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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 26 July 2025
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Displaying 1838 contributions

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Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

My question is, how do you resolve the situation if you are worried that Scotland would be an outlier? Do we just be the outlier and adjust our system, bearing in mind that removing the not proven verdict would apply not just to sexual offences cases, but to all cases that go before the court? Surely England must have some equivalent to corroboration.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

Thank you—that is helpful.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

Is that for sexual offences cases?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

For all offences?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

Right.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

I hope that this does not need to be said, but I think that we all agree that the treatment of victims in our court system is completely unsatisfactory and we need change—that is my view, anyway. The question is what kind of change is going to make a difference. We have specialist courts—we have the drugs courts and domestic abuse courts, which were introduced without legislation. Do you agree that we could, in theory, set up a specialist court of the High Court and the sheriff court without legislation? We have done that previously.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

My next question—

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

I am not going to go over ground that the witnesses have already given evidence on, because I know their views on those aspects. It feels as though, once the not proven verdict is removed, Scotland is going to be an outlier whichever way you look at it—unless we adopt the English position, which I know that the witnesses are opposed to, of having all 12 jurors, or possibly 10, agree on a verdict.

How could Scotland remove its not proven verdict, which is one of the few elements that there seems to be quite complete agreement on, without being an outlier? I am really interested to know how the witnesses think that we could fix that. Sandy, do you want to go first?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

Do they not have any system of evidence that would be comparable to Scotland’s system to prove a case?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 4 December 2024

Pauline McNeill

This question is on jury size—obviously, I have other questions.

I agree with Simon Brown and Fulton MacGregor when they say, “If we are going to do it, let us do it properly”. “Flashbacks” is probably the right word, because coming down on either side seems to be an enormous decision. I probably favour a majority of 10 to five, but I still do not feel comfortable that we have reached the point—although we are not back where we started with the not proven verdict—where we remain an outlier, without the appropriate balances.

Forgive me if you have already answered this, but I want to be sure—I think that Ben Macpherson asked the same question. What we are understanding—and what we did not understand previously—is that the English system is different. Simon Brown spoke to one of the key differences—I did not really appreciate this until our work on the bill—which is that, in England, it is on the likelihood of conviction that the Crown Prosecution Service determines whether a case goes to trial. We heard evidence that, proportionally, there are fewer rape trials in England because of that. However, in Scotland, that is not the test: the test is whether the prosecution service has evidence to prove the case. That implies that more cases go to trial.

The question is how to balance a system that is different. Stuart Munro explained the system very well. In Scotland, these are the safeguards: there being three verdicts, the need for a simple majority and the system of corroboration, notwithstanding the changes that have been made to that. However, England does not have the system of corroboration that we have. Other systems have that other test. It is a whole system. In Scotland, we are breaking down the whole system that we had by removing one verdict. We now have to determine how to balance the system.

12:00  

You said to Ben Macpherson that you prefer the English model’s jury size, which is 12. That seems to be the number in other jurisdictions, too. Is it your position that, to accommodate the fact that we still have corroboration in the Scottish system, we do not have to have unanimity among the 12, as in England, in order to balance the system? Or, should we get rid of corroboration in Scotland?

Do you see where I am going? I am looking at how we are going to balance our system. I take the point that the only two ways in which we can do that is to use the English position, which is to remove corroboration and go to a unanimous jury of 12, or to keep corroboration, which is the system that our lawyers have been operating under. I cannot see a scenario in which we would just go to the English system. I presume that you would need to retrain the legal profession on a different evidential system, although I do not know that. Does the fact that we require corroboration mean that, if we go for a jury of 12, a verdict does not need to be unanimous? I apologise if you feel that you have already answered that, but I just do not really understand.