Item 2, which is our main item of business today, is an evidence session on the Criminal Verdicts (Scotland) Bill at stage 1. Members will recall that we delayed our consideration of the bill until the Criminal Justice (Scotland) Bill, which contains some overlapping provisions on the reform of jury majorities, had completed its passage through Parliament.
We will hear from two panels of witnesses. I welcome Michael Matheson, the Cabinet Secretary for Justice, and Scottish Government officials Orla Davey, from the criminal justice division, and Kevin Gibson, from the directorate for legal services.
I invite the cabinet secretary to make a brief opening statement if he so wishes. He does not; that is absolutely lovely. I will go straight to questions from members, although the cabinet secretary has probably caught them on the hop. No, he has not—Margaret Mitchell will begin.
Cabinet secretary, your recent submission makes it clear that your preference is for a holistic and evidence-based approach to reform and that having evidence from jury research is important. The Abusive Behaviour and Sexual Harm (Scotland) Bill includes provision that requires a judge to provide jury directions in sexual offence trials. Why is that reform being taken forward in advance of jury research?
As you will be aware, Lord Bonomy’s review group gave very detailed consideration to any changes that should be made to our jury system, in particular on jury size, jury majorities and the three verdicts, and highlighted that there was a lack of evidence to support any fundamental reform in those areas. Prior to reform being undertaken in those areas, the review group recommended that there should be an evidence base to explore what impact it would have. Part of our response has been to commission the research that the Lord Bonomy review group recommended into those specific areas.
We believe that there is already a strong evidence base for the introduction of statutory provisions on jury directions, largely for the reasons that I have previously outlined to the committee. We also believe that there has been an opportunity for reform of that area to have taken place in the past, without statutory provision, and that it has not been taken forward. Notwithstanding that, as I mentioned to the committee a couple of weeks ago, there are already some judges who use jury directions at appropriate stages. It is worth keeping in mind that juries receive directions on, for example, the evidence from expert witnesses.
We have rehearsed those points over the past couple of weeks when I gave evidence to the committee on the Abusive Behaviour and Sexual Harm (Scotland) Bill. However, Lord Bonomy’s review group also looked specifically at the links between jury size, jury majorities and the three verdicts. It highlighted that, if one aspect of that system were to be altered, it could have an impact on the other parts.
Prior to undertaking any fundamental change in those areas, we should have a clear evidence base and an understanding of what the impact would be.
Is the research limited to the areas that you have outlined? Is there more information on exactly what jury research will be looked at, how it will be done and the timescale involved?
When I gave evidence to the committee back in September, I mentioned that we would be undertaking the jury research as recommended by the Lord Bonomy review group. We have started that process. For example, the review group highlighted six specific areas that should be covered by the jury research. We are just about to enter the final phase of discussions with a range of stakeholders about whether we should add to those six areas. When we have completed that in the next couple of weeks, we will start the formal aspect of going out to expert groups that might be in a position to take forward that research.
What is the timescale?
Is your question about the timescale for completing the research?
Yes, and thereafter.
The timescale for completing the research will depend on several factors, such as whether we choose to go beyond the six areas that Lord Bonomy identified and the methodology that is used by those who undertake the research. Once we have the details of that, we will be able to give a more accurate timeframe. As I think that I have said previously, the process will not be quick.
Paper 2 says something about two years being the backstop.
Lord Bonomy’s report indicated that it could take two years, but that will depend on a range of factors.
Absolutely, but we have a ballpark figure. We are talking not about weeks or months, but years.
It will take several years, yes.
There are additional issues, such as whether to use mock jurors or real jurors. If real jurors are used, the Contempt of Court Act 1981 will have to be amended.
The process will take a couple of years, but the timescale will depend on whether we add to the six areas that Lord Bonomy recommended and on the researchers’ methodology.
The submission that we received from Professor Chalmers and Professor Leverick argues against delaying the decision on the not proven verdict. They state:
“the not proven verdict raises questions of principle which must be confronted directly and cannot be evaded by calls for further empirical research.”
How do you respond to the idea that it is an issue of principle rather than evidence?
I am not entirely convinced that it is purely a matter of principle; it is also a matter of outcome. I am not sure whether anything has changed significantly since Lord Bonomy’s review group published its findings on the interlinked way in which the different component parts of our jury system operate and the lack of evidence base.
This issue is absolutely fundamental to how our justice system operates, so it is important that we take the necessary time to undertake the research that will give us an evidence base and some understanding of the impact that any changes might have on how the system operates.
At stage 2 of the Criminal Justice (Scotland) Bill, you indicated that you were not unsympathetic to the Criminal Verdicts (Scotland) Bill. Perhaps you could expand on your view of the views of victims organisations such as Victim Support Scotland, for example, that the reform is necessary.
As I have said before, I am not unsympathetic to changes but I recognise that the areas are linked to one another. If you choose to change by removing the not proven verdict, for example, what impact will that have? That is part of the six areas that Lord Bonomy highlighted as needing to be considered carefully.
I am not unsympathetic to reform in this area, which is why we are undertaking the research. However, I am mindful of the fundamental role that the area plays within our criminal justice system and I think that, prior to making any changes in the area, it is prudent and responsible to ensure that we are clear about the evidence base for those changes. I think that we should undertake that research before we reform this area of the criminal justice system.
The bill suggests that the two verdicts should be guilty and not guilty, but some witnesses have suggested that they should be proven and not proven. Would you have any view on that if we moved to a two-verdict system?
You are asking me to pre-empt the research.
No.
Opinion broadly breaks down into three areas when it comes to the three verdicts. First, there are those who question why we have two acquittal verdicts and only one for conviction. They would get rid of the not proven verdict altogether and run with the other verdicts that we have at present. Secondly, there are those who would retain the not proven verdict because they see it as a safeguard in the system. Thirdly, there are those who say that we should change the verdicts from guilty and not guilty to proven and not proven on the basis that the system is about guilt being proven beyond reasonable doubt. The research will look into those three areas.
If we were to change the system to one in which the verdicts were proven and not proven, how would jurors interpret that and what impact could that have on their decision making? The researchers will be able to consider similar cases in which different verdicts were available for the juries to reach in order to see what impact that had on the juries’ discussions, the dynamics of the juries and the decisions that the juries came to. That will give us a clearer understanding of the matter prior to our making any decisions on it.
It is important that we look at all those things, and it will be interesting to see what impact any changes could have. Most people will be familiar with the idea that someone is guilty or not guilty. If we changed the available verdicts to proven and not proven, would that have an impact on their decision making and reasoning? That is exactly what the jury research will consider.
Forgive me, but I was not at the committee’s previous meeting and I am a bit bewildered by the answers that you gave to Margaret Mitchell’s questions. It is absolutely correct that the Government should undertake jury research before taking a view on the terms “proven” and “not proven”. However, I do not understand why that does not apply in respect of the jury directions that the other bill will introduce. You told Margaret Mitchell that we have evidence that it matters that there is provision for jury directions in the Abusive Behaviour and Sexual Harm (Scotland) Bill. What evidence for that have we received while we are waiting for evidence about how juries come to their verdicts generally?
Do you mean research into jury directions?
What research is there into the jury directions that you intend to introduce?
As I said to the committee, jury directions are already given by some judges.
I understand that, but the bill goes a step further according to leading lawyers and the Lord President. I am all for evidence-based practice, but I wonder why, when we are undertaking research into jury size and the not proven verdict, we are not undertaking research elsewhere.
We have not reformed the area yet.
I know that we have not.
Jury directions are already given by judges in particular sets of circumstances. In addition, some judges choose to give direction in other areas as well. A significant amount of research has been undertaken into jury directions, and we believe that there has been a robust consideration of those matters. That is why we believe that there is a case for introducing jury directions into Scots law.
You rightly said that we need to consider how juries think about things, how they come to decisions and why they arrive at a not proven verdict in certain cases rather than a guilty or not guilty verdict. Juries’ thinking is complex, and I am glad that we are doing the research. Nevertheless, it seems to me that jury directions are something else that could be encompassed in that research.
I leave it at that, because the issue was dealt with in the committee’s consideration of the Abusive Behaviour and Sexual Harm (Scotland) Bill. I simply wanted you to note my feeling about your answers to Margaret Mitchell’s questions on the matter.
10:00
I should perhaps refer to my entry in the register of members’ interests, which notes that I am a member of the Faculty of Advocates.
Elaine Murray has asked most of the questions that I was going to ask, but I would like to ensure that the view of Professor Chalmers is given a good airing. In his submission, he says:
“it is undesirable in principle to have two different verdicts of acquittal when the difference between them cannot properly be articulated.”
He goes on to talk about what would happen if there were research. He says:
“Research might, for example, show that mock juries asked to view simulated trials are either more or less likely to convict when presented with two possible verdicts rather than three. There would, however, be no means of establishing for the purposes of such a study what the correct conviction rate was, and so the research would not establish which of a three or two verdict system was ‘better’.”
Lord Bonomy is, of course, an extremely experienced judge, but can you answer the point that Professor Chalmers made and perhaps give the critics of the research something that might assuage them?
I am aware of the opinion that some academics have on the value of research in this area. I am of the view that, as Lord Bonomy’s review highlighted, a change to one part of the system will inevitably have an impact on the other parts. We have to think about what that impact will be, so that we have a more rounded understanding of matters. If the research considered only getting rid of the not proven verdict and did so in a narrow way, it would be of less value to our understanding. However, if—as is the case—the research considers at least six areas, that will give us a much more rounded understanding of the reasoning and behaviour of jurors.
The other issue is that, as has been highlighted, there are two options: you can use real jurors or you can use mock jurors. It is also worth keeping in mind that other jurisdictions have undertaken research into jurors’ behaviour, largely using mock jurors, and have gained important insight into their reasoning and behaviour.
If you were to undertake narrow research and focus only on the not proven verdict, its value would be limited. However, that is not the intention of the research. It will have a much broader base.
We received a lot of written submissions from various organisations. Scottish Women’s Aid, Rape Crisis Scotland and Victim Support Scotland all agree that it would not be right to introduce section 2 of this bill before the absolute requirement for corroboration was removed. There seems to be a consistency there. The Highland violence against women partnership goes even further. It says:
“We believe that the removal of ‘Not Proven’ as a verdict should be implemented in Scotland, but that this should be one measure along with others, as recommended by Lord Carloway, such as the removal of corroboration.”
It concludes:
“We urge the Scottish Parliament not to take this Bill forward without considering other measures, such as the removal of corroboration, as to do so would be damaging to those seeking justice for experiences of Violence Against Women.”
How would you respond to the views of those organisations?
I understand that concern, which is why we do not support this bill or these reforms at this stage. The expert group under Lord Bonomy considered a wide range of issues, including the issue of post-corroboration safeguards.
I have already given a commitment to Parliament that we intend to take forward Lord Bonomy’s recommendations. I take the view that, once those recommendations and the work around them have been taken forward, the abolition of corroboration should be considered again. I have previously stated that I see that as unfinished business. It is important that we take forward Lord Bonomy’s recommendations, including those on jury size, jury majorities and the three verdicts.
If we start to alter one part of the system and think that we can do that in isolation without having an impact on other parts of the system, we are in danger of unbalancing the system. That is why I am committed to taking forward Lord Bonomy’s recommendations as a package of measures. Research in a very specific area is part of that. Once that work and the other issues that Lord Bonomy made recommendations on have been taken forward, we can revisit the abolition of corroboration.
So you agree with the Highland violence against women partnership that the not proven verdict, the change in the number of jurors required to reach a guilty verdict and the removal of the absolute requirement for corroboration are linked.
I do. I believe that they are all interlinked. That is why I do not believe that it is wise to look at changing one of those three things, or even two of them, without having a better understanding of the impact that that will have on how the system operates.
Thank you.
Good morning, cabinet secretary. You alluded to the two different acquittal verdicts. We received evidence from Professor Chalmers and Professor Leverick, who said:
“There is, quite simply, no merit in having two different verdicts of acquittal, when each verdict has exactly the same practical consequence and the distinction between them is not well understood ... In particular, we support the argument that it is wrong for a verdict of acquittal to carry any implication of stigma.”
The not proven verdict carries that stigma, does it not?
Some individuals may interpret it in that way, as the person will not have been proven guilty. However, I am conscious that there has been a debate in the legal system for many decades about what the difference is between a not guilty verdict and a not proven verdict. That is not based in statute or case law, and judges are discouraged from trying to explain the distinction to jurors, as it is very difficult to explain it.
If we moved to a system that had a not proven verdict and a proven verdict, for example, what impact would that have and what perception would that create? That is why we need to explore the issue more fully before we look at introducing such a change. Perception more than reality may give rise to the feeling that there is a distinction between the not proven verdict and the not guilty verdict.
A lot of eminent people, including you, have provided us with information, but the reality is that the public make judgments, and they do not do so on the basis of reams of paper, briefing notes and all the rest. There is no doubt that a stigma is attached to the not proven verdict. I think that you would agree that, if any of us found ourselves being acquitted, we would want to hear the words “not guilty” rather than “not proven”.
I suspect so. As I said, that is why we need to explore these issues before we look at introducing any changes. In the first place, a not proven verdict is returned in a very small number of cases every year. I understand that there is a perception that a not proven verdict is significantly different from a not guilty verdict, despite the fact that there is nothing about that in statute or in case law, and there is no meaningful definition of the difference between the two. That suggests that it is an issue more of perception than of the reality of the distinction between the two. They both have the same outcome as acquittals.
Thank you very much.
I do not know whether you have these figures—if not, perhaps we can ask the Scottish Parliament information centre for them—but, proportionately, in how many cases where only a judge sits is there a not proven verdict and in how many cases where a jury sits is such a verdict reached? What are the figures for different types of case? We do not have those figures, but it would be interesting to know whether they are part of the research that the Government is undertaking on the rationale for juries’ verdicts. Are there figures for verdicts in cases where a jury sits and in cases where a single judge sits and for verdicts in different types and levels of case, whether summary or indictment? It would be interesting to have those figures. Does the Government have that information? Is it part of the research?
We are looking at whether there are other areas that we should include in the research. The most recent figures for the number of cases in which there was a not proven verdict are for 2013-14. We can try to provide you with further detail on how those figures break down.
It would be interesting to have that information, particularly when considering whether, proportionately, there is a divide in the use of the not proven verdict between cases where a single judge sits and cases where a jury sits. It would also be interesting to have the figures for different categories of case.
We can try to provide you with that detail as best we can from what we have at present. We do not have figures for 2015, because they are not available yet. However, we can give you the most recent figures and try to break them down as much as possible for the committee.
Perhaps SPICe can provide us with that information.
I want to go back to my colleague’s question about corroboration, because I did not quite understand your response. You said that certain areas are interlinked, and I can see that the issues of jury size, jury majorities and the reduction to two verdicts are interlinked. However, is your thinking on how those changes would impact on other areas related to the fact that we still have the corroboration requirement in place? I am not sure whether you meant that to be understood or whether you are simply restricting your comments to the three categories mentioned.
I am restricting my comments to those three categories on the basis of the bill that the committee is considering, given that it is about jury majorities and the not proven verdict. Part of the consideration of whether to abolish corroboration is to do with whether we should alter some areas—for example, increasing the proportion for a jury majority verdict—to provide safeguards if corroboration is removed. That is why those areas were considered by Lord Bonomy in a much more holistic way. Consideration of whether to change any of the areas mentioned would be linked to the work that we are doing on Lord Bonomy’s recommendations on the safeguards that would be put in place if corroboration were abolished.
The bill is specifically concerned with certain areas, but those also fit with the wider work that we are undertaking on the post-corroboration safeguards that Lord Bonomy recommended.
Maybe I can go a bit further. You are on record as being sympathetic to what Michael McMahon seeks to achieve with his member’s bill. You are reluctant to refer to other areas because corroboration is still in place. In fact, if corroboration had been removed, you might have been a bit more positive today, or is that putting it too strongly?
I think that you should let the cabinet secretary explain his position rather than tell him his position.
No, I am asking a question about it.
I understand the point that Gil Paterson is making. One of the safeguards for the abolition of corroboration in the Criminal Justice (Scotland) Bill as introduced was changing the majority provision for juries from the existing simple majority. Obviously, the abolition of corroboration was not taken forward, so that provision on juries was removed from the bill.
A range of areas in the criminal justice system are interlinked. It is important that we alter those in a way that allows us to understand what the potential impact of the alteration could be. We need to do so much more holistically; we must also ensure that the system is properly balanced.
The Bonomy review looked at how the system could be balanced were corroboration to be abolished, and we are progressing its recommendations in order to achieve that. Obviously, some of that will require primary legislation, so it will be for a future Government to determine how it chooses to progress that and what it brings before Parliament.
That concludes the questions. I thank the cabinet secretary and his officials.
I will suspend the meeting to allow the next set of witnesses to come in.
10:15 Meeting suspended.
I welcome Michael McMahon to the committee. I know how hard appearing before a committee is, Michael, because I did it about a month ago, but you have braw people either side of you who will keep you straight, if you allow them to. Those people are Clare O’Neill—hello, Clare—and Neil Ross; I am familiar with Neil, too, from my own voyages into members’ bills. I invite the member in charge to make a short opening statement.
Thank you for finding the time to speak to me this morning about my Criminal Verdicts (Scotland) Bill, which has been discussed and looked at for some time now. I am delighted to come before you to discuss the proposal, which I have been working on for a considerable time. I thank Clare O’Neill, Neil Ross and others in the non-Government bills unit for all the support that they have given me over that time.
Parliament should have had the opportunity to discuss criminal verdicts before now. A lot of matters have been discussed in relation to the criminal justice system, but there has never before been the opportunity to discuss the not proven verdict, which is one of the most controversial aspects of our system. That issue has always been there in the background; it has never gone away. The time is right to discuss and look at it, and to make the changes not only that parliamentarians should want to bring about but which the people of Scotland want to see—that is the evidence that I have accrued from the various consultations that I have conducted. The evidence also suggests that the time is right for us to take away that anomaly in the system and get to a place where people have more confidence in the system and feel that they can trust the verdicts much more than is currently the case.
I am open to answering questions, convener.
I recognise in your voice the passion and commitment that members have—quite rightly—for their bills. Christian Allard will start.
Good morning, Michael. Your bill is a very good piece of legislation that got wide support from everybody.
You talk about the timing being right. Unfortunately, a lot of organisations say in their submissions not so much that the timing is wrong but that there should be a delay because the removal of the absolute requirement for corroboration did not take place this session. Do you want to respond to that view, which came from organisations such as Rape Crisis Scotland, Victim Support Scotland and Scottish Women’s Aid?
I can understand why people would make that argument, but let me counter it. We have had a series of criminal justice bills—as the committee knows, because it has had the workload—in which issues have all been taken in isolation. We are discussing this point now because the corroboration aspect of the Criminal Justice (Scotland) Bill got into some difficulty, let us say, and so the issue arose.
One of the reasons why I have not been able to introduce this reform is because it was never part of the discussion on or consideration of any of the criminal justice bills that have been introduced. Given that it has never been felt that the not proven verdict had to be looked at in relation to double jeopardy or any of the other changes that have taken place, I cannot see why there is now an inextricable link between the not proven verdict and corroboration. That link was never made before, but now, all of a sudden, because the corroboration aspect of the criminal justice system has got into some difficulty, the argument is being made that we have to link corroboration to the not proven verdict and the jury majority issue.
I do not think that the idea that the link has to be made and that we cannot take forward this separate aspect of the judicial system in isolation bears any scrutiny, given that it was never required to be considered along with corroboration when corroboration was the main aspect that was being looked at.
Did you challenge all those organisations on that particular point?
No—I think that they are entitled to their view. They have made that connection, but I am saying that the connection was never made when we were looking at corroboration, double jeopardy or other aspects of the judicial system in isolation and making changes to them.
Why all of a sudden do we now have to hold back on not proven because corroboration got into some difficulty? If there was a link between corroboration, not proven and the jury majority, why was that not made when corroboration was the main issue that was being looked at in the criminal justice system?
I do not know whether you can help me on this point, convener, but do you think that there were some links? Michael McMahon’s bill was very much talked about when the Criminal Justice (Scotland) Bill was going through Parliament as being complementary to the removal of the absolute requirement for corroboration.
In fairness, I think that it was probably the committee that took the view that if we removed the mandatory requirement for corroboration, juries might be less likely to convict, which might up the ante in relation to not proven and not guilty verdicts. That was implied by our consideration rather than anything else.
It also gave me an opportunity to lodge an amendment to the Criminal Justice (Scotland) Bill. However, an argument appears to be being made now that there is an inextricable link between the two aspects. If that was the case, why was the not proven verdict not dealt with as part of the Criminal Justice (Scotland) Bill, which looked at corroboration? If it is the case that these things cannot be looked at in isolation, why was corroboration looked at in isolation?
I tend to agree with you. I do not think that there is an inextricable link. However, there was a kind of reassurance that, on the back of the removal of the absolute requirement for corroboration, your bill would be coming in.
You are right that you lodged an amendment to try to complement the changes that were proposed in the Criminal Justice (Scotland) Bill—there is a complementary interaction between the two aspects. I was surprised that even the Highland violence against women partnership linked it to the not proven verdict, believing strongly that it was not only about the number of jurors, but—
In previous consultations that I undertook, Miscarriages of Justice Organisation said that it wanted the issue to be considered in conjunction with the removal of double jeopardy. Different organisations have argued that if we look at one thing we should also look at another.
The Criminal Justice (Scotland) Bill contained no provision on the not proven verdict; now, all of a sudden, we are being told that the issue cannot be looked at in isolation and must be looked at in conjunction with all the other aspects of the criminal justice system. My argument is—
Do you think that it has to be looked at in that way, because you are changing—
No, I take the opposite view, convener—
But you are changing jury size and so on. Should not the whole thing be looked at holistically?
When I conducted my first consultation, it came through strongly that there was concern across the board that we could not look at removing the not proven verdict without looking at the jury system.
Correct.
That link was made immediately. Only one or two organisations talked about the possibility of looking at double jeopardy. It is only recently, since we have been talking about corroboration, that organisations have started to say, “Let’s wait until we’ve looked at corroboration before we look at not proven.” I do not think that—with the exception of the issue to do with majorities on juries—there is a clear link that means that we cannot do one thing without doing the other.
You are not sympathetic to that view. Should a bill come after your bill, to remove the absolute requirement for corroboration?
I have never taken a view on corroboration. I think that that is a legitimate—
May I stop you there? I want us to keep to the bill that you have introduced, which is about jury size and removal of the not proven verdict. That is what we are testing.
But the evidence that we received—
We have examined the major point in that regard and I do not want to go down that road again.
Some supporters of a move to a two-verdict system say that the verdicts should be proven and not proven, rather than guilty and not guilty. Why does Michael McMahon prefer the latter?
The simple answer is that the evidence from the consultation was that we should have guilty and not guilty.
There is an argument, which we hear from people in the legal profession, and which is logical, that a trial takes place to test the evidence that is brought forward, so that it can be determined whether a case is proved beyond reasonable doubt. Therefore, people are asked to consider whether the case that the prosecution brings forward is proven or not proven. Those were the original trial verdicts in Scotland; not guilty was added, by chance rather than by direction or statute—
I did not know that you were as old as that, Michael. There we are.
It is amazing how we find things out. Every day is an education.
We started off with proven and not proven and then moved to having three verdicts, which, over time, have become guilty, not guilty and not proven.
However, there is a strong argument—which certainly convinced me—that, given that the not proven verdict is the controversial one, to go back to having proven and not proven might cause more confusion in the minds of juries than would be caused by their being told to look at the evidence and determine whether it suggests beyond all reasonable doubt that a person is guilty or not, which is what juries are there to do. I was persuaded to move away from proven and not proven on the basis that juries understand that they are being asked to find someone guilty or not guilty.
The cabinet secretary said that although he is sympathetic to the intention of your bill, he thinks that there should be more research about jury size and which verdicts to have, which should be undertaken over the next couple of years. Is it worth waiting for the results of the research before we finalise our approach?
I see no value in waiting, because I do not think that the research findings will be very different from what we already know. We know that there is a stigma attached to the not proven verdict and that there is confusion about what it means. We know that it results in acquittal, as does the not guilty verdict. We know that judges cannot articulate to juries the difference between a not proven and a not guilty verdict. We know all those things, and I do not see what further evidence will be found that will clarify all that.
I tend to think that the argument for waiting is more to do with a desire to continue discussing other aspects of the judicial system, such as corroboration. In relation to what juries think, I genuinely do not think that we will find evidence that adds to what we already know.
10:30Perhaps you could help me with this. When I spoke to the cabinet secretary, there was not even clarity about whether it would be permissible to speak to jurors in any review. There had to be clarification about whether jurors could be approached to speak to researchers about what they had discussed in the jury room. I do not know whether that has been clarified. We might discover that we cannot get the information.
I think that we are about to get a point of information from Roderick Campbell.
That would require an amendment to the Contempt of Court Act 1981, so it is certainly not straightforward.
There we are. Having an advocate sometimes has its uses. We do not even have to pay him for his advice.
Roderick Campbell makes the point that the cabinet secretary made. I am asking whether it has been clarified and whether we will get the research and insight that the cabinet secretary asks us to wait to get.
If we want to use actual jurors, we will be required to change the Contempt of Court Act 1981. That is why there are some advantages to using mock jurors.
That is what I thought.
We have had some submissions from victims organisations that are concerned about the change in the jury majority proposed in section 2 because they think that it will create an additional barrier to justice for victims and lead to a bias in favour of the accused. How do you respond to that concern?
There is some validity in the argument, but it is outweighed by what a majority decision can mean. In very serious cases, the outcome can be entirely different if one juror changes their position and takes the majority in one direction or another, which hardly suggests to me that the jury has arrived at a conclusion that is beyond reasonable doubt. If, having presented all its evidence, a legal team can convince only seven out of 15 jurors that the evidence does not suggest that the accused is guilty or it can find only eight people who believe that the evidence suggests that the accused is guilty, that far outweighs any concerns that people could have about moving to 10 or 12 jurors making the decision. If 10 or 12 jurors made the decision, we could genuinely believe that, whether the verdict was guilty or not guilty, the strength of the evidence had convinced a sizeable majority of the jury.
I appreciate that, but the problem is that, currently, we do not know whether a verdict was decided by a simple majority of one or a substantial majority. Does that not give weight to the argument for carrying out research into how juries come to their verdicts by using mock juries and research comparing how often a not proven verdict occurs in cases in which a single judge sits, as opposed to in jury cases, and, indeed, in different types of case, so that we have some meat in front of us? I am very sympathetic to the bill, but we do not know whether everybody on any given jury thought that the case was not proven or whether that was decided by just a simple majority.
From the evidence that I have been able to collect, we know that people would have much more confidence in a verdict if they knew that a majority of 10 out of 15 had reached it. At present, people can suspect, surmise or guess at how close a verdict was. I do not know that any further research would enlighten us about whether people would be more confident if we had a majority of 10, rather than eight, out of 15. We already know that people would prefer the majorities to be much clearer. People would understand that; they would be more concerned that it is possible—not definitely the case but possible—that a not proven verdict was handed down on a majority of one person.
But we do not know.
We may never know.
That is a good riposte.
I will labour slightly the connection between the two aspects of the bill. The proposal to abolish the not proven verdict is coupled with a proposal to change the level of jury support required for a guilty verdict in order to deal with concerns that abolishing the not proven verdict would heighten the risk of wrongful conviction. The purpose of the bill is stated to be:
“to provide for the removal of the not proven verdict as one of the available verdicts in criminal proceedings; and for a guilty verdict to require an increased majority of jurors.”
We have received evidence from a number of people and organisations, such as Scottish Women’s Aid, that although they might favour abolishing the not proven verdict, they do not favour increasing the number of jurors required for a majority verdict. Do you believe in your heart of hearts that the two measures are strongly connected, or do you have a preference for abolishing the not proven verdict over and above that?
Based on the evidence that I have received, and having spoken to people throughout the period for which I have been consulting on the bill, I believe that there is a very strong link between removing the not proven verdict and reassuring people that the majority that has decided between the verdicts of guilty or not guilty is at least a substantial majority, rather than a majority of one. I think that there is a clear link between removing the not proven verdict and reassuring people that the evidence that has been presented has enabled the jury to arrive at a conclusion beyond a reasonable doubt. That is vital.
So, for you at any rate, the two are inextricably linked.
That is the link that has been made. As I said, the link with double jeopardy and corroboration was never made strongly. I think that the link between increasing the number needed for a majority and removing the third verdict is strong. Other jurisdictions have a higher threshold for the majority and every other jurisdiction has an outcome of guilty or not guilty.
It has been suggested that the not proven option allows for a more nuanced verdict, as it enables a judge or jury to indicate that, although the prosecution has not proven its case, the complainer was not necessarily disbelieved. Will you comment on that?
That suggestion might be made by people speaking from experience, but I do not believe that a jury or a judge is sitting there judging a case as if it were “The X Factor” and saying, “I like your appearance and you come across very well, but I don’t think that you sang particularly well.” They are there not to present marks out of 10 but to test the evidence that is brought forward. Although I understand that there may be nuances in how strongly or convincingly a trial lawyer presents their case, we have to look at whether the evidence takes people towards a conclusion beyond a reasonable doubt. I do not think that we need nuance.
The argument around the not proven verdict is that we do not actually know in certain cases that someone is guilty—people who have been found guilty have subsequently been proven not to have been guilty; the issue is whether the evidence suggests beyond a reasonable doubt that the person could be convicted on that evidence. There are a whole range of nuances within that, so nuance matters, but I do not believe that it should supersede clarity.
The clarity that we want is clarity about the outcome. If a sheriff or a justice of the peace decides that the likelihood is that the person is guilty but that the evidence that was presented was not particularly strong, which has led them to reach a not proven verdict, that does not give clarity; it suggests that there is an openness about the verdict that allows people to believe that the person who was acquitted could actually have been guilty. I do not believe that that is the kind of nuance that we want to see; we want there to be clarity.
Is it possible that some people want a stigma to be associated with one of the verdicts of acquittal?
That is possible, but I do not think that it is right that that should be the case. If someone walks out of a court having been acquitted, they should have the right to say that they have been tried and acquitted and that they are not guilty of the crime.
Some people who corresponded with me said that they had been acquitted on a not proven verdict and had to move because they believed that the local community thought that they were guilty and had got off with it.
People may still believe that in a two-verdict system, but a not proven verdict suggests that there may have been some evidence that the person had done it—just not enough to convict them. That is not what a trial is there to achieve; it is there to look at the evidence and arrive at a conclusion as to guilt.
I asked the cabinet secretary about the issue of stigma, and you also referred to stigma and the confusion that people may have. How important is it that the public understands the disposal of any criminal case?
It is vital. It concerns me that, even recently, we have seen trial judges being reprimanded for having tried to suggest to a jury what a not proven verdict might mean in that particular case. If a judge cannot articulate to a jury what a not proven verdict might mean in any given case, how can we rely on it as a verdict? There is no place for that type of confusion in the system.
I am not arguing that we should try to either increase or reduce the number of convictions. The public want to know beyond reasonable doubt that the verdict was arrived at on the strength of the evidence that was brought forward and that there was no grey area left.
I have heard it said in the past that you cannot be a little bit pregnant. You cannot be a little bit guilty either.
I am glad that you cannot be a little bit pregnant. That is breaking news for me.
If there were no not proven verdict, would there be an impact on the way that the Crown and the procurator fiscal brought cases to court?
I have heard that suggested. I hope that a prosecution or defence lawyer would do their utmost on behalf of either the Crown or their client in all circumstances. One would expect the professionalism of lawyers to drive them towards that.
When I first consulted on the bill, an academic said that he believed that, in some cases, the jury was making a judgement on the prosecution or defence lawyer, rather than the evidence—
I meant to ask whether there would be an impact in relation to considerations of sufficiency of evidence, rather than whether there would be an impact on lawyers’ performance in court. At the moment, the Crown might take the view that, although it is not sure whether it will achieve a conviction, it should still run a case in court, and it might end up with a not proven verdict. If we take away the not proven option, the Crown might apply more rigorous criteria and take less of a chance in bringing cases, some of which might have been successful if they had been brought.
There is an argument for that, but I would not want to spend a lot of time trying to suggest that, in our trial system, either the prosecution or the defence were not doing their utmost to present the case. If that were so, it would raise substantial questions about whether we thought that the performance of our courts was at the level that it should be at. I do not want to make that suggestion.
I was really referring to cases in which the evidence was on the cusp, as it were. The Crown might want to be more secure in bringing a case, because it would not want to get a not guilty verdict. It might currently think that certain cases are worth running. I just leave that thought with you—I wondered whether it had been raised with you.
It has come up. There has been some written evidence to suggest that that might well happen, but it is not the strongest argument against the provisions.
Thank you very much, and congratulations. You did very well—10 out of 10. I know that this is not the “The X Factor”.
10:44 Meeting suspended.