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Two weeks ago, I questioned the Lord Advocate and Lady Dorrian specifically on the inclusion of the indictment of murder in the remit of the specialist court. I find that extraordinary. I am not a practitioner, so it would be helpful if you could give a view on that. As a layperson, I think that murder is a plea of the Crown for a reason, even if there is a sexual element. The crucial element is that although, under the bill, murder could, of course, still be prosecuted in the High Court, a Lord Advocate could choose not to prosecute it in the High Court. I would appreciate it if you would comment on that.

That is right.

Does that mean that in the High Court a case would be prosecuted by an advocate depute, but in another court that could be done by either an advocate depute or a procurator fiscal depute?

It is on cause shown.

Just for completeness, section 46 allows the prosecutor or accused to say that they do not want to be heard in the specialist court and that they want to be heard in the High Court or the sheriff court. Given what you have said and the evidence that you have given the committee already, it sounds to me as though, whereas at the moment there are rules on where cases can be heard, under the bill there will be no rules at all. In fact, the provisions would mean that the prosecution and the defence would just work it out amongst themselves in which court the case is heard. If that is a concern, at least legislators should have the confidence to say with certainty what cases will be heard in which courts. However, if we pass the bill, it would be completely a matter for the court system to decide where cases are tried. Is that fair to say?

Thank you very much for bringing to our attention your point about the importance of transcripts—that is something else that I think that we will need to take on. I know that a pilot on the use of transcripts is running at the moment, which you should take credit for.

I am very sympathetic to that point. I think that you have made a very good point from the perspective of survivors. I am just concerned about the volume of cases that would be transferred to the specialist court and how we would achieve that.

You might not be able to answer this question. Again, I do not fully understand why the Government, when it legislated, said that murder, if it had a sexual element, could be indicted in the specialist court. Had you asked for that? Had you made representations to the Government on that?

That has muddied the waters—for me, anyway. Murder cases should be in the High Court, so I do not understand. Obviously, they can be prosecuted in either court, but once we lose that provision from law, we will never go back to it—that is for sure.

I have a question for Kate Wallace. The committee is persuaded that the lack of certainty in the floating trial system must be traumatic; we have heard that from survivors. What concerns me about how we would fix that is that the figures that the Lord Advocate gave the committee last week demonstrated that the volume of cases that would be removed from the High Court to be dealt with in the specialist court would strip the majority of cases out of the High Court. We know that because, in essence, the root of the problem that we are trying to address is the number of sexual offences cases. I think that she gave a figure of about 73 per cent.

Are you not concerned that, if all those cases then go to the specialist court, rather than the High Court, we are going to have a problem trying to get certainty about the date because the same problem will arise? The volume of cases going to the specialist court will then be high. Do you see what I mean?

I want to focus on how we could change the role of the advocate depute or, as Ellie said, determine that the public interest also includes the proper conduct of the trial, including consideration of all the relevant evidence.

Hannah, I want to come back to you on this. Even if, in those circumstances, you had an independent advocate, they would not be able to intervene at that point. There is not really a way of going back on that, but perhaps if you had an opportunity during the course of a trial to say to the advocate depute, “You didn’t put this crucial point—why did you not do it?”, that would give them a chance to go back over that evidence.

I am wondering whether having that ability is more important than having an independent advocate, because at least the AD has a full understanding of the case. As you were told by the Lord Advocate, they are only human, so mistakes will be made. Would having a right to say to the AD, “I want a recess in the trial in order to put some of the points that I feel have not been put,” be more useful than independent advocacy?