Chamber and committees

Just for clarification, it would be helpful if I could check that I have understood this correctly. Am I correct in thinking that, in the new sexual offences court, there could be High Court judges, temporary judges and sheriffs, and that either type of High Court judge can sit on any sexual offences case?

I will make a short contribution. As Katy Clark said, we have had the debate and accepted that the Government has had a change of heart. The committee spent a lot of time considering this particular proposal. The huge number of legal concepts and detailed changes to criminal justice in one bill has exercised me from the beginning. I will continue to make that point, and I will certainly make it at stage 3.

We have come to the right conclusion, but it has taken a considerable amount of the committee’s time to examine the proposal, and rightly so. I appeal to future Governments to think twice before they give any future committee such fundamental change all in one bill. I do not need to say for everyone here that it has been a difficult week, what with trying to cope with this big bill and the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill that we debated in the chamber yesterday.

As I have said before, I do not think that it is ideal in the long run to scrutinise a bill as large as this in one statutory document.

Cabinet secretary, what you have outlined makes sense—not to chop up the act into bits but to review it in one comprehensive report. My only concern is that, if some aspects of the bill are not enacted within the five years following royal assent, or are enacted at the tail-end of the five years, there is only a very short period of that aspect to review—you said that the plan is to draw down in stages. Could you give consideration to that? You might say that it is unlikely that something is not drawn down, but it could happen, so could we take account of that? If that happened, it would be another five years before that aspect was reviewed.

I will rehearse the same argument as I rehearsed last week. I do believe that there should be a specialist element but, as I have argued from the beginning, it can be done in a different way. The bill will create a sexual offences court for all solemn sexual offence cases, which is quite a big change. My position is that specialist divisions of both the High Court and the sheriff court could be created to achieve the same thing. The judges and practitioners would still be required to be trauma informed.

Separately, on the question whether murder with a sexual element should be indicted in the new sexual offences court, I am arguing that all the people involved in the sexual offences court will also be able to practise in the High Court, so they would still be trauma informed if they dealt with such a case in the High Court.

That is just a different way of going about it. It is not that I fundamentally disagree with your perspective; I just think that it is an awful lot of change and an awful lot of money to spend, and we do not know whether anything different would be achieved at the end. I suppose that that is a difference of opinion on how to go about it. Does that make sense?

Yes—that is exactly right.

I am happy to give way to the cabinet secretary.

It is hard to know how to respond when there has not been a full debate on my amendments. First, I made an error when I spoke to amendment 157. I do not fully understand why my amendments on the separation of the High Court and the sheriff court have been separated in the groupings. I should have said that, as the committee knows, I fully agree with the cabinet secretary about the importance of sexual offences courts being trauma informed, so that we can change the nature of how such offences are dealt with. At the previous committee meeting, I argued that those matters should be decided by a division of the High Court and a division of the sheriff court. I apologise—I do not know why that is not being addressed in this group of amendments; I will deal with it when I speak to amendment 270.

On amendment 69, we all agree that trauma-informed practice is a fundamental basis of the proposal for a new sexual offences court and, in fact, should be afforded to any victims who are brought before the courts. Solicitors and judges will be trained in trauma-informed practice, so I do not understand why the same judges could not try those cases in the High Court. I take the cabinet secretary’s point that, if the Lord Advocate uses the discretion that the bill would afford her, she could indict murder in the sexual offences court, if there was a sexual element to the crime. Judges who are trauma informed could sit in the High Court—for example, the Glasgow High Court could hold a sitting of the sexual offences court, so in other words, the sexual offences court could look exactly the same as the High Court. I do not think that the argument against the amendment is solid.

One of the criticisms that Katy Clark and I have is that what is proposed could just look the same as what already exists. I do not see why there is a substantive argument that murder could be indicted in the sexual offences court, when we could do it the other way around and ensure that judges and practitioners, some of whom would be practising in the sexual offences court, could take such cases in the High Court. The substantive argument made by the senators of the College of Justice, which is clear enough, is that what the policy memorandum says about why the change is required is “anecdotal”.

When we are presiding over such a fundamental change to our criminal justice system, we have to make the changes that we think are right, but we also have to protect the integrity of what is, by and large, a good criminal justice system, with all its faults.

You can achieve the same thing. A High Court judge—Lord Bracadale, for example—who sits in the High Court could sit in a newly created sexual offences court and preside over a sexual offence case or a rape case. They would have to be trauma informed to do so, but they would not stop dealing with cases in the High Court that are not sexual offences cases. A High Court trial for rape could be tried with the same people, who have been trained to be trauma informed.

I wish to return to the issue at stage 3, but I will not move amendment 270.

Amendment 270 not moved.

Amendment 33 not moved.

Section 43 agreed to.

Section 44—Sittings of the Sexual Offences Court

Amendment 34 not moved.

Section 44 agreed to.

Section 45—Transfer of cases to the Sexual Offences Court

Amendment 198 moved—[Angela Constance]—and agreed to.

Amendment 35 not moved.

Section 45, as amended, agreed to.

Section 46—Transfer of cases from the Sexual Offences Court

Amendment 199 moved—[Angela Constance]—and agreed to.

Amendment 36 not moved.

Section 46, as amended, agreed to.

Section 47—Rights of audience: solicitors

A number of these amendments seek to amend elements of the sexual offences court, including what it will be able to do and what crimes it will be able to deal with.

On amendment 157, my intention and how things have come out might be two entirely different things, as is often the case, but my intention was to ensure that the crime of rape would be presided over only by a High Court judge. I appreciate that the cabinet secretary might say that that is what she would expect, but it is really important, when we are legislating, to nail down the detail on the expectations under the law. I would not be happy if the door were to be left open to any discretion whatever.

Amendment 69 seeks to leave out murder as a crime that could be tried in the sexual offences court. The senators of the College of Justice have said that murder should be tried only in the High Court and that “the anecdotal nature” of paragraph 280 of the policy memorandum

“gives no confidence that this ... constitutional change has been thought through properly.”

Paragraph 280 in the policy memorandum states:

“There are known cases in which sexual abuse perpetrated by an accused is alleged to have escalated over time, against multiple complainers, ultimately leading to a murder. Given the experience of the surviving complainers and the nature of their evidence ... the policy objective is to afford those complainers the benefits of the case being prosecuted in the Sexual Offences Court.”

On that, the senators stated:

“While this is undoubtedly true, there are not many such cases and the anecdotal nature of para 280 gives no confidence that this major constitutional change has been thought through properly. The appropriate place for charges of murder and attempted murder is the High Court. Murder is the most serious charge in the criminal canon. It is that charge which should determine the forum. The suggested change ignores the fact that in the very few cases where sexual offences are alleged against a surviving complainer, it is likely that the case will be tried before a judge who is also a judge of the sexual offences court and that most if not all of the benefits of that court will be able to be afforded to such a complainer.”

They continued:

“We remain firmly of the view that life imprisonment and OLRs”—

that is, orders for lifelong restriction—

“should be the exclusive province of the High Court.”

It would be a mistake if, in trying to sort out the status and importance of the sexual offences court, we in any way diluted the importance of the High Court of Justiciary, which will still be the highest court. I am happy to be contradicted on that, but I would challenge such a view. Under the Scotland Act 1998, the High Court of Justiciary will remain the highest court. It is a requirement of the Scotland Act 1998, and its integrity should be protected.

I move amendment 157.