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I will make two points on that. One is that reducing the jury size from 15 to 12 was the Government’s position at the start of the bill process. That position was based on the substantial independent research on Scottish juries that had been done, which was much more about deliberation. According to that research, a jury of 12 was marginally more effective for deliberation, whereas, with 15 jurors, slightly more people overparticipated and slightly more underparticipated. These are my words, not those of the researchers, but the argument was more about group dynamics and how people in a group work together when deliberating. The view was that, on balance, a slightly smaller jury would lead to a better process of deliberation.

I met the researchers as part of my stakeholder engagement, and the committee heard evidence on the matter. As we progressed, it became apparent to me that, although all parts of the system are connected, the size of the jury is much less connected with other parts. My original position was that I very much thought of jury size, majority and verdict as the three legs of the stool, but my judgment by the end of the stage 1 process was that jury size was a much shakier leg of the stool and far less interconnected.

As I said in my opening remarks, I want to focus on the more fundamental issues that are front and centre in relation to fairness—those that are in the interests of justice—which relate to the majority in a reformed system. To be blunt, convener, it is about focusing on the bigger issues, as opposed to having arguments about less consequential ones, although Mr Kerr has clearly given serious deliberation to the size of the jury.

It was.

The research ran various scenarios on the three components of the jury and verdict system; it ran various mock trials, keeping some of the variables while changing others; and it tested various things. As the committee has heard, the research also looked at how a reduction in jury size improved deliberations, because participation was better; indeed, some of it—dare I say it—made commonsense arguments about a slightly smaller group leading to better group decision making. However, I have also said, particularly in response to the views that were given at stage 1 and to the committee, that jury size is less interconnected with other aspects.

There are four or five potential amendments in that area. The first—and I will talk a bit more about this—is to provide for enforcement powers for the commissioner and also to extend the definition of “victim”, which, in essence, is to enable the commissioner to engage with a broader spectrum of victims and witnesses. Given the changes in the victim notification scheme, I am minded to lodge the proposed amendment on the definition of “victim” at stage 3, just to ensure that the definition for the victims and witnesses commissioner aligns with the work on the victim notification scheme. I want to do a wee bit more work on that.

There will be another amendment to ensure that the commissioner shares reports with any criminal justice agencies and organisations that are referred to in the commissioner’s recommendations, as part of the annual report.

I anticipate—members might have other views—that the most significant amendment will be that which seeks to improve the enforcement powers of the victims and witnesses commissioner. That is very much in response to some of the debate and dialogue that we had at committee. It is about strengthening powers and also having better clarity of the statutory role that the commissioner will have. We will weave into the legislation powers for the commissioner to act if someone or an agency is not complying with requests to provide information to the commissioner; we will also restate, in this legislation, relevant parts of other legislation. That is about ensuring that we have the strongest possible basis for the victims and witnesses commissioner.

It just reflects the fact that the Government is taking on board the critique that we heard at stage 1 about jury size. Our position on jury majority and a two-verdict system is the same as it was when the bill was established—we are still, in the context of a two-verdict system, in favour of a two-thirds majority to convict. The 10 out of 15 majority versus eight out of 12 aligns with our position on a two-thirds majority. It is just a change in what we are proposing with regard to jury size.

I hope that I have understood you correctly, Ms McNeill.

As I said earlier, Ms McNeill, the size of the jury is less interconnected with and less consequential to other parts of the jury system. I have shared some reflections on the research, because it led us to support a jury size of 12 in the first place. We listened to the committee and others at stage 1. I am not punting any strong line about the size of the jury being fairer or otherwise, but I do think that jury majority is fundamental to fairness.

I will not repeat in its entirety what I said to Ms Mackay earlier, but I will briefly reiterate that I am not going to pursue the amendment that I intended to lodge to extend the definition of who is deemed vulnerable, given the strong views and representations that have been made by violence against women and girls organisations. I will have further engagement with Scottish Women’s Aid and other organisations on the amendment that I still intend to lodge, which will allow persons who apply for a civil protection order against domestic abuse or for damages following a sexual assault to be deemed to be vulnerable. However, I have heard the representations that say that that does not go far enough and that it is still piecemeal. We will engage and have a further look at that.

My letter in October spoke to other amendments. I mentioned that we plan to lodge an amendment on what the courts should do when a person is deemed vulnerable. The aim would be to provide that, when a person is deemed vulnerable, special measures must be applied at the person’s option, so that there would be no discretion for the court. On reflection, I have some concerns that that might remove the ability of a judge or sheriff to take decisions based on the particular circumstances of an individual case. In addition, removing that discretion might raise concerns about the right to a fair hearing. That is a particularly complex area.

In broad terms, I very much want to turn up the dial. The whole purpose of section 3 is to recognise that people feel far less protected in civil courts than in criminal courts. However, there are some challenges in getting direct alignment, because the systems are, of course, different. As I said earlier, getting into the terrain of removing the court’s discretion in all cases can get us into difficulties, but I am willing to explore what more we can do in that area.

I am cognisant of that point, and I am pleased that the committee has championed the issue. I have met victims who have benefited greatly from having access to information that is essentially about them, their person and their being and I know how important that has been to their recovery, and to other matters such as making complaints or pursuing justice for the treatment that victims have received.

I was pleased to extend the pilot, which was done in recognition of the volume of cases. We want to be able to get through all the cases in the pilot so that it can be properly evaluated. I am not in a position to answer any questions about scope, but I am sure that all members, as is their right, will test the scope of the legislation by lodging amendments on this and, no doubt, other topics.

I, of course, support the pilot and am sympathetic to it. However, I want to check operability, so I want to liaise closely with the Scottish Courts and Tribunals Service about any potential amendment that might be lodged.

Cost is, of course, a particular issue but there is also an issue with technology. Part of the reason for extending the pilot was to see what other technology could be applied that would be more effective and efficient. I have an open mind, notwithstanding the fact that there are always things in stage 2 and stage 3 that give us the opportunity to bottom out details or be sighted on any unintended consequences.

With regard to my position, and the Government’s position, on the abolition of the not proven verdict, I am, in essence, making a case for its abolition for reasons with which we are all well acquainted. Jurors do not understand it, and it is seen as the compromise, or cop-out, verdict. It leaves a lingering stigma on the accused, and the committee will have heard a lot of evidence that victims find it traumatic. In that sense, I am actually arguing that, with the abolition of the not proven verdict and moving from three verdicts to two, Scotland would become less unique in that regard.

The reality is, however, that there are other parts of our system that remain unique. Parliament will come to a view on whether the jury size should be 15 or 12. I do not have an ideological position on that. I have stated the reasons why I have shown some flexibility in response to the committee’s stage 1 report but, ultimately, Parliament will come to a view on that.

Even if we move from three verdicts to two, there are other parts of the system that would remain particular and unique to Scotland. Corroboration is one of those—it still exists. It has been refined and, just as many aspects of the law evolve and change over time, it is evolving in the light of various judgments. Nonetheless, we need to be clear that corroboration remains with us, and it is a part of our system that is unique in comparison with others.

The other part of our system that is different is that many other two-verdict systems have unanimity or near unanimity, and some of those also have hung juries and retrials. There are still differences in our system that have to be accommodated, and that has to influence our thinking with regard to the decision that we make on the jury majority.

I remain of the view that, when we compare that with what a reformed system in Scotland would look like and look at the Scottish research and meta-analysis, we see that a two-thirds majority is the most balanced and proportionate position.

You will know that as well as I do, given that the committee has taken evidence on this.