Chamber and committees

That is now on my radar.

My worry about that, Mr MacGregor—and I will be direct and forthright, so forgive me—is that it sounds like a cop-out. We have substantial evidence from the meta-analysis and the Scottish research. We do not have unanimity among all the stakeholders, but in my experience, unanimity among all parliamentarians, including at this committee, is somewhat of a rarity. You can build consensus, but consensus is different from absolute unanimity across the board, and we have a great range of evidence.

I hope that I have outlined that near unanimity, in the context of our existing system and in the context of reforms, is just too high a standard. However, based on the evidence, it is also my reading of the position that the majority of stakeholders recognise that a simple majority would be too low a standard. Therefore, the Government and the senators of the College of Justice have come to a balanced and proportionate view.

I will ask Lisa McCloy to come in on that. The process has, from beginning to end, been one of deliberation. I think that there has been good visibility of the consideration that would be required to amend the jury majority if the not proven verdict were to be abolished, but there have been numerous discussions with numerous stakeholders, and those will continue.

I do not know whether Lisa can add anything further.

There is the view of the senators. We also know the views of victim support organisations such as Scottish Women’s Aid and Rape Crisis Scotland, which are advocating for a simple majority. The Law Society of Scotland and the Faculty of Advocates are advocating for a supermajority, as it has been labelled by Mr Kerr.

I would point out that stakeholders, as a whole, have to come to a careful judgment, and, at the end of the day, it will be the committee and the Parliament that will vote on this. However, it appears to me that there is more rather than less acceptance that, if we move to a two-verdict system, you need to address issues around the—[Interruption.] I am sorry—I cannot read what my official is showing me. They will have to print it.

If it would be acceptable to Ms McNeill, I could raise the issue with the Lord Advocate and the Crown and ask them to reply to the committee. I am not in any way trying to be obtuse. I am conscious that, in the context of the bill, or with any legislation, I cannot modify the Lord Advocate’s discretion, because that gets us into issues of legislative competence.

To be clear, the Parliament also agreed that it could consider existing proposals—including for the victims and witnesses commissioner and the member’s bill for another commissioner—while the review takes place. There was an acknowledgement that lead committees and the Parliament still have a role to consider the merits of, in this case, the victims and witnesses commissioner in its own right. I appreciate that the Finance and Public Administration Committee has been looking at the roles and the proliferation of commissioners over many years, as is its right. It is, of course, imperative that we scrutinise every penny and every pound.

The Government’s position is that we remain committed to the victims and witnesses commissioner. Notwithstanding the difference of views that Ms Dowey has articulated, there is a clear appetite for it among victims and victims organisations. I believe that having that independent voice and independent champion is imperative. It will fill a gap in the mechanisms for accountability, which we are seeking to strengthen. The commissioner will have a key role, crucially, in monitoring compliance with the victims code and the standards of service, including the requirements to demonstrate trauma-informed practice; I know that Ms Dowey has been a big champion of that. The commissioner’s role will be to raise awareness of the rights of victims and witnesses and also to monitor those rights and how they have been met.

I will answer Ms Mackay’s question in two parts. With regard to the Scottish Government’s planned amendments, we will lodge an amendment on the process for appointing and removing judges of the sexual offences court. The committee will be alive to the debate that was held on that. Originally, we proposed in the bill that removal, for example, would be for the Lord Justice General to do. However, after reflection on representations from stakeholders and the committee, we will instead link that process with the current process around fitness for judicial office tribunals.

Again, that was to reduce the number of issues on which there were debate and discourse, so that we could focus on the bill’s primary purpose, which is to establish a sexual offences court that will implement fundamental change to the effectiveness and efficiency of the system and the experience that people have as complainers in sexual offences cases.

I know that there has been engagement with colleagues on the issue of legal representation. We will lodge amendments on that because, as we have indicated, we want to replicate rights of audience and ensure that the accused are not disadvantaged in terms of their access to counsel.

There will also be amendments on pre-recorded evidence, which, again, will pick up on the committee’s representations. We are not moving away from the presumption in favour of pre-recorded evidence, but I note the evidence that was given on the issue of personal agency. Some complainers and victims might well not want to give pre-recorded evidence, but will want to appear in court instead. There is also an amendment that seeks to extend to the sexual offences court the existing exception to the rule that applies in the High Court.

Ms Mackay is right: I am not, at this stage, seeking to lodge an amendment to include murder in the jurisdiction of the sexual offences court. I want to be clear about that. The bill proposes that the court would be able to hear a murder case only where it appeared on the same indictment as a qualifying sexual offence. Of course, it will remain the case that the Crown will make decisions about which court a case should go to—there will be no alteration to that—but I was very mindful of the Lord Advocate’s evidence with regard to the Crown’s prosecution of cases involving serious sexual offending against multiple victims, where the accused was alleged to have killed one of them. In my mind, there is an argument that, for all those potential witnesses, there would be benefit in enabling the case to go to the sexual offences court.

We have not yet lodged an amendment on that, but we will continue to reflect on and consider matters. I know that it is a matter to which the committee has paid close attention.

You are not confusing them. It is fine.

On the issues that Ms Mackay raises in relation to part 3, as I said in my letter in October, I was planning to lodge an amendment

“to extend who is deemed vulnerable”,

which would have covered

“persons who provide evidence from a reputable source”,

such as a health practitioner or someone from a domestic abuse or sexual assault support service.

However, I am cognisant of the major concerns that Scottish Women’s Aid has raised in and around the planned amendment. We will no longer lodge that amendment, and I will continue to have discussions with Scottish Women’s Aid. In fact, I think that I will meet Dr Scott at the beginning of next month.

As our plans stand, we intend to lodge the other amendment that you mentioned, Ms Mackay, which would mean that

“persons applying for a civil protection order against domestic abuse or for damages following a sexual assault”

are deemed vulnerable.

I am conscious of the correspondence that Scottish Women’s Aid submitted to the committee and which I saw this morning at 9.30. The organisation is concerned that the amendment does not go far enough. As best as we can, we will work through concerns at stages 2 and 3.

I am always open to turning up the dial, but I recognise that, if we are getting into the area of entirely removing the court’s discretion, that is problematic. However, there is a willingness on my part always to see where we can do more.

I will make two points on that. One is that reducing the jury size from 15 to 12 was the Government’s position at the start of the bill process. That position was based on the substantial independent research on Scottish juries that had been done, which was much more about deliberation. According to that research, a jury of 12 was marginally more effective for deliberation, whereas, with 15 jurors, slightly more people overparticipated and slightly more underparticipated. These are my words, not those of the researchers, but the argument was more about group dynamics and how people in a group work together when deliberating. The view was that, on balance, a slightly smaller jury would lead to a better process of deliberation.

I met the researchers as part of my stakeholder engagement, and the committee heard evidence on the matter. As we progressed, it became apparent to me that, although all parts of the system are connected, the size of the jury is much less connected with other parts. My original position was that I very much thought of jury size, majority and verdict as the three legs of the stool, but my judgment by the end of the stage 1 process was that jury size was a much shakier leg of the stool and far less interconnected.

As I said in my opening remarks, I want to focus on the more fundamental issues that are front and centre in relation to fairness—those that are in the interests of justice—which relate to the majority in a reformed system. To be blunt, convener, it is about focusing on the bigger issues, as opposed to having arguments about less consequential ones, although Mr Kerr has clearly given serious deliberation to the size of the jury.

It was.