Whut?

Call for abolition of ‘not proven’ verdict in Scottish law
Country’s three-verdict system criticised for leaving accused innocent in the eyes of the law

That’s taking the accusation is the proof in rape cases a little far isn’t it? Complaining that sometimes the accused isn’t found guilty?

In 2016-17, only 39% of Scottish rape and attempted rape cases resulted in convictions – the lowest rate for any type of crime. Nearly 30% of acquittals in rape and attempted rape cases are found not proven, compared with 17% for all crimes and offences.

OK. So, what’s the rate in England and Wales. Obviously, there’s no “not proven” verdict. So, which way does it go? We’ve a higher guilty rate and a lower innocent? Or the same not found guilty rate? Which bit of innocent and guilty is not proven eating? A rather important thing to work out before thinking about abolishing the three bit system…..

46 comments on “Whut?

  1. Well that’s older data. I can well believe the entire sex offence moral panic has, since 2012, encouraged prosecutors to try more marginal cases, which will inevitably result in a lower proportion of convictions.

    Which is why the campaigners want the standard of evidence reduced and, in effect, the presumption of innocence to be abolished for sex offences.

  2. Let’s look at this through the eyes of the average Martian.

    When a man is accused of rape and found innocent, the accuser should automatically be brought to trial for a false accusation.

    Scottish women are lucky that Scotland’s 3rd verdict allows women to escape an automatic trial, for which they should be grateful and they would be insane to abolish this verdict.

    There are an enormous number of fake rape claims in Scotland.

  3. Marixist-femmi shite from the Gladrag.

    Who’d a thunkit.

    About as truthful as their claim to have one million readers. If they still wrapped chips in newspaper and counted each dining experience as one read that would be the day.

  4. I would imagine that rape has more instances of “he said-she said” type cases than any other crime. Rape is a horrific crime and one really would like to see those guilty of it being punished, but it is also a terrible crime to be accused of if you are not guilty, often destroying the accused’s life even if later acquitted. Since most people would agree that it is better that a guilty person go unpunished than an innocent person be punished, in cases where there is no hard evidence of guilt, it would be expected that the conviction rates would be lower than cases where the jury is presented with clear evidence of guilt.

  5. When a man is accused of rape and found innocent, the accuser should automatically be brought to trial for a false accusation.

    I disagree. There is a difference between the rape never having happened and the wrong person being accused of it. Even if the putative victim’s evidence has been called in to question or actively disproven, that doesn’t prove malice on their part.

    There is also a difference as an investigator (been there many times on fraud cases, thankfully never on any sexual assault or rape) between knowing that somebody has done something illegal and have sufficient evidence to prove it _beyond reasonable doubt_.

    Think of a less contentious case – some yoof runs up from behind you, snatches your phone and runs away. The police (ha, ha, ha) track them through CCTV (sniggering now), catch them (now without your phone) and charge them.

    They are then found not guilty – should you be in front of the beak? Did your phone not get stolen? Did they hand the phone off to an accomplice? Did the police mess up the CCTV tracking? Is “yoof in white t-shirt and ripped jeans” an adequate description?

  6. “Not proven” is a shit system. Basically it means “we think you’re guilty but we can’t quite prove it”. The accused has this hanging over them for the rest of their life.

    Guilty or not guilty, good enough.

  7. If a Scottish jury would like to say “Not proven”, but aren’t allowed to, then they will need to say, “Not guilty” instead.
    Is that really what the Guardian wants?

  8. Rob: No you are wrong –“Not proven” means people have two chances against the overwhelming power of the state. It isn’t always as clear cut as innocent or guilty and you have the example of the Yanks who often manage to bullshit up a Guilty verdict when NP would be a fairer result.

  9. “Grist
    November 13, 2018 at 9:37 am

    Let’s look at this through the eyes of the average Martian.

    When a man is accused of rape and found innocent, the accuser should automatically be brought to trial for a false accusation.”

    Accusers should only go on trial if there’s evidence of their committing a crime – and not being able to prove an accusation is not evidence that the accusation was knowingly false.

  10. Please be aware that, in Scotland, the jury can reach a verdict by simple majority. If 8 people say “Guilty” that is the verdict. There is no need for the (slightly qualified) unanimity of the jury as in the rest of the UK. It must be virtually impossible to have a hung jury in Scotland.

    Perhaps the oddity that is “Not proven” (a hangover from 17thC pre-Union trials) helps to avoid miscarriages of justice. If the 3 verdicts system is reformed, the rest will have to be as well.

  11. What should the conviction rate be in a system where you’re entitled to the presumption of innocence, a lawyer to present your defence, and the prosecution has to prove its case beyond all reasonable doubt?

  12. An interesting exchange on TRUK

    ‘I’m with Carol on this, I must say. My view is that Brexit is a useful neo-liberal decoy to take peoples minds of the real issue: deficit spending and altering of the financial parameters.

    The EU cannot make us worse of unless we choose to be by imposing irrelevant deficit limits and cow towing to absurd ECB rules around this. If anyone is in doubt about how morally bankrupt the EU is, please re-read Donald Tusks utterly shocking and ghastly comments on his idea of EU ‘solidarity’ when Greece had paid back its ‘odious’ debts by gutting the country and throwing millions of people out of the healthcare system:

    ‘You did it! Congratulations to Greece and its people on ending the programme of financial assistance. With huge efforts and European solidarity you seized the day.’

    This statement sums the EU, up: where human beings are as of nought compared to deficit targets and the banking system stability (in their terms).

    (I await Richard’s usual response about a ‘platonic’ EU that hovers in the ether behind the actual EU and that the present EU isn’t really the EU!!)

    After leaving we have the opportunity to show the EU what fiscal powers can do to revive an economy but only if we have a Labour Government. If the Tories are in it will be appalling as usual.

    Corbyn is doing the right thing in my view, keep out of this nonsense and focus on what a sovereign Government can do. This might not happen because of a divided country in which case expect more of the same but we should be making the argument about fiscal choices and transformation of the real economy not banging on about leaving the EU and doomsday scenarios after (which, in my view, won;t happen- and if the Tories are in we’ll just get the same nonsense). None of the doomsday predictions happened after the referendum. The EU cannot harm us when we leave UNLESS we choose to.

    Don’t be hoodwinked by the ‘Brexit-decoy’ it’s what the neo-libs want.

    Disagree too about Wilson and Smith. Ralph Milliband excoriated Wilson for not making the deep seated institutional changes that were needed to transform the country when there was enough power to do so. I seriously doubt SMith would have changed the course of financialisation, though I suspect he would have been significantly better than Blair in terms of vilifying and marginalisaing the vulnerable.

    The EU is fast becoming a reality denier. Only this morning, I read a statement by Benoit Coeure of the ECB on climate change and there is zero discussion of policy change whilst emphasising more monetarist thinking and market participants. There is NO time and these nutters bang on about ‘it must be good for business!!

    It’a all very well hammering Corbyn but try leading a Party that is still largely the remanants of the very failed Left that has got us here. I think a Labour victory possible and some have talked of a 4% surge and possibly more of non-voters can be reached. The problem is we’ve collectively lost the belief in fiscal policy on a large scale.

    If we can get a Left leaning Labour in then we can show what can be done and actually lead Europe towards some renewal and challenge the Right Wing, the rise of whom is largely down the the EU itself.’

    ‘Richard Murphy says:
    November 12 2018 at 6:22 pm

    I could try to reply to this in detail

    But in truth, one word will do

    Deluded

    I am sorry – but I’ll read fiction if I want to note something so unrelated to any known reality

    And I will not sit by and be so conceited with my left wing dogma that i will happily watch the well-being of millions destroyed for an experiment that I guarantee will never happen because there is no way the government you imagine will be elected in this country even after Brexit

    And unlike Corbyn I am democrat enough to recognise it

    He won’t even recognise the votes of his own party and the wishes of its membership’

    Dissension in the ranks of the CM Left….

  13. Scott R

    And there’s part of the Chesterton’s Fence that these people lobbying for change should address.

  14. ‘she was too drunk to consent’

    But to Mr Coxen, she probably did.

    ‘Backing the call is the tattoo artist Fidjit, herself a survivor of sexual violence’

    There is no evidence that Mr Coxen was violent. He had sex with her. Taking advantage of a drunk woman is not ‘sexual violence.’ For all we know, and for all Miss M knows, she enjoyed it.

    ‘worn by more than 1,000 women who have chosen to represent their experiences of sexual or domestic violence or mental ill-health in tattoo form as a means of empowerment.’

    Here I go again, not understanding English English. What definition of ’empowerment’ is in play here? The tattoo gives them the power to do wut?

  15. So…

    Women’s rights campaigners believe juries rely too much on not proven verdicts in rape cases

    This is either true or not true, but the alternative to Not Proven is Not Guilty. Is that what the She-Ra Man Haters Club wants?

    because they sometimes blame women for what happened or believe they share responsibility for sexual encounters.

    Ok… So how about this particular case?

    “the defender took advantage of the pursuer when she was incapable of giving meaningful consent because of the effects of alcohol, but he continued to do so even after she manifested distress and a measure of physical resistance, and that he raped her”.

    So she got bladdered and then, apparently, raped.

    In Miss M’s case, she became drunk after drinking free champagne and vodka at a friend’s party that evening, and had been kissing Coxen in the nightclub. Her case was bolstered by expert testimony that she was so intoxicated she had little knowledge of what was happening, had blackouts and was too drunk to give consent.

    I’m not unsympathetic, but does getting drunk absolve you of all responsibility for your own wellbeing? Put it another way, should young women maybe try not getting drunk with strange men?

    Note that there’s no mention of how much alcohol her “rapist” consumed. Was his capacity to understand consent not also impaired by booze?

  16. DocBud said:
    “most people would agree that it is better that a guilty person go unpunished than an innocent person be punished”

    Is that still true?

  17. Steve said:
    “Note that there’s no mention of how much alcohol her “rapist” consumed. Was his capacity to understand consent not also impaired by booze?”

    That’s what I always wonder about this “drunken date rape” thing. Either we remain responsible for our actions whilst drunk, or we don’t. The idea that the woman loses the capacity to give legal consent, but the man is still responsible for his actions, doesn’t make sense.

    I can see there’s a difference once the woman is so bladdered that she’s barely conscious (and if the man were in the same condition, he would be incapable of doing anything anyway).

    But while they’re both still able to walk & talk (even if not as well as usual), then surely their mental / legal / moral capacity to make decisions is the same for both of them.

  18. DocBud said:
    “most people would agree that it is better that a guilty person go unpunished than an innocent person be punished”

    As per Richard, I am no longer sure that is true. If you read the Telegraph, an ostensibly Conservative newspaper, you will see legions of columns by various feminists who would question whether the concept of innocence can exist in a case of a sexual assault. They already succeeded in removing the presumption of innocence in such cases and who honestly believes they will stop there? I would say it may still be a majority of people who would agree that an innocent person being punished is more undesirable than a guilty person go unpunished but it is a slim majority and a falling one

  19. (and if the man were in the same condition, he would be incapable of doing anything anyway).

    There was a case in the US a couple of years back (at a university, natch) where a gentleman in such a condition got his meat lollipop sucked upon by his girlfriend, who then accused him (despite him being unconcious and incapacitated) of sexually assaulting her.

    And of course the uni took her side in this…

  20. Richard,

    Well, I’m most people and so’s my wife.

    But seriously, I do think it is true of most people who were brought up in Western liberal democracies that subscribe to Enlightenment notions of justice. It is not necessarily true of those whose upbringing was in less enlightened cultures and ideologies.

  21. It’s a good comparison, SE, because in your robbery example, the case would never get as far as the arrest stage let alone appearances in court with simply an accusation, absent any corroborating evidence or witnesses. Which is exactly what so many rape accusations & trials are based on. Simply one person’s word against another about an event that may or may not have happened.
    And don’t forget, if there’s a resultant case for perjury it’s the same rules. The prosecution has to prove beyond reasonable doubt the complainant was knowingly telling porkies.

  22. VP,

    Such feminists are far from representative of most women. In various discussions with the numerous women I know, I’ve yet to come across one who would believe that the presumption of innocence should be abandoned, not even those who are of a moderate left persuasion (I don’t know anyone who would be classed as extreme left).

  23. DocBud
    Unfortunately what the generality of women/people think or want does not matter at all to our betters (see for the starkest example Brexit).
    Those who shout loudest and control the media/government will connive to do what they want regardless.

  24. DocBud

    You’ve been fortunate. I know a few Corbinites and they would have no issue with removing the right to trial for any crime for CIS White men on the grounds of their historical crimes alone. Lest we forget they are likely to take control and are breeding legions of these type of people across the country, in every institution of higher education. Academia is 90% plus Corbinite. While I agree that the majority of women I know are far from supportive of such radical positions, in today’s society the loudest have the biggest voice – and few are louder than the supreme evil of the Corbinites

  25. “When a man is accused of rape and found innocent”: there is no such verdict, either in Scotland or England.

    The beauty of the “not proven” verdict is that people are prepared to treat “not guilty” literally, in contrast to the English interpretation of “not guilty” as ‘the lucky bugger got off with it.’

    The second beauty is, of course, that it corresponds far better to the human experience: the natural three assessments of evidence are ‘he dunnit’, ‘he didn’t dunnit’, and ‘buggered if I know’.

    I don’t know how things are now, but before devolution the Scots also had better protection than in England against being charged on weak evidence, the Fiscal being a useful filter, and the corroboration rule being a demanding test of evidence. (They also had better protection against the injustice of balls-achingly slow “justice”.)

    It used to be pretty evident to people who had lived in both countries that the Scottish legal system was unmistakably better than the English – whether that’s still true I don’t know. After all the schools used to be unmistakably better and I don’t suppose that’s still true.

  26. ‘I’m with Carol on this, I must say. My view is that Brexit is a useful neo-liberal decoy to take peoples minds of the real issue: deficit spending and altering of the financial parameters.

    What the fuck does that mean? Altering of the financial parameters?

    Oh, and “cow towing” – wait till the RSPCA year about that.

  27. “the natural three assessments of evidence are ‘he dunnit’, ‘he didn’t dunnit’, and ‘buggered if I know’”

    Add a fourth: “he dunnit, but he howls at the moon.”

    Surely you have an insanity verdict.

  28. “Surely you have an insanity verdict.” It’s not a verdict but an explanation: not guilty by reason of insanity. Though maybe the jargon is more PC these days.

  29. In reply to Dearieme, the Scottish school system has been blessed with the “Curriculum for Mediocrity” as it is known, so for the past 8 years or so,m their international ratings have been heading south. Of course the local pols and career educationists are still in La La – wonder of the world land.

  30. “Not Proven” from my admittedly faded memory of Scots Law is actually a stronger verdict than “Not Guilty” against the prosecution IIRC. It,in effect, says that the presentation of the case by the COPFS was so bad as to make the allegation nonsensical.
    Not Guilty, which is the far more common of the two innocent verdicts, means the standard of proof has not been met and can encompass the totality of positions from wrongful accused to getting off even though everyone knows they did it.

  31. Ha ha. Normally I think Giles Core is an irritating cunt but there is something funny in his column in the Times today. A la Warhol.

    A comment on where we are heading.

    “In the future, everyone will be racist for 15 minutes”

    Can change that to sexist or whatever -ist you want. We will be guilty of it no matter what we do.

    Having said that Coren is still an irritating cunt.

  32. @abacab, November 13, 2018 at 10:17 am

    Blair abolished double-jeopardy protection, state can keep prosecuting until a jury votes for the “right” verdict.

  33. “No doubt Gödel’s incompleteness theorems were inspired by the Not Proven verdict.”

    Very droll.

  34. One interesting point from the long rant reproduced above is that Corbyn does seem to be very sensibly following the advice not interrupt your enemy when they are making a mistake and staying away from Brexit as much as possible and leaving FFC to merrily screw things up on her own

  35. Steve:

    Put it another way, should young women maybe try not getting drunk with strange men?

    If you pass out drunk and someone steals your wallet, is it your fault that you were robbed?

  36. @Ian Bennett

    Two different responsibilities.

    If you jump into a lions’ den it’s likely that the lions will eat you.

    It may well be that you ought to have the ‘right’ to jump into a lions’ den and not get eaten but it’s still good advice not to do it.

  37. If you pass out drunk and someone steals your wallet, is it your fault that you were robbed?

    No. Would it be your fault if you left cash on your belly as you snore away? No. How about if you had been buying everyone drinks and handing out cash like it was your last night on earth? Still not your fault. Because, you surely see, you by definition cannot be at fault for someone imposing without your consent. So your question is asinine by nature.

    But perhaps you’re not so willfully obtuse to see that there are degrees of culpability for your own victimhood. And immediately assuming someone doling rather obvious advice to potential female rape victims is somehow blaming them shows me you view women as children, at least in terms of their agency.

  38. @ Sam
    If you throw your wallet to a beggar while you are drunk, the beggar is quiteentitled to regard the cash (biut not the cards) as a gift.

  39. you’re really a just right webmaster. The website loading velocity is amazing.
    It seems that you’re doing any unique trick. Moreover, The contents are masterwork.
    you’ve performed a wonderful task on this subject!

Leave a Reply

Name and email are required. Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.