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It might be helpful if I remind the committee that the purpose of part 4 is to modernise the system. The jury-and-verdict system is not engineered to increase convictions—or, that is, increase convictions in particular offences. It has to be absolutely fair to all parties: victims and complainers, and the accused. That is the balance that we have to strike.

Therefore, my position, and the position of the Government, is that we need to look very closely, as we have done, at the evidence that we have, comparing our unique Scottish system with other, two-verdict systems, and make decisions on that basis. The abolition of not proven necessitates—in my view, and, I believe, in the view of the majority of stakeholders—a change in the majority itself, notwithstanding the debate about what the qualified majority should be. I imagine that that debate will continue through stages 2 and 3.

I do not have any plans for sunset clauses, but I would suggest that, in general terms, the committee has always been very focused on ensuring that the right reporting mechanisms are built into primary legislation. I am also very conscious of the comments of Elish Angiolini, who, when she gave evidence way back at the start of this process, talked about how the law is not static and how it constantly evolves. Indeed, you see that with High Court judgments on points of law and the outcomes of references made to that court. The law does not stand still. However, as far as this primary legislation is concerned, we have enough evidence for us to come to the decision that, in my view and in the view of other stakeholders, this is a credible and fair move that will give, and maintain, confidence in our system.

I will just add that the consultation responses, which I know were published a long time ago, came from a range of individuals, victims organisations, legal representatives and so on and more than 50 per cent accepted that, if we moved from three verdicts to two, we would need to move to a qualified majority. As for what that qualified majority should look like, the majority—not everybody, but the majority—pitched two thirds.

There are a number of layers to my concern about a supermajority. When we consulted on the bill—I appreciate that that was some time ago—there was low support for near unanimity in a reformed system. It was something like 13 per cent. It also feels disproportionate to go from a system that requires a little bit more than 50 per cent to convict to one that, in the context of a majority of 13 out of 15, would require 87 per cent.

The standard of proof is the standard of proof—there are no changes to that. It is worth bearing in mind that juries in Scotland are not told to strive for unanimity. The process is considered to involve an aggregate of individual votes as opposed to being a collective endeavour.

Another difference between Scotland and other systems with two verdicts is that Scotland does not have hung juries or retrials. Such options, should we proceed with reform to a two-verdict system, were not popular in our consultations. In short—forgive me, convener—in relation to near unanimity, there are still some differences in the Scottish system. Corroboration still exists, and there are no retrials in our system.

I understand that argument. All that I was trying to portray is that, in the context of a sexual offences court, where, on the same indictment, there is a murder and sexual offences, there would still be the opportunity for that to go to the High Court or the sexual offences court.

Of course, the sexual offences court has unlimited sentencing power, so it can sentence people for up to life and make an order for lifelong restriction and all of that. I understand the point that is being made. What I am wrestling with is the experience of victims and complainers. Right now, we know that the system overall is not doing enough to support people to give their best evidence. I contend that that relates to issues of the fairness of justice. The whole raison d’être of the sexual offences court is to improve the efficiency of the process and procedures to deliver quicker decision making and improved judicial case management so that cases can be dealt with more quickly.

The evidence from elsewhere in the world shows that specialism assists with that. However, embedding specialism will improve the experience of everybody in the court. If we are concerned about the experience of victims and complainers in the court process, there is an issue with having a sexual offences court that has embedded specialism and then also having a cohort of victims and complainers who have to go to the High Court. I think that the issue involves quite a fine judgment, but that is why I have not brought forward an amendment at stage 2. However, I know that it is a live issue.

I think that we should carry on. A pause is not my position—my position remains the same.

Yes, because this is about balance. I understand the appropriateness of scrutiny, and I am utterly sympathetic to the voices of those who represent, advocate for and support victims of sexual violence and who have concerns about how the system protects those victims and complainers. However, at the end of the day, my concern is that, if we maintain a simple majority in the context of two verdicts, as articulated by the senators and others, we will see an increase in miscarriages of justice. That is an issue not just for the accused across all alleged crimes but for victims.

That is my view, Ms Clark.

That is the nub of the issue. Mr Kerr is right to point out that there is no other similar jurisdiction with a two-verdict system that convicts on a simple majority. That should give us pause for careful reflection as we proceed with the bill.

The research that I mentioned—not only the Scottish research but the meta-analysis—was important. The Scottish research tells us that, if we move from our current unique Scottish system—it is unique in all its aspects: the size of the jury, having three verdicts and using a simple majority—to two verdicts, that will increase convictions, particularly in finely balanced cases. The broad meta-analysis shows that convictions in the Scottish three-verdict system are lower than in what is described as the Anglo-Saxon two-verdict system.

Where I have landed on the matter is the view to which the senators of the College of Justice have also come. The committee will remember the evidence from Lord Matthews that the not proven verdict has

“been seen as the counterbalance to the simple majority.”—[Official Report, Criminal Justice Committee, 31 January 2024; c 36.]

He also said that the simple majority would

“possibly be conducive to miscarriages of justice in”—[Official Report, Criminal Justice Committee, 31 January 2024; c 38.]

the reformed system that we propose.

In essence, the simple majority is too low and the other alternative of near unanimity is too high for fairness, because we still have the safeguard of corroboration in our system, although it has been refined and updated and has evolved in terms of the successful references that the Lord Advocate recently made. I think that we have landed in the right place. The Government’s position, like that of the senators, is that, in a reformed system, it should be a two-thirds majority.

That is a good point. I am not remotely interested in slogans and I think that we all want to see a difference in people’s day-to-day experience of the justice system on the ground.

In this instance, legislation has an important role to play in changing culture and practice, although it is not the only solution that we should bring to bear. We are working on a planned amendment that would extend the definition of trauma-informed practice. I am sure that members are alive to the debate that we had in committee. We brought forward a definition that was designed to fit into legislation, because legislation is about defining duties, responsibilities and legal obligations. However, there was a far broader definition in the trauma-informed justice skills framework, which is about how we train and support staff in the justice system to embed trauma-informed approaches in their day-to-day work.

I am pleased to say that we are progressing well with drafting that planned amendment. Our proposition to the Parliament will be to add two further aims, taken from that knowledge and skills framework. One is about enabling people to participate effectively and the other is to avoid interfering with a person’s individual recovery. That work is still under development. We are engaging with justice agencies because legislation must be able to work in practice, at operational level. We are getting enthusiastic support from Dr Caroline Bruce of NHS Education Scotland, whose work on the justice and skills framework has been pivotal.

I will try to focus on amendments. Part 5 specifically relates to the sexual offences court. All the participants and parties in that court have to be trained to be trauma informed. In relation to amending the bill, I have to bear in mind that the training of the judiciary is a matter for the Lord President. However, I assure Ms Dowey that I know from my engagement with the Judicial Institute for Scotland and with victims, who have also engaged with the Judicial Institute on training, that there has been a wealth of work and input on training, including on refresher training and expanding the training input for induction courses for the judiciary. That obviously includes sheriffs.