Chamber and committees

I appreciate that you were not on the committee, but a couple of things came out in evidence in relation to the English judicial system. That system involves 12 jurors agreeing unanimously, or, with the agreement of the judge, it can go down to 10. However, there are at least two aspects that we are aware of that are different. One is the ability to have a retrial, and the other is the way in which cases are prosecuted in England and Wales.

That is why we cannot compare convictions. In Scotland, as long as the Crown is satisfied that it can provide evidence for a prosecution, it will proceed, whereas that is not the basis of English prosecutions, which are based on the chance of success. That is the conundrum for everyone. Even if you look at New Zealand, Australia or other jurisdictions, you realise that Scotland is unique. I totally understand where you are coming from, but those are two points that stuck in my mind.

Fundamentally, I agree with the Government that there needs to be a significant shift in the way that we deal with sexual offences cases. Those cases are predominantly what the High Court is dealing with now, and the situation is alarming, with the rate of sexual offences against women and girls going up, not down. The Government has, commendably, already put in place many measures in relation to the issue, and I think that Parliament as a whole is pretty united on the fact that the issue has to be a primary focus not just of legislation but of practice and resources.

Sometimes, achieving change does not require legislation, as some things can be done without it. However, we are faced with a proposal in the bill to create a new sexual offences court.

My first concern about the idea of putting all solemn cases in a single court is that that will create an extremely large court. There is a bit of an unknown here. I accept that, in the proposal to create that new court, to give it additional sentencing powers and to allow sheriffs to sit in that court—approved by the Lord President, obviously—there is an attempt to do something different and to try to address the delays that exist, which affect too many victims of sexual assault. However, I have a concern that what is a significant change in the court system might not achieve what the Government has set out to achieve, because of the volume of cases that would probably be in the new court.

I am concerned about the cost of such a large court and the ability to ensure that it runs smoothly. I acknowledge that the court can sit in many places—I think that up to 38 courts could be used.

I have a slight concern that, depending on how the new court operates, it could look like there would be a downgrading of the status of rape as a crime. At the moment, because it is one of the most serious crimes that can be committed under Scots law, it therefore goes to the highest court. I maintain that the High Court will still be the highest court and, although the new court could be a significant court with the power to impose long sentences, it will not be the High Court. The High Court is a feature of the Scotland Act 1998; it is a requirement under that act to have a High Court, and it is the highest court, although, obviously, there is an appeal court as well.

I suppose that we might be satisfied that, in order to get the delay down, it is worth using sheriffs and changing the structure, but I cannot pretend that I do not have concerns about how rape cases not going to the High Court might be seen.

Also, because we have been so busy considering the proposal for the new court, we have not had time for much discussion about what happens to the High Court. The figures show that sexual offences cases make up just under 70 per cent of High Court cases, which means that, if the proposal is agreed to, only 30 per cent of the current volume of cases will be in the High Court.

We are all in the same position. Does the member agree that it is a shot in the dark? We take one position or another and point to certain research that says certain things, but we do not know what we are doing for sure. I put the same question to Liam Kerr. Would it not be better to try to understand exactly what we might be doing or to have some insight into how juries arrive at their majorities at the moment by asking them over a period, during which we lift the restriction in the Contempt of Court Act 1981? That would allow a future Parliament to review whether a majority of 10 to five is indeed the right balance.

Thank you.

The increased duration of some placements as a result of the increased sentenced and remand populations is welcome. Will the minister outline whether appropriate mental health support will be given to children who might be awaiting proceedings or trial? In relation to young people who reach the age of 19 and who are in the criminal justice system, has any assessment been made of what support they might need to transition to a young offenders institution?

We can come to that. The member will certainly not contradict me on the fact that the issue is not in the bill at the moment. That is why we did not take evidence on it.

Just to be clear, I support pretty much all that Jamie Greene has just said. However, as somebody who is here to scrutinise, I would like to have heard evidence from, or even had the chance to talk to, the Parole Board. That is my only issue here.

I did not design the bill—the Government designed the bill—so this is where we are. The bill is too big, which makes stage 2 more difficult. The committee has successfully argued for more time—you will see that—and I am very supportive of the amendments and will not vote against them today. I will hear what the cabinet secretary has to say, because there is an awful lot of merit in what Jamie Greene is saying.

Has he had any discussions with the Parole Board? Is there anything that he could help the committee with? The matter will be out of the committee’s hands after today, and it will be for the full Parliament to scrutinise it. If we are going to make a decision at stage 3, getting as much information as possible would be helpful.

I was not able to attend it, but committee members attended a private meeting at which the issue was raised. Given its importance and the detail that Jamie Greene has gone through, it strikes me that it exposes the need for something to have been included in the bill in the first place. Jamie Greene is speaking to a theme that is similar to one that the committee has been dealing with, which is the trauma that victims experience in the criminal justice system.

There seems to be an omission in the bill. Jamie Greene will not be surprised that I am going to say that it would be difficult to make a judgment on whether this is the right thing to do without having heard from the Parole Board for Scotland, which the committee has had no contact with on this. Maybe, in summing up, Jamie could say whether he has had any discussions with the Parole Board. I am not familiar with the full processes of what the Parole Board does or does not do.

In my opinion, it exposes the failures of the stage 2 process as a whole that we are so bound by the Scotland Act 1998, and I believe that some committees in the Parliament are giving thought to how to change that. However, this is a good example of a really big issue that is not included in the bill, and we cannot easily take evidence before stage 3 on something that has now proved to be really important.

Finally, since we started dealing with the bill, it has been my opinion that it is far too big. Regardless of our positions on the issues, the committee members will probably testify that there are huge issues contained in this single bill. If we wanted to focus on victims and trauma, I would have thought that there was a case for having a bill on that issue alone and leaving some of the other issues to be dealt with separately.

My quick contribution is to say that, similarly, I am very sympathetic to the subject matter that Pam Gosal, Sharon Dowey and Maggie Chapman have brought to the committee, and I am very grateful to them for doing so.

I think that I am right in saying that the Parliament—in fact, a former Justice Committee—addressed the question of how costly it is to obtain a non-harassment order in the civil courts and said that we need to do more to ensure that, where necessary, the courts could impose them of their own volition. However, we have not made the progress that we should have made. Many women do not even qualify for legal aid—because some benefits are taken into account in that consideration, they lose out.

The principle is definitely right that the court can impose non-harassment orders in cases where things are clear, such as in domestic abuse or sexual offence cases.

I will listen to what the cabinet secretary has to say before deciding on how to vote. I just wanted those members to know that I really appreciate their lodging their amendments and that I am very sympathetic to the subject matter.

The amendments in this group are giving me a bit more cause for concern. It is not that I disagree that remorse should be taken into account, but the amendments are as much to do with the release of prisoners as they are about victims. Again, we have not had much opportunity to understand the whole basis on which prisoners are released, other than that they have the opportunity, once they have served either 50 per cent or two thirds of their sentence, to go to the Parole Board.

Do you happen to know whether remorse is a consideration at the moment? I presume that orders for lifelong restriction do not go through the same process, so they will not be included. I just do not know the answer to that question. I would be surprised if there were no passing discussion, at least, with the Parole Board as to whether remorse was a factor. I know that, in relation to orders for lifelong restriction, psychological reports will be drawn up in which remorse is a factor, because what is being considered is not only the risk to victims but the wider risk to communities. There could be a risk of harm to a victim, to more than one victim or to communities. That is, I imagine, a different consideration, although it is still a question of safety, risk and all the rest of it.

I think that you can see where I am going with this. There is a lot of complexity to the debate. If the Government is going to come back on this at stage 3, as I think it will be doing on the other amendments, I will be content with that. However, I feel that there is much more to the issue than the impact on victims; it is about the whole mechanism and process of release for prisoners. To be honest, it surprises me that the amendment was allowed, because it is about the release of prisoners. However, it would be helpful to know if that is already a consideration by the Parole Board.

This is a long intervention.