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I absolutely share Pauline McNeill’s concern about the lack of research. To go back to my intervention on Katy Clark, whatever we do today, we are making a decision—even if we do nothing on the amendments, things will happen, because the bill has been drafted in a certain way. I am interested to hear what the cabinet secretary says in response to the debate as to when the provisions will come in and whether there is a role for doing research prior to that. I will wait to see what the cabinet secretary says.

Because we are being required to make a decision today, I would like to say why I will vote the way that I am going to vote, because I feel that I am—well, I am—required to do so. We all are. I hope to persuade members that my position is the correct one.

Victim Support Scotland wrote to us—again, very persuasively—and said that this is a highly complex area. It conceded that there is an absence of research to validate the rationale to change jury size and majority verdicts. Colleagues, you heard all the evidence when you were producing your stage 1 report—I did not, as I was not on the committee at the time—and you concluded:

“we have not heard convincing evidence which would support the adoption of any specific alternative model for jury size and majority.”

You went on to say that there was

“no compelling or definitive evidence presented which would give us sufficient confidence to endorse any of them.”

However, today, we have to make a choice and select a change, notwithstanding that evidential vacuum.

My view in deciding how to vote—bearing in mind that I was not on the committee and did not hear or interrogate the evidence—is heavily influenced by the representations that have been made to us by the Law Society of Scotland. For transparency, I remind colleagues that I am a practising solicitor and a member of the Law Society.

The Law Society, which deals with the issue day in and day out, has told us over and over that the unique Scottish system uses its four limbs as a balance. With the abolition of not proven and changes to corroboration, it has consistently suggested that rebalancing to ensure that the guilty are convicted and the innocent go free is achieved by the proposals set out in Sharon Dowey’s amendment 92. That makes sense because, as was pointed out earlier, Scotland is an outlier—it is utterly unique. If we vote for anything other than the Sharon Dowey amendment, we will replace one unique system with another system that is completely unique and is also completely untested and completely unevidenced, with unknown impacts.

I hear that, and I freely concede that the committee’s report looks at the retrial issue and says that further evidence and consultation is needed. Indeed, the Scottish Government conceded that we need more evidence on retrials before making that substantive change.

I come back to Pauline McNeill. We are being asked to make a change today, one way or another. We either vote for one of the amendments or we default to the position that is set out in the bill. We have to come to a decision.

For reasons that I will shortly finish up on, the only decision that we can make to be as safe as possible is to agree to Sharon Dowey’s amendment 92. Let me continue to say why. The cabinet secretary proposes a slightly different model in her amendment 146. In previous weeks, she has suggested that she has little time for what she calls Scottish exceptionalism. In that, we find common ground indeed.

I submit that, without compelling evidence, we should not be the exception. We should not be the test bed, and this is a test. In proposing a different model, the cabinet secretary is rejecting the model that was proposed by the Law Society. However, on Monday, I received a response to a parliamentary question that reveals that the cabinet secretary has not met the Law Society to discuss the bill since July 2023. The last time that she met representatives of the Law Society to discuss the bill was as part of a round table in September 2023, which was a long time before the committee took evidence on it.

Furthermore, on 20 March, I received a response to another of my questions, in which the cabinet secretary said that the 138-page policy memorandum for the bill

“set out the reasons the Scottish Government proposed to reduce jury size to 12”,

including evidence, as the cabinet secretary talked about earlier, from the independent Scottish jury research. The cabinet secretary’s answer goes on to say:

“In its Stage 1 report the Criminal Justice Committee did not support the reduction in jury size. I therefore confirmed ... I would bring forward amendments to retain a jury of 15, in line with the Committee’s position.”—[Written Answers, 20 March 2025; S6W-35546.]

In short, when building the bill, and I presume not long after the cabinet secretary met the Law Society, the evidence suggested that changes that are in line with those proposed by Sharon Dowey were the right way forward. However, in response to the committee’s report, which said that there was

“no compelling or definitive evidence presented which would give us sufficient confidence”

to endorse any of the proposed options, the cabinet secretary has lodged the amendment that we see today.

I intervened earlier, and the cabinet secretary conceded that the jury research shows the benefits of a jury of 12. She said that it showed the benefits of the process, but I have been through it, and “process” is a catch-all term for an awful lot of benefits that are set out—although I concede that that is my view. However, the cabinet secretary then said, in contrast, that there is no disparity between 12 and 15 jurors when it comes to the issues discussed or the verdict. That is fine, but the cabinet secretary conceded that a jury of 12 has demonstrable benefits, according to the jury research. A jury of 15 does not change the position. A jury of 12 is good, and 15 is no different on some other things. I therefore submit that it is better to go with the thing that the jury research has suggested has benefits—that is, a jury of 12.

We should not be a test. We should not be exceptional. We should not risk the innocent being jailed and the guilty going free. Pauline McNeill was right that we have to get more evidence. We should not take a shot in the dark. We must take the safest way.

I say to Ms Mackay, with respect, that there is no evidence for the assertion that she has just made.

I am listening carefully to what Fulton MacGregor says. He is right that we are being asked to take a step into the unknown, but surely the logical conclusion is that we should try to do something that is known. As the Law Society of Scotland says, we should have unanimity and 12-person juries. That would mirror as closely as possible other jurisdictions that, as Pauline McNeill said, are tried and tested. Is that not the best way to get to a known and, indeed, safe situation?

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?

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.

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.