Chamber and committees

There are a number of layers to my concern about a supermajority. When we consulted on the bill—I appreciate that that was some time ago—there was low support for near unanimity in a reformed system. It was something like 13 per cent. It also feels disproportionate to go from a system that requires a little bit more than 50 per cent to convict to one that, in the context of a majority of 13 out of 15, would require 87 per cent.

The standard of proof is the standard of proof—there are no changes to that. It is worth bearing in mind that juries in Scotland are not told to strive for unanimity. The process is considered to involve an aggregate of individual votes as opposed to being a collective endeavour.

Another difference between Scotland and other systems with two verdicts is that Scotland does not have hung juries or retrials. Such options, should we proceed with reform to a two-verdict system, were not popular in our consultations. In short—forgive me, convener—in relation to near unanimity, there are still some differences in the Scottish system. Corroboration still exists, and there are no retrials in our system.

Good morning, and thank you, convener.

I wrote to the committee last autumn to update members on my approach to stage 2 of the bill. I remind members of the significance of the proposed legislation. You have all heard compelling evidence that the justice system does not provide a satisfactory experience for many victims and witnesses; for many, it can be actively harmful, particularly for those who have experienced sexual crimes.

Incremental changes over the years have delivered improvements, and I am grateful to all who have worked to drive such change. However, as the committee has heard from the Lord Advocate and Lady Dorrian, the former Lord Justice Clerk, the dial has not shifted enough and the scale of reform that is needed cannot be delivered through existing structures and processes.

The bill sets out a package of reforms that have the potential, if agreed to, to transform the operation of the justice system to the benefit of victims, particularly women, while protecting the rights of the accused. I am heartened that there is significant support for much of the bill. I am, of course, disappointed—although I accept—that that does not extend to the full package of measures that are included in the bill as introduced.

As I hope that my letter makes clear, I want to work across the chamber and reform by consensus. I have set out key areas in which the bill will be amended in response to the committee’s stage 1 report. The most significant of those is the pilot of single-judge rape trials, which I have confirmed that I will no longer pursue. Although that is regrettable, I have to recognise that there is insufficient cross-party support for that.

However, I do not accept that the long-standing issue of access to justice for rape victims has somehow disappeared. The low conviction rates for that type of crime are a stark symptom of a system that does not operate effectively for some of the most serious and gendered crimes. Therefore, I will lodge amendments at stage 2 to remove the barriers to conducting research on jury deliberations, to help us to better understand the impact of rape myths on decision making.

I will also lodge a significant package of amendments to address matters relating to the creation of a sexual offences court. The amendments have been developed in collaboration with justice stakeholders and include changes to address concerns about the legal representation that accused prosecuted are entitled to in court. Amendments will be lodged on appointment and removal of judges to the court and on enhancing choice for complainers in how they give their evidence. I am confident that the amendments will address concerns about the model of the court that were raised by the committee at stage 1.

The former Lord Justice Clerk, the Lord Advocate, the senators of the College of Justice and the Scottish Courts and Tribunals Service, as well as victims, have told the committee that a stand-alone court is necessary to improve the experience of sexual offence complainers. They have made it clear that tinkering around the edges will simply be insufficient. Therefore, I urge committee members to grasp the nettle and embrace wholesale reform to the management of sexual offence cases by supporting the creation of a stand-alone court.

I am pleased that there is cross-party support for the removal of the archaic not proven verdict. You have heard much evidence on the need for consequential changes to the jury system: some from people arguing that we should retain a simple majority, some from those favouring a qualified majority and some from people who would like to move to a supermajority or unanimity. The evidence that we have supports the view that moving to two verdicts could lead to an increase in convictions for all crimes. My assessment is that we cannot abolish not proven in isolation without impacting the balance of fairness in our system. Stand-alone reform would risk miscarriages of justice; equally, setting too high a threshold for conviction would mean that we fail to hold perpetrators to account. To maintain the integrity of our criminal justice system and confidence in that system, the most prudent approach is a model with two verdicts, 15 jurors and a two-thirds majority requirement for a conviction.

Thank you, convener. I look forward to working with the committee over the coming several weeks as we navigate our way through to stage 2.

Okay, so the concern is a bit broader than part 2 of the bill. I will try to trot through things fairly briefly, if I can.

Several provisions in part 1 make permanent measures that are currently temporary but which have been in practice, broadly, since 2020. The new provisions in part 1 on digital productions and the authentication of electronic copy documents will be addressed through the digital evidence sharing capability—DESC—programme, which the Government is committed to funding to the tune of £33 million.

On areas where we want to see improvements, such as the practical improvements that are required around measures such as virtual attendance or virtual custodies, I know that you will be aware of the evidence from the Scottish Courts and Tribunals Service that it has paused some work for further evaluation.

There is still work to be done on evaluation and on defining models that can be operationalised in a systems-wide sense, and there will be further work on business cases. The Scottish Courts and Tribunals Service and Police Scotland, both verbally and in writing, have indicated that it is a bit too early to say what some costs will be. In broad terms, we are not making mandatory operational requirements as such, although we should bear in mind that the bill will enable innovation and that it bolts in the gains that have been made thus far. We will need people to proceed to develop business cases, which will be brought forward in the normal course of annual budgeting.

In relation to part 2, the financial memorandum states that the costs of setting up the review oversight committee and the public appointment of the chairs and deputy chairs, including financial support for expenses related to their recruitment, would fall to the Government. There is also provision to support families with some of the costs that they bear. Therefore, costs under part 2 will be met by the Government, as detailed in the financial memorandum.

Good morning. Thank you very much for the opportunity to provide evidence on the bill. The bill has a dual purpose: part 1 relates to criminal justice modernisation and part 2 relates to domestic homicide and suicide reviews. Both parts support the Scottish Government’s ambition to deliver effective and sustainable public services. There is broad stakeholder support for the bill, and we have engaged extensively with key justice partners and third sector groups, whose views have shaped the policy positions in the bill.

Part 1 of the bill seeks to make permanent some of the temporary measures that are set out in the Coronavirus (Recovery and Reform) (Scotland) Act 2022. Those provisions have been in force for some time—they were introduced in 2020—and have become firmly embedded in Scotland’s justice system, making many justice processes more efficient and reducing costs. They deliver tremendous benefits to various users of the justice system, including victims, witnesses, the accused and partners such as the Crown Office and Procurator Fiscal Service, the courts and the police.

The bill’s intention is to enable partners to maximise their resources and deliver services in an effective, efficient and sustainable way. I have listened carefully to the evidence that has been presented over the past few weeks and acknowledge that there is some work to be done to ensure that the system benefits everyone. However, even where there are practical issues to be worked through, the legislative underpinning provided in the bill is essential to allow pilots to be tested and for a sustainable model to be explored.

Part 1 also introduces two new provisions that will support the greater use of digital technologies. The provisions on digital productions and authentication of copy documents are key to on-going work such as the summary case management pilot and the roll-out of body-worn video.

The second purpose of the bill is to create the statutory framework for Scotland’s first national multi-agency domestic homicide and suicide review model. That presents a real opportunity to realise a model that so many of our stakeholders across justice, health, local government, social work, the third sector and academia have contributed to and worked towards for a considerable period.

It is right that we recognise the work of the multi-agency domestic homicide and suicide review task force, its sub-group, the task and finish groups and all those who have responded to the consultation and targeted engagement, particularly those with lived experience of domestic abuse and those who have been bereaved by it. Collectively, that has informed the development of the model.

Although we appreciate that Scotland is the only jurisdiction in the United Kingdom not yet to have such a model, a benefit that comes from that is that we have been able to learn lessons from other jurisdictions, not only across the UK but internationally, in order to understand what works well and where the limitations are. That has also been central to the scope of the model, which I know has been subject to some debate, and I very much welcome the opportunity to talk it through.

I recognise that the deaths in the scope of the review model do not mirror the definition in the Domestic Abuse (Scotland) Act 2018. As the committee is aware, the 2018 act focuses more narrowly on relationships between partners and is about domestic abuse as an offence. However, the impact of domestic abuse reaches beyond the relationships that are set out in the 2018 act. The bill therefore focuses on that broader impact to better understand the full effect and create wider opportunities for learning in order to prevent the wide range of abusive domestic behaviour and future deaths.

The approach that we have taken to get to this point has been collaborative, open, transparent and evidence based—and that shall remain the case. I therefore see today as an opportunity to shape what is a significant and necessary piece of legislation on domestic homicide and suicide. The committee has always played an important role in shaping and improving legislation, and I look forward to hearing the committee’s views on the bill and on how we can collectively deliver a more efficient and effective justice system that works for everybody.

Good morning. Thank you very much for the opportunity to provide evidence on the bill. The bill has a dual purpose: part 1 relates to criminal justice modernisation and part 2 relates to domestic homicide and suicide reviews. Both parts support the Scottish Government’s ambition to deliver effective and sustainable public services. There is broad stakeholder support for the bill, and we have engaged extensively with key justice partners and third sector groups, whose views have shaped the policy positions in the bill.

Part 1 of the bill seeks to make permanent some of the temporary measures that are set out in the Coronavirus (Recovery and Reform) (Scotland) Act 2022. Those provisions have been in force for some time—they were introduced in 2020—and have become firmly embedded in Scotland’s justice system, making many justice processes more efficient and reducing costs. They deliver tremendous benefits to various users of the justice system, including victims, witnesses, the accused and partners such as the Crown Office and Procurator Fiscal Service, the courts and the police.

The bill’s intention is to enable partners to maximise their resources and deliver services in an effective, efficient and sustainable way. I have listened carefully to the evidence that has been presented over the past few weeks and acknowledge that there is some work to be done to ensure that the system benefits everyone. However, even where there are practical issues to be worked through, the legislative underpinning provided in the bill is essential to allow pilots to be tested and for a sustainable model to be explored.

Part 1 also introduces two new provisions that will support the greater use of digital technologies. The provisions on digital productions and authentication of copy documents are key to on-going work such as the summary case management pilot and the roll-out of body-worn video.

The second purpose of the bill is to create the statutory framework for Scotland’s first national multi-agency domestic homicide and suicide review model. That presents a real opportunity to realise a model that so many of our stakeholders across justice, health, local government, social work, the third sector and academia have contributed to and worked towards for a considerable period.

It is right that we recognise the work of the multi-agency domestic homicide and suicide review task force, its sub-group, the task and finish groups and all those who have responded to the consultation and targeted engagement, particularly those with lived experience of domestic abuse and those who have been bereaved by it. Collectively, that has informed the development of the model.

Although we appreciate that Scotland is the only jurisdiction in the United Kingdom not yet to have such a model, a benefit that comes from that is that we have been able to learn lessons from other jurisdictions, not only across the UK but internationally, in order to understand what works well and where the limitations are. That has also been central to the scope of the model, which I know has been subject to some debate, and I very much welcome the opportunity to talk it through.

I recognise that the deaths in the scope of the review model do not mirror the definition in the Domestic Abuse (Scotland) Act 2018. As the committee is aware, the 2018 act focuses more narrowly on relationships between partners and is about domestic abuse as an offence. However, the impact of domestic abuse reaches beyond the relationships that are set out in the 2018 act. The bill therefore focuses on that broader impact to better understand the full effect and create wider opportunities for learning in order to prevent the wide range of abusive domestic behaviour and future deaths.

The approach that we have taken to get to this point has been collaborative, open, transparent and evidence based—and that shall remain the case. I therefore see today as an opportunity to shape what is a significant and necessary piece of legislation on domestic homicide and suicide. The committee has always played an important role in shaping and improving legislation, and I look forward to hearing the committee’s views on the bill and on how we can collectively deliver a more efficient and effective justice system that works for everybody.

Okay, so the concern is a bit broader than part 2 of the bill. I will try to trot through things fairly briefly, if I can.

Several provisions in part 1 make permanent measures that are currently temporary but which have been in practice, broadly, since 2020. The new provisions in part 1 on digital productions and the authentication of electronic copy documents will be addressed through the digital evidence sharing capability—DESC—programme, which the Government is committed to funding to the tune of £33 million.

On areas where we want to see improvements, such as the practical improvements that are required around measures such as virtual attendance or virtual custodies, I know that you will be aware of the evidence from the Scottish Courts and Tribunals Service that it has paused some work for further evaluation.

There is still work to be done on evaluation and on defining models that can be operationalised in a systems-wide sense, and there will be further work on business cases. The Scottish Courts and Tribunals Service and Police Scotland, both verbally and in writing, have indicated that it is a bit too early to say what some costs will be. In broad terms, we are not making mandatory operational requirements as such, although we should bear in mind that the bill will enable innovation and that it bolts in the gains that have been made thus far. We will need people to proceed to develop business cases, which will be brought forward in the normal course of annual budgeting.

In relation to part 2, the financial memorandum states that the costs of setting up the review oversight committee and the public appointment of the chairs and deputy chairs, including financial support for expenses related to their recruitment, would fall to the Government. There is also provision to support families with some of the costs that they bear. Therefore, costs under part 2 will be met by the Government, as detailed in the financial memorandum.

Okay. I understand that your question has more specificity and that you are not advocating going back years. My first point is that, if the bill passes this year, it will be implemented next year, so I do not envisage a significant window, but I will look at the gap—even if it is six months or 12 months—and have a think about whether there is anything that could or should be done. I will not make a commitment either way just now, but I will go away and look at it.

Are you talking about just part 2 of the bill or about part 1 as well when you mention concerns about resources?

With regard to representatives of voluntary organisations, we should remember that individuals who have been impacted or who are deceased may well have been in receipt of services from voluntary organisations. Those will not necessarily have been domestic abuse organisations, but they could be organisations that, like families, friends and communities of interest, will be able to give voice to the suffering and experience of victims. They could be organisations that specialise in domestic abuse, but they could also be voluntary organisations that have been involved with a victim in some other capacity.

I refute the point that there is a specific discouragement of people who have been involved in victims organisations from applying for the role of chair. There is a long list of people who would not be able to apply within a year of occupying a particular role, and that includes parliamentarians. People who have been involved in victims organisations are also mentioned in that list.

It is about ensuring independence. A core part of the learning from elsewhere is that the independence of the chair is crucial. We want people to come from various relevant backgrounds, but that gap of a year is based on learning from elsewhere. It is imperative to ensure the independence of the person chairing not just the oversight committee but the individual case review panels.

I am conscious that the Crown Office and Procurator Fiscal Service provides the committee with regular updates on the use of fiscal fines. Such fines have existed for a very long time. By making it possible for cases to be resolved outwith the court, where that is proportionate and appropriate, they free up court time and enable the courts to deal with more serious offences. I do not have any evidence to suggest that fiscal fines are being used inappropriately. I note that, in its most recent update to the committee, COPFS said that higher fines—that is, those in the £300 to £500 bracket—had not been used with 16 to 18-year-olds, because of concern about younger people having less income.