Chamber and committees

I would be grateful for that, because the issue is giving me cause for concern. I am happy to leave it there.

Thank you.

Lastly, I go back to Russell Findlay’s question on a point that the Lord Advocate raised with the committee. In cases in which there was a seven-to-five majority, there would be no conviction. That is what you are legislating for. On the question of whether the Crown should have the right to a retrial, you said that you might look at the double-jeopardy provisions. Are you prepared to give an assurance that any amendments at stage 2—I suppose that that is what we are talking about—will take into consideration that any right of the Crown, if that is the direction of travel that you choose, should be clearly set out in the legislation?

What I am getting at is that, although I think that the Lord Advocate made a fair point, we have to consider that a future Lord Advocate might take a different approach. The Parliament should not give away powers lightly. If the Parliament, in legislating for the provisions in the bill, feels that some allowance should be made for the Crown to move to a retrial, that should not be a wide provision. I would be deeply concerned if the Parliament did not have the final say on that, because it cannot be divorced from what we are looking at right now. Can you give me an assurance that, if you were looking at such an approach, you would ensure that it was based on a parliamentary decision? Does that make sense?

To be fair, in my assessment, even those who support its retention realise that there is a consensus that we must move on from it. I am trying to understand how we then get a consensus on another thing if we remove that verdict. Am I correct in saying that you have put on the record that the purpose of the reform is not to increase conviction rates per se?

You have probably heard me ask questions about rights of audience, and that concern about a change to the rights of audience is shared by the senators. Forgive me, because, as a layperson, I am trying to fully understand this:

“Despite the restriction in relation to rape and murder, the types of cases where a solicitor would be able to represent the accused in the Sexual Offences Court could include ones which are currently prosecuted in the High Court. Thus allowing solicitors to represent an accused in a broader range of serious cases.”

The bill will allow that to change so that a procurator fiscal depute cannot prosecute. That is in section 47(6). For some offences, rape and murder excluded, there will be a change to the rights of audience.

Surely you must realise that that will be seen as lowering the status of the court. We have the rules for a reason. We have had years of differences between advocates and solicitor advocates and who can represent an accused person who faces eight or nine years in jail. Did that proposed change come about by deliberate provision or accident?

I agree 100 per cent with the cabinet secretary about the need for change and I am with the Government on what it is trying to achieve. However, among some of the things that survivors and complainers have said would make a difference, we have aired the difference that independent legal representation might make to complainers who have felt that their voice is not heard at the preliminary stage and that there is no one to defend their interests. I therefore welcome what the cabinet secretary said.

A lot has been said in evidence and at our round-table sessions about the notion of a single point of contact. In my mind, changing practice is probably as important as changing the law. We have heard positive stories, and a lot of horrific stories, and the positive ones seem to turn on those complainers getting proper access to their advocate depute and understanding how the trial will be run. I realise that there is only so far you can go with the matter, but a lot of victims say, “I did not get to tell my story in court. I do not understand why the advocate depute did not ask me what I thought was a critical question.” I am sure that there are good reasons for that.

Are you willing to explore changing the experience for all complainers and victims? How can we ensure that every victim gets access to their advocate depute before the trial?

Having a single point of contact has a lot to do with changes to court venues and other practical things, such as where and when someone’s case will be heard. As for the relationship with an independent legal practitioner, perhaps someone who is legally qualified is the best person to be that single point of contact, as they know the court process.

You referred to research—did you say “meta-analysis”?

Well, it is my understanding.

I am sorry to challenge you on that, but there would be a diminution. Cases that go to the High Court attract rights of audience for advocates and solicitor advocates. However, the Scottish Parliament information centre briefing is clear that, because the sexual offences court would not be the High Court, it would be possible for solicitors, who currently cannot represent accused in certain categories of case, to represent them in those cases. I do not understand why you would have legislated in that way.

I am sorry, but I think that Andrew Baird just said that, for reasons of workload, you have allowed for solicitors to represent cases where previously there would have been counsel. Have I understood that?

When you decide when to run the pilot and for how long, will you be absolutely certain that cases in which an accused person is convicted in a single-judge trial under a pilot—which I do not think is a great word; witnesses have mentioned that these are real cases, so it is not really a pilot, per se—will not be appealed on some human rights grounds? For example, if a pilot were to run for a year, other people would be tried for the same crimes with a jury either side of that year.