Chamber and committees

The research ran various scenarios on the three components of the jury and verdict system; it ran various mock trials, keeping some of the variables while changing others; and it tested various things. As the committee has heard, the research also looked at how a reduction in jury size improved deliberations, because participation was better; indeed, some of it—dare I say it—made commonsense arguments about a slightly smaller group leading to better group decision making. However, I have also said, particularly in response to the views that were given at stage 1 and to the committee, that jury size is less interconnected with other aspects.

There are four or five potential amendments in that area. The first—and I will talk a bit more about this—is to provide for enforcement powers for the commissioner and also to extend the definition of “victim”, which, in essence, is to enable the commissioner to engage with a broader spectrum of victims and witnesses. Given the changes in the victim notification scheme, I am minded to lodge the proposed amendment on the definition of “victim” at stage 3, just to ensure that the definition for the victims and witnesses commissioner aligns with the work on the victim notification scheme. I want to do a wee bit more work on that.

There will be another amendment to ensure that the commissioner shares reports with any criminal justice agencies and organisations that are referred to in the commissioner’s recommendations, as part of the annual report.

I anticipate—members might have other views—that the most significant amendment will be that which seeks to improve the enforcement powers of the victims and witnesses commissioner. That is very much in response to some of the debate and dialogue that we had at committee. It is about strengthening powers and also having better clarity of the statutory role that the commissioner will have. We will weave into the legislation powers for the commissioner to act if someone or an agency is not complying with requests to provide information to the commissioner; we will also restate, in this legislation, relevant parts of other legislation. That is about ensuring that we have the strongest possible basis for the victims and witnesses commissioner.

It just reflects the fact that the Government is taking on board the critique that we heard at stage 1 about jury size. Our position on jury majority and a two-verdict system is the same as it was when the bill was established—we are still, in the context of a two-verdict system, in favour of a two-thirds majority to convict. The 10 out of 15 majority versus eight out of 12 aligns with our position on a two-thirds majority. It is just a change in what we are proposing with regard to jury size.

I hope that I have understood you correctly, Ms McNeill.

As I said earlier, Ms McNeill, the size of the jury is less interconnected with and less consequential to other parts of the jury system. I have shared some reflections on the research, because it led us to support a jury size of 12 in the first place. We listened to the committee and others at stage 1. I am not punting any strong line about the size of the jury being fairer or otherwise, but I do think that jury majority is fundamental to fairness.

I will not repeat in its entirety what I said to Ms Mackay earlier, but I will briefly reiterate that I am not going to pursue the amendment that I intended to lodge to extend the definition of who is deemed vulnerable, given the strong views and representations that have been made by violence against women and girls organisations. I will have further engagement with Scottish Women’s Aid and other organisations on the amendment that I still intend to lodge, which will allow persons who apply for a civil protection order against domestic abuse or for damages following a sexual assault to be deemed to be vulnerable. However, I have heard the representations that say that that does not go far enough and that it is still piecemeal. We will engage and have a further look at that.

My letter in October spoke to other amendments. I mentioned that we plan to lodge an amendment on what the courts should do when a person is deemed vulnerable. The aim would be to provide that, when a person is deemed vulnerable, special measures must be applied at the person’s option, so that there would be no discretion for the court. On reflection, I have some concerns that that might remove the ability of a judge or sheriff to take decisions based on the particular circumstances of an individual case. In addition, removing that discretion might raise concerns about the right to a fair hearing. That is a particularly complex area.

In broad terms, I very much want to turn up the dial. The whole purpose of section 3 is to recognise that people feel far less protected in civil courts than in criminal courts. However, there are some challenges in getting direct alignment, because the systems are, of course, different. As I said earlier, getting into the terrain of removing the court’s discretion in all cases can get us into difficulties, but I am willing to explore what more we can do in that area.

I am cognisant of that point, and I am pleased that the committee has championed the issue. I have met victims who have benefited greatly from having access to information that is essentially about them, their person and their being and I know how important that has been to their recovery, and to other matters such as making complaints or pursuing justice for the treatment that victims have received.

I was pleased to extend the pilot, which was done in recognition of the volume of cases. We want to be able to get through all the cases in the pilot so that it can be properly evaluated. I am not in a position to answer any questions about scope, but I am sure that all members, as is their right, will test the scope of the legislation by lodging amendments on this and, no doubt, other topics.

I, of course, support the pilot and am sympathetic to it. However, I want to check operability, so I want to liaise closely with the Scottish Courts and Tribunals Service about any potential amendment that might be lodged.

Cost is, of course, a particular issue but there is also an issue with technology. Part of the reason for extending the pilot was to see what other technology could be applied that would be more effective and efficient. I have an open mind, notwithstanding the fact that there are always things in stage 2 and stage 3 that give us the opportunity to bottom out details or be sighted on any unintended consequences.

With regard to my position, and the Government’s position, on the abolition of the not proven verdict, I am, in essence, making a case for its abolition for reasons with which we are all well acquainted. Jurors do not understand it, and it is seen as the compromise, or cop-out, verdict. It leaves a lingering stigma on the accused, and the committee will have heard a lot of evidence that victims find it traumatic. In that sense, I am actually arguing that, with the abolition of the not proven verdict and moving from three verdicts to two, Scotland would become less unique in that regard.

The reality is, however, that there are other parts of our system that remain unique. Parliament will come to a view on whether the jury size should be 15 or 12. I do not have an ideological position on that. I have stated the reasons why I have shown some flexibility in response to the committee’s stage 1 report but, ultimately, Parliament will come to a view on that.

Even if we move from three verdicts to two, there are other parts of the system that would remain particular and unique to Scotland. Corroboration is one of those—it still exists. It has been refined and, just as many aspects of the law evolve and change over time, it is evolving in the light of various judgments. Nonetheless, we need to be clear that corroboration remains with us, and it is a part of our system that is unique in comparison with others.

The other part of our system that is different is that many other two-verdict systems have unanimity or near unanimity, and some of those also have hung juries and retrials. There are still differences in our system that have to be accommodated, and that has to influence our thinking with regard to the decision that we make on the jury majority.

I remain of the view that, when we compare that with what a reformed system in Scotland would look like and look at the Scottish research and meta-analysis, we see that a two-thirds majority is the most balanced and proportionate position.

You will know that as well as I do, given that the committee has taken evidence on this.

I am more than happy to do that, and I understand and respect Ms McNeill’s position. My position remains that continuing to try to make piecemeal reforms will not be quick or fundamental enough. That is based on the experience in New Zealand, in the state of Victoria in Australia and in South Africa, from which we have learned that, if you want consistency, a national approach is required.

There are significant benefits to embedding specialism in the courts, not only in relation to having the experience that is needed to support victims and complainers to give their best evidence, but in terms of efficiency, because there is a growing demand on the High Court from rape and attempted rape cases.

I understand that argument. All that I was trying to portray is that, in the context of a sexual offences court, where, on the same indictment, there is a murder and sexual offences, there would still be the opportunity for that to go to the High Court or the sexual offences court.

Of course, the sexual offences court has unlimited sentencing power, so it can sentence people for up to life and make an order for lifelong restriction and all of that. I understand the point that is being made. What I am wrestling with is the experience of victims and complainers. Right now, we know that the system overall is not doing enough to support people to give their best evidence. I contend that that relates to issues of the fairness of justice. The whole raison d’être of the sexual offences court is to improve the efficiency of the process and procedures to deliver quicker decision making and improved judicial case management so that cases can be dealt with more quickly.

The evidence from elsewhere in the world shows that specialism assists with that. However, embedding specialism will improve the experience of everybody in the court. If we are concerned about the experience of victims and complainers in the court process, there is an issue with having a sexual offences court that has embedded specialism and then also having a cohort of victims and complainers who have to go to the High Court. I think that the issue involves quite a fine judgment, but that is why I have not brought forward an amendment at stage 2. However, I know that it is a live issue.