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In terms of—

It would always have to be based on a parliamentary decision, because, irrespective of its merits or otherwise, the right to a retrial would be a significant departure from what we have now. That is not to say that it should not be considered or scrutinised, but it would nonetheless be a significant change that I contend would need to be looked at properly and considered fully.

I am trying to assure the committee that we will consider the Lord Advocate’s evidence—we have started that process—but that, as with all legislation, we also need to look at the detail. Where there would be significant departures, we would have to think carefully about whether stage 2 or stage 3 amendments would be appropriate for such changes. The answer to that question might be yes or no. I am trying to convey to the committee that we all need to be collectively invested in the understanding and debate around these very complex and difficult decisions.

Some people have argued for the retention of the not proven verdict on the basis of its uniqueness.

I am deeply surprised by that. Just a few moments ago, you heard me speak at length to the convener. I outlined, admittedly in broad terms, what the evaluation would look at. It would look at outcomes and at whether there is a conviction or an acquittal, because those are outcomes, but there is so much more to the pilot.

I will be absolutely up front with you, Mr Findlay: I am not opposed to or anti juries. There is a real value to juries.

Our proposal on the size of the jury is based on the Scottish jury research, for the reasons that I outlined to the convener. Although I acknowledge that the Government’s proposal to abolish the not proven verdict is tied in with reforms to reduce the size of the jury and to increase the majority required, my own thinking has changed a bit. Initially, I would have described those as the three legs of the stool. On jury size, there is the research that I mentioned, and there are commonsense arguments. I think that the committee and Parliament will come to a view on that.

Where we need to be really engaged and invested is in the debate and discussion on what the jury majority should or should not be as a result of the abolition of the not proven verdict, for which, I would contend, we have overwhelming support.

I have touched on the data that has informed our view about moving to a two-thirds majority, including that from the Scottish jury research. It showed that, when juries deliberated and came to a conclusion about which verdict to pass, in finely balanced trials, the structure of our jury system, and not simply the reflections on and the assessment of the evidence, had an impact on outcome. The number of jurors, the number of verdicts and the jury majority requirement—those structural issues—influence the outcome. That is why we want to shift the balance a little bit by moving from a simple majority to the two-thirds qualified majority.

You will have heard some support for that in your evidence sessions—I am thinking of the comments from Lord Matthews in particular. In our consultation, there was 52 per cent support for a qualified majority. I acknowledge that a consultation is not a vote or a plebiscite, and that these are difficult and complex matters. There was 40 per cent support for a two-thirds majority.

If you do not mind—I hope that this does not come across as a bit cheeky—I will note that, in 2013, the then Justice Committee made some reflections about this. I appreciate that the personnel on the committee are different now, but I want to point out that there is a history of evidence or consideration in this matter. In 2013, there was an acknowledgement that, if you abolish not proven, you need to consider the jury majority size, because of the impact that it could have on all cases across the board.

I am also aware—again, I hope that members do not think that I am being cheeky—that there was previously a member’s bill by Michael McMahon that proposed the abolition of not proven. That bill was tied into a two-thirds qualified majority, too.

I appreciate that these are judgments that we will all have to make together and navigate our way through. There is a particular relationship between the not proven verdict and the various options for the majority, which I am sure that we will continue to discuss and debate.

There was 52 per cent support in our consultation for a qualified majority, which could be at various levels, and there was 40 per cent support in the consultation for the particular option of eight out of 12.

Ultimately, Parliament will decide on that, particularly as we proceed through stages 2 and 3. I have outlined the Government’s position and our preference, and we will, of course, continue to engage on the issue. I am conscious of the evidence that the Lord Advocate gave the other week as well as the contribution of Lord Matthews.

The overriding point that I want to make is that we have to give serious consideration to all this, and there needs to be on-going depth to our mutual scrutiny, if I can put it that way, because of what the evidence tells us about the impact of moving from three verdicts to two.

I understand your question, Mr Findlay, but the reality is that everybody is free to speak as they wish to. I am not aware of significant consequences for any individual involved in the circumstances that you have described. I am merely stating that, generally speaking, it is better that people respond and react to one another in a manner that respects people’s identities.

It is data protection. We have obligations under data protection and information governance.

Yes. Good afternoon to everybody who is present at the committee and in the public gallery.

The Scottish Prison Service has considerable experience in the management of people in its custody, as well as a duty of care for those people, and its policy upholds its responsibilities to deliver safe, secure and suitable services for all. Although the management of everyone in custody is an operational matter for the SPS, I welcome the updated policy on transgender people, which has been developed following extensive engagement and careful consideration. The policy makes it clear that a transgender woman who has a history of violence against women and girls and who presents a risk of harm will be admitted to and accommodated in the men’s estate and will not have access to the women’s estate.

I will speak briefly about each of the SSIs. The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2023 will change the prison rules to make it clearer that prison governors have discretion to allow a transgender person to be searched by an officer of their birth sex if it is necessary and proportionate to do so. That will ensure that the health, safety and welfare of the transgender individual and staff are considered in searching decisions. That is necessary to ensure that both the current SPS policy and operations on searching and the updated policy are clearly allowed for in the prison rules and that they are easily understood by those affected.

The discretion will be exercised only for the purpose of protecting the health, welfare or safety of any person or the security or good order of the prison. For example, if there is a risk to the safety of an officer in searching a transgender individual in line with their affirmed gender, the transgender individual will be searched by an officer of the same birth sex as the individual. Amendments are also proposed to make it clear that governors have the discretion to allow a transgender person to be observed by an officer of their birth sex while providing a sample for drug or alcohol testing, if it is necessary and proportionate to do so.

The Gender Recognition (Disclosure of Information) (Scotland) Order 2023 proposes to put beyond doubt that it is not an offence for staff who are involved in offender management to disclose protected information that is acquired legitimately in their official capacity and when required for the purposes of offender management. It is vital that SPS staff, justice social work services, the Parole Board for Scotland and others who are involved in the management, supervision and rehabilitation of people who are charged with or convicted of offences can, when necessary, disclose protected information, whether a gender recognition certificate has been applied for or granted, without risk of committing an offence under section 22(1) of the Gender Recognition Act 2004.

The SSIs, if passed, will come into effect on 26 February 2024, which aligns with SPS plans for implementation of the updated policy.