Seòmar agus comataidhean

I am listening carefully and am very much in support of what the member is trying to achieve. She raised the SCTS letter, and it is absolutely right that she focuses on that. The SCTS said that there might be “significant costs associated” with meeting the proposal. If I assume that the amendment passes today, how has the member quantified those costs, and how will she ensure that the Government properly funds that welcome change to ensure that it happens?

That is a good point, and it is well made. However, as the member knows, corroboration, which makes us distinct, has changed. As I said at the outset of my submission, the Lord Advocate does not yet know what the implications of that are. In her letter, she specifically says:

“the full implications of these decisions are still being considered”.

The problem, it seems to me, is that we have to make a decision today. I absolutely concede that, because we have things such as corroboration, we will not be absolutely mapped to the system in England and Wales. However, I come back to the fact that the safest way to achieve justice is, surely, to mirror as closely as possible systems that are already in place and which we know operate—at least, on paper—well.

I am genuinely very interested in what you are saying. What do you suggest that we do? We are faced with a bill that will do things and with various amendments that will change what the bill will do, but you are deeply uncomfortable—as, I suspect, we all are—with some of the proposals, because you do not think that there is sufficient evidence. So, what should we vote for today? If we vote for nothing, we will nevertheless be voting for change.

You have just said that you are “satisfied” that the jury size can go back to 15 and that that will not make a material difference. Could you tell us on what evidence you base that statement?

I am genuinely listening very careful to the debate to work out what best to do here. You talk about the stand-alone court. Do you think that when those many voices spoke in support of a stand-alone sexual offences court, they might have had in their minds that it would be a new building with new people in it, with sufficient resources to deal with backlogs and to deal with cases timeously? Am I not right that, in fact, when we talk about a stand-alone court, it would be in part of the same building and would use the same people, the same processes and the same information technology, such that the outcomes that people are, rightly, desperate for might well not be achieved?

The discussion about how things could be seen is interesting. Have you taken any soundings or evidence from the victims groups such as Victim Support Scotland, Rape Crisis Scotland and so on that back up your concern about how things could be seen?

I absolutely share Pauline McNeill’s concern about the lack of research. To go back to my intervention on Katy Clark, whatever we do today, we are making a decision—even if we do nothing on the amendments, things will happen, because the bill has been drafted in a certain way. I am interested to hear what the cabinet secretary says in response to the debate as to when the provisions will come in and whether there is a role for doing research prior to that. I will wait to see what the cabinet secretary says.

Because we are being required to make a decision today, I would like to say why I will vote the way that I am going to vote, because I feel that I am—well, I am—required to do so. We all are. I hope to persuade members that my position is the correct one.

Victim Support Scotland wrote to us—again, very persuasively—and said that this is a highly complex area. It conceded that there is an absence of research to validate the rationale to change jury size and majority verdicts. Colleagues, you heard all the evidence when you were producing your stage 1 report—I did not, as I was not on the committee at the time—and you concluded:

“we have not heard convincing evidence which would support the adoption of any specific alternative model for jury size and majority.”

You went on to say that there was

“no compelling or definitive evidence presented which would give us sufficient confidence to endorse any of them.”

However, today, we have to make a choice and select a change, notwithstanding that evidential vacuum.

My view in deciding how to vote—bearing in mind that I was not on the committee and did not hear or interrogate the evidence—is heavily influenced by the representations that have been made to us by the Law Society of Scotland. For transparency, I remind colleagues that I am a practising solicitor and a member of the Law Society.

The Law Society, which deals with the issue day in and day out, has told us over and over that the unique Scottish system uses its four limbs as a balance. With the abolition of not proven and changes to corroboration, it has consistently suggested that rebalancing to ensure that the guilty are convicted and the innocent go free is achieved by the proposals set out in Sharon Dowey’s amendment 92. That makes sense because, as was pointed out earlier, Scotland is an outlier—it is utterly unique. If we vote for anything other than the Sharon Dowey amendment, we will replace one unique system with another system that is completely unique and is also completely untested and completely unevidenced, with unknown impacts.

I hear that, and I freely concede that the committee’s report looks at the retrial issue and says that further evidence and consultation is needed. Indeed, the Scottish Government conceded that we need more evidence on retrials before making that substantive change.

I come back to Pauline McNeill. We are being asked to make a change today, one way or another. We either vote for one of the amendments or we default to the position that is set out in the bill. We have to come to a decision.

For reasons that I will shortly finish up on, the only decision that we can make to be as safe as possible is to agree to Sharon Dowey’s amendment 92. Let me continue to say why. The cabinet secretary proposes a slightly different model in her amendment 146. In previous weeks, she has suggested that she has little time for what she calls Scottish exceptionalism. In that, we find common ground indeed.

I submit that, without compelling evidence, we should not be the exception. We should not be the test bed, and this is a test. In proposing a different model, the cabinet secretary is rejecting the model that was proposed by the Law Society. However, on Monday, I received a response to a parliamentary question that reveals that the cabinet secretary has not met the Law Society to discuss the bill since July 2023. The last time that she met representatives of the Law Society to discuss the bill was as part of a round table in September 2023, which was a long time before the committee took evidence on it.

Furthermore, on 20 March, I received a response to another of my questions, in which the cabinet secretary said that the 138-page policy memorandum for the bill

“set out the reasons the Scottish Government proposed to reduce jury size to 12”,

including evidence, as the cabinet secretary talked about earlier, from the independent Scottish jury research. The cabinet secretary’s answer goes on to say:

“In its Stage 1 report the Criminal Justice Committee did not support the reduction in jury size. I therefore confirmed ... I would bring forward amendments to retain a jury of 15, in line with the Committee’s position.”—[Written Answers, 20 March 2025; S6W-35546.]

In short, when building the bill, and I presume not long after the cabinet secretary met the Law Society, the evidence suggested that changes that are in line with those proposed by Sharon Dowey were the right way forward. However, in response to the committee’s report, which said that there was

“no compelling or definitive evidence presented which would give us sufficient confidence”

to endorse any of the proposed options, the cabinet secretary has lodged the amendment that we see today.

I intervened earlier, and the cabinet secretary conceded that the jury research shows the benefits of a jury of 12. She said that it showed the benefits of the process, but I have been through it, and “process” is a catch-all term for an awful lot of benefits that are set out—although I concede that that is my view. However, the cabinet secretary then said, in contrast, that there is no disparity between 12 and 15 jurors when it comes to the issues discussed or the verdict. That is fine, but the cabinet secretary conceded that a jury of 12 has demonstrable benefits, according to the jury research. A jury of 15 does not change the position. A jury of 12 is good, and 15 is no different on some other things. I therefore submit that it is better to go with the thing that the jury research has suggested has benefits—that is, a jury of 12.

We should not be a test. We should not be exceptional. We should not risk the innocent being jailed and the guilty going free. Pauline McNeill was right that we have to get more evidence. We should not take a shot in the dark. We must take the safest way.

I say to Ms Mackay, with respect, that there is no evidence for the assertion that she has just made.

I am listening carefully to what Fulton MacGregor says. He is right that we are being asked to take a step into the unknown, but surely the logical conclusion is that we should try to do something that is known. As the Law Society of Scotland says, we should have unanimity and 12-person juries. That would mirror as closely as possible other jurisdictions that, as Pauline McNeill said, are tried and tested. Is that not the best way to get to a known and, indeed, safe situation?