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My amendment 63A would have been supplementary to Katy Clark’s amendment 63, which would have allowed for research into jury deliberations. My amendment would have prevented jury deliberations from being compromised by ensuring that that research could be conducted only after the jury had delivered its verdict. However, given that, as Katy Clark said, those amendments were lodged in advance and the Government has now lodged different amendments, I will not move my amendment, either.

Good morning. My amendment 92 would require a jury to deliver a unanimous guilty conviction or, where that threshold was not met, allow a supermajority of 10 out of 12 jurors. That is the approach that is taken in England and Wales, and it has been tried and tested in jurisdictions around the world. In comparison, the Scottish Government proposes that we require a two-thirds majority with a jury of 15, which would make Scotland an outlier as the only jurisdiction in the world to follow that approach.

Lord Renucci, a former vice-dean of the Faculty of Advocates and a senator of the College of Justice, said:

“If we are going to change the numbers, we should be striving for unanimity. In all jurisdictions that operate a jury system of 12, either unanimity or a majority of 10 to two is required. No system falls below 10 to two.”—[Official Report, Criminal Justice Committee, 13 December 2023; c 7-8.]

My amendment is in line with that and is modelled on the amendment on jury verdicts that the Law Society of Scotland published in December. Time and time again, the committee has heard legal professionals express support for unanimity and a 10 out of 12 supermajority verdict. That proposal has been endorsed by the Faculty of Advocates, the Law Society, the Scottish Solicitors Bar Association and the Edinburgh Bar Association. The Law Society wrote to the committee to support the amendment and reminded us that, although the Government’s proposal follows the position of the senators of the College of Justice, who have indicated support for a 15-person jury with a two-thirds majority, that was with the safeguard of a two-verdict system in which the rules on corroboration remained in place.

The Lord Advocate’s letter last week denied that this is the case, but the Law Society has said that the corroboration requirement was radically changed by the Lord Advocate’s reference decision in November. That is concerning and should lead us to question whether the Government’s proposal now comes with the safeguards that are required to meet the needs of our criminal justice system.

As we all know, there are four cornerstones of Scotland’s criminal justice system: the not proven verdict, the jury size of 15, the eight out of 15 majority and the corroboration rule. Three of those four cornerstones are impacted by the bill and the other has been significantly changed. I have deep concerns about whether those changes are based on hard evidence. We must ensure that any changes are made with the care and due diligence that we owe to everyone who is involved with and affected by the criminal justice system.

The Scottish Government has gone back and forth on its position on jury size and majority. First, it wanted a simple majority with 12 jurors. Then it changed that to a two-thirds majority with 12 jurors. It has now changed its mind again and wants a two-thirds majority with 15 jurors.

It was still not a live setting.

Amendment 26 was not agreed to. The cabinet secretary said that complainers want a better experience of the court system. I still think that small practical changes would make a huge difference. I also still have concerns about the practicalities for the legal profession of using up to 38 courts and about the costs, the implementation and whether this will make a difference. However, I will not move the other amendments.

I share the concerns that Pauline McNeill has just outlined, and I support her amendments.

Russell Findlay’s amendments 26 to 52, 56 and 58 would remove the establishment of the sexual offences court from the bill. Everyone on this committee agrees that victims of sexual offences deserve justice, that offenders must be punished and that the experience of victims needs to be improved. However, having sat on the committee throughout this process and having heard evidence from survivors, lawyers, victims organisations and various experts, I am not convinced that the establishment of the new court, although well intentioned, would deliver meaningful improvements to the experience of victims. The costs and complications are not justified when we can concentrate resources and funding more efficiently, such as on improved trauma-informed practice.

I agree that there is a need for more specialisation in the court system. Since 2020, sexual crimes have increased by 11 per cent, rape and attempted rape have increased by 25 per cent and sexual assault has increased by 15 per cent. We should never forget that behind every one of those statistics are victims and their families who have been through a traumatic experience and deserve justice. We all want to help them, but we disagree on how to do so. I believe that the best way would be the creation of specialist divisions of the High Court and sheriff court.

That proposal is supported by the Faculty of Advocates, which made it clear that

“there is no single feature of the proposed court which could not be delivered rapidly by introducing specialism to the existing High Court and Sheriff Court structures”.

Simon Di Rollo KC put it more concisely when he said that creating an entirely new court

“would be just a bit of window dressing”.—[Official Report, Criminal Justice Committee, 24 January 2025; c 39.]

The Law Society of Scotland also supports the approach and has said that a new court would serve only to overcomplicate the existing criminal justice system. It has argued for specialist divisions in existing courts that follow the example of the domestic abuse courts in Edinburgh and in the Glasgow sheriff court. It is also notable that Lady Dorrian, whose report recommended establishing this new court in the first place, said that the bill does not reflect the model of the court that she had suggested.

One of my key concerns is the unclear and unpredictable costs of creating the new court. The Government has said that it cannot fully anticipate the costs of the new court at this stage. Given the Government’s track record of introducing legislation that then goes unimplemented, namely the Children (Scotland) Act 2020, we cannot be sure that the sexual offences court will avoid a similar fate.

The bill’s financial memorandum estimates that the Scottish Courts and Tribunals Service will incur one-off costs of £1,444,000 and annual recurring costs of £492,000 associated with the new court. When those costs are compared with the estimated costs of delivering trauma-informed practice—£350,000 in one-off costs and £62,500 in annual recurring costs—there is a huge difference in the funding required. I know that those figures are not entirely comparable, but, when we look at the figures that we have, it is difficult not to conclude that we could prioritise investment and resourcing in our current courts for the benefit of victims and witnesses.

It is not surprising that some people who support the sexual offences court in principle are sceptical that it will actually deliver in practice if it is created. Emma Bryson of Speak Out Survivors expressed those concerns, and Sandy Brindley from Rape Crisis Scotland said:

“my concern is that we do not want there to be a courtroom in Glasgow High Court that has a label on the door that says, ‘Specialist Sexual Offences Court’, but there is literally no difference other than that the people involved have maybe been on a day’s training.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 56.]

The committee has heard from victims groups and survivors themselves about the different changes that are required for the court estate to deliver better trauma-informed practice. Those changes include informing witnesses about their choices of how they provide evidence, ensuring that victims and witnesses are distanced from the accused in court buildings and setting up screens or allowing remote evidence to be given, while also affording the opportunity to victims who wish to see the accused when testifying against them.

Those are all changes that we could make in the current court estate through an investment in trauma-informed practice to support victims in practical and realistic ways, and we should be making them whether or not the new sexual offences court is introduced. We need to maximise the benefit of trauma-informed practice instead of introducing something that makes big changes in theory but cannot necessarily live up to them in reality.

There is already a substantial backlog in our court system. Tony Lenehan KC told us:

“It is a struggle to resource the courts that are currently sitting.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 48.]

My fear is that we are proposing to create a new court that could worsen that backlog and put further strain on court staff. That would not be a good outcome for victims in the long term.

We do not even have the costs or a correct financial memorandum. The initial cost for the set-up of the court was £1.4 million, and there are recurring costs. We have already agreed to the victims commissioner, but it was going to cost £640,000 to implement that and the recurring costs would be around £615,000. For the court, there is a one-off cost of £2 million and recurring costs of around £1 million. If that is, indeed, new money coming into the system rather than being taken off victims charities, which has been raised as a concern, how many bairns’ houses would we be able to buy with £2 million? The recurring costs of £1 million would keep them going. Taking that measure would make a huge difference to victims of sexual offences. Given the recent statistics on sexual offences against under-16s, that would be a better use of our money, because it would provide support and trauma-informed practice in dealing with youngsters, which would help them to provide solid evidence to get those who are guilty of those horrible crimes convicted and put in jail.

That, in my opinion, would be a better use of money, and I have real concerns about the sexual offences court. It sounds great, but how will it work in reality, and how will it be put into practice for solicitors, lawyers and everyone else who works in the system? Concerns have been raised about the practicalities of defence solicitors being available to meet the national jurisdiction of the sexual offences court. Simon Brown of the Scottish Solicitors Bar Association pointed out that fewer than 500 defence solicitors are working in Scotland and called it “a dying profession”. It seems to me highly unlikely that enabling the courts to sit at 38 locations across Scotland could be made to work in practice when defence solicitors already have demanding workloads and would face increased travel and other expenses if they were to attend the new court.

The same would apply to sheriff court staff, who would likely be transferred or redeployed to the new court. The costs associated with redeploying 25 clerks, as well as other court staff, to support the sexual offences court is estimated at £235,000, and the cost of regrading sheriff court clerks to work in High Court procedure for the new court is expected to be around £465,000. I do not believe that those costs are justifiable when it is perfectly possible to achieve the same aims by integrating trauma-informed practice in the existing court structure and creating a new division in our existing courts.

As will be discussed in more detail later, survivors of sexual crime have made it clear to the committee that they have real concerns about the perceived downgrading of rape trials if they are moved from the High Court to a new sexual offences court. Rape survivor Ellie Wilson said:

“Rape is one of the most serious crimes in Scots law; such cases are only ever heard in the High Court. That solemnity is sacred, and it is important that we maintain it.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 4.]

Rape survivor Sarah Ashby similarly told us:

“I would not like for such cases to be dismissed or for us to be made to feel that they are any less significant than they are. When you get the information through that the trial is going to the High Court, there is an element of realising how important that is.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 43.]

If that is how survivors feel, we should listen to them.

That is also the position of the Faculty of Advocates and of experienced lawyers such as Tony Lenehan KC. We have a hierarchical court system for very important reasons, and I am greatly concerned that creating a crossover between two distinct levels in that system might have unintended consequences that will cause more harm than good.

It is also unclear how the divisions between High Court and sheriff court cases will operate in the new court. The bill provides for the merging of High Court and sheriff court cases, to be heard by judges and sheriffs collectively as judges of the sexual offences court. Concern was raised by the Law Society of Scotland, which highlighted the impact that that could have on the sentencing process by potentially increasing the sentencing powers of sheriffs sitting in the new court.

My concern is that the creation of a new sexual offences court sounds good on paper but would do little in practice to address the real issues in our court system or to deliver the changes needed to help victims, particularly regarding the delivery of improved trauma-informed practice. That is despite survivors such as Anisha Yaseen telling us:

“It does not matter how much legislation you throw at this, because the issue is the culture. Nothing will change—no matter how many things you put into place—without a change in culture.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 41.]

I agree with that, which is why I do not support the creation of the new court and will move the amendments in Russell Findlay’s name.

I agree that we had the opportunity to consider it, but we are making radical changes to the whole legal system in Scotland, and the fact is that mock juries arenae real. People know that they are no real. The people involved are actors. Of course, I was not involved in them, but you know that the decision that you are making is not based on somebody actually losing their liberty. It is not a real-life comparison. The research was not done on real-life juries, and I still think that it is not enough to base changes to the full system on.

Given the lack of concrete evidence, it is hard to justify the claim that there is an evidence base for the radical changes affecting jury size and majority that the Government is proposing. If research into jury deliberations had been available before the bill was introduced, we would all be in a much better position to make decisions on these issues.

In criminal cases, guilt must be proven beyond reasonable doubt. That is a high threshold, and there is doubt about whether a two-thirds majority meets that standard. Allowing a criminal conviction when one third of jurors believe that the accused person is innocent does not show that guilt has been proven beyond reasonable doubt.

I want to make it clear to everyone in the committee that what we decide today could make the difference between someone’s freedom and someone’s imprisonment. We need to remember that. We all want those who have committed an offence to be found guilty, but we should not create a system in which it is possible for an innocent person to be sent to prison.

We need to take the advice of legal professionals who work in our courts every day and who understand the impact and magnitude of changing the jury size and majority. Do not take my word for it—take the word of the Law Society, the Faculty of Advocates, Lord Renucci KC of the senators of the College of Justice, the Scottish Solicitors Bar Association and the Edinburgh Bar Association. My amendment 92 does that.

I will just finish this paragraph, and then I will come back to you.

If the research led the Government to support changing the size of the jury, does it not stand to reason that you are now acting against the research by changing it back?

The point that I was making was that it was still mock jury research, so, regardless of how much work was done, it was not a real-life situation; it was still a mock jury trial. If we are going to make radical changes to the Scottish legal system, we need to have live jury or real jury research. That would put us in a much better position to make an informed decision, which is important, because we are making big changes that could have an impact in somebody losing their freedom.

Amendment 91 would require the Scottish Courts and Tribunals Service to prepare and publish an annual report to the Parliament on the use of floating trial diets and their impact on victims. The amendment tries to find a commonsense compromise between two arguments, balancing the traumatic experiences of victims with the unfortunate reality that our courts are overstretched and backlogged.

We have heard from victims that floating trials can add to the trauma and stress that they face. One victim of sexual crime told the committee in our informal session that

“floating trials are not very good because you are having to remember 10 or 11 dates that will always be significant to you ... Dates are massive for people suffering with post-traumatic stress disorder and complex post-traumatic stress disorder.”

Rape Crisis Scotland highlighted that floating trial diets can have an impact on the quality of evidence that victims are able to give. Chief executive Sandy Brindley said:

“People have a trial that is allocated to a certain period, and every night they are waiting on a call to tell them whether it is going to go ahead the next day. That is far from trauma-informed practice, and it is not how we get the best evidence from vulnerable witnesses.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 49-50.]

Sandy Brindley also told us that some victims end up having to rehearse their evidence every day, saying that

“they wake up and go through”

it all

“in their mind”,—[Official Report, Criminal Justice Committee, 17 January 2024; c 49.]

just in case they are called to give evidence. The traumatising effect that that could have on victims is deeply concerning.

The Lord Advocate also shared with us her experience of prosecuting sexual cases in the High Court and the trauma inflicted on victims by making them wait by the phone to find out when they will be called to give evidence. She called floating trial diets “a profound problem”, explaining that

“They are deeply upsetting for victims who are waiting for their case to be heard, and challenging for the prosecutor who is waiting for the case to come in”.—[Official Report, Criminal Justice Committee, 10 January 2024; c 30.]

However, the Scottish Courts and Tribunals Service estimated that moving entirely from floating trials to fixed trials in the High Court would add an average of at least 11 weeks of delay to each individual case and worsen the court backlog. As we know, this Government has presided over an extreme backlog in the courts, and the Courts and Tribunals Service makes the point that floating trial diets allow for better flexibility in scheduling cases and using the finite resources available to it.

In its evidence, Victim Support Scotland acknowledged that there is, unfortunately, a trade-off between certainty for victims and the impact on courts. However, when it has spoken to victims, they have said that they prefer certainty about the date of their trial, even if that means a delay.

I note that the cabinet secretary has heard both arguments and supports reducing the use of floating trial diets, because of the anxiety and uncertainty that they can cause to victims, while also recognising that the state of the court system means that abolishing them might do more harm than good. That is also the position of the committee, which has concluded that it is unfortunately not realistic to stop the use of floating trials completely at this time.

However, given the impact on victims and in the face of the testimony that we have heard, it would be wrong simply to do nothing. As a result, my amendment provides for an evidence-led approach to ensure that the proper research is conducted before we take any further action on changing the use of floating trial diets. There is no reason not to do that research. After all, if we want to reduce or phase out floating trial diets, we need to know exactly when they are used, how they are used and their impact on victims, as well as how we balance that against the impact on the courts of the practical realities of abolishing floating trial diets.

I hope that the cabinet secretary and members of the committee will support my amendment, which is a sensible compromise. It allows for an evidence-led approach to this difficult issue and would be a first step towards reducing floating trial diets and ultimately helping victims, which we all want to do.

I move amendment 91.