Seòmar agus comataidhean

I am deeply surprised by that. Just a few moments ago, you heard me speak at length to the convener. I outlined, admittedly in broad terms, what the evaluation would look at. It would look at outcomes and at whether there is a conviction or an acquittal, because those are outcomes, but there is so much more to the pilot.

I will be absolutely up front with you, Mr Findlay: I am not opposed to or anti juries. There is a real value to juries.

Our proposal on the size of the jury is based on the Scottish jury research, for the reasons that I outlined to the convener. Although I acknowledge that the Government’s proposal to abolish the not proven verdict is tied in with reforms to reduce the size of the jury and to increase the majority required, my own thinking has changed a bit. Initially, I would have described those as the three legs of the stool. On jury size, there is the research that I mentioned, and there are commonsense arguments. I think that the committee and Parliament will come to a view on that.

Where we need to be really engaged and invested is in the debate and discussion on what the jury majority should or should not be as a result of the abolition of the not proven verdict, for which, I would contend, we have overwhelming support.

I have touched on the data that has informed our view about moving to a two-thirds majority, including that from the Scottish jury research. It showed that, when juries deliberated and came to a conclusion about which verdict to pass, in finely balanced trials, the structure of our jury system, and not simply the reflections on and the assessment of the evidence, had an impact on outcome. The number of jurors, the number of verdicts and the jury majority requirement—those structural issues—influence the outcome. That is why we want to shift the balance a little bit by moving from a simple majority to the two-thirds qualified majority.

You will have heard some support for that in your evidence sessions—I am thinking of the comments from Lord Matthews in particular. In our consultation, there was 52 per cent support for a qualified majority. I acknowledge that a consultation is not a vote or a plebiscite, and that these are difficult and complex matters. There was 40 per cent support for a two-thirds majority.

If you do not mind—I hope that this does not come across as a bit cheeky—I will note that, in 2013, the then Justice Committee made some reflections about this. I appreciate that the personnel on the committee are different now, but I want to point out that there is a history of evidence or consideration in this matter. In 2013, there was an acknowledgement that, if you abolish not proven, you need to consider the jury majority size, because of the impact that it could have on all cases across the board.

I am also aware—again, I hope that members do not think that I am being cheeky—that there was previously a member’s bill by Michael McMahon that proposed the abolition of not proven. That bill was tied into a two-thirds qualified majority, too.

I appreciate that these are judgments that we will all have to make together and navigate our way through. There is a particular relationship between the not proven verdict and the various options for the majority, which I am sure that we will continue to discuss and debate.

There was 52 per cent support in our consultation for a qualified majority, which could be at various levels, and there was 40 per cent support in the consultation for the particular option of eight out of 12.

Ultimately, Parliament will decide on that, particularly as we proceed through stages 2 and 3. I have outlined the Government’s position and our preference, and we will, of course, continue to engage on the issue. I am conscious of the evidence that the Lord Advocate gave the other week as well as the contribution of Lord Matthews.

The overriding point that I want to make is that we have to give serious consideration to all this, and there needs to be on-going depth to our mutual scrutiny, if I can put it that way, because of what the evidence tells us about the impact of moving from three verdicts to two.

However, the work that was led by NES and Dr Bruce on the trauma-informed framework is particularly important to us and particularly valued.

I will not repeat what I said earlier, other than to acknowledge that there are some very fine judgments to be made on that matter. I have to recognise that there are particular challenges with sexual offence cases, and I have no doubt that we will continue to pursue that issue.

I also have to recognise that the evidence, as it stands, shows that the balance is tilted when you move from three verdicts to two and that the raison d’être of all our reforms is absolutely to improve access to justice but in a way that improves life and experience for complainers without compromising the rights of the accused.

Alastair, would you like to add further detail in response to Mr Swinney’s question?

I do not know what research or evidence the committee has looked at. The meta-analysis to which I referred was published last month. It is an independent bit of research by Jackson et al. It is a quantitative meta-analysis that is based on data sets from 10 different mock trials.

Again, I would point to something in the research, which we can share with the committee if that would be helpful. It says that

“the results are ... unambiguous: there is a statistically significant effect towards lower conviction rates under the Scottish three-verdict system than under an Anglo-American two-verdict system”

and that that effect was seen across offences

“ranging from death by negligence to physical assault, rape and homicide.”

We can share that research with the committee.

Even if all aspects of the bill are passed, parts of our system could still be described as unique.

That detail will be worked through with experts in sexual offences cases and trauma-informed practice, as well as with the courts, which will have to ensure that all participating parties in the new sexual offences court have undertaken the requisite training. The point about training for professionals who will support the operation of the court is important. We are working with our justice partners on how that training will be developed and, crucially, how we will implement it.

Substantial work on what is required was undertaken with the publication of the trauma-informed skills framework for the justice sector as a whole, which we debated in the Parliament. We know what trauma-informed practice is and what trauma-informed training should look like, and my officials are engaged with our partners on the mechanisms for how, as part of the implementation process for the court, all that will be rolled out in advance of the court becoming operational.

It would be wrong of me to portray those as a tool—a lever or a button—that can increase conviction rates.

I am on record expressing deep concern about conviction rates. We know that, over a five-year period, conviction rates for rape and attempted rape are at 46 per cent, compared with about 84 per cent for other crimes. When we disaggregate different types of rape cases, the conviction rate for acquaintance rape is, according to the Lord Advocate, around 20 or 25 per cent. There is a difference in conviction rates depending on whether the victim is an adult or a child. From memory, in relation to children, where there has been an offence under, I think, section 18 of the Sexual Offences (Scotland) Act 2009, the conviction rate is higher, at more than 70 per cent; in relation to adults, where the offence is prosecuted under section 1 of that act, the rate is about 35 per cent.

I cannot be unconcerned about those rates. I must respect the independence of the courts and judiciary—indeed, I am under a legal obligation to do so—but I want to find the right way to tackle the issue and I want to look at the evidence without prejudging, because we cannot ignore those conviction rates.