Exclusive:MSPs warned not to 'cheapen guilty verdict' as not proven to be scrapped amid jury majority fears
MSPs will vote to abolish the not proven verdict and make changes to the majority required to convict - but fears have emerged it could make Scotland’s rape conviction rate even lower
The Faculty of Advocates has warned MSPs not to “cheapen the guilty verdict” ahead of a historic vote to abolish Scotland’s not proven judgment, as concerns emerge over proposals to alter the size of a jury majority.
The warning comes as a leading charity insists this week poses a “once-in-a-generation opportunity to improve the criminal justice system for survivors of rape and sexual violence” but has warned the plans to shake up jury majorities mean Scotland’s “terrifyingly low” rape conviction rate “will drop even further”.
The Scottish Government’s Victims, Witnesses and Justice Reforms Bill is set for its final vote this week but MSPs are poised for a potentially-gruelling tussle over amendments to the wide-ranging legislation.
The first stage vote of the legislation in April last year was overshadowed when then-backbencher Kate Forbes and five other SNP MSPs rebelled over the now-scrapped plans for juryless rape trials.
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But fears have emerged over the proposed changes to jury size and what constitutes a majority verdict. SNP Justice Secretary Angela Constance’s proposal would see a two-thirds majority for a conviction in a two verdict system - an increase on the simple majority currently needed.
Tony Lenehan KC, vice dean at the Faculty of Advocates, told The Scotsman: “The balance point for a guilty verdict must remain where it is.
“We cannot cheapen the guilty verdict, because the simple removal of the safeguard 'not proven' represents would increase the risk of wrongful convictions.
“The Scottish Government recognised this risk and balanced it by increasing the majority required.”
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The Law Society of Scotland remains concerned about the proposed changes to jury size and majority.
Stuart Munro, convener of the Law Society of Scotland criminal law committee, said: “We continue to have concerns about the current proposals around jury size and majorities if the not proven verdict is to be abolished.
“We’re not convinced the required balance can be obtained by a two-thirds majority as proposed in the Bill. All other comparable jurisdictions require unanimous or close to unanimous verdicts to convict.”
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But Rape Crisis Scotland, which has long-campaigned with survivors for the not proven verdict to be abolished, is calling on MSPs to seize the opportunity to overhaul the justice system for survivors and victims.
Rape Crisis Scotland chief executive Sandy Brindley said: “This Bill is a once-in-a-generation opportunity to improve the criminal justice system for survivors of rape and sexual violence.
“Despite the number of reported rapes rising, the conviction rate has remained the lowest of any crime type for more than a decade. After years of tireless campaigning and the survivors who have shared their experiences, we are finally on the cusp of change that has been desperately needed for so long.”
Ms Brindley added that “the not proven verdict is disproportionately used in cases of sexual violence”.
But she warned that Rape Crisis Scotland has “serious concerns about the proposed increase to the jury majority” and the “effect on rape and sexual offence cases”.
She said: “This decision will particularly impact rape and sexual offence cases.
“Conviction rates are terrifyingly low, research suggests a reluctance to convict rape cases, and deep-rooted societal prejudices around sexual violence affect public attitudes and jury decision-making every day.
“There is a real concern that convictions will drop even further under these plans.”
One survivor, known as Natalie, said a not proven verdict given after an appeal for an accused who was previously found guilty was “a cop out” that “leaves no sense of justice”.
She added: “It leaves survivors like me with no closure..a feeling of being disbelieved."
Another survivor said the not proven verdict is “soul destroying” and “leaves victims feeling let down not believed”.
She added: “It's a horrible feeling...I have sunk into depression. I've lost all my fight. I'm left broken by a system that's meant to protect.
“I believe having a not proven verdict muddies the water leaves the victim without answers in an already not supported court process."
Ms Constance told The Scotsman the “landmark bill”, if passed, “will put victims and witnesses at the heart of the justice system, while continuing to protect the rights of the accused”.
She added that abolishing the not proven verdict will produce “clearer, fair and more transparent decision-making”.
The Justice Secretary said her proposed reform of juries will “increase confidence that verdicts are returned on a sound, rational basis while ensuring balance and fairness to all parties”.