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Our stage 2 proceedings had been very constructive until we reached group 31. We had managed, until Mr Findlay’s appearance, to have robust and respectful exchanges, including in and around the previous group on independent legal representation. I acknowledge Ms McNeill’s point that the bill is large and complex. However, I think that it is somewhat puerile and childish to say that I am the reason why it has taken two years; that shows a lack of awareness of parliamentary process and proceedings—

No, sorry; I said no.

I start with a point around substance. I still believe that it is vital that we do not lose sight of the substantial evidence that the current approach to decision making in rape trials is denying women justice. Data from the Scottish Government that was published last April show that, in rape and attempted rape cases, where there is a single complainer and a single charge, the five-year average conviction rate for cases that reach court is just 24 per cent. That is sobering, and I do not hear many comprehensive answers as to why that is.

That is why it is crucial that we understand more about the barriers to justice for rape victims. One way that we can do that is through research that looks into the content of jury deliberations, in order to help us to better understand whether, and how, rape myths affect verdicts and what measures could effectively address them. I am pleased that the committee supported my amendments to the Contempt of Court Act 1981 in the previous group, which will help to pave the way for that.

It is also important that we continue to challenge rape myths, not just with jurors but in society as a whole. I have confirmed that we will set up a working group to look at that in more detail, and I hope that members across the committee will support that.

As you know, convener, I have always recognised that views on the proposed pilot of juryless trials are mixed. During stage 1, some stakeholders and members spoke compellingly in support of a pilot, while others expressed their concerns. I have listened carefully to all those views and reached the conclusion that there is not enough parliamentary support for a pilot of juryless trials at this time.

When I wrote to the committee in October, I made it clear that I would remove the pilot from the bill. In the interests of building as much consensus as possible, and as amendments were already lodged that would remove the relevant sections of the bill, which meant that I could not lodge my own amendments, I have lent my support to amendments 53, 54 and 59. Consequently, I note Ms Clark’s remarks on her amendments.

I believe that that principle is incorporated in that work. The work of the victim-centred approach workstream is part of the victims task force, which brings together key victim support organisations as well as criminal justice agencies. The work has been done in that forum, and it has been led by victims. I respectfully suggest that the victims task force is a good forum to work through the recommendations and how to implement them. It is fair to say that the work is still at an early stage, but I am confident that it has been built on solid foundations, which has at its heart consideration of the needs of victims.

There are several challenges in Pauline McNeill’s amendment 77, which means that I am unable to support it. The amendment does not recognise that most relevant cases will be prosecuted in the sheriff courts and typically presented by a procurator fiscal depute rather than an advocate depute. Requiring a meeting to occur ahead of the first hearing would also mean—

Will the member give way?

I am just about to finish—

The pilot will provide choice and agency, which I hope will align with Ms Clark’s ambitions. It will provide advice that will be available throughout the criminal justice process—end to end and beyond, if that is needed. That would go further than what is envisaged in Ms Chapman’s amendment 267, where the advice would stop 12 months after the criminal investigation or proceedings are concluded. I hope that Ms Chapman will welcome that, and I ask her not to move her amendment.

On how the pilot compares to amendment 68, I understand that the amendment aligns with Katy Clark’s consistent calls for independent legal representation but, in that sense, there are difficulties. Perhaps we could compare and contrast the approaches at another time, because there are some points with respect to advocacy that are certainly important.

Yes. Mr Kerr and other committee members will be aware of the substantial jury research that was undertaken in 2019. That was a significant piece of scholarship on a range of matters. As I said, that research demonstrated that reducing the jury size from 15 to 12 would improve the process of jury deliberations. That reference to “the process” related to issues such as the fact that, in a larger jury of 15, more people would dominate conversations and more people would be more passive. The evidence pointed to a reduced jury size improving the process of deliberations.

However, I have reflected very carefully on the matter, particularly in the light of the evidence that was subsequently presented to the committee. In the Government’s consultation, most people favoured the retention of a jury of 15, and then the senators of the College of Justice said in evidence to the committee that they favoured the retention of a jury of 15. Others added their voices to that, including the Faculty of Advocates and the Scottish Solicitors Bar Association.

To go back to the original evidence that I cited, the other aspect of that research is that, although it spoke about a smaller jury improving the process of deliberation, it found that there was no difference between a jury of 12 and a jury of 15 when it came to things such as the number of evidential issues that were discussed—in other words, there was no disparity in that regard between a jury of 12 and a jury of 15. There was also no variation in the extent or the accuracy of the discussion of legal issues.

That has led me to the view that the size of the jury is not as interconnected with other parts of the reform process as I previously thought. It is the case that I have changed my position on the jury size, but I think that my position aligns with the original research.

In summary—forgive me, I am just getting warmed up—the research pointed to a jury of 12 resulting in a more effective process of deliberation from the point of view of the dynamic process between people. However, with regard to the quality of discussions in and around evidential issues and the extent and accuracy of the discussion of legal issues, the research found that there was no disparity between a jury of 12 and a jury of 15.

I hope that that gives some reassurance to Mr Kerr.

My other amendments in the group arise as a consequence of the change to the bill that I seek to make with amendment 146. They maintain the current position of a minimum of 12 jurors out of 15 being required for a trial to proceed. They also set out the thresholds for conviction in juries of 15, 14, 13 or 12. Those thresholds have been set so that the requirement for a majority of at least two thirds remains constant, even if one or more jurors have to be discharged—for example, due to illness.

As a result of those amendments, a larger number of people will need to be in favour of conviction in order to find an accused person guilty—10 out of 15, rather than eight out of 12, as was initially proposed in the bill.

I turn to Pauline McNeill’s amendments 72, 73 and 74. Amendment 72 is broadly similar to my amendment 146, which will also retain a jury size of 15. However, taken together, Ms McNeill’s amendments 72, 73 and 74 would mean that the removal of the not proven verdict was a stand-alone reform.

The abolition of the not proven verdict is a historic reform; I am pleased that it has broad cross-party support and that it had the support of the committee at stage 1. However, it is important that we recognise that moving to two verdicts will change the balance of our system.

Independent research indicates that convictions are more likely in a two-verdict system. As a reminder, the independent Scottish jury research was the largest and most realistic mock jury study undertaken in the United Kingdom. It was carried out in 2018 in response to Lord Bonomy’s “Post-Corroboration Safeguards Review”, which recommended that research should be carried out to ensure that any changes to Scotland’s jury system were made on a fully informed basis.

The study involved 863 mock jurors in 64 juries, testing 16 different combinations of jury size, majority, number of verdicts and case type. It modelled the impact of changes to the jury system on jurors’ deliberations and decision making. One of its key findings was that removing the not proven verdict was likely to lead to more jurors favouring a guilty verdict. The meta-analysis that was published last year also found that

“the results are quite unambiguous: there is a statistically significant effect towards lower conviction rates under the Scottish three-verdict system than under an Anglo-American two-verdict system”.

The not proven verdict is one aspect of an interconnected system, and the evidence tells us that abolishing it is likely to have an impact on jury behaviour and case outcomes, leading to more convictions in finely balanced trials.

As parliamentarians, it is our responsibility to ensure that the reforms for which we legislate are fair, have integrity, and command confidence. I do not believe that legislating to remove the not proven verdict as a stand-alone reform that maintains the simple majority can achieve that. If Scotland becomes a two-verdict system, my assessment, which is shared by others whom the committee has heard from—including prominent legal academics, the legal profession and the judiciary—is that simple majority decision making cannot be retained. Put simply, it will risk miscarriages of justice. There are no comparable jurisdictions where people can be convicted by a simple majority of jurors.

Consultation responses showed a clear preference for increasing the majority required for conviction if Scotland moves to a two-verdict system, and most respondents—most victims, victims’ family members and jurors—supported a qualified majority of some kind.

I will after one sentence.

The qualified majority option with most support, including from the senators of the College of Justice, was one in which at least two thirds of jurors must agree to convict. That is what we are proposing, with a majority of 10 needed from a jury of 15.

I recognise that there is not enough support for the pilot of single-judge rape trials to progress at this time. In the interests of building as much consensus as possible, I will support amendments to remove the pilot from the bill, which we will come to in a later group. However, I remain deeply concerned by the substantial evidence that the current approach to decision making in rape trials is denying women justice.

A wealth of studies has demonstrated that jurors, just like the wider public, hold false and prejudicial beliefs—often known as rape myths—about how rape victims should behave, both before and during an attack, and later to the police and in court. Research with mock juries has found evidence of jurors relying on or referencing rape myths during deliberations. The evidence that we already have should give us real concern that verdicts in such cases are being influenced by jurors’ misconceptions about rape, rather than being based solely on the facts and the law.

Current legislation, specifically section 8 of the Contempt of Court Act 1981, limits the research that we can carry out into jury deliberations. Such research could help us to better understand whether and how rape myths affect verdicts, and what measures could effectively address them.

Amendment 152, in my name, would modify section 8 to allow for research to be carried out into jury deliberations in criminal proceedings. It would no longer be contempt of court for a juror to disclose, or for a researcher to obtain or publish, details of what had been said during deliberations or details of how jurors had voted, as long as the disclosure or publication was for research purposes and permission had been granted by the Lord Justice General.

Those are important safeguards to limit the circumstances in which the content of jury deliberations can be disclosed and to ensure that there is judicial oversight. Ms Clark’s amendments 62 and 63 do not include such safeguards. Amendment 62 would disapply section 8 of the 1981 act in Scotland entirely. That would go far beyond enabling research—it would decriminalise the disclosure of jury deliberations much more widely.

Although amendment 63 limits the disapplication of section 8 to research purposes, and Ms Dowey’s amendment 63A limits it further, they do not require any kind of advance authorisation, therefore anyone could simply claim that they were gathering the details of jury deliberations for research purposes and those details could be published. Amendments 62, 63 and 63A could create risks for the administration of justice, so I do not support them.

Amendment 153, in my name, provides that if Scottish ministers conduct or commission research with juries that has been approved by the Lord Justice General, then ministers must publish a report on the research and lay a copy of it in the Scottish Parliament. They must also publish and lay their response to the research, including any recommendations. That will ensure that the Parliament can consider the research findings and the Government’s response to it and that we can continue the important debate on the effectiveness of our criminal justice system. It is important to note that my amendments would not limit research to sexual offence cases. In principle, research could be conducted into any kind of case, if that was approved by the Lord Justice General.

Pauline McNeill’s amendments 75 and 151 would require ministers to conduct research on criminal juries, including different jury sizes, majority thresholds, and

“the impact of abolishing the not proven verdict ”,

and to make recommendations on whether changes should be made to jury size and majority. There is no way to test the impact of varying jury size, majority and number of verdicts with real juries—that can be done only with mock juries. In order to identify the impact of altering one part of the process, all other aspects must be kept constant, so to assess the impact of varying the number of verdicts on trial outcomes, other variables in a trial must be kept constant. That means that the evidence, the presentation of witnesses, the prosecution and defence advocacy, judicial directions and so on must all be the same, which is only possible to do with mock juries. We have already carried out the largest and most realistic mock jury study that has ever been conducted in the UK to look at exactly those questions, and the jury reforms that are proposed in part 4 of the bill are informed by the study’s findings.

Ms McNeill’s new amendment 269 would require ministers to make use of my amendments to seek the Lord Justice General’s permission to conduct research on the use of the not proven verdict, juries’ reasons for using that verdict, jury splits and their views on pre-recorded evidence. We are already exploring our own research project on the impact of pre-recorded evidence on conviction rates. We are prioritising that important piece of work, but I am happy that we consider whether further research opportunities would be opened up following my proposed amendments to the Contempt of Court Act 1981.

I will speak to the other areas that are included in amendment 269. As debated in an earlier group, campaigners have been calling for the abolition of the not proven verdict for far longer than any of us have been in the Parliament. The committee has heard compelling evidence about the devastating impact that a not proven verdict can have on victims, and that it can leave a lingering stigma for the accused. I agree with the concerns that the committee expressed in its stage 1 report that a verdict that cannot be defined risks undermining public confidence, and I agree with its conclusion that the verdict

“has had its day and should be abolished.”

We cannot delay that reform any further.

The evidence that we already have tells us that removing one verdict of acquittal will alter the balance of our system. That means that we need to introduce reforms to jury majority at the same time as abolishing the not proven verdict. Commissioning more research to look at the same question does not relieve the Parliament of its responsibility to make those important decisions now. Therefore, I urge the committee to support my amendments and oppose the others in the group.

I move amendment 152.

Good morning. I acknowledge that members have taken significant time and great care to scrutinise the evidence and consider their positions on part 4 of the bill, and I will take some time to set out my position on the amendments in the group.

We all want to ensure that, in embarking on reform to abolish the not proven verdict, we do so in a way that protects the integrity of our criminal justice system and its effectiveness in delivering justice. I am well aware that, when reforming fundamental aspects of our system, we want to do so in a way that is considered and with as much consensus as possible. It is our role, as parliamentarians, to face the challenges in ensuring that our justice system is fair and can command confidence. We must diligently and carefully consider the evidence, the complexities and the interests involved. That is how we have all approached the matter to date, and I am sure that we will continue in that vein this morning.

I turn to amendments 146 to 150, in my name. Independent research suggests that reducing the jury size from 15 to 12 would improve the process of jury deliberations, so the bill sought to introduce that change. However, the committee’s stage 1 report expressed reservations about such a change, and I note that Ms McNeill lodged an amendment some time ago that would keep the jury size as it is. I am satisfied that the abolition of the not proven verdict does not require an associated change to jury size. Therefore, I confirmed in my letter to the committee in October that, to build consensus on the issue, I would lodge an amendment to retain a jury size of 15. Amendment 146 does that.