Chamber and committees

Good morning; I apologise for being late.

This question follows on from Katy Clark’s line of questioning. I am trying to apply this to an adversarial court system. What you said about preparation of witnesses and victims makes perfect sense, because we need to have a system that brings out what they have to say. We hear all the time from victims that they did not feel that they had a voice. However, I am interested in applying what you are saying to the court situation, where there are practitioners—the prosecution, the defence and the judge—who should be trauma informed. Is it your expectation that everyone should treat every witness who comes to court in the same way? A prosecutor will not know whether the person had adverse childhood experiences, and some people will not have. Is it your view that a trauma-informed approach should be applied regardless of the circumstances?

This has just crossed my mind and you will probably not be able to answer it, but up until now, a trauma-informed approach has not been embedded in the system. However, juries—in cases in which there is a jury—have to make a determination based on what they see in court. Is there any evidence at all that you have come across in relation to juries and trauma? You will probably not have spoken to jurors, but do you agree that it is important to establish what the situation is in that regard? Ordinary people in juries watch the proceedings, and I would have thought that they would be able to read a person’s body language. Would people really need to be trained or could they see for themselves? Have you considered the reaction of juries?

It has struck me that, if we are being honest, successive Governments and Parliaments have tried to get a shift into community justice. That is my view.

We do not have time for you to answer my question, so perhaps you could follow it up with the committee. It would be helpful for our report, given the good evidence that we have had from you. First, what exact numbers are you dealing with? We do not have any sense of that. Secondly, and to wrap up, what I am hearing is that if you had even £250,000 or £500,000 more, you could do something with that. To quote Bill Fitzpatrick, you should not be given a penny more until you can justify it. I agree with that because public and judiciary confidence are essential to move it forward.

Could you follow up with the committee on the numbers and also give us some indication of whether, if you had the additional budget, you could hit the ground running with the things that would give the public and judiciary confidence that, instead of sentencing people to prison, they can sentence them to community services?

Anyone who has ever appeared in court as a witness will probably have found it quite a traumatic experience. From what you have described, nothing is black and white, and questions can be confusing. Is there a way of drawing a distinction? To me as a layperson, there are people who have had trauma in their lives, there is the trauma of someone who is the victim in the case—the trauma that that person experienced that has to come out—and there is the court experience, which can itself be traumatic. Would you agree that there are different elements to be considered?

You certainly convinced me. You answered a lot of practical questions for me. That is where my line of questioning comes from—trying to apply all this to a system that, as John Watt said, is not the same, in that you all do different things.

My first question is to Laura Buchan from the Crown Office. David Fraser said that we have a court system with limited capacity to prevent what victims always complain about, which is the trauma of bumping into the person they have accused. I have had this conversation with the Lord Advocate at least once: the trauma of victims trying to find out where their cases are is a significant factor. I support all that has been said, but I am a bit concerned that we do not fix the things that are causing lots of trauma. As I said to the earlier panel, I am a layperson trying to understand that there is the trauma that people have had in their lives before they were offended against, there is the trauma of people who have been offended against and there is the trauma of what the system is doing to them. Can anything be done to make the information from the Crown easier to access?

What do you mean by “gateway”? In simple terms, if you are a victim of crime, or even a witness who has been called, should you not be able to call someone easily, get through and ask where your case is likely to be in the pipeline? Is that fair?

Thank you.

We have the pilot, which is welcome. Russell Findlay is quite right to say that we need to make sure, if we proceed with the pilot and assess it, that the process is easy and accessible.

There was coverage of the issue this morning on BBC Scotland, which quoted the figure of £100 an hour for obtaining a transcript of Scottish court proceedings. If the courts are transcribing court cases, which I presume they do for the purposes of recording and publishing proceedings and appeal processes, I do not understand why there is not a simpler process for making those transcripts available. There is a question about whether that is desirable, but that is a thought that struck me. Perhaps the committee might want to think about getting an answer to that during the assessment of the pilot.

My apologies to everyone for being late. Feel free to stop me if I have this wrong on part 1, because there is a little bit of crossover, but I understand how we are doing this.

On the question of the establishment of a commissioner, it strikes me that what you might be setting out are the arguments for and against a commissioner as against some of the inadequacies in the system for the rights of victims and complainers to know what is going on. You said, I think in answer to Sharon Dowey, that the bill does not really give any rights. Is it a question of creating a victims commissioner that would not take on individual cases but could investigate certain matters as against giving complainers the legal right to know what is going on with their cases? Might that be a better alternative, if you see where I am going with this? That is the way I see it. Would the money be better spent in giving those rights? Do you think that we should put a duty in the bill to provide information to complainers and victims about the status of their case?

I will just finish on this. In previous sessions, the Law Society and the legal profession have pointed out in relation to the delays that it is impossible even for practitioners to know when their case will be called. There is no transparency around whether a case will be called in time or whether powers will be used under the Covid legislation. I understand, having questioned the Scottish Courts and Tribunals Service on this, that it will be down to the availability of counsel and courts. I am not suggesting that one case is being preferred over another, but I am clear in my own mind that currently, as the delay gets less, there is still no transparency around when cases are called.

Fundamentally, my focus is on giving victims better rights to know when their court case will be heard. Do you see that as a question of a victims commissioner versus other things that we could do in the bill to make that better? I am sorry that question was so long.

My points might have been covered by what Stuart Munro said about the changes in the system. I will follow on from Rona Mackay’s line of questioning. I agree with her that we have heard about poor practice and more-than-robust cross-examination. Cross-examination must be robust—it is the nature of the system when someone faces a jail sentence—but, over the years, lots of bad examples have been reported in the press. Anecdotally, some practitioners will say that in such cases, there have been failures of the prosecution and judges to intervene. I know of one case in particular.

In the early years of this Parliament, section 275 was added to the Criminal Procedure (Scotland) Act 1995. Our predecessor committee was so willing to change the processes to protect victims who had experienced trauma not just because of the failure of the defence in its efforts to be robust and not cross lines, but because of the failure of prosecutors to raise things such as previous offences. Judges in particular were criticised for not intervening when a witness was clearly traumatised by a line of questioning.

Do you accept that the whole system makes witnesses feel traumatised? Given what you have said about the experience of the commission, will judges be forced to ensure that robust cross-examination does not result in the witness being traumatised in the process?