Chamber and committees

Fundamentally, I agree with the Government that there needs to be a significant shift in the way that we deal with sexual offences cases. Those cases are predominantly what the High Court is dealing with now, and the situation is alarming, with the rate of sexual offences against women and girls going up, not down. The Government has, commendably, already put in place many measures in relation to the issue, and I think that Parliament as a whole is pretty united on the fact that the issue has to be a primary focus not just of legislation but of practice and resources.

Sometimes, achieving change does not require legislation, as some things can be done without it. However, we are faced with a proposal in the bill to create a new sexual offences court.

My first concern about the idea of putting all solemn cases in a single court is that that will create an extremely large court. There is a bit of an unknown here. I accept that, in the proposal to create that new court, to give it additional sentencing powers and to allow sheriffs to sit in that court—approved by the Lord President, obviously—there is an attempt to do something different and to try to address the delays that exist, which affect too many victims of sexual assault. However, I have a concern that what is a significant change in the court system might not achieve what the Government has set out to achieve, because of the volume of cases that would probably be in the new court.

I am concerned about the cost of such a large court and the ability to ensure that it runs smoothly. I acknowledge that the court can sit in many places—I think that up to 38 courts could be used.

I have a slight concern that, depending on how the new court operates, it could look like there would be a downgrading of the status of rape as a crime. At the moment, because it is one of the most serious crimes that can be committed under Scots law, it therefore goes to the highest court. I maintain that the High Court will still be the highest court and, although the new court could be a significant court with the power to impose long sentences, it will not be the High Court. The High Court is a feature of the Scotland Act 1998; it is a requirement under that act to have a High Court, and it is the highest court, although, obviously, there is an appeal court as well.

I suppose that we might be satisfied that, in order to get the delay down, it is worth using sheriffs and changing the structure, but I cannot pretend that I do not have concerns about how rape cases not going to the High Court might be seen.

Also, because we have been so busy considering the proposal for the new court, we have not had time for much discussion about what happens to the High Court. The figures show that sexual offences cases make up just under 70 per cent of High Court cases, which means that, if the proposal is agreed to, only 30 per cent of the current volume of cases will be in the High Court.

I appreciate that you were not on the committee, but a couple of things came out in evidence in relation to the English judicial system. That system involves 12 jurors agreeing unanimously, or, with the agreement of the judge, it can go down to 10. However, there are at least two aspects that we are aware of that are different. One is the ability to have a retrial, and the other is the way in which cases are prosecuted in England and Wales.

That is why we cannot compare convictions. In Scotland, as long as the Crown is satisfied that it can provide evidence for a prosecution, it will proceed, whereas that is not the basis of English prosecutions, which are based on the chance of success. That is the conundrum for everyone. Even if you look at New Zealand, Australia or other jurisdictions, you realise that Scotland is unique. I totally understand where you are coming from, but those are two points that stuck in my mind.

We are all in the same position. Does the member agree that it is a shot in the dark? We take one position or another and point to certain research that says certain things, but we do not know what we are doing for sure. I put the same question to Liam Kerr. Would it not be better to try to understand exactly what we might be doing or to have some insight into how juries arrive at their majorities at the moment by asking them over a period, during which we lift the restriction in the Contempt of Court Act 1981? That would allow a future Parliament to review whether a majority of 10 to five is indeed the right balance.

Thank you.

I make this intervention for the sake of completeness, to cover all the points.

I am not a practising lawyer, but I know a little, as I have studied law. In Scots law, there is the concept of tholed assize—I think that that is what it is called. That is why the double jeopardy legislation was quite difficult for the Parliament. In Scots law, once someone has been tried in a court of law, they cannot be tried again—well, they can under certain conditions, but retrial is another concept that England has, but which is alien to Scotland.

The Lord Advocate told the committee that, if we went for a supermajority, she would ask the Parliament to consider the power of retrial. I am really against that. I think that a good feature of the Scottish system is that someone is tried in a court of law, the case is put against them and they have the right to defend themselves. The idea that someone could be retried for the same offence, unless there were very unusual circumstances, concerned me, and it made me head in the other direction, so to speak. We need to consider that point as part of our considerations in the round.

I take the point that Liam Kerr is making—at least the English system is tried and tested—but we must consider these other issues that keep cropping up.

I strongly support amendment 152, which the cabinet secretary has lodged. I strongly agree that we need to know more about jurors’ approach to rape cases, and I think that there is full agreement that that would be extremely useful insight.

Like Sharon Dowey’s amendment, some of mine were submitted some time ago. I was trying to resolve in my mind what type of research would be useful to inform us about the implications of removing the not proven verdict. I acknowledge that, as we have discussed, the committee has seen some useful research, but that has limited value compared to research on actual juries.

Amendment 75 was an attempt to ensure that research on juries would be conducted immediately after the bill received royal assent, and amendment 151 proposed a three-year period for such research. However, I acknowledge what the cabinet secretary said about the need for certain variables to remain the same in any research that is undertaken, so I might need to give further thought to what would be useful in that regard.

As I established earlier, the part of the bill that removes the not proven verdict will still require a commencement order. I do not know whether there is a period in which direct research could be carried out, which would involve lifting the bar on asking juries questions about their opinions on how they voted in particular cases and looking at the balances in cases in which the not proven verdict was reached.

It is crucial that we gather as much information as we can, because we are stepping into the unknown. Although I have said that I am more supportive of the 10 to five majority, I accept that we are stepping into the unknown. One way or another, we must try to have some research carried out to ensure that we have done the right thing. Members in a future session of Parliament might need to do that if conviction rates were to change in one direction or another. There is no way that we can avoid having to review what we do so that we can say whether we did or did not do the right thing. Therefore, it is very important to have such a provision.

Finally, I acknowledge that the Government is already doing research on the question of evidence by commissioner, which is really important. The use of evidence by commissioner is fundamental to getting more victims to come forward and give evidence, but we need to be satisfied that, when victims volunteer or opt to do that, there are no downsides, such as juries perhaps taking that evidence less seriously.

There are lots of questions—perhaps too many—that could be asked in research. Before stage 3, it would be valuable to have a full discussion about how we can ensure that we get the best information available to inform the decisions that we take.

You have outlined a position that is broadly similar to mine, which is that you do not want to go with a simple majority. Would it make sense for the Government not to draw down the not proven verdict for a period of time, to allow research to be done with juries after lifting the restriction in the Contempt of Court Act 1981? Otherwise, we would make the change right away, the research would be done in the new configuration, and there would be nothing to compare it with. I have wrestled with the question of when to do the research and what value it has. Have you given that some thought?

I find Sharon Dowey’s contribution very helpful, because it mirrors my feelings about something that sounds like quite dramatic and necessary change but which involves lots of issues that remain unresolved. I maintain that a lot of the specialist judicial management can be done without legislative change. It would be wrong to say that other quite radical changes to the system have not been supported by the committee, different parties or the Government and that everything rests on the creation of a very large sexual offences court.

I remind the committee to consider whether it is satisfied that the result of every single solemn case in the High Court and the sheriff court will be what the cabinet secretary is saying that it will be—although she did not address the question of delay, which is one of the significant issues in the court system. Sharon Dowey addressed that issue, and the costs. Is the committee content that we can achieve what the sexual offences court sets out to achieve?

Although we are talking of cases that are of the same type—they are all sexual offences cases—they are not all of the same level of seriousness. I agree with Tony Lenehan, who was quoted by Sharon Dowey, when he says that we have a hierarchical system, in that we have the High Court for the most serious crimes, and then we have lower courts. There is nothing in the bill that prevents a sheriff from sitting in a rape case. I cannot sign up to that, and I have lodged an amendment that we will come to later that might change it. There is no doubt that more sheriffs will be used—that is how this will be done. The sexual offences court will use more sheriffs—whether or not the Lord President is satisfied that they are trauma-informed and able to do the job. That is something that the cabinet secretary has to accept.

I would have had more respect for the change, or been more supportive of it, had the question of how rape cases will be dealt with in the new sexual offences court been addressed. Liam Kerr quite rightly asked the question. Nothing about how the court looks, physically, will really change—it will still be a court somewhere in Scotland. There might be procedural changes, but I am arguing that those can be made without legislation.

Given the widely drawn powers of the sexual offences court, which mean that the cases that it could consider could include murder—I will come on to address that concern—we would be creating a lot of changes at the same time that we do not know the outcome of.

Why would we not still try someone for murder in the High Court as a matter of absolute certainty? Why would we not argue it the other way so that, if they felt that it was appropriate, the Lord Advocate could say that a murder case with a sexual offences element should go to another court? As it stands, the sexual offences court would have complete discretion to go beyond sexual offences cases.

Yes, it was a powerful point—it was made by Lady Dorrian. The question that we have to ask ourselves is that, although we all want dramatic change—I want that too—are we satisfied that, just because there is a report that says that change will happen in a particular way, the proposed sexual offences court will achieve it? Are we satisfied that the Government will put the resources in? Are we satisfied that there will be a smooth transition from the current court structures and that there will not be a few years of delay? When we get to the end of the process, I would have thought that some future committee will have to review whether or not the proposal has achieved what the Government said it will achieve.

I am arguing that we can still achieve similar aims, or the same aims, by approaching this in a different way. Do not forget that there are still problems to be resolved—for example, rights of audience have not fully been resolved. I thought that the way to resolve that is to keep some of the elements that are already there, but it is for Liam Kerr to decide whether he is persuaded by that.

There is a lot of change that has to happen regardless of whether there is a sexual offences court. That includes the way that victims are treated in court, the points in Katy Clark’s amendment on a single point of contact for victims and those in my amendment on the right for a victim to sit down with an advocate to understand their case. We have to look at the issue as a whole. If we want this transformation—and we all do—it cannot be achieved simply by the creation of one single court. Pretty much all those things have to happen. I agree with the cabinet secretary and Lady Dorrian that we have to make sure that we make transformational change when we have the chance to do so.

On that basis, I will withdraw amendment 76.

Amendment 76, by agreement, withdrawn.

Amendments 155 and 156 not moved.

Section 37—Sexual Offences Court

Amendment 26 moved—[Sharon Dowey].

We can come to that. The member will certainly not contradict me on the fact that the issue is not in the bill at the moment. That is why we did not take evidence on it.

Just to be clear, I support pretty much all that Jamie Greene has just said. However, as somebody who is here to scrutinise, I would like to have heard evidence from, or even had the chance to talk to, the Parole Board. That is my only issue here.

I did not design the bill—the Government designed the bill—so this is where we are. The bill is too big, which makes stage 2 more difficult. The committee has successfully argued for more time—you will see that—and I am very supportive of the amendments and will not vote against them today. I will hear what the cabinet secretary has to say, because there is an awful lot of merit in what Jamie Greene is saying.

Has he had any discussions with the Parole Board? Is there anything that he could help the committee with? The matter will be out of the committee’s hands after today, and it will be for the full Parliament to scrutinise it. If we are going to make a decision at stage 3, getting as much information as possible would be helpful.