Chamber and committees

Yes.

As I said, there is the role of the Lord Justice General in allocating individuals in specific circumstances.

My final word is that we have an existing process to appoint temporary judges, and it is tried and tested. Having listened to the full range of views, we propose to replicate that process for the appointment of others, whether they are sheriffs principal or sheriffs, to the sexual offences court.

I have one more point. Rape is serious not because it is prosecuted in the High Court but because it is one of the worst crimes that we know of. It usually—not always, but usually—involves the most appalling assault on a woman’s agency, which is why it will continue to be seen as one of the most serious crimes in our canon. I will leave it there, convener.

Amendment 184 agreed to.

Section 40—Appointment of Judges of the Sexual Offences Court

Amendments 185 to 196 moved—[Angela Constance]—and agreed to.

Amendment 30 not moved.

Section 40, as amended, agreed to.

After section 40

Amendment 197 moved—[Angela Constance]—and agreed to.

Section 41—President and Vice President of the Sexual Offences Court

Amendment 31 not moved.

Section 41 agreed to.

Section 42—President and Vice President: incapacity and suspension

Amendment 32 not moved.

Section 42 agreed to.

Section 43—President’s responsibility for efficient disposal of business

I do not think that anybody is disputing the importance of independent advice or advocacy. I am sure that people will continue to discuss and debate this but, with the best will in the world, legislation is not always the best place to address funding and operational matters.

I draw my remarks to a close there.

I will absolutely not take any interventions, Mr Findlay, because I really do not want to waste any more of your time, to which you have objected so profoundly—

This is a sensitive subject, so I will lay out in detail my position on Liam Kerr’s amendments. Although they are well intentioned, I cannot support them as they raise significant policy issues.

As members have heard from Mr Kerr, amendment 129 would fundamentally alter the anonymity reforms in the bill by extending the legal right to anonymity so that it would continue to apply after the death of a victim. Amendment 131 would create an application process to the sheriff for dispensing with a deceased victim’s right to anonymity.

As members will be aware, the Scottish Government carried out a consultation on approaches to reduce the trauma that media reporting of child homicide cases can cause. After careful consideration, I concluded that legislation would not be an effective approach to dealing with the complexities of media reporting on those cases. The consultation responses raised issues that made it clear that there would be serious difficulties with developing legislation that could strike an appropriate balance between privacy rights and freedom of expression, and that there would be difficulties with the practical enforcement of such legislation, particularly as media and social media cross borders.

Instead, I announced that the Scottish Government will work on non-legislative measures that could improve the experiences of families who are affected by reporting on child homicide cases. Sensitive reporting in respect of victims of sexual offences is a critical aspect of responsible journalism, and dialogue with the industry about how we move forward has already begun.

The policy of anonymity in the bill is focused on the individual victim, who, in almost all cases, will be alive after the committal of the offence that has given rise to their anonymity protections. That is different from child homicide anonymity, when the suggestion of anonymity is, of course, for the benefit of surviving family members.

When developing the bill, we looked carefully at the experience of other countries that have sought to provide anonymity for victims beyond their death. It is significant that jurisdictions that have extended the right to anonymity beyond a victim’s natural life, which include Ireland and individual states in Australia, have subsequently amended their legislation due to the unintended and damaging consequences for bereaved family members. One of the reasons why laws were reversed was that there was a risk of criminalising or silencing bereaved friends and family who, with entirely understandable intentions, wished to comment on the victim’s death, their memories of them and their legacy. Other reasons included the curtailment of freedom of expression and the difficulty of enforcement in relation to social media.

Members will recall Dr Tickell’s evidence at stage 1. Reflecting on the lessons that have been learned from international practice and experience, he said:

“well-intentioned legislative reform has caused people significant problems.” —[Official Report, Criminal Justice Committee, 31 January 2025; c 49.]

More practically, in relation to the operation of the right to anonymity, United Kingdom Government legislation will be needed to ensure that the restrictions apply to publications elsewhere in the UK if they are accessible in Scotland. In England and Wales, the right to anonymity automatically expires on the death of the victim.

Mr Kerr’s amendment 131 would provide a mechanism for the court to consider applications to relax the right to anonymity without being clear about how the court would decide. It proposes that the court use a test of whether there is “no good reason” not to grant an order to disapply the right to anonymity. It is hard to see how the court could make that judgment if individual bereaved family members had different views on anonymity. That was one of the key concerns that was raised in the consultation on deceased child anonymity.

Liam Kerr’s amendment 130 would reduce the scope of the anonymity protections for victims. It would mean that victims of the offences of human trafficking and modern slavery would qualify for anonymity only when there had been a sexual element to the offending behaviour. Under the bill, victims of each of the offences of criminal exploitation, as well as some other offences of limited scope, would gain an automatic right to anonymity, regardless of whether there was a sexual component to the behaviour. Those offences are included because those victims suffer from the same privacy and dignity concerns as victims of sexual offences. The position in England, Wales and Northern Ireland is the same, as victims of human trafficking have a right to anonymity with no requirement for there to have been a sexual element to the offences.

Although I cannot support amendments 132 and 133 in their current form, I offer to work with Mr Kerr to consider whether new amendments relating to adult victims could be developed for stage 3. A fundamental principle of the anonymity framework is that a victim controls their own anonymity—they have full and complete agency. Under the bill, an adult victim can waive their right to anonymity by publishing their own information or publishing through a third party, without the involvement of a court.

Waiver through a third party is established through a defence to the new criminal offence of breaching anonymity. The adult waiver defence provides that a person who publishes identifying information about an adult victim with the written consent of the victim does not commit an offence as long as the victim is at least 18 years old and their consent was not withdrawn in writing before publication. That is the same as the approach in England, Wales and Northern Ireland.

I can see that Mr Kerr’s amendments 132 and 133 are well intentioned in seeking to add a new method by which consent could be provided. However, I have concerns that, as drafted, they have the potential to weaken the procedural safeguards that are being put in place for victims and third-party publishers. I say that because there is no specification as to what some “other recorded” form of consent means or the acceptable parameters of that alternative method. That could create the risk of a publisher going public with the identity of a victim of a sexual offence under the mistaken belief that they had permission to do so, when the victim did not provide unambiguous written consent—for example, two people might have different understandings of a verbal conversation that has been recorded.

My concern is heightened, given that we are considering the operation of a new criminal offence, under which any ambiguity or uncertainty could have significant implications for individual publishers. We all want to ensure that there are sufficient and accessible ways in which an adult victim can make clear to a publisher their consent. However, I am not convinced that the bill, as it stands, is insufficient in taking the simple approach of written consent, which may be a short email or letter that confirms consent for publication.

For those reasons, I ask the committee to oppose Liam Kerr’s amendments in this group, but I commit to discussing amendments 132 and 133 with him ahead of stage 3.

I will now speak to my amendments in the group. Amendment 158 is a relatively minor amendment that adds the offences of forced marriage and forced civil partnership to the list of offences that will gain an automatic right to anonymity. The policy rationale for that is the same as applies to the current extension of anonymity protections beyond sexual offences to certain other offences that share similar underlying concerns regarding preserving a victim’s privacy. It is worth noting that the equivalent offence in England and Wales of forced marriage and forced civil partnership also has victim anonymity protections in place.

Amendments 159, 162 and 167 are minor clarifying amendments on the scope of the core anonymity protections in the bill and the operation of the new offence of breaching anonymity.

Amendment 168 provides for the right to anonymity for child victims of sexual offences and the other listed offences in the bill to take precedence over the existing more general provisions in section 47 of the Criminal Procedure (Scotland) Act 1995, which contain reporting restrictions relating to any offence of which a child is a victim. Amendment 168 will ensure that child victims of sexual offences and the other listed offences that qualify for an automatic right to anonymity benefit from the bespoke protections in the bill. That will ensure, for example, that child victims of sexual offences gain automatic lifelong anonymity, rather than protections ending when they attain adulthood or even earlier under the general provisions in the 1995 act.

Amendment 160 is a technical clarifying amendment to address a recommendation by the committee in its stage 1 report that there should be certainty that the protections that are available to victims will not be impacted by an acquittal verdict in a criminal case. It is not the policy intention that a victim would cease to have the right to anonymity if criminal proceedings were raised that resulted in an acquittal verdict. Amendment 160 puts that beyond doubt.

Amendments 164 and 165 are minor clarifying amendments that reflect points in the committee’s stage 1 report on the operation of the public domain defence. They make minor changes to the wording of the public domain defence to make it clear that it will not protect people who share publicly a child victim’s identifying information, even when a child has self-published their own story. That reflects the policy that extra safeguards be in place for children before a third party can lawfully publish identifying information about a child victim of a sexual or other relevant offence through the requirement of judicial oversight.

Finally, amendments 161, 163 and 166 are minor technical amendments to adjust the wording of the definition of “child” and references to age within the anonymity framework, so that there is internal consistency in the bill.

I understand, appreciate and endorse the comments that Ms McNeill makes with reference to the Lord Advocate—she is an absolute champion of these matters as well as others. From a Government perspective, ultimately, I must emphasise that the amendment is likely to fall outside the legislative competence of the Scottish Parliament, as it would interfere with the Lord Advocate’s determination of prosecution policy, and that is where I am stuck.

Although I very much understand Pauline McNeill’s intention, amendment 77 seeks to make provision for a process that, I think, requires more nuance and flexibility than legislation permits, and it is for that reason that I urge members to reject it.

I also do not support Katy Clark’s amendment 60 and Maggie Chapman’s amendments 265 and 266, which are concerned with independent legal representation for complainers at all stages of criminal proceedings. I very much understand the desire to improve how sexual offence complainers are supported throughout criminal proceedings. We all want to see improvements. However, the independent legal representation provision in the bill as it stands is very firmly focused on what is a deeply intrusive aspect of sexual offence cases in terms of sexual history evidence. The change that the bill will bring is already significant in breaking new ground for complainers, with the introduction of a third party into proceedings.

Providing for independent legal representation throughout a sexual offence case presents complex challenges and could create many unintended consequences that go well beyond the impact of independent legal representation for section 275 applications. At stage 1, Lady Dorrian cautioned that anything beyond independent legal representation at the section 275 application stage would derail trials and cause delays. Lord Matthews also explained that a third party would not be able to cross-examine witnesses or the accused, stressing the role of the Crown as public prosecutor.

I note the committee’s conclusion at stage 1 that the immediate focus should be on properly resourcing ILR in respect of section 275 applications.

I agree with that—we must not confuse representation with advice or advocacy. Ms Chapman has made that point consistently throughout the debate on the subject. Regarding the pilot that I have outlined today, it certainly is my hope that that will start by next year—I would want it to have commenced by then. That may not be without its challenges, but I assure Ms Chapman that my focus is on 2026.

To pick up the point regarding advocacy, that is complementary to independent legal representation, independent legal advice and wider support for victims. As we have discussed, there can often be confusion around those areas, but nonetheless they are interlinked; Ms Chapman and I have discussed that when we have met.

Ms Chapman’s amendment 264 is broad, and my concern is that it is not clear who would provide such support. I put on record that support is currently provided that does not require to be rooted in legislation. My overriding point is that some of the discussions that we are having, in particular with regard to budget and funding, are, in my view, negotiations that are more suited to the budget negotiation process, rather than some of the more nuanced negotiations that we need to have on legislation. Nonetheless, I appreciate that there are different views on that round the table, particularly at different times.

For the record, I note that independent advocacy support is currently provided free of charge by Rape Crisis Scotland’s advocacy programmes, and I note the comments that Ms Chapman made earlier on that. It is a national service that receives £2 million annually from the Scottish Government. In principle, it aims to provide support to victims in a flexible way, from before a statement is made and beyond the resolution of proceedings.

There is also the victim-centred approach fund, which has provided more than £18 million to Victim Support Scotland over the past three years to offer free information and support to victims of crime. The fund forms part of our fairer funding pilot, which means that recipients continue to receive awards over the next two financial years.

I do not support amendment 264, as I do not think that it is the best way to proceed.

We have looked at the costs of the pilot, and that information could readily be made available to members. With respect, I will turn the tables a wee bit and reciprocate by asking whether members have looked at the costs of their amendments. We can always compare and contrast our approaches.

There is a range of preparatory work to establish the pilot and total costs. That includes the recruitment of staff and ensuring that all necessary arrangements for its smooth running are in place, including awareness raising regarding how complainers can access it. We have some ballpark figures for that; they might not be narrowed down specifically in terms of pounds, shillings and pence, but we have worked hard with those proposing the pilot to reduce the cost. I will be able to provide further information on that.

Thank you, convener. Widening the pool of people who are available for jury service will better represent society and recognise the contribution that those with sensory impairments have to make in all areas of public life, so I am pleased to support amendment 233.

As Ms Adams touched on, it takes forward recommendations made by a judge-led group in 2018. The Scottish Courts and Tribunals Service convened a working group in 2023 to consider some of those recommendations further, and it recommended that legislation should ensure that different forms of support could be rolled out to jurors in future.

Amendment 233 is consistent with that, allowing the court to decide what kind of communication supporter to appoint, depending on jurors’ needs and on what is operationally feasible. The flexibility also helps to ensure that the provisions are future proofed.

Scottish Government officials have engaged on the issue with stakeholders, including the British Deaf Association, Just Sign, freelance BSL interpreters and Deafblind Scotland, and they are all very supportive. The measure was introduced in England and Wales in 2022, since when 70 jurors in England and Wales have required to use BSL interpreters.

It is in all our interests to pave the way for as many people as possible to serve on juries. I therefore urge the committee to support amendment 233.

Before a trial begins, jurors have the option of either taking an oath, which is religious, or making an affirmation, which is non-religious, to try the accused and give a verdict according to the evidence.

At present, the wording prescribed in existing legislation means that jurors who choose to take the oath may do so collectively and without having to state their names, and jurors who choose to affirm must do so individually and name themselves in court. Amendment 154 will enable jurors who affirm to do so collectively and without having to declare their names in court. That would make the process for jurors making the affirmation consistent with the process for jurors taking the oath. The amendment would apply to all criminal juries.

The Criminal Courts Rules Council highlighted that inconsistency to us. The current wording means that affirmations are procedurally inefficient, and the Humanist Society Scotland has raised concerns that the differences in wording mean that jurors who choose to affirm are treated differently from those who take the oath.

Jurors should be able to expect to be treated with consistency and parity in front of the court, regardless of their religious or non-religious beliefs. The amendment will create that consistency for all jurors.

I move amendment 154, and urge the committee to support it.

Amendment 154 agreed to.