Chamber and committees

There has not been a change of heart. I am arguing that there can still be specialism and trauma-informed practice. I will go on to talk about and welcome some of the fundamental changes that the Government has made, with the Lord Advocate contributing to those. There is no contradiction between the Labour manifesto and what I am arguing for. I am simply saying that the structure should be the High Court, a specialist division of the High Court and a specialist division of the sheriff court. That is what I am arguing for today. Putting all solemn cases—sheriff and jury—that deal with sexual offences, including solemn cases that are currently heard in the sheriff court, into one court will create a very large court. We need to be satisfied that, in doing that, we will achieve a reduction and get those delays in court proceedings reduced. The volume of cases is potentially a problem.

We have already heard that witnesses and victims can give their evidence via commission. The Government has championed that, which I totally applaud. We have already taken steps to change the court system. Tackling rape myths, which juries are told to sign up to, is now part of the judge’s direction to a jury. We are beginning to make incremental change in the system. The rule on corroboration has been changed, which affects all cases, not just sexual offences cases, and trauma-informed practice can be applied to any court. I do not think that the bill currently requires the defence to do that, but all practitioners must be able to do so.

When we are looking at how a court system fits together, it is very important to address all the problems. We know from debates in the Parliament that one of the big issues that has not been addressed is the number of defence practitioners who are leaving the profession. If we do not address the gap in relation to lawyers leaving the criminal justice profession, we will not be able to run any court, whether it introduces my proposal or the Government’s proposal. The Law Society and the Scottish Bar Association will tell you that recent audits suggest that we have 250 lawyers in the whole of Scotland.

Sheriffs sitting in the High Court as temporary judges are acting as High Court judges in all cases. Sheriffs who are appointed as judges in the sexual offences court will be exercising the powers of maximum sentencing. There is a difference there, and, whether members support the proposal or not, it is important to understand some of the structural changes and make some assessment of whether they are the right changes. More sheriffs will be appointed to the sexual offences court, but they will not be new ones. They will not be additional ones, but they will preside over cases.

It slightly concerns me that rape cases will be taken out of the High Court. In speaking to another amendment, I will address the question whether it is right that High Court judges should not preside over rape cases, which they currently do. That begs the question of what the High Court will do if all those cases are taken out, but there was not really any examination of that. As members will, I am sure, hear in the debate tomorrow, the committee had to wrestle with big, fundamental issues, which the Parliament is having to wrestle with now, such as the removal of the not proven verdict and the creation of a new court—there is a lot of fundamental reform in this—but we have not really addressed what will happen to the High Court if all those cases are moved out. It may be a minor issue, but, at the end of the day, we should have the chance to consider the impact.

The new court will not be a new facility. It is not as though we are creating a new sexual offences court; it will be the same courts that we already have. It is important to note that there will be no new facility. I concede that, under the Government’s proposal, because sheriffs are interchangeable in rape cases, more courts might able to be used than under my proposal, but some of it will be limited by geography. We would not use all 38 courts that we have in the sheriff courts system, because we would not want a victim to have to go to Inverness if they were a victim of a crime in Glasgow. There will still be limitations on which courts can be used. Crucially, that issue should have been given much more consideration than it got.

If nothing else, it is really important to test this. A lot of resource will be put into making this fundamental change. We have to make sure that it is right, but I think that we are all committed to making that transformation and fundamental change. I certainly am.

I move amendment 109.

I think that I have demonstrated, in the Parliament, that I share the view that the cabinet secretary expressed in her last comments about how the system has failed women and girls and how much work we have still to do.

What we are debating now, however, is whether the Government’s proposal for a stand-alone sexual offences court will do all that the Government claims that it will do, and whether it is the only way, or the best way, in which to proceed.

We are already not standing still. We have already discussed giving evidence by commission. The current Lord Advocate has done more, during my career, to look after victims than was previously the case. Those victims have given evidence to the Criminal Justice Committee to say that this is the only Lord Advocate under whom they have been able to sit down with their advocate and talk about their case. I would argue that such a single point of contact should be a statutory requirement. Victims talk about all these things—for example, how they are not told about their case, or are told not to talk to their advocate depute. Change is already happening, regardless of whether we pass the bill.

However, there is no guarantee that all aspects of the proposal will work. I agree whole-heartedly with the unique emphasis on embedding a trauma-informed approach, but a stand-alone court is not the only way in which that can be done. I do not fully understand why the proposal would reduce the number of court adjournments. We are always reforming the court system. It is unfair to say that we would be supporting the status quo: the status quo is already changing, for the reasons that I have already said.

I do not think that the Government has demonstrated how delays will be reduced—it has made a series of statements about its ambitions, but there is nothing concrete about how it will reduce delay. I do not think that that has been demonstrated.

I agree that it is important that there is consistency of treatment for victims, but I do not see how this is the only way to achieve it. I accept that one way forward is to change the structure of the way that we do things, but it has got to be acknowledged that we might lose something. Rape is one of the most serious crimes that can be committed, and rape cases would no longer be heard in the High Court of Justiciary; they would be heard in the sexual offences court. There is, perhaps, an argument that reducing the delay would compensate for that. However, I do not accept that the Government has demonstrated all of what it claims.

There are nine High Court locations. My proposal would create a specialist division—those nine locations would be available for a specialist court. If there were a specialist division of the sheriff court, there are 38 sheriff courts that could be used. I do not understand the Government’s argument that somehow, under my proposal, there would be fewer locations. I have already considered the differences that there would be if the sheriff courts were to be used; that is not included in my proposal.

I will press amendment 109. It has the support of the Faculty of Advocates. We do not all agree on everything, but you cannot suggest that there are not some legal minds who think that the approach set out in amendment 109 is the best way.

My worry about the proposed court is that we will spend so much time and resource on a bureaucratic change that we will not get the delays down. The question of who the practitioners will be has not been addressed by the Government.

I press amendment 109.

If it is helpful to know, Presiding Officer, I do not intend to move any of the consequential amendments.

I do not have much to add, but I want to make one point in relation to the appointment of sheriffs. However you view this, it is important to note that there is a distinction. Sheriffs who are appointed to the High Court as temporary judges sit as High Court judges, and they will sit in rape and murder cases; sheriffs who are appointed to the new sexual offences court will not sit as High Court judges, so if they sit in a rape case they will sit as a sheriff. I point out that difference because the two are not the same.

It was the senators of the College of Justice who raised the question where murder should be tried. Their view was that murder should continue to be tried as the most serious offence in the High Court of Justiciary. I still have some concerns about completely taking down a system that has served some purpose, for reasons that I am not too clear about. That is the point that the senators made: why would you do it? The power will not really be used. However, the Government has set out its arguments against the amendment.

With that, I will press amendment 114.

I am happy to come back to Nicola Sturgeon when I am summing up, if she wishes.

In a similar vein, I am not comfortable with amendment 55. I think that it is more than technical. I listened to what the cabinet secretary said and I am trying to understand it. My understanding of what has been said is that a person cannot be convicted on docket evidence but that it can be used as corroboration. However, I am not wholly sure what that means in reality, because I have not had a chance to test it. It might be fairly straightforward, but it might not be. It seems that Jamie Greene is right. Is there another way of doing this that would allow us a chance to understand it, first of all, and then to understand its implications? What would be the detriment if we did not agree to the amendment?

Liam Kerr is quite right: the operation of sections 274 and 275 of the 1995 act is currently being considered by the Supreme Court in Daly v HMA. From what I know of that case, it seems to fall outwith the boundaries of what that act set out to do.

I am not clear why amendment 55 has appeared at this stage, or why the Government has lodged it now. Has something happened? Is it just a case of the Government saying, “All right—we’ll tag this on because we can”? I am not comfortable with the amendment, because there has been no discussion or understanding of it. I do not even know what docket evidence is, to be honest, not being a practitioner. I would have liked a chance to try to understand it. I appreciate that it might be straightforward, in which case I would not want to stand in the way of the Government doing something that needs to be done. That is how I feel right now. Jamie Greene made that point as well.

What I do understand about docket evidence is that, rightly or wrongly, it cannot be cross-examined. That is the concern of the Scottish Solicitors Bar Association. It is not saying that it is the most outrageous thing or that it is really problematic, but it is saying that that evidence cannot be cross-examined, and we do not know whether that is fair or unfair. We do not know whether it is a simple matter or not.

The Government needs to give us some understanding of why it was necessary to lodge the amendment now and why it could not have been lodged at stage 2. If it had done that, we would at least have had time to consider the matter between stages 2 and 3. I know that the Government is under the same pressure as we are, to some extent, given the timescales that we are all bound by, but this has happened so quickly. When we are looking at amendments, we have to go back and check all the letters that the Government has sent us to clarify the position, and it is a lot of work. It is problematic that the amendment was thrown in at stage 3 and I would like to hear the justification for that.

Amendments 1 and 2 expand the reporting requirements in section 66A. I thank the Government for working with me on the amendments.

At stage 2, I highlighted the importance of the Parliament maintaining the power of scrutiny of the law on corroboration, which the courts may continue to develop. On 30 October 2024, the High Court of Justiciary published an appeal judgment about how corroboration is used in Scottish criminal trials. The judgment was published after the Lord Advocate had asked the court to review how corroboration is used and the specific requirements for corroboration in sexual offence cases.

The judgment sets out that, from now on, although corroboration is still required, there is

“no requirement to prove the separate elements of a crime by corroborated evidence.”

The change means that

“distress which was observed by a third party ... could corroborate a complainer’s account”

that they had been raped. Penetration does not need to be corroborated separately. Rape Crisis Scotland said that the judgment was

“a seismic change in the approach to corroboration in sexual offence cases in Scotland”.

Currently, section 66A requires the Scottish ministers to undertake two reviews of the operation of the bill once it has been enacted. The first review must be concluded as soon as reasonably practicable, five years after royal assent; the second must be conducted five years after the first review. Ministers must prepare a report on each review, which they must publish and lay in the Scottish Parliament. Amendments 1 and 2 require each report to also set out any changes to the law relating to corroboration that have taken place during the review period.

I move amendment 1.

I do not intend to press the amendment. In some of her contribution, Christine Grahame has demonstrated why it is still worth having this debate, however. she is absolutely right. Depending on whom we speak to, we will get a different answer. When the Lord Advocate gave evidence to the Criminal Justice Committee, she said that it would be harder to get a conviction. Others think differently.

I wholly appreciate where the Government was coming from: it tried to maintain the balance, if we can achieve such a thing. The bill was published with 12 jurors, and the conviction would be on eight jurors; now, we have 15 jurors. It is probably right for the Government to decide that, but it must be noted that Scotland will still be an outlier. That is one of the arguments about not proven, and members should bear that in mind when voting on the bill tomorrow. I am comfortable with it, because there are many differences between the criminal justice system in Scotland and the English system and those in other jurisdictions. Our system has grown over many years, but it has to be modernised—I totally accept that.

It was our position that we should remove the not proven verdict. If I remember rightly, it was first attempted by Michael McMahon, who had a member’s bill on the issue in an earlier session of Parliament. I am sure that, if he is listening, he will be pleased about it finally happening. We do not know what will happen.

To conclude, I hope that the cabinet secretary agrees that a future Parliament needs to have a look at jurors and how valued they should be. Not much work has been done on that. We have talked about juries and jury myths and everything that is expected of juries. Without juries, we cannot run our criminal justice system. If members have spoken to anyone who has served on a jury, they will know that there is a lot of negative feedback about serving as a juror. It is maybe work for a future Government to recognise the importance and value of our jurors.

I will not press amendment 157.

Amendment 157, by agreement, withdrawn.

Schedule 1—The Office of Victims and Witnesses Commissioner for Scotland

Amendment 58 moved—[Angela Constance]—and agreed to.

After schedule 2

Amendments 94 and 95 moved—[Siobhian Brown]—and agreed to.

Schedule 3—Sexual Offences

Amendment 158 not moved.

Schedule 4—Minor and Consequential Modifications

Amendments 159 and 160 not moved.

Long Title

Amendments 161 to 164 moved—[Angela Constance]—and agreed to.

Amendment 165 moved—[Rona Mackay]—and agreed to.

On a point of order, Presiding Officer. I had technical problems. I would have voted yes.

Yes, of course I will.