Victims, Witnesses and Justice Reform (Scotland) Bill documentation: FOI release

Information requested

1. All documentation held by the Scottish Government, including correspondence sent and received, minutes/notes from meetings, briefings, and analysis, about the not proven verdict being scrapped, from the last three months.

2. All documentation held by the Scottish Government, including correspondence sent and received, minutes/notes from meetings, briefings, and analysis, about exploring the impact of rape myths and improving access to justice for rape victims, from the last three months.

On 24 June I wrote to you asking if you could clarify what you meant by material on "improving access to justice for rape victims," explaining that this could be interpreted very broadly. You responded: “My specific ask is for any work done to compensate for jury less trials being axed from the criminal justice bill”.

Before I move on to respond to your request in more detail, it is important to be clear that we would not characterise any piece of work as being 'compensation' for the pilot of juryless trials being removed from the Victims, Witnesses, and Justice Reform (Scotland) Bill. However, when announcing her intention to remove the pilot from the Bill, the Cabinet Secretary for Justice and Home Affairs set out two specific strands of work that would be taken forward to help explore and address the underlying issues the pilot was seeking to address. The first of these was amending section 8 of the Contempt of Court Act 1981 to allow for more detailed research with jurors. A Scottish Government amendment to this effect was passed by the Criminal Justice Committee at Stage 2, and the Committee's detailed discussions on the amendment can be found here: Official Report - Stage 2 VWJR Bill, 26 March 2025. This amendment will not in itself enable the exploration of rape myths or improve access to justice for rape victims: it simply removes the legislative barrier to research into jury deliberations, including research in these areas.

The second strand of work the Cabinet Secretary set out was the establishment of a working group to look at non-legislative actions to challenge and reduce the impact of rape myths. I have therefore focused on this in responding to Part 2 of your request.

Response

I enclose a copy of some of the information you requested.

Some of the information you have requested is available from the Scottish Government and Scottish Parliament websites. Specifically, information relating to the abolition of not proven, from the three month period 24 March to 24 June 2025, can be found at the following links:

Programme for Government 2025-26
Bill overview - Victims, Witnesses, and Justice Reform (Scotland) Bill: factsheet - gov.scot
Victims, Witnesses, and Justice Reform (Scotland) Bill: Consideration prior to Stage 3
Not proven verdict/jury reforms - Victims, Witnesses, and Justice Reform (Scotland) Bill: factsheet - gov.scot

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you have any issues in accessing the information from the websites listed, then please contact me again and I will send you a paper copy.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 28(1), 29(1)(a), 30(b)(i), 30(b)(ii), 36 or 38(1)(b) of FOISA apply to that information. The reasons that these exemptions apply are explained below.

Section 28(1)

An exemption under section 28(1) of FOISA applies to some of the information you have requested. Section 28(1) exempts information from disclosure where disclosure would, or would be likely to, prejudice relations between administrations in the UK. In this case it applies to some exchanges between the Scottish Government and the Northern Ireland Executive. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. If we disclosed this information the Northern Ireland Executive would be likely to be more reluctant to communicate as openly with the Scottish Government in future.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release to support transparency in inter-governmental discussions. However, there is a greater public interest in maintaining close working relationships between the Scottish Government and the Northern Ireland Executive, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as exploring the impact of rape myths and improving access to justice for rape victims. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

Section 29(1)(a)

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested, because it relates to the formulation or development of the Scottish Government’s policy on abolishing the not proven verdict or exploring the impact of rape myths.

This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether their discussions will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development. This is particularly relevant in the context of legislation that is live before Parliament, where premature disclosure of policy still under consideration could undermine the development of the Scottish Government's position on that legislation.

Section 30(b)(i) and 30(b)(ii)

Section 30(b)(i) applies to some of the information requested because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. Section 30(b)(ii) applies to some of the information requested because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.

These exemptions recognise the need for a private space in which officials and Ministers provide frank advice and discuss options freely, before the Scottish Government reaches a settled public position. Disclosing the content of free and frank discussions on the abolition of not proven or on exploring the impact of rape myths could substantially inhibit such discussions in the future, particularly where decisions have not been taken.

As before, this exemption is subject to the public interest test. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, but there is a greater public interest in allowing a private space within which officials can share advice and views fully and frankly with Ministers and other officials as part of the process of exploring and refining the Government’s policy position, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank provision of advice, undermining the quality of the policy making process, which would not be in the public interest.

Section 36(1)

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested, because it is legal advice and disclosure would breach legal professional privilege.

This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested, because it is personal data of a third party. In this case, the exemption has been applied to the names and contact details of individuals, and disclosing the information would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the public interest test, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202500472621 - Information released - Documents

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