Chamber and committees

I very much recognise the issue that Mr Findlay’s amendment is trying to address. Let me reassure him, and the committee, that the Scottish Government is taking forward work on the criminal-civil interface and I will, in a moment, put on record the breadth of that work. At this point in time, though, I have major concerns about the significant changes that the amendment would make to the running of our courts without any further consultation or engagement.

The effect of amendment 78 is that the courts would have to consider whether a related civil case should be allocated to the same sheriff or judge hearing the criminal case. The civil case might be a family case, such as a child contact case, where domestic abuse is often raised. I very much understand the logic behind the suggestion that the criminal and civil cases be dealt with by the same sheriff, but in practice, amendment 78 could make court programming increasingly complex. If the same sheriff were to be allocated to related criminal and civil proceedings, court programming would need to depend on that sheriff’s availability, which would, almost inevitably, take up more judicial and court time and lead to delays in the case being heard. For all the benefits that such integration might bring, the introduction of further delay is the last thing that families in that situation need.

In addition, the related proceedings could be at different court levels, which could make allocation to the same sheriff or judge problematic. For example, there might be a prosecution in the High Court and a child contact case in the sheriff court. However, as I said, I recognise the issue, which is why the Scottish Government has been progressing improvement work on how the civil and criminal courts interact, particularly in the context of domestic abuse.

We have held two workshops to date—one with justice agencies and another with voluntary sector bodies—and we are actively working on potential reforms. Mr Findlay asked about feedback from those workshops: we are currently identifying and scoping potential change ideas to take forward, which, in broad terms, fall into 10 areas—training, data sharing, court processes and structure, case management by the courts, judicial consideration, support and guidance for parties, child welfare reporters, child contact centres, implementation of the Children (Scotland) Act 2020 and research data and improvement work. I am conscious that integrated domestic abuse courts, or IDACs, were raised in the context of that work and I know from discussions with Scottish Women’s Aid that it would like to see them in Scotland—indeed, as Mr Findlay reiterated, the matter was raised during stage 1.

I can very much see merits in the approach, but the introduction of a major change in our courts would mean a lot of work, discussion and engagement, and the involvement of all stakeholders. We need to ensure that any proposed changes are in fact feasible and could be delivered without any significant adverse effects on court timetabling. As with any significant change of that nature, it would also be fundamental to ensure that both the resourcing of the immediate change and the wider implications had been considered. I respectfully say to the committee that, without any of that work having been carried out, a stage 2 amendment to the bill is not the time to make that change.

The Scottish Government carried out and published research in 2019 to look at the effectiveness of IDACs in other jurisdictions. We are building on that work. I am happy to tell the committee that the Scottish Government will carry out and publish further research on IDACs, which will examine models in other jurisdictions, including the pathfinder pilots in England and Wales. The research will be published in time to support the next Government and Parliament to assess whether legislative and non-legislative changes should be progressed in relation to IDACs.

I think that that is a complete misrepresentation of the position. The committee will know well enough that I am always minded to take opportunities where they arise, and indeed I sometimes incur the wrath of the committee for doing so. I do not want to repeat the debate that we have just had on the victim notification scheme, but I am always keen to make improvements, whether that is with VNS, parole or wherever we can.

With respect, I think that this is of a different magnitude. Although some of the practical reasons might be irritating to politicians who are always looking to practise the art of the possible, we have to give those reasons proper cognisance. I hope that I have demonstrated to the committee and to Mr Findlay that, since he raised the issue with me at stage 1, we have continued to pursue it with great seriousness. I am very interested in that policy area. However, in this instance, I would much rather come back with something at a future point, when all the irksome practicalities have been bottomed out. We are undertaking serious work on the matter.

On Mr Findlay’s request to have further discussions, the only thing that that will cost me is time. That is not a problem, but I want to put it on the record, as I did at stage 1, that this is a substantial area of work and I would not like to make promises that I cannot keep. There are other areas of work, such as in relation to anonymity for the families of deceased children that, with all sincerity, I have looked at including in the bill but that I am not proceeding with. It is not that we are unwilling; it is just that I will not make false promises. However, it is always good to talk.

As the committee has heard, this raft of amendments seeks to prevent a victims and witnesses commissioner from being created. I would strongly oppose such a move; the proposals for the commissioner have been significantly shaped by discussions with victims, victim support organisations and the victims task force, which is co-chaired by me and the Lord Advocate, and many victims and victim support organisations have fought very hard for this commitment from the Government.

We know from victims, survivors and victim support organisations that victims often feel unheard and cannot access information, despite the existing landscape of organisations that advocate for their rights and interests, and that they are supportive of the establishment of a commissioner. The commissioner will monitor criminal justice agencies’ compliance with their standards on trauma-informed practice in order to provide independent scrutiny and accountability.

Under section 16 of the bill, the commissioner will have to produce and publish an annual report on their functions, which must include any recommendations, and the bill specifically provides that those recommendations can cover trauma-informed practice, too. By monitoring how victims’ rights are being upheld, the commissioner will have an important role in holding criminal justice agencies to account, which is an area that we will come on to in the fifth group of amendments.

No existing public body or organisation, including the Scottish ministers, has the statutory power to hold criminal justice agencies to account in relation to how the rights of victims and witnesses are being met or upheld, nor can that role be given to a third sector organisation. The victims and witnesses commissioner will therefore be able to provide that function and the mechanism of accountability that is lacking from the criminal justice system. They will also have statutory powers to monitor criminal justice agencies’ compliance with the standards of service and the “Victims’ Code for Scotland”, and will have a role in establishing a victims charter, which we will come to in the next group of amendments.

I respectfully oppose Ms Dowey’s amendment 235, which seeks to insert a sunset clause into the role of the victims and witnesses commissioner, such that the role would expire within five years of the commencement of section 1. The commissioner will champion the rights of victims and witnesses and provide them with an independent voice—why would anyone not want that for victims, survivors and witnesses, or want its role to be for a temporary period? I remain convinced that the role is needed and should be permanent; it is not a role to be set up, only to potentially expire within a few years. I therefore urge members to oppose amendment 235.

In relation to amendment 106, committee members might recall discussions at stage 1 on the need to ensure that the victims and witnesses commissioner has sufficient powers to take action, should criminal justice agencies not comply with a request for information. The amendment provides for the creation of enforcement powers in relation to requests for information.

I hope that this does not make me sound too churlish, but the reason for my not supporting amendment 106 is, quite simply, that I support my own amendment 135, which makes clear the enforcement action that the victims and witnesses commissioner may take if a criminal justice agency does not supply information that has been requested. It provides parity with enforcement powers held by other commissioners in Scotland, including the Scottish Biometrics Commissioner and the Patient Safety Commissioner for Scotland, and provides certainty for criminal justice agencies on what action may be taken against them. Given that amendment 135 sets out enforcement powers on the face of the bill, the regulation-making powers provided by amendment 106 are therefore not required, and I urge Liam Kerr not to move the amendment and to support amendment 135 instead.

I want to encourage the commissioner to work with criminal justice agencies and to foster co-operative working relationships with them. As a result, amendment 136 provides the commissioner with an obligation to send a copy of the draft annual report to each of the criminal justice agencies and any victim support organisation named in the report.

Amendment 137 is a consequential amendment that is related to the early sharing of those draft reports. Sharing reports in advance of publication already happens with other public bodies and is considered to be good practice.

Amendment 138 empowers the commissioner to “publish” additional reports, and amendment 139 provides that such reports must be laid in Parliament and sent to the criminal justice agencies.

Mr Kerr’s amendment 110 would provide for regulation-making powers in relation to enforcing co-operation from criminal justice agencies. Regulation-making powers in relation to enforcement might seem heavy-handed for setting the tone of how the commissioner would wish to work with the criminal justice agencies; nonetheless, I would be more than prepared to discuss that with Mr Kerr before stage 3. If his amendment is agreed to, I would want to engage with the Crown Office to ensure that no unintended consequences arise from how it is interpreted, and I would reserve the right to return to it at stage 3.

I urge the committee to support the amendments in my name and oppose the rest of the amendments in the group.

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.

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.