionately. Having worked in the social work justice sector, I think that that will really overhaul the system and give victims the support that they need.

Most important is that we will also prepare for the necessary legislative process to appoint a victims commissioner. The commissioner will provide an independent voice for victims, champion their views and encourage policy makers and criminal justice agencies to put victims’ rights at the heart of justice.

We also know that serious consideration will be given to the recommendations of the Dorrian review, including those on the introduction of specialist courts and allowing victims to prerecord evidence. The cabinet secretary spoke about aspects of that at a very useful meeting of the Criminal Justice Committee this morning, for which I thank him. That builds on important work that was done in the previous session—for example, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, which was passed.

It is clear that we are committed to supporting victims and that the three-verdict legal system is undergoing the review that has been called for and is needed. If anything to make the system fairer and more trauma informed for complainers and victims can be done, we will do it. However, we will not make matters worse, so we must do this with careful consideration. I believe that that is exactly what the Government will do.

17:31  

I refer members to my entry in the register of members’ interests.

The Scottish legal system takes great pride in its reputation—specifically in elements that mark it as being different, including the not proven verdict and the requirement for corroboration. Those are held up as iconic elements of an historic system, and are—according to some—worthy of protection. However, not everyone shares that view, and it is often those whom the system hears from least, but whom it should be designed to protect, who argue most ardently for reform.

That is exactly the case with the not proven verdict. That historical accident remains in our system as a legacy from when juries adjudicated specific facts rather than assessed guilt or innocence. Organisations that support the complainers—or victims and survivors of crime—as well as victims and survivors themselves have been telling us for years that the not proven verdict is deeply problematic.

The not proven verdict is reached disproportionately in rape and attempted rape cases. In 2019-2020, the overall incidence of not proven verdicts was 1 per cent. Among jury trials it was 5 per cent, but in rape or attempted rape trials it was 25 per cent. We know that it accounts for nearly double the amount of acquittals in rape and attempted rape cases compared with acquittals for all crimes and offences.

So, why does that matter? The not proven verdict has exactly the same impact as a not guilty verdict and can be as distressing—if not more so—for the complainer as a not guilty verdict. The not proven verdict has no legal consequences for the accused. It is reached disproportionately in serious sexual offence cases. Given the already woeful prosecution rates for such offences, that means that women tend to bear the brunt of such verdicts.

Clear evidence from independent jury research shows that jurors do not understand the not proven verdict and do not really know what it means. It is not defined in law or practice, nor is the difference between it and a not guilty verdict defined. Indeed, the appeal court of the High Court of Justiciary has instructed judges not to attempt to describe the difference and has called it “highly dangerous” to do so. That means not only that it is not well understood but that, because of poor understanding, it is reached inconsistently. Also, when it is reached, there is a clear mismatch between the messages that are sent by the jury in reaching the verdict, and those that are received by the public. No one knows what it means.

In 2019-20, 43 per cent of solemn sexual offence cases led to convictions, compared with 77 per cent of solemn prosecutions as a whole. That says much about society’s attitudes to victims and survivors of rape, and it is clearly bound up in patriarchal structures that victim blame and do not believe women.

However, whatever the reasons for it, the low conviction rate for rape indicates that there is unwillingness to convict. There is evidence to suggest that the not proven verdict is reached as a soft acquittal opinion. There are real worries that the existence of the verdict gives juries in rape trials “an easy out” and that it contributes to guilty people walking free.

The not proven verdict enables rape myths and the stigma that is attached to them to be propagated. Complainers in such cases say that it does nothing to encourage them or others who have suffered gender-based violence to have faith in the criminal justice system. None of that helps complainers, victims and survivors of sexual crimes, and none of it aids the work that we must do to ensure that our justice system is able to tackle the imbalances and inequalities of power in society.

I will close with the words of a survivor who has campaigned passionately for the abolition of the not proven verdict, who said:

“get rid of the not proven verdict as it’s degrading, heartbreaking and they all laugh in our face because in my eyes they got away with their disgusting acts of abuse and as always told me ‘no one will believe you if you tell’. That is exactly how it feels.”

17:35  

The not proven verdict, which is perhaps the most unique aspect of Scots criminal law, has split opinion through the centuries. It is easy to see how controversial the verdict is from its many names: the convenient verdict, the sophisticated but ungracious verdict, or the second-class acquittal. It is characterised as both ambiguous and indefensible. Sir Walter Scott, perhaps Scotland’s most famous lawyer, even referred to it as a “bastard verdict”, and said:

“One who is not proved guilty is innocent in the eyes of the law.”

That is a view that many share, and it is the reason why we are gathered here today. Just as elected representatives and judges in Scotland have gathered to debate the issue, not just in 2016 but in 1994, 1975 and even in 1728, when a Scottish jury declared its ancient right to pass a judgment of not guilty rather than use the term “not proven”.

A “historical accident” is how some have described the verdict. Numerous legal academics support that theory. It has been noted that

“there were no set forms of verdict used by early juries”

and that a wide range of terms was used. Not proven was just one verdict among many, with those found guilty sometimes being found “fylet, culpable and convict”, whereas those who were not guilty were “clene, innocent and acquit”. Not proven is the product of a messy legal system: a wrinkle from a different time that has never quite been ironed out, and one that is now having severe repercussions in the 21st century.

We hear it from all corners of society: from the families of murder victims, victims of domestic abuse, and women’s rights organisations. Rape Crisis Scotland, Scottish Women’s Aid and the Scottish Women’s Rights Centre have all campaigned to abolish the verdict.

“Not proven is not justice”

they say, and they are right. The role of not proven in cases of sexual violence is evidence enough for the verdict’s removal. Conviction rates for rape are much lower than those for any other crime. The removal of the not proven verdict would strengthen the law in this area and introduce an element of black and white to such cases, rather than the unsatisfying ambiguity that a not proven decision leaves behind.

What is more, if the verdict was a satisfactory way to resolve cases, we would be seeing it used in courts around the world. Instead, we find that only 0.06 per cent of the world’s population live in jurisdictions that use the verdict. That should say it all.

It is time for a little housekeeping in the Scottish legal system. We have heard many statistics, case studies and arguments made by my Scottish Conservative colleagues calling for the abolition of this ancient verdict. They are right, as history has shown time and again. Not proven has no place in our legal system today, just like a horse and cart has no place on a motorway.

Will the member give way?

I am on my last sentence.

I urge members to support the motion and abolish this out-of-date verdict for good.

17:39  

Everyone in the chamber agrees that we need a fair, transparent justice system that works for the victims of crime and, in particular, one that supports survivors of gender-based violence, rape and attempted rape, and domestic abuse.

On Monday, as the Tories know, the cabinet secretary confirmed the launch of a consultation on the three-verdict system and related reforms. It is right that people, including survivors, get to have their say, and I encourage as many people as possible to participate. I know that the Scottish Government will listen carefully to what survivors, the third sector, the police, legal experts and other stakeholders say on the matter and will take a reasoned position.

Reform of the justice system is a complex matter. There are many facets to ensuring better outcomes for survivors of crime. Abolition of the not proven verdict alone will not necessarily guarantee that, as the mock jury evidence showed and as the Law Society of Scotland highlighted.

Right now, to tackle crime, the focus must be on supporting all sectors of the criminal justice system to function well and recover from the effects of the pandemic. The Scottish Government will increase investment in justice by 7 per cent next year, which is welcome. The Scottish Courts and Tribunals Service budget will be increased and investment of £26.5 million, through the justice recovery fund, will help to tackle the backlog of cases. That is paramount, to enable many people, particularly survivors of sexual crime, to get justice.

The Scottish Government’s work is wide ranging, rightly, and much of it focuses on prevention. Over the SNP’s period in office, crime, including violent crime, has fallen; most people do not experience crime. The Scottish Government is continuing its work to reduce crime, build safe communities and put victims and witnesses at the heart of the justice system.

Achieving the key aim of continuing to cut crime and reoffending will mean that there are fewer victims. However, until the day comes when we have eradicated crime—particularly the crimes that we are considering today, such as domestic abuse and sexual crimes—it is incumbent on Government to ensure that the justice system is fair and transparent and that it meets the needs of modern society.

Rape Crisis Scotland has published work that shows that most rape and attempted rape cases do not make it to court. Of the cases that made it to court in 2019-20, only 43 per cent ended in a conviction. Around a quarter of prosecuted cases resulted in a not proven verdict.

Along with colleagues on the Criminal Justice Committee, I have heard at first hand from survivors of gender-based violence about their views and experience of the justice system. It is essential that we listen to those people.

I welcome the Lord Justice Clerk’s review of the management of sexual offence cases. Regardless of the result of the consultation on the three-verdict system, I think that a specialist, trauma-informed court for sexual offences could work well.

We all want a fair justice system that supports victims and witnesses. Let us encourage people to engage with the consultation on justice reform so that any reforms are carried out for a purpose and our justice system meets the needs of 21st century Scotland.

17:43  

The debate has been interesting, but the issue has been debated for a long time and it is a bit disappointing that the Government is hiding behind further consultation rather than providing leadership on the matter.

We support the abolition of the not proven verdict, but we recognise that that in itself is not a resolution. Victims will still be let down if a not proven verdict simply becomes a not guilty verdict. We need a justice system that protects victims and brings perpetrators to justice.

We see an increase in sexual violence. Katy Clark and others talked about the fact that 70 per cent of the workload of the High Court is made up of sexual offences. Is that because we are not prosecuting those offences properly and offenders get off? Why is that type of offence on the increase? Is it because young people are getting their sex education from pornography? Is it because we live in a society where attitudes to sexual violence are strange and victim blaming is common? [Interruption.]

I ask members to desist from conversations across the chamber.

Katy Clark said that our justice system works for male perpetrators rather than female victims. As a society, we have to share the blame for that.

Martin Whitfield noted that 43 per cent of rape and attempted rape cases reach convictions, and he compared that with a figure of 88 per cent for other cases. That is a huge gap and it shows us what is wrong with our system. It is a wake-up call to all of us that the system is not working. He also spoke about the large number of cases that never reach court.

Katy Clark talked about the impact on victims of the backlog in our courts. Again, given that 70 per cent of High Court cases are to do with sexual violence, we can see that that backlog will have a disproportionate impact on women. It is difficult for those victims, because they are waiting for an outcome that is not forthcoming. Of course, when rape or attempted rape cases reach court, 44 per cent of them end up in a not proven verdict compared with 20 per cent of others. That is another wake-up call for us. Surely we can all see the difference.

Katy Clark also talked about Lady Dorrian’s review and discussed training for juries. It is right to address that issue, because Martin Whitfield talked about how easy it is for juries to use the not proven verdict as an opt-out. Maggie Chapman talked about jury members’ lack of understanding of the verdict and about prosecutors being discouraged from explaining it to them.

We all know that certain cases are difficult. Liam McArthur talked about how cross-examination in sexual violence cases retraumatises and belittles victims. It actually trashes their characters and makes them out to be liars, because those cases come down to one person’s word against another’s.

We need to make a justice system that is safe for victims. If we do that, we will get greater reporting. The justice system should be there for victims and not just for the sake of the justice system itself.

We support the motion, but we also believe that we need to make a big change to the justice system so that trials are conducted properly. We need there to be a step change in how cases are prosecuted. It is wrong that trials retraumatise victims rather than promote closure. We all have a duty to put that right.

17:47  

As I said in my opening speech, the Scottish legal system has evolved substantially over the centuries and it is vital that we ensure that it develops and responds to new evidence and is in line with the values of the people of Scotland—a point that was made by other members.

Liam McArthur’s contribution was measured and informative, and I support what he said. For his benefit, I say that, in relation to the issue of anonymity, we intend to proceed on that as we set out in our manifesto. The issue is complicated, of course, by the need to ensure that the system can cope with the online age, but we intend to address that issue.

In the 21st century, our justice system has to be person centred, transparent and fair to all, satisfying public confidence by reflecting the needs and views of those who directly participate in it and whose lives are impacted by it. It is for that reason that we think that the consultation is the right way to go. I am surprised by what I have heard from Labour members, because I did not realise that the Labour Party’s position was to say that the consultation was an exercise that we could hide behind. I think that it is a genuine attempt to engage with those who are most directly affected by the issue.

I certainly disagree with the Tory position. Jamie Greene said that, should the proposal be agreed to, it would represent one of the biggest changes in Scots law that could take place. I agree with that. The verdict is not a wrinkle to be ironed out and neither is dealing with it merely a piece of housekeeping. If we agree to the proposal, it would represent a serious piece of reform to the justice system.

I appreciate what the cabinet secretary said earlier. I believe that the consultation is the right approach to take, but I think that a commitment from the Government to introduce legislative changes in the course of this parliamentary session would offer the reassurance that members are seeking that the issue will not drift into a future parliamentary session.

I said to the Criminal Justice Committee this morning—I appreciate that Mr McArthur did not hear it—that Lady Dorrian’s numerous recommendations also require legislative change. Once we have been through the current consultation and we get a view on the interrelated matters, such as jury size, it will be possible to move forward with a suite of measures that will address some of the points that have been made. However, to go back to the previous point, we have a commitment to address anonymity on its own merits.

Will the cabinet secretary take an intervention?

I cannot. I am the only person who has taken interventions in the debate and I do not have much time left, so I apologise.

The matters are not straightforward but complex, so it is surely right that we engage properly on them before we take decisive action. How could we ensure that the reforms are effective and free from unintended consequences without having a full consultation process?

I listened with some disbelief to the Conservatives, who proclaim themselves to be the party of law and order, suggesting that we should disregard the views of the legal profession on a complex legal matter.

In September 2021, in a written submission to the Criminal Justice Committee, the Faculty of Advocates set out its opposition to the removal of the not proven verdict, which it views as a necessary safeguard in a system with a simple majority. The faculty argued that, if the not proven verdict was to be removed, that should not be done in isolation and that discussion and consultation would be necessary

“to identify the changes in our criminal justice system that would be required in order to accommodate such a significant change”—

not a tidying-up or a wrinkle—

“without jeopardising reliable justice”.

I have been clear that I have serious concerns about the not proven verdict. Just because the consultation is rightly holistic, that is not to say that one aspect cannot be reformed without corresponding changes to the others. However, it should not be reformed without considering what other changes might have to take place. Surely, regardless of what reform—if any—is ultimately undertaken, the opinions of the legal profession and the people who are most directly impacted by the verdict should be listened to. The right place to do that listening is in a full consultation, which is exactly what we are doing.

Of course, the views of the legal sector are not the only ones that we should listen to. We will continue to take the open and consultative approach that we have used to date, seeking to capture the views of a broad range of stakeholders, including the third sector and people with lived experience of the justice system, which includes those whom the Criminal Justice Committee has listened to, some of whom I have listened to and spoken with myself. They include survivors and victims of crime. Some of the discussions that have most shaped my thinking have been with survivors and I am eager to hear their views on the consultation.

As I noted in my opening speech, we must be mindful that the not proven verdict affects all cases, not just sexual offences. Therefore, any reform must take a holistic approach that considers potential impacts across the piece.

Many of us value the distinctive features of the existing Scottish criminal justice system. That is not, in itself, a bad thing, but I take Maggie Chapman’s point that those features cannot be venerated for their own sake and that we should ensure that the system reflects our current values. The value that we place on those distinctive features should not prevent us from asking questions or seeking new perspectives, particularly from people with direct experience of the criminal justice system, to drive further improvements and ensure that the system remains relevant.

The incredible efforts of justice partners, third sector organisations, the judiciary and the defence community during the Covid pandemic have made it clear that there is still tremendous potential for the justice system to benefit from collaboration, innovation and new ways of working. I trust that many of those stakeholders will contribute their thoughtful and considered opinions to the consultation and I look forward to considering the full range of views that we receive. I want to listen to what consultees tell us before we weigh all the evidence and reach a conclusion.

17:53  

In 1846, the British Parliament voted to repeal the corn laws, the liberty bell cracked while being rung for George Washington’s birthday and the planet Neptune was discovered. It was also the year in which the debate about Scotland’s not proven verdict began in earnest. Lord Cockburn, a former Solicitor General, wrote that not proven was incompatible with the presumption of innocence and stigmatised an accused. He added:

“It tempts jurymen not to look steadily at the evidence, and to give it its correct result; but to speculate about the possibility of soothing their consciences, or their feelings, by neither convicting nor acquitting, but steering between the two.”

Although his lordship’s language might sound dated, the essential arguments against not proven have barely changed in the 175 years since.

I am firmly of the view that the not proven verdict—which, as Sharon Dowey pointed out, is known by some as the “bastard verdict”—is long past its sell-by date. It not only serves no legitimate purpose, but actually corrodes public faith in justice. It is commendable that my party, and my colleague Jamie Greene, are leading the debate and seeking to abolish the not proven verdict as part of a broader range of measures in our proposed victims law. Entrusting jurors with the clearly understood two-verdict choice between a guilty verdict and a not guilty verdict would bring Scotland into line with virtually every other comparable criminal justice system around the world.

A trio of professors—James Chalmers and Fiona Leverick of the University of Glasgow, and Vanessa Munro of the University of Warwick—have produced significant research on the subject. In a submission to the Parliament’s Criminal Justice Committee, which I recommend that all members read, they explained that

“the not proven verdict ... is a historical accident and not a matter of conscious design.”

They said that—as Jamie Greene mentioned—the

“stigma that attaches to the verdict … operates by a nudge and a wink, carrying a meaning which no-one is willing to articulate and which, if they were prepared to articulate, would be seen as unjust and improper.”

They also pointed to evidence of jurors using the not proven verdict

“as a compromise ... to bring deliberations to an end, rather than engaging in more rigorous discussions.”

We are forbidden from knowing what goes on behind a jury room’s door, but the perception of not proven being a convenient cop-out has often been suspected.

Yesterday, I spoke with Marie Kearney, whose 24-year-old son Craig was killed in East Kilbride in 2017. Craig’s family, who were already suffering unimaginable grief, were further devastated when the accused walked free, with the murder charge not proven. The Kearney family will never know, but they worry—as Lord Cockburn expressed—about how the verdict was arrived at.

One of the benefits of closing the debate on my colleague Jamie Greene’s motion is having heard contributions from members on all sides of the chamber. Maggie Chapman, Katy Clark, Meghan Gallacher and the late substitute Martin Whitfield spoke about how the verdict is used disproportionately in sexual crimes, in particular the crime of rape, for which the conviction rate remains shockingly low.

I commend the work of Rape Crisis Scotland and its end not proven campaign. Crime victims have long campaigned for the not proven verdict to be scrapped. The verdict has caused, and will continue to cause, immeasurable harm.

Nine years ago, in 2012, an SNP justice secretary launched a consultation on scrapping the not proven verdict. A year later, in 2013, he kicked it further into the long grass with a two-year review. That concluded with a second SNP justice secretary opting to keep the verdict, while saying that yet more research was needed.

Would the member like to comment on the decades of Tory rule when nothing was done about the matter? Can he clarify that the Tory position is—as I understand it—not just to scrap the not proven verdict, but to scrap the consultation and move immediately to legislation without listening to the people who are most involved in the issue or to victims and other organisations?

I do not know what purpose any whataboutery will serve, but in respect of the timeline, I was trying to explain what the cabinet secretary’s predecessors had been doing.

In 2019, a study revealed that the not proven verdict may push jurors towards acquittal before they have even discussed the evidence. A third SNP justice secretary said it was time to consider not proven—subject, of course, to yet further consultation. During this year’s election campaign, that justice secretary then pledged to “consult” on abolishing not proven.

I am sure that the families of rape victims and murder victims felt as deflated and cynical as I felt on Monday, when a fourth SNP justice secretary, Keith Brown, revealed that he is to launch yet another talking shop about the not proven verdict. We have been talking about it for 175 years and Mr Brown’s Government has been talking about it for 10 years.

His party has been in Government for 14 years.

We know the arguments and we know what is right. The time for dithering and talking is over. I disagree with Mr McArthur’s view that we are jumping the gun, and I also disagree with Mr MacGregor’s assertion of politicking.

I think that it is appropriate to save the last word for Marie Kearney, who said:

“No one wants to know. There’s no justice. We are worried that the government is going to just keep dragging it on and nothing’s going to get done about it.”

That concludes the debate on ending the not proven verdict.