Landmark proposed changes to Scotland’s justice system have been welcomed as “transformative” by campaigners and survivors of sexual assault, but face significant opposition from the legal profession.
The victims, witnesses and justice reform (Scotland) bill published on Wednesday includes the abolition of the controversial Scottish verdict of “not proven”, thought to be a key factor in Scotland’s markedly lower convictions rate for rape and sexual assault cases, a move first championed by the first minister, Humza Yousaf, when he was justice secretary.
The legislation also proposes the creation of a specialist sexual offences court and a pilot of judge-only trials for rape cases, recommended by Scotland’s second most senior judge, Lady Dorrian, in a recent review, but which the Law Society of Scotland has warned risk compromising “fundamental principles such as the presumption of innocence and the right to a fair trial”.
Together, the suite of measures – which will also enshrine in Scots law the right to lifelong anonymity for rape complainers (the Scottish legal term for complainants), a historical anomaly that vexes legal experts – amounts to the most radical shake-up of criminal justice in decades. The bill will also provide an automatic right to publicly funded, independent legal representation for complainers to oppose applications asking questions about their previous sexual history.
Less than half – 47% – of rape and attempted rape trials in Scotland result in a conviction, according to the most recent figures, while more than one in five result in a “not proven” verdict. Research in 2019 found that the availability of this unique Scottish verdict may push more jurors towards acquittal before they have even discussed the evidence.
All Holyrood parties committed to the abolition of not proven in their manifestos for the 2021 Scottish parliament elections.
But the Faculty of Advocates has opposed the plan, saying it removes a “fundamental” safeguard and that further modifications to the trial system would be required “to accommodate such a significant change without jeopardising reliable justice”.
Miss M, who won a landmark civil action after the criminal case against the man she accused of raping her on a university freshers’ week night out was found not proven and who has been campaigning for reform since then, said Wednesday’s publication of the bill was “really significant”.
After taking part in a roundtable with Yousaf, the cabinet secretary for justice, Angela Constance, and other survivors, Miss M said: “It was really good to hear their commitment to taking our lived experience into account as the bill progresses. Ten years ago, I felt I didn’t have a voice at all, but today all our voices came together to help others who might feel like we once did.”
Describing the proposals as potentially “transformative to the experience of survivors seeking justice”, Sandy Brindley, the chief executive of Rape Crisis Scotland, said there was significant evidence that juries were influenced by “myths” about sexual violence, for example that victims will always fight back or that attackers are usually strangers.
“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.”
But Brindley went on to raise concerns about proposed changes to jury majority, from eight out of 15 to eight 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.”
The legislation takes up many of the recommendations of Dorrian’s review, which she said at the time took a “clean sheet approach” to improving the experience of complainers in sexual offence cases in the Scottish court system, without compromising the rights of the accused.
