Seòmar agus comataidhean

The amendments in this group largely relate to provisions in the bill on the presumption in favour of pre-recorded evidence as it applies to the sexual offences court. They are intended to ensure that that presumption works as effectively as possible in the SOC.

Together, amendments 207, 209, 211 and 214 amend the bill to include provisions that will allow the SOC to admit evidence that was previously recorded by a vulnerable witness in another case. As members might recall, the committee discussed and agreed to a very similar amendment—amendment 216—during the debate on group 11. The key difference is that amendment 216 introduced provisions that will enable the reuse of pre-recorded evidence specifically in the High Court and sheriff courts.

Together, amendments 207, 209, 211 and 214 will allow for previously recorded evidence to be reused at a future, separate criminal trial. The previously recorded evidence can be used as all, or part of, the witness’s evidence, so that the witness does not necessarily have to be cross-examined again, unless there is a specific need for them to be.

As I said when I spoke to amendment 216 in group 11, at the moment, certain witnesses can pre-record their evidence ahead of the trial, but that evidence can be used only as a witness’s evidence in chief, not for their cross-examination or re-examination. That leaves witnesses open to the risk of being recalled to court to be cross-examined on their evidence again, which could be retraumatising.

The provisions allow for further questioning to be permitted by the court if there are relevant questions that were not put to the witness when the evidence was originally taken or if not asking those questions would risk the fairness of the trial. If the court considers that additional cross-examination of a witness is required, amendment 214 requires that that must take place at an evidence-by-commissioner hearing, unless a specific exception applies. Taken together, the provisions will ensure that the accused’s right to a fair trial is protected, while minimising the risk of the witness being retraumatised.

Amendment 212 will enable applications for a victim’s evidence to be pre-recorded to be submitted to the SOC before the case is indicted. That will ensure that there are no legislative barriers to a complainer doing that, if it is appropriate to do so. The amendment will bring procedure in the SOC in line with provisions established by the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, which ensure that all child witnesses and adult witnesses who are deemed to be vulnerable can, when appropriate, have the opportunity to pre-record their evidence ahead of their case being indicted. It is considered that such applications are likely to be rare, as only at the point at which an indictment is served will it become clear what requires to be proven in a particular case. However, removing the legislative barrier and aligning procedure in the SOC with the 2019 act will provide flexibility and allow what I have set out to take place, if it is considered to be appropriate in a particular case.

Amendment 208 relates specifically to the presumption in favour of pre-recorded evidence as it applies in the SOC, and its effect is twofold. First, it removes provisions in section 59 that give the SOC the ability to apply a best interests test when an adult complainer of a sexual offence expresses a preference to give evidence at the trial, instead of pre-recording their evidence in accordance with the presumption. The amendment requires the witness to have had access to such information, as prescribed by acts of adjournal, to support them in making a decision about how they wish to give their evidence.

The provision responds to a recommendation in the committee’s stage 1 report; it will ensure that complainers have greater agency in how they wish to give their evidence and that they have access to information to support them in making an informed choice. Setting out the information that is to be provided to the complainer by way of court rules will provide flexibility to ensure that the information that is available to complainers remains relevant. The information might include, for example, timescales for commission hearings, which often allow witnesses to give their evidence many months in advance of the trial date.

Secondly, amendment 208 amends the provision in section 59 to permit the courts to grant an exception to the presumption in favour of pre-recorded evidence for children under the age of 12 when the children have expressed a wish to give evidence at trial and it is in their best interest to do so. As currently drafted, the provisions in the bill only permit such an exception for adults and for children between the ages of 12 and 18. The purpose of the amendment is to ensure that provisions that apply the presumption in favour of pre-recorded evidence in the SOC take account of article 12 of the United Nations Convention on the Rights of the Child. Amendment 217 made similar provisions in relation to cases in the High Court and the sheriff courts.

Amendments 210 and 211 are more technical. Amendment 210 restricts the presumption in favour of pre-recorded evidence as it applies in the SOC to complainers of sexual offences only. That will help to align procedure in the SOC with our planned roll-out of the presumption in favour of pre-recorded evidence in other courts, which will ensure that the criminal justice system is able to meet the increased demand.

Finally, amendment 213 amends the bill to align timescales for submitting section 275 applications in the SOC with those in place for the High Court.

I move amendment 207.

I will rewind the committee back to an earlier point in this journey. There was a high level of criticism of the initial approach in the bill. Indeed, the committee heard evidence on the issue, which I recall also came from the senators of the College of Justice. There was a fair amount of media commentary, too, particularly on the insecurity of tenure, and other legal issues were raised on the airwaves.

The Government has opted to follow the committee’s recommendation. In this instance—I hope that I am correct in saying this, but I am sure that there is a submission from the senators on this point as well—we would be better advised to follow the existing process.

I understand Mr Kerr’s point about perception, but we are copying an existing process for the appointment of temporary judges, so there is absolutely no power grab by ministers.

Thank you, convener. I recognise the importance of assessing the impact of legislation. Amendment 169 provides for just that by placing a duty on the Scottish ministers to review the operation of the act and submit two reports to the Parliament.

A key aspect of the bill is the cumulative impact of its reforms, in terms of both improving the experiences of victims, witnesses and vulnerable parties and modernising the system and its processes. A whole-bill reporting requirement, as created by amendment 169, will ensure that the full package of reforms can be properly considered. Instead of there being different reporting requirements for different parts of the bill, which would mean that each topic is looked at in isolation, the amendment will allow us to consider both individual policies and the package of reforms as a whole.

The timing of the two review points reflects the likelihood that elements of the bill will be commenced at different times. The initial reporting point of five years after royal assent will mean that ministers are required to account for what progress has been made by that time. The second review point, a further five years later, will ensure that the act can be considered in its entirety when all of its provisions have commenced and that the effect of the different elements can be effectively reviewed.

It is absolutely vital that those whose experiences the bill aims to improve are included in any review. Therefore, the list of persons whom ministers should consult in respect of delivering the reporting requirements includes victim support services, persons representing the views of victims and witnesses in criminal proceedings and of vulnerable parties and witnesses in civil proceedings, and representatives of the judiciary, justice agencies and the legal profession. All those groups will be impacted by the bill and all can provide data, evidence and views that can be used to assess its impact. That list of those who should be consulted is non-exhaustive, so others can be engaged with as needed.

On data collection for the reports, the Scottish Government will work with those who are listed to develop the operational policy approach on what data would be helpful for assessing the legislation’s effect as part of the bill’s implementation.

At last week’s committee meeting, I undertook to work with Pauline McNeill ahead of stage 3 to ensure that any review of the operation of the bill includes appropriate consideration of developments relating to corroboration. That demonstrates my willingness to work collaboratively to ensure that the Parliament can continue to scrutinise the matters that we have been debating in recent months, while also making sure that the bill works as intended.

I move amendment 169, and I ask members to support it.

The draft timescales are not entirely bolted down, but we would be looking at an overall implementation period of three to four calendar years. All of the bill should then be in place, albeit that it will be phased in.

Amendment 169 agreed to.

Section 67—Regulations

Amendment 55 not moved.

Section 67 agreed to.

Section 68 agreed to.

Section 69—Interpretation

Amendment 93 not moved.

Amendments 170 and 171 moved—[Angela Constance]—and agreed to.

Section 69, as amended, agreed to

Section 70 agreed to.

Schedule 4—Minor and consequential modifications

Amendment 56 not moved.

Amendments 228 to 232 moved—[Angela Constance]—and agreed to.

Schedule 4, as amended, agreed to

Section 71—Commencement

Amendment 271 not moved.

Section 71 agreed to.

Section 72 agreed to

Long Title

Amendment 57, 134 and 58 not moved.

Amendment 59 moved—[Sharon Dowey]—and agreed to.

Long title, as amended, agreed to.

Over the past few weeks, we have debated many amendments to the bill that aim to improve the experience of victims in the criminal justice system. I hope that members can acknowledge that, in the course of those debates, I have sought as much as possible to accept amendments from members or to commit to work with members to see whether amendments can be developed for stage 3 that are workable and deliver for victims.

The amendments in this group are, of course, similarly well intentioned. However, I am sorry to say that I am concerned that, rather than enhancing existing support, the amendments risk creating confusion and duplication as to how victims exercise their rights to receive information and advice.

Although I very much appreciate the aim of amendment 64, in the name of Katy Clark, which is to assist victims in obtaining information from a single point of contact, events have moved on significantly since the amendment was lodged last summer. It is to Ms Clark’s credit that she lodged very early amendments. What has changed in particular is that the victim-centred approach project reported in November last year. It recommended a universal approach across all crime types, consisting of an online portal and designated contacts in victim support organisations and the criminal justice agencies. The model applies to all cases and it builds on existing knowledge and expertise. Work is under way to make that a reality and is the result of detailed consideration by a broad range of partners.

Amendment 64 does not reflect that model, which would add further complexity. The amendment lacks clarity on how the single point of contact would operate and does not take into account individual choice. It is also unclear how digital services or the need to include personnel from victim support organisations and criminal justice agencies would be accommodated in the references to a single person. I therefore ask members not to support amendment 64.

I believe that I have been consistent on the issue and, I hope, respectful of people’s desires and ambitions to go further and faster. My starting point in all this is that I think that we all instinctively want to go further and faster, bearing in mind that members of the committee, quite rightly, challenge me on a regular basis about financial investment and the financial underpinnings of legislation. They also challenge me about unimplemented legislation. I am clear that, as ILR is significant new ground, certainly for Scotland, I want it to be embedded and funded properly.

The measure will need to be evaluated, which should inform what comes next. At this point, I am very reticent to go further than the original intentions of the bill. I am also anxious about the idea of creating legislation now for what might be the case in the future. We need to bear down on what we can deliver in the short-to-medium term.

Regarding Ms Chapman’s amendment 267, on legal advice for complainers, I am pleased to advise the committee that I intend to support the proposal that has been submitted to me by Rape Crisis Scotland and the Faculty of Advocates to deliver a pilot for free independent legal advice. Although it is complementary to the objectives of the bill, the pilot does not require legislative underpinning.

The pilot will provide specialist independent legal advice from dedicated solicitors for complainers in rape and attempted rape cases, utilising the expert Emma Ritch law clinic. Where desired, the pilot will provide access to an independent and experienced court practitioner to assist complainers in feeling more prepared to give evidence as well as ensuring that complainers know their rights, helping to make those rights more accessible. An advisory group chaired by the Scottish Government and including Rape Crisis Scotland, the Crown Office and Police Scotland will inform the development of the pilot.

I will finish talking about Pauline McNeill’s amendments and then come back to you, otherwise none of this will make any sense.

Requiring a meeting to take place ahead of the first hearing would also mean that there would be little to engage with the complainer on at that early stage before all the evidence has been submitted and considered and charges finalised.

Significant challenges would also arise from requiring advocate deputes to share any information that is requested by the complainer that is relevant to their case. There might be good reasons for withholding certain information from a complainer, and which information prosecutors can and should share should be left to their discretion.

If Ms Clark’s question is solely in relation to Ms McNeill’s amendment 77, I am just about to get on to the fact that we are, unfortunately, going to have some legislative competence issues. I know that that is not what folk want to hear, but bear with me, please.

As Ms McNeill mentioned, her amendment replicates existing practices in High Court sexual offence cases, where it is established convention that advocate deputes meet with complainers. The Crown Office and Procurator Fiscal Service is improving its guidance on that point for High Court and sheriff court sexual offence cases. It is vital that the process is led by the complainer, who can decide whether they want a meeting and, if so, what time in the process is right for them.

In contrast, by seeking to impose statutory obligations, amendment 77 assumes that all victims want to meet an advocate depute as soon as the case has first been called in court. It is the quality and content of discussions with the prosecutor that have the greatest impact on the experience of a complainer, and that qualitative aspect could not be set out in legislation in any meaningful way.

I reiterate the point that sheriffs and sheriffs principal sit as temporary judges, so they currently preside over rape cases in the High Court.

Of course.