Chamber and committees

We do not even have the costs or a correct financial memorandum. The initial cost for the set-up of the court was £1.4 million, and there are recurring costs. We have already agreed to the victims commissioner, but it was going to cost £640,000 to implement that and the recurring costs would be around £615,000. For the court, there is a one-off cost of £2 million and recurring costs of around £1 million. If that is, indeed, new money coming into the system rather than being taken off victims charities, which has been raised as a concern, how many bairns’ houses would we be able to buy with £2 million? The recurring costs of £1 million would keep them going. Taking that measure would make a huge difference to victims of sexual offences. Given the recent statistics on sexual offences against under-16s, that would be a better use of our money, because it would provide support and trauma-informed practice in dealing with youngsters, which would help them to provide solid evidence to get those who are guilty of those horrible crimes convicted and put in jail.

That, in my opinion, would be a better use of money, and I have real concerns about the sexual offences court. It sounds great, but how will it work in reality, and how will it be put into practice for solicitors, lawyers and everyone else who works in the system? Concerns have been raised about the practicalities of defence solicitors being available to meet the national jurisdiction of the sexual offences court. Simon Brown of the Scottish Solicitors Bar Association pointed out that fewer than 500 defence solicitors are working in Scotland and called it “a dying profession”. It seems to me highly unlikely that enabling the courts to sit at 38 locations across Scotland could be made to work in practice when defence solicitors already have demanding workloads and would face increased travel and other expenses if they were to attend the new court.

The same would apply to sheriff court staff, who would likely be transferred or redeployed to the new court. The costs associated with redeploying 25 clerks, as well as other court staff, to support the sexual offences court is estimated at £235,000, and the cost of regrading sheriff court clerks to work in High Court procedure for the new court is expected to be around £465,000. I do not believe that those costs are justifiable when it is perfectly possible to achieve the same aims by integrating trauma-informed practice in the existing court structure and creating a new division in our existing courts.

As will be discussed in more detail later, survivors of sexual crime have made it clear to the committee that they have real concerns about the perceived downgrading of rape trials if they are moved from the High Court to a new sexual offences court. Rape survivor Ellie Wilson said:

“Rape is one of the most serious crimes in Scots law; such cases are only ever heard in the High Court. That solemnity is sacred, and it is important that we maintain it.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 4.]

Rape survivor Sarah Ashby similarly told us:

“I would not like for such cases to be dismissed or for us to be made to feel that they are any less significant than they are. When you get the information through that the trial is going to the High Court, there is an element of realising how important that is.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 43.]

If that is how survivors feel, we should listen to them.

That is also the position of the Faculty of Advocates and of experienced lawyers such as Tony Lenehan KC. We have a hierarchical court system for very important reasons, and I am greatly concerned that creating a crossover between two distinct levels in that system might have unintended consequences that will cause more harm than good.

It is also unclear how the divisions between High Court and sheriff court cases will operate in the new court. The bill provides for the merging of High Court and sheriff court cases, to be heard by judges and sheriffs collectively as judges of the sexual offences court. Concern was raised by the Law Society of Scotland, which highlighted the impact that that could have on the sentencing process by potentially increasing the sentencing powers of sheriffs sitting in the new court.

My concern is that the creation of a new sexual offences court sounds good on paper but would do little in practice to address the real issues in our court system or to deliver the changes needed to help victims, particularly regarding the delivery of improved trauma-informed practice. That is despite survivors such as Anisha Yaseen telling us:

“It does not matter how much legislation you throw at this, because the issue is the culture. Nothing will change—no matter how many things you put into place—without a change in culture.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 41.]

I agree with that, which is why I do not support the creation of the new court and will move the amendments in Russell Findlay’s name.

I agree that we had the opportunity to consider it, but we are making radical changes to the whole legal system in Scotland, and the fact is that mock juries arenae real. People know that they are no real. The people involved are actors. Of course, I was not involved in them, but you know that the decision that you are making is not based on somebody actually losing their liberty. It is not a real-life comparison. The research was not done on real-life juries, and I still think that it is not enough to base changes to the full system on.

Given the lack of concrete evidence, it is hard to justify the claim that there is an evidence base for the radical changes affecting jury size and majority that the Government is proposing. If research into jury deliberations had been available before the bill was introduced, we would all be in a much better position to make decisions on these issues.

In criminal cases, guilt must be proven beyond reasonable doubt. That is a high threshold, and there is doubt about whether a two-thirds majority meets that standard. Allowing a criminal conviction when one third of jurors believe that the accused person is innocent does not show that guilt has been proven beyond reasonable doubt.

I want to make it clear to everyone in the committee that what we decide today could make the difference between someone’s freedom and someone’s imprisonment. We need to remember that. We all want those who have committed an offence to be found guilty, but we should not create a system in which it is possible for an innocent person to be sent to prison.

We need to take the advice of legal professionals who work in our courts every day and who understand the impact and magnitude of changing the jury size and majority. Do not take my word for it—take the word of the Law Society, the Faculty of Advocates, Lord Renucci KC of the senators of the College of Justice, the Scottish Solicitors Bar Association and the Edinburgh Bar Association. My amendment 92 does that.

I will just finish this paragraph, and then I will come back to you.

If the research led the Government to support changing the size of the jury, does it not stand to reason that you are now acting against the research by changing it back?

The point that I was making was that it was still mock jury research, so, regardless of how much work was done, it was not a real-life situation; it was still a mock jury trial. If we are going to make radical changes to the Scottish legal system, we need to have live jury or real jury research. That would put us in a much better position to make an informed decision, which is important, because we are making big changes that could have an impact in somebody losing their freedom.

I agree that yearly reporting might be a bit onerous on the system if it is not going to have any real impact, but I would ask that the matter is kept high on the cabinet secretary’s agenda so that, when she is talking to various officials in the justice system, she can make sure that it is high on the list of things for which solutions need to be found. I will not press amendment 91.

Amendment 91, by agreement, withdrawn.

Amendment 89 seeks to ensure that witnesses are given information on the special measures that are available to them in all cases. It also means that, where victims of certain sexual offences request to give their evidence in a particular way, that must be how they give their evidence. For all other vulnerable witnesses, the approach will remain as it is at present. That will ensure that victims and witnesses are listened to and it will improve their experience of the justice system at what is a deeply distressing and traumatising time for them.

Moreover, Victim Support Scotland has pointed out to the committee the need to ensure that victims have a choice in how they provide evidence. I hope that the Government will reflect on the need to do more to ensure that victims do not feel like witnesses in their own cases.

I move amendment 89.

I lodged the amendments to ensure more transparency for victims and their families when people are released from prison. As Jamie Greene has said, there can be a cost implication in producing reports. As the cabinet secretary said in relation to the earlier amendments lodged by Jamie Greene, there are times when we do not need primary legislation to do something; it could be done by a change in procedure or policy. If we do not need legislation, I am happy for more of that information to be given to victims on a person’s release. It would be interesting to hear the cabinet secretary’s views on whether we need legislation to get more information out to victims, or whether that is something that we can work on and bring back at stage 3.

As Pauline McNeill mentioned earlier, we did no work with the Parole Board in the course of our scrutiny of the bill. This is the avenue that my colleague has managed to find to bring in all the amendments on the Parole Board. It is not something that we looked at in great detail, although maybe we should have done.

Amendment 91 would require the Scottish Courts and Tribunals Service to prepare and publish an annual report to the Parliament on the use of floating trial diets and their impact on victims. The amendment tries to find a commonsense compromise between two arguments, balancing the traumatic experiences of victims with the unfortunate reality that our courts are overstretched and backlogged.

We have heard from victims that floating trials can add to the trauma and stress that they face. One victim of sexual crime told the committee in our informal session that

“floating trials are not very good because you are having to remember 10 or 11 dates that will always be significant to you ... Dates are massive for people suffering with post-traumatic stress disorder and complex post-traumatic stress disorder.”

Rape Crisis Scotland highlighted that floating trial diets can have an impact on the quality of evidence that victims are able to give. Chief executive Sandy Brindley said:

“People have a trial that is allocated to a certain period, and every night they are waiting on a call to tell them whether it is going to go ahead the next day. That is far from trauma-informed practice, and it is not how we get the best evidence from vulnerable witnesses.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 49-50.]

Sandy Brindley also told us that some victims end up having to rehearse their evidence every day, saying that

“they wake up and go through”

it all

“in their mind”,—[Official Report, Criminal Justice Committee, 17 January 2024; c 49.]

just in case they are called to give evidence. The traumatising effect that that could have on victims is deeply concerning.

The Lord Advocate also shared with us her experience of prosecuting sexual cases in the High Court and the trauma inflicted on victims by making them wait by the phone to find out when they will be called to give evidence. She called floating trial diets “a profound problem”, explaining that

“They are deeply upsetting for victims who are waiting for their case to be heard, and challenging for the prosecutor who is waiting for the case to come in”.—[Official Report, Criminal Justice Committee, 10 January 2024; c 30.]

However, the Scottish Courts and Tribunals Service estimated that moving entirely from floating trials to fixed trials in the High Court would add an average of at least 11 weeks of delay to each individual case and worsen the court backlog. As we know, this Government has presided over an extreme backlog in the courts, and the Courts and Tribunals Service makes the point that floating trial diets allow for better flexibility in scheduling cases and using the finite resources available to it.

In its evidence, Victim Support Scotland acknowledged that there is, unfortunately, a trade-off between certainty for victims and the impact on courts. However, when it has spoken to victims, they have said that they prefer certainty about the date of their trial, even if that means a delay.

I note that the cabinet secretary has heard both arguments and supports reducing the use of floating trial diets, because of the anxiety and uncertainty that they can cause to victims, while also recognising that the state of the court system means that abolishing them might do more harm than good. That is also the position of the committee, which has concluded that it is unfortunately not realistic to stop the use of floating trials completely at this time.

However, given the impact on victims and in the face of the testimony that we have heard, it would be wrong simply to do nothing. As a result, my amendment provides for an evidence-led approach to ensure that the proper research is conducted before we take any further action on changing the use of floating trial diets. There is no reason not to do that research. After all, if we want to reduce or phase out floating trial diets, we need to know exactly when they are used, how they are used and their impact on victims, as well as how we balance that against the impact on the courts of the practical realities of abolishing floating trial diets.

I hope that the cabinet secretary and members of the committee will support my amendment, which is a sensible compromise. It allows for an evidence-led approach to this difficult issue and would be a first step towards reducing floating trial diets and ultimately helping victims, which we all want to do.

I move amendment 91.

Amendments 258 and 259 seek to safeguard victims by ensuring that, when the Parole Board decides to release a discretionary life prisoner and there is a victim of their crimes, the board must provide a summary explaining why it has chosen to release them. That summary would then have to be provided to the victim, or to a family member if the victim is deceased.

Those who are given life sentences will have committed very serious crimes, and we must ensure that, when they are released, victims or their families are notified and given a full account of the reasons behind their release. Victims deserve transparency, but unfortunately, as we have seen in recent years, not all victims get informed when their offender is released from prison. The amendments will safeguard victims and ensure that they and their families have transparency when it comes to the release of dangerous offenders.

I note the cabinet secretary’s comment that the proposal does not require primary legislation, and that the consultation will commence in August, so I will not move the amendment.

Amendments 258 and 259 not moved.

Amendment 260 moved—[Jamie Greene]—and agreed to.

Amendments 261 and 262 not moved.

Section 30—Vulnerable witnesses