 Good morning and welcome to the 33rd meeting of the Criminal Justice Committee in 2023. We have no apologies this morning. Our main item of business today is the continuation of evidence on the victims, witnesses and Justice Reform Scotland Bill. Today we are continuing phase 2 of our scrutiny of the bill, focusing specifically on part 4. This covers the abolition of the not proven verdict and changes to jury sizes and majorities. We are joined this morning by Sandy Brindley, chief executive at Rape Crisis Scotland and Mr Joe Duffey, so welcome to you both. I refer members to papers 1 and 2. I intend to allow around about 60 minutes for this session. If I may begin with a general opening question and I may become to yourself Sandy Brindley first and then Mr Duffey. We understand that you both support a move to a two-verdict system with the removal of the not proven verdict. What are your reasons for this position? The not proven verdict is used disproportionately in rape cases. We are really unusual in Scotland in having two acquittal verdicts. We have a number of concerns about how it is used in rape cases in particular. In combination with the significant evidence about the impact of jury attitudes and decision making in rape cases, our worry is that the not proven verdict could be contributing to wrongful acquittals in rape cases. Fundamentally, I think that it is not correct to have a verdict that cannot be explained. I mean I'm sure you'll hear from the academics who were involved in the mock jury research in Scotland, which is the largest study of its kind. What they found was really people do not understand what the not proven verdict is and when it should be used compared to not guilty. Judges can't give any definition or any guidance on when the not proven verdict should be used. It seems to be simply incompatible with a transparent accessible justice system to have a verdict that nobody can define and particularly concerns about how it is used in rape cases. We support its abolition. I think that it is the right decision. I think that it is an anomaly and I think that it is time for it to go. I could reiterate exactly what Sandy is saying. I mean it's a quite frankly it's an outmoded, outdated and unnecessary system. There is no requirement for three verdicts especially in two of them mean exactly the same thing. I'm on record countless times saying the only difference to be not proven and not guilty is the spelling. I mean that is an actual fact and I've actually sat in a jury on a drugs trial in Hamilton in 2012. I can categorically tell you that nobody in that jury would any understand why not proven was there because they actually thought that it was something like a safeguard that if you couldn't make up your mind you could retry them again if it was insufficient evidence that it was a complete misunderstanding. The sheriff categorically refused to define it and said that he wasn't in a position to do so because some people had actually asked. It leaves people traumatised and actually what you're doing especially we deal with murder victims families and I'm talking about that from my personal viewpoint and I can tell you that that verdict leaves you further traumatised because you've got a complete anomaly that shouldn't be there allegedly it's an accident I'm not entirely sure but Sir Walter Scott we know the language he used about it and he's right because it just shouldn't be there it's a total anomaly a two verdict system is perfect it works everywhere else in the world there's no reason why we should be any different I agree with Sandy we were all involved in the mock trial system in the warwick investigation and report on it and it's I'll repeat myself it's outmoded outdated it's unnecessary it needs to be removed okay thanks very much if I can maybe come back to yourself Sandy in your submission you know it's very clear that your sub experience in terms of working with survivors is that they you know they feel that the not proven is a a verdict that doesn't necessarily support them going forward it's unclear it's confusing and they feel let down by it but I noticed in your submission that you also comment on some survivors who feel that they have derived some comfort from a not proven verdict rather than a not guilty but would it be fair to say that that is not reflective of the majority of survivors views as you understand them yeah I think it isn't important and helpful to reflect diversity of views survivors are not a homogeneous group I think it's totally natural there'll be different perspectives within that and there is a small number of survivors who have said to us at least it wasn't not guilty so it felt like maybe it was the jury communicating some degree of belief but for the majority of survivors that we have spoken with or that were in contact with they're absolutely supportive of the removal of the not proven verdicts we've had campaigners like miss m, Hannah steaks, other survivors both anonymous and not who have spoken really about the devastating impact of getting a not proven verdict in their case there's a really useful piece of research by Vanessa Monroe from Warwick University who did some interviews with survivors about their experience of the not proven verdict and really overwhelmingly what they're saying is this verdict actually got in the way of maybe able to come to terms with the outcome of the court case because I was left with nothing in no way of understanding it and I think there's broader issues there that it speaks to about the lack of reasons being given for a verdict particularly if somebody gets a not proven verdict they simply do not understand what's going wrong in the case or why the jury came to that decision so I think that there's a bigger issue there just about reasons for decision making that I know is picked up later in other parts of the bill that's that thanks very much and if I can compact yourself Mr Duffy again just from your submission to committee one of the what you say in your submission is that the vast majority of people are totally unaware of the court system and do not know what the not proven do not know that the not proven verdict exists so you spoke a little bit about the earlier on about the confusion of what exactly that verdict means. I'm interested in what your thoughts are around whether or not it would be more effective if people if the not proven verdict was better explained to people so that their understanding would be clearer and that in itself might make the use of the not proven verdict more effective. I think that an explanation would be beneficial to everyone I mean that for instance nothing about the Scottish legal processor system is taught in schools worth talking about I mean you don't get any of it in school you still don't get it people don't know that Scotland has three unique verdicts which they are unique nobody else has three verdicts in the world you're asking judges and sheriffs to explain or define not proven the definition is going to be it does not change anything it's exactly the same as not guilty so that would be beneficial in the first place but the fact did not define it at all but the vast majority I mean we deal with it I'm still dealing with murder victims families who are still getting not proven verdicts right I mean I was at a meeting yesterday with people and they are traumatised by it because they still didn't understand that it it must have meant something right that that's the understanding if that verdict there must mean something so the explanation is paramount you have to explain what is it why is it there so if it doesn't have a meaningful use why can't you define it and that comes back to those in power who are deciding on what verdicts are there and how it should be described in court it's not described it's not defined at all I would actually challenge that anybody if you went out the street just now anywhere and interviewed the next hundred people and asked them to define not proven or is it there why it's there and what does it mean you will not get a clear definition most people don't know it's there I mean I'll go right back to 1992 when the man that I can't actually categorically say the murdered my daughter right her daughter got a not proven verdict I mean my father who was a reasonably educated man accepted being apart from being a next minor he was understanding it must have meant something that means it can be charged up he thought it was the double jeopardy right it's not double jeopardy it doesn't mean a thing it means exactly the same so definition is paramount explanation is but the easiest way to explain it is it's not needed so just remove it right it's long overdue so you can define it to your below in the face but I don't think quite frankly if you tell most people in a jury room that you'll be too verdicts I mean exactly the same thing I think obviously what they're doing is leading to more confusion of which one to be given because regardless of which one it is the person is going to walk out of there so yes define it but I prefer you remove it okay thanks very much indeed okay I'm just going to open um open things up to other members if you'd like to come in filter McGregor thanks convener and good morning to sandy and joe it's just a very quick follow-up question to the convener's line there and I guess it's on it was following on from your last point near joe that you know the two verdicts are virtually the same thing not proven no exactly exactly if it is removed do you feel in your experience working with people and being in and out the courts and I know it'll be hard to say definitively but do you feel in your experience that this will lead to a higher number of convictions or for these sort of things I have no idea no I don't know that no I don't all I know is it's an anomaly that shouldn't be there on the legal system and on how juries have returned verdicts in the past on various sides of things I couldn't say that there'll be more convictions I'm not saying there should be more convictions I'm not linking that to I've never said that anywhere that there's going to be more convictions or fewer convictions because of it but I just think that I just think it's usually universally accepted that there are two verdicts in this world and there are and they're guilty and not guilty not proven and not proven guilty and not guilty so will it lead to more convictions from a personal viewpoint and supporting the people we support yes I'd be delighted if it did and people would be convicted for the crimes they committed but I can't say that that would be the case I don't know that would be down to the jury thanks to that clarity joe stand up up yourself I think for rape cases it's possible I don't think it would be significant but we have seen some absolutely terrible cases where there's been a not proven verdict terrible in the sense that the evidence to me seemed absolutely overwhelming including where there's been significant physical injury and the jury's decision really is inexplicable I think in those small number of cases I think it's possible that it might have an impact on the conviction rate in the sense that if it is currently contributing to wrong flick of ills and rape cases it may rectify that to a degree but I think it's minimal the impact I think it probably just be a handful of cases that it would impact so it's the right thing to do but it's not going to have a huge impact on conviction rates. I'm picking up on what Fulton was saying in that my question was going to be very similar really picking up on the opening contribution from Sandy in relation to wrongful acquittals because as you know what the Scottish Government are proposing is by abolishing not proven they would offset any impact that might have on conviction rates so if you like the balance between convictions and acquittals by increasing jury size so how do you accept that that would have the result that there's likely to be no change given you've just said you think it's a handful of cases and do you think the changing jury size does offset in that way Sandy? I mean it doesn't make any sense to me at all what the the government are doing here I mean if you accept to the not proven verdict it may be contributing to wrongful acquittals and it serves no purpose so you remove it so to compensate for addressing the potential of wrongful acquittals from not proven what you're going to do is make it harder to get a conviction it genuinely makes no sense I do not understand the government's rationale and this I mean I've heard a number of lawyers arguing that Scotland's obviously an anomaly and having a simple majority but to me that's a separate discussion like I don't understand the link with the not proven verdict and I saw the senator's response where they're saying they think it's based on a false premise and I also think it's based on a false premise and I think what what it means is potentially the overall impact of this bill could be to reduce convictions which surely is the last thing any of us want. If I could just maybe follow up on that so you referred to the mock jury study but obviously what we've been trying to look at is what the evidence is for what the Scottish Government is proposing so one of our initial questions actually many many months ago was well what data is there so to get an understanding of what kind of jury results we get at the moment to what extent are the unanimous to what extent are they very narrow you know results if you like in favour of either conviction or acquittal do you have any information about that either data or just impressions in terms of how clear outcomes are on juries what's the what data either hard data or impressions do you have I mean that there is undoubtedly a need for far better data in relation to justice responses to sexual offences we might we don't even have the most basic data of how many reported rapes lead to a conviction because it's two separate data sets that aren't comparable and I think that that does raise a legitimate question about undertaking significant radical law reform which I absolutely support but without the data to underpin it or to make the case and that this is an issue I have been raising like literally for for years with the government is that the need to improve the justice data and sexual offences and the data that I think we really really need is the conviction rate in single complainant rape cases so what what we know is that the overall conviction rate for rape it's about 51% which is far lower than the overall conviction rate which is like early 90s but I mean certainly anecdotally what I've heard is the conviction rate for single complainer cases is far lower than that and this is often if you look at judges testimony from Lady Dorian's report from the review of sexual offences what what judges are saying at the time but not proven verdict being used at times where it's inexplicable in the face of the evidence and that is often in single complainer rape cases so that this is what I think we need is much richer data to underpin these discussions and particularly I think that figure about what is natural conviction rate in single complainer cases particularly when that's what the Dutch lead pilot is going to be focused on as single complainer cases we need the data and we need the evidence okay thank you John Swinney I wonder if I could try to draw some points out of what Mr Duffy said already because I think it's I think both the the experience that you've recounted about your own participation in that as a jury member Mr Duffy I think it's really quite insightful in bringing some further weight to the the long-term argument that you and your wife and your family have pursued with such vigor and distinction but it strikes me that your argument is essentially that the not proven verdict is a product of or a symptom of a lack of clarity in the judicial system would that be a fair summary that in a sense because it can't be defined and you made a very powerful preface not to bother defining it but because it can't be defined it can kind of almost mean anything it's a terrible thing to say but somebody said it gives it a bit of a mystique that there must be something so different about it that makes it beneficial right which is an absolute to me a piece of nonsense but right if you have to describe an alternative verdict why do you have it if you can't actually say you have two verdicts open to you you've heard all the evidence as the person guilty or not guilty why are you offering them a middle ground why do you have to say there's a middle ground but there isn't a middle ground because it's going to mean the same as one of the verdicts so it becomes a symptom of what we're talking about data capture here as well i mean like in how many trials murder trials rape cases any case is the level of information comes out on is it unanimous was it a majority if it was a majority what's the majority we don't know right so we also have the thing with a jury that you've got 15 jurors so did one juror send somebody home or send them to prison right was it 87 how many times does that have so you're asking to define that and explain that but if you're going to do that you have to define and use better levels of data across the board to justify having it if it's if you expect it to remain um the simple i keep going out to the same analogy every time is that if you've got a third verdict that constantly needs definition that the legal justice process refuses to define and tell juries exactly what it means why do you have it i think the way you've just explained that with your use of the term middle ground is perhaps the best because you know people essentially whether we like it or not there is an encouragement to believe that this is a middle ground but it's not actually a middle ground it's actually on one side of the line as opposed to the it's not in the middle it's on one side of the line because it is essentially it has equivalents with not guilty but it gives the it has the the potential to feed confusion in a jury room about what people are feeling and what conclusion they are coming to yes if you go at any trial and listen to defense counsel defense counsel will labour the one word throughout everything about the evidence that's being led they don't say as the person guilty or not guilty have they convinced you they will use the word proven continually continually and then they'll go to if it's not proven it must be not proven they don't say guilty or not guilty go through some transcripts and have a look at them right especially in major cases and in a lot of cases it will be laboured if you're sitting through it and you've got my viewpoint it becomes quite annoying to listen to the number of times it's used because that's not what you're there to do here that's not it's not proven and not proven it's guilty not guilty or not proven but the labour not proven and in the words of my darling brother all they do is muddy the waters to continually move you back to the middle ground and that means you don't need to make a decision you can let that be done to somebody else thank you for that Mr Duffy that that opens up for me a link to the questions that my colleague Katie Clark was just pursuing there a moment ago which is and the way you've articulated that last argument I think is incredibly powerful that from a defense perspective there is an advantage in laboring the term proven as you have just described when we then address the questions that Katie Clark was putting about well if we get rid of not proven is there a need for some rebalancing within the system which is the government's proposition that's in the bill that raises questions in my mind about well where is the where is the appropriate balance of fairness in this process because whatever comes out of this the changes we make here there must be there must be fairness on all sites there must be fairness for the accused and fairness for the crown to pursue its its its arguments the government's proposition would say well if you get rid of not proven you've got to have some counter balancing changes made in terms of jury size jury composition and I'm just interested to understand the way you've articulated that point whereby proven proven proven is laboured as a term might actually be creating an imbalance in the system already so we might just be removing an imbalance so we as a committee have to consider do we need to put in some any some counter balancing thing or are we actually changing the balance again that's not a particularly coherent question but it's a kind of you hear where I'm getting at I think the defense guys are more than more than articulate enough to actually come out well better phrase just because you've removed not proven I'm saying to use it because it's in their benefit to use it they would I mean some of the most articulate people have ever heard a senior defence council so I'm quite sure they would actually manage round not having it I mean you say the imbalance I mean the imbalance is that I don't know any process in the world where one set of people on one side against the other whether it be defense whether it be sport whether it is got a 21 chance and that's exactly what you're giving you're giving the defense a 21 chance they've got two verdicts open to them not open so do you need to counter balance it with somebody else okay if you need to make changes to the jury system make changes to the jury system I'm not happy with the jury system at 15 anyway first of like there's too many people and I'd also think the 87 is crazy right quite frankly I've never only since I have to say as you're probably looking at my spring chicken but I mean in 1992 I can categorically tell we I didn't know no proven existed right and I certainly didn't know there were 15 jurors I mean before everybody started doing this and many people thought there were 12 people in the jury right as there is everybody else right so if you need to make changes to that and there's a balance yeah everything everything comes out balance yeah so you could see the argument for there to be a a reduction in the size of juries but essentially a higher threshold for conviction for conviction yes but that's not a view that you would share we agree we agree in the fundamental premise of removing the not from verdict I think your question is particularly apt why is there a need for re-balancing by remove because we're removing the not proven verdict I think the jury research is so helpful but I think it can lead you down the shoulder to know these mathematical calculations why do we want to keep the level of convictions and rape cases exactly the same as they are just now given that I think it's obvious to anyone guilty men are regularly walking free I think the difficulty of going down the road of mathematical calculations is what you're not considering is are the decisions the correct decision and that to me is the key argument about our juries are we enabling juries to make decisions the correct decisions based on the evidence applying the correct legal tests which they understand and to my mind that is not happening just now and not proven plays a part in that as does the question of jury attitudes there's maybe a separate discussion which Joe is referring to hear about should we have a simple majority should we have a jury of 15 but I cannot see any basis for linking that to removing the not proven verdict because to me that removing the not proven verdict is about removing like for rape cases something that contributes to wrongful acquit oh so why are the government wanting to rebalance removing something that could be contributing to wrongful acquit oh so it makes no sense to me I think thank you for that I think I'm struck last week in the evidence we took from the the academics who were behind the the jury research about the interaction that essentially isn't here only constructed within their argument which is around the relationship between jury size which and majority or versus super majority within a jury and not proven and that you know we we laboured last week the relationship between these three factors and essentially what you've just put on the record in Saturday is the is the question of whether the correct decisions have been arrived at as opposed to are we making a change here such as the abolition of the not proven verdict which Duffy's made very clear his belief in is that the question alone that we're answering or are we answering a hypothetical question of how do we maintain conviction levels at the correct level sorry at the current level as opposed to perhaps at the correct level absolutely and what concerns would you have in that triangle that I talked about there jury size majority versus super majority not proven would you just not stop would you just not have them in that that framework would you encourage me to stop thinking about that yes i mean it used to be going back to the days of Lord Boromy's safeguard review it used to be that not proven was like jury majority change and would be the cost of corroboration going and now somehow the jury majority change is the cost of not proven going and I'm not I'm not quite sure how that has happened to to be completely honest with you corroboration strikes me as a fundamentally different indeed concept than not proven totally as the recent you know judgments will tell us okay thanks thank you Russell Findlay then Pauline McNeill thanks very much i'd like to start just pick up sandy from the point you made earlier about data i mean essentially what I would quite like to know is how many rapes are reported to the police how many are prosecuted of those which are single complainers of which those which are multiple complainers and subsequently how many are resultant guilty and not guilty and are not proven but I've understood you correctly we and you don't have that data we don't we have data on the number of reports to the police we have data on the number of prosecutions and the number of convictions but you can't compare those two data sets because one measures by offence one measures by accused and also they're not the same cases so we don't have any system of tracking cases through the system where you can say for example there's 2000 rapes of these 2000 reported rapes of these 2000 rapes this is the proportion that resulted in a prosecution this is the proportion that resulted in a conviction we do not even have that level of basic data never mind how many of them were single complainer cases never mind how many were male victims compared to female victims we do not have the most basic data we've pointed this out i guess for a long time many many times so who can who has the responsibility to fix this is this the Scottish government i mean i would say in liaison with the the justice agencies that i mean the difficult i think we i keep coming across from a visa this issue is that for the for example the police and the court service and the crown their systems are designed to manage cases rather than provide data but i mean that there's only so many decades you could use you can use that rationale for i would say before you improve your data systems indeed now not proven is an international anomaly um the legal profession frankly seemed to have almost given up the fight i'm not proven i get that sense um and um they are however very concerned about the proposal to not just reduce the jury size but change the required numbers for a verdict from to eight out of 12 which in itself would be another international anomaly um i'll quote to you what the faculty of advocates have told us the inevitable consequence of scotland adopting a majority of eight from 12 would be an international communication that scotland places less value in protecting its citizens accused of crime than any and every other nation with a jury system um do you share these concerns in any way with the grace respect to the faculty it sounds similar to their analogies of north kria when they're talking about the dunchled pilot do you like i'm just not sure how helpful that hyperbole is when we're we're we're talking about these these issues um i think if we change the jury majority from a simple majority that in itself is a significant change i'm not sure if their position is that that that would be such a dramatic loss of rights for the accused it's hard to understand how that can be the case when it's a significant increase in majority rather than decrease in majority i think if you were to move towards a requirement or a preference for a unanimous verdict you would literally never get a conviction in a rape case it's almost unheard of to get the unanimous verdict in a rape case even where there is overwhelming evidence because some people simply do not no matter what the evidence is there are some members of the public that will not convict in a rape case no matter what the evidence is in many other comparable jurisdictions there is a requirement for unanimity or one short of unanimity and that seems to work is there not any sort of consideration that that might be the way forward all i can see is it in scotland if you speak to judges they almost never see unanimous verdicts in rape cases so what that leads me to think is if we had that requirement in scotland we would see a dramatic fall in convictions the jurors would kind of fall into a line but we just don't know we don't know yet we don't know mr duffie i'd like to just pay tribute to everything you and your family have done for 31 long years of campaigning you've spoken to probably every journalist in scotland every committee no doubt as well and it seems that after all that time the scrapping of not proven is within touching distance i just wonder if first of all you thought this day would ever come in all the years of hostility you faced from the legal profession and others and whether you thought it would even take take so long as another way of looking at it perhaps well i hope springs eternal i mean going back to the days when we actually stood out in the street and asked people to sign a petition as long before you had proper internet or anything like it we actually had people standing where a pasting table and some leaflets and shopping centres and everything else i'd like to pay tribute to marston spencer's and hamill which isn't there anymore in the wind and glasbo for giving us coffee all the time we stood outside blocking their doorways however we always hoped it would come it seemed to get further and further away i will pay tribute to the way we were completely stitched up by sarian lang when he was in westminster by accepting all our petitions from us and congratulating us and telling something could definitely be done and three days later kicked it out completely in westminster because we didn't have this at that time so George Roberts and the MP as you probably remember actually helped with it greatly but we always hoped it would come about yes we've had the faculty of advocates in particular have certainly never been exactly our favourite people they've never been very nice to us about what we do and do not know and why we're doing it the only thing that was really flattered about is that it seems this bill has actually passed according to taxidrivers i've had it recently because they can actually did me in it being abolished so i'd like you to get it moving and get it done because these guys are obviously right because they're taxidrivers so based on their optimism and that and the way the media seems to be relating it seems that maybe not proven might actually be abolished but really i'm not in any younger so the sooner the better please um family would yes we would have a party and these won't be invited but it will be a family party but it would need me a party frankly it would be a relief and over the 31 years that you've been campaigning how many other families have you assisted? oh no that's a bit like sandy's data apart from um well i was with one organisation until 2014 when we started the manda centre in 2016 i don't know if anybody somebody asked me why we call it the manda centre because our sibling's called her manda and that's why it's called that so we still support families so i as a figure i have no idea i could probably find it if i right go back through and look at records and stuff but we have supported a lot of families who have suffered the same way we have i mean the family originally helped us when we founded the first charity i mean they were and that's why they got in touch they were in the exact same position where um it was a not proven which was again at the end of it you couldn't believe it i mean i sat in Edinburgh less than 10 years ago by a family um and my wife was sitting behind me was there and for the jury to come back with the evidence and be given we came back to a not proven bird it was absolutely astounding um so it's the trauma and i've said it already it's the trauma it creates for families and you re traumatise them by there's no level of justice that's how they feel about it because somebody's just walked free and i'm right in saying that most of those you've helped similar to you would have had no real knowledge of even the existence of the verdict up until i've said it in my submissions i mean they have none i mean i've even put one in from the manda centre as well and spoke to the families in there who have been affected by it and they were stunned when they got their thing oh well it must mean something after three verdicts must mean something and yeah and when they discover that it's an anomaly as far as i'm concerned um they're shocked i mean we've actually had families going no you're wrong it must mean something you know they can retry them you're like no that's double jeopardy so um it's the trauma and across the board i mean i i know the case of sandy deals we and we deal with in the manda centre we don't only deal with we deal with a lot of other things as well and that's coming through more and more as well with people who have been subject to coercive behaviour and it goes to court and everything else and domestic abuse and people are walking away in an off proven from it and a sheriff only and and that just the trauma it creates is just it's bad enough in any case is before it gets to trial you when you're supporting people who have been affected by crime they're they're in limbo till they get to the trial and everybody's waiting in the trial because when we've got a verdict then we'll get justice and then they go there and they don't get justice so the trauma gets exacerbated yep thank you very much thank you Pauline McNeill then Rona Mackay thank you good morning um can i start to uh start with joe um first of all um thanks for your evidence um you're quite convincing on this issue of is it well explained i don't have a strong view either way on the not proven verdict i'll say that so i'm just listening to the evidence um my first question is so presumably the judge when they give the direction to the jury as well as having to explain the three verdicts will say if you've any doubt in your mind you shouldn't convict and i just wondered given that if you stripped away one of the verdicts i mean some people think it's more likely that what will happen is you just get more not guilty verdicts wondered what you thought about that joe i don't know why i can say that because the one thing that's missing through all the data we talk about is jury research proper jury research where you can have mock trials you can have mocked juries and everything else i'm telling you i was on a jury in a jury or chart i can't tell you more than that except i can't even tell you what the verdict was or why or anything like because i'd be in breach of a britain i agreed to um there is no actual evidence to start around and say that that there will be more guilty or more not guilty there is nothing that says that you can have mock trials you can have mocked juries excuse the pressure to you blow in the face but you don't know that right and you don't know that until there's a fair justice system which is guilty and not guilty the judge and sheriff even a jury trial will say yes if you're not usually convict but in between that they've said not convict but they've also told you there's a third verdict there that they don't explain yes i understand that but they do also say if you've got any reasonable doubt in your mind that you shouldn't convict you is that right and then you've got to decide from there what the current system if you like if you have that doubt then you need to choose which verdict so i don't think they're not guilty but i don't think they're guilty so maybe a wee bit guilty or a wee bit not guilty maybe it's just me but yeah but but i just wanted to establish that that's i mean we're all the people here right so we're only going by what we but the judge would normally direct the jury to if you've got a reasonable doubt you'd accept that yeah thank you um sandy i've got a few questions for you um first of all i mean would you accept that scrutiny the committee have been asked to undertake is to make a decision in relation to all cases and not just rape cases no absolutely it's used disproportionately in rape cases and i think that's a site of a lot of the concern about the not proven verdict but it's a unique so would you acknowledge that we have been asked by the government to look at changes that affect all trials rape and murder and everything else yeah so i note the point you said about the faculty of advocates but last week we had evidence from professor Fiona Leverick and she is also expressing the same concerns about you removing the third verdict or one of the verdicts that she would be concerned about the current proposals because she says it's out of state with the rest of the world just wondered if you've heard that i think that's a separate argument what i don't understand is the link with the not proven verdict i think if the government were to make an argument where i don't see that they have made that the policy document is saying it's because they're not proven going i think there's a separate discussion about should what should our jury majority be what should the size of the just if you did know that that if you did what she said to the committee so that she's not she's not the faculty i'm just pointing that out that she's given that evidence to the committee so we have to consider that but you also said if you accept that it's contributing to wrongful acquittals but the government haven't said that either that might explain where they're coming from we've also been explicit to the committee by saying we're not trying to make any change by doing this to the number of acquittals yes i mean my understanding so obviously what most of the bill is coming from lady dorian's review which didn't that that's not quite the not proven part of the bill comes from but my understanding of the recommendations of lady dorian's review is that there are rest in two key issues one is retraumatisation one is low conviction rates and that the issue around low conviction rates from lady dorian's review is very much about jury attitudes and the impact of rate myths and for me that is anextricably linked with the not proven verdict about the interaction of those two things so although the government are saying we don't want to improve conviction rates my position would be conviction rates are very low there are a number of factors that i think are contributing to wrongful acquittals and i think that does underpin some of these these measures in the bill that i can't comment on the government's position on it thank you for that that's a fair point i mean just lastly just on this three verdicts versus the current you don't see why it should change but we do not be fair to say that if you've got three verdicts two which are guilty verdicts that's why we convicted the majority of one which joe said earlier so if you're like you can get you you can be tried and convicted of murder or rape on the on the difference of one vote at the moment so is that not the reason why the government if you remove one of the verdicts would look at the ratio of the jury is that not fair to say you would look at the ratio if you take away one of the verdicts i realize that's not where you're coming from because you just really should be more convictions but given that we've got to look at not just rape trials of course at all trials is that not a fair thing for the government to look at the majority of the i mean i should i should say just to be clear i'm not saying there should have been arbitrary increase in conviction rates that somehow there should be a target of like 70 percent of cases much as a little conviction what i'm saying is wouldn't it be far more confident than we are now that the right that the right verdict is being reached in rape cases and it's what role do these different factors play in the right verdict not being reached and i think it would be fair for for a number of rape survivors to see the provisions in this bill as giving with one hand and taking away with another i totally acknowledge it but that's what i'm questioning you on because surely without any bias in favour of one for you or the other you could see that if you have an authority of conviction on one and you take away one of the verdicts if you want to actually create a balanced system was it not fair to say that you would look at the ratio of the jury you might come up with a different answer eight or ten is that not fair to say that surely they're interchangeable verdicts but they both mean the same thing and i think it is probably correct although Joe is right we don't know until it actually happens that the vast majority of not providence will be not guilty so i suppose i don't understand why then moving to one verdict means you need to change the jury majority that's the perspective of my organisation i appreciate others have a different view thank you very much thank you Rona Mackay then Sharon Dowie thank you thank you thank you good morning sandy and joe and joe i just want to pick up a bit on my colleague's point about reasonable doubt i in my mind i feel that as i understand it in order for a case to come to court there must be reasonable evidence if that evidence can't be proved then it should be it must be not not guilty i mean that's simplifying it but i think that's how i would i would see it also your point that you made about not even knowing when a not proven verdict is made what the jury you know majority was in that i hadn't even thought in that you know so again that's that as more muddies the waters even more as you put it and agree with that with that phrase so basically i just wanted to sort of ask you both and i'm not talking about majorities here just just clarification for the record jury size would you keep it at 15 or would you keep it 12 i think there are quite convincing arguments about the quality of discussion being better with a jury size of 12 like i was convinced by that in the in the research irrespective of the jury majority within that in terms of jury size i thought those seem like quite convincing arguments are evidence from the research that's great i don't have much more just want to echo my my colleague rysl's comments to you mr drifi about your campaign and actually it's astonishing that even after all your work families still don't understand what what not proven is you know after decades of of campaigning that there's still that confusion and i think that that speaks volumes i might i can talk on things like that that we sat in a jury room and not say a word was not exactly easy until somebody else by the chair and try to just do it as an observation and rather than the people in the room for not knowing but then i thought that would have been me here before so exactly if i could say in that way when we started the not proven campaign with the missame a rape survivor we set up an email address for people with experience of the not proven verdict to contact us and we were contacted and anonymous that by a number of people who had sat in juries and really what they wanted to tell us which is how horrified they were about the discussions that took place within rape track like deliberations and rape trials the attitudes being expressed and also how not proven was used within those deliberations okay thank you thanks good thank you shagam dowry then kj clerk thank you um just a quick question on the the changes to the jury sizes there is quite substantial changes within the legislation do you think the Scottish Government have got enough evidence at the moment to justify why we're doing the changes to the jury size do you think we've gathered enough information okay strange statement i'll hope so yes um i think that if you're going to have changed change needs to come and if you're going to change the systems you might as well introduce the whole thing and actually fall in line there's there's a line i haven't used i've got it written i mean for instance not proven about getting it and getting back to a jury size that's different to counteract that not proven is an offensive natural justice because we've got a long time standing principle in this country of being innocent until proven guilty not not proven or maybe healthy so to have a jury size that works on a majority and not a single majority of one person out of 15 deciding whether somebody stays or goes um i would i would like to think you've got enough information and there's enough information worldwide on how juries in that manner actually work so i don't think there should be any reason why you couldn't be able to implement it successfully sandy have you got any thoughts on that just as i said previously i thought the evidence from the jury research was actually quite convincing and this about they were more likely to have a a fuller discussion but a slightly smaller jury but it's not something we have a strong opinion on from from my organization that's fine the other question just to clarify for me that was talked last week about whether we would go for a unanimity with the jury or whether we would go for a simple majority so what would your preference be for that unanimity or simple majority simple majority and one last question the crown office has suggested introducing a system for retrials should the two third majority just be missed so if seven jurors out of 12 had actually went with guilty so would you think that's something that the bill should incorporate I think it is a really interesting proposal but you would need to be looking at engaging for a rape case or for any case really you need to be engaging with the key witnesses in a rape case as the complainer i mean i think their views really would need to be quite determinative there about could they face the prospect of going through another reptile but i think there is something that feels fundamentally unjust for people that if they had a different jury and a different day that makes you the rapist convicted and that is what that speaks to that that very very narrow decision in terms of numbers so i think there is a case for that but as i say it would need to be in consultation with the complainer because for some complainers the thought of giving evidence in two rape trials would be unbearable for other complainers it might be something they would welcome okay thank you no i would actually call on that because you're actually going to have this the same especially in murder trials is that would a family want to go back through that again and the witnesses and everything else to get justice probably yes in most cases so yeah and that that basic premise actually works in other areas anyway so again yeah i would i would say that that should be available let's put it that way whether people would want to agree to and continue that but then have to come back to the complainer or the victim's family okay thank you okay thank you and Katie Clark if i could go back to the issue of evidence and data last week we looked at the Scottish Government's proposal that jury size majority should be changed to 8 out of 12 but we also considered the possibility of 10 out of 12 and appreciate we've got no hard data there's no concrete evidence but in relation to rape can i ask sandy what her impressions are anecdotally from the women that rape crisis work with as to what actually happens in terms of outcomes from juries and how often she thinks there are unanimous decisions of a jury either to convict or indeed to acquit or how often the jury is split and what kind of splits you're told about i appreciate you maybe haven't done formal surveys of women that rape crisis scotland works with but what's your impression because we really are i feel working in the dark here so so even anecdotal information is of interest yeah i agree that better data would be helpful it's not information that complainers and rape cases are given so generally i think the judiciary are the best source of information there in terms of how often they maybe see a unanimous verdict and rape cases as far as i'm aware that data is not captured anywhere in terms of what the majority is certainly not by by crime type i mean it seems clear to me that the the higher majority you need the more difficult it's going to be to get a conviction so the more you increase the majority the more you're going to decrease the possibility of getting a conviction in rape cases in the context where we know that decisions in rape cases often are not made solely on the evidence and that there can be reluctance amongst jury members to convict that that is the site of my concern about the increase in jury majority is potentially making it harder to get a conviction and a context where it's already very very difficult so if you the more you increase the jury majority the more you increase the risk of this bill ultimate result being less rape convictions okay so just to clarify complainers aren't given that information no they're not and as far as you're aware the crown and the defense agents aren't provided with that information either i mean that's something we can obviously take up but that's your understanding they're not told it systematically i mean they may hear what it seems like very very occasionally a complainer may hear what the the jury majority was either for conviction or against in in their case but that's anecdotally so there's certainly as far as i'm aware and i'm pretty sure this is correct there is no systematic recording of that information that could be provided to the committee so we are absolutely dependent on any research for example mock jury research and anecdotal information or sense of what the impact might be which i appreciate is difficult for the committee when you're weighing up such such complex and important issues thank you that's helpful okay thank you very much we're just about coming up to time so really just as a final question i just want to ask if there's anything else that perhaps you haven't covered in our questions today that you'd perhaps like to add before we close our session would be Joe at all no i know the only thing i would like to say is thanks very much for the opportunity to come along and talk to you and give our evidence no i i've got nothing really to add i think um as somebody commented on how long i've been talking with this i think there's a better to sink pose i will if you're fair at listening to me i'm not going to stop talking about it though and i'm just glad for the opportunity to come along and hope it actually leads to some positive changes for the benefit of the people we support that thank you very much um sandy yes i'd actually just like to finish by paying tribute to Joe and the many rape survivors and other victims who have campaigned tirelessly tirelessly for this change that that is why this provision is in the bill and i think it's really important to to see you there okay thank you very much sandy so thank you both for attending this morning um at our next meeting on the 13th of december we'll continue with evidence taken on the victims bill and we'll hear from representatives of the legal profession and crown office so i now close this meeting thank you