Chamber and committees

I will finish talking about Pauline McNeill’s amendments and then come back to you, otherwise none of this will make any sense.

Requiring a meeting to take place ahead of the first hearing would also mean that there would be little to engage with the complainer on at that early stage before all the evidence has been submitted and considered and charges finalised.

Significant challenges would also arise from requiring advocate deputes to share any information that is requested by the complainer that is relevant to their case. There might be good reasons for withholding certain information from a complainer, and which information prosecutors can and should share should be left to their discretion.

If Ms Clark’s question is solely in relation to Ms McNeill’s amendment 77, I am just about to get on to the fact that we are, unfortunately, going to have some legislative competence issues. I know that that is not what folk want to hear, but bear with me, please.

As Ms McNeill mentioned, her amendment replicates existing practices in High Court sexual offence cases, where it is established convention that advocate deputes meet with complainers. The Crown Office and Procurator Fiscal Service is improving its guidance on that point for High Court and sheriff court sexual offence cases. It is vital that the process is led by the complainer, who can decide whether they want a meeting and, if so, what time in the process is right for them.

In contrast, by seeking to impose statutory obligations, amendment 77 assumes that all victims want to meet an advocate depute as soon as the case has first been called in court. It is the quality and content of discussions with the prosecutor that have the greatest impact on the experience of a complainer, and that qualitative aspect could not be set out in legislation in any meaningful way.

I reiterate the point that sheriffs and sheriffs principal sit as temporary judges, so they currently preside over rape cases in the High Court.

Of course.

I appreciate that we have all been able to work together on this, and I thank Ms McNeill for her comments. I will quickly say that the allocation of prosecutors is a matter for the Lord Advocate and those who act for her, so the proposal would get us into legal competency issues. I would be happy to discuss that further or to provide further information for Ms McNeill’s consideration prior to stage 3. At the moment, it is my clear understanding that that is not an area in which I could lodge amendments, because of legal competency issues.

Amendment 206 responds to a recommendation of the Delegated Powers and Law Reform Committee, while amendments 204 and 205 are technical amendments.

Amendment 204 amends the bill to clarify that the reference to “the High Court” in section 54(5) is to the High Court of Justiciary. Amendment 205 amends section 54(5) to clarify that the reference to “the Keeper” is to the keeper of the records of Scotland.

Amendment 206 adjusts the provision in section 55(2) that gives the Scottish ministers the power to make regulations that make further provision for the procedure that applies in the sexual offences court. In line with the recommendation of the Lady Dorrian review, the bill provides that High Court procedure will apply in the sexual offences court. Section 55 provides for the wholesale adoption of High Court procedure in the SOC, except where the bill makes specific provision to the contrary.

High Court procedure will form the foundations of the process and practice that will be followed in the sexual offences court, with the bill introducing some variations to the way in which current High Court procedure will apply to the sexual offences court, such as in relation to the pre-recording of a complainer’s evidence ahead of a trial.

However, the wholesale adoption of High Court procedure comes with the risk that certain aspects of that procedure will not operate in the sexual offences court as intended and may result in unexpected inconsistencies or inefficiencies that we will need to respond to. Therefore, the aim of the power in section 55(2) is to ensure that Scottish ministers are able to make regulations that would enable any issues that may arise from the adoption of High Court procedure in the SOC to be addressed swiftly and without the need for new primary legislation.

Amendment 206 responds to the issues that were raised by the DPLRC and limits the power of Scottish ministers to make regulations to those

“for the purpose of ensuring the proper functioning of the Court”.

It will restrict that power to circumstances in which issues are identified that are fundamentally problematic to the operation of the SOC.

I hope that the committee will support the amendments in the group. I move amendment 204.

Amendment 204 agreed to.

Amendment 205 moved—[Angela Constance]—and agreed to.

Amendment 44 not moved.

Section 54, as amended, agreed to.

Section 55—Sexual Offences Court procedure

Amendment 206 moved—[Angela Constance]—and agreed to.

Amendment 45 not moved.

Section 55, as amended, agreed to.

Section 56—Prohibition on personal conduct of defence

Amendment 46 not moved.

Section 56 agreed to.

Section 57—Vulnerable witnesses

Amendment 47 moved—[Sharon Dowey]—and agreed to.

Section 57, as amended, agreed to.

Section 58—Ground rules hearings

Amendment 48 not moved.

Section 58 agreed to.

Section 59—Pre-recording of evidence

Although the overriding purpose of the sexual offences court is to improve the experience of victims and survivors in their interaction with the courts system, it is, of course, imperative that we do so without losing sight of how the reforms will impact the accused.

I therefore welcome the detailed scrutiny that the committee gave at stage 1 to the issue of legal representation for accused in the SOC and the subsequent recommendation that stage 2 amendments should be lodged that embed the principle that cases that are currently prosecuted in the High Court should attract the same level of legal representation when heard in the new SOC. I share that view and, in response to the committee’s stage 1 report, I undertook to explore mechanisms that would hardwire that principle into the model of the SOC for stage 2.

I am pleased to say that my amendments 200 to 203 and amendment 228 deliver against that commitment by developing a mechanism that maintains that principle. My amendments embed an approach that achieves broadly the same balance of accused represented by counsel and those represented by a solicitor.

My amendments mean that accused persons in the type of cases that are currently prosecuted in the High Court will retain access to representation by counsel in the SOC, and the accused in the type of cases that are currently prosecuted in the sheriff courts, with representation by a solicitor, will continue to be represented by a solicitor in the SOC.

I have previously spoken to the committee about the risks of adopting an approach that would lead to a significant redistribution of cases to one part of the legal profession and about the potential for that to result in significant delays in cases reaching trial, which is an outcome that we must avoid.

My amendments in this group provide the accused with three routes to counsel where they have been indicted to the SOC. The first of those routes is provided by extending the list of offences in respect of which only advocates and solicitor advocates have a right of audience in the SOC. Amendments 200 and 201 extend that list beyond rape or murder to encompass a number of additional offences that, based on data provided by the Crown Office and Procurator Fiscal Service, are always or almost always indicted to the High Court. Those offences are attempted rape and attempted murder; offences under section 1 of the Domestic Abuse (Scotland) Act 2018 that libel conduct that amounts to rape; offences that attract a minimum custodial sentence of five years; and offences that are brought forward under the new evidence exception to the double jeopardy rule. The change in respect of the last category is linked to my amendment 218, which was debated in group 23 and extends provisions in the legislation that governs double jeopardy to the SOC.

Amendments 200 and 201 require that accused prosecuted in the SOC for any of those offences must be represented by counsel. Our estimates indicate that those revised rights of audience will capture two thirds of accused who are prosecuted for sexual offences in the SOC who would otherwise be indicted to the High Court. To ensure that we can remain responsive to changing practices, amendment 202 introduces a power that allows Scottish ministers to make regulations that would vary the list of offences for which rights of audience are restricted in the SOC.

The second route to counsel is introduced through amendment 228, which extends legal aid funding for counsel to the accused where the Scottish Legal Aid Board considers that there is a reasonable expectation that, if found guilty, the accused would receive

“a custodial sentence in excess of 5 years”,

or the courts would impose a risk assessment order, which is a necessary prerequisite to considering an order for lifelong restriction. The decision to grant the accused an entitlement to representation by counsel where those criteria apply recognises that only the High Court has the power to impose custodial sentences in excess of five years and to make orders for lifelong restriction.

The third route to counsel is provided through the existing mechanism whereby the Scottish Legal Aid Board may grant sanction for counsel where it considers it appropriate in any case, notwithstanding that that case does not include an offence caught by the first two routes that I have already set out.

We anticipate that the comprehensive process that is introduced by the amendments, which is the product of close collaboration with a range of justice partners, including the Crown Office, the Scottish Legal Aid Board and defence practitioners, will extend access to counsel for the accused in the overwhelming majority of cases that would otherwise be indicted to the High Court.

To ensure that the process created by the amendments is operating as intended and to provide additional assurances to Parliament, amendment 203 will place a requirement on Scottish ministers to conduct a review of legal representation in the sexual offences court. That will allow us to assess whether the approach has met our ambition of delivering access to counsel for the accused in cases that would otherwise be prosecuted in the High Court and to consider what, if any, adjustments to the approach might be required.

Pauline McNeill’s amendments 70 and 71 would remove provisions that give solicitor advocates rights of audience in the sexual offences court in cases that include an offence of murder. The amendments are linked to amendment 69, which was debated earlier and which sought to remove the jurisdiction of the SOC to hear cases that involve an offence of murder. The committee has already voted to retain murder within the jurisdiction of the SOC. Solicitor advocates can represent the accused in cases that involve an offence of murder in the High Court, so it follows that they should also be able to appear in those cases in the sexual offences court. I therefore ask Ms McNeill not to move amendments 70 and 71 and the committee to oppose them if she does.

I move amendment 200.

I have paid careful attention to views on independent legal representation during and following stage 1. My amendments in this group reflect that and the close working that has been carried out by the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service to ensure that the amendments clarify roles and responsibilities and will streamline operational processes.

Amendments 222, 223 and 225 will create notification duties that the complainer’s independent legal representative—ILR—should have by amending the proposed new section 275ZA of the Criminal Procedure (Scotland) Act 1995, which is being added by section 64 of the bill. The amendments would ensure that the complainer’s ILR has a statutory duty to notify the prosecutor and the court “in writing” and

“as soon as reasonably practicable”

that they have been instructed by the complainer. Similarly, and by virtue of amendment 225, the ILR would have to make the prosecutor and court aware if they were no longer instructed. As well as ensuring procedural parity with the defence, amendments 222, 223 and 225 will facilitate the efficient flow of relevant information between all parties.

Amendments 219, 220, 224 and 226 relate to the new disclosure of evidence provisions, with amendment 226 setting out a new, improved process. Key changes include the onus being placed on the complainer’s ILR to write to the Crown, outlining whether they wish to receive copies of any evidence based on what is set out in the section 275 application. If the complainer’s ILR requests evidence, the Crown must notify the defence, which can give consent to that evidence being disclosed; alternatively, they have up to seven days in which to object. In cases of objection, the defence must specify what items they object to and the reasons why. Crucially, the court would be involved only when there was an objection. The Crown would be able to disclose any evidence to the complainer’s representative that was not objected to without the need to involve the court.

The new process removes the obligation that would otherwise be placed on the Crown to sift all evidence and decide what should be made available to a complainer’s ILR. Instead, the complainer’s ILR will determine what evidence they may, or may not, require to fulfil their role. It also aims to reduce the need for court determination, as that would be required only in cases in which there is an objection. Furthermore, the objection period acts as a safeguard, ensuring that evidence that is shared is either agreed upon or determined by the court. Linked to that, amendment 226 also ensures that the complainer’s ILR and the complainer are subject to a duty of confidentiality in relation to any evidence that is disclosed.

Although the restrictions in section 274 apply to deceased complainers, amendment 221 puts beyond doubt the fact that the right to independent legal representation does not apply to deceased complainers, as it would, of course, not be possible for a deceased complainer to provide their views on the accuracy or relevance of the evidence sought to be led. That said, the Crown would retain its common-law obligation to consider and contest applications that did not meet the statutory tests. As I said earlier, the rape shield protections would still be engaged.

I am aware that, during stage 1, committee members met with individuals who had lost a close family member because of a serious crime. They argued that independent legal representation should be made available to them and could have a role in providing legal advice when they are called as witnesses. It should be noted that that is a very different ask from the provision of independent legal representation to deceased complainers and, as such, requires its own separate consideration and scrutiny. The complainer’s ILR is appointed for a very specific purpose in relation to a section 275 application, not to provide general advice on criminal justice proceedings.

I have considered carefully whether the family of deceased complainers should have access to independent legal representation. We need to remember that a section 275 application is, by its very nature, often related to intimate behaviour. Therefore, if independent legal representation were allowed in those circumstances, in what way might family members be able to challenge with any degree of authority or evidence the veracity of the evidence that the section 275 seeks authorisation to lead? Also, how would we define the family in those circumstances? Would it be possible to arrive at consensus among the relatives, noting that, if family members who had already suffered greatly were involved, it would expose them to highly traumatic and intimate evidence? Perhaps most significantly, there is also the question of the complainers’ dignity and privacy and, of course, their consent, which they would be unable to provide.

It is a very emotive and sensitive issue, but I have arrived at the conclusion that the risk of trauma outweighs any benefit that could be derived by a family member and that it far exceeds any impact or the ability to affect the outcome of the application. I hope that my reasoning assures members that I have considered the issue extensively and have given due consideration to the impact of trauma versus outcomes.

Finally, amendment 227 is a technical amendment that ensures that a complainer who is to give their evidence before a commissioner is afforded the same period of 21 days as any other complainer to instruct a solicitor and receive advice prior to the determination of any such application.

I move amendment 219.

The amendments in this group feature a mixture of substantive and technical amendments related to the offences and cases that the sexual offences court—the SOC—will have jurisdiction to hear.

My position is that the SOC should be given a broad jurisdiction to ensure that its benefits are extended to as wide a cohort of victims of sexual offences as possible, while ensuring that the way in which that is done protects the court’s resources. It will then be for the independent prosecutors, acting with the delegated authority of the Lord Advocate, to decide whether to indict specific cases to the SOC, based on the facts and circumstances of that case. It would disadvantage victims if we were to place arbitrary restrictions—in my view—on the cases that the SOC can hear.

We have just heard from Pauline McNeill on her amendments 157 and 69, and I appreciate her comments on her intentions. I have a different perspective on the matters that she raises, and I am particularly concerned about the impact that amendment 157 would have if agreed to.

Amendment 157 would restrict the SOC to being able to hear only cases that can be prosecuted on indictment in the sheriff courts. In effect, it would mean that the SOC could not hear cases that included an offence of rape or murder, on the basis that those offences cannot be prosecuted in the sheriff courts.

I have significant concerns about the suggestion—whether it be Ms McNeill’s intention or otherwise—that the SOC should be prevented from hearing rape cases. Rape is, without question, the most serious sexual offence that can be committed against an individual and, as such, it is victims of that offence who arguably stand to benefit most from the specialist trauma-informed approaches that will be at the heart of the sexual offences court.

We will not have a credible or effective sexual offences court that will deliver for the very victims for whom it is intended to deliver if rape is excluded from its jurisdiction. Depriving victims of rape access to the SOC while victims of other sexual offences benefit from the important reforms that it will introduce seems to me to be without justification and would serve only to exacerbate existing challenges that those victims face when interacting with the courts and the criminal justice system. I would also add that sheriffs sitting as temporary judges can currently preside over rape cases in the High Court. I therefore strongly urge members to reject amendment 157.

I also ask members of the committee to reject Ms McNeill’s amendment 69, which would remove murder from the SOC’s jurisdiction. Following the committee’s stage 1 report, I have carefully considered whether the SOC should be able to hear an offence of murder where it appears on the indictment alongside a qualifying sexual offence.

I respect that there is an argument for and against that. However, I remain of the view that there is a clear rationale for empowering the SOC to hear murder cases when combined with sexual offences charges on the same indictment. Indeed, that view was articulated at stage 1 by the Lord Advocate, and she gave the committee specific examples of such cases, which she has recently repeated in correspondence to the committee. On balance, I have heard no compelling rationale for depriving such victims of the specialist, trauma-informed approaches that will be a key feature of the SOC.

I acknowledge the view that the role of the High Court of Justiciary, as Scotland’s superior criminal court, means that it is the proper place to hear cases that feature an offence of murder. However, on balance, I believe that our paramount concern should be the experience of complainers and that we should not be constrained by court hierarchies and tradition. Historical function and status have not delivered the system that we want for victims of sexual offences. I want all victims and survivors of sexual offences to be able to have their case heard in a forum that is specifically designed to support them.

I now turn to my amendment 218, which will ensure that the new evidence exception to the rule on double jeopardy applies to all cases that are prosecuted in the SOC. The new evidence exception will allow the Lord Advocate to apply to the High Court to set aside an acquittal where the statutory test that is set out in section 4 of the Double Jeopardy (Scotland) Act 2011 is met.

That test broadly relates to the emergence of new and compelling evidence that was not available at the time of the original trial and which would appear to show that the accused might be guilty of the offences of which they were previously acquitted. The High Court considers the Lord Advocate’s application and decides whether an acquittal should be set aside and permission for a new prosecution granted. At present, the new evidence exception can be sought only in cases that were originally prosecuted in the High Court, but in recognition of the serious offences that will be heard in the SOC, including rape and murder, I consider it important that the new evidence exception apply to that court, too.

As well as allowing cases heard in the SOC to be reprosecuted under the new evidence exception, amendment 218 will allow such cases to be retried in the new SOC to ensure that complainers can also benefit from the specialist, trauma-informed approaches that it will introduce.

Amendment 218 will also require that, where an accused who is being prosecuted in the SOC makes a plea to the judge against prosecution on the basis that the indictment relates to offences for which they have previously been acquitted, the plea be remitted to the High Court for consideration. That will ensure that the High Court retains sole authority to grant the right to bring a retrial under the new evidence exception.

The remaining amendments in this group are technical in nature, their primary purpose being to ensure that the SOC has appropriate jurisdiction and will function as intended. Amendments 180 and 181 make it clear that the SOC will have jurisdiction over non-sexual offences that appear on an indictment alongside a qualifying sexual offence from the point at which the indictment is served on the accused. They put beyond doubt that the SOC will be able to take action in relation to non-sexual offences, such as accepting guilty pleas, before a case reaches trial.

Amendments 198 and 199 adjust the provisions that relate to the timeframe for the prosecution to submit applications to transfer cases into and out of the SOC on cause shown. The amendments move the timeframe for applying to transfer cases into and out of the SOC from the day before the commencement of the trial to the day before commencement of the trial diet. As the trial can commence on any day within the period of the trial diet, moving to a deadline that is linked to the commencement of the trial diet, which is set at the preliminary hearing, gives parties greater certainty on the deadline for submitting applications.

Amendments 183 and 216 provide the SOC with the powers that it needs to deal with cases where an individual is charged with

“aiding, abetting, counselling, procuring and inciting”

sexual offences, and amendment 182 makes the offence of conspiring to commit a sexual offence, as defined in section 39 and schedule 3 of the bill, a qualifying offence for the purpose of defining the SOC’s jurisdiction.

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

Yes.