Games people play

Advocates of a proven/not proven system say the court should refrain from making moral judgements about guilt or innocence. Instead, it should confine itself to the question of whether each charge has been proven or not according to the rules of engagement. The third verdict, they insist, would form a logical binary verdict system with ‘proven’.

Morality, however, pervades a system whose poles are freedom and imprisonment; the language of verdicts merely exhibits varying degrees of lexical certitude. In a proven/not proven system, whose supporters think it is an incredible intellectual feat, people are still acquitted or punished. In other words, the consequences entail moral judgements – in the face of which the words used to reach them are trivial. The consequences shape the verdicts, not vice-versa, and the man in the street is in the habit of thinking a trial bears some relation to reality; that it adjudicates on things that happened, for that is its purpose. He is not liable to qualify every utterance on the outcome of a trial with the proviso that it was just a legal result and does not necessarily correspond to what happened. An even stranger view abounds too, namely that we can never truly know what happened in any case. By this epistemic standard, proponents of such a doctrine must be solipsists.

This is all to say that a proven/not proven system would colloquially become a guilty/not guilty system because of our psychological need for certainty about the world, however illusory. This is likely also true of a suggestion made by one of our readers, the fidelity of which is to theory (and to that extent is an excellent point) and not practice. We know there is no necessary coincidence between verdicts and reality – this is not a profound insight; it is a tacit truth that society is built on the suspension of disbelief, without which we are each nothing more than an agglomeration of cells. Take wigs and robes, which are silly to some, who make the pathologically naive point that 18th-century apparel is out of date. But those who oppose the gradual erosion of court dress and bureaucratisation of the judiciary with tragic appellations like ‘justice partners’, understand that the law’s austere trappings give form to the power we have relinquished to it; they create a necessary illusion to remind us that the law – lest we have forgotten – is above us.

If it ain’t broke

Still others argue we should preserve the current system of guilty/not guilty/not proven. But in the absence of a clear definition, people are forced to divine certain meanings for ‘not proven’, suggesting that, for now at least, it is more the theological, than logical verdict. One lawyer even suggested it should be preserved because, evidently, juries use it. This, however, is to put the cart before the horse: juries can only express themselves in the medium of available verdicts. If they were given a fourth verdict of ‘don’t care’ they would use that too given enough time. Would its usage justify its existence? Obviously not. In this context, ‘not proven’ begets the problem it solves.

Verdict systems are, of course, arbitrary. There is nothing inherently superior about a two-verdict system; it just so happens that the one commonly used furnishes us with two clear meanings. The presence of ‘not proven’ in modern Scots law is an accident of history, which is why its meaning is in the eye of the beholder. There is, however, nothing to suggest that three clearly defined verdicts could not form a viable system.

Best of three

If we deem it important to recognise a shade of grey in the verdict regime, we should assign ‘not proven’ the meaning we give it in whispers. Our system is already crystal clear about the third verdict’s effect: to acquit. What ‘not proven’ lacks is an agreed meaning consistent with this. I would endorse one that others have already given it: if ‘not proven’ indicates a diminution in the certainty afforded by ‘not guilty’, then there is a corresponding diminution in moral judgement – from a positive belief in guilt to neutrality. Such a meaning honours a verdict of acquittal: neutrality must be resolved in favour of the presumption of innocence in our system. Ironically, the momentum for the abolition of ‘not proven’ stems from its use in cases for which it is apposite. In sexual offence cases it is possible for two parties to be telling the truth because of the salience in evidence of belief. And because belief is in a black box, so to speak, the use of ‘not proven’ seems just.

That is probably why juries use it.

Baying for blood

None of this is to say that those who want a guilty/not guilty system restored and ‘not proven’ abolished are right.

They seem to be putting stock in some phantom contrast they think will arise and prove a boon to the conviction rate for rape once we have a guilty/not guilty system; as if jurors will retain some ancestral memory of their ‘not proven’-era forebears and thereby seek to right historical wrongs by erring on the side of guilt. But with every trial the game begins anew and most people are blissfully ignorant of ‘not proven’ until the moment it becomes relevant and they impute to it a meaning consistent with the common sense for which they were selected. England and Ireland, with their poverty of verdicts, should also give zealots pause for thought – they too have low conviction rates for rape.

Perhaps anticipating that juries will continue to acquit when ‘not proven’ is abolished, the report from the Lord Justice Clerk’s Review Group, Improving the Management of Sexual Offence Cases, recommends removing juries altogether in a pilot scheme. In one coy sentence, seemingly about whether or not to exclude juries from sexual offence cases, a preposition phrase complement is curiously omitted. We are told:

Assuming this means whether or not to exclude juries from sexual offence cases, it is a contradiction. If the conviction rate is not to be ignored, then in respect of what is it to be acknowledged? Plainly, the conviction rate in serious sexual cases is the main determining factor in the proposed abolition of ‘not proven’ as well as of juries. The politicians have made clear what lawyers cannot. Perhaps this is why the First Minister said she “used” to think like a lawyer.

Prove it

Elsewhere the report suggests judges are not susceptible to rape myths. It states: “Professional judges … would apply the law dispassionately to the evidence.”

This has all the rhetorical force of a Victorian scientist saying they know everything.

In a 2005 study from the US, judges participated in a mock sexual assault trial involving two students and in which evidence of the complainer’s sexual character history was excluded according to rape-shield provisions. The authors found that knowing about the complainant’s (inadmissible) sexual history “appears to have influenced the judges’ decisions”.

They write: “The conviction rate dropped by nearly 30% among judges who had excluded the evidence compared to judges who were not exposed to the evidence. Even though the judges ruled the evidence inadmissible, it still influenced their assessments of the defendant’s guilt.”

While no one doubts the expertise of judges, we cannot accept the antiquated guarantee given above that they are immune to influence. Critics will say that this is why there is an appeal mechanism. That may safeguard the law but not the judges, who, unlike jurors, have and will attract adverse publicity based on their verdicts. Conversely, let us hope judges are not perversely incentivised to convict as a consequence of the Scottish government’s ambitions to raise the conviction rate for rape: for once the king adopts a fashion so do the courtiers – how else are they to succeed at court?

The arms race between lawmakers and lawbreakers is a necessary evil in a democracy. To preserve its delicate equilibrium, however, any change to the status quo must be proportionate. Those who dream of a proven/not proven system are deluded by the analytic philosophers’ conceit that meaning comes from within words, not without; the preservers have not accepted that, like death and taxes, change is inevitable; as for the abolitionists, they are chasing shadows.

Let us hope they do not lead us to darker places.

Kapil Summan is the editor of Scottish Legal News