Chamber and committees

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.

I make this intervention for the sake of completeness, to cover all the points.

I am not a practising lawyer, but I know a little, as I have studied law. In Scots law, there is the concept of tholed assize—I think that that is what it is called. That is why the double jeopardy legislation was quite difficult for the Parliament. In Scots law, once someone has been tried in a court of law, they cannot be tried again—well, they can under certain conditions, but retrial is another concept that England has, but which is alien to Scotland.

The Lord Advocate told the committee that, if we went for a supermajority, she would ask the Parliament to consider the power of retrial. I am really against that. I think that a good feature of the Scottish system is that someone is tried in a court of law, the case is put against them and they have the right to defend themselves. The idea that someone could be retried for the same offence, unless there were very unusual circumstances, concerned me, and it made me head in the other direction, so to speak. We need to consider that point as part of our considerations in the round.

I take the point that Liam Kerr is making—at least the English system is tried and tested—but we must consider these other issues that keep cropping up.

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.

You have outlined a position that is broadly similar to mine, which is that you do not want to go with a simple majority. Would it make sense for the Government not to draw down the not proven verdict for a period of time, to allow research to be done with juries after lifting the restriction in the Contempt of Court Act 1981? Otherwise, we would make the change right away, the research would be done in the new configuration, and there would be nothing to compare it with. I have wrestled with the question of when to do the research and what value it has. Have you given that some thought?

I find Sharon Dowey’s contribution very helpful, because it mirrors my feelings about something that sounds like quite dramatic and necessary change but which involves lots of issues that remain unresolved. I maintain that a lot of the specialist judicial management can be done without legislative change. It would be wrong to say that other quite radical changes to the system have not been supported by the committee, different parties or the Government and that everything rests on the creation of a very large sexual offences court.

I remind the committee to consider whether it is satisfied that the result of every single solemn case in the High Court and the sheriff court will be what the cabinet secretary is saying that it will be—although she did not address the question of delay, which is one of the significant issues in the court system. Sharon Dowey addressed that issue, and the costs. Is the committee content that we can achieve what the sexual offences court sets out to achieve?

Although we are talking of cases that are of the same type—they are all sexual offences cases—they are not all of the same level of seriousness. I agree with Tony Lenehan, who was quoted by Sharon Dowey, when he says that we have a hierarchical system, in that we have the High Court for the most serious crimes, and then we have lower courts. There is nothing in the bill that prevents a sheriff from sitting in a rape case. I cannot sign up to that, and I have lodged an amendment that we will come to later that might change it. There is no doubt that more sheriffs will be used—that is how this will be done. The sexual offences court will use more sheriffs—whether or not the Lord President is satisfied that they are trauma-informed and able to do the job. That is something that the cabinet secretary has to accept.

I would have had more respect for the change, or been more supportive of it, had the question of how rape cases will be dealt with in the new sexual offences court been addressed. Liam Kerr quite rightly asked the question. Nothing about how the court looks, physically, will really change—it will still be a court somewhere in Scotland. There might be procedural changes, but I am arguing that those can be made without legislation.

Given the widely drawn powers of the sexual offences court, which mean that the cases that it could consider could include murder—I will come on to address that concern—we would be creating a lot of changes at the same time that we do not know the outcome of.

Why would we not still try someone for murder in the High Court as a matter of absolute certainty? Why would we not argue it the other way so that, if they felt that it was appropriate, the Lord Advocate could say that a murder case with a sexual offences element should go to another court? As it stands, the sexual offences court would have complete discretion to go beyond sexual offences cases.

Yes, it was a powerful point—it was made by Lady Dorrian. The question that we have to ask ourselves is that, although we all want dramatic change—I want that too—are we satisfied that, just because there is a report that says that change will happen in a particular way, the proposed sexual offences court will achieve it? Are we satisfied that the Government will put the resources in? Are we satisfied that there will be a smooth transition from the current court structures and that there will not be a few years of delay? When we get to the end of the process, I would have thought that some future committee will have to review whether or not the proposal has achieved what the Government said it will achieve.

I am arguing that we can still achieve similar aims, or the same aims, by approaching this in a different way. Do not forget that there are still problems to be resolved—for example, rights of audience have not fully been resolved. I thought that the way to resolve that is to keep some of the elements that are already there, but it is for Liam Kerr to decide whether he is persuaded by that.

There is a lot of change that has to happen regardless of whether there is a sexual offences court. That includes the way that victims are treated in court, the points in Katy Clark’s amendment on a single point of contact for victims and those in my amendment on the right for a victim to sit down with an advocate to understand their case. We have to look at the issue as a whole. If we want this transformation—and we all do—it cannot be achieved simply by the creation of one single court. Pretty much all those things have to happen. I agree with the cabinet secretary and Lady Dorrian that we have to make sure that we make transformational change when we have the chance to do so.

On that basis, I will withdraw amendment 76.

Amendment 76, by agreement, withdrawn.

Amendments 155 and 156 not moved.

Section 37—Sexual Offences Court

Amendment 26 moved—[Sharon Dowey].

This is a long intervention.