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Murder, Sexual Assault and the Ambiguous “Not Proven” Verdict in Scots Law

“Guilty” or “not guilty”. In the majority of courts, if a case is brought to trial, it will result in either of these two outcomes. However, Scots Law differs from many other judicial systems as it offers a third verdict: “not proven.” Established in the 1700s, a “not proven” verdict carries the same legal weight as a “not guilty” ruling. This conviction continues to be a site of conflict in the Scottish legal system; while Holyrood's Justice Committee declared it was on “borrowed time”, Douglas Thomson, of the Law Society's Criminal Law Committee contradicted that it is “logical” to keep the “not proven” verdict. On the one hand, this verdict requires substantial evidence to be presented to support the case, ensuring “not guilty” parties are not wrongfully convicted. On the other hand, it can also leave victims and their loved ones without legal closure. Is this verdict a symbol of progressive legal policies, or does it require urgent reform?

A research study conducted by Lee Curley, a student at Edinburgh Napier University, compared two separate mock murder trials with 128 participants using firs, a dual verdict system and then a system which included a “not proven” ruling. His study found that the number of guilty verdicts was similar across both systems, yet when the “not proven” verdict was introduced, the result of a “not guilty” verdict proved “significantly less likely”. Therefore, Curley reasoned that his study was evidence that the jurors do not modify their perception of guilt whether the system offered two or three possible verdicts. The “not proven” verdict simply allows jurors to demonstrate that they cannot find that the accused committed the offence “beyond reasonable doubt”, either due to their innocence or a substantial lack of evidence. Jurors are able to highlight their inability to sufficiently and effectively judge an accused’s guilt. Thus, the three-tiered system affords jurors an increased level of clarification and communication in their conviction.

While this additional verdict offers jurors greater communicative agency in murder trials, how does this ambiguous ruling fair in other cases? A body, a scene of a crime, a weapon, and an assailant are the key elements comprising murder case with the existence of the first three known to authorities. However, how is this verdict utilised when cases do not have known variables? What happens a case is principally based on one person’s word against another’s and the occurrence of the crime itself is called into question? When a witness does not corroborate the victim's claims that sex was against the parties' will, instead arguing that it was consensual, as in the case of Emma Bryson?

Rape and sexual assault cases in Scotland disproportionately end in a “not proven” conviction with evidence often based on contradictory testimonials. Clothes from the scene of the incident can be used as evidence, however, they must be left unwashed and bagged up as evidence as soon as possible. Hence, unless you report the incident immediately, it is unlikely that material evidence can be used in court. Another requirement of Scots Law is the presentation of testimonies (one being the victim's and another from a witness corroborating non-consenual sex) before a case can proceed to trial. It is often difficult to gather such evidence and victims scramble to gather eye-witnesses, medical reports, CCTV footage and the like. Given that the sources of evidence are testimonies of whether sex was consensual or not, this further complicates the judiciary process for already traumatic cases. Between 2017 and 2018, only 10% of reported rape and attempted rape cases were prosecuted in Scotland; of these 43.3% resulted in convictions – the lowest of any crime – while 19% were found “not proven”. Regarding the case of rape and sexual assault, the “not proven” verdict prevails above other crimes, unfortunately failing to deliver peace to victims who are left without justice.

In 2013, an anonymous female student, who identifies as Miss M, was attacked and assaulted during her second year at the University of St Andrews. This incident became a historic judiciary case in the Scottish legal system. One of the fiercest campaigners to eradicate the “not proven” verdict, Miss M advocates that the verdict “means that those who are raped are unfairly left without justice and those who rape face no consequence, no sanction for their actions.” She first took her rapist, Stephen Coxen, to Criminal Court in 2013, where the case was ruled as “not proven” despite countless testimonials arguing to the contrary. The verdict permitted her rapist to walk freely, with no judicial repercussions at the time. Later, when Miss M raised the case in the Civil Court, she was granted the justice the criminal proceedings had denied her. In this landmark case, the third verdict option failed a Scottish civilian, potentially endangering the lives of more women. If it weren’t for her relentless determination, Miss M may not have achieved the justice she rightly deserved.

While “not proven” may serve as insurance against a lack of sufficient evidence regarding homicide trials, there is no place for it regarding sexual assault cases. “Not proven” does not implement any lawful obligations, it presents a call to accumulate substantial evidence before concluding a final decision. However, this call to action is merely a suggestion as there is no obligation for investigations to continue in order to find more evidence. The case, therefore, remains unsolved which can understandably be disorientating for many. Particularly in cases of sexual assault, it can further stigmatise the victim and condemn them for failing to provide sufficient evidence for a conviction. It can also purport that the image presented to the court displays a sexual exchange which was consensual. Victims already have the daunting task of facing a complex reporting system and the lowest conviction rate of any crime. Although “not proven” affords communicative agency to jurors in murder cases, in regards to sexual assault cases, a third verdict serves to complicate the system and obstructs the path to justice. The absence of judicial binding to “not proven” signifies there is no requirement to continue with prosecution and assaulters like Stephen Coxen walk free. To ensure more victims of sexual assault are not failed by the Criminal Court in Scotland, it is time to put an end to the “not proven” verdict as it currently serves in sexual assault cases, thereby providing true justice for survivors.

If your or anyone you know is a victim of sexual assault, please contact the Rape Crisis Hotline at 08088010302 or the Fife Rape and Sexual Assault Centre at 01592642336.


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