Chamber and committees

So the very nature of the decision about the composition of a jury decision can be conditioned or nuanced. It is about trying to avoid, understandably, the situation that you have put to us where you have a seven to five majority in favour of conviction and somebody is acquitted, which, I understand, is a hard sell.

What I am driving at is the potentially unsatisfactory nature of how people are left after a not proven verdict. If I follow the rationale of the arguments that you have just deployed, individuals who were accused and then acquitted following a not proven verdict might have some stain on their character because it was, to use the terminology, a “measured means of acquittal” or a conditional acquittal. From the perspective of complainers—the victims—they are likely to feel dissatisfied with a not proven verdict, because the outcome that they believe that they should have achieved was not achieved, but there is a question mark over the verdict. I am just probing in order to determine whether anybody ends up in a good position as a consequence of that verdict.

The faculty’s position is therefore that, if we are going to have the potential for an eight to seven decision in a jury, we have to have the reassurance of an option such as the not proven verdict. We can design an alternative that gets rid of the not proven option, but we will have to take account of the variables that come about as a consequence.

I just want to carry on with that line of discussion with Mr Macleod. One of the fundamental conclusions emerging from the evidence is that, whichever bit of this Rubik’s cube you move around, there will be implications for other bits of the Rubik’s cube. We are trying to feel our way towards where the right balance lies in protecting the process of justice. I am interested in the extent to which you can illuminate our discussions with where you think the greatest risks lie in changing the existing arrangements. We do not want to end up in a worse position; clearly, we want to end up in a better position.

I am keen to explore where that all rests, given the key factors that we have to bear in mind in what might change and what might produce different outcomes from those that we currently have in the criminal justice system.

My final question is on the vexed question that you put in front of us about a seven to five majority for a guilty verdict that then leads to an acquittal. In the other jurisdictions with which we are often compared, where you might have an eight to four or a nine to three guilty verdict leading to an acquittal, to what degree is there public concern about such a result?

Okay.

That opens up a link to the questions that Katy Clark pursued a moment ago. The way that you articulated that final argument is incredibly powerful. From the defence perspective, there is an advantage in labouring the term “proven” in the way that you have just described.

Katy Clark put the question whether, if we get rid of the not proven verdict, there would be a need for some rebalancing in the system. That is the Government’s proposition in the bill. That raises the question in my mind of where the appropriate balance of fairness is in the process, because, whatever comes from the changes that we make here, there must be fairness on all sides. There must be fairness for the accused and for the Crown in pursuing its arguments.

The Government’s proposition is that getting rid of the not proven verdict would mean that there is a need for some counterbalancing changes to the size or composition of juries. You said that the labouring of the term “proven” might already be creating an imbalance in the system, which might mean that getting rid of the not proven verdict would just be removing an imbalance. Do we, as a committee, have to consider some counterbalancing measure, or would that actually lead to us changing the balance again?

That is not a particularly coherent question, but you know what I am getting at.

But Sandy Brindley would not share that view.

Corroboration strikes me as a fundamentally different concept from the not proven verdict.

It is totally different, as recent judgments tell us.