Seòmar agus comataidhean

There are a number of layers to my concern about a supermajority. When we consulted on the bill—I appreciate that that was some time ago—there was low support for near unanimity in a reformed system. It was something like 13 per cent. It also feels disproportionate to go from a system that requires a little bit more than 50 per cent to convict to one that, in the context of a majority of 13 out of 15, would require 87 per cent.

The standard of proof is the standard of proof—there are no changes to that. It is worth bearing in mind that juries in Scotland are not told to strive for unanimity. The process is considered to involve an aggregate of individual votes as opposed to being a collective endeavour.

Another difference between Scotland and other systems with two verdicts is that Scotland does not have hung juries or retrials. Such options, should we proceed with reform to a two-verdict system, were not popular in our consultations. In short—forgive me, convener—in relation to near unanimity, there are still some differences in the Scottish system. Corroboration still exists, and there are no retrials in our system.

Good morning, and thank you, convener.

I wrote to the committee last autumn to update members on my approach to stage 2 of the bill. I remind members of the significance of the proposed legislation. You have all heard compelling evidence that the justice system does not provide a satisfactory experience for many victims and witnesses; for many, it can be actively harmful, particularly for those who have experienced sexual crimes.

Incremental changes over the years have delivered improvements, and I am grateful to all who have worked to drive such change. However, as the committee has heard from the Lord Advocate and Lady Dorrian, the former Lord Justice Clerk, the dial has not shifted enough and the scale of reform that is needed cannot be delivered through existing structures and processes.

The bill sets out a package of reforms that have the potential, if agreed to, to transform the operation of the justice system to the benefit of victims, particularly women, while protecting the rights of the accused. I am heartened that there is significant support for much of the bill. I am, of course, disappointed—although I accept—that that does not extend to the full package of measures that are included in the bill as introduced.

As I hope that my letter makes clear, I want to work across the chamber and reform by consensus. I have set out key areas in which the bill will be amended in response to the committee’s stage 1 report. The most significant of those is the pilot of single-judge rape trials, which I have confirmed that I will no longer pursue. Although that is regrettable, I have to recognise that there is insufficient cross-party support for that.

However, I do not accept that the long-standing issue of access to justice for rape victims has somehow disappeared. The low conviction rates for that type of crime are a stark symptom of a system that does not operate effectively for some of the most serious and gendered crimes. Therefore, I will lodge amendments at stage 2 to remove the barriers to conducting research on jury deliberations, to help us to better understand the impact of rape myths on decision making.

I will also lodge a significant package of amendments to address matters relating to the creation of a sexual offences court. The amendments have been developed in collaboration with justice stakeholders and include changes to address concerns about the legal representation that accused prosecuted are entitled to in court. Amendments will be lodged on appointment and removal of judges to the court and on enhancing choice for complainers in how they give their evidence. I am confident that the amendments will address concerns about the model of the court that were raised by the committee at stage 1.

The former Lord Justice Clerk, the Lord Advocate, the senators of the College of Justice and the Scottish Courts and Tribunals Service, as well as victims, have told the committee that a stand-alone court is necessary to improve the experience of sexual offence complainers. They have made it clear that tinkering around the edges will simply be insufficient. Therefore, I urge committee members to grasp the nettle and embrace wholesale reform to the management of sexual offence cases by supporting the creation of a stand-alone court.

I am pleased that there is cross-party support for the removal of the archaic not proven verdict. You have heard much evidence on the need for consequential changes to the jury system: some from people arguing that we should retain a simple majority, some from those favouring a qualified majority and some from people who would like to move to a supermajority or unanimity. The evidence that we have supports the view that moving to two verdicts could lead to an increase in convictions for all crimes. My assessment is that we cannot abolish not proven in isolation without impacting the balance of fairness in our system. Stand-alone reform would risk miscarriages of justice; equally, setting too high a threshold for conviction would mean that we fail to hold perpetrators to account. To maintain the integrity of our criminal justice system and confidence in that system, the most prudent approach is a model with two verdicts, 15 jurors and a two-thirds majority requirement for a conviction.

Thank you, convener. I look forward to working with the committee over the coming several weeks as we navigate our way through to stage 2.

To be clear, the Parliament also agreed that it could consider existing proposals—including for the victims and witnesses commissioner and the member’s bill for another commissioner—while the review takes place. There was an acknowledgement that lead committees and the Parliament still have a role to consider the merits of, in this case, the victims and witnesses commissioner in its own right. I appreciate that the Finance and Public Administration Committee has been looking at the roles and the proliferation of commissioners over many years, as is its right. It is, of course, imperative that we scrutinise every penny and every pound.

The Government’s position is that we remain committed to the victims and witnesses commissioner. Notwithstanding the difference of views that Ms Dowey has articulated, there is a clear appetite for it among victims and victims organisations. I believe that having that independent voice and independent champion is imperative. It will fill a gap in the mechanisms for accountability, which we are seeking to strengthen. The commissioner will have a key role, crucially, in monitoring compliance with the victims code and the standards of service, including the requirements to demonstrate trauma-informed practice; I know that Ms Dowey has been a big champion of that. The commissioner’s role will be to raise awareness of the rights of victims and witnesses and also to monitor those rights and how they have been met.

I will answer Ms Mackay’s question in two parts. With regard to the Scottish Government’s planned amendments, we will lodge an amendment on the process for appointing and removing judges of the sexual offences court. The committee will be alive to the debate that was held on that. Originally, we proposed in the bill that removal, for example, would be for the Lord Justice General to do. However, after reflection on representations from stakeholders and the committee, we will instead link that process with the current process around fitness for judicial office tribunals.

Again, that was to reduce the number of issues on which there were debate and discourse, so that we could focus on the bill’s primary purpose, which is to establish a sexual offences court that will implement fundamental change to the effectiveness and efficiency of the system and the experience that people have as complainers in sexual offences cases.

I know that there has been engagement with colleagues on the issue of legal representation. We will lodge amendments on that because, as we have indicated, we want to replicate rights of audience and ensure that the accused are not disadvantaged in terms of their access to counsel.

There will also be amendments on pre-recorded evidence, which, again, will pick up on the committee’s representations. We are not moving away from the presumption in favour of pre-recorded evidence, but I note the evidence that was given on the issue of personal agency. Some complainers and victims might well not want to give pre-recorded evidence, but will want to appear in court instead. There is also an amendment that seeks to extend to the sexual offences court the existing exception to the rule that applies in the High Court.

Ms Mackay is right: I am not, at this stage, seeking to lodge an amendment to include murder in the jurisdiction of the sexual offences court. I want to be clear about that. The bill proposes that the court would be able to hear a murder case only where it appeared on the same indictment as a qualifying sexual offence. Of course, it will remain the case that the Crown will make decisions about which court a case should go to—there will be no alteration to that—but I was very mindful of the Lord Advocate’s evidence with regard to the Crown’s prosecution of cases involving serious sexual offending against multiple victims, where the accused was alleged to have killed one of them. In my mind, there is an argument that, for all those potential witnesses, there would be benefit in enabling the case to go to the sexual offences court.

We have not yet lodged an amendment on that, but we will continue to reflect on and consider matters. I know that it is a matter to which the committee has paid close attention.

You are not confusing them. It is fine.

On the issues that Ms Mackay raises in relation to part 3, as I said in my letter in October, I was planning to lodge an amendment

“to extend who is deemed vulnerable”,

which would have covered

“persons who provide evidence from a reputable source”,

such as a health practitioner or someone from a domestic abuse or sexual assault support service.

However, I am cognisant of the major concerns that Scottish Women’s Aid has raised in and around the planned amendment. We will no longer lodge that amendment, and I will continue to have discussions with Scottish Women’s Aid. In fact, I think that I will meet Dr Scott at the beginning of next month.

As our plans stand, we intend to lodge the other amendment that you mentioned, Ms Mackay, which would mean that

“persons applying for a civil protection order against domestic abuse or for damages following a sexual assault”

are deemed vulnerable.

I am conscious of the correspondence that Scottish Women’s Aid submitted to the committee and which I saw this morning at 9.30. The organisation is concerned that the amendment does not go far enough. As best as we can, we will work through concerns at stages 2 and 3.

I am always open to turning up the dial, but I recognise that, if we are getting into the area of entirely removing the court’s discretion, that is problematic. However, there is a willingness on my part always to see where we can do more.

I will make two points on that. One is that reducing the jury size from 15 to 12 was the Government’s position at the start of the bill process. That position was based on the substantial independent research on Scottish juries that had been done, which was much more about deliberation. According to that research, a jury of 12 was marginally more effective for deliberation, whereas, with 15 jurors, slightly more people overparticipated and slightly more underparticipated. These are my words, not those of the researchers, but the argument was more about group dynamics and how people in a group work together when deliberating. The view was that, on balance, a slightly smaller jury would lead to a better process of deliberation.

I met the researchers as part of my stakeholder engagement, and the committee heard evidence on the matter. As we progressed, it became apparent to me that, although all parts of the system are connected, the size of the jury is much less connected with other parts. My original position was that I very much thought of jury size, majority and verdict as the three legs of the stool, but my judgment by the end of the stage 1 process was that jury size was a much shakier leg of the stool and far less interconnected.

As I said in my opening remarks, I want to focus on the more fundamental issues that are front and centre in relation to fairness—those that are in the interests of justice—which relate to the majority in a reformed system. To be blunt, convener, it is about focusing on the bigger issues, as opposed to having arguments about less consequential ones, although Mr Kerr has clearly given serious deliberation to the size of the jury.

It was.

The research ran various scenarios on the three components of the jury and verdict system; it ran various mock trials, keeping some of the variables while changing others; and it tested various things. As the committee has heard, the research also looked at how a reduction in jury size improved deliberations, because participation was better; indeed, some of it—dare I say it—made commonsense arguments about a slightly smaller group leading to better group decision making. However, I have also said, particularly in response to the views that were given at stage 1 and to the committee, that jury size is less interconnected with other aspects.

There are four or five potential amendments in that area. The first—and I will talk a bit more about this—is to provide for enforcement powers for the commissioner and also to extend the definition of “victim”, which, in essence, is to enable the commissioner to engage with a broader spectrum of victims and witnesses. Given the changes in the victim notification scheme, I am minded to lodge the proposed amendment on the definition of “victim” at stage 3, just to ensure that the definition for the victims and witnesses commissioner aligns with the work on the victim notification scheme. I want to do a wee bit more work on that.

There will be another amendment to ensure that the commissioner shares reports with any criminal justice agencies and organisations that are referred to in the commissioner’s recommendations, as part of the annual report.

I anticipate—members might have other views—that the most significant amendment will be that which seeks to improve the enforcement powers of the victims and witnesses commissioner. That is very much in response to some of the debate and dialogue that we had at committee. It is about strengthening powers and also having better clarity of the statutory role that the commissioner will have. We will weave into the legislation powers for the commissioner to act if someone or an agency is not complying with requests to provide information to the commissioner; we will also restate, in this legislation, relevant parts of other legislation. That is about ensuring that we have the strongest possible basis for the victims and witnesses commissioner.

It just reflects the fact that the Government is taking on board the critique that we heard at stage 1 about jury size. Our position on jury majority and a two-verdict system is the same as it was when the bill was established—we are still, in the context of a two-verdict system, in favour of a two-thirds majority to convict. The 10 out of 15 majority versus eight out of 12 aligns with our position on a two-thirds majority. It is just a change in what we are proposing with regard to jury size.

I hope that I have understood you correctly, Ms McNeill.