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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 10 August 2025
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Displaying 1467 contributions

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Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 13 December 2023

John Swinney

Thank you for that. It was very helpful.

I will now put to you some of the questions that I put to the panel of legal professionals about the perception of the not proven verdict. If I remember correctly, the words of the faculty representative were that it is “a measured means of acquittal”. From the Crown’s point of view, is the judgment that matters to you whether the case has been proved beyond reasonable doubt?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 13 December 2023

John Swinney

I understand that, but the point that I am getting at is this: what is the definition of “not proven” in the type of circumstances that we are talking about, where the jury is not convinced that the Crown has proved its case beyond reasonable doubt but where there is space for there to be a measured means of acquittal? That sounds to me like a conditional acquittal. Mr Renucci, you just put on the record a point about how, if a jury asks about the difference between not proven and not guilty, a judge will say that there is no difference. The faculty’s written submission, however, suggests that there is a bit of a difference.

11:15  

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 13 December 2023

John Swinney

Do you take my point, Mr Murray, that one will have a fundamentally different view of the outcome when the verdict is guilty or not guilty versus one of not proven?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 13 December 2023

John Swinney

Stuart Munro made a comment about sexual offences having a higher conviction rate in England than in Scotland. Why do you think that is the case?

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 13 December 2023

John Swinney

It would be helpful to have whatever information you can share with us, because it begs the question—obviously there is no not proven verdict in England—of the extent to which the absence of that factor contributes to the difference, if the numbers that you have just given us are correct. I appreciate that you will supply the numbers later. There is a material difference between 50 per cent and 71 per cent, if that is the case. It strikes me that whatever is driving that needs to be explored. What is the potential significance of removing the option of the not proven verdict in Scotland? We have to understand the implications of any move to remove such a provision.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 13 December 2023

John Swinney

So the very nature of the decision about the composition of a jury decision can be conditioned or nuanced. It is about trying to avoid, understandably, the situation that you have put to us where you have a seven to five majority in favour of conviction and somebody is acquitted, which, I understand, is a hard sell.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 6 December 2023

John Swinney

That opens up a link to the questions that Katy Clark pursued a moment ago. The way that you articulated that final argument is incredibly powerful. From the defence perspective, there is an advantage in labouring the term “proven” in the way that you have just described.

Katy Clark put the question whether, if we get rid of the not proven verdict, there would be a need for some rebalancing in the system. That is the Government’s proposition in the bill. That raises the question in my mind of where the appropriate balance of fairness is in the process, because, whatever comes from the changes that we make here, there must be fairness on all sides. There must be fairness for the accused and for the Crown in pursuing its arguments.

The Government’s proposition is that getting rid of the not proven verdict would mean that there is a need for some counterbalancing changes to the size or composition of juries. You said that the labouring of the term “proven” might already be creating an imbalance in the system, which might mean that getting rid of the not proven verdict would just be removing an imbalance. Do we, as a committee, have to consider some counterbalancing measure, or would that actually lead to us changing the balance again?

That is not a particularly coherent question, but you know what I am getting at.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 6 December 2023

John Swinney

But Sandy Brindley would not share that view.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 6 December 2023

John Swinney

Corroboration strikes me as a fundamentally different concept from the not proven verdict.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1

Meeting date: 6 December 2023

John Swinney

It is totally different, as recent judgments tell us.