Chamber and committees

I thank the cabinet secretary for working with me on the corroboration issue. I did not say this from the outset, but it is important to review the interaction between the new provisions to remove the not proven verdict and the very fine balance of the new jury size. It is important to continue to review the different elements and, as corroboration is a significant part of the process, that was one reason why I felt that it should be reviewed.

Amendment 1 agreed to.

Amendment 2 moved—[Pauline McNeill]—and agreed to.

Amendment 153 moved—[Katy Clark]—and agreed to.

Amendment 154 not moved.

Amendments 155 and 156 moved—[Katy Clark]—and agreed to.

Section 71—Commencement

I will take one in a minute; let me just develop the argument.

There will be no additional sheriffs. There will be the same number of sheriffs and judges—there is no suggestion that new members of the judiciary will be appointed.

The Law Society of Scotland supports the division of existing courts, which is what my amendments seek. The society said:

“We consider that the new court will create more complexity in the system, affecting the efficiency of criminal proceedings in cases of sexual offences. ... While we appreciate the efforts made by the Scottish Government in addressing some of the concerns expressed at earlier stages, we are still unconvinced that a standalone court is needed. We have expressed our support to the creation of specialist divisions within the current court structure. We therefore support amendment 109 and consequential amendments 112 to 160 introduced by Pauline McNeill MSP”.

To answer the question that Nicola Sturgeon raises about culture change, I note that I am still arguing that there should be culture change. However, creating specialist divisions in the existing court structures would be the easiest and most efficient way of achieving that.

Amendment 114 would ensure that cases dealing with the crime of murder may not be heard in the sexual offences court. The Law Society said:

“Amendment 114 in the name of Ms McNeill maintains the jurisdiction of the High Court of Justiciary for charges of murder. We consider this is a sensible approach if a standalone court is introduced and we are supportive of this amendment.”

The senators of the College of Justice said that murder should only ever be tried in the High Court and that

“the anecdotal nature of para 280”

of the policy memorandum

“gives no confidence that this major constitutional change has been thought through properly.”

Paragraph 280 of the policy memorandum says:

“There are known cases in which sexual abuse perpetrated by an accused is alleged to have escalated over time, against multiple complainers, ultimately leading to a murder. Given the experience of the surviving complainers and the nature of their evidence ... the policy objective is to afford those complainers the benefits of the case being prosecuted in the Sexual Offences Court.”

The senators say:

“While this is undoubtedly true, there are not many such cases and the anecdotal nature of para 280 gives no confidence that this major constitutional change has been thought through properly. The appropriate place for charges of murder and attempted murder is the High Court. Murder is the most serious charge in the criminal canon. It is that charge which should determine the forum. The suggested change ignores the fact that in the very few cases where sexual offences are alleged against a surviving complainer, it is likely that the case will be tried before a judge who is also a judge of the sexual offences court and that most if not all of the benefits of that court will be able to be afforded to such a complainer.

We remain firmly of the view that life imprisonment and OLRs should be the exclusive province of the High Court.”

Amendment 115 would have the effect of ensuring that only a judge from the High Court, the Lord Justice General, or the Lord Justice Clerk could try a case that involves the offence of rape. The Law Society has also expressed support for that amendment, saying:

“We also consider appropriate that when a charge of rape is tried before the Sexual Offences Court, at least one of the Judges should hold a relevant high judicial office. This seems to be consistent with Section 3(6) of the 1995 Act.”

Amendment 123 would require the president of the sexual offences court to prepare a plan that ensures that the new court is operating efficiently and to keep the plan under review and revise it when necessary. Part of Lady Dorrian’s rationale for recommending the creation of a specialist court was to ensure that cases would be disposed of more quickly than they are currently. She said that the court would be

“essential to meet the increased workload”

in sexual offence cases, because the number of such cases has risen dramatically in recent years.

I have expressed concerns about whether simply saying that the new sexual offences courts could reduce delay will, in fact, mean that they do so. Should the bill pass, I hope that the Government will give due consideration to setting out a plan that we can see.

Amendment 127 is a consequential amendment that would remove the offences of murder and attempted murder from the part of the bill that sets out when solicitors have rights of audience in the sexual offences court, because that would no longer be required.

I move amendment 114.

Amendment 157 would ensure that specific training is given to judges, sheriffs principal, sheriffs and members of staff in the Scottish Courts and Tribunals Service before the change in the jury size comes into effect. I am pretty certain that the Government will oppose the amendment.

I just want to be honest with members. It is half past 8 in the evening and members are tired. It has been a long day for everyone. However, I want to draw to members’ attention an issue in the bill that the Government and the Criminal Justice Committee have wrestled with: despite widespread agreement on the removal of the not proven verdict, there was widespread disagreement on the size of the jury. If I had not lodged amendment 157, that would not have been mentioned at all at stage 3, although I am sure that we will debate it tomorrow.

Saying that there should be training may not be the right way forward, but it should certainly be recognised that, if the bill is passed, we will have a fundamentally different jury system, and we will not know whether that is for better or worse until the bill is enacted. The Government moved from a jury size of 12 to a jury size of 15 with a majority of 10. Not everyone agreed with that. It is important to highlight that, and there should be some way for the Government to mark how it will be taken forward.

The bill is massive and the Government has set out its timescale for when it will enact which aspects. In doing so, it has to recognise that juries will come to their decisions in different numbers and in a different way. I do not plan to press amendment 157 but, if I had not lodged it, there would have been no debate on something that has taken a long time to come to pass and is very significant.

I move amendment 157.

I speak in support of amendment 83 and the work that Audrey Nicoll has done on the matter. As she has said, Jamie Greene and I supported her on access to transcripts being extended, for the reasons that she has set out.

In the course of the committee’s work, victims have often told us that they do not feel at the centre of a process in which they are the complainer. Being able to read back what happened in a trial where they were at the centre is very important for the recovery process.

I fully commend the cabinet secretary and the Scottish Government for taking this bold step, and I am absolutely certain that complainers and those who came to the committee to argue for the measure will be delighted if the Parliament agrees to the amendment.

If we did not know it before this inquiry, we certainly know now how hard it is to be a prison officer and the dedication that is needed, especially now that our prisons are overcrowded. I just wanted to put that on the record.

Your submission talks about the exposure of your members—prison staff—to vapes and drugs. That is an aspect of the job that we must now take into account in this inquiry. Is that affecting your ability to attract young people—or those who want to change careers—into the service?

That was really helpful. There are others in the public sector—the police, for example—who do a difficult job on the street, but the closed environment of a prison is unique, and it is important to say that.

Lastly, when someone has been terrorised, do they tend to come to the union for support?

Is there any internal guidance that is used to perhaps spot somebody who might be under pressure?

Detective Chief Superintendent Higgins, do you want to add anything from a police perspective?

What I am driving at is that overcrowding is one of the central issues in managing all the pressures that you have mentioned to the committee. I accept that the provision of more prison places does not mean to say that the problem will be solved, but I hope that it will give more scope for less overcrowding and doubling up. Jim, can you answer that?