Meeting of the Parliament (Hybrid) 15 December 2021
I, too, pay tribute to campaigners such as Speak Out Survivors, Miss M and others for their courage, candour and commitment to change in order to deliver improvements in how our justice system deals with the heinous crimes of sexual violence and rape against the backdrop of what is happening, as Katy Clark just rightly described.
This proposal has been the subject of cross-party discussions through the course of the previous session and during the early months of this one. I thank colleagues across the Parliament as well as the current and previous justice secretaries for the collaborative approach that has been taken on the issue. The discussions have been informal and behind the scenes, and I think that it is right that we now have an opportunity to debate the matter in a more public sense, so I thank Jamie Greene for providing this opportunity. His motion perhaps jumps the gun, but I think that it points to the right direction of travel. We will support the Government’s amendment as well as Pauline McNeill’s amendment, which makes an important argument about the risks of retraumatising victims.
For some time, Scottish Liberal Democrats have been sympathetic to calls for the not proven verdict to be dropped. It does not really sit well in a modern legal context, not least because there is no fixed legal definition of the verdict, which was established through custom and precedent in the Scottish courts in the 17th and 18th centuries. We know from the 2019 research that the cabinet secretary referred to that it can be confusing for juries, leading to higher rates of acquittal, as Humza Yousaf has previously acknowledged. It is confusing for the public, too, as it often stigmatises an accused person by appearing not to clear them of charges. It routinely fails to provide closure for victims. The case for change is therefore strong, if not compelling.
However, we do a disservice to those campaigning for change, to those who are tasked with enforcing our laws and to our legal system itself if we ignore or downplay the complexities or interconnections that I think have been acknowledged this afternoon. I note that the Law Society briefing points to the concerns that have been raised across the profession, even among some of those who are supportive of a move from three verdicts to two.
It is important that we understand those concerns, that we reflect on them and that we seek, as far as possible, to address them. I welcome the launch of the consultation over the past few days. It presents a chance to consider a range of views, including those of opponents, and, crucially, those of victims and those with lived experience.
The consultation will need to consider not just the not proven verdict, as Christine Grahame rightly highlighted in her intervention. It will need to consider the size and make-up of juries and of the majorities that are needed to convict, and the right to legal anonymity for victims in sexual offences prosecutions, which exists in other parts of the United Kingdom but does not exist here, notwithstanding the steps that are often taken by courts to protect that anonymity. It should look again at corroboration, although I hope that lessons have been learned and that the Scottish Government will not seek to rerun battles through the abolition of corroboration. Importantly, it should do more to protect victims from being retraumatised by the justice system that is supposed to protect them. That was very well picked up in Pauline McNeill’s amendment.
Lord Carloway stated recently that
“Cross-examination should not be used as a means of intimidating or humiliating witnesses”,
and he is absolutely right. There is a great deal of common ground in that area, and I hope that we can continue in that vein while also having the necessary challenge function as we pursue the improvements that we all believe are required.
I thank Jamie Greene again for enabling the debate—if not perhaps for wanting to bypass the consultative process that is needed before we arrive at an end point, which I sense has a growing inevitability about it.
17:15