Chamber and committees

It is important to reflect a little bit on the history of jury sizes, which have varied over the years. For example, during the second world war, the jury size was much lower than 15 members. The size of the jury has changed at different points in history.

The core of the evidence is that, if we reduce the size of the jury from 15 members to 12, we have higher levels of participation, lower levels of jurors not participating and less domination by some jurors. In essence, reducing the size is about responding to the evidence that says that it improves the process of deliberation. It is no more complicated than that.

I will ask Lisa McCloy to respond to Ms Dowey’s question about the qualified majority, which is sliding and exists in most circumstances when jurors have to be excused part way through the process. However, there are one or two exceptions.

Notwithstanding the fact that some victims organisations take a different view on the value of a victims and witnesses commissioner, it appears to me from the responses to the consultation and the representations that we have received over a number of years that the biggest advocates for such a commissioner are victims themselves.

As for the costs, I have put them on the record, and people will scrutinise them and come to a view as to whether that money should be used to establish a victims and witnesses commissioner. Individual MSPs, parties or committees can do the same and, if they come to the view that the money would be better spent elsewhere, they will of course be free to say so. I have also outlined the investment that we continue to make in victims organisations.

The implementation of that legislation was interrupted by the pandemic and, in the meantime, we have introduced a bill that will put more extensive protections in place in the civil system. The legislation that you are referring to was pretty bespoke and was introduced to deal with certain family cases. The bill will deliver more; indeed, my focus is on delivering more with maximum impact.

Scotland is an outlier in having juries with 15 jurors and three verdicts. We are all rightly proud of our unique Scottish justice system, but it is important to stress that our system has always evolved and learned from others over the centuries and that no part of our justice system is exempt from examination or, indeed, change.

I think that that predates my time as Cabinet Secretary for Justice and Home Affairs. I do not know the answer to that question, and I do not know whether the officials can say whether there was another working title. In general, it is not uncommon for proposed legislation that is being worked on internally to have a holding name, which is changed. However, I do not know whether the bill had a different name.

The study suggested that, if one part of our verdict system was changed in isolation—if we moved from three to two verdicts—that would increase the prospect of convictions. The study demonstrated that it was imperative to reform the three aspects of our jury system in tandem, because they are all interrelated in one system.

The research showed that a balanced approach is needed. The purpose of the reforms is to maintain confidence in the justice system by improving the experience for complainers and ensuring that the system is transparent and easily understood by everybody, because we all have a shared interest in it. We must also ensure the system’s integrity and take a balanced approach that protects the rights of the accused.

Mr Swinney poses a logical question, which I will ask officials to comment on, too. I am not aware that the research threw up any such unintended consequences. I am also not aware, although I stand to be corrected, that any jurisdiction with a jury size of 12—we should bear it in mind that Scotland’s jury size of 15 is unusual—has significant issues of trials being abandoned because of problems with juries continuing. We will seek to double check that, but I am not aware of concerns.

The jury research held some factors still so that it could explore the impact of different majorities, different jury sizes and moving from three to two verdicts—for example, it looked at mock juries in the context of three verdicts or two verdicts.

I think that you have skipped over the evidence that, if we moved from three verdicts to two, mock juries were more likely to convict. Therefore, we would have to adapt and move from a simple to a qualified majority, in order to ensure that there is balance in the verdict system. That is a cornerstone of the system.

The reforms are designed around the experiential aspects of trials and to address issues of transparency and clarity; they are not designed to increase or decrease the number of convictions. The change in the majority is there to balance the change in the number of verdicts.