Chamber and committees

Right now, Mr Findlay, my preference is that the Crown should have the discretion to decide whether sexualised murder cases go to the sexual offences court or the High Court. I also want to acknowledge and put on the record that there are very sound reasons why such a case could and should go to the sexual offences court, bearing in mind the needs of surviving victims and witnesses.

I most certainly believe that we cannot walk away and ignore conviction rates. We need a system in which we can all have absolute confidence. The consistently and comparatively low conviction rates for particular sexual offences, particularly where the victim is a woman, should cause us all great concern and puts a dent in the confidence that we can have in the system.

As I have said, there is no quick button that we can press or lever that we can pull here. Nobody here wants to interfere with the independence of the courts and the decision makers. However, we have legitimate grounds for inquiry in relation to the pilot. Other reforms in the bill are highly germane to giving confidence to the system and to giving victims and witnesses the confidence to come forward. However, in relation to the pilot, we have very legitimate grounds for further inquiry.

That is what the pilot is about—not ignoring low conviction rates but recognising that the cases in question are complex and are among the most sensitive and difficult in terms of their outcomes and their devastating lifelong impact primarily, but not exclusively, on women. There is a fundamental question about access to justice for women. Why would we not invest ourselves in further inquiry in that process, given that the case has been made for that further inquiry?

I have been to the Netherlands and to Germany. In Berlin, I had the opportunity of meeting victims’ lawyers, among other representatives of the judicial system. That was very informative.

What is currently proposed for independent legal representation has centred around the section 275 process. I am committed to its being implemented in a way that is a foundation for future potential change. Bearing in mind the committee’s correct focus on deliverability and implementation, my focus is first and foremost on what is proposed in the bill. However, I am conscious that Katy Clark and other MSPs are actively engaged on that issue.

I will pass the question to Alasdair Bowden in a moment, but my understanding is that the limitations in the Contempt of Court Act 1981 place constraints on live, real-life research as deliberations happen.

We might have a different understanding of what occurs or the changes that have been made south of the border, and there might be different views on what the legal barriers are to getting the breakdown that you mention. I do not know whether Alasdair Bowden or Nicola Guild wants to come in on that.

I think that that is fair. It is not off the table. I want to say something positive and then say where we need to be careful. In removing the not proven verdict, where we have moved towards taking out something that is seen as a third verdict, or the compromise verdict in difficult cases, we need to keep clear positions. In our system thus far, retrials have not been a feature. Our system has rested on the finality of verdicts. In terms of transparency between me and the committee, I would want to explore further whether the Lord Advocate has outlined, or is looking for, a system of retrial, or whether it is more about adding in additional exceptions to double-jeopardy legislation. There will, of course, be discussions—that is the short answer.

I understand and entirely accept that there are unique challenges around sexual offences cases. When we look at the system overall, we see that although the not proven verdict is rarely used—it is the verdict in 1 per cent in summary cases and 5 per cent in solemn cases—it is used more frequently in sexual offences cases.

The short answer to your question, Ms Mackay, is that we will reflect on the matter accordingly. There would be particular challenges with what you suggest, but it is perhaps better for me not to give an off-the-cuff response.

There was majority support for a qualified majority, as opposed to a simple majority. As I said, it is a consultation and not a plebiscite or a vote. I was just reflecting on various strands of evidence.

Forgive me, Ms Dowey—you asked about England. There, by contrast, its two-verdict system requires near unanimity, with a majority of 10 out of 12. That option was not popular in our consultation; I think that it received about 13 per cent support.

There are other safeguards in our system as it stands. Notwithstanding the Lord Advocate’s recent successful reference to the appeal court, we still have corroboration as a mainstay of our system. That is one of the reasons why the Government would not support going to near unanimity or unanimity.

We are an outlier with not proven—

The sexual offences court would be a hybrid court in that it could deal with all the High Court solemn cases as well as the serious sheriff and jury cases. On how it is constructed, we have been clear that there would be no diminution in the quality or the status of representation that is available to the accused. There are particular High Court cases that have to be—