Chamber and committees

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

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.

I start by saying that the Government’s amendments are the most significant and important changes to the creation of the sexual offences court and I put on the record my thanks to the cabinet secretary and her officials, who I know have worked hard to achieve that.

One of the reasons why I moved my earlier amendments on the structure of the sexual offences court was that rights of audience would remain the same if we went for the formula that I proposed last week. In the event that the Parliament passes the formulation that we are talking about today, I will be pleased that we have resolved the issue.

For clarity, I presume that it is pretty obvious that rape cases would attract a senior prosecutor and rights of audience for either counsel or a solicitor advocate. The position is less clear for non-rape cases. The amendments identify crimes that might attract sentences of more than five years and, as has to happen at the moment, those cases would previously have been indicted to the High Court. That protects the rights of audience, so that accused persons will be represented in the same way as they were previously. That is really good.

I have something for discussion at stage 3. Forgive me if I do not explain this properly, but it is also important to look in the round at what would have happened in the High Court in relation to the prosecution of cases, which would have been either by a procurator fiscal with experience appointed by the Lord Advocate or by an advocate depute with a three-year term. I am not sure, because it has not been discussed at any stage, whether there would be a corresponding expectation in cases that would attract those sentences, and whether anything needs to be said about who prosecutes those cases. For completeness, I thought that it would be worth mentioning that and having a discussion about it before stage 3.

I will not move my amendments. There is no need to do so because they relate to a previous formula. I welcome the cabinet secretary’s amendments.

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 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.

So there are three categories of people—High Court judges, temporary High Court judges and sheriffs—who can preside over rape or any other sexual offences case.

Thank you very much.