Chamber and committees

The point that I was making was that it was still mock jury research, so, regardless of how much work was done, it was not a real-life situation; it was still a mock jury trial. If we are going to make radical changes to the Scottish legal system, we need to have live jury or real jury research. That would put us in a much better position to make an informed decision, which is important, because we are making big changes that could have an impact in somebody losing their freedom.

My fear is that we are trying to put something into legislation that sounds good but that will not do any good for the victims. Many small changes could be made that would have a huge impact on victims, but we are trying to make a huge change that, if not implemented properly, could end up having a detrimental impact on victims and make the court system worse rather than improve it, which is obviously what we intend to do.

Thank you for that clarification. It still does not fill me with confidence that the Scottish Government has a clear vision, supported by concrete evidence, that would justify radical changes to the justice system of the kind that it is now proposing at stage 2. Indeed, the cabinet secretary told the committee on 26 February that

“the research ... led us to support a jury size of 12 in the first place.”—[Official Report, Criminal Justice Committee, 26 February 2025; c 13.]

We do not even have the costs or a correct financial memorandum. The initial cost for the set-up of the court was £1.4 million, and there are recurring costs. We have already agreed to the victims commissioner, but it was going to cost £640,000 to implement that and the recurring costs would be around £615,000. For the court, there is a one-off cost of £2 million and recurring costs of around £1 million. If that is, indeed, new money coming into the system rather than being taken off victims charities, which has been raised as a concern, how many bairns’ houses would we be able to buy with £2 million? The recurring costs of £1 million would keep them going. Taking that measure would make a huge difference to victims of sexual offences. Given the recent statistics on sexual offences against under-16s, that would be a better use of our money, because it would provide support and trauma-informed practice in dealing with youngsters, which would help them to provide solid evidence to get those who are guilty of those horrible crimes convicted and put in jail.

That, in my opinion, would be a better use of money, and I have real concerns about the sexual offences court. It sounds great, but how will it work in reality, and how will it be put into practice for solicitors, lawyers and everyone else who works in the system? Concerns have been raised about the practicalities of defence solicitors being available to meet the national jurisdiction of the sexual offences court. Simon Brown of the Scottish Solicitors Bar Association pointed out that fewer than 500 defence solicitors are working in Scotland and called it “a dying profession”. It seems to me highly unlikely that enabling the courts to sit at 38 locations across Scotland could be made to work in practice when defence solicitors already have demanding workloads and would face increased travel and other expenses if they were to attend the new court.

The same would apply to sheriff court staff, who would likely be transferred or redeployed to the new court. The costs associated with redeploying 25 clerks, as well as other court staff, to support the sexual offences court is estimated at £235,000, and the cost of regrading sheriff court clerks to work in High Court procedure for the new court is expected to be around £465,000. I do not believe that those costs are justifiable when it is perfectly possible to achieve the same aims by integrating trauma-informed practice in the existing court structure and creating a new division in our existing courts.

As will be discussed in more detail later, survivors of sexual crime have made it clear to the committee that they have real concerns about the perceived downgrading of rape trials if they are moved from the High Court to a new sexual offences court. Rape survivor Ellie Wilson said:

“Rape is one of the most serious crimes in Scots law; such cases are only ever heard in the High Court. That solemnity is sacred, and it is important that we maintain it.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 4.]

Rape survivor Sarah Ashby similarly told us:

“I would not like for such cases to be dismissed or for us to be made to feel that they are any less significant than they are. When you get the information through that the trial is going to the High Court, there is an element of realising how important that is.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 43.]

If that is how survivors feel, we should listen to them.

That is also the position of the Faculty of Advocates and of experienced lawyers such as Tony Lenehan KC. We have a hierarchical court system for very important reasons, and I am greatly concerned that creating a crossover between two distinct levels in that system might have unintended consequences that will cause more harm than good.

It is also unclear how the divisions between High Court and sheriff court cases will operate in the new court. The bill provides for the merging of High Court and sheriff court cases, to be heard by judges and sheriffs collectively as judges of the sexual offences court. Concern was raised by the Law Society of Scotland, which highlighted the impact that that could have on the sentencing process by potentially increasing the sentencing powers of sheriffs sitting in the new court.

My concern is that the creation of a new sexual offences court sounds good on paper but would do little in practice to address the real issues in our court system or to deliver the changes needed to help victims, particularly regarding the delivery of improved trauma-informed practice. That is despite survivors such as Anisha Yaseen telling us:

“It does not matter how much legislation you throw at this, because the issue is the culture. Nothing will change—no matter how many things you put into place—without a change in culture.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 41.]

I agree with that, which is why I do not support the creation of the new court and will move the amendments in Russell Findlay’s name.

Good morning. My amendment 92 would require a jury to deliver a unanimous guilty conviction or, where that threshold was not met, allow a supermajority of 10 out of 12 jurors. That is the approach that is taken in England and Wales, and it has been tried and tested in jurisdictions around the world. In comparison, the Scottish Government proposes that we require a two-thirds majority with a jury of 15, which would make Scotland an outlier as the only jurisdiction in the world to follow that approach.

Lord Renucci, a former vice-dean of the Faculty of Advocates and a senator of the College of Justice, said:

“If we are going to change the numbers, we should be striving for unanimity. In all jurisdictions that operate a jury system of 12, either unanimity or a majority of 10 to two is required. No system falls below 10 to two.”—[Official Report, Criminal Justice Committee, 13 December 2023; c 7-8.]

My amendment is in line with that and is modelled on the amendment on jury verdicts that the Law Society of Scotland published in December. Time and time again, the committee has heard legal professionals express support for unanimity and a 10 out of 12 supermajority verdict. That proposal has been endorsed by the Faculty of Advocates, the Law Society, the Scottish Solicitors Bar Association and the Edinburgh Bar Association. The Law Society wrote to the committee to support the amendment and reminded us that, although the Government’s proposal follows the position of the senators of the College of Justice, who have indicated support for a 15-person jury with a two-thirds majority, that was with the safeguard of a two-verdict system in which the rules on corroboration remained in place.

The Lord Advocate’s letter last week denied that this is the case, but the Law Society has said that the corroboration requirement was radically changed by the Lord Advocate’s reference decision in November. That is concerning and should lead us to question whether the Government’s proposal now comes with the safeguards that are required to meet the needs of our criminal justice system.

As we all know, there are four cornerstones of Scotland’s criminal justice system: the not proven verdict, the jury size of 15, the eight out of 15 majority and the corroboration rule. Three of those four cornerstones are impacted by the bill and the other has been significantly changed. I have deep concerns about whether those changes are based on hard evidence. We must ensure that any changes are made with the care and due diligence that we owe to everyone who is involved with and affected by the criminal justice system.

The Scottish Government has gone back and forth on its position on jury size and majority. First, it wanted a simple majority with 12 jurors. Then it changed that to a two-thirds majority with 12 jurors. It has now changed its mind again and wants a two-thirds majority with 15 jurors.

I would say that, at the moment, none of us can put forward a proposal that is completely based on concrete evidence, because of the lack of evidence that we had at committee. Pauline McNeill said as much in her contribution—we needed a lot more evidence on this. We could have done with seeing the research before we lodged our amendments, but we do not have it. I will come on to this, but I do not think that the mock juries gave us the research that we needed either.

Actually, I am going to come on to it now. I am deeply concerned that no real research is available to us on jury deliberations in Scotland. We have no idea how juries reach their decisions or what the split is between those who believe the accused is guilty or not guilty. Alisdair Macleod, from the Crown Office and Procurator Fiscal Service, made the point that

“It might well be that every jury in the land comes back with a unanimous 15 to nil verdict or a 14 to one majority verdict. There is no way of knowing how many cases are decided on an eight to seven verdict”.—[Official Report, Criminal Justice Committee, 13 December 2023; c 46.]

Moreover, Lord Renucci made the point, which I agree with, that

“we should not change our whole legal system based on research with mock juries, which, in no way, mirrored what happens in courts.”—[Official Report, Criminal Justice Committee, 13 December 2023; c 9.]

He said that the mock trial in the Scottish jury research lasted one hour, but he had never in his career experienced a rape trial that had lasted less than a day. That is not the way to build an evidence base for reform of the system.

It was still not a live setting.

My amendment 63A would have been supplementary to Katy Clark’s amendment 63, which would have allowed for research into jury deliberations. My amendment would have prevented jury deliberations from being compromised by ensuring that that research could be conducted only after the jury had delivered its verdict. However, given that, as Katy Clark said, those amendments were lodged in advance and the Government has now lodged different amendments, I will not move my amendment, either.

Amendment 26 was not agreed to. The cabinet secretary said that complainers want a better experience of the court system. I still think that small practical changes would make a huge difference. I also still have concerns about the practicalities for the legal profession of using up to 38 courts and about the costs, the implementation and whether this will make a difference. However, I will not move the other amendments.

Amendment 91 would require the Scottish Courts and Tribunals Service to prepare and publish an annual report to the Parliament on the use of floating trial diets and their impact on victims. The amendment tries to find a commonsense compromise between two arguments, balancing the traumatic experiences of victims with the unfortunate reality that our courts are overstretched and backlogged.

We have heard from victims that floating trials can add to the trauma and stress that they face. One victim of sexual crime told the committee in our informal session that

“floating trials are not very good because you are having to remember 10 or 11 dates that will always be significant to you ... Dates are massive for people suffering with post-traumatic stress disorder and complex post-traumatic stress disorder.”

Rape Crisis Scotland highlighted that floating trial diets can have an impact on the quality of evidence that victims are able to give. Chief executive Sandy Brindley said:

“People have a trial that is allocated to a certain period, and every night they are waiting on a call to tell them whether it is going to go ahead the next day. That is far from trauma-informed practice, and it is not how we get the best evidence from vulnerable witnesses.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 49-50.]

Sandy Brindley also told us that some victims end up having to rehearse their evidence every day, saying that

“they wake up and go through”

it all

“in their mind”,—[Official Report, Criminal Justice Committee, 17 January 2024; c 49.]

just in case they are called to give evidence. The traumatising effect that that could have on victims is deeply concerning.

The Lord Advocate also shared with us her experience of prosecuting sexual cases in the High Court and the trauma inflicted on victims by making them wait by the phone to find out when they will be called to give evidence. She called floating trial diets “a profound problem”, explaining that

“They are deeply upsetting for victims who are waiting for their case to be heard, and challenging for the prosecutor who is waiting for the case to come in”.—[Official Report, Criminal Justice Committee, 10 January 2024; c 30.]

However, the Scottish Courts and Tribunals Service estimated that moving entirely from floating trials to fixed trials in the High Court would add an average of at least 11 weeks of delay to each individual case and worsen the court backlog. As we know, this Government has presided over an extreme backlog in the courts, and the Courts and Tribunals Service makes the point that floating trial diets allow for better flexibility in scheduling cases and using the finite resources available to it.

In its evidence, Victim Support Scotland acknowledged that there is, unfortunately, a trade-off between certainty for victims and the impact on courts. However, when it has spoken to victims, they have said that they prefer certainty about the date of their trial, even if that means a delay.

I note that the cabinet secretary has heard both arguments and supports reducing the use of floating trial diets, because of the anxiety and uncertainty that they can cause to victims, while also recognising that the state of the court system means that abolishing them might do more harm than good. That is also the position of the committee, which has concluded that it is unfortunately not realistic to stop the use of floating trials completely at this time.

However, given the impact on victims and in the face of the testimony that we have heard, it would be wrong simply to do nothing. As a result, my amendment provides for an evidence-led approach to ensure that the proper research is conducted before we take any further action on changing the use of floating trial diets. There is no reason not to do that research. After all, if we want to reduce or phase out floating trial diets, we need to know exactly when they are used, how they are used and their impact on victims, as well as how we balance that against the impact on the courts of the practical realities of abolishing floating trial diets.

I hope that the cabinet secretary and members of the committee will support my amendment, which is a sensible compromise. It allows for an evidence-led approach to this difficult issue and would be a first step towards reducing floating trial diets and ultimately helping victims, which we all want to do.

I move amendment 91.