Hansard

Presiding Officer, as you say, I am speaking on behalf of the Justice Committee and not in a personal capacity, but first I personally want to commend Michael McMahon for his tenacity and his informed pursuit of the bill up hill and down dale. I know what that is like—I have done it myself, and I know that you become committed to the bill, as Mr McMahon has shown.

The process has been useful because Mr McMahon has, in putting forward his proposals, reignited the debate surrounding the not proven verdict, and I welcome the opportunity to speak on the committee’s consideration of the bill.

As Mr McMahon has outlined, the bill consists of two distinct sections. Section 1 seeks to amend the Criminal Procedure (Scotland) Act 1995 by removing the not proven verdict and retaining the verdicts of guilty and not guilty. Section 2 would introduce a requirement for a qualified majority of at least two thirds in jury trials in order to secure a conviction.

Members will be aware that the Justice Committee agreed to postpone consideration of the bill while the Criminal Justice (Scotland) Bill progressed through Parliament. That decision was made in light of the fact that both bills contained similar provisions relating to jury majorities. Following amendments at stage 2, the Criminal Justice (Scotland) Bill no longer made provision to abolish the general requirement for corroboration. The provision on jury majorities, which was seen as incidental to the removal of corroboration, was therefore also removed.

After the Criminal Justice (Scotland) Bill was passed, the committee returned to Mr McMahon’s bill. We issued a call for written views in November last year and received submissions from a variety of stakeholders including lawyers, academics, Police Scotland, victim support groups and several justices of the peace. We took oral evidence on the bill during a single evidence session on 19 January 2016, in which we heard from the Cabinet Secretary for Justice and then from Mr McMahon. It is not my intention to discuss all the issues that are discussed in the committee’s stage 1 report, but I will highlight some of the more pertinent topics that were identified during our consideration.

The need for legal proceedings to have a clear outcome led to some questioning the merits of a system with two verdicts that, in legal terms, do the same thing—namely, acquit. We received evidence that often, as Mr McMahon said, the not proven verdict is not well understood and carries with it a degree of stigma. The suggestion is that the accused was probably guilty but that there was not, on that specific occasion, sufficient evidence to convict. That is the no-smoke-without-fire theory. Clearly, that is unhelpful not only for the accused but for the victims of crime. The perception that a judgment carries with it finality is important and helps victims to move on with their lives. Many support groups favoured the abolition of the not proven verdict on those grounds.

There was some discussion in evidence of whether, if a two-verdict system were to be adopted, it should be the not guilty verdict rather than the not proven verdict that is abolished. It was argued, for example, that verdicts of proven and not proven better reflect the role of the judge or jury at the conclusion of a trial as their deliberations are based on proof of evidence rather than on taking a view on whether or not the accused is innocent. Of course, the not proven and proven verdicts are Scottish. Arguments that were advanced in favour of a choice between guilty and not guilty highlighted the greater public familiarity with such verdicts, and the fact that the key question to be resolved in any criminal trial is whether the accused is guilty beyond all reasonable doubt and the person should therefore be deemed to be innocent until it is proven otherwise.

Section 2 seeks to introduce a system under which a guilty verdict requires the support of at least two thirds of the jury. The committee appreciates that those proposals were advanced as a way of ensuring that the abolition of the not proven verdict would not heighten the risk of wrongful convictions. We understand Mr McMahon’s position and the need, as he saw it, to introduce measures that would mitigate the impact of the proposals that were set out in section 1. However, we noted the views that were articulated in evidence on the bill and in the context of the wider debate regarding criminal procedure in Scotland.

The committee, throughout its scrutiny of the bill, considered whether a change in jury majority might have a corresponding effect in other areas of the legal system. For example, a number of support organisations were concerned that any increase in the majority required for a conviction would disproportionately affect victims of certain crimes. There was also a perception that the abolition of the not proven verdict might lead to more unsafe convictions—or, conversely, to significantly more not guilty verdicts. Although those concerns were to a greater or lesser degree a matter for conjecture, they raised wider questions about the behaviour and decision making process of juries, which is an issue that the committee has been looking at for some time.

Without a sound evidence base, it is not possible to know how the proposals relating to jury majorities might play out in practice, and the majority of the committee concluded that more work needed to be done before changes were made to that area of the law. The parameters of the research that is proposed by the Government are still to be framed, but we would expect that any research on jury behaviour would take into consideration the matters that we have explored during the consideration of Mr McMahon’s bill.

As we have heard, the committee was generally supportive of the proposals relating to the abolition of the three-verdict system. The bill has shone a welcome light on the ambiguities of the not proven verdict and the issues that it continues to throw up for justice in Scotland. As I have said before, the not proven verdict is often deeply unsatisfactory for victims and is often no better for the accused. Like many members of the committee, I believe that the not proven verdict is on borrowed time. However, although we understand the reasons for Mr McMahon including the measures relating to jury majorities, it was the committee’s view, having considered all the evidence, that further research on decision making by juries is needed before we proceed with the other reforms that are set out in the bill. The committee was therefore unable to support the general principles of the bill.

The cabinet secretary announced in September that the Government would be conducting research into jury behaviour, and the committee hopes that the research will proceed as soon as possible. I would not want Mr McMahon to be disheartened, because sometimes we just have to keep going at something, as he will know. I think that he has made huge progress and that the issue is not done and dusted by any means. It is up to any incoming Government to decide how to take it further, but Mr McMahon has, on balance, the sound support of the committee on at least one part of his bill; it is the other part that we think needs further research.

I look forward to hearing other members’ contributions to this debate and to receiving the Scottish Government’s response to our committee report.