Chamber and committees

I am still trying to get to whether we would need a stand-alone offence. As Liam Kerr said, Scots law is already further ahead on this issue, and we have ways in which we can prosecute non-fatal strangulation. There are also concerns that the current laws could be diluted if we brought in a stand-alone offence. Would more education for the public and the police help, or do you still think that there definitely needs to be a stand-alone offence?

Is there any other action that you think we should take?

In their written evidence about the potential detrimental effects of introducing a stand-alone offence of NFS, Police Scotland and the COPFS raised concerns that it would be treated as an isolated incident rather than as part of a course of conduct under the Domestic Abuse (Scotland) Act 2018. What are your views on that? As I said before, they thought that it might dilute what is already in law.

Okay. Thank you.

I share the same concerns about capacity. I am also interested in the processes when capacity is reached. When somebody needs to go into secure accommodation, and there is none because capacity has already been reached, what is the process? Where are the kids going and what are we doing about it?

The letter highlights the new post of a “dedicated professional lead”. I would like to know more about what that is and what improvement it will give to the service. It also highlights a

“contingency plan with up to £2 million”

in funding. What will that additional funding achieve? Will it achieve extra numbers in accommodation and how will that impact the service?

Can I just ask for timelines to be included in that, so that we can see progress?

The Scottish Government’s response to the report said:

“the majority of the recommendations are already being undertaken within our ... National Mission and cross-government programmes of work.”

It says that those recommendations that are not already being progressed will be incorporated into considerations for the Scottish Government’s post-national mission planning.

I wonder what those latter recommendations are and whether there is a list of the action points that are being taken for every recommendation. Some of them are part of the national mission, some are part of cross-Government programmes of work and some are still to be considered. It would be easier for us to see what actions have been taken if we had a list of all actions by recommendation.

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 share the concerns that Pauline McNeill has just outlined, and I support her amendments.

Russell Findlay’s amendments 26 to 52, 56 and 58 would remove the establishment of the sexual offences court from the bill. Everyone on this committee agrees that victims of sexual offences deserve justice, that offenders must be punished and that the experience of victims needs to be improved. However, having sat on the committee throughout this process and having heard evidence from survivors, lawyers, victims organisations and various experts, I am not convinced that the establishment of the new court, although well intentioned, would deliver meaningful improvements to the experience of victims. The costs and complications are not justified when we can concentrate resources and funding more efficiently, such as on improved trauma-informed practice.

I agree that there is a need for more specialisation in the court system. Since 2020, sexual crimes have increased by 11 per cent, rape and attempted rape have increased by 25 per cent and sexual assault has increased by 15 per cent. We should never forget that behind every one of those statistics are victims and their families who have been through a traumatic experience and deserve justice. We all want to help them, but we disagree on how to do so. I believe that the best way would be the creation of specialist divisions of the High Court and sheriff court.

That proposal is supported by the Faculty of Advocates, which made it clear that

“there is no single feature of the proposed court which could not be delivered rapidly by introducing specialism to the existing High Court and Sheriff Court structures”.

Simon Di Rollo KC put it more concisely when he said that creating an entirely new court

“would be just a bit of window dressing”.—[Official Report, Criminal Justice Committee, 24 January 2025; c 39.]

The Law Society of Scotland also supports the approach and has said that a new court would serve only to overcomplicate the existing criminal justice system. It has argued for specialist divisions in existing courts that follow the example of the domestic abuse courts in Edinburgh and in the Glasgow sheriff court. It is also notable that Lady Dorrian, whose report recommended establishing this new court in the first place, said that the bill does not reflect the model of the court that she had suggested.

One of my key concerns is the unclear and unpredictable costs of creating the new court. The Government has said that it cannot fully anticipate the costs of the new court at this stage. Given the Government’s track record of introducing legislation that then goes unimplemented, namely the Children (Scotland) Act 2020, we cannot be sure that the sexual offences court will avoid a similar fate.

The bill’s financial memorandum estimates that the Scottish Courts and Tribunals Service will incur one-off costs of £1,444,000 and annual recurring costs of £492,000 associated with the new court. When those costs are compared with the estimated costs of delivering trauma-informed practice—£350,000 in one-off costs and £62,500 in annual recurring costs—there is a huge difference in the funding required. I know that those figures are not entirely comparable, but, when we look at the figures that we have, it is difficult not to conclude that we could prioritise investment and resourcing in our current courts for the benefit of victims and witnesses.

It is not surprising that some people who support the sexual offences court in principle are sceptical that it will actually deliver in practice if it is created. Emma Bryson of Speak Out Survivors expressed those concerns, and Sandy Brindley from Rape Crisis Scotland said:

“my concern is that we do not want there to be a courtroom in Glasgow High Court that has a label on the door that says, ‘Specialist Sexual Offences Court’, but there is literally no difference other than that the people involved have maybe been on a day’s training.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 56.]

The committee has heard from victims groups and survivors themselves about the different changes that are required for the court estate to deliver better trauma-informed practice. Those changes include informing witnesses about their choices of how they provide evidence, ensuring that victims and witnesses are distanced from the accused in court buildings and setting up screens or allowing remote evidence to be given, while also affording the opportunity to victims who wish to see the accused when testifying against them.

Those are all changes that we could make in the current court estate through an investment in trauma-informed practice to support victims in practical and realistic ways, and we should be making them whether or not the new sexual offences court is introduced. We need to maximise the benefit of trauma-informed practice instead of introducing something that makes big changes in theory but cannot necessarily live up to them in reality.

There is already a substantial backlog in our court system. Tony Lenehan KC told us:

“It is a struggle to resource the courts that are currently sitting.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 48.]

My fear is that we are proposing to create a new court that could worsen that backlog and put further strain on court staff. That would not be a good outcome for victims in the long term.

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?