Meeting of the Parliament

Meeting date: Thursday, February 25, 2016

Official Report 889KB pdf

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Criminal Verdicts (Scotland) Bill: Stage 1

The next item of business is a debate on motion S4M-15429, in the name of Michael McMahon, on the Criminal Verdicts (Scotland) Bill.

15:59  

I am pleased to open today’s debate on the Criminal Verdicts (Scotland) Bill. Today we debate and vote on whether the Parliament agrees to the general principles of a bill that aims to remove one of the most controversial and illogical elements of the Scottish judicial system. The not proven verdict has been much criticised, with Sir Walter Scott most famously referring to it as “that bastard verdict”.

It is true that the verdict has its defenders, but I argue, and my consultation shows, that they are in the minority. The arguments about it have rumbled on over the years among lawyers and academics, but I have long been convinced that a three-verdict system is no longer defensible in a modern justice system. It causes confusion and uncertainty for victims of crime and for accused persons. The principle that all accused persons are innocent until proven guilty entitles them to a straightforward acquittal in every case in which the prosecution case cannot be established beyond a reasonable doubt.

I first consulted on a similar member’s bill proposal to abolish the not proven verdict at the end of the Parliament’s second session. Although the level of responses to it was disappointing, that consultation yielded some useful information that has subsequently been upheld by the greater level of evidence found in the responses to my second consultation on the proposed bill and in the responses to the Justice Committee’s call for evidence at stage 1.

That is why I genuinely do not believe that any further consultation or review of the jury system as recommended by Lord Bonomy will produce anything that we do not already know. My bill would replace the current system of three verdicts with the same two-verdict system that is used in all other comparable jurisdictions and raise the majority that is required for a verdict from a simple majority to a two-thirds majority.

Having considered the case for other options such as proven and not proven, I have taken on board the results of my consultation and propose that the verdicts in Scottish courts should be labelled “guilty” and “not guilty”. That is what the weight of opinion that was expressed in response to my consultation suggests that we do.

The topic is an important one that lies at the heart of Scotland’s criminal justice system. It has the potential to affect every person in Scotland and the bill could help to make justice simpler, clearer and fairer.

The origins of the three-verdict system are to some extent obscure and disputed. According to some, it is a matter of pure historical accident. Before the 17th century, there was a choice of only two verdicts, but the terminology that was used varied widely. During the 17th century, the practice developed of having longer indictments listing specific charges, with the jury being invited to decide in relation to each whether it was proven or not proven.

That approach was encouraged when, in the 1680s, there were a number of cases in which juries refused to convict those charged under statutes that were introduced for the suppression of the covenanters, reflecting public support for their cause. That led the Lord Advocate to make it a rule that the jury’s role was to be limited solely to deciding whether the facts libelled in the indictment had been proven or not proven. That left it to the judge to make the final decision on guilt. As a result, the guilty and not guilty verdicts fell into abeyance.

That continued until the trials of Samuel Hale in 1726 and Carnegie of Findhaven in 1728. In the former case, the jury was satisfied by Hale’s defence and returned a verdict of not guilty to the charge of homicide. In the latter case, the evidence left no doubt that the accused had killed the Earl of Strathmore during a drunken brawl, but he plausibly denied any prior intention. As a verdict of proven on the facts alone could have led to the conviction and hanging of a man whom the jury regarded as innocent of murder, the jury was persuaded by Carnegie’s advocate to reassert its traditional right to judge the whole case and find the accused not guilty.

The re-emergence of the not guilty verdict did not displace not proven, which continued to be used as an alternative verdict of acquittal, but with a different inference.

In the 19th century, the not proven verdict also came to be used by juries who were unwilling to convict someone of a capital offence because of sympathy for their circumstances. For example, in the trial of Isabella Rae, who was accused of the murder of her two-year-old son after she jumped into a canal clutching the child to her chest, the jury seems to have been convinced that she had been rendered suicidal by a life of abject poverty.

By then, commentators had recognised that a not proven verdict carried a stigma as a form of second-class acquittal, although it had already been established that its effects in law are identical to those of a not guilty verdict. In law, an acquittal, whether not guilty or not proven, has the same effect. However, it is a commonly held view that a person who receives a verdict of not proven is unfairly stigmatised, particularly as they do not have the right to a retrial or an appeal in order to clear their name. The verdict is inconsistent with the presumption of innocence, according to which accused persons should be entitled to an unqualified acquittal if the prosecution cannot convince the jury of their guilt.

As I have said, not only can the current three-verdict system cause confusion, it can lead to the accused being stigmatised. That can arise because the not proven verdict is often thought of as the jury’s way of saying, “We know you are guilty, but we cannot prove it,” or, as the old joke goes, “Not guilty, but don’t do it again.” When the not proven verdict is used, the accused is left in an unsatisfactory limbo, formally acquitted but with their reputation tainted as a result of not being found not guilty. Surely if we all agree with the principle that accused persons are innocent until proven guilty, a defendant should be entitled to a straightforward and unreserved acquittal when the prosecution case against them cannot be established beyond reasonable doubt.

In response to my consultation, I learned of cases where people who had been acquitted on a not proven verdict felt compelled to move away from their homes because they believed that the local community thought that they were guilty of the offence but had got away with it. That cannot be right and it is surely not fair or just.

The first major Government-sponsored review of the three-verdict system in modern times was undertaken by the Thomson committee on criminal procedure, which reported in 1975. That committee, although it argued by a majority for its retention, concluded that the three-verdict system was illogical.

In 1994, the Scottish Office issued a consultation paper on juries and verdicts, which sought views on whether the three-verdict system should be retained or amended. The inclusion of the topic in the consultation is believed to have been prompted in part by the reaction to the 1992 trial of Francis Auld for the murder of Amanda Duffy. Evidence that was led at that trial strongly suggested that the accused had indeed committed the crime and the return of a not proven verdict was greeted with surprise and consternation. In particular, the victim’s parents were instrumental in establishing a campaign against the not proven verdict. The outcome of the trial led in 1993 to the Duffys’ member of Parliament, George Robertson, introducing a private member’s bill seeking to remove the not proven verdict. That followed a similar attempt in 1969 by Donald Dewar.

In 1995, Lord Macaulay of Bragar moved an amendment to the Criminal Justice (Scotland) Bill seeking the same outcome. He argued that, in the modern criminal justice system,

“it is for the Crown to prove its case beyond reasonable doubt and the not proven verdict makes no sense. If the juries are masters of the facts, as they are told they are, they must not be allowed to be the fudgers of the verdict. That is what happens in some circumstances ... We should have no such get-outs in the law and we must therefore get rid of this antiquated verdict.”—[Official Report, House of Lords, 16 January 1995; Vol 560, c 426.]

I could not agree more with Lord Macaulay. That is why I ask Parliament to concur that reform of the criminal verdicts available in Scotland’s courts is both important and overdue.

I thank Elaine Murray for trying to highlight the fact that a clear majority of members of the Justice Committee agreed with that proposal by submitting an amendment to that effect. I welcome that conclusion by the committee and I am disappointed that Elaine Murray’s reasoned amendment was not taken.

It is essential that our justice system in the 21st century is transparent and fully understood by all members of society and I believe that my bill will help with that. In moving my motion, I urge members to vote to make that happen.

I move,

That the Parliament agrees to the general principles of the Criminal Verdicts (Scotland) Bill.

I call Christine Grahame to speak on behalf of the Justice Committee.

16:09  

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.

16:16  

First, I would like to thank Michael McMahon and the non-Government bills unit for their work on this legislation. Like other members, I commend Michael McMahon for all his hard work in bringing forward this proposal on such an important issue. From my meetings with him and from listening to his evidence to the Justice Committee, it is very clear to me how strongly he believes in the changes that are proposed in the bill. His commitment to this area of reform has been unwavering.

I realise that the changes to the timetable for the Government’s Criminal Justice (Scotland) Bill have had a significant impact on the consideration of the Criminal Verdicts (Scotland) Bill. That was unavoidable and, given the recommendations by Lord Bonomy, it proved to be appropriate that we all await the outcome of that piece of work and the Government’s Criminal Justice (Scotland) Bill.

The Government gave Lord Bonomy’s review non-exhaustive terms of reference that specifically included jury majority and size. In fact, it was the report by the academic expert group that went further and considered Scotland’s three-verdict system and whether the not proven verdict should be abolished. The expert group was of the view that the review had to take into account the three-verdict system. In its view, consideration of the size of the jury and the majority required for a conviction is inextricably linked to the number of verdicts that are available to a jury. The Government has accepted that view and the approach that any major changes to the jury system should be considered in a holistic manner. There were therefore good reasons for the delay in considering Mr McMahon’s bill, but I understand that it must have been a frustrating time for Mr McMahon. I am very grateful for his patience during that period.

The recommendations of Lord Bonomy’s group form one of the main reasons why the Scottish Government has opposed the Criminal Verdicts (Scotland) Bill. I note from the stage 1 report that the majority of the Justice Committee have been unable to support the overall package of reforms contained in the bill. It is with regret that, as a Government, we have had to take the position on the bill that we have.

Both Mr McMahon and the Justice Committee, in its consideration of the bill, have raised legitimate concerns about Scotland having three verdicts. I have stated previously that I am completely open minded about whether Scotland should retain three verdicts or move to two. However, as I have just mentioned, the key components of the Scottish jury system—the simple majority required for conviction, the three verdicts and the size of the jury—are interlinked, and the fact that the Scottish jury system has unique features makes it difficult to make clear comparisons with other jurisdictions. Other countries allow conviction by simple majority, but their overall procedures and built-in safeguards differ from those of the Scottish justice system. We also have other unique features in Scotland. As well as the three-verdict system, we have a larger jury size—15 jurors—than most other countries do.

In any substantial reform in this area, the potential impacts on other areas of the Scottish system must be a key consideration. The responses to the consultation on the bill illustrated not only the necessity to consider those impacts but some of the difficulties with the bill. There was clear support for removal of the not proven verdict, but there was no general consensus that it should be removed alongside an increase in the jury majority.

I am of the view that there must be a strong evidence base for any future reform so that we can make an informed decision on how major reforms to one part of the system might have an impact on others. That is why I agree with Lord Bonomy’s recommendation that jury research be carried out. That should enable a future Administration and Parliament to take an holistic and evidence-based approach to any substantive reform in the area, and it should give us a much better understanding of how Scottish juries operate.

This debate is about Michael McMahon’s bill, and I do not want to dominate it by talking about jury research in great detail. I simply update members by saying that my officials will have completed their engagement with interested stakeholders and organisations by March. With those meetings, we are seeking views on whether the research should be wider than the topics that Lord Bonomy suggested and whether it should use mock or real jurors.

I had hoped that the research could commence before the pre-election period. However, it is important that we get the remit and the methodology right, and for that reason it is worth taking our time to consider all views before we reach a final decision on the scope of the research. There has been a general consensus among members of all parties in favour of the Government’s intention to undertake the research, and I hope that the work will be taken forward in early course by the Administration that is elected in May.

It is, therefore, with some regret that I ask members not to support the general principles of the Criminal Verdicts (Scotland) Bill and that I propose that the bill should not progress to stage 2.

16:23  

As Michael McMahon said, I lodged an amendment to his motion, and I am disappointed that the Presiding Officer did not select it for debate. I will nevertheless speak to the amendment’s intentions, although there is no possibility of a vote on it.

Michael McMahon introduced his Criminal Verdicts (Scotland) Bill in November 2013, having consulted on his proposals in 2012—although, as he said, he tried to introduce a similar bill in the previous session. Around the same time, the Scottish Government consulted on the legal reforms that would be required if the requirement for corroboration was to be abolished.

In June 2013, the Scottish Government introduced the Criminal Justice (Scotland) Bill, which proposed to abolish the requirement for corroboration and contained provisions that required a guilty verdict to have the support of at least two thirds of the jury. It did not, however, propose the removal of the not proven verdict. As members know, in April 2014, the Government agreed to suspend stage 2 of that bill pending a review by Lord Bonomy of additional safeguards that should be introduced if the requirement for corroboration was abolished.

Michael McMahon’s bill was therefore introduced against the background of the first version of the Criminal Justice (Scotland) Bill. Scrutiny of his bill was postponed in the light of that, as section 2 of his bill and provisions in the Criminal Justice (Scotland) Bill both proposed to increase the jury majority from eight to 10. At that stage, the provisions of the Criminal Verdicts (Scotland) Bill could have been incorporated into the Criminal Justice (Scotland) Bill by way of amendment, and the Justice Committee took evidence from Michael McMahon on that.

It is interesting that, at stage 1 of the Criminal Justice (Scotland) Bill, the Justice Committee did not take a view on the jury majority, although it called for an independent review of additional safeguards. Subsequent to Lord Bonomy’s reporting, the abolition of the requirement for corroboration and the changes to the jury majority were removed from the Criminal Justice (Scotland) Bill. The committee therefore formally considered the Criminal Verdicts (Scotland) Bill, although the member in charge had rather a long wait before that happened and had to remind us that his bill was still awaiting consideration.

I lodged the reasoned amendment in my name to highlight the paragraph on page 15 of the committee’s stage 1 report that states:

“A clear majority of the Committee supports the intention of the Bill to abolish the not proven verdict”.

I did so in the full knowledge that, even if my amendment was agreed to, the amended motion would be likely to fall. Nevertheless, I wanted the Parliament as a whole to send out the signal that the abolition of the not proven verdict is overdue and that the next Scottish Government should legislate to remove the anomaly in Scots criminal law of there being two acquittal verdicts.

There is an argument for reverting to the old proven and not proven verdicts that existed in Scots law prior to the 1700s. The prosecution in a criminal trial has to prove beyond reasonable doubt that the accused committed the crime for which they are being tried. If they are found guilty, the accused may appeal and the decision can be reversed. Similarly, under double jeopardy, an unsuccessful prosecution can be revisited—it is just a question of proof. However, reverting to the old verdicts could be confusing to all concerned and to the public, who are now used to the not guilty verdict.

Having two acquittal verdicts is not in the interests of justice. The majority of respondents to the committee’s call for written evidence were in favour of a two-verdict system, although some had reservations about changing the jury majority. A not proven verdict casts aspersions on both the complainer and the accused. One of the justices of the peace who provided evidence—Lieutenant Colonel Morrison—suggested that there is a possibility that a not proven verdict is used when JPs consider that

“a case is proved on balance of probability rather than beyond reasonable doubt”.

The same may be true of juries. Rape Crisis Scotland, which supports the removal of the not proven verdict, pointed out that according to Scottish Government statistics, the highest rate of use of the not proven verdict, at 15 per cent, is for rape and attempted rape cases.

A not proven verdict can be unfair on the accused, as it can imply not that they are not guilty but that the prosecution did not put up a robust enough case to prove their guilt beyond reasonable doubt. I have responded to the verdict in that way. A constituent came to me about an issue that arose from a criminal case in which he said he had been acquitted. I then found that he had received a not proven verdict. My immediate reaction was to think not that he was innocent but that the case against him just had not been proved—although I did not say that out loud, of course.

Despite not being able to bring to the chamber an amendment that would have allowed members to signal their support for the abolition of the second acquittal verdict, I believe that abolition is the wish of Parliament. Like Christine Grahame, I heartily congratulate Michael McMahon on his tenacity in bringing the matter before Parliament, and I thank the clerks, the non-Government bills unit, the Scottish Parliament information centre and the cabinet secretary for their input into our stage 1 discussions.

If, as will probably be the case, Michael McMahon’s bill does not proceed tonight, I urge the Parliament to return to the subject as soon as possible in the next session.

16:28  

I am pleased to participate in this stage 1 debate on the Criminal Verdicts (Scotland) Bill. Michael McMahon has waited some considerable time for the bill to come before the Parliament. I believe—and I think that he confirmed—that it was as far back as 2007 when his first member’s bill on the subject fell at dissolution. As members have said, in this session, scrutiny of the proposals was delayed for a couple of years as the Criminal Justice (Scotland) Bill, which had provisions whose scope overlapped with the Criminal Verdicts (Scotland) Bill, completed its parliamentary passage.

Having had experience of how much focus and commitment are required to introduce a member’s bill, I commend Michael McMahon and pay tribute to his resolve and his continued efforts to generate discussion and debate about the three-verdict system by introducing the Criminal Verdicts (Scotland) Bill.

Although the bill is short, the changes to Scots law that it seeks to implement are substantial and should not be underestimated. It has two primary aims: to remove the not proven verdict as an option in criminal trials and to change the rules on the number of jurors who must support a guilty verdict, which the member in charge has rightly recognised as a connected issue.

When the member gave evidence to the Justice Committee, he presented many valid points in favour of abolition. In addition, I acknowledge that some stakeholders consider the three-verdict system to have had its day, and I fully understand and appreciate that there are individuals in those stakeholder groups who for varying reasons, including deeply emotive and personal ones, argue passionately for the abolition of the not proven verdict.

However, I remain hugely concerned about the piecemeal approach that decision makers have taken to changing elements of the Scottish criminal justice system, especially following the corroboration debacle, in which abolition was proposed without consideration of the implications of such a change in the round. As the Faculty of Advocates argued in its consultation response, the reforms to the three-verdict system

“should be considered in the context of a review of the criminal justice system as a whole”.

The Law Society of Scotland summed up the situation by pointing out in its consultation response that, as far back as 1994, it had argued that

“the three verdict system should be retained in that this system was part of the organic whole which constituted the method of determination of guilt in Scottish criminal courts.”

Put simply, it is impossible to amputate one part of the system without considering the impact on the whole, and a failure to consider that could result in unintended consequences that might make the problem that we are trying to remedy worse.

The Scottish Government has stated that it is

“open to the possibility of the Not Proven verdict being removed”,

but it has also said that it will take forward Lord Bonomy’s recommendation that jury research be carried out before any reforms are implemented. The Bonomy review indicated that that could take around two years. I welcome that approach, but I note with considerable concern that jury directions in certain sexual offence cases are being placed on a statutory footing before that research has been completed.

As Michael McMahon said in his evidence to the committee, the not proven verdict

“has always been there in the background; it has never gone away.”—[Official Report, Justice Committee, 19 January 2016; c 12.]

As a result, the opportunity that his bill presented to scrutinise the issue, especially given recent developments in the criminal justice system, has been worth while and appreciated, for which I thank Mr McMahon. However, the Scottish Conservatives are not convinced that there is a compelling or persuasive need for reform at this time, although we await the findings of the jury research. For that reason, I do not support the bill’s general principles, and I confirm that we will not support the bill at decision time.

16:33  

It has been a rollercoaster ride since I joined the Justice Committee in 2013. We have scrutinised many pieces of legislation, some of which we stopped, some of which we passed and many of which we amended. The committee is a lovely place, and the fact that no party has a majority on it is perhaps quite healthy. Sometimes there is a need to agree to disagree, and we do so when we have to.

A few members’ bills have come before the committee in the past three years, and I was delighted that we passed Margaret Mitchell’s Apologies (Scotland) Bill last month. It is important to think about that in the context of today’s debate.

I thank and commend Michael McMahon for introducing the Criminal Verdicts (Scotland) Bill. As everyone has said, the debate on the not proven verdict had to take place; like any other system, Scots law needs to be reviewed and updated from time to time.

I note Elaine Murray’s proposed amendment. The only thing that I would say is that we agree, and I am one of the majority. Maybe one of the reasons why that amendment was not accepted is that we agreed, and that was in the committee’s report.

Most of the evidence that the committee received was critical of Scotland’s three-verdict system. I truly believe that the case has been made and I would not hesitate to abolish the not proven verdict. Unfortunately, Michael McMahon asks us today to agree to all the bill’s general principles. The part of the bill that sets out those principles begins:

“An Act of the Scottish Parliament to provide for the removal of the not proven verdict as one of the available verdicts in criminal proceedings”.

So far, so good. Unfortunately, the bill goes on to say:

“and for a guilty verdict to require an increased majority of jurors.”

It was suggested to Mr McMahon that he could remove that second aim. I understand his reason for not doing so, but I do not understand why he did not say much about it in his speech. I am sure that he will address the issue in his winding-up speech. I wonder whether, if the aim in the bill had not been so specific, the member might have chosen to drop his proposal to change the jury majority that is required for a conviction.

Will the member give way?

I am sorry, but I have only a few minutes. Perhaps the member can address the issue later.

I would have been happy to consider abolishing the not proven verdict, if that was to happen in isolation. However, we are where we are, and the clear majority of the committee supports the bill’s intention to abolish the not proven verdict but does not support the proposal about jury majorities. We received evidence that opposed changing jury majorities in isolation and we were told that that should be considered alongside the other reforms proposed by Lord Bonomy.

We said in our report that further research is needed on decision making by juries. I am not so sure about that and I would not support amendment of the Contempt of Court Act 1981. In my opinion, using mock jurors is fine. I would like to hear the cabinet secretary’s views on the matter. I know that he talked about the issue and said that he wanted to take evidence. I say that I am not sure about the need for further research because we would not be here today if members of the Justice Committee had supported the abolition of the absolute requirement for corroboration.

I hope that Mr McMahon understands that some of us wanted the Criminal Justice (Scotland) Bill to progress as introduced. I supported then and support now the abolition of the absolute requirement for corroboration in Scots law. The cabinet secretary reminded us in January that one of the safeguards for the abolition of corroboration was changing the majority provision for juries from the existing simple majority. I was all for abolition but, despite the evidence that was received, we could not move forward and instead we got a post-corroboration safeguards review.

I feel for Michael McMahon because, after all his efforts, he could see his bill fall at stage 1. However, I gently remind him that he took a view on corroboration. In 2014, he voted for Margaret Mitchell’s amendment to call for the removal of the provisions in the Criminal Justice (Scotland) Bill to abolish the absolute requirement for corroboration. Further, and perhaps more important, Michael McMahon voted on that day to prevent the bill from going forward. Therefore, I will have no hesitation in voting down his bill tonight.

Here is what Highland violence against women partnership told us:

“We urge the Scottish Parliament not to take this Bill forward without considering other measures, such as the removal of corroboration, as to do so would be damaging to those seeking justice for experiences of Violence Against Women.”

There is unfinished business. I was one of the members of the committee and the Parliament who wanted to further reform the criminal justice system, but others disagreed. Members of Parliament in the next session will have to move the issue forward.

We now move to closing speeches.

16:38  

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.

16:41  

As is evident from this afternoon’s debate, changes to elements of criminal justice procedure are famously difficult to achieve and sometimes take decades—and, on occasion, centuries—of debate. The cabinet secretary’s commitment to maintain an open mind on the matter is welcome. It is regrettable that he rejects Michael McMahon’s proposal and I hope that, in the next session of Parliament, that open-minded approach will be maintained by whoever becomes the Cabinet Secretary for Justice.

The majority of members of the Justice Committee appreciated the need to reassess the use of the not proven verdict and questioned whether it provided an effective way forward. During the debate, it has been explained that there are reservations about section 2 of the bill, and I understand the arguments behind that concern. However, in its submission, Victim Support Scotland indicated that

“a not proven verdict can be confusing and disappointing.”

There is no doubt that those who go to court as witnesses are often left in a difficult situation upon hearing that there has been a not proven verdict, which leaves them in limbo, feeling they have neither closure nor a declared outcome from the court. The notion that one is innocent until proven guilty is black and white, and provides for a definite outcome at the conclusion of the process. For many, the inclusion of a not proven option is confusing.

The Faculty of Advocates has indicated:

“It is patronising to jurors to assume that they cannot or do not understand what this means.”

However, as my colleague Elaine Murray suggested, the evidence that the committee received from a justice of the peace on the use of that verdict was that it indicated a lack of clear thought about how the issues should be decided.

It is evident that there is controversy around this whole area of the criminal justice system. The Government has proposed changes to corroboration, and there is still a great deal of heat in connection with that debate that must be addressed.

The size of juries has been mentioned and the nature of a majority has been debated and obviously causes a great deal of concern. I congratulate Michael McMahon on allowing us to debate such issues, to which his bill adds the important issue of the not proven verdict.

I am pleased that Lord Bonomy’s review and recommendations will be examined in the next session of Parliament. I hope that the Parliament will keep the issue at the top of its agenda and commit to dealing with it as a matter of urgency. The issue has been a running sore. The not proven verdict has stigmatised the accused on many occasions and has left victims—and others—unhappy.

I ask the cabinet secretary to leave a note on the issue for whoever takes his place—the note might be for him if he is fortunate enough to go back into that post. The Labour Party’s intention is to support Mr McMahon’s bill, as much as anything to put down a marker that we did not all agree today that the principles of the bill are without credibility.

16:46  

The debate has provided Parliament with a useful opportunity to look at the merits and shortcomings of having a three-verdict system in which two of the verdicts—by providing an acquittal—have the same outcome.

I reiterate that I fully respect and understand the strong and principled position taken by Michael McMahon in pursuing the removal of one of our verdicts for acquittal from the justice system. I also fully understand and acknowledge that a range of members of the Justice Committee were persuaded of the need to move from a three-verdict system to a two-verdict system. However, it is important that we are careful when we start to make alterations to the verdicts in the criminal justice system and to the interlinked aspects that play a key part in the process.

Elaine Murray highlighted a key challenge around understanding how the existing arrangements operate and what influences the decisions that our juries make. However, the very evidence from a justice of the peace that she cited and to which Graeme Pearson just referred shows that there are different understandings of what exactly a not proven verdict means and when it should be applied.

It is worth keeping in mind the areas to which the research on juries will give consideration. For example, it will look at what jurors understand to be the difference between a not guilty and a not proven verdict; why they choose one over the other; why and to what extent jurors alter their position on not proven and not guilty as a result of the jury’s deliberations; the extent to which members of a jury of 15 compared with those of a jury of 12 participate in the deliberations; the differences in the outcomes from a 12-person jury, with only two possible verdicts, and from a 15-person jury, with three verdicts, and the reasons for the different verdicts that they come to; and whether there are benefits in requiring the jury to attempt to reach a unanimous verdict. Research in all those areas will provide us with a significant level of insight into how juries arrive at their decisions—the process of deliberation that they undertake in order to arrive at an outcome. All that will assist us in understanding the jury process much more effectively.

As the Lord Bonomy review group recognised, the three component parts of our jury system—the jury majority, the jury size and the verdicts that are available—interlink. It is extremely important that we consider the issues that Lord Bonomy’s review group has highlighted and that we consult stakeholders on whether we should add further areas to the research. Once we have considered those matters, we will then, on an informed basis, be able to consider in greater detail what approach we should take in reforming this area.

In his speech, Christian Allard raised the issue of whether we should use mock or real jurors for the research. There are pros and cons to using one approach over the other, as members will appreciate. The first thing to say is that we have never had any research into jury behaviour in Scotland before and such research is rare internationally. One of the practical considerations is that we would have to amend the Contempt of Court Act 1981 to facilitate the use of real jurors, which we would not have to do if we made use of mock jurors in the research.

This follows on from what Cameron Buchanan said. If the not proven verdict were to disappear, the abolition would also pertain when it is not a jury making the decision. I do not know how we would go about it, but perhaps we should also look at how a justice of the peace or a sheriff sitting on their own delivers that verdict. We must not just think that it is always juries who use it.

Of course, and that is one of the issues that we can consider when we frame the research.

Using real jurors also carries a risk of exposing the system or individual cases to opportunistic challenges that misuse the results of the research, so we must be careful of that. I am also conscious that there are people who would say that if we are going to go into the issue in detail, we should use real jurors and deal with real cases rather than use mock jurors in a different set of scenarios.

All of those factors must be weighed up and considered, which is exactly what we are doing at the moment.

I reiterate my recognition of the tremendous amount of work that Michael McMahon has put into the bill, but I regret that the Government is not able to support it and I ask that Parliament not agree that it should move on to stage 2 consideration.

16:52  

I thank the staff of the non-Government bills unit, whose assistance has been invaluable to me over the past number of years.

I am also grateful to the people who contributed to my consultations, and to the legal experts and academics who provided me with advice and support in introducing the bill. They left me in no doubt at all that the bill is necessary. Had I been persuaded otherwise, I would not have persisted with it.

I thank the Justice Committee for its considered scrutiny of my bill and the people and organisations that responded to its call for evidence. To quote the committee’s stage 1 report:

“There is no legal difference between a not guilty and not proven verdict. This raises questions as to the merits of retaining both verdicts.”

To put it simply, a three-verdict system is illogical and confusing. That is particularly so when the jury is not allowed to receive guidance on the difference between the two acquittal verdicts, as Cameron Buchanan highlighted. Court rules prohibit the judge from explaining to a jury the difference between not proven and the other acquittal, not guilty.

As highlighted in the post-corroboration safeguards review report, the standard text on Scottish criminal procedure states:

“The jury should not be told the meaning of the not proven verdict; they need not even be told that it is a verdict of acquittal.”

How on earth can a verdict that cannot and must not be explained to a jury be available to that jury?

In its report, the Justice Committee acknowledged the confusion. It said:

“We note views that this confusion can lead to the effective defamation of the accused where the public believes the not proven verdict implies a degree of culpability; that the accused, in colloquial terms, ‘got away with it’. The Committee acknowledges that a not proven verdict may have social and indeed employment consequences that a not guilty verdict does not.”

However, we need to consider not only the people who are on trial when we deliberate reducing the three verdicts to two. We know that victims and relatives sometimes also find a not proven verdict unacceptable, as it denies them a sense of closure.

In its response to my consultation, Victim Support Scotland said:

“In our experience, for many victims and witnesses, a not proven verdict can be confusing and disappointing. Finality and certainty are crucial elements of an effective criminal justice system. This includes finality and certainty not just on the part of accused persons, but also for victims and victims’ families. A clear and transparent verdict of guilt or innocence from the justice system is often vital for providing victims with a sense of closure.”

In its response to the Justice Committee’s call for evidence, Rape Crisis Scotland said:

“Rape Crisis Scotland supports the removal of the not proven verdict. The not proven verdict is most commonly used in rape cases. According to the Scottish Government, the proportion of people receiving a not proven verdict ... was 15%, the highest for any crime type.”

If the not proven verdict is to be removed, it is essential that guilty verdicts are robust and that such convictions are safe. I recognise that, because that is what we were told in response to my consultation.

Let me respond to Christian Allard’s comments. It must make sense to increase the majority that is required to convict and to take both measures forward at the same time. That is what the evidence from my consultation suggested. In my first consultation, I was told that, if I had brought forward a proposal on the not proven verdict alone, without considering the jury issue, that would have been justification for voting it down. Therefore, he cannot really have it both ways: I cannot not discuss juries, only to have the issue used as a reason to not support the bill.

I thank the member for taking my intervention. He is not the first person to have quoted Victim Support Scotland. I agree with him about the not proven verdict. However, Victim Support Scotland said that it did not accept that it would be necessary to increase the jury majority if the not proven verdict were to be removed. That is the matter for today.

That is one piece of evidence, but the majority of responses to the consultation suggested otherwise. That is all evidence that allows people to determine whether they want to support the bill. I think that I have explained to Christian Allard why we had to have two parts to the bill and to take both issues together. What I find really disappointing is his suggestion that voting against the bill this afternoon is some sort of payback because I voted against a previous bill on corroboration. It disappoints me that that issue was raised again as a reason for voting against the bill. Payback is not a justification for supporting or not supporting a bill.

Christian Allard rose—

Christine Grahame rose—

I am sorry—I will not take an intervention.

At present, a jury in Scotland can return a verdict of guilty when at least eight of its members are in favour of that verdict. That level of support is required whether the jury has a full complement of 15 jurors or is reduced in numbers. When a guilty verdict does not attract the support of at least eight jurors, the accused is acquitted. Under those rules, a person may be convicted on the basis of a simple majority, and there is no potential for a hung jury: the only possible outcomes are a finding of guilty or an acquittal.

Scotland is the only common-law jurisdiction where an accused person can be convicted on a simple majority verdict. Other systems that are based on a simple majority verdict have additional protections. In Italy, for example, a conviction is allowed on a simple majority, but two judges sit alongside six lay jurors. In Belgium, jurors can convict on a simple majority, but a unanimous panel of judges can overturn an erroneous verdict.

My bill would retain the jury size of 15, but move to a qualified majority, with at least two thirds of the jury being required to convict. The number required to convict would be reduced on a sliding basis if excusals or other absences reduced the size of the jury.

The Scottish Government has also consulted on the subject, and I remain puzzled as to why it has arrived at a different place today. In 2012, the Government looked at a number of legal reforms, and in 2013, it introduced the Criminal Justice (Scotland) Bill. The Government’s consideration of increasing the jury majority was linked to the removal of corroboration and mine was linked to the removal of the not proven verdict, but our consultations arrived at the same conclusion. The Criminal Justice (Scotland) Bill, as passed, saw the provision on jury majorities removed in light of recommendations made in the Bonomy review. Unlike the Scottish Government, I believe that the Parliament should not have to wait for the outcome of further research before it reaches a decision on the abolition of the not proven verdict.

As Professor Chalmers and Professor Leverick said in their submission to the Justice Committee, it is a matter of principle, and a decision should not be

“evaded by calls for further empirical research.”

I hope that, come decision time, members will agree with me that there is no longer a place in the Scottish legal system for three verdicts. It is time to get rid of the one verdict that has the potential to confuse a jury, stigmatise the acquitted and upset victims. If the not proven verdict is disposed of, a safeguard is to increase the size of the jury majority that is needed to convict, and to move both measures forward at the same time.

I am pleased to have moved the motion.