Chamber and committees

Yes.

That is a fair point. The intention behind the amendment is to allow the complainer to get an insight into how the case will be argued and into any other factors that might have arisen. We have heard the case for independent advocacy at the preliminary trial and in relation to a section 275 application, but then there is the trial itself. How the case looks at the outset will differ from how the case looks later on. As is often the case with provisions that are drafted by back benchers, there is room for improvement.

I will hear what the cabinet secretary has to say about it, but I am sure in my mind that I want the measure to be permanent. It is worth having a discussion, because there is a lot of commonality in the principles of providing legal advice and legal support and changing the fundamentals of how a victim is involved in understanding the case throughout. I feel more strongly about this stuff than I do about the change in structure that was debated in an earlier group, which the Government feels strongly about. I want to support measures that would change fundamentally the experience of victims, because I believe that victims can give their best evidence when they have the fullest understanding.

Katy Clark’s approach to piloting independent legal representation is important. It is right that we evaluate something that is not tried and tested.

I am sympathetic to Maggie Chapman’s amendment 264, because that is something that Lady Dorrian asked for, and that is quite persuasive. Again, I do not know whether there is a crossover between independent advocacy support and what I am trying to achieve. It probably needs to be further fleshed out, but I am clear about the principle that something permanent needs to happen to change the experience of victims before and during the trial, and some of the amendments would make that change happen.

I can see that there are some drafting issues, so I admit that. You said that the practice has been established by convention, but that convention is very short lived. The current Lord Advocate, having headed up the sexual offences unit, is very passionate about sexual offences. This is not to talk down other Lord Advocates, but she strikes me as someone who is very passionate about the issue. When we have another Lord Advocate, the convention could fall away—that is what I want to discuss. I expected you to say what you said, which is fine. Perhaps these things are better not done by legislation but by practice notes, but will the Government consider ensuring that the practice cannot be dropped by a future Lord Advocate?

I agree. On the question of hierarchy versus practicalities, it is possible to get both. As I have said, the specialist nature of a sexual offences court can be achieved in a different way. However, fundamentally, I think that we should hang on to some kind of hierarchy—we have a High Court; the hierarchy exists.

As I said to the cabinet secretary, and as Rona Mackay was right to say, the trajectory of sexual offences cases heard in the High Court is such that they make up 70 per cent of those cases. Are we saying that the judges hearing those cases do not have a specialism—seriously? Two thirds of the cases that they hear are about sexual offences. They may not be trauma informed, but that can be resolved.

I seek to withdraw amendment 157, but I will move amendment 69 when it is time to do so.

Amendment 157, by agreement, withdrawn.

Amendments 180 and 181 moved—[Angela Constance]—and agreed to.

Amendment 69 moved—[Pauline McNeill].

You may remember that, in relation to a previous set of my amendments, I said that the same approach could be achieved by having a sexual offences division of the High Court and a sexual offences division of the sheriff court, rather than creating a new court. Rape, for example, would therefore be tried in the sexual offences division, if you like. There would still be fundamental change, but a new court would not be created. My fear is that there will be a lot of cost and bureaucracy in creating something that we could do without and which could be created without legislation, as was done with the drugs courts and the domestic offences courts.

Amendment 69 relates to a separate point. At the moment, murder—being a plea of the Crown—can be tried only in the High Court. I wish that to remain the case for the reasons that I outlined. I am arguing that, if there is to be trauma-informed practice, which I presume would involve training for judges and practitioners in the sexual offences court, the same people could also sit in the High Court. A High Court judge sitting in the sexual offences court would have to be trauma informed, as would the practitioners; however, the same people could sit or practise in the High Court. Therefore, the trauma-informed argument is not really solid. Do you follow me?

My understanding, from speaking to Rape Crisis Scotland, is that its big concern—as you know, it has many concerns—is delay in the courts. If you believe that delays will come down as a result of this change, I understand and sympathise with that view. However, you would have to accept that, while the High Court has High Court judges and advocates represented in it, that may not always be the case in the proposed new court. I will come to that. It is one of these balancing acts, I suppose.

My primary concern is that the new court will require a lot of organisational change. I know that the Government will say, “Well, we’re not going to do it all at once”—of course it is not, and I think that it is important to hear the cabinet secretary’s comments as to how that change is going to be achieved. Nevertheless, there are many problems to be solved, of which the Government is aware.

One such problem to be solved is what happens in relation to rights of audience. At present, rape and murder must be prosecuted in the High Court; those cases cannot go to any other court. Any serious sexual offences that would be likely to attract more than a five-year sentence would also usually go to the High Court, but the Crown has the discretion to send those cases to the sheriff court.

In the High Court, certain things are determined. There are rights of audience for advocates, and the High Court has its own procedures, preliminary hearings and so on. The Government accepts, and it will speak to this in relation to the amendment, that rights of audience would have to be amended to ensure that we do not downgrade—I am sorry for using that word; I am not sure which word should be used—rape cases in particular. It is still important that there are the same senior prosecutors and that the accused has the right to be represented by an advocate or solicitor advocate, as is currently the case. I am pleased that the Government has now tried to address that. However, the Law Society of Scotland has said that it has not addressed all the points, so that is something that could be sorted out at stage 3.

My amendments seek to go about this in a different way, which I believe can be done. On the question of specialism, we can legislate for trauma-informed practice regardless. We could still have all the features of a different structure, and still compel all those who sit in the court to practice or make decisions to be trauma informed.

However, I think that the easiest way in which to resolve the outstanding questions of rights of audience, where cases are prosecuted and so on would be to create a division of the High Court that would be a specialist court on sexual offences, and a division of the sheriff court. We have done that for drugs courts and for domestic violence. Those courts were created without legislation—however, we can do it by legislation. I think that that would be the easiest, and the best, way to tackle the question of delay and to keep the status of very serious crimes as it is. That is what my amendments seek to do.

In conclusion, it is important to have the discussion. If we vote for a change to create a large court, we really need to be satisfied that it is going to do what it says. The system will require a lot of reorganisation, and it will look different from the current court system. If we are interested in balance and ensuring fairness for victims and accused persons, we need to ensure that we get it right.

If this part of the bill is passed, I think that we will be partially getting to the point at which the system could look right, but we would want to make sure, at stage 3, that we have not altered the balance of who is represented in court, and that we ultimately allow courts to make the right decisions and, importantly, ensure that the constant delays that victims see in our court system begin to reduce substantially.

Yes. The High Court could have a division that specialises in sexual offences. Of course, probably two thirds of judges’ cases are sexual offences cases. The sheriff court could also create such a division. The sheriff court is a large court as it is.

My concern with the approach in the bill is that all solemn cases would go to a single court. With the level of change that will be involved, I am not convinced that delays will lessen. That is my fear.

I move amendment 76.

Good morning. In case it is not obvious, I should say that my amendments in this group were submitted some time ago, pretty much right after stage 1. If I am honest, I have been struggling to remember what was in my mind back then—I am only kidding; I do know what was in my mind. This is the most difficult part of the bill, in my opinion. No one has come to it lightly, because we are making a significant change. I realise that and I am only trying to scrutinise what the Government will do after it has removed the not proven verdict.

We know from victims’ organisations that removal of the not proven verdict has widespread support, but not everyone supports its removal. It is fair to say that some people in the legal profession do not. However, people might not have considered what will happen afterwards. How do we rebalance a system that is so connected? If we did not know it before, we know now that the elements of the Scottish system are so connected and unique that it is difficult to extract elements of other judicial systems and insert them into the Scottish system.

In its response to the stage 1 report, the Government said, among other things, that whatever we decide must command confidence. That is a really important statement. What we do now will certainly have to have some consensus, but it must also command confidence.

I do not think that it commands confidence that the bill started off with a jury size of 12, although I know that the cabinet secretary was doing something else back then. It bothers me slightly that, at this stage, we are having to look again at the numbers. However, I am glad that the Government has decided to look at the numbers—it is the right direction to take.

We went from being an outlier in having the not proven verdict to being an outlier in having a jury size of 12. That was obvious to me when the bill was drafted, and I wonder whether conclusions were drawn too quickly. It was pretty obvious when we scrutinised it that the Government was trying to keep everything else the same and then work out the balance, which is what I know the cabinet secretary is trying to do here. I sought to remove the number 12 in order to consider what we would do after keeping the jury size at 15. Therefore, I will not move any of my amendments in the group. I think that the Government is going in the right direction and that it is right not to look at having a simple majority. That is where I was coming from.

It is really difficult to examine this aspect of the bill. Professor Chalmers spoke to the committee about the mock jury research that the Government has partially, but not solely, relied on, with respect to a preference for a jury of 12. The research does not sit easily with the numbers that the Government has chosen, which slightly bothers me, but the lack of any research involving real jurors bothers me most of all. We do not have any insights at all into how juries arrive at their decisions, which I think is a major flaw. I know that we will discuss that during the debate on another group of amendments. The most important message that I want to put forward today is that most of the work that needs to be done is to get this bit right. What research are we going to conduct, what will it cover and when is it going to be done?

Katy Clark mentioned the Lord Advocate’s letter. I appreciate that the Lord Advocate was only reminding us of what she had already said, but it was a little bit unnerving for me to receive the letter last week, reminding us that it would be more difficult to secure a guilty verdict. I agree with the cabinet secretary that the Lord Advocate’s opinion is important and that we have to take it into account alongside other opinions.

Liam Kerr asked where the evidence is. Although I am minded to support the Government’s proposition for a majority of 10 to five, there is no evidence at all to support that—it is a shot in the dark, and we have to assume that it is the right direction to head in.

One of the major flaws of the legislation is that we have been asked to make too many changes at once. If the committee and the Parliament had been asked to look only at the removal of the not proven verdict, we could have looked at some of the issues that Karen Adam will raise about communication with jurors, their treatment and their payment. Sustaining a jury of 15 is obviously more difficult than sustaining a jury of 12, and people do not always want to serve on a jury, although they are compelled to do so unless they have a reason not to. We also have another big group of amendments coming up that is on the establishment of a sexual offences court.

If there is a not proven verdict with a jury of 15, which is what we have at the moment, we know that eight jurors—we have to assume that it is at least that number—considered the verdict to be not proven but we do not know whether the other seven jurors favoured a guilty verdict. For all that we know, in cases in which there is a not proven verdict, the jurors might have voted for either a not proven verdict or a guilty verdict. Lifting the bar on asking juries how their members voted, as the Government is proposing to do, will be fundamental.

I know that the Government has indicated the order in which it will do things, but I cannot remember whether that is on the record. With my amendments in this group and the next—it is hard to not discuss the same issue in debating this group—I want to know how soon after the bill is passed the not proven verdict will be removed. I imagine that that will not be done immediately. I would think that the Government—whoever was in power—would want a few years to consider the matter and do some proper research.

Lastly, on my amendment 268, I am grateful that the Lord Advocate addressed the issue of corroboration and the recent Supreme Court decision. Given what she said, although we do not know what the full impact of that decision will be on future judgments, I do not have major concerns about it. However, a former Lord Advocate proposed the wholesale removal of corroboration, and it would obviously have to be replaced by something. In my opinion, we need to consider the fine balance between the independence of the judiciary and the Crown and parliamentary oversight to ensure a fair and just criminal justice system, which is fundamental, too. We, in the Parliament, would have every right to say that we were not satisfied if the courts removed corroboration and we felt that that was not fair to accused persons. We need to get the balance right between that independence and the role of parliamentary oversight.

I will not move amendment 268, but I just wanted to say where I was coming from with it. If there were more substantial changes to corroboration, which have been called for, we could not just keep the jury size the same. In those circumstances, it would be right for Parliament to review that—that would be pretty valid, and it is all that I am asking for.

My view is that the Government is going in the right direction, but I am exercised about the lack of research. Before stage 3, I want to hear more on exactly how the Government will go about commanding the confidence that it says it wants in the change to the jury size and the majority, and what research we will do with juries.

I know that everyone, no matter where they come from, is worried about this change. In case we get it wrong, a future Parliament must be able to review the matter again. For example, the number of convictions might rise or fall, which could indicate that something was not right with the jury system.

Will you clarify whether the not proven verdict will be removed as soon as the bill is passed and receives royal assent? In some cases, the Government has to attach a timescale to such provisions, but my reading of the bill is that the not proven verdict would be removed right away. That is an important point, because I am trying to understand where the Government is coming from in relation to what kind of research it would want to do and what it would be researching. I know that we are going to have a discussion about that but, if the not proven verdict was removed right away, the research would be based on the new system, so it would be helpful to know whether there would be a period in between.

It is probably a case of my not understanding how the bill is written—it is always difficult to read legislation, even if you have done it for a long time—but I cannot see anything in the bill about a commencement order. It just says:

“The 1995 Act is amended as follows.”

It would be useful to know whether, if we voted for the bill at stage 3, that would just happen.