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You can achieve the same thing. A High Court judge—Lord Bracadale, for example—who sits in the High Court could sit in a newly created sexual offences court and preside over a sexual offence case or a rape case. They would have to be trauma informed to do so, but they would not stop dealing with cases in the High Court that are not sexual offences cases. A High Court trial for rape could be tried with the same people, who have been trained to be trauma informed.

Fundamentally, I agree with the Government that there needs to be a significant shift in the way that we deal with sexual offences cases. Those cases are predominantly what the High Court is dealing with now, and the situation is alarming, with the rate of sexual offences against women and girls going up, not down. The Government has, commendably, already put in place many measures in relation to the issue, and I think that Parliament as a whole is pretty united on the fact that the issue has to be a primary focus not just of legislation but of practice and resources.

Sometimes, achieving change does not require legislation, as some things can be done without it. However, we are faced with a proposal in the bill to create a new sexual offences court.

My first concern about the idea of putting all solemn cases in a single court is that that will create an extremely large court. There is a bit of an unknown here. I accept that, in the proposal to create that new court, to give it additional sentencing powers and to allow sheriffs to sit in that court—approved by the Lord President, obviously—there is an attempt to do something different and to try to address the delays that exist, which affect too many victims of sexual assault. However, I have a concern that what is a significant change in the court system might not achieve what the Government has set out to achieve, because of the volume of cases that would probably be in the new court.

I am concerned about the cost of such a large court and the ability to ensure that it runs smoothly. I acknowledge that the court can sit in many places—I think that up to 38 courts could be used.

I have a slight concern that, depending on how the new court operates, it could look like there would be a downgrading of the status of rape as a crime. At the moment, because it is one of the most serious crimes that can be committed under Scots law, it therefore goes to the highest court. I maintain that the High Court will still be the highest court and, although the new court could be a significant court with the power to impose long sentences, it will not be the High Court. The High Court is a feature of the Scotland Act 1998; it is a requirement under that act to have a High Court, and it is the highest court, although, obviously, there is an appeal court as well.

I suppose that we might be satisfied that, in order to get the delay down, it is worth using sheriffs and changing the structure, but I cannot pretend that I do not have concerns about how rape cases not going to the High Court might be seen.

Also, because we have been so busy considering the proposal for the new court, we have not had time for much discussion about what happens to the High Court. The figures show that sexual offences cases make up just under 70 per cent of High Court cases, which means that, if the proposal is agreed to, only 30 per cent of the current volume of cases will be in the High Court.

I appreciate that you were not on the committee, but a couple of things came out in evidence in relation to the English judicial system. That system involves 12 jurors agreeing unanimously, or, with the agreement of the judge, it can go down to 10. However, there are at least two aspects that we are aware of that are different. One is the ability to have a retrial, and the other is the way in which cases are prosecuted in England and Wales.

That is why we cannot compare convictions. In Scotland, as long as the Crown is satisfied that it can provide evidence for a prosecution, it will proceed, whereas that is not the basis of English prosecutions, which are based on the chance of success. That is the conundrum for everyone. Even if you look at New Zealand, Australia or other jurisdictions, you realise that Scotland is unique. I totally understand where you are coming from, but those are two points that stuck in my mind.

We are all in the same position. Does the member agree that it is a shot in the dark? We take one position or another and point to certain research that says certain things, but we do not know what we are doing for sure. I put the same question to Liam Kerr. Would it not be better to try to understand exactly what we might be doing or to have some insight into how juries arrive at their majorities at the moment by asking them over a period, during which we lift the restriction in the Contempt of Court Act 1981? That would allow a future Parliament to review whether a majority of 10 to five is indeed the right balance.

Thank you.

My understanding, from speaking to Rape Crisis Scotland, is that its big concern—as you know, it has many concerns—is delay in the courts. If you believe that delays will come down as a result of this change, I understand and sympathise with that view. However, you would have to accept that, while the High Court has High Court judges and advocates represented in it, that may not always be the case in the proposed new court. I will come to that. It is one of these balancing acts, I suppose.

My primary concern is that the new court will require a lot of organisational change. I know that the Government will say, “Well, we’re not going to do it all at once”—of course it is not, and I think that it is important to hear the cabinet secretary’s comments as to how that change is going to be achieved. Nevertheless, there are many problems to be solved, of which the Government is aware.

One such problem to be solved is what happens in relation to rights of audience. At present, rape and murder must be prosecuted in the High Court; those cases cannot go to any other court. Any serious sexual offences that would be likely to attract more than a five-year sentence would also usually go to the High Court, but the Crown has the discretion to send those cases to the sheriff court.

In the High Court, certain things are determined. There are rights of audience for advocates, and the High Court has its own procedures, preliminary hearings and so on. The Government accepts, and it will speak to this in relation to the amendment, that rights of audience would have to be amended to ensure that we do not downgrade—I am sorry for using that word; I am not sure which word should be used—rape cases in particular. It is still important that there are the same senior prosecutors and that the accused has the right to be represented by an advocate or solicitor advocate, as is currently the case. I am pleased that the Government has now tried to address that. However, the Law Society of Scotland has said that it has not addressed all the points, so that is something that could be sorted out at stage 3.

My amendments seek to go about this in a different way, which I believe can be done. On the question of specialism, we can legislate for trauma-informed practice regardless. We could still have all the features of a different structure, and still compel all those who sit in the court to practice or make decisions to be trauma informed.

However, I think that the easiest way in which to resolve the outstanding questions of rights of audience, where cases are prosecuted and so on would be to create a division of the High Court that would be a specialist court on sexual offences, and a division of the sheriff court. We have done that for drugs courts and for domestic violence. Those courts were created without legislation—however, we can do it by legislation. I think that that would be the easiest, and the best, way to tackle the question of delay and to keep the status of very serious crimes as it is. That is what my amendments seek to do.

In conclusion, it is important to have the discussion. If we vote for a change to create a large court, we really need to be satisfied that it is going to do what it says. The system will require a lot of reorganisation, and it will look different from the current court system. If we are interested in balance and ensuring fairness for victims and accused persons, we need to ensure that we get it right.

If this part of the bill is passed, I think that we will be partially getting to the point at which the system could look right, but we would want to make sure, at stage 3, that we have not altered the balance of who is represented in court, and that we ultimately allow courts to make the right decisions and, importantly, ensure that the constant delays that victims see in our court system begin to reduce substantially.

Yes. The High Court could have a division that specialises in sexual offences. Of course, probably two thirds of judges’ cases are sexual offences cases. The sheriff court could also create such a division. The sheriff court is a large court as it is.

My concern with the approach in the bill is that all solemn cases would go to a single court. With the level of change that will be involved, I am not convinced that delays will lessen. That is my fear.

I move amendment 76.

Good morning. In case it is not obvious, I should say that my amendments in this group were submitted some time ago, pretty much right after stage 1. If I am honest, I have been struggling to remember what was in my mind back then—I am only kidding; I do know what was in my mind. This is the most difficult part of the bill, in my opinion. No one has come to it lightly, because we are making a significant change. I realise that and I am only trying to scrutinise what the Government will do after it has removed the not proven verdict.

We know from victims’ organisations that removal of the not proven verdict has widespread support, but not everyone supports its removal. It is fair to say that some people in the legal profession do not. However, people might not have considered what will happen afterwards. How do we rebalance a system that is so connected? If we did not know it before, we know now that the elements of the Scottish system are so connected and unique that it is difficult to extract elements of other judicial systems and insert them into the Scottish system.

In its response to the stage 1 report, the Government said, among other things, that whatever we decide must command confidence. That is a really important statement. What we do now will certainly have to have some consensus, but it must also command confidence.

I do not think that it commands confidence that the bill started off with a jury size of 12, although I know that the cabinet secretary was doing something else back then. It bothers me slightly that, at this stage, we are having to look again at the numbers. However, I am glad that the Government has decided to look at the numbers—it is the right direction to take.

We went from being an outlier in having the not proven verdict to being an outlier in having a jury size of 12. That was obvious to me when the bill was drafted, and I wonder whether conclusions were drawn too quickly. It was pretty obvious when we scrutinised it that the Government was trying to keep everything else the same and then work out the balance, which is what I know the cabinet secretary is trying to do here. I sought to remove the number 12 in order to consider what we would do after keeping the jury size at 15. Therefore, I will not move any of my amendments in the group. I think that the Government is going in the right direction and that it is right not to look at having a simple majority. That is where I was coming from.

It is really difficult to examine this aspect of the bill. Professor Chalmers spoke to the committee about the mock jury research that the Government has partially, but not solely, relied on, with respect to a preference for a jury of 12. The research does not sit easily with the numbers that the Government has chosen, which slightly bothers me, but the lack of any research involving real jurors bothers me most of all. We do not have any insights at all into how juries arrive at their decisions, which I think is a major flaw. I know that we will discuss that during the debate on another group of amendments. The most important message that I want to put forward today is that most of the work that needs to be done is to get this bit right. What research are we going to conduct, what will it cover and when is it going to be done?

Katy Clark mentioned the Lord Advocate’s letter. I appreciate that the Lord Advocate was only reminding us of what she had already said, but it was a little bit unnerving for me to receive the letter last week, reminding us that it would be more difficult to secure a guilty verdict. I agree with the cabinet secretary that the Lord Advocate’s opinion is important and that we have to take it into account alongside other opinions.

Liam Kerr asked where the evidence is. Although I am minded to support the Government’s proposition for a majority of 10 to five, there is no evidence at all to support that—it is a shot in the dark, and we have to assume that it is the right direction to head in.

One of the major flaws of the legislation is that we have been asked to make too many changes at once. If the committee and the Parliament had been asked to look only at the removal of the not proven verdict, we could have looked at some of the issues that Karen Adam will raise about communication with jurors, their treatment and their payment. Sustaining a jury of 15 is obviously more difficult than sustaining a jury of 12, and people do not always want to serve on a jury, although they are compelled to do so unless they have a reason not to. We also have another big group of amendments coming up that is on the establishment of a sexual offences court.

If there is a not proven verdict with a jury of 15, which is what we have at the moment, we know that eight jurors—we have to assume that it is at least that number—considered the verdict to be not proven but we do not know whether the other seven jurors favoured a guilty verdict. For all that we know, in cases in which there is a not proven verdict, the jurors might have voted for either a not proven verdict or a guilty verdict. Lifting the bar on asking juries how their members voted, as the Government is proposing to do, will be fundamental.

I know that the Government has indicated the order in which it will do things, but I cannot remember whether that is on the record. With my amendments in this group and the next—it is hard to not discuss the same issue in debating this group—I want to know how soon after the bill is passed the not proven verdict will be removed. I imagine that that will not be done immediately. I would think that the Government—whoever was in power—would want a few years to consider the matter and do some proper research.

Lastly, on my amendment 268, I am grateful that the Lord Advocate addressed the issue of corroboration and the recent Supreme Court decision. Given what she said, although we do not know what the full impact of that decision will be on future judgments, I do not have major concerns about it. However, a former Lord Advocate proposed the wholesale removal of corroboration, and it would obviously have to be replaced by something. In my opinion, we need to consider the fine balance between the independence of the judiciary and the Crown and parliamentary oversight to ensure a fair and just criminal justice system, which is fundamental, too. We, in the Parliament, would have every right to say that we were not satisfied if the courts removed corroboration and we felt that that was not fair to accused persons. We need to get the balance right between that independence and the role of parliamentary oversight.

I will not move amendment 268, but I just wanted to say where I was coming from with it. If there were more substantial changes to corroboration, which have been called for, we could not just keep the jury size the same. In those circumstances, it would be right for Parliament to review that—that would be pretty valid, and it is all that I am asking for.

My view is that the Government is going in the right direction, but I am exercised about the lack of research. Before stage 3, I want to hear more on exactly how the Government will go about commanding the confidence that it says it wants in the change to the jury size and the majority, and what research we will do with juries.

I know that everyone, no matter where they come from, is worried about this change. In case we get it wrong, a future Parliament must be able to review the matter again. For example, the number of convictions might rise or fall, which could indicate that something was not right with the jury system.

Will you clarify whether the not proven verdict will be removed as soon as the bill is passed and receives royal assent? In some cases, the Government has to attach a timescale to such provisions, but my reading of the bill is that the not proven verdict would be removed right away. That is an important point, because I am trying to understand where the Government is coming from in relation to what kind of research it would want to do and what it would be researching. I know that we are going to have a discussion about that but, if the not proven verdict was removed right away, the research would be based on the new system, so it would be helpful to know whether there would be a period in between.

It is probably a case of my not understanding how the bill is written—it is always difficult to read legislation, even if you have done it for a long time—but I cannot see anything in the bill about a commencement order. It just says:

“The 1995 Act is amended as follows.”

It would be useful to know whether, if we voted for the bill at stage 3, that would just happen.