The next item of business is a debate on motion S6M-12922, in the name of Angela Constance, on the Victims, Witnesses, and Justice Reform (Scotland) Bill at stage 1.
I invite members who wish to speak in the debate to press their request-to-speak button. I call the cabinet secretary to speak to and move the motion.
15:00
I open the debate with my thanks to the Criminal Justice Committee for its stage 1 report on the Victims, Witnesses, and Justice Reform (Scotland) Bill. It represents comprehensive scrutiny, over many months, of an important bill that aims to improve the experience of victims while protecting the rights of the accused.
I welcome that the committee took evidence from victims and survivors, and that it did so in a way that supported them to tell their story and be part of improving the justice system. I thank everyone who gave evidence to the committee, particularly victims and survivors, who—quite rightly—are at the centre of bill and the process of reform.
I want to reflect on why the bill is needed. Scotland’s justice system has evolved over centuries. Similarly, our definitions of what is criminal behaviour have changed over the years, reflecting changes in societal attitudes. Those two elements go hand in hand: our system must be capable of delivering justice for victims of all crimes and adapting where it is not serving us well. No part of the system should be exempt from scrutiny.
Although there have been positive, iterative reforms over the years, the committee has heard compelling evidence that, for many, the process of getting justice is just as traumatic as the crime itself, or, where a case results in a verdict that has no definition and cannot be explained to the victim or the accused, it can feel like there has been no justice. That is simply not good enough.
The bill proposes a package of reforms that responds to the views and concerns shared by victims and survivors. It is informed by the work of the victims task force; Lady Dorrian’s review, “Improving the Management of Sexual Offence Cases”; and independent large-scale jury research.
We want to deliver a system in which victims are treated with compassion and their voices are heard; that meets the needs of survivors of sexual offences, the majority of whom are women and girls; and that is more modern and transparent, enhancing public confidence.
I am pleased that the Criminal Justice Committee supports the general principles of the bill. I welcome the committee’s recognition of justice agencies’ commitment to trauma-informed practice, alongside an acknowledgement that more needs to be done to embed that across the system.
The bill creates a statutory definition of trauma-informed practice and introduces a requirement for justice agencies to set standards for, and report on, trauma-informed practice.
The bill will strengthen on-going non-legislative work, including the knowledge and skills framework, which was introduced last year. The committee heard from many witnesses that legislation is key in that regard. As Lady Dorrian said,
“it will provide the ... impetus towards creating that necessary culture change.”—[Official Report, Criminal Justice Committee, 10 January 2024; c 6.]
The bill recognises that civil proceedings can also cause trauma. It enhances protection for vulnerable parties and witnesses in civil cases, by extending the use of special measures and by protecting people who have suffered abuse from being cross-examined by their abuser.
The bill seeks to reduce trauma and improve experiences through the creation of two new automatic rights for victims of sexual crime.
The right to anonymity for victims of sexual and certain other offences is particularly important in today’s social media age. It will help protect victims’ privacy and dignity and may increase the confidence of victims to report offending.
The publicly funded right to independent legal representation for complainers when requests are made to lead evidence about their sexual history or character is a substantial change to a deeply intrusive aspect of sexual offence cases. It will mean that a complainer is recognised as a party in the proceedings in respect of such applications, helping to ensure that they understand the process and that their voice is heard.
I very much welcome the committee’s view that the not proven verdict has “had its day”. It is a verdict that is not defined or well understood, and which can lead to confusion and trauma for victims and stigma for the accused. The bill will abolish the not proven verdict in all criminal cases and retain the widely understood verdicts of guilty and not guilty.
I recognise that the bill raises challenging issues and that some proposals were not supported by the committee, including the jury reforms that accompanied the removal of the not proven verdict. The bill proposes reducing the number of jurors in a criminal trial from 15 to 12 and changing the size of the majority required for a conviction from a simple majority to two thirds.
The Scottish Government’s position is based on evidence that suggests that moving to two verdicts while retaining a simple majority will lead to an increase in convictions in finely balanced cases. No other similar jurisdiction in the world considers it appropriate for convictions to be based on a simple majority decision. The evidence also tells us that groups of 12 deliberate more effectively than groups of 15. However, we have always recognised that a range of experts have differing views on what reforms, if any, should accompany the abolition of the not proven verdict. I respect that the committee came to a different conclusion from what is proposed in the bill and I will think carefully about the issues that the committee has raised.
I am grateful to the cabinet secretary for giving way and for the remarks that she has just placed on the record, because this is a significant issue.
In her further consideration, will the cabinet secretary take into account the Scottish jurisdiction’s requirement for corroboration? That is a significant material factor in the judgment that she needs to make about the content of the proposal.
We will of course consider the debate in and around the jury majority with sensitivity and in depth, and we will look at all the relevant issues and engage with all the relevant stakeholders. This is an area of the bill that involves finely balanced judgments. We need to proceed in a manner in which we all work together and give careful and deep consideration to the issue. I reiterate the importance of this part of the bill and I reiterate that the Government will reflect in detail on the wide range of comments that the committee has scrutinised.
The proposed victims and witnesses commissioner will provide an independent voice for victims and witnesses, champion their views and help to ensure that their interests are at the heart of the justice system. I note the committee’s reservations, particularly around resource and the impact on victim support organisations. However, I believe that the role can be established in a way that is cost efficient and which will enhance the work of support organisations rather than diminish or duplicate their efforts.
During the evidence sessions, lack of accountability was an issue that kept being raised. No existing public body or organisation has the statutory power to hold justice agencies to account in relation to how the rights of victims and witnesses are met or upheld, nor can that role be given to a third sector organisation. The commissioner will provide that accountability.
I turn to parts of the bill that focus on sexual offences and where there are mixed views. Both Lady Dorrian and the Lord Advocate emphasised that we need to make seismic and structural statutory changes to ensure that victims and survivors have meaningful access to justice. The bill does that through the creation of a new national sexual offences court. Complainers’ experiences will be improved through greater use of pre-recorded evidence, better judicial case management and mandatory trauma-informed training for all involved in the court. A new and distinct court will bring about the necessary shifts in culture, practice and procedure. Cases will be brought to trial more quickly through more efficient use of existing court and judicial resources, helping to reduce delay, which is a significant cause of distress and trauma for complainers.
Victims cannot afford for us to rely on the historical status and structure of the existing court system to deliver changes that we all agree are needed and which the status quo has singularly failed to deliver. If we fail to take ambitious action now, we risk consigning victims to unnecessary retraumatisation through a court system that is not sufficiently specialised or focused on improving victims’ experiences. That is a risk that I am not prepared to take. I recognise that the committee has concerns about certain aspects of the court, and I will work very hard with members and justice partners to address each one.
The bill enables a time-limited pilot of single-judge rape trials. The proposal for the pilot is informed by complainers’ experiences of the trial process, by numerous studies on rape myths and by the fact that the conviction rate for rape is consistently lower than the rate for other crimes. Soberingly, new data that is based on management information from the Scottish Courts and Tribunals Service, and which we have included in our response to the stage 1 report, shows that, for the kind of cases that the pilot is intended to focus on—namely, single-charge, single-complainer rape and attempted rape cases—the five-year average conviction rate is just 24 per cent.
The purpose of the pilot is to provide much-needed evidence to let us have a properly informed debate on an enduring issue that undermines confidence in our criminal justice system. I acknowledge that there are differences of opinion on the court and the pilot. I will reflect on that, as I have already done in the response to the committee. I have intimated that I will lodge amendments at stage 2, and I will speak more about that in my closing remarks. However, it is clear that our justice system needs to change the way in which it responds to serious sexual offending.
As legislators, it is our role to determine the legal frameworks that ought to be in place, and no part of our justice system should be exempt from review and, if necessary, reconsideration.
The cabinet secretary already knows my position on juryless trials, so I will not reprise that. However, I would like clarification that the proposal is for a pilot of juryless trials for rape cases rather than serious sexual offence cases. I do not want the lines to be blurred. Can I have clarification on that?
I can give clarification to Ms Grahame that the pilot, whatever form it takes, is to look at rape and attempted rape cases. I have already given commitments to the committee to put more detail in the bill on the criteria for and the operation of the pilot.
The bill has been shaped by cross-sector consideration and collaboration, and I am absolutely committed to taking the same approach as it progresses through Parliament. I will work constructively with members from across the chamber, with our stakeholders and partners and with victims and survivors to deliver the transformational change that is required. I am sure that members will approach the bill in the same spirit in which we have thus far debated and discussed it in the committee process, which I believe has been to the highest possible standard.
I know that the issues that the bill deals with are significant and complex. As parliamentarians, we are making decisions that will have far-reaching consequences, but I believe that the case for change is clear and that the time for change is now, and that it is incumbent on us to work together to deliver the justice system that our society needs and deserves.
Giving evidence to the committee, Lady Dorrian said:
“if we do not seize the opportunity to create the culture change from the ground up ... there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.”—[Official Report, Criminal Justice Committee, 10 January 2024; c 22-23.]
I will continue to work with members, and I invite them to work with me on this landmark bill.
I move,
That the Parliament agrees to the general principles of the Victims, Witnesses, and Justice Reform (Scotland) Bill.
I now call Audrey Nicoll to speak on behalf of the Criminal Justice Committee.
14:15
I am very pleased to speak in this afternoon’s debate on behalf of the Criminal Justice Committee. I extend the committee’s sincere thanks to the clerking team, who worked tirelessly to support members in what was a significant piece of work, and to colleagues from the Scottish Parliament information centre and the participation and communities team—PACT—who also supported the committee throughout our consideration of the bill at stage 1.
The committee’s stage 1 report has been a major piece of work. From the outset, we were clear that we needed to take the necessary time to consider the bill in a thorough and balanced way. Beginning in September last year, we took 36 hours of oral evidence over 14 meetings. We received 262 responses to our call for views and heard from 64 witnesses. Our report is 200 pages long.
Not everyone will agree with all our conclusions, but we ensured that we heard all sides of the arguments on the main issues. Throughout our report, we referred to the important evidence that we heard from survivors of sexual crime, and I thank all those survivors who gave evidence. Their evidence was powerful and invaluable in helping us, as members, to shape our thinking about the bill.
The words of one of those survivors remind us all why the bill is so important:
“when we talk about what happened, each one of us mentions the exact date that our case went to trial. We remember the date that we were raped, but we also remember the date that we went to trial, because they are as traumatic as each other.”
I acknowledge the constructive way in which my fellow committee members worked together to scrutinise the bill. As a result, a great majority of our report was agreed unanimously.
I wish to highlight the main conclusions and recommendations that were reached by the committee. I will leave it to others to comment on the Scottish Government’s response to our report, but I thank the Cabinet Secretary for Justice and Home Affairs for her constructive engagement with the committee throughout stage 1 and for her willingness to consider changes to the bill following our recommendations.
Turning, first, to part 1 of the bill, on the proposal for a victims and witnesses commissioner, we heard evidence about the potential benefits of establishing the commissioner post. The commissioner could champion the voices of victims and witnesses, highlight areas of concern to policy makers and promote good practice. However, the committee heard about the wider implications of creating a new commissioner post, including the costs associated with having another commissioner at a time when public finances are under significant pressure. We also heard concerns that the commissioner could be another layer of bureaucracy and could stand in the way of victims and advocacy groups engaging directly with policy makers.
Overall, we remain to be convinced that a strong case has been made for the establishment of a commissioner. Instead, better outcomes may be achieved by focusing spending on areas where there is a more direct benefit for victims and witnesses. We recommend that, if a commissioner post is established, it should be for a time-limited period to allow for an assessment to be made of the value of the role.
Part 2 of the bill proposes embedding trauma-informed practice in the criminal justice system. As a committee, we support that objective. Some of the evidence from survivors about the trauma that they experienced as a result of their treatment in the justice system was truly shocking to hear. We made several recommendations about how that part of the bill could be improved. For example, the definition of trauma-informed practice should be strengthened to bring it in line with the knowledge and skills framework created by NHS Education for Scotland.
We concluded that training in trauma-informed practice should be extended to include defence lawyers and judges participating in all court proceedings. Although we recognise the independence of the judiciary, we recommend that court rules should require that court proceedings must be conducted in line with trauma-informed practice. We noted that legislation is not necessarily required to deliver improvements, and survivors highlighted improvements that could and should be delivered now.
Part 4 of the bill proposes to remove the verdict of not proven in criminal cases and to reduce the size of juries from 15 to 12, with a majority for a guilty verdict set at eight. Those are fundamental reforms of great significance to the criminal justice system. On the basis of the evidence that we heard, we concluded that the not proven verdict has had its day and it should be abolished. We do not think that it is satisfactory to have a verdict that has no accepted legal definition and cannot be explained to a jury. Furthermore, we heard compelling evidence about the devastating impact that the verdict can have on victims and, sometimes, the accused. The proposed changes to jury size and majorities are designed to balance the system as the Scottish Government believes that abolishing the not proven verdict will make convictions more likely.
However, we received contradictory evidence about whether those balancing changes are in fact needed. Notably, the Lord Advocate told us that the proposed changes were “very concerning” and that it was her view that acquittals could increase as a result. That left us in a difficult position when it came to drawing conclusions, given those conflicting views. Ultimately, although we supported the abolition of the not proven verdict, we did not hear compelling and convincing evidence to support the balancing changes to jury size and majorities proposed by the Scottish Government in the bill. Unfortunately, we also did not hear convincing evidence in support of any specific alternatives proposed by others. As such, we agree that the not proven verdict should be abolished and that further thinking needs to be done on what else, if anything, is required.
Part 5 of the bill proposes the establishment of a new sexual offences court, which would have the power to deal with a wide range of serious sexual offences, including rape, and other charges appearing on the indictment, including murder. Its jurisdiction would extend across the whole of Scotland.
Some members support the proposal for a new sexual offences court. For those members, the model of a new sexual offences court has the potential to deliver improvements in the handling of sexual offence cases that cannot be realised using existing mechanisms. Other members do not support a stand-alone sexual offences court. Their view is that it would be possible to achieve the necessary improvements through the creation of a specialist division of the High Court and the sheriff court.
Despite that difference of views, we agreed on a series of recommendations to enhance the proposals in the bill. For example, we made recommendations about the level of legal representation that should apply in the new court. It is important that there should be no perception that a sexual offences court lacks seriousness or solemnity. We also recommended that the Scottish Government amend the bill so that any case involving murder can be tried only in the High Court, as happens now.
I turn to the proposal to pilot judge-only trials for rape cases without a jury. That is a very controversial proposal on which there has been considerable debate. In our report, we set out in detail the wide range of views that we received. Ultimately, members of the committee reached different conclusions as to whether the pilot should go ahead and under what conditions. Those positions are set out in detail in the report. However, we made a series of recommendations, which were all agreed to by members.
We recommend that more details about the criteria for assessing the pilot should be included in the bill. Any regulations that are introduced for a pilot should be subject to more detailed consultation and parliamentary scrutiny, with time allowed for detailed consideration of draft regulations. We recommend that the Scottish Government should amend the bill to make it clear that the pilot could be run only once. Finally, we highlight the idea that an alternative to a single-judge trial would be a panel of judges.
I have given a short summary of some of the committee’s main recommendations, and I refer members to our conclusions on other parts of the bill.
Part 3 would expand the availability of special measures in civil cases. Part 6 would provide for independent legal representation for complainers when applications are made under rape shield provisions, and it includes provisions for automatic statutory anonymity for various sexual and related offences. In summary, we supported those provisions in principle, but we made some recommendations for improvement to the details in the bill.
Although the committee is content to agree to the general principles of the bill at stage 1, we note that further improvements can be made. Committee members did not support every proposal in the bill, but we all recognise that it has the potential to improve the justice system for victims and witnesses, and we wholly support that. For some members, the final composition of the bill at stage 3 will determine whether, ultimately, they feel able to support it. In the meantime, we stand ready to give the bill our detailed scrutiny at stage 2.
15:27
I thank the Criminal Justice Committee team for their assistance and not least for the unseen work of the eternally patient researchers and clerks. Committee members rely on witnesses sharing their insights, experiences and expertise, and particular recognition should be given to victims, including survivors of sexual violence, who waived their anonymity to deliver powerful and compelling testimony.
According to its title, the bill is ostensibly about victims. Members might not know that its working title was the “Criminal Justice Reform (Scotland) Bill”. The bill is mainly about justice reform, as the original name had it. It is a vehicle to deliver some of the most profound changes to Scotland’s criminal justice system for, perhaps, centuries. Some might like to describe the changes as bold and radical, but I believe that much of it is experimental and founded on wishful thinking rather than hard evidence.
It is unlikely that many members will have read our stage 1 report—all 205 pages of it—but I will attempt to summarise it. The bill is in six parts. Before I come to each part, I note that I believe that one of the most important overarching issues with the bill is that it is, frankly, far too big. The Government has a track record of bad law—clunky, confusing and unworkable. The Parliament cannot allow that to continue. In that vein, I am encouraged by media reports of some Scottish National Party members being willing to stand up and be counted today.
Part 1 of the bill would create the role of a commissioner for victims and witnesses. On the face of it, what is not to like? A commissioner would fight for the rights of victims and witnesses and be a champion for those who are afflicted by crime and justice system failures. However, the commissioner would not be able to become involved in individual cases, so what is the point? Does Scotland’s public sector really need yet another hugely expensive functionary producing reams of jargon? Committee members were not persuaded by the Government’s proposal for a commissioner—and that was unanimous.
Part 2 of the bill requires some criminal justice agencies to “have regard” to what is called trauma-informed practice. Having spent months talking about, and listening to people talking about, trauma-informed practice, I am still no clearer on its exact definition. Our stage 1 report raised numerous concerns, including the observation that
“legislation is not necessarily required to deliver improvements”.
I believe that that is a significant understatement. Victims and witnesses have been disrespected for far too long and a lack of basic compassion, courtesy and communication often causes great distress. Look at the ordeals of the seven women who appeared in the recent BBC “Disclosure” documentary “Surviving Domestic Abuse”—they do not want legislative platitudes.
It is notable that some of the justice organisations that back trauma-informed practice have a track record of failing victims. The new report by His Majesty’s Chief Inspector of Prosecution in Scotland, Laura Paton, says that many of her 27 recommendations relate to matters that are already required but that are not yet being routinely delivered by the Crown Office.
Part 3 of the bill would introduce special measures in civil court cases. Once again, on the face of it, that is largely agreeable. However, as our stage 1 report points out, legislation relating to special measures has still not come into force four years after being passed by Parliament. I raised the issue of what is known as “legal system abuse” with the cabinet secretary. That is when abusers, mostly men, who are facing criminal proceedings simultaneously weaponise the civil court system to inflict further trauma. I put a simple fix to the cabinet secretary, suggesting that the same sheriff should preside over connected criminal and civil cases. I felt that her response was lukewarm, but that practical measure could make a real difference.
Part 4 of the bill calls for the abolition of the not proven verdict.
Will the member accept an intervention?
I will.
I thank the member for his tone and for his thoughtful contribution. There you are.
When I was in practice as a civil practitioner many moons ago, that already happened. When one of the parties was involved in a criminal matter, the same sheriff would quite often sit in both the civil proceedings and the criminal ones, so that is nothing new.
I thank the member for her intervention and have dialled down my flamboyance for her today.
I agree. The member speaks to a point that is a recurring theme, which is that much of what could be done can be done without legislation.
The not proven verdict came into being entirely by accident, not by design, and does not exist in any comparable jurisdiction. It is an acquittal that is no different from a not guilty verdict but has no legal definition. Countless victims, and their surviving relatives, have been devastated by that verdict.
A guilty verdict can be returned only when the Crown Office proves its case beyond reasonable doubt. If it has not done so, an acquittal must follow. I therefore do not see how case outcomes would be altered by the removal of the not proven verdict.
That brings me to another provision in part 4, one that the Government thinks is needed alongside the abolition of not proven. The Government wants to reduce jury size from 15 to 12, which would be consistent with comparable international jurisdictions. The existing system allows for a guilty verdict on the basis of a simple majority of eight out of 15, but the Government seeks to change that to a two thirds majority—eight out of 12—for conviction.
That proposal appears to please no one. Defence lawyers say that it is inconsistent with international practice, where either unanimity or a majority of 10 or 11 out of 12 is required, while the Lord Advocate would like the bill to be amended to include provision for a retrial in the event of seven out of 12 jurors believing that the accused is guilty. The committee is not convinced that abolishing the not proven verdict necessitates changes to juries. Members agreed unanimously that the evidence is not there for that.
Part 5 seeks to create new sexual offences courts, which would be not new courts but existing courts with different signs on the door. One of the committee’s concerns is that they might result in a perceived downgrading in the treatment of sex crimes, and another is that they could hear murder cases where charges of a sexual nature are also on the indictment. In response, the Government has said that it is considering stage 2 amendments. I look forward to seeing the detail of those.
Part 6 seeks to give sex crime victims automatic lifelong anonymity. It is a tribute to Scotland’s news media that that right has long been respected by convention alone. However, although we support the proposal, there are unresolved issues relating to potential criminalisation of free speech. Part 6 would also give complainers in sex crime cases the right to legal representation in specifically defined circumstances. That is another proposal that instinctively seems agreeable, but there are concerns about the financial cost and fears about the unintended consequence of adding to delays for victims.
I will end on the Government’s single most contentious proposal, which is to scrap juries in some rape trials. That would be a departure from the long-established right of a person who is accused of a serious crime to a trial by a jury of their peers. We believe in the value of juries, which are the cornerstone of the justice system. They reflect wider society and comprise a diverse range of views and life experiences. There is insufficient evidence to justify what would amount to an experiment with people’s lives.
One argument for the proposal is that jurors—in other words, the Scottish public—are prone to believe so-called rape myths, but where is the evidence for that? Furthermore, it was only late last year that Scottish judges began to address jurors about rape myths, despite that being long-established practice elsewhere in the UK, and we really need to see what impact that will have. In addition, as much as ministers might want to wish away threats that such proceedings would be boycotted by lawyers, they cannot do that. The Scottish Conservatives also have other concerns about juryless trials, which are set out in the stage 1 report.
We find ourselves in a difficult position today—a position that is of the Government’s making. My party’s Holyrood manifesto contained a real victims bill in the name of our next speaker, Jamie Greene. It also included abolition of the not proven verdict. However, the bill that is in front of us today is vast, unwieldy and complex. There is a lack of evidence, there are too many unanswered questions, and it is experimental—perhaps even dangerously so. The Government appears to be experimenting in much the same way as a mad scientist at work. Another committee member described the bill as being like a Rubik’s cube in that, if you fix one side, you realise that you have messed up the rest of it.
It would be easy to vote against the bill today, but we will instead abstain to send the Government a very clear message. The bill can be fixed and it must be fixed. The Government needs to engage, to listen and to think again.
15:38
I sincerely thank my colleagues on the Criminal Justice Committee and the committee clerks for what is an excellent report. The convener outlined its contents earlier. It is clear that we need transformative change in our justice system for victims and complainers when it comes to rape and sexual offences. I, too, welcome the fact that we were able to engage so closely with the victims who put themselves forward to speak to the committee.
Scottish Labour supports the Government’s aims and the view that it is time for change, but we believe that it needs to have a comprehensive plan to look separately at each reform in the bill. We believe that there is too much substantial reform for one bill.
We also believe that a lot can be achieved without legislation. In fact, some of that change is already beginning to happen. Examples are the giving of evidence by commission, which the cabinet secretary mentioned, and the tightened application of section 275 of the Criminal Procedure (Scotland) Act 1995 for rape trials. As we heard, the Lord Advocate has made a huge difference in ensuring that victims get more access to their lawyers, and the judge is now required to charge the jury specifically on the question of rape myths. I give all credit to all those who have been involved in that.
I wonder whether Pauline McNeill is aware of the written evidence of the senators of the College of Justice, in which they said that, despite the new jury directions, juries were still regularly acquitting in cases in which the judge believed that there was “credible and reliable evidence” for a conviction.
I acknowledge that, but I hope that the cabinet secretary agrees that some progress has been made, in that judges are now expected, in every case, to talk about rape myths. I credit Rape Crisis Scotland and other organisations for making that happen.
However, from listening to victims, it is clear that we need to break down the barriers that prevent them from telling their story in court, and to allow more access to advocate deputes. We heard from victims that they feel like bystanders at their own trial, and we absolutely must fix that. We support the embedding of trauma-informed practices, which is included in the bill, although, as the committee has said, the scope of trauma-informed practice should be extended to all practitioners, including the defence.
A whole-system approach needs to be taken in order to make the system better for victims. We talked about a single point of contact. From the pleadings of victims to the Criminal Justice Committee, it is clear to me that they want to have a single point of contact, communication with the Crown, communication with the advocate deputes in their case and an understanding of what is going on in the trial that concerns them. We can do that without legislation.
Delay is one of the biggest reasons why victims are exercised about how the criminal justice system treats them. I point out, as I have many times, that even laws that are passed by the Parliament to prevent delay, which specify that there should be a criminal trial within 140 days, are excessively exceeded, as they have been for several years.
We also support anonymity for rape victims.
However, most of the other changes that are proposed in the bill are still problematic, and I will go through them in some detail.
Scottish Labour opposes the use of juryless trials as set out in the bill. It is concerning that the proposal is described as a “pilot”. Sheila Webster of the Law Society of Scotland made the point that
“It is not truly a pilot. We are talking about live cases here. People’s lives will be permanently affected, and at the end of the pilot we might decide that it was not a very good idea.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 62.]
A key issue is that of what would constitute success. I acknowledge that the Government has said that it will put that in the bill, but we have been told that although it is not designing a system specifically to increase conviction rates, it will still assess outcomes—which, we assume, will include conviction rates.
In relation to the pilot, Professor James Chalmers told the Criminal Justice Committee that
“it would be surprising if conviction rates did not factor in the decision whether to go forward with the reform”—[Official Report, Criminal Justice Committee, 24 January 2024; c 24.]
and, despite the Government’s claims, legal professionals have voiced their concerns that conviction rates are likely to be used as a marker of success.
Does Pauline McNeill believe that a 24 per cent conviction rate in single-charge rape cases is acceptable?
No, I do not. In case the member has misunderstood my point, the Government has said throughout that it is not specifically aiming to increase conviction rates, but it is unclear how the success of the pilot’s outcomes will be measured. That is a particularly important point.
I come to the question of low conviction rates. Simon Brown, from the Scottish Solicitors Bar Association, pointed out to the committee:
“If we drill down to basics, the pilot is a response to a perception that the conviction rate for rape trials is too low. Therefore, by any objective test, the pilot can be a success only if it increases conviction rates. If it does not increase conviction rates, what is the point of it?”—[Official Report, Criminal Justice Committee, 6 February 2024; c 4.]
Clearly, we must have fair and balanced outcomes. I agree with the Government that it would be dangerous to set out to reform a criminal justice system specifically to increase conviction rates. I support Rona Mackay’s assertion that the conviction rate is too low. However, a lot of evidence suggests that supporting victims in court to tell their full story will lead to better-quality evidence and more convictions. Nobody can tell me that that can be overturned.
Will the member take an intervention?
Is there any time in hand?
Yes—there is a limited amount of time in hand.
I will take an intervention from Christine Grahame.
I am not on the committee, and I do not understand section 65(1), which says:
“The Scottish Ministers may, by regulations, provide that trials on indictment for rape or attempted rape which meet specified criteria are, for a specified period, to be conducted by the court sitting without a jury.”
What are those specified criteria?
That is one of the things that the Government has responded to—it will put the specified criteria into the bill. That is what I was trying to speak to, because I still have issues with that. For example, the Government has said that one of the criteria will be how single-judge trials are perceived by those people who are part of the trial process. As you can see, that is very difficult to measure.
I will make a final point on juryless trials: the fact that the Government has now said that it does not intend to bring that measure forward until 2028 is of serious concern to Scottish Labour because, if the Government thinks that there is a benefit to having juryless trials, it should really introduce them in the current parliamentary session.
We support the removal of the not proven verdict, because we believe that it has had its day, but a serious issue remains with how we balance the system to ensure that it remains fair. I think that the Government is coming from the right place in that regard, but suggesting that a jury majority would remain at a simple majority of one in order to convict is wrong. The Government’s problem is that there is no consensus now on what that majority would be. One of the Government’s assertions—rightly so—is that Scotland is the only jurisdiction with a not proven verdict, but we would be the only jurisdiction with a majority of eight out of 12 members.
I know that I need to wind up, Presiding Officer, but, with regard to the specialist courts, Scottish Labour has suggested that we could resolve the issue of rights of audience—which is a serious issue, especially for the accused—and get the balance right by the High Court and the sheriff court having a specific division for that. As things stand, we cannot support the proposals in the bill.
We think that there is too much reform in one bill. We need to examine at stage 2 which of the reforms can really make a difference. The Government has a lot of work to do to convince us. We will be abstaining this evening and, if we cannot resolve those issues at stage 2, we will vote against the bill. It is up to the Government to show that it can resolve some of the outstanding issues.
15:47
I greatly enjoyed my time on the Justice Committee in the previous session and often find myself missing it, but I do not envy Audrey Nicoll and her colleagues the task of scrutinising this wide-ranging bill. However, I sincerely thank the Criminal Justice Committee for its diligent work, and I add my tribute to the survivors of rape and sexual assault, in particular, for sharing their experience and informing what I think is an excellent stage 1 report.
I also thank the cabinet secretary and her officials for the time that they have taken to engage with me on the many issues arising from the proposed reforms. We have not always agreed, but I am grateful for the characteristically constructive way in which the cabinet secretary has gone about that task.
This is a tricky bill to speak to, as others have alluded to. It is both expansive and complex, and its complexity is born not just of the number of provisions but of their variety. Russell Findlay made that point. The bill brings together the recommendations of Lady Dorrian’s review, alongside other changes. Matters are further complicated by the fact that important changes, which have long been demanded by women’s groups and victims groups, have recently been introduced not by Parliament but from the bench.
In last year’s Lord Advocate’s reference, by overturning Smith v Lees, the High Court appears to have overhauled the principle of corroboration as it applies to sexual offences. As a result, the situation that faces Parliament now, as it considers the bill, is very different from that which applied when the bill was introduced, let alone when Lady Dorrian came forward with her review.
Of course, there are reforms in the bill that are needed—and which, some would argue, are long overdue—and that enjoy fairly widespread support. For example, the introduction of independent legal representation for complainers is very welcome. At present, under section 275 of the Criminal Procedure (Scotland) Act 1995, complainers can be questioned about aspects of their
“sexual behaviour not forming part of the subject matter of the charge”.
In reality, that has often opened up a situation in which victims have their privacy violated.
The recent legal victory by pioneering campaigner Ellie Wilson against the advocate who cross-examined her will, it is hoped, lead to real change on that front. However, we should not be placing the burden on victims to fight long and drawn-out battles just for the right to decent, fair and respectful treatment in court. They deserve the right to have someone who will fight their corner. That is what the bill gives them, and Scottish Liberal Democrats warmly welcome that reform, as well as the reform to confirm the anonymity of rape victims. Russell Findlay was right to pay tribute to the media for the way in which they have observed that in practice.
Other aspects of the bill are more concerning. Although I do not have time to go into each of those, I will touch on a few that other members have mentioned. The first relates to the introduction of a specialist sexual offences court and a pilot of juryless trials. I recognise the rationale for those proposals and the reasons why Lady Dorrian came forward with her original recommendations. Nevertheless, I still share the concerns that have been expressed by many, both within the legal profession and among colleagues across the parties, in relation to that aspect of the bill.
Overturning a key tenet of our legal system in Scotland was always likely to stir up a reaction. I know that the justice secretary has sought to respond constructively, but I think that it is fair to say that she has so far been unable to allay those concerns. Defence practitioners have made clear their outright opposition, which makes it unclear how any pilot might work, or indeed what success might look like.
Postponing the pilots until 2028 may sound like a compromise, but it raises the question of why on earth Parliament would put a provision in a bill today, rather than leaving it to a future Government and Parliament to decide, further down the line, whether it was felt to be necessary or appropriate in the light of circumstances at that time.
The Diplock standards for juryless trials elsewhere in the UK include an expanded right of appeal for the accused on matters of fact as well as law. That is a safeguard against case hardening, in which judges, who may think that they have heard it all before, begin subconsciously deciding the facts based on their experience of similar cases and not on the merits of the evidence. The UK Supreme Court has reiterated the importance of that safeguard, as did the Dorrian review itself, yet the Government’s proposals include only a narrow right of appeal on matters of law. I understand that the justice secretary has indicated her willingness to make changes, but the proposal seems, at this point, to be beyond salvation.
On a more positive note, Scottish Liberal Democrats remain supportive of the proposed abolition of the not proven verdict, which—as Audrey Nicoll and others suggested—has had its day. Nonetheless, like many witnesses and members of the Criminal Justice Committee, and even the Lord Advocate, we are not convinced about the proposed changes to jury size and majority rules. That aspect may yet be salvageable, but the Government has its work cut out.
Plans to create a separate victims commissioner appear to be well meaning but are misguided. Instead of swelling the ranks of commissioners and ombudsmen, there is a much stronger case for using any resources that are available to support existing organisations that currently do invaluable work in supporting victims, highlighting their needs and advocating on their behalf.
With this bill, the cabinet secretary appears to be adopting the kitchen-sink approach to justice reform. I appreciate the attraction of doing so when it comes to the interests of victims and witnesses, but I worry that the Government may be biting off more than it can chew in a single piece of legislation. For that reason, while I will certainly be happy to take up the cabinet secretary’s offer of continued engagement, as I will with the committee, I find myself very much in the same position as Pauline McNeill in not being able to support the bill at stage 1.
We move to the open debate.
15:54
Getting the Victims, Witnesses, and Justice Reform (Scotland) Bill to this stage has been a marathon. As a member of the Criminal Justice Committee, I too thank our wonderful team of clerks and researchers, and our convener, Audrey Nicoll, for steering us through so skilfully to get us to where we are today.
The committee is agreed on the aim of the bill, which is to improve the justice journey for victims and witnesses and to ensure that victims of sexual and gender-based abuse are supported in a trauma-informed way when they are at their most vulnerable.
The testimony that we heard from survivors of sexual abuse was shocking and disturbing. At its outset, our stage 1 report highlights quotations that powerfully illustrate the need for the bill. Hannah McLaughlan said:
“Survivors endure trauma as a result of the abuse that they go through, but, having come through the justice system, I would say that I endured trauma not only from my abuser but from the system that is supposed to provide me with justice. That is not acceptable”.
Ellie Wilson said:
“Survivors of sexual abuse have already had their agency stripped from them, yet they partake in a criminal justice system that further strips it from them. We are treated like outsiders throughout the process.”
Another witness said that she felt as if she was “missing” during the process. Another said that she was so traumatised that she could not remember her name in the witness box. I could fill my contribution with quotes such as those, each one powerful and heartbreaking.
Last week, a report by HM Inspectorate of Prosecution in Scotland claimed that Scotland’s prosecution service is failing victims in domestic abuse cases. The report concluded that better communication with survivors is needed and recommended a more victim-centred approach. The Crown Office and Procurator Fiscal Service has said that it “profoundly regrets” that it has not always got communication with victims right.
The aim is clear, and doing nothing is not an option. That is the view of the Lord Advocate and of the Lord Justice Clerk, Lady Dorrian, whose review initiated the bill.
As we have heard, the bill is split into several parts. It is hard to do justice to all these huge issues in a short speech, therefore much detail will inevitably be missed in my contribution, but it can be found in our stage 1 report.
Does the member share the concerns that others have expressed about there being too much in one bill?
There is no doubt that it is a big bill, but we have taken a long time to scrutinise it and have heard a great deal of evidence. I agree that it is huge, but we have taken a lot of time over it.
Our committee, despite some differences of opinion—which are natural to have in relation to a bill of this stature—worked constructively from the start. That is why I am disappointed to hear that the Opposition parties intend to abstain on the vote today. What a missed opportunity.
On the proposal for a victims commissioner, we heard mixed evidence, and the committee was not convinced that the money could not be better spent on front-line services. However, the Government has highlighted that victim support organisations wish to see accountability and independent scrutiny of the system, and a time-limited period for assessment will be considered. I agree with that.
Trauma-informed practice cannot be a tick-box exercise. A requirement for it has to be embedded in the bill to deliver the pace of improvement that is needed, and that requirement must also apply to defence lawyers, who are currently excluded, for obvious reasons.
Abolition of the not proven verdict is, in my view and the committee’s view, essential to the reform of the justice system. It is outdated, it serves neither the accused nor the complainer, and it has to go. However, we did not hear convincing evidence that jury size or the size of majority should be changed. I am pleased that the Government will give consideration to the way forward at stage 2.
I whole-heartedly support the creation of a sexual offences court. The committee was concerned, however, that that would mean a downgrading of the seriousness of rape and sexual crimes, but I am reassured that that will not happen. Bringing sexual offences into a single forum with specialism in trauma-informed practice is long overdue, given that those crimes have doubled in the past 10 years. However, we believe that the same level of legal representation must apply, and I am pleased that the cabinet secretary will consider how that principle could be embedded at stage 2. Similar consideration will be given to where murder cases with a sexual element will be dealt with. The status of the new court is crucial, and I am glad that that issue will also be looked into at stage 2.
The conviction rate for rape is consistently lower than that for other crimes. Of course, that is partly due to the corroboration requirement, but a 24 per cent conviction rate for single rape case complainers is unacceptable. The Lord Advocate told the committee that, in order to improve the justice system for women, radical reform was needed. I accept that a rape trial pilot with a single judge, a judge with two lay members or a panel of judges is radical, but I believe that it is necessary if we are to improve the justice experience for women. Evaluation criteria and assessment of such a pilot are crucial, and that is the task of the current working group. The pilot would provide an invaluable opportunity to gather evidence on rape myths, which undoubtedly exist, as survivors know only too well. It would also create the opportunity to have written judgments from a judge, which would be a huge step forward for victims.
It is true that the committee was split on the issue of juryless trials. It is a bold proposal that I believe we should not shy away from if we truly believe in reform.
Today we vote on the general principles of the bill. The Government is committed to working with those who have concerns at stage 2. Over the past eight months, the committee has heard evidence from people who have been brave enough to speak out about their experiences. This is our chance to improve our ailing justice system and make it fit for the future. We would be failing in our duty to the people of Scotland if we did not pass the bill today.
I urge members to ask themselves whether our current system is working for those who find themselves on a traumatic justice journey and whether we could do better, and to vote to pass the general principles of the bill at decision time.
16:00
I thank members for their valuable contributions thus far. It is fair to say that the bill has been on a bit of a journey, perhaps much like my own from the front to the back benches over the past year and a bit. It is one of the largest pieces of legislation that I have come across in this Parliament, in terms not just of its length but its content and perhaps even its controversy. Many of its proposals have split opinion. Thank goodness that this is a stage 1 debate. Of course, members will do what they have to as we go through the process.
The fundamental point is correct: the bill is simply too big. It is trying to do too much in one place. It has also fallen into the trap that we often see in this place of a bill that has good intentions and contains many worthwhile proposals but also has major and controversial changes buried within it. That forces members to make a black-and-white decision at the end of the process on whether we support all of it or none of it. That is regrettable, and I think that many members will find ourselves in that situation in the months to come.
Not since 1707 has such a vast statement of intent about the future of Scots law been so publicly made. I commend some of the proposals in the bill. Many of them echo my proposals in the victims bill that I consulted on almost two years before the Government produced its proposals.
However, there are things in the bill that make me and others quite nervous, and I will focus on those. Some of the bill’s proposals raised judicial eyebrows. I do not think that they can be ignored, and much of that is well reflected in the excellent committee report. We have talked a little about the issue of juryless trials. It is fair to say that, if we were having this debate back in 1680, in the first iteration of this Parliament, people such as Sir George Mackenzie, the then Lord Advocate, would be relishing the conversation. Scots law is evolving—it has not stayed still over the centuries. It is right that we debate reform, but it is also right that that debate is an academic and informed one. I am afraid that the very short debates that we are prone to having in this Parliament is where we let legislation down. The bill needs hours and hours of scrutiny in this chamber.
Last year, when I had the justice spokesperson role, I raised concerns from the industry. I raised them not to be difficult, but because that is what people said to me when I consulted stakeholders. I said back then that pretty much every defence lawyer in Scotland would boycott a pilot for juryless trials, and that transpired to be the case. I also said back then—this is an important point—that, if the accused has no solicitor, it begs the question how on earth the trial could even be a trial, never mind a fair one. It is that issue of fairness that sits at the heart of my comments today.
It is not just me and not just defence solicitors, who of course are standing up for their clients, who have concerns, but Lady Hale, Lord Uist, Lord Sumption, the Law Society of Scotland, the Scottish Solicitors Bar Association and even the Lord Advocate and the Crown Office. They gave what I thought were very stark warnings to the committee and have been vocal about their concerns. I urge the Scottish Government to proceed with caution and to listen to those learned voices as it follows through on any changes such as the introduction of juryless trials.
There has been talk about comparisons with European systems, but let us not forget that Scotland has a fundamentally different legal system. We have an adversarial system not an inquisitorial one, and because of that important distinction, we cannot make comparisons of that nature.
Part 4 of the bill is the big part that is controversial. The argument against removing the archaic not proven verdict is an important one. Many of us have campaigned for the abolishment of that verdict for many years, and it has featured in our respective manifestos. It has been a key component of my proposals, and I am pleased to see it reflected in the Government’s proposals.
Will the member give way?
I do not have time. I wish that I had an extra few minutes to do so. However, I am happy to discuss any of these matters after the debate.
We always knew that, although the not proven verdict had a historical place, in today’s context, there was a clear lack of understanding of its use. It is for that reason that the committee has rightly said that it must be removed. However, I do not understand why the Government felt the need for the removal of the not proven verdict to go hand in hand with direct proposals to reduce the jury size and to move from a simple majority to a two-thirds majority. Those things have been around since the 16th century, and it is really unclear where the ideas for those changes have come from and what evidence underpins the proposals. The most important issue is what happens to outcomes. We have heard very little evidence of substance on modelling in that regard. Very unusually, the Lord Advocate herself intervened in that respect, and, as she sits as a member of the Government, she should be listened to. She had profound concerns that the proposals may lead to an increased number of acquittals. That would be a perverse outcome of a bill that purports to be all about victims.
In the short time that I have left, I want to make two final pleas to the cabinet secretary about two elements that are not in the bill but should be, despite my having complained that the bill is too big. We have missed an important opportunity. It will come as no surprise to the cabinet secretary that I am campaigning for the inclusion of elements of Michelle’s law and Suzanne’s law. Elements of Michelle’s law have, of course, been improved in recent years. When Humza Yousaf was the Cabinet Secretary for Justice, he said to the BBC in an extraordinary interview that he was surprised that the Stewart family felt that he had not delivered on his own promise of making progress and that it was somehow their interpretation of what progress had been made that was the problem and not the lack of progress itself. I hope that that is a mistake that the current cabinet secretary will not repeat.
Suzanne’s law has, of course, been brought back into focus. Last October, there was a very sad development, in that Edward Cairney, who was the convicted murderer of Margaret Fleming, died in prison, taking his abominable secrets to the grave. To this day, Margaret’s family still do not know where she is, and too many parents will go to the grave without closure. We have to fix that, and I will work with the cabinet secretary on that if she has the willingness to do so.
As I said at the beginning, and as my proposed victims bill intended, victims must rightly be at the heart of changes to our justice system, but that must not happen at the expense of fair justice and the rights of every citizen of Scotland, which are the cornerstone of our democracy and our legal system.
16:07
The purpose of the bill is to address some of the long-standing concerns raised by victims and witnesses surrounding their experiences in the criminal justice system and to act to improve the outcomes for those who are the victims of sexual crime. I do not doubt that every member of the Scottish Parliament wishes to see the purpose of the bill succeed, although I also recognise that members will have different views on how best to achieve that purpose.
One of the problems with which we wrestle as a Parliament is that, in our current discourse, we often exaggerate the scale and nature of those differences of opinion. The Criminal Justice Committee’s stage 1 report is a very good example of how to openly air differences of opinion and try to find a way to reconcile those differences in a coherent and respectful fashion.
I welcome the fact that all members of the committee supported the general principles of the bill, with some important caveats that the Scottish Government must consider should the bill proceed beyond stage 1. That is surely the correct way to proceed. We all want to see action to improve outcomes in the criminal justice system for victims of sexual violence, but we need to focus on how to get that right at stages 2 and 3.
I also welcome the tone and substance of the Scottish Government’s response to the committee’s report. The Cabinet Secretary for Justice and Home Affairs is demonstrating a clear willingness to listen to different views, and she should be commended for doing so on such a difficult set of issues.
There is much to welcome in the bill and to merit our support. The provision to mandate trauma-informed practice in all the work of the criminal justice system is a welcome step to improve the experience of victims and witnesses in the criminal justice system. If that was all very straightforward, surely that would be happening now, but the fact that it is not means that we need to legislate to make sure that it happens.
The proposal to establish a sexual offences court will create the opportunity to ensure that sexual crimes are tried in a more appropriate environment that will embed trauma-informed practice and that has been specifically established to improve handling in such cases.
I accept the argument that a new court is required to ensure that that can be done, because I do not believe that the adaptation of existing structures—which the legal profession has argued for and could happen today if there was the impetus for it, but that has not happened—will provide the appropriate environment in which that objective can be achieved.
The most controversial aspect of the bill is the concept of the juryless trial pilot. Given the opportunity to conduct trials without the performative approach to jury persuasion, the concern about the existence of rape myths and the requirement for written judgments to be delivered, I believe that the trial would be a valuable intervention to explore how best to try such cases. I recognise that, in the Scottish Government’s response to the committee, the cabinet secretary said that she is willing to consider measures that might address concerns about the proposal. The approach that she has taken is welcome.
Given that the Government has responded with the criteria for what would constitute success for the juryless trial pilot, does the member accept that, if the Government thought that the trial was successful, that would indicate that we would not have juries for rape cases in the future?
During the committee’s transactions, I very much agreed with Pauline McNeill on the importance of there being open and transparent criteria for the evaluation of the pilot. That is essential before we go any further. That detail must be in the bill, because it will give the Parliament the confidence that there is an established basis for evaluating the performance of that measure. We should consider the evidence because, as the committee has wrestled with, there is not always an abundance of evidence on many of these questions.
Will the member take an intervention?
If Mr Marra will forgive me, I will not. I do not have much time, and I want to make another substantial point.
I am wholly supportive of the proposal to abolish the not proven verdict, which is, in essence, a not guilty verdict, but it does not always come across as that. For an accused, the verdict can leave a stain on their character. For a victim, it can leave the impression that they have not been believed in court. We heard in evidence the unsatisfactory nature of the verdict’s application, so I support its abolition.
However, I have serious concerns about how the abolition of the not proven verdict has been linked to proposals to change the size of the jury in such trials and to increase the threshold to deliver a guilty verdict. I am concerned that such changes will make it more difficult to obtain convictions in sexual assault cases. The Parliament would do well to consider with care what the Lord Advocate told the committee on that question on 31 January 2024:
“Fundamentally, however, if we are going to increase the percentage of individuals that we require to vote for a guilty verdict, we will make it far more challenging to secure a guilty verdict in a system that requires corroboration.”—[Official Report, Criminal Justice Committee, 31 January 2024; c 15.]
The Parliament needs to consider carefully that serious warning, given the significance of corroboration in such judgments.
I understand the conclusion that the Government reached after studying evidence from mock jury research that having a two-verdict system is more likely to lead to a tendency to convict, but I am profoundly concerned that we might undermine the bill’s purpose if we establish a connection between the abolition of the not proven verdict and the changes to jury size and composition. I recognise that many people have long campaigned for the abolition of the not proven verdict, for entirely understandable reasons and invariably because of tremendous personal suffering and anguish, but if it is considered that changes to jury size and composition are necessary to go along with the abolition of the not proven verdict, I would withdraw the proposal to abolish that verdict.
This debate has been advanced due to the courage of victims in speaking up. In the committee, we benefited from hearing that evidence. Their testimony is profound and should shape the approach that is taken by the Parliament. This is the moment for the Parliament to undertake fundamental reform to ensure that our criminal justice system addresses the legitimate concerns of victims and witnesses. They deserve nothing less.
16:14
I thank the committee for its report and for the amount of scrutiny that it has given to the proposals. The bill covers several areas of justice policy, the policies proposed are substantial reforms and, although the committee has been diligent, the bill is intricate and complex. There are three or four bills worth in it, and had the Government approached it in that way, there would have been the time to build more consensus in Parliament and across society.
I will focus on issues to do with rape and sexual assault cases, including a pilot for juryless trials. As a precursor to those issues, I highlight the committee’s consideration of ending the not proven verdict and of the size of a jury. The nub of the debate is determining what the impact will be and being clear about the impact that is sought.
I agree with Rape Crisis Scotland that the conviction rate does not reflect the reality of victims of rape and sexual assault. First, that is because those are unreported crimes—feelings of shame, being in a coercive relationship and a fear that the victim will not be believed means that, too often, those crimes are hidden or suppressed.
Secondly, that is because of the low conviction rate. Recent figures show that, of the 2,176 rapes and attempted rapes that were reported to the police, only 152 reached prosecution and there were just 78 convictions. In evidence to the committee, the Lord Advocate stated that, in acquaintance rapes—in which there is one complainer and one accused—conviction rates are at about 20 to 25 per cent. In Scotland, there is a high probability of someone getting away with that crime. Too often, it is a crime without consequences for the perpetrator but with a lifetime of hurt for the victim.
If we accept that rape and sexual assault are underreported crimes, and we accept that, to take a case to court, there is sufficient evidence to proceed, we must accept that the conviction rate does not reflect the reality of victims.
It is extremely difficult for a victim of rape or sexual assault to report that crime, to bring a case to court and to relive that ordeal through a court case. Organisations such as Rape Crisis Scotland work hard to support victims, but the decision to report rape or sexual violence is never one that individuals take lightly. The not proven verdict is unclear, it is often misunderstood by juries and it is confusing for those who are involved in the case. In rape and sexual assault cases, that can leave the complainer feeling as though they have been believed but that there is not enough evidence, and the accused being left with the stigma of an unclear determination, neither of which is accurate or satisfactory.
Like the committee, I am not convinced by the need to reduce the size of a jury to compensate for removing the not proven verdict. Some of the evidence to the committee cited a judge being dismayed at juries’ decisions to acquit, which did not reflect the evidence.
That brings me to the consideration of rape myths and jury attitudes. Although we may be familiar with preconceptions about how a victim should act and respond, the committee heard some evidence that it was difficult to definitively say how that influenced juries. I was interested in the suggestion that juries are risk averse in their approach, particularly when convicting those accused of rape. That attitude is really difficult to change. Jurors know that convicting someone of a sexual offence has a significant impact on that person and on their family. The complex nature of rape cases—there is less reliance on witnesses and proof of consent is an issue—presents huge responsibility for jurors and can lead to risk aversion. The lack of evidence from jurors means that we are reliant on the mock trials, which the committee took time to scrutinise, and it has expressed concerns about overreliance on that research.
For some time, I have been interested in different models of prosecution for rape and sexual assault cases. I have been supportive of specialist courts for drugs and domestic violence. The bill proposes a specialist sexual offences court and a pilot for judge-only trials, which are both recommendations from Lady Dorrian.
The stage 1 report goes into detail about the proposal for specialist courts and alternatives. A parallel court, as proposed by Lady Dorrian, retains the solemnity of a High Court and recognises the severity of the crime. That would retain the rights of audience and the severity of the crime that that represents. However, I note that the cabinet secretary has indicated that she will lodge amendments at stage 2 to address some of those issues.
The argument is made that a separate specialist court would deliver on the other proposals for trauma-informed practice more effectively, but I am not convinced that that is the only way that change can be delivered and would urge the cabinet secretary to reflect on the evidence heard.
I will close on the issue of judge-only trials. Prior to the introduction of the bill, I have previously raised the cases of Denise Clair and Miss M. In both cases, the women involved ended up resorting to the civil courts system to pursue justice. The civil justice system is not where women should have to turn—that Denise Clair and Miss M had to pursue that route only demonstrates that the criminal justice system is not working as it should.
The committee’s split position on juryless trials reflects the lack of consensus that has emerged throughout evidence sessions, and underlines that the lack of detail for the plans has made it difficult to reach a fully formed conclusion.
In last year’s debate on a trauma-informed approach to justice, I spoke about particular concerns around rape trials—the difficulties in bringing forward cases, as well as in securing a conviction—and I asked how changing to a single-judge trial would improve that situation. I asked what success would look like when it came to the pilot—would it involve an increased conviction rate? I appreciate that the cabinet secretary has, in recent days, said that more information on that point will be given at stage 2. What are we trying to deliver here? Is it an increase in the conviction rate? Is it a more effective approach to cases? Is it a reduction in delays, with quicker decisions? The questions about what will be gained from a pilot must be addressed at stage 2, but there will be disappointment from supporters of this approach that the pilot will now be delayed until 2028.
16:20
It is a great privilege to speak in this debate. As other members have done, I pay tribute to my colleagues from all parties on the Criminal Justice Committee and, of course, the clerks for the work that has already been done. Members in the chamber who are not members of the committee can have faith in the level of scrutiny and in the committee’s stage 1 report.
As others have said, parts 1 to 3 of the bill are relatively straightforward. That is not to say for a minute that there were no issues, but I think that our stage 1 report was able to pull out the main themes that were raised, and we have made some recommendations ahead of stage 2. For example, questions have been raised about whether the proposed victims commissioner role is the best use of public money and I know that there is currently a wider discussion in the Parliament around the role of commissioners more generally.
Trauma-informed practice is something that all services should continue to strive for and although we heard some examples of where it is working well, there is clearly more to do. We heard that embedding it in legislation should help to significantly speed up the direction of travel.
Perhaps unsurprisingly, I would like to focus my remarks on parts 4, 5 and 6 of the bill. On part 4, as we have heard, the committee concluded that the not proven verdict can cause confusion and that, to quote the report, it has “had its day”. On that point, I would like to highlight the evidence of Joe Duffy, who has campaigned for the abolition of the verdict for more than 30 years.
However, the committee is, as a whole, concerned about the counterbalancing proposal to change jury sizes and majorities. We were just not sure where the evidence for that has come from and therefore we could not agree to it in our report.
We have real concerns over the possibility of decisions being made on a 7 to 5 basis and the possibility that it may become even harder to secure convictions, which John Swinney articulated really well. One solution might be for the Government to consider the Lord Advocate’s suggestion of a retrial in such circumstances. We acknowledge that that would be a big change and would require a lot of further work and scrutiny. However, if the Government feels that there needs to be a counterbalancing mechanism to the removal of the not proven verdict, that suggestion may—I stress, “may”—offer a potential solution. I acknowledge that the Government agreed in its response to the committee that significant work would be required in relation to that proposal.
On part 5, I feel that the proposed sexual offences court is generally a good idea; it could help to deliver justice for victims and witnesses and make the process more trauma informed. However, Pauline McNeill has consistently raised a good point about the perceived downgrading of offences by taking such cases out of the High Court. We must do all that we can to avoid that perception, even if it is only a perception rather than a legal reality.
The most contentious part of the bill has probably been the proposal for a pilot of juryless trials in rape cases. I am quite disappointed by the polarisation of the debate on that, as the committee has worked hard to find a path through that very complex proposal. Although I am one of the four members who agreed that the proposal should proceed to stage 2, that agreement did not come without major recommendations to the Government. We must reflect that not all survivors agreed with the proposal, and some said that they would continue to prefer a jury. Speaking for myself, I found that surprising and unexpected; we must continue to take those views into account.
We asked for much more information on the pilot to be made available at stage 2 and the Government agreed to that in its response. We require information on operational data, the timescales involved and how the pilot will be evaluated.
We also encourage the Government to attempt to take every stakeholder with it as the provisions are developed and progressed. I encourage all members who have concerns about the provisions to read the committee report and to vote for the general principles of the bill tonight to give the opportunity for many of the concerns that we all share to be ironed out through stage 2 amendments.
I will conclude by speaking about the experiences of my constituent Anna-Cristina Seaver, who came to my surgery a couple of weeks ago to discuss the bill. She is happy to be named today and hopes that her experiences can help change things for others. Anna-Cristina was a victim of a sexual assault. The case was heard at the High Court, with the accused being found by jury to be guilty of one sexual offence against her, but he received an absolute discharge. After going through all the various stages of the court process, she was surprised to learn that the accused would not even be subject to sex offender registration. She has asked me to raise that with the cabinet secretary, who may be aware that I did so last week by letter.
More broadly, Anna-Cristina has been following the progress of the bill, and has the following thoughts that I want to put on the record.
On the not proven verdict, Anna-Cristina would like that verdict to be removed, as she feels that juries do not understand what it means, with many people frequently thinking that it means that an individual can be charged with the same offence at a later date or that there could be a retrial for the same offence. We have heard that a lot from people who gave evidence to the committee.
On the introduction of a sexual offences court, my constituent is in agreement with that and feels that it would allow for more focus on the victim of the alleged crime.
On juryless trials, Anna-Cristina feels that juries can come to courts with preconceived ideas about how a victim of a sexual offence acts or has acted, and she feels that that influences opinion and therefore verdicts, so a pilot might be useful to try to compare a different approach.
It has been a massive undertaking for the committee to produce the stage 1 report and to get to this point. The aim of the bill is to make things better for victims and witnesses, which is something that every one of us here should support. Is the bill perfect at this time? No. However, is it a start for people such as my constituent and many other people across the country? I think that it is. Therefore, I urge members to vote for the general principles at stage 1 to allow us to make the necessary changes at stage 2.
16:27
Doing justice is about the process as well as the outcome. As a society, we lay a heavy burden on those who have experienced serious crime as victims, survivors or witnesses. We call on them to recount their experiences—often again and again—in the face of trauma, disbelief and outright hostility. It is a burden that most are more than willing to shoulder, not for revenge or gain but to prevent others from suffering in the same way. They do a precious service to their community by telling their stories and doing so with truth, grace and courage, so one would think that the very least that the community and the agencies that represent it can do is to treat them with respect and humanity but, far too often, that is not the case.
We have an adversarial justice system but, in criminal cases, the opponents are supposed to be the prosecution, representing the state, and the defence. Survivors and witnesses are not adversarial actors and yet look at how they are treated: as though they themselves are on trial, with the trauma of their original experience intensified, even overshadowed, by the trauma of the court process. They are central to the facts of the case, yet are the last to know what is happening and why. They are treated as pawns in courtroom games and collateral damage in performative conflicts.
It is no coincidence that all that is overwhelmingly true of one type of crime—a type that I know of all too well from my previous work in the rape crisis network. I refer colleagues to that previous employment, which is set out in my entry in the register of interests. The survivors who are supported by my former colleagues not only carry the direct consequences of their experience but struggle through a toxic morass of misogyny, structural violence and a male impunity that is embedded in tradition, assumption and myth.
The bill that is before us today is part of a long process of examination, research, consideration and consultation about those issues, and I pay tribute to all who have been part of that work, in whatever capacity, and all who will continue to take it forward. Yes, the provisions are challenging, not least to long-standing tradition, but the changes that the bill proposes are not made on a whim for the sake of change itself or necessarily to follow other jurisdictions; they are made because the evidence suggests that justice—both process and outcome—urgently requires it.
It is not just to have a verdict that judges cannot explain, that leaves defendants stigmatised and survivors traumatised, and that serves only to excuse juries from the hardest decision—for it is hard, we know, to convict men for doing what, deep down, many still expect real men to do. It is not just for courts, offices and police stations to be staffed with people who still do not know—who perhaps choose not to know—the effects of trauma and the need to act appropriately. It is not just to have juries so large that not all members need fully to participate.
It is not just that abusers in many civil cases should still be able to personally cross-examine those they have abused, and that vulnerable witnesses should be denied the protections that they would receive in other proceedings. It is not just that rape survivors should be questioned about their most intimate lives and relationships without the benefit of independent legal advice, or that they should be named against their will on social media. It is not just that women should undergo all that—all the horror of reliving their trauma, explaining their pain and postponing their hopes of resolution, perhaps for years—only to have their truth denied by the stubborn persistence of rape myths, which are old lies of inappropriate response, invisible emotion, delayed reporting and false accusations.
It is perhaps encouraging that the proposal for a pilot judge-only court is the most controversial and contested part of the bill. While the Tory Government in England does its best to suppress even the knowledge that juries can acquit a defendant such as a climate protector when it is equitable to do so, it is a relief to hear that the Tories’ Scottish colleagues have such affection for juries. Juries matter, and it matters that they hear the truth, the whole truth and nothing but the truth.
I firmly believe that any pilot established under those provisions must be created and implemented with sensitivity, with the active participation of all relevant stakeholders, with strict time limits and in conjunction with serious and urgent work to address the prevalence of rape myths, not only in jury rooms but everywhere.
I will be voting for the bill today, not in triumph or challenge but in quiet remembrance of all those for whom it has come too late. Let us do justice for them, for those who wait now and for those who might thank us in the future.
16:32
I want to focus on one of the specific proposals in the Victims, Witnesses, and Justice Reform (Scotland) Bill, which I hope has broad support across Parliament, the justice sector, support organisations, survivors and the wider public: that of trauma-informed practice. Members will be aware of my background as a mental health nurse, and at this point I refer members to my entry in the register of members’ interests, in that I hold a bank nurse contact with NHS Greater Glasgow and Clyde.
Victims and witnesses of crime need to be treated with compassion. The lasting effects of trauma can stay with people for decades, affecting their day-to-day functioning, their relationships and their ability to effectively participate in society. I am sure that all of us across the chamber will have heard from numerous constituents over the years about their traumatic experiences in the justice system.
Of course, we cannot remove all risk of traumatisation from the justice system. There is an unavoidable risk that people will be negatively impacted by having to recall traumatic experiences. However, we must take all necessary steps to improve victims’ experience of the justice system so that they can have confidence in it. Doing so has the potential to improve the quality of the justice process for everyone involved.
“Trauma-informed practice” describes a way of working with people that recognises the impact that traumatic experiences may have had on them, and it tries to avoid causing them more trauma. It is based around five core principles: safety, which involves helping people to feel physically and emotionally safe; choice, which involves giving people meaningful choices and a voice in decisions that affect them; collaboration, which involves asking people what they need and involving them in considering how their needs can be met; trust,?which involves being clear so that people know what to expect and people doing what they say they will; and empowerment, which involves validating people’s feelings and supporting people to take decisions.
The bill creates a framework to embed trauma-informed practice across the justice system and support a cultural shift towards trauma-informed ways of working. The provisions in the bill include a legal definition of trauma-informed practice for the justice sector to help to provide clarity and consistency. It requires criminal justice agencies to have regard to trauma-informed practice in their work with victims and witnesses of crime. It requires that the Lord President and certain other members of the judiciary have a legal responsibility to take trauma-informed practice into account in court scheduling. It also has new rules for how court business is conducted, to try to improve victims’ experiences, given that they often describe the way in which a defence is conducted as one of the most distressing aspects of the criminal justice process and say that it can contribute to their retraumatisation.
The bill has been shaped by survivors, victims and their families, and we owe it to them to listen and act on their experiences and concerns. In evidence that was given to the Criminal Justice Committee, a committee witness, Hannah McLaughlan, said:
“Survivors endure trauma as a result of the abuse that they go through, but, having come through the justice system, I would say that I endured trauma not only from my abuser but from the system that is supposed to provide me with justice. That is not acceptable, and it needs to change.”
Similar views have been raised with me by several constituents over the years. A couple of months ago, I met the Minister for Victims and Community Safety to discuss one of my constituents’ experiences in the justice system. I am also to meet the Cabinet Secretary for Justice and Home Affairs with that constituent next month, and I want to place on the record my gratitude to the cabinet secretary and the minister.
One of the issues that my constituent raised was the standard of communication throughout the court process. My constituent’s attacker faced 11 charges, but to avoid going to court, they pled guilty to a reduced number of four charges. My constituent, as a victim, was not consulted on that by the Procurator Fiscal Service. I note that, in its stage 1 scrutiny, the committee looked at the standard of communication in justice agencies. It is clear that communication must improve, and I welcome the Lord Advocate’s acknowledgement that she agrees with the importance of improving communication.
The committee’s report also says that legislation is not necessarily required to deliver some improvements. That is echoed by the Law Society of Scotland’s response to the committee’s call for written evidence, in which it said:
“Achieving a properly trauma-informed system requires much more than legislative change.”
During the past few weeks, we have seen steps such as the introduction of the pilot to increase access to court transcripts. Victims of serious sexual assault can understandably find it difficult to hear and process what is said in court at the time. Victims being able to obtain transcripts and review exactly what was said in court in their own time can help with recovery.
In addition, as the report refers to, some organisations are already working to make their processes trauma-informed. For example, Police Scotland has indicated that trauma-informed practice is already embedded in some aspects of its work. The Crown Office has developed trauma-informed training, which has been used by 2,000 employees and 70 advocate deputes. However, part 2 of the Victims, Witnesses, and Justice Reform (Scotland) Bill will complement that work and accelerate change in the criminal justice system.
The bill will put victims and witnesses at the heart of the justice system. Building on their experiences, key reforms will make justice services more sensitive to the trauma that they can cause. For too long, some victims and survivors have been let down and ignored by the justice system. Let us make sure that they do not feel the same way about the political system by voting in favour of the reforms today.
16:38
I welcome the opportunity to contribute to today’s stage 1 debate on the Victims, Witnesses, and Justice Reform (Scotland) Bill. In Scotland, as in all parts of the world, the impact of trauma on individuals can be profound and far reaching. As a proud advocate of putting victims at the heart of Scotland’s justice system, I have had the opportunity to listen to the horrifying testimonies and harrowing ordeals that many survivors of sexual assault and domestic abuse have had to go through. Navigating the legal process can be difficult and retraumatising and, in many cases, it can discourage victims from seeking the justice that they deserve.
The system has left complainers feeling isolated, uninformed and as though they were the ones on trial. That experience is prolonged by cumbersome court backlogs, which are the direct result of an underresourced and neglected legal system. They are no longer just victims of crime but victims of a complex justice system. Scotland’s justice system should protect victims and not add further trauma to their lives.
There are long-overdue measures in the bill that we support, including the abolition of the not proven verdict, which the Scottish Conservatives have long called for, and anonymity for sexual offence victims. I am also supportive of other measures in the bill, including those that ensure that complainers are better supported.
I see merit in independent legal representation to support the victim when an application is made to introduce evidence about their sexual history or character. On that measure, the Law Society of Scotland noted that, although it is supportive, there are questions of resourcing and practicalities. The senators of the College of Justice foresee a surge in the workload of the judiciary, prosecutors and defence lawyers under the proposed changes, and they warn of potential delays and pre-trial hearing backlogs without adequate staffing and resources. Further delays might only serve to cause additional distress, so, ahead of stage 2, I would welcome more clarity on how the proposals will be resourced.
I have similar reservations about the proposals to introduce a sexual offences court. The number of recorded sexual crimes rose to nearly 14,900 in the year ending December 2023, so I completely agree that there is a need to deliver targeted, meaningful and enduring improvements in a consistent manner to cases involving serious sexual offences.
However, I share concerns with Simon Di Rollo KC, who commented that creating a new court
“would be just a bit of window dressing”.
The Faculty of Advocates and the Law Society of Scotland favour an approach of establishing a specialist sexual offences division of the existing courts. I understand that that approach could reduce delays, increase consistency and encourage resolution. On that, Tony Lenehan KC said:
“It is a struggle to resource the courts that are currently sitting.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 39, 48.]
I therefore appreciate that it could be possible to achieve the necessary improvements, and address the concerns that have been raised, through the creation of specialist divisions of the High Court and the sheriff court rather than through the creation of a stand-alone court.
I have concerns about the proposals to abolish jury trials, and I do not support plans for the pilot. Research has found that jurors do not fall for rape myths and, when it comes to unconscious bias, as the Law Society rightly points out, everyone is subject to a risk of unconscious bias. With groups such as jurors, the hope is that biases cancel one another out. With a single judge, that cannot happen.
The Law Society argues that tackling rape myths has more to do with education than criminal justice reform. I am simply not convinced that there is evidence to justify what would amount to an experiment with people’s lives.
Does Pam Gosal accept that the European Court of Human Rights explicitly ruled in 2013 that a fair trial can be delivered without a jury?
Although I hear what the minister has said, it is important to deliver good legislation, and we have seen too much bad legislation come out of here. I do not even sit on the Criminal Justice Committee, yet I have heard the concerns from around the chamber. It would be great if the cabinet secretary and the minister listened to the voices in the chamber and those from outside the Parliament to ensure that we get the bill right.
I welcome the opportunity to debate any proposals that seek to improve the justice system for victims and witnesses. Although the legislation includes some commendable measures, there are key elements, not limited to the introduction of juryless trials, about which I harbour significant concerns. Adequate resources and changes to impacts will be key to improving victims’ and witnesses’ experiences of the justice system. The Scottish Conservatives will always be on the side of victims, but significant amendments will be required at stage 2 if this bill is to embed meaningful change.
16:45
The famous quote
“How society treats its most vulnerable is always the measure of its humanity”
could not be more true than when we speak about the vulnerability of the victims and survivors of sexual offences. How we in Scotland treat the victims of sexual offences is a true measure of our society and humanity, so we must go above and beyond to ensure that any process is as sensitive and safe for them as possible.
We owe that to survivors who have spoken their truth, often at great personal cost, and who have sought justice and paved the way for others to do so. We owe it to the survivors who are seeking justice right now for the heinous acts of others and certainly to the survivors who, for myriad reasons, are unable to get the justice that they deserve. We owe it to them to deliver reform that will put victims and witnesses at the heart of the justice system while continuing to safeguard the key principles that underpin it.
As we have heard, much of the Victims, Witnesses, and Justice Reform (Scotland) Bill has been informed by the work of the victims task force, by Lady Dorrian’s independent and cross-sector review of the management of sexual offence cases and by the landmark jury research that was published in 2019. I place on record my gratitude for the work that has been done to ensure that today’s debate is guided not only by our own ethical considerations but by victims themselves and by reputable actors in the legal sector.
As has been said, the bill is ambitious in its reforms to modernise processes and improve the experience of victims and witnesses, but I have limited time and will focus on three areas: the introduction of a sexual offences court, the abolition of the not proven verdict and the extension of the use of special measures to protect those who have suffered abuse from being cross-examined by their abusers.
I welcome the introduction of a new criminal court for Scotland to permit rape and other serious sexual offences to be heard within the same specialised court, which is not always the case today. Sexual offences are among the most serious crimes that are dealt with by our courts and a sexual offences court with Scotland-wide jurisdiction could embed specialism from the outset, supporting complainers to proffer their best evidence and requiring specialist trauma-informed training for all personnel, judges and legal professionals appearing in that court. It would also allow for a more flexible use of the available resources, which might, in turn, reduce delay and increase efficiency in those cases. That is vital, because a delay to justice is an injustice in itself.
I note the concerns that any such specialised court must possess a solemnity that reflects the seriousness of those offences. It is crucial that any new court is given due gravitas and that every effort is made to avoid any perception of the downgrading of seriousness once cases are indicted to the sexual offences courts rather than to the High Court.
I stood for election to this Parliament on a manifesto that recognised the strong case for the abolition of the three-verdict system and made a commitment to consult on the removal of the not proven verdict. My SNP colleagues and I were not alone, because removal of that verdict was supported in the manifestos of almost all parties in the chamber. What is more, 62 per cent of respondents to the consultation supported changing to a two-verdict system.
There is clear and compelling evidence—including from independent Scottish jury research that was the largest study of its kind ever undertaken in the UK—that the not proven verdict is not well understood by jurors and that it can cause stigma for the acquitted and trauma for complainers. The verdict does not serve justice, so I welcome the plans to abolish it. I have listened to what colleagues have said today about the technicalities of doing so and hope, for the sake of all and because of what I have just mentioned, that a solution will be found to bring us to a final conclusion and to abolish that verdict.
Special measures in court cases exist to protect vulnerable people. The taking of evidence by a commissioner and the use of a live television link or a screen to create a boundary between the complainer and the accused can alleviate the stress that is associated with giving evidence and ensure that witnesses and victims can give their very best evidence in a way that retraumatises them as little as possible.
The award-winning one-woman play “Prima Facie” was based on how the legal system treats victims of sexual assault. In the final moments, actress Jodie Comer concluded by breaking the fourth wall, speaking directly to the audience and drawing our attention to the statistics. She said:
“Look to your left, look to your right. It’s one of us.”
One in six men will experience an unwanted or abusive sexual experience in their lifetime, and an obscene statistic tells us that the majority of Scottish women have been sexually harassed or assaulted. We cannot delay justice any longer. As a survivor myself, I ask members to please vote for the bill.
16:51
The Cabinet Secretary for Justice and Home Affairs began this debate by describing the gradual evolution of the Scottish law and justice system, and she then identified a range of dinosaurs that are in need of consignment to the past. We agree with the premise that there is a real need for careful reform. Victims’ experiences of our justice system can be traumatic, and all too often it does not deliver the justice that they deserve. The woefully low conviction rates for rape and the plight of rape victims more broadly tell a story of the endemic misogyny that continues to plague Scotland. It is right that we consider all means by which we can address that culture and its consequences.
However, we on the Labour benches believe that this moon-sized meteor of a bill is unlikely to provide the deliberate excising of outmoded provisions. It is too big and too broad, and professionals believe that it may threaten an extinction-level event for much of the principle and practice of a system that remains in need of modernisation. It makes little sense to undertake the reforms all at once, and as yet we have insufficient evidence. The committee has clearly been unable to dedicate sufficient time and attention to a variety of issues in the bill. I fear that this may be yet another case of this Government legislating in haste and repenting in crisis, which is an all-too-familiar story. Talk of the Government’s inability to write coherent legislation is now widespread. To put it simply, there is far too much in the bill.
On the substance of the bill, the committee is as yet unconvinced about the idea of juryless trials, and I agree with the committee. There is a fundamental governing principle that the system should be tampered with only on the basis of significant evidence, clear academic analysis and a set of governing principles and protections. A pilot must be based on clear terms, timings, composition and, crucially, the theory of change. What is it that the Government is actually trying to achieve?
The Government’s tone and associated policy make it clear that it is, very understandably, attempting to increase conviction rates, but it appears simultaneously to believe that that cannot be made overt either on the face of the bill or in the direct purposes of the laws. Does it believe that doing that might prejudice the consideration of cases or that engineering outcomes is itself an infringement of justice? Those are valid questions, but that makes it pretty much impossible to effectively construct and then evaluate the outcomes of a pilot of juryless trials. At its heart, I find it difficult to see why one man—or woman, but it is much more likely to be a man—would be much less susceptible to performative persuasion than four people in a jury of 12. I also note the comments from a range of sources that the term “pilot” is a misnomer, because it will involve real trials and real cases, and real people’s lives will be affected by the outcomes.
Scottish Labour does not support the pilot of juryless rape trials. The legal profession has been clear in its opposition, including the Law Society and the Faculty of Advocates. The Government cannot expect such a significant change to the legal system in Scotland to pass without genuine engagement with the profession and, crucially, without public confidence being built.
Like the Criminal Justice Committee, Scottish Labour remains to be convinced about the creation of a victims and witnesses commissioner. We question whether that represents best use of the scarce public finances that are available to us at present. The Finance and Public Administration Committee, of which I am deputy convener, is undertaking an inquiry into the role of commissioners in Scotland. We have seen a proliferation of commissioners in recent years, with more seemingly on the way, but as yet no significant analysis has been made available of the value or impact of those roles. What do they achieve? What outcomes do they deliver for the people of Scotland? How do they relate to the work of Parliament? Scottish Labour believes that the resource in question could be far more effectively targeted at further expanding the scope of independent legal representation.
I turn to the not proven verdict and changes to juries. Scottish Labour supports the abolition of the not proven verdict. That has been our long-standing policy, and we continue to support abolition. However, the Government must recognise that there will be consequences for the justice system. The proposed change to jury majorities, from a simple majority to two thirds, indicates some form of recognition of the impact that the abolition of that verdict could have.
The case is yet to be made on the changes to juries, which include a requirement for a two-thirds majority and a reduction in the number of jurors from 15 to 12. Crucially, we have to ask whether public confidence will be retained when a jury votes by seven to five for a guilty verdict but the accused walks free. The Criminal Justice Committee said that it had heard
“no compelling or definitive evidence”
that would lead it to support such changes. The Faculty of Advocates said that the proposals were
“rash”
and could have
“a detrimental impact on the overall administration of justice.”
This legislation tries to do everything but, in the process, it risks achieving very little. Given the insufficient detail to date from the Government, insufficient evidence from stakeholders and insufficient scrutiny by the Parliament on some of the key issues, the bill is not currently worthy of the Parliament’s support.
16:56
Sometimes, when we have debates like this, we should remind ourselves why we are debating such changes in the first place. We had a powerful reminder of that from Karen Adam a short time ago.
It is also worth mentioning again—particularly for the victims of sexual offences—that the latest figures show that only 24 per cent of those who are accused of rape in single-complainer cases are convicted. That is a shockingly low figure. Aside from the Government’s proposals, I do not hear any others. It cannot be the case that we do nothing.
I have also heard a fair bit of criticism about the size of the bill. I say to members that they should look at the system and see what bit they can pick out without affecting other bits. The bill has to be comprehensive—it has to address a number of different things at the same time. Perhaps that accounts for both its complexity and its size.
We have known about the discrepancy in convictions for sexual offences for a long time, and this is a chance to do something about that. We cannot forget the many women, in particular, to whom many members have spoken, who have come forward in recent years with their testimonies, waiving the right to anonymity for the public good, to share with the public their experience of the legal system and its shortcomings. Those women have also helped to create an awareness campaign that has successfully highlighted the many shortcomings of the legal system and what can be done differently. As I have said for a number of years, the system is failing women in particular.
A couple of points have been raised. I heard the Tories saying that it has taken a while to get round to abolishing the not proven verdict. Well, we have not taken the decades or centuries that the Tory party took. We came forward with the proposal in the past and it was rejected by the Parliament. This time, it looks as though it will be accepted by the Parliament. The most compelling reason for it, to my mind, is simply the fact that a judge is not allowed to explain to a jury the effect of the not proven verdict. That cannot be good in any system that is meant to be based on lay understanding.
There are those who argue—we heard one statement to this effect—that we must listen to the Lord Advocate on some things but not on others. We must listen to her about the size of juries, but we should not listen to her in her compelling support for juryless trials. Another argument is that the judiciary is against us. It is not. Lady Dorrian is not. Many in the senior judiciary are in favour of many of the proposals. All that that says is that it is divided—as the rest of us are. There are different points of opinion, but let us at least acknowledge that.
I do not agree with the vast bulk of the points that Michael Marra made, but the point that he made about commissioners was quite a good one. I supported the establishment of a commissioner. If the position is to be established for its own sake, we should not have it, but if there is a definite role for it, we should have it, for the reasons that have been mentioned. It has previously been supported by the Conservatives. Almost three years into this Parliament, I am still waiting to see the victims bill for which support has been demanded from me and others, or the domestic abuse registration system bill that we have been asked to support. We should really see those things. They were manifesto commitments. If we will not see them until after we take this bill through, what is the point? They could affect the impact of the bill. In the summing up, it would be useful to hear where the Tories are with the two bills that they were committed to bringing forward.
It is also perverse of the Conservatives not to support the general principles of the bill. I have to be perfectly honest and say that I do not think that there is even a slight chance of the Conservatives voting for the bill at any stage. We heard a demolition of each of the six sections of the bill from its spokesperson—the party’s position is not going to change. We know the approach that the Tories are taking on the bill.
However, the cabinet secretary should do as she has been doing and continue to listen to others and take on board the points and genuine concerns that people have. Having shown a willingness not just to listen but to adapt her proposals, she has shown that this is a genuine debate. It would be so much more powerful if we could get to a position in which the whole Parliament spoke with one voice, but we have to be realistic about the prospect of that. We will not get support from the Conservatives, and, given what Michael Marra said, I doubt that we will get support from the Labour Party either. Nevertheless, it is always worth listening to Pauline McNeill and Katy Clark about the concerns that people have. It is important that the bill proceeds, because it has been wanted for a long time and it will make a difference.
We should remember that juryless trials are part of a pilot. If we are not going make a bold change, what should we do? If we do not think that a bold change is required for the appalling situation that we are now in with regard to the treatment of women and victims of sexual offences, what is the big idea that others have? Should we not try it? The Scottish legal system has a very proud history of being innovative and willing to embrace change, and it very often leads other systems to do so. Many systems around the world have taken inspiration from our system, and this is the chance for us to do likewise. If it does not work—I do not dispute the point that was made about having properly set out and transparent criteria for displaying that it has worked—then it should not continue.
Will the member take an intervention?
No. I apologise, but I am in my last minute.
I cannot remember disagreeing with my good friend and colleague John Swinney before the discussion about jury sizes. However, the point that he made about corroboration is important. If that change is not to take place until 2028, perhaps it is time to take another big chunk. Corroboration on judgments is a huge issue that affects lots of different elements of the bill. If that was dealt with to the satisfaction of the legal system and Parliament, perhaps it should drive what we do on jury size. It is worth bearing in mind that all College of Justice senators and many people in the judiciary are supportive of further reforms to corroboration, notwithstanding the very effective reforms that have already taken place.
Let us be honest about what we support. We require change, and if parties do not support the change that the Government proposes, they should at least come forward with something else.
We move to winding up speeches. I call Katy Clark, who has up to seven minutes.
17:02
I am pleased to close the debate on behalf of Scottish Labour. I thank all who have worked on the substantial stage 1 report, particularly the clerks and staff who were involved in the drafting.
As has been said, we need transformative change in the justice system for complainers, victims and witnesses. We believe that the status quo is failing women and the victims of sexual offences, who repeatedly describe their experiences as retraumatising. The cabinet secretary said that the bill is needed. It is clear that significant change is needed, but it is less clear that the bill will deliver the change that is needed.
Labour believes that it was unwise of the Scottish Government to come forward with so many changes to the system in one bill, often without sufficient detail. For example, the proposals on anonymity are important but have not been given sufficient scrutiny. One of the main concerns of complainers was the impact that delays have on the criminal justice system, but the provisions in the bill are unlikely to have an impact on that.
The bill also does not introduce measures such as having a single point of contact, which is significant and could make a big difference. Many parts of the public sector are already very aware of trauma-informed practice, so legislation is not needed to drive that further. In many other countries, complainers and rape victims have access to independent legal representation, often from before they report an incident to the police until after the conclusion of their trial and after any compensation is paid. The provisions in the bill are narrow and relate only to legal representation in relation to medical evidence. We welcome those provisions, but we believe that there is a strong case for further independent legal representation, particularly for rape victims.
We are particularly concerned about the provisions on change of jury size and jury majority relating to the abolition of the not proven verdict. As has been mentioned a number of times in the chamber, the Lord Advocate gave evidence to the committee that the proposals as they stand could risk fewer convictions. That is obviously of particular significance with regard to rape and other sexual offences cases, for which there are already very low conviction rates. As a representative of survivors said to the committee, that is like
“giving with one hand and taking away with the other.”—[Official Report, Criminal Justice Committee, 6 December 2023; c 17.]
We are disappointed that the Government did not address some of those concerns in more detail in its response to the stage 1 report. We believe that it was unfortunate that the Government sought, in its response, to rely so heavily on the mock jury research. We appreciate that the Scottish Government has said that it
“will give careful consideration to the issues”
that are raised in the committee’s report. However, we would have found it helpful if we had received more substantial responses before the debate today.
We believe that substantial changes are necessary, and we were therefore very interested in the arguments that were put forward in relation to the creation of sexual offences courts. However, we are concerned about the lack of detail in the proposals and about a major reorganisation taking place.
We are particularly concerned, partly because of our experience of previous legislation, about the lack of protections in the text of the bill, such as those relating to rights of audience. We support the creation of specialist divisions in the sheriff courts and High Court to strengthen trauma-informed practice. We support specialisation, and we believe that the rules of court need to be redrafted to take into account the needs and interests of complainers, victims and witnesses. Of course, that does not require legislation.
We believe that, without protections in the text of the bill on issues such as the right to representation by an advocate, we cannot support the provisions. We hope that the Government will come forward with further detail on that aspect as the bill progresses.
I put on record that I agree entirely that an accused person whose case is heard in the proposed new sexual offences court should be able to access the same level of legal representation to which they are currently entitled.
I thank the cabinet secretary for that intervention, and I look forward to the Scottish Government bringing forward proposals for provisions in the text of the bill that would enable that to be a reality not just over the current or subsequent session of Parliament but as the decades unfold.
We welcome the Scottish Government’s willingness to consider the idea of having a panel of three judges rather than a single judge. That was raised by the committee in respect of the rape trial pilot. However, we are concerned that we still do not have criteria for such a pilot. I know that the cabinet secretary has said that those criteria will come forward, but it would have been helpful if the committee had had that information during its extensive consideration of the legislation over many months.
Does the member think that there are, in principle, human rights issues with having a pilot in which someone could be at risk of incarceration when, months later, in similar circumstances, there would be a jury trial?
I understand the point that Christine Grahame makes about comparative justice. My concerns are focused more on the bill as it is currently drafted, as it creates permanent provisions rather than a time-limited pilot, after which we could assess how that pilot had operated.
The Scottish Government has said that conviction rates will not be the criteria that are used—the cabinet secretary was pressed on that point in committee—but it has not indicated what the criteria will be.
Given that I am coming to the end of my allotted time, I will just say clearly that Scottish Labour has listened carefully to the proposals that have been put forward. We are very aware of the need for transformative change in the justice system. We await the Scottish Government’s amendments with interest, and we will lodge amendments to strengthen the bill as it proceeds.
17:10
It is tough to sum up today’s debate in the time that is available. It has been tough for MSPs of every party to discuss all the various elements of the bill in the time that is available; it has been tough for the committee to scrutinise the legislation fully in the time that has been available; and it has been tough for the Government to provide all the necessary details and answers for all the pertinent questions. As we have heard throughout the debate, there are a lot of them.
I thank the clerks and the research team for all their work in compiling the extensive report.
The size and scope of the bill are vast. The bill is ambitious, which is welcome, but it must be deliverable, it must be effective and it must achieve the right outcomes. It cannot just be ambitious law—it has to be good law. We have seen, with climate change targets and with the national health service treatment time guarantee, that ambition alone is not enough: the law has to be achievable.
During the debate, the bill has been described by Russell Findlay as “experimental”. He said that the bill is
“far too big ... clunky, confusing and unworkable”.
Pauline McNeill also said that it is “too much” in one bill. Liam McArthur said that it is a very “wide-ranging” bill and he described the bill as taking a “kitchen-sink approach” and the Government as
“biting off more than it can chew”.
Jamie Greene also described the bill as “too big” and said that it is
“trying to do too much in one place”.
He mentioned the missed opportunity of not including in it Michelle’s law and Suzanne’s law. He also said that victims must be at the heart of the system, but that that cannot happen at the expense of having a fair system. Claire Baker described the bill having enough in it for three or four bills, and Michael Marra said that it is a
“moon-sized meteor of a bill”
and that it “makes little sense” to do it all “at once” with little evidence.
The intentions of the bill are worthy. My party has long argued for the justice system to be stacked in favour of victims, not criminals. The underlying principles of the bill are reasonable. We agree with the purpose of the bill, even when we disagree on the approach or the proposals.
That brings me to our concerns about the bill as a whole. As I have mentioned, the time for scrutiny and debate is short, considering the scope of the bill. We are deciding on legislation that will be historic: it will make sweeping fundamental changes to our justice system. There is no room for error.
Does Sharon Dowey acknowledge that we have taken eight months to scrutinise and take evidence on the bill, which is unprecedented?
I have only recently joined the Criminal Justice Committee. However, as has been said in descriptions of the bill, there is a lot in it, so maybe it would have been better to have split it into smaller bills.
I am also concerned about the response that some parts of the bill will not be implemented until 2027 and 2028. That leads me to wonder why we are passing the bill now. Why not take our time to do it in the next session of Parliament? Why is it being forced through now?
Mistakes could have profound consequences. Any one of the many changes that are proposed in the bill could overhaul the operation of justice in Scotland. We should be ambitious for victims, but we should also proceed with some caution, given the potential ramifications. If so many aspects of the justice system are changed all at once, the unintended consequences could be severe. The consequences could also be difficult to pinpoint and attribute if so much is overhauled in one motion.
My party also believes that the scope of the bill has contributed to the lack of answers from the Government to many necessary questions. The lack of detail on some points and the limited evidence base on others could be improved as the bill progresses, but we are concerned by the number of gaps and potential problems at this stage.
I will move on to our specific concerns about aspects of the bill. Clearly, it will not be possible to go through every element of the bill, so I will focus on the parts about which we have the strongest concerns that must be addressed. On part 1, the allocation of resources must be considered more fully. At the moment, not enough funding goes to supporting victims during and after the court process. The cost of a commissioner could be substantial and we believe that resources might be better spent on direct services for victims. Katy Clark mentioned the one point of contact approach.
We also note evidence that says that the commissioner role might be limited in what it could achieve. Russell Findlay commented that it would be hugely expensive and would provide “reams of jargon”. Liam McArthur said that the plans were “well-meaning” but “misguided”. Michael Marra asked what outcomes the role would achieve and what it would deliver. Some members in the chamber would be hard pressed to tell us who all the commissioners are, what they do and whether they are accountable to Parliament. I have never seen them in the chamber. We have cabinet secretaries and ministers who are accountable to Parliament.
We are supportive of part 2, but—
On a point of information, I note that commissioners would not come to the chamber. Only MSPs, the Lord Advocate and the Solicitor General sit here. Commissioners can be called before committees.
I thank Christine Grahame for that. Cabinet secretaries and ministers are accountable to Parliament, so I do not know whether we need to finance another commissioner.
We are concerned that the bill’s financial memorandum does not entirely outline the cost of implementing part 2. It seems to be likely that further resources would be necessary for the bill to achieve its goals in that area. As was stated by the Lord Advocate in her evidence to the Criminal Justice Committee, the most significant improvement that we can make is to prepare victims better for the trial process.
On part 3, my party agrees with the approach that is outlined on special measures. However, that part of the bill would supersede provisions of the Children (Scotland) Act 2020 that have not been implemented. We consider that to be a missed opportunity to improve the experience for victims, and we hope that that will not be repeated.
I go back to Keith Brown’s point about bills: I would prefer time being spent on taking bills through Parliament properly to what happened with, for example, the Children (Scotland) Act 2020, which was passed in the previous session of Parliament but now appears to have been rewritten and repealed in this session. If we go by the response from the Scottish Government to our report, it appears that the bill will not be implemented until 2027, which is in the next session of Parliament. I have concerns about that.
It is not surprising that part 4 is the subject of a lot of debate and disagreement. The changes in it would be radical and historic. My party agrees that it is time to leave the unique not proven verdict in the past.
Although we can sympathise with the apparent justifications for changing the size of jury trials and majorities, we are very concerned about the lack of evidence to support the changes. We are also worried that the changes might overstep what is necessary, because other changes might have the desired impact of convicting more guilty people. A change of that magnitude, if making it becomes more compelling in the future, might be better made in isolation, when its consequences could be seen more clearly.
On part 5, we believe that the current system is right: a crime that is as abhorrent as rape should sit under the High Court alongside murder. That treats rape with the appropriate seriousness. We appreciate the intentions behind a sexual offences court, but we have practical concerns that it will not be a sufficient improvement and that it might even delay the process. One of the most common issues that victims of sexual crime raise is the lengthy process that they go through to receive justice. We strongly caution against doing anything that would increase the length of time the process takes.
Do I have time to continue, Presiding Officer, or do you want me to conclude?
You have a little time.
Part 6 of the bill deals with several points. Our principal concern about part 6 is the proposed pilot of juryless trials. It is a long-established principle that people who are accused of serious crimes have a right to trial by a jury of their peers. Moving away from that could have severe unintended consequences.
As I stated at the outset, we are concerned that implementing the many seismic changes in the bill at once could make individual changes impossible to evaluate. We also do not consider that there has been enough time to assess the impact of directing juries about rape myths, which began only late last year.
In conclusion, I say that my party has sought changes that would improve the justice system for victims. Several parts of the bill could make a difference, but although we agree with the intention behind the bill, we have some serious concerns that it is light on detail, that it might have unintended consequences, that it fails to outline the full financial implications and that some proposals could actually hinder the administration of justice. We will work to improve the bill and we will take a constructive approach to amendments, but a great many changes are needed if the aims of the bill are to be achieved.
17:20
The bill was introduced almost a year ago, and it certainly has been a long journey to get us here to today’s stage 1 proceedings. Of course, we still have some hard miles ahead of us.
I reiterate my thanks to members of the Criminal Justice Committee, the Delegated Powers and Law Reform Committee and the Finance and Public Administration Committee for their scrutiny, and I thank all members for their participation in today’s debate.
Throughout the debate, I have heard it said repeatedly that the bill is too big. It is somewhat unusual for a Government minister to be challenged on trying to do too much too soon—we usually hear the reverse. I gently point out to members that the bill is 68 pages long and has 71 sections, and that there is currently a criminal justice bill with the Westminster Parliament that is 184 pages long. In the Scottish Parliament, we have had three previous criminal justice bills that have been far longer—in particular, the 2010 Criminal Justice and Licensing (Scotland) Bill.
Surely the point is not the length of the bill but the number of system changes that are proposed in it.
I appreciate Ms Clark’s point, because fundamental reform is needed and, to achieve fundamental reform, we have to be focused on significant reforms that get to the heart of the needs and rights of victims, particularly victims of sexual offences. We need to consider all those issues together rather than in a piecemeal ad hoc reform fashion. That was the point that Keith Brown made. We can tinker at the edges, but that will do little to change the status quo. I am very clear that victims and witnesses deserve an ambitious approach that can truly impact on outcomes.
Whether in the representations that I have received or in the evidence that has been given to the committee, victims have often talked about accountability or, indeed, lack of accountability. We have heard that repeatedly. That is what led to the calls for a victims and witnesses commissioner. The commissioner will have an important role to play in holding justice agencies to account. That does not mean that we do not also have a role to play in holding ourselves and one another to account, but I will lodge amendments to strengthen the role of the commissioner in that regard.
I want to quote from correspondence that I received from Mr Woodburn this week—I am sure that he will not mind me quoting him. He said:
“we have all taken part and pushed for this role in particular because we have not had the role to turn to in the past, and have suffered because of that, all of our efforts have not been for ourselves, it is too late for us, but everything we have done, and will continue to do, is for those that come after us in order to help them navigate an easier path through what is an extremely traumatic time”.
Obviously, Mr Woodburn has a very good point, but has the cabinet secretary explained to him and others that the victims commissioner will not be able to make representation on behalf of victims?
Perhaps I could reassure Mr Findlay by saying that our proposals for a victims and witnesses commissioner came from our engagement with victims and witnesses, and in particular through the victims task force. I have a manifesto commitment to deliver in that area, and I gently point out that there is at least one other party in the chamber that also has a manifesto commitment in that area.
We all want to deliver a system in which victims are treated with compassion and their voices are heard, while the rights of the accused continue to be protected. As a former criminal justice social worker, I have spent decades upholding the rights of the accused and of offenders while fighting tooth and nail for the rights of victims. Surely we can continue to do both.
We need to have a more modern and transparent system that provides public confidence. The package of reforms in the bill will help to achieve that, notwithstanding that there will be changes to the bill as it progresses.
Our Parliament has long invested in tackling violence against women and girls. The bill is part of that agenda, but it is not the only part. I assure members that we have listened to all voices and have looked at all the evidence. There has been no cherry picking of arguments and evidence that suit my narrative; we have endeavoured to look at everything in the round. It is naive in the extreme to dismiss the existence of rape myths, given the 50 studies involving 15,000 participants over a decade. Our jury research is not the only such research, but it is one of the biggest of its kind in the UK.
Across the chamber, we all recognise the particular challenges with sexual offence cases. It is simply not good enough for us to shrug our shoulders and observe that it is just too hard for us to press for justice for such crimes. This is our world, and it is our country’s system. It is our responsibility to ensure that our system works for all crimes and for all women and girls, and to ensure that there is fairness and integrity in that system.
The cabinet secretary will recall that, in my speech, I mentioned the impact of the Smith v Lees ruling being overturned. What assessment has been made of the impact of that on the way in which corroboration is dealt with in such cases and, in turn, the impact on rape and sexual assault prosecutions?
As I said to another member earlier, we are looking at all that in the round, because the point that Mr McArthur has raised is a substantive one.
It is a wee bit regrettable that some people have spoken about experimenting. Last week, some members were waxing lyrical about the inquiring minds of the Scottish enlightenment. I want to avoid us all sitting on a shelf, stuck by good old-fashioned Scottish exceptionalism.
The pilot will, of course, be time limited. I have spoken about the range of amendments that will be lodged.
Will the cabinet secretary take an intervention?
I am really sorry, but I do not have time. I am on the clock.
It is important to recognise that the pilot does not represent a button that we can press to change conviction rates. Each case in the pilot will be decided based on the evidence. It is about having confidence in the conviction rates and that justice is being served. The written reasons that will be produced will explain why cases have resulted in convictions or acquittals. The biggest reason why I am in favour of a pilot relates to the strength of the written reasons in providing transparency and giving assurance to the complainer and the accused.
I take this opportunity to once again reaffirm my commitment to working constructively across the chamber and the sector to secure the many improvements that can be made to the bill. The Government has published an indicative timeline for the bill’s implementation, with the vast majority of its provisions being implemented in year 1, which will be 2025.
Many of the issues that the bill looks to address are long standing. We cannot afford to kick the can down the road. If we do not act, we will pass the problem on to our successors and will lose the opportunity to bring about real change for victims who are going through the system now and those who will go through it in the future.
I have asked this before of those who disagree with reforms in the bill, and I make no apologies for asking it again: if not this, what? If not now, when? It is time for us to take action and work together to ensure that we do not have a justice system that harms, distresses and retraumatises victims and witnesses but have one that serves them and is fit for a modern Scotland.