Chamber and committees

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.

Section 71(2) states:

“The other provisions of this Act come into force on such day as the Scottish Ministers may, by regulations, appoint”

and so on.

I have met with Lady Dorrian on a number of occasions, and she is the biggest advocate of a stand-alone sexual offences court. She certainly—as she narrated to the committee—had some different views with regard to how some of the bill’s provisions were drafted when it was introduced. The one that comes to mind was about how judges would be appointed to the sexual offences courts; we will come to that in discussing the amendments in group 24.

Principally, and crucially, the benefits of specialism can, in my view, be realised only by bringing together all cases of the same type, from both the High Court and the sheriff courts, in a single forum. That will foster the development of bespoke processes that are informed by best practice drawn from across the High Court and sheriff courts, and ensure that those processes are applied consistently to the benefit of all complainers in serious sexual offences cases across the country.

Another key reason why the court must be a distinct court with a national jurisdiction is to ensure that it has access to the combined resources of the High Court and sheriff courts. That will allow it to draw on a much wider pool of court and judicial resources and to use those flexibly in the scheduling of trials. That has the potential to reduce the length of time that it takes for cases to reach trial, which sexual offence complainers consistently tell us is one of the main challenges that they experience in their interactions with the court system.

Lady Dorrian, in evidence to the committee, stated:

“we felt quite strongly that simply creating another division of the High Court, for example, would not achieve the necessary end. What was needed was a court of full national jurisdiction”.

The ability to use the combined resources of the High Court and sheriff courts flexibly is crucial to creating a sustainable model for the management of these cases. Data from 2023-23, which is the most recent that we have available, shows that 1,966 people were proceeded against for a sexual offence in Scotland—a 29 per cent increase since 2013-14. That growth shows no sign of abating, and we must expect that the numbers of sexual offences cases that are heard in the courts will continue to rise. We must be prepared for that growth by putting in place a system that is capable of managing increased demand.

I remain committed, therefore, to establishing a sexual offences court and will continue to persuade people to back it. I have listened to members’ views on aspects of the court and lodged a number of amendments, to be discussed in later groups, to address the issues that are raised by those concerns.

I turn to the specifics of Pauline McNeill’s amendments 76, 155 and 156. The idea of establishing specialist divisions of existing courts in place of a stand-alone court was carefully considered in some detail by the Lady Dorrian review group and the specialist sexual offences courts working group, and roundly rejected by both of them. While both groups identified several reasons for rejecting the idea of specialist divisions, their concerns can be distilled down to the fact that it would represent little more than a continuation of the piecemeal change that has been characteristic of the past 40 years, and it is therefore incapable of delivering reforms that are commensurate with the scale of change that is needed in the management of sexual offences cases.

Another key challenge with Pauline McNeill’s suggested approach is that it would require the courts to establish not one division but seven separate divisions: one for the High Court and separate divisions for all six sheriffdoms. That would inevitably create a significant, yet totally unnecessary, additional layer of complexity and bureaucracy. It is also of note that the courts already have the power to establish specialist divisions should they wish to do so.

Pauline McNeill’s amendments in this group, therefore, fall well short of the scale of change that is needed to reform the management of sexual offences cases, and I urge the committee to reject them.

I urge the committee to also reject Russell Findlay’s amendments, proposed by Ms Dowey, which would remove the proposed sexual offences court from the bill.

However, I will support amendment 47 for technical reasons. That is because it provides the foundation for amendments in my name that will be debated in group 27. Those amendments seek to ensure that there is alignment in the implementation of the presumption in favour of pre-recorded evidence across the High Court and the sexual offences court. I would have lodged a similar amendment, but amendment 47 was lodged first.

The evidence that the committee heard, including from many victims of sexual offences who made passionate pleas for reform, means that no one should be supporting Mr Findlay’s amendments, which seek to make no change to the way that we manage sexual offences in our courts.

I will end by reiterating the warning that Lady Dorrian gave members of the committee at stage 1, when she said:

“if we do not seize the opportunity to create the culture change from the ground up ... there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.”—[Official Report, Criminal Justice Committee, 10 January 2024; c 4, 22-23.]

Let us end the conversation and take action.

Yes. Mr Kerr and other committee members will be aware of the substantial jury research that was undertaken in 2019. That was a significant piece of scholarship on a range of matters. As I said, that research demonstrated that reducing the jury size from 15 to 12 would improve the process of jury deliberations. That reference to “the process” related to issues such as the fact that, in a larger jury of 15, more people would dominate conversations and more people would be more passive. The evidence pointed to a reduced jury size improving the process of deliberations.

However, I have reflected very carefully on the matter, particularly in the light of the evidence that was subsequently presented to the committee. In the Government’s consultation, most people favoured the retention of a jury of 15, and then the senators of the College of Justice said in evidence to the committee that they favoured the retention of a jury of 15. Others added their voices to that, including the Faculty of Advocates and the Scottish Solicitors Bar Association.

To go back to the original evidence that I cited, the other aspect of that research is that, although it spoke about a smaller jury improving the process of deliberation, it found that there was no difference between a jury of 12 and a jury of 15 when it came to things such as the number of evidential issues that were discussed—in other words, there was no disparity in that regard between a jury of 12 and a jury of 15. There was also no variation in the extent or the accuracy of the discussion of legal issues.

That has led me to the view that the size of the jury is not as interconnected with other parts of the reform process as I previously thought. It is the case that I have changed my position on the jury size, but I think that my position aligns with the original research.

In summary—forgive me, I am just getting warmed up—the research pointed to a jury of 12 resulting in a more effective process of deliberation from the point of view of the dynamic process between people. However, with regard to the quality of discussions in and around evidential issues and the extent and accuracy of the discussion of legal issues, the research found that there was no disparity between a jury of 12 and a jury of 15.

I hope that that gives some reassurance to Mr Kerr.

My other amendments in the group arise as a consequence of the change to the bill that I seek to make with amendment 146. They maintain the current position of a minimum of 12 jurors out of 15 being required for a trial to proceed. They also set out the thresholds for conviction in juries of 15, 14, 13 or 12. Those thresholds have been set so that the requirement for a majority of at least two thirds remains constant, even if one or more jurors have to be discharged—for example, due to illness.

As a result of those amendments, a larger number of people will need to be in favour of conviction in order to find an accused person guilty—10 out of 15, rather than eight out of 12, as was initially proposed in the bill.

I turn to Pauline McNeill’s amendments 72, 73 and 74. Amendment 72 is broadly similar to my amendment 146, which will also retain a jury size of 15. However, taken together, Ms McNeill’s amendments 72, 73 and 74 would mean that the removal of the not proven verdict was a stand-alone reform.

The abolition of the not proven verdict is a historic reform; I am pleased that it has broad cross-party support and that it had the support of the committee at stage 1. However, it is important that we recognise that moving to two verdicts will change the balance of our system.

Independent research indicates that convictions are more likely in a two-verdict system. As a reminder, the independent Scottish jury research was the largest and most realistic mock jury study undertaken in the United Kingdom. It was carried out in 2018 in response to Lord Bonomy’s “Post-Corroboration Safeguards Review”, which recommended that research should be carried out to ensure that any changes to Scotland’s jury system were made on a fully informed basis.

The study involved 863 mock jurors in 64 juries, testing 16 different combinations of jury size, majority, number of verdicts and case type. It modelled the impact of changes to the jury system on jurors’ deliberations and decision making. One of its key findings was that removing the not proven verdict was likely to lead to more jurors favouring a guilty verdict. The meta-analysis that was published last year also found that

“the results are quite unambiguous: there is a statistically significant effect towards lower conviction rates under the Scottish three-verdict system than under an Anglo-American two-verdict system”.

The not proven verdict is one aspect of an interconnected system, and the evidence tells us that abolishing it is likely to have an impact on jury behaviour and case outcomes, leading to more convictions in finely balanced trials.

As parliamentarians, it is our responsibility to ensure that the reforms for which we legislate are fair, have integrity, and command confidence. I do not believe that legislating to remove the not proven verdict as a stand-alone reform that maintains the simple majority can achieve that. If Scotland becomes a two-verdict system, my assessment, which is shared by others whom the committee has heard from—including prominent legal academics, the legal profession and the judiciary—is that simple majority decision making cannot be retained. Put simply, it will risk miscarriages of justice. There are no comparable jurisdictions where people can be convicted by a simple majority of jurors.

Consultation responses showed a clear preference for increasing the majority required for conviction if Scotland moves to a two-verdict system, and most respondents—most victims, victims’ family members and jurors—supported a qualified majority of some kind.

I will after one sentence.

The qualified majority option with most support, including from the senators of the College of Justice, was one in which at least two thirds of jurors must agree to convict. That is what we are proposing, with a majority of 10 needed from a jury of 15.

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