Chamber and committees

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.

It would be closer to £1 million, I would say.

I hope that I will not fall foul of the convener, but I am going to ask about part 4 of the bill, if that is okay.

I am interested in the contribution from the senators of the College of Justice on the question of jury size. Based on the response to the Government’s consultation paper, the senators are not supportive of the changes to jury size. Lord Matthews, could you explain the senators’ position and the concerns that they have about the Government’s proposals?

I am interested in the language that you used. You said that you feel that this represents a greater hurdle for the Crown. I am interested in your perspective on a point that I put to the Lord Advocate earlier, which was about confidence in the criminal justice system. Sheriff Cubie might also want to comment. An individual can be found guilty today by eight votes to seven. We would never know that that was the result, but it can happen. We could find ourselves in a situation in which there is a seven to five vote in a jury of 12 but the person is acquitted on the basis that the two thirds majority threshold has not been reached.

I am interested in the view of the judiciary on that, and in your perspective on what it does to confidence in the criminal justice system. For all of our time, a simple majority has been judged by members of the public to be sufficient to convict an individual of a crime. Suddenly, even an actual majority will not be enough and the verdict will have to be what I might call a supermajority. What does the judiciary think about the risk of that provision to confidence in the criminal justice system?

The senators’ submission goes on to make a point about a connection between the abolition of the not proven verdict and a change in jury size. I will explore that in a moment.

What are the judiciary’s points of anxiety about a simple majority in a two-verdict trial? We are all told—and all the evidence that we have heard tells us—that, in effect, we actually have a two-verdict system already, but with two variants on the not guilty side.