Chamber and committees

I thank the witnesses for being here today and for their important and valuable work.

Lady Dorrian, when she appeared before the committee, made an important point in respect of what we are talking about. She said that, until the age of social media, the common assumption was that an anonymity provision existed, because it was, in essence, voluntarily respected by what one might call the established media, but we are now in a very different era.

Following the convener’s line of questioning, I am interested in whether you believe that the bill’s provisions cast the net wide enough to address not only the current media that we know about but the media that we might not know about, which might be yet to come.

Thank you, Lord Advocate—you have provided the committee with a substantial and important answer in that respect.

I want to explore a couple of details in your answer. The first relates to the question that you raised, understandably, about what happens in a 12-member jury where the decision is reached by a majority of seven to five, and the two-thirds majority that is proposed in the bill is not reached.

Can you spell out to the committee what you, and the Crown, would consider to be the dangers for public confidence in the criminal justice system as a consequence of the proposed change? For all time, in the Scottish courts, simple majorities have resulted in convictions. We would suddenly be embarking on a position in which a simple majority would not be good enough, but there may still be a majority. What are the Crown’s thoughts on that with regard to the implications for public confidence in the justice system?

Is it fair for the committee to assume, Lord Advocate, that your view is that, were we to enact the changes to the jury majority provision, we would be making the challenge of securing convictions greater—given that your success with the Lord Advocate’s reference has improved the prospects—and that it could be characterised as one step forward and two steps back?

Are there any other safeguards that the Parliament could consider putting in place that, in the judiciary’s view, would be compatible with abolishing not proven and maintaining a simple majority on a two-verdict outcome? Are there other safeguards that the Parliament could consider to address some of that anxiety, without opening up what I certainly air in this committee as a question—I do not think that the public is that engaged with this—that, under the bill’s proposals, we could actually have a majority in favour of conviction, but not a good enough majority?

There is then the question of awareness. There have been examples that relate to your assessment of the current position. In some circumstances just now, people will be able to publish information because there is no lifelong anonymity protection in place. However, the point that I am interested in is how people will become aware of the obligation on every one of us who decides to impart anything in the public domain, which will carry should the legislation be enacted? What have you learned from international best practice about how that can be most effectively communicated?

We have before us, as you will have observed, a complex bill with many different elements. You are very experienced in respect of the particular element that we are discussing. What can we reflect on, in our feedback to Government, with regard to the importance of ensuring that people know what the law will be if the bill is enacted?

I am grateful. I would like to follow up on Mr Findlay’s question and the Lord Advocate’s answer.

What the Lord Advocate has put on the record is very welcome, but it raises the question in my mind of whether any of that needs to be formalised beyond the basis of what has been agreed by the Government and the Crown. We have reached a place of welcome understanding, and the independence of the Crown has been clarified and assured. Does the Lord Advocate believe that any degree of formalisation is required, beyond what has been arrived at so far?

I am grateful for that answer. It may be that we require not legislative change but rather a memorandum of understanding, or something of that nature. It would be helpful if that could be explored; we can also explore it with the cabinet secretary when we see her next week. I am grateful for that clarification.

Thank you for that. That answer gets into some of the territory that links with other parts of the bill with regard to trauma-informed practice. One of the themes of the bill that I have been interested in is that, if that principle is to be faithfully applied in all situations, the courtroom dynamics have to change dramatically as a consequence. Would you agree with that conclusion?

That is really interesting. You have made the point, points were made to us by Lady Dorrian, and the point was made very powerfully to us by the citing of a case by the Lord Advocate in the same evidence session on 10 January. In that case, the Court of Appeal laid down a very hard judgment about the conduct of a case in 2020, which is not terribly long ago. I have read the judgment of the Court of Appeal, which makes grim reading in 21st century Scotland. When I read that as a member of Parliament, I think to myself that we had better legislate for that because, even with the direction that I recognise that there has been from the Lord President and the Lord Justice Clerk throughout their tenure in order to improve those issues, there is still a way to go. Mr Di Rollo said that there is still a way to go.

I want to pursue a point that Professor Chalmers made—although it relates to the contributions of all our witnesses—about the adequacy of the research base.

If I have heard it once in my time that we do not have enough research on a subject, I have heard it a million times. The airing of the research this morning has been enormously helpful in informing the committee’s proceedings, and my conclusion is that we should look at all the research in the round and make our judgments out of it. Would it be fair to say that the gold standard of research that we require here is to understand better the deliberative process of individual and collective jurors, and that we will never be able to fully get a hold of that?