Not Proven No More?

‘A BOLD, NECESSARY AND IMPORTANT BILL’ – RAPE CRISIS SCOTLAND

Legislation proposing a significant package of reform to ensure victims are treated with compassion and their voices heard across the justice system has been published.

The Victims, Witnesses and Justice Reform (Scotland) Bill will require justice agencies to make efforts to reduce re-traumatisation of victims and witnesses and will address long-standing challenges in the justice system’s approach to serious sexual offences.

Significant reforms proposed in the Bill include abolishing the not proven verdict in all criminal trials to help create a clearer, fairer and more transparent decision-making process. It will reduce juror numbers from 15 to 12 and increase the jury majority required for conviction to at least two-thirds – to ensure fairness, balance and promote confidence that verdicts are decided on a sound and rational basis.

If passed by Parliament, the Bill would also establish an independent Victims and Witnesses Commissioner for Scotland to champion the rights of victims and witnesses and encourage government and criminal justice agencies to put those rights at the heart of the justice system.

The Bill also includes significant new measures to meet the needs of survivors of sexual offences, building on the recommendations of Lady Dorrian’s Review Group on improving the management of sexual offence cases, enabling public confidence in the justice system by:

• protecting the dignity of victims through an automatic lifelong right of anonymity for victims of sexual offences 
• establishing a specialist sexual offences court with national jurisdiction to enable complainers to give their best evidence while minimising the potential for re-traumatisation
• providing an automatic right to state-funded independent legal representation for complainers when applications are made to lead evidence of their sexual history or ‘bad character’ in sexual offence cases
• enabling a pilot of single judge trials for cases of rape and attempted rape to take place to gather evidence on their effectiveness

Cabinet Secretary for Justice and Home Affairs Angela Constance said: “This Bill will put victims and witnesses at the heart of the justice system. It is testament to the efforts of many campaigners who have worked to ensure that the processes of justice better serve victims, witnesses and vulnerable parties.

“This landmark legislation is among the most significant since devolution and will ensure fairness is cemented into the bedrock of Scotland’s modern-day justice system. Building on the experiences of survivors, victims, and their families, these key reforms will make justice services more sensitive to the trauma it can cause.

“This government has been clear we must take action to improve the experience of those who suffer sexual abuse. The majority are women, who must be supported to have trust and confidence that the processes of justice will serve their needs, allow them to give their best evidence and support them in their recovery.

“By creating an independent Commissioner for Scotland to champion the rights of victims and witnesses we can ensure that they are treated with compassion and their voices are heard.”

While Rape Crisis Scotland has concerns over the proposed reduction in the number of jurors, the organisation welcomes what it describes as a ‘bold, necessary and important bill’:

Today the Scottish Government published the Victims, Witnesses, and Justice Reform (Scotland) Bill. This is a potentially transformative bill which could significantly improve the experience of survivors of sexual violence.

Survivors across Scotland have campaigned tirelessly to highlight the injustices of the current legal process and have played a crucial role in making the case for change.

The bill will:

• End the not proven verdict;
• Introduce a specialist sexual offence court;
• Give ministers the power to begin a pilot of single judge led trials in Scotland;
• Introduce independent legal representation (ILR) for survivors in cases where the defence seeks to bring evidence on their sexual behaviour into court;
• Introduce a legal right to anonymity in sexual offence cases.

We are strongly supportive of these proposals. For more information on our positions, please see our policy briefings on criminal justice reform, alongside specific briefings on the proposed specialist sexual offence court, judge led trials and independent legal representation.

Many of these steps were recommended in Lady Dorrian’s review of the management of sexual offences and we pay tribute to her leadership and the work of this group.

In Scotland, conviction rates for rape are the lowest of any crime type. For cases that reach trial the conviction rate is around 51% compared to 91% for all other crimes. Most cases never make it as far as court: in 2021/22 there were 2,298 rape and attempted rapes reported to the police, but only 152 prosecutions and 78 convictions.

There is significant evidence that myths about sexual violence influence juries in their decision making.

There is a huge amount of research and evidence to suggest that these steps will not only make engaging with the justice system easier for survivors but lead to more justice being done.

We asked survivors what they thought justice reform in Scotland needs to look like and why it matters. Here are some of their comments:

“Victims should not feel scared to come forward and report a crime due to the pressures of a court case. Where is the justice in that?”

“it was a horrendous ordeal and completely traumatising – from the court dates being suspended and rescheduled, the actual trial itself… and the way I was perceived by all professionals involved, other than the lovely victim support girls on the day of trial and of course rape crisis, as doing something wrong in speaking out…. So, I would love nothing more than to see some change!“

“For me, the thought of standing in front of the family, the public, the people who have abused and assaulted me or lawyers and judges, is absolutely terrifying and something I could never even consider. The culture of victim blaming in society is so damaging that people who have these experiences are likely to think they’ll be blamed even when the evidence is strong. Or the mental chaos that going through the lengthy court process is, only for the perpetrator to end up with a short sentence is not worth it.”

Making the decision to report rape or sexual violence can be very difficult. It is not made easier by the barriers in place to accessing justice for survivors. We hope this bill will begin to remove some of these barriers and help more survivors in Scotland to get justice.

This is not a perfect bill. We have concerns about its proposed changes to jury majority from 8 out 15, to 8 out of 12. We know that juries are reluctant to convict in rape cases, and any change in jury majority could have a significant impact on convictions.

We are concerned that unless significant and sustained efforts are made to address the impact of rape myths on jury decision making the overall impact of this bill might actually be to reduce the number of rape convictions.

Notwithstanding our concerns about the change in jury majority, the fact that these proposals have been made by the Scottish Government is testament to the incredible work of survivors from across Scotland who have campaigned for change. This is a bold, necessary and important bill.