Chamber and committees

For all offences?

Right.

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.

My next question—

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?

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

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.

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.

I am trying to make sense of what you said. I cannot conceive of a situation in which there would be any support for the English system of unanimity of 12, given that we have corroboration. Albeit that you are suggesting that the October decision has changed that somewhat, we still have it. If the Government had come up with the scenario of a majority of 10 out of 12, would that fulfil the requirement for balance?

I did not fully understand, Michael, what you meant when you addressed the question of reasonable doubt. The point was made to the committee recently that, if possible, we want a jury to act as a collective in coming to a conclusion. That is what we are aiming for, rather than it being a set of individuals who all vote. I had not considered that point previously, but now I think that it is really important.

Will you explain a bit more what you meant when you talked about what would happen if the jury thought that the accused probably did it, but there was reasonable doubt? I did not fully understand that point.

My primary concern—as you might have read—about the setting up of a specialist court is that I do not believe that the Government can fix the problem of rights of audience, which it accepts is a problem. I put that specific question to the Government at stage 1, with regard to how it would ensure that the representation that currently exists in the High Court and the sheriff court would remain as is. The Government said that it would lodge an amendment to address that, but I do not see how it can be done. I seek your view on that.

When we changed the sentencing powers of the sheriff court from three years to five years, a promise was given that it would still attract counsel for those cases that would previously not have been heard in the sheriff court. Obviously, if cases are heard in the High Court, they automatically attract counsel.

That is where I think the flaw is with regard to rights of audience. If we set up a specialist court as part of the High Court, it is quite clear that the rights of audience remain the same. If we set up a specialist court of the sheriff court, the rights of audience remain the same. I would like you to answer that point.

I will conclude with this. I recently learned of a case that was, I was told, indicted as assault with injury to life, and it went to the sheriff court. As you will know, if it had been indicted to the High Court, the representation would have been different—the practitioner’s view was that it was an attempted murder and not an assault with injury. The Crown is deciding how it is indicting these cases, and where cases do not go to the High Court, they do not get the representation that the system intended.

I have serious concerns. Do you have those concerns, and do you think that the issue can be fixed? That is the fundamental question. Is there a way of ensuring that those cases that would be likely to attract more than a five-year sentence would still attract representation by counsel, or not?