Seòmar agus comataidhean

In the light of the removal of the pilot of juryless trials from part 6 of the bill, our approach will be twofold. Preparatory work is under way on setting up a working group to pursue a package of non-legislative actions. In relation to the bill, we intend to amend section 8 of the Contempt of Court Act 1981 to allow research into real jury deliberations with appropriate safeguards, which will be important and pave the way for the gathering of more valuable insights that are not possible under the current legislative framework.

Of course.

We have borne in mind the issues that the committee raised at stage 1 on rights of audience and have given careful consideration to the committee’s recommendations. We will lodge stage 2 amendments to address those concerns. We have been quite explicit about the reasons for doing that.

There are three routes to counsel in the sexual offences court. I am happy to answer any questions about that, but I know that members have been briefed on it.

On who prosecutes, I am quite sure that, as it stands right now, that is a matter for the Lord Advocate. I have not brought forward any propositions to change that, as you would expect.

No, it is absolutely not. One of the biggest pieces of jury research that was undertaken in the United Kingdom looked specifically at Scotland and involved 900-odd participants. It was carried out over two years, and Lord Bonomy was involved as the presiding judge in the mock trials that were part of it. We also have the meta-analysis, which was shared with the committee further to one of my appearances. There is lots of data to show the consequences of having three verdicts rather than two.

It might be helpful if I remind the committee that the purpose of part 4 is to modernise the system. The jury-and-verdict system is not engineered to increase convictions—or, that is, increase convictions in particular offences. It has to be absolutely fair to all parties: victims and complainers, and the accused. That is the balance that we have to strike.

Therefore, my position, and the position of the Government, is that we need to look very closely, as we have done, at the evidence that we have, comparing our unique Scottish system with other, two-verdict systems, and make decisions on that basis. The abolition of not proven necessitates—in my view, and, I believe, in the view of the majority of stakeholders—a change in the majority itself, notwithstanding the debate about what the qualified majority should be. I imagine that that debate will continue through stages 2 and 3.

I do not have any plans for sunset clauses, but I would suggest that, in general terms, the committee has always been very focused on ensuring that the right reporting mechanisms are built into primary legislation. I am also very conscious of the comments of Elish Angiolini, who, when she gave evidence way back at the start of this process, talked about how the law is not static and how it constantly evolves. Indeed, you see that with High Court judgments on points of law and the outcomes of references made to that court. The law does not stand still. However, as far as this primary legislation is concerned, we have enough evidence for us to come to the decision that, in my view and in the view of other stakeholders, this is a credible and fair move that will give, and maintain, confidence in our system.

I will just add that the consultation responses, which I know were published a long time ago, came from a range of individuals, victims organisations, legal representatives and so on and more than 50 per cent accepted that, if we moved from three verdicts to two, we would need to move to a qualified majority. As for what that qualified majority should look like, the majority—not everybody, but the majority—pitched two thirds.

There are a number of layers to my concern about a supermajority. When we consulted on the bill—I appreciate that that was some time ago—there was low support for near unanimity in a reformed system. It was something like 13 per cent. It also feels disproportionate to go from a system that requires a little bit more than 50 per cent to convict to one that, in the context of a majority of 13 out of 15, would require 87 per cent.

The standard of proof is the standard of proof—there are no changes to that. It is worth bearing in mind that juries in Scotland are not told to strive for unanimity. The process is considered to involve an aggregate of individual votes as opposed to being a collective endeavour.

Another difference between Scotland and other systems with two verdicts is that Scotland does not have hung juries or retrials. Such options, should we proceed with reform to a two-verdict system, were not popular in our consultations. In short—forgive me, convener—in relation to near unanimity, there are still some differences in the Scottish system. Corroboration still exists, and there are no retrials in our system.

I understand that argument. All that I was trying to portray is that, in the context of a sexual offences court, where, on the same indictment, there is a murder and sexual offences, there would still be the opportunity for that to go to the High Court or the sexual offences court.

Of course, the sexual offences court has unlimited sentencing power, so it can sentence people for up to life and make an order for lifelong restriction and all of that. I understand the point that is being made. What I am wrestling with is the experience of victims and complainers. Right now, we know that the system overall is not doing enough to support people to give their best evidence. I contend that that relates to issues of the fairness of justice. The whole raison d’être of the sexual offences court is to improve the efficiency of the process and procedures to deliver quicker decision making and improved judicial case management so that cases can be dealt with more quickly.

The evidence from elsewhere in the world shows that specialism assists with that. However, embedding specialism will improve the experience of everybody in the court. If we are concerned about the experience of victims and complainers in the court process, there is an issue with having a sexual offences court that has embedded specialism and then also having a cohort of victims and complainers who have to go to the High Court. I think that the issue involves quite a fine judgment, but that is why I have not brought forward an amendment at stage 2. However, I know that it is a live issue.

I think that we should carry on. A pause is not my position—my position remains the same.

Yes, because this is about balance. I understand the appropriateness of scrutiny, and I am utterly sympathetic to the voices of those who represent, advocate for and support victims of sexual violence and who have concerns about how the system protects those victims and complainers. However, at the end of the day, my concern is that, if we maintain a simple majority in the context of two verdicts, as articulated by the senators and others, we will see an increase in miscarriages of justice. That is an issue not just for the accused across all alleged crimes but for victims.