Criminal Justice Committee content to agree the general principles of the Victims, Witnesses, and Justice Reform (Scotland) Bill but have concerns with some proposals and seek further improvements

As part of a detailed Stage 1 report, the Committee say further evidence, data and scrutiny is required, while some Members have concerns about the extent of legal reform contained in the Bill and the potential unintended consequences that so many system changes could cause.

The Committee say on the balance of evidence the not proven verdict should be abolished. They say it is not sustainable to have a verdict in a criminal trial which has no accepted legal definition and that it being a historical feature of the Scottish criminal justice system is not sufficient reason to retain it (see paragraph 690).

The Committee added that should the Scottish Government proceed with the abolition of the not proven verdict it could not support the proposed changes to jury size and majority because it had not heard compelling evidence to support this.

On the proposed pilot scheme for criminal trials of rape or attempted rape by a single judge without a jury, there was a range of views within the Committee.

Committee members Audrey Nicoll MSP, Rona Mackay MSP, Fulton MacGregor MSP and John Swinney MSP back the pilot, subject to a number of safeguards. These include limiting the pilot to a period of no longer than 18 months (see paragraph 1268).

Other Members, Russell Findlay MSP and Sharon Dowey MSP, are not persuaded that the pilot should go ahead. In their view, this proposal represents a fundamental departure in Scots law from the long-established right of a person accused of serious crime to trial by a jury of their peers. They are also concerned about the homogeneous nature of the judiciary and are mindful of conflicting evidence on the issue of ‘rape myths’ (see paragraph 1269).

Committee Members Katy Clark MSP and Pauline McNeill MSP also do not think the pilot should go ahead saying clearer criteria, timescales and procedures have to be on the face of the Bill in order for it to proceed. They say that if the provisions relating to the pilot proceed, a panel of three judges should be considered and a sunset clause will be essential (see paragraph 1270).

On the proposal to establish a new sexual Offences Court, all members of the Committee highlighted concerns including the prospect of the new court considering murder cases and the resources required in order for it to meet its full potential. However, the Committee is split on the question of whether a new court should be established.

Committee members Audrey Nicoll MSP, Rona Mackay MSP, Fulton MacGregor MSP and John Swinney MSP support the proposal, but encourage the Scottish Government to take the necessary steps to address the concerns outlined in this report regarding the status of the new court (see paragraph 893).

While Committee Members Katy Clark MSP, Pauline McNeill MSP, Sharon Dowey MSP and Russell Findlay MSP do not support this proposal saying they believe the necessary improvements could be achieved through the creation of specialist divisions of the High Court and Sheriff Court (see paragraph 894).

Speaking on publication of the report, the Criminal Justice Committee Convener, Audrey Nicoll MSP, said:

"We have carried out extensive scrutiny of this Bill and have listened to a wide range of voices and arguments both for and against the proposals.

"While our Committee is content to agree the general principles of the Bill at Stage 1, further improvements can be made. Although Committee members did not support every proposal in this Bill we all recognise it has the potential to improve the justice system for victims and witnesses and this is something we wholly support.

"For some Members, the final composition of the Bill at Stage 3 will ultimately determine whether they are able to support it.”

The Convener continued:

"We believe the not proven verdict has had its day and should be abolished. The lack of understanding or clarity on what this verdict means and the devastating impact it can have on victims mean the time has come for it to be abolished.”

"We recognise the strength of feeling on the proposed pilot of juryless trials and have been unable to reach a unified view on whether this pilot should proceed. However, we agree that if a pilot is to go ahead then much improved data on conviction rates is needed and a clear baseline of information so we can understand the impact of the pilot.

"We have been determined to place the voices of survivors and individuals affected by crime at the centre of our scrutiny and are very grateful to all who have engaged with us throughout our scrutiny of this Bill”.

Other key findings in the report include:

• The Committee say they are not convinced that a strong case has been made for the establishment of a Victims and Witnesses Commissioner; saying it could create another layer of bureaucracy and strain on public finances at a time when resources are under extreme pressure. They have said the Scottish Government should consider whether better outcomes may be achieved by focusing spending in areas which have a more direct and immediate benefit for victims and witnesses.
• On the provisions related to ‘trauma informed practice’, the Committee has recommended that a ‘whole system approach’ be adopted. The Committee warn this must not be a tick-box exercise and say the provisions around this issue and its definition should be strengthened.
• The Committee welcome the policy objective of Part 3 of the Bill to expand the availability of special measures in civil cases.
• The Committee support proposals in the Bill to provide publicly funded independent legal representation to complainers when applications are made and agree with Lady Dorrian that the case for such representation is unanswerable.
• The Committee welcome the proposal to provide automatic statutory protection for the anonymity of complainers in sexual and related offence cases. They say this is essential to give complainers confidence to come forward, particularly following the advent of social media.