Chamber and committees

I recognise that there is not enough support for the pilot of single-judge rape trials to progress at this time. In the interests of building as much consensus as possible, I will support amendments to remove the pilot from the bill, which we will come to in a later group. However, I remain deeply concerned by the substantial evidence that the current approach to decision making in rape trials is denying women justice.

A wealth of studies has demonstrated that jurors, just like the wider public, hold false and prejudicial beliefs—often known as rape myths—about how rape victims should behave, both before and during an attack, and later to the police and in court. Research with mock juries has found evidence of jurors relying on or referencing rape myths during deliberations. The evidence that we already have should give us real concern that verdicts in such cases are being influenced by jurors’ misconceptions about rape, rather than being based solely on the facts and the law.

Current legislation, specifically section 8 of the Contempt of Court Act 1981, limits the research that we can carry out into jury deliberations. Such research could help us to better understand whether and how rape myths affect verdicts, and what measures could effectively address them.

Amendment 152, in my name, would modify section 8 to allow for research to be carried out into jury deliberations in criminal proceedings. It would no longer be contempt of court for a juror to disclose, or for a researcher to obtain or publish, details of what had been said during deliberations or details of how jurors had voted, as long as the disclosure or publication was for research purposes and permission had been granted by the Lord Justice General.

Those are important safeguards to limit the circumstances in which the content of jury deliberations can be disclosed and to ensure that there is judicial oversight. Ms Clark’s amendments 62 and 63 do not include such safeguards. Amendment 62 would disapply section 8 of the 1981 act in Scotland entirely. That would go far beyond enabling research—it would decriminalise the disclosure of jury deliberations much more widely.

Although amendment 63 limits the disapplication of section 8 to research purposes, and Ms Dowey’s amendment 63A limits it further, they do not require any kind of advance authorisation, therefore anyone could simply claim that they were gathering the details of jury deliberations for research purposes and those details could be published. Amendments 62, 63 and 63A could create risks for the administration of justice, so I do not support them.

Amendment 153, in my name, provides that if Scottish ministers conduct or commission research with juries that has been approved by the Lord Justice General, then ministers must publish a report on the research and lay a copy of it in the Scottish Parliament. They must also publish and lay their response to the research, including any recommendations. That will ensure that the Parliament can consider the research findings and the Government’s response to it and that we can continue the important debate on the effectiveness of our criminal justice system. It is important to note that my amendments would not limit research to sexual offence cases. In principle, research could be conducted into any kind of case, if that was approved by the Lord Justice General.

Pauline McNeill’s amendments 75 and 151 would require ministers to conduct research on criminal juries, including different jury sizes, majority thresholds, and

“the impact of abolishing the not proven verdict ”,

and to make recommendations on whether changes should be made to jury size and majority. There is no way to test the impact of varying jury size, majority and number of verdicts with real juries—that can be done only with mock juries. In order to identify the impact of altering one part of the process, all other aspects must be kept constant, so to assess the impact of varying the number of verdicts on trial outcomes, other variables in a trial must be kept constant. That means that the evidence, the presentation of witnesses, the prosecution and defence advocacy, judicial directions and so on must all be the same, which is only possible to do with mock juries. We have already carried out the largest and most realistic mock jury study that has ever been conducted in the UK to look at exactly those questions, and the jury reforms that are proposed in part 4 of the bill are informed by the study’s findings.

Ms McNeill’s new amendment 269 would require ministers to make use of my amendments to seek the Lord Justice General’s permission to conduct research on the use of the not proven verdict, juries’ reasons for using that verdict, jury splits and their views on pre-recorded evidence. We are already exploring our own research project on the impact of pre-recorded evidence on conviction rates. We are prioritising that important piece of work, but I am happy that we consider whether further research opportunities would be opened up following my proposed amendments to the Contempt of Court Act 1981.

I will speak to the other areas that are included in amendment 269. As debated in an earlier group, campaigners have been calling for the abolition of the not proven verdict for far longer than any of us have been in the Parliament. The committee has heard compelling evidence about the devastating impact that a not proven verdict can have on victims, and that it can leave a lingering stigma for the accused. I agree with the concerns that the committee expressed in its stage 1 report that a verdict that cannot be defined risks undermining public confidence, and I agree with its conclusion that the verdict

“has had its day and should be abolished.”

We cannot delay that reform any further.

The evidence that we already have tells us that removing one verdict of acquittal will alter the balance of our system. That means that we need to introduce reforms to jury majority at the same time as abolishing the not proven verdict. Commissioning more research to look at the same question does not relieve the Parliament of its responsibility to make those important decisions now. Therefore, I urge the committee to support my amendments and oppose the others in the group.

I move amendment 152.

Good morning. I acknowledge that members have taken significant time and great care to scrutinise the evidence and consider their positions on part 4 of the bill, and I will take some time to set out my position on the amendments in the group.

We all want to ensure that, in embarking on reform to abolish the not proven verdict, we do so in a way that protects the integrity of our criminal justice system and its effectiveness in delivering justice. I am well aware that, when reforming fundamental aspects of our system, we want to do so in a way that is considered and with as much consensus as possible. It is our role, as parliamentarians, to face the challenges in ensuring that our justice system is fair and can command confidence. We must diligently and carefully consider the evidence, the complexities and the interests involved. That is how we have all approached the matter to date, and I am sure that we will continue in that vein this morning.

I turn to amendments 146 to 150, in my name. Independent research suggests that reducing the jury size from 15 to 12 would improve the process of jury deliberations, so the bill sought to introduce that change. However, the committee’s stage 1 report expressed reservations about such a change, and I note that Ms McNeill lodged an amendment some time ago that would keep the jury size as it is. I am satisfied that the abolition of the not proven verdict does not require an associated change to jury size. Therefore, I confirmed in my letter to the committee in October that, to build consensus on the issue, I would lodge an amendment to retain a jury size of 15. Amendment 146 does that.

I will pick up the point about research. There is always an argument for more research, and I am very open to that. However, without delving too deeply into a future group of amendments that we will, I hope, debate this morning, I point out that using mock juries is the only way in which to see the impact of varying jury size, jury majorities and the number of verdicts. That cannot be done with real juries. A real trial cannot be run 64 times with different jury sizes and different decision-making rules. There are advantages to using mock juries. For example, the jury’s deliberations can be recorded and analysed in a way that would not otherwise be possible just now.

I accept that different research gives us different dimensions and perspectives. I was struck by the comments from Professor Chalmers last year, when he said, rightly, that there is

“a danger in making changes without adequate research, but there is also a danger in believing that an ideal, perfect body of knowledge can be attained. There will always be a limit to what realistically can be known.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 25-26.]

At the end of the day, research does not make decisions for us, although it informs our decisions. Ultimately, therefore, we are all wrestling—as Ben Macpherson eloquently described it—with the weight of responsibility in and around making this decision.

I will reply briefly to Sharon Dowey’s points. She makes a radical proposition, and Mr Kerr was valiant in his defence of that course of action but, for me, after much consideration, the bottom line is that the threshold would be simply too high for fairness, in the context that we still have corroboration.

The requirement for corroboration, although the courts will refine it, is still with us. That refinement does not necessarily mean that we will see more convictions returned in such cases—I am thinking about the Lord Advocate’s successful references that colleagues have mentioned—as the jury still requires to be satisfied beyond reasonable doubt. The balance of proof is the same; that is an important point. However, it means that more cases are capable of being prosecuted and that the jury can rely on a greater range of evidence. Of course, the courts will continue to refine the application of those judgments; we will probably discuss that more in a wee while.

I come to my final point. I know that we are all guilty of quoting one voice when, at the end of the day, we are trying to come to a rounded and balanced view, but once again I quote Lord Matthews. He said:

“We thought that 10 out of 15 would be an appropriate majority for a verdict ... England, for example, requires unanimity at first, and then the judge can tell the jury that they will take a majority of 10 to two or whatever. We do not want to go down the route of having to explain to the jury, ‘You’ve got so long, and then I’ll tell you that you don’t need to be unanimous’.”

We do not have a history in Scotland of instructing juries to strive for unanimity. Finally, Lord Matthews said:

“we thought that a qualified majority is possibly the safest and best approach.”—[Official Report, Criminal Justice Committee, 31 January 2024; c 35-36, 38.]

I will leave my remarks there, convener

It has been evident in today’s discussion and debate that each and every one of us has been engaging and wrestling with the issue on an intellectual and emotional basis. At the end of the day, we will all have to come to conclusions based on our individual positions and perspectives and come to a collective voice that is informed by all voices.

I remind the committee that part 4 is one of the cornerstones of the bill and that it will make changes that apply to all cases in all courts. It is important to remember that.

I will say a few brief words about research without speaking at length. Overall, we have had the Scottish jury research and our own consultation. There has been substantial engagement with all those with an interest in the bill. I assure Liam Kerr that my officials have met the Law Society of Scotland regularly on the bill. I do my best to meet the many stakeholders in the world of justice, but there is always a limit to that, I am afraid.

International comparisons are also important, whether they are comparisons with our nearest friends and neighbours south of the border, with our European colleagues or with Australia, New Zealand or North America. We cannot cut and paste anybody else’s solutions. We need to look at the experience at home and elsewhere and apply what we learn to a Scottish context.

On the quantum of research, I know that we have spent a lot of time focusing on the Scottish jury research, but it is worth bearing in mind that the meta-analysis that was published last year considered studies involving almost 1,800 jurors and found statistically significant divergence in the verdicts that jurors delivered in a three-verdict system versus a two-verdict system. The odds of a jury convicting were 40 per cent lower in a three-verdict system. That points to the fact that, if we embark on the historic reform of removing the not proven verdict—I believe that the majority of us want to do that—we have to make decisions.

In the same way that the High Court sits the length and breadth of Scotland, the sexual offences court should sit the length and breadth of Scotland. I know that some people—certainly, some members—thought that the sexual offences court involved the construction of a stand-alone building in one city in Scotland. I contend that that would not be in the interests of complainers, bearing in mind that we want to see the administration of justice happen as locally as possible.

Although it is fair to narrate the importance of the investment that we have made, and continue to make, in court recovery, it is also fair—I will come on to this—to speak about using existing resources, whether those are financial, personnel or buildings, more efficiently. However, there is also the very legitimate question of how we support this financially, bearing in mind that, in the here and now, we are talking about the more effective and humane distribution of current business, notwithstanding that there is a projected increase in sexual offences cases—in fact, we have been dealing with an increase over the past decade or so—which necessitates different ways of working.

We all agree that reforms to the management of sexual offences cases are needed. Now is the time for us to make them. A stand-alone court is necessary to deliver improvements to the experience of complainers, and the specialist court is vital to enabling trials to be conducted in a manner that recognises the impact of trauma on complainers.

Specialism has shown itself to be an effective way of improving the management of sexual offences cases internationally. It is at the heart of sexual offence courts established in both New Zealand and South Africa, which have been credited with achieving significant improvements to the experience of complainers. We have specialism in other parts of the justice system—specialist police and specialist prosecutors—and a specialist court is a logical next step.

The effect of specialism manifests in two ways. First, it places cases in the hands of specially trained judges, whose effectiveness in presiding over such cases improves over time as they build their experience and develop better judicial case management. That delivers a number of benefits, including the swifter resolution of cases, as well as increased awareness of the needs of complainers and where intervention might be required to support them to give their best evidence.

Secondly, specialism also offers the opportunity to develop and implement bespoke processes and procedures at a national level that are specific to the management of sexual offences cases and that are purposely designed to improve the experience of complainers. I acknowledge that we have existing specialist courts for domestic abuse and drugs—problem-solving courts—but they are not universally used and there are many examples of inconsistent practice.

Thank you, convener. Widening the pool of people who are available for jury service will better represent society and recognise the contribution that those with sensory impairments have to make in all areas of public life, so I am pleased to support amendment 233.

As Ms Adams touched on, it takes forward recommendations made by a judge-led group in 2018. The Scottish Courts and Tribunals Service convened a working group in 2023 to consider some of those recommendations further, and it recommended that legislation should ensure that different forms of support could be rolled out to jurors in future.

Amendment 233 is consistent with that, allowing the court to decide what kind of communication supporter to appoint, depending on jurors’ needs and on what is operationally feasible. The flexibility also helps to ensure that the provisions are future proofed.

Scottish Government officials have engaged on the issue with stakeholders, including the British Deaf Association, Just Sign, freelance BSL interpreters and Deafblind Scotland, and they are all very supportive. The measure was introduced in England and Wales in 2022, since when 70 jurors in England and Wales have required to use BSL interpreters.

It is in all our interests to pave the way for as many people as possible to serve on juries. I therefore urge the committee to support amendment 233.

Before a trial begins, jurors have the option of either taking an oath, which is religious, or making an affirmation, which is non-religious, to try the accused and give a verdict according to the evidence.

At present, the wording prescribed in existing legislation means that jurors who choose to take the oath may do so collectively and without having to state their names, and jurors who choose to affirm must do so individually and name themselves in court. Amendment 154 will enable jurors who affirm to do so collectively and without having to declare their names in court. That would make the process for jurors making the affirmation consistent with the process for jurors taking the oath. The amendment would apply to all criminal juries.

The Criminal Courts Rules Council highlighted that inconsistency to us. The current wording means that affirmations are procedurally inefficient, and the Humanist Society Scotland has raised concerns that the differences in wording mean that jurors who choose to affirm are treated differently from those who take the oath.

Jurors should be able to expect to be treated with consistency and parity in front of the court, regardless of their religious or non-religious beliefs. The amendment will create that consistency for all jurors.

I move amendment 154, and urge the committee to support it.

Amendment 154 agreed to.

I will not repeat what I said at length earlier. In short, I remain of the view that the right thing to do is to abolish the not proven verdict and to implement the associated reforms. The amendments in my name are enabling. They seek to remove the legislative barrier to research, rather than specifically providing for the Scottish ministers to undertake research.

That said, we are committed to undertaking research. I have outlined our intentions in that regard in relation to pre-recorded evidence. We will certainly carefully consider commissioning further research, but I hope that the academic community will have considerable interest in carrying out research in the area, to which it would bring diverse perspectives and approaches.

Amendment 152 agreed to.

Amendment 153 moved—[Angela Constance]—and agreed to.

Amendments 62, 63, 75, 151 and 269 not moved.

Forgive me for intervening, but I should say, for clarity, that, although we have changed our position on the size of the jury, we have not at any point changed our position on the qualified majority that would be required. Our position has always been that there should be a two-thirds majority for a conviction.

This part of the bill would require a commencement order. I will correct the record if I get my dates wrong, but I am confident that, during stage 1, I provided the committee, either verbally or in writing, with indicative sequencing for the different parts of the bill coming into force. That was on the back of a debate about the pilot; it was in that context that I gave an indicative timetable.

The reforms to verdicts and jury majorities in part 4 are, in essence, stand-alone ones, and our thinking is that they could be made earlier in the overall implementation of the bill. I am not making any rash commitments to do a carte blanche U-turn on that sequencing, but we will reflect further on the matter, although I would be concerned about kicking decisions down the road.