Douglas J. Cusine: ‘Not proven’ consultation is biased – yes or no?

Douglas J. Cusine: 'Not proven' consultation is biased – yes or no?

Douglas J. Cusine highlights a worrying bias in the Scottish government’s consultation on the ‘not proven’ verdict, which sits alongside its botched consultation on the reform of legal regulation.

As was mentioned in Scottish Legal News in December, the Scottish government is consulting on the “not proven” verdict (NP) and other matters. There is one question on NP which worries me, in that it suggests that the consultation is aimed at the abolition of the verdict and so is not unbiased. There are seven questions to be answered on NP. Questions 5, 6 and 7 begin: “Do you believe…” and the answers to 5 and 6 can be “yes,” or “no,” or “unsure.” Not so with Question 7: there is no “unsure” and one wonders why?

Question 7 is: “Do you believe that the not proven verdict can cause particular trauma to the victims of crime and their families?”

That question involves speculation. I would not know the answer, but if I were being honest, I should not answer “No” because I do not know. If I were being honest, I should not answer “Yes” either, because I do not know, but if I think that this may be so, the better answer would be “Yes”. If most consultees answer “Yes”, and that is very likely, the argument in favour of abolishing the verdict will be seen by the Scottish government to have been made. There is no supplementary question about whether one knows of someone who has been “traumatised” or whether the person answering is speculating. Such a supplementary question would have provided some useful perspective. For example, I do not know of anyone in this category, and that is why I do not think it is appropriate to ask me to speculate, or if I am being asked to speculate, make that clear.

Some time ago, the First Minister and the Justice Secretary expressed their view that the NP verdict should go. It seems unlikely that Justice Secretary did not see the questions to be posed in this consultation in advance. Did it not strike him as odd that “unsure” is not available as an answer to Q7, especially as, to state the obvious, it follows immediately after two questions which allow “unsure” as a response? Perhaps, like me, he expects most people to answer “Yes” – which would bolster his view that the verdict should go.

Note the terminology used – not only the possibly emotive term “trauma” but “particular trauma”. “Trauma” suggests something which has a more lasting effect than “disappointed” “upset”, “annoyed” or “distressed”, even if “very” is also used. It is anyone’s guess about what makes a trauma “particular”.

Also, “victims” is used, not “alleged victims”. It may seem like hair-splitting to say “alleged victims” but as every judge knows, as do others, some alleged victims, do not tell the truth to the police, or the prosecutor, or in the court. There can be a variety of reasons for this.

The contrast between the possible answers to questions 5 and 6 and those to Q7 can hardly be dismissed as an oversight, as one assumes that, prior to publication, the proposed document was read with attention to its detail. If that is so, the omission of “unsure” was deliberate and so, for me, the question is aimed at a “Yes” answer, which, as I said, involves for most people, speculation.

You can draw you own conclusion on why there is this marked contrast. Perhaps the Justice Secretary may assist. These are his introductory words to the consultation document: “We will take an open and consultative approach to these complex matters and - as part of this consultation - seek to capture the views of a broad range of stakeholders including legal professionals, the third sector and those with lived experience of the system. This government has no settled view on potential next steps and I want to listen to what consultees tell us before we weigh all the evidence and reach a decision.”

One would expect a “consultative approach” to be part of a consultation and I assume that a “lived experience” is the same as “actual experience” and, if so, why not use a term which everyone will understand? However, leaving the tautology and infelicities of style aside, I cannot reconcile Q7 and its only two possible answers with the statement that the government has an open mind. Over to you to answer, “True or false?” “Unsure” is not available!

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.

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