Readers who are familiar with some of my rantings might be aware that I am of the opinion that sooner or later court proceedings will be televised in full and that the Scottish verdict of "not proven" is a unique but worthy inclusion in that which makes the Scottish legal system unique. Last week the government north of the border proposed changes to the jury system and more controversially that the not proven verdict be scrapped. Strangely enough I could not find any statistics on the rate of such verdicts. It would appear that rates of acquittal include both not guilty AND not proven outcomes. Most recent numbers of interest:-
Of interest are the following statistics:-
Over the last ten years, the most notable declines in conviction rates have been for: Sexual assault, down from 69% in 2011-12 to 66% in 2020-21, although the rate was 2 percentage points higher in 2020-21 compared to the previous year;
Rape and attempted rape, down from 53% in 2011-12 to 51% in 2020-21, although the rate was 8 percentage points higher in 2020-21 compared to the previous year;
As the perceived poor rate of rape convictions seems to have been the driver for this proposed fundamental change in Scots law it is perhaps worthwhile to consider a brief history of why in all the western world not proven is available to juries who cannot find an offender guilty or not guilty the latter conclusion incorporating a jury`s belief that beyond a reasonable doubt is too high a hurdle for conviction.
Scotland’s three-verdict system is a matter of historical accident rather than conscious design. A 17 th -century procedural change meant that juries returned ‘special verdicts’ stating whether individual facts were proven or not proven rather than declaring on the guilt or innocence of the accused which was a matter for the trial judge based on the terms of the special verdict. A 1728 case, the trial of Carnegie of Finhaven, re-established the right of the jury to return a verdict of not guilty, but the language of ‘not proven’ remained and became an alternative form of general verdict in Scots law. The appeal court has consistently dissuaded trial judges from attempting to offer any explanation of the difference between not guilty and not proven when charging juries. A mock jury study, published by the Scottish Government in 2019, found that even when verdicts of not proven were returned, the meaning or consequence of the verdict was not often understood. "In particular, jurors were not always clear how it differed (if at all) from a not guilty verdict." More jurors thought that a verdict of not proven should be returned when jurors need to compromise to reach a verdict than believed a not guilty verdict should be used in that situation. The study found: “Where the not proven verdict was discussed, there was inconsistency in understanding of its meaning and confusion over its effect. Figures released by the Scottish Government demonstrate that over 2015–2020, the not proven verdict accounted for 17.5 per cent of acquittals overall, but 30.5 per cent of all acquittals by juries and 14.7 per cent of all acquittals in summary cases. Recent figures for rape and attempted rape prosecutions indicate a 43% conviction rate and it is for these types of criminality that the pressure has been coming for the system change now being considered."
In contrast statistics for the fourth quarter by the CPS for England and Wales are as below:-
the volume of suspects being charged for rape this quarter rose from 550 to 643, a 16.9 per cent increase
overall, a 62.9 per cent increase in the volume of rape prosecutions from 1,557 in 2020-21 to 2,537 in 2021-2022
a 2.4 percentage point reduction in the conviction rate for rape cases from 70.7 per cent to 68.3 per cent.
The crime of rape is itself an enigma. Homicide e.g. is legal in self defence but only if that person reasonably believes that the killing was necessary in order to prevent an imminent threat, death, or serious harm to himself or herself. Sexual intercourse is legal if consensual. It is almost unique in being an activity where there is a fine margin between its being legal and illegal. And unlike many other crimes there is rarely a third party witness. And thus it was that Rape Crisis Scotland took up the banner of seeking higher conviction rates for rape.
But should a legal system in a democratic country be driven by conviction rate as opposed to proving the guilt of the guilty and acquitting the innocent? After all the conviction rate overall in China is 99%. Although there have been relatively few studies on the conviction rate variables vis a vis the authoritarian degree of government there are grounds for thinking that dictatorship increases severity and rate of punishment within a legal system. If truth is the end point of a contested trial is it not more accurate where there is inability for a jury to be satisfied beyond a reasonable doubt or to be sure of guilt to pronounce that uncertainty? As a presiding magistrate I was advised that the form of words preferred when announcing the bench`s decision after trial was to say, "we find the case against you proved". Whether that advice was based on tradition or directed by on high I do not know but it also satisfied the truth when it was used in the negative. Perhaps such language tweeking is required in the higher courts.
The Scottish National Party is in political turmoil. Like all such parties it is a nationalist and populist party. It has been rebuffed in its efforts on trans sexual politics. It is failing its children whose educational standards were some decades ago amongst the best in Europe. It has the highest number of drug addicts per capita in Europe. It is a failing organisation looking for causes to bolster its electoral appeal. Interfering with the legal system as proposed is just a diversion from the reality of its political inability to deliver what is wanted by the people of Scotland.
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