 Hello, welcome to the 32-dom meetings for the criminal justice committee 2020-23. We have no apologies for me and Fulton Macgregor is joining online. The first item of business today is continuation of evidence on the victims witnesses in justice reform in Scotland bill. Today, we are on the basis of renewing Title ond part four of the bill, and that covers the abolition of the not proven verdict and changes to jury sizes and majorities. We expect phase two to run to the end of this year, after which we will move on to considering the last two parts of the bill. So, we're joined this morning by Professor Fiona Leverick, Professor of Criminal Law and Criminal Justice at the University of Glasgow-Sugul of Law, and Eamon King, lecturer in evidence and criminal procedure at the University of Glasgow-Sugul of Law. Welcome to you both. I refer members to papers one, two, three. I intend to allow around 90 minutes for this session, but we might run on if required, as this is a key area of the bill. If I may, I would like to begin with a general opening question, which I'd like to direct to Professor Leverick. The Scottish Jury Research, which you were involved in, has helped to inform the approach taken by the Scottish Government in part four of the bill. Before we move on to considering relevant findings of the research, I wonder if you could outline what you see as the strengths and possible limitations of the research methodology. For example, in relation to the use of mock duties. To what extent can I assume that everybody knows what the methodology was, or should I run through that as well? It might be helpful if there is such a thing as a quick run-through. As you probably know, the Scottish Jury Research was commissioned by the Scottish Government to try specifically to inform exactly the issues that we're talking about today. The main purpose of it was to try and get a sense of what difference it might make to verdict choices under different conditions. Conditions where you had the not-proven verdict, conditions where you only had two verdicts, conditions of different jury sizes and conditions of different majority rules. We also hoped to get a sense of how jurors understood the not-proven verdict and how they talked about it in deliberations. Briefly, not as brief as I can, but what we did. I should also say that it wasn't just me. It was a team, including people from Ipsos Moray and Vanessa Munro from Morric and James Chalmers from Glasgow. We ran 64 mock juries. They didn't all watch the same trial. We had two trials. We had a rape trial and an assault trial. Half of them watched the rape trial and half of them watched the assault trial. It was trial videos, but we tried to make them as realistic as we possibly could. They were scripted in conjunction with legal professionals. They were performed by actors, but the actors were coached by legal advocates to try and get their delivery as accurate as it could be. The trial videos were just over an hour long. We had a real judge, Lord Bonami, giving real legal directions at the end. The jurors watched one of the trial videos and went away to deliberate to a verdict. They had up to 90 minutes to deliberate. We tried to make things as realistic as we possibly could. Obviously, there are limits to that, but the trials were filmed in a real courtroom. We tried to make it as solemn as we possibly could. We used relatively imposing buildings. The jurors took the affirmation before they went away to deliberate. Half of the jurors had three verdicts available, half of them only had two verdicts, half of them were juries of 15, half of them were juries of 12, half of them had to strive for unanimity, so 15 or 12, or close to unanimity, so either 13 out of 15 or 10 out of 12, half of them used a simple majority decision making rule. We basically took verdict choices from the jurors individually and from the jurors collectively, and we also video recorded their deliberations so we could actually see how they talked about the not-proven verdict. Jurors were made up to reflect the balance of the local population. Sometimes in experiments of this type, people use students because they are convenient, but we had Ipsos Moray going out and recruiting people to reflect the makeup of the general population in terms of sex, age, education level, race and so on. That is probably about it in terms of what we did. In terms of the strengths and weaknesses of the methodology, I did the weaknesses first, because obviously it is not real jurors. Having said that, they know it is not real as well. We did not use deception, they know it is not a real trial. Having said that against that point, I would say that they all took it very seriously. I think that they often forgot that the trial was not real. You would hear the jurors referring to things like people's motivations, people saying things like, oh well, she cannot be that good an actress talking about the level of emotion and forgetting that this person was an actress. They did take it seriously, they discussed the case seriously, but obviously we could not make it real. I think what I would say there also is there simply would not have been a way to do this research with real jurors, because what we had to do here was we had to hold everything constant, so they all had to watch essentially the same trial, because we needed to see what difference it made varying the verdict conditions and the size conditions. You simply cannot do that with real jurors. You cannot take a real trial and say, oh, we will run it 64 times, but we will do it with a different jury size and a different decision making rule. It just could not be done. In the sense of trying to see what difference the different kind of conditions made, there simply was not another way to do it. I think it was made as realistic as it possibly could be. There's anything else we could have done to make it more realistic. People do sometimes criticise it in terms of saying, well, you know, they're not real jurors. We don't know whether real jurors would behave differently, and I think to that I would just say, yes, that's true. We don't know whether real jurors would behave differently, but I think the general thrust of what we found, which I can come to in a bit, probably does hold. I mean, we cannot say from our research that if you say, took away the not proven verdict, we would get X more convictions. We simply can't say that, but what I think we can say is we know the direction of travel. So in other words, if we take away the not proven verdict, we know what direction things would go in in terms of jurors being more or less likely to convict, but we can't put any numbers on it. I don't think there was no way of being able to do that anyway. I don't know if that helps at all. That is very helpful in setting the context and reality of the sort of limitations that you faced in your research. Can I maybe just sort of tease out a little bit more around the strengths of the process that you engaged in in running what was obviously a big piece of work? So was there a specific question around that? Just more around your observations of what you felt with the strengths of the mock duty trials that you arranged? Obviously, one of them is one that I have mentioned already, which is that they were the only way that you could do this sort of research. The strengths of it really were that the trials that the jurors watched, although they were shorter than trials would normally be, trials would not normally be an hour, and they would normally be longer than that. But they did contain all the kind of essential features. They contained witnesses giving evidence, being cross-examined. The cross-examination was realistic. It was scripted by us but with input from people who had actually acted in rape trials, assault trials. So the dialogue was realistic dialogue. The actors were professional actors who were coached on their performance by real advocates, and we did several takes in conjunction with the advocates who were advising us just to kind of make sure it was as realistic a delivery as possible. So those were definitely strengths. There were strengths in the sense that the environment in which we did the trials, we tried to make that as realistic as we possibly could as well. The jury sizes were realistic, obviously something that you see in research of this type that might include deliberation, but they have tiny jury sizes so that jury sizes were realistic. In short, we tried to make it as realistic as we possibly could. I think as well, obviously there were two sets of findings from the research. One set of findings relates to what difference did it make to people's verdict choices when you varied the trial conditions, but the other findings were just how did jurors discuss the not-proven verdict and what it means in their deliberations, and more what you call a qualitative aspect to it. I see no reason why that would be any different in our research compared to reality because they watched a trial that was as realistic as possible. They were given real directions from a real judge that exactly the same as real jurors would hear in a real trial. So I don't really see how in a real trial that's going to differ very much. There's no magic that suddenly happens, magic stardust that happens when you put jurors into a different room in a real trial, and the way that they're going to discuss their understanding of the not-proven verdict. So I think that aspect of the research is particularly strong because I can't see really very many limitations with that at all. The way they talked about the verdict and their understanding of it is not going to be different to how real jurors would talk about it and understand it. So I don't know if that was the sort of answer you were hoping for. No, no, that's helpful. Just understand a little bit about the background detail, if you like, and just how robust the research was. That's very helpful. I don't know, Eamon Cain, if you'd like to come in on anything. I don't think there's terribly much I can add to that. I think that I would just emphasise the point that Professor Leverick has made, which is given what the research set out to understand, which is the unique features of the Scottish criminal jury. From a methodological perspective, there was no other way to assess those features for the reasons that she has given. And obviously, your joint submission that you sent in to committee supports the removal of the not-proven verdict. I wonder if you could just come back to yourself, Professor Leverick. So what does the Scottish jury research tell us about the use and impact of that particular verdict? I think what it tells us, and this really comes from looking at the way that the jurors discuss the verdict in their deliberations. It tells us a few things. It tells us first that there was no kind of universal understanding amongst the jurors of what it meant. And actually, that's not terribly surprising because, as I'm sure you know, it doesn't really have a clear definition that sets it apart from a verdict of not guilty in directions that jurors will be given by the judge will basically say there are two verdicts of acquittal, not proven and not guilty, and they have exactly the same effect. So there isn't really a clear definition of not proven. And in the deliberations, it really did come across that jurors had rather different understandings of what it might mean that they were kind of projecting onto a verdict that actually doesn't really have a definition at all, apart from being the same as not guilty. So for example, some jurors would say, well, this is the verdict that you should use if actually you think the person's guilty, but you're just not absolutely sure about that. Other jurors would say, well, we should use this verdict when we're just not sure at all. We really not sure which way to go, so we'll just go for not proven. Some jurors, and this was more of a kind of collective thing, would use not proven as a kind of compromise verdict. So if the jury was finding it difficult to agree, say they were kind of split between conviction and acquittal, you know, in some of the jurors, you would have somebody would say, oh, well, why don't we just say not proven then? Because we can all agree on that. So they used it as a kind of a collective compromise verdict, which is the kind of slightly different meaning to attach to it. Some of them used it because they wanted to send a very distinct message through the verdict, but that message differed. It wasn't always the same. So some people used it because they said, well, I want to send a message to the accused person that actually we think you're really guilty, but we just don't think the evidence is there to prove it. So it's sort of not guilty, but, you know, we know, really. Others used it to try and send a message, in particularly in the rape case that we had, to send a message to the complainer to say, look, you know, actually we believe what you're saying, but we just don't feel there's quite enough evidence there for conviction. So we feel we'll choose not proven because that's a kind of slightly more perhaps palatable verdict for you, the complainer than a not guilty verdict. So I think what we found basically is there's a lot of different understandings of not proven. Unsurprisingly, they weren't all the same. I suppose as well the other thing I would say is sometimes there were sometimes distinct misunderstandings. Not many, but you did have jurors who thought that there was a difference between the two verdicts, despite the fact the judge had told them there wasn't. So some jurors thought that the difference was if you have a not guilty verdict, you can never be tried again. But if you have a not proven verdict, the door is always open to try you again if there's more evidence that comes to light. And that's a mistaken understanding, because that's not the case in law. So that came up despite the fact that jurors were actually directed that that wasn't the case. No, that often. Okay, thank you. That's really helpful. And I think I'm just going to bring in other members, because I know they'll be keen to probe a little bit about your findings. So I think Rona Mackay would like to start off. Thank you, convener. Good morning. Just on the points that you were talking about there, can you say at any point in a real courtroom, does the judge explain what not proven is either in his summing up or in direction? That's the first part of my question, so I've got another wee part to it. I genuinely don't know what is actually said in that respect. Oh, sorry, should I do that now? Do you want to do that? I think I can offer some guidance on that. The jury manual, which is a document that is produced by the judiciary, which provides guidance to members of the judiciary as to how they are to approach charging. A jury mentions that it's dangerous to attempt to explain the differences between the two verdicts, because in law they mean exactly the same thing, given the progression of the law and where we've ended up with. Perhaps a question for later on, but the manner in which the verdict has come to be used as a simple verdict of acquittal is not how it was originally introduced into Scots law, where we had a different system relating to general and special verdicts. In essence, what a judge would say in a trial if they were following the guidance in the jury manual is very, very little about the distinction between the two other than they are verdicts, both verdicts of acquittal and it's dangerous to attempt to explain the difference between them. It's quite surprising to me that juries will not understand really what that is, and they're having to make that decision. They're not fully understanding, so my next question was, do you think there should be more training given to juries? Do you think this manual is adequate? When we say that juries aren't understanding, I wouldn't go that far. We don't know that, in essence, definitively, because if they deliver a verdict of not proven in a case and they're told that not proven is a verdict of acquittal, we can assume in some instances that they are simply following the directions that they are given and that they feel that the crown has not proven their case beyond a reasonable doubt. It's a very difficult thing for any further guidance to be attempted to be delivered because the law has developed in a way over recent years, which suggests that there is no distinction between the two things. I'm not sure what guidance we would seek to give them. I think that they're told it is a verdict of acquittal and if they deliver that verdict, we can assume in some instances that they are simply following the directions that they have been given, applying their mind to the evidence that's been led in the case. In the mock trials, when you heard the discussing the deliberations, did you hear them say, well, I don't think there's enough evidence that so we might as well say it's not proven? That would come up quite a lot. You would sometimes get people saying, well, I think it's not guilty because I think this person is definitely innocent, but somebody else will say, no, I'm not sure whether he's innocent or not, but I just don't feel there's enough evidence, so I'll go for not proven. But I think it's important to stress that's not a legal distinction. That's the meaning of the jurors we're putting on to it, and I don't blame them, to be honest, because it's a very difficult concept to really get your head around as a juror that there are these two different verdicts, but they're both yet different, exactly the same. So I think anybody would try and think, oh, there must be some sort of difference between them. So it's not it's not really kind of the jurors' fault that they started putting different meanings on them. But nonetheless, they are exactly the same in law. So it's very confusing for jurors, actually. It's not just confusing for jurors, it's confusing for everybody, I think, involved in a trial, especially complainers, especially acute persons, because you can't really explain to somebody the difference between the two verdicts. If you get a not proven verdict at the end of a trial, it's very hard to say to somebody kind of what that means, other than just, oh, it's just the same as not guilty. Yeah. Okay. Thank you. Thanks, convener. Okay. Thank you. Thank you. John Swinney. Thank you, convener. I think it might be helpful for the process of the committee's inquiry if we could actually perhaps hear why we have not proven as a verdict. I'm going to give that one to you. So I think, Mr Keane, it's probably to you to, you did kind of, you tip toe into this area, but I think just for completeness, I think we could do with, yeah, how did we get here? Yeah, that's, that was silly of me in retrospect, but I will try, I will try my very best to provide what is, I guess, a brief summary. So in essence, the original verdicts in Scott's law were guilty or not guilty, perhaps slightly different language used for them given the type of English that was spoken in Scotland at the time. But anyway, we developed a system where we ended up with proven and not proven, because in the 16th and 17th centuries, there became a practice whereby the crown in prosecuting cases would have a minor and major premise in an indictment, so the charge, the minor would list the facts of the case and the major would list what they say with the legal consequences of the same. As a result of that practice, the defence bar then essentially started making quite lengthy submissions prior to probation, so prior to evidence being led that even if the minor premise was found proven, the major did not follow. What we would call in the law of evidence today, please, to the relevancy of indictments. It all became a bit of a power struggle really between the defence, the crown and the judiciary in Scotland at that time. We are talking about hundreds of years ago of course. This became ever more complicated and a practice arose whereby the judiciary would issue lengthy interlocutory decisions prior to the jury trial beginning, so saying that if the minor premises found proven in the major will essentially follow. It all became incredibly complicated and during that period there was a shift towards juries reacting to the judgments that had been given prior to the leading of evidence where they would deliver verdicts no longer in the general sense but in this special sense of proven and not proven and it would be for the judge then thereafter to interpret that verdict essentially and impose the consequences of same. This continued for some time and there was eventually in the I want to say 18th century I think I think so yeah 1736 essentially the jury regained control of the system so to speak if you want to put it like that because there was a famous case in which because of this pre because of this interlocutory decision very much curtailed what they could do they wanted to deliver a verdict that would result in acquittal and that was difficult given the decision of the court and so there's a jury speech which has been lost in the midst of time we don't we don't have a record of what that says but we have a verdict of the case in essence where they went back to delivering a verdict of not guilty as opposed to one of proven or not proven which had been operation before and then thereafter there's a stretch of hundreds well hundreds of years where these things are used in varying there's a varying instance of all of various types of these verdicts throughout some of the great kind of figures of scots law like Hume by the time he comes to write on the verdicts offers a view on the distinction between these things he calls it a matter of emphasis not guilty i'm paraphrasing him of course but not guilty would be appropriate where there was clear innocence whereas not proven might be appropriate where there is a lingering suspicion of such but the jury nonetheless does not feel like the crown has proven its case in essence this continues until the appeal court in the 20th century starts to issue judgments where they start to say that well we shouldn't be effectively explaining the distinction between these two things it's dangerous because i think again paraphrasing massively the current dispensation we have is not the original purpose of of the verdict so not proven becomes a simple verdict of acquittal this notion of interlocutory decisions pretrial in respect of the special verdicts so about the minor and major premise falls away in scots law and instead of the kind of system i guess i kind of not proven going it retains its its status as a simple verdict of acquittal that is a very hurried and probably somewhat muddled exploration of hundreds of years of Scottish little history no but hopefully that's of some limited assistance i mean what i would say too just in finishing that if there have been over the years people who have you know it's not a recent phenomenon to suggest that um this dispensation is illogical i mean i think we you can look back over the course of many many years to find people saying that and equally you can find people on the other side of the argument who think it's a valuable feature of scots law because i think it's what i would like to get on the record is you do sometimes have people saying you're not proven is a is the original scottish verdict and it has a kind of you know a very rich scottish history to it you know and that's actually it may well have a rich history but it's not the original scottish verdict it not the original scottish verdict system was not guilty and guilty and i think it's quite important to to i think to kind of be aware of that because it's not like and also that not proven wasn't introduced to the system as a matter of design it's not some great genius scottish idea it's historical accident it's nothing more than than that so whatever the reasons may be for keeping it or getting rid of it i think it being kind of some sort of original scottish great idea is is probably not one of them thank you very much for that and i know we regret asking the question because i think it is important that we have that understanding of the context and the the emergence because what i draw from that is that the historical development of the position we find ourselves in just now would it would it be fair to say that that has fueled a lack of clarity in the potential decision making of of juries i'm not sure well kind of i mean i it's probably fueled a lack of clarity in the general understanding of not proven and what it means and not guilty simply because it has had this history where it's kind of meant different things at different times whether the historical development now has led to jurors having a lack of clarity about it i suppose yes but perhaps only in the more recent history i think the lack of clarity for jurors now is simply that they are told as they should be because it's the law that there's no difference between the verdicts and they find that very confusing but your research professor leverick would suggest given your observations of the mock trials that there are a multiplicity of different views as to what this verdict means whether it's and the current didn't prove its case sufficiently or i want to send a signal to a and other absolutely yeah but that that comes about because there's a kind of definitional void that jurors can put their own meanings into and they don't all come up with the same meaning which in a sense is my point about the lack of clarity and because there is then in the minds of the jury in their decision making they are they are not perhaps making the the the hardest of judgments between guilty and not guilty you've marshaled a number of scenarios where different perspectives may may pertain as they make those decisions i mean yes i would agree with that now if i could move on could be the in relation to the the research work that you undertook i'd be interested to to hear any differences in perspective or in substance of view that emerged in the sexual assault mock trial versus the non sexual assault trial as to on this particular question yeah if we maybe start with probably the the slightly easier part which is kind of just how people understood and used not proven i think there was a distinct difference in the sexual assault trial because that was really the only trial where you saw jurors trying to use it to send a message to the complainer um that that she was believed um i think as well that was the trial if i remember correctly that was the trial where almost all of the cases came up where jurors used this as a compromise verdict because they couldn't agree um there might have been a couple of those in the this but it was definitely more common in the sexual assault trial that you would have jurors with very um very kind of polarised views about the the case and where they would use not proven just as a way to try and reach some sort of some sort of agreement um so in terms of just your understandings and the way that jurors were using the not proven verdict that was a little bit different between the two between the two trials um it was also slightly different um just in terms of the kind of the more the the the numbers game in terms of the verdict choices as well because and i'm going to refer to my notes because i always get this the wrong way around so just in in general if you'll just excuse me doing the general position they'll talk about the two different trials in general so in the three verdict conditions so if you had not proven jurors were more likely to go for an acquittal verdict or less likely to find that the the accused guilty so that's the direction it pushed whereas if you had 15 person juries they were more likely after deliberation to favour conviction and in the simple majority condition they were more likely after deliberation also to favour conviction now if you took the sample as a whole that was basically what we found um but those relationships or those findings were only statistically significant and i can explain what that means if you want me to in a moment were only statistically significant um in the assault trial except for the effect of the simple majority that the effect of simple majority verdicts was so strong it held across both the trials simple majority verdicts push jurors after deliberation to favour conviction and that held across both trials and was statistically significant with the other changes they were only statistically significant in the assault trial um which appreciate that i actually have to read this stuff to actually make sure i get it right it's quite a lot to get your head around but the the the difference that the availability of the three verdicts made was only significant in the assault trial i think is maybe the one thing to to get across um i think that might be because there's other factors at play in sexual offence trials then so i don't know if that's going to help at all yeah that that that that is helpful and it brings me on to the other area that i wanted to discuss which is broadens the topic out slightly into the interaction which your research in your evidence paper helpfully draws out for the committee between the relationship between the size of the jury the question of majority versus supermajority and the presence or non presence sorry the presence or the absence of not proven yeah and i'm interested in the relationship between those three factors because um one might take the view that for all the arguments that mr keen gave us a second ago that you know not proven's you know really not helping us to to have a clear criminal justice system but the implications of that need to be carefully considered in relation to the impact on the other two questions about what is the optimum size of a jury and what is the argument what are the arguments for simple majority versus supermajority and i wonder if you could air some of the dynamics of that the relationship within that triumvirate between jury size majority versus supermajority and and presence of not proven yes i think the the answer to that is i mean the one thing we can't do and this is what i said right at the start is kind of give a definitive answer as to you know if you if you change some parts of the system exactly what effect that would have on verdicts in real trials we can't do that could i interrupt your second person over it because what that's not what i'm asking i i quite i totally accept you can't do that but i think what i'm interested in is what are you what are the issues we have to consider to ensure fairness to and appropriate fairness to all parties because that and i stress fairness to all parties in who will be party to a trial so i'm going to say two things and if you let me finish both of them and then you can come back to me if you want so the first thing i would say is that they they push in different directions these changes so if you take away the not proven verdict that pushes the system a little bit more towards if i can use this phrase to be a little bit more convictiony um if you change the numbers on the jury from 15 to 12 after deliberation that pushes the system a little bit more towards being a bit less convictiony um and if you change the simple majority verdict and have you know a qualified majority or even a unanimity requirement which i appreciate is not what's in the bill then that will push you more towards a kind of a quittle so you've got these factors pushing in different directions we can't tell the magnitude of the changes but those are the directions that they push in so if you change one um you probably do have to think about the other two and we did actually and i've got it in front of me we did do in the research we looked at all kind of because it was eight different possible combinations of variables that we looked at so you could have you know 12 people unanimity three verdicts um you could have 15 people simple majority and two verdicts for example and we looked at the proportion of jurors that would have gone for guilty in each of those eight scenarios and it varied from 3% to 37% depending on the particular combinations of factors or design that you that you used so that they are all interlinked so i think if you it would be a little bit dangerous to change one part of the system without also thinking about the other parts of the system which i think is what you were we're getting at that that's that that's an incredibly helpful and illuminating answer if i can just press further just on one specific and last point convener is on the question of magnitude just to make sure that i'm understanding correctly what you've said in that last answer on particularly on the data point of 3% to the 37 point 37 point is that is that the scale of magnitude of difference that can prevail given all the potential permutations that you've set out so it is quite a wide variation yes but we have to remember that what we were doing was only looking at two very specific trials i cannot sit here and say that would make that difference in in reality but it wouldn't be it wouldn't be wise for the committee to ignore the fact that there is the potential in the relationship between that triumvirate to create a set of circumstances that might lead to really quite large variance which i would consider three to thirty seven to be really quite large variance yes but i would stress again i can see where you're trying to take but i would stress again i cannot say that is what was happening in reality these were two very specific trials that were designed for the purposes of research they tell us the direction of change but they cannot tell us the magnitude of it in in reality i'm really confident they show us the direction the changes go in i'm not as confident about saying what the magnitude of those changes might be but that was what we found for our particular two trials a difference between 3% and 37% that's tremendous the helpful information thank you thank you Pauline McNeill and then Russell Finlay thank you good morning it's complicated i'll say that i find it complicated i've been looking at this stuff for seven years now so what apologies if my question doesn't make sense for our time thanks to them so you said when you're answered to the convener in relation to explaining these trials these mock trials about the way that these mock juries view not proven that's against not guilty and you said we just in the the juries saying we just don't think the evidence is there so they would select not proven is it fair to say that it's really important when we're looking at this to frame this in the context that the direction from the judge will be to the jury as well as explaining what the difference is but is it not fair to say the key thing is that where you have reasonable doubt and is that not the key thing where the the jury will be told when there's reasonable doubt you should not convict if you work back from that is it not fairly easy if you're a juror who thinks they've got doubt in their mind about conviction they just basically it's going to be either way it's going to be a not guilty verdict is that fair to say that that's a context that's quite important i think so yes i wasn't saying necessarily that any of the what some of the things that jurors did were misunderstandings but that's not a misunderstanding that's actually a completely legitimate way to reach verdict you're thinking well i've got reasonable doubt in my mind i'm not sure therefore i'll go for an acquittal verdict and whether it's not proven or not guilty is in some ways neither here nor there so the jurors in that sense weren't behaving illegitimately they were actually doing exactly what they're supposed to do which is yeah which is if they have you know if the case they don't feel the case is proved beyond reasonable doubt they should be delivering an acquittal verdict yeah um thank you but there were also other areas where i think the understandings were a bit more problematic i mean that particular understanding i don't think it's problematic at all that's yeah um i wanted to just examine the paragraph on page six in my papers and this the the paragraph is actually in respect of the change to the majority required for conviction we see in the criminal law review that article that the scottish jury research found that jurors were more likely to favour conviction in a system of two verdicts that when the not proven verdict was available so is that paragraph wanted to examine i'll just read that out to me yeah so given proposals elsewhere in the bill to abolish not proven and reduce the jury size without parallel reform to the jury majority requirement this would have seen the government proposing a combination of variables identified as the most pro conviction in the research now it's this paragraph next the policy choice made by the government in the bill was a difficult one um and i think this is i do think this is where the complexity lies for me anyway raising the majority required to see 10 a 12 would run the risk of the other reforms targeted at least in part at the low conviction rate in sexual feintas may be thwarted now angela consens has already as cabinet secretary has already said that the reforms are not targeted at specifically reducing the conviction rate but i don't want to disagree with her she's the only one who can say what the what the purpose of the reforms is okay just when i read that it reads it might have thwarted the governments but the government may have started off there but what they're clear to us now that that's not the intention but more more important than you say but the proposal for eight out of 12 might be criticised for creating an acceptable risk of wrongful conviction and that's really what i want to ask you about do you have some concerns then about that the jury numbers do you want to i mean i think that there's important context in this respect i mean you know my understanding anyway no other adversarial common law jurisdiction convicts on the basis of those numbers that being said eight out of 12 is still a two thirds requirement but it's not one that's seen replicated in other adversarial common law jurisdictions and i think that that that is important to acknowledge i think you know i can we can only i can only echo what what what is in the article and that is an extremely difficult policy choice now i accept what you have said about the purported aims not being in respect of increasing the conviction rate but equally i understand why if people were in favour of that they might look at the majority as a central part of that problem if you perceive it to be a problem but but it is a difficult it's a very difficult choice you know i don't know if you've got anything you want to add i think only that i mean this for me as well is the most difficult part of the decision that has to be made and i can't sit here and say i have all the answers because because i don't i think one thing that's important to remember though is that any reforms we've speaking about this any reforms that we make they affect the whole system they don't just affect central events cases if it's not on the table to have a different verdict system or in relation to sexual offence cases they affect the whole system and so you would be having on the current proposals an 8 12 verdict would be enough for example to send somebody to prison for life if they were found guilty on 8 out of 12 for murder i'm slightly uncomfortable about that i just i don't have because we we didn't test an 8 to 12 system in the jury research so you know i have nothing to offer from the jury research particularly about that that that that use of the numbers but i do feel slightly uncomfortable about 8 12 and it just feels a little bit too low for a decision that has such magnitude for the accused person and i'm i'm not i think it's important to say that i'm i'm not coming from any particular perspective here i've done as much work on sexual offence cases and some of the issues that arise there as i have on preventing wrongful conviction you know i have no axe to grind here i really don't but i just for me 8 12 just feels a little bit low and as as mr keen said it's no other country that uses a jury system in the world to my knowledge would convict on 8 12 some some countries to actually literally have unanimity um canada a lot of the american states others would go for 11 out of 12 or would go for 10 out of 12 i don't know anywhere else that uses 8 12 i think that just very briefly on that i mean i agree with everything that's been said there but i suppose important context too is that the scots criminal jury is a very peculiar institution i mean no other system in the world convicts on the basis of a simple majority with 15 members and a requirement for corroboration in the same way that we have two so whilst i am definitely uncomfortable with with with the 8 10 figure i'm equally uncomfortable with the simple majority as as it as it as the law currently stands but we've got three verdicts in a simple majority is that not the important thing so currently there's the reason for a simple majority is because you've got three verdicts so that i think that's a really astute observation how how this is tended to tended to be justified in the past the shortcomings or the perhaps problematic aspects of the various idiosyncratic features of the scots criminal jury have been tended to be rationalised on the basis that it's a package so there's a corroboration requirement but there's also three verdicts so that's okay to have a simple majority i do not think that that is a particularly compelling argument and i think that over the course of history it has led us not to introduce reforms that perhaps we should have introduced because we perceive this package to be i'm not disagreeing no i just i just get my head around that you're uncomfortable with a simple majority but you do acknowledge that it's three verdicts and that's why it's a simple majority just just finally so so england is it 10 12 yes it is but i think what's important actually this is something i think that possibly is missing from the bill that you might want to consider in england it is is 10 out of 12 but there is a rule that the jury has to try and reach unanimity so they have to attempt all to agree and only if they can't agree i think it might be after two hours can they then if they wish return a 10 12 verdict and again that's pretty universal in all of the criminal justice systems that use juries that i know of that they will they have a rule that the jury must at least attempt to reach unanimous verdict and only then if they can't just a final quick question just because you mentioned aiming at corroboration so being a bit of discussion about the retention of corroboration would you have further concerns if we remove the requirement for corroboration under the current proposals in the bill which would be the qualified majority and two verdicts would the removal of corroboration give you further concern i think so yes i mean it's obviously quite it's kind of a difficult question to answer in in in its kind of generality but you know these features are are all interlinked i didn't understand that to be a proposal that was on the table but perhaps that's my my my misunderstanding essentially it's not it's just some that some witnesses or people with an interest have said they would have had discussions with the government about their view that corroboration and there has been a recent decision or some commentary i think by the judiciary about corroboration so who knows where we'll end up with this but there's been there's been talk but thank you very much i think johnson you want to come in with a supplementary and then i'll bring in because i just follow thank you because follow up really line of questioning from polio mcneil about the impact of the recent court of appeal decision in relation to aspects of corroboration in sexual offence cases do you consider that that makes does that affect that balance that i'm interested in yes i mean in in one sense everything affects the balance it's it's it can be quite difficult i mean i think the lord advocates reference that the judgment that you're referring to is transformative in certain respects as to how sexual offences are investigated and prosecuted it inevitably will will make the evidential requirement of sufficiency easier to obtain and so i think you can't i can't sit here and say it's not an important judgment i think it is a very very important judgment naturally it perhaps it does impinge upon this committee's consideration when it comes to to further reform thank you very much thank you thank you um Russell Finlay then Rona Mackay thanks very much um good morning morning um i find the the insight into not proven fascinating and very helpful to our considerations um we've actually struggled as a committee to find legal practitioners who support abolition to give evidence to us there's a very strong opposition to this um but also get the sense from speaking to different people that the battle they seem to accept that battle has perhaps been lost um do you get any sense can you give us any understanding of the sense of the how significant the the opposition remains and um even just what kind of continues to motivate this given the the direction of travel yeah i can do that i can perhaps give some sort of insight i mean i come to this as actually being a qualified and practicing solicitor to albeit academia is now my my first job um i have also not that anyone would would want to to read it but published a book chapter talking about the Scottish legal professions uh cultural attachment i think in some respects to not proven it was called the nightmare of history but which perhaps belies its message or gives away its message i mean i think that to answer your question though mr finlay i mean what why is it perceived to be such an important factor or matter i think there's there's maybe two two overarching reasons that that i've identified but of course this is just my opinion one of those i think goes back to what mr swinney was saying about the kind of package and maybe the discussion that we've had about you know these these features of the scots jury uh these three unique features rather of of scots criminal law and and people you know practitioners thinking well i have worked in this system and i have seen this system work that would be their view i'd imagine certainly um so that is certainly one factor i think too i mean we can't overlook the fact that in my view anyway some of this is what i perhaps would deem well what i call in the book chapter gava a notion of kind of scots legal nationalism if you will so kind of cultural attachment to to to our strong attachment to a feature of scots law because it is unique and it is Scottish and people who work in this system have pride in the system and i think that you know people may disagree with that other other groups may disagree with that but the people who get up and do the job every day you know they value the system and i think that goes some way to explaining the attachment to it but i would qualify all of that by saying that sometimes there is commentary on on not proven that that is just historically and accurate and because there is this lacuna in terms of a definition what does it mean you know it means the same thing as a quiddle i think i've seen lawyers fill that gap too you know in a way that the jury research shows that some mock jurors were doing and saying well it's actually the jury use it actually when they want to send a bit of a message and you know and that that doesn't align with with what the legal definition of it is now yeah is a nightmare of history still available yes all good bookshops i agree with everything that that you said um i think some of it is also just simply you know people nobody likes change it's i don't like changing my job it's you know if i have to do my job slightly differently because things have changed it's not a very pleasant thing but i think that it there are argument so at least one decent argument for not proven which is that it possibly does have a slight protective effect against wrongful conviction it's not like there's no there's no possible arguments against or sorry for the verdict yeah um however i think that argument if it holds is outweighed by a lot of the arguments against it so people who are attached to not proven and not necessarily irrational because there is that argument that can be made for it it it possibly does have a slight protective effect against wrongful conviction so but it's just i think that the other arguments against it are much stronger now i spent some time reading the 2014 academic expert group report over grief yeah yeah it's lengthy that's huge yeah there's quite a significant chapter on jury sizes and the issue of majority v unanimity and if you if you take the and this is a brief summary but if you take England, Wales, Ireland, Australia, New Zealand, US, Canada 12 is typical and the chapter describes scotland as being very peculiar indeed with 15 and the other issues we've touched upon and in those jurisdictions almost all it's either 10 or 11 of 12 with various other considerations sometimes coming into play such as the seriousness of the offence or the length of time that has been spent considering not being able to reach unanimity now the faculty of advocates have said in response to the bill that what's being proposed in scotland would be to reduce the 15 to 12 and for the verdict to be reached on a basis of 8 of 12 and their exact quote to us is the inevitable consequence of scotland adopting a majority of 8 from 12 would be an international communication that scotland places less value in protecting its citizens accused of crime than any and every other nation with a jury system which is a very strong thing to say and I note in yours submission to us and you've touched on this fairly as well you welcomed 8 of 12 but not unconditionally you say somewhat tentatively and you also say that a judgment call needs to be made so now you're here today what is your judgment what would be the ideal number I don't think I can give you an answer I know you want an answer to that but even just a sense I mean because you're not comfortable with 8 of 12 clearly if I had to pick a number I would probably run with a system that's been tried and tested in other nations not necessarily just England and Wales because I realize that has sensitivities but I would probably want to see that the jury strives initially for unanimity but if they can't get there that maybe 10 out of 12 would do but that's you know I wouldn't say that's a particularly firm view but I that's helpful yeah and do you have you on that as well yeah I think I think if pushed and I am being pushed that that that that is where I would end up in terms of my thinking at the moment but I equally do see arguments that come from other organisations which talk about well if the purpose and I know we've been told that's not the purpose but if we're concerned about complainers and sexual offences cases then that particular threshold might might have an impact but but my my own personal view is alliance of professor leverick's I think that if you if you strive for unanimity but you can't get there you get 10 then that seems to me to be to be a reasonable place to end up some jurisdictions it's two hours it's six hours it's we're given any sense of what that might be do you have a view as to what Scotland might want to adopt if that was to be I really don't have a view on that that's I think my view would be it's important that the for me I think that the jury should try and reach you in an enmity because although we haven't really I haven't really had that kind of cultural sense of doing that in Scotland because we've always had majority verdicts but I think if you value juries and you value deliberation I think there is something to be said for trying to get the jury to all agree because then I think that's the best way of actually bringing out you know the various different arguments perspectives various different views on the evidence to make sure the case to really kind of give the public the confidence the case has been discussed properly as to how long you ask them to do that I I really couldn't say what about the issue of perhaps the seriousness of the crime requiring unanimity in certain cases I think that's just I wouldn't have a system that complex where you have different requirements for different I mean where would you draw the line what would you do if you had two different charges on the indictment that were I just think that's too complicated okay yeah let's see in terms of your research there'll be people in the legal profession who will want to question the methodology because they don't agree with a lot of what's being proposed where did you find your mock jurors how were they found how are they found they were recruited by ipsos mori through a mixture of on-street recruiting so they I mean I've actually done I have a previous life where I used to actually work as a market researcher so I have some insight into this so a mixture of on-street recruiting where you literally kind of go to a public place and you approach people and say would you like to take part in a piece of research they did some door-to-door recruiting as well so it was just kind of going out basically into places where you would find the general public and saying we're doing this research project with people paid yes they were paid yes and so they're all willing participants because I mean one thing that perhaps differs from real jurors is the sense I get anecdotally is most of them are rather reluctant but I guess there's nothing you can do about that I'm not really sure that makes any of that makes much difference to the findings to be honest I mean they were paid because we were asking them to give up four or five hours of their time I think we had to pay people it wouldn't be fair for what we didn't do otherwise very few people who were approached by ipsos mori actually refused it was I don't have figures on that but just from you know the sense of when we're doing it at the time very few people who were asked to take part actually refused to take part so in that sense you know that some people who said our research is is different because while it's all volunteers and so you're guessing a completely different sort of segment of the public than you would get in real jurors because they're compelled I don't think there's much in that argument to be honest because a most of our jurors or people who are approached on the streets did agree to take part but be everybody that we had on our mock jurors was eligible for jury service you know that they could easily be real jurors in a real case have you been jurors in the past I'm not allowed to be because I'm a qualified lawyer I actually could be because I didn't go all the way through to qualifying as a lawyer but and the one time I would love to be on a jury the one time I was actually asked to do it it was literally about two weeks after I'd had my daughter so I just couldn't get there and they've never asked me since so oh well they probably reject me if I was there to be honest I think there's every chance yeah thank you thanks very much okay thank you rona mcaith thank you convener yeah my question was going to be exactly the same as lots of families and into trying to push you in to see what your preferred balance would be and but I just want to get on record going back to sexual offence cases that the not proven verdicts used disproportionately in rape cases and not proven made up 44 percent of rape and attempted rape criminals compared with 20 percent for all crimes and offenses so that's a you know a huge balance yeah so your research has has led you to believe that we should abolish the not proven verdict and you've answered the question about you can't really see what your preferred balance would be can I ask you again this is it there's a tricky one in your estimation what do you think the legal profession given that this would happen would be acceptable to them what do you think they might suggest as being an optimum you'll have to ask the legal profession representatives I just with your background maybe you would sort of I mean yeah I just I just I really wouldn't want to speak on behalf of every solicitor and or an advocate in Scotland I know I understand no that's fine I just wondered if there was a kind of an easy path that you think all that might be acceptable if you went along those lines but I appreciate what you're saying yeah I need to ask them sorry I wonder if I can just come in and it's picking up a little bit on a point that you made earlier about the potential for not proven to almost be used as a compromise verdict and that links to the issue of public confidence and in your submission in terms of the arguments of set out against the retention of not proven verdict you say the first argument is around stigma which we can become to but the second argument is that it risks a loss of public confidence in the criminal justice system as it allows jurors to use it as a compromise verdict bring deliberations to an end rather than engaging in more rigorous discussions and there is empirical evidence from the Scottish jury research that the verdict operates and precisely this way with the participants using it to bring deliberations to a premature end so I'm interested in what just how important is public confidence in our deliberations and what your observations may be in and around that particularly from the research that you've done yeah I've I've obviously thought about this topic a lot over a long period of time I've actually come around to thinking this is probably the strongest argument for getting rid of the not proven verdict because it was now okay we have to put all the qualifications in place that it wasn't real trials it wasn't real juries however jurors were distinctly using it in our research as a way to actually say well this is all getting too difficult you know let's just compromise now we don't know if that happens in real trials maybe it doesn't but I think if there's even the slightest risk that that might be happening in real trials that's actually a very strong argument against the verdict because another strand of research I personally wasn't involved with but one of my colleagues Professor Vanessa Monroe was involved with she spoke to complainers in sexual offence cases whose case had ended in a not proven verdict and one of the things that was coming out very strongly from that is the people that she spoke to felt that the not proven verdict just it gave juries two easier way out that that they really wanted to know that their case and the evidence had been discussed as fully and as properly as diligently as it possibly could and they they felt that getting a not proven verdict might have meant that the jury just didn't go there they avoided kind of other more difficult deliberation that they might have had to have if you only had a not guilty and not proven verdict I think it's really important that the public complainers everybody has confidence that juries I mean this is such a crucial decision that juries are making that has such a massive impact on lots of people's lives and I just think the public confidence argument is a really strong one we should be we should be making sure that juries treat that with the most the seriousness and the diligence that it deserves and I think that having a not proven verdict there is a risk that they maybe don't do that if that makes any sense but thank you amen can do you want to add anything to that I mean I just think I'll probably echo all of that and see that actually or or emphasise rather that public public confidence in the criminal justice system is absolutely key and that crosses both sides of the bar so to speak in in the sense that we need to have witnesses who come to court with a view that they will be treated fairly and that the system is logical and coherent and equally we need to have individuals who are accused of crime who will believe or do believe that the system will treat them fairly and protect their rights so I think public confidence is at the absolute core of what the committee is considering with this bill I mean my own personal view is you know I can say before it was before it was perhaps trendy to say so in certain circles before the jury research was published I'd long been of the view that the not proven verdict in its current dispensation was a logical and irrational and that if people were going to design a system they would not design the one that we have and that surely the law above all else should be about logic and clarity and you know those those those particular factors and not proven in my view with the situation we have now does not does not give us that so I to go back to your other question I think it's key and I think that you know that perception that's been spoke about from Professor Monroe's work from people who have actually given evidence in these cases you know the notion that you know that it's some sort of halfway house pertains with them and that is damaging yeah but thank you and I'm just supposed just to pick up on you and the point that you made Professor Leverick about sexual offences and and in your again in your submission you've set out that there was also evidence that this use so use of not proven was read into the verdict outcome by sexual offences complainers undermining their belief that jurors discharged the weighty responsibility placed upon them with appropriate diligence and so that's quite a powerful commentary that comes from that's not you know my words that that's the words that was coming from or coming from the people that the Professor Monroe spoke to um I mean it's difficult because it's hard to say that if you know if the complainers that she spoke to if they've received say at the end of their case and not guilty verdict I'm not sure they would have felt a lot better because obviously if you're going in as a complainer what you actually want is conviction but I think this did come across very strongly that the not proven verdict people felt was particularly difficult for them to take because as you say that they felt there was a risk that the jury just hadn't discharged its function properly and if you didn't have that verdict they would have been forced to engage in further difficult deliberation that might have resulted in a guilty verdict it might not but at least they would have known that the case had been discussed as fully as it possibly could be thank you okay I'm going to bring John Swinney back in then Sharon Dewey thank you I wonder if our panelist made a comment about the obviously the the unanimity provision in certain other jurisdictions and I'm interested just to understand why we have a majority tradition and not a unanimity tradition do you really have that I can certainly perhaps do a bit more research and find out and what I what I know Mr Swinney is that you know I think collectively or we've not culturally rather the jury has not been viewed because of it the way it's developed in Scotland it doesn't have the same kind of how shall I put it the notion of a collective decision has always been something that that doesn't have the same strength here than perhaps it has in for example America in Canada where that is an absolute requirement I don't want to start guessing and I can go in and look into this and provide you with some information but I suspect that because we've we ended up with the jury the size that we did 15 members and the way of delivering a verdict that yes that they're it developed organically over that period there is what there is there is one kind of definitive it's actually a phd thesis on on the history of the scots jury and I can I can certainly go away and provide information in that respect I think that that's in a sense that answer is very helpful because I think it adds to the committee's consideration of what we must think about in relation to go back to my earlier questions the relationship between jury size majority versus super majority and potential abolition of not proven because I think that answer and the lack of absolute certainty about why we are where we are is part of establishing what's the proper relationship between these three factors because I I can see you know for example we went to a unanimity position that strikes me as being a really significant move in Scottish jury approaches and requiring a very significant raising of the bar for potential conviction which you know must of course be substantiated but there also must be you know there must be to go back to your point earlier on Mr Keane there must be public confidence in the criminal justice system and we have to be careful that we don't put the bar too high up absolutely I think I would agree with that in its entirety I mean yes we can get guidance from from other similar legal systems and jurisdictions but equally those jurisdictions do things in a very different way than we do them in Scotland you know for example we don't allow juries to hang in criminal trials in Scotland you know nobody has really touched upon that thus far but that is an important consideration when we talk about our cultural approach or historical approach in Scotland so yeah I mean without speaking unnecessarily on that topic I would agree entirely public confidence has to remain key and we need to be sure of the relationship between all these things and Scotland's cultural and legal historical heritage when it comes to trial by jury thank you it's a mess confused and i'm just thinking so majority supermajority simple majority unanimity so on what you said I think you're in favour of unanimity no no no but going for 10 out of 12 trying to try to try to because that just encourages a good discussion but I think actually having a an absolute unanimity requirement I don't think personally I would go for that so it's striving for unanimity but 10 out of 12 yeah so that was with you really pushed me on the 10 out of 12 thing I'm not you know I'm really not sure about that but yeah right okay just a wee quick question then I was actually the convener had asked the one about the compromise verdict for not proven but you've answered that so just the one on the changing of majorities to two-thirds the crown office suggested introducing a system for retrials should the two-third majority just be missed so it's like seven jurors out of 12 so do you think that's something the bill should have incorporated in it possibly I mean I'm not sure this is a slightly a slightly dodging the question but I'm not sure it would make that much difference because I think what we would probably find is if we introduced eight out of 12 almost all juries would get there I mean the evidences from other other countries that have qualified majorities or even unanimity requirements is that the jury almost always does eventually reach them and actually hung trials are very very rare so I'm not sure I have a firm view on whether we should allow for the possibility of retrial after a hung jury but I think whether we do or we don't it's probably not going to make an awful lot of difference I don't know if you haven't discussed this I don't know if you agree with me or not I think so I mean we've never allowed I mean juries have to reach a verdict in Scotland again talking about that kind of cultural context and historical context we've never had a system in the criminal justice sphere where we allow juries to simply not agree they need to reach a verdict a verdict needs to be delivered so it would be a significant change to introduce a mechanism by which retrial could be sought and authorised if if there was an inability to reach a decision so although I suspect that's not that's not quite what your question was it was about the crowns the crowns proposal that they should be allowed to seek a retrial tentatively I suppose I think that could be it could be useful but I would need much more detail I mean what are the criteria what what's the court's criteria for granting that you know is it simply the split in numbers are there other factors public interest test I think so because obviously you know it's staging having a retrial costs money and time and you're bringing all the people together again and I think that in England it might even be as low as 1% I think of of criminal trials results in a hung jury in a retrial less it's lower than 1% because in England you have with a hung jury but they don't reach the majority you can apply for a retrial but it's it's lower than 1% cases where that actually happens when jurors are forced that's the wrong word when jurors are pushed towards trying to reach you know a certain qualified majority or unanimity they generally do do that even in Canada where they have an absolute unanimity requirement I was looking at this the other day the it's only 1% of cases where jurors actually fail to get there which I admit to be 1% of you know of the 100 000 cases is it's perhaps a significant number of potential retrials but it's a very small minority of cases where the jury doesn't eventually reach um whatever the requirement is something that might be needs a bit more conversation I'm just looking at the comments pushed towards an almost always get a verdict but that still means four out of the 12 are saying that the person's innocent if you're going for a conviction of guilty so okay thank you thank you just on the point of jury's been unable to reach a verdict the most recent research I think is from New Zealand and from 2000 which shows the hung jury rate of 8.7% which is quite significant and I just wonder whether if the bill doesn't include it the ability to you know have a retrial whether there should be some kind of robust post legislative scrutiny of the impact that would then require the Government to revisit that particular issue I think what I might would say about that particular piece of research though is that it's possibly slightly misleading because they included in was 8.7% did you say yeah they included in that any case where say there was multiple charges and were in any one of the charges they failed to reach a verdict say that they might have reached a verdict on the three most serious ones but not in terms of perhaps a minor offence or something so I think the 8.7% is okay it's it's probably a little bit higher than it's a slightly misleading figure yeah so I mean we we don't know but we might expect the numbers here to be similar to what we see elsewhere and that's maybe a bit more unusual but notwithstanding what the number might be should there be that safeguard potentially of a post legislative scrutiny I mean possibly it's yeah I mean yes it's certainly something that would be worth looking at but we we kind of have to work out what we're doing first and then I think with any of these changes I think I think post legislative scrutiny would be a good idea and then of course decipher what might be considered to be normal on regular and what might be considered to be concerning yeah I mean that's the difficulty with all of this is that there's very few cases where you can actually say for sure what the correct verdict ought to be and what the correct outcome ought to be it's you know only so it's whatever kind of changes in the balance of verdicts happens after we put the proposals into place it's quite difficult to evaluate that because we don't you need some sort of objective standard to kind of evaluate that and it's it's very difficult to know you know what what is the right rate of conviction for example just it's there's not an easy answer to that but I still think post legislative scrutiny is a good thing yeah I mean just interestingly 1994 the Scottish office estimated that the possibility of hung juries were to be introduced into scots law in line with english practice the number would take place annually we'd be expected to be in single figures so it doesn't appear to be something right on the basis of that research anyway that it's going to be even more thoroughly than I have I don't know about that thank you thank you very much okay thanks thank you John Swinney wanting to come back in and Sharon Dewey one other issue that I was interested in in your view about is in relation to um you know all of the dynamics around about um the issues I've been raising with you this morning as to whether in striking trying to strike the right balance the appropriate balance there is a need for us also to consider given whatever implications there are of those changes any revisiting of the approach or the threshold for the involvement of the Scottish criminal cases review commission in looking at potential miscarriages of justice if that would be if that is a factor that of itself needs to be considered as part of this um you know the this pursuit of the right balance to be struck I did used to work there but that was that was a long time ago I put that one on to you on the basis you've actually worked for them no but I mean I think that you would have to ask them but I guess I'm not quite following exactly the the thread of the question in the sense that what the point I'm making is if you if for let's for arguments sake say that the government's proposal prevails and it's eight out of twelve yes you've expressed doubts you've expressed doubts and reservations to us about that being the appropriate balance and I'm just airing are there other issues that the committee needs to be mindful of if the government was intent on pursuing that approach that to maintain that point that we've discussed about the conference in the criminal justice system I do I do understand that but I don't understand what the commission's role would be in that because you know we don't ask juries for a breakdown in terms of the split of a verdict currently there's obviously a body of law that really prohibits any exploration of of their discussion of their evidence the commission can can consider cases whereby they believe there has been a miscarriage of justice and it's in the interests of justice to refer that case back to the appeal court but you know I don't quite draw the connection between how a a jury verdict I mean there is a ground of appeal in scots law of unreasonable verdict but but it is very infrequently encountered in the legal system and it has more to do with the jury behaving somewhat you know or patently irrationally in respect of the perhaps charge that they've been given than it does to do with well did they just get this wrong or what you know did they go for it and you know that the internal dynamics which which we just really don't know anything about because of the contempt of court act and the common law is that protects the kind of sanctity of those discussions so I think I would agree in general that the post-legit scrutiny is a good idea and that we would need the committee and we'd need to think very carefully about measures that could be introduced but we don't really have a ground of appeal in scots law that you know the jury just made a decision that we disagree with I could just add to that I can see where you're going with this now because you're thinking well correct me if I'm wrong but I think you're thinking well maybe if there is a slightly increased risk or increase if there is a small risk of wrongful conviction that might result from this do we have to look at other protective measures that might adjust that that's where you're going with it isn't it and I think I think that's something we should possibly look at but I'm not sure the Scottish criminal cases review commission is necessarily in the right direction to go with that I'm not sure that would that they're not really going to do anything to help prevent wrongful conviction in the first instance I think if we were going to travel down that line of thought I don't want to open this up to kind of things that are outside the remit of the bill but it might be worth looking at actually some of the some of the research on some of the causes of wrongful conviction and some of the more problematic types of evidence such as you know potential for false confessions perhaps eye witness identification evidence and so on some of the things that we know can actually contribute to wrongful conviction and perhaps trying to think about well do we address those as well as we possibly could so I can see where you're going with that but I would probably my train of thought were taking a slightly different direction to you towards looking at the sort of things we can do to prevent wrongful convictions kind of happening in the first place. Thank you, I was just going to touch on what I was going to ask there and the joint submission to the criminal law review you noted that changing the majority to two thirds might create an unacceptable risk of wrongful conviction so I was just going to see if you could expand on that a wee bit more. I mean only really what what we've said already in the I mean I suppose this is changing it to two thirds is probably not quite the right way to put it is it because actually prior to this it was it was it was what eight out of fifteen so that's not the change that's the important thing here but actually having eight out of 12 as I said earlier to me does just feel a little bit dangerous in terms of wrongful convictions because as I said before you would have a situation you know where actually quite a sizable proportion of the jury didn't think the person was guilty but you could still have a conviction. I've already put on record I think that that that is my tentative position too but I suspect you speak to other academics they would disagree with that you know I think that it we call it a difficult judgment call because that's exactly what it is for politicians and that where the where politicians eventually land in that respect is is hard and there are arguments on both sides for for having eight for having 10 for having 12. Public confidence comes into it two doesn't it because you know you have the most important thing of all is have a criminal justice system that has the confidence of the people of Scotland and eight out of 12 is that something that would command public confidence I'm not sure I'm not expert on these things but I suspect if you actually laid it out to somebody that you know if we don't just talk specifically about sexual offence cases but all cases the idea that you could be you know sentenced to life imprisonment on the basis of eight out of 12 people might be a little bit uncomfortable with that having said that though we have operated with the system of majority verdicts for many hundreds of years so maybe not just as quickly I mean equally on that notion of public confidence I'm sure that if you spoke to those who represent victims of crime they will tell you that they would be uncomfortable with 10 so these are difficult difficult decisions that need to be made but understanding that dynamic and the kind of cultural heritage is key I think thank you okay thank you I wonder if I may just bring ask one final question and again I'm going to come back to your submission and it was something that I noticed and I'm quite curious about and it's staying with the issue around safeguarding against wrongful conviction in particular in and around sexual offences so in your submission if I may just quote you say that the use of the verdict of not proven as particularly prevalent but particularly problematic in sexual offences cases where it may enable juries to give weight to myths and stereotypes and avoiding verdicts of conviction we will be looking at these issues in future sessions and while there is no clear evidence that the verdict does in fact safeguard against wrongful conviction its existence has been used to justify scots law not introducing other measures which would meaning that it may in fact be actively harmful in this regard so I'm just wondering just looking for a bit more commentary around that right it's at me yep so whether there's two different things going on down in relation to the second point the idea that the not proven verdict has been used to get a justification for not introducing other measures that might help prevent wrongful conviction that there's been a couple of examples of that in the past with various kind of criminal justice reform committees that have been set up for example the one that springs to mind was there was a committee I think it was the bryden committee it was a while ago now we're talking back in the 1980s maybe possibly in the 1970s but they looked at some of the difficulties of wrongful convictions based around mistaken eye witness identification which is a one of the kind of known causes of wrongful conviction and they decided not really to do anything because they decided that actually well we've got measures in Scotland already that protect against wrongful conviction one of which is the not proven verdict um so they didn't actually kind of bring in any particular measures to address the the mistaken eye witness identification problem um because we've got all these other features that already kind of adjust wrongful conviction in a general sense um so that that's just one example of that um and then so the first point is a slightly different one which is around just the way that the not proven verdict is used in in sexual offence cases and this is is starting to interact a little bit with later parts of the bill um but it it there was evidence from the jury discussions that some jurors did um hold kind of quite what false and quite prejudicial beliefs about sexual offences and sexual offence complainers and this did seem to interact with the not proven verdict in ways that I can't really quantify but um ways where it kind of it left a space where these things could creep in um it's maybe not the place to say more about that now because obviously that's that's a different part of the bill um that thank you you know that that that's really helpful um okay I think we will bring our session to a close thank you both very much I think that's been a really helpful and informative session thank you for asking us thank you for having us so thank you again and that concludes our public agenda item for today at our next meeting on the 6th of december we'll continue with evidence taking on the victims bill and we'll hear from representatives of survivors of crime around the abolition of the not proven verdict and jurors majorities I can get my teeth back in so thank you and we'll now move into private session thank you