'The only difference between not proven and not guilty is the spelling': why campaigners want to scrap the third verdict

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

The case was unusual, because Coxen had already been acquitted in a criminal trial three years previously. In 2015, a High Court jury found the case against Coxen to be ‘not proven’, but then in 2018, following Miss M’s decision to launch civil action, Sheriff Weir ruled Coxen had raped Miss M, 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 way 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 full acquittal

Miss M – who has an anonymity order, and cannot be named – said that, at first, she tried to move on and pretend nothing had happened.

“I will always regret not going straight to the police,” she said. “I was ashamed and I blamed myself.”

“I had the opportunity to tell this housemate and go straight with her to police, 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 and friends, I heard how worried they became when I explained what was wrong. This only led me to tell them what they wanted to hear, to reassure them everything was fine.”

As time passed Miss M’s problems 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 hope of leaving it behind her. After that she moved to a different flat. Nothing helped.

She said: “Months went by before I realised there was nothing I could do to change what happened, but perhaps I could stop him doing it to someone else.”

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

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

“The people I loved, the people who were preparing me for court, who were available, were not allowed to help. I remember sitting on my own in a room in Livingston High Court in tears as the jury were addressed.

“Initially, I was happy my case got to court. Apparently, I was one of the lucky ones. But nothing, no counsellor, no matter how good, can prepare a rape victim to take the stand. No advice or court familiarisation can prepare you for what it’s like to be told the graphic details of the night you were raped. The details you try to forget. You relive the trauma, while the person responsible, who inflicted this pain, sits metres away. I thought it couldn’t get any worse, until I was cross-examined. As it began, I started to feel ashamed and responsible for what happened. The defence counsel built up a picture, one where I had drunk too much and it was my fault I was raped.”

She said: “For the rest of the trial I was told to wait outside the courtroom. Apparently, the complainer sitting through her own rape trial gives the wrong impression to the jury. I sat each day outside the court, waiting. Beside me, in my bag, 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.

In context: Freedom of information reform

“I asked my brother to go into court 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 case was now closed. The witnesses who were going to be cited had given evidence.

“This was the point when I felt my hope, and belief in a process I relied on so heavily, began to fade. My surgeon hadn’t given evidence and neither had my doctor. I suffered an injury to my tongue during the rape which required surgery, but my surgeon wasn’t cited to give evidence. It turned out that neither the injury nor the surgery were mentioned during the criminal trial. This only 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 decision that day and she was out for a walk when she answered.

“I will never forget the conversation,” she said. “It was two words I will never forget: ‘not 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 convincing 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 after I was raped were lonely, but this was nothing I felt in comparison to the isolation I felt when my case 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 same person whose life had been put on pause. The not-proven verdict didn’t provide an end to the process, and it certainly didn’t bring closure. It was an insult to the trauma I had been through.”

It was this experience that pushed Miss M to campaign for change. Scotland has three verdicts in criminal cases – guilty, not guilty and not proven, which is unusual in English language legal jurisdictions. Yet with conviction rates in rape cases the lowest for any crime type and with the not-proven verdict used disproportionately in these cases, campaigners argue it is time to move to a two-verdict system.

Rape Crisis Scotland chief executive Sandy Brindley said: “What we hear from people going through the justice system, from rape complainers, is that the process itself is one of the most awful experiences of their lives. I genuinely think if people saw what happened in rape trials, and saw what complainers are put through, there would be an outcry. In this context, with people going through very difficult, traumatic proceedings, for, I think, very little chance of justice, it’s incumbent on us to think about how we can improve the justice process, to make 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 by Ipsos MORI Scotland and researchers from the universities of Glasgow and Warwick, which found that removing the not-proven verdict could incline more jurors towards a guilty verdict in finely balanced trials.

The study, using 64 mock juries and 969 individual participants, also found inconsistent views on the meaning 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 same effect as not guilty. You are acquitted, you can’t be tried again, though there’s obviously exceptions to double jeopardy – people can be tried again if there’s new evidence, for example – but those exceptions apply in exactly the same way whether the first verdict was not guilty or not proven.

“Judges do not, normally at least, give juries any guidance on how they should distinguish between the two verdicts, they’re really left to decide for themselves, how they want 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 Secretary 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 decision, which Yousaf stresses will be made through the prism of providing clarity to juries, rather than in increasing convictions, could potentially mean the end of not proven, though it is also possible that a move to a two-verdict system would mean a move to a choice of proven or not proven.

Yet doubts remain. Conviction rates in rape cases are low in Scotland, but they are also low in England, which operates a two-verdict system already. Meanwhile, there remains a concern that changing the system to increase 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 system treats complainers in rape trials.

Brindley talks about cases where the entire incident was recorded, or where survivors are left with significant, life-changing injuries, and yet still received a not-proven verdict.

“I simply do not buy the idea that the not-proven verdict is used because there’s not enough evidence or that it’s one person’s word against another. My worry is that it’s about 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 hold around how someone should react or behave before, during and after a rape.”

Despite evidence on trauma showing people commonly freeze or feel unable to fight back during or after a rape, RCS commonly encounters an expectation among jurors of physical resistance among rape complainers.

Brindley says these attitudes – along with a belief cases are based on false allegation, motivated by revenge – are then 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 clearly that is not 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 case could return to court.

“At the time of the verdict, we wrongly assumed that not proven was like a form of double jeopardy. That the crown could produce new, compelling evidence and he [Auld] could be retried. Unfortunately, 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 full acquittal.”

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

He added: “We know there will always be people opposed to change. 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’s a unique system, and that’s why it’s wrong, because it’s not a three-verdict system, it’s two verdicts going one way, and one going the other. Everyone in the Scottish justice system should accept the need for change.”