Chamber and committees

I welcome the amendments that the Government has lodged in this group and whole-heartedly support them.

I will address my amendment 270. Rape is among the most serious of crimes and if we are potentially making a fundamental change to who hears rape cases in our criminal justice system, that should be examined thoroughly and properly.

What I am hearing is that you will be able to appoint more judges, which might reduce delays. That is fair enough; it is a compromise. I accept the argument; I can see that it is a good one. However, before we have closure on the issue, it is important to flush out the other side of the argument. Rape cases are heard in the highest courts by High Court judges. My understanding is that they might not be heard in the sexual offences court, because there is nothing to prevent a sheriff presiding over a case, albeit one that is trauma informed and everything else.

First, I will address the question of temporary judges. I have to say that the committee has not really had the benefit of drilling down into the detail on that. We have not had the benefit of full and frank discussions with the judiciary on the issue—which is often the case. I will admit that I do not have as much knowledge of the issue as I would like, but I would still like to test the argument.

Temporary judges go through a process before they sit in the High Court. One wonders what is temporary about temporary judges, given that the post has a five-year fixed term and automatically gets renewed, unless they have done something. I just wonder why there are temporary judges in the first place.

That aside, there is a separate issue. Temporary judges will be able to sit in the sexual offences court as they can in the High Court. Sheriffs will also be able to sit in the sexual offences court. I am a bit concerned. It is important in our criminal justice system that the serious crime of rape is seen by the criminal justice system as being a serious matter. I am not sure that I want to leave that to chance. People did not like the idea of the creation of a sexual offences court in the long run. I am open-minded in a way. I have heard the arguments, but I hope that the cabinet secretary will at least accept that it is important to have this discussion, because there is no doubt in my mind that, although the cabinet secretary might get lots of benefits, she will lose something in all of this. Many practitioners who I have spoken to about the issue think that something will be lost in the creation of a sexual offences court because of its nature, even if we can achieve a reduction in delays.

Amendment 77 would insert a duty to provide information to complainers in sexual offence cases. It states that the

“Advocate Depute must ... meet with the complainer”

before

“the first hearing”

and

“provide the complainer with relevant information on the progress of the case over the course of proceedings.”

Tony Lenehan KC said:

“It is important that I am allowed to say to them beforehand that the trial can be conducted as slowly as they need it to be, that they can think about the questions and, if they do not understand the questions, that they can tell me that. We can build that into the process so that, when they come into the court, they know me a bit.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 43.]

He has also highlighted that a current practice note indicates that the advocate depute should meet the complainer in advance of their giving evidence when evidence is taken by commission.

My amendment falls within the broad scope of issues that are raised in relation to independent legal representation and a single point of contact. The overwhelming experience of the vast majority of victims from whom we have heard was that they felt that they had no agency in their own case. In many cases, nothing was explained to them and they felt that they had no stake in what was happening in the case in which they were the victim. It is clear to me that we cannot go back to what we had before.

The Lord Advocate is to be commended for the way that she has, from what we have seen, promoted among advocate deputies the necessity of seeing victims. We have heard from at least one victim who expressed on the record that her experience was completely different from the experiences of all the other victims from whom we heard in that evidence session, who did not feel, in any way, that they had a part in the whole process.

The important thing is that the advocate who is dealing with the case will have read the papers and will have some understanding of the intricacies of how the trial might be expected to go. It is a really important aspect of making a difference to complainers.

I imagine that Governments are never happy to put this type of thing into statute, so I will listen to find out whether there is another way to do that. You will note that Tony Lenehan said that it is already covered in a practice note. However, I want to ensure that the right for a complainer to sit down with a person who is, after all, going to be prosecuting their case, is made permanent and does not slip when a new Lord Advocate comes into post.

I see that Liam Kerr is about to intervene, so I will take his intervention.

It is clearly a difference of opinion about how to achieve the same end. I feel as though I am arguing something that was part of last week’s debate—what I am trying to get at in this group of amendments is that the High Court’s integrity should be protected. This is not just about creating something new—and, by the way, I am absolutely sure that, if there were a new division, there would be a fundamental change. If a new division were to be created in the High Court or the sheriff court for sexual offences, the situation would be different. In the same way, we created the drugs court and now the practice is different. It operates differently.

Convener, I apologise for taking up too much time. I need to make sure that my arguments are understood, albeit that people may disagree with them.

Yes.

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?

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].

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 with Liam Kerr’s remarks about the volume of work that the Criminal Justice Committee has undertaken, and I hope that we have done justice to the bill.

The Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill does two distinct things. First, it sets out extremely important provisions on domestic homicide and suicide reviews, aiming to identify what lessons can be learned and potentially applied following a death where abuse is known or suspected, in order to help to prevent future abuse and deaths. Scottish Labour whole-heartedly supports the Government in that regard.

Secondly, the bill sets out fundamental and permanent changes to the way in which evidence can be given in court and where the court can hear the initial stages of the court case virtually. The use of virtual attendance has its place, and it is being used in courts. However, its use is key to some victims giving evidence, and it can revolutionise the opportunity for victims to give their best evidence.

We must scrutinise the bill to ensure that the new arrangements can work fairly for everyone, especially given that the provisions that were put in place during Covid will become permanent if the bill is passed into law. We have already established giving evidence by commission in our courts—that has worked well for victims, and the courts are getting used to that.

There are two broad strands to the evidence that the committee received on virtual attendance. First, there was evidence about the principle of allowing virtual attendance and whether the framework for permitting virtual attendance in the bill was appropriate. In that respect, we note that the bill sets out the circumstances in which a court can issue a direction as to whether a physical or virtual attendance should take place. I note the convener’s helpful remarks that drew out where the committee thinks there should be more detail on that.

The bill sets out the framework within which the courts can take such a decision, rather than being prescriptive as to how virtual proceedings should be run. Of course, the provisions have been in place on a temporary basis since 2020. The bill seeks to make these provisions permanent, but I am concerned about the lack of detail on how such decisions can be arrived at. I think that there should not be a blanket decision on types of cases, but that each case should be judged on its merits, at least until we see how the approach can be run efficiently.

The second strand of evidence was about the practicalities of implementing virtual attendance. There are currently many flaws in the system. In fact, some organisations noted that the success of virtual attendance would depend on the availability of reliable, effective video connections. Written submissions from the sheriffs principal stated that they observed

“that virtual hearings are heavily dependent on the adequate resourcing of technology and infrastructure.”

In its written submission, the Faculty of Advocates was supportive of the bill’s provisions on virtual attendance and noted that

“the use of Webex to conduct preliminary hearings in the High Court of Justiciary works extremely well”.

However, it also noted that

“These undoubted and important benefits do come at a cost to the justice system”,

because

“Valuable court time is regularly lost due to delays in establishing remote links and re-establishing failed remote links.”

That is not good enough, and that is why the committee has asked for more certainty on that issue.

There were also concerns about the practical difficulties associated with virtual custody courts. Simon Brown of the Scottish Solicitors Bar Association told the committee that he had participated in a pilot scheme for a virtual custody court in Kilmarnock sheriff court that was “a singular failure”. He noted that those

“Courts took four or five times as long, regularly running until 8 o’clock in the evening,”

and that

“the communication with clients was very poor.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 5.]

According to him, the difficulties included insufficient rooms being available in police stations, limited time with clients and the inability of solicitors to obtain follow-up meetings with clients because of a lack of space.

Paul Smith from the Edinburgh Bar Association pointed out that the lack of facilities in Edinburgh for virtual custodies caused delays, and that for

“clients who have not been through the system before and do not know a solicitor, and for whom this is their first point of contact, virtual custody makes it ... more difficult for the solicitor to form an impression and, in effect, a personal bond with the client.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 6.]

As I noted, there were also concerns about Kilmarnock sheriff court, where it had not gone so well.

Stuart Munro from the Law Society of Scotland commented:

“the trouble is that the virtual systems that we have had so far have tended to be pretty inflexible.”

He noted that

“that is not really something for the bill,”

but that it should

“inform the decisions that are made around the bill.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 12.]

However, as far as I am concerned, in many ways, it is for the bill, because, before we permit the further use of those provisions, those matters must be resolved.

Malcolm Graham from the Scottish Courts and Tribunals Service acknowledged the concerns that arose from the pilots and gave a commitment to the committee that the service is focusing on such feedback to ensure that those provisions can be used effectively.

We also heard from representatives of the users of the justice system that any arrangements for virtual attendance should take account of particular needs. Adam Stachura from Age Scotland highlighted the importance of avoiding digital exclusion in relation to the bill’s proposals, pointing out that the fact that someone can go online does not mean that they

“are very good at using the internet.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 38.]

There is a lot to consider when it comes to ensuring that everyone feels that attending virtually is accessible.

Surprisingly, although the provisions on virtual attendance are welcomed by Police Scotland as streamlining processes and because, it says, they can reduce impact on the front line, it also stated that

“there are real questions about the feasibility of implementation”.—[Official Report, Criminal Justice Committee, 29 January 2025; c 3.]

A running theme can be seen in the feedback from many organisations that are already using virtual attendance in our court system. It is fundamental that we ensure that there is the technology to support that model.

The proposal of a national jurisdiction for custody cases is another aspect of the bill. I want to ensure that the concept of local jurisdiction remains and that we are quite clear where national jurisdiction starts and where it ends.

Finally, on digital productions, it makes sense that the bill suggests that a digital copy could be used and stored instead of being presented to the court, but we must not lose the right of the jury to see, for example, the actual weapon that is used in a murder case. We need to make sure that it does not become a default position that there will be digital productions and that the prosecution or the defence can argue unencumbered if they want the court to see an actual item on display.

There is a lot to unpack in stage 2 of the bill; however, I will support the general principles of the bill.

I whole-heartedly welcome the commitment that the cabinet secretary has made on non-means-tested legal aid for close family members who are involved in deaths in custody FAIs. I called for that when the cabinet secretary made her previous statement on the issue, and I am delighted that the Government will use the powers that are available to it to make that happen as soon as possible, and note that additional powers will be needed at a later stage.

I also welcome the transparency that we are trying to achieve in relation to deaths in custody, and the appointment of chairs of FAIs relating to deaths in custody who can be independent of the Scottish Prison Service.

The removal of bunk beds at Polmont and the progress towards the removal of ligatures are really important for preventing more deaths in custody. Does the cabinet secretary agree that the state has a responsibility to keep prisoners safe while they are serving a sentence? In too many cases, it has not done so. Does she have concerns about Addiewell prison? There have been 14 deaths there since the tragic deaths of Jordan Burns, who took his own life, and Lewis Spence, whose family have expressed concerns about the running of the prison. Families must be given full and unfettered access, as was promised by HMIPS. Will the cabinet secretary look into those matters?