Seòmar agus comataidhean

All the amendments in the group, with the exception of the cabinet secretary’s amendment 140, proceed from the principle that I shall outline for amendment 94. The same arguments that I will make for amendment 94 apply precisely to the others, so members will presumably agree with them all or with none at all.

My amendments were suggested to me by the Law Society of Scotland, of which, I remind members, I am a member. They are entirely about ensuring that, should the office of the victims and witnesses commissioner for Scotland be established—which, of course, will be debated later—the law that establishes it is as clear as possible in its terminology and powers, which it needs to be.

My concern when I initially considered the bill was whether, if it is passed and establishes the commissioner role, it is sufficiently legally precise. My worry is that, without meaning to do so, the Government risks excluding from the ambit of the commissioner’s role a category of people against whom a wrong has been done. It hinges on the definition in section 23(1), which tightly defines what the bill means when it refers to a victim.

Section 23 specifies—I will simplify for brevity—that a victim is someone against whom

“an offence … has been, or is suspected to have been, … carried out.”

Further, I note that section 2(1), for example, says:

“The Commissioner’s general function is to promote and support the rights and interests of victims”.

My concern, and the reason why I lodged the amendments, is that, by limiting the defence of rights and interests to the category of “victims” as defined by the bill, we might inadvertently exclude people who do not fall within that definition but, nevertheless, have a legitimate concern that they have been subject to criminal behaviour and who also need and, indeed, deserve support.

To ensure that that category is widened and becomes inclusive rather than exclusive—that is, to ensure that the net for protection, support and aid is wider—I have tried to define “complainer” in my amendment 118. My amendments propose to insert, alongside the defined term of “victims”, the category of “complainers” so that the commissioner’s role, functions and support might be engaged not only in support of the category of people defined as victims by section 23 but in aid of those against whom an offence is suspected to have been committed.

My amendments are about ensuring that, if a commissioner is created, the widest possible number of victims of crimes are brought within the commissioner’s remit to ensure that, at all times, the law truly works in favour of victims of crime and does not inadvertently exclude those who ought to be able to secure the commissioner’s assistance.

I am keen to hear the cabinet secretary’s thoughts on that and whether her interpretation is that the current drafting encompasses all victims who need to be in scope.

I move amendment 94.

As you rightly pointed out, some people would say that unanimity, near unanimity or a supermajority is the better way to go. However, it is not currently where you are. The argument would go that a supermajority, let us say, would align more with the other jurisdictions that you say that you are considering when making the reforms. However, if we say that the burden of proof is “beyond reasonable doubt”, some people might suggest that there is reasonable doubt with a two-thirds majority.

If that is right, why do you prefer a two-thirds majority? Do you reject outright the proposal for a supermajority or are you minded to consider the idea?

My questions are in the same area.

Cabinet secretary, in your letter from October, you suggested that, moving to having two verdicts—that is, removing not proven—would require a change to

“the majority required for conviction”,

in order to avoid miscarriages of justice. Notably—for something that I will ask about later—you also said:

“Scotland would be the only jurisdiction that considered the simple majority to be appropriate.”

You are proposing a two-thirds majority requirement for conviction. What is the evidential basis that led you to conclude that two thirds is the right and safe figure to ensure that there are no miscarriages of justice?

I have a small point, but it is based on the same line of questioning. As someone who is coming to this issue later than many of my colleagues, it has struck me that the stage 1 report raised concerns about creating the commissioner, suggesting that it would lead to extra bureaucracy, financial issues and opportunity costs. In your response to Sharon Dowey, cabinet secretary, you noted that there are voices in support—and, of course, there are—but this morning the committee received representations from Scottish Women’s Aid reiterating those exact concerns and saying:

“We maintain our opposition to the creation of this Commissioner”.

I believe that other colleagues have submitted amendments to remove the concept of the commissioner completely. Throughout this process, you have shown a commendable willingness to change position based on committee recommendations or representations from groups. How do you respond specifically to the stage 1 concerns and, perhaps more importantly at this stage, the Scottish Women’s Aid representations?

My final question is about juries. The committee’s stage 1 report included evidence from Professor Leverick, who expressed the view that, if we are to move to a system that is similar to those in other jurisdictions, we should consider whether a majority of eight out of 12 jurors—in other words, a two-thirds majority with a reduced jury size—is appropriate. There is a proposal to retain the jury size at 15. I am not aware of any other system that has 15 jurors, so Scotland is potentially an outlier already, but that makes sense if, as the cabinet secretary acknowledged, we have a balanced system involving the not proven verdict and corroboration.

In relation to moving to a two-verdict system, changes to corroboration, which the cabinet secretary mentioned, and closer alignment with other jurisdictions on majorities, what does the cabinet secretary say to those who say that it is better to move to a 12-juror system to ensure that the whole system is more closely aligned with those in other jurisdictions where things have been tried and tested?

Indeed.

Thank you.

One operational challenge that the committee has heard about is that the current temporary provisions on time limits in solemn cases are scheduled to end in November this year, but the solemn court system is not on track to be able to cope with pre-Covid time limits by that time. You will have seen that the Scottish Courts and Tribunals Service suggested some solutions. What is your view of those solutions, and, in any event, what is the Government doing in response to those concerns?

I am grateful for that answer. To stick with the issue of definitions, you may have seen that, in a previous evidence session, it was suggested to the committee that the definitions in section 9 of “child” and “young person” are used a little loosely, interchangeably and insufficiently clearly. What is your view on that, having reflected on those evidence sessions? Is that something that you propose to tighten at stage 2 or that you would welcome the committee tightening?

Practical solutions require resources, of course. On a related note, we have heard the provisions being described as “enabling”, such that they allow for certain developments but do not require them. The financial memorandum does not seem to provide figures for the costs of expanding any virtual attendance. Is there a risk that what is enabled is not progressed because there are not any associated resources?