Seòmar agus comataidhean

Good morning. I acknowledge that members have taken significant time and great care to scrutinise the evidence and consider their positions on part 4 of the bill, and I will take some time to set out my position on the amendments in the group.

We all want to ensure that, in embarking on reform to abolish the not proven verdict, we do so in a way that protects the integrity of our criminal justice system and its effectiveness in delivering justice. I am well aware that, when reforming fundamental aspects of our system, we want to do so in a way that is considered and with as much consensus as possible. It is our role, as parliamentarians, to face the challenges in ensuring that our justice system is fair and can command confidence. We must diligently and carefully consider the evidence, the complexities and the interests involved. That is how we have all approached the matter to date, and I am sure that we will continue in that vein this morning.

I turn to amendments 146 to 150, in my name. Independent research suggests that reducing the jury size from 15 to 12 would improve the process of jury deliberations, so the bill sought to introduce that change. However, the committee’s stage 1 report expressed reservations about such a change, and I note that Ms McNeill lodged an amendment some time ago that would keep the jury size as it is. I am satisfied that the abolition of the not proven verdict does not require an associated change to jury size. Therefore, I confirmed in my letter to the committee in October that, to build consensus on the issue, I would lodge an amendment to retain a jury size of 15. Amendment 146 does that.

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.

It goes without saying that I am very aware of the Lord Advocate’s position on the issue, which she outlined to the committee. However, I must also be mindful of a range of voices on that matter. The Lord Advocate is one voice—albeit a very important one—and I appreciate that members and other stakeholders support her in her view.

When I survey all the evidence and views on the matter, it is clear to me that the majority of stakeholders align with the Government’s position. As Lord Matthews said, the not proven verdict is a counterbalance to the simple majority—they are interconnected—so if you remove the not proven verdict and go from a three-verdict to a two-verdict system, you must address some of the issues and dangers with having a simple majority requirement.

It is the Government’s considered position that we must move to a two-thirds majority, notwithstanding our respect for, and the consideration that we gave to, the Lord Advocate’s position.

I urge members to support my amendments and I ask Ms McNeill not to move amendments 72, 73 and 74.

Amendment 92, in the name of Ms Dowey, seeks to introduce a requirement for unanimity or near unanimity. My view is that that would be too high a threshold to deliver fairness for all. The committee has heard evidence from witnesses, including the Lord Advocate and victim support organisations, that makes clear how deeply concerned they are that such a system would not effectively hold perpetrators to account and deliver justice for victims.

It is important to recognise that Scotland has additional safeguards that other jurisdictions with two verdicts do not have, such as corroboration. The Lord Advocate’s recent letter to the committee made it clear that the outcome of her recent references did not remove the requirement for corroboration and that prosecutors continue to have to satisfy the court of proof beyond reasonable doubt by corroborated evidence. That requirement is not placed on prosecutors in other jurisdictions. That is why the bill would require that two thirds of the jury are in favour of a conviction, rather than moving to unanimity or near unanimity. I believe that that is a proportionate and balanced approach that is mindful of the unique nature of the Scottish system.

Only 13 per cent of respondents to our consultation supported requiring a qualified majority of 10 out of 12 jurors for conviction, which is what Ms Dowey is proposing. Further, because amendment 92 would require the threshold to be met for both guilty and not guilty verdicts, it would introduce hung juries, where juries cannot agree a verdict, into the Scottish system. Although the amendment does not explicitly set out what should happen in that situation, it is likely that it would introduce the possibility of retrials. That would be a significant departure from key safeguards in Scots law in relation to the presumption of innocence, the finality of verdicts and the rule against double jeopardy.

The suggestion was included in our consultation and was significantly unpopular, with twice as many opposed to it as in support of it. In their consultation response, the senators said:

“In our view, if the required majority is not reached for a guilty verdict the jury should be considered to have returned a verdict of acquittal. The onus of proof is on the Crown to prove guilt and if the Crown cannot persuade the requisite majority of the jurors of proof beyond reasonable doubt then acquittal is the appropriate verdict.”

Finally, Pauline McNeill’s new amendment 268 would require ministers to

“conduct a review of jury size and ... majority”

in the event that a court

“delivers a judgement which changes the law relating to corroboration in Scotland”.

I cannot support the amendment for a number of reasons. I will set out my concerns before reflecting on them in more detail. The amendment is unclear on the threshold that would trigger a review, how the review would be conducted or who would be consulted. The courts will inevitably continue to refine and evolve their understanding of corroboration as is consistent with their role, and the law does not remain static.

We will, of course, hear from Ms McNeill on the intention behind her amendment, but I am sure that it will be to ensure that the Parliament is responsive to significant changes to the operation of the corroboration rule by the courts. I do not, however, think that requiring a statutory review following what might be a subjective assessment of the impact of a court decision is the right way forward, and we must be mindful that that could establish precedent for how the Parliament responds to the decisions of our independent courts. Ministers must not interfere with the independence of judicial decision making, and requiring a statutory review of the impact of specific decisions would risk a perception that they sought to do just that. However, I acknowledge what I think is Ms McNeill’s underlying concern and her desire to ensure that there is still parliamentary scrutiny and consideration of the matters that we have been debating in recent months.

When we get to the final group of amendments, we will debate amendment 169, which would require ministers to review the operation of the bill. That will provide an opportunity to look in the round at the issues that Ms McNeill has identified. I would be happy to work with Ms McNeill to develop an amendment for stage 3 that ensures that any review includes appropriate consideration of developments of the requirement relating to corroboration. I therefore ask Ms McNeill not to move her amendment, but, if she does, I ask the committee to oppose it.

I move amendment 146.

I begin by reflecting on the evidence that the committee heard at stage 1. I list just some of those who told the committee that they supported the proposal to establish a stand-alone sexual offences court: Lady Dorrian; the Lord Advocate; Lord Matthews; sheriff, now Lord, Cubie; the chief executive of the Scottish Courts and Tribunals Service; the chief executives of Rape Crisis Scotland, Victim Support Scotland and Scottish Women’s Aid; and a number of victims of sexual offences. The persistent theme of the evidence was the experience of the current courts—whether the current High Court or the current sheriff court—and the witnesses’ articulation of how those courts and their processes were failing.

Although the witnesses all painted a picture of the challenges that complainers experience in their interactions with the court system, they also offered hope that a new stand-alone court could transform that experience.

Given the overwhelming support for establishing a stand-alone sexual offences court, which was a clear feature of the evidence heard by this committee at stage 1, and the cumulative knowledge and experience of those who provided that evidence, I cannot support the amendments that seek to change that or remove the court from the bill entirely.

Remorse and empathy are there, but in the context of everything else in order to enable a rounder and more holistic view of risk.

Moving to amendment 260, I am very aware of the deep hurt that the issue that it addresses can cause to a victim’s family and friends. It should be noted that failure to disclose the location of a body can already be prosecuted as a criminal offence in itself—that of attempting to defeat the ends of justice—and the court can and will take into account an offender’s refusal to disclose the location of a victim’s remains when sentencing. I am aware that it is, of course, one of the many issues that Mr Greene consulted on in his proposal for a victims bill.

I also remember very well the debate that Mr Greene and I had at stage 3 of the Bail and Release from Custody (Scotland) Bill—now the Bail and Release from Custody (Scotland) Act 2023. At that time, I raised a number of legal issues with his proposition. It was a much more sweeping amendment that certainly would have caused great anxiety, for example in relation to ECHR. I have given considerable thought to the issue since that debate—in which, if I recall correctly, I said to Mr Greene that my door was open on these matters.

I should add that the Parole Board already takes such matters into account when considering release. The Parole Board (Scotland) Rules were amended in April 2022 to make it clear that, where applicable, the board may take into account failure to reveal the location of a victim’s remains when making its decision. In cases in which such circumstances arise, it is clear that the board has scope to reflect that concern in its considerations.

However, I have no issue with amendment 260, which would require the Parole Board, when considering the release of a prisoner sentenced for murder or culpable homicide, to take account of whether the prisoner has information about the disposal of the victim’s remains but has not disclosed it. I am happy to support amendment 260. At stage 3, we might propose some tweaks to the drafting, which might be needed to ensure a good fit with other stage 3 amendments—particularly the other amendments in this group, on which we propose to work with Mr Greene before stage 3. Some minor changes might be needed, but I am happy to support amendment 260 for now.

I cannot, however, support Mr Greene’s amendment 261, which addresses a similar issue. It requires that, when a prisoner serving a sentence for murder or culpable homicide is considered for temporary release and

“the governor has reasonable grounds to believe that the prisoner has information about ... the victim’s remains”

but has not disclosed it, the governor must take the issue into account when making the decision whether to grant temporary release.

A grant of temporary release is made only after careful consideration, and any failure to comply with the conditions of release can result in recall to custody. The term “temporary release” can cover a broad range of activities, from escorted day release to periods of home leave where appropriate; it can also be used when prisoners are escorted to attend appointments for medical treatment or events such as a funeral of a close family member.

Again, I appreciate that, when a victim’s family is left without the knowledge that they seek, such circumstances might be difficult to accept. However, the operation of temporary release is an essential part of the process by which the Scottish Prison Service can assess the individual’s readiness for eventual release, and it provides robust evidence on which the Parole Board can base its decisions.

The Scottish Prison Service conducts a case-by-case assessment before each grant of temporary release, including consideration of the risk that the prisoner might pose a danger or cause harm to the public. Any grant of temporary release is made under detailed licence conditions, which can be adjusted to reflect the particular circumstances in each case.

In addition, the Scottish ministers’ directions on the application of prison rules with regard to the use of temporary release require that

“the Governor must consider the views of ... victims”

when deciding whether to grant temporary release,

“where their views are made known”

to them. That can be accommodated through the work of the victim notification scheme and, when the victim’s family is registered with the VNS, they will have the opportunity to make representations to the SPS before a prisoner is permitted temporary release for the first time.

Given that a broad assessment is made before any use of temporary release, and that victims already have scope to express their concerns about the possibility of temporary release being granted, it is not necessary to add the specific measures that are proposed in amendment 261. In light of that, I cannot support the amendment and urge the committee to oppose it.

I will start with my amendments 141 to 144. The bill deems a person to be vulnerable in a civil case if they have a civil protection order against another party to the case. Amendment 141 adds lawburrows to the list of relevant orders. That is an order that can be made to protect against violence by a particular person. The amendment makes it clear that interim remedies and measures are included. It is, for example, common for a person to obtain an interim interdict.

In addition, amendment 141 provides that a person is to be deemed to be vulnerable if they are applying for a civil protection order or have brought an action for damages following sexual abuse, harassment or assault.

Amendment 143 will amend section 15 of the Vulnerable Witnesses (Scotland) Act 2004, which makes provision on vulnerable witnesses and on taking into account the views of a vulnerable child witness in relation to special measures. As it stands, section 15 includes a presumption that a child aged 12 or older is of sufficient age and maturity to form a view. The amendment will replace that presumption with a new one, which is that the child is able to express their views

“unless the contrary is shown”.

Amendment 142 is a related technical amendment.

Amendment 144 will amend section 33 of the bill, which makes provision on special measures in non-evidential hearings. It relates to when a party to the case has not been deemed to be vulnerable but the court considers that the party might nevertheless benefit from special measures. The amendment will provide that, when making an order in those circumstances, the court must take into account the party’s views and, if the party is a child, the views of the child’s parent. It will also provide that the court must

“have regard to the best interests of the party”.

On Liam Kerr’s amendments, I am pleased to be able to support amendments 122, 124 and 126 to 128, but I cannot support amendments 123 and 125.

I do not want to speak for Mr Kerr on his amendments, but I note that, in 2021, the Scottish Government consulted on the planned register of solicitors that was provided for under the Children (Scotland) Act 2020 for certain family proceedings. The bill will extend the 2020 act’s provisions to civil cases more generally.

I am happy that amendments 122 and 124 would require the Scottish ministers to set in regulations the level of remuneration for solicitors on the register, as opposed to the current position whereby that is optional.

I support amendments 126 and 127, which would require the Scottish ministers to

“prepare and publish a report on the consultation”

that we need to have with the Faculty of Advocates and the Law Society of Scotland before making regulations on the register. I also support amendment 128, which sets out some details on what the report should cover.

However, I cannot support amendments 123 and 125, as they would not be workable. Amendment 123 would require that the Scottish ministers must

“confer the duty of maintaining the register on a person”,

as opposed to that being an option in the bill. At the moment, our intention is that the duty to maintain the register will remain with the Scottish ministers, with the day-to-day administration to be carried out by a contractor. It would therefore not be appropriate for there to be a requirement to confer the duty of maintaining the register on another person. The Scottish Legal Aid Board and the Scottish Courts and Tribunals Service have both told us they do not want that duty, and I do not want to confer—or perhaps foist—the duty on a body that does not want it, so it is better to proceed as we have proposed.

I therefore ask the committee to oppose amendments 123 and 125 if they are moved and to support the remaining amendments in the group.

I move amendment 141.

I have nothing further to add, convener.

Amendment 141 agreed to.

Section 30, as amended, agreed to.

Section 31 agreed to.

Section 32—Register of solicitors for section 22B of the Vulnerable Witnesses (Scotland) Act 2004

Amendment 122 moved—[Liam Kerr]—and agreed to.

Amendments 123 not moved.

Amendment 124 moved—[Liam Kerr]—and agreed to.

Amendment 125 not moved.

Amendments 126 to 128 moved—[Liam Kerr]—and agreed to.

Section 32, as amended, agreed to.

Section 33—Vulnerable parties

Amendments 142 to 144 moved—[Angela Constance]—and agreed to.

Section 33, as amended, agreed to.

After section 33

I will start with amendment 89, in the name of Sharon Dowey. At stage 1, the committee heard very moving testimony from victims and survivors on their experiences of the criminal justice system, sharing that they felt that they did not have enough choice in how they gave their evidence. However, although I totally support the principle of addressing those concerns, I cannot support the amendment, due to its approach and the impact of how it would work in practice within the existing complex legislative framework that provides for special measures.

The amendment would give all deemed vulnerable witnesses across summary and solemn courts an entitlement to non-standard special measures. Such a significant change would create significant extra costs, have huge implications for resourcing and, crucially, strip the courts of an important function in balancing rights.

I can illustrate that with an example of non-standard special measures. Evidence by commissioner allows a witness to pre-record their evidence in advance of a trial in a more trauma-informed environment. Work is already under way through existing legislation to carefully manage the roll-out of access to pre-recorded evidence, partly to avoid overwhelming the system but also to ensure that we are appropriately prioritising pre-recorded evidence for children in the most serious cases, and amendment 89 would massively disrupt that work and place significant additional demands on the criminal justice system.

The amendment would also remove the ability of courts, when considering special measures, to balance the rights of all parties and ensure fairness for the accused, in accordance with article 6 of the European convention on human rights. In addition, the amendment places an obligation on a party citing a vulnerable witness to provide them with unspecified information about special measures. As most vulnerable witnesses are cited by the Crown Office and Procurator Fiscal Service, they already have a number of existing rights to information, including in relation to special measures, and I do not think that another statutory obligation is necessary or meaningful.

The amendment also puts the same obligation on courts, requiring them to provide vulnerable witnesses with information after a vulnerable witness notice or application has been lodged. However, courts do not routinely have contact with witnesses at that stage, so, again, the amendment would be potentially far reaching, resource intensive and significant, causing duplication, inefficiencies and delay across cases.

The amendment also duplicates existing obligations to seek the views of vulnerable witnesses on special measures. The party citing a vulnerable witness is already under an obligation to seek the views of a witness on what special measure or measures they would like to use when giving evidence.

For those reasons, I do not support amendment 89, but I understand what the member is trying to achieve, and I hope that she, and the rest of the committee, will be reassured by and supportive of the amendments in my name in group 27, which address the committee’s view in the stage 1 report that the way in which the bill provides for pre-recorded evidence in the sexual offences court fails to recognise the importance of choice for complainers. My amendments will provide more control to complainers in a targeted manner by removing the discretion of the court to require them to use pre-recorded evidence where that is not what they want. I believe that that is the right way of addressing the concerns that were raised at stage 1, which were not about a perceived lack of entitlement to special measures but about making sure that, where a complainer has such an entitlement, they are not required to use those measures, if that is not what they want to do.

My amendment 216 creates a new non-standard special measure of admitting the record of a prior examination as a vulnerable witness’s entire evidence. Currently, although some witnesses can pre-record their evidence ahead of trial, that evidence cannot be reused as that witness’s whole evidence in any subsequent separate criminal proceedings. An example of that would be when a complainer, having given evidence in one trial, was subsequently cited to give evidence against the same accused in another trial, where that evidence was being led, under the Moorov doctrine, to establish corroboration and a sufficiency of evidence for other offending.

Currently, previous recorded evidence can constitute the witness’s evidence in chief under the special measure of admitting a prior statement as the evidence in chief of the witness, but that would mean that the witness would remain subject to fresh cross-examination. Amendment 216 therefore allows for previously recorded evidence to be reused at a future separate criminal trial. That recorded evidence should be taken as the witness’s entire evidence, so that the witness does not necessarily have to be cross-examined again about their experience.

However, it is still important for the rights of the accused and for the interests of justice that an accused person can apply for the witness to be questioned further about their evidence. That questioning can be granted by the court in certain circumstances: where there are questions relevant to the proceedings that were not previously put to the witness and could not reasonably have been expected to have been put to them in their prior examination; where refusing the further questioning would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice; and where that risk would significantly outweigh any risk of prejudice to the interests of the witness if the further questioning is allowed.

Any additional cross-examination must take place at an evidence by commissioner hearing, which is a form of pre-recording of evidence that is held in a less formal environment, with the benefit of a more focused questioning, unless the court considers that an exception to that is justified in the individual case. That will ensure that the accused’s right to a fair trial is protected, while minimising the risk of retraumatisation to the witness.

Turning to my amendment 217, the Criminal Procedure (Scotland) Act 1995 provides that in situations where a presumption in favour of pre-recording of evidence applies, the court can permit a child aged 12 or over and under 18 to give evidence at their trial, rather than pre-recording it, if the child expresses a desire to do so, and if the court considers that that would be in the best interests of a child witness.

Amendment 217 would permit the court to also do that for children aged under 12, in order to further implement children’s rights under article 12 of the United Nations Convention on the Rights of the Child. Article 12 of the UNCRC requirements puts an obligation on public authorities to give all children aged under 18 the right to express their opinions on matters that affect them, and for their views to be given due weight in line with their age and maturity. If the court is unable to grant an exception for children under the age of 12 based on their wish to give evidence at a trial, it is unable to give due weight to those children’s views.

Permitting the court to grant an exception for a child under 12 does not mean that the court will be required to grant an exception, even if a child expresses a preference to give his or her evidence live. The court will still need to consider whether giving evidence would be in the child’s best interests, in line with the 1995 act and with article 3 of the UNCRC requirements, which states that

“the best interests of the child shall be a primary consideration”.

I urge the committee to support my amendments and to oppose amendment 89.