Chamber and committees

I did not address the question about majorities, which, to be fair, is a much more complex matter. There are black and white arguments in favour of the abolition of the not proven verdict, and there are long-standing concerns that support its abolition. However, there are very different considerations around the jury majority.

In all of this, at the forefront of our minds is how we not only improve the experience for complainers by overcoming barriers to access to justice, but protect the integrity and balance of the system and reduce any risk of miscarriages of justice. There are some fine judgments to be made on how we achieve those two things. I will explain why, on the basis of evidence, the Government proposes that we move from a simple majority to a qualified majority of two thirds and why we do not propose to move to near unanimity or unanimity, but it is a complex area.

In short, Scotland’s jury structure system is an outlier. No other system has three verdicts. No other comparable jurisdiction convicts on the basis of a simple majority and, as I intimated earlier, no other comparable system has a jury of 15.

There are three sources of evidence on this. There is the Scottish jury research; there is a recent meta-analysis; and there are other reports over the past 15 years that show that, if you move from three verdicts to two verdicts, you will increase conviction rates for all crimes. The Scottish jury research is not quite as unequivocal, but the evidence shows that moving from three verdicts to two will increase convictions across all crimes, not just sexual crimes. Therefore, we have opted to move away from a simple majority, but not to move to near unanimity, because of the other protections in the system that exist, which we may, at the convener’s discretion, get on to. I have opted for the two-thirds majority.

I will leave my remarks there, because I appreciate that there will be other questions.

But the evidence for the abolition of not proven goes way beyond that. It far exceeds the fact that we are an outlier—

That part of the bill is about neither increasing nor decreasing conviction rates.

You did not hear that from me.

We have built a bill that is based on the substantial research that exists, and I have no doubt that we will build into it that there will have to be on-going evaluation of its impact, whether that is a more collective impact or the impact of particular aspects of it.

The issues that we are wrestling with here and now have been around for at least 40 years. If we do not grasp those difficult issues, we will be kicking the can for another 10, 20, 30 or 40 years, and I am not content with that.

On secondary legislation, it is not unusual for detailed research, a proposition or something very specific to come in at a later stage through regulation. Such regulation often allows for more in-depth consultation and analysis. I have been transparent—and I might be accused later of being overly transparent—about my thinking, about the direction of travel on amendments and the pilot and how it might affect the bill.

We have overwhelming evidence that rape myths are a factor and that they influence decision making. I know that there is not unanimous agreement and I would never expect to find that among academics, just as I would never expect unanimous agreement within the legal profession or among politicians. Legislators are meant to take everything in the round. I am not going to cherry pick or play one piece of evidence off against another. Much of the evidence from the past 20 years is overwhelming that rape myths can feature in jury trials. We should not ignore that. There will be more than one solution to it, but we have a duty to explore the benefits of all the tools that are available to us.

I would love to do that.

It has been looked at, and, again, the timescales are very specific. In the current system, various processes and actions have to take place in not less than seven days or not less than 14 days. In relation to enabling—we all recognise that the complainer would need time to appoint representation and so on—some of those processes would go to not less than 21 days.

There is an overarching timeframe. Committee members such as Ms Clark will probably be more in and around the detail from a practice point of view, but some overarching processes have to happen within 28 days in the context of a trial.

It is about embedding the best of practice. Of course there always needs to be flexibility for individual circumstances, and we will take away Ms McNeill’s thoughts on the matter.

That is another area of great complexity and sensitivity. On one hand, we do not want victims to feel that they are being forced into anonymity, which goes back to the point about choice and control. On the other hand, I am also conscious that, for loved ones who are left behind, there can continue to be traumatic and on-going intrusion. It is therefore a complex and difficult issue.

The starting point is that a person’s general data protection regulation rights to privacy expire on their death. Therefore we are not talking about changing or making a wee tweak in one bit of legislation. However, we have started the process of considering the matter, following representations that I and others have had from victims organisations. I have also discussed it with Dr Andrew Tickell, whose evidence the committee has heard.

We are also considering the experience in other jurisdictions. It is an area in which we need to proceed with great care. We do not want to criminalise families who want to speak and give testimony to the loved one whom they have lost, and who might also want to be critical of the justice system, the court process or the sentence. A lot of lessons can be learned from other jurisdictions—for example, from the state of Victoria in Australia and from Ireland—that have gone down one road towards legislating on anonymity continuing beyond a victim’s death, and then, on the back of further representations from victims, they have had to revisit all that.

Members will have seen—as have I—Dr Tickell’s written correspondence with the committee. A week or so ago, I wrote to this committee and also to the Education, Children and Young People Committee, which has been considering the Children (Care and Justice) (Scotland) Bill.

As regards finding a way forward, I have made a few commitments. The first is that I will not make false promises on the issue. There is no way that I would make such promises to victims and then have to make a big retreat. I just will not do that. However, I can commit to genuinely engaging with the issue, while acknowledging that it is not an easy one.

We will hold a round-table meeting on 20 February. I know that invitations have gone to members of the committee who are spokespeople for their parties. That meeting will involve a wide range of stakeholders, including people who might have a view on the issue from a press perspective, legal experts—for example, Dr Tickell has been invited—and victims organisations.

I have also had my own engagement with people who have been affected by the greatest levels of intrusion. We will undertake further engagement that will focus on families, in which we will explore with them their views on how we could overcome the various difficulties. For example, a set of parents might have differing views on whether anonymity should be waived. That is a live issue in today’s world. There is a whole host of other complexities.

While making absolutely no promises, I want to empower people who want to speak, but protect the privacy of those who are left behind.