Chamber and committees

I have dealt with many families who felt similarly about murder trials, in that they had the same feeling of exclusion. That is not particular to rape trials.

We have heard the Lord Advocate say that she is very particular about changing the practice, and I see a drive behind that. That is good. However, Lord Advocates change and, in time, another Lord Advocate may take a stricter view about access to ADs and so on.

I will leave you with this thought. Is there any way in which you could enshrine that right of access to advocate deputes in some way? I do not need an answer to that just now, but this worries me: we are beginning to see chinks of light, which is really good, but that needs to continue—and the law is a tool. I was just wondering if you could consider how we could hang on to that right.

Thank you.

That is helpful. We have to be open to that idea, since the Lord Advocate mentioned it, but I would have concerns about a provision that was wide in scope and gave the courts the power to decide. I would be more comfortable if you were thinking about a provision that was more tightly drawn in terms of criteria for the Crown.

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.