Chamber and committees

Thank you very much.

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.

That is a fair point. The intention behind the amendment is to allow the complainer to get an insight into how the case will be argued and into any other factors that might have arisen. We have heard the case for independent advocacy at the preliminary trial and in relation to a section 275 application, but then there is the trial itself. How the case looks at the outset will differ from how the case looks later on. As is often the case with provisions that are drafted by back benchers, there is room for improvement.

I will hear what the cabinet secretary has to say about it, but I am sure in my mind that I want the measure to be permanent. It is worth having a discussion, because there is a lot of commonality in the principles of providing legal advice and legal support and changing the fundamentals of how a victim is involved in understanding the case throughout. I feel more strongly about this stuff than I do about the change in structure that was debated in an earlier group, which the Government feels strongly about. I want to support measures that would change fundamentally the experience of victims, because I believe that victims can give their best evidence when they have the fullest understanding.

Katy Clark’s approach to piloting independent legal representation is important. It is right that we evaluate something that is not tried and tested.

I am sympathetic to Maggie Chapman’s amendment 264, because that is something that Lady Dorrian asked for, and that is quite persuasive. Again, I do not know whether there is a crossover between independent advocacy support and what I am trying to achieve. It probably needs to be further fleshed out, but I am clear about the principle that something permanent needs to happen to change the experience of victims before and during the trial, and some of the amendments would make that change happen.

I can see that there are some drafting issues, so I admit that. You said that the practice has been established by convention, but that convention is very short lived. The current Lord Advocate, having headed up the sexual offences unit, is very passionate about sexual offences. This is not to talk down other Lord Advocates, but she strikes me as someone who is very passionate about the issue. When we have another Lord Advocate, the convention could fall away—that is what I want to discuss. I expected you to say what you said, which is fine. Perhaps these things are better not done by legislation but by practice notes, but will the Government consider ensuring that the practice cannot be dropped by a future Lord Advocate?

You may remember that, in relation to a previous set of my amendments, I said that the same approach could be achieved by having a sexual offences division of the High Court and a sexual offences division of the sheriff court, rather than creating a new court. Rape, for example, would therefore be tried in the sexual offences division, if you like. There would still be fundamental change, but a new court would not be created. My fear is that there will be a lot of cost and bureaucracy in creating something that we could do without and which could be created without legislation, as was done with the drugs courts and the domestic offences courts.

Amendment 69 relates to a separate point. At the moment, murder—being a plea of the Crown—can be tried only in the High Court. I wish that to remain the case for the reasons that I outlined. I am arguing that, if there is to be trauma-informed practice, which I presume would involve training for judges and practitioners in the sexual offences court, the same people could also sit in the High Court. A High Court judge sitting in the sexual offences court would have to be trauma informed, as would the practitioners; however, the same people could sit or practise in the High Court. Therefore, the trauma-informed argument is not really solid. Do you follow me?

I agree. On the question of hierarchy versus practicalities, it is possible to get both. As I have said, the specialist nature of a sexual offences court can be achieved in a different way. However, fundamentally, I think that we should hang on to some kind of hierarchy—we have a High Court; the hierarchy exists.

As I said to the cabinet secretary, and as Rona Mackay was right to say, the trajectory of sexual offences cases heard in the High Court is such that they make up 70 per cent of those cases. Are we saying that the judges hearing those cases do not have a specialism—seriously? Two thirds of the cases that they hear are about sexual offences. They may not be trauma informed, but that can be resolved.

I seek to withdraw amendment 157, but I will move amendment 69 when it is time to do so.

Amendment 157, by agreement, withdrawn.

Amendments 180 and 181 moved—[Angela Constance]—and agreed to.

Amendment 69 moved—[Pauline McNeill].

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?