(CN) — In Scotland, criminal trials can end with three possible verdicts: Guilty, not guilty and not proven. Rape victims and women’s groups launched a campaign this month to scrap the unusual, and long-contested, not-proven verdict, which acquits a defendant on the grounds that the prosecution could not prove guilt beyond reasonable doubt.
The three-verdict system, with roots in the 17th century, has its defenders and detractors. Attempts to abolish the not-proven verdict have failed in the past. It’s not the only quirk in Scottish courts: A conviction needs only a simple majority of 15 jurors.
The debate over this complex verdict system comes as the Justice Committee of Scotland's Parliament, the Holyrood, is reviewing how juries make their decisions. The committee is examining the three-verdict system, and British media have reported the committee as saying the not proven verdict is “on borrowed time.”
The campaigners against not-proven verdicts — led by Rape Crisis Scotland — say they are used disproportionately in rape trials and serve as an “easy out” for juries unwilling to convict people of rape.
Rape Crisis Scotland found that in 2016 and 2017, 30 percent of acquittals in rape cases ended with a not-proven verdict: nearly double the rate for all crimes and offenses. The group also found that 39 percent of rape cases ended in convictions, the lowest rate for any crime.
“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 group said.
The campaign is supported by a woman who won a landmark civil case in Scotland. The woman, identified as Miss M. by British newspapers for legal reasons, accused a man of raping her in 2013 when she was an 18-year-old student at St. Andrews University, a prestigious public university near Edinburgh.
In 2015, though, a high court jury found the charges against Stephen Coxen not proven, and he walked free.
Miss M. did not give up the fight and took her case against Coxen to civil court. In October this year, an Edinburgh sheriff found Coxen raped her when she was too drunk to consent to sex. Rape Crisis Scotland said her case represented the first civil damages for rape after a failed criminal prosecution in nearly a century.
Miss M. called the not proven verdict “clouded with ambiguity.”
“The certainty we apply to guilty and not guilty does not apply to not proven,” she said in a statement.
“I am calling on the Scottish government to give survivors a chance,” she added. “There is no convincing argument to retain the outdated verdict. It’s time to scrap not proven for good.”
Many lawyers have argued that the not-proven verdict also harms the accused, by suggesting a defendant was acquitted due to a technicality or a poorly handled prosecution.
Defenders of the not-proven verdict say eliminating it could have unintended consequences.
Brian McConnachie, a high-profile Scottish criminal defense lawyer, said in an interview on BBC Radio that juries are not confused by the option of rendering a not-proven verdict, and that it provides a jury with the chance to express a degree of doubt.
“I don't think it’s an ‘easy out’ at all,” he told BBC, according to The Herald, a Glasgow newspaper. “They are told that they are both verdicts of acquittal and therefore if they weren’t finding somebody not proven, if that didn’t exist, they would be finding them not guilty."
The Herald also reported in an opinion piece that defenders of the law say abolishing it “would undermine Scots law” and amount to “importing an Anglicised system on a wave of emotion.”
(Courthouse News reporter Cain Burdeau is based in the European Union.)