Seòmar agus comataidhean

I will pick up the point about research. There is always an argument for more research, and I am very open to that. However, without delving too deeply into a future group of amendments that we will, I hope, debate this morning, I point out that using mock juries is the only way in which to see the impact of varying jury size, jury majorities and the number of verdicts. That cannot be done with real juries. A real trial cannot be run 64 times with different jury sizes and different decision-making rules. There are advantages to using mock juries. For example, the jury’s deliberations can be recorded and analysed in a way that would not otherwise be possible just now.

I accept that different research gives us different dimensions and perspectives. I was struck by the comments from Professor Chalmers last year, when he said, rightly, that there is

“a danger in making changes without adequate research, but there is also a danger in believing that an ideal, perfect body of knowledge can be attained. There will always be a limit to what realistically can be known.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 25-26.]

At the end of the day, research does not make decisions for us, although it informs our decisions. Ultimately, therefore, we are all wrestling—as Ben Macpherson eloquently described it—with the weight of responsibility in and around making this decision.

I will reply briefly to Sharon Dowey’s points. She makes a radical proposition, and Mr Kerr was valiant in his defence of that course of action but, for me, after much consideration, the bottom line is that the threshold would be simply too high for fairness, in the context that we still have corroboration.

The requirement for corroboration, although the courts will refine it, is still with us. That refinement does not necessarily mean that we will see more convictions returned in such cases—I am thinking about the Lord Advocate’s successful references that colleagues have mentioned—as the jury still requires to be satisfied beyond reasonable doubt. The balance of proof is the same; that is an important point. However, it means that more cases are capable of being prosecuted and that the jury can rely on a greater range of evidence. Of course, the courts will continue to refine the application of those judgments; we will probably discuss that more in a wee while.

I come to my final point. I know that we are all guilty of quoting one voice when, at the end of the day, we are trying to come to a rounded and balanced view, but once again I quote Lord Matthews. He said:

“We thought that 10 out of 15 would be an appropriate majority for a verdict ... England, for example, requires unanimity at first, and then the judge can tell the jury that they will take a majority of 10 to two or whatever. We do not want to go down the route of having to explain to the jury, ‘You’ve got so long, and then I’ll tell you that you don’t need to be unanimous’.”

We do not have a history in Scotland of instructing juries to strive for unanimity. Finally, Lord Matthews said:

“we thought that a qualified majority is possibly the safest and best approach.”—[Official Report, Criminal Justice Committee, 31 January 2024; c 35-36, 38.]

I will leave my remarks there, convener

It has been evident in today’s discussion and debate that each and every one of us has been engaging and wrestling with the issue on an intellectual and emotional basis. At the end of the day, we will all have to come to conclusions based on our individual positions and perspectives and come to a collective voice that is informed by all voices.

I remind the committee that part 4 is one of the cornerstones of the bill and that it will make changes that apply to all cases in all courts. It is important to remember that.

I will say a few brief words about research without speaking at length. Overall, we have had the Scottish jury research and our own consultation. There has been substantial engagement with all those with an interest in the bill. I assure Liam Kerr that my officials have met the Law Society of Scotland regularly on the bill. I do my best to meet the many stakeholders in the world of justice, but there is always a limit to that, I am afraid.

International comparisons are also important, whether they are comparisons with our nearest friends and neighbours south of the border, with our European colleagues or with Australia, New Zealand or North America. We cannot cut and paste anybody else’s solutions. We need to look at the experience at home and elsewhere and apply what we learn to a Scottish context.

On the quantum of research, I know that we have spent a lot of time focusing on the Scottish jury research, but it is worth bearing in mind that the meta-analysis that was published last year considered studies involving almost 1,800 jurors and found statistically significant divergence in the verdicts that jurors delivered in a three-verdict system versus a two-verdict system. The odds of a jury convicting were 40 per cent lower in a three-verdict system. That points to the fact that, if we embark on the historic reform of removing the not proven verdict—I believe that the majority of us want to do that—we have to make decisions.

In the same way that the High Court sits the length and breadth of Scotland, the sexual offences court should sit the length and breadth of Scotland. I know that some people—certainly, some members—thought that the sexual offences court involved the construction of a stand-alone building in one city in Scotland. I contend that that would not be in the interests of complainers, bearing in mind that we want to see the administration of justice happen as locally as possible.

Although it is fair to narrate the importance of the investment that we have made, and continue to make, in court recovery, it is also fair—I will come on to this—to speak about using existing resources, whether those are financial, personnel or buildings, more efficiently. However, there is also the very legitimate question of how we support this financially, bearing in mind that, in the here and now, we are talking about the more effective and humane distribution of current business, notwithstanding that there is a projected increase in sexual offences cases—in fact, we have been dealing with an increase over the past decade or so—which necessitates different ways of working.

We all agree that reforms to the management of sexual offences cases are needed. Now is the time for us to make them. A stand-alone court is necessary to deliver improvements to the experience of complainers, and the specialist court is vital to enabling trials to be conducted in a manner that recognises the impact of trauma on complainers.

Specialism has shown itself to be an effective way of improving the management of sexual offences cases internationally. It is at the heart of sexual offence courts established in both New Zealand and South Africa, which have been credited with achieving significant improvements to the experience of complainers. We have specialism in other parts of the justice system—specialist police and specialist prosecutors—and a specialist court is a logical next step.

The effect of specialism manifests in two ways. First, it places cases in the hands of specially trained judges, whose effectiveness in presiding over such cases improves over time as they build their experience and develop better judicial case management. That delivers a number of benefits, including the swifter resolution of cases, as well as increased awareness of the needs of complainers and where intervention might be required to support them to give their best evidence.

Secondly, specialism also offers the opportunity to develop and implement bespoke processes and procedures at a national level that are specific to the management of sexual offences cases and that are purposely designed to improve the experience of complainers. I acknowledge that we have existing specialist courts for domestic abuse and drugs—problem-solving courts—but they are not universally used and there are many examples of inconsistent practice.

Thank you, convener. Widening the pool of people who are available for jury service will better represent society and recognise the contribution that those with sensory impairments have to make in all areas of public life, so I am pleased to support amendment 233.

As Ms Adams touched on, it takes forward recommendations made by a judge-led group in 2018. The Scottish Courts and Tribunals Service convened a working group in 2023 to consider some of those recommendations further, and it recommended that legislation should ensure that different forms of support could be rolled out to jurors in future.

Amendment 233 is consistent with that, allowing the court to decide what kind of communication supporter to appoint, depending on jurors’ needs and on what is operationally feasible. The flexibility also helps to ensure that the provisions are future proofed.

Scottish Government officials have engaged on the issue with stakeholders, including the British Deaf Association, Just Sign, freelance BSL interpreters and Deafblind Scotland, and they are all very supportive. The measure was introduced in England and Wales in 2022, since when 70 jurors in England and Wales have required to use BSL interpreters.

It is in all our interests to pave the way for as many people as possible to serve on juries. I therefore urge the committee to support amendment 233.

Before a trial begins, jurors have the option of either taking an oath, which is religious, or making an affirmation, which is non-religious, to try the accused and give a verdict according to the evidence.

At present, the wording prescribed in existing legislation means that jurors who choose to take the oath may do so collectively and without having to state their names, and jurors who choose to affirm must do so individually and name themselves in court. Amendment 154 will enable jurors who affirm to do so collectively and without having to declare their names in court. That would make the process for jurors making the affirmation consistent with the process for jurors taking the oath. The amendment would apply to all criminal juries.

The Criminal Courts Rules Council highlighted that inconsistency to us. The current wording means that affirmations are procedurally inefficient, and the Humanist Society Scotland has raised concerns that the differences in wording mean that jurors who choose to affirm are treated differently from those who take the oath.

Jurors should be able to expect to be treated with consistency and parity in front of the court, regardless of their religious or non-religious beliefs. The amendment will create that consistency for all jurors.

I move amendment 154, and urge the committee to support it.

Amendment 154 agreed to.

I will not repeat what I said at length earlier. In short, I remain of the view that the right thing to do is to abolish the not proven verdict and to implement the associated reforms. The amendments in my name are enabling. They seek to remove the legislative barrier to research, rather than specifically providing for the Scottish ministers to undertake research.

That said, we are committed to undertaking research. I have outlined our intentions in that regard in relation to pre-recorded evidence. We will certainly carefully consider commissioning further research, but I hope that the academic community will have considerable interest in carrying out research in the area, to which it would bring diverse perspectives and approaches.

Amendment 152 agreed to.

Amendment 153 moved—[Angela Constance]—and agreed to.

Amendments 62, 63, 75, 151 and 269 not moved.

Forgive me for intervening, but I should say, for clarity, that, although we have changed our position on the size of the jury, we have not at any point changed our position on the qualified majority that would be required. Our position has always been that there should be a two-thirds majority for a conviction.

This part of the bill would require a commencement order. I will correct the record if I get my dates wrong, but I am confident that, during stage 1, I provided the committee, either verbally or in writing, with indicative sequencing for the different parts of the bill coming into force. That was on the back of a debate about the pilot; it was in that context that I gave an indicative timetable.

The reforms to verdicts and jury majorities in part 4 are, in essence, stand-alone ones, and our thinking is that they could be made earlier in the overall implementation of the bill. I am not making any rash commitments to do a carte blanche U-turn on that sequencing, but we will reflect further on the matter, although I would be concerned about kicking decisions down the road.

Section 71(2) states:

“The other provisions of this Act come into force on such day as the Scottish Ministers may, by regulations, appoint”

and so on.

I have met with Lady Dorrian on a number of occasions, and she is the biggest advocate of a stand-alone sexual offences court. She certainly—as she narrated to the committee—had some different views with regard to how some of the bill’s provisions were drafted when it was introduced. The one that comes to mind was about how judges would be appointed to the sexual offences courts; we will come to that in discussing the amendments in group 24.

Principally, and crucially, the benefits of specialism can, in my view, be realised only by bringing together all cases of the same type, from both the High Court and the sheriff courts, in a single forum. That will foster the development of bespoke processes that are informed by best practice drawn from across the High Court and sheriff courts, and ensure that those processes are applied consistently to the benefit of all complainers in serious sexual offences cases across the country.

Another key reason why the court must be a distinct court with a national jurisdiction is to ensure that it has access to the combined resources of the High Court and sheriff courts. That will allow it to draw on a much wider pool of court and judicial resources and to use those flexibly in the scheduling of trials. That has the potential to reduce the length of time that it takes for cases to reach trial, which sexual offence complainers consistently tell us is one of the main challenges that they experience in their interactions with the court system.

Lady Dorrian, in evidence to the committee, stated:

“we felt quite strongly that simply creating another division of the High Court, for example, would not achieve the necessary end. What was needed was a court of full national jurisdiction”.

The ability to use the combined resources of the High Court and sheriff courts flexibly is crucial to creating a sustainable model for the management of these cases. Data from 2023-23, which is the most recent that we have available, shows that 1,966 people were proceeded against for a sexual offence in Scotland—a 29 per cent increase since 2013-14. That growth shows no sign of abating, and we must expect that the numbers of sexual offences cases that are heard in the courts will continue to rise. We must be prepared for that growth by putting in place a system that is capable of managing increased demand.

I remain committed, therefore, to establishing a sexual offences court and will continue to persuade people to back it. I have listened to members’ views on aspects of the court and lodged a number of amendments, to be discussed in later groups, to address the issues that are raised by those concerns.

I turn to the specifics of Pauline McNeill’s amendments 76, 155 and 156. The idea of establishing specialist divisions of existing courts in place of a stand-alone court was carefully considered in some detail by the Lady Dorrian review group and the specialist sexual offences courts working group, and roundly rejected by both of them. While both groups identified several reasons for rejecting the idea of specialist divisions, their concerns can be distilled down to the fact that it would represent little more than a continuation of the piecemeal change that has been characteristic of the past 40 years, and it is therefore incapable of delivering reforms that are commensurate with the scale of change that is needed in the management of sexual offences cases.

Another key challenge with Pauline McNeill’s suggested approach is that it would require the courts to establish not one division but seven separate divisions: one for the High Court and separate divisions for all six sheriffdoms. That would inevitably create a significant, yet totally unnecessary, additional layer of complexity and bureaucracy. It is also of note that the courts already have the power to establish specialist divisions should they wish to do so.

Pauline McNeill’s amendments in this group, therefore, fall well short of the scale of change that is needed to reform the management of sexual offences cases, and I urge the committee to reject them.

I urge the committee to also reject Russell Findlay’s amendments, proposed by Ms Dowey, which would remove the proposed sexual offences court from the bill.

However, I will support amendment 47 for technical reasons. That is because it provides the foundation for amendments in my name that will be debated in group 27. Those amendments seek to ensure that there is alignment in the implementation of the presumption in favour of pre-recorded evidence across the High Court and the sexual offences court. I would have lodged a similar amendment, but amendment 47 was lodged first.

The evidence that the committee heard, including from many victims of sexual offences who made passionate pleas for reform, means that no one should be supporting Mr Findlay’s amendments, which seek to make no change to the way that we manage sexual offences in our courts.

I will end by reiterating the warning that Lady Dorrian gave members of the committee at stage 1, when she said:

“if we do not seize the opportunity to create the culture change from the ground up ... there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.”—[Official Report, Criminal Justice Committee, 10 January 2024; c 4, 22-23.]

Let us end the conversation and take action.