Why abolishing Scotland's not proven verdict will do little to help denial of justice to thousands
Scrapping not proven will hopefully increase low conviction rates for rape, but the extraordinary backlog of cases in Scotland’s courts must be tackled with much greater urgency
“At court, and waited to see the poisoning woman. She is clearly guilty, but as one or two witnesses hinted an intention to poison herself, the jury gave that bastard verdict, not proven.” With those words, in his journal entry for February 20, 1827, author Walter Scott, a sheriff at Selkirk, gave the most famous condemnation of Scotland’s unique, third verdict.
Just short of two centuries later, the Scottish Parliament has finally agreed with such critics and voted to remove what is seen by many as a bizarre, global anomaly that interferes with the dispensation of justice.
However, speaking ahead of the vote, Stuart Munro, convener of the Law Society of Scotland criminal law committee, told The Scotsman that they had concerns about the majority required to convict after the abolition of not proven. “We’re not convinced the required balance can be obtained by a two-thirds majority as proposed in the Bill,” he said. “All other comparable jurisdictions require unanimous or close to unanimous verdicts to convict.”
And Tony Lenehan KC, vice dean at the Faculty of Advocates, had also warned that “the simple removal of the safeguard 'not proven' represents would increase the risk of wrongful convictions”.
Heinous act of injustice
These are serious voices and, despite the vote, their concerns must still be taken seriously. It is clearly a situation that requires monitoring. The not proven verdict is unlikely to return, but MSPs may need to consider other factors such as the majority.
The hope is that removing not proven as an option will reduce the shamefully low conviction rates for rape and attempted rape in particular. If it does so and more violent criminals end up where they should be – behind bars – so much the better. However, a wrongful conviction is a heinous act of injustice, made all the worse by being perpetrated by the state.
Meanwhile, Scotland’s justice system is dealing with what is arguably an even bigger problem: the extraordinary backlog of cases, which stood at 17,873 in July. Long waiting lists for NHS treatment have become routine in Scotland, the same cannot be allowed to happen in our courts. Justice delayed is justice denied.