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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 7 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: 6 February 2024

John Swinney

That answer rather suggests that your view should prevail and not the view of the democratically elected Parliament of Scotland, which has the constitutional power to make the law.

Criminal Justice Committee

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

Meeting date: 6 February 2024

John Swinney

I am no longer an advocate or spokesman for the Scottish Government. I am here as a member of the Parliament, trying to understand how, in a constitutional democracy, if the Parliament legislates for something, those who believe in the rule of law are allowed to say, “We are having nothing to do with the rule of law” in that respect; whereas there is good reason why others in the profession—for example, as you said, the Faculty of Advocates—must participate in the process.

Criminal Justice Committee

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

Meeting date: 6 February 2024

John Swinney

Surely, that is the very point of your proposed boycott. You are saying that judge-only trials will somehow not be fair—

Criminal Justice Committee

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

Meeting date: 6 February 2024

John Swinney

—despite the fact that they happen on countless other issues, around the country, all the time. They will be happening at this minute.

Criminal Justice Committee

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

Meeting date: 31 January 2024

John Swinney

Thank you, Lord Advocate—you have provided the committee with a substantial and important answer in that respect.

I want to explore a couple of details in your answer. The first relates to the question that you raised, understandably, about what happens in a 12-member jury where the decision is reached by a majority of seven to five, and the two-thirds majority that is proposed in the bill is not reached.

Can you spell out to the committee what you, and the Crown, would consider to be the dangers for public confidence in the criminal justice system as a consequence of the proposed change? For all time, in the Scottish courts, simple majorities have resulted in convictions. We would suddenly be embarking on a position in which a simple majority would not be good enough, but there may still be a majority. What are the Crown’s thoughts on that with regard to the implications for public confidence in the justice system?

Criminal Justice Committee

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

Meeting date: 31 January 2024

John Swinney

Is it fair for the committee to assume, Lord Advocate, that your view is that, were we to enact the changes to the jury majority provision, we would be making the challenge of securing convictions greater—given that your success with the Lord Advocate’s reference has improved the prospects—and that it could be characterised as one step forward and two steps back?

Criminal Justice Committee

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

Meeting date: 31 January 2024

John Swinney

Are there any other safeguards that the Parliament could consider putting in place that, in the judiciary’s view, would be compatible with abolishing not proven and maintaining a simple majority on a two-verdict outcome? Are there other safeguards that the Parliament could consider to address some of that anxiety, without opening up what I certainly air in this committee as a question—I do not think that the public is that engaged with this—that, under the bill’s proposals, we could actually have a majority in favour of conviction, but not a good enough majority?

Criminal Justice Committee

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

Meeting date: 31 January 2024

John Swinney

There is then the question of awareness. There have been examples that relate to your assessment of the current position. In some circumstances just now, people will be able to publish information because there is no lifelong anonymity protection in place. However, the point that I am interested in is how people will become aware of the obligation on every one of us who decides to impart anything in the public domain, which will carry should the legislation be enacted? What have you learned from international best practice about how that can be most effectively communicated?

We have before us, as you will have observed, a complex bill with many different elements. You are very experienced in respect of the particular element that we are discussing. What can we reflect on, in our feedback to Government, with regard to the importance of ensuring that people know what the law will be if the bill is enacted?

Criminal Justice Committee

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

Meeting date: 31 January 2024

John Swinney

I am grateful. I would like to follow up on Mr Findlay’s question and the Lord Advocate’s answer.

What the Lord Advocate has put on the record is very welcome, but it raises the question in my mind of whether any of that needs to be formalised beyond the basis of what has been agreed by the Government and the Crown. We have reached a place of welcome understanding, and the independence of the Crown has been clarified and assured. Does the Lord Advocate believe that any degree of formalisation is required, beyond what has been arrived at so far?

Criminal Justice Committee

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

Meeting date: 31 January 2024

John Swinney

I am grateful for that answer. It may be that we require not legislative change but rather a memorandum of understanding, or something of that nature. It would be helpful if that could be explored; we can also explore it with the cabinet secretary when we see her next week. I am grateful for that clarification.