Chamber and committees

It is my firm belief that the success of the sexual offences court depends, perhaps more than any other single aspect of the model that is set out in the bill, on the judges who are appointed to preside over cases that call in the SOC. Judges play a hugely important role in any court, but that role will be particularly pronounced in the SOC. Judges will set the tone and culture of the SOC and will be responsible for embedding the specialist trauma-informed practices and procedures that will be central to improving our approach to the treatment of sexual offences cases and the complainers involved.

Given that important role, it is imperative that we maximise the court’s ability to take full advantage of the pool of experienced and trauma-informed judges who have the commitment and specialism to make the SOC a success. Of course, the judges must be allowed to exercise the full powers of their office without fear or favour.

We must have processes for appointing and removing judges of the sexual offences court that strike the correct balance between rigour and proportionality. By that, I mean that appropriate safeguards must be in place to ensure that a sufficient number of judges are appointed and that those judges are, and continue to be, the right people to preside over cases in the sexual offences court.

Provisions in the bill at introduction gave the Lord Justice General a broad power to remove judges of the sexual offences court, provided that the Lord Justice General had consulted with the Lord Justice Clerk and the president of the sexual offences court in advance. During stage 1, it was suggested that that power could undermine the security of tenure of judges, which could ultimately impact on the independence of judicial decision making. That resulted in a stage 1 recommendation from the committee that amendments be lodged at stage 2 to adjust the process for removing judges of the sexual offences court. In my response to the stage 1 report, I committed to doing that, and I indicated my intention to review the process for appointing judges to ensure that there is an appropriate balance.

Before setting out the substance of the amendments, I want to be clear with the committee on what they do not change about the appointments process. It will remain the case that judges of the sexual offences court can be appointed only from among those who hold substantive judicial office as a High Court or temporary judge, sheriff principal or sheriff, and that their role as judge in the SOC will continue to be contingent on their holding that substantive office. Additionally, my amendments will not change the requirement that only those who have completed a course of approved training in trauma-informed practice in sexual offences cases can be appointed to sit in the SOC.

I turn to the amendments. Taking up the committee’s recommendation, the amendments remove the power of appointment from the Lord Justice General and establish distinct processes for appointing those who currently have rights to preside over High Court cases and those who currently have rights to preside over sheriff court cases. Amendments 184 and 195 will mean that all those who hold judicial office as a High Court or temporary judge are automatically appointed to the role of judge of the sexual offences court, provided that they have completed the necessary training in trauma-informed practice.

That approach recognises that those judges already preside over cases that involve the most serious offences that are heard in our courts, including rape and murder, and that they have the necessary associated sentencing powers when they do so. Putting it beyond doubt that those judges will be able to sit in the SOC underscores the status of the SOC and the seriousness and gravity of the crimes that it will consider.

The process for appointing sheriffs and sheriffs principal, as modified by amendments 185 to 193 and 196, is closely modelled on the process for appointing temporary judges under the Judiciary and Courts (Scotland) Act 2008. The Scottish ministers will be responsible for appointing sheriffs and sheriffs principal to the role of judge of the sexual offences court, based on the recommendation of the Lord Justice General.

Individuals will be appointed to sit in the court for a period of five years and will be automatically reappointed unless specific exceptions apply. Individuals can be appointed only if they have completed a necessary course of training in trauma-informed practice in sexual offence cases and the Lord Justice General considers that they have the skills and experience to hold office as a judge of the sexual offences court.

The temporary judge appointment process has been an effective and proportionate mechanism for giving sheriffs the additional responsibilities and sentencing powers that are associated with that office. We continue to engage with partners to ensure that the appointments process strikes the right balance between rigour and proportionality that I spoke about earlier, so that the approach will prove effective at ensuring that the SOC can access and take advantage of the talent and commitment in the Scottish judiciary.

Amendments 229 to 232 respond directly to the concerns that the committee raised regarding the process for removing judges of the sexual offences court. The amendments remove provisions in the bill that give the Lord Justice General the power to remove judges of the sexual offences court and, instead, tie that process to removal from the judges’ substantive office.

Under existing legislation, High Court and temporary judges, sheriffs principal and sheriffs can be removed from office only by the First Minister, following the recommendation of a Fitness for Judicial Office Tribunal. That provides an established safeguard against unfair dismissal and provides security of tenure for judges.

As provisions require that a judge of the sexual offences court holds that position only by virtue of their substantive office, it is therefore unnecessary to have provisions in the bill that create specific powers to remove judges of the sexual offences court from that office. Instead, the approach adopted through the amendments is to rely on the existing, long-standing and fair Fitness for Judicial Office Tribunal process related to their substantive post, so that if they are removed from that office, they also cease to be a judge of the sexual offences court.

Amendments 230 and 232 also make it clear that the conduct of an individual while sitting as a judge of the sexual offences court can be taken into account in a Fitness for Judicial Office Tribunal for their substantive post and can, in fact, trigger commencement of a tribunal.

Amendment 197 gives the Scottish Courts and Tribunals Service the power to pay expenses to judges of the sexual offences court in connection with expenses incurred in fulfilling that office. The amendment also enables the Scottish ministers to make bespoke arrangements for paying judges of the sexual offences court.

That is an enabling power, similar to that provided for in the legislation relating to temporary judges. I consider that it is important for the Scottish ministers to have that power and the flexibility that it provides to ensure that the SOC works as it should and that the framework that establishes it is future proofed to account for changing circumstances.

We will, of course, hear directly from Pauline McNeill on her amendment 270. Following our discussions, I believe that it is designed to address her concerns that moving rape cases to the sexual offences court somehow constitutes a downgrading of rape. However, I have profound concerns about the amendment, which would, in effect, not enable the sexual offences court to function as intended.

In considering the amendment, I encourage members to reflect on the evidence at stage 1. The victims and survivors who spoke to you were not concerned about the status of the SOC nor about the title of the judge appointed to preside over their case. Victims and survivors told us that what they care about is how their case is managed by the court system and that they are treated in a way that recognises and responds to the trauma that they have experienced.

Although senators may be the most senior cohort of judges, sheriffs sitting as temporary judges already preside over rape cases in the High Court, where, as Lady Dorrian told us,

“they do a very good job indeed”.—[Official Report, Criminal Justice Committee, 10 January; c 13.]

There are a great number of sheriffs with many years of experience presiding over sexual offences cases. The positive impact of that expertise and experience would be substantially diminished if sheriffs and temporary judges were to be prohibited from presiding over rape cases in the SOC.

By placing restrictions on which judges can preside over certain offences, amendment 270 impinges on the capacity of the Lord Justice General to deploy the most suitable and effective judges to preside over the cases that are indicted to the SOC. In doing so, it prioritises adherence to existing hierarchies over and above good practice in the management of rape cases. In my view, that would not be to the benefit of victims. In addition, amendment 270 would present significant operational challenges for the SOC.

Prohibiting temporary judges from presiding over rape cases would fatally undermine the ability of the SOC to deal with the cases that will be indicted to it, let alone provide a sustainable model for the management of those cases moving forward. Temporary judges play a crucial role in managing the business of the High Court, including the many rape cases that are indicted to it. By excluding those who hold office as a temporary judge from presiding over rape cases in the sexual offences court, amendment 270 would lead to a substantial reduction in the judicial resource available to manage the current volume of rape cases. There would simply not be enough judges to deal with the SOC’s case load.

I ask the committee to support my amendments.

I move amendment 184.

I am at the committee’s mercy, and I respect the fact that there should be debate and scrutiny on all matters—every member of the Parliament has the freedom to roam in that regard. What we have all wrestled with, perhaps at different points in the process, is that any change from what has ayewis been comes with challenges. We all want to make changes for the better, and we all come to this with different degrees of what we want to give up from what has ayewis been. I am not saying that with any judgment.

I will not rehearse the arguments about why I fundamentally believe in the establishment of a sexual offences court, because I suspect that that would incur the wrath of the convener, but that is the underlying bedrock to the changes that have been made or are proposed in the previous group of amendments, this group and, indeed, in subsequent groups. This group of amendments is about the pragmatics. I want a pool of experienced judges. I am of the view that, ultimately, it is for the Lord Justice General to decide which judges are allocated to which cases.

Our stage 2 proceedings had been very constructive until we reached group 31. We had managed, until Mr Findlay’s appearance, to have robust and respectful exchanges, including in and around the previous group on independent legal representation. I acknowledge Ms McNeill’s point that the bill is large and complex. However, I think that it is somewhat puerile and childish to say that I am the reason why it has taken two years; that shows a lack of awareness of parliamentary process and proceedings—

No, sorry; I said no.

I start with a point around substance. I still believe that it is vital that we do not lose sight of the substantial evidence that the current approach to decision making in rape trials is denying women justice. Data from the Scottish Government that was published last April show that, in rape and attempted rape cases, where there is a single complainer and a single charge, the five-year average conviction rate for cases that reach court is just 24 per cent. That is sobering, and I do not hear many comprehensive answers as to why that is.

That is why it is crucial that we understand more about the barriers to justice for rape victims. One way that we can do that is through research that looks into the content of jury deliberations, in order to help us to better understand whether, and how, rape myths affect verdicts and what measures could effectively address them. I am pleased that the committee supported my amendments to the Contempt of Court Act 1981 in the previous group, which will help to pave the way for that.

It is also important that we continue to challenge rape myths, not just with jurors but in society as a whole. I have confirmed that we will set up a working group to look at that in more detail, and I hope that members across the committee will support that.

As you know, convener, I have always recognised that views on the proposed pilot of juryless trials are mixed. During stage 1, some stakeholders and members spoke compellingly in support of a pilot, while others expressed their concerns. I have listened carefully to all those views and reached the conclusion that there is not enough parliamentary support for a pilot of juryless trials at this time.

When I wrote to the committee in October, I made it clear that I would remove the pilot from the bill. In the interests of building as much consensus as possible, and as amendments were already lodged that would remove the relevant sections of the bill, which meant that I could not lodge my own amendments, I have lent my support to amendments 53, 54 and 59. Consequently, I note Ms Clark’s remarks on her amendments.

I believe that that principle is incorporated in that work. The work of the victim-centred approach workstream is part of the victims task force, which brings together key victim support organisations as well as criminal justice agencies. The work has been done in that forum, and it has been led by victims. I respectfully suggest that the victims task force is a good forum to work through the recommendations and how to implement them. It is fair to say that the work is still at an early stage, but I am confident that it has been built on solid foundations, which has at its heart consideration of the needs of victims.

There are several challenges in Pauline McNeill’s amendment 77, which means that I am unable to support it. The amendment does not recognise that most relevant cases will be prosecuted in the sheriff courts and typically presented by a procurator fiscal depute rather than an advocate depute. Requiring a meeting to occur ahead of the first hearing would also mean—

Will the member give way?

I am just about to finish—

The pilot will provide choice and agency, which I hope will align with Ms Clark’s ambitions. It will provide advice that will be available throughout the criminal justice process—end to end and beyond, if that is needed. That would go further than what is envisaged in Ms Chapman’s amendment 267, where the advice would stop 12 months after the criminal investigation or proceedings are concluded. I hope that Ms Chapman will welcome that, and I ask her not to move her amendment.

On how the pilot compares to amendment 68, I understand that the amendment aligns with Katy Clark’s consistent calls for independent legal representation but, in that sense, there are difficulties. Perhaps we could compare and contrast the approaches at another time, because there are some points with respect to advocacy that are certainly important.

The short answer is yes. If I recall correctly, we submitted a written note to the committee on the timescales last year. I do not have that at hand—either I submitted a note or I have answered a parliamentary question, possibly from Liam McArthur—but there is information that I can forward to members. There is a timetable.

I have nothing further to add.

Amendment 219 agreed to.

Amendments 220 to 227 moved—[Angela Constance]—and agreed to.

Section 64, as amended, agreed to.

After section 64