Chamber and committees

I cannot. I am the only person who has taken interventions in the debate and I do not have much time left, so I apologise.

The matters are not straightforward but complex, so it is surely right that we engage properly on them before we take decisive action. How could we ensure that the reforms are effective and free from unintended consequences without having a full consultation process?

I listened with some disbelief to the Conservatives, who proclaim themselves to be the party of law and order, suggesting that we should disregard the views of the legal profession on a complex legal matter.

In September 2021, in a written submission to the Criminal Justice Committee, the Faculty of Advocates set out its opposition to the removal of the not proven verdict, which it views as a necessary safeguard in a system with a simple majority. The faculty argued that, if the not proven verdict was to be removed, that should not be done in isolation and that discussion and consultation would be necessary

“to identify the changes in our criminal justice system that would be required in order to accommodate such a significant change”—

not a tidying-up or a wrinkle—

“without jeopardising reliable justice”.

I have been clear that I have serious concerns about the not proven verdict. Just because the consultation is rightly holistic, that is not to say that one aspect cannot be reformed without corresponding changes to the others. However, it should not be reformed without considering what other changes might have to take place. Surely, regardless of what reform—if any—is ultimately undertaken, the opinions of the legal profession and the people who are most directly impacted by the verdict should be listened to. The right place to do that listening is in a full consultation, which is exactly what we are doing.

Of course, the views of the legal sector are not the only ones that we should listen to. We will continue to take the open and consultative approach that we have used to date, seeking to capture the views of a broad range of stakeholders, including the third sector and people with lived experience of the justice system, which includes those whom the Criminal Justice Committee has listened to, some of whom I have listened to and spoken with myself. They include survivors and victims of crime. Some of the discussions that have most shaped my thinking have been with survivors and I am eager to hear their views on the consultation.

As I noted in my opening speech, we must be mindful that the not proven verdict affects all cases, not just sexual offences. Therefore, any reform must take a holistic approach that considers potential impacts across the piece.

Many of us value the distinctive features of the existing Scottish criminal justice system. That is not, in itself, a bad thing, but I take Maggie Chapman’s point that those features cannot be venerated for their own sake and that we should ensure that the system reflects our current values. The value that we place on those distinctive features should not prevent us from asking questions or seeking new perspectives, particularly from people with direct experience of the criminal justice system, to drive further improvements and ensure that the system remains relevant.

The incredible efforts of justice partners, third sector organisations, the judiciary and the defence community during the Covid pandemic have made it clear that there is still tremendous potential for the justice system to benefit from collaboration, innovation and new ways of working. I trust that many of those stakeholders will contribute their thoughtful and considered opinions to the consultation and I look forward to considering the full range of views that we receive. I want to listen to what consultees tell us before we weigh all the evidence and reach a conclusion.

Would the member like to comment on the decades of Tory rule when nothing was done about the matter? Can he clarify that the Tory position is—as I understand it—not just to scrap the not proven verdict, but to scrap the consultation and move immediately to legislation without listening to the people who are most involved in the issue or to victims and other organisations?

Will the member take an intervention?

Just to be clear, I will move the amendment in my name and I will also support the Labour Party’s amendment. I will not support the motion from Jamie Greene. I should also say at the outset that I intend to look at the bill that he intends to bring forward. I will look at it genuinely to see whether there are further things that we can do. He is right to say that we should continue to try to improve how victim centred our system of justice is. It is my view that much of what I know of the bill—and I do not know all about it—replicates things that we already do or that are in train. However, I will look at the bill in good faith.

The Scottish legal system has evolved substantially over the centuries, and it is vital that the justice system develops in response to new evidence and in line with the values of the people of Scotland. Jamie Greene rightly said that he was following through on a manifesto commitment, and that is exactly what I am doing when I say that we will consult on the issue. That is what we said we would do. He is right to have quoted the First Minister, who said that there is a strong case for looking at this again. I reflect and agree with those sentiments. Our commitment is to consult on this.

Juries have played a crucial role in the Scottish criminal justice system for hundreds of years, and I am grateful to those who have carried out the important public duty of serving on them. It is, however, important that we reflect on the findings of the independent jury research that was published in 2019, which was not available during the earlier considerations by Parliament and other parties, which Jamie Greene referred to. It was the largest and most realistic study of its kind ever undertaken in the United Kingdom. It considered the unique Scottish jury system of 15 jurors, three verdicts—including not proven—and the simple majority. Those things are inextricably interlinked. The research highlighted inconsistent views on the meaning and effect of the not proven verdict and how it differs from not guilty.

It is also vital that we involve the public and stakeholders in these discussions. That is why, after the report’s publication, we held events across the country with legal professionals, the third sector and survivors. I have had a number of conversations with survivors, as I know Jamie Greene and others have also had, in which concerns have been raised regarding the not proven verdict, such as a lack of understanding, perceived stigma and the trauma that the verdict can cause.

I am also aware that, more recently, the third verdict has been criticised due to the higher rates of not proven acquittals in rape and attempted rape cases. Some campaigners have suggested that the existence of the third verdict might contribute to the acquittal of defendants who committed an offence and therefore causes particular trauma to victims.

I take the views of survivors very seriously. As I said, I have spoken to them directly. Furthermore, in our programme for government, we have committed to giving serious consideration to the recommendations of the Lord Justice Clerk’s review on improving the management of sexual offence cases. That report has the potential to drive transformational change across the system, beyond sexual offence cases. However, these are complex issues, and many other stakeholders have made their views clear that the third verdict should be retained or—as I have tried to do—they have highlighted the interconnectedness of the system, emphasising that the three verdicts, a simple majority being required for conviction and the size of the jury are so interrelated that it would not be possible to meaningfully assess those factors separately from one another. Others argue that the corroboration rule, which requires more than a single source of evidence, should also be part of the consideration.

Earlier this year, over 1,000 Scottish-qualified solicitors took part in an online survey and responded to a question on what the legal profession thinks about the current three-verdict criminal justice system in Scotland. Over 70 per cent of those who responded said that they believed that the not proven verdict should be retained, primarily due to their view that it provides an important safeguard to prevent wrongful convictions.

As I said in my opening speech, the Scottish legal system has evolved substantially over the centuries and it is vital that we ensure that it develops and responds to new evidence and is in line with the values of the people of Scotland—a point that was made by other members.

Liam McArthur’s contribution was measured and informative, and I support what he said. For his benefit, I say that, in relation to the issue of anonymity, we intend to proceed on that as we set out in our manifesto. The issue is complicated, of course, by the need to ensure that the system can cope with the online age, but we intend to address that issue.

In the 21st century, our justice system has to be person centred, transparent and fair to all, satisfying public confidence by reflecting the needs and views of those who directly participate in it and whose lives are impacted by it. It is for that reason that we think that the consultation is the right way to go. I am surprised by what I have heard from Labour members, because I did not realise that the Labour Party’s position was to say that the consultation was an exercise that we could hide behind. I think that it is a genuine attempt to engage with those who are most directly affected by the issue.

I certainly disagree with the Tory position. Jamie Greene said that, should the proposal be agreed to, it would represent one of the biggest changes in Scots law that could take place. I agree with that. The verdict is not a wrinkle to be ironed out and neither is dealing with it merely a piece of housekeeping. If we agree to the proposal, it would represent a serious piece of reform to the justice system.

I think that it is really wrong for Jamie Greene to characterise what I have said up to this point as defending the status quo. I am laying out the reasons why we are consulting on the issue. In consulting on it, I am doing what my party said that it would do when we won the election a few months ago. He is right to pursue his manifesto, and I am pursuing mine. It is not a surprise to anybody that we would do it in this way.

I have just mentioned that 70 per cent of those lawyers who were polled were for retaining the verdict. I think that it is right, even if I were not to agree with them, that we should consult the legal profession as we go forward with what he has rightly said is one of the biggest changes to the legal framework in many years. We are doing what we said we would do.

Furthermore, we have to be mindful that the not proven verdict affects all cases, not just sexual offences. In 2019-20, there were 1,039 not proven verdicts, the majority of which were for crimes that were not sexual in nature. We cannot simply disregard the complexity. The implication of the motion is that we should go straight to abolishing the not proven verdict, regardless of the other things that are related to it in the system. I do not support that—I think that we have to consider those things together. We also have to take into account the opposing views, some of which I have just set out.

I have been very clear, however, that I have serious concerns about the not proven verdict. That is not a justification of the status quo. There is clearly a breadth of informed and principled opinion on the matter, and we owe it to all in the justice system to robustly consider and, where appropriate, challenge those views. We need a holistic, evidence-based approach in which we address the whole system as well as considering wider potential reforms—such as those that I mentioned from the Lord Justice Clerk’s review—instead of rushing to action without pausing to think through the consequences for the rest of the system. That is why, earlier this week, the Scottish Government launched a consultation on those interrelated matters. I encourage all those with an interest to consider it and respond in due course.

As I said, some argue that the corroboration rule regarding a single source of evidence should be looked at. Those are important matters on which many people, whether it is the Law Society of Scotland or the Faculty of Advocates, have very serious views. If we want to make a major change to the system that is sustainable, it is only right that we consult those who are most directly involved in administering the system as well as those who are affected by it. For that reason, I ask the Parliament to support the amendment in my name.

I move amendment S6M-02553.3, to leave out from “believes” to end and insert:

“recognises concerns held by many about the current three verdict system, including issues raised in independent jury research that suggest jurors may have inconsistent views on the meaning and effect of the not proven verdict; further recognises the concerns raised by the complainers of particularly heinous crimes, including gender-based violence, rape and domestic abuse, that the not proven verdict is more often applied in crimes of rape and attempted rape compared to other crimes; notes the strong case that can be made for the abolition of the not proven verdict; further notes that the Scottish jury system is a complex, inter-related system and that verdicts must be considered alongside other key aspects of jury size, majority and corroboration, and against the background of wider, related work, including the recommendations of the Lord Justice Clerk’s review on the management of sexual offence cases, and encourages all those with an interest to consider and respond to the current Scottish Government consultation on the not proven verdict and related reforms.”

I said to the Criminal Justice Committee this morning—I appreciate that Mr McArthur did not hear it—that Lady Dorrian’s numerous recommendations also require legislative change. Once we have been through the current consultation and we get a view on the interrelated matters, such as jury size, it will be possible to move forward with a suite of measures that will address some of the points that have been made. However, to go back to the previous point, we have a commitment to address anonymity on its own merits.

I give Pauline McNeill that reassurance, which is based on the 17,000 police officers that we have in place and the work that is being done through some new initiatives. She mentioned psychoactive drugs. She will be aware of some of the measures that are being taken in relation to the presence of those drugs in prisons. The member will also be aware of recent changes made by the Lord Advocate in relation to how drug offences are prosecuted and dealt with by the police. There is a real focus on the issue.

The discovery of an increased amount of drugs should not necessarily be seen as indicating increased prevalence. We cannot properly determine exactly what that is due to, but it may well be down to the fact that the police are acting very effectively to locate and seize the drugs.

I think that I partly answered that question in response to Jamie Greene’s supplementary question. Following the review by Dame Elish Angiolini, which has already been mentioned, and which concerned issues with complaints handling, investigations and misconduct, a number of recommendations have already been implemented. Others will require legislation, and we will consult further on those proposals to strengthen the framework for complaints and misconduct allegations against police officers. We will do that next year, including in relation to the conduct framework for senior officers.

There is currently an established process for the handling of police complaints, investigations of serious incidents and misconduct, and I welcome the significant progress that has been made by Police Scotland, the SPA, the Police Investigations and Review Commissioner and the Crown Office and Procurator Fiscal Service, among others, to drive improvements in systems and processes in advance of the legislative changes that I mentioned earlier.

As I said, there is not much that I can say on the investigation. The member says that it is important because of the level of seniority that the person involved has in the organisation, but it would be just as important if an individual at any level in Police Scotland was involved in such a case.

It is the chief constable’s responsibility to deploy his force as he sees fit. I have had discussions in the past few days with the police and the Scottish Police Authority, and I am confident that the police and the chief constable will ensure that, in relation to organised crime and cybercrime, the coverage that is provided, and effort that is made, will be the same as it was before the case came to fruition. That will be effected by the changes that the chief constable has put in place.