Seòmar agus comataidhean

As I have said, I hope to come back to the committee with further clarity on implementation and sequencing. On balance, my preference right now—and I am not closed to other representations—is for the pilot to take place in the context of the sexual offences court, partly because it might give us further options to have a panel of decision makers rather than a single judge.

Perhaps I can reflect briefly on some of my European engagement. I have already visited the Netherlands and Germany and, in the not-too-distant future, I will be going to Norway. I stress again that we cannot do a lift and shift from other people’s jurisdictions, but one of the reasons for Lady Dorrian’s focus on a single-judge pilot in her review was that it was not novel to our system. Our system is quite hierarchical, and there is not an endless supply of judges. When I visited other jurisdictions, I saw that they had flatter systems with many more judges. In the Netherlands, for example, I met a lot of judges who were younger—I hope that the lords and ladies will not mind my saying that. The diversity issue that they have in the Netherlands is that 75 per cent are women; however, it has a bigger judicial resource, because its structures are flatter.

When I met judges in the Netherlands, I found that there are single-judge trials, but for the most serious cases, there is a panel of three. That would be challenging in Scotland, given that we do not have an endless supply of judges. Other countries have mixed panels of judiciary and lay representation. However, when I engaged with the judges from the Netherlands, they spoke to the value of having peers and colleagues involved in the process of deliberation and in writing up written judgments. I am in favour of a time-limited single-judge pilot, but if we are talking about the sexual offences court, where there will be judges, temporary judges, sheriffs and principal sheriffs, we might have the option to have a pilot involving more than one decision maker.

I hope that I have not pre-empted any of my thinking on this, because our own conclusions have still to be completed. As with any proposition, there are things that you need to work through properly. I want to make it clear that I am absolutely in favour of a pilot of single-judge trials, but there might be other options that we could explore.

I want to build as much consensus as possible, because that is in the interests of our justice system and of victims, witnesses and the accused. I have spoken on that point at length.

With respect, I have answered that. It is not uncommon for secondary legislation to flow from any piece of primary legislation. I have already given a commitment, in response to what I have heard not only from this committee but elsewhere, that there will be more detail in the bill.

As anyone who has been through the trauma of a sexual offence goes through the criminal justice system, they encounter decisions that are not in their gift or are outwith their control, such as which court the case goes to and what process is applied. We must be open to choice on some matters. You will have heard many examples that support the move towards prerecorded evidence, but some victims might want to have their day in court, and having that sense of control and choice can be imperative to recovery.

Your point about the single point of contact is well made, and I am cognisant of the difference between independent legal advice and independent legal representation. Do you want to add anything that might be useful to Ms McNeill, Jeff?

I am trying to seek as much consensus as possible on the bill. Through our consultation, the other working groups, the work that flowed from various research and other work that has underpinned the bill, such as Lady Dorrian’s work, we are trying, in the interest of our justice system and its standing in our society, as well as the interests of complainers and the accused, to build as much consensus as possible. We consider our position, as it stands, as doing our best to reach that consensus.

You are right in saying that we are currently an outlier on three fronts in the jury system. However, the way that corroboration features in our system also makes us different. We have taken on board the research and the views that were expressed through the consultation. The continued existence of corroboration, notwithstanding the Lord Advocate’s successful reference to the appeal court, means that our position just now is that we should have a qualified majority. Instead of the jury convicting on seven out of 12, it would convict on eight out of 12.

I did not address the question about majorities, which, to be fair, is a much more complex matter. There are black and white arguments in favour of the abolition of the not proven verdict, and there are long-standing concerns that support its abolition. However, there are very different considerations around the jury majority.

In all of this, at the forefront of our minds is how we not only improve the experience for complainers by overcoming barriers to access to justice, but protect the integrity and balance of the system and reduce any risk of miscarriages of justice. There are some fine judgments to be made on how we achieve those two things. I will explain why, on the basis of evidence, the Government proposes that we move from a simple majority to a qualified majority of two thirds and why we do not propose to move to near unanimity or unanimity, but it is a complex area.

In short, Scotland’s jury structure system is an outlier. No other system has three verdicts. No other comparable jurisdiction convicts on the basis of a simple majority and, as I intimated earlier, no other comparable system has a jury of 15.

There are three sources of evidence on this. There is the Scottish jury research; there is a recent meta-analysis; and there are other reports over the past 15 years that show that, if you move from three verdicts to two verdicts, you will increase conviction rates for all crimes. The Scottish jury research is not quite as unequivocal, but the evidence shows that moving from three verdicts to two will increase convictions across all crimes, not just sexual crimes. Therefore, we have opted to move away from a simple majority, but not to move to near unanimity, because of the other protections in the system that exist, which we may, at the convener’s discretion, get on to. I have opted for the two-thirds majority.

I will leave my remarks there, because I appreciate that there will be other questions.

But the evidence for the abolition of not proven goes way beyond that. It far exceeds the fact that we are an outlier—

That part of the bill is about neither increasing nor decreasing conviction rates.

You did not hear that from me.

We have built a bill that is based on the substantial research that exists, and I have no doubt that we will build into it that there will have to be on-going evaluation of its impact, whether that is a more collective impact or the impact of particular aspects of it.