Seòmar agus comataidhean

Unfortunately, I am unable to support any of the amendments in the group. If the committee will bear with me, I will go through the detail of my objections, so that they are on the record.

I want to flag up two issues. I think that we are all agreed that it is fundamental that we ensure that more victims know their existing rights as well as any new rights that they will receive under the bill. The point about the new victim contact team working well with the Crown Office is fundamental and of pragmatic importance.

I will start by commenting in detail on Mr Findlay’s amendments 79 and 82. I understand that, sometimes, victims will not support or agree with a plea that prosecutors propose. However, requiring the prosecutor to seek their approval to amended charges before proposing or accepting a plea of guilty is contrary to one of the key principles of our justice system, which is that it is independent prosecutors acting in the public interest who make prosecutorial decisions, and they do so independently of any other person.

I am glad that Mr Findlay openly acknowledged his overreach in the amendments because the principle is enshrined in section 48(5) of the Scotland Act 1998, and amendments 79 and 82 are outwith the legislative competence of the Scottish Parliament. The prosecutor will weigh up all relevant factors in making their independent prosecutorial decision.

Alongside the issue of competence, there is a practical reason why I do not support amendments 79 and 82. They would risk adding considerably to delay and churn in the criminal justice system if, on each occasion that the prosecutor considers proposing or accepting a plea of guilty to alternative charges, they must contact and obtain the consent of any person who appears to be a victim of the offences.

In cases that involve multiple victims, it is unclear why the views of a victim who does not support a plea of guilty to alternative charges should take priority over the views of another victim or victims who do support that. That would lead to the possibility that all those victims would be required to give evidence in court, rather than a case being resolved by a guilty plea with which the majority of the victims are content.

Making decisions on acceptance of a guilty plea to amend charges dependent on the complainer would also put complainers in a position in which an accused person could pressurise them to accept or agree to accept a plea. That might be a particular risk in cases that involve controlling behaviour and it is another reason why it is not appropriate for prosecution decisions in individual cases to depend on the views of the complainer.

I turn to amendments 80 and 83. I understand that the impact on victims can be significant, particularly when they feel that their views were not considered before a decision was taken. However, the same competence issues apply, as the Lord Advocate would be required to consider the views of victims as a matter of law, rather than because she had reached the view that it would be appropriate to do so in a particular case. As with amendments 79 and 82, that is contrary to the Scotland Act 1998, which provides that the Lord Advocate makes prosecutorial decisions independently of any other person.

Alongside the significant competence issues, I am concerned about the practical impact of the amendments. Plea negotiations between the defence and the prosecution can be an iterative process, and requiring the prosecution to seek and consider the views of any person who appears to be a victim before making any decision about proposing or accepting a plea would add significantly to the time that it takes to resolve cases.

I turn to amendments 81 and 84, which relate to information on plea adjustments. They are well intentioned, but they do not take into account the fact that victims are individuals with particular needs and preferences. The approach to communication and support should be tailored to those needs and preferences as much as possible, and a blanket approach is not the most effective way of doing that. In addition, removing individual choice could be traumatic when the victim has made an informed decision not to engage. The proposed approach is also resource intensive, as information might be given that is not wanted, which risks diluting available resource that could provide a more personalised approach.

Victims generally want to be able to understand their right to access support and information, and to exercise choice and control throughout the lifetime of their case. In that regard, we would all agree that there is certainly more to do, some of which is the raison d’être of the bill.

Through the bill, we are strengthening, but not duplicating, the rights that were enshrined in the Victims and Witnesses (Scotland) Act 2014. The establishment of the victims and witnesses commissioner and our reforms to the victim notification scheme place the needs of victims at the heart of the justice system, recognising their individual needs and preferences and ensuring that systems respect those in so far as that is possible.

Amendments 81 and 84, which provide no means by which a victim can choose not to receive such information or to exercise agency, no matter their individual preference, would create mandatory processes for specific points in the criminal justice process and therefore add complexity to the system that victims need to navigate.

I have the same concerns in relation to Sharon Dowey’s amendment 90 and Jamie Greene’s amendment 239, which also seek to introduce a requirement for prosecutors to notify any person who appears to be a victim of a decision to take no criminal proceedings. In addition, amendment 239 requires notification where criminal proceedings have been initiated and discontinued. I acknowledge the good intentions behind amendments 90 and 239, but, as with amendments 81 and 84, I am concerned that they do not provide any means by which victims can choose not to receive such information, which again removes agency.

I will start with amendment 60, from Ms Clark, and amendment 87, from Ms Dowey, on reviewing and reporting on trauma-informed practice. I understand their position, but I cannot support the amendments, as section 24 already requires criminal justice agencies to set and publish standards on how they carry out their functions in relation to victims and witnesses in a way that reflects trauma-informed practice. The agencies will have to report on those standards annually, setting out whether the standards have been met and how they plan to meet them during the following year.

Importantly, the victims and witnesses commissioner will monitor compliance with the standards for trauma-informed practice, so there will be independent scrutiny and accountability. Also, under section 16, the commissioner will have to produce and publish an annual report on their functions, which must include any recommendations. The bill specifically provides that that can include recommendations on trauma-informed practice.

To further strengthen the measures that are already in the bill, I have lodged amendment 169, which we will come on to in group 32. If that amendment is agreed to, it will place a duty on the Scottish ministers to undertake two reviews, five years apart, on the operation of the whole bill, once it is enacted. That would include reviewing the operation of the provisions on trauma-informed practice. I am therefore confident that there will be sufficient legislative measures to ensure that the implementation of trauma-informed practice is reviewed and reported on. I say respectfully that, in my view, amendments 60 and 87 would not add meaningfully to those measures and could require significant resource to duplicate existing work.

I will turn to training and to amendment 86. Part 5 of the bill already requires all solicitors, advocates, judges and clerks in the new sexual offences court to complete trauma-informed training, as trauma-informed practice is central to the principles and operation of the new court. I do not believe that legislating for mandatory training would be helpful or proportionate, especially given that amendment 86 would capture such a broad range of people. The amendment would cut across existing responsibilities of independent professional groups to set training for their members, and it would appear to apply to prosecutors, which could infringe on the independent role of the Lord Advocate.

I reassure the committee that legislation is not the only tool that we have to embed training. We funded the development of the trauma-informed justice knowledge and skills framework, which helps organisations to identify the training that their staff need to respond to victims and witnesses in trauma-informed ways.

All members of the victims task force have committed to implementing the framework, and the Scottish Government has been funding NHS Education for Scotland to support that work. As part of that, two online training modules were launched last November. NHS Education for Scotland has also worked directly with justice organisations, including Police Scotland, the Crown Office, the Scottish Courts and Tribunals Service and the Law Society, to support their development and implementation of training.

The Judicial Institute for Scotland has developed and delivered a substantial programme of enhanced trauma training for the judiciary. All salaried sheriffs and summary sheriffs will have attended a course on trauma-informed judging by the end of March, and trauma training now forms part of the induction for new senators and sheriffs. A new trauma course that is focused on sexual offence cases has also been rolled out for High Court judges. For solicitors, several universities now incorporate learning on trauma-informed practice into their diploma courses.

Amendment 88, as written, would mean that use of the regulation-making power in section 5(1) of the Solicitors (Scotland) Act 1980 at any time for any purpose would trigger the requirement to make provision for training on trauma-informed practice and handling sexual offences cases. That would be highly impractical. Regulations under that section might be made for various purposes, and it would not necessarily be appropriate to include provision for such training every single time that the power was used. I therefore cannot support amendments 86 and 88.

Finally, I will speak to the definition of trauma-informed practice. Amendments 170 and 171, in my name, expand the definition of trauma-informed practice in section 69. That responds to a committee recommendation at stage 1.

Amendment 171 adds two new limbs to the definition of trauma-informed practice in the bill, to reflect two additional aims of the knowledge and skills framework. The amendment specifies that trauma-informed practice involves

“adapting and implementing processes ... to ... avoid, or minimise”

hindering a person’s recovery from trauma and to enable a person who is affected by trauma

“to participate effectively in court proceedings”

so that trauma is not a barrier to effective participation and they can give their best evidence.

Amendment 170 makes it clear that, in a justice context, trauma-informed practice involves understanding that trauma can impact on the quality of a person’s evidence. Practices and processes should then be adapted to take that into account where appropriate. That is an important part of helping to ensure that people can give their best evidence and that the effect of trauma on their evidence is not misinterpreted.

We have developed the amendments in collaboration with justice partners and have consulted Dr Caroline Bruce of NHS Education for Scotland. I was pleased to be able to lodge the amendments in response to the committee’s recommendation, and I hope that members will support them.

I am concerned that the language of Ms Dowey’s amendment 93 is not workable or meaningful in a justice context. As the committee heard from witnesses at stage 1, unfortunately, we cannot remove all the risk that justice processes will cause people distress, so the amendment’s wording of doing “no harm” goes beyond what is feasible. Similarly, although it is right that people working in our justice system should do all that they can to minimise trauma and retraumatisation, supporting people’s recovery, which is what Ms Dowey’s amendment calls for, generally goes beyond their roles.

I therefore hope that the committee will support amendments 170 and 171, in my name, and oppose the other amendments in the group.

I understand that argument. All that I was trying to portray is that, in the context of a sexual offences court, where, on the same indictment, there is a murder and sexual offences, there would still be the opportunity for that to go to the High Court or the sexual offences court.

Of course, the sexual offences court has unlimited sentencing power, so it can sentence people for up to life and make an order for lifelong restriction and all of that. I understand the point that is being made. What I am wrestling with is the experience of victims and complainers. Right now, we know that the system overall is not doing enough to support people to give their best evidence. I contend that that relates to issues of the fairness of justice. The whole raison d’être of the sexual offences court is to improve the efficiency of the process and procedures to deliver quicker decision making and improved judicial case management so that cases can be dealt with more quickly.

The evidence from elsewhere in the world shows that specialism assists with that. However, embedding specialism will improve the experience of everybody in the court. If we are concerned about the experience of victims and complainers in the court process, there is an issue with having a sexual offences court that has embedded specialism and then also having a cohort of victims and complainers who have to go to the High Court. I think that the issue involves quite a fine judgment, but that is why I have not brought forward an amendment at stage 2. However, I know that it is a live issue.

There are a number of layers to my concern about a supermajority. When we consulted on the bill—I appreciate that that was some time ago—there was low support for near unanimity in a reformed system. It was something like 13 per cent. It also feels disproportionate to go from a system that requires a little bit more than 50 per cent to convict to one that, in the context of a majority of 13 out of 15, would require 87 per cent.

The standard of proof is the standard of proof—there are no changes to that. It is worth bearing in mind that juries in Scotland are not told to strive for unanimity. The process is considered to involve an aggregate of individual votes as opposed to being a collective endeavour.

Another difference between Scotland and other systems with two verdicts is that Scotland does not have hung juries or retrials. Such options, should we proceed with reform to a two-verdict system, were not popular in our consultations. In short—forgive me, convener—in relation to near unanimity, there are still some differences in the Scottish system. Corroboration still exists, and there are no retrials in our system.

Good morning, and thank you, convener.

I wrote to the committee last autumn to update members on my approach to stage 2 of the bill. I remind members of the significance of the proposed legislation. You have all heard compelling evidence that the justice system does not provide a satisfactory experience for many victims and witnesses; for many, it can be actively harmful, particularly for those who have experienced sexual crimes.

Incremental changes over the years have delivered improvements, and I am grateful to all who have worked to drive such change. However, as the committee has heard from the Lord Advocate and Lady Dorrian, the former Lord Justice Clerk, the dial has not shifted enough and the scale of reform that is needed cannot be delivered through existing structures and processes.

The bill sets out a package of reforms that have the potential, if agreed to, to transform the operation of the justice system to the benefit of victims, particularly women, while protecting the rights of the accused. I am heartened that there is significant support for much of the bill. I am, of course, disappointed—although I accept—that that does not extend to the full package of measures that are included in the bill as introduced.

As I hope that my letter makes clear, I want to work across the chamber and reform by consensus. I have set out key areas in which the bill will be amended in response to the committee’s stage 1 report. The most significant of those is the pilot of single-judge rape trials, which I have confirmed that I will no longer pursue. Although that is regrettable, I have to recognise that there is insufficient cross-party support for that.

However, I do not accept that the long-standing issue of access to justice for rape victims has somehow disappeared. The low conviction rates for that type of crime are a stark symptom of a system that does not operate effectively for some of the most serious and gendered crimes. Therefore, I will lodge amendments at stage 2 to remove the barriers to conducting research on jury deliberations, to help us to better understand the impact of rape myths on decision making.

I will also lodge a significant package of amendments to address matters relating to the creation of a sexual offences court. The amendments have been developed in collaboration with justice stakeholders and include changes to address concerns about the legal representation that accused prosecuted are entitled to in court. Amendments will be lodged on appointment and removal of judges to the court and on enhancing choice for complainers in how they give their evidence. I am confident that the amendments will address concerns about the model of the court that were raised by the committee at stage 1.

The former Lord Justice Clerk, the Lord Advocate, the senators of the College of Justice and the Scottish Courts and Tribunals Service, as well as victims, have told the committee that a stand-alone court is necessary to improve the experience of sexual offence complainers. They have made it clear that tinkering around the edges will simply be insufficient. Therefore, I urge committee members to grasp the nettle and embrace wholesale reform to the management of sexual offence cases by supporting the creation of a stand-alone court.

I am pleased that there is cross-party support for the removal of the archaic not proven verdict. You have heard much evidence on the need for consequential changes to the jury system: some from people arguing that we should retain a simple majority, some from those favouring a qualified majority and some from people who would like to move to a supermajority or unanimity. The evidence that we have supports the view that moving to two verdicts could lead to an increase in convictions for all crimes. My assessment is that we cannot abolish not proven in isolation without impacting the balance of fairness in our system. Stand-alone reform would risk miscarriages of justice; equally, setting too high a threshold for conviction would mean that we fail to hold perpetrators to account. To maintain the integrity of our criminal justice system and confidence in that system, the most prudent approach is a model with two verdicts, 15 jurors and a two-thirds majority requirement for a conviction.

Thank you, convener. I look forward to working with the committee over the coming several weeks as we navigate our way through to stage 2.

Good morning, and thank you, convener.

I wrote to the committee last autumn to update members on my approach to stage 2 of the bill. I remind members of the significance of the proposed legislation. You have all heard compelling evidence that the justice system does not provide a satisfactory experience for many victims and witnesses; for many, it can be actively harmful, particularly for those who have experienced sexual crimes.

Incremental changes over the years have delivered improvements, and I am grateful to all who have worked to drive such change. However, as the committee has heard from the Lord Advocate and Lady Dorrian, the former Lord Justice Clerk, the dial has not shifted enough and the scale of reform that is needed cannot be delivered through existing structures and processes.

The bill sets out a package of reforms that have the potential, if agreed to, to transform the operation of the justice system to the benefit of victims, particularly women, while protecting the rights of the accused. I am heartened that there is significant support for much of the bill. I am, of course, disappointed—although I accept—that that does not extend to the full package of measures that are included in the bill as introduced.

As I hope that my letter makes clear, I want to work across the chamber and reform by consensus. I have set out key areas in which the bill will be amended in response to the committee’s stage 1 report. The most significant of those is the pilot of single-judge rape trials, which I have confirmed that I will no longer pursue. Although that is regrettable, I have to recognise that there is insufficient cross-party support for that.

However, I do not accept that the long-standing issue of access to justice for rape victims has somehow disappeared. The low conviction rates for that type of crime are a stark symptom of a system that does not operate effectively for some of the most serious and gendered crimes. Therefore, I will lodge amendments at stage 2 to remove the barriers to conducting research on jury deliberations, to help us to better understand the impact of rape myths on decision making.

I will also lodge a significant package of amendments to address matters relating to the creation of a sexual offences court. The amendments have been developed in collaboration with justice stakeholders and include changes to address concerns about the legal representation that accused prosecuted are entitled to in court. Amendments will be lodged on appointment and removal of judges to the court and on enhancing choice for complainers in how they give their evidence. I am confident that the amendments will address concerns about the model of the court that were raised by the committee at stage 1.

The former Lord Justice Clerk, the Lord Advocate, the senators of the College of Justice and the Scottish Courts and Tribunals Service, as well as victims, have told the committee that a stand-alone court is necessary to improve the experience of sexual offence complainers. They have made it clear that tinkering around the edges will simply be insufficient. Therefore, I urge committee members to grasp the nettle and embrace wholesale reform to the management of sexual offence cases by supporting the creation of a stand-alone court.

I am pleased that there is cross-party support for the removal of the archaic not proven verdict. You have heard much evidence on the need for consequential changes to the jury system: some from people arguing that we should retain a simple majority, some from those favouring a qualified majority and some from people who would like to move to a supermajority or unanimity. The evidence that we have supports the view that moving to two verdicts could lead to an increase in convictions for all crimes. My assessment is that we cannot abolish not proven in isolation without impacting the balance of fairness in our system. Stand-alone reform would risk miscarriages of justice; equally, setting too high a threshold for conviction would mean that we fail to hold perpetrators to account. To maintain the integrity of our criminal justice system and confidence in that system, the most prudent approach is a model with two verdicts, 15 jurors and a two-thirds majority requirement for a conviction.

Thank you, convener. I look forward to working with the committee over the coming several weeks as we navigate our way through to stage 2.

For clarity, the amendments that you refer to relate not to part 5, which deals with the sexual offences court, but to part 3, which deals with special measures.

I think that I said that part 4 of the bill is very specific about this being a stand-alone reform more aligned to modernisation and transparency of decision making. Of course, the bill as a whole contains a number of measures on improving access to justice. We have collectively been focused on more access to justice for more women in the context of sexual offences and rape, given the really low conviction rate, particularly for some of the evidentially more difficult cases. This reform is about ensuring our system’s integrity and maintaining balance. All the evidence points to the fact that, if we move from a three-verdict system to a two-verdict system, convictions will increase, hence the concern about miscarriages of justice and the interconnected discussion and debate around the jury majority.

I am well aware of the views of Scottish Women’s Aid. It has been consistent in its views, as has Rape Crisis Scotland. On the other hand, Victim Support Scotland and some of the other organisations that are involved in the victims task force, which I chair, along with the Lord Advocate, have been campaigning for a commissioner a long time. I have to be respectful to all voices.

It has been put to me that there is a gap, bearing it in mind that a victims and witnesses commissioner exists south of the border. Victim Support Scotland has, on a number of occasions, challenged me about that gap in Scotland. I am also mindful that action is being taken to strengthen the role of the Victims’ Commissioner south of the border. That is in line with what we are attempting to legislate for by bringing in a commissioner who has a particular responsibility around holding people to account. Our commissioner would, of course, be accountable to the Parliament.

I would be happy to do that. At a basic level, I am more than happy to lay out the case for the commissioner in detail, but I also have a manifesto commitment to deliver for victims and witnesses. I utterly appreciate the Parliament’s role in making final decisions but I will continue advocating as best I can for a victims and witnesses commissioner until the Parliament decides otherwise.