Hansard

I thank the member for her intervention and have dialled down my flamboyance for her today.

I agree. The member speaks to a point that is a recurring theme, which is that much of what could be done can be done without legislation.

The not proven verdict came into being entirely by accident, not by design, and does not exist in any comparable jurisdiction. It is an acquittal that is no different from a not guilty verdict but has no legal definition. Countless victims, and their surviving relatives, have been devastated by that verdict.

A guilty verdict can be returned only when the Crown Office proves its case beyond reasonable doubt. If it has not done so, an acquittal must follow. I therefore do not see how case outcomes would be altered by the removal of the not proven verdict.

That brings me to another provision in part 4, one that the Government thinks is needed alongside the abolition of not proven. The Government wants to reduce jury size from 15 to 12, which would be consistent with comparable international jurisdictions. The existing system allows for a guilty verdict on the basis of a simple majority of eight out of 15, but the Government seeks to change that to a two thirds majority—eight out of 12—for conviction.

That proposal appears to please no one. Defence lawyers say that it is inconsistent with international practice, where either unanimity or a majority of 10 or 11 out of 12 is required, while the Lord Advocate would like the bill to be amended to include provision for a retrial in the event of seven out of 12 jurors believing that the accused is guilty. The committee is not convinced that abolishing the not proven verdict necessitates changes to juries. Members agreed unanimously that the evidence is not there for that.

Part 5 seeks to create new sexual offences courts, which would be not new courts but existing courts with different signs on the door. One of the committee’s concerns is that they might result in a perceived downgrading in the treatment of sex crimes, and another is that they could hear murder cases where charges of a sexual nature are also on the indictment. In response, the Government has said that it is considering stage 2 amendments. I look forward to seeing the detail of those.

Part 6 seeks to give sex crime victims automatic lifelong anonymity. It is a tribute to Scotland’s news media that that right has long been respected by convention alone. However, although we support the proposal, there are unresolved issues relating to potential criminalisation of free speech. Part 6 would also give complainers in sex crime cases the right to legal representation in specifically defined circumstances. That is another proposal that instinctively seems agreeable, but there are concerns about the financial cost and fears about the unintended consequence of adding to delays for victims.

I will end on the Government’s single most contentious proposal, which is to scrap juries in some rape trials. That would be a departure from the long-established right of a person who is accused of a serious crime to a trial by a jury of their peers. We believe in the value of juries, which are the cornerstone of the justice system. They reflect wider society and comprise a diverse range of views and life experiences. There is insufficient evidence to justify what would amount to an experiment with people’s lives.

One argument for the proposal is that jurors—in other words, the Scottish public—are prone to believe so-called rape myths, but where is the evidence for that? Furthermore, it was only late last year that Scottish judges began to address jurors about rape myths, despite that being long-established practice elsewhere in the UK, and we really need to see what impact that will have. In addition, as much as ministers might want to wish away threats that such proceedings would be boycotted by lawyers, they cannot do that. The Scottish Conservatives also have other concerns about juryless trials, which are set out in the stage 1 report.

We find ourselves in a difficult position today—a position that is of the Government’s making. My party’s Holyrood manifesto contained a real victims bill in the name of our next speaker, Jamie Greene. It also included abolition of the not proven verdict. However, the bill that is in front of us today is vast, unwieldy and complex. There is a lack of evidence, there are too many unanswered questions, and it is experimental—perhaps even dangerously so. The Government appears to be experimenting in much the same way as a mad scientist at work. Another committee member described the bill as being like a Rubik’s cube in that, if you fix one side, you realise that you have messed up the rest of it.

It would be easy to vote against the bill today, but we will instead abstain to send the Government a very clear message. The bill can be fixed and it must be fixed. The Government needs to engage, to listen and to think again.