Chamber and committees

I am grateful to the cabinet secretary and to my friend Pauline McNeill for their comments. I think that it has been a good debate; I have enjoyed the back and forth of it.

The cabinet secretary’s point on amendment 104 is well made. I am concerned to absolutely ensure that everything is covered, so in order to preserve the position while reassurance is sought, I will not press amendment 104.

On amendment 106, after listening to the cabinet secretary, I am persuaded that amendment 135 covers what I was trying to do—I think that amendment 135 was lodged after I had already lodged amendment 106, hence the crossover. My intention with amendment 106 was to give the commissioner teeth, and I am persuaded by the cabinet secretary’s remarks that amendment 135 does that. Amendment 106 is therefore not required and I will not move it when asked to do so later.

The point about the unintended consequences that could arise if I pressed amendment 110 to a vote and if it were agreed to is interesting. None of us, whatever our persuasion, wants unintended consequences, and we are all working very hard to make the bill as good as it can be. Again, I find myself persuaded by the cabinet secretary’s course of action to avoid unintended consequences of any drafting and by the sensible suggestion that we always check what could happen with the Crown Office. I shall preserve my position on the matter and work with the cabinet secretary to ensure that the bill is as good as it can be. Therefore, I will not move amendment 110 when asked to do so.

Amendment 104, by agreement, withdrawn.

Amendments 105 and 13 not moved.

Section 12 agreed to.

Section 13—Reports on investigations

Amendment 14 not moved.

Section 13 agreed to.

Section 14—Power to gather information

Amendments 106 and 15 not moved.

Section 14 agreed to.

After section 14

Amendment 135 moved—[Angela Constance]—and agreed to.

Section 15—Offence of Commissioner disclosing confidential information

Amendments 107 and 16 not moved.

Section 15 agreed to.

Section 16—Annual Report

Amendment 136 moved—[Angela Constance]—and agreed to.

Amendments 108, 109 and 17 not moved.

Section 16, as amended, agreed to.

Section 17—Requirement to respond to annual report

Amendment 137 moved—[Angela Constance]—and agreed to.

Amendment 18 not moved.

Section 17, as amended, agreed to.

Section 18—Publication of responses to annual report

Amendment 19 not moved.

Section 18 agreed to.

Section 19—Reports

Amendments 138 and 139 moved—[Angela Constance]—and agreed to.

Amendment 20 not moved.

Section 19, as amended, agreed to.

Section 20—Protection from actions of defamation

Amendment 21 not moved.

Section 20 agreed to.

Section 21—Co-operation with Commissioner

Amendments 110 and 22 not moved.

Section 21 agreed to.

Section 22—Application of public authorities legislation

Amendments 111 and 23 not moved.

Section 22 agreed to.

Schedule 2—Application of public authorities legislation to the office of Victims and Witnesses Commissioner for Scotland

Amendments 112 to 116 and 24 not moved.

Schedule 2 agreed to.

Section 23—Interpretation of Part

Amendments 117 and 118 not moved.

Amendment 140 moved—[Angela Constance]—and agreed to.

Amendments 119 to 121 and 25 not moved.

Section 23, as amended, agreed to.

After section 23

Amendment 235 moved—[Sharon Dowey].

I have a small point, but it is based on the same line of questioning. As someone who is coming to this issue later than many of my colleagues, it has struck me that the stage 1 report raised concerns about creating the commissioner, suggesting that it would lead to extra bureaucracy, financial issues and opportunity costs. In your response to Sharon Dowey, cabinet secretary, you noted that there are voices in support—and, of course, there are—but this morning the committee received representations from Scottish Women’s Aid reiterating those exact concerns and saying:

“We maintain our opposition to the creation of this Commissioner”.

I believe that other colleagues have submitted amendments to remove the concept of the commissioner completely. Throughout this process, you have shown a commendable willingness to change position based on committee recommendations or representations from groups. How do you respond specifically to the stage 1 concerns and, perhaps more importantly at this stage, the Scottish Women’s Aid representations?

My final question is about juries. The committee’s stage 1 report included evidence from Professor Leverick, who expressed the view that, if we are to move to a system that is similar to those in other jurisdictions, we should consider whether a majority of eight out of 12 jurors—in other words, a two-thirds majority with a reduced jury size—is appropriate. There is a proposal to retain the jury size at 15. I am not aware of any other system that has 15 jurors, so Scotland is potentially an outlier already, but that makes sense if, as the cabinet secretary acknowledged, we have a balanced system involving the not proven verdict and corroboration.

In relation to moving to a two-verdict system, changes to corroboration, which the cabinet secretary mentioned, and closer alignment with other jurisdictions on majorities, what does the cabinet secretary say to those who say that it is better to move to a 12-juror system to ensure that the whole system is more closely aligned with those in other jurisdictions where things have been tried and tested?

Indeed.

As you rightly pointed out, some people would say that unanimity, near unanimity or a supermajority is the better way to go. However, it is not currently where you are. The argument would go that a supermajority, let us say, would align more with the other jurisdictions that you say that you are considering when making the reforms. However, if we say that the burden of proof is “beyond reasonable doubt”, some people might suggest that there is reasonable doubt with a two-thirds majority.

If that is right, why do you prefer a two-thirds majority? Do you reject outright the proposal for a supermajority or are you minded to consider the idea?

My questions are in the same area.

Cabinet secretary, in your letter from October, you suggested that, moving to having two verdicts—that is, removing not proven—would require a change to

“the majority required for conviction”,

in order to avoid miscarriages of justice. Notably—for something that I will ask about later—you also said:

“Scotland would be the only jurisdiction that considered the simple majority to be appropriate.”

You are proposing a two-thirds majority requirement for conviction. What is the evidential basis that led you to conclude that two thirds is the right and safe figure to ensure that there are no miscarriages of justice?

One operational challenge that the committee has heard about is that the current temporary provisions on time limits in solemn cases are scheduled to end in November this year, but the solemn court system is not on track to be able to cope with pre-Covid time limits by that time. You will have seen that the Scottish Courts and Tribunals Service suggested some solutions. What is your view of those solutions, and, in any event, what is the Government doing in response to those concerns?

I am grateful for that answer. To stick with the issue of definitions, you may have seen that, in a previous evidence session, it was suggested to the committee that the definitions in section 9 of “child” and “young person” are used a little loosely, interchangeably and insufficiently clearly. What is your view on that, having reflected on those evidence sessions? Is that something that you propose to tighten at stage 2 or that you would welcome the committee tightening?

Thank you.

Cabinet secretary, I wish to ask about virtual appearances from police custody. The committee has heard various concerns about the practical arrangements for such virtual appearances—regarding the ability of defence solicitors to consult clients, for example. You have obviously been through the evidence that we have heard. Do you recognise those concerns? Do you think that the solution is a legislative one or a practical one?