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Criminal Justice Committee Evidence Session, 8 December 2021, Further Evidence

Letter from the Scottish Courts and Tribunal Service to the Convener, Criminal Justice Committee, 24 December 2021

Dear Convener

I write further to the Criminal Justice Committee Evidence Session on 8 December 2021, the agreement to provide additional information, and the subsequent email of the Senior Assistant Clerk to the Justice Committee confirming details of the information sought. Our response, in so far as possible to the three areas (domestic abuse courts, transferral of rape trials and proposals contained within the Review in to the Management of Sexual Offence Cases led by Lady Dorrian (the Review)) in which further information is sought is detailed below.

Independent evaluation of the domestic abuse courts & provision since

As indicated in evidence an initial pilot Domestic Abuse court operated in Glasgow Sheriff Court. This occurred in October 2004. An evaluation of this pilot was undertaken and a report published in 2007- Reid Howie Associates, Evaluation of the Pilot Domestic Abuse Court, Edinburgh: Scottish Executive Justice Department, 2007.

This report was published on the Scottish Government’s website at the time and is now available at:

https://web.archive.org/web/20130205035916/http:/www.scotland.gov.uk/Resource/Doc/173485/0048418.pdf 

The model adopted in Glasgow involved the allocation of a designated court within Glasgow Sheriff court for domestic abuse cases with a dedicated number of sheriffs, a dedicated procurator fiscal; supported by social work, Police Scotland, ASSIST, Victim Information and Advice (VIA) and Victim Support Scotland. It dealt with summary criminal issues, covering all stages of a case including first appearance custody cases, intermediate diets, trials, reviews and deferred sentences. Following this pilot and the aforementioned evaluation a number of specific Domestic Abuse court pilots or courts were implemented or specifically focused court programming changes made to address this category of offence.

Each Sheriffdom has applied its own unique response to this category of cases including the use of Domestic abuse cluster courts. In Glasgow, for example, specific courts at first calling, intermediate diet and trial were established to address the Sheriffdom’s domestic abuse caseload, with a dedicated court sitting to deal with non-trial business. While in some Sheriffdoms, for example North Strathclyde and Tayside, Central and Fife, there is not a separate specialised Domestic Abuse trial court, akin to the model used in the Glasgow pilot, a number of dedicated trial slots are allocated for domestic abuse. In Tayside Central and Fife these slots are earlier in time than the slots for the mainstream trials.

Understandably the national lockdown which occurred in March 2020 and the requirement to comply with Scottish Government guidance and health and public safety requirements including social distancing has posed challenges in maintaining arrangements generally.

Notwithstanding that, even at the start of the pandemic where there was an immediate
reduction in summary criminal trials, a focus was placed on the types of trials which could take place, and this focus included fixing trials for those cases relating to domestic abuse, sexual offending and violence. Currently 95% of domestic abuse court cases are heard at the Sheriff Summary Court. In addition to our strong court recovery programme which we commenced in September 2021, which has included significant additional sheriff summary trial court capacity, particularly in Glasgow, we have sought to use developments in technology in so far as possible to address this category of case in particular. Since May 2021 the virtual summary trial pilot in Aberdeen, led by Sheriff Principal Pyle, has focussed on domestic abuse cases.

These trials are fully virtual with only the accused person and their solicitor present in the court premises, with all other participants joining from different locations. A National Project Board established to oversee the pilot, chaired by Sheriff Principal Pyle, has undertaken an evaluation and their report is imminent.

Given the context in which the request for information was made, namely specialist courts, the Committee may also find it helpful to review the terms of paragraph 3.12 and 3.13 of the Review in which reference is made to domestic abuse courts with associated further references including Connelly. C, Handling Domestic Abuse cases: a Toolkit to Aid the Development of Specialist Approaches to Cases of Domestic Abuse, Scottish Government, May 2008.

Change of trial locations in the High Court for rape cases

The SCTS fully appreciate the potential for additional stress and anxiety that can be caused to a complainer, witness or accused in a court action, should an identified High Court location change, particularly in cases in which rape or other sexual offences are alleged. Having reviewed the information available and to clarify the position referenced in evidence, in 2018, we took steps to minimise the number of trials that could be potentially relocated in so far as practicably possible, with a particular focus on rape cases. This practice included changes to court programming and limiting, at that time the number of locations where High Court cases, which include rape, are heard to four locations- Glasgow, Edinburgh, Aberdeen and Livingston.

To address the backlog in trials caused by the pandemic, which in itself has the potential to cause additional uncertainty for complainers, witnesses and the accused, we have, as part of our recovery programme, extended the number of trial courts and locations available generally. Owing to our role in supporting the justice system, responding to indictments lodged by COPFS and ensuring the safe and efficient running of the courts and minimising delay being a factor which can also negatively impact on complainers, witnesses and the accused, and due to factors outwith our control it has not been possible to entirely exclude the possibility of a move in court location occurring for a specific type of alleged crime. This is particularly the position for rape and sexual offences cases which now form a significant, and continually growing proportion of High Court trial business. Having now had the opportunity to review the data available, it indicates that some relocations have occurred since 2018.

The principal reason a relocation may take place is to utilise a court room(s) that becomes free.

Reasons for this unexpected capacity may include an accused entering a plea at the start of a trial. Transferral in such circumstances can provide greater certainty that the case being transferred will proceed on the assigned floating trial date, in addition to assisting the efficient progress of criminal business and minimising the potential for delay. These are factors which are of particular importance as we seek to progress our court recovery programme and the backlogs caused by the pandemic, but which we appreciate have to be finely balanced. For clarity changes in trial court location are discussed and agreed with Crown Office and Procurator Fiscal Service and defence agents before they take place. In some instances they can result in a transfer to a courtroom location closer to the locus of the alleged crime(s), which may be of assistance to those giving evidence, or within a similar distance to the originally assigned court. From January to December 2021, 22 out of a total of 527 High Court trials in which evidence was heard were relocated. Of that 22, it is understood that none were identified as concerning a charge(s) of rape. Since implement of the practice, we have, and will continue to review regularly the number of transfers that occur in the High Court, with a particular focus on those relating to allegations of rape and sexual offence.

The Review’s recommendation for a specialist court- rights of audience

We would refer the Committee to paragraph 3.45 and paragraph (f) of Recommendation 2 of the Review, the terms of which are reproduced below for ease. In summary the Review recommended that to reflect the serious nature of the cases which the proposed specialist court would preside over, many of which are currently prosecuted in the High Court, the rights of audience should reflect those applicable in that court. There is a further stipulation to those rights relating to the requirement for specialist trauma informed training. The proposal is therefore that rights of audience will be available to members of the Faculty of Advocates and solicitor advocates all of whom have received specialist trauma-informed training in dealing with vulnerable witnesses, including examination techniques, in accredited courses approved by the Lord Justice General.

I trust the above information is of assistance.

Yours sincerely

David Fraser
Executive Director Court Operations

Undernote

"Rights of Audience

3.45 Consistent with the serious nature of the cases involved, many of which are currently prosecuted in the High Court, the rights of audience should reflect those applicable in that court. Currently members of the Faculty of Advocates undergo significant and rigorous training on the law of evidence and procedure, the nature and conduct of questioning, drafting of writs and general court practice. Solicitor advocates also receive enhanced training on these matters. The training received by all those with higher rights of audience is not readily assessable to the legal profession at large. Given the importance of good practice towards complainers it is essential that those who practice in the specialist court should receive the enhanced training required of advocates or solicitor advocates, reinforced by the additional requirement that their training should be trauma-informed. On the issues of wellbeing, it will be a matter for the relevant professional bodies to consider whether any expansion of services currently available may be merited. Legal professionals as a whole currently have access to LawCare85 which provides a free, independent and confidential helpline for legal professionals and their families giving practical help and support for those experiencing stress and ill health or facing redundancy. In addition to Lawcare, the Law Society of Scotland works in collaboration with NHS Scotland, SeeMe, SAMH and other mental health charities to equip its members with information and signposting to help manage emotional wellbeing and assist those who may be experiencing difficulties to access support services and advice.

85 See https://www.lawcare.org.uk”

“Recommendation 2

A National, specialist sexual offences court should be created, in which the core features should be:

1. Pre-recording of the evidence of all complainers;
2. Judicial case management, including GRHs for any evidence to be taken from a complainer, either on commission or in court; and
3. Specialist trauma-informed training for all personnel.

The court should have the following features:

(a) A national jurisdiction in respect of serious sexual offences prosecuted on indictment;
(b) Procedures based on current High Court practice, revised to meet appropriate standards of trauma-informed practice;
(c) Those procedures to include judicial case management including GRHs and practises similar to those developed in High Court of Justiciary Practice Note No 1 of 2017 and No 1 of 2019;
(d) Presided over by a combination of High Court judges and Sheriffs, who have received trauma-informed training in best practice in the presentation of evidence of vulnerable witnesses and appointed to the court by the Lord Justice General;
(e) Sentencing powers of up to 10 years imprisonment;
(f) Rights of audience available to members of the Faculty of Advocates, solicitor advocates, and prosecutors all of whom have received specialist trauma-informed training in dealing with vulnerable witnesses, including examination techniques, in accredited courses approved by the Lord Justice General; …”