Last month a woman won a rape case in a civil court in Edinburgh, in what is only the second case of its kind in Scotland. In the original criminal trial, the jury had returned a verdict of “not proven” on the charge of rape. Not proven sits alongside the familiar guilty and not guilty in a uniquely Scottish tripartite verdict regime. Not proven is functionally identical to not guilty and was part of a system imposed around the time of the Restoration. That system was later discarded, but not proven continued to be used. This means that whether a jury returns a verdict of not guilty or not proven, it makes not a jot of difference.

No judge can tell a jury what not proven means

No judge can tell a jury what not proven means, only that it acquits the defendant. Yet many people — including otherwise intelligent ones — simply cannot grasp this. They see the words “not” and “proven” and infer their preferred meaning on the assumption that the verdict is there by intelligent design and not haphazard evolution. Lawyers, the public and interest groups have all coined their own definitions — but these are just speculations based on its use. Only the legal system itself can ratify a particular meaning. That said, some of its supporters make principled and rational arguments for its preservation in a new verdict system, while others simply covet the distinction it lends Scots law.

Certain interest groups want to get rid of it on the basis of two false premises. The first is the belief that it falls short of a not guilty verdict. It does not; it is a synonym of the not guilty verdict — which is a good conceptual reason for getting rid of it. The second is that the verdict is more frequently used in sexual offence cases and is allowing the guilty to walk free. At least since 2016, this has not been the case; it has in fact been the least used verdict, yet it is repeatedly and blindly stated that if not proven were abolished juries would convict more men accused of sexual offences who are currently walking free. Yet there is no evidence that this will happen, and the same groups seem to have taken a vow of silence on the conviction rate being similarly low in England, Wales and Ireland, where there are of course only two verdicts.

The abolitionists also 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 seek to right historical wrongs by erring on the side of guilt. That, of course, is utter nonsense: each case is decided on its own merits by a jury unlikely to even be aware of this debate.

Civil rape cases risk making a mockery of criminal justice

But if abolishing not proven will not actually affect the equality of arms in the courtroom, then what is the problem? The problem is twofold. First, disinformation about not proven gives rise to the belief that if a jury uses it, then justice has not been rendered and that complainers should seek it instead in the civil courts. Secondly, it has given impetus to a pilot scheme, championed (rather unnervingly) by the judiciary, in which there will be no juries in sexual offence cases.

The few civil rape cases we have seen so far in Scotland could be dubbed “quasi-criminal”. Being civil cases, they are brought for damages but the true purpose is for the aggrieved party to obtain the justice they did not get in a criminal court. Their use of the civil courts to this end is perfectly understandable.

The elephant in the room, however, is that criminal and civil cases employ two different standards of proof. This is resolutely not some esoteric concept: to convict in a criminal court, the jury must be convinced the charge has been proven beyond all reasonable doubt; in civil cases, the judge decides whether it has been proven on a balance of probabilities, a lower standard. It follows that any number of cases that do not satisfy the higher, criminal standard could satisfy the lower, civil standard. But when they do, they risk making a mockery of criminal justice. While there is no prospect of imprisonment for the party sued in a civil case and the suit is ostensibly for pecuniary damages, the loser may well suffer the same reputational evisceration that comes with a criminal conviction.

People are fearful of facing an argumentum ad passiones

People are fearful of pointing this out as they are liable to face an argumentum ad passiones, or appeal to emotion — which in a world that now turns on feelings, is worth more than facts. In the absence of opposition, expect to see bolder incursions into the presumption of innocence in both Scotland and England. Current efforts have already met blanket silence from the same people who are otherwise at pains to pledge their fidelity to agnostic terms like “human rights” and the “rule of law”. In reality, the law is for them just a means to a social end that benefits their group at the expense of another: the very thing they rail against.

All of this is superseded by the war against juries in Scotland. The juryless trials pilot is likely to run this year, and at its conclusion there will be a push from the Scottish government and its retinue of interest groups to entrench the new system. If that happens, the question over not proven will be moot and the use of the civil courts for criminal business will come to an end because, presumably, the conviction rate for rape and other offences will increase.

A scheme designed to increase the conviction rate for a crime could create pressure on judges to convict because its investors will expect dividends. One increasingly has the sense that those behind it are thinking more like Washington mandarins, weighing collateral damage in a righteous war, than people for whom the presumption of innocence is a sacred principle.

Scotland would do well to remember the motto of England’s greatest barrister, Thomas Erskine, the defender of Thomas Paine. It was simply this: “trial by jury”.

Erskine, of course, was a Scot.