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I do not think that you are taking up too much time. This is really interesting, and it is clear that your colleagues are trying to get to the bottom of what to do.

Am I right that amendment 157 hinges on amendment 155, which we talked about last week and which was not moved? If I am right about that, amendment 157 is consequential, and because amendment 155 did not go through, we ought not to move forward with amendment 157 today. However, amendment 69 is completely separate—it relates to a separate issue. Therefore, colleagues can come to different views on amendments 157 and 69.

I will take you back to your amendment 185, cabinet secretary, which you talked about at the start of your speech, because I want to clarify something in my own mind. I was waiting to see whether you would address the point.

Amendment 185 removes the Lord Justice General as the person to appoint judges and inserts the Scottish ministers. My concern is that that could look like a power grab by the Scottish ministers. The approach would be in marked contrast with the position in England and Wales, where the independent Judicial Appointments Commission appoints judges. Forgive me if this is what you were doing earlier, but can you walk me through why it is necessary to give ministers that power and to take it away from the Lord Justice General?

I am grateful to the cabinet secretary for her remarks. I will deal with all my amendments in the order in which I proposed them.

I am grateful to the cabinet secretary for dealing with amendment 130, and I will keep this short. The cabinet secretary makes a very persuasive case, and, having listened to her, I will not move that amendment.

I absolutely believe in what I am trying to do with amendments 132 and 133. However, again, having listened to the cabinet secretary, I think that there is a force of argument behind what she says. It would never be anyone’s intention to weaken the safeguards for victims. The cabinet secretary knows that I get very worked up about specifics and imprecise drafting, and her point was well made about how those particular amendments could be misunderstood. I will not move amendments 132 and 133 at this stage, but I would be very grateful if the cabinet secretary would work with me. I get the sense that the cabinet secretary agrees that there is something there, but we have to get it right if we are going to do it.

I am very grateful for the cabinet secretary’s comments on amendments 129 and 131. It concerns me when the cabinet secretary, for whom I have a great deal of respect, argues against my amendments. That always gives me pause for thought. The cabinet secretary also mentioned Dr Tickell, for whom I have the greatest respect. When Dr Tickell tells me that this might be challenging, that concerns me greatly. However, the cabinet secretary would expect me to argue back, and my brief arguments against her proposals start with a remark that she made about amendment 131 specifying that there is “no good reason” to refuse. My straight point on that is that all that I have done there is to mirror the existing drafting of section 106D(4)(b) of the 2016 act, which includes the phrase “no good reason”.

I hear the concern about extending anonymity beyond life, but my view is that that should be the default position for victims and complainers. Victim Support Scotland, in its submission, said that the bill is about greater protections for victims of sexual offences and that that protection should surely not lapse automatically on their death. An example that troubles me, which I had in mind, is when a victim of a sexual offence obtains lifelong anonymity but, a week later, is unfortunately dead. If my amendment 129 is not agreed to, all the details in such a case would become publishable straight away, which feels wrong. That cannot be right if we are to protect victims and their close family.

I remind the committee of evidence that we received during our stage 1 consideration from a victim of sexual assault, who said—as is set out anonymously in the submission—that they wanted anonymity to continue after their death because of the impact that removal would have on their family. They made quite a powerful statement:

“There should be no end point for anonymity for the complainer. Should be anonymous from the start and no end point, for the person’s dignity. Even if I was to die, or another complainer to die, the family would have to deal with it”.

I feel that that is quite a powerful argument that should give us pause for thought.

I am glad that the cabinet secretary raised the consultation on media reporting on child homicide victims, which is a very concerning issue; however, I think that we can distinguish the situations. First, the consultation focused on child victims of homicides, and the list of offences contained in section 106C(5) does not limit anonymity to such cases. Furthermore, the consultation does not show consensus on how the waiver of the right to anonymity of child victims of homicide should operate. Respondents highlighted that some families might have different views on whether details of the child victims should be published. Indeed, the analysis of the responses indicates that, for some respondents, ensuring the

“child homicide victim’s anonymity would help provide space for families to grieve in private and process information at their own pace.”

In any event, we cannot get away from the fact that provisions in the Victims, Witnesses, and Justice Reform (Scotland) Bill cover a wider spectrum of sexual offences cases.

The cabinet secretary made a persuasive argument about the situations in different jurisdictions, particularly Ireland and the state of Victoria in Australia. That gives me pause for thought, but other comparable jurisdictions have extended the right to anonymity beyond the victim’s death. I take as my authority the criminal justice division of the Scottish Government, which has produced a very helpful paper that I can easily distribute later if members have not seen it. The paper considers the example of Victoria and what happened there, as well as the examples of Ireland and Northern Ireland. The Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 extends the anonymity of all victims of sexual offences for 25 years after their death. I find that particularly interesting, not least because it follows recommendations made by Sir John Gillen, who indicated in his report that ceasing anonymity on the victim’s death might have a negative impact on victims who are suffering from a terminal illness and on the families of victims who have died.

Another example is Canada, where young people cannot be identified as a victim or a witness of an offence. That protection is automatic and indefinite. The paper also mentions New South Wales, where there is an automatic extension of anonymity for child victims beyond death, although next of kin have the right to waive that anonymity.

In summary, I am conflicted on the issue, as I think that my amendments 129 and 131 have merit. I hear the challenges from the cabinet secretary and Dr Tickell, but, on balance, I feel that I can meet those challenges and that the amendments are the right way to go.

Given that I can distinguish the Victims, Witnesses, and Justice Reform (Scotland) Bill from the points cited, I will press amendment 129.

Great—thank you.

I want to clarify that matter. The cabinet secretary put a number of arguments. I did not find the argument about extra bureaucracy particularly persuasive, because what is being argued for is the creation of a whole new tier, so we would be creating extra bureaucracy anyway.

However, the cabinet secretary spoke persuasively towards the end of her remarks about a number of expert groups that have been surveyed. They said that creating a new court is the right thing to do, because we cannot leave things the way that they are, as we will spend 40 years not getting it right. Will the member address that point by the cabinet secretary? I found it quite powerful.

I just want to be absolutely clear on what we are being asked to do. You are suggesting that we should set up a sexual offences division rather than the proposed sexual offences court, because that would better achieve the outcomes that you are seeking. Am I understanding you correctly?

On the contrary. First of all, I am not proposing anything. I am simply outlining why I will be voting in support of Sharon Dowey’s amendment 92. I have no amendments in this group. I have come to the issue cold, and I have considered all the positions.

However, I do not concede that there is no evidence here. I say that because it seems compelling, given everything that I have said, that we need to align most closely with similar systems where they exist. That would address Pauline McNeill’s point about the need to take the safest way in order to preserve justice.

In England and Wales, as we have heard, a two-verdict system operates, with 12-person juries. In that system, unanimity, or a supermajority, is required for a conviction. Similar systems operate in the USA, Canada, Australia, New Zealand and Ireland.

Colleagues, today we are being asked to make—

I thank all my colleagues and the cabinet secretary for their guidance this morning. I am very worried about the decision that we have been asked to make, which is to choose between competing jury sizes and majorities, because I have no idea which one will ensure that justice is done—that the guilty are convicted and that the innocent go free.

Members might recall that the 2015 final report of the post-corroboration safeguards review indicated that our unique system—let us remember that it is unique; nowhere else in the world runs our system—has unique features that

“form important parts of a balanced system.”

Those features—the corroboration requirement, the 15-person jury, the three verdicts and the simple majority—have been in place for hundreds of years; all four were in place from the mid-18th century. The bill will make fundamental changes to that system: it will remove the third verdict and move to a two-verdict system, and the requirement for corroboration has already changed. What impact will those changes have on a hitherto balanced system? I do not know, but neither does the Lord Advocate.

Katy Clark rightly drew our attention to the Lord Advocate’s letter to us last week. The cabinet secretary suggested that corroboration is still there, but we know from His Majesty’s Advocate v PG and JM that there has been at least a degree of dilution. In her letter, speaking specifically to corroboration, the Lord Advocate concedes that

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

Indeed, in her evidence to us on 26 February, the cabinet secretary conceded that the changes that we are making might impact “the balance of fairness” in the criminal justice system.

Colleagues, no one can tell us what the correct evidence-based system should be in order to preserve the safeguards. For example, Rape Crisis Scotland has said that we should not change the simple majority, but it concedes that there is insufficient evidence to back that position. I think that the cabinet secretary spoke persuasively earlier as to why a simple majority should not be preferred. We heard from the senators of the College of Justice, who suggested a two-thirds majority but, as has been articulated throughout our sessions, they were not sure and had a number of caveats.

I shall.

Pauline McNeill is absolutely right. As I said earlier, I agree with the committee and the Scottish Government that much more needs to be done on the issue of retrials before we change the current position. However, that said, today we will make, one way or another, fundamental and foundational changes to Scotland’s criminal justice system, and we will do so in a data and evidence void. The only conclusion, in my view, that is consistent with the facts that I have set out is that the safest way to ensure that justice is done is to mirror, as closely as possible, established systems elsewhere in a manner that is recommended by experts at the Law Society.

For that reason, I shall support Sharon Dowey’s amendment 92 when I am asked to vote on the amendments in this group.