The not proven verdict and related reforms: consultation analysis

Equality and Human Rights, Other Impacts and Comments

Key Findings

Equality and human rights

• The key comment was that none of the suggested reforms considered in this consultation paper would have a particular impact on people with one or more of the protected characteristics.
• The current jury size of 15 was perceived to ensure that a diverse range of people, interests and opinions are represented and a few respondents felt this would be compromised by any change to jury size.
• Removal of the not proven verdict and / or the corroboration rule were seen to remove a barrier to justice for survivors of sexual crimes and domestic abuse, who are predominantly women and girls.
• It was felt that those who are disabled and women would benefit most from any changes.

Other issues relating to equality

• Very few issues were raised in relation to this question.

Whether there would be an impact on human rights

• The key view was that the reforms being considered would have no impact on human rights.
• There were a few general comments on the right to a fair trial, although views were split as to whether reforms or changes would have a positive or negative impact on this.

The potential for impacts on island communities, local government or the environment

• Most respondents answering this question felt there would be no impacts on island communities, local government or the environment.
• Most reference was in relation to island communities where it was felt that smaller juries would be beneficial given that island population numbers are low.

Equality and Human Rights

Q15: Considering the three needs of the public sector equality duty – to eliminate discrimination, advance equality of opportunity and to foster good relations – can you describe how any of the reforms considered in this paper could have a particular impact on people with one or more of the protected characteristics listed in the Equality Act 2010 (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation)?

169. A total of 94 respondents opted to provide an answer to this question. The key comment emerging – primarily from legal organisations and individuals – was that none of the reforms considered in this paper would have a particular impact on people with one or more of the protected characteristics listed in the Equality Act 2010. Very small numbers of respondents were unsure about any impact, noting that all protected characteristics need to be considered or commented that any changes and improvements to the criminal justice system would benefit all people. There were also comments from a very small number of respondents that any reforms should reinforce assurances that justice is blind and all are equal in the eyes of the law and entitled to a fair trial.

170. Jury size was a focus for some respondents, with most comments noting that maintaining the current jury size of 15 ensures a diverse range of people, interests and opinions are represented, with a few comments that reducing the jury size could compromise this.

171. Removal of the not proven verdict and for some, also the removal of the corroboration rule, was seen to remove a barrier to justice for survivors of sexual crimes and domestic abuse, who are predominantly women and girls.

172. A small number of respondents referred to the corroboration rule, although views were mixed as to whether its removal would help to protect those with protected characteristics or not, with a couple of comments that the corroboration rule acts as a safeguard against gender discrimination.

173. A significant minority of respondents focused on specific groups of people who would be positively affected by any changes. These included:

• Those who are disabled, physically and mentally.
• Women, with reference once again to sexual crimes disproportionately impacting on women. There were a couple of suggestions to reform the law to create different levels of sexual offence.

174. There were also a very small number of comments that the justice system is already biased in favour of non-minority individuals and that any reforms which mitigate against this would be welcomed.

Q16: Are there any other issues relating to equality which you wish to raise in relation to the reforms suggested in this paper?

175. Only 35 respondents raised any other issues relating to equality.

176. Once again, many of the themes raised at this question, each by only small numbers of respondents, echoed those seen in earlier questions. These included:

• References to a need for the legal system to provide better protection for women who are victims of sexual crime.
• A need for training for all involved in the criminal justice system, including judges, sheriffs, jurors and other legal professionals so that they can understand bias, how it can be manifested and how to challenge it.

177. Court logistics was raised as an issue by a very small number of respondents who referred to the need to reduce timescales, for complainers to be able to access counselling prior to a trial or that courtrooms are not well set up to cope with individuals with physical or mental support needs. There were a very small number of suggestions for jurors to be screened for bias prior to being assigned to a trial or for the gender of jurors to be considered in gender based violent crimes.

Q17: Do you feel that any of the reforms considered in this paper would have an impact on human rights?

178. A total of 111 respondents opted to provide an answer to this question, with a large minority of respondents – including legal and advocacy organisations, and individuals – feeling that the reforms considered in this paper would have no impact on human rights. Some respondents reiterated an individual's right to a fair trial and that this right is a cornerstone of the criminal justice system in Scotland. However, a very small number of legal organisations commented that the current system is fair, with one noting that any reforms or changes could remove safeguards and increase the risk of miscarriages of justice.

179. Allied to this point, some respondents referred specifically to corroboration and that any decision to remove the corroboration rule would impact on the accused's right to a fair trial and increase the risk of a miscarriage of justice. Conversely, a few respondents in advocacy organisations and individuals felt the removal of the corroboration rule would have a positive impact on the human rights of women and girls who disproportionately experience sexual or domestic abuse.

180. References to removing or abolishing the not proven verdict were made by some respondents, although views were polarised as to whether impacts would be positive or negative. For example, there were a small number of concerns that this could lead to more guilty verdicts and an increase in wrongful convictions or miscarriages of justice, although some thought that this would remove one of the barriers currently facing victims of crime and would improve the rights of victims.

181. A small number of individuals referred to ECHR (European Convention on Human Rights), with comments that reform of the system is likely to bring about concerns about Article 6 (the right to a fair trial), although one noted that most jurisdictions without a corroboration rule are in full conformity with the ECHR.

Other Impacts and Comments

Q18: Do you feel that any of the reforms considered in this paper would have impacts on island communities, local government or the environment?

182. A total of 99 respondents replied to this question; with a majority of these noting there would be no impacts on island communities, local government or the environment from any of the reforms considered in the consultation. A few respondents noted they were unsure about the likely impact of any reforms, and a very small number felt there would be impacts but did not provide any details as to what these impacts might be.

183. A few respondents commented on island communities specifically; the key theme, albeit only mentioned by a very small number of respondents was that smaller juries would be easier in island communities where population numbers are relatively low. There was one comment that it could be possible to conduct trials with remote juries, as per COVID-19.

184. An advocacy organisation noted that these reforms could potentially impact on local government through justice social work but did not provide any further detail.

185. Only one respondent commented on the environmental impact with a suggestion that jury packs could be sent in digital format to jurors.

186. A few respondents commented on this question as being irrelevant.

Q19: Do you have any other comments about the content of this paper?

187. A total of 42 respondents gave a reply to this question. Most responses echoed themes outlined in previous questions. A few other areas were outlined as needing reform, although each was mentioned by only a single respondent. These included a need to focus on:

• Other issues such as legal aid, reporting restrictions, the role of the press in courts and first appearances.
• The use of telelinked evidence in trials.
• More focus should be placed upon the views of those who have relevant experience, rather than giving weight to pressure groups or academics.
• Support of Lady Dorrian's Group proposal to have complainers separately represented at section 275 hearings.

188. A small number of respondents saw any reforms potentially arising from this work as being motivated by a desire to increase the number of convictions, and disagreed with this, with a legal organisation noting that this would undermine the institution of justice.

189. A small number of respondents praised the consultation paper although an equal number were critical of the length and / or wording of some of the questions.