In Scotland We Would Not Proven Not Guilty but Dont Do It Again

'The only departure betwixt non proven and not guilty is the spelling': why campaigners want to fleck the third verdict

In October 2018, Sheriff Robert Weir ruled that Stephen Coxen raped Miss M, 5 years earlier, during freshers week at the University of St Andrews.

The example was unusual, because Coxen had already been acquitted in a criminal trial iii years previously. In 2015, a Loftier Court jury establish the example against Coxen to exist 'not proven', but then in 2018, following Miss M'due south conclusion to launch civil activity, Sheriff Weir ruled Coxen had raped Miss Chiliad, and ordered him to pay damages.

For Miss M, the ruling was the culmination of a five-year fight for justice, a fight which cost her financially and emotionally, running from the day she walked out the court, all the mode back to the night of the attack.

When the police and the fiscal fully explained the meaning of not proven, we were shocked and disappointed, and extremely angry, to discover it was a total acquittal

Miss One thousand – who has an anonymity order, and cannot be named – said that, at start, she tried to move on and pretend zilch had happened.

"I will ever regret not going direct to the constabulary," she said. "I was ashamed and I blamed myself."

"I had the opportunity to tell this housemate and go straight with her to constabulary, but I didn't. She kept asking me why I was upset and what had happened. I said something terrible had happened and that I needed to call my mum. As I spoke to family unit and friends, I heard how worried they became when I explained what was wrong. This merely led me to tell them what they wanted to hear, to reassure them everything was fine."

As time passed Miss Thousand'south issues sleeping began to get worse, and the night terrors she had been experiencing, reliving that night in September, became more severe. She moved to sleep in a different room, in the promise of leaving information technology behind her. After that she moved to a different flat. Nothing helped.

She said: "Months went past before I realised there was aught I could do to alter what happened, only perhaps I could terminate him doing information technology to someone else."

"This was the point when I felt my hope, and conventionalities in a process I relied on so heavily, began to fade

Miss K went to the police in January 2014, 4 months later, where she says she was well supported. But her feel of the procurator financial was very dissimilar, with Miss M left feeling isolated and powerless. Then, three days before the trial began, she was told it was beingness moved to a dissimilar court, and there were no supporters available who could sit down with her.

"The people I loved, the people who were preparing me for court, who were available, were non allowed to help. I remember sitting on my own in a room in Livingston High Court in tears equally the jury were addressed.

"Initially, I was happy my case got to court. Apparently, I was i of the lucky ones. Simply zilch, no counsellor, no matter how expert, can set up a rape victim to take the stand. No communication or court familiarisation tin can prepare you for what it's like to be told the graphic details of the nighttime y'all were raped. The details you try to forget. You relive the trauma, while the person responsible, who inflicted this pain, sits metres away. I idea it couldn't get whatsoever worse, until I was cross-examined. Every bit it began, I started to experience ashamed and responsible for what happened. The defence counsel built upwards a picture, one where I had drunk too much and it was my fault I was raped."

She said: "For the residue of the trial I was told to look outside the courtroom. Manifestly, the complainer sitting through her own rape trial gives the incorrect impression to the jury. I sabbatum each twenty-four hour period outside the court, waiting. Beside me, in my pocketbook, were my revision notes, which I hadn't touched for months. I had an exam in a fortnight and I convinced myself I wasn't going to let him or this affect my future anymore.

"I asked my blood brother to go into courtroom and hear the evidence. I regret asking this, it was dreadful when he began to tell the details of my rape which I was completely unaware of. A few days passed before he came out of court to say the example was now closed. The witnesses who were going to be cited had given evidence.

"This was the point when I felt my promise, and belief in a process I relied on and then heavily, began to fade. My surgeon hadn't given evidence and neither had my doctor. I suffered an injury to my natural language during the rape which required surgery, but my surgeon wasn't cited to give bear witness. Information technology turned out that neither the injury nor the surgery were mentioned during the criminal trial. This just led me to question what else was missed. I'd waited two years for this and there I was, completely powerless."

Miss M was informed of the not-proven verdict by a phone call out of the blue. She hadn't been told to expect the conclusion that mean solar day and she was out for a walk when she answered.

"I will never forget the chat," she said. "It was 2 words I will never forget: 'non proven'. During the phone call it was explained to me the verdict meant the jury believed me but there wasn't enough evidence to convict.

"I had spent the last two years disarming myself that this pain was for a reason. That I would see justice. The courts had failed me, but I blamed myself, believing I had failed society, because I hadn't been able to protect other women from violence. The nights immediately subsequently I was raped were lonely, but this was nothing I felt in comparison to the isolation I felt when my instance was over – at the very point everyone else expected me to be OK.

"They thought I could press play again on my life, that I'd continue where I'd left off, but I was no longer the aforementioned person whose life had been put on intermission. The not-proven verdict didn't provide an cease to the process, and information technology certainly didn't bring closure. It was an insult to the trauma I had been through."

It was this experience that pushed Miss 1000 to entrada for alter. Scotland has iii verdicts in criminal cases – guilty, non guilty and non proven, which is unusual in English linguistic communication legal jurisdictions. Nonetheless with confidence rates in rape cases the lowest for any crime type and with the non-proven verdict used disproportionately in these cases, campaigners contend information technology is time to movement to a ii-verdict system.

Rape Crisis Scotland primary executive Sandy Brindley said: "What we hear from people going through the justice arrangement, from rape complainers, is that the process itself is ane of the nigh awful experiences of their lives. I genuinely recollect if people saw what happened in rape trials, and saw what complainers are put through, there would exist an outcry. In this context, with people going through very hard, traumatic proceedings, for, I think, very trivial chance of justice, it's incumbent on usa to think about how we tin improve the justice procedure, to brand it fairer for people experiencing rape."

Brindley spoke to Holyrood after the publication of new research, conducted over two years on behalf of the Scottish Government past Ipsos MORI Scotland and researchers from the universities of Glasgow and Warwick, which found that removing the non-proven verdict could incline more jurors towards a guilty verdict in finely balanced trials.

The written report, using 64 mock juries and 969 individual participants, also found inconsistent views on the pregnant of not proven and how it differed from not guilty.

Professor James Chalmers, one of the lead researchers, told Holyrood: "Legally, not proven has exactly the aforementioned effect equally non guilty. You are acquitted, you tin't be tried again, though there'due south evidently exceptions to double jeopardy – people can exist tried once again if in that location's new show, for example – but those exceptions apply in exactly the same fashion whether the first verdict was non guilty or not proven.

"Judges exercise not, normally at to the lowest degree, give juries whatsoever guidance on how they should distinguish betwixt the two verdicts, they're really left to decide for themselves, how they desire to differentiate between not guilty and not proven."

Responding to the research, and with the debate around removing corroboration highlighting the need to build consensus on the issue, Justice Secretarial assistant Humza Yousaf announced plans to hold a "targeted consultation" between November 2019 and February 2020 with the legal profession, third sector organisations, victims' organisations, victims themselves and opposition parties. The conclusion, which Yousaf stresses will be made through the prism of providing clarity to juries, rather than in increasing convictions, could potentially mean the stop of not proven, though information technology is also possible that a movement to a two-verdict organisation would mean a movement to a selection of proven or not proven.

However doubts remain. Conviction rates in rape cases are low in Scotland, merely they are as well depression in England, which operates a two-verdict arrangement already. Meanwhile, at that place remains a concern that changing the system to increment conviction rates would lead to miscarriages of justice. But clearly Miss M's story, and the testimonies of others, show the need for urgent change in how the justice organization treats complainers in rape trials.

Brindley talks about cases where the unabridged incident was recorded, or where survivors are left with meaning, life-changing injuries, and even so notwithstanding received a not-proven verdict.

"I just do not buy the idea that the not-proven verdict is used because in that location's not plenty evidence or that information technology's one person'south discussion confronting some other. My worry is that it's nigh jury attitudes, and the interplay between jury attitudes and the availability of the not-proven verdict.

"When I say jury attitudes, what I mean are rape myths, particularly attitudes jury members might concord around how someone should react or behave before, during and later a rape."

Despite evidence on trauma showing people unremarkably freeze or feel unable to fight dorsum during or after a rape, RCS normally encounters an expectation amidst jurors of physical resistance amid rape complainers.

Brindley says these attitudes – along with a belief cases are based on fake allegation, motivated by revenge – are and so projected onto the cases, with troubling consequences for the trial.

Meanwhile, there remains a suggestion that a not-proven verdict is easier for victims than not guilty. Yet conspicuously that is non always the case.

Amanda Duffy was killed in 1992, but the man accused of her murder, Francis Auld, was acquitted after a verdict of 'not proven'.

Joe Duffy, her father, says that at the end of the trial he initially believed not proven meant the example could return to courtroom.

"At the fourth dimension of the verdict, we wrongly causeless that non proven was like a form of double jeopardy. That the crown could produce new, compelling bear witness and he [Auld] could be retried. Unfortunately, when the constabulary and the fiscal fully explained the pregnant of not proven, we were shocked and disappointed, and extremely angry, to discover it was a full acquittal."

He said: "I've said it repeatedly over the last 27 years – the only difference between not proven and non guilty is the spelling. In legal terms, they mean exactly the same thing."

He added: "We know there will always be people opposed to modify. I've been listening to them banging on for 27 years and they've all given me the same excuses – that it's unique, it's the envy of the world. Well, where? It'southward a unique system, and that's why it's wrong, because it'south not a three-verdict organisation, it'due south two verdicts going one mode, and one going the other. Everyone in the Scottish justice organisation should accept the need for change."

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Source: https://www.holyrood.com/inside-politics/view,the-only-difference-between-not-proven-and-not-guilty-is-the-spelling-why-campaigners-want-to-scrap-the-third-verdict_14833.htm

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