Chamber and committees

Does the association believe in the rule of law?

Surely there is an obligation on the legal profession in its entirety. The committee has heard evidence from the Faculty of Advocates that it has no right of discretion in the handling of cases. However, I am interested in what the stance that the association is taking will say to the wider audience in Scotland, and what it says about the legal profession—if the legal profession is not prepared to engage in what has been defined as the law of Scotland.

But—

That exchange rather says to me that the association is picking and choosing what it is engaging with. That is where I have a difficulty with the association’s position, because that relates directly to the rule of law.

I hope that I will not fall foul of the convener, but I am going to ask about part 4 of the bill, if that is okay.

I am interested in the contribution from the senators of the College of Justice on the question of jury size. Based on the response to the Government’s consultation paper, the senators are not supportive of the changes to jury size. Lord Matthews, could you explain the senators’ position and the concerns that they have about the Government’s proposals?

I am interested in the language that you used. You said that you feel that this represents a greater hurdle for the Crown. I am interested in your perspective on a point that I put to the Lord Advocate earlier, which was about confidence in the criminal justice system. Sheriff Cubie might also want to comment. An individual can be found guilty today by eight votes to seven. We would never know that that was the result, but it can happen. We could find ourselves in a situation in which there is a seven to five vote in a jury of 12 but the person is acquitted on the basis that the two thirds majority threshold has not been reached.

I am interested in the view of the judiciary on that, and in your perspective on what it does to confidence in the criminal justice system. For all of our time, a simple majority has been judged by members of the public to be sufficient to convict an individual of a crime. Suddenly, even an actual majority will not be enough and the verdict will have to be what I might call a supermajority. What does the judiciary think about the risk of that provision to confidence in the criminal justice system?

The senators’ submission goes on to make a point about a connection between the abolition of the not proven verdict and a change in jury size. I will explore that in a moment.

What are the judiciary’s points of anxiety about a simple majority in a two-verdict trial? We are all told—and all the evidence that we have heard tells us—that, in effect, we actually have a two-verdict system already, but with two variants on the not guilty side.

I wonder whether Sheriff Cubie has a perspective on these questions.

The submission from the senators makes the point that

“Given the standard direction that a jury can only convict where the Crown has proved its case beyond reasonable doubt, and where there is the requisite majority for guilty, votes for not proven would not logically transfer in whole or in part to guilty.”

The way that I read that observation, I think that it helpfully lays the emphasis on the remaining necessity for the Crown to prove its case beyond reasonable doubt, whatever we do in these circumstances.

What is underlying a lot of the motivation behind the bill is a recognition that it is already difficult to secure convictions in cases of a sexual nature. Given the absolutely central principle in criminal cases of the necessity for the Crown to prove its case beyond reasonable doubt, is that not sufficient assurance for the preservation of the simple majority?

The point that I am trying to get at is that the necessity—which nobody is trying to change—of the Crown having to prove its case beyond reasonable doubt is, as I think we all acknowledge, a big hurdle. In the absence of three verdicts and with the potential scenario of two verdicts, I am trying to get at what would materially change about that requirement, because it still feels to me like a big hurdle to get over.