Hansard

I thank members for the constructive debate this afternoon. It has been a pleasure to take part in it.

Like others, I begin by paying tribute to Michael McMahon for bringing this issue and the connected issue of jury majorities to the fore. A member’s bill requires unrelenting commitment and dedication, and the member has certainly demonstrated both over a number of years in his continued efforts to reform this area of Scots law.

I start by observing that although, in my limited experience in this Parliament, it is not often that the Scottish Conservatives agree with the Scottish Government’s approach to reforming the criminal justice system, my party recognises the need for jury research and welcomes the cabinet secretary's assurances that it is commencing.

However, I also share the concerns that my colleague Margaret Mitchell expressed. I appreciate that such research will take some time to complete and, therefore, am concerned that jury directions in some sexual offence cases are being pre-emptively put on a statutory footing through the Abusive Behaviour and Sexual Harm (Scotland) Bill, without waiting for the research findings to support what the Law Society has called a

“major departure from existing practice.”

It seems to me that the Scottish Government has taken a pick-and-mix approach to policy implementation in the past, particularly in relation to the general requirement for corroboration, whereas what we need is a consistent, holistic approach that looks at Scotland’s criminal justice system in the round.

I note with interest that Christine Grahame, the SNP convener of the Justice Committee, made a similar point in relation to juries to the cabinet secretary during his stage 1 evidence on the bill. She said:

“You rightly said that we need to consider how juries think about things, how they come to decisions and why they arrive at a not proven verdict in certain cases rather than a guilty or not guilty verdict. Juries’ thinking is complex, and I am glad that we are doing the research. Nevertheless, it seems to me that jury directions are something else that could be encompassed in that research.”—[Official Report, Justice Committee, 19 January 2016; c 6.]

Michael McMahon has argued that not proven should be removed as a verdict in criminal trials for a number of reasons, one in particular being that the judiciary cannot give directions or guidance to juries about the difference between not guilty and not proven. Here, SPICe was very helpful. According to figures provided by the Scottish Government, of the 970 people who were acquitted on the basis of a not proven verdict in 2012-13, 694 were prosecuted under summary procedure, meaning that the verdict was delivered by a sheriff, not a jury. For that reason, Sheriff McFadyen suggested:

“While the not proven verdict is often criticised and is somewhat anachronistic, the fact that it is used, albeit sparingly, in summary trials perhaps indicates that it is not wholly pointless.”

Although there is some divergence in opinion about whether the not proven verdict should be abolished, the consensus view is that now is not the time to make such a radical change to the current system of having three verdicts in criminal trials. The Scottish Conservatives believe that there should be a compelling case for change, with a strong evidential basis, which has not yet been made. For that reason, as Margaret Mitchell said, we will not be able to support the bill at decision time.