Chamber and committees

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.

I strongly support amendment 152, which the cabinet secretary has lodged. I strongly agree that we need to know more about jurors’ approach to rape cases, and I think that there is full agreement that that would be extremely useful insight.

Like Sharon Dowey’s amendment, some of mine were submitted some time ago. I was trying to resolve in my mind what type of research would be useful to inform us about the implications of removing the not proven verdict. I acknowledge that, as we have discussed, the committee has seen some useful research, but that has limited value compared to research on actual juries.

Amendment 75 was an attempt to ensure that research on juries would be conducted immediately after the bill received royal assent, and amendment 151 proposed a three-year period for such research. However, I acknowledge what the cabinet secretary said about the need for certain variables to remain the same in any research that is undertaken, so I might need to give further thought to what would be useful in that regard.

As I established earlier, the part of the bill that removes the not proven verdict will still require a commencement order. I do not know whether there is a period in which direct research could be carried out, which would involve lifting the bar on asking juries questions about their opinions on how they voted in particular cases and looking at the balances in cases in which the not proven verdict was reached.

It is crucial that we gather as much information as we can, because we are stepping into the unknown. Although I have said that I am more supportive of the 10 to five majority, I accept that we are stepping into the unknown. One way or another, we must try to have some research carried out to ensure that we have done the right thing. Members in a future session of Parliament might need to do that if conviction rates were to change in one direction or another. There is no way that we can avoid having to review what we do so that we can say whether we did or did not do the right thing. Therefore, it is very important to have such a provision.

Finally, I acknowledge that the Government is already doing research on the question of evidence by commissioner, which is really important. The use of evidence by commissioner is fundamental to getting more victims to come forward and give evidence, but we need to be satisfied that, when victims volunteer or opt to do that, there are no downsides, such as juries perhaps taking that evidence less seriously.

There are lots of questions—perhaps too many—that could be asked in research. Before stage 3, it would be valuable to have a full discussion about how we can ensure that we get the best information available to inform the decisions that we take.

I appreciate that you were not on the committee, but a couple of things came out in evidence in relation to the English judicial system. That system involves 12 jurors agreeing unanimously, or, with the agreement of the judge, it can go down to 10. However, there are at least two aspects that we are aware of that are different. One is the ability to have a retrial, and the other is the way in which cases are prosecuted in England and Wales.

That is why we cannot compare convictions. In Scotland, as long as the Crown is satisfied that it can provide evidence for a prosecution, it will proceed, whereas that is not the basis of English prosecutions, which are based on the chance of success. That is the conundrum for everyone. Even if you look at New Zealand, Australia or other jurisdictions, you realise that Scotland is unique. I totally understand where you are coming from, but those are two points that stuck in my mind.

Fundamentally, I agree with the Government that there needs to be a significant shift in the way that we deal with sexual offences cases. Those cases are predominantly what the High Court is dealing with now, and the situation is alarming, with the rate of sexual offences against women and girls going up, not down. The Government has, commendably, already put in place many measures in relation to the issue, and I think that Parliament as a whole is pretty united on the fact that the issue has to be a primary focus not just of legislation but of practice and resources.

Sometimes, achieving change does not require legislation, as some things can be done without it. However, we are faced with a proposal in the bill to create a new sexual offences court.

My first concern about the idea of putting all solemn cases in a single court is that that will create an extremely large court. There is a bit of an unknown here. I accept that, in the proposal to create that new court, to give it additional sentencing powers and to allow sheriffs to sit in that court—approved by the Lord President, obviously—there is an attempt to do something different and to try to address the delays that exist, which affect too many victims of sexual assault. However, I have a concern that what is a significant change in the court system might not achieve what the Government has set out to achieve, because of the volume of cases that would probably be in the new court.

I am concerned about the cost of such a large court and the ability to ensure that it runs smoothly. I acknowledge that the court can sit in many places—I think that up to 38 courts could be used.

I have a slight concern that, depending on how the new court operates, it could look like there would be a downgrading of the status of rape as a crime. At the moment, because it is one of the most serious crimes that can be committed under Scots law, it therefore goes to the highest court. I maintain that the High Court will still be the highest court and, although the new court could be a significant court with the power to impose long sentences, it will not be the High Court. The High Court is a feature of the Scotland Act 1998; it is a requirement under that act to have a High Court, and it is the highest court, although, obviously, there is an appeal court as well.

I suppose that we might be satisfied that, in order to get the delay down, it is worth using sheriffs and changing the structure, but I cannot pretend that I do not have concerns about how rape cases not going to the High Court might be seen.

Also, because we have been so busy considering the proposal for the new court, we have not had time for much discussion about what happens to the High Court. The figures show that sexual offences cases make up just under 70 per cent of High Court cases, which means that, if the proposal is agreed to, only 30 per cent of the current volume of cases will be in the High Court.

We are all in the same position. Does the member agree that it is a shot in the dark? We take one position or another and point to certain research that says certain things, but we do not know what we are doing for sure. I put the same question to Liam Kerr. Would it not be better to try to understand exactly what we might be doing or to have some insight into how juries arrive at their majorities at the moment by asking them over a period, during which we lift the restriction in the Contempt of Court Act 1981? That would allow a future Parliament to review whether a majority of 10 to five is indeed the right balance.

Thank you.

We can come to that. The member will certainly not contradict me on the fact that the issue is not in the bill at the moment. That is why we did not take evidence on it.

Just to be clear, I support pretty much all that Jamie Greene has just said. However, as somebody who is here to scrutinise, I would like to have heard evidence from, or even had the chance to talk to, the Parole Board. That is my only issue here.

I did not design the bill—the Government designed the bill—so this is where we are. The bill is too big, which makes stage 2 more difficult. The committee has successfully argued for more time—you will see that—and I am very supportive of the amendments and will not vote against them today. I will hear what the cabinet secretary has to say, because there is an awful lot of merit in what Jamie Greene is saying.

Has he had any discussions with the Parole Board? Is there anything that he could help the committee with? The matter will be out of the committee’s hands after today, and it will be for the full Parliament to scrutinise it. If we are going to make a decision at stage 3, getting as much information as possible would be helpful.

I was not able to attend it, but committee members attended a private meeting at which the issue was raised. Given its importance and the detail that Jamie Greene has gone through, it strikes me that it exposes the need for something to have been included in the bill in the first place. Jamie Greene is speaking to a theme that is similar to one that the committee has been dealing with, which is the trauma that victims experience in the criminal justice system.

There seems to be an omission in the bill. Jamie Greene will not be surprised that I am going to say that it would be difficult to make a judgment on whether this is the right thing to do without having heard from the Parole Board for Scotland, which the committee has had no contact with on this. Maybe, in summing up, Jamie could say whether he has had any discussions with the Parole Board. I am not familiar with the full processes of what the Parole Board does or does not do.

In my opinion, it exposes the failures of the stage 2 process as a whole that we are so bound by the Scotland Act 1998, and I believe that some committees in the Parliament are giving thought to how to change that. However, this is a good example of a really big issue that is not included in the bill, and we cannot easily take evidence before stage 3 on something that has now proved to be really important.

Finally, since we started dealing with the bill, it has been my opinion that it is far too big. Regardless of our positions on the issues, the committee members will probably testify that there are huge issues contained in this single bill. If we wanted to focus on victims and trauma, I would have thought that there was a case for having a bill on that issue alone and leaving some of the other issues to be dealt with separately.