Chamber and committees

I will rehearse the same argument as I rehearsed last week. I do believe that there should be a specialist element but, as I have argued from the beginning, it can be done in a different way. The bill will create a sexual offences court for all solemn sexual offence cases, which is quite a big change. My position is that specialist divisions of both the High Court and the sheriff court could be created to achieve the same thing. The judges and practitioners would still be required to be trauma informed.

Separately, on the question whether murder with a sexual element should be indicted in the new sexual offences court, I am arguing that all the people involved in the sexual offences court will also be able to practise in the High Court, so they would still be trauma informed if they dealt with such a case in the High Court.

That is just a different way of going about it. It is not that I fundamentally disagree with your perspective; I just think that it is an awful lot of change and an awful lot of money to spend, and we do not know whether anything different would be achieved at the end. I suppose that that is a difference of opinion on how to go about it. Does that make sense?

Yes—that is exactly right.

I am happy to give way to the cabinet secretary.

It is hard to know how to respond when there has not been a full debate on my amendments. First, I made an error when I spoke to amendment 157. I do not fully understand why my amendments on the separation of the High Court and the sheriff court have been separated in the groupings. I should have said that, as the committee knows, I fully agree with the cabinet secretary about the importance of sexual offences courts being trauma informed, so that we can change the nature of how such offences are dealt with. At the previous committee meeting, I argued that those matters should be decided by a division of the High Court and a division of the sheriff court. I apologise—I do not know why that is not being addressed in this group of amendments; I will deal with it when I speak to amendment 270.

On amendment 69, we all agree that trauma-informed practice is a fundamental basis of the proposal for a new sexual offences court and, in fact, should be afforded to any victims who are brought before the courts. Solicitors and judges will be trained in trauma-informed practice, so I do not understand why the same judges could not try those cases in the High Court. I take the cabinet secretary’s point that, if the Lord Advocate uses the discretion that the bill would afford her, she could indict murder in the sexual offences court, if there was a sexual element to the crime. Judges who are trauma informed could sit in the High Court—for example, the Glasgow High Court could hold a sitting of the sexual offences court, so in other words, the sexual offences court could look exactly the same as the High Court. I do not think that the argument against the amendment is solid.

One of the criticisms that Katy Clark and I have is that what is proposed could just look the same as what already exists. I do not see why there is a substantive argument that murder could be indicted in the sexual offences court, when we could do it the other way around and ensure that judges and practitioners, some of whom would be practising in the sexual offences court, could take such cases in the High Court. The substantive argument made by the senators of the College of Justice, which is clear enough, is that what the policy memorandum says about why the change is required is “anecdotal”.

When we are presiding over such a fundamental change to our criminal justice system, we have to make the changes that we think are right, but we also have to protect the integrity of what is, by and large, a good criminal justice system, with all its faults.

You can achieve the same thing. A High Court judge—Lord Bracadale, for example—who sits in the High Court could sit in a newly created sexual offences court and preside over a sexual offence case or a rape case. They would have to be trauma informed to do so, but they would not stop dealing with cases in the High Court that are not sexual offences cases. A High Court trial for rape could be tried with the same people, who have been trained to be trauma informed.

I wish to return to the issue at stage 3, but I will not move amendment 270.

Amendment 270 not moved.

Amendment 33 not moved.

Section 43 agreed to.

Section 44—Sittings of the Sexual Offences Court

Amendment 34 not moved.

Section 44 agreed to.

Section 45—Transfer of cases to the Sexual Offences Court

Amendment 198 moved—[Angela Constance]—and agreed to.

Amendment 35 not moved.

Section 45, as amended, agreed to.

Section 46—Transfer of cases from the Sexual Offences Court

Amendment 199 moved—[Angela Constance]—and agreed to.

Amendment 36 not moved.

Section 46, as amended, agreed to.

Section 47—Rights of audience: solicitors

A number of these amendments seek to amend elements of the sexual offences court, including what it will be able to do and what crimes it will be able to deal with.

On amendment 157, my intention and how things have come out might be two entirely different things, as is often the case, but my intention was to ensure that the crime of rape would be presided over only by a High Court judge. I appreciate that the cabinet secretary might say that that is what she would expect, but it is really important, when we are legislating, to nail down the detail on the expectations under the law. I would not be happy if the door were to be left open to any discretion whatever.

Amendment 69 seeks to leave out murder as a crime that could be tried in the sexual offences court. The senators of the College of Justice have said that murder should be tried only in the High Court and that “the anecdotal nature” of paragraph 280 of the policy memorandum

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

Paragraph 280 in the policy memorandum states:

“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.”

On that, the senators stated:

“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.”

They continued:

“We remain firmly of the view that life imprisonment and OLRs”—

that is, orders for lifelong restriction—

“should be the exclusive province of the High Court.”

It would be a mistake if, in trying to sort out the status and importance of the sexual offences court, we in any way diluted the importance of the High Court of Justiciary, which will still be the highest court. I am happy to be contradicted on that, but I would challenge such a view. Under the Scotland Act 1998, the High Court of Justiciary will remain the highest court. It is a requirement of the Scotland Act 1998, and its integrity should be protected.

I move amendment 157.

I welcome the amendments that the Government has lodged in this group and whole-heartedly support them.

I will address my amendment 270. Rape is among the most serious of crimes and if we are potentially making a fundamental change to who hears rape cases in our criminal justice system, that should be examined thoroughly and properly.

What I am hearing is that you will be able to appoint more judges, which might reduce delays. That is fair enough; it is a compromise. I accept the argument; I can see that it is a good one. However, before we have closure on the issue, it is important to flush out the other side of the argument. Rape cases are heard in the highest courts by High Court judges. My understanding is that they might not be heard in the sexual offences court, because there is nothing to prevent a sheriff presiding over a case, albeit one that is trauma informed and everything else.

First, I will address the question of temporary judges. I have to say that the committee has not really had the benefit of drilling down into the detail on that. We have not had the benefit of full and frank discussions with the judiciary on the issue—which is often the case. I will admit that I do not have as much knowledge of the issue as I would like, but I would still like to test the argument.

Temporary judges go through a process before they sit in the High Court. One wonders what is temporary about temporary judges, given that the post has a five-year fixed term and automatically gets renewed, unless they have done something. I just wonder why there are temporary judges in the first place.

That aside, there is a separate issue. Temporary judges will be able to sit in the sexual offences court as they can in the High Court. Sheriffs will also be able to sit in the sexual offences court. I am a bit concerned. It is important in our criminal justice system that the serious crime of rape is seen by the criminal justice system as being a serious matter. I am not sure that I want to leave that to chance. People did not like the idea of the creation of a sexual offences court in the long run. I am open-minded in a way. I have heard the arguments, but I hope that the cabinet secretary will at least accept that it is important to have this discussion, because there is no doubt in my mind that, although the cabinet secretary might get lots of benefits, she will lose something in all of this. Many practitioners who I have spoken to about the issue think that something will be lost in the creation of a sexual offences court because of its nature, even if we can achieve a reduction in delays.

Amendment 77 would insert a duty to provide information to complainers in sexual offence cases. It states that the

“Advocate Depute must ... meet with the complainer”

before

“the first hearing”

and

“provide the complainer with relevant information on the progress of the case over the course of proceedings.”

Tony Lenehan KC said:

“It is important that I am allowed to say to them beforehand that the trial can be conducted as slowly as they need it to be, that they can think about the questions and, if they do not understand the questions, that they can tell me that. We can build that into the process so that, when they come into the court, they know me a bit.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 43.]

He has also highlighted that a current practice note indicates that the advocate depute should meet the complainer in advance of their giving evidence when evidence is taken by commission.

My amendment falls within the broad scope of issues that are raised in relation to independent legal representation and a single point of contact. The overwhelming experience of the vast majority of victims from whom we have heard was that they felt that they had no agency in their own case. In many cases, nothing was explained to them and they felt that they had no stake in what was happening in the case in which they were the victim. It is clear to me that we cannot go back to what we had before.

The Lord Advocate is to be commended for the way that she has, from what we have seen, promoted among advocate deputies the necessity of seeing victims. We have heard from at least one victim who expressed on the record that her experience was completely different from the experiences of all the other victims from whom we heard in that evidence session, who did not feel, in any way, that they had a part in the whole process.

The important thing is that the advocate who is dealing with the case will have read the papers and will have some understanding of the intricacies of how the trial might be expected to go. It is a really important aspect of making a difference to complainers.

I imagine that Governments are never happy to put this type of thing into statute, so I will listen to find out whether there is another way to do that. You will note that Tony Lenehan said that it is already covered in a practice note. However, I want to ensure that the right for a complainer to sit down with a person who is, after all, going to be prosecuting their case, is made permanent and does not slip when a new Lord Advocate comes into post.

I see that Liam Kerr is about to intervene, so I will take his intervention.

It is clearly a difference of opinion about how to achieve the same end. I feel as though I am arguing something that was part of last week’s debate—what I am trying to get at in this group of amendments is that the High Court’s integrity should be protected. This is not just about creating something new—and, by the way, I am absolutely sure that, if there were a new division, there would be a fundamental change. If a new division were to be created in the High Court or the sheriff court for sexual offences, the situation would be different. In the same way, we created the drugs court and now the practice is different. It operates differently.

Convener, I apologise for taking up too much time. I need to make sure that my arguments are understood, albeit that people may disagree with them.