 Great Morning and welcome to the 34th meeting of the Criminal Justice Committee in 2023. We have no apologies this morning and our main item of business today is a continuation of evidence on the victims, witnesses, and Justice Reform Scotland Bill. Today, we're continuing phase 2 of our scrutiny of the bill, focusing specifically on part vender 1. fresh clean sector sydd o gyff Andrew jailb. Aelprin o'r amdd perdanaethol darnewydd ac i gynharcaeth, ac profiadurwr i agosedd o fod iawn, nhw i dweud, mae'n ddim ddiog kidnappede trafgeordyn El Poe'ch gyda five minutes for this session. So, as ever, I'm going to begin with a general question and I'll maybe come work from my right to left and I'll bring in Mr Monroe first then Mr Runucci and then Stuart Murray. So, can I ask why you believe that the not proven verdict should be detained as a third verdict? Thank you and good morning. The law society's position as is set out in its response to the call for evidence is essentially this, that any criminal justice system is a complex system, the sum of its parts. The object of any system should always be to convict the guilty and acquit the innocent and to do so safely and we see periodically reminders such as the horizon scandal of why it is so important to ensure that the balance is correctly calibrated. Our view in essence is this, the not proven verdict is one part of a greater whole that operates together to produce what we consider to be a broadly safe system. If you were to take one part of that whole away such as through the abolition of the not proven verdict, you then put the system out of kilter and other changes would have to be made in order to, as it were, compensate for that change. I broadly agree with Stuart that the faculty's opposition has always been that you could not remove not proven verdict in isolation without replacing it with some other form of safeguard. We have a unique system in Scotland with the size of our jury and the fact that we have three verdicts. I think we are the only criminal jurisdiction where someone can be convicted of a charge of, for example, murder with a majority of one and therefore the three verdicts I suppose in some ways have provided a safeguard in relation to that and if you are going to remove a safeguard then you must replace it with another. That has always been our primary objection, the fact that you could not remove it without replacing it with something else. I have to say that I recognise that there is really no appetite anymore for the not proven verdict and that is obviously a matter for Parliament but we would stress that if that is going to happen then there has to be some other safeguard putting its place. Thank you for inviting me to give evidence today on behalf of the SSBA. Ultimately what the profession says, what the SSBA states, is that this verdict, this not proven route for ddurys, essentially forms what is a safety valve for ddurers. For example, a scenario whereby a jury may not be utterly convinced of innocence of an accused but feels that the Crown have failed to prove guilt beyond a reasonable doubt and, of course, that is the principle test. The Crown have proven guilt beyond a reasonable doubt and in cases such as rape, attempted rape, murder, serious sexual offences and the matters that are most serious in nature that call on highest court in the country, it is vital that there is that protection for accused persons. I wonder if I can just ask a follow-up question. I'm going to ask the three of you again in the same order if I may. If we're looking at the interests of having an accessible and transparent justice system in Scotland, how would you define not proven because this is something that has come up in previous evidence sessions that there is no definition of the not proven verdict? How would you define not proven where it's meaning to be set out in legislation, for example? At the very basic level, it is exactly the same as not guilty. It has exactly the same impact as not guilty. It is a verdict of acquittal. We used to talk in terms of it being a matter of emphasis that juries gave an indication as to their view of the evidence as a whole by selecting between not proven and not guilty. That, I think, is very difficult to pin down. It's difficult to know what might be in the minds of individual jurors. We're prohibited by law from asking them, obviously. Ultimately, the not proven verdict is no more than that. It is a matter of emphasis. It's an indication given by a jury, perhaps, that they are uncertain about the case. It can be a positive in some limited cases for complainers who feel that a jury is not, as it were, branding them a liar where there to be a not proven verdict returned as opposed to not guilty. It is equally, in some respects, unsatisfactory. The truly innocent accused might feel that they haven't had a fair verdict if the outcome is not proven rather than not guilty. Fundamentally, and from a legal point of view, it means exactly the same thing as not guilty. I think, ultimately, that it is perhaps a matter of emphasis. Again, I think that it has to be remembered that our particular system, we don't operate within an inquisitorial system. The purpose of the jury is not to find the truth. The question for the jury is whether or not the Crown have proved the case beyond a reasonable doubt. It's not with a degree of certainty that it's beyond a reasonable doubt. We should also remember that day in, day out, juries are given directions by judges, by sheriffs, that it is not a matter for the defence or for the accused to prove his innocence. It is a matter for whether or not the Crown can prove his guilt. In many cases, you may find members of the jury where they may be perhaps not convinced of innocence, but the Crown have failed to meet that standard of proof beyond a reasonable doubt. Therefore, it allows the jury to perhaps give a more detailed verdict in the sense where they are saying, well, the Crown have failed in that and it's not proven. This is perhaps where it comes into the sexual cases. In cases of rape, we must also remember that, again, they are fairly unique in that the jury are being asked to determine whether or not a crime has been committed. In an instance where, in the normal course, sexual intercourse between two parties is not a crime, it becomes a crime when it's done without consent. It's different from when you have a body with a stab wound in it, when we know already that a crime has been committed and then it becomes an issue of who whether or not that person has committed the crime. However, in many cases, a jury have got to decide in rape cases whether or not that crime has actually been committed. Again, it may well be that that is a better way of them expressing their view that the Crown again have failed to establish even that and therefore it's one of not proven. I think it does become very difficult to define it in any statutory form if that was what one was thinking. However, if it had to be, then I think it would be a matter of emphasis. It also has a place in our system at present where, again, if we are going to maintain a jury of 15 with a majority of 8, my view is that it could not possibly be taken away and we remain with the system we have. It is an integral part of that 15-person jury with the three verdicts because, again, it's for the Crown to prove beyond the reasonable doubt and they must have at least eight, but one can imagine a set where you've got 15 people where a number of people think the person is guilty and a number of people think that the person is not guilty and there may be others who think, well, I don't think the Crown have proved their case, I'm not quite sure either way, but the Crown haven't met that standard that they're required and therefore their verdict would be not proven, so that is why it fits very neatly within our criminal justice system at the moment. Okay, thanks very much. Stuart Murray, have you come to add anything? Well, I think that both my colleagues firstly have given fairly concise answers that I couldn't go beyond. Their reasons are well-founded. What I would say is that I would be reluctant to attempt to give a definition to the not proven verdict. I think that that may well be a dangerous game. In fact, the jury manual that judges use to give direction includes commentary on that and that it may in fact not be advisable to give direction as to what exactly is the definition of not proven. I stand to be correct, but I think I might be saying that Professor Funal Leverick gave evidence to that effect, to this very committee. What I might also add is that, of course, the not proven verdict is part, as I've said, described as a safety valve. It's part of a safeguard, a system of safeguarding accused persons. Other jurisdictions and other countries have safeguards put in place, which I think go beyond that. For example, unanimous decisions are required in order to prove guilt. Okay, thanks very much indeed. I'm going to start bringing in members now and, first of all, bring in Fulton MacGregor, then Sharon Dowey. Thank you, convener, and good morning to the panel. Stuart Monroe, I just wanted to go back to something that you had said in your previous answer there when you said, and it's something that we've certainly heard before as we've taken evidence over the last number of weeks on this, and that's that there's no difference in terms of outcome between a not guilty and a not proven. It's a therefore, I think, to lay people, as MSPs, on this. Why do you think that if there's no difference, why do we need the extra verdict and no other system that has got it? Is that your question? As I think the committee heard from Eamon Keane on the last occasion, the not proven verdict is a very interesting historical backstory. You could legitimately say that we don't need a not proven verdict, we need a verdict of conviction and a verdict of acquittal, and that is the case in pretty much every other comparable jurisdiction. But we have it, and we have it probably because of historical accident as much as anything else, but it's become an embedded part of our system. It has become seen as one of the critical features that gives us the proper balance and allows, hopefully, that original aim, convict the guilty acquit the innocent, to be best achieved. So you can make a perfectly cogent argument and say that we don't need it. I think that the point that I was trying to get across with the previous answer and I think the others have said much the same is that if you take off that one particular bit of the system there are consequences that have to be addressed. That brings me on to my second question. Have you got a fear then, because you've talked a lot about this balance, I think, all three, if you haven't, I'll bring Ronan and Stuart Murray in as well on this. Do you have a fear then if the Parliament gets rid of the not proven that either wrongful convictions are going to increase or the opposite that more people will walk free when they have been guilty? Because you've talked a lot about that, this is needed for the balance, so try and help us understand what would happen if that balance, as you're calling it, is taken away. That is the logical concern. If the starting point is that our system pretty much gets it right and allows that balance to be struck correctly, then disturbing that balance will have ramifications. Now, it's very hard to give any kind of specific prediction as to how many wrongful convictions that might result in, but that has got to be the logical implication of it. There are other elements of our system that we have real concerns about—the simple majority verdict, for instance, which you don't see in any other comparable jurisdiction—and yet we allow it. We allow a conviction on the basis of 8 out of 15. You wouldn't see that anywhere else. It would be unconstitutional, for instance, in the United States, and convictions would simply be overturned if a jury tried to do that in many of these other jurisdictions. Fundamentally, we regard the not proven verdict as something that weighs in the balance set against these other considerations. If you take away something that is regarded as a safeguard and don't address some of those other areas of concern, then, yes, there would have to be a risk of an increase in wrongful convictions. I wouldn't say that there's no difference in them. There's no difference in the outcome, which is one of a quittle, but I do think that there is a subtle difference between not proven and not guilty. I know from speaking to colleagues in America, when I explained our system to them, they were aghast, and it wasn't how do you get convictions, it was how in earth do you get any acquittals in that system. You have to remember that the jury are not coming back with saying a matter for certain. There is always going to be an unknown. Perhaps a way of looking at the not proven system within our system at present with a jury of 15, you may have one group who are certain that their view is that the person is guilty. You may have another group at the other end who are saying that he's not guilty, and there are a group in the middle who are undecided. Within that group, there may be some who are not prepared to say that the person was guilty, and some who are not prepared to say that he was not guilty. Therefore, it allows the jury to come to a decision when you only have a need for a majority of one within the system that we have at present. It does operate as a safety guard, and it allows the jury to come to verdicts. However, I wouldn't say that there is no difference. I do think that it is a matter of emphasis. It allows juries to come to a decision even when they are not convinced that the person is guilty and they are not convinced that he is innocent. You said it earlier that American colleagues were short on how you would get acquittals in your system, but I know that other colleagues might want to come to the Scottish jury research. However, I was just trying to find the study here, so I've got the figure right. When the juries had two verdicts available to them in the Scottish research undertaken in 2019, they returned three out of 32 convictions, and when they had three verdicts available to them, they returned four out of 32. A acquittal was very high, it would seem, but that was just a point. As I said, other members might want to ask you about the Scottish jury research. I think that our view on the Scottish jury research is fairly well known. I don't feel the wrath of the convener. I have just one final question to give you the opportunity to answer on what we have been asking about. Is there a fear of wrongful conviction? Of course there is, not only for the reasons that both my colleagues have laid out, but I think that a concern from the profession is that that is being considered as a time when other considerations are being looked at, which could completely alter the landscape of the criminal justice system in Scotland. For example, the development in section 275, the ability or lack of ability to criticise somebody's character and quote the character of a complainer, for example, changes perhaps on the horizon to the law relating to distress and identification. Of course, I think that this has been dealt with in the next session in January and February, but the proposals to put in place a pilot scheme for non-dury rape and attempted rape trials in the High Court seem to come at a time when, along with those other proposals, it puts criminal justice system in Scotland at risk of being adulterated and access to justice and the rights of the accused innocent until proven guilty at some substantial risk. I was going to ask you about jury majorities. You said earlier about at the moment that we have 15 jurors and the decision to send somebody to jail is based on the decision of one person, because we can go in 8 versus 7. What is your opinion on unanimity? Would you like to see the change go to unanimity or the other one, if the jury size had changed to 12, it would be 8 out of 12? What would be your opinions on unanimity? Start with me. The society's position has long been that the current simple majority arrangement is not satisfactory and not tenable. No other comparable jurisdiction allows it. The broad approach that seems to be taken in all other English-speaking jurisdictions is that juries tend to have 12 people. Unanimity tends to be required at least initially, and some jurisdictions will then allow something short of unanimity, effectively near unanimity. I think that it is taking away a couple of outliers but still then requiring unanimity from those who are left rather than regarding it as a majority type system. As I said earlier on, in the United States, the sixth amendment effectively provides or has been interpreted by the Supreme Court as providing for a requirement for unanimity, and even a 10-2 verdict in the US would not be regarded as sufficient to justify a conviction. What that in practical terms does is that it changes the dynamic of our juries, so that the jury is regarded as a single entity. It is the jury as a whole that requires to be satisfied beyond reasonable doubt of an accused person's guilt rather than individual jurors who then come to vote. It may well be that there is something significant in that process, the instruction given to the jury that they have to try and reach a unanimous verdict. What is interesting in the statistics that come from elsewhere is that, in so many cases, they managed to do that. It is pretty rare for juries to be unable to come to a verdict, less than 1 per cent of cases seems to be the number that is thrown about. Our position has long been that the notion that an accused person should only be convicted where the case against him or her has been proved beyond reasonable doubt is inconsistent with the idea that barely more than half of a jury can support conviction for that to be regarded as a conviction. We are of the view that unanimity or something close to it, perhaps akin to the English model, is what Scotland should be looking at. In a case of a jury where going eight, seven and seven people were in favour one way or another, it is difficult to see how there can be a reasonable doubt in that entity when you get seven people who are not convinced, for example. If we are going to change the numbers, then I do think that we should be striving for unanimity. In all other jurisdictions where it operates a system with, for example, 12, it is either unanimity or it is a majority 10-2, there is no system that falls below 10-2. I am aware that there have been discussions about 8-4, and I am not sure where that has come from, because certainly there is no other system that operates that falls below 10. I find it difficult to see where the justification for that would be if we are going to change our system wholesale and go to 12. It is difficult to see what the justification is or where the research is for 8, for example, as opposed to the tried and tested formula, which is either 12 or 10. As Stewart says in America, it has to be 12 in England and it has to be 12 unless it elaps two hours and then a judge can direct the jury that he has prepared to accept the majority, but that majority has to be at least 10. I am not sure what 8 has come from. Even 9 would be better than 8, but it is difficult to see again where the justification comes from without any research being done. I do not mean to be flippant, but it is difficult to see where someone has just plucked a figure of 8 out of the air and said, let us go for 8. I suspect that it is because it fits in neatly with two thirds, but again, what is the justification for that or the basis? I would go slightly further. I agree with what both Stewart and Ronnie say, of course, that the problem of coming third in a line-up where the majority or all of us are speaking from the same hym sheet that I am repeating what my colleagues say. However, I do not believe that the current system is appropriate, that a majority of 8 out of 15, the system should be stronger than that. There should be more built-in protections than that. As Stewart said, anything less than unanimous in most states in America is unconstitutional to have anything less than unanimity. I would suggest that the figures required for a verdict in Scotland should be raised from 8 to perhaps 10, if the decision is taken that will remain with 15 jurors, but even a reduction in the amount of jurors should retain a majority of perhaps 10. The problem is, of course—and Ronnie has touched on that—that the research is not in place to come to any real conclusion. That is a theme in the way that the Scottish Government has made a number of proposals to landscape changes in the criminal justice system. There is a lack of research, and that has to change. We need to be provided with real research and not just limited research, which has been provided so far. That is no criticism of those who carried out the research for the Scottish Government. They are harns, to some extent, more tied in the way that they could carry out that research, but it needs to change. Some research, frankly, has been very little. It is Scottish Government research for a different day, perhaps, but looking at the jury system in the pilot scheme for removing juries from, as I said, section 1 in attempted rape cases in the High Court. We can get into that if you want, but the amount of research that was carried out and the research that was able to be carried out is almost non-existent, in my opinion. The research down south, which has been done with real juries and jurors over many years, Cheryl Thomas interviewed thousands of jurors and has brought out research in relation to it. There is data out there, and there is research out there with real jurors. There is none in Scotland, and that is because—again, I appreciate that those who were carrying out the research, their hands were tied behind their back, they could not speak to real jurors, and that is why we had the mock research that we have. Even then, if we are going to apply research involving mock juries, our criticism of it was that it was not substantial enough. My view is that we should not be changing our whole legal system based on mock research and research with mock jurors, which really did not, in any way, mirror what actually happens within the courts. I know that the mock trial lasted an hour. I have conducted between 250 and 300 rape trials in my career. I have never had a rape trial that has lasted only a day, and therefore, to say that this is good research, we have had a trial, but it only lasted an hour. We are asking you to change our criminal justice system on that basis. I think that we should really hesitate before making major decisions based on that type of information. Again, that is no criticism of those who carried it out, but there is research out there. I would invite members to read the research that was conducted by Cheryl Thomas, and she came to startling different views. Her research comes to startling different views than our research in relation to a number of important matters, particularly in relation to sexual offences. I just move things on. I am conscious of time. I also take the opportunity to encourage members to direct their questions to specific witnesses, unless it is absolutely necessary that they would like a response from each witness. We will get through more questions. I absolutely agree with you that the accused is innocent until proven guilty, but you also mentioned earlier on about difficulty in rape cases. If you have a murder case, you might have a knife in somebody and there is a crime being committed. At the moment, a complainer in a rape or sexual crime does not get individual legal representation unless there is a section 275 brought in. Do you think that there might be a case for them getting individual legal representation earlier? As you will know from our response, we are in favour of independent legal representation. I would certainly be in favour of going further than it does at the moment, just in relation to section 275, but I would not be in favour of it in relation to taking part in the actual trial. That is what the Crown are there for. The Crown are there to prosecute the case and then you have someone for the defence. If you are bringing in another party on behalf of the complainer, then it would become untenable. It is impractical, because, for example, I have got a trial coming up with 20 complainers. If you have 20 complainers who have each got separate representation each trying to take part in the trial, our whole system would come to halt. However, I certainly have no difficulty. Indeed, we have said that independent legal representation could be expanded. One of the things that could be done is to help complainers with a degree of expectation of what is likely to happen within a rape trial and to help them along the way, but certainly not in relation to taking part in the trial. If I can come in, we have strayed a little bit off part 4. We do not like to be too precious, but it is just in the interests of getting as much evidence on part 4 as possible. I would like to go back to something that Ronnie Frenucci said, which I think would be very offensive to rape victims. You said that we are talking about sexual intercourse, but, in fact, it is sexual violence. I am sure that you did not mean it in that sense, but I just wanted to clarify that with you and give you the opportunity to retract that. I was referring to that there is an allegation in what the jury has to decide, and the facts involve sexual intercourse. The jury has to decide whether or not the sexual penetration is one of sexual penetration of the vagina or anus or mouth without consent. In the normal case between sexual penetration and when it is consensual, it is not a crime. What the jury is being asked to decide is whether or not there was consent or not consent in relation to that physical act. I was not suggesting for a minute that it is not a form of sexual course, it is rape with sexual violence. That goes without saying. I was not suggesting that. Okay, it was just the term that you used. I wanted to give you the chance to explain what you have just explained. Well, simply because of what the act is that is involved in it is not normally a crime. The jury has to decide if it is a crime, but I was not understanding anything other than that. You also said that the jury is not there to find the truth, and that it is for the legal system to prove the offence, and that it is a failing of the crown. Can you understand why victims feel absolutely crushed and let down by a not proven verdict, and they feel that the system is weighted against them in favour of the accused? For the reasons that you have outlined, many witnesses have said to us that they would much rather have had a not guilty verdict than a not proven verdict, because they are left in limbo? I can absolutely understand that. Again, that is why I am touching on something separate. That is why I would support independent legal representation. If the position was explained perhaps better to complainers or victims, it might assist them. For example, a verdict of not proven does not mean that the jury is saying that they are not telling the truth or that they are lying. The jury is saying that, for example, a verdict of not proven can be returned, whereas the jury is not saying that that complainer was making that up and was telling lies about it. It is that the jury has not been convinced that the crown has proven the case that it was raped without consent. In some ways, a not proven verdict could be a comfort to complainers, but I just do not think that it has been explained. We have really heard that in the end of the session. I absolutely understand that. For example, I have been involved in cases where it is clear that the complainer is generally the position that she has been raped. The accused generally thinks that he has not raped her and that the jury is undecided in relation to that question. There are two aspects to rape. It is rape if it is done without consent or that the accused had no reasonable belief that the complainer was consenting. In actual fact, you can have a rape case where, as a matter of fact, a complainer was not consenting but, nonetheless, a verdict of acquittal could be returned if the jury found that, although that was factually the position that the accused had reasonable belief that she was consenting, that is her law at present. The other aspects that we have heard in previous sessions is that the lack of transparency with the not-proven verdict and that the complainer does not know how many people on that jury thought that and how many people did not. It is another aspect of their feeling let down. The accused is in the exact same position. Knowing what the split is, we are not allowed to know. I know that that must be laid down somewhere, but do you think that it is fair that nobody knows? I do not have a view on whether that is fair or not. That is our system and that is the system that we operate at present. I think that that helps the jury with that knowledge, that their decision is not going to be questioned, it is not going to be analysed, it is not going to be torn apart to see how many decided this, who were the people that decided that or who were to do it. Obviously not to identify people, but just numbers even, would at least be some information. There are some times we do know, for example if a jury goes down to 14, there have been occasions when you get a 7-7, that has to result in a verdict of acquittal because you do not have the 8 that is required. The only reason we have transparency in other systems is because they have either unanimity or tend to. Clearly Parliament could provide that jury majority should be ascertained and made public, that is within this Parliament's gift. I wonder whether there is a public confidence issue there, whether if somebody is convicted say on the basis of an 8-7, whether there is then the media query whether or not that is truly a safe conviction, or indeed the other way, where there are 7 people in support of guilty but not the necessary 8, whether that then undermines confidence in the acquittal of the jury and what that might mean for the relationship between the public on the one hand and the system on the other, but that is a matter for Parliament to consider. Can I just ask if everyone is in favour of legal representation for victims? Yes, absolutely. Can I just say that society has been very supportive of the concept of independent legal representation? As Ronnie says, the exact parameters of that, what it means in practice, absolutely have to be identified and there are resource issues. For instance, the case that Ronnie was describing with 20 complainers, are there seriously going to be 20 individual lawyers that those complainers can go to to get the right sort of proper advice that they should be entitled to, so that has to be considered as well, but in principle, yes, absolutely. Mr Murray? Absolutely, in favour of that, I don't think any reasonable proponent of law and legal system would argue against it. I think that, again, the line has to be drawn and it's a dangerous line to find because the crown of course prosecute in the public interest and that is their role in court. We have to be careful that by allowing a representative for a complainer to come into the process that we're not allowing them to go too far and effectively be minited in as another party to the process, that has significant risk and that has to be avoided, I think, at all costs. Okay, thank you. Again, if I can just remind members just to confine questions to part 4, I know I'm being precious and I said I wasn't going to be. Can I bring in Russell Finlay, then Katie Clark? Thank you, convener. The faculty's written submission says that the system ostensibly works yet the head of rape crisis Scotland told us last week that she thinks, and I quote, it's obvious to anyone that guilty men are regularly walking free. Do you think that rapists are walking free or is she wrong and that's for Ronnie Rooneche? There's going to be undoubtedly cases where people are convicted when they shouldn't be convicted and there'll be cases when people are acquitted when undoubtedly they should be convicted. I don't know what the number of cases, the percentage where that occurs, but that's undoubtedly going to happen, but that's going to happen in any criminal justice system. So there's almost as many being wrongly convicted as there are being potentially wrongly acquitted is your assessment? No, I simply said that there will be cases where people are wrongly convicted, there will be cases where people are wrongly acquitted. I mean, one of the problems we've had is a lack of data, not just what, and indeed, the flaws with the research that have been identified by the panel. You have told us today that you've represented up to 300 men accused of rape. Can you even tell us roughly the breakdown of verdicts in your cases between guilty, not guilty and not proven? I honestly couldn't. What I can say is that there is a significant difference and I would be surprised if the data now were not changing more towards conviction and that's partly because of changes in the way that the law has evolved. Of course, one must trust the courts. The courts have evolved the law certainly in recent years and the Court of Appeal made it clear that the courts have to move, as it were all, with the times that there's a modernisation of the law, a modernisation of approach, the way that, for example, the Murov law has been expanded, the way that the applications in terms of section 275, there's been a much narrower interpretation of section 275 than was perhaps taken previously. All these factors have affected, I think, the way that rape trials are certainly conducted and I mean no doubt that it's in a way that will be fairer to the complainers. Then, I guess, with Smith v Lee's coming into play, that will again... Precisely. ...alter things, okay? In its submission, the Crown Office points to the Scottish jury manual, which Mr Murray referred to earlier on. It provides guidance to judges in directing juries and it says that if a juror is satisfied by the beyond reasonable doubt and I quote, it is your duty is to convict, otherwise they would need to deliver either not guilty or not proven verdict. So the Crowns say that if not proven was scrapped, it's not clear why a juror who was not convinced of guilt would be considered more likely to return a guilty verdict and that appears to be odds with your collective position that jurors might be forced to return a verdict verdict they're not comfortable with or not convinced by. Can you perhaps explain that anomaly or explain that reasoning? I guess, Mr Roonoucher, or anyone that might care to take it. Again, that may be the Crown Office view. I don't know what the answer is in relation to that. I don't know what would make jurors go from one verdict to another because I certainly know what the proper research there would determine that. But if the instruction from the judges is the must only convict if sufficiently persuaded beyond reasonable doubt. Absolutely. Then if they're not, then they will reach for not guilty if not proven's not there to have. One would think that that would be the natural way of it but our duty research and the information that we've been given says something different because that suggests that, as I understand it, Fiona Leverick suggested that in their research, if you take away not proven then it was going to, without any figures, that it was going to swing towards conviction. The Crowns seem to be suggesting that that might be indeed what happens. What they seem to be saying in their view is that more acquittals will potentially result. I want to move on to this question perhaps for all three of you and it's about the potential for a retrial. The Crown appear to be arguing that this should be an option in Scotland if, anyway, but if indeed these changes are made. Do you have any views on that? That's perhaps open to all three of you. I think the current law in England is that it is possible to have a retrial and of course the difference between the English system as I understand it and I'm clearly not qualified in that system and the Scottish system is that it is allowed essentially for a jury not to reach a verdict and of course that's just simply not possible in Scotland. There are requires to be a verdict. In England there can't be a retrial because a jury has been unable to reach an appropriate verdict. I think that that's an added layer that frankly I'm unsure of and I suppose reverting back to my previous comment there is just an absolute lack of appropriate research on matters such as that and most of the things that we speak about and most of the the commentary that's made is essentially based on anecdotal evidence and that's something that if any broad sweeping change to the system is to be made that's something that I revert back to you that proper investigation and research has to be carried out. If we're pushing ahead if it's likely the Government is intending to change jury sizes, the majority, the removal of not proven, should the bill also use that opportunity to bring in the opportunity to have a retrial? I mean it might be one for Mr Munro. Yes thank you. I think there are different ways of looking at this and I may have misunderstood the Crown Submission and forgive me please if I did that almost if we had qualified majority system as provided for in the bill there might be some scope within that for the court to be allowed to order a retrial where a majority wasn't considered to be a particular verdict a particular majority had been reached and I think they would be concerned about that but if you look at the English model as Stuart was talking about and it can be hard for lawyers in Scotland to get their heads around it that there requires to be near unanimity or unanimity for any verdict so it's not that if you can't find enough for a guilty then there's automatically an acquittal as you would have here you require that unanimity for a not guilty verdict as well as for a guilty verdict and what's remarkable about the English system is how rarely juries fail to actually reach a conclusion one way or another now the the figure of about 1% is often banded about but back in 2014 when the expert group on corroboration reported they dug into those figures and it turned out that the the hung jury rate in England included cases where juries fail to reach verdicts on individual charges so there might be 10 charges in an indictment the jury convicted in eight but can't reach a verdict in two for instance and it might be that those are two significant charges might be they're not but the the rate of retrials that the expert group I think basing on earlier research by the Scottish Government or the Scottish office concluded would be single figures in Scotland if we adopted the English model and in terms of the question of whether that's a bad thing I mean I appreciate there are resources implications but there's an argument say that's exactly what juries should be doing again looking at a case from America where this whole question of majority verdicts came up the judge said who can say whether any particular hung jury is a waste rather than an example of a jury doing exactly what the majority said it should deliberately carefully and safeguarding against overzealous prosecutions so the point is there might be cases where a retrial in that context is absolutely right and proper but it's not something that we should regard as being inherently likely to happen very often. Okay, I mean two weeks ago Professor Fiona Leverick a name and keen to my surprise told us that they opposed the 812 proposition they believed it should be typical with international other international jurisdictions either unanimity or 11 10 or 11 out of 12. I was surprised by their position and I just wonder if you think that given that's consistent with the position of the legal profession that the Scottish Government should perhaps rethink the 8 out of 12? Yes, absolutely. So unanimity or perhaps something like 11 or 10 or 11 out of 12? Stry for unanimity but if that can't be achieved then 10 or 11. Right, okay thank you. If we go down to 12. Thank you. My first question is for Ronnie Ridditchie who focused on the fact that we are lacking in evidence in Scotland or indeed any research really to draw any conclusions but referred to some work that's been done in England and we will look at that but could you maybe summarise in terms of your understanding of any conclusions or indeed a lack of conclusions that there might have been in that work looking at jurors in England which might be relevant to the legislation that we're looking at now, what your understanding of that research is. I appreciate you didn't do the work yourself. It obviously can be relevant relation to the question of not proven for example of changing jury sizes. It's perhaps more relevant if you were coming to look at other aspects of it and that was in relation to issues of what juries actually think and juries believe and it was in relation to issues of rate myths and things like that. It was quite specific and it dealt with really sexual offence cases to a great degree and so it's perhaps not exactly on point in relation to what we're discussing today but it would be in relation to other matters. I was simply pointing out that there are there is real research out there involving real juries which gave an indication of how juries thought and what juries did once they get into into that jury room and that is obviously something we know absolutely nothing about. I think what you've said is very helpful but it also does point out that it's possible to do such research which I think is one of the points that obviously hasn't happened in the lead up. At present it's all that it's not possible because of the law you cannot ask a juror anything about the law. That's one of the reasons why. There has been some debate about the extent which it is or it isn't and I think Cheryl Thomas subscribes to the view that we collectively have been a bit restrictive in an interpretation of the contempt of court act. She thinks that you can go further than some other people think that you can but that has to be resolved. Can I just make a point in terms of the research that Cheryl Thomas has undertaken? Ronnie is absolutely right that her research by definition hasn't looked at whether we should have 15 person juries or whether we should have simple majorities but she has looked at other elements of the system down south. So an example of it is roots to verdict on written directions and she produced some pretty startling results which identified that they were regarded by juries as tremendously helpful in allowing them to navigate the process of coming to decisions in criminal trials. So the research might suggest other things that don't currently exist in the bill that may be worth looking at. The legislative framework is slightly different in Scotland than in England in relation to what academics can do. Is that the case? Yes. Substantially different. Therefore that's been a real barrier in Scotland because we've got a lot of academics. Just to be very clear, the research that Cheryl Thomas carried out at University College London was long awaited and groundbreaking research that should not be ignored in this jurisdiction. In terms of jury majority, so obviously a lot of the other issues would not translate easily into the Scottish system but in terms of jury majority is there much work that you're aware of in England in relation to jury majority and how common it is either in England or indeed in other jurisdictions. I know Stuart Monroe's spoken about other jurisdictions and referred to statistics elsewhere. How common it is to get a unanimous decision where a unanimous decision isn't required or a majority is—I don't know what the statistics are but I would be amazed if they weren't available. I would think that the Ministry of Justice would be able to produce that material without too much difficulty. It may be that looking further than jurisdictions in the United Kingdom is required. Certainly my understanding is that there's been a fairly significant amount of research carried out in America particularly in the Chicago courts. I think that Stanford has carried out a survey and research in relation to unanimity or thereabouts unanimity and anything that falls short of that. That's something that could be undertaken here also. As far as you know, the Scottish Government hasn't looked at that kind of evidence or are you sure that they haven't looked at it? It may well be that they have carried out that work and that's how they've come to this proposal of eight out of twelve, which may be plucked out of the air or may be based on evidence. Do you have any knowledge in relation to that or are you—I was on a redouche who said plucked out of the air. Are you sure it's been plucked out of the air or do you think it might be evidence-based? I was unaware of any evidence. I'm not aware of any either, so thank you. That's why I say it hasn't been presented to us as any evidence. It seems to me that we trust juries in this country with decision making responsibility in relation to really quite complex issues, for example of a medical nature, of a forensic nature, of forensic accounting matters. If there are, as it seems to be the case, that people doubt the reliability of juries on the system, then what I would say is that it's long been said— We're not dealing with that at the moment, we may be dealing with that after Christmas. I want to make this point generally that there is often said that there is merit in a Scottish education and so most of the issues that this committee is dealing with today and prior and subsequent to this hearing today can be dealt with in the forum of jury trials by educating juries, educating the general public. It doesn't necessarily mean that we have to piecemeal, dismantle the criminal justice system of Scotland to get what we want. I think what we're trying to focus on in this session is whether changing the numbers is going to make a substantial difference. If we made it unanimous, for example, would that make much difference to the conviction rates or not? We don't really have any evidence from this jurisdiction anyway, as far as I can understand. Can I start with the first question to you, Stuart Monroe? The question of the three-verdic system has been long debated in Scotland. You might remember that Michael MacMahon, my member, had the bill many years ago. If we retain it and the Parliament says to retain it, we are always going to be discussing the three-verdic system given that it is unusual and the second part of the question is, do you think that the Government's rationale for changing it is clear or not? I think that the answers to those questions are probably yes, we will continue to debate it and yes, the rationale is clear. That doesn't mean that it's necessarily correct, but a clear and cogent argument is presented as to why the not proven verdict does not fit with what others might regard to be a sensible criminal justice system model. That doesn't mean that we necessarily should get rid of it. It is part of our system, it's a unique feature of our system and our system, broadly speaking, works as a whole with that feature within it. I think that you can make perfectly rational and reasonable arguments against it in favour of its retention, but it is a perfectly fair discussion to have. Stuart Money, given that you had an exchange with Secretary Clark about the research that the Government is relying on, in the policy memorandum, it is quite clear that this is the evidence that it is using for removing the verdict, the 900 jurors. Do you think that the Government will be taking more seriously on that research if we address the question of the contempt of court act and perhaps if we legislate for this as part of the bill to allow some research to be done on the trends of juries and how they come to the decisions? That would be taken more seriously, Stuart. I think that, undoubtedly, it comes back to the point that I rather candidly attempted to make a few moments ago about education. Educating people, including lawyers, research is all part of that. If we want to be able to view the jury system, the justice system, on a par with our colleagues south of the border, then we need to consider how we do that. Do you think that it would be a good use of the Parliament's time to take the necessary legislation to allow for the... As Rachel Cheryll-Thomas has done, do you think that that would be a good use of the Parliament's time? I have to say that I am very familiar with Cheryll-Thomas' research. I am also familiar with the comment that she has made about how perhaps we have been too reserved in Scotland in looking at that and how we address it. I am all in favour of exploring how that is done. I am not sure, but I think that it would be childish to suggest that it would be a waste of time for Parliament to look into that issue. You have probably seen some of the exchanges on the official report of the committee in relation to the three verdicts and the evidence last week from Joe Duffy and Rape Crisis Scotland. In your opening remarks, you talked to the committee about what the Crown had to prove. Do you think that there has been enough discussion about how a judge charges the jury, if you like, rather than debating the cold clinical aspects of removing a verdict? Do you think that it would be more wholesome to discuss what the jury has asked to do when they are deciding on a conviction or not? There have already been changes made and, again, it is something that Scotland has come to slightly later. Cheryll-Thomas, some of her recommendations and some of the things that she had pointed out were the impact that written directions to the jury before the trial starts, the effect that that has had. We now have written directions that are given to the jury. Although they are written, they are written, they have them, they retain them with them when they go into the jury room, but they are read out by the judge at the start of the trial. We now have a situation where juries are better informed before we even hear a bit of evidence. In England, we have open speeches. In Scotland, it is often said that we just go straight into the evidence. The jury are up until recently, have been really ignorant about what was going to happen. It has certainly been more effective in telling the jury or at least giving them an understanding or an idea of what is going to come. I am certainly in favour of educating the jury and giving them as much information as is required to enable them to carry out the task that they have been given, which is arriving at a true and just verdict. Anything that assists the jury in coming to that decision, I am in favour of. That is an issue that was raised by Lady Dorian in her recent review paper in relation to the Victims, Witnesses and Reform Scotland Bill, that there can be more done to educate the jury in relation to specific matters. I suppose that what I am driving at is that it is fair to say—none of us have practised in the Park and Keite Clark practice coming along court—that we are learning as we go, is it fair to say that the instructions that the jury will be given will be primarily around the Crown proving its case beyond reasonable doubt? In other words, the first question is not what verdict are you going to choose. Is it fair to say that the jury will be directed to decide guilt or innocence, and then they have to decide which verdict they think is appropriate? Felly, the three verdicts that are available come. Those directions are given to the jury at the very end just before they are sent out. The directions that the star are to do with there is burden of proof, the standard of proof, they are also given in relation to Murov, for example, that can be explained to them as well, but there are also directions in relation to witnesses' statements, what witnesses will say etc. The actual verdict part forms a very, very small part of the overall charge, so you may have a judge's charge to a jury that might take two hours, but it may only be two minutes of that, if that right at the end where the jury are directed as to what their verdicts can be. The question of the numbers on the jury, if they were to remove the not proven verdict, and the profession prefer a unanimous jury, but would secondary to that would accept, as in England, the 1012 majority, if I understand your fundamental position is to retain the not proven verdict. If you could talk the committee through, what would you think the crime would have to show in order to get a conviction? CTLA person, what you are saying is the jury would require to have a 1212 before you could convict, and that sounds really difficult to get a conviction, whereas 1012 seems to allow for it, but then we do not understand how juries operate and we do not understand how the proceedings are courted. Sorry, I was not suggesting that that should be the case, that would not be unrealistic, what I was saying was that we should strive for unanimity, but we have in Bill that there is a ready that, as opposed to England where you are looking for unanimity, if they cannot be unanimity then after a certain period of time the judge can advise the jury that they will accept a majority verdict. I am not suggesting that we have that system in Scotland. It is simply that any striving for unanimity, but obviously there is a fixed majority that would be accepted, whether that be 10. That allows for 10, 11 or 12, but I am not suggesting that we start off by saying it has to be 12 and then we work down from that. That is helpful. Given the hundreds of cases that you have done, can I just interact with that? If I may, I will make a point just in response to that. It sounds, it is superficially attractive to think, well, if we require unanimity say or we require 1012 then that is going to be harder to result in convictions as opposed to 8.7. What that does not then explain is why conviction rates and rape cases are higher in England than they are currently in Scotland. The illustration of the English figures, and I do not have them in front of me, demonstrates that there is a fallacy in that argument that ultimately it is possible to secure convictions and indeed a relatively high rate of convictions under a model that requires 12.0 or 10.2. Thank you. Does the last question I want to ask Ronny Runitchie about the in your experience and I realise it is just your evidence. What we have been hearing that the not proven is used a lot in rape cases and I just wondered if you had any sort of comment on whether or not there is a tendency for not proven verdicts in relation to rape cases? I have to say no. I am not quite sure where that information came from because I am aware that there was a freedom of information question that was asked of the Scottish Parliament that takes from 2015 to 2020 and the response to that in the reality was that the verdict of the three verdicts not proven, not guilty and guilty in rape and attempted rape cases, the verdict that was returned the least was not proven. The verdict that was returned the most was guilty. It is when you combine the not guilties with the not proven that you thereafter have a majority that are acquittals but not proven was the one that was used the least. In 2015-2016 there were 59 not guilties, 45 not proven and 104 guiltys. In 2016-17 there were 106 not guilties, 42 not proven and 98 guiltys and then moving on it was 87 not guilties, 48 not proven, 106 guiltys, 2018 it was 97 not guilties, 70 not proven, 142 guiltys and up to 2020 I am unaware of any data after this date it was 95 not guilties, 74 not proven and 130 guiltys. In some ways the not proven verdict is slightly maligned perhaps unfairly I am not quite sure but it is certainly not the verdict that is the as it were the go-to verdict in rape cases. I think if we're to try to address Pauline Neill's point about a perennial discussion about not proven I think it might help us to understand exactly what not proven means and I'm struck by the reference in the faculty submission which describes not proven as a measured means of acquittal measured means of acquittal and I just would be grateful for an explanation of what is the thinking behind that description of not proven and what it actually what that means. I think that it really comes back to what used to be the direction that was given which was it's a matter of emphasis and it was that George Craig the jury manual now is directs that really if a jury come back and it is a question that is relatively it's not frequently asked but it's certainly asked by juries what's the difference between not proven and not guilty and now they're told that there's no difference that that the outcome is the same it's one of acquittal and that is the only information that they're given but previously a jury was usually told by the judge that it was really a matter matter of emphasis. A matter of emphasis about what? In relation to the verdict in relation to whether or not the difference between not guilty where you're categorically the jury are categorically saying to someone you are not guilty that is their finding as opposed to not proven where it's more likely that what they are for example they may be saying is that the crown have failed in their duty or their task improving the matter beyond the reasonable doubt I suppose there are two interpretations of that so you have that not guilty we're saying this person is not guilty and then they're not proven where they're saying the crown have failed in their task and have not been able to prove the case against this person but there is probably another sentence that goes with that which is that an interpretation of not proven in those circumstances where the crown has been deemed to have failed to have proven beyond reasonable doubt and the jury is unconvinced the individual is not guilty that they are somehow forgive my colloquialism sort of guilty no not at all it's not the case that they're unconvinced the person not guilty because that's not part of their task they're not there to decide if the person is not guilty the primary function is to decide whether or not the crown have proved the case against the accused it's no part of a defence the defence has no requirement on a defence to prove that the person is not guilty the burden is entirely on the crown no but I understand that but the point I'm getting at is what is the definition of not proven in circumstances of the of the type that we're talking about here where the jury is not convinced that the crown has proved its case beyond reasonable doubt but that there is space for there to be a measured means of acquittal which sounds to me like a conditional acquittal which going back then to what you just put on the record mr runucci about the point that a judge will say or if a jury asks what's the difference you're not proven and not guilty a judge will say there's no difference whereas in actual fact the faculty submission suggests there is a bit of a difference but it all goes down to as you said what's the definition of not proven in reality is we don't know what the definition of not proven is and but there must be a difference it stands to reason there must be a difference of a jury are going to if some juries return verdicts of guilty some verdict some juries return verdicts of not guilty and some return verdicts of not proven there must be a difference but we don't actually know what that difference is but but a judge in answering a jury's question what's the difference between the two will say am I correct there is no difference there's no practical difference because both result in a verdict of acquittal that's as much as really can be said and mr murrian in the the scotland solicitors bar association submission it states that a jury may think that the accused is guilty but be unsure as to whether or not the crown have proved that beyond a reasonable doubt it is this lack of assurance as to guilt beyond a reasonable doubt alongside a belief that an accused may not be innocent that requires there to be a third option now that again well it's a safety what we forget forgive me that is suggest to me there is some residual doubt left on the accused when in fact going back to the point that mr annucci made a moment ago a judge will say in answering the question there are two types of acquittal so just to be clear the focus in a trial is on the test and the test is have the crown proven beyond a reasonable doubt proven guilt to be on the reasonable doubt it's not for the accused to prove anything and so there are times when and it again might be cherlish to suggest that let me restart this a judge will direct a jury to ignore any emotion contained within the trial whether it be on the behalf of the complainer and often these are highly emotive circumstances or the accused's position or any witness for that matter ignore not only ignore the emotion but in fact can be directed to ignore the consequences for an accused person certainly that's contained in the jury manual the test is only about proof beyond a reasonable doubt but it would be cherlish to suggest that it's there are no circumstances at all whereby jurors hearing these often very emotive pieces of evidence may have some sort of moral dilemma and that is an example of why it is vital that we retain the not proven verdict because there are a number of influences put upon individual jurors and they require that safety valve another issue here is i don't think there's a real understanding of exactly what or how little a judge will say to jurors both in respect of the not guilty and not proven verdict but also in relation to the test of beyond a reasonable doubt there's very little said in regard to that either usually what is said is that a reasonable doubt is something that may cause you to stop and consider something in the conduct of your day to day life now that is suitably vague also and so it is not that there is more emphasis put on something for the crown than for the defense it essentially as ronnie said earlier there are no opening speeches in this jurisdiction and the jury is just giving the evidence and they will make of that what they will but the point i'm driving at is the unsat the potential unsatisfactory nature of where people are left after a not proven verdict because if i follow the rationale of the arguments that you've just deployed an individual who's accused has been acquitted if they've got a not proven verdict but they may have with them some stain on their character because of the if i use the terminology a measured means of acquittal a conditional acquittal from the perspective of a complainer a victim they with a not proven verdict are likely to feel dissatisfied that the outcome they believe should have been achieved has not been achieved but there is a sort of question mark left about it i'm just probing us to whether anybody ends up in a good position as a consequence of that well i don't think that that is an issue which relates purely to the not proven verdict i think that we operate in an adversarial system and very often there are no winners in that system certainly in respect of how people go on to live their lives that's just you take the point i'm making mr money about the the difference between you know one will have a fundamentally different view of an outcome if it's guilty or not guilty versus not proven potentially i have to say that is that is that is that point accepted that that it leaves people feeling differently about it i don't know that what i can say and it's all anecdotal evidence because we don't have the research in place but i could provide anecdotal evidence and to be clear it's not often we know what a complainer and let's be clear about this in the absence of a guilty verdict that person is a complainer they may have a different view on it themselves but in the law they're not a victim appreciate there's different language and terminology used in this committee in the paper surrounding it but they are a complainer i could give anecdotal evidence from information i've received indirectly that some complainers when faced with a not proven verdict have taken some some comfort in the fact that it was not a clear not guilty because it could be taken that a clear not guilty is a commentary on the evidence that they gave in court and there's clearly not enough research being done in relation to that one thing i will say and so that we're clear about it the discussion about not proven can only take only takes place within the system we have at present which is the 15th of the jury and the majority a simple majority if we were going to a different system then no one's suggesting that we retain a not proven in relation to that that is why the start we said that not proven is one of the integral links is it where or building rocks in the system we have at present faculty has no difficulty with removing not proven if another safeguard is put in its place but the responses in relation to the system we had at present or we have at present and where it fits in with that system if we are changing and we're going to a smaller jury size with a different size of majority then clearly there's no place for not proven within that system it's the fact that not proven is within our system and it has its place within our system at present but if we move away from the system we have at present then we'd obviously move away from not proven as well so the faculty's position would be that if you're going to have the potential for eight seven decisions in the jury you've got to have the reassurance of an option like not proven but there is an alternative to that which you can design which gets rid of not proven but you have to take account of the variables that come as a consequence we can retain 15 but if we retain 15 and we get rid of not proven then we would have to change the majority in the 15 well that'd be 12 3 which would be I think would be the appropriate majority I've heard people talking about 10 10 5 but if you take away not proven there has to be some safeguard put in its place and from what Pauline McNeill was saying I'm aware of what happened in 2016 back then as I understood it there was agreement amongst the justice committee that there was really no appetite for not proven but the difficulty came in deciding what went in its place because that is the difficulty something has to go in its place get going in its place what is that and the natural thing would be a change in the majority and the very fact that those who are recommending that not proven is removed the fact that the funeral outbreak and aiming keen and various are saying yes but if you do remove it you have to put something in its place naturally all we are saying at the moment within the system we have it has to stay if we're changing the system then we're not saying well any system has to have not proven because there would be no place for not proven within a different system but there's certainly a place from it within the system we have at present but I recognise that there's really a consensus to get rid of not proven but we must obviously replace it with something else that that's simply our position. Lastly, if I may ask Stuart Monroe, you made a comment somewhere about there being a higher conviction rate in England for sexual offences than in Scotland and I just wonder if you can share with the committee why you think that's the case. Again I don't have the numbers in front of me but I do remember seeing publication of data that related to conviction rates of cases started so it's not from number of reports made to the police it's from cases that actually are in court turning into a conviction and the number that I have in mind was about 71% I think in rape cases compared to something north of 50 in Scotland for the comparable period. I can dig that information out and share it after this committee meeting if that would be of assistance. I think there's always a danger I should say in comparing data from other jurisdictions because there are inevitably features that come into that. I think it would be helpful whatever information you can share with us about that because I think it does for me beg the question that is obviously an absence of a not proven verdict in England so to what extent is the absence of that factor contributing towards the difference. If those numbers are correct that you've just given us and I appreciate your supply goes later on there's quite a material difference between 50 and 71 if that's the case so that strikes me as being something that really needs to be explored as to what is driving that and what is the significance potentially of the option of the not proven verdict in Scotland because we have to understand what are the implications of any move to remove such a proposition. Of course, and the point that I was thinking to make at the end of my last answer was that one has to be careful in taking statistics from one jurisdiction and applying them in another because of the different considerations that might apply. The very obvious different consideration is actually about marking policies, what the CPS decides to do when faced with a reported case as opposed to what the COPFS decides to do, whether for instance in Scotland maybe because of corroboration there is more of a sense that any case that meets the corroboration threshold should be prosecuted whereas in England there's maybe more of an assessment of the if you forgive the expression the quality of the evidence essentially that a weighing up as to the likelihood of conviction and that inevitably would have an impact on the conviction rates that you saw going through put simply if you prosecute the cases where you're more certain of getting a conviction you're probably going to have higher conviction rates than if you don't. So all of those extraneous elements have to be factored in. You then have the trial process to what extent the things like written directions and routes to verdict assist in the process increase the prospect of conviction. What about any other elements that maybe we haven't thought about? Timescales, quality of investigations, resources and investigations. So I think we have to tread very carefully when looking at that kind of data, but the point of referring to it was simply we shouldn't assume that requiring unanimity or something close to it means that you're never going to get any convictions because that simply isn't borne out by the data from elsewhere. Over time I'm just going to come in if I may with a very final question and then we'll draw the session to a close and it's for Stuart Monroe. It's in relation to the survey of members that the Law Society undertook and my understanding that was that there were over 70 per cent of members who responded believed that the not proven verdict should be retained. So I'm just wondering if you could maybe just expand a little bit on the survey and the results, including the minority view, which obviously consisted of around about 30 per cent? I think the difficulty is that if you ask 100 lawyers for their view on something you'll get about 120 responses, the society went to its membership with a predefined questionnaire which it invited people to respond to and there are caveats that have to go with that. Clearly in any survey it's the questions that are asked that may inform the answer and the question of do you think we should retain the not proven verdict might provide a different response if it's framed in the context of do you think we should retain the not proven verdict if we are moving to a system of unanimity, a bleak, 12 member juries and so on and so forth and that level of detail wasn't asked. I think it's also only fair to say that this is a society of all members of the society. The society represents all solicitors in Scotland so that includes fiscals, it includes those who don't go anywhere near the criminal courts, you know, convencers or commercial lawyers and things of that nature. That raw data has to be taken in that very clear context but there were undoubtedly a multiplicity of views. There are a multiplicity of views within the profession. There are those for instance whose primary job is to represent complainers and they may have a different view in terms of the not proven verdict because of the experiences of the clients that they represent. It may be that fiscals asked individually might have a slightly different view to those who work mainly on the defence side of the profession but I think what we were able to take away from it was there were a range of different views expressed. There was a real sense that the Scottish system is one that we should be proud of and we shouldn't always be apologising for doing things slightly differently to how it's done elsewhere but the society's position ultimately is broadly in line with what Ronnie just described and indeed the way that Mr Swinney put it in the final question that in essence I think it was suggested that ultimately what needs to be done is to look at whether we can design an alternative to what we already have that meets the concerns, ensures the balance is right and fundamentally comes back to that primary aim of convicting the guilty and acquitting the innocent. On that note, I'd like to thank you all for attending today. We'll now have a short suspension just to allow us to have a changeover of witnesses. Thank you very much. Thank you members and we now move on to our second panel this morning. Can I welcome Laura Buchan, Procurator Fiscal Policy and Engagement at the Crown Office and Procurator Fiscal Service and Mr Alasdair MacLeod, Principal Procurator Fiscal Depute at the Policy Division at Crown Office and Procurator Fiscal Service. We welcome to you both and I intend to allow around about 60 minutes for this session. I wonder if I can open up with a general question and it's around the jury research that has been undertaken in Scotland. Laura Buchan, what way would you give to the findings of the available research, including the Scottish jury research, as part of the evidence relating to the proposals in part 4 of the bill? Thank you and good morning. I suppose it would be best if I start by saying, obviously, that in COPFS we operate as part of the criminal justice system and that's created and determined by legislation and the decisions in relation to the change of jury size, the abolition of not proven, the size and majority requirements of the jury are ultimately a matter for Scottish Parliament but we do make some observations in relation to our submission particularly in relation to the jury research. In our experiences as prosecutors we do urge caution about extrapolating the results from a mock jury research and extrapolating those and putting them on a real criminal justice system. It is unclear to us as prosecutors as to why the removal of an acquittal verdict would tend to lend to an increase in conviction. We know when trials are conducted and, as we heard from our colleagues this morning, almost the very last thing that a jury is told by either the presiding sheriff or the presiding judge is that, if the case is not proved beyond reasonable doubt, they must acquit and that there are two options for those jurors then in terms of an acquittal verdict and they are not proven and not guilty. I can go in more detail in terms of the questions about some of the things that we think that we need to highlight in relation to the mock jury research whilst totally understanding that it is the largest mock jury research of its type in the UK. We understand the limitations that were placed in terms of Professor Lebrick when they gave evidence to the committee last week. I myself was sat on a mock jury as a student and that was in a court setting in which those mock jury research were not. It was undertaken by advocate deputes, there was a judge, there were actors. We took it seriously and earnestly, but ultimately we knew that the ultimate decision that we made would not impact either a real victim or an accused. It is really difficult to replicate a real jury sitting in mock jury results. I suppose that we urge caution because we worry about an unintended consequence when the aim of this bill is to improve a service to victims and witnesses and in fact improve the system for all users including accused that by changing for example the majority of a verdict that we will see in increasing acquittals and that would be an unsatisfactory outcome. We appreciate though that not proven is unsatisfactory for both accused and for many witnesses. Okay, thank you very much indeed. I suppose that it is probably helpful to point out that the mock jury research that we have heard about from Professor Fiona Lebrick and Amon Keane is part of the evidence that the committee will take. I would not think for one minute that the provisions in the bill are based solely on the findings of mock jury research, but thank you for that helpful response. I am just now going to open it up to members and I will bring in Katie Clark then, Pauline McNeill. I have a question that really comes from what was said in the previous session and I think that both of you were in for that session. It was to do with this issue, to do with the contempt of court act and the fact that we are relying on mock jury research because there is a view that it is not possible to carry out research in relation to real jurors and I just wondered if that was something that you looked at, whether you thought that was the reason that there wasn't academic research on real jurors in Scotland or whether you had any information in relation to that if I might be asked by Laura Buchan? Absolutely. We know again as prosecutors that jury deliberations are confidential. We don't know what deliberations take place and that's why it's very difficult and obviously hearing the evidence this morning talking about why not proven might be returned, we can hypothesise in terms of why jurors determined to return a not proven verdict, but nobody knows because the confidentiality of those deliberations, the most we will know at the end of a trial is whether a verdict is unanimous or by majority and that's all the information we have. It's very difficult again from that information to know what weight is put on different verdicts and why different verdicts are chosen. Yes, I think at the moment jurors are not spoken to in terms of the Contempt of Courtauld, as I understand and I think as my colleague Stuart explained it, it is to a certain extent to protect those deliberations in terms of confidentiality and in terms of weight, in terms of number of majority. I think that Stuart also said that he wasn't convinced that necessarily it was correct that it wasn't possible to carry out research and there'd been discussion about this in England. It's a UK-wide piece of legislation as I understand it and because there was a lack of clarity the UK Government in Westminster, they brought forward legislation to enable research to take place. Do you think it is clear that we just can't carry that research? I just wonder if that particular aspect, that narrow issue is something you'd given any consideration to and it could just be a yes or no answer? No, I haven't. I don't know whether it's fine. That's fine. My colleague Alasdair has... The only thing I was going to say is that I'm unaware of the changes that the Westminster may have implemented, but in terms of the research in England, I think it's important to note that Professor Charmer's research, although conducted with jurors, was a study that was undertaken with individuals who had sat on a jury. The research wasn't in respect of the jury that they had sat on. They were simply identified as people who had sat on a jury and were then asked questions. So, in a way, it's just an expansion of mock jury research. However, the selection of people that you are questioning have recently sat on a jury. They weren't discussing the deliberations or the jury that they had recently sat on, but merely were identified as individuals who had sat on the jury, which is my understanding of the research. Thank you. Thank you. Thank you. Pull in in ill then, Russell Finlay. Thank you. Good morning, Styllis. I wonder if you have any comment to make on some of the evidence that we have heard on the use of not-proven in relation to rape cases. I'm trying to understand this myself, so there's the use of the not-proven in relation to not guilty in rape cases, and then there's compared to other crimes, which is going to look different, I imagine. Is there anything that you can tell the committee in terms of your experience or practice about the use of not-proven in rape cases? Do you have any concern that it's used too often or no concerns at all? I think that what we can see, and I think that it's the Scottish Government document that relates to it in terms of the use of not-proven, is that not-proven is not a verdict that's used significantly, and I think that in terms of the Scottish Government paper, in terms of summary cases, I think that not-proven is returning about 1 per cent of cases. But what we do know is that it is used more regularly in relation to sexual offence cases. I think that I'm going to refer you, so I'm just trying to find the figures here, but there's certainly a difference in the way that the verdict is returned in relation to sexual offence cases, as opposed to other cases. Again, it's difficult to know why. I understand. Do you have any view on why that would be the case? As we discussed earlier, what we can say and what we do know in relation to convictions generally, convictions in relation to rape and sexual offences cases are lower than any other types of cases. In terms of about four out of 10 convictions for rape and serial sexual offences and it's far higher in terms of other offences. We could talk and our colleagues earlier spoke about just the difficulty in prosecuting sexual offence cases. That will no doubt have some impact in terms of if we as prosecutors and our colleagues in the defence bar know how difficult and complex sexual offence cases are and how traumatic they are for the victims and witnesses. We can see how, for juries, those cases are difficult, but what we really want to do is improve that system for victims of violence, women and children, particularly in relation to sexual offence cases. In terms of the conviction rates, we know that we obtain and secure convictions in cases where there are multiple victims. That is not surprising to a certain extent in terms of a jury hearing the evidence. We also know that in cases in serious sexual offence cases or sexual offence cases, where children are victims, the conviction rate is slightly higher. Anecdotally from our prosecutors in the High Court, that conviction rate is far lower when you have a single complainer and a single accused. Thank you, that is really helpful. I said this at the previous session, so most of us are lay people, so a lot of the practices that we are unfamiliar with, particularly in relation to prosecution policy. Broadly speaking, when you are marking cases in relation to a rape case, for example, presumably there are some guidance to prosecutors on how you decide whether the evidence is there in order to take a case forward. Is it harder in rape cases than other cases? I think that it is important to set out again in front of the committee in relation to the way other evidence has been heard. There has been comparison to other jurisdictions and again we would urge caution in relation to that. We are a unique legal system, we have our own criminal justice system, so it is very difficult to compare it to other jurisdictions. In relation, there are robust checks and tests throughout our system in relation to any case. When any case is reported to us, our primary consideration is whether there is sufficient evidence in the case, and we then consider whether it is in the public interest to prosecute that case. In sexual offences and rape, that is considered by a case preparer and they consider that evidence thoroughly. That is then considered by a senior legal manager to determine whether there is a sufficiency of evidence. That is then ultimately considered by an advocate who will agree or disagree about whether there is a sufficiency of evidence and ultimately whether we should prosecute. Those types of serious cases go through a range of tests to ensure that there is a sufficiency of evidence there. That is before we make the decision as to whether we are going to take it into court and prosecute. I suppose that it has been mentioned today, but we also have corroboration in Scotland and that can be distinguished from the system in England and Wales where there is no requirement for corroboration and that is another in-bult check in the system in terms of prosecuting those cases. If there was an increase in the majority required for a jury to convict, consideration should be given to the prosecution being able to seek a retrial where the higher majority is not reached. Is that your policy position? In other words, are you arguing for that anyway? Why would you not argue for a retrial policy in relation to the current verdict system and how radical a suggestion is that? Just from a wee person's reading, that does seem quite a radical thing to introduce the question of whether we have been debating the three verdicts and the majorities that you have thrown into the mix is that there should be scope for a retrial and I have absolutely no idea how radical or otherwise that is, but if you could speak to that. I will speak to that, thank you, but I will ask my colleague Alastair to, but before that I just want to set out. Obviously in the system that we currently work in, it is unique in terms of 15 jurors and that majority of eight for a guilty conviction. My colleague against Stuart Monroe said this morning that he opened by saying that we currently have a broadly safe system. That is as it currently stands with eight out of fifteen being for a conviction, so you can have one person obviously in terms of one more person and that will result in a conviction. Our caution is that if that is at the moment a broadly safe system and if the aim of the bill is either to increase convictions or reduce convictions, that by changing that majority then there is a risk in terms of increasing the amount of acquittals. I will hand you over to my colleague Alastair who can talk to about why. It is just particularly in relation to what would be, we feel unsatisfactory to have a higher amount of persons within a jury voting for guilt, but yet an acquittal would be returned and so it would be in a very small percentage of cases where we would therefore want the opportunity to seek a retrial. Thank you. I think that the provisions in terms of changing the majority are somewhat unique as well. There has been a lot of discussions about comparing Scotland to a number of other systems that the USA was mentioned, England and Wales have been mentioned. We can mention New Zealand as well. All of those systems are common law systems. Going back to my distant memory of law school, we were always taught the uniqueness about Scotland. It was not a common law system and it was not a civil system, which is the European version. It was a mixed system. As a consequence of that, we have a rule for corroboration. We also have the simple majority. In the other systems that we have been compared to and there have been suggestions that we should try to mimic a 10-12 or a 12-12, all those systems have the ability for retrial. That is because they seek to have the jury reach unanimity or a majority on either a guilty or a not guilty verdict. If you do not reach the 10-12 for not guilty, it is a hung jury. The proposals that are before the Parliament just now is that it would only be a requirement for an eight majority for guilty. There is no requirement to reach that same majority for not guilty. You can and you will have a situation where if you move to 12 jurors and you are operating in 8-4 where you will have seven jurors voting for guilty and five jurors voting for not guilty. I am relatively sure from my experience that the jury will come back and ask a question of the judge because they do what do we do now. We have not reached the seven but we do not have a majority for not guilty and they will be instructed under the provisions to acquit. I think that we have all accepted that there is an unsatisfactory nature of not proven for both victims and for accused. There is often described as a stain being left on the character of the accused when they are provided with not proven. There is a real concern that if someone is acquitted where there is a seven-five majority for guilty, there is a remaining stain, perhaps even a more so of a stain for that individual. In those situations, particularly for victims and complainers, where they have heard that the majority of the jury believed that the accused was guilty and believed that the crown had proved its case beyond reasonable doubt but yet there was an acquittal, that would be an unsatisfactory position to be in. Particularly in circumstances where perhaps the jury is reduced through illness or other reasons why the jury might be reduced. The provisions allow if the jury to go down as low as nine in those situations, you require a seven-two majority. You could have a six-three vote for guilty but it would be a not guilty and obviously you have six-three as your two-thirds, your equivalent to your eight-four but the return would be a not guilty. In those situations, if the Parliament is considering changing the majority, it might be worth considering whether that majority should remain for both guilty and not guilty. If we are requiring unanimity or a 10-12, that should be for guilty and not guilty like they have in the other systems that we have been compared to. If that is not the case, provisions for retrial are not unknown in Scotslaw. The appeal court has the power to order retrial where a conviction is overturned. They have the power to provide the crown with the authority to re-raise proceedings if the crown is so choose to do so. Also, there is the double jeopardy legislation that was passed by Parliament in 2011 that allows the crown to apply for permission to hold a second trial to retry and accused. In those situations, there were some discussions about the level that that would occur and the number of hung juries that occur. Research from England suggests that it is about 1 per cent and there was evidence given that that might just be a single charge among other charges, but that could be the murder charge among an indictment of smaller assaults. It might be a significant charge. What we are suggesting is not that there is an automatic retrial provision that takes place and an automatic trial takes place, but that the crown has the ability to ask the court for permission to consider re-raising proceedings on the charges that have not been met in the majority. You said quite a lot. I just want to clarify. I understand most of it, but as the proposals currently stand, not as the other suggestions as a tenor, is it still the crown's position that you should still have that option for a retrial on the Government's proposal, which is 8.4? You would still argue for that. In situations in the current proposals where the identified majority for guilty because it is only a majority for guilty is not met, but the majority of the jury have returned a guilty verdict. There should be a— In your 7.5 scenario? A 7.5 or a— That's clearly— 6.3. But that's what the provisions are. No, the provisions are, if the jury returns a verdict for seven of the 12 vote guilty and five of the 12 vote not guilty, that would be a not guilty. The crown's not satisfied with that? Our position is that I don't think that anyone would be satisfied with that, and so there should be the ability for the crown to consider. Those considerations would be, in terms of how we currently consider retrying an individual or re-raising proceedings, would be in consideration of the public interest, which would include—I would anticipate the views of the complainer—although, with the advent of pre-recording of evidence, there may not be a requirement for a complainer to give evidence again. Certainly, it wouldn't be an automatic decision that we would take, and it may only arise in 1 per cent of the trials that occur, but it would provide reassurance to the public at large that there is the possibility for an individual who has been found—where the crown has proved the case beyond reasonable doubt to the majority of a jury, but it hasn't reached the arbitrary number that has been selected for guilty verdicts only. Would the Government not be able to legislate if you are right and there would be public concern? Why don't we just legislate for 7.5 then? We could retain it as a simple majority, which is probably the most sensible option, because then either verdict has to reach a majority. At the end of the day, the decision has been made by the majority of the jury. As soon as you start qualifying the majority, you get a non-qualified majority. I know what you are saying, but the legislation wouldn't say that if it passed. At the moment, there is a discussion about it, and I think that it noted against the creation of a provision for retrial, because of additional trauma for a victim having to give evidence again. I suppose that our position is that that is very finely balanced, and we would want the opportunity in those situations where the 7 has returned a guilty to do the consideration and seek a retrial. Laura, can you say whether you think that the Lord Advocate's recent ruling that distress can be used as evidence will have an impact on your conviction rates? I don't think that we can tell yet whether it will have an impact on conviction rates. Again, I think that it's really difficult in this setting to not conflate it with the discussions that we're having today in relation to the abolition of not proven and jury size. It's a significant decision, and by the court, we are working through that decision in some detail to see how it will impact not just the rules of corroboration in relation to sexual offence cases, but more widely in terms of other types of offence. The position remains that, in Scotland, no one can be convicted in the evidence of one source of evidence, but it has allowed us—it's confirmed, of course—that the accused requires to be proved by corroborated evidence but not the separate elements individually. A good example is that, currently, we need to corroborate every—or pre-the decision—we believe that we would require to corroborate every step, so in terms of fingerprints, we corroborated to two people who had to speak to the lifting of the prints, two people who had to speak to the comparison. We're taking some time to go through the comprehensive ruling carefully and to work out the impact on our wider case load. It will inevitably allow us to prosecute more cases and to bring more cases before a court because of that change in terms of corroboration, but ultimately, what that might look like in terms of conviction rates is still too early to tell. Russell Findlay, then John Swinney. Thank you very much, convener. I'm just picking up on Pauline's line of question about the attempt to seek a retrial in particular circumstances. It's a bit of a rapid fire question just from one understanding. Right now, if you were to seek this, you would need to seek the court's discretion. That's what you're proposing. It wouldn't be arbitrary power that the Crown would have. I think that it would depend on how it was to be legislated, but I think that we're talking about what we would understand to be a small proportion of cases where we consider it to be unsatisfactory, where seven of the jury returned a guilty verdict, but it resulted in an acquittal. Is it not the case so that we can't, as things stand, find out the jury numbers to break down? That's correct, but there may be situations. Obviously, it is only likely to arise in situations where it becomes apparent that there was a seven-five split. I have conducted jury trials where the jury have come back and said that five of us want to vote guilty, five of us want to vote not guilty and five of us want to vote not proven. What do we do? Automatically, there is disclosure in the court as to what the jury position is. That is most likely to arise in situations where the jury comes back. In terms of the provisions where the jury comes back and says that we can't reach the eight, but we haven't got a verdict. We don't have a majority for not guilty. What do we do? In those situations, they will be instructed to return a verdict of not guilty by the court. However, the Crown should have the opportunity, if that is what is disclosed, to apply to the court. What we are suggesting is not an automatic right of retrial that would be similar to the provisions that are undertaken in the double jeopardy, where the accused would have a right to make submissions on that. The court would judge whether it is in the interests of justice to grant that authority. What discussions have the Crown had with the Scottish Government about that? In terms of any discussions in relation to the bill and the preparation of the bill, and of course, the Scottish Government has seen our submissions in relation to that area, but in terms of mewn allisters ahead of our Victims and Witnesses team, we have regular discussions with our colleagues in the Scottish Government. Because they are not as things stand willing to include this, you are lobbying quite hard to have it considered, so therefore is it something that you would seek an amendment to be brought forward if the Government is not forthcoming? It is something that we would continue to have discussions with our colleagues in the Scottish Government about. Of course, it is very dependent on what ultimately the bill will look like. Primarily, it is an area that we are flagging up. There is the possibility of an unintended consequence of removing the not proven to abolish the uncertainty in decisions, but the provisions might create even more significant uncertainties in looking to try and find a solution that would square that circle. Now, as MSPs were being asked to radically alter the entire criminal justice process, it was quite daunting, but we have found that there has been a bit of a dearth of data, not least in respect of cases of sexual nature, including rape. We cannot establish how many appear to have been reported or reported to the Crown Office, how many are then prosecuted, how many of those are single or multiple complainers, and the outcomes of each as in guilty, not guilty or not proven. That last week, Great Crisis Scotland put the blame for this lack of transparency on the Scottish Government. I just wonder if that specific data is something that the Crown Office would be willing or able to share with the committee? We can share the data, and we can go through it, and we might need to discuss this post about what data exactly the committee would want to. We do hold data, and as we heard the evidence last week, and it is quite eloquently put forward by Sandy Brinley in terms of the systems that we all use—our case management systems and the systems that Police Scotland use, Scottish Court Service use and COPFS use—are different systems, and they are primarily used for our operations in terms of marking and prosecuting. Therefore, again, pooling data like that from the systems is not straightforward. I can tell you how many cases that are currently in the High Court, what proportion of those are sexual offence cases, how many cases are reported to COPFS every year and how many sexual offence charges are. However, the data that I suspect that the committee would like in terms of a breakdown of conviction rates—as I said earlier about anecdotally, our view is prosecutors that there is a low rate of conviction in terms of that intimate rape. It is very difficult to identify what that figure is. We are doing some work both within COPFS and with our colleagues in SCTS and Scottish Government to see what we can do, but it means that it is a manual process where we have to pull out cases case by case and we have to weigh up whether operationally and resource-wise we can dedicate that resource to pool that from our system. I find it extraordinary that we appear to be flying blind. This is critical to everything and we do not have this basic data. The Bill's policy memorandum says that jurors may be more likely to convict with a two-verdict system. The Scottish Listers Bar Association says that removing not-proven wood and the word that they use is undoubtedly result in more convictions. However, in your submission, the Crown Office submission, it says that the 2019 jury research suggests that the opposite would happen and that jurors would be potentially less likely to convict. Is the Bill progressing on the false assumption that removing not-proven wood will lead to increased rate of conviction when, in fact, it is the opposite? Have you got any views on that? As I outlined at the opening of the committee, we are urging caution in terms of extrapolating the mockd jury research and extending it across to the actual real criminal justice system. The mockd jury research looked at 64 juries. Today, in Scotland, there are 22 high court juries running and around 25 sheriff and jury trial courts running. Already, that is giving some idea about the amount of jury trials that we run each year and the experience that we can garner. I suppose that in terms of listening to my colleagues earlier this morning, we understand their views in terms of the agreed or agree with them in terms of the risks in basing changes on that jury research. I suppose that it is difficult to amalgamate the two views in terms of not wishing to rely on the mockd jury research by my colleagues in defence, but extrapolating that one part in terms of an increase in conviction and seeking to rely on it as to why that requires to be a safeguard. One thing that Mr Ranucci said that I have not seen anywhere else is that these mockd juries trials lasted one hour, which seems incredible and completely artificial, was that the case? From my understanding of reading the mockd jury research and again, there is no criticism in terms of the really interesting hearing that Professor Leverick and Aamon a couple of weeks ago when they gave evidence. It is interesting to have an insight in terms of the discussions that were heard by those mockd jurors, but the reality—I think that Professor Leverick identified that herself and in the research spoke about the weakness and the limitations. She said that it is not a real jury and the jury know that the trials are not real. The two differences—there was a sexual offence trial and also a non-sexual offence trial—were a little over an hour. There were videos of a trial taking place that were shown to the jurors. While they were in a court building, there was not that experience of being in a court with a prosecutor, with defence counsel, potentially with the victims and witnesses giving evidence. It is just reflecting on the difficulty and limitations in carrying out that research. Given how important it is, it strikes me as incredible that, given what we are seeking to do, it seems to be beyond the finest legal and academic brains in Scotland to conduct much more meaningful, robust research, while still respecting jury confidentiality and those various other issues. Does that not really need to happen first before we make these radical proposed changes? I do not think that I can answer that other than again emphasising that we understand what the difficulties and limitations are. I have never seen in Scotland a jury being spoken to about their deliberations and their outcome, and there may be some merit in exploring that. I suppose that, in terms of undertaking the research, you have made the comment that you made. We are being asked to be mind-readers of the journeys when, in fact, there is no reason realistically that academia and the legal profession could not have conducted some meaningful research, I believe. There is reason, because we are not allowed to speak to jurors, and we are not allowed to, by confidentiality, we cannot ask what their deliberations are. The Crown Office cannot, but I am just saying collectively, given what we are looking to do here on the basis of what we think jurors might think currently and might do in future, based on the changes, it should really have been done, I think. It is an area that I have not explored in detail as to how that might be done, but presently it cannot be done. Can I quickly just clarify one point? You mentioned the Crown Office submissions in relation to the analysis of the mockgery research. I just confirm that the submissions of the Crown Office are not that the research indication is what should be drawn from the research as there will be less convictions in a two-verdict system. What we are highlighting is that the bill is based on the proposition that there will be more convictions, and we are highlighting that that is not what the research demonstrates. The research itself accepts that the exact pattern of verdicts returned is unlikely to be reflected. It is unlikely to reflect the pattern of verdicts that would be returned by jurors in a wider range of differently balanced cases, so the research itself accepts that you cannot draw anything from the verdicts that have been returned. It had a 95 per cent not proven verdicts in the research, which is four and a half times the normal. All that we are doing is highlighting that it would be perhaps there should be some caution before extracting from the research the link that convictions would increase, as that is not what we believe it shows. That makes sense, but that thing you said at the end about the 95 per cent not proven rate being something like four times the regular. We do not even know what the regular is, because we do not have the data. Where do you get that from? Well, the jury itself in its report indicates that the not proven return rate for 2017-18 when the jury research was on was 17 per cent. If I can just move things on, I know that this is important, but if I can move things on and bring in John Swinney. Can I just carry on that line of discussion with Mr McLeod? I think that one of the fundamental conclusions that is emerging from the evidence is that whichever bit of this Rubik's Cube you move around, there will be implications for other bits of the Rubik's Cube. I think that what we are trying to feel our way towards is where does the right balance lie in protecting the process of justice. I am interested in the extent to which you can illuminate our discussions by where you think the greatest risks lie in changing the existing arrangements. We do not want to end up in a worse position, but we clearly want to end up in a better position. I am keen to explore where does that all rest in terms of the key factors that we have to bear in mind in what might change and produce a different set of outcomes to those that we currently have in the criminal justice system? I am not sure that I have the definitive answer, but I can say that when you are considering the balance that is undertaken in the criminal justice system, particularly in terms of the Scottish system, because we are very keen often to point out the uniqueness of the Scottish legal system, and that has to be considered when we are comparing how other jurisdictions do it and whether we should do something similar to what they have. In Scotland, as Laura has indicated, no one can be convicted in the evidence of a single person no matter how believable or compelling that evidence is. That is different to other systems that operate in jury trials and jury systems. We have the requirement for corroboration, not just that a crime took place, but that the accused was the individual that committed the crime. A jury is instructed at the end of the deliberations, and the whole question for a jury is, has the crown proved beyond reasonable doubt that the accused has committed the crime? That is the answer that requires to be given by the jury. It is not a question of is he not proven, is he not guilty, is he guilty? It is a question of has the crown proved beyond reasonable doubt what they have set out to prove and what they have libled against the accused. On a binary level, the outcome of a jury trial is a conviction or a acquittal, but what we have in the acquittal is two sub-categories. The binary question is guilty or not guilty, or convicted or acquitted, but we have two routes to it. We have the simple majority of the verdict. I am not claiming to be a legal historian, but I am discussed in some way the history of how we approach juries in Scotland. Senators in a previous response have discussed the differing views compared to, are we seeking the decision of the jury in its entirety, or are we seeking the decision of 15 members who are then added together to find the majority? The very nature of the truth by fellow citizens is an individual decision by a citizen. You have the balance of corroborations, the simple majority and the three verdict system. When you are shortening one or removing one, there may be a tilt the other way. How much that tilt is, I think, is very difficult to establish. What I have noted in the Scottish jury research is that there was a question asked of the individual jurors, which I remember correctly, was what is the correct verdict if you believe that the accused is guilty but the Crown haven't proved the case. In two verdict juries, 4 per cent suggested that the correct verdict was guilty, and in three verdict juries, 7 per cent suggested that the correct verdict is guilty. We have to be reliant on the jury system and if we have to trust the jury system that a properly directed juror properly discharging their oath will ultimately answer the question as to whether or not the case is proved beyond reasonable doubt. If they don't find it, we have to rely on jurors to acquit. Removing the not proven verdict doesn't remove the ability for a juror to acquit. It removes potentially the confusion or the unsatisfactory nature of that acquittal, but a juror is still able to acquit. It's difficult to see what balance is required when you're not removing the ability altogether for a juror to acquit, but merely suggesting that the correct acquittal—if the correct answer to the question has the Crown proved the case beyond reasonable doubt—is no, therefore, not guilty, rather than no, therefore, either not guilty or not proven. The fundamental question hasn't changed, so I think that there has to be caution when considering whether there needs to be a balance to make it. More people have to be persuaded. To then go into some of the questions that I was putting to the panel for the legal profession this morning about what is the perception of not proven. In the words of the faculty, if I remember correctly, it's a measured means of acquittal. From the Crown's point of view, the judgment that matters to you is have you proved it beyond reasonable doubt? I think that we noted that this morning, too, in terms of a measured means of acquittal, but we can't know that because we don't know why a jury has opted for not proven. Ultimately, we will know whether the verdict is not proven or not guilty, and to us it's an acquittal. The jury is told very clearly about what the result of not proven or not guilty. Again, it was quite helpful, even given the history, about why judges don't make any effort to define not proven or not guilty and make it very clear that, by returning either of those verdicts, it will be an acquittal. That was my point earlier about talking about what a not proven might mean. We, I suppose, can think about and we know that victims say that it's unsatisfactory for them in terms of a not proven verdict. We know that accused, who have been acquitted of not proven, say that it's unsatisfactory for them, but why would jurors opt for that? We can't comment on that because we just don't know. My last question is in relation to the vex question that you've put in front of us about a 7.5 majority for guilty, but that leads to an acquittal. I wonder if, in the other jurisdictions that we are often compared to where you might have an 8, 4 or 9, 3 verdicts for guilty, but at least an acquittal, what the degree of public concern is about that fact? I can't speak to what the public perception of the criminal justice systems in Canada, England and Wales and New Zealand are, but in those jurisdictions there is a requirement for the jury to reach a verdict, so they have to meet that majority for not guilty as well, so they don't have a situation where they come back and say, oh well, if they do come back and say we can't reach a majority on either verdict, then that's what's classified as the hung jury, and that's the result of it now. I'm not sure what the social or positions of victims and accused are when a hung jury is the outcome. It may be something similar to what is experienced when not proven is returned and that there's that uncertainty, but certainly there's not, as far as I'm aware, a similar situation in those other jurisdictions where you don't reach the majority because the majority is there only for guilty, the majority is there for all verdicts, so you don't have a nine out of the nine out of the 12 voted guilty, but it's not guilty, it's not, that's a hung jury. Nine out of the 12 voted not guilty, that's a hung jury, it's my understanding on how the systems work, so there is a there is this push for unanimity or new unanimity before a verdict can be delivered. So the very nature of the decision about the composition of a jury decision is something that is of itself or can be conditioned or nuanced because of the fact that to try to avoid that understandable situation that you're putting to us that you know you've got seven fine majority in favour of conviction and somebody gets acquitted. I understand how that's quite hard sell. I think it would just be unsatisfactory to all parties in a situation where that was the outcome of a trial and it became known that that was the outcome of the trial. Thank you. Thank you. Thank you. Thank you. Thank you for being around. Good afternoon to both of you. It's a really interesting session so far. The questions I was going to ask about, the conversation I was moved on, but I do want to go back to them just to provide you the opportunity to clarify for the record and also I think just to aim just for myself to try and understand exactly the position. So you've said it quite clearly that under the current proposals you would be worried about an increase in number of acquittals. I'm wanting clarification. Had you talked about those that are currently in the last session, we heard some numbers there about number of convictions, acquittals and not-provens. Sorry, not-proven and not guilty. Had you worried just about those that are currently not proven or are you also worried about the numbers that are currently convicted? Just wonder if you can clarify that in terms of the increase in acquittals going up. I think the issue is currently we have to, the Crown have to prove to or have proved to eight out of 15 members of a jury that the case has been proved by the Crown, which is a 53 per cent majority. If you then move that majority to an eight four out of a 12, then the Crown require to persuade 67 per cent of a jury that the case has been proved. So there's an increase in the percentage of a jury that you have to persuade for a conviction. So by changing it from a simple majority to requiring more people now, this is the other difficulty in terms of the lack of research in the way that the current system is operated. We can't tell you how many juries return a verdict that is eight seven. We could be sitting here and every jury in the land comes back with a 15 nil for a unanimous or a 14-1 for a majority. There's no way of knowing how many cases are decided on an eight seven. There may be very few cases. It may be that in a lot of these cases the percentage won't matter and there is no impact. What I think we're just trying to raise is that there should be some caution in the possibility of by increasing the majority acquired in a jury to return for a verdict of guilty only that this may result in there being fewer convictions. It may not, we can't tell, but we're simply highlighting that this may be an unintended consequence of trying to balance the removal of not proven. I think that that comes back to Russell Family's point again. A lot of this does lack, for the reasons that you've outlined, that lacks research and data because we're not able to understand what juries are thinking. Like Russell and others have said, I think that over the last few weeks on committee we're beginning to feel the real way of the decisions that are put on us as a committee now as well because these are significant changes. One thing we don't want to do is to make things worse for people who use the justice system, particularly victims and witnesses. What I can say, though, if it hasn't already done, I'm sure that the committee haven't gathered data and shared it, but if there are particular questions that you think the Crown may be able to assist with in terms of any data that we hold, then you can ask us and we can provide the committee with what we can. I hear what you're saying there about the acquittals. You're not worried just about the acquittals coming from that current pool of not proven, but also the current pool of convicted because of the higher thresholds. I want to ask again, and I do think that you've answered this, so you can be brief. The convener will be glad to know, but do you think that it's possible if we as a Parliament decide to get rid of, for one of better words, the not proven, but leave the jury numbers as they are just now? Are you not getting any concerns or worries? The reverse of your concerns, as put forward by many, if the legal profession would be the same, would possibly not lead to wrongful convictions? What has to be established is that the question that the jurors are asked will remain the same. The decision that the jury will have to make will not alter. They are asked to make a decision on whether or not the Crown has proved beyond reasonable doubt the case to those jurors. There is no change to that test, so it's very difficult to see how a juror who would previously have voted for an acquittal but selected not proven would suddenly, in discharging their duty correctly, decide that they're going to vote for guilty instead. I should just clarify as well that you mentioned our concerns about convictions coming from the not proven side of it. Not proven is an acquittal, so any acquittal verdict should remain an acquittal verdict. It's difficult to see if not proven was removed and everything else remained the same in the system. Consideration would have to be given as to why jurors would suddenly start deciding that the case has been proved when the day before they would have decided that it wasn't proved. Our view is that the test when the question asked of the jury doesn't change by the removal of not proven, all that changes is one of the routes to acquittal, one of the options for acquittal changes but the option of acquittal remains. Are there any other members that would like to come in at all? No. Thank you very much indeed. We'll pull the session to a close. Thank you both for attending this morning and that completes our agenda item and we will now close this meeting.