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I have met with Lady Dorrian on a number of occasions, and she is the biggest advocate of a stand-alone sexual offences court. She certainly—as she narrated to the committee—had some different views with regard to how some of the bill’s provisions were drafted when it was introduced. The one that comes to mind was about how judges would be appointed to the sexual offences courts; we will come to that in discussing the amendments in group 24.

Principally, and crucially, the benefits of specialism can, in my view, be realised only by bringing together all cases of the same type, from both the High Court and the sheriff courts, in a single forum. That will foster the development of bespoke processes that are informed by best practice drawn from across the High Court and sheriff courts, and ensure that those processes are applied consistently to the benefit of all complainers in serious sexual offences cases across the country.

Another key reason why the court must be a distinct court with a national jurisdiction is to ensure that it has access to the combined resources of the High Court and sheriff courts. That will allow it to draw on a much wider pool of court and judicial resources and to use those flexibly in the scheduling of trials. That has the potential to reduce the length of time that it takes for cases to reach trial, which sexual offence complainers consistently tell us is one of the main challenges that they experience in their interactions with the court system.

Lady Dorrian, in evidence to the committee, stated:

“we felt quite strongly that simply creating another division of the High Court, for example, would not achieve the necessary end. What was needed was a court of full national jurisdiction”.

The ability to use the combined resources of the High Court and sheriff courts flexibly is crucial to creating a sustainable model for the management of these cases. Data from 2022-23, which is the most recent that we have available, shows that 1,966 people were proceeded against for a sexual offence in Scotland—a 29 per cent increase since 2013-14. That growth shows no sign of abating, and we must expect that the numbers of sexual offences cases that are heard in the courts will continue to rise. We must be prepared for that growth by putting in place a system that is capable of managing increased demand.

I remain committed, therefore, to establishing a sexual offences court and will continue to persuade people to back it. I have listened to members’ views on aspects of the court and lodged a number of amendments, to be discussed in later groups, to address the issues that are raised by those concerns.

I turn to the specifics of Pauline McNeill’s amendments 76, 155 and 156. The idea of establishing specialist divisions of existing courts in place of a stand-alone court was carefully considered in some detail by the Lady Dorrian review group and the specialist sexual offences courts working group, and roundly rejected by both of them. While both groups identified several reasons for rejecting the idea of specialist divisions, their concerns can be distilled down to the fact that it would represent little more than a continuation of the piecemeal change that has been characteristic of the past 40 years, and it is therefore incapable of delivering reforms that are commensurate with the scale of change that is needed in the management of sexual offences cases.

Another key challenge with Pauline McNeill’s suggested approach is that it would require the courts to establish not one division but seven separate divisions: one for the High Court and separate divisions for all six sheriffdoms. That would inevitably create a significant, yet totally unnecessary, additional layer of complexity and bureaucracy. It is also of note that the courts already have the power to establish specialist divisions should they wish to do so.

Pauline McNeill’s amendments in this group, therefore, fall well short of the scale of change that is needed to reform the management of sexual offences cases, and I urge the committee to reject them.

I urge the committee to also reject Russell Findlay’s amendments, proposed by Ms Dowey, which would remove the proposed sexual offences court from the bill.

However, I will support amendment 47 for technical reasons. That is because it provides the foundation for amendments in my name that will be debated in group 27. Those amendments seek to ensure that there is alignment in the implementation of the presumption in favour of pre-recorded evidence across the High Court and the sexual offences court. I would have lodged a similar amendment, but amendment 47 was lodged first.

The evidence that the committee heard, including from many victims of sexual offences who made passionate pleas for reform, means that no one should be supporting Mr Findlay’s amendments, which seek to make no change to the way that we manage sexual offences in our courts.

I will end by reiterating the warning that Lady Dorrian gave members of the committee at stage 1, when she said:

“if we do not seize the opportunity to create the culture change from the ground up ... there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.”—[Official Report, Criminal Justice Committee, 10 January 2024; c 4, 22-23.]

Let us end the conversation and take action.

Thank you, convener. Widening the pool of people who are available for jury service will better represent society and recognise the contribution that those with sensory impairments have to make in all areas of public life, so I am pleased to support amendment 233.

As Ms Adam touched on, it takes forward recommendations made by a judge-led group in 2018. The Scottish Courts and Tribunals Service convened a working group in 2023 to consider some of those recommendations further, and it recommended that legislation should ensure that different forms of support could be rolled out to jurors in future.

Amendment 233 is consistent with that, allowing the court to decide what kind of communication supporter to appoint, depending on jurors’ needs and on what is operationally feasible. The flexibility also helps to ensure that the provisions are future proofed.

Scottish Government officials have engaged on the issue with stakeholders, including the British Deaf Association, Just Sign, freelance BSL interpreters and Deafblind Scotland, and they are all very supportive. The measure was introduced in England and Wales in 2022, since when 70 jurors in England and Wales have required to use BSL interpreters.

It is in all our interests to pave the way for as many people as possible to serve on juries. I therefore urge the committee to support amendment 233.

Before a trial begins, jurors have the option of either taking an oath, which is religious, or making an affirmation, which is non-religious, to try the accused and give a verdict according to the evidence.

At present, the wording prescribed in existing legislation means that jurors who choose to take the oath may do so collectively and without having to state their names, and jurors who choose to affirm must do so individually and name themselves in court. Amendment 154 will enable jurors who affirm to do so collectively and without having to declare their names in court. That would make the process for jurors making the affirmation consistent with the process for jurors taking the oath. The amendment would apply to all criminal juries.

The Criminal Courts Rules Council highlighted that inconsistency to us. The current wording means that affirmations are procedurally inefficient, and the Humanist Society Scotland has raised concerns that the differences in wording mean that jurors who choose to affirm are treated differently from those who take the oath.

Jurors should be able to expect to be treated with consistency and parity in front of the court, regardless of their religious or non-religious beliefs. The amendment will create that consistency for all jurors.

I move amendment 154, and urge the committee to support it.

Amendment 154 agreed to.

Forgive me for intervening, but I should say, for clarity, that, although we have changed our position on the size of the jury, we have not at any point changed our position on the qualified majority that would be required. Our position has always been that there should be a two-thirds majority for a conviction.

I will not repeat what I said at length earlier. In short, I remain of the view that the right thing to do is to abolish the not proven verdict and to implement the associated reforms. The amendments in my name are enabling. They seek to remove the legislative barrier to research, rather than specifically providing for the Scottish ministers to undertake research.

That said, we are committed to undertaking research. I have outlined our intentions in that regard in relation to pre-recorded evidence. We will certainly carefully consider commissioning further research, but I hope that the academic community will have considerable interest in carrying out research in the area, to which it would bring diverse perspectives and approaches.

Amendment 152 agreed to.

Amendment 153 moved—[Angela Constance]—and agreed to.

Amendments 62, 63, 75, 151 and 269 not moved.

This part of the bill would require a commencement order. I will correct the record if I get my dates wrong, but I am confident that, during stage 1, I provided the committee, either verbally or in writing, with indicative sequencing for the different parts of the bill coming into force. That was on the back of a debate about the pilot; it was in that context that I gave an indicative timetable.

The reforms to verdicts and jury majorities in part 4 are, in essence, stand-alone ones, and our thinking is that they could be made earlier in the overall implementation of the bill. I am not making any rash commitments to do a carte blanche U-turn on that sequencing, but we will reflect further on the matter, although I would be concerned about kicking decisions down the road.

Section 71(2) states:

“The other provisions of this Act come into force on such day as the Scottish Ministers may, by regulations, appoint”

and so on.

It has been evident in today’s discussion and debate that each and every one of us has been engaging and wrestling with the issue on an intellectual and emotional basis. At the end of the day, we will all have to come to conclusions based on our individual positions and perspectives and come to a collective voice that is informed by all voices.

I remind the committee that part 4 is one of the cornerstones of the bill and that it will make changes that apply to all cases in all courts. It is important to remember that.

I will say a few brief words about research without speaking at length. Overall, we have had the Scottish jury research and our own consultation. There has been substantial engagement with all those with an interest in the bill. I assure Liam Kerr that my officials have met the Law Society of Scotland regularly on the bill. I do my best to meet the many stakeholders in the world of justice, but there is always a limit to that, I am afraid.

International comparisons are also important, whether they are comparisons with our nearest friends and neighbours south of the border, with our European colleagues or with Australia, New Zealand or North America. We cannot cut and paste anybody else’s solutions. We need to look at the experience at home and elsewhere and apply what we learn to a Scottish context.

On the quantum of research, I know that we have spent a lot of time focusing on the Scottish jury research, but it is worth bearing in mind that the meta-analysis that was published last year considered studies involving almost 1,800 jurors and found statistically significant divergence in the verdicts that jurors delivered in a three-verdict system versus a two-verdict system. The odds of a jury convicting were 40 per cent lower in a three-verdict system. That points to the fact that, if we embark on the historic reform of removing the not proven verdict—I believe that the majority of us want to do that—we have to make decisions.

I support the intention behind amendment 240, which seeks to expand victims’ ability to have their voices heard by the court by making an impact statement about how a crime has affected them physically, emotionally and financially. A previous consultation was carried out on the issue, the findings of which made it clear that there is an appetite for change, such as widening the list of eligible offences and piloting new ways for victim statements to be made. There was also support for moving to a position in which all victims should be able to make a statement in all cases.

Currently, as Mr Greene said, the right to make a statement, which the judge must take into account in considering sentencing, is limited to certain offences in solemn procedure. I am very supportive of moving beyond that position, but there are significant operational and resource considerations, particularly for the Crown Office and Procurator Fiscal Service, which co-ordinates the process of contacting victims and ensuring that the statement is available to the court, and is responsible for ensuring that statements do not contain any inappropriate material. There are also considerations for victim support organisations, as composing a statement can be difficult for victims because it involves asking them to revisit the most traumatic aspects of the crime.

Those considerations were behind the introduction of a new power in March 2021 to enable the piloting of changes to both the range of cases in which statements can be made and the way in which they can be made. Piloting enables those aspects to be tested and resource and operational implications to be better understood. I assure members that an expansion of the victim statement regime is currently under consideration.

I support the ambition of amendment 240 and I agree that we want to move to giving victims the right to make a statement in all cases. However, I do not support making that move in one step at this time, due to the need to ensure that the resource and operational aspects are properly considered. That is particularly the case in relation to summary cases, as the volume of cases and therefore statements would be significantly greater, with associated resource implications.

There are also particular operational issues. For example, in summary cases, it is more likely that an accused can plead guilty and be sentenced at the same hearing. A statement would be sought from the victim only following the guilty plea. To do so beforehand would raise false expectations for the victim and put them through the experience of revisiting the impact of a crime, potentially for no benefit, if there is no plea or the accused is found not guilty. That would also be an inefficient use of resources and would potentially lead to significant delay in such cases, as a statement would be sought and the plea and sentencing could then not happen on the same day.

Those types of issues underlie the necessity of taking a stepped approach to widening the scope of the victim statement regime and considering at each point the variety of issues relating to introducing the measure in practice. Those issues include the resource implications for justice agencies and victim support organisations; the impact on court programming; and, importantly, the impact on victims.

However, I recognise that there is a compelling case for ensuring that the voices of victims are heard and that victims are given the opportunity to advise the court on the impact that an offence has had on them.

I am particularly keen that we take the first step of expanding this right to all solemn cases, where there is an established process in place and where there will therefore be fewer additional operational considerations. There will be some resource implications. However, this is an area that I would be keen to discuss further with Mr Greene with a view to lodging an amendment at stage 3 to make that initial change to the legislation.

I am also happy to commit to the committee that we will carry out further engagement with the Crown Office and victims organisations to inform the use of the piloting powers, which would test further expansion.

I acknowledge Mr Greene’s long-standing interest in these issues and, indeed, his commitment to securing improvements for victims and the families of victims, particularly in their interactions with the Parole Board for Scotland. I absolutely share Mr Greene’s ambition for a victim-centred, trauma-informed approach. Although there is much to commend in current practice, I absolutely accept that there is much more that we can do.

However, in embarking on reform, we must do so holistically and in a way that reflects and maximises all the levers that we have for effecting change. That is why I can confirm to the committee that I will be publishing a consultation in August, with work being carried out over the summer, on parole reform in Scotland, building on the changes to the Parole Board rules that were made in 2022. I hope that my committing at the outset to consult on some of the wider issues makes it clear that I am not only open to, but willing to make, the necessary changes to the parole process that will command the confidence of victims and their families.

That is not to say that I do not see a role for the bill in bringing about such change. I have looked constructively across the suite of amendments in the group to identify where I think we can commit to legislative reform that will make a meaningful difference. However, there are some intricacies that I would want to work with Mr Greene on before I could support the amendments. I cannot support them today as drafted, but there are many that I am keen to work with him on ahead of stage 3.

Turning to the specific amendments in order, I absolutely accept the principle of amendment 246, which seeks to ensure that victims or their families are given the opportunity to attend oral hearings. As Mr Greene has mentioned, I recently met survivors, who talked compellingly about the importance of having that opportunity. Some victims are already afforded such an opportunity in the current system, and what is proposed can be achieved through reform of the Parole Board rules. I fully intend the upcoming consultation to include consideration of whether that aspect of the system is working as it should or whether we need to revise those rules. I therefore ask Mr Greene not to press amendment 246 and to allow the consultation to run, so that we can gather the widest possible range of views on the matter.

I also agree with the principle of the provision of victim statements and written representations as it is set out in amendments 247 and 248. Victims should have their voices heard and should not have to repeat their presentations unnecessarily. I agree that there is more that we ought to do to ensure that processes are effective, and it might be that primary legislation has a role to play in that respect. However, we need to ensure that the amendments have the intended effect. Therefore, I ask Mr Greene not to move them now but, instead, to discuss them with me in advance of stage 3, to see whether we can come to an agreed position.