Chamber and committees

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?

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 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 this: 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].

My understanding, from speaking to Rape Crisis Scotland, is that its big concern—as you know, it has many concerns—is delay in the courts. If you believe that delays will come down as a result of this change, I understand and sympathise with that view. However, you would have to accept that, while the High Court has High Court judges and advocates represented in it, that may not always be the case in the proposed new court. I will come to that. It is one of these balancing acts, I suppose.

My primary concern is that the new court will require a lot of organisational change. I know that the Government will say, “Well, we’re not going to do it all at once”—of course it is not, and I think that it is important to hear the cabinet secretary’s comments as to how that change is going to be achieved. Nevertheless, there are many problems to be solved, of which the Government is aware.

One such problem to be solved is what happens in relation to rights of audience. At present, rape and murder must be prosecuted in the High Court; those cases cannot go to any other court. Any serious sexual offences that would be likely to attract more than a five-year sentence would also usually go to the High Court, but the Crown has the discretion to send those cases to the sheriff court.

In the High Court, certain things are determined. There are rights of audience for advocates, and the High Court has its own procedures, preliminary hearings and so on. The Government accepts, and it will speak to this in relation to the amendment, that rights of audience would have to be amended to ensure that we do not downgrade—I am sorry for using that word; I am not sure which word should be used—rape cases in particular. It is still important that there are the same senior prosecutors and that the accused has the right to be represented by an advocate or solicitor advocate, as is currently the case. I am pleased that the Government has now tried to address that. However, the Law Society of Scotland has said that it has not addressed all the points, so that is something that could be sorted out at stage 3.

My amendments seek to go about this in a different way, which I believe can be done. On the question of specialism, we can legislate for trauma-informed practice regardless. We could still have all the features of a different structure, and still compel all those who sit in the court to practice or make decisions to be trauma informed.

However, I think that the easiest way in which to resolve the outstanding questions of rights of audience, where cases are prosecuted and so on would be to create a division of the High Court that would be a specialist court on sexual offences, and a division of the sheriff court. We have done that for drugs courts and for domestic violence. Those courts were created without legislation—however, we can do it by legislation. I think that that would be the easiest, and the best, way to tackle the question of delay and to keep the status of very serious crimes as it is. That is what my amendments seek to do.

In conclusion, it is important to have the discussion. If we vote for a change to create a large court, we really need to be satisfied that it is going to do what it says. The system will require a lot of reorganisation, and it will look different from the current court system. If we are interested in balance and ensuring fairness for victims and accused persons, we need to ensure that we get it right.

If this part of the bill is passed, I think that we will be partially getting to the point at which the system could look right, but we would want to make sure, at stage 3, that we have not altered the balance of who is represented in court, and that we ultimately allow courts to make the right decisions and, importantly, ensure that the constant delays that victims see in our court system begin to reduce substantially.

Yes. The High Court could have a division that specialises in sexual offences. Of course, probably two thirds of judges’ cases are sexual offences cases. The sheriff court could also create such a division. The sheriff court is a large court as it is.

My concern with the approach in the bill is that all solemn cases would go to a single court. With the level of change that will be involved, I am not convinced that delays will lessen. That is my fear.

I move amendment 76.