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Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 21 August 2025
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Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

Amendment 206 responds to a recommendation of the Delegated Powers and Law Reform Committee, while amendments 204 and 205 are technical amendments.

Amendment 204 amends the bill to clarify that the reference to “the High Court” in section 54(5) is to the High Court of Justiciary. Amendment 205 amends section 54(5) to clarify that the reference to “the Keeper” is to the keeper of the records of Scotland.

Amendment 206 adjusts the provision in section 55(2) that gives the Scottish ministers the power to make regulations that make further provision for the procedure that applies in the sexual offences court. In line with the recommendation of the Lady Dorrian review, the bill provides that High Court procedure will apply in the sexual offences court. Section 55 provides for the wholesale adoption of High Court procedure in the SOC, except where the bill makes specific provision to the contrary.

High Court procedure will form the foundations of the process and practice that will be followed in the sexual offences court, with the bill introducing some variations to the way in which current High Court procedure will apply to the sexual offences court, such as in relation to the pre-recording of a complainer’s evidence ahead of a trial.

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However, the wholesale adoption of High Court procedure comes with the risk that certain aspects of that procedure will not operate in the sexual offences court as intended and may result in unexpected inconsistencies or inefficiencies that we will need to respond to. Therefore, the aim of the power in section 55(2) is to ensure that Scottish ministers are able to make regulations that would enable any issues that may arise from the adoption of High Court procedure in the SOC to be addressed swiftly and without the need for new primary legislation.

Amendment 206 responds to the issues that were raised by the DPLRC and limits the power of Scottish ministers to make regulations to those

“for the purpose of ensuring the proper functioning of the Court”.

It will restrict that power to circumstances in which issues are identified that are fundamentally problematic to the operation of the SOC.

I hope that the committee will support the amendments in the group. I move amendment 204.

Amendment 204 agreed to.

Amendment 205 moved—[Angela Constance]—and agreed to.

Amendment 44 not moved.

Section 54, as amended, agreed to.

Section 55—Sexual Offences Court procedure

Amendment 206 moved—[Angela Constance]—and agreed to.

Amendment 45 not moved.

Section 55, as amended, agreed to.

Section 56—Prohibition on personal conduct of defence

Amendment 46 not moved.

Section 56 agreed to.

Section 57—Vulnerable witnesses

Amendment 47 moved—[Sharon Dowey]—and agreed to.

Section 57, as amended, agreed to.

Section 58—Ground rules hearings

Amendment 48 not moved.

Section 58 agreed to.

Section 59—Pre-recording of evidence

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

The amendments in this group feature a mixture of substantive and technical amendments related to the offences and cases that the sexual offences court—the SOC—will have jurisdiction to hear.

My position is that the SOC should be given a broad jurisdiction to ensure that its benefits are extended to as wide a cohort of victims of sexual offences as possible, while ensuring that the way in which that is done protects the court’s resources. It will then be for the independent prosecutors, acting with the delegated authority of the Lord Advocate, to decide whether to indict specific cases to the SOC, based on the facts and circumstances of that case. It would disadvantage victims if we were to place arbitrary restrictions—in my view—on the cases that the SOC can hear.

We have just heard from Pauline McNeill on her amendments 157 and 69, and I appreciate her comments on her intentions. I have a different perspective on the matters that she raises, and I am particularly concerned about the impact that amendment 157 would have if agreed to.

Amendment 157 would restrict the SOC to being able to hear only cases that can be prosecuted on indictment in the sheriff courts. In effect, it would mean that the SOC could not hear cases that included an offence of rape or murder, on the basis that those offences cannot be prosecuted in the sheriff courts.

I have significant concerns about the suggestion—whether it be Ms McNeill’s intention or otherwise—that the SOC should be prevented from hearing rape cases. Rape is, without question, the most serious sexual offence that can be committed against an individual and, as such, it is victims of that offence who arguably stand to benefit most from the specialist trauma-informed approaches that will be at the heart of the sexual offences court.

We will not have a credible or effective sexual offences court that will deliver for the very victims for whom it is intended to deliver if rape is excluded from its jurisdiction. Depriving victims of rape access to the SOC while victims of other sexual offences benefit from the important reforms that it will introduce seems to me to be without justification and would serve only to exacerbate existing challenges that those victims face when interacting with the courts and the criminal justice system. I would also add that sheriffs sitting as temporary judges can currently preside over rape cases in the High Court. I therefore strongly urge members to reject amendment 157.

I also ask members of the committee to reject Ms McNeill’s amendment 69, which would remove murder from the SOC’s jurisdiction. Following the committee’s stage 1 report, I have carefully considered whether the SOC should be able to hear an offence of murder where it appears on the indictment alongside a qualifying sexual offence.

I respect that there is an argument for and against that. However, I remain of the view that there is a clear rationale for empowering the SOC to hear murder cases when combined with sexual offences charges on the same indictment. Indeed, that view was articulated at stage 1 by the Lord Advocate, and she gave the committee specific examples of such cases, which she has recently repeated in correspondence to the committee. On balance, I have heard no compelling rationale for depriving such victims of the specialist, trauma-informed approaches that will be a key feature of the SOC.

I acknowledge the view that the role of the High Court of Justiciary, as Scotland’s superior criminal court, means that it is the proper place to hear cases that feature an offence of murder. However, on balance, I believe that our paramount concern should be the experience of complainers and that we should not be constrained by court hierarchies and tradition. Historical function and status have not delivered the system that we want for victims of sexual offences. I want all victims and survivors of sexual offences to be able to have their case heard in a forum that is specifically designed to support them.

I now turn to my amendment 218, which will ensure that the new evidence exception to the rule on double jeopardy applies to all cases that are prosecuted in the SOC. The new evidence exception will allow the Lord Advocate to apply to the High Court to set aside an acquittal where the statutory test that is set out in section 4 of the Double Jeopardy (Scotland) Act 2011 is met.

That test broadly relates to the emergence of new and compelling evidence that was not available at the time of the original trial and which would appear to show that the accused might be guilty of the offences of which they were previously acquitted. The High Court considers the Lord Advocate’s application and decides whether an acquittal should be set aside and permission for a new prosecution granted. At present, the new evidence exception can be sought only in cases that were originally prosecuted in the High Court, but in recognition of the serious offences that will be heard in the SOC, including rape and murder, I consider it important that the new evidence exception apply to that court, too.

As well as allowing cases heard in the SOC to be reprosecuted under the new evidence exception, amendment 218 will allow such cases to be retried in the new SOC to ensure that complainers can also benefit from the specialist, trauma-informed approaches that it will introduce.

Amendment 218 will also require that, where an accused who is being prosecuted in the SOC makes a plea to the judge against prosecution on the basis that the indictment relates to offences for which they have previously been acquitted, the plea be remitted to the High Court for consideration. That will ensure that the High Court retains sole authority to grant the right to bring a retrial under the new evidence exception.

The remaining amendments in this group are technical in nature, their primary purpose being to ensure that the SOC has appropriate jurisdiction and will function as intended. Amendments 180 and 181 make it clear that the SOC will have jurisdiction over non-sexual offences that appear on an indictment alongside a qualifying sexual offence from the point at which the indictment is served on the accused. They put beyond doubt that the SOC will be able to take action in relation to non-sexual offences, such as accepting guilty pleas, before a case reaches trial.

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Amendments 198 and 199 adjust the provisions that relate to the timeframe for the prosecution to submit applications to transfer cases into and out of the SOC on cause shown. The amendments move the timeframe for applying to transfer cases into and out of the SOC from the day before the commencement of the trial to the day before commencement of the trial diet. As the trial can commence on any day within the period of the trial diet, moving to a deadline that is linked to the commencement of the trial diet, which is set at the preliminary hearing, gives parties greater certainty on the deadline for submitting applications.

Amendments 183 and 216 provide the SOC with the powers that it needs to deal with cases where an individual is charged with

“aiding, abetting, counselling, procuring and inciting”

sexual offences, and amendment 182 makes the offence of conspiring to commit a sexual offence, as defined in section 39 and schedule 3 of the bill, a qualifying offence for the purpose of defining the SOC’s jurisdiction.

I urge the committee to support the amendments in my name and to oppose the others in the group.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

Will the member give way?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

Yes.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

It is my firm belief that the success of the sexual offences court depends, perhaps more than any other single aspect of the model that is set out in the bill, on the judges who are appointed to preside over cases that call in the SOC. Judges play a hugely important role in any court, but that role will be particularly pronounced in the SOC. Judges will set the tone and culture of the SOC and will be responsible for embedding the specialist trauma-informed practices and procedures that will be central to improving our approach to the treatment of sexual offences cases and the complainers involved.

Given that important role, it is imperative that we maximise the court’s ability to take full advantage of the pool of experienced and trauma-informed judges who have the commitment and specialism to make the SOC a success. Of course, the judges must be allowed to exercise the full powers of their office without fear or favour.

We must have processes for appointing and removing judges of the sexual offences court that strike the correct balance between rigour and proportionality. By that, I mean that appropriate safeguards must be in place to ensure that a sufficient number of judges are appointed and that those judges are, and continue to be, the right people to preside over cases in the sexual offences court.

Provisions in the bill at introduction gave the Lord Justice General a broad power to remove judges of the sexual offences court, provided that the Lord Justice General had consulted with the Lord Justice Clerk and the president of the sexual offences court in advance. During stage 1, it was suggested that that power could undermine the security of tenure of judges, which could ultimately impact on the independence of judicial decision making. That resulted in a stage 1 recommendation from the committee that amendments be lodged at stage 2 to adjust the process for removing judges of the sexual offences court. In my response to the stage 1 report, I committed to doing that, and I indicated my intention to review the process for appointing judges to ensure that there is an appropriate balance.

Before setting out the substance of the amendments, I want to be clear with the committee on what they do not change about the appointments process. It will remain the case that judges of the sexual offences court can be appointed only from among those who hold substantive judicial office as a High Court or temporary judge, sheriff principal or sheriff, and that their role as judge in the SOC will continue to be contingent on their holding that substantive office. Additionally, my amendments will not change the requirement that only those who have completed a course of approved training in trauma-informed practice in sexual offences cases can be appointed to sit in the SOC.

I turn to the amendments. Taking up the committee’s recommendation, the amendments remove the power of appointment from the Lord Justice General and establish distinct processes for appointing those who currently have rights to preside over High Court cases and those who currently have rights to preside over sheriff court cases. Amendments 184 and 195 will mean that all those who hold judicial office as a High Court or temporary judge are automatically appointed to the role of judge of the sexual offences court, provided that they have completed the necessary training in trauma-informed practice.

That approach recognises that those judges already preside over cases that involve the most serious offences that are heard in our courts, including rape and murder, and that they have the necessary associated sentencing powers when they do so. Putting it beyond doubt that those judges will be able to sit in the SOC underscores the status of the SOC and the seriousness and gravity of the crimes that it will consider.

The process for appointing sheriffs and sheriffs principal, as modified by amendments 185 to 193 and 196, is closely modelled on the process for appointing temporary judges under the Judiciary and Courts (Scotland) Act 2008. The Scottish ministers will be responsible for appointing sheriffs and sheriffs principal to the role of judge of the sexual offences court, based on the recommendation of the Lord Justice General.

Individuals will be appointed to sit in the court for a period of five years and will be automatically reappointed unless specific exceptions apply. Individuals can be appointed only if they have completed a necessary course of training in trauma-informed practice in sexual offence cases and the Lord Justice General considers that they have the skills and experience to hold office as a judge of the sexual offences court.

The temporary judge appointment process has been an effective and proportionate mechanism for giving sheriffs the additional responsibilities and sentencing powers that are associated with that office. We continue to engage with partners to ensure that the appointments process strikes the right balance between rigour and proportionality that I spoke about earlier, so that the approach will prove effective at ensuring that the SOC can access and take advantage of the talent and commitment in the Scottish judiciary.

Amendments 229 to 232 respond directly to the concerns that the committee raised regarding the process for removing judges of the sexual offences court. The amendments remove provisions in the bill that give the Lord Justice General the power to remove judges of the sexual offences court and, instead, tie that process to removal from the judges’ substantive office.

Under existing legislation, High Court and temporary judges, sheriffs principal and sheriffs can be removed from office only by the First Minister, following the recommendation of a Fitness for Judicial Office Tribunal. That provides an established safeguard against unfair dismissal and provides security of tenure for judges.

As provisions require that a judge of the sexual offences court holds that position only by virtue of their substantive office, it is therefore unnecessary to have provisions in the bill that create specific powers to remove judges of the sexual offences court from that office. Instead, the approach adopted through the amendments is to rely on the existing, long-standing and fair Fitness for Judicial Office Tribunal process related to their substantive post, so that if they are removed from that office, they also cease to be a judge of the sexual offences court.

Amendments 230 and 232 also make it clear that the conduct of an individual while sitting as a judge of the sexual offences court can be taken into account in a Fitness for Judicial Office Tribunal for their substantive post and can, in fact, trigger commencement of a tribunal.

Amendment 197 gives the Scottish Courts and Tribunals Service the power to pay expenses to judges of the sexual offences court in connection with expenses incurred in fulfilling that office. The amendment also enables the Scottish ministers to make bespoke arrangements for paying judges of the sexual offences court.

That is an enabling power, similar to that provided for in the legislation relating to temporary judges. I consider that it is important for the Scottish ministers to have that power and the flexibility that it provides to ensure that the SOC works as it should and that the framework that establishes it is future proofed to account for changing circumstances.

We will, of course, hear directly from Pauline McNeill on her amendment 270. Following our discussions, I believe that it is designed to address her concerns that moving rape cases to the sexual offences court somehow constitutes a downgrading of rape. However, I have profound concerns about the amendment, which would, in effect, not enable the sexual offences court to function as intended.

In considering the amendment, I encourage members to reflect on the evidence at stage 1. The victims and survivors who spoke to you were not concerned about the status of the SOC nor about the title of the judge appointed to preside over their case. Victims and survivors told us that what they care about is how their case is managed by the court system and that they are treated in a way that recognises and responds to the trauma that they have experienced.

Although senators may be the most senior cohort of judges, sheriffs sitting as temporary judges already preside over rape cases in the High Court, where, as Lady Dorrian told us,

“they do a very good job indeed”.—[Official Report, Criminal Justice Committee, 10 January; c 13.]

There are a great number of sheriffs with many years of experience presiding over sexual offences cases. The positive impact of that expertise and experience would be substantially diminished if sheriffs and temporary judges were to be prohibited from presiding over rape cases in the SOC.

By placing restrictions on which judges can preside over certain offences, amendment 270 impinges on the capacity of the Lord Justice General to deploy the most suitable and effective judges to preside over the cases that are indicted to the SOC. In doing so, it prioritises adherence to existing hierarchies over and above good practice in the management of rape cases. In my view, that would not be to the benefit of victims. In addition, amendment 270 would present significant operational challenges for the SOC.

Prohibiting temporary judges from presiding over rape cases would fatally undermine the ability of the SOC to deal with the cases that will be indicted to it, let alone provide a sustainable model for the management of those cases moving forward. Temporary judges play a crucial role in managing the business of the High Court, including the many rape cases that are indicted to it. By excluding those who hold office as a temporary judge from presiding over rape cases in the sexual offences court, amendment 270 would lead to a substantial reduction in the judicial resource available to manage the current volume of rape cases. There would simply not be enough judges to deal with the SOC’s case load.

I ask the committee to support my amendments.

I move amendment 184.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

I am at the committee’s mercy, and I respect the fact that there should be debate and scrutiny on all matters—every member of the Parliament has the freedom to roam in that regard. What we have all wrestled with, perhaps at different points in the process, is that any change from what has ayewis been comes with challenges. We all want to make changes for the better, and we all come to this with different degrees of what we want to give up from what has ayewis been. I am not saying that with any judgment.

I will not rehearse the arguments about why I fundamentally believe in the establishment of a sexual offences court, because I suspect that that would incur the wrath of the convener, but that is the underlying bedrock to the changes that have been made or are proposed in the previous group of amendments, this group and, indeed, in subsequent groups. This group of amendments is about the pragmatics. I want a pool of experienced judges. I am of the view that, ultimately, it is for the Lord Justice General to decide which judges are allocated to which cases.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

Our stage 2 proceedings had been very constructive until we reached group 31. We had managed, until Mr Findlay’s appearance, to have robust and respectful exchanges, including in and around the previous group on independent legal representation. I acknowledge Ms McNeill’s point that the bill is large and complex. However, I think that it is somewhat puerile and childish to say that I am the reason why it has taken two years; that shows a lack of awareness of parliamentary process and proceedings—

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 2 April 2025

Angela Constance

No, sorry; I said no.

I start with a point around substance. I still believe that it is vital that we do not lose sight of the substantial evidence that the current approach to decision making in rape trials is denying women justice. Data from the Scottish Government that was published last April show that, in rape and attempted rape cases, where there is a single complainer and a single charge, the five-year average conviction rate for cases that reach court is just 24 per cent. That is sobering, and I do not hear many comprehensive answers as to why that is.

That is why it is crucial that we understand more about the barriers to justice for rape victims. One way that we can do that is through research that looks into the content of jury deliberations, in order to help us to better understand whether, and how, rape myths affect verdicts and what measures could effectively address them. I am pleased that the committee supported my amendments to the Contempt of Court Act 1981 in the previous group, which will help to pave the way for that.

It is also important that we continue to challenge rape myths, not just with jurors but in society as a whole. I have confirmed that we will set up a working group to look at that in more detail, and I hope that members across the committee will support that.

As you know, convener, I have always recognised that views on the proposed pilot of juryless trials are mixed. During stage 1, some stakeholders and members spoke compellingly in support of a pilot, while others expressed their concerns. I have listened carefully to all those views and reached the conclusion that there is not enough parliamentary support for a pilot of juryless trials at this time.

When I wrote to the committee in October, I made it clear that I would remove the pilot from the bill. In the interests of building as much consensus as possible, and as amendments were already lodged that would remove the relevant sections of the bill, which meant that I could not lodge my own amendments, I have lent my support to amendments 53, 54 and 59. Consequently, I note Ms Clark’s remarks on her amendments.

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 March 2025

Angela Constance

Yes. Mr Kerr and other committee members will be aware of the substantial jury research that was undertaken in 2019. That was a significant piece of scholarship on a range of matters. As I said, that research demonstrated that reducing the jury size from 15 to 12 would improve the process of jury deliberations. That reference to “the process” related to issues such as the fact that, in a larger jury of 15, more people would dominate conversations and more people would be more passive. The evidence pointed to a reduced jury size improving the process of deliberations.

However, I have reflected very carefully on the matter, particularly in the light of the evidence that was subsequently presented to the committee. In the Government’s consultation, most people favoured the retention of a jury of 15, and then the senators of the College of Justice said in evidence to the committee that they favoured the retention of a jury of 15. Others added their voices to that, including the Faculty of Advocates and the Scottish Solicitors Bar Association.

To go back to the original evidence that I cited, the other aspect of that research is that, although it spoke about a smaller jury improving the process of deliberation, it found that there was no difference between a jury of 12 and a jury of 15 when it came to things such as the number of evidential issues that were discussed—in other words, there was no disparity in that regard between a jury of 12 and a jury of 15. There was also no variation in the extent or the accuracy of the discussion of legal issues.

That has led me to the view that the size of the jury is not as interconnected with other parts of the reform process as I previously thought. It is the case that I have changed my position on the jury size, but I think that my position aligns with the original research.

In summary—forgive me, I am just getting warmed up—the research pointed to a jury of 12 resulting in a more effective process of deliberation from the point of view of the dynamic process between people. However, with regard to the quality of discussions in and around evidential issues and the extent and accuracy of the discussion of legal issues, the research found that there was no disparity between a jury of 12 and a jury of 15.

I hope that that gives some reassurance to Mr Kerr.

My other amendments in the group arise as a consequence of the change to the bill that I seek to make with amendment 146. They maintain the current position of a minimum of 12 jurors out of 15 being required for a trial to proceed. They also set out the thresholds for conviction in juries of 15, 14, 13 or 12. Those thresholds have been set so that the requirement for a majority of at least two thirds remains constant, even if one or more jurors have to be discharged—for example, due to illness.

As a result of those amendments, a larger number of people will need to be in favour of conviction in order to find an accused person guilty—10 out of 15, rather than eight out of 12, as was initially proposed in the bill.

I turn to Pauline McNeill’s amendments 72, 73 and 74. Amendment 72 is broadly similar to my amendment 146, which will also retain a jury size of 15. However, taken together, Ms McNeill’s amendments 72, 73 and 74 would mean that the removal of the not proven verdict was a stand-alone reform.

The abolition of the not proven verdict is a historic reform; I am pleased that it has broad cross-party support and that it had the support of the committee at stage 1. However, it is important that we recognise that moving to two verdicts will change the balance of our system.

Independent research indicates that convictions are more likely in a two-verdict system. As a reminder, the independent Scottish jury research was the largest and most realistic mock jury study undertaken in the United Kingdom. It was carried out in 2018 in response to Lord Bonomy’s “Post-Corroboration Safeguards Review”, which recommended that research should be carried out to ensure that any changes to Scotland’s jury system were made on a fully informed basis.

The study involved 863 mock jurors in 64 juries, testing 16 different combinations of jury size, majority, number of verdicts and case type. It modelled the impact of changes to the jury system on jurors’ deliberations and decision making. One of its key findings was that removing the not proven verdict was likely to lead to more jurors favouring a guilty verdict. The meta-analysis that was published last year also found that

“the results are quite 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”.

The not proven verdict is one aspect of an interconnected system, and the evidence tells us that abolishing it is likely to have an impact on jury behaviour and case outcomes, leading to more convictions in finely balanced trials.

As parliamentarians, it is our responsibility to ensure that the reforms for which we legislate are fair, have integrity, and command confidence. I do not believe that legislating to remove the not proven verdict as a stand-alone reform that maintains the simple majority can achieve that. If Scotland becomes a two-verdict system, my assessment, which is shared by others whom the committee has heard from—including prominent legal academics, the legal profession and the judiciary—is that simple majority decision making cannot be retained. Put simply, it will risk miscarriages of justice. There are no comparable jurisdictions where people can be convicted by a simple majority of jurors.

Consultation responses showed a clear preference for increasing the majority required for conviction if Scotland moves to a two-verdict system, and most respondents—most victims, victims’ family members and jurors—supported a qualified majority of some kind.

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 March 2025

Angela Constance

I will after one sentence.

The qualified majority option with most support, including from the senators of the College of Justice, was one in which at least two thirds of jurors must agree to convict. That is what we are proposing, with a majority of 10 needed from a jury of 15.