Victims, Complainers & Not Proven
Now that the dust is beginning to settle on the passing of the long-in-the-making Victims, Witnesses and Justice Reform (Scotland) Bill, it is time to take stock of what this “landmark” exercise in law-making actually delivers.
The purpose of this legislation, we’re told, is to place the interests of victims at the heart of the justice system. Justice is to be “victim-centred”. Nothing remotely contentious in that, you may think. The problem, however, is in who gets to define “victim”. This is actually a serious question, with very serious implications. Our politicians, and special interest groups – a prominent example is Rape Crisis Scotland, whose influence in the direction of the legislative agenda is remarkable, (and in stark contrast to the victims we represent, who struggle to be heard, far less listened to) – do not (or choose not to) understand the difference between a victim of crime and a complainer of crime. That’s deeply worrying, because the distinction is an important one if you’re looking for actual, rather than apparent, justice. Those who allege sexual crime are now accorded, automatically and apparently as of right, the status of victim. I say “now”, but this dangerous situation has been in the making for at least seven years. We at MOJO, among others, raised strong objection to the introduction of this practice in August 2018, in the course of the Scottish Government consultation on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. We did so in both written submissions and in oral testimony to the Parliament’s Justice Committee. Why does this matter? Sadly, the Justice Committee was not persuaded on that occasion that it does. And clearly that attitude prevails to this day. But it does, really, matter. This is not some fine lawyers’ point; it is fundamental to the way we achieve and deliver justice. Or it used to be. Surely justice, at minimum, should be available to all, not uniquely and exclusively to complainers of crime? Sorry, victims. It is the function of our courts, and specifically of our juries, to determine whether an accused’s guilt has been proved. What’s left to be determined, and where lies a jury’s independence, when a victim has already been identified before a syllable of evidence has been heard? It was once a given that an accused person was to be presumed innocent until their guilt was established, beyond a reasonable doubt, according to law. What remains now of that presumption of innocence? For where there’s a victim, there must be a crime.
The most reported and discussed aspect of the Victims Bill has been the abolition of the “not proven” verdict. And in the mass of comment about this, some strange things have been said, by the Justice Secretary and others. Prominent among these is the proposition that victims are routinely denied justice by the existence of this verdict. It is, apparently, an impediment to justice – although what is actually meant is an impediment to conviction. For, in the context particularly of alleged sexual offending, just as the word “complainer” is now synonymous with “victim” so, too, is the word “conviction” synonymous with “justice”. Juries who acquit in sexual offence trials are routinely deemed to have failed the “victim”. Think back to the hysterical reaction to the acquittal of Alex Salmond. Anyway, back to victims being denied justice by the not proven verdict. This proposition clearly assumes that, in the absence of the “not proven” option, juries would, or should, have returned a verdict of conviction. This is simply, and manifestly, illogical. Every jury is clearly instructed that it can convict only where it is satisfied that the guilt of the accused has been proven beyond reasonable doubt. Failing that, the jury must acquit. In every case where a jury returns a verdict of not proven it is declaring, in literal terms, that the evidence against the accused has failed to meet that standard. Absent the option of not proven, the jury would still be bound to acquit, and properly so.
In abolishing the not proven verdict Parliament has got it half right, at best. Why so? Because while the switch to a two-verdict system brings us in line with other jurisdictions, we remain seriously out of line in another important respect. Uniquely in Scotland, juries with three verdict options have been able to convict on the votes of a simple majority – 8 out of 15. Those other jurisdictions we now look to emulate require a unanimous, or near unanimous verdict. A conviction can result only where not more than two jurors, or one sixth of the jury, dissent. Here, following on the current exercise, a conviction will still be possible even where 5 jurors, or fully one third of the jury, has a reasonable doubt. This, with no hint of irony, our Justice Secretary describes as a measure to protect the rights of the accused.
The charitable interpretation is that the Victims Bill has been cobbled together in the absence of an understanding of the problems it has attempted to address. To be clear, we support the removal of the third verdict from our law. We recognise that this puts us at odds with other stakeholders. We say, and we said this in our own contribution to the consultation on this Bill, that the option of a second verdict of acquittal serves only to stigmatise the innocent. Where there are two levels of acquittal there are two perceived degrees of innocence. The hapless recipient of a not proven in Scotland, who in any other jurisdiction would have been fully entitled to a clear not guilty, is deemed to be less “not guilty”. Again, this is not some abstract lawyers’ point. It has real and devastating consequences. A client of this organisation who served five years in prison for alleged sexual offences of which he was entirely innocent was eventually acquitted at re-trial, following on a successful appeal. The Scottish Government…yes, the Scottish Government, ruled him ineligible for compensation because his acquittal founded on a not proven verdict. Why? Because, they said, he had not been “fully exonerated”. If the Scottish Government doesn’t understand the law, then it is perhaps less surprising that they should be intellectually confused in their attempts to change it.
Despite the extravagant headlines and all the online hype, the real risk of injustice in this context doesn’t come from the not proven verdict. Rather, it comes from the existence of three possible verdicts. This can be easily remedied by reducing the choice to two – which is, after all, what is happening now – but the available verdicts would be more honest if they were to reflect the choice that juries are actually required to make. A jury’s task is to decide, and only to decide, whether the prosecution’s case has been proven beyond reasonable doubt. A binary choice: yes, or no. The answer is surely better and more accurately expressed as either proven, or not proven. Too innovative? Well, no. This is actually how we used to do it in Scotland before one 18th century jury returned the unorthodox and novel verdict of “not guilty”, presumably to stress their belief in the accused’s innocence. In the event, this unhappy development is probably where the whole problem of two perceived degrees of innocence started, and it is surely ironic that the real third verdict – not guilty – was first employed to emphasise, rather than to undermine, the innocence of the accused. Even at that, it did not resolve the anomaly that while our courts have the power to find you guilty, they have no power to find you innocent. This can only be resolved when it is clearly defined in law that an acquittal restores, formally and unambiguously, an accused’s presumption of innocence. Sadly, the direction of travel in the development of our criminal justice process tends ever more in the opposite direction. In recent years we have seen a bonfire of the protections we once proudly afforded to those accused by the state, lit and fuelled in the service of an openly admitted imperative to increase conviction rates. As an informed and authoritative commentator recently put it, the argument advanced by the advocacy groups to which this government listens appears to be that not enough Scottish men and boys are being convicted. In this process, the most basic of the aforesaid protections, the presumption of innocence, has come to have no practical meaning.
It diminishes not one jot the legitimate rights of complainers or of victims of crime to maintain proper safeguards for the rights of those who are accused. Mature, credible democracies understand this. It may not win votes, but it is the right thing to do, for reasons much more important than popularity or political expediency. Particularly in today’s political environment. I can only hope that this may dawn on us in Scotland before it is too late. But I’m not holding my breath.
