Seòmar agus comataidhean

I will speak to amendments 104, 105, 106 and 110.

Amendments 104 and 105 relate to the section of the bill that describes how the commissioner will carry out investigations into whether an agency has—colloquially speaking—stood up and accounted for victims and witnesses. Both amendments are to section 12, which sets out how the commissioner may gather evidence and from whom, as part of their investigation. Section 12 says that

“The Commissioner may require any person .. to give evidence”

and “produce documents” if they are conducting an investigation under that section. Section 12(4)—rightly and understandably, in my view—clarifies that representatives of the Crown Office and Procurator Fiscal Service need not provide the information required by the commissioner if, according to the Lord Advocate, doing so could

“prejudice criminal proceedings in”

a particular

“case or ... be contrary to the public interest”.

Amendments 104 and 105 introduce a similar exception for defence practitioners—or “legal representatives”, as they are tightly and precisely defined in amendment 105. Members will note that such representatives are bound by a duty of confidentiality with regard to their clients. To keep things in good order, I again remind members that I am a practising solicitor, although I do not do criminal work, and have not done any for around 20 years.

For those who are not aware—these are my words, but members can check this if they wish to—the duty of confidentiality is fundamental to a solicitor or legal practitioner. It is non-negotiable. It is an obligation on a solicitor; it is a core principle of the solicitor-client relationship; and it is essential in maintaining trust in the legal profession. Were a solicitor to breach that duty, which is enshrined in various codes of conduct, in laws and in professional ethics, there would be very serious consequences indeed. Accordingly, my amendment 104 simply looks to replicate the protections in section 12(4) for legal representatives—that is, defence counsel—and to clarify that the commissioner’s investigative powers do not override the duty of confidentiality and that the principle of equality of arms is upheld between the prosecution and the defence by giving similar protections to both.

Amendment 106 also relates to the commissioner’s investigations, but applies to section 14, on the power of the commissioner to gather information. It is my belief that if we are to have a commissioner, and if they are to be effective, they have to have some teeth. What struck me when considering the bill was that the commissioner did not seem to have those teeth. Under section 14, they can “require” an “agency to supply information”, serve a notice demanding it and revoke such a requirement. However, they cannot enforce it.

My amendment 106 tries to give the commissioner teeth by ensuring that they are provided with enforcement mechanisms by which to exercise the power to ingather information. However, I am mindful of the fact that the committee has not, I think, had an opportunity to discuss during our evidence taking what those enforcement powers might look like. Moreover, more widely, I think that the Scottish Parliament is currently discussing other bills that provide Scottish ministers with the facility make regulations on enforcement powers when information is required by public agencies for different purposes. Therefore, instead of trying to come up with a specific enforcement power, I thought that it would be more sensible—and, I dare say, more palatable to the committee—to reserve to Scottish ministers a power under the bill to bring in, by regulations at a later stage, whatever enforcement power would be appropriate. That is what my amendment 106 seeks to do.

Amendment 110, which is my final amendment in the group, concerns section 21, which sets out that, in order to assist the commissioner in doing their job, they “may request” the co-operation of specific criminal justice agencies. Section 21(2) deals with the legitimate response of an agency upon receiving such a request, which will be either yes or no. Again, however, the commissioner has no enforcement power if they receive a no, and my concern was whether the committee would prefer them to have that enforcement ability. Absent any evidence taking, I do not feel comfortable proposing the extent and scope of such an enforcement power. It seems to me that, as with amendment 106, the sensible thing would be to reserve to Scottish ministers a power under the bill to bring in whatever enforcement power is appropriate by regulations later.

I am grateful to the committee for considering my amendments, and I move amendment 104.

Will the member take an intervention?

I am listening carefully to what the cabinet secretary is saying. How does she respond to the challenge posed by Children 1st in the documents that it has supplied? It is saying, “Okay, the commissioner can be brought in, but now is not the time.” What we really ought to be concentrating on are things that make a difference now, using the limited resource that we have in place.

Forgive me for the delay—

All the amendments in the group, with the exception of the cabinet secretary’s amendment 140, proceed from the principle that I shall outline for amendment 94. The same arguments that I will make for amendment 94 apply precisely to the others, so members will presumably agree with them all or with none at all.

My amendments were suggested to me by the Law Society of Scotland, of which, I remind members, I am a member. They are entirely about ensuring that, should the office of the victims and witnesses commissioner for Scotland be established—which, of course, will be debated later—the law that establishes it is as clear as possible in its terminology and powers, which it needs to be.

My concern when I initially considered the bill was whether, if it is passed and establishes the commissioner role, it is sufficiently legally precise. My worry is that, without meaning to do so, the Government risks excluding from the ambit of the commissioner’s role a category of people against whom a wrong has been done. It hinges on the definition in section 23(1), which tightly defines what the bill means when it refers to a victim.

Section 23 specifies—I will simplify for brevity—that a victim is someone against whom

“an offence … has been, or is suspected to have been, … carried out.”

Further, I note that section 2(1), for example, says:

“The Commissioner’s general function is to promote and support the rights and interests of victims”.

My concern, and the reason why I lodged the amendments, is that, by limiting the defence of rights and interests to the category of “victims” as defined by the bill, we might inadvertently exclude people who do not fall within that definition but, nevertheless, have a legitimate concern that they have been subject to criminal behaviour and who also need and, indeed, deserve support.

To ensure that that category is widened and becomes inclusive rather than exclusive—that is, to ensure that the net for protection, support and aid is wider—I have tried to define “complainer” in my amendment 118. My amendments propose to insert, alongside the defined term of “victims”, the category of “complainers” so that the commissioner’s role, functions and support might be engaged not only in support of the category of people defined as victims by section 23 but in aid of those against whom an offence is suspected to have been committed.

My amendments are about ensuring that, if a commissioner is created, the widest possible number of victims of crimes are brought within the commissioner’s remit to ensure that, at all times, the law truly works in favour of victims of crime and does not inadvertently exclude those who ought to be able to secure the commissioner’s assistance.

I am keen to hear the cabinet secretary’s thoughts on that and whether her interpretation is that the current drafting encompasses all victims who need to be in scope.

I move amendment 94.

As you rightly pointed out, some people would say that unanimity, near unanimity or a supermajority is the better way to go. However, it is not currently where you are. The argument would go that a supermajority, let us say, would align more with the other jurisdictions that you say that you are considering when making the reforms. However, if we say that the burden of proof is “beyond reasonable doubt”, some people might suggest that there is reasonable doubt with a two-thirds majority.

If that is right, why do you prefer a two-thirds majority? Do you reject outright the proposal for a supermajority or are you minded to consider the idea?

My questions are in the same area.

Cabinet secretary, in your letter from October, you suggested that, moving to having two verdicts—that is, removing not proven—would require a change to

“the majority required for conviction”,

in order to avoid miscarriages of justice. Notably—for something that I will ask about later—you also said:

“Scotland would be the only jurisdiction that considered the simple majority to be appropriate.”

You are proposing a two-thirds majority requirement for conviction. What is the evidential basis that led you to conclude that two thirds is the right and safe figure to ensure that there are no miscarriages of justice?

I have a small point, but it is based on the same line of questioning. As someone who is coming to this issue later than many of my colleagues, it has struck me that the stage 1 report raised concerns about creating the commissioner, suggesting that it would lead to extra bureaucracy, financial issues and opportunity costs. In your response to Sharon Dowey, cabinet secretary, you noted that there are voices in support—and, of course, there are—but this morning the committee received representations from Scottish Women’s Aid reiterating those exact concerns and saying:

“We maintain our opposition to the creation of this Commissioner”.

I believe that other colleagues have submitted amendments to remove the concept of the commissioner completely. Throughout this process, you have shown a commendable willingness to change position based on committee recommendations or representations from groups. How do you respond specifically to the stage 1 concerns and, perhaps more importantly at this stage, the Scottish Women’s Aid representations?

My final question is about juries. The committee’s stage 1 report included evidence from Professor Leverick, who expressed the view that, if we are to move to a system that is similar to those in other jurisdictions, we should consider whether a majority of eight out of 12 jurors—in other words, a two-thirds majority with a reduced jury size—is appropriate. There is a proposal to retain the jury size at 15. I am not aware of any other system that has 15 jurors, so Scotland is potentially an outlier already, but that makes sense if, as the cabinet secretary acknowledged, we have a balanced system involving the not proven verdict and corroboration.

In relation to moving to a two-verdict system, changes to corroboration, which the cabinet secretary mentioned, and closer alignment with other jurisdictions on majorities, what does the cabinet secretary say to those who say that it is better to move to a 12-juror system to ensure that the whole system is more closely aligned with those in other jurisdictions where things have been tried and tested?

Indeed.