5 April 2013

The Bastard Verdict

This morning, in a piece headlined "Campaigners: ‘Not proven’ allows rapists to go free", the Scotsman report that Rape Crisis Scotland has come out against Scotland's "bastard verdict" of not proven in their submission to the Scottish Government on abolishing corroboration.  I don't have the full text of their submission, but as far as the article tells, therein the organisation contends "that guilty people are walking free" because of the third verdict and that "not proven" acquittals "can be as devastating to victims as a not guilty decision". The organisation's national coordinator, Sandy Brindley, is quoted to the effect that:

We’re concerned it gives juries an easy way out of difficult decisions. They are particularly prone to going for not proven in rape cases, particularly ones which do not conform to the stranger rape scenario. The one positive with not proven is you can say to the woman, ‘this does not mean you weren’t believed’. But it’s still an acquittal, and the experience is still devastating. The bottom line for the survivor is the person who raped them is walking free – not proven is not going to change that.”

Empirically, it is certainly the case that juries avail themselves of the "not proven" verdict far more regularly in trials alleging rape and attempted rape than in criminal proceedings alleging other offences.  The latest data for 2011/12 shows that 53% of people indicted for rape or attempted rape were convicted in the High Court, while 38% of accused persons were acquitted. Not proven verdicts constituted the minority of acquittals (44%), but a substantially higher percentage of acquittals than the average, across all categories of crime, from homicide, crimes of dishonesty, vehicular offences and so on (18%).

Whatever impression courtroom dramas might cultivate about the percentage of folk who secure acquittals, it isn't the case that vast swathes of folk who end up in the dock walk free, guiltlessly. Across all categories of crimes prosecuted in 2011/12, 87% of accused persons were convicted, with "not proven" acquittals making up just 1% of all outcomes in cases which came before our criminal courts.  

Because of the sheer volume of criminal work, however, the actual number of acquittals is not insubstantial.  Of the 124,736 people proceeded against in 2011/12, Scottish judges and juries acquitted some 5,497 of them. The bare percentages can be misleading on rape and attempted rape prosecutions too. In 2011/12, just 94 people were proceeded against in court, accused of rape or attempted rape. Fifty were convicted, twenty acquitted on a "not guilty" verdict, and sixteen where the jury determined that the charge was "not proven".

So why eliminate "not proven"? To my eye, Rape Crisis Scotland is making two distinct points. Firstly, they are rebutting the contention that the verdict softens the blow for the complainer to any substantial extent, where juries fail to convict the accused. As an empirical assessment of the experiences of those who have gone through the trial process, and heard the acquittal pronounced in court, this seems highly plausible. It is not, however, a fatal critique of the third verdict. It merely undermines one reason, amongst other reasons, used by its proponents to justify its retention.

From the perspective of complainers, the distress clearly results from acquittal, not the form of the acquittal. The same critique - if we can call it a critique - could be made of the not guilty verdict.  As a consequence, today's criticism of not proven is really a catspaw for the broader, more familiar argument that the conviction rate is too low. And what's more, as the statistics indicate, while it is true that a far larger percentage of acquittals in rape proceedings are not proven than on average, the actual number of not proven acquittals in the High Court are not terrifically high. As barriers go to securing rape convictions, the "not proven" verdict seems at most of peripheral significance, the impact of its repeal negligible. A red herring, all said.

So why recommend it's abolition? Here we come to Rape Crisis Scotland's second contention, that the verdict produces wrongful acquittals which a simple "guilty or not guilty" choice would avoid. Because of the seal on the jury room, and the illegality of conducting empirical research on jury decision-making, there's no hard evidence to confirm or refute Brindley's thesis. But for the sake of argument, how might "not proven" be exercising this baleful influence? Unhelpfully, the Scotsman piece does not elaborate at much length, but I'll hazard a guess at the reasoning which might underlie this claim.  

Juries are saturated with myths about rape, unreasonable suspicions about the credibility of complainers, and patriarchal assumptions about sexuality which distort their deliberations. Combined, these wrongheaded apprehensions produce an environment where jurors are given excessively to doubt the veracity of complainers and are reluctant to convict accused persons. Particularly in circumstances where the accused does not conform to uncritically accepted ideas about the appearance, social class or manner of a rapist, or where the complainer's behaviour or manner in the witness box deviates from the jury's ideas of how a credible victim comports themselves. Or, as Brindley says, where the alleged sexual assault occurred - as most sexual assaults occur - in domestic circumstances where the victim and the perpetrator are known to one another, and may have been in a romantic relationship at the time the alleged offence took place. Apprehensions of stranger danger still cast a long shadow.

All of which may be true, but as far as I can see, these points relate only very tenuously to the availability of the not proven verdict to juries.  
Brindley's argument has to be that by eliminating the not proven verdict, juries will apply themselves more seriously to the issues of guilt or innocence than they do at present. Implicitly, she suggests that that harder choice, without resort to an ambivalent acquittal, will lead to higher rates of conviction. Given the straightened choice of guilt or innocence, in Brindley's model, our currently lax, evasive or myth-saturated juries would behave differently. But why should we expect this to be the case? Isn't it much, much more likely that an undecided jury, unable to find the charge proven beyond reasonable doubt at present, will continue to vote to acquit whether or not they have one or two acquittal verdicts available to them?

If the reason that juries are not convicting more people is attributable myths about rape, unfair scepticism about the credibility of complainers, or because of an elementary lack of evidence in cases turning primarily on the issue of consent, eliminating the third verdict does precisely nothing to challenge any of these factors. As we can see from the English and Welsh experience of prosecuting sexual offences, we can expect them stubbornly to persist under a two verdict system too. There are many reasons for the low conviction rate for rape in our justice system. The bastard verdict isn't one of them.


  1. Reducing the number of verdicts available to two will not (you are correct) do anything to tackle rape myths and rape culture. Neither will doing away with the need for strict corroboration. Neither will increasing the majority required for a jury verdict. Nonetheless, I support all three changes as the start of a long overdue modernisation process of Scottish criminal law. Until we had devolution, for 300 odd years, Scots criminal law was all-but frozen, as there was little time or appetite at Westminster for the kind of constant tweaks and process changes that national criminal justice systems normally undergo. Now we have a devolved Parliament, this process has started. I'd like to see review go far wider (personally I would do away with the adversarial system all together and adopt a more continental way of doing justice. Perhaps even without juries at all). But it seems the conservative (small c) lawyers that work in criminal justice in Scotland are going to oppose every single change proposed by the Government which might make the process better and fairer for victims and witnesses.

    I wish people would understand that it's not a zero sum game. The rights of an accused person to a fair trial are not reduced by also considering fairness for victims and witnesses.

    1. Riotgrrl,

      Much there I sympathise with. On corroboration, as I've blogged here before, I don't share the entrenched opposition of the legal establishment to its abolition. Generally speaking, I've found those defending its retention - whatever other safeguards might be introduced - are seriously overstating its efficacy as a protection for accused persons. That said, I do worry, as I've described at more length elsewhere, that the promise of justice associated with the bare abolition of corroboration is something of a fantasy. Not a zero sum game, perhaps, but a call to reality about what abolition might achieve. The same goes for me here. One can sympathise with Rape Crisis Scotland's position. As I said in the piece, some of their points are clearly compelling and justified. I don't think, however, we should give a free pass to organisations whose general goals we sympathise with, to peddle baseless nonsense in their pursuit. Your point about adversarialness is interesting and well-taken. In many ways, the 2009 Sexual Offences Act was arguably a missed opportunity to think in a more radical way about these issues.

    2. "One can sympathise with Rape Crisis Scotland's position. As I said in the piece, some of their points are clearly compelling and justified. I don't think, however, we should give a free pass to organisations whose general goals we sympathise with, to peddle baseless nonsense in their pursuit."

      Blimey, be careful. I've been called a misogynist and a "rape apologist" for less than that...

  2. The rights of an accused person to a fair trial are automatically reduced by a "sex crime". Guilty by accusation. In graph #2, perhaps 47% OR MORE of the accused are innocent. The law states that "showing distress" is now evidence - be that genuine distress or otherwise!! This makes it quite easy to find a man guilty even where the sex was consensual. This, combined with the Scottish Criminal Justice System pushing, unfairly, for statistics, puts men in a very vulnerable position. European statistics. Could it be that less men are guilty in Scotland and more females falsely accuse than the Euro average? We don't want rape to happen (I myself have two daughters) but we need to be careful and protect the innocent, the wrongly accused, too.

    1. Hoppy,

      Is there any evidence whatever for your opening gambit? The idea that our justice system operates according the the regime of "guilty by accusation" is risible, not least by dint of the data I charted above. Something shy of 100% conviction rate even of those tiny % cases which make it into court, wouldn't you say? The idea that it is "quite easy" to get a man arrested, charged, tried and falsely convicted of rape is also in the domain of risible fantasy. Concern about persons accused is perfectly reasonable. The tone of your comment, and the victimisation is fallaciously claims, is not.

      As to the rule of corroboration by distress, this always struck me as entirely reasonable, albeit an unnecessary, artificial way of getting around the corroboration rule. It's credibility is for the jury to determine.

  3. I have just had to endure this bastard verdict whilst serving as a juror and I completely agree with the position of this article.

    This verdict simply gives people an easy way out of making a difficult decision. It allows them to absolve themselves of any potential guilt and pass the buck onto the prosecution. This pathetic, cowardly verdict should be abolished so that jurors are forced to really examine evidence and make a real decision.