Seòmar agus comataidhean

I am not going to comment on the merits or otherwise of such a suggestion. I can see a logic to it in terms of efficiency or fairness, but I have certainly not been sighted on or involved in any deliberations around it. Nevertheless, it appears to be an issue of interest, so we will take an interest in it.

I do not know whether officials have anything practical to add.

It is, of course, absolutely fair and legitimate to scrutinise the costs of establishing a new commissioner role; indeed, I am conscious that today in the Parliament we will debate and vote on the establishment of a patient safety commissioner. From discussions that I have had and from representations that victims have made to me, I know that people feel that there is a range of commissioners already, but there is still no commissioner for victims and witnesses.

As I have indicated, the purpose of such a commissioner is to scrutinise the justice system and hold it to account in and around the implementation of not just the justice agencies’ service standards but the victims code. They will be required to publish and lay before the Parliament a report of their findings and to make recommendations for improvements.

That is a broader debate. I have not been intimately involved in evaluating the role and function of the wide range of existing commissioners and the effectiveness of their contributions. From my experience as a minister and as an MSP, I am very clear about the commissioners whom I have observed more or with whom I have had more dealings; the Children and Young People’s Commissioner Scotland, for example, has held us all to account very effectively at different points and junctures.

I accept entirely the member’s point about the primacy of parliamentary scrutiny, particularly of ministers. The role and function of commissioners do not in any way undermine or, indeed, replace any of that—that is for sure—but the question is what expertise and insight into the whole system they can bring. Again, it is my experience that the findings of commissioners quite often aid MSPs in holding the Government to account. I suppose that what I am driving at is the plurality of the system.

Thank you very much, convener. Good morning to colleagues.

I very much appreciate the opportunity to appear before the committee at the start of its deliberations on the Victims, Witnesses, and Justice Reform (Scotland) Bill, which is landmark legislation. The bill puts victims and witnesses of crime at the heart of our justice system. It contains an ambitious package of reforms to modernise processes and improve the experience of victims and witnesses, particularly in relation to sexual offences. It does so while continuing to safeguard the operation of key principles of the justice system and protecting the rights of the accused.

The bill draws on a wide body of evidence. It has been informed by the work of the victims task force and the independent cross-sector review of the management of sexual offence cases by Lady Dorrian, who is Scotland’s second-highest judge. It is informed by the groundbreaking 2019 Scottish jury research study, which was led by leading academics, and it follows two public consultations that demonstrated broad support for the measures in the bill.

Crucially, the bill has been shaped by survivors and victims and their families. They have told us that they often feel unheard and cannot access information, that they do not feel safe, and that they often do not experience compassion.

The bill therefore represents a transformative approach to build a more modern, responsive, sensitive and person-centred justice system that will ensure that victims of crime are treated with compassion and that their voice is heard. Trauma-informed practice is key to that. That means ensuring that those who work in our justice system recognise the impact of trauma on those whom they deal with and, where possible, adapt processes to reduce the risk of retraumatisation.

The justice system has been widely engaged in that work, as is evidenced by the launch of the trauma-informed knowledge and skills framework earlier this year. The bill provides a legislative underpinning for the cultural and procedural change that is necessary to embed the practice, and I would like to briefly take you through the rest of the bill’s measures.

There is clear and compelling evidence that the not proven verdict is not well understood, and that it can result in stigma for the acquitted and trauma for complainers. The bill will abolish the verdict to improve the fairness, clarity and transparency of decision making in criminal cases. We have carefully consulted on the other distinct features of our jury system and have concluded that in a reformed system with only two verdicts a requirement of a two-thirds majority for convictions is appropriate. To enhance the quality of deliberation, the bill also seeks to reduce the jury size.

The bill increases protections for vulnerable parties and witnesses in civil cases by extending the use of special measures and by protecting those who have suffered abuse from being cross-examined by their abuser. It will create a commissioner who will provide an independent voice for victims and witnesses, too.

The bill also aims to ensure that justice meets the needs of victims and survivors of sexual offences—the majority of whom are women and girls—by addressing, in a practical way, the long-standing concerns about how the system operates for sexual offending.

As the committee knows, the challenges that society faces to eradicate violence against women and girls are urgent and complex. Part of the solution is in ensuring that we have a justice system that commands confidence. That means a system that encourages victims to come forward, supports them to give their best evidence and holds those who commit such offences to account. The bill provides an opportunity to put in place significant and meaningful reform.

The creation of an automatic lifelong right to anonymity will protect the dignity and privacy of victims of sexual offences, and the right to publicly funded independent legal representation strengthens the rights of complainers in an especially intrusive aspect of criminal procedure. The sexual offences court will improve the experience of complainers through more use of pre-recorded evidence, improved judicial case management and mandatory trauma-informed training, and the new court will also help to reduce delays in cases coming to trial. The time-limited pilot of single judge rape trials will provide evidence and inform debate on how to deliver meaningful access to justice for complainers in cases of rape.

I want to ensure that victims and witnesses are at the heart of our justice system, and I hope that, in the debate and discussion on the bill, we bear that in mind, and that the discussion is measured and constructive. The undertaking that I give to committee members and others is that, in my contributions, I will do everything in my power to ensure that we have a debate that is of the very highest standard. As always, I remain committed to working with members, partners, stakeholders and—importantly—people with lived experience, to ensure that the legislation achieves its aims.

I look forward to the committee’s scrutiny of the bill. Thank you.

From my previous discussions with Ms Clark, I have no doubt that we will debate that matter further. Ms Clark has shared with me some very interesting research and different models from elsewhere, and I have no doubt that she will continue to press me on those matters at every stage of the bill.

On the approach that we have taken thus far and our position right now, the change is a substantive one. The model relating to automatic legal representation and how complainers access it timeously is still being developed. We are working with a range of justice partners, and there is the work of the Emma Ritch law clinic, too. As I said, it is a substantive change, and it will be a demand-led change, so estimating its cost is somewhat challenging. The budget will be demand led.

I have some caution at the moment, because we are living in the reality of resource implications. A point was raised earlier about how we will ensure that we deliver. The focus should be on delivering the proposition in an accessible way that supports women to have their voice heard, and in a way that could provide a platform for further change and reform. Given the importance of implementing legislation and of bearing costs in mind, I have a significant degree of caution right now, but I look forward to hearing more and to the sharing of experiences and evidence from further afield, because that is important.

That provision is intended to seek clarity and certainty for complainers at the earliest opportunity and to increase people’s confidence to come forward and report offences and make complaints in the first place. We all know that the evidence is that sexual offences in particular are underreported, and providing for security of anonymity is part of increasing people’s confidence to come forward.

It is important to have clarity that anonymity is automatic from the start, so that people know that they do not have to go through a process to get it; anonymity would be automatic from the time of the offence. Significant research and thought has gone into that provision. I point to the work of Andrew Tickell and his colleagues and students at Glasgow Caledonian University. They have led much of the campaign for automatic lifelong anonymity. For particular sexual offences, as well as for offences relating to female genital mutilation, human trafficking and other very sensitive offences that have a particular bearing on people’s physical integrity and privacy, the provision would support confidence in the system but also support people to come forward to report offences in the first place.

I will flag up a point that might be useful. The policy memorandum speaks in detail about the jury research and gives a reference to it. We have published information today or yesterday about rape myths, which also talks about the research. I assure the committee that information is publicly available so that people can peruse the further detail.

The point that I was making in reference to the research is that we do not want to change one part of the jury system in isolation because that may well have unintended consequences. That is why we are looking at this as a package. We are following the evidence that was illuminated by the research. I hope that I understand Ms Clark correctly. The reforms will apply to all cases and throughout the system, so we must ensure that there is balance, fairness and integrity and that there are none of the unintended consequences that might be caused by changing one part without changing the other constituent parts.

It is important to stress that the jury reforms are not about increasing or decreasing conviction rates; they are about the integrity and fairness of our system, and transparency in decision making.

In my opening remarks, I intimated that there are challenges in people having confidence in a verdict that cannot be explained and which is open to interpretation. The independent Scottish jury research demonstrated that the not proven verdict was not understood by jurors and that understanding of it varied. It was sometimes seen as a compromise verdict. It was used if people believed that someone was guilty, but there was not enough evidence. The evidence also showed that people believed that the verdict came with associated stigma.

If we are moving from a three-verdict system to a two-verdict system, we have to make associated reforms to ensure that we keep a balanced system. Removing the not proven verdict is, of course, a historic reform, but we have to consider our verdict system in the round by considering the number of verdicts, moving from a simple to a qualifying majority and the size of juries. On all three counts, our system is unique—there is no other comparable system. However, the overriding message that I want to convey is that this is about the transparency of the decision-making process, so that we can have as much confidence as possible in the administration of justice and that our convictions and verdicts command confidence. The reforms are in no way a blunt tool in any shape or form to increase or decrease convictions.

I will ask officials to explain the research to Mr Findlay in layman’s terms.

The Government’s position, based on the research, is that we should look at that as a whole package. The consultation responses from all sectors, including those from people working in the legal sector and those from victims or their families, showed strong support for the idea that changing from a three-verdict to a two-verdict system meant that there was also a need to change the majority from a simple to a qualified one.

I can give an example of the importance of that. The Law Society of Scotland is not in favour of abolishing the not proven verdict but said in its evidence that, if we did so, we would really need to look at changing the majority. As I hope that I intimated to Ms Clark, there is an important relationship between moving from three verdicts to two and moving from a simple to a qualified majority.