Chamber and committees

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 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?

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.