Chamber and committees

I will start with jury size.

Scotland is an outlier in that we have a jury size of 15, while most other comparable jurisdictions have a jury of 12. The independent Scottish jury research, which was one of the largest studies of its kind, was able to look exceptionally closely at the process of deliberation and decision making, because it involved simulated trials with mock jurors. What it found with regard to jury size perhaps speaks to more commonsense arguments. The research involved some factors being held constant so that the impact of various jury sizes on decision making could be examined. In short, it found that having a jury size of 15 provided no particular advantage for the quality of deliberations but, when the group was a little bit smaller, at 12, there was increased participation and fewer people did not participate. That informed the Government’s view that, because there was more participation, there was better deliberation and there were fewer dominant voices.

I am not giving a view for ever and ever, because that would be beyond any of us at the table, but—

We will make sure that we learn all the relevant lessons from history. If the committee requires us to write to you in detail on the exchange that officials had with Ms McNeill, we will do that.

We are an outlier with not proven—

The evidence is clear that, if we go from three verdicts to two, that will increase convictions across the board in all cases. We need to ensure that we keep the balance and the integrity in our system if we are turning up the dial a little bit on the basis that there are other aspects—in particular, how the jury system is constructed—that influence outcomes, particularly in finely balanced cases, as opposed to just the facts and circumstances.

It is a balance, and I hear those voices. I think that that is the part of the bill that I have wrestled with most and it is the part that I will continue to wrestle with most, because it is about how we ensure that we minimise the risk of increasing miscarriages of justice. Members will have heard Lord Matthews talk about whether a majority of one is sufficient for decisions on innocence or guilt or beyond reasonable doubt in the most serious cases. That applies to all cases, of course. The jury reforms and the abolition of the not proven verdict would apply to all cases.

In many respects, that part of the bill is almost a stand-alone reform. It is not unrelated to the experience of victims in terms of transparency and the very strong views that victims have, particularly about the not proven verdict. I suppose that, in other parts of the bill, there is a much stronger correlation to improving that experience. The point that I am trying to make is that, wherever we land on that matter and, indeed, other matters, it is about the confidence in our system to maintain fairness to both parties, whether that is the complainer or the accused.

It has not been through the specific door of my office up to this moment in time. I hope that that is not too much information for you, Mr Findlay—

I will pass the question to Alastair Bowden in a moment, but my understanding is that the limitations in the Contempt of Court Act 1981 place constraints on live, real-life research as deliberations happen.

We might have a different understanding of what occurs or the changes that have been made south of the border, and there might be different views on what the legal barriers are to getting the breakdown that you mention. I do not know whether Alastair Bowden or Nicola Guild wants to come in on that.

I think that that is fair. It is not off the table. I want to say something positive and then say where we need to be careful. In removing the not proven verdict, where we have moved towards taking out something that is seen as a third verdict, or the compromise verdict in difficult cases, we need to keep clear positions. In our system thus far, retrials have not been a feature. Our system has rested on the finality of verdicts. In terms of transparency between me and the committee, I would want to explore further whether the Lord Advocate has outlined, or is looking for, a system of retrial, or whether it is more about adding in additional exceptions to double-jeopardy legislation. There will, of course, be discussions—that is the short answer.

I understand and entirely accept that there are unique challenges around sexual offences cases. When we look at the system overall, we see that although the not proven verdict is rarely used—it is the verdict in 1 per cent in summary cases and 5 per cent in solemn cases—it is used more frequently in sexual offences cases.

The short answer to your question, Ms Mackay, is that we will reflect on the matter accordingly. There would be particular challenges with what you suggest, but it is perhaps better for me not to give an off-the-cuff response.