Chamber and committees

I will flag up a point that might be useful. The policy memorandum speaks in detail about the jury research and gives a reference to it. We have published information today or yesterday about rape myths, which also talks about the research. I assure the committee that information is publicly available so that people can peruse the further detail.

The point that I was making in reference to the research is that we do not want to change one part of the jury system in isolation because that may well have unintended consequences. That is why we are looking at this as a package. We are following the evidence that was illuminated by the research. I hope that I understand Ms Clark correctly. The reforms will apply to all cases and throughout the system, so we must ensure that there is balance, fairness and integrity and that there are none of the unintended consequences that might be caused by changing one part without changing the other constituent parts.

It is important to stress that the jury reforms are not about increasing or decreasing conviction rates; they are about the integrity and fairness of our system, and transparency in decision making.

In my opening remarks, I intimated that there are challenges in people having confidence in a verdict that cannot be explained and which is open to interpretation. The independent Scottish jury research demonstrated that the not proven verdict was not understood by jurors and that understanding of it varied. It was sometimes seen as a compromise verdict. It was used if people believed that someone was guilty, but there was not enough evidence. The evidence also showed that people believed that the verdict came with associated stigma.

If we are moving from a three-verdict system to a two-verdict system, we have to make associated reforms to ensure that we keep a balanced system. Removing the not proven verdict is, of course, a historic reform, but we have to consider our verdict system in the round by considering the number of verdicts, moving from a simple to a qualifying majority and the size of juries. On all three counts, our system is unique—there is no other comparable system. However, the overriding message that I want to convey is that this is about the transparency of the decision-making process, so that we can have as much confidence as possible in the administration of justice and that our convictions and verdicts command confidence. The reforms are in no way a blunt tool in any shape or form to increase or decrease convictions.

I will ask officials to explain the research to Mr Findlay in layman’s terms.

The Government’s position, based on the research, is that we should look at that as a whole package. The consultation responses from all sectors, including those from people working in the legal sector and those from victims or their families, showed strong support for the idea that changing from a three-verdict to a two-verdict system meant that there was also a need to change the majority from a simple to a qualified one.

I can give an example of the importance of that. The Law Society of Scotland is not in favour of abolishing the not proven verdict but said in its evidence that, if we did so, we would really need to look at changing the majority. As I hope that I intimated to Ms Clark, there is an important relationship between moving from three verdicts to two and moving from a simple to a qualified majority.

No, we do not think so. At summary level, cases are presided over by a single judge—I am sure that we will get on to that later—so there is no jury. You are quite correct that, currently, sheriffs and justices of the peace can use the not proven verdict, which is given in about 1 per cent of those cases. The not proven verdict is given in 5 per cent of sexual offences cases and, for jury trials, 28 per cent of people who are proceeded against in rape or attempted rape trials will get a not proven verdict.

That is another fair question, which was, to some extent, discussed and debated as we introduced the bill.

It comes back to the recommendation from Lady Dorrian’s review. Over the decades, we have made incremental changes and improvements. However, if we want to embed specialism and revamp policies, processes and practices that both are fair to the accused and, in the interests of fairness, support complainers to give their very best evidence, we need to do something different.

The concern was that, if we just grafted on to existing structures, we would not see the fundamental change that is needed in how we deal with sexual offences cases, which are growing in number. Over the past decade or so, they have increased by 275 per cent. At the start of 2010-11, there would be around 80 cases; we are now looking at 300 cases.

We have specialism in other parts of the system, including in the police, who investigate those complex and highly sensitive cases. We have prosecutors who specialise in leading the prosecution of those cases. My question is why we would not want our court system to have a court that specialised in those highly emotive, difficult and complex cases, which have severe and enduring consequences for victims. For me, that very much fits with the whole-systems approach to improving the end-to-end journey for victims who are pursuing justice.

Again, the evidence in this respect comes from the victims task force, the consultations that the Government has undertaken and, of course, Lady Dorrian’s review. Currently, under common law, complainers in a rape trial have rights with regard to their involvement, but the exercising of those rights falls to the Crown Office. That is not a satisfactory approach; after all, it is the job of prosecutors to prosecute in the public interest, and that is different from the complainer’s interest.

I am thinking here of section 275 applications, which seek the court’s permission to lead evidence on what are often very sensitive and intrusive matters. The section is often referred to as enabling people to go into someone’s character or, indeed, their history, including their sexual history—and that, of course, is deeply intrusive. Once the application process starts, there is no opportunity for the victim to be represented or for their views on it to be heard. As a result, the provision in respect of independent legal representation seeks to ensure parity, opportunity and fairness for victims in expressing their views on those applications as well as the right of appeal.

We have all heard powerful personal testimony from complainers about their experiences in court, particularly in sexual offences cases. We also have Lady Dorrian’s observations from her work, in which she reflected on the commentary by the appeal courts in such cases, with regard to intrusive and unnecessary questioning.

I say, for the record, that criminal defence lawyers are an invaluable part of our system, but we need to make a transformational change to improve the experience of complainers who go through that process. Our aim is always to ensure that doing that does not result in the unintended consequence of cutting across the rights of the accused.

The sexual offences court has the opportunity to be transformational, because everyone who participates in that court will have to undergo training to become trauma informed. There is an opportunity to create a very different court environment.

As a former prison social worker, I am very open about the fact that, although I have worked with both, I have worked with more offenders than victims and have advocated for fairness and justice for those who are accused or convicted. The real prize here is that a sexual offences court would have benefits for both the complainer and the accused. It would move us away from an adversarial system to one that was more deliberative and better managed. The court would be inquisitorial in its robust and fair testing of evidence, without disregarding the welfare of those participating in the process. That is the real prize, and there is the opportunity for everyone to work together on the journey to make Scotland’s justice system bold and brave as well as fair and balanced.

It relates to the sexual offences court, not the pilot.

There is a cost to addressing and responding to the increasing demand caused by sexual offences cases. The figure for the sexual offences court relates to the additional costs that are specific to the proposed changes. That figure might change, depending on operational decisions about, for example, court rules.

The sexual offences court will have unlimited sentencing powers and will deal with a wide variety of cases. It is important to put on the record that it will have the maximum sentencing powers and will deal with a broad range of cases.

Regarding numbers, we know that the number of solemn cases is increasing. Lisa McCloy, do we have any further information about the numbers and categories of cases that will go to the sexual offences court?