Chamber and committees

Thank you, convener, for giving me the opportunity to contribute to the debate. I agree with the cabinet secretary that, when we make changes of this nature, it is important that we get as much consensus as possible, not just in the committee but in the Parliament and across society.

We must strive to ensure that changes are evidence based. At the moment, as has been said, we have no information about how juries vote in Scotland, so we are working with a very limited evidence base. We do not know whether most juries provide a unanimous verdict, as Sharon Dowey’s amendment 92 would require, or whether most juries are split eight to seven, nine to six or, indeed, 10 to five, which is the majority that the cabinet secretary has proposed. We also do not know whether jury splits are very different in different kinds of cases. For example, in assault cases, there might tend to be unanimous verdicts whereas, in rape cases, there might often be very small majorities. We can speculate, but we simply do not know.

It would be very unsafe to make substantial changes to our system without that evidence, given that it would be possible to get it. That is relevant to today’s discussion, because the committee has been looking at the issue for well over a year. We have considered in as much detail as possible all the evidence that the Scottish Government has provided and any other evidence that we have been able to find. We looked at the detail of the mock jury research. I am not criticising the academics who were involved in that work, or the work itself, but it is simply an underwhelming basis on which to make substantial changes to the system. It would simply be unsafe to proceed on the basis of evidence from four cases that were heard by juries, with two of the scenarios being truncated versions that were watched on a television screen.

I know that we will continue the discussion in a debate on a later group of amendments about how research can be conducted. However, on the basis of what we have seen so far, I simply will not be able to support any of the changes to jury majority that are being proposed today. I will, of course, continue to listen to what is said as the bill progresses, but I would argue that, until we have better research and information about what juries do now, it would be unwise for the Parliament to decide changes of this nature.

My amendments 62 and 63 relate to the Contempt of Court Act 1981 and seek to remove provisions that currently prevent jury research in Scotland. My amendments were lodged last summer after stage 1 and prior to the cabinet secretary lodging her amendments 152 and 153. I welcome the fact that the cabinet secretary has lodged those Scottish Government amendments and that the committee is considering them today.

I welcome the cabinet secretary’s indication that the Scottish Government intends to undertake further research, particularly on jury splits, which have been a live concern and consideration today. I appreciate that there are those who believe that research of that nature is already possible within the current legal framework. However, the Scottish Government’s view is that it is not possible, and the relevant provisions for England have already been repealed from the Contempt of Court Act 1981 to enable research to take place there. I welcome the fact that there will be legal certainty that, in certain circumstances, it will be possible to undertake research.

The cabinet secretary spoke about some of the mock jury research that has been carried out, and I agree with the important point that she made that certain factors can be researched only with mock jury research. However, the committee has looked at the mock jury research and the meta-analysis that has been provided to us and, as I said earlier, I am concerned that the evidence is not substantial enough to give us an understanding of what might happen to conviction rates or to the proportion of guilty and not guilty verdicts if we proceeded with the proposed legislation that is before us.

I have already referred to the concerns that were raised by the Lord Advocate and many others. We know that the conviction rate for rape and attempted rape remains the lowest of any type of crime in Scotland. As the cabinet secretary said, that is no doubt due to preconceived biases and myths that surround victims and survivors. I hope that we would all agree that we need far greater insight into the breakdown of jury outcomes and the jury split, and an understanding of jury majorities in real-world situations. The committee has already heard how research can be a vital tool in building up a sophisticated evidence base on the factors that might inform how juries reach verdicts. We all accept that the existence of the Contempt of Court Act 1981 has heavily restricted the research that can be, or is being, carried out.

I hope that the cabinet secretary will take part in the discussion on how we take forward the research. We need to look at all categories of cases, but there are specific concerns about particular types of cases. I hope that any research and work that is carried out will focus on that, so that we have a better understanding. I also hope that the cabinet secretary will be willing to engage on some of the issues in the lead-up to stage 3 to ensure that we can build up data and information to allow us to make informed decisions that deliver the Scottish Government’s policy intent, which I believe all members of the committee share.

At the appropriate stage, I will not move my amendments 62 and 63, because the Scottish Government has lodged other amendments on the issue.

I agree with Sharon Dowey that the Scottish Government is coming forward with proposals without what she calls “concrete evidence”—I would call it a lack of evidence—but does she not accept that her proposal to require a unanimous verdict is not evidence based either?

Pauline McNeill spoke earlier about some of the work that could be done over the next few years if some of the amendments that we will consider later today are passed. The Parliament needs to have proper information about what juries are doing. We might be unable to get it retrospectively—I presume that we are unable to get it, although I might be wrong—but we need proper information as to what juries are doing before we make changes of this nature.

We know that there is already a great deal of concern about low conviction rates in certain types of cases, in particular rape, attempted rape and serious sexual assault cases. We need to understand more about what juries do in those types of cases, because there would be a concern that jury majorities might be narrower in those types of cases in particular. Therefore, some of the proposals today could make a real difference on conviction rates.

Given what the Lord Advocate has said to us and the amount of time that the committee has already spent looking at and being concerned about low conviction rates in rape cases—which I know is a great concern of the Scottish Government—we should be particularly alert to the issue.

You might well be coming on to the point that I will put to you, which is the evidence that the Lord Advocate gave to the committee.

The Lord Advocate wrote to us on 18 March and said:

“In relation to the provision to alter the jury majority required for a guilty verdict I would draw the committee’s attention to the submissions made by the Crown at Stage 1 and my observation during my evidence session that ‘…if we are going to increase the percentage of individuals that we require to vote for a guilty verdict, we will make it far more challenging to secure a guilty verdict in a system that requires corroboration.’”

What is your response to that?

It has been mentioned that Lady Dorrian said that the model that the Scottish Government is proceeding with is not the model that she proposed. Will you respond to that and outline any differences, as you see them, between the Government’s model and the model that was proposed by Lady Dorrian?

Can we have an indication from the cabinet secretary of her thinking with regard to the timescales for any proposals being brought forward by the Scottish Government? Is that likely to happen before the 2026 elections?

One of the considerations is the view of the Parole Board of Scotland, as it will have a great deal of knowledge of the operational aspects of the amendments. Have you been able to ascertain views beyond those of the organisations and individuals that you mentioned?

I, too, am sympathetic to Jamie Greene’s amendments and what he has been trying to do. I appreciate that he has already put a huge amount of work into these matters in his member’s bill, whereas the committee has had no opportunity whatever to scrutinise them in any detail. As Pauline McNeill said, these matters were not in the bill as it was introduced by the Government; therefore, they were not considered by the committee as part of our stage 1 proceedings.

Campaigners are doing a huge amount of work and have met the cabinet secretary and the First Minister, and it may be some time before we have another opportunity to consider these matters. It is unlikely that there will be another bill in this session of Parliament that could take these issues forward; therefore, I urge the cabinet secretary to engage constructively with the issue to see whether it is possible to lodge amendments to this bill.

We need to have appropriate scrutiny mechanisms—that is something that the committee must consider. I want to ensure that the committee has the full opportunity to properly scrutinise any amendments that are lodged, whether they are from Jamie Greene or from the Scottish Government, because these are important matters that we need to get right. Many other countries give victims rights of this nature. However, we have a specific legal system in Scotland and we need to ensure that the bill works, which is difficult to do without the information that has been highlighted this morning.

I appreciate the work that Jamie Greene is doing, and I hope that it is possible, at the end of the day, for us to come up with amendments that can be supported by the Parliament.

I have listened carefully to what Jamie Greene said, but I think that we would want to know the position of the Parole Board and the Risk Management Authority, and get a lot more information before we enacted any of his amendments.

On Sharon Dowey’s amendments, it would be interesting to hear what she thinks the status would be of the summary of reasons that she is proposing. For example, could it be challenged? It would also bring another document and another set of reasons into the process. It would be useful to get more information on how that would be treated and its status, given the complex nature of the decisions made by the Risk Management Authority on risk. I do not know whether that is something that Sharon Dowey could come back on now or whether she could do so before stage 3.