Seòmar agus comataidhean

I will not repeat in its entirety what I said to Ms Mackay earlier, but I will briefly reiterate that I am not going to pursue the amendment that I intended to lodge to extend the definition of who is deemed vulnerable, given the strong views and representations that have been made by violence against women and girls organisations. I will have further engagement with Scottish Women’s Aid and other organisations on the amendment that I still intend to lodge, which will allow persons who apply for a civil protection order against domestic abuse or for damages following a sexual assault to be deemed to be vulnerable. However, I have heard the representations that say that that does not go far enough and that it is still piecemeal. We will engage and have a further look at that.

My letter in October spoke to other amendments. I mentioned that we plan to lodge an amendment on what the courts should do when a person is deemed vulnerable. The aim would be to provide that, when a person is deemed vulnerable, special measures must be applied at the person’s option, so that there would be no discretion for the court. On reflection, I have some concerns that that might remove the ability of a judge or sheriff to take decisions based on the particular circumstances of an individual case. In addition, removing that discretion might raise concerns about the right to a fair hearing. That is a particularly complex area.

In broad terms, I very much want to turn up the dial. The whole purpose of section 3 is to recognise that people feel far less protected in civil courts than in criminal courts. However, there are some challenges in getting direct alignment, because the systems are, of course, different. As I said earlier, getting into the terrain of removing the court’s discretion in all cases can get us into difficulties, but I am willing to explore what more we can do in that area.

I am cognisant of that point, and I am pleased that the committee has championed the issue. I have met victims who have benefited greatly from having access to information that is essentially about them, their person and their being and I know how important that has been to their recovery, and to other matters such as making complaints or pursuing justice for the treatment that victims have received.

I was pleased to extend the pilot, which was done in recognition of the volume of cases. We want to be able to get through all the cases in the pilot so that it can be properly evaluated. I am not in a position to answer any questions about scope, but I am sure that all members, as is their right, will test the scope of the legislation by lodging amendments on this and, no doubt, other topics.

I, of course, support the pilot and am sympathetic to it. However, I want to check operability, so I want to liaise closely with the Scottish Courts and Tribunals Service about any potential amendment that might be lodged.

Cost is, of course, a particular issue but there is also an issue with technology. Part of the reason for extending the pilot was to see what other technology could be applied that would be more effective and efficient. I have an open mind, notwithstanding the fact that there are always things in stage 2 and stage 3 that give us the opportunity to bottom out details or be sighted on any unintended consequences.

With regard to my position, and the Government’s position, on the abolition of the not proven verdict, I am, in essence, making a case for its abolition for reasons with which we are all well acquainted. Jurors do not understand it, and it is seen as the compromise, or cop-out, verdict. It leaves a lingering stigma on the accused, and the committee will have heard a lot of evidence that victims find it traumatic. In that sense, I am actually arguing that, with the abolition of the not proven verdict and moving from three verdicts to two, Scotland would become less unique in that regard.

The reality is, however, that there are other parts of our system that remain unique. Parliament will come to a view on whether the jury size should be 15 or 12. I do not have an ideological position on that. I have stated the reasons why I have shown some flexibility in response to the committee’s stage 1 report but, ultimately, Parliament will come to a view on that.

Even if we move from three verdicts to two, there are other parts of the system that would remain particular and unique to Scotland. Corroboration is one of those—it still exists. It has been refined and, just as many aspects of the law evolve and change over time, it is evolving in the light of various judgments. Nonetheless, we need to be clear that corroboration remains with us, and it is a part of our system that is unique in comparison with others.

The other part of our system that is different is that many other two-verdict systems have unanimity or near unanimity, and some of those also have hung juries and retrials. There are still differences in our system that have to be accommodated, and that has to influence our thinking with regard to the decision that we make on the jury majority.

I remain of the view that, when we compare that with what a reformed system in Scotland would look like and look at the Scottish research and meta-analysis, we see that a two-thirds majority is the most balanced and proportionate position.

You will know that as well as I do, given that the committee has taken evidence on this.

I am more than happy to do that, and I understand and respect Ms McNeill’s position. My position remains that continuing to try to make piecemeal reforms will not be quick or fundamental enough. That is based on the experience in New Zealand, in the state of Victoria in Australia and in South Africa, from which we have learned that, if you want consistency, a national approach is required.

There are significant benefits to embedding specialism in the courts, not only in relation to having the experience that is needed to support victims and complainers to give their best evidence, but in terms of efficiency, because there is a growing demand on the High Court from rape and attempted rape cases.

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.

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.

Good morning, and thank you, convener.

I wrote to the committee last autumn to update members on my approach to stage 2 of the bill. I remind members of the significance of the proposed legislation. You have all heard compelling evidence that the justice system does not provide a satisfactory experience for many victims and witnesses; for many, it can be actively harmful, particularly for those who have experienced sexual crimes.

Incremental changes over the years have delivered improvements, and I am grateful to all who have worked to drive such change. However, as the committee has heard from the Lord Advocate and Lady Dorrian, the former Lord Justice Clerk, the dial has not shifted enough and the scale of reform that is needed cannot be delivered through existing structures and processes.

The bill sets out a package of reforms that have the potential, if agreed to, to transform the operation of the justice system to the benefit of victims, particularly women, while protecting the rights of the accused. I am heartened that there is significant support for much of the bill. I am, of course, disappointed—although I accept—that that does not extend to the full package of measures that are included in the bill as introduced.

As I hope that my letter makes clear, I want to work across the chamber and reform by consensus. I have set out key areas in which the bill will be amended in response to the committee’s stage 1 report. The most significant of those is the pilot of single-judge rape trials, which I have confirmed that I will no longer pursue. Although that is regrettable, I have to recognise that there is insufficient cross-party support for that.

However, I do not accept that the long-standing issue of access to justice for rape victims has somehow disappeared. The low conviction rates for that type of crime are a stark symptom of a system that does not operate effectively for some of the most serious and gendered crimes. Therefore, I will lodge amendments at stage 2 to remove the barriers to conducting research on jury deliberations, to help us to better understand the impact of rape myths on decision making.

I will also lodge a significant package of amendments to address matters relating to the creation of a sexual offences court. The amendments have been developed in collaboration with justice stakeholders and include changes to address concerns about the legal representation that accused prosecuted are entitled to in court. Amendments will be lodged on appointment and removal of judges to the court and on enhancing choice for complainers in how they give their evidence. I am confident that the amendments will address concerns about the model of the court that were raised by the committee at stage 1.

The former Lord Justice Clerk, the Lord Advocate, the senators of the College of Justice and the Scottish Courts and Tribunals Service, as well as victims, have told the committee that a stand-alone court is necessary to improve the experience of sexual offence complainers. They have made it clear that tinkering around the edges will simply be insufficient. Therefore, I urge committee members to grasp the nettle and embrace wholesale reform to the management of sexual offence cases by supporting the creation of a stand-alone court.

I am pleased that there is cross-party support for the removal of the archaic not proven verdict. You have heard much evidence on the need for consequential changes to the jury system: some from people arguing that we should retain a simple majority, some from those favouring a qualified majority and some from people who would like to move to a supermajority or unanimity. The evidence that we have supports the view that moving to two verdicts could lead to an increase in convictions for all crimes. My assessment is that we cannot abolish not proven in isolation without impacting the balance of fairness in our system. Stand-alone reform would risk miscarriages of justice; equally, setting too high a threshold for conviction would mean that we fail to hold perpetrators to account. To maintain the integrity of our criminal justice system and confidence in that system, the most prudent approach is a model with two verdicts, 15 jurors and a two-thirds majority requirement for a conviction.

Thank you, convener. I look forward to working with the committee over the coming several weeks as we navigate our way through to stage 2.

I recognise and endorse the good work that the SCTS has led in tackling the backlog. The backlog has reduced by 52 per cent and, in fact, the Covid backlog is almost away. However, it is fair to talk about the increasing business for prosecutors and, therefore, the court system. I recognise that demand on solemn court capacity will increase.

I have been to the committee twice now to extend the temporary measures. We have always had a robust debate and there has been some reticence among members of the committee every time that I have come to extend those time limits. I have been clear, and the legislation has always been clear, that the remaining solemn time limits were going to come to an end.

Although there is scope to extend time limits on a case-by-case basis, and that has existed for a long time, I do not want court recovery to be jeopardised and I do not want our court system to be wrapped up in procedural hearings, as opposed to getting on with the business of trials. We are therefore looking closely at the notion of a savings provision, which was one of the suggestions. That would require a statutory instrument and, therefore, the approval or otherwise of the committee. It would ensure that the current temporary time limits would apply to cases that are already in the system prior to 1 December 2025. For new cases that come into the system after 30 November 2025, the pre-pandemic time limits would apply.

To me, that speaks of an orderly process of transition. I want to explore that possibility further with partners, but the view of committee members is also important in that regard.

I will address the national jurisdiction point first and then, if it will be useful to the member, Louise Miller can expand on any points of detail.

Perhaps I can distinguish, first of all, between summary and solemn cases. I am talking about national jurisdiction here, which, of course, can be either in person or virtual. Sometimes we assume that national jurisdiction equates to virtual custody cases, but it can happen in person, too. In summary cases, national jurisdiction applies to appearances from custody but ceases after the accused pleads not guilty. If the accused pleads not guilty, the case has to go on to further proceedings and to trial, so it is very clear when national jurisdiction stops.

There is also clarity on when national jurisdiction ceases in solemn cases. In such cases, it ceases after the accused is fully committed, so it is only used for appearances in relation to questions of bail, not broader appearances with regard to first diets or trial court.