Our next item of business is the continuation of our stage 1 evidence taking on the Victims, Witnesses, and Justice Reform (Scotland) Bill. Today, we start phase 3 of our scrutiny, focusing specifically on parts 5 and 6 of the bill, which cover the establishment of a new sexual offences court, anonymity for victims of sex offences, independent legal representation for complainers and the proposal for a pilot for judge-led trials in certain rape cases.
We are joined by the Rt Hon Dorothy Bain KC, the Lord Advocate, who I welcome to the meeting. I refer members to papers 1 to 3. I intend to allow around 75 minutes for this evidence session.
I have an opening question for the Lord Advocate. The Crown Office submission expressed support for the creation of a specialist sexual offences court but detailed some concerns about the practical application of such a court. What are your reasons for supporting the idea of a specialist court? Will you expand on some of the concerns that were raised?
It is clear from the submission that the Crown is fully supportive of the creation of a specialist sexual offences court. That is because of the identification of the need to transform the way in which sexual crime is prosecuted in Scotland. It will require a determined effort by all of those in the criminal justice system to accept that there is a need for change and to engage in a radical rethink of what the rule of law requires. For the Crown, the introduction of the proposed specialist sexual offences court would play a critical part in the type of change that is required.
I just heard the Lord Justice Clerk speak about why the need for the specialist court is so profound, and I agree with her on that. Underpinning all this is the fact that sexual violence against women and girls is now recognised as a worldwide endemic problem. The World Health Organization and the United Nations have identified violence against women as a global problem of pandemic proportions, and statistics that were produced in 2021 estimated that, worldwide, one in three women have experienced either physical or sexual intimate partner or non-partner violence in their lifetime. In those statistics, the identification of intimate partner violence is very troubling.
That is the background. It has also become recognised across the profession that the effective prosecution of sexual crime requires specialisation and that complainers require the most careful consideration of their needs and the provision of effective support. I consider that the proposed court reforms offer the opportunity for a complete rethink and redesign of the court process in order for the court to deliver both for the complainers and for the accused who appear in it.
The creation of a new court with new procedures and practices presents an opportunity for positive, radical change in the way that the criminal justice system approaches sexual offending. I say that because the level of offending, the volume of casework and the current system that is operated by our courts mean that we simply do not have the ability to support victims of sexual crime and commit our prosecutors to those complex cases in the way that such cases deserve and require.
The fact that so many victims of sexual crime report that they have no confidence in our system is easy to understand, and one can see why that would trouble the Crown Office and Procurator Fiscal Service deeply. The problem is not isolated to Scotland; it is an international problem that is present in the United Kingdom—in England, Wales and Northern Ireland—and across the Commonwealth. For those reasons, we need specialisation. We need a root-and-branch recreation of the court system that is directed specifically towards those types of crime.
Thank you, Lord Advocate.
To follow on from the final point that you made, on specialism across the court system, we asked Lady Dorrian about the option whereby benefits that are similar to those of a bespoke sexual offences court could be delivered through the existing court structure. Lady Dorrian set out her thinking on that and the findings of the review. What are your views on the notion of having a bespoke sexual offences court as opposed to an arrangement within the existing court structure?
It is easy to say that we could do all of this with what we have. Why has that not happened? That is the simple answer to the question. We really need the principled creation of a specialist court in respect of which we look to see what is necessary from the ground up—in the way that deals with every aspect of the administration of the court, the provision of justice, the support for those who come to court, and the specialisation that is needed from prosecutors, defence counsels and judges—and build what is required. The creation of a specialist court with that aim in mind is the way forward.
What is happening at the moment is just not good enough. All the efforts that have been made over the years to bring in changes, such as the rape shield provisions, changes in relation to specialisation in the way that evidence is taken, changes in evidence by commission, and supportive measures for vulnerable witnesses, have not shifted the dial on the basic problems that remain, which are complainers’ anxiety about becoming involved in the criminal justice process in any way, the retraumatisation in the process that is currently in place, the lack of understanding, the lack of support that complainers have, and the feeling that they are abandoned and that justice is not there for them.
We have a section of society that says, “Justice is not there for me.” Let us go about changing that radically and creating a court that is just for that purpose. That is what is needed. It would help the Crown enormously if we had a specialist court that dealt with sexual crime only. That would assist enormously with our management of those cases.
Thank you. I will open up questions to members.
Good morning, Lord Advocate. Does the Crown Office have the resources that it needs to adapt to a new specialist court being set up, in respect of prosecuting in the sexual offences court?
We have touched on the financial consequences of the proposals, which I can look at with you. The significant issue is the increase in cases that the specialist sexual offences court would deal with. What is currently dealt with in the High Court is just a proportion of the sexual offences work that the Crown does. Serious sexual offending prosecution work is done at summary level, at sheriff and jury level and in the High Court.
11:00It is important to recognise that we operate within a budget that is provided by the Scottish Government, and so we take a pragmatic approach to operational decisions in relation to how we prepare and prosecute cases that are reported. Consequently, currently, our resources are focused on the most serious offending. Cases that call on the High Court require a greater level of resource to account for the increased preparation and engagement that occurs in those cases. We put a greater level of resource into the High Court in relation to preparation, presentation, dedication of victim support and dedication of advocate deputes’ time. It is very different from the situation in the sheriff and jury court.
I will give a practical example to help you understand. A trial that is to be prosecuted in the High Court is allocated to an individual advocate depute, who prepares for and conducts the trial. The trial is fixed at a floating or dedicated trial diet for a specific date. At the sheriff and jury level, the trial prosecutor may be responsible for all the trials that have been fixed across a one or two-week period, and so that prosecutor may be responsible for the preparation for and conduct of five or six trials during that period, as opposed to just a single trial. To allow for the same time for the preparation for trial as in the High Court, the prosecutor would have to have only one case for each jury sitting.
You can see why, if we were to shift the level of cases from the sheriff and jury level to the specialist sexual offences court—which I think is a good idea—we would have to have far more resource. We have provided figures for our estimate of what that would cost. At this stage, it is only an estimate, and we have done our best to explain that. The sum and substance of it is that we would not have the resource available to conduct the specialist sexual offences court in the way that the ambition requires.
Are you talking about staff resource? Is it staff resource that you do not have enough of?
No, I am not talking only about staff resource. I am talking about a variety of resources. We would need a greater number of prosecutors and a greater number of those who are involved in supporting victims of sexual crime if we are going to be able to replicate what we do in the High Court in the specialist sexual offences court and bring within that the very serious casework that is prosecuted at the sheriff and jury level. It is about resource across the board. In our response to the financial memorandum, we have explained what we think, at this stage, would be the additional resource that would be required.
Do you think that the financial memorandum reflects the actual costs that would be required?
Let me see what we have said about the costs. We did come back on that. I think that the financial memorandum recognised the potential resource implications for the Crown, and I think that the cabinet secretary has responded to that. However, I can only say what we have said previously, which is that we would need a significant increase in our resource.
It is important to remember that the Crown is a demand-led organisation with responsibility to meet state obligations to deliver justice, and we operate within a complex criminal justice system. The volume and complexity of our casework continue to grow, and there continues to be an increase in complex cases that require longer investigations and court hearings. Sexual crime has increased to make up almost 70 per cent of High Court cases, and there has also been a significant increase in domestic abuse cases.
In our High Court, there are many very serious domestic abuse cases that have sexual elements that demonstrate profound levels of sexual violence being perpetrated in the context of domestic relationships. Violence against women and girls, sexual crime and domestic violence crime will form the bulk of our casework for many years to come.
We looked at the number of High Court indictments and the number of sheriff and jury indictments in a year that would meet the criteria for indictment in the specialist sexual offences court. That indicated that there would be an 86 per cent increase in sexual offences cases that would be indicted and prosecuted in the specialist sexual offences court, equating to the High Court level. Therefore, we are talking about a significant increase in sexual offences cases, which would have a significant resource implication for the Crown.
We have based our calculations of the potential financial impact of that on the average cost per case at each corresponding level of prosecution. It is important for the committee to know that the average cost per case for prosecution is around £75,000 in the High Court; it is £7,234 per case at the sheriff and jury level. The cost differential reflects the different processes and practices in the High Court, as opposed to the sheriff court level, and the nature and type of preparation and presentation that are required to be undertaken by the Crown at each level.
We have projected that it would be reasonable to assess the increased cost of the cases that we would call in the specialist court, as opposed to the sheriff and jury court, as being set at a level of perhaps half the average High Court case cost, which is £37,157 per case. That would mean an additional cost of about £17 million per annum—if the cases were moved from the sheriff and jury level into the specialist sexual offences court.
I repeat that we prosecute some very serious and complex cases at sheriff and jury level. The issue is not just about moving business around. It is about a profound change in practice that will have enormous implications for the Crown.
Should the proposed specialist sexual offences court have exclusive jurisdiction to hear sexual offences cases, or can you envisage circumstances in which a case of that nature would still be tried in the High Court?
I think that you have to ask the question of what the purpose is of the specialist sexual offences court. The purpose is to resolve the situation that is described by victims of crime and specialists in the field as a problem that is creating an absence of justice and an absence of access to justice for victims of sexual crime. If we are going to have a specialist court, it has to be there for the victims of sexual crime.
There are some situations in which, in the specialist sexual offences court, we would probably try cases involving—I think that this was set out in the material that is available to the committee—some sexual offences charges in combination with some very serious other charges, such as murder charges. However, if we are going to have a specialist court, it must deliver for the required purpose, so I do not see why we would have a specialist court and then opt to put the specialist cases in the High Court, which deals with more general work.
Good morning, Lord Advocate. Would a specialist court eliminate the need for floating trial diets, which cause a lot of distress to victims?
The Scottish Courts and Tribunals Service has indicated that the use of floating trial diets is essential in order for it to properly administer its business. Lord Bonomy’s review in relation to the High Court, which recommended the preliminary hearing system for sexual offences trials, recommended that we should not have floating trial diets for rape victims, because of the uncertainty that those bring.
I would hope that, in order for the specialist court to operate in a trauma-informed way, people would very much bear in mind the impact that floating trial diets have on a victim, and would recognise that it is inconsistent with trauma-informed practice to have floating trial diets that float from one period to another without the case starting.
I know that the Scottish Courts and Tribunals Service has identified figures indicating that, within a float, more than 90 per cent of cases start within a four-day period, but we have expressed anxiety to the Scottish Courts and Tribunals Service about whether those statistics are sufficiently robust. That is against a background of a challenge for the whole of the Scottish criminal justice system to get data that is reliable across the board on those cases.
Our assessment is that the figures produced by the Scottish Courts and Tribunals Service take into account only cases where the trial actually commences during the float. They do not take into account cases that do not proceed to evidence being led due to a plea, desertion or, more commonly, adjournment. Our figures for the year 2022-23 indicate that only 64 per cent of trials commenced within the float; 35 per cent of cases do not proceed to trial, and only 61 per cent of complainers will give evidence during a float. I hope that the specialist court could assist in the move towards doing away with floating trial diets. That would be work in progress, in fairness to the Scottish Courts and Tribunals Service.
From personal experience of prosecuting cases of a sexual nature in the High Court, I can say that it is very traumatic for the victim to be waiting to find out when they are going to be called to give evidence—waiting for a phone call at 4 o’clock in the afternoon and being on the edge of their seat all day. For that to be the process that essentially sets you up before you come to give evidence—the most important part of the case—is just not the way to proceed at all. I recognise that we might come on to the benefits of early recording of evidence, but some victims do not want that; some victims want to come to court and see their accused in court.
There is no one-size-fits-all approach for the process, but floating trial diets are a profound problem. They are deeply upsetting for victims who are waiting for their case to be heard, and challenging for the prosecutor who is waiting for the case to come in and is aware of the strains and stresses on the victim. Floating trial diets are also challenging for the people in the criminal justice system who are responsible for delivering the message that a case is not starting today, or tomorrow, or the next day. The process is just not conducive to trauma-informed practice.
Thank you—that is helpful.
I have a fairly general question to kick off with. Over the past few weeks and months, we have heard some very strongly opposing views in relation to the proposed legislation. The head of Rape Crisis Scotland told us that it is
“obvious to anyone—guilty men are regularly walking free.”—[Official Report, Criminal Justice Committee, 6 December 2023; c 9.]
The Faculty of Advocates, of which I assume you are a member, said that the system works “ostensibly”.
You have been very clear today about the need for radical and profound reform, and about legislation being the only way to achieve that. Do you think that the proposed legislation will achieve the reform that you believe is needed?
I start by saying that I remain a member of the Faculty of Advocates. I was an independent counsel at the Scottish bar. I have been in practice at the Scottish bar for 30 years and I have been a silk—a Queen’s counsel and now a King’s counsel—since 1994.
In my period of private practice, unusually, I dedicated a significant proportion of my career to public service, prosecuting in the public interest. I was a prosecutor for eight years, and I was successful in being the first woman to be appointed to principal advocate depute, which is the most senior prosecutor in the country. I was very proud to hold that position.
11:15In my period of practice as a prosecutor, I identified all the problems that Rape Crisis has reported on and all the problems that are reflected in Lady Dorrian’s review. I experienced all those issues first hand as a prosecutor. They are issues that are not made up. They are profound problems, and they have been in existence for all the time since I became a prosecutor. Unless we change radically, we will not make any difference. As Lord Advocate and with my experience, having dedicated a significant proportion of my career to prosecution in the public service, I believe that we need legislative change and we need changes to be brought about by specialisation.
It has come to be appreciated that the ordinary adversarial system is not well suited to the prosecution of such cases. It requires specialisation. The victims require the most careful consideration of their needs and the provision of effective support. They require special measures in the manner in which they give evidence. The existence of rape shield provisions have not resolved the issues. Scotland, the UK and other countries across the Commonwealth are considering and consulting on further developments, such as independent legal representation and judge-only trials, because many of the victims of these crimes are plainly not receiving justice.
I think that we need the sort of change that this Parliament is interested in. In addition, we must, as a society, overcome the cultural attitudes that allow prolific abuse of women and girls to occur in plain sight. We need change here, but we need societal change, too. It has to be a combination of both.
It is incredible to think that it was 1996—two years after you became a QC—that the first female Scottish judge was appointed, which is, of course, less than 30 years ago. It has perhaps taken women being in those positions to drive a lot of the change.
As lawyers and parliamentarians who are trusted with the administration of justice, we must find a method of ensuring justice for the victims of appalling acts of sexual and physical violence. We need a properly functioning judicial process that delivers that. That is all that is being asked for—a judicial process that delivers for victims of crime.
The need for that is exemplified by the very serious crimes that we are now seeing prosecuted at High Court level. To give you one example, last year we saw a case prosecuted in the High Court in which the accused had been a prolific domestic abuser from the age of 14. He murdered his partner after an 18-month relationship that included physical and emotional abuse. Six of his previous partners gave evidence in the High Court of the most extensive level of domestic and sexual violence, which had escalated over the period between the age of 14 and the age of 30, when he committed that very serious crime.
He seriously assaulted the complainer on the day prior to her death, and she was admitted to hospital. He attended the hospital and persuaded her to discharge herself, against medical advice. He then drove her to a garage, where he dealt drugs, and during that night he beat her to death with a tyre iron. He faced 33 charges in total, six of which involved serious previous partners. That is an exemplar of the type of cases that we are seeing in the High Court. It tells you why we need to ask ourselves, as lawyers, as parliamentarians and as those who serve the public—because we are public servants—what we can do to sort this out. We need to make a radical change. It is not good enough to say that everything is fine. It simply is not.
The bill proposes anonymity for victims. The Crown Office’s submission to the committee makes what appears to be an important point about a potential oversight relating to the proposed anonymity measure. As drafted, it seems that anonymity might not apply in cases where the outcome is acquittal. That might result in victims being deterred from reporting crime, which is completely at odds with the intent of the bill and trauma-informed practice.
Since you made the submission to the committee, has the Scottish Government had any communication with the Crown about that?
Yes, it has. It has taken on board a lot of the issues that we raised and is considering the point. The matter is not being ignored and is being worked on. You can see the logic in remedying the deficiency.
So, in all likelihood, there will be an amendment from the Government.
I understand so.
I also want to raise an issue about judge-only rape trials that we have not yet touched on. Judges would be required to provide written reasons for their decisions, which is unusual in the Scottish criminal courts. The Scottish Criminal Cases Review Commission has warned that that might generate a significant number of appeals and it said that the measure risks adding to victims’ distress. Again, that would be at odds with the bill’s trauma-informed intent. Does the Crown Office have a view on that?
The starting point needs to be that the proposed pilot represents an integral part of the recommendations of Lady Dorrian’s review. She recommended a suite of measures, of which the pilot is an integral part. I hope that its being delivered will allow an evidence base for further consideration of what problem with the current system results in such a divergence between levels of conviction in other types of crime and those in sexual crime.
The review was split halfway in relation to whether to recommend a pilot, but the purpose of it is to give a basis on which to develop a reasoned approach to the future way of dealing with sexual offences cases.
Hence the need for the written reasons.
The written reasons will be an important part of the pilot, because they might remove a perceived deficiency in the current system. The suggestion is that the pilot will provide an entirely altered experience in court for the victims of crime and, crucially, will provide for all concerned—the accused and the victim—a reasoned and written decision explaining why a particular outcome was arrived at. The public have confidence in the judiciary, which would be reinforced by the provision of written reasons.
We should be proud of the judiciary in our country and we all fiercely protect its independence. Day in, day out, judges in our Court of Session and in sheriff courts sit on their own dealing with serious matters and issue written reasons. They sit on their own in criminal matters and in very complex Court of Session matters. I am yet to hear a suggestion that that is inconsistent with the rule of law and with a fair judicial process. The benefit of the pilot would be the provision of written reasons to inform why the conviction rate is as it is.
The important point is that the pilot is for a time-limited period only and for a special section of cases, which we call acquaintance-type cases. Those are cases in which there is one complainer and one accused. In our experience as prosecutors, and on the basis of the current statistical analysis that we have been able to do—although, again, we are concerned about our data collection—there are very low levels of conviction in acquaintance-type rapes. The current overall conviction rates that are reported disguise the fact that, in acquaintance-type rapes, conviction rates are at about 20 to 25 per cent. That is why the selection of cases was identified. The pilot is time-limited, and the written reasons will allow us all to move on and to understand whether rape myths are the cause or something else is going on.
That makes sense. Thank you.
Lord Advocate, a comment that you made in response to Russell Findlay’s questions this morning—in relation to your point about the difference between the views about the system that have been expressed by Rape Crisis Scotland and the Faculty of Advocates—was that, in your judgment, the ordinary adversarial approach is not suited to cases of this type. I will explore that comment, because, in a sense, it gets to the heart of some of the points that I explored with Lady Dorrian about court culture. I am interested to know the nature of the changes that need to take place in a specialist sexual crimes court and what approaches are necessary for living up to the challenge that you set out in your comment that the ordinary adversarial approach is not suited to such cases. What needs to be different?
A good place to start is the fact that, only in 2020, in the case of Gavin Watson Macdonald, the Appeal Court in Scotland criticised the trial judge, the Crown and the defence for a number of serious deficiencies that resulted in the young woman who had been attacked being paid damages because of the effect on her of the trial process. She was severely traumatised and suffered exacerbation of her mental health problems.
The Lord Justice General—the most senior judge in Scotland—said:
“This trial was conducted in a manner which flew in the face of basic rules of evidence and procedure, not only the rape shield provisions but also the common law. It ignored a number of principles which have been laid down and emphasised in several recent decisions of this court. If justice is to prevail in the prosecution of sexual offences, it is imperative that those representing parties abide by these basic rules. If they do not do so, the judge or sheriff must intervene to remedy the matter. During her cross-examination, this complainer was subjected to repetitive and at times irrelevant questioning. She became extremely distressed and rightly so. The court did nothing to intervene. Were this to be repeated, the situation in sexual offences trials would be unsustainable.”
That was in 2020. That statement was made by the Lord Justice General because of the way in which a trial had been conducted. The trial was at sheriff and jury level, but involved a very serious sexual offence against a young girl.
It was against that background that Lady Dorrian’s review was conducted and she made her recommendations. The situation requires root-and-branch reform and requires that everybody across the board recognise that such cases require specialisation.
Lawyers need to train themselves to understand what is needed to prosecute or defend such cases properly, and the judiciary needs to understand that there is in that field a whole specialisation that needs to be understood and on which judges require training. To my mind, it is an area of prosecution work that is in its infancy. The beginnings of a real way to deal with all the problems are in the creation of a specialist court.
11:30When it comes to practices in the court—the way in which we deal with evidence in the court, the way that justice is administered and the way in which people are dealt with, supported and respected—the humane aspect needs to be uppermost in everybody’s mind, so that we develop a progressive and humane justice system that delivers justice to everybody, across the board. That profound level of change is required. We need to reflect on the fact that the Macdonald case was in 2020.
Thank you for that. That strikes me as an acknowledgement that there are cultural questions that need to be addressed. The words of the Lord Justice General on the Macdonald case illustrate some serious failings in the protection that all of us would expect to be in place for a witness—that a member of the judiciary can step in to make sure that things are done properly. The Lord Justice General’s conclusions in the appeal obviously demonstrate that that was not the case.
There is the cultural element about ensuring that leadership and practitioners are operating effectively, but are there also procedural questions that need to be addressed about the operation of the courts in relation to the handling of such cases?
I think that Lady Dorrian’s review made recommendations in relation to directions to juries and how matters could be improved. The most fundamental procedural improvement has to be the elimination, as far as possible, of delay in such cases in order to bring about a system that is supportive and provides prompt decision making. Delay needs to be eradicated as far as possible.
The way in which victims are supported in court could be improved. The review touched on independent legal representation in relation to applications under the rape shield provisions. I see those as an important step forward.
Procedurally, the biggest factor could be the eradication of delay and taking away the sense that the process is not capable of being relied on. The procedural changes must be able to deliver, to those who have been victims of a crime, confidence that the process will be supportive and capable of delivering what is required. I see those procedural changes and an increase in confidence in the prosecution system ultimately increasing the confidence of victims of sexual crimes in the process, across the board.
We know that a major issue is that the majority of sexual crime is not reported, because people do not have faith that the system will give them what they require. I think that that issue is present in Scotland, and it has been touched on in England and Wales in two very recent reports. In its eighth report, on the investigation and prosecution of rape, the House of Commons Home Affairs Committee reported that
“Public confidence in the ability of the criminal justice system to respond to reports of rape, to support victims and survivors, and, ultimately, to bring perpetrators to justice, is at what could be its lowest point. Police forces in England and Wales recently recorded the highest ever number of rapes within a 12-month period, yet only 1.3% of the recorded rape offences that have been assigned an outcome resulted in a charge or summons.”
The percentage of cases that were actually taken up was very low.
That was reflective of what the Victims Commissioner for England and Wales reported: that people are worried about reporting cases. Three quarters of those who went to court said that their cross-examination was traumatising, and the vast majority of people agreed that the whole process was as invasive as the actual offence.
Furthermore, 95 per cent of survivors who did not make a report to the police cited fear of being disbelieved, and said that they had heard negative things about the trial process. I hope that the proposed fundamental change in the trial process could go some way towards ameliorating the wider problem—that, in Scotland, England, Wales and Northern Ireland, and across the Commonwealth, the majority of people do not report sexual crime, because of the lack of confidence in the system.
Your answer opens up a wider question. Much of this concerns how court proceedings are handled, but an awful lot of it is about a whole-justice-system approach: it is about the actions of Police Scotland, the operation of the Scottish Courts and Tribunals Service and the roles of the Crown, defence agents, the Faculty of Advocates, the Law Society of Scotland and, ultimately, the judiciary, in shepherding the process. There are quite a number of players.
I am struck by how, in order to eradicate delay in the system, everybody needs to improve their performance and to act more quickly and more effectively. What is the best means of driving that? It strikes me that all those organisations—Police Scotland, the Scottish Courts and Tribunals Service, the Crown, practitioners and the judiciary—are self-governing institutions, so who drives the process? The Government will be criticised if it drives it too aggressively, because that would be interference. Where, within the system, will the necessary drive to eradicate the delays come from?
To put it in a better way, how can we ensure that those various players, who are all critical in the process, are focused on eradication of delays?
We obviously have an enormous challenge with court delays at the moment because of the Covid backlog, and we have to bear that in mind. It is a matter of streamlining processes, making it easier for victims to report and allowing cases to be brought to court more quickly. We can individually seek to improve things in all our areas of work, but it requires an overriding, overarching overseer to bring it all together.
That is difficult, because the various parts of the justice system operate independently of each other, and for good reason: it is in order, quite rightly, to protect the interests of the accused, to protect the independence of the judiciary, and to respect the independence of the investigation authorities and the prosecution service. That can come about only through a common understanding of what is required, and through people working together towards a common goal. I envisage the development of specialisation and the creation of a single court, where everybody is working towards the processes that have been developed by that court, as a significant part of bringing matters to a better place.
Addressing the delay has to come about through resourcing police investigation appropriately and resourcing the Crown’s work appropriately, with proper management of that work and of the court process.
On support for victims of crime, I recognise that the Crown can do only so much. The Crown operates in the public interest, which I view as a wide concept. Within that public interest, it is important that the Crown does what it can to support victims of crime through what is a very challenging process.
In addition to that, the development of a one-stop shop—a system whereby victims can go to one resource to get a full explanation of all the different parts of the criminal justice process and what those can deliver for them—is a very important part of what can be done to improve matters. Addressing delays will require transformation in how we deal with the processes in and around reporting and prosecution of such cases.
My final question is about the procedures of a specialist court. I am going to raise specific material from the bill, although I acknowledge that it is not for the Lord Advocate to argue for the bill. Section 55 states:
“The provisions of the 1995 Act apply to proceedings in the Sexual Offences Court as though the proceedings were taking place in the High Court of Justiciary”.
My reading of that, as a layman, makes me a little worried that that means that we will not have a fresh start. Reassure me on that point.
Obviously, the judiciary is responsible for administration of the courts. Ultimately, the Lord President, as head of the court justice system, is responsible for the way in which the courts administer their business.
The Criminal Procedure (Scotland) Act 1995 provides the ability for very significant case management to be undertaken by the judiciary at the stage at which a case is indicted. The preliminary hearings system that we have in the High Court, which was recently taken over to the sheriff and jury court, allows for very strong judicial management of cases. The judicial management process enables a case to be looked at in a very robust way, and can put the prosecutor and defence counsel on the spot in relation to all that is needed in relation to witnesses who are being cited—for example, in relation to how questioning of children should be done—whether the defence needs more time to explore areas in the case, what the case is actually about, what the defence is in the case and what can be agreed.
The case management system that is adjudicated by the presiding judge in the court is a very significant way in which the court processes can be applied in a way that would be beneficial to the overall administration of justice. I think that the benefit of a specialist sexual offences court, in which specialist judges will deal with the cases that come before it and will see the same type of cases regularly, is that they will begin to appreciate where, from a case management point of view, improvements can be made, and how trauma-informed practice can be applied appropriately to the way in which cases progress through the court system.
Case management, which is provided for extensively in the Criminal Procedure (Scotland) Act 1995, and all the requirements in and around disclosure, defence statements and all the rest of it, are the tools that are available to the judiciary. I think that those tools, combined with specialisation, will mean that we will see an improvement in the management of such cases. I very much hope that that will be the case.
Good morning, Lord Advocate. Thank you for being so vocal on the importance of doing something in Parliament about the scandalous increase in the number of sexual offences cases.
I am interested in the mechanics of the specialist court. You and the Lord Justice Clerk have made a good case for it, but my questions relate to how it would operate and how it would fit in with the current court system. You gave the committee some useful figures earlier on the cost of cases being prosecuted in the High Court and in the sheriff court. Does the Government fully appreciate what the resource implication of the specialist court would be?
11:45I am trying to get my head around what the specialist court would look like. It looks as though it would be a substantially large court with a substantially large number of cases, and it would not be part of the High Court. It would be separate from the High Court, although as Lady Dorrian said, her vision is very much that it would be a parallel court. That is not enshrined in the proposed legislation, and I questioned Lady Dorrian on that.
That aside, does the Government fully appreciate the resource implications for setting up such a court?
That would be a matter for the Government to respond to. I am here as the Lord Advocate and the independent head of the criminal prosecution service that is responsible for the prosecution of crime and the investigation of deaths.
I can say what the impact would be. It is not just about moving business. If you are going to make the change, you need to apply the resource. The figures that I am able to provide show the big challenges at sheriff and jury level and what we ask our prosecutors at sheriff and jury level to do in cases that are just as complex as those that are prosecuted in the High Court.
Whether to prosecute at sheriff and jury level, as opposed to in the High Court, can come down to very fine decisions. It is the nature of the offence that is relevant to the forum, not the complexity of the case. We see very complex institutional abuse cases being prosecuted at sheriff and jury level, and we see high sentences of five years being handed out regularly at that level.
As I said, it is not the complexity of the case but the nature of the offence that determines the forum. Moving sheriff and jury business in sexual offences cases to the High Court will not mean that we bring in less complex or less serious cases. Sometimes, it is just a simple difference—between whether there has been a penetrative act as opposed to a non-penetrative act, in a sexual case—that determines the forum, because of the possible exposure to sentence. Those are fine distinctions that victims of serious sexual crime probably would not understand, whether there was penetration or not. Through the evidence from the Scottish child abuse inquiry, which is a very important piece of work, we found that, sometimes, non-penetrative acts in really nasty and sadistic types of conduct are far more impactful on and damaging to victims of such crime than penetrative acts are in a different context.
We need to appreciate that it is not just about moving business. We are dealing with very complex areas of work, and the combination of that with the increase in levels of pre-recorded evidence will have a profound impact on our budget. We cannot meet that without the necessary resource, and we cannot do it with the current resource.
I suppose that the fine line that you mentioned is about where cases go. Currently, they go to either the High Court or the sheriff court. You said that, in the case of the High Court, an advocate depute has a single case and you talked about the cost of that. Will that fine line disappear with the specialist court? In other words, who will you instruct to take on those cases? Will ADs take them on? How will you decide on that, if there is no distinction between cases, as there is at the moment, which means that you decide to send them either to the High Court or to the sheriff court, if you see what I mean?
I see the specialist sexual offences court as being the supreme court, sitting alongside the High Court, in the prosecution of sexual crime. In our High Court, with my commission, advocate deputes prosecute those cases and I certainly would not see any diminution in the quality, training and standard of the prosecutor. Therefore, for the specialist sexual offences court, from my perspective I do not see it being anyone other than an advocate depute prosecuting, with extended rights of audience. It would not be someone who did not have extended rights of audience to prosecute in the High Court who would be prosecuting those cases. They are very serious cases and if we are going to deal with them appropriately and give them the recognition that they deserve, I foresee it being advocate deputes prosecuting the cases, because it will be part of the High Court.
Thank you. I think that that is what those interested would expect. In the many proposals in this Parliament over the years about how we should deal with rape cases, maintaining the seriousness of rape, which currently can be prosecuted only in the High Court, has been really important. It is important to me, certainly, and, I know, to many others. Should we legislate to ensure that, because a future Lord Advocate might take a different view? That would be my worry. I am very content with your answer, but I am interested in protecting that fine line. I can think of cases that should, in my opinion, have gone to the High Court, but that fine line—because of the seriousness of the offence—has not been understood. I completely take the point that there are many factors to consider, but I feel really strongly that there should be no change to who prosecutes, who has rights of audience and who represents the accused, even if we are changing the nature of the court. Could you respond to that?
Yes. I recognise the distinction in our roles, Ms McNeill. You are an elected member of the Parliament, representing your constituents and the voice of the Scottish people. All that I can do is to seek to inform you as to what the current prosecutorial view is across Scotland in relation to those types of offences. It is this: they are the most challenging and difficult cases that we prosecute; they concern us greatly; they are the thing that we talk about most; and they are the issue that gives us the greatest cause for concern.
I have not met a single member of the prosecution service who joined it in order to do such cases badly. Everybody wants to do them well and to the best of their ability. I see the prosecution of such cases as of critical importance to the whole of the criminal justice system and I would see no diminution at all being applied to the standard of prosecutor that would be taking the cases. If the sexual offences court were part of the High Court, it would be High Court prosecutors.
As I have said previously, I consider the issue to be the challenge of our generation of prosecutors. We need to resolve the issues in and around sexual crime. They have a profound impact on the victims. They ruin lives. We have to do something about it. We have to have a better system.
Thank you very much. Some of us attended a round-table discussion with Rape Crisis Scotland. As you would expect, and as you have said in your evidence, we heard that the experience of rape and sexual offences victims is just appalling. However, one survivor who came to the round table had had a completely different experience, which was very recent. She talked about how she got some time with the advocate depute and her positive experience. I take from that that perhaps there are already some changes in the system.
I appreciate all the implications for resources in asking this question, but is being able to have a meeting with the advocate depute prosecutor a standard practice? I have heard of cases where victims have sat in complete frustration in the court because they feel that the prosecutor has not mentioned something that is really important. I fully appreciate the independence of the practitioner and realise that that is an important principle, but should there be more exposure of victims in relation to the prosecution of their cases?
In my time as an advocate depute, I always met a victim of sexual crime before he or she gave evidence in court. From early on, I was a great supporter of that and I have never changed my view. It is the practice in the High Court that advocate deputes meet victims of those types of crimes before they give their evidence. I would like to do that better, and I hope that our current review of sexual offences will deliver on that.
There is a greater challenge in the sheriff and jury courts, where you can see the pressures on the prosecutor and the greater burden of casework that they have. The resources available in those courts are very different. However, I think that I can say this: I know how to do such cases. It requires significant support for the victim of the crime; it requires meeting the victim of the crime in order to give them the necessary confidence that the prosecutor understands them and their case, and to give them some assistance in preparing to give evidence.
I will give you one very important example. I put my skill and experience—I do not make out that I am anything particularly special—to critical use in the trial of a man called Mark Adams. He had an OBE. He was a 54-year-old businessman, a graduate of the University of Cambridge and a former private secretary to John Major and Tony Blair. He was convicted of the rape and sexual assault of an 18-year-old student in Edinburgh city centre when she was on her way home from a night out during the festival in 2019. The case demonstrates that that type of offending is not restricted to any particular class of person. The accused was a man of outstanding intellect and he had been honoured by the monarch.
With the support, understanding and careful guidance that was given in the meetings that I had with the young woman pre-trial, supported by a member of the Procurator Fiscal Service, she was able to overcome her fears and give evidence in court with the use of a screen and a supporter. When I first met that young woman, she was shaking so much that she could barely get into the room. With support, proper guidance and direction, and without any impropriety on my part, she was transformed into someone who was able to come into court and give her evidence with a screen and a supporter. She gave powerful and compelling evidence and the jury returned a unanimous guilty verdict. We know how to do such cases and we would like to do them in that way, but we need the resources for it.
Thank you for your powerful evidence so far, including what you have just said.
I will ask about the same subject that I asked about in the previous evidence session—I do not know whether you saw it. What are your views on independent legal representation? What I am getting from your submission is that the Crown Office is generally supportive of the idea and the provisions for it, but that it envisages some problems. You have outlined some ways in which those problems might be resolved. Could you expand on that?
The Crown is not the victim’s lawyer, and that is part of the fundamental problem. Although we can do some things that are within the concept of the public interest, we cannot do everything that an independent lawyer would be able to do. That is what underpinned the recognition that you need independent legal representation on the issue of the rape shield provisions because of the impact on the victim’s article 8 rights under the European convention of human rights. The victim also has individual rights in relation to the issues that arise in and around the section 275 application. That application is made in court, and before it is granted, the defence is required to set out whether evidence should be
“admitted or elicited; the nature of any questioning that is proposed; the issues at the trial to which that evidence is considered to be relevant; the reasons why that evidence is considered relevant”
in the trial, and
“the inferences which the applicant proposes to submit to the court that it should draw from that evidence.”
There is very clear statutory provision.
A properly drafted section 275 application should contain sufficient evidence to enable the parties to be able to identify what the evidence is within the case that is relevant to the evidence that should be elicited. What is it within the case that the defence needs to cross-examine the complainer on in order to properly pursue their defence case? To determine whether that is right, there must be a question mark over the extent to which the Crown would be responsible for receiving the application and, thereafter, identifying the evidence that would be necessary for it to properly advise the complainer and her lawyer to prepare the relevant arguments.
12:00If you have an independent legal representative in this area of the criminal justice process, they must be able to understand what the evidence is and how they could oppose the application, so they must have access to the material in court. We have to have a process by which that material is disclosed. We are anxious to ensure that that process of disclosure is overviewed independently, properly protects the rights of the accused and does not draw the Crown into difficulties in relation to whether it is acting consistently in its independent role.
In relation to the way in which the ILR operates, the court is in a position to hear submissions from the parties on whether the section 275 application has merit and thereafter understand what within the case requires to be disclosed. Thereafter, the court should oversee the process. It is dangerous to put in the hands of the Crown all the responsibility for deciding what evidence should be disclosed and for the disclosure. There has to be a proper sifting mechanism in the section 275 process. The application should be made, the court should consider whether it has merit and whether it should be intimated to the complainer—we know that the intimation of such documents can be profoundly traumatising for victims—and there should be a proper consideration of what material the independent legal representative must have access to in order to properly frame any opposition.
It is important that we look at the matter with care and not just say that it is the Crown’s responsibility to administer the process. We need to have a proper process in court that protects the rights of the accused and the independence of the Crown, delivers a proper process for the victim and ensures that the process is trauma informed. We should not open up a can of worms and allow applications to be sent to victims of sexual crime without their being properly administered using a trauma-informed lens before the victims receive them.
We do not always get it right in the Crown, but we have set down careful safeguards for the way in which we speak to victims about the fact that there has been an application in relation to the rape shield provisions. We have many vulnerable individuals to whom giving that information would cause severe mental health problems. We deal with some of the most vulnerable people in society, and we do not want a system that is going to make it worse. We do not want a system that puts an unnecessary burden on the Crown or that is not properly adjudicated and administered by the court.
To go back to your submission, my understanding is that you are supportive of the proposal but think that it is not fair to put all the responsibility on the Crown and that how the process would work in practice needs to be thought out.
Yes, it really needs to be thought out. The profession at large would take on the ILR role and I would be concerned to ensure that there was a proper process of accreditation for solicitors who become involved in such work, have no experience of prosecuting in the public interest and operate in private practice. As I said, we do not always get it right in the Crown and we are trying hard to make improvements. We do not want to take that away and give it to an area of the profession that is not properly trained and does not realise the profound implications of being involved with very vulnerable complainers in relation to an issue as sensitive and important as an application to pierce the rape shield provisions.
My questioning so far, and in the earlier evidence session, has focused on independent legal representation in relation to the rape shield provisions—as Lady Dorrian said, she recommended ILR for that purpose only. What are your thoughts on independent legal representation being provided for complainers in a wider context, perhaps when they first make a complaint?
We have heard a lot of evidence—I am sure that you have heard it as well—that when somebody makes a complaint to the police in these situations, that is it for them until they are next contacted by the criminal justice system. Is there a role for the provision of independent legal advice at an earlier stage, so that somebody could go through with people making a complaint how things might pan out?
That would be worthy of consideration, but it is certainly not something that I have given consideration to before today. If we had a system that was properly trauma informed, the police engaged with victims of crime appropriately, the victim support services operated in a way that provided the necessary holistic wraparound care and the Crown did what was necessary in relation to engagement with victims, I do not see the need for that.
My view of the Crown’s engagement with victims is that we could do a lot more and do it a lot more effectively. Susanne Tanner KC’s sexual offences review will report in February and will make recommendations in that regard. The example that I gave you of the case that I prosecuted is an example of what we can achieve. I know that the victim in that case was supported properly and, from the reports that I received afterwards, that she felt that justice had been served. The tools are available at the moment, but we need better management, greater understanding and a drive to improve. Better resourcing is also required.
I just have a quick question. I am thinking back to the first evidence session that we had with you at the start of the parliamentary session. You said that radical reform would be needed to tackle men’s violence against women and girls, and I think that we are coming to that now—this could be the start of it.
You support a pilot of single-judge rape trials. Do you have any concerns about that?
I support the pilot for the reasons that have been expressed. My anxiety is to ensure that when the Parliament takes a decision on that, it is done against the background of a properly informed, reasoned debate. I do not say that anybody’s voice should be discounted. The review itself was split down the middle. There were powerful arguments for and against, and lawyers are sometimes good at presenting powerful arguments, so I am afraid that it is over to the parliamentarians now. It is about what you believe to be appropriate in the interests of the people of Scotland. You are the democratically elected legislature and you now have your place to do what you think is the right thing.
Sharon Dowey is indicating that she wants to ask a very short question.
Should the Scottish ministers have laid out provisions for juryless rape trials in the bill, rather than laying out a power to pilot them using secondary legislation?
That is not a matter for me.
The terms of the bill and decisions about the way forward for the legislation are matters for ministers and not for the Lord Advocate. However, it is the case that everyone within the system requires to understand that there needs to be a change in culture and views. Legal change is not enough.
On that note, we will bring this part of the meeting to a close. I thank the Lord Advocate for joining us for what has been a very interesting and useful session.
There will be a short suspension to allow for a change of witnesses.
12:10 Meeting suspended.
We move to our next panel, and I welcome to the meeting David Fraser, executive director, and Danielle McLaughlin, head of the Lord Justice Clerk’s review, from the Scottish Courts and Tribunals Service. I intend to allow about 40 minutes for this session.
I will open with a general question, and it will come as no surprise that it is about the proposal for a specialist sexual offences court, on which we have already taken quite substantial evidence from the Lord Advocate and Lady Dorrian. Given that the Scottish Courts and Tribunals Service has expressed support for the creation of a sexual offences court, will you outline what, in your view, would be the main benefits of such a court as well as some of the challenges that could be faced?
12:15
The Scottish Courts and Tribunals Service very much supports the creation of a new specialist sexual offences court. The committee has heard from Lady Dorrian and the Lord Advocate about the benefits that the court will bring. Potentially, it will be a sea change in how sexual offences cases are dealt with; it has the potential not only to encourage the population to see that we take those offences very seriously in Scotland but to create—dare I say—additional business as a result of people having greater confidence in the system.
Pulling it down to the organisation, and some of the benefits that I see, I would point out that at the moment we very much have a two-tier system, and I think that the Lord Advocate referred to the level of resource given to each tier. A single national specialist sexual offences court would create a level playing field to deal with what has become an increasing amount of cases by removing about 47 per cent of the business from the High Court and about 11 per cent of the business from the sheriff and jury court. Once the specialist court is created, it will deal with more High Court business.
Such a court would have a lot of societal benefits; indeed, Lady Dorrian touched on that. There are other options that could be seen as tinkering around the edges. We have done a number of those in the past and, as I think Lady Dorrian classified it, it is time for the clean-sheet approach of a brand new court that will encompass a lot of new things. Some of those things have already started. For example, the committee has considered the trauma-informed aspect and how that will be very much part of the court.
Finally, from my perspective—I think that Mr Findlay talked about this, too—this is all about a change in culture in which the focus will be very much on the experience of the complainer as they come through the system. The Lord Advocate said that she has been in the judicial system for some time; so have I, as an administrator in the Scottish courts. We are now seeing a change in attitude, and a recognition among those in the system that it is paramount to have the experience of the complainer, as they come through the system, as the centre and focus of attention. That was certainly the basis of Lady Dorrian’s review, and it informed how she conducted it. That was a long answer, but in short, I am very supportive of the new court. It will have a lot of benefits.
As for the challenges that I envisage, Lady Dorrian has already covered the issue of how the legislation has been drafted as opposed to the views and vision in the report that she produced. There are nuances, if you like, in the legislation as currently drafted when set against her vision, but I will not go over what Lady Dorrian has already said.
Thank you. I do not know whether you would like to come in on that question, Danielle McLaughlin.
I would merely reiterate everything that David Fraser has said. As he mentioned, our appearance before the committee comes after Lady Dorrian’s, and she is the person who can speak with the utmost authority on the matter. David and I supported Lady Dorrian in the course of her review and, as David has said, we are now operational colleagues in the SCTS organisation.
The court’s fundamental feature is the provision of uniformity. At the moment, we have a two-tier system; with this approach, we will see increased case management at PH, or preliminary hearing level, which, as Lady Dorrian referenced, does not happen at sheriff court level. As David Fraser has said, 11 per cent of current sheriff court business can be categorised as sexual offences crimes, and that equates to a total that is higher than the number of cases that are currently in the High Court. With the uniformity provided by the court, the management of those cases will change, and most important of all, there will be increased focus on the experience for complainers, the accused and the vulnerable witnesses who are involved.
A key aspect of the court is the pre-recording of evidence. The Lord Advocate and others referred to delays in the system. The purpose of pre-recording evidence is to take evidence significantly earlier, which is particularly key, given the unfortunate environment of extended delays that we are in as a result of the pandemic. Commissions can take an average of 16 weeks from the start of a High Court trial, and the latest data from SCTS shows that the wait from preliminary hearing to trial is 49 weeks. This change would reduce a complainer’s waiting time to give evidence by 36 weeks.
Moreover, that key aspect—the earlier provision of evidence—will also allow the case to be disclosed and heard by the defence, too. That, in turn, should help reduce the number of matters that are in dispute, assist with the preparation of trials, reduce the length of trials and improve the efficiency of case business generally.
That was helpful.
Mr Fraser, we asked the Lord Advocate and Lady Dorrian about putting in place a specialist approach in the existing court structure, so, in the spirit of consistency, I note that early in your contribution, you articulated the fact that the current system has two tiers. We have heard it argued that the current system should become more specialised instead of our going to the bother of creating a bespoke court. Is there anything further that you would like to add on that point?
As part of Lady Dorrian’s group, I supported her during the discussions that formulated her report. The question whether we could create a trauma-informed specialism within the High Court was discussed, as was the question whether we could create a separate specialism in the sheriff court. However, it was felt that that would just be tinkering with the current system, and Lady Dorrian has already referred to the fact that an absolutely new approach is required. Set against that context and background and the fact that the volumes that are coming through the courts are increasing, a long-term solution to how we address offending of that type is needed.
Okay—I am now going to open it up to members. I call Pauline McNeill, to be followed by Sharon Dowey.
Thank you very much for your insights. I know that you have been involved with this for a long time, and I thank you for that, too.
I was surprised to hear you talk about a two-tier system. Could you elaborate a bit more on that? In my lines of questioning to the Lord Advocate and Lady Dorrian—and I was very content with their answers—I was suggesting that an important distinction would still have to be made with regard to the seriousness of crimes. Indeed, that is why we have a High Court and a lower court—that is, the sheriff court. My understanding is that cases go to the lower court, because they do not require to go to the High Court. When you talked about the system being two-tier and the proposed court creating a level playing field, were you referring to the trauma-informed aspect? It would concern me if it were being suggested that we wrap up all the crimes into one court, given that some are more serious than others.
In essence, the new specialist court takes the sexual offences out of the High Court. In which court the cases are prosecuted will be a matter for the Lord Advocate, and the level in the system at which they are prosecuted will be a matter for the Crown Office.
The expectation is that more serious crimes go to the High Court and less serious crimes go to the sheriff and jury court. However, as we have already heard this morning, some very complex and difficult cases are going to the sheriff and jury court. The new specialist court would create the ability for people who are trained specialists—not just the judiciary, but clerks of court, prosecutors and the defence—to look at that type of offending through a specialist trauma-informed lens. There will be an element of consistency in the new court for all sexual offences cases.
I do not know whether I have answered your question, Ms McNeill.
I think that you have, in relation to the trauma-informed aspect. However, I would like some more clarity. An important distinction—we have had this exchange previously—is that rape cases can go only to the High Court. In a sense, therefore, a two-tier system is a legislative necessity, because of the seriousness of those kinds of cases. I worry that it is being suggested that there is something wrong with having two tiers of crime, as is currently the case. I think that you are saying—if I have understood you correctly—that the level playing field approach concerns the specialist nature of the crime.
Yes.
I will not go into this today, but aspects such as rights of audience and who prosecutes will, by necessity, involve the creation of two tiers.
Yes. Let me—
You know that I have very strong views on that—
I will clarify that and, I hope, put your mind at rest. The creation of a specialist court does not remove the need for certain cases to go through the remaining High Court and for other non-sexual cases to go through the remaining sheriff and jury system. Those tiers would still remain—and rightly so—for the different levels. This is about the specialism that the new court creates—I think that we agree on that.
Thank you.
You have given the committee some helpful figures: around 11 per cent of such business will come from the sheriff court, while 47 per cent of business will come from the High Court. That is a significant difference. What will the High Court look like in the new circumstances? Will it just be quieter?
As the committee is aware, when we talk about 47 per cent of cases, we are talking about indictments that go through the High Court. Sexual offences cases actually translate to more trials than other types of business, so the figure for those that proceed to trial comes out at about 73 per cent. The answer, though, is yes—the High Court will be a very different creature once the sexual offences court has been created.
I said this to the Lord Advocate, as I was trying to envisage in my own mind what the court would look like. Given the rise in sexual offences that we know about, the new specialist sexual offences court will be substantially large. Does that suggest that there might be a shift in resource to it? What discussions have you had with the Government about the resource implications of its proposal?
As we set out in our submission on the financial memorandum, there would be costs involved for the Scottish Courts and Tribunals Service. They would mainly be initial set-up costs, but there would also be an on-going running cost with the creation of the single court.
We are not creating new business as a result of the new court. In essence, we are taking the existing business in the sheriff court and in the High Court, while also looking at the resources in those two different courts, to create the new specialist sexual offences court. The resources in what would remain the High Court would be very much reduced, with the resources required for the specialist sexual offences court being part of the new court.
Forgive me, but I like to visualise things. It could be, then, that the specialist sexual offences court could meet in what would be Glasgow High Court, but it would be called something else. It could still involve judges that would have presided over those cases in the High Court. Am I right in saying that?
One of the key things that the new specialist sexual offences court will give us is that it will sit in a vastly increased number of locations in comparison with where the High Court currently sits.
I understand that.
It is envisaged that the specialist sexual offences court will sit in the key areas where that type of business is predominant. That does not necessarily preclude the need for the specialist sexual offences court to sit beyond that in any of our locations. Again, Lady Dorrian alluded to the fact that we are not creating new court accommodation—we are simply utilising the court accommodation that we have. The answer to your question, therefore, is yes; there could be a judge—
So it could be in Glasgow High Court, but it would be called something else.
A senator might sit as a High Court judge, but they will also be ticketed and be able to sit in the specialist sexual offences court, and they may sit in both courts. We would not create a system so inflexible that that would not be allowed. There would be flexibility to ensure that the resources would be wherever the business is.
12:30
Pauline McNeill touched on some of the things that I was going to cover. I have looked at the financial memorandum and the costs of the bill. We have heard throughout about the resources that it will take to create the new court. Do you think that table 14 in the financial memorandum still accurately reflects what it will cost to set up the court? I thought that the recurring costs looked quite low.
We have also heard throughout about how recordings from body-worn cameras could be taken as evidence. Obviously, that is another cost implication. They still have not been given out. Have you had any conversations with the Scottish Government about the costs? Do you have an updated estimate of how much they would be?
I will start on that and let Ms McLaughlin conclude the answer, if you do not mind.
We have most definitely had conversations with the Scottish Government. The information that we set out was based on what we anticipate the court will look like. It does not take account of any potential increase in the level of business as we go forward if the trajectory is such that sexual offending continues to increase year on year.
Is there anything you would like to add to that, Ms McLaughlin?
In our response to the Finance and Public Administration Committee’s call for views on the financial memorandum, we set out that, in addition to those costs, there are the invariable pulls and pushes of the current financial environment. For example, the costs for staffing are based on our 2022-23 pay deal. Inevitably, if we seek to recruit 24 clerks, those costs might increase slightly because of pay deals or changes in the environment. We rely on the flexibility of reorganisation and recruiting from our internal pool of staff to gain expertise and specialisms, but if we have to go to the market, there will be some changes in the costs.
One of the areas that is probably missed out relates to training in trauma-informed practice. That is part of our organisational response to our commitment to trauma-informed practice. We are looking at how we will roll out that training across the whole organisation, and that might impact on the costs that are specifically associated with training staff.
To cut my answer short—I apologise for the elongated response—we believe that what is in the financial memorandum, supplemented by what is in our response to the call for views, is broadly our anticipated costs. There might be some increases due to matters that are outwith our control, such as the costs of training or of staff, for example.
Another proportion of the costs relates to developing an information technology system. That will depend on the final provisions in the bill, because our system will have to adapt to whatever parliamentarians approve, and some parts of that will have to be outsourced to third parties.
I hope that that answers your question.
That is fine. Thank you.
Can you share with the committee any data on the level of spare capacity in the court and tribunal infrastructure in Scotland? What is the utilisation level of the court infrastructure in the country?
That is a very good question. If you want specifics, I will have to come back with that information.
Utilisation varies from court to court, because it is very much based on the individual programmes of all the different courts and what is programmed, as opposed to what actually takes place. I know that utilisation is very high in the High Court, but as we come down the different tiers, through the solemn, summary and justice of the peace courts, it varies. However, I do not have specific figures on that.
It would be good if you could provide that information to us with as much detail as possible, Mr Fraser, because it is material to some of the questions that I will come on to about improving the throughput of the court system and addressing some of the issues about delays that I aired with the Lord Advocate, which you might have heard, earlier on. It also gets to the nub of whether we need to build a new infrastructure for this. I am profoundly sceptical about that, given that I imagine that there is spare capacity, albeit that it might be in the wrong place to suit particular schedules, if you see what I am getting at.
I can give you a little bit of detail. We have found capacity to run the recovery programme within the existing estate in lots of different ways. We are now utilising a lot of virtual hearings on the civil side, which has released courtrooms to be converted to criminal courtrooms. We have the physical capacity to do more business within the court estate, if that is where you are coming from.
That is what I am getting at. The ground that you have covered in that supplementary answer, which is very helpful, addresses some of what I am keen to air as part of the evidence for the committee. It does not have to be about the building of new buildings, because court processes have changed dramatically as a consequence of Covid. Changes will have taken place that people have been trying to make for 50 years, but nobody has been interested in them. They had to happen because of Covid, and, thankfully, they have been retained. Some of the emergency legislation that some people in the Parliament complain about, and which is still in force, is actually quite helpful in addressing some of those challenges. The more you can write to us about that, Mr Fraser, the better.
I am sorry to interrupt, Mr Swinney, but can I give you one other thing that probably adds a little to that?
Please do.
The new specialist sexual offences court would look at taking really good things that happen in the High Court. I will give an example. During Covid, we introduced virtual preliminary hearings in the High Court as one of the necessities that were required as a result of the pandemic. As we came out of the pandemic, we were asked to return to a physical environment. We did that, and we then found that the practitioners saw reintroducing the physical environment as a retrograde step, and they asked us to go back to virtual hearings, which we now do. We would take those things forward with the new specialist sexual offences court.
You understand exactly where I am coming from. I would be keen to see that further information.
The only other thing that I would like to explore is the question of delays, which I discussed with the Lord Advocate. I do not know whether you were here for the question that I raised with the Lord Advocate, but it strikes me that the solution to delays will not rest in the hands of one organisation. There should be a joint effort involving Police Scotland, the Scottish Courts and Tribunals Service, the Crown, practitioners and the judiciary, for example. I am interested in hearing from you what steps you feel that you can take as part of that collaborative effort to address the issues that are contributing to some of the very poor experiences that complainers have because processes are taking so long.
That is a very big question for the Scottish Courts and Tribunals Service, but I will do my very best to answer it.
We are fully committed to reducing our delays. I absolutely sympathise with complainers and victims, because of the time and difficulties that they face as a result of the fact that it is taking much longer now to go through the court process than it did pre-pandemic.
We are working through the recovery programme and programming everything that we possibly can. We are working over capacity to create the ability to claw back the time that it takes to go through the court system, and we are making inroads in that regard. We are also working collaboratively with our justice partners.
I do not think that there is anyone in the justice system who is not acutely aware of the need to get us back on an even keel. I very much hope that we will have reached that position in time for the creation, potentially, of the sexual offences court. I anticipate and hope that we will have our recovery programme done and dusted in the timeframe that it will take for the introduction of the new specialist sexual offences court, and that those will dovetail together. For me, that would be a wonderful achievement.
Do you see progress being made in eroding the delays that exist?
Yes, I do.
Is there data that you can share with the committee on that point?
There is indeed. We publish projections, which are developed in consultation with our Crown colleagues, of what we see coming into the system, how the system will behave, and how long it will take us to recover. We also publish quarterly reports on performance. I will make those available to the committee.
That would be helpful. Thank you.
If it would help, Mr Swinney, I have some data in front of me. As David Fraser has said, we work in collaboration with the Crown Office and Procurator Fiscal Service and other justice partners to support the recovery programme. An updated modelling paper was produced just before Christmas. Since the start of the recovery programme, the backlog has been reduced by 16,344 cases, with 27,262 scheduled trials at the end of November 2023. Waiting periods, which were up to 63 weeks at the start of the recovery programme, had been reduced to 49 weeks as at November.
We are robustly reporting and working with our justice partners, and we are committed to supporting the recovery programme and continuing to further reduce the backlog. We are working towards a new baseline of 20,000 cases towards the end of the recovery programme.
The one challenge that we have is that we face an increased volume of cases as we go forward. The backlog is no longer a backlog per se; it is what is left from the pandemic and as a consequence of the new, increased volume of cases, as well.
I hope that that helps.
That is very helpful. Are there particular areas in which you think that there could be further improvements that would help to accelerate the progress that has been made?
We are moving a little bit off the issue of the sexual offences court. I will talk more generally.
Other things are happening in other parts of the system. I refer to the very healthy progress that is being made on pilot courts in relation to summary business and how that is managed. That has the capacity to make greater efficiencies within the system. Summary cases are the largest volume of business that goes through the court system, and that is where the greatest impact will be. However, some of the lessons that are learned there can equally be applied across other parts of the system.
Lady Dorrian’s review recommended the creation of a specialist sexual offences court, and the Scottish Courts and Tribunals Service is supportive of that. I will pick up on some of the questions that Pauline McNeill put earlier. Your submission says that the inclusion of other crimes up to and including murder could add to much higher costs being borne by the court service. Given the unpredictability—we heard from Lady Dorrian today that she still believes that the crime of murder should not be tried in the new court—what is your position on that? Do you have any more information on what the costs might look like in that scenario?
I absolutely support the position that Lady Dorrian put forward. In the model that we looked at, it was never envisaged that murders would be included in the sexual offences court. You have to ask yourself what the purpose of the High Court becomes if some of the privative jurisdictions of cases that go through that, such as murder, are moved into the specialist sexual offences court. I would follow the line that Lady Dorrian gave the committee this morning.
Is there anything that Ms McLaughlin would like to add on the financial aspect?
12:45
Yes. That was the main point that we were trying to make in our response. For all the reasons that David Fraser and Lady Dorrian have alluded to, the expansion of business to include murder would create a duplication with the High Court and would have impacts on resources. The provisions as currently drafted have the benefit that the Scottish ministers would have the ability to amend the list of offences so, obviously, there is the potential for murder or some other cases that others might have challenges about being added in the future. Lady Dorrian’s review acknowledged that we need to focus the most serious life-impacting cases in one uniform court and use the finite resources that we have in a better and more manageable way. That was our main concern.
The Lord Advocate referenced a particularly horrific case that took place just six months ago in Fife. It involved an individual who ultimately murdered his female partner, but the evidence that was led was a huge catalogue of violence and abuse against her and many other female partners. Would your position be that that sort of case should remain a High Court case rather than a sexual offences court case?
If there is a sexual element, it should go into the specialist sexual offences court, for the very reasons that you talk about—it was not an isolated incident. I do not want to talk about specific cases but, from what I have heard, there can be a build-up in previous behaviour, so that should be in the specialist sexual offences court.
I raise that case because the Lord Advocate did so, and it seems pertinent to the potential fault line here. Is it your view that, even though murder is the primary charge, a case such as the one described would find itself in the sexual offences court?
I beg your pardon. I will backtrack, because ultimately in that case there was a deceased victim as a result of the offence. In the vision that Lady Dorrian set out, that case would remain in the High Court, because it was predominantly a murder case. I am going out on a limb here, but I think that the vision for the sexual offences court was that it would predominantly deal with the complainers—they would be part of the process—as opposed to the deceased.
I have probably gone out on a limb there. Ms McLaughlin is going to correct me.
No. I think that Lady Dorrian envisaged that, if that sort of case remained in the High Court, we would ensure that relevant provisions were in place whereby a High Court judge who was trained in trauma-informed practice and who might be a judge of the sexual offences court would preside over the case.
I apologise if you might interpret our initial view as being not to include murder cases in the specialist court, but there are these extreme examples. There are transfer powers in the bill that would allow applications to be made and the potential for a case to go into the specialist court to be discussed and determined.
In which case, if there is the ability to impose the trauma-informed best practice of the sexual offences court on a High Court murder trial, does that not make you ask why we would bother with the great cost and effort of creating sexual offences courts in the first place?
The fundamental point of doing this is to look at what happens in our system currently through the lens of those who come through the system—from the complainer’s perspective. From my involvement in the various reviews, there is absolutely a need for and room for improvement in what we currently have in the Scottish jurisdiction. Creating specialist courts is one way in which we can make a fundamental change in what we do to try to make improvements.
We also have to look at the case volumes. Although just under 50 per cent—or 50 per cent on average—of indictments to the High Court equate to sexual offences cases, that increases to 74 per cent of trial courts. That means that 18 of our 22 trial courts are already dealing with sexual offences whereas, as you would appreciate, a smaller proportion deal with murder. Therefore, as expressed by David Fraser and Lady Dorrian, we need a clean-sheet approach.
Although exceptions could be made to support exceptional cases that involve a combination of murder and serious sexual offences, in a large proportion of cases, we need something more than that. You will note that, in our written submission, we strongly support the creation of the court.
I apologise if I have gone over time.
The proposed judge-only rape trials are, arguably, the most contentious part of the bill. The SCTS supports those. It supports the creation of a sexual offences court, the anonymity of victims, legal representation for victims and, indeed, judge-only rape trials. Given your role as almost a neutral party in many respects and given the opposition to judge-only rape trials in particular, has any consideration been given to the courts service being seen to be less supportive of a Government or establishment view on the need for all those radical measures?
The Scottish Courts and Tribunals Service, as an organisation, exists to support the judiciary and deliver the best that we possibly can in running, and supporting the running of, the courts. From our perspective in the organisation, the creation of a single-judge or juryless court is something that we can do, and we support it for the reasons set out—namely, that there is no evidence base to determine some of the things that were talked about at the time of the review and beyond. From my perspective, it creates an opportunity, if you set it within the parameters of a time-limited pilot process rather than a normal pilot, which we would start and just continue. We would do it for the purposes of gathering the information to have the debate about what is best as we move forward. There are benefits to doing that.
Good afternoon. I will stick to the line of questioning that I followed with the previous two panels of witnesses, which is on the issue of independent legal representation. Your submission is different to those of Lady Dorrian and the Lord Advocate, in that you raise concerns about the resource implications and the possibility of delays to cases. Can you expand on those concerns? Is there any merit to the suggestion and, if so, how could it be achieved, if not through the bill?
In the first instance, I stress that we support in principle the creation of independent legal representation to support section 275 applications. As a member of the review, we supported Lady Dorrian through those recommendations. To clarify, our criticisms and our concerns about delay and churn are a consequence of aspects of how the provision is presented in the bill—the procedures and practices suggested in the bill. Those are our main concerns. I can articulate them fully, if that would help.
Our particular concern relates to what we refer to in our submissions as the disclosure process, whereby a new process is created in the bill to allow documentation to be given to the complainer’s independent legal representative. From our perspective, that is a rather convoluted process that will increasingly require additional judicial resource and result in an increase in judicial court time. Most importantly, contrary to the intentions of Lady Dorrian’s review and the bill, it will build in churn and delay for complainers. That is because an additional process to disclose information to complainers before the decision on an application can be made has been built in to the process.
A lot of other steps that depend on the outcome of a section 275 application also impact on the complainer. If an extra hearing is needed before the section 275 decision, we cannot then have the ground rules hearing. A decision on the section 275 application is needed to allow the ground rules hearing to take place to allow a commission to take place. Therefore, it builds in unintended consequences—I stress that they are unintended. I said that the process is convoluted, but it is clearly unintended delay. From our perspective and, as Lady Dorrian alluded to, the process that the bill would create could be greatly simplified.
It also fails to address some of the key parts of Lady Dorrian’s recommendations. There is no certainty or clarity in the bill as to what will happen if a section 275 application is made during a trial. The inference is that we will have to stop and delay the trial for an indefinite period, which will inevitably cause complainers, the accused and all involved in the process concern and delay.
I can provide further clarity, if that would help. The key point of the disclosure process, as I understand it, is to allow the complainer to have additional information to respond to the section 275 application. Currently, the engagement with the complainer is by the Crown. As I understand it, that additional information is not necessarily part of the information that the Crown needs to give to the complainer, to advise the court of the process and to allow the court to make its decision.
I will just clarify that we are supportive of independent legal representation, as we have stated, for all the reasons that have been discussed. It is purely in relation to the mechanism of how it is envisaged that it would work that, as an organisation, we think that the process needs to be streamlined and perhaps revisited. We are happy to work with the Scottish Government to look into that dimension, if that would be of assistance.
That was my next question. It sounds like you are supportive of the principle but, like the Lord Advocate, you perhaps have concerns over how the arrangements might work in practice.
My next question, then, is: how do we make the process work more easily? What is the answer? It may not be so simple, but you are saying that you would be happy to work with the Scottish Government. At this stage of scrutiny of the bill, it would be helpful for us to understand how things could work.
That is an excellent question, to which I do not have an answer, to be absolutely honest. We need to consider the alternative. It is not really for the SCTS to develop the policy, and you are asking me to do that. We are happy to give our input as to how, from an operational perspective, we would view a system that would introduce independent legal representation, avoiding some of the churn that we currently envisage. We are happy to have discussions on that.
That is probably as far as I could go.
I am not really asking you to develop the policy. You have been clear that you have issues with the proposals as they are set out, and I was asking whether you had any thoughts or suggestions as to how they could be rectified and how the policy might work better in practice. However, I accept your point that this will take further discussions.
To supplement David Fraser’s comments, we are open to discussion and to working with justice partners. The key areas would be the disclosure exercise and identifying some of the key aspects that Lady Dorrian recommended that are not currently in place around what is to happen regarding trials. What needs to be dealt with? How are applications under section 275(9) of the 1995 act to be dealt with? Some matters are just not addressed, and some timescales, which would give the court and all parties greater certainty, are not identified in the bill.
I have probably gone out on a limb in stating those points, but you asked the question, Mr MacGregor, and those are the areas where we are happy to have further discussions with the Scottish Government to allow for a more efficient process to be developed for all concerned. That is the point: we support the provisions, but some of the mechanisms that have been put in place in the bill as drafted will unintentionally delay complainers getting their evidence taken, and they will delay the journeys of all partners involved.
I am looking for some clarity from you, Danielle. The proposals that we have to scrutinise are huge, so it is really important to understand what the measures would look like if they were passed into law. I am sure that you will tell me if you are the wrong person to respond to this.
Something is confusing me about an answer that you gave to a question from Russell Findlay about a murder case. At the moment, murder can be tried only in the High Court, because it is the most serious crime and it attracts the highest sentence. If there is a sexual element, it will attract an even higher sentence. That is where I need clarity. Surely there could be no change to that. I am concerned about there being some grey area, such that murder cases could go to a court that is designed for sexual offences. I do not understand why there is any grey area for cases where the victim is dead. Will you explain?
I think that Lady Dorrian did not want that grey area. She wanted murder cases to remain in the High Court. If there was a charge or element of sexual offence to a murder case, that could be addressed by ensuring that the relevant court staff and judiciary were there. The bill and the provisions—
Would a murder case with a sexual element go to the High Court?
That is what Lady Dorrian recommended.
Is that your evidence?
Yes.
I misunderstood what you said to Russell Findlay.
I apologise.
That is clear. Will that change?
No, but the bill as drafted allows a murder case with a sexual element to go to the sexual offences court.
That is exactly the point. Who do I need to address that question to? I do not understand why that would be consistent with what the bill is trying to achieve. Do you see what I am saying? We have heard evidence about—
I will come in on that to provide a wee bit of clarification. We have quickly looked at the policy memorandum for the bill. Paragraph 282 says:
“For the avoidance of doubt, the decision as to whether any individual case, including those involving rape or murder, is to be prosecuted in the Sexual Offences Court, will be a decision for independent prosecutors acting on behalf of the Lord Advocate. The Bill permits, rather than requires”—
The point, convener, is that at the moment it is not a decision for the prosecutor. Murder is automatically tried in the High Court. No Lord Advocate or prosecutor can take it to any other court, because it is the highest court. My concern remains.
I realise that my question should be directed to the Cabinet Secretary for Justice and Home Affairs, because the bill leaves it open for a prosecutor to allow the prosecution of a murder in the sexual offences court. That is a matter for the cabinet secretary.
On that note, we are running out of time, so I thank our witnesses for attending. The session has been helpful. That completes this agenda item.
I remind members that we are meeting again tomorrow at lunch time to look at the management of transgender prisoners and two related Scottish statutory instruments.
Next week, we will return to the Victims, Witnesses, and Justice Reform (Scotland) Bill with evidence from survivors of sexual offences cases and then from victims and survivors organisations. I am sure that it will be a powerful and important session, and I pay tribute in advance to those who will attend. We now move into private session.
13:02 Meeting continued in private until 13:06.