Contents
- Attendance
- Management of Sexual Offences Cases
- Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 1
Management of Sexual Offences Cases
Good morning, and welcome to the first meeting in 2024 of the Criminal Justice Committee. We have no apologies this morning and our first item of business is an evidence session on the work of the review into improving the management of sexual offences cases in Scotland.
We are pleased to be joined today by Lady Dorrian, Lord Justice Clerk and Senator of the College of Justice. I refer members to papers 1 to 3. Lady Dorrian chaired the review that produced a report on improving the management of sexual offences cases. It is fair to say that the ideas in her report underpin many of the provisions of the Victims, Witnesses, and Justice Reform (Scotland) Bill, on which the committee is currently taking stage 1 evidence. We are pleased that Lady Dorrian is joining us this morning to speak about her report. I intend to allow up to 75 minutes for this session.
I invite Lady Dorrian to make a short opening statement.
Thank you, convener. The Lord President is grateful to the committee for accepting his offer that I come today to speak about the report of the review group.
As you know, members of the judiciary do not often attend Parliament to comment on proposed legislation and the fact that the Lord President has agreed that I should do so shows the support of the judiciary for many of the reforms that are proposed in the bill, particularly those that were foreshadowed in the review group report.
Improving the experience of victims and witnesses in the criminal justice system has been of primary importance to me since I became a judge. Both before and after I became Lord Justice Clerk, I have either initiated or participated in a number of initiatives that have contributed to an improving picture. Those include the practice notes that I hope the committee members have been given, which I arranged to be sent yesterday—I thought that they might be useful.
The 2017 practice note was designed to encourage greater use of commissions and to give guidance about the issues on which the court would expect to hear submissions when asked to grant an application. The 2019 practice note was aimed at getting written questions in advance when children were giving evidence, and to simplify the process.
The evidence and procedure report is a process that started in 2013, but the 2015 report of the review was transformative. I was a member of the steering group chaired by Lord Carloway that was calling for new ways of thinking to transform existing procedures that were rooted in the Victorian era. As members will know, it focused on the benefits that would come from pre-recording the evidence of children and vulnerable witnesses and looking at what constitutes best evidence.
That was followed up in 2016 with a next-steps report to develop those proposals, and a recommendation was made that all vulnerable witnesses should be able to give their evidence by pre-recording. A further report in 2017 made a large number of recommendations about enabling the wider use of audiovisual recordings. That was enshrined in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, but it gave scope for further development.
All those various measures drove a more than twentyfold increase in the number of applications for commissions that were granted between 2017 and 2023. They went from 33 in 2017 to 750 in the year to November 2023. Even in the year following the 2017 practice note, there was a very substantial increase. Pre-recording is the single most effective measure, whether it is done by commission, or preferably at an earlier stage by pre-recording police interviews, to enable the witnesses to give their best evidence.
The sexual offences review group that was commissioned by the Lord President followed on from all that and conducted a comprehensive cross-justice sector evidence-based exercise, producing the suite of recommendations with which I am sure committee members are familiar. It was designed to bring about a sea change in the management of sexual offences cases and focus on what seemed necessary to improve the experience of complainers without, of course, compromising the right to a fair trial. As the convener pointed out, the report foreshadowed many of the provisions in the bill.
It is worth pointing out that we found that, despite reforms stretching back 40 years to the first rape shield legislation, at the time of our report, complainers were still reporting unsatisfactory experiences. We felt that that was partly because the reforms had taken place on a piecemeal basis—a bit here and a bit there—without focusing on how they fitted into the overall picture of the prosecution of serious offences. The review group sought to review that by approaching it in a holistic manner, making the six principal recommendations that are designed to develop a more complainer-centric system and to improve their experience significantly.
With that introduction, I am very happy to try to answer questions about my report.
Thank you, Lady Dorrian. That was a helpful opening overview of the backdrop to the review and the amount of work that has been done over a number of years. I am interested in what you said about trying to introduce new ways of thinking to transform procedures that are rooted in the Victorian era.
I will open with a general question about the second recommendation in the report, which relates to the establishment of a sexual offences court. It sets out a wide range of key features, including pre-recorded evidence, judicial case management and many others. I am interested in whether the review considered, from a practical perspective, whether similar benefits might be achieved through the implementation of specialism in existing court structures, in particular given that the number of sexual offences cases that are reported to the Crown Office is steadily increasing.
We did, and one of the reasons why we rejected it concerned the very point that you make about the number of cases, given the increase that there has already been. Cases are continuing to increase year on year and, as far as I can see, that is not going to stop. There are a lot of reasons for that, which we address to some extent in the report. Those include different ways of investigating by the police, and the effect of numerous investigations and inquiries going on elsewhere, which reveal abuse that then becomes the subject of prosecution. There is a whole raft of reasons.
Our view—although the review group was not unanimous on everything, it was unanimous on this—was that an approach was necessary that would go beyond tinkering and creating a little specialist group within the overall judiciary. There would need to be more than one such group anyway; we could create a group in the High Court, but that would not touch on solemn prosecutions of sexual offences in the sheriff courts, which are also bound to be on the increase. We were concerned that the piecemeal reforms that had taken place—which had largely been focused on the High Court, although there were others—had not achieved the overall improvements that we felt were necessary.
We recognised that there was a benefit in putting the work in the hands of specialist judges. We can see that in other areas, but those are smaller areas such as the commercial court. One of the big successes has been the focusing of work for preliminary hearings in the High Court in the hands of a small group of judges. Until that happened, the Bonomy reforms never really took root, but that has had an effect.
However, we felt quite strongly that simply creating another division of the High Court, for example, would not achieve the necessary end. What was needed was a court of full national jurisdiction, with trauma-informed practices embedded; common training of individuals across the court; procedures that are uniformly applicable to the sheriff court and the Court of Session, which is not currently the case; and uniformly applicable practice notes and directions, which, again, is not currently the case. High Court directions apply only to the High Court, whereas the sheriff court and the sheriff principals in each sheriffdom are responsible for issuing directions in that sheriffdom. Uniformly applicable procedures, expectations and case management, with uniformity from Dumfries to Wick, are therefore required.
We also felt—this was important, given the huge increase in the number of cases—that a national court of that kind would also enable greater and more efficient use of the whole court estate and the judiciary across the country. We thought that that was very important, for a raft of reasons. Those included delivering local justice for individuals, and minimising the effects on the judges who deal with many such cases. There was a concern about the knock-on effects of trauma in that regard, whereas if the work is spread more widely, that is less of a risk.
We were also conscious of the fact that, as far as the High Court is concerned—as we have been told on more than one occasion by the Crown Office—there is an increase coming our way in serious organised crime; we have already started to see it. That will also be a drain on the High Court’s resources. There were a number of factors behind our view, but the main point was that there would be a court of national jurisdiction with procedures uniformly applicable across the country. I could go on at length about that, but it will no doubt come up in other questions.
09:45
Thank you for that helpful and comprehensive answer.
One of the things that I have certainly grappled with a little bit is the practical application of a specialist court in a national context. You have helpfully set out a lot of the model’s benefits, if you like, but did the review consider the challenges with regard to its practical application?
As far as the challenges are concerned, the fact is that there is no option to do nothing. Either you embed this in a new culture in a court of uniform practice across the country, or you try to embed it piecemeal in sheriffdoms and the High Court. Either way, there is going to be a requirement for specialist training for judges, staff, clerks—everyone. That is going to be necessary, however you do it.
You will probably get more detailed answers to this question from the Scottish Courts and Tribunals Service, but we were not of the view that there would be significant issues in that respect, because one of the benefits would be that we would be able to make greater use of the court estate. We would have many more courts available for use by the sexual offences court than are available at the moment, for example, in relation to the High Court. I have figures somewhere, if you will give me a moment to find them. The idea, though, is that we would have much greater use of the court estate and of the judiciary.
If I may say so, one of the issues might be that the bill’s provisions are, to some extent, quite complex in relation to the new court’s creation, and they seem to have been based on the creation of the Sheriff Appeal Court, which is a completely different model—a completely different animal. For example, some of the structural requirements and concepts, including the possibility of the president of the new national sexual offences court being someone other than the Lord Justice General or the Lord Justice Clerk, seem to be overcomplicated—and, if I may say so, counterproductive, especially given that the holders of those two offices have driven all the reforms over the past 10 years.
Another example is the complicated formal process for the appointment and removal of judges. We had in mind a much more straightforward amendment procedure of the Criminal Procedure (Scotland) Act 1995 to achieve the same objective without that somewhat cumbersome framework.
Thank you. I am sure that other members will have some follow-up questions on the court model.
I now open it up to questions from members. I call John Swinney, to be followed by Sharon Dowey.
Thank you very much, convener.
Lady Dorrian, one of the remarks that you made just a moment ago was, I thought, of enormous significance, and I would like to develop the thinking a bit further. You talked about the concept of embedding “a new culture”.
Yes.
I think that, for the committee’s benefit and to serve our understanding of the thinking that has underpinned your work, we would like to hear just a little bit more about that. Having listened to the evidence on the bill’s other contents, I find that what has really resonated with me is that culture issue and the necessity of changing the dynamics and the nature of the process that is under way. If I understand you correctly, you are telling us that cannot really achieve that by tinkering with what, for argument’s sake, is a Victorian set of procedures. Instead—and I was struck by this in your report—you need to go in with a blank sheet of paper. I think that your response to that would help us understand the cultural point that you are making.
You are quite right that my comment was linked to the point in the report that piecemeal reforms do not achieve cultural change. I think that that is abundantly clear.
In my report, we deal with the issues in relation to the rape shield legislation, which is now 40 years old—the first iteration of it was 40 years ago. The legislation did not work, partly because of the way in which it was written and partly because of the way in which it was interpreted. It was firmed up and revised, and it still did not take hold sufficiently, for the reasons that we address in the report. I do not suppose that I need to go into the reasons, but it was only with a concerted effort by the senior judiciary—the appeal court—in a number of cases, to focus on what should be being done in relation to those cases, that we got past a tipping point. There are still instances of cases where something has not happened as it should, but they are much fewer than they were. That has happened, after 40 years, only as a result of an enormous amount of effort, because the culture was not changed at the outset.
That is only one area. There are a whole load of others that really require to be looked at. It is one of the reasons why we are recommending that trauma-informed practice and training for everyone should underpin all of this, because once people understand what it is all about, the culture will start to change. That is also why we think that this should be embedded in legislation, because it will provide the legislative impetus towards creating that necessary culture change.
That is a very helpful explanation. Will you reflect further on the cultural change that needs to be undertaken or achieved to make the process effective? Parliament may well be able to legislate for that, but the issue is how it will become a meaningful change of practice.
One of the points that you have made very powerfully is that judicial leadership has been crucial in taking us thus far. What else is required to make sure that, when we look back 10 years down the track, we see this as a significant moment in changing the experience of those who happen to be involved in the work of a sexual offences court?
In large degree, that would be because of the training and educational requirements, which would be a necessity for the operation of the new court. The court would be operating according to trauma-informed practices. Its procedure would be developed in the light of trauma-informed practices.
In the report, the whole idea was to find ways of minimising the trauma experienced by a complainer or a witness when giving evidence and going through the process in such cases. If cases are in the hands of judges and court staff who have all been trained thoroughly and in depth, assisted by prosecutors and defence lawyers who have similarly been trained to standards that are set by the Lord President, and they are applying rules developed by reference to trauma-informed practices, that should achieve a change of culture, because everyone will understand what is behind that approach and where we are going.
When we first started this journey and were trying to improve and change the number of commissions with the 2017 practice note—and, I think, with the rape shield legislation—it was clear that practitioners had not come as far as we in the judiciary had. They did not understand why we were doing what we were doing and why we were saying what we were saying. That has substantially changed, because the lawyers involved—both prosecution and defence—have had better training. I think that we are now at a stage at which practitioners fully understand the rape shield legislation and why it operates as it does.
The same thing, I think, has happened in relation to commissions, following on from the 2017 practice note. It is usually the Crown that makes the application for the witness to give their evidence by special measures or by commission, but there was a lack of thought about what the requirements were of the witness. What are their communication requirements? What are they afraid of? What can we do to make the process easier for them? All those things were addressed in the practice note. If you start from a common base, with everyone understanding that, you have a far better chance of changing the culture.
My last question is about an issue that we have discussed in previous committee meetings, which is the role of defence counsel in the questioning of witnesses—although this can sometimes also apply to the actions of the Crown. Is that questioning conducted in a fashion that is compatible with the legitimate aspirations of trauma-informed practice, which I entirely endorse?
One line of argument that has been put to us is that we must be satisfied that the right questions are being asked, and in the right fashion, to ensure that a fair trial is being delivered. Obviously, I want trials to be undertaken fairly, but I am concerned that trauma-informed practice might be disregarded in the name of ensuring a fair trial. That relates particularly to the conduct of defence counsel and defence agents. I would be interested to hear your observations about what the court and the judiciary can do to ensure that we have fair trials that are conducted in a fashion that is not damaging to witnesses who come forward in good faith.
There is little risk that trauma-informed practices would be set aside or ignored in the way that you suggest. We have already had a lot of judicial training on that: all judges and temporary judges in the High Court have had trauma-informed training. The training has been developed exponentially and improved as we have gone on, and more courses are coming up that will improve the situation.
The Lord President and I could not have been any plainer, in a series of cases, about the responsibilities of judges and about what is expected of lawyers. That is working, but that is because we have been insistent about that for some time and because the other judges have accepted and adopted that culture.
No system is 100 per cent foolproof, but the matters that were a cause for concern at the time of the report have improved enormously. Judges are far more interventionist than they used to be and lawyers are generally behaving better. There are instances of bad practice, but we are aware of that and are dealing with it. For example, some time ago, I asked all judges to bring to my notice any egregious examples of bad practice that they encounter so that I can take them up with the Law Society or with the dean, depending on what might be necessary, and I would have absolutely no hesitation in doing that.
Have you had to do so?
I have had occasion to do so in the past but have not had occasion to do so in the past year.
Yesterday, I asked for some figures about appeals from preliminary hearings, because the rape shield legislation is dealt with at the preliminary hearing in about 97 per cent of cases. If either the Crown or the defence is not happy with the decision in relation to that legislation, they can seek leave to appeal and to have the High Court deal with it. There is a very quick process for those appeals. Until about 2020, we had a fair number of appeals that were to do with dissatisfaction about the way in which the judge had decided on the rape shield legislation. Those appeals usually involved the defence saying that the judge was wrong not to allow questioning, although there were occasional Crown appeals.
I have not been able to get very detailed figures, and I just asked my colleagues to provide figures for a couple of years, but they confirm my impression that such appeals have reduced quite substantially. In 2020-21, 63 per cent of appeals from preliminary hearings related to dissatisfaction with rape shield legislation. In 2021-22, the figure went down to 43 per cent. I strongly suspect that it will now be even lower, which, to my mind, shows that control is being exercised by the judiciary, and that the profession now accepts and understands the position. That conforms with the evidence that the committee received from Stuart Munro in an earlier session.
10:00
We have quite a bit to get through and we are half an hour in already, so I ask for fairly succinct answers, Lady Dorrian.
I will bring in Sharon Dowey and then Rona Mackay.
The review group concluded that a specialist sexual offences court should be set up that adopts the routine pre-recording of complainers’ evidence and uses trauma-informed practice. You said earlier that there was a requirement for specialist training, however we did it. With the bill obliging all courts to comply with trauma-informed practice, is there a need for a new court to be set up?
I think that I answered that question when the convener asked me about it. A new court is really only one part of it. We need to make sure that the whole court adopts pre-recording throughout the country. The rape shield legislation, for example, applies to all the courts across the country and has always done so by virtue of the legislation, but it has not embedded as a practice. This is only one part of embedding the practice. It is a way of helping to change the culture, but it is only the start, and much more is needed.
When you recommended setting up a specialist sexual offences court, did you envisage a new purpose-built court for that, or do you think that it can be done in the current estate?
I had no conception of there being a new purpose-built court. My idea throughout was that we would be able to utilise to a much greater extent all the resources across the estate and that we would be able to spread those cases so that they could be dealt with more locally. Local justice is an important issue.
I had no notion that we would be looking at a new court building. That would be completely unnecessary, in my view.
Is that what you meant when you said in your report that
“The specialist court would have access to a much wider pool of venues than currently available to the High Court.”?
You were talking about using all the courts that are available to us.
Yes.
The report recommends that the sexual offences court should have sentencing powers up to 10 years’ imprisonment. What is the basis for that limit, considering that there is no limit on the length of prison sentence when someone is convicted of rape in the High Court?
The report explains that in some detail. It was based on our understanding of sentencing practice in the High Court. The vast majority of cases do not end in sentences of more than 10 years. We recommend that cases that are likely to result in a life sentence or, more likely, an order for lifelong restriction, be identified in advance and dealt with either in the sexual offences court by a judge of the High Court, who would be able to give a higher sentence, or that they should be remitted to the High Court. That is a very familiar practice in sentencing. For example, a sheriff could remit to the High Court for sentencing in a case in which they think that their powers are inadequate.
Do you anticipate that the setting up of the court will cause further delays in the judicial system?
No. I would hope that it would have the opposite effect.
Good morning, Lady Dorrian. In your report, you say that the review group was divided on rape trial pilots.
Yes.
The report recommends that
“Consideration should be given to developing a time-limited pilot of … rape trials”
without juries. Could you expand on that? What level of support was there within the review group for a pilot of that nature?
The group was divided. I think that it is fair to say that it was reasonably evenly divided. I do not have the exact figures of how the division went, but my recollection is that it was relatively evenly divided.
The rationale behind the recommendation was that the real benefit would be that we would then have evidence of what happens in a judge-only trial, and we would be able to compare that with what happens in jury trials. We would be able to compare the experience of a complainer in one compared with the other. We cannot do that at the moment. We would be able to compare the outcome, how the questioning was handled and how long the trial took. We would be able to compare all those things. At the moment, it is all speculation, because we have nothing to compare it with.
Would the evidence related to rape myths be taken into account, and would that be part of the consideration for having jury trials?
That was one of the underlying reasons for considering that it would be a benefit. We went into some detail about the issue of rape myths. I will not give you the details—5.34 and 5.40 to 5.42 are the relevant paragraphs in the report. Judges would not be affected by those, so that would definitely be a difference. Given that we now instruct juries about rape myths, we would be able to compare and see whether people who said, “It is not necessary. It will be enough just to give juries better instruction on that” were right.
You say that the pilot would be time limited. Do you have any indication of what timescale that would be?
I had in mind something like a couple of years, probably, to obtain sufficient material, but that is something that would have to be considered carefully.
Do you know of any other jurisdictions where juryless trials are happening?
There was some reference to it having been tried in a number of jurisdictions, or that it was going to be tried. I think that New Zealand was one. Perhaps New Zealand was thinking about doing it and South Africa had tried it. It is in the report. I am sorry, but I cannot recall the international evidence.
On the review group’s division on the pilot, I am obviously not asking for figures, but would you say that the majority would be in favour of it?
I could not say. All that I can say is that they were divided. There was no majority, otherwise a majority view would have been put across. They were divided in general terms, and that is all I can say. There were some who were vocally strongly against, there were some who were strongly in favour, there were others who could see a more nuanced way of looking at it and there were others who thought that there might be some benefit in some elements and not in others. It is impossible to say other than that. It is an issue upon which the review group was unable to reach a concluded view.
Thank you.
First, I commend you for the work that you have done and the way that you have presented it to the committee.
Thank you.
It is clear that there is a need for change—I am absolutely clear about that. I want to give some context to my question. You have made the case for a specialist court, but I am interested in where it would sit in the hierarchy—excuse my terminology, but that is the way that I see it as a layperson. I am interested in what the status of the specialist court would be and whether you think that the bill as drafted reflects what you had intended in your report.
For example, the report says that the rights of audience in a sexual offences court should be limited to advocates and solicitor advocates, but that is not reflected in the bill. Given that I convened the committee at the time, I can go as far back as the reforms when Lord Bonomy not only produced the report on preliminary hearings but proposed extending the sentencing powers of sheriff courts. There is a parallel here for me. What sticks in my mind is that, when he proposed extending the sentencing powers of sheriff courts to five years, he was clear that the sanctioning of counsel for serious cases should still be allowed. You will know that it is now very rare for counsel to be sanctioned in the sheriff court.
I think that there is a very good case for having the specialist court, but my concern is about the change in the rights of audience if the court is created. Under the bill, solicitors would be able to represent an accused person not in cases of rape or murder but for serious sexual offences. Do you have any concerns about whether the bill reflects what is said in the report about maintaining the high status of the court? How do you see the status of the specialist court in relation to the High Court?
I have already said that I do not think that the bill reflects what I had in mind. It seems to be trying to create some sort of new and different structure, as opposed to fitting what I had in mind into the existing structure.
What I had in mind was, in a sense, a parallel court, but with the Lord Justice General as the head of that court and the Lord Justice Clerk as the deputy head, as is generally the case across the court system. The court would be able to use all of the court estate and all of the judicial resources, as necessary, as long as properly trained people were in place.
You have picked up on the fact that we recommended that the court should have rights of audience equivalent to those in the High Court, because we wanted to ensure that its importance would be understood and that serious matters would be dealt with at a particular level. That was why we said that the right of audience should be for solicitor advocates with extended rights or for advocates. That is in the report. The justification is there.
If the bill were passed, the rights of audience would change. That would mean that sheriffs could sit in the specialist court, although they cannot sit in the High Court at the moment—
Sheriffs do sit as temporary judges in the High Court at the moment. A very significant number of them do that, and they do a very good job indeed, so that is not the issue. The issue is with those who appear and who question and cross-examine witnesses. We are concerned with ensuring that those people go through the necessary additional training. I am not talking only about trauma-informed practice; I am talking about the additional training in court craft and in court processes, procedures and behaviour that someone gets if they become an advocate or get extended rights of audience.
My final question relates to that. There have been many discussions in the Parliament about how we tackle the crime of rape, for which there seems to be a low conviction rate. It looks as though the specialist sexual offences court would not have the same status or the same rights of audience as the High Court. I assume that it has been designed that way to reflect the status of rape as a serious crime that, as a plea to the Crown, can be tried only in the High Court. If the bill does not reflect your recommendations about rights of audience, will you be concerned that the specialist sexual offences court will look like a lower court?
We made it very clear that the main driver of the whole idea was to improve the experience of complainers and that the way to do that was by properly setting up a specialist court, with proper training and with serious rights of audience for those who can appear there. That was done specifically to make it clear that we were not, in any way, diminishing the importance of such cases—quite the reverse. I refer you to paragraphs 3.41 and 3.42 of the report, where that issue is dealt with.
10:15
Good morning. I have a few questions, the first of which is about juryless trials. Your review group consists of all the key players in the Scottish justice system, but they could not reach a consensus on the issue, as you have told us. Given that that is perhaps the single most contentious part of the bill, I would be interested to know what your position on the matter is.
I took the view that it was worth looking at juryless trials. My position is simply that the idea is worth examining. It is worth having a pilot, because, as I have said, that would mean that we would have the evidence. The review group that considered the idea was not in any way looking at it as a long-term plan, at this stage; it was looking at it as an evidence-gathering exercise to enable us to address the issue properly and with an evidential base. All our report was based on evidence. This is an important area, and we do not really have the evidence to be able to assess whether a complainer would have a better experience with a judge-alone trial compared with a jury trial.
Did the review group foresee the reaction that has come from many in the legal profession? In asking this, I am perhaps straying into issues relating to the bill and what happens next, but if practitioners do not participate—as they have threatened—how could that then happen?
Well, with respect, that is more a matter for you and not so much for me to grapple with.
The answer to the first part of your question is obviously yes, because, as I have already explained—to Ms Mackay, I think—some people were very vocal in speaking out against the idea and others were fairly vocal in favour of it. There was definitely an obvious dichotomy there, which it was clear would be carried through into the wider world.
In respect of the sexual offences court proposal, some people have already asked about who will be able to practise there and so on. One issue relates to the bill extending the court’s proposed remit to other crimes, including, for example, murder. The Scottish Courts and Tribunals Service says that that could result in much greater cost than is suggested in the financial memorandum. On the basis of your review, do you think that the sexual offences court should deal only with crimes of a sexual nature?
I think that it is difficult to go quite that far. However, we said that crimes such as murder should continue to be tried in the High Court, even if there is a sexual offence along with them. I do not think that one could go as far as to say that the sexual offences court should deal only with sexual offences, because it is frequently the case that an indictment includes, for example, a dozen charges, 10 of which might be sexual offences, one of which might be a breach of the peace and one of which might be a drugs offence. Therefore, it is not practical to suggest that the court should not have jurisdiction over other crimes. The issue is dealt with in paragraph 3.36 of the report, under “Jurisdiction”.
Your review also recommends that complainers should have access to independent legal representation in the event of a section 275 application. However, concerns about how that would work have been raised by many, including the Crown Office and Procurator Fiscal Service, the Scottish Courts and Tribunals Service, the Law Society of Scotland and even your senior judicial colleagues. In their submission to the committee, the senators of the College of Justice say that the measure
“will create a considerable amount of extra work”
and
“considerable potential for delay and churn”.
The Crown Office and the SCTS also use the word “churn”, and the Law Society cites a risk of potential extra cost. Given those concerns, did the review group perhaps not give adequate consideration to the potential unforeseen consequences that are now being warned about?
To some extent, I think that the so-called unforeseen consequences are a result of section 64 of the bill and the way in which it is envisaged that it should operate. On the face of it, it seems somewhat cumbersome and time consuming, and a procedure of that kind may have the sorts of consequences that you are talking about. I would have thought that a much simpler procedure could be developed.
Four pages of the Crown’s submission to the committee related directly to the practicalities of dealing with section 275 issues and independent legal representation. In essence, would you say that you are supportive of the proposed changes, but that you take the view that the bill could potentially be amended or streamlined?
My view is that a more streamlined way of dealing with it could be found. I strongly support the proposal for independent legal representation. In fact, I think that there is an unanswerable case for independent legal representation, given the experience of complainers and our experience over the years in cases in which the Crown did not object to section 275 applications when it was blatantly clear that every paragraph of the application should have been objected to and should have been refused.
There have been a number of cases of that kind, and it is quite clear that in some cases, the Crown has not represented the complainer’s interests. There can be a conflict between the interests of the complainer and the interests of the Crown as the prosecutor. There are all sorts of other reasons, which are dealt with in detail in the report.
Even if the bill is fixed and streamlined, surely the very nature of there being an additional voice in the court will potentially result in more delay.
That is not necessarily the case. Section 275 applications are dealt with at preliminary hearings. As long as the notice period is sufficient to enable that still to be done, there is no reason why they cannot continue to be dealt with at the preliminary hearing. It is one hearing, and it takes place anyway as part of the process of the combined ground rules and procedural hearing. There would be an additional voice. A lot of the stuff is dealt with in writing, because a detailed application has to be made. Very often, parties will submit a written note of their views, and the court will then make a determination.
At the moment, there is scope for an appeal. I have already given you the figures about that—there were about 11 last year, and 20 two years ago. Of course, they were not all on section 274, but a significant proportion of them will have been. It is a small number. Allowing the right of appeal to the complainer should not have a major effect.
I was going to ask about independent legal representation, but Russell Findlay got in there before me, so I will ask about another area.
To go back to John Swinney’s point, we have heard concerning evidence about how victims and witnesses—or rather, complainers—have felt during their trial, particularly during cross examination, with regard to the practice of bringing up their character or, perhaps, sexual history. Is the recommendation for legal representation to protect people on that particular aspect?
That is only what it is for.
Personally, I think that independent legal representation is a really good idea. I welcome the proposals on that in your report and in the bill.
Going back to what Russell Findlay said, if it is not workable for whatever reason, is there another way to deal with defence lawyers bringing up the issue of character and sexual history as part of their defence? Did the group look at any other way that that could be addressed?
The only other way of addressing it is the way that has failed.
Is there any way to strengthen the current arrangements to ensure that they do not fail?
The court has been trying to do that, by requiring the Crown to confirm that it has notified and sought the views of the complainer and so on, because it was clear that that was not happening. That was meant to be happening before, but it was not.
When, in the course of an appeal in another case, we discovered that it was not happening, we changed the preliminary hearing sheet, where all the information must be provided to the court beforehand, to ensure that the Crown confirmed in writing that the complainer had been told of the content of a section 275 application, had been invited to comment on the accuracy of any allegations within it and had been asked to state any objections that they might have to the application being granted, which would be put to the court when the application was dealt with.
The unanimous view of the review group was that independent legal representation is the best approach. If the committee feels otherwise, steps would have to be very clearly set out, identifying what the obligation on the Crown was and what would happen if it failed in its obligation.
Thank you. You have made a compelling case about how you and the review group came to your decision.
Did the review consider whether complainers might be provided with independent legal representation in a wider range of circumstances? You may be aware that, in other jurisdictions in recent decades, legal representation has been introduced throughout the process in some cases. Did the review group consider that, or have you given any thought to it?
We did consider that. We thought that independent legal representation in relation to section 274 was the critical thing. We were also conscious that, where there is an application for recovery of medical records, for instance, that is a separate process. There is already the ability for a complainer to enter that process and oppose the recovery of medical records, psychiatric records or anything like that. We felt that the limit of what should happen within the criminal trial was independent legal representation at the section 275 stage, and that anything else was likely to derail the trial, cause additional delay and put out the time limits—all the concerns that Mr Findlay and Mr MacGregor have been voicing this morning.
Have you looked at other jurisdictions, or did you not do that in any detail? Did you consider whether some of the consequences that we have been discussing have transpired in other countries where independent legal representation has been brought in?
There is one jurisdiction in the United Kingdom where there is independent legal representation: Northern Ireland. I do not think that we were able to consider what the consequences had been, however. The measures had possibly not been in place for long enough, but I cannot recall. That is addressed in our report.
As you know, one of the major concerns—
Sorry—I thought that independent legal representation was available in Northern Ireland, but it has just been recommended there; it is available in the Republic of Ireland. That is covered in paragraph 4.43 of the report.
It happens in many parts of Europe, and indeed in parts of South America and in other jurisdictions, but I appreciate that you may not have looked at those.
I do not think that one can make those comparisons, because those places do not operate the same kind of legal system. Those systems have a partie civile involved in the criminal proceedings throughout, for instance, so they have an entirely different kind of provision. I do not think one can make that comparison. The proper comparison is with common law jurisdictions—Ireland is one and Northern Ireland is another.
10:30
As you know, one concern that is raised repeatedly by survivors and victims organisations is the lack of power and information that many rape victims in particular feel throughout the process—not only during the court process but from the very early stages.
We made detailed recommendations about improving the quality of the information that is given to complainers and of the communication. We made a recommendation for a one-stop shop—a single point of contact—for that, because we recognised the validity of the point that you are making.
Thank you.
I would like to raise with you an issue that follows on from Katy Clarke’s point about the flow of information. You chaired a whole-system review group, which was in recognition of the fact that whole-system issues are involved. Will you share with the committee what else you think needs to be improved to get us to a position in which we can look back on the reforms as a seminal moment in improving the experience of complainers and ensuring that the process operates in a more timely fashion, given the premium that you have attached to evidence being gathered in a timely fashion, so that recollections can be tested in the most effective way and when they are strongest during an individual’s experience.
In the report, we spent quite a lot of time talking about the communication issue and complainers’ experience of feeling that they were not being listened to and that they did not have someone to contact who could give them adequate and accurate information, notwithstanding the Victims and Witnesses (Scotland) Act 2014. We noted quite a lot of information about that in the first chapter of the report, and specified the kind of information that we think should be given to complainers through a single point of contact. It was suggested to us on a number of occasions that that was extremely difficult to achieve, because different organisations are involved, but we could not see why that would be the case. I see no reason why those organisations could not all have a single point of contact working with an additional one, who would be the point of contact for the complainer. That is one of the issues.
We addressed the issue of delay at various stages—the investigation stage, when it gets into the hands of the Crown, and then when it is in court—and we made recommendations. I think that quite a few of those have been acted on by the police and by the Crown—the courts have certainly acted on them.
Another aspect is the pre-recording of evidence at a much earlier stage. The timing is the key thing—it should be done at a much earlier stage. Even at the time of the evidence and procedure review, our thinking was that evidence in chief should effectively be the first interview with the police. It should be done by a skilled interviewer. Given that police will be wearing body cameras—that is being rolled out—that is how the evidence should be captured at the beginning. That would make it much more likely that any additional commissions or cross-examination could take place at a much earlier stage as well. That was key to the evidence and procedure review.
On the assumption that we continued with juries, we made a whole raft of recommendations about the changes that should be made in relation to how juries are instructed, directed and so on. We have not had to wait for legislation to introduce those recommendations; we have introduced every one of them.
Great—thank you for that.
My last question is about the issue, which we have long debated, of whether part of the reason for the successful or unsuccessful prosecution of sexual crimes has been about quality of evidence. I am interested to know your thoughts. Do you consider that there is any danger that your suggestions could lead to a reduction in the quality of evidence that is available? Is there a sense that evidence by commission is not as sturdy as evidence that is gathered in some other fashion?
No—I have heard that canard on a number of occasions and it is just incorrect. There is evidence, which we refer to in the report, to show that it is incorrect. In Scotland, we have the best evidence possible to show it is incorrect because, for three years, we operated trials in which juries saw no live witnesses at all, and the conviction rates over that period were not, in any way, incomparable to conviction rates prior to that period. For three years, juries did not see a single live witness—all they saw was witnesses on screen.
There is another thing to bear in mind, which is dealt with in quite a lot of detail in the report. Our experience of commissions is that the evidence is much more focused and compressed, because there is no jury. A lot of repetitive questions are asked for the benefit of the jury, and I am not criticising that as a practice, because sometimes it is necessary, but that happens a lot less with commissions. There is a much greater focus on what needs—and does not need—to be asked of the witness.
With regard to the length of time that the commission takes, at the time of the report, people’s experience was that it took about half the time that it took for the witness to give evidence in court. It is probably a lot less than that now—it is probably down to a matter of hours compared with a matter of days. Of course, there are complicated cases that are slightly different.
It also has to be borne in mind that commission evidence is taken in a much clearer, more focused way than happens at trial, and that, too, is a benefit.
That strikes me as being absolutely consistent with the aspiration for trauma-informed practice to minimise the negative experience for a witness.
Absolutely—it is key to it.
Thank you very much.
I am closely watching the time. I will come in with a couple of final questions.
In response to questions from Russell Findlay on the rape trial pilot, you used the phrase “evidence gathering” in relation to the purpose and objective of the pilot. I am interested in knowing whether the review considered the risk that the pilot could impact or influence the outcome of a case, just by virtue of the fact that a case was being heard as part of a pilot. Another issue is that an accused person who is convicted might have a right of appeal, again by virtue of the fact that their case was heard as part of a pilot. Did the review group consider those points?
In relation to the first point, I do not think that there is any risk of that. The pilot cases would be presided over by experienced professional judges, who would only decide the case according to the evidence. We are used to having pilots of one kind or another, such as drug courts, and they do not seem to have caused problems in the past.
As far as the appeal is concerned, the one big advantage of judge-alone trials is the obligation to give reasons, so the reasons are there. I am not convinced that the pilot would result in more, rather than fewer, appeals.
Thank you—that is helpful. I know that Pauline McNeill wants to come in, so I will ask my final question, which is on the anonymity of victims. The report recommends “express legislative protection” for the anonymity of victims of sexual offences. I am interested in hearing about the reasons for that recommendation. What difference do you think that such protection would make to victims?
For a start, it would give them a degree of comfort, because they would know that it was clearly set out in legislation that they had anonymity. It would also reflect the position in other jurisdictions where such protection is set out in statute. At the moment, there is no statutory protection. It is all based on common law and, effectively, a gentleman’s agreement with the press.
In that respect, the mainstream press has shown itself to be trustworthy and that it is able to abide by the convention that it does not identify complainers. However, we do not live in an era when the mainstream press is the only source of reporting. We now have to deal with blogging, social media and citizen journalists—I think that that is what they call themselves. A trend also seems to be developing of proper reporters reporting trials in podcasts as the trial goes on. There is nothing wrong with that, but it is a different way of presenting material to the public.
In order to provide a real safeguard against the risk of inadvertent disclosure by a professional or mischievous disclosure by a non-professional, we felt that that protection should be made clear in statute.
Lady Dorrian, I will put this question to the senators when they come, but given that the convener asked about juryless trials, I will ask you. Am I right in saying that, normally, the jury would decide the evidence that it believed but that the judge would decide the law? Does that mean that, in a juryless trial, the judge would also decide on the evidence? Does that mean that there is a different process for a judge to go through in a juryless trial because they would not normally decide the evidence and the jury would make those decisions?
No, not really. Every day in the sheriff court, judges make decisions on the facts and the law when they sit as a sheriff without a jury and decide criminal cases. They are doing that all the time.
Judges are also used to dealing with quite complex legal and factual cases in civil matters where they are responsible for making the decision themselves. In fact, during the past few years, we have had a number of cases in which the allegation in the civil case is one of rape, and the judge has not had any difficulty in dealing with the matter.
I will squeeze in one final question very quickly.
It is a very quick question about the proposed sexual offences court. You said earlier in your evidence that you did not think that tinkering would be sufficient. However, the Faculty of Advocates submission to the committee is quite robust. It says that
“there is no single feature of the proposed court which could not be delivered rapidly”
through existing mechanisms. What are your views on that?
We have, of course, managed to bring in the changes in the way in which juries are directed and so on, but even if they were brought in rapidly, they are still being done in a piecemeal way. They are not being done in a principled way, with the underpinning of a whole court that is dedicated to trauma-informed practices.
One of the things that we said in the report was that, if we do not seize the opportunity to create the culture change from the ground up that Mr Swinney spoke about, there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.
Thank you.
Thank you Lady Dorrian. We appreciate your taking the time to join us this morning. We will now have a short suspension.
10:45 Meeting suspended.10:50 On resuming—