Chamber and committees

I have dealt with many families who felt similarly about murder trials, in that they had the same feeling of exclusion. That is not particular to rape trials.

We have heard the Lord Advocate say that she is very particular about changing the practice, and I see a drive behind that. That is good. However, Lord Advocates change and, in time, another Lord Advocate may take a stricter view about access to ADs and so on.

I will leave you with this thought. Is there any way in which you could enshrine that right of access to advocate deputes in some way? I do not need an answer to that just now, but this worries me: we are beginning to see chinks of light, which is really good, but that needs to continue—and the law is a tool. I was just wondering if you could consider how we could hang on to that right.

I preface my remarks by saying that I think that the proposal for a specialist sexual offences court is the most significant proposal in the bill. However, I have to say that the Government is putting itself in danger of losing the consensus on that, which is what my line of questioning relates to.

Why did you not fully adopt Lady Dorrian’s suggestion? As you said, cabinet secretary, you do not think that the specialist sexual offences court should be considered to be a lower court but, in fact, it will be. However, if you had adopted Lady Dorrian’s recommendations for it to be a parallel court, there would be no question over that.

I have questions on rights of audience that illustrate why I think it will be seen as a lower court. I know that you were not cabinet secretary when the bill was drafted, so I would be happy if your officials want to come in. It seems extraordinary for Lady Dorrian to do this work and come up with a proposal that everyone thinks is good but for you to dilute it by saying that it will not be a parallel court to the High Court—I really do not understand that.

You referred to research—did you say “meta-analysis”?

That is helpful. We have to be open to that idea, since the Lord Advocate mentioned it, but I would have concerns about a provision that was wide in scope and gave the courts the power to decide. I would be more comfortable if you were thinking about a provision that was more tightly drawn in terms of criteria for the Crown.

Thank you.

Well, let me help you then. We have established that it will not be the High Court. It will be a national court with wider sentencing powers, but in the hierarchy of the court system, it will not be as high as the High Court—is that right? It cannot be.

That is because that confuses people. You previously said that you are not trying to alter the rate of conviction but that you are trying to change experiences. That is what I had always understood. Since we do not have any criteria—am I correct in saying that, or could you republish them?—I do not know what the criteria for assessing the single-judge pilot is.

Good morning to you and your team, cabinet secretary. You are right to say that all the political parties had a manifesto commitment to abolish the not proven verdict. I did not take a view on Michael McMahon’s bill, but I did not support it. We might have a consensus on abolishing the not proven verdict, but the problem, as you have heard in the lines of questioning, is how we get a consensus on the formulation of the change in the size and majority of the jury.

You said that Scotland is an outlier. However, with the proposals, Scotland would still be an outlier, because no other jurisdiction has the majority that you propose. If I have understood your position, you are saying that we do not want to be an outlier but we will still be an outlier under the proposals. Is the reason for that position the corroboration that we have in Scots law? Is that why you are comfortable with still being an outlier in the international arena?

So, we will always be an outlier—is that what you mean? We will always be different.

Thank you.

Lastly, I go back to Russell Findlay’s question on a point that the Lord Advocate raised with the committee. In cases in which there was a seven-to-five majority, there would be no conviction. That is what you are legislating for. On the question of whether the Crown should have the right to a retrial, you said that you might look at the double-jeopardy provisions. Are you prepared to give an assurance that any amendments at stage 2—I suppose that that is what we are talking about—will take into consideration that any right of the Crown, if that is the direction of travel that you choose, should be clearly set out in the legislation?

What I am getting at is that, although I think that the Lord Advocate made a fair point, we have to consider that a future Lord Advocate might take a different approach. The Parliament should not give away powers lightly. If the Parliament, in legislating for the provisions in the bill, feels that some allowance should be made for the Crown to move to a retrial, that should not be a wide provision. I would be deeply concerned if the Parliament did not have the final say on that, because it cannot be divorced from what we are looking at right now. Can you give me an assurance that, if you were looking at such an approach, you would ensure that it was based on a parliamentary decision? Does that make sense?