Time will tell effect of momentous changes in 'flagship' justice bill

Ian Duguid KC, President, FACBA

THE Victims, Witnesses and Justice Reform (Scotland) Bill recently passed through the parliamentary stages and awaits a statutory instrument for legal effect to be given to the Bill’s provisions.

It was described in the press as the Scottish Government’s “flagship bill” to improve and modernise the justice system.

Such a process should be underpinned by a desire to improve the justice system for all persons who encounter it.

Our reputation as a country is founded upon a balanced and fair justice system. When an imbalance becomes apparent, it is an appropriate time to adjust the scales.

In the case of some of the innovative provisions, the changes are overdue. Anonymity for complainers in sexual cases, a Victims and Witnesses Commissioner, a Victim Notification Scheme for victims to be advised of the release of prisoners who have served at least 18 months – these all come to mind in that regard.

 

Certain changes on the face of it will require a significant commitment from the public purse, such as Independent Legal Representation for complainers in preliminary hearings before the new Sexual Offences Court, the provision of evidence transcripts to complainers following trial proceedings and the office of the new Commissioner. It is to be hoped the Government has factored in the overall cost, without detracting from the singularly important consideration of funding a justice system which serves every part of the community and not selected groups.

Endeavouring to introduce a more compassionate experience of the system for victims, complainers, and witnesses is commendable and enjoys the full support of the Faculty of Advocates Criminal Bar Association.

The most notable reform has been the abolition of the “not proven verdict”, a distinctive fixture of Scots Law for the last four centuries.

The case for change has in some quarters been seen as unconvincing. Three verdicts for a jury rather than two has long been viewed as idiosyncratic, but the case for change is largely founded upon a perceived unfairness that accused persons may have been walking free when they should rightly have been convicted, and that juries might have been failing to understand the implications of the verdict. If this is founded upon research from “mock jurors”, our position is that this is no basis upon which to legislate for change.

Realistic research with “real-live jurors” ought to have been undertaken to identify or negate any perceived injustices. If politicians and special interest lobbyists are motivated by a desire to improve the conviction rates in sexual offence prosecutions, the idea that favouring one part of a community over the interests of another is simply altering the balance and undermining the ethos of “justice for all”.

By removing the third verdict, seen as the counterbalance to the simple majority on a jury of 15, we have passed up the opportunity to adopt the tried and tested system of our nearest neighbours down south, with a jury of 12 and a majority of ten. Quite why is unclear. We have legislated for a hybrid regime, which has no obvious precedent across the world, of 15 jurors and a majority of ten.

Presently, no one can foresee the effect of this momentous change. Time will tell whether a just and fair balance has been achieved for all who encounter our legal system.

This article first appeared in The Scotsman