Chamber and committees

Yes, because this is about balance. I understand the appropriateness of scrutiny, and I am utterly sympathetic to the voices of those who represent, advocate for and support victims of sexual violence and who have concerns about how the system protects those victims and complainers. However, at the end of the day, my concern is that, if we maintain a simple majority in the context of two verdicts, as articulated by the senators and others, we will see an increase in miscarriages of justice. That is an issue not just for the accused across all alleged crimes but for victims.

That is my view, Ms Clark.

That is the nub of the issue. Mr Kerr is right to point out that there is no other similar jurisdiction with a two-verdict system that convicts on a simple majority. That should give us pause for careful reflection as we proceed with the bill.

The research that I mentioned—not only the Scottish research but the meta-analysis—was important. The Scottish research tells us that, if we move from our current unique Scottish system—it is unique in all its aspects: the size of the jury, having three verdicts and using a simple majority—to two verdicts, that will increase convictions, particularly in finely balanced cases. The broad meta-analysis shows that convictions in the Scottish three-verdict system are lower than in what is described as the Anglo-Saxon two-verdict system.

Where I have landed on the matter is the view to which the senators of the College of Justice have also come. The committee will remember the evidence from Lord Matthews that the not proven verdict has

“been seen as the counterbalance to the simple majority.”—[Official Report, Criminal Justice Committee, 31 January 2024; c 36.]

He also said that the simple majority would

“possibly be conducive to miscarriages of justice in”—[Official Report, Criminal Justice Committee, 31 January 2024; c 38.]

the reformed system that we propose.

In essence, the simple majority is too low and the other alternative of near unanimity is too high for fairness, because we still have the safeguard of corroboration in our system, although it has been refined and updated and has evolved in terms of the successful references that the Lord Advocate recently made. I think that we have landed in the right place. The Government’s position, like that of the senators, is that, in a reformed system, it should be a two-thirds majority.

That is a good point. I am not remotely interested in slogans and I think that we all want to see a difference in people’s day-to-day experience of the justice system on the ground.

In this instance, legislation has an important role to play in changing culture and practice, although it is not the only solution that we should bring to bear. We are working on a planned amendment that would extend the definition of trauma-informed practice. I am sure that members are alive to the debate that we had in committee. We brought forward a definition that was designed to fit into legislation, because legislation is about defining duties, responsibilities and legal obligations. However, there was a far broader definition in the trauma-informed justice skills framework, which is about how we train and support staff in the justice system to embed trauma-informed approaches in their day-to-day work.

I am pleased to say that we are progressing well with drafting that planned amendment. Our proposition to the Parliament will be to add two further aims, taken from that knowledge and skills framework. One is about enabling people to participate effectively and the other is to avoid interfering with a person’s individual recovery. That work is still under development. We are engaging with justice agencies because legislation must be able to work in practice, at operational level. We are getting enthusiastic support from Dr Caroline Bruce of NHS Education Scotland, whose work on the justice and skills framework has been pivotal.

I will try to focus on amendments. Part 5 specifically relates to the sexual offences court. All the participants and parties in that court have to be trained to be trauma informed. In relation to amending the bill, I have to bear in mind that the training of the judiciary is a matter for the Lord President. However, I assure Ms Dowey that I know from my engagement with the Judicial Institute for Scotland and with victims, who have also engaged with the Judicial Institute on training, that there has been a wealth of work and input on training, including on refresher training and expanding the training input for induction courses for the judiciary. That obviously includes sheriffs.

It is still at the preparatory stages. Heather Reece Wells has been closely involved in that work with stakeholders.

You are arguing for equality of arms.

My approach starts from the position that, although there is not unanimity, there are still people opposed to the abolition of the not proven verdict. However, even among those who oppose the abolition of the not proven verdict, there is acceptance that it is likely to happen if the Parliament approves the bill.

My reasons for amending the bill are partly to reflect the Government’s position in response to the committee’s stage 1 report. In particular, I will amend the bill to retain a jury size of 15. Although there was an argument to reduce the size of juries, I do not want to lose focus on where the debate now is and where it should be.

The debate now needs to focus on what the jury majority—that is, the threshold for conviction—should be. I recognise that there are different views on that, although, based on the amendments and a range of discussions with stakeholders, it appears that most people would have concerns about the threshold being a simple majority. There are strong, respected voices in favour of the simple majority. However, we need to make a careful judgment, based on the research—from Scotland and elsewhere—and meta-analysis, which tell us that moving from three possible verdicts to two has an impact on other parts of our verdict and jury system.

Going forward, we need to have absolute confidence that verdicts are returned on a sound, rational basis that ensures balance and fairness to all parties. Part 4 of the bill, on criminal juries and verdicts, is the cornerstone of the bill and a fundamental part of our system. It is also a stand-alone reform.

I know, and I was giving my position for clarity. I meant no disrespect, convener, to you or to Mr Macpherson.

For clarity, we have not changed our position on the not proven verdict, and we have not changed our position on a two-thirds majority either. We have changed our position on the size of the jury.