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.

Fundamentally, I agree with the Government that there needs to be a significant shift in the way that we deal with sexual offences cases. Those cases are predominantly what the High Court is dealing with now, and the situation is alarming, with the rate of sexual offences against women and girls going up, not down. The Government has, commendably, already put in place many measures in relation to the issue, and I think that Parliament as a whole is pretty united on the fact that the issue has to be a primary focus not just of legislation but of practice and resources.

Sometimes, achieving change does not require legislation, as some things can be done without it. However, we are faced with a proposal in the bill to create a new sexual offences court.

My first concern about the idea of putting all solemn cases in a single court is that that will create an extremely large court. There is a bit of an unknown here. I accept that, in the proposal to create that new court, to give it additional sentencing powers and to allow sheriffs to sit in that court—approved by the Lord President, obviously—there is an attempt to do something different and to try to address the delays that exist, which affect too many victims of sexual assault. However, I have a concern that what is a significant change in the court system might not achieve what the Government has set out to achieve, because of the volume of cases that would probably be in the new court.

I am concerned about the cost of such a large court and the ability to ensure that it runs smoothly. I acknowledge that the court can sit in many places—I think that up to 38 courts could be used.

I have a slight concern that, depending on how the new court operates, it could look like there would be a downgrading of the status of rape as a crime. At the moment, because it is one of the most serious crimes that can be committed under Scots law, it therefore goes to the highest court. I maintain that the High Court will still be the highest court and, although the new court could be a significant court with the power to impose long sentences, it will not be the High Court. The High Court is a feature of the Scotland Act 1998; it is a requirement under that act to have a High Court, and it is the highest court, although, obviously, there is an appeal court as well.

I suppose that we might be satisfied that, in order to get the delay down, it is worth using sheriffs and changing the structure, but I cannot pretend that I do not have concerns about how rape cases not going to the High Court might be seen.

Also, because we have been so busy considering the proposal for the new court, we have not had time for much discussion about what happens to the High Court. The figures show that sexual offences cases make up just under 70 per cent of High Court cases, which means that, if the proposal is agreed to, only 30 per cent of the current volume of cases will be in the High Court.

I appreciate that you were not on the committee, but a couple of things came out in evidence in relation to the English judicial system. That system involves 12 jurors agreeing unanimously, or, with the agreement of the judge, it can go down to 10. However, there are at least two aspects that we are aware of that are different. One is the ability to have a retrial, and the other is the way in which cases are prosecuted in England and Wales.

That is why we cannot compare convictions. In Scotland, as long as the Crown is satisfied that it can provide evidence for a prosecution, it will proceed, whereas that is not the basis of English prosecutions, which are based on the chance of success. That is the conundrum for everyone. Even if you look at New Zealand, Australia or other jurisdictions, you realise that Scotland is unique. I totally understand where you are coming from, but those are two points that stuck in my mind.

We are all in the same position. Does the member agree that it is a shot in the dark? We take one position or another and point to certain research that says certain things, but we do not know what we are doing for sure. I put the same question to Liam Kerr. Would it not be better to try to understand exactly what we might be doing or to have some insight into how juries arrive at their majorities at the moment by asking them over a period, during which we lift the restriction in the Contempt of Court Act 1981? That would allow a future Parliament to review whether a majority of 10 to five is indeed the right balance.

Thank you.

My understanding, from speaking to Rape Crisis Scotland, is that its big concern—as you know, it has many concerns—is delay in the courts. If you believe that delays will come down as a result of this change, I understand and sympathise with that view. However, you would have to accept that, while the High Court has High Court judges and advocates represented in it, that may not always be the case in the proposed new court. I will come to that. It is one of these balancing acts, I suppose.

My primary concern is that the new court will require a lot of organisational change. I know that the Government will say, “Well, we’re not going to do it all at once”—of course it is not, and I think that it is important to hear the cabinet secretary’s comments as to how that change is going to be achieved. Nevertheless, there are many problems to be solved, of which the Government is aware.

One such problem to be solved is what happens in relation to rights of audience. At present, rape and murder must be prosecuted in the High Court; those cases cannot go to any other court. Any serious sexual offences that would be likely to attract more than a five-year sentence would also usually go to the High Court, but the Crown has the discretion to send those cases to the sheriff court.

In the High Court, certain things are determined. There are rights of audience for advocates, and the High Court has its own procedures, preliminary hearings and so on. The Government accepts, and it will speak to this in relation to the amendment, that rights of audience would have to be amended to ensure that we do not downgrade—I am sorry for using that word; I am not sure which word should be used—rape cases in particular. It is still important that there are the same senior prosecutors and that the accused has the right to be represented by an advocate or solicitor advocate, as is currently the case. I am pleased that the Government has now tried to address that. However, the Law Society of Scotland has said that it has not addressed all the points, so that is something that could be sorted out at stage 3.

My amendments seek to go about this in a different way, which I believe can be done. On the question of specialism, we can legislate for trauma-informed practice regardless. We could still have all the features of a different structure, and still compel all those who sit in the court to practice or make decisions to be trauma informed.

However, I think that the easiest way in which to resolve the outstanding questions of rights of audience, where cases are prosecuted and so on would be to create a division of the High Court that would be a specialist court on sexual offences, and a division of the sheriff court. We have done that for drugs courts and for domestic violence. Those courts were created without legislation—however, we can do it by legislation. I think that that would be the easiest, and the best, way to tackle the question of delay and to keep the status of very serious crimes as it is. That is what my amendments seek to do.

In conclusion, it is important to have the discussion. If we vote for a change to create a large court, we really need to be satisfied that it is going to do what it says. The system will require a lot of reorganisation, and it will look different from the current court system. If we are interested in balance and ensuring fairness for victims and accused persons, we need to ensure that we get it right.

If this part of the bill is passed, I think that we will be partially getting to the point at which the system could look right, but we would want to make sure, at stage 3, that we have not altered the balance of who is represented in court, and that we ultimately allow courts to make the right decisions and, importantly, ensure that the constant delays that victims see in our court system begin to reduce substantially.