Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill

The Convener (Margaret Mitchell)

Good morning, and welcome to the Justice Committee’s 30th meeting in 2018.

The first item on the agenda is an evidence session with the Scottish Government bill team for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome from the Scottish Government Karen Auchincloss, criminal justice division; Lesley Bagha, criminal justice division; and Louise Miller, legal services directorate. I invite Karen Auchincloss to make opening remarks.

Karen Auchincloss (Scottish Government)

Good morning, and thank you for the opportunity to make opening remarks on the bill.

The main purpose of the bill is to improve how children, in the first instance, and vulnerable witnesses participate in our criminal justice system, by enabling the much greater use of pre-recorded evidence in advance of trial.

The bill builds on the work of the Scottish Courts and Tribunals Service’s evidence and procedure review, which made recommendations on how to improve the treatment of vulnerable witnesses in the Scottish criminal justice system. Those recommendations included proposals on how to protect vulnerable witnesses—focusing on children in the most serious cases—from further traumatisation, by introducing a new rule that they will pre-record their evidence.

The main reform in the bill is to create a new rule for children under 18 who are complainers or witnesses, to ensure that, where they are due to give evidence in the most serious cases, they will have it pre-recorded, unless an exception applies. The new rule applies only to solemn cases; committee members will have noted that the bill makes no provision in relation to summary cases. However, in a summary case it is currently possible to pre-record under the current legislative provisions.

The bill does not extend the new rule to a child who is accused. That was considered, but it was decided that it was not appropriate, given the practical issues. Those issues are expanded on in the policy memorandum. Again, it is important to note that, under the current legislative provisions, the evidence of an accused person can be pre-recorded.

The bill includes a power for the proposed new rule to be extended to adults who are deemed vulnerable witnesses in solemn cases. That will potentially include complainers in sexual offence, human trafficking, stalking and domestic abuse cases. The Scottish Government considers that those categories of witness would benefit from the greater use of pre-recording; the power therefore ensures that the bill’s most significant reform can be extended beyond child witnesses in due course.

As committee members will be aware, evidence by commissioner is the special measure that is used to allow for evidence to be pre-recorded in advance of a criminal trial. The benefits of the approach are that the date and time for evidence by commissioner can be scheduled in advance, avoiding uncertainty for vulnerable witnesses, the atmosphere is less formal than that of full court proceedings, and evidence can be recorded directly or via remote videolink from another location. The evidence is then played at the trial without the witness having to be present.

The bill removes legislative barriers that might have a detrimental effect on the greater use of pre-recorded evidence. If appropriate, a commission could happen prior to service of an indictment, although, as committee members will note from the policy memorandum, in the short to medium term it is considered that applications for evidence by commissioner to be taken in advance of the indictment are likely to be rare.

The bill introduces the concept of a “ground rules hearing”, to ensure that all parties are prepared and the issues set out in the practice note are considered. It is important to note, however, that the bill provides the flexibility for the ground rules hearing to be conjoined with another hearing, if appropriate.

The bill also makes provision with regard to the role of the commissioner, to ensure that the commissioner has the same powers as a judge to review the arrangements for a vulnerable witness giving evidence and to encourage that the same judge undertakes the ground rules hearing and the commission, where that is reasonably practicable.

Finally, the bill makes provision for a new, simplified intimation process for standard special measures for child and deemed-vulnerable adult witnesses, which, where it applies, will streamline the current process by making it an administrative rather than a judicial process.

John Finnie (Highlands and Islands) (Green)

Good morning, and thank you for your opening remarks. Will you outline the special measures that are in place at the moment and how the bill will affect them?

Karen Auchincloss

The bill does not change the special measures as they operate at the moment. Standard special measures are those that witnesses are automatically entitled to, such as a screen, a supporter and a television link. Non-standard special measures are those made on application, such as evidence by commissioner, use of a prior statement—something that has been recorded before, whether or not that is written down—or a joint investigative interview by a police officer and social worker.

The bill does not change how special measures operate at the moment; it creates a new rule that, in certain circumstances, a child who is under 18 would have their evidence pre-recorded by using the special measure of evidence by commissioner.

John Finnie

For the avoidance of doubt, are we definitely talking about children under 18?

Karen Auchincloss

Yes.

Shona Robison (Dundee City East) (SNP)

Will you say a bit more about the main benefits of pre-recording evidence? We are aware of the obvious benefits of removing the vulnerable person from a stressful situation, but it would be useful if you could expand on that and on how the bill seeks to encourage the greater use of pre-recorded evidence.

Karen Auchincloss

As I said, the commission would be scheduled, so the witness would know exactly when it would take place, which would take away the uncertainty of timings. The environment is meant to be less formal for a child or a witness who gives evidence.

The bill creates a framework for the greater use of pre-recorded evidence. Behind that is Lady Dorrian’s introduction last year of a revised practice note, to encourage greater use, as members are aware. The practice note is quite comprehensive and sets out in great detail what the court and parties should consider before a witness gives evidence, such as the removal of wigs and gowns and the location where the witness gives evidence. For the witness who pre-records in advance of the trial, which could be some months later, that day is the end of the process.

Lesley Bagha (Scottish Government)

That currently happens under the new guidance in the High Court practice note. The bill provides for a ground rules hearing, which will have to happen before the commission takes place and can be incorporated into a preliminary hearing. It will mean a lot of focus on making sure that the parties are ready before a child or vulnerable witness gives evidence, which will involve consideration of what kind of questions there will be, whether everything is appropriate and whether breaks will be needed. That added scrutiny and preparation would probably not happen at the moment.

Shona Robison

Karen Auchincloss mentioned the power to expand the scope of the new rule. It would be helpful to hear what timeframe you think is realistic in that regard. What was the reasoning behind having an initial focus and providing for a power to extend the rule? Was it about phasing the approach in, in an orderly fashion, or are there capacity issues?

Karen Auchincloss

The bill’s main focus is on children, because we wanted to start somewhere and to target the most vulnerable. That is not to say that other people are not vulnerable. I accept that some stakeholders would like the bill to go a bit further, a bit more quickly. However, a fundamental point is that this is a significant change to how evidence is taken at the moment. It is important to get it right, for the practice note to bed in and for people to get used to the new way of working.

We accept and recognise that other categories of witness would benefit from this special measure on the way in which evidence is taken, but we are keen to get it right from the very beginning. The danger if we expand too quickly is that witnesses will not benefit. We are working with stakeholders on a potential implementation plan in relation to how the bill’s various powers could be used. Should we target certain cases for deemed-vulnerable adult witnesses or specific locations? We are very mindful that a lot of people would like the powers to come in quickly, but it is important that we do not rush.

Shona Robison

When will the implementation plan be ready? I presume that broad timeframes will be attached to the plan.

Karen Auchincloss

We are working with stakeholders on potential implementation. When the cabinet secretary comes to give evidence after the new year, he might be able to update the committee.

Lesley Bagha

The one thing that we have learned from our discussions and, indeed, from what is happening in other jurisdictions, is the importance of ensuring that, if there is an ambition, the work is done properly and there is time for monitoring and evaluation. Because these proposals deal with very vulnerable people, we have to get them right. Even though, as Karen Auchincloss said, evidence by commissioner has been around for a number of years, it has been used relatively infrequently, and we cannot say enough how much of a substantial and significant change these proposals represent. Of course, it depends on the views of the committee and the Parliament, but the proposal is for a legal rule that, in a sense, will be relatively inflexible and could make a massive change.

We therefore have to ensure that we get it right. It is a matter of not just making a legislative change but making sure that all the practical changes that go along with it are made, too. We are in close contact with our counterparts in London, who have been undertaking pilots on the various versions of pre-recording evidence under sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999. One of the big lessons that we have learned from our counterparts is that things probably take even longer than we think and, to get it right, we need to build time into all the stages to monitor, evaluate and learn from the experience before we roll things out to the next stage.

The Government’s current position is that, as has come out in the evidence and procedure review and the work that we have done, the initial focus should be on children, but for any power in future, the issue will have to be carefully evaluated and considered. Ultimately, that is a matter for Parliament and ministers.

Shona Robison

Thank you.

Liam McArthur (Orkney Islands) (LD)

Good morning. On your point about the importance of the ground rules hearing, we have discussed how lines of inquiry can be pursued with questioning agreed in advance and how, depending on the answer that a witness gives, the commissioner might need to pursue a line of questioning that was not predictable at the outset. Is the expectation that the guidance notes will cover how that situation should be handled, or is it likely to fall to the discretion of those conducting the commission?

Karen Auchincloss

It will probably fall to the discretion of the individual in question and whether they think that they need to bring back a witness. That will certainly be a matter for the court. When we developed the ground rules hearing policy, we took quite a lot from how things operate down south, where the system is quite similar. In fact, I think that writing all the questions down is a prerequisite. We asked people down south whether the situation ever arises where someone discloses something else or says something unexpected, but the feedback was that because parties have fully considered all the issues and looked at the evidence and disclosures that they have, the issue has not tended to come up. However, it could happen.

Lesley Bagha

Questions could be supplied for a ground rules hearing—indeed, the High Court might think it appropriate to do so—but an issue to take into account is the broad content involved and ensuring that questions are asked that the child can understand. I would have thought that if something unexpected were to come up in a commission, the commissioner—who would be a judge or sheriff—would still have the flexibility to say, “I want to pursue this line of questioning.”

The one thing that we have been keen to stress with these proposals is that nothing about them stops the legitimate testing of a witness’s evidence, which is absolutely key and important in all of this. This is about getting the best evidence in a more controlled environment, but that does not mean that cross-examination will be limited in any way.

Liam McArthur

Presumably the other end of the spectrum is that where a child does not provide an answer, because they either cannot recollect or are uncertain of something, there will be limitations on how far that can be pursued. Will there, at some relatively early point, be an agreement that the answer is what the child provides?

Lesley Bagha

Yes.

Liam McArthur

You have said that the procedure is used at the moment but nothing like to the extent that is anticipated. Even though there will be a phased process, with evaluation taking place before the next phase is rolled out, has the Scottish Courts and Tribunals Service said anything about the financial implications of this expansion? Does it believe that it has the resources at the moment to manage the process through to its conclusion, or will that depend on the evaluation that takes place, subject to the legislation coming in?

Karen Auchincloss

The financial memorandum sets out a range of estimated costs, because at this stage we just do not know how many people will go on to give evidence by commissioner. For children, the costs start off at half a million pounds. If all children are cited, the costs rise to about £3.5 million. If you extend that to adults who are deemed vulnerable witnesses—again, this is very much an estimate, because we do not how many would go on to do this—the costs go up to about £14 million.

Clearly there are significant resource implications for the court service, the Crown Office and the Scottish Legal Aid Board. Although the costs are set out in the financial memorandum, decisions that are taken in the spending review will also come out in due course.

Liam McArthur

I understand that the equipment, technology and so on that are needed will be an expansion of what is currently used, rather than there being a requirement for different equipment.

Lesley Bagha

That is absolutely correct. It is an important point. The equipment is not used much now, and the Scottish Courts and Tribunals Service has recognised that, if the proposals are agreed to, it will need to upgrade its venues and information technology to ensure that it is ready. You will probably have seen the Scottish Government’s recent announcement of funding of £950,000 for facilities in Glasgow to be upgraded to provide vulnerable witness hearing suites and sensory rooms and have state-of-the-art facilities, so that Glasgow can start taking more evidence by commissioner. We are closely involved with the court service in looking at other areas, possibly including mobile equipment. Alongside the legislation, ensuring that the practical infrastructure is in place is an important workstream. The court service is doing a lot on that right now, and I am sure that, when it gives evidence to the committee, it will be able to give you a lot more detail on that work.

The Convener

If members have supplementary questions, I ask them to make those questions absolutely on point to ensure that we do not stray into areas that we want to cover later.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I want to ask about the reasons for not applying the proposed rule on pre-recording evidence to the child accused. I think that that is covered by subsections (7) and (8) of proposed new section 271BZA of the Criminal Procedure (Scotland) Act 1995, which provide that an exemption would apply, for example, if

“the giving of all of the child witness’s evidence in advance of the hearing would give rise to a significant risk of prejudice to the fairness of the hearing”,

or

“it would be in the child witness’s best interests to give evidence at the hearing.”

Who makes that judgment?

Karen Auchincloss

Sorry, was your first point about the child accused?

Jenny Gilruth

Yes. Obviously, exceptions exist in the legislation as it stands.

Karen Auchincloss

The bill does not extend the new rule to the child accused at all; such children are not within the scope of the bill. The exceptions apply for children under 18 who will be caught by the new rule.

Jenny Gilruth

With regard to those children, then.

Karen Auchincloss

The exceptions are extremely tightly drawn. I would not envisage a situation in which they would be applied, but the provisions give a bit of flexibility in the interests of justice or for circumstances in which there is a significant risk to the fairness of a trial. However, the position will be that, in the vast majority of the cases for which the bill provides, children who are under 18 will give pre-recorded evidence.

Jenny Gilruth

Who makes the overall judgment on the risk to the fairness of the trial? Who does that decision rest with?

Karen Auchincloss

It rests with the court and the judge.

Jenny Gilruth

On the current and expected future use of prior statements, Lesley Bagha alluded to there being more evidence, because there will be more evidence gathering by commissioner. That is already happening; do you expect the same level or an increase?

Lesley Bagha

Pre-recording can happen in several ways. If all the child’s evidence were to be given in advance of the trial, that might happen through a prior statement—that is, when just the child or witness’s evidence in chief is recorded, which can be done in writing or by video recording. Karen Auchincloss touched on that. In Scotland, there is less use of video recording by the police, but there is one circumstance in which that happens more often: the joint investigative interview, which is led by the police and social work team, who interview the child and record their evidence. As there are child protection issues, the police and social work team look at things from that point of view.

That interview could be introduced as part of the pre-recording of the child’s evidence, as a prior statement, although it would not cover the cross-examination or re-examination, which might be done by the process of evidence by commissioner. Alternatively, all the witness’s evidence could be gathered by a commissioner. There would be just the one hearing, in which the commissioner could ask various questions and record all the evidence for the trial. There are several different mechanisms for recording evidence in advance.

Jenny Gilruth

Can you update us on the development of the national standards for joint investigative interviews? A recommendation in favour of that approach was made in 2017.

Lesley Bagha

That is right. That was a recommendation by one of the sub-groups from the evidence and procedure review. A lot of work is being done on that at the moment. As you will be aware, there were areas of good practice in joint investigative interviews, but there were also many areas that the review group felt could be improved, particularly in relation to the IT but also in respect of training and guidance.

A lot of work is under way. My understanding is that it is focusing mainly on the training that will take place for people who conduct such interviews. A revised training programme is being developed and there is an intention to design national standards. All that work is going on in sync, and it is very much in tune with the idea that, if we are to have more pre-recording, we have to get the pre-recorded evidence up to the best possible quality. A lot of work is going on in that regard and will carry on.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Karen Auchincloss mentioned in her opening statement that the policy memorandum outlines the reasons why the bill does not extend to child accused persons. Will you briefly set out those reasons, perhaps as bullet points?

Karen Auchincloss

Obviously, a child accused has a completely different status from a witness—for example, the child already has access to legal representation and has a choice about whether to give evidence. As I said, it is technically possible for an accused person to pre-record evidence, but that has never happened, to our knowledge, so it did not seem to be sensible to apply a rule to a category of person when the special measure is already available but has never been used.

Over the summer, we did more work with a lot of stakeholders. Some of that has just been published online. I think that in it there is recognition that pre-recorded evidence would not really work for an accused person. However, a point came out about the wider support that child accused persons need. We will have to take that and consider it.

Lesley Bagha

A lot of work was done on the matter. In responses to the Government’s consultation, many people were in favour of including child accused persons in the bill, but when we spoke to people, we found that that would raise practical issues and could be very prejudicial. Normally, an accused person—including child accused persons—would, on the advice of legal counsel, decide whether to give evidence only once they had heard all the Crown evidence against them. If evidence were to be pre-recorded, that would be done in advance. None of the advantages of pre-recording that we have talked about, such as the person not having to attend the trial, would apply, because an accused person has to be there and listen to the trial in the courtroom, but their case could be prejudiced, which would strike at the heart of the policy, which is about the best interests of the child.

As Karen Auchincloss said, once we actually talked through the issue, a general consensus grew that pre-recording is not the answer.

Rona Mackay

On the point about supporting the child accused, we heard during our visit to the High Court yesterday that there are things that could be done now that are not being done and which would not need to be included in the bill. For example, a child accused does not have to be in court—they can listen to the evidence in a separate room. Obviously, that is a bigger legal question that is not to do with the bill.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Good morning, panel. I first have a supplementary on that supplementary, then I will go back to Jenny Gilruth’s question.

Do the rules on child accused persons take cognisance of the Age of Criminal Responsibility (Scotland) Bill, which is with the Equalities and Human Rights Committee?

Karen Auchincloss

Yes. We work closely with other Scottish Government officials, especially when there are connected policy interests, so we have been engaging with the officials who are involved in that bill. As I said, and as Lesley Bagha touched on, although we recognise that pre-recording is probably not the best special measure, a lot of wider support work could be done that would benefit from further consideration.

Fulton MacGregor

From what I have seen, that work seems to fit the ethos of that other bill.

My next question is on joint investigative interviews. I declare an interest as a registered social worker who has been involved in such interviews. You might not have exact statistics, but roughly how often are they currently used as pre-recorded evidence?

Lesley Bagha

To be honest, I would be guessing if I were to give you a number, so it is probably better if we write to you with specific information. However, I understand that many more joint investigative interviews happen than are admitted in court. That is partly because their quality is not good enough to meet the test for being accepted in court as a prior statement. Obviously, there would ultimately have to be a court case, so we want to change that situation by improving the quality of those interviews.

Would you like us to find out the numbers—if they exist—and write to the committee on that?

The Convener

Yes, please. That would be helpful.

Daniel Johnson (Edinburgh Southern) (Lab)

I want to ask about the nuts and bolts, but before I do that, I have a question about your comment that the bill in some ways formalises existing practice and seeks to extend it. I will ask another numbers question. How many children currently give evidence through the special measures and how many more will benefit following enactment of the bill?

Karen Auchincloss

The numbers were extremely low, but they have steadily increased since the introduction of the practice note. From April 2018 to August 2018, there were 82 applications for evidence by commissioner in the High Court, of which 71 were for children and 11 were for adults. We must recognise that it is important not just that the numbers go up, but that overall quality and consistency improve across the board.

If the bill is passed in its current form, the maximum number of children involved would be about 759, and about 2,000 adults would be deemed to be vulnerable witnesses. The numbers that would result from the bill are quite significant. It is encouraging to see that the numbers have been steadily increasing since the practice note was issued.

Lesley Bagha

To give that a bit of context, those 82 applications were for a period of just five months, whereas in the previous period of almost a year, from April 2017 to March 2018 when the High Court practice note was introduced, there were 62 applications. The committee can see that there was a substantial increase, although it is as nothing compared to the increase that would occur under the proposals in the bill, which is why they are seen as such a big change. However, even the current increase is quite a big change to get used to and be set up for. The High Court practice note seems to be having a positive effect already.

Daniel Johnson

It is useful to have that context.

You have said that the proposal is just for dealing with solemn cases. Can you explain the rationale for not extending it more broadly to summary and sheriff court cases, which would involve much larger numbers?

Karen Auchincloss

As I said, the bill is a framework to encourage and start greater use of pre-recording of evidence. We have focused on the most serious cases because that is an appropriate place to start. However, if to do so were deemed to be appropriate, the special measures could be used in the sheriff court at summary level. However, as Daniel Johnson suggested, the number of people in sheriff courts at summary level is significantly higher than the number for solemn cases.

Daniel Johnson

Would the Government look to review how the practice might be extended in the future using non-legislative means—or legislative means, if they were required?

Karen Auchincloss

Since the introduction of the practice note, there has been a period of monitoring and review by the court service. Clearly, the Scottish Government has an interest in that. If the bill is passed in its current form, there would be a period of continuous monitoring and evaluation as we commenced the various powers.

The ultimate aim is for the approach to become the norm. However, that will take a bit of time because it is a culture-and-practice thing. The current special measures for evidence by commissioner are already in legislation, so we will not need to introduce further legislation—the facility already exists and people can use it.

Lesley Bagha

It is for Parliament to consider whether it would be appropriate to have a rule that is relatively inflexible or to leave things being dealt with on a case-by-case basis. As my colleague said, it is possible to apply for special measures in summary cases, if that is appropriate.

The current proposal in the bill is that the provision will apply to children under 18 in certain solemn cases, but the bill also proposes quite wide powers to remove the list of offences, which would ultimately mean that such measures would apply to all children under 18 in the High Court and in sheriff court solemn cases—which would be massive—and that they would be extended to all adults who were deemed to be vulnerable witnesses. Even the proposal for the first group is a big change: to go down that road would be huge. We need to manage expectations about how far we can go down it and how quickly.

Daniel Johnson

I turn to ground rules hearings. Given the discussion that we had yesterday with people at the High Court and from your evidence, it is clear that those hearings are critical to establishing how evidence will be taken, and to ensuring that the sensitivities that we all hope would be considered are considered. As we heard from Rona Mackay, some people do not know that they can ask that particular provisions be used or approaches be taken in court.

What safeguards are in place to ensure that those questions are asked, and that we do not just rely on the defence counsel and the prosecution to know to ask the right things or to agree to a particular approach? What would prevent, many years down the line, a particularly aggressive defence counsel, who does not agree to particular lines of questioning or approaches being taken, from taking advantage of that system?

Karen Auchincloss

The practice note is comprehensive. At its heart is the idea that the vulnerable witness and their needs are put first. The practice note also references what is called the advocate’s gateway, which is used in England and Wales to provide, for advocates, comprehensive training in how to cross-examine children. Whether the practice note is followed is a matter for the judge in each case, but I understand from feedback that I have received that the numbers have started to increase, that people are getting used to taking evidence by commissioner, and that the practice note is being followed and considered.

Daniel Johnson

My final question is about timelines. Even in the speediest of circumstances, it can often take 18 months to two years for a crime to come to trial, and that is for something that is recent, not historical. How much earlier in the process will the proposal enable evidence to be taken, given that we all agree that, by and large, with some caveats, the rough rule of thumb is that the sooner evidence is taken, the better?

Karen Auchincloss

The bill will remove or amend current provisions by allowing a commission to happen prior to the service of the indictment—the current legislation defines commencement of proceedings as being from service of an indictment. The proposal means that a commission could happen after an accused person has appeared on petition—which is, obviously, some time before service of the indictment. That will remove the legislative barrier. It had been highlighted to us that that might be why commissions do not happen earlier.

We set out in the policy memorandum that, in the short-to-medium term, we would not expect a lot of commissions to happen pre-indictment, because it is only at the point at which the indictment is served that the accused knows all the charges that they face. The proposal will remove that requirement and ensure that there is a little bit more flexibility, so that when the provisions start to bed in and people get used to them, there might be cases—it would be done on a case-by-case basis—in which it might be appropriate to have a commission before service of the indictment. That would be a matter for the Crown Office and the defence, because—obviously—the defence still has the right to cross-examine.

Daniel Johnson

In practical terms, what will that mean? Are we talking about a few weeks earlier, a few months earlier or even a year before the trial?

Karen Auchincloss

I can write to the committee with a better indication of the timescales, but my understanding is that somebody could appear on commission and it could be six or eight months later that the indictment is served. We recognise that some cases take far too long between the initial report and their getting to court.

Lesley Bagha

There is a wider context to the matter. Obviously, with the bill, we are looking at pre-recording. However, in the summer, the Cabinet Secretary for Justice announced—I think—£1.1 million of funding to help the court service and the Crown Office to reduce the amount of time that sexual assault cases take to get through the system. In our policy memorandum, we supply a lot of the wider context, too. In a sense, the issue that we are discussing is just one part of what needs to be done; we need also to consider the wider issues.

We are aware of a number of issues. The various parts of the justice directorate and the ministers, with the court service and the Crown Office, are considering how we might address those issues other than through pre-recording.

John Finnie

There have been a number of references to the practice note. Can you say a bit more about it? Is its author Lady Dorrian? What regard does the legislation have to it? Is it a dynamic document—is it evolving?

Lesley Bagha

I sat on the practice note sub-group, which was one of the sub-groups of the evidence and procedure review. I was there as a Government observer, alongside representatives of the legal sector and the third sector. Lady Dorrian chaired the group, which dealt with a number of practical issues that were raised on the back of the initial evidence and procedure review—for example, what might be done to enable greater pre-recording. The court service developed the practice note, but that was done with input on how the process could work from all the sectors.

The practice note is quite lengthy. I believe that the sub-group considered the issue for about a year before Lady Dorrian issued the practice note, which I think was in May 2017.

The High Court can bring in practice notes, which it does regularly. The note could be updated at any time. Right now, the practice note is only for the High Court. It will be for the court service to decide whether it wants to deliver a similar note for sheriff courts. We understand that, at the moment, if there are commissions in the sheriff court, parties take cognisance of the High Court practice note, but the sheriff court does not have its own one.

In respect of the bill, we have picked a few key elements of the ground rules hearing that we think should be in primary legislation. In a sense, it is better to limit what is in primary legislation, compared with what is in the practice note, for the very good reason that the practice note is a fluid document that is easier to amend as lessons are learned.

The court service is currently evaluating the success of the practice note. The committee may be aware that the service very recently issued its first evaluation report, which was about how the guidance for the practice note is working in the High Court, and it received very positive feedback. I think it intends to do a second evaluation report in the next few months, so I am sure that there will be a further update. Lessons that are learned in the evaluation will result in further adaptations—that is for the court service to provide more information on.

John Finnie

Is this something that it is nice to do, or that has to be done, or, because it exists, is followed in any case?

Lesley Bagha

Do you mean the High Court practice note?

John Finnie

Yes.

Lesley Bagha

The High Court practice note is a very important vehicle because it means that all the parties to a case, not just the court and the judiciary, are aware of what is expected of them, and it provides form and guidance. It sounds as if the note is already having a positive influence—the increasing numbers of applications and how prepared they are shows that there is a lot of merit in it. Clearly it is also a “nice” thing to do, but it seems that it is having a very positive influence as well, so it is probably more than that.

John Finnie

Thank you very much.

Liam Kerr (North East Scotland) (Con)

Some submissions expressed concerns about the possibility of miscarriages of justice. In her opening remarks, Karen Auchincloss talked about the setting being less formal, but some people might suggest that the process will be taken less seriously. For example, it will not allow a jury to see a contemporaneous cross-examination. How reassured are you that miscarriages of justice will not happen?

Karen Auchincloss

I am very reassured of that. Some people might think that the process is less serious because it is less formal, but at the heart of the process is protection of the most vulnerable people. By using a less formal setting in which they might feel more relaxed, we are likely to get better evidence. In the interests of justice, obtaining the best evidence can only be a good thing.

Lesley Bagha

The process will still be under judicial scrutiny. We must remember that, often, the witnesses give evidence on very traumatic matters. What we might see as a more informal setting could probably still be very intimidating for such witnesses. As they happen at the moment, commissions are informal in a sense, but there is still legitimate questioning on difficult subjects.

On your point about the jury not seeing the witness give evidence, as part of the Scottish Government’s research into commissioning of juries, in—I think—the last year we published an evidence review that relates to how pre-recorded evidence is seen by jurors. The review was particularly interesting in respect of the evidence of child witnesses, in that it did not show—as one might have expected—that such evidence carried less weight or lost anything due to prejudice. The review was positive in that respect. If the committee does not have a link to that evidence report, I can send it.

Liam Kerr

I thought some of the conclusions from that report were very interesting.

In the bill, there is an exception to the rule about pre-recording evidence, which is if it would

“give rise to a significant risk of prejudice to the fairness of the hearing”

and

“that risk significantly outweighs any risk of prejudice to the interests of the child witness”.

That is interesting phrasing, because it suggests that any risk of prejudice to the child’s interest would outweigh the fairness of the trial.

Lesley Bagha

That is already set out in legislation on other matters relating to special measures, and it is accepted. The right to a fair trial, as set out in article 6 of the European convention on human rights, runs underneath any decision that is taken on the matter.

Liam Kerr

Would the fairness of the trial remain paramount?

Lesley Bagha

Decisions must be compliant with the convention—even the decisions of judges. The wording that we use in the bill is already used in the Criminal Procedure (Scotland) Act 1995. It is not new wording. It can therefore still be seen to provide for a fair trial. The miscarriage of justice point has been raised with us before, so it is an issue to which we are very sensitive.

I cannot speak for other people and what they might personally think about miscarriages of justice, but there might be a fear that we are in some way trying to remove or limit the right to cross-examination, or that we are trying to stop proper testing of evidence. We have tried to make it clear that we are absolutely not doing that. That is not the policy intent—it is about having more focused questioning in more appropriate circumstances. It is not in any way about the defence not being able to put legitimate questions directly to the witness, which is still absolutely the intention.

Liam Kerr

I presume, however, that you accept that the provision will require a cultural shift—or a shift in mentality—in the adversarial process that we have?

Lesley Bagha

That is right. It is a movement towards saying that our having a more trauma-informed way of approaching children and vulnerable witnesses does not mean that we are removing the accused’s right to a fair trial by testing their evidence. Enabling a witness to get their evidence out should not undermine fairness to anybody else. What we are doing is letting them tell their story and then allowing legitimate questions. Whenever such concerns are raised, we always work with the legal sector to try to alleviate them. Our intention is not at all to undermine fairness. It is about providing better circumstances in which vulnerable children and other witnesses can give their evidence, and that it can be properly tested at all times.

Liam Kerr

In its submission, the Faculty of Advocates suggests that it should be a requirement that “sufficient safeguards” are in place to ensure fairness. What do you understand such safeguards to be, and are you comfortable that they are in place?

Lesley Bagha

We would probably have to have someone from the faculty here to say exactly what its concerns are. It has previously said to us—and I am sure that it will say so in its evidence—that it is slightly concerned that the way in which the bill has been drafted might mean that it is possible for just a prior statement to be submitted to the court and for there not to be any form of cross-examination or evidence by commissioner. We are 100 per cent clear that that is not the policy intent. The bill has been drafted in that way just to explain the ways in which pre-recording can happen. If a defence agent ever wanted to cross-examine such a witness, that could happen, but it would have to comply with the European convention on human rights.

What we have tried to allow for in the bill—and where concern has sometimes arisen—is that there is a real possibility that a child’s prior statement might be taken and the defence might not have any questions. If that is the case, we do not want a commission to have to be set up and for everybody to be sitting there, only for the defence to say that it has no questions and for the child to be sent away. We have to allow for some circumstances in which the prior statement might be the only evidence. However, if the party that has not called the witness wants to do any questioning, that will still happen.

Liam Kerr

I understand that, but I might pose the question again. If the Faculty of Advocates—a very powerful voice—has said that sufficient safeguards need to be in place, presumably you will have taken time to understand what such safeguards would be and, if you think them legitimate, to build them into the legislation.

Lesley Bagha

Absolutely. We have had a number of meetings with the Faculty of Advocates, and its representatives have been very helpful and supportive in that respect. A key safeguard is that everything that is set up for the ground rules hearing and the commission is always done under judicial scrutiny, so the judge is always there to ensure that a fair trial can take place. That is one of the main safeguards, and we are not removing it in any sense. In the same way, we want to ensure that nothing further goes. We will listen to the faculty’s evidence in due course and, if there are further safeguards that we have not thought of, we will absolutely take them on board. As I have said, it has been very constructive in its dealings with us, and we hope that it will carry on being so.

The Convener

Fulton MacGregor has a supplementary question.

Fulton MacGregor

I hear what the Faculty of Advocates has said, and I think that it has been very constructive, but it sounds as though the bill is, in essence, providing a safeguard for the court process by changing the environment in which vulnerable witnesses give evidence. Do you agree with that?

Karen Auchincloss

As I touched on earlier, the hope is that the approach is about somebody being able not just to give evidence but to give their best evidence, and the bill’s provisions have always had that in mind. They are not just about getting evidence but about securing the best evidence from the child or the vulnerable witness.

Fulton MacGregor

And thereby safeguarding the court process.

Karen Auchincloss

Yes.

Rona Mackay

What is your opinion of the Barnahus model? Will the bill bring us any closer to that?

Lesley Bagha

The first thing to say is that the bill is absolutely not about Barnahus. I have previously had some involvement with that concept, and the main thing that I would say about it is that it is a general concept.

It is often talked about as the Barnahus model but, as it has slowly been rolled out in different parts of Europe, each country has adapted it according to its circumstances and what works best there. Before Barnahus was moved to another unit, I had formal dealings with it. I went over to Europe as part of the European Union promise project—I do not know whether you have heard of that—which was an EU-funded programme that brought together representatives from lots of different countries to find out about Barnahus. Some of them were setting up the model and some were just considering it. Initially, representatives of the courts service and Children 1st went to the meetings; I went to the very last meeting. It struck me that I was the only justice representative there, although perhaps there was a police officer there, too. A lot of people who work in health and child protection went, because a lot of what Barnahus is about is the trauma-informed child focus.

When I was over at that meeting, I spent a bit of time talking to one of the main people responsible for bringing the Barnahus model to Europe. He is a gentleman called Bragi Guðbrandsson. He was the director general of the child protection agency in Iceland, but I think that he has left that job, because he is now a committee member of the United Nations Committee on the Rights of the Child.

I spoke to him because I was looking at Barnahus from a justice point of view. He was clear that Barnahus could work in an adversarial system, although most systems that have set it up are inquisitorial. There would be no problem with Barnahus, but adapting it to an adversarial system would mean that you would not tend to have the one-stop-shop of Barnahus with one forensic model interview. You could still have bits of pre-recording, because Barnahus is much more about wraparound services, forensic medical examination, therapy and advocacy, and about all that happening in one place.

Currently, the Scottish Government is just exploring the Barnahus concept and whether it could be adapted for Scotland. That work is at the exploratory stage now.

The Convener

You have not mentioned the streamlined process for arranging the use of standard special measures. The bill provides for an automatic entitlement and makes the process administrative rather than judicial. Will you talk about that?

Karen Auchincloss

At the moment, if somebody is automatically entitled to standard special measures, they are automatically entitled. However, as the legislation is framed, the applications and notes go to the judge, so this provision is just to free up judicial time and to make it more of an administrative process. Another thing with standard special measures is that people are automatically entitled to them and no other parties can object. The provision will make the process more administrative and less of a judicial rubber-stamping exercise, which will free up time.

The Convener

Is there no concern that, by making it an automatic administrative process without the judge casting their eye over who is before them, someone who needs not just the standard measures but others might slip through the net?

Karen Auchincloss

As it is framed at the moment, the legislation has review provisions so that a court or judge could review it if they thought that the most appropriate special measure had not been applied for. The new rule has review provisions built in as well.

Liam Kerr

My question is on something slightly separate. The SCTS evidence and procedure review referred to research that indicated that the current system of examination and cross-examination is not a good way to obtain accurate evidence from a vulnerable witness. That is referred to several times in our papers, which is interesting. Can you give us a bit more detail on what the evidence said? Is the research scalable to not only other vulnerable witnesses but the whole system as it stands?

Lesley Bagha

Yes. The evidence and procedure review looked at the adversarial system; probably, it was looking at a bigger picture than that. In relation to Mr Finnie’s questions about the sub-group on joint investigative interviews and Lady Dorrian, I mentioned that that was, in part, looking at a longer-term vision that could be achieved by potentially moving from that system to having just one forensic interview for a case. I think that it was level 1, so it was only for certain child witnesses. That was very much seen as being a long-term vision.

Obviously, Lady Dorrian and the courts service can speak for themselves, but it is safe to say that that could not be done quickly. In a sense, what is being proposed by the Scottish Government is a first step to getting the whole system used to pre-recording being the norm. That does not happen at the moment.

Whether we currently have the best system is probably beyond what we can comment on, but a lot of interesting things came out of the evidence and procedure review with regard to getting to the truth and how to find out about it. It was about starting a journey towards a more inquisitorial system, whether or not that is the end point. We are at the very start of the journey in Scotland; we are not used to pre-recording and evidence being taken in advance. It is about starting that and it becoming the norm.

I leave it to the courts service, which has been much more involved, to comment on the research in detail, in case I misrepresent it. It was part of a much more extensive possible vision for the future for Scotland, rather than something that could happen immediately.

Liam Kerr

But if that is the start of a journey, how do you respond to the suggestion—criticism is perhaps too strong a word for it—that the ability to extend the category of vulnerable witness by regulation only provides Parliament with insufficient scrutiny over that category?

Lesley Bagha

At present, it is proposed that that will be by affirmative procedure, so there is still sufficient scrutiny. It is hard to see in what other way that could be done. If the committee or Parliament were not happy with what is proposed, further evidence could be given. An extension could not just happen in a vacuum; there would have to be broad discussion about it and how it would be done.

One reason why it is good to have the flexibility and still have the parliamentary scrutiny that comes with it being done by affirmative procedure is that, if something is too flexible, there is a much greater risk that something comes in before the system is ready for it to be handled, which could have a detrimental effect on vulnerable witnesses.

There absolutely will be parliamentary scrutiny. If, in future, regulations are brought forward to extend the category to include deemed vulnerable witnesses, parliamentary scrutiny is built in. It would not just be done by a commencement order as that power would have to be put before the Parliament.

The Convener

That concludes our questioning. I thank the witnesses for attending. We suspend briefly to allow a change of witnesses.

The Presiding Officer (Ken Macintosh)

The next item of business is a stage 1 debate on motion S5M-15699, in the name of Humza Yousaf, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

The Cabinet Secretary for Justice (Humza Yousaf)

I am delighted to open the debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

I thank the Justice Committee and its convener, Margaret Mitchell, for the stage 1 report and I thank the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee for their consideration of the bill.

I extend my thanks to the many stakeholders and individuals who gave evidence. I was encouraged to hear so many speak to the benefits that pre-recording evidence can bring. Some rightly pointed out the challenges and areas where more can still be done to improve our criminal justice system for the most vulnerable witnesses. I am very aware of that, and it is one of the reasons why I set up the victims task force. I look forward to the debate, which I have no doubt will be positive and constructive, on these significant proposed reforms.

I am grateful for the Justice Committee’s support for the general principles of the bill and in particular its endorsement of the proposed new rule requiring the evidence of child witnesses in the most serious criminal cases to be recorded in advance of the trial. The committee made a number of detailed recommendations to which the Government responded yesterday.

I will set out the principles of the bill and the positive changes that it will bring to the criminal justice system if it is passed by the Parliament. I will also address some of the key points that the committee raised. First, however, it is important to acknowledge the work of the Lord President, Lord Justice Clerk and the Scottish Courts and Tribunals Service’s evidence and procedure review. The review made recommendations on how to improve the treatment of vulnerable witnesses. It also involved wider stakeholders and creates a long-term vision for how evidence can be taken. It is also having a more immediate positive impact, in particular due to the new High Court practice note on evidence by a commissioner.

The bill would not have been introduced without the leadership of my predecessor Michael Matheson on improving how evidence is taken from children and it is a vital first step towards the vision that, where possible, child witnesses should not have to give evidence at trial.

I turn to the main provisions of the bill. Evidence by commissioner is a special measure that allows for evidence to be pre-recorded and played at trial without the witness having to be present. The date and time for evidence by commissioner is scheduled in advance, avoiding uncertainty for vulnerable witnesses and minimising the distress that is caused by delays to the trial. The atmosphere is less formal than it is in full court proceedings and evidence can be recorded directly or via remote video link from another location. The early capture of the evidence enables the vulnerable witness to recall events more accurately, ends their involvement in the trial sooner and, when necessary, allows for quicker recovery.

We should not forget that evidence by commissioner can currently happen by application. However, the bill’s main reform is the creation of a new rule that makes a presumption that evidence by commissioner will happen for child complainers and witnesses under 18 in the first instance. The presumption will ensure that, where those individuals are due to give evidence in the most serious of cases, that evidence will be pre-recorded, unless an exception applies.

The bill also introduces a power to extend the proposed new rule in due course to adult “deemed vulnerable witnesses” in solemn cases, which could include complainers in sexual offence, human trafficking, stalking and, potentially, domestic abuse cases. I sympathise with the view that there should be a quicker roll-out to other categories of vulnerable witness, but it is vital that this major reform is undertaken in a phased, considered and effective way, by first targeting the youngest witnesses in the most serious cases. That is why the bill proposes a framework for the phased extension of the requirement to pre-record other vulnerable witnesses. The approach was supported by many stakeholders in the evidence sessions and I am pleased that the committee agrees that a phased approach to implementation is sensible.

Liam McArthur (Orkney Islands) (LD)

The cabinet secretary is right to say that the evidence was overwhelmingly in favour of a phased approach, but he will also be aware that there was compelling evidence for the inclusion of domestic abuse cases alongside the cases that he has listed. Is the cabinet secretary minded to accept that and introduce an amendment to that effect at stage 2?

Humza Yousaf

Mr McArthur has pre-empted what I was going to say later in my speech, but I am very open. I thought that the evidence was compelling and very powerful. Liam McArthur will be aware of the steps that the Government has taken in order to improve the awareness and the tackling of domestic abuse and, of course, of the provisions that will come into force in the spring. I am extremely open and I am looking at the implications for resources and so forth, which are important and cannot be ignored. I am minded to lodge an amendment in the future, but I have to do some more work in that regard. I will listen to what else members have to say on the matter.

Daniel Johnson (Edinburgh Southern) (Lab)

Further to Mr McArthur’s point, the cabinet secretary will be aware of the discussions around summary cases in general. Given that the vast bulk of domestic abuse cases are summary, is there a proposal to look at encouraging the use of similar techniques in those cases, given that it is possible for sheriff courts to do so?

Humza Yousaf

That is a good point and I will look at that encouragement where I can. It is correct to say that the vast majority—I think almost 94 or 95 per cent—of domestic abuse cases are dealt with by way of summary proceedings. I think that Mr Johnson will accept that if we were to extend the presumption to summary cases, that would almost be the wrong way round. It is important that we apply the presumption to the more serious cases—solemn cases—first and foremost and that we focus on the most vulnerable, namely the youngest, witnesses in our society. Notwithstanding that, Mr Johnson’s point is valid.

Can I check how much time I have for my opening statement, Presiding Officer?

The Deputy Presiding Officer (Christine Grahame)

You have 12 minutes, but I am happy to give you a little more time.

Humza Yousaf

Thank you.

The Deputy Presiding Officer

I said that without having my microphone on.

Humza Yousaf

That is okay, I heard you.

The Deputy Presiding Officer

I know, but the world has to hear me, cabinet secretary.

Humza Yousaf

In terms of the implementation of the legislation, legislative reform, as Daniel Johnson has just pointed out, is only a part of the work that is needed to ensure that there is much greater use of pre-recording. It is vital to ensure that there are sufficient modern facilities and pre-recording technology to enable this important reform to be implemented in practice. We heard time and again in the Justice Committee’s evidence sessions that there is work to be done in relation to the facilities and the infrastructure when it comes to pre-recorded evidence. In October last year, I announced £950,000 of funding to support the Scottish Courts and Tribunals Service with the creation of a new child and vulnerable witness-friendly hearings suite in Glasgow. The facility, which I have visited, will make significant improvements to the experience of victims and witnesses in the Glasgow area.

We have also made a further £1.1 million available to the Scottish courts service and are working with it to upgrade other venues and technology. The funding is important to get the court infrastructure ready for the increase in the number of witnesses having their evidence pre-recorded. We have shared with the Justice Committee a provisional implementation plan for the staged commencement and extension of the rule requiring pre-recording. Before the plan can be finalised, it is important to see whether any significant changes are made to the bill during the parliamentary process that could affect it. However, once the approach has been agreed, I would be happy to share further details with the committee.

I turn to issues that were raised in the stage 1 report. I was pleased that the committee supported a broad range of provisions in the bill. On the issue of cross-examination, I recognise that some legal stakeholders have concerns that the bill may enable a prior statement to be used as a witness’s only evidence, even when the defence wants to cross-examine. The bill does not in any way limit or alter the right of the defence to cross-examine a vulnerable witness who has their evidence pre-recorded, and nor does it limit in any way the ability of the defence to test the evidence. However, I am keen to allay any concerns on the matter and I will consider in advance of stage 2 whether an amendment is required to clarify that point.

Liam McArthur asked about domestic abuse cases. I note the committee’s recommendation that the bill should be amended to include domestic abuse in the list of offences covered by the rule. I am open to the suggestion that the list should be extended to include domestic abuse offences in solemn cases and I will be interested to hear the views of other members during the debate. A number of stakeholders—including the National Society for the Prevention of Cruelty to Children, in its briefing, and many others, including, I think, Scottish Women’s Aid—suggested such an extension. I am open to that, but I think that we would all accept that it has some implications that I have to work through.

The committee welcomed the provisions in the bill that would require a ground rules hearing before the taking of evidence by commissioner. However, the committee asked that we consider whether there should be greater scrutiny of the questions to be asked at the commission. I can understand that, sometimes, it may be of benefit for questions to be lodged in advance. However, I am not convinced that requiring that in primary legislation is the best approach. I agree with Lady Dorrian, who said in evidence that in order to maintain flexibility, the High Court practice note is the more appropriate place to set out the detail of what should be required at the ground rules hearing. Again, though, I am open-minded.

On prior statements and additional measures to support vulnerable witnesses, the committee made a range of recommendations on broader matters such as joint investigative interviews and the work of the victims task force. I will ensure that those recommendations are discussed at the next meetings of the task force and the joint investigative interviews governance and working groups. My response to the committee highlighted the significant on-going work to improve the quality of JIIs, which should enable them to be used even more frequently as part of a child’s pre-recorded evidence.

The committee made a number of recommendations relating to the implementation of the barnahus principles in Scotland, and I am happy to accept its invitation to discuss those matters. Many committee members travelled to Norway to see for themselves barnahus in practice. The barnahus concept is about much more than evidence and the justice process. It supports a child’s recovery from the point at which they disclose abuse, as well as supporting their right to justice. Accordingly, any move to implement the barnahus model would need to look at all those issues holistically. It is also accepted by most, if not all, members of the committee that every barnahus, whichever jurisdiction it is in, should be relevant to that jurisdiction. Tweaks and appropriate nuances may therefore be needed so that, collectively, we come up with what we think is a Scottish barnahus approach and have a road map to that destination.

I strongly believe that the justice system should be compassionate, trauma-informed and able to respond effectively to the needs of victims and witnesses. There have been significant changes in recent years to the criminal justice system to recognise the interests of those groups. However, more can be done, and I am determined that more should be done, to support child and other vulnerable witnesses, and I am confident that the bill is a major step towards achieving that. I look forward to the rest of the debate and to hearing the views of members across the chamber.

I move,

That the Parliament agrees to the general principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

The Deputy Presiding Officer

Before I move on, I ask members who have not yet pressed their request-to-speak buttons to do so now. I call Margaret Mitchell to speak on behalf of the Justice Committee. Convener, you have nine minutes.

Margaret Mitchell (Central Scotland) (Con)

It is a pleasure to speak on behalf of the Justice Committee in today’s stage 1 debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, and I thank all those who gave evidence to the committee. The committee thanks Lady Dorrian and the Scottish Courts and Tribunals Service staff for arranging visits for members to see the current arrangements for pre-recording evidence. Our grateful thanks also go to all at the barnahus in Oslo, for the time that they spent with us during our visit to the facility in December. That first-hand experience was invaluable for scrutinising the bill and forming a longer-term view of the changes that are required to improve the experience of child witnesses. I thank the Justice Committee clerks and committee members for their hard work in producing the report.

Legislation already allows for a child or vulnerable witness’s evidence to be recorded in advance of a criminal trial. However, despite an increase in pre-recording, it is still not common practice. The committee therefore supports the bill’s new rule, which would generally require all of a child’s evidence in the most serious cases to be pre-recorded. Removing children and vulnerable witnesses from the court environment and the traditional examination-in-chief and cross-examination has several advantages: it reduces their distress and trauma; it improves the quality of their evidence, because taking evidence earlier in the process aids their ability to recall events; and it allows them to get on with their lives.

Crucially, undue delay is avoided, the potential consequences of which Barnardo’s has set out compelling evidence about. Some young people who were 14 when they had offences committed against them were 16 and a half by the time they presented in court. Barnardo’s stated:

“Because of the trauma that they have experienced, they can be involved in a lot of behaviours ... not seen to be positive. What the court sees is a difficult, belligerent, drug-addicted, alcoholic young person instead of the child they were when the offences happened.”—[Official Report, Justice Committee, 27 November 2018; c 12.]

Nevertheless, the committee fully recognises that the new rule will have major implications for our adversarial criminal justice system. Not only will it require sufficient facilities and technology to pre-record evidence; more significantly, there will need to be a shift in legal practice and culture. The committee therefore agrees with the Scottish Government that a phased approach to implementation is sensible. Given the importance of getting this right, the committee recommends that progression between phases should be based on careful and detailed evaluation.

The committee agrees that the initial phase should focus on child witnesses in the most serious cases. However, following powerful evidence about the pressures that children can experience when giving evidence in domestic abuse cases, it urges the Scottish Government to amend the bill to include those cases in the new rule. The cabinet secretary’s comments and his confirmation in today’s debate that he will listen to views on that subject are very welcome.

The committee also supports the phased extension of the new rule to other serious offences and to adults who are deemed to be vulnerable witnesses, which the bill provides for through affirmative regulations. It is crucial that there be sufficient parliamentary scrutiny of the regulations, preferably before they are introduced. The committee welcomes the cabinet secretary’s willingness to share information that was gathered during the evaluation of earlier phases of implementation and asks to be provided with early notification of the Government’s intention to lay regulations extending the rule. Members must be able to consider whether the necessary technology and facilities are in place to cope with any extension of the rule and whether any lessons can be learned from earlier phases of implementation.

In view of those undertakings, and on balance, the committee considers that the approach outlined in the bill is appropriate to allow vulnerable witnesses to benefit from the provisions without any delay caused by primary legislation being required, although that does not preclude the possibility of the committee recommending that an extension of the rule be provided for in primary legislation if that is deemed necessary.

The committee accepted the Mental Welfare Commission for Scotland’s comment that

“a bad interview done early is no better than a bad interview done in a trial.”—[Official Report, Justice Committee, 27 November 2018; c 33.]

The committee therefore recommended that all those who are involved in questioning child and vulnerable witnesses receive appropriate trauma-informed training, and the committee seeks assurances from the cabinet secretary that sufficient resources will be in place to deliver that training.

In addition, the committee considers that there should be measures in place to protect witnesses against the risks of harassment and further victimisation throughout the process, including after they have given evidence and proceedings have concluded. That is immensely important not only to protect individuals from harm but to ensure that other potential witnesses are not deterred from giving evidence. The committee welcomes the establishment of the new victim task force to look at that issue in detail.

The committee was unanimous in its strong support for implementing the barnahus principles in Scotland. During our visit to the barnahus in Oslo, we saw that the facility, which is located away from the court, is child friendly and provides a range of support services under one roof. Crucially, the visit allowed the committee to understand the one forensic interview approach, whereby the child is interviewed by a highly trained police officer, with no direct questioning by lawyers. However, the rights of the accused are protected by allowing the defence to request a supplementary interview when that is necessary. That interview is carried out by the same police interviewer, who asks the defence’s additional questions to test the child’s evidence. The one forensic interview approach delivers benefits both in the quality of the evidence that is obtained and in supporting children’s recovery from trauma.

The committee realises that that approach would require a significant shift in legal culture and practice, as well as substantial resources, but the committee considers that it could be used in appropriate cases. Furthermore, no less a person than the Lord Justice Clerk, Lady Dorrian, has said that she sees no reason why the barnahus system cannot be adopted in Scotland in the longer term.

In the meantime, priority should be given to developing an enhanced process for joint police and social work interviews with children, to be conducted by highly trained interviewers in child-friendly facilities, with other support services available under one roof. That would deliver significant benefits for child witnesses and would be a meaningful step towards implementing the barnahus principles.

The Justice Committee unanimously supports the general principles of the bill and its aim to increase the use of pre-recorded evidence. Nonetheless, it is evident that a barnahus model is far removed from current practice in Scotland. The committee therefore calls on the Scottish Government to work towards adapting the one forensic interview approach and recommends that urgent action be taken to adopt elements of the barnahus principles and to ensure that progress is made within the current parliamentary session to drive forward efforts to fully implement those principles in the longer term.

Liam Kerr (North East Scotland) (Con)

I am very pleased to close for the Scottish Conservatives and speak in favour of the principles—[Interruption.]

The Deputy Presiding Officer

I think that you are opening for the Conservatives, Mr Kerr.

Liam Kerr

I am pleased to open, as well as close—[Laughter.]—the debate for the Scottish Conservatives and speak in favour of the principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

At the outset, I echo the convener’s gratitude to the clerks, not only for the quality of the report, which succinctly and clearly reflects the key points and the committee’s examination of the bill, but because, contrary to initial concerns, they had not shredded the draft that I left with them, which had all today’s speaking notes scribbled on it—although, having begun by saying that I was closing, I might wish that they had shredded it after all.

The fundamental principle of the bill is one that, as the convener said, the committee and the Scottish Conservatives are united behind. At its core, the bill is about improving the experience and evidential reliability of children and vulnerable witnesses in the criminal justice system. It does that by increasing the use of pre-recorded evidence.

When a child witness—the bill notably and rightly excludes a child accused—is to give evidence in solemn criminal proceedings involving one of a set list of offences such as murder, culpable homicide, assault to the danger of life or human trafficking, the court must enable all their evidence to be given in advance of the hearing. In other words, in an extension to the protections that are already in place, in those cases all the child’s evidence will be given in advance.

As the convener set out, that was pretty much universally agreed to be a good thing. The Scottish Courts and Tribunals Service described it as

“a critical step in improving both the experience of witnesses and the quality of justice”.

In that regard, I found compelling the evidence of Children 1st that

“Scotland’s justice system—designed for adults and rooted in the Victorian era—often causes them greater trauma and harm.”

Notable, too, was the SCTS’s “Evidence and Procedure Review Report”, in which it was suggested that

“particularly for young and vulnerable witnesses, traditional examination and cross-examination techniques ... are a poor way of eliciting comprehensive, reliable and accurate accounts”.

Some witnesses and MSPs feel that we should go further, and we may well hear about that in the debate. Certainly, the committee concluded that there would be merit in expanding the rule requiring pre-recording to child witnesses in domestic abuse cases. That makes sense, as the cabinet secretary noted. A number of submissions made that point, too. One would have thought that it stands to reason that the potential, almost special, nature of the trauma to a child in such cases, as highlighted in evidence from Scottish Women’s Aid, would mandate such special measures. That is particularly the case, given that, logically and as suggested by the advocacy, support, safety, information and services together project, the new Domestic Abuse (Scotland) Act 2018 could lead to greater numbers of children being cited to give evidence. I agree with Liam McArthur that there seems to be merit in including child witnesses in such cases. I am encouraged by the cabinet secretary’s response to Liam McArthur’s intervention, in which he stated his willingness to consider the proposal, and I look forward to developments at stage 2.

Humza Yousaf

I have looked at the figures, and although domestic abuse cases that go to solemn proceedings make up only 4 per cent of the total, that equals about 150 High Court cases and 750 sheriff and jury cases.

I am absolutely open-minded to the suggestion, but does Liam Kerr agree that, given the number of cases involved, it is undoubtedly important for the Government and others to examine the resource implications of making that potential change?

Liam Kerr

I agree with the cabinet secretary that the resource implications are crucial. I will say something specific about that shortly, but I will track back slightly before I do so.

On the same theme, in an intervention, Daniel Johnson brought up what is potentially a key issue. In its submission, the NSPCC suggested that, as only a few cases of domestic violence go to solemn proceedings, there is a danger that, by excluding summary proceedings, we exclude child witnesses in domestic abuse cases. Like Daniel Johnson, I find that concerning.

I note that the Lord Advocate has presented a response in which he specifically addresses the point. If I do not respond to the cabinet secretary’s intervention in two seconds, I ask him to reiterate some of those concerns, which were well expressed by Daniel Johnson.

During our evidence sessions, the suggestion was made—I suspect that it will be repeated in the debate today—that we should go further, particularly in relation to adults who are deemed to be vulnerable witnesses, and that we should expand the categories of people who would be covered by the provisions on pre-recording and automatic special measures. The bill gives ministers the power to do that, but the cabinet secretary indicated that that would involve a long timeline. His approach is supported by the Crown Office and Procurator Fiscal Service, which felt that it would be appropriate to take evidence-based, deliberate decisions over time on expanding the categories.

I accept that that approach will cause understandable frustration, but I agree with the cabinet secretary that it makes sense. The bill makes a seismic change that goes to the heart of the criminal justice system. The cabinet secretary highlighted his concern that quicker expansion may overwhelm the system.

It seems vital that whatever we put in place is introduced in a managed way that takes account of what will be a cultural paradigm shift, as highlighted by the Scottish Courts and Tribunals Service in particular.

A significant cost seems to be involved: the financial memorandum estimates the annual recurring costs of the bill’s provisions to be up to £3.5 million. The maximum estimated cost of extending the new rule to all adults who are deemed vulnerable witnesses is around £14 million.

The committee concluded that a phased approach is sensible—I agree with it on that point. To try to implement everything at once could be counterproductive. We might end up in a worse place than the one in which we started, with an inefficient and ineffective approach and the potential for miscarriages of justice.

On that point, I will pick up on a point that the convener made. The ability to expand the categories of protection by regulation caused me some consternation. My concern was whether, given that this is a managed but significant change to the system, expansion of categories by regulation affords sufficient opportunity for scrutiny. The Faculty of Advocates, in particular, expressed concern about that.

The committee heard a great deal of evidence on that point. The cabinet secretary noted that primary legislation could cause delay. In my view, delaying matters to get them right is never a bad thing. However, it was reassuring to hear the cabinet secretary promise to share the evaluation evidence with the committee prior to scrutiny of any such regulations. We also received an undertaking in that regard in the Government’s response yesterday.

Today, the Parliament is asked to indicate whether it supports the principles of the bill. The Justice Committee’s report provides strong evidence—as, no doubt, will today’s debate—that the principles of the bill are the right ones. It is clear that pre-recording evidence of children and adult vulnerable witnesses reduces the distress that such witnesses go through and can help to ensure that the most accurate evidence is obtained.

Throughout our evidence gathering, it was clear that the bill is a start and that there are other areas into which protection of vulnerable witnesses might go. I look forward to hearing representations from colleagues across the Parliament in that regard.

I am pleased to confirm that the Scottish Conservatives will support the principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at decision time.

Daniel Johnson (Edinburgh Southern) (Lab)

This is a useful and important debate, in which we can come together in agreement about how we can modernise and improve our justice system, to make it more effective and more humane.

I, too, thank the Justice Committee clerks and my fellow committee members. I also thank the numerous organisations who submitted evidence, orally and in writing, to the committee—without their efforts we simply could not do our work.

In particular, I thank the Scottish Courts and Tribunals Service, because the opportunity to see facilities and hear about how evidence on commission is taken was hugely important. I also thank the Norwegian police for the time that they took to show us the barnahus model that operates in Norway.

Above all, I thank Lady Dorrian, because the bill represents a substantial amount of her work and effort. She first made the proposals in 2015; broader reforms were initiated in 2013. Her practice note, which has meant that evidence is being taken on commission, was produced in 2017. We should not underestimate the time that it has taken to get here.

The bill’s provisions undoubtedly represent a useful step forward for the Scottish judicial and court system and will improve the experience of child witnesses. As a number of members have said, we must not retraumatise young people who give evidence in court. It is vital that they give evidence; it is equally vital that we ensure that they do so in a way that does not retraumatise them.

More important, the bill is about improving the quality of evidence that is given by reducing the time that it takes to take evidence—the committee heard that it takes considerably less time when a witness provides their evidence on commission—and by reducing stress. That will improve the accuracy and quality of the evidence that is given.

For those reasons, Labour supports the bill at stage 1.

It is important that we examine the provisions and consider how the bill might be improved. Moreover, we should consider the next steps that we can take to improve our justice system. Therefore, I want to talk about how we ensure that the interests of the child are best met; the investment that is required; and the possible extension of the provisions to other types of witness and other types of hearing.

The ground rules hearing is absolutely central to the proposals on protecting the interests of the child. The prosecution and the defence will set out how they will cross-examine the witness and draw out the evidence for the court through the ground rules hearing. There will still be cross-examination—we saw that in examples of evidence taken on commission when the committee went to the High Court. The ground rules hearing will ensure that things are conducted in a way that is humane and effective in gathering evidence.

It struck me that the process will be very reliant on the training and practice of the advocates who will conduct the evidence gathering. Although the ground rules hearing is important and it is right that we do not overburden the bill with provisions or requirements, we must understand the dependency on the ground rules hearings being conducted properly and recognise that they rely on agreement. Trust is involved. We will trust the advocates to take their duties seriously and responsibly. We must review how the process is carried out to ensure that it is not abused and does not go in directions that were not foreseen. Although advocates in the main may approach matters in the way that we would hope, the intention at the point of legislating can sometimes result in practice that was not intended. Therefore, we need to keep the process under examination.

We must also ensure that there is adequate support and that a common point of contact is provided to vulnerable witnesses, particularly children. A number of third sector organisations made that point. Should we have a much more proactive and positive duty at the ground rules hearing to look at what sort of support is provided to witnesses who are providing evidence that is taken on commission?

Much has already been made of the requirement to have a phased approach and why that is necessary, given the investment and the undertaking that the bill represents. I agree with what has been said. The Government is right to look at a phased approach. As Liam Kerr pointed out, it is critical that we get this right and that we take our time to do so. However, we must ensure that investment takes place. When I looked at the room that is used in Parliament house, I was struck by the fact that it is still essentially a conference room in a court building and that it falls far short of the child-friendly environment that we might wish for. I welcome the investment in a new evidence suite in Glasgow, but will we make such facilities available to every child who gives evidence in Scotland, wherever they may do so? We need to ensure that there is consistent access for vulnerable witnesses.

We must also focus on training, legal practice and culture. The investment cannot simply be in technology and spaces.

I want to briefly mention domestic abuse. Although I welcome the cabinet secretary’s comments, if the bill is about establishing a principle on the right way to take evidence from vulnerable witnesses, why does it not provide for at least the possibility of extending the provisions to summary cases? I understand the arguments and the restrictions in respect of investment and the requirements that exist, but if the principle is right and the strategy that has already been set out in the bill is for staged implementation, should not provision for that final extension to summary cases be provided for? The Government should certainly look at ways in which the practice is encouraged in sheriff courts, because it is possible for them to take evidence in that way.

I am running out of time. I, too, am opening and closing for my party, so I will get a second chance to get in the bits of my speech that I have not managed to get in, which I am very thankful for.

The bill is a significant step forward. It takes the right approach in its proposals and how they will be implemented. However, we must always challenge, so we must seek to go further in the bill and in future steps that we can take with our court system in Scotland.

The Deputy Presiding Officer

I should clarify that Gordon Lindhurst will close for the Conservatives. He was looking a bit peeved.

John Finnie (Highlands and Islands) (Green)

Like my Justice Committee colleagues, I thank witnesses and parliamentary staff, various organisations for their briefings and our friends in Norway for their helpful advice.

As I hope that the committee report evidences, there has been detailed scrutiny of the Government’s proposals. There are a couple of recurring themes. One theme, which I hope to talk about in a bit more detail later, is the tension between the adversarial system as applied at the moment and the inquisitorial system that is more in keeping with the proposals in the bill. The other is the rights of witnesses and the accused.

The Scottish Green Party will unequivocally support the bill at stage 1.

I take us back to the case for reform as outlined in the committee’s report. We highlighted the Scottish Courts and Tribunals Service’s “Evidence and Procedure Review Report”, which is from 2015. I make no apologies for this long quote, because it is helpful. The Scottish Courts and Tribunals Service report says:

“It is now widely accepted that taking the evidence of young and vulnerable witnesses requires special care, and that subjecting them to the traditional adversarial form of examination and cross-examination is no longer acceptable.”

It continues:

“recounting traumatic events is especially distressing for children, and can cause long-term damage”.

Importantly, it says that that approach

“is a poor way of eliciting comprehensive, reliable and accurate accounts of their experience”.

We are told that the status quo damages witnesses in the same way that it disadvantages the public interest and the interests of the accused. I do not think that any of us wants to see that situation prevail.

Children 1st’s written evidence, which has been alluded to, says:

“Over and over again child victims and witnesses”

of crime

“have told us that Scotland’s justice system”

is, as someone mentioned earlier,

“designed for adults and rooted in the Victorian era”

and that it

“causes them”

additional

“trauma and harm”.

The submission goes on to mention the

“scientific understanding of child development”.

The extent to which child development has been mentioned in our deliberations is heartening. Understanding the needs of individuals—whomever they may be—is important, and there is growing awareness of that, not least in relation to the impact of adverse childhood experiences and trauma awareness. A lot of organisations, including Police Scotland, are very much aware of that.

The Children 1st submission also tells us:

“Developmentally children’s ability to recall memories varies with both age and their experiences of trauma.”

I join others in supporting the extension of the provision to domestic abuse cases and summary cases. Although the cabinet secretary is supportive of that, if I noted him correctly he said that the implications have to be worked through. I resolutely support that approach, and the incremental approach that the committee is in favour of. We are talking about a significant investment in time, training and facilities. It is crucial that we get this right and that, most important, we take practitioners from all sectors with us.

Daniel Johnson is correct to say that it is about getting the facilities right. I sat with Daniel and other members in the room that he spoke about—I mean Daniel Johnson. I beg your pardon, Presiding Officer. I saw the face.

The Deputy Presiding Officer

You read my lips.

John Finnie

I know that expression.

I sat with Daniel Johnson and others in the room that he spoke about. Yes, it was not particularly child friendly, but we saw the benefit of having such a facility for the child.

It is important that we get the whole criminal justice system right. The Lord Advocate has just responded to the committee’s report. His letter is pretty much like the Scottish Government’s response, and we are very pleased to have those responses, albeit that they have come at the 11th hour. He mentions the need to disclose obligations in adequate time. The ground rules hearing that has been mentioned is a fundamental part of what we are seeking, and the timing associated with that is crucial. We have had debates about whether it should be pre or post indictment. We do not want a situation in which someone is unnecessarily put through trauma only for the Crown Office and Procurator Fiscal Service to decide against taking forward a case because it is not in the public interest or because there is an insufficiency of evidence to proceed; equally, we do not want trauma to be caused by having to wait to give evidence. That is another tension and balance that needs to be worked through. That will be helped by having an expeditious process, which the Lord Advocate refers to in his response. The Crown Office and Procurator Fiscal Service has created 41 additional posts in the High Court to tackle the most serious cases, in which such an approach is likely to be used.

The committee took evidence on joint investigative interviews, which involve Police Scotland and social work staff. Those interviews are an important part of our process, but they are a long way away from the barnahus system, which started in Iceland and applies across Nordic countries, and which we saw in Norway. That involves three years of training for police officers. We saw charts on the wall about the expectation of children’s understanding at different stages—the developmental issue is important.

The proposals are excellent, but there is a way to go, and we will work on that.

Liam McArthur (Orkney Islands) (LD)

Like colleagues, I thank the clerks, the Scottish Parliament information centre and others for supporting the committee and I thank in particular all who gave oral and written evidence during our stage 1 consideration of the bill.

Like others, Scottish Liberal Democrats strongly support the bill’s principles, although they are hardly controversial. That can present challenges, as cross-party consensus can sometimes blunt robust scrutiny, but I am confident that that is not a risk in this instance, because the committee has already identified a number of areas where we will look to work with the Government to improve and strengthen the bill at stages 2 and 3.

Before I turn to those aspects, I, like others, record my gratitude to those who hosted the committee’s visit to Oslo at the end of last year. It was enormously helpful to see at first hand how the barnahus—child’s house—principles are applied in Norway. Approaches differ between the countries that apply the principles, but the visit demonstrated clearly to the committee what a genuinely child-centred and integrated approach to criminal justice looks like.

For a country such as Scotland that aspires to be the best place to grow up in, barnahus must be at least part of the yardstick against which we measure ourselves. I accept that the one forensic interview approach of barnahus would require a shift in legal culture and practice here, given our adversarial system. Nevertheless, we see the lighthouse model being trialled in London, and there was almost unanimous support from those from whom we took evidence—including, as our convener said, Lady Dorrian, to whom we owe a huge debt of gratitude—for moving more quickly towards adopting the principles.

As the NSPCC pointed out, integrating justice, healthcare and on-going therapeutic social care services under one roof—often in purpose-built, child-friendly accommodation—is the best, if not only, means of effectively reducing trauma for child victims and witnesses while maximising the chances of capturing their accounts of what happened. It is fair to say that we are still some way off that.

The Scottish Courts and Tribunals Service admitted in its 2015 review that

“Scotland is still significantly lagging behind those at the forefront in this field.”

However, the SCTS has argued—rightly—that the bill is a

“critical step in improving both the experience of witnesses and the quality of justice.”

Enabling greater use of pre-recorded evidence from children and vulnerable witnesses is the right way to go and builds on the special measures that are in place. As Lady Dorrian made clear, ways must be found to take evidence from children and other vulnerable witnesses

“in an environment and in a manner that does not harm them further, but allows their evidence to be given and tested fully and appropriately.”

Humza Yousaf

I have been listening carefully to Liam McArthur and reflecting on what he has said. Does he agree that the relative consensus in the Parliament could be an advantage in helping to shift the legal culture that has applied in Scotland not just for decades but for centuries? If we put collective effort into dealing with obstacles that we might come across, that might have value in helping to shift mindsets.

Liam McArthur

That is a valid point and I do not diminish the value of consensus. Sometimes, the perception has been that the demand for reform that has emanated from the Parliament has been met with resistance in the legal community, but the evidence that we took suggested that that community has an appetite to collaborate with us. I hope that that will bear fruit.

The balance is crucial, and the rights of the accused cannot be lost in the process. The Law Society of Scotland made valuable points about the need for early identification of cases and effective communication by the COPFS, including timely disclosure of information. Without that, the defence is unlikely to be able to test the evidence fully. That said, the Lord Advocate is right to identify ground rules hearings, which would be overseen by a judge or sheriff, as an opportunity to strike the right balance between defence and prosecution interests, as well as to ensure that the questioning of a child or vulnerable witness is carried out in an appropriate and sympathetic fashion.

The committee felt strongly that when evidence is then taken by commissioner, every effort should be made to minimise any delay that could affect a child’s recollection of events and to avoid, if at all possible, the need for such recorded interviews to be carried out more than once. While none of that is entirely new, the committee quickly recognised that what the bill proposes will have serious resource implications for aspects from training through to equipment and facilities, as was mentioned by John Finnie and Daniel Johnson. Some of those have already been recognised by the Scottish Government, and I welcome the additional investment that has gone into the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service. However, if such measures are to be applied routinely and to a consistently high standard, we should not underestimate what will be involved or the pressure that they will place on the criminal justice system.

For example, we already know that support for victims and witnesses in our courts and wider communities is stretched. That message came through during our earlier inquiry into the Crown Office and Procurator Fiscal Service. Welcome though the bill’s provisions undoubtedly are, they will inevitably compound the challenge that is faced by many of those services. That is why it makes sense for the Government to adopt a phased approach to implementation, starting with the most serious solemn cases in the High Court that involve child victims and witnesses. I can entirely understand the impatience in some quarters to see the measures rolled out for all victims and witnesses in the High Court and sheriff courts. However, the committee heard overwhelming evidence that there is a significant risk that the system would be unable to cope with that, which is an outcome that would serve no one’s interests. Therefore, I accept the case for working through each phase systematically, reviewing and learning lessons before seeking to extend the provisions.

However, I agree that the categories of cases in section 1 that are covered by the rule need to be expanded to include domestic abuse. Again, the evidence that we heard in that regard was both overwhelming and compelling. The Cabinet Secretary for Justice suggested that he had an open mind on that, which I welcome, and I encourage him to accept that case and to lodge an amendment at stage 2. As for future changes to the circumstances in which the protections and provisions would apply, again, there is sense in enabling those through regulations.

In conclusion, let me—as most other members have done already—quote Children 1st, which stated:

“a joined up approach to the care and justice needs of child victims and witnesses through a Barnahus or ‘Child’s House’ is the best way to get it right for children from the moment they tell their story, ensuring that the child and their family get the support they need to recover. This will ensure that we have a justice system that is able to do both what is best for children and best for securing evidence.”

I hope that we can go some way towards ensuring that ahead of stage 3.

The Deputy Presiding Officer

We move to the open debate and speeches of six minutes.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Let me start by saying that this is a good bill and I am happy to commend its general principles to the chamber.

As the deputy convener of the Justice Committee, I thank the clerks for all their work in producing a fair, well-balanced report. As we have heard from my colleagues, the bill achieved consensus among the committee. We heard a lot of evidence from stakeholders in the legal profession, children’s organisations and the court service, whom I thank for giving evidence.

In essence, the bill will ensure that children in the most serious criminal cases—those who have been victims of or witnesses to sexual offences, murder, assault or danger to life—are spared the trauma of giving evidence in court. It will enable them to give pre-recorded evidence much closer to the time of the offence. The Lord Justice Clerk, Lady Dorrian, told the committee:

“When children, in particular, are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident”.—[Official Report, Justice Committee, 18 December 2018; c 3.]

That is crucial. Being asked to recall an event that may have taken place some time ago can be extremely distressing and traumatising for a child.

In its written submission, Children 1st told us:

“Over and over again child victims and witnesses have told us that Scotland’s justice system—designed for adults and rooted in the Victorian era—often causes them greater trauma and harm. At the same time, as scientific understanding of child development—and recently our understanding and awareness of the impact of Adverse Childhood Experiences—has grown, it has become overwhelmingly evident that Scotland’s traditional approach to justice is the least effective for eliciting consistent, reliable accounts from child victims and witnesses.”

As we know, the bill applies only to witnesses in solemn cases that are heard in the High Court, but a phased extension is proposed to cases that are heard in the sheriff court, under which child witnesses of domestic abuse would be covered. Along with other members, I am extremely keen for that to happen as soon as possible, as the majority of domestic abuse cases are heard in the sheriff court. I am pleased that the justice secretary has said that he will keep an open mind on including such a provision in the bill.

I understand the need for a phased approach that involves monitoring and evaluation of the effect of the bill on court procedure and resources. I hope that a successful evaluation can be carried out quickly and that arrangements will be put in place for the extension of what is proposed from the High Court to the lower courts. I hope, too, that the proposal will be extended to cover adult vulnerable witnesses in solemn cases, who could benefit in the same way by giving recent unpressured evidence in a less-intimidating environment.

Rape Crisis Scotland said that cases often take two years or longer to move from the police report stage to trial, only for complainers

“to get a call the night before to say the trial isn’t going ahead ... This causes considerable distress, and does not assist in complainers being able to give their best evidence.”

I understand that special measures are put in place for witnesses who have been assessed by Crown Office staff, and I urge that that practice be continued until the new rule applies.

The bill also focuses on the quality of joint investigative interviews by police and social work, which are vital, particularly when use is made of pre-recorded evidence. As with all aspects of the bill, it is vital that thorough trauma-informed training is given to all parties who are involved in taking evidence, and I am encouraged to note that a new JII training programme is expected to be finalised by March. Interviewing vulnerable witnesses takes a very special skill, and such skills are certainly necessary when JIIs are carried out or evidence is pre-recorded.

The bill does not cover the taking of pre-recorded evidence from a child accused although, from our knowledge of adverse childhood experiences, we know that such children have many issues and are often extremely vulnerable. They are children, too. However, I understand that the right of the child accused to remain silent must be respected and that the issues surrounding the recording of evidence before the trial has begun are complex. As the decision about whether a child witness should give evidence at the trial must be made in the context of the trial, it can be made only at the end of the trial. Taking evidence beforehand could prejudice their case or risk the evidence not being entirely accurate.

Nevertheless, the Lord Justice Clerk pointed out that there are special measures that can be put in place, such as enabling evidence to be given by live television link, but they are currently underused. That is not acceptable. I urge defence counsel to consider all measures that could be used and to apply them to the child accused in all cases to minimise the trauma that is involved.

I am pleased that the justice secretary, the former justice secretary, the Lord Justice Clerk and the legal profession generally are fully supportive of the barnahus model for the giving of evidence by children. As the convener and others have said, the Justice Committee had the opportunity to visit the state barnahus in Oslo before Christmas, and we were extremely impressed with the one forensic interview system, which is operated in a child-friendly environment. Shortly after I was elected, I met Mary Glasgow and Harriet Hall of Children 1st, who explained the benefits of the barnahus to me. I was totally and utterly convinced that having such a system should be Scotland’s aim. I am delighted that we are making some progress towards that and that it will become a reality in the not-too-distant future. In evidence to the committee, the justice secretary said that scoping arrangements would be put in place early in 2019, and I would welcome an update on that.

The bill represents a huge step forward in reducing the trauma that is faced by children in our justice system, and I commend its general principles to the chamber.

Maurice Corry (West Scotland) (Con)

I welcome this stage 1 debate on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill and thank the members of the Justice Committee and its clerks for their helpful insight and scrutiny of the bill.

It is crucial that witnesses come forward to participate in court cases. Their evidence is what makes for robust and fair verdicts, but the quality of their participation is at risk, especially if they are deemed to be vulnerable witnesses. We can all see that Scotland’s court process is far from perfect. For vulnerable witnesses and children, in particular, the system can be almost overwhelming. Unless special care is taken when they are questioned, young witnesses can feel as though they are reliving their experience all over again. Pursuing a just and fair outcome without prejudice while ensuring that the witness is not placed in a distressing situation can be a sensitive balance to get right.

We have seen the benefit of adopting in courtrooms more special measures that are designed to help vulnerable witnesses. Television live links or supporters who sit with witnesses as they give evidence have been helpful methods of improving the process for young witnesses, especially if they are prone to feelings of anxiety and stress.

The proposal in the bill to allow, for some child witnesses, the pre-recording of evidence outwith the courtroom is rightly the next step to take. It will mean that, apart from in exceptional circumstances, those vulnerable witnesses will avoid the unnecessary trauma of being questioned in court, which will remove the mental burden that that places on child witnesses in the most serious cases. There is no doubt that the change in the law will help us to safeguard more readily the interests of children who have been the victims of human trafficking, sexual offences or abuse. At the same time, it will uphold the rights of those who are accused.

As well as the benefit for vulnerable witnesses, there will be a benefit for the quality of the proceedings and justice as a whole. By giving all the evidence in advance of the trial, witnesses will be able to recall their experiences far more readily and with greater accuracy and clarity, which will surely make for a more informed verdict. It will mean that witnesses have the best chance to participate in the process as helpfully as possible. Moreover, they will be free from what is often a lengthy wait until the trial.

We see pre-recorded evidence for such witnesses as the way forward, but it would be a mistake to stop there. The Scottish Government hopes to adopt a phased approach in implementing the new rule and expanding it to cover other vulnerable witnesses. Surely, that should start with the inclusion of child witnesses in domestic abuse cases. As we have heard, the Justice Committee has suggested that approach, and I believe that it was right to do so. The implications of domestic abuse are far reaching but, often, those who are most harmed are the children at the centre. Young people who experience such abuse are in desperate need of the same readiness to support them through the criminal process.

As the committee suggested, wider support mechanisms for vulnerable witnesses are well worth exploring. Providing the time and resources to allow special training would reduce the chances of harmful questioning of child witnesses and ensure that they are treated sensitively and fairly. Offering specialised and appropriate training would surely work well in tandem with implementing pre-recording of evidence.

It is equally important that we understand better the proposed timetable for the changes. We should not neglect the capacity that the bill has—we must ensure that it is as effective and impactful as it can be. To achieve that, it needs to be clear and structured in setting out the proposed phased implementation. Only with clarity can we ensure that change will actually happen.

Scotland’s court system desperately needs to improve. We cannot expect reliable and rock-solid evidence from children if it is taken in a traditional setting that neglects to recognise their needs. The bill offers progress in breaking down those courtroom barriers and a way to allow more accurate evidence giving in a safer environment.

The bill will provide a welcome change. It gives some assurance that vulnerable child witnesses will be involved in our court processes in the most sensitive and appropriate way. It safeguards their mental health and ensures more stable and certain evidence. I hope that, for the sake of other vulnerable witnesses and Scotland’s future criminal procedure, the support for wider reform will not go unnoticed.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

It is a great pleasure to speak in the debate. I will not be met with much objection from colleagues across the chamber when I say that it is legislation such as that proposed in the bill that we all came into politics for. The proposed legislation will have a positive effect on people’s lives and will go some way to rectifying discrepancies in our current system. For those reasons, I was privileged to be one of the members of the Justice Committee who scrutinised the bill. I join the convener, the deputy convener and others in putting on record my thanks to the clerking team for their work on the bill under immense pressure and in preparing the stage 1 report, which I encourage anyone who is watching the debate to check out.

As others have said, the bill’s main policy objective is to improve how children and vulnerable witnesses participate in the criminal justice system by enabling greater use of pre-recorded evidence. Many have fought for such a change in the law for a long time, including the Moira Anderson Foundation, which is based near my constituency. The vast majority of evidence that the committee heard from stakeholders, including among many others Barnardo’s and Children 1st, was supportive of the need to reform and of the introduction of a rule ensuring that, in the most serious of cases, evidence from a child is taken pre trial.

There are many areas of the bill that I could focus on in the limited time that I have, but it will probably come as no surprise to my committee colleagues that I will spend a little time looking at the use of joint investigative interviews by the police and social work. At the moment, they are used in connection with child protection measures, and at this point, I must declare an interest as a registered social worker with the Scottish Social Services Council.

The committee heard how joint investigative interviews could be an integral part of the process and that there was more scope to use them as evidence in chief, thereby limiting damage to child victims and witnesses and preventing the need for them to give evidence at trial. However, we also heard that it was not always possible to use such interviews, and the committee found it difficult to ascertain exactly how often they were used.

I was involved in joint investigative interviews for around eight years and although there was a lot of good and innovative practice, I do not think that any of my previous colleagues will mind my saying that there is scope for change and improvement—in fact, they would expect me to say it. For example, specific JII training is very intense, but it is only a week long; after that, a worker’s involvement in such interviews can be very sporadic, with perhaps only a handful or even fewer than that a year. The committee’s scrutiny of the bill got me thinking about how many interviews I had been involved in and although it is obviously not possible to say exactly, I am reasonably confident in stating that the figure was no more than 30 over an eight-year period. That falls well short of the 100 to 150 hours that Mary Glasgow felt was required to gain an appropriate level of expertise.

I therefore welcomed the evidence that was given by Kate Rocks of Social Work Scotland, who told the committee about the joined-up discussions that were going on with the police to expand the training to a year and the possibility of having a smaller group of workers who would be highly skilled in carrying out the interviews. I also welcomed the cabinet secretary’s response to the committee about the governance and working groups that have been set up and the fact that, as Rona Mackay pointed out, the training programme is expected to be finalised in March.

Perhaps such a move would also fit in with the principles of the barnahus model. As everyone who has spoken has said, the committee visited Oslo, and I think that it is fair to say that we were very impressed by what we saw there. That said, I think that we have already put in place many of the barnahus principles through our child-centred approach, but something relatively simple that we could do would be to have a one-stop shop for all the services that are involved to save a child from having to go to one place for an interview, another for a medical assessment and perhaps another for therapeutic support.

I think that the conclusion in the committee report, as relayed by the committee convener Margaret Mitchell, sums it up best, and bringing all of that together might require having a specific venue in, say, each health board area, in four areas across Scotland or whatever. Such a setting would also allow the crucial issue of support to be addressed. In our evidence gathering, we heard lots of testimonies, and the suggestion was that, although it was very important to gather evidence for criminal proceedings, a perhaps more significant and important issue was the need for continued support during and after the process and to deal with any trauma that the child witness might experience.

I conclude where I started by making it clear that the bill has been introduced as a result of real people’s real-life experiences. In that respect, I want to share an example that involves a constituent of mine. What I am about to say has been agreed with the child’s mother to protect anonymity.

Last week, I had a parent in my office asking for help. Her child had been a key witness in a case that had resulted in the accused serving a prison sentence, but she told me that no one had sat down with the then nine-year-old or the parents to explain what was going on or how their statement would be used in the case. Because the accused pled guilty, the young person was spared the ordeal of having to testify before him in court, but they are fully aware that their evidence was a major part of securing the guilty plea. At one point, the child said, “It was scary that my mum had to leave the room and I had to speak to strangers”.

The experience has led to a severe deterioration in the child’s mental health, because every day they live in fear about what might happen when the individual is released from prison. The mother described having to deal with nightmares and self-harm, and she also told me about the day that she found her child attempting suicide. Thankfully, she made the shocking discovery in time. No victim should ever have to go through that, and that is why it is so important that the bill’s provisions are put in place as quickly as possible.

Not all of the bill is relevant to the case that I have just highlighted, but its principles are. I know that the mother is watching today’s proceedings, and I hope that this is the start of changes being made to the law that will mean so much to her and her family. It is such real-life situations that make the bill so important. Moreover, given what I have said, it would be fitting if the bill were to pass at stage 1 during children’s mental health week.

This is an important bill, and I thank the Government, the current cabinet secretary, his predecessor and others for bringing it forward. I commend the general principles to the chamber and hope that members will vote for them.

Johann Lamont (Glasgow) (Lab)

I was not involved in the bill’s development, but I have found it very interesting to read the report and the briefings that we have secured. Like other members in the chamber, I have direct experience of constituents telling me how they have felt let down by the justice system. From the start of the Scottish Parliament, we have been trying to understand how people experience the justice system and trying to find ways to ensure that witnesses and victims feel that they get justice. I can remember very early in the Parliament a woman who had been the victim of a serious sexual assault talking about feeling that the court system had compounded her terrible experience rather than giving her a sense of justice. I think that the bill is part of understanding that experience, because those voices are still there. Fulton MacGregor’s very powerful description of a young person’s direct experience of the justice system gives us all pause and should act as a spur to ensure that the journey of making the justice system fair continues.

The bill is another step in wrestling with the challenge of how we ensure that the accused has a fair trial and that those who give evidence are able to do so in a way that allows that evidence to be thorough and testable. I would argue that we have made progress in creating a fairer system, because things that we were told were simply impossible as they would challenge the justice system and the protections in it are now part of the accepted court process. I expect that the bill’s provisions will also be seen in that way in the future.

We need to think about how we treat victims, witnesses and complainants in the context of understanding criminal behaviour in all its many forms and the particular impact of particular crimes on victims. For example, I know from my conversations with adult survivors of child sexual abuse that their vulnerability still lives with them every day. We need a court system that understands that, too. We also need to think about the decisions at the prosecution stage on taking cases forward and whether they reflect the vulnerability of witnesses and victims; for example, if the victim is a person with a learning disability the case might not be taken forward as it might be deemed that their evidence will not be seen as credible. We need to reflect on those issues.

There is, of course, a danger and a challenge for us all in doing the relatively easy bit—obviously, I have done less work on the bill than committee members, who have done a lot of work on it—of passing legislation and feeling pleased that we have got that right. However, legislation must be placed in the context of the need for it to be effective and to ensure that it is enforced and that the changes are resourced properly. We do not want to end up just taking resource from one place and putting it in another in order to match the legislation’s demands, only to see one piece of legislation having unintended consequences for another part of the system.

We need to understand how we can prevent people from becoming vulnerable to crime in the first place and how supported they are personally. For example, for children who are victims of domestic abuse, with all that that means for them, we need to look at the availability of safe places and the responses of the school system, the housing system and the agencies round about the young person. Those supports will, in their own way, give help to a child who might find himself or herself in a courtroom, which can be the end point of what might have been a traumatic journey of conflict and violence. We cannot separate the court process from the budget and resources that must support victims under the new system.

As an example of the challenge involved in that, I raise in particular the important role of the children’s hearings system in the broader justice system. The children’s hearings system is symbolic of our understanding of the need to put the child at the centre of the justice system, but it is also the practical expression of how we make that support real. Despite the sterling work of the volunteers and staff who manage the hearings system, the system is under pressure from, for example, lack of social work support, the inability to have social background reports produced and the inability of panels to make certain disposals because the resource is simply not there to make them happen. The danger is that young people are being ill-served by a system that is overstretched and pressured.

The Scottish Government needs to reflect on its choices in budgeting terms as well as in policy terms. In my view, it is simply short-sighted to target local government for budget cuts, given that many of the key supports for the justice system lie with schools, community safety, support groups and social work departments, most of which sit within local government.

I support the bill, given the way in which it continues the journey towards ensuring that victims are treated fairly in the justice system and that, as a consequence, our justice system serves society better. However, I simply reflect that we should all take seriously not just the legislation; we should not see it in isolation but look at what must underpin it—not only resources to deliver the process but resources to provide broader support and protection for those who live with the trauma of abuse and crime day by day.

The points that Fulton MacGregor made in his conclusion are absolutely right—it is not just in the moment of giving evidence that a child or vulnerable witness has to be supported, but before they give evidence and afterwards as well. That is what will make the legislation real in the lives of young people and vulnerable witnesses.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I thank the Justice Committee’s clerks for all their work in pulling together a report ahead of today’s stage 1 debate.

Of course, the bill should not be considered in isolation. For the Government, this is clearly part of a wider agenda that is focused on the rights of victims and witnesses. However, if we consider that the Government designated 2018 the year of young people, it is timely that we now reflect, as a Parliament, on how the justice system listens to the views of our young people when it really counts. Indeed, as John Finnie said, it is vital that we get this right.

As has already been mentioned, it is now nearly two years since the Lord Justice Clerk, Lady Dorrian, introduced the High Court practice note that was the first step towards improving how our courts take evidence from children and vulnerable witnesses. Today, the provision to take evidence by commissioner remains the main policy objective, with greater use being made of pre-recorded evidence from child witnesses in the most serious cases. That original practice note from 2017 looked to build greater consistency into application of taking evidence on commission by minimising the risk of trauma through taking practical decisions about location, for example, more sensitively.

Section 5(4) of the bill seeks to make changes to the Criminal Procedure (Scotland) Act 1995 that will allow for the possibility of pre-indictment commissions. I want to revisit why that provision is so important.

The ASSIST—advocacy, support, safety, information and services together—service is a domestic abuse advocacy and support service that is based in Glasgow. ASSIST advised the committee that children’s evidence

“should be taken in advance and as near to the ‘incident’ as possible.”

Furthermore, we were told by Daljeet Dagon from Barnardo’s Scotland:

“we often find that statements are taken and the police investigation concludes years before the actual process takes place. Recently, we found ourselves chapping the doors of young women who are now in their 20s but who had given statements when they were aged 14 and 15. Their situation had moved on, yet we were going back and retraumatising them, saying, “We’ve got new evidence. Are you willing to come forward? We don’t know how long the process is going to take.”—[Official Report, Justice Committee, 27 November 2018; c 4.]

Perhaps this was most powerfully illustrated when Daljeet Dagon went on to give the example of a young person who gave the police 27 statements in total. By the time the trial went to court, she was deemed to be an unreliable witness.

The original 2017 practice note encouraged the use of commissions for children, and application for a commission at the earliest possible stage in High Court proceedings. The Lord Justice Clerk has therefore welcomed the new provision in the bill for the possibility for a commission to take place before serving of an indictment, as the committee heard.

One of the committee’s key recommendations is that

“section 1 of the Bill should be amended to include domestic abuse in the list of offences covered by the rule requiring pre-recording,”

in particular, because of

“the trauma that children can experience in such cases.”

As Scottish Women’s Aid has argued,

“This is a crucial issue, given the trauma that can be caused to children and young people experiencing domestic abuse”.

In addition,

“given the numbers of children likely to come under the auspices of the new offence,”

it is imperative that the offence be included. I appreciate that the cabinet secretary has previously indicated to the committee that he is willing to consider such an extension. In my view, there is an opportunity to join up legislation that has already been passed in Parliament on domestic abuse, so I am glad to have heard the cabinet secretary reiterate that point today.

The committee’s visit to Norway to see the barnahus model in action was, as has been said today, a formative experience in respect of how we might seek to improve children’s experiences of the justice system. The model is a one-stop shop where services come to the child. It struck me that the barnahus model has much in common with our own getting it right for every child approach, which is also child centred.

The bill has the potential to be truly groundbreaking if we get it right. Although I note the investment in Glasgow in a dedicated child and vulnerable witness suite, perhaps there is an opportunity for the Government to pilot the barnahus model on a small scale in the first instance, during this parliamentary session, because our experience, as Daniel Johnson alluded to in his comments, is that it was a siphoned-off room within the court buildings, which is not what the barnahus model is about, according to our experience on our visit to Norway.

Although much can be learned from the Norwegian approach, a Scottish equivalent will have to be tailored to reflect our differing public services. I note that Healthcare Improvement Scotland and the Care Inspectorate are already involved in the development of Scotland-specific standards for barnahus. The Government’s response to the committee advises:

“This will enable us to set out a roadmap for improvements.

These Scotland-specific standards will be based on the European PROMISE Quality standards for Barnahus. It is anticipated that the scoping stage will begin in early 2019.”

I note the cabinet secretary’s commitment to meet the committee to discuss the barnahus model in more detail, but I make a request to the cabinet secretary that both Healthcare Improvement Scotland and the Care Inspectorate collaborate with education colleagues in that work, in order to avoid duplication and to acknowledge the sound grounding of education policy that already exists in the area, particularly in relation to trauma-informed schools and the wider adverse childhood experiences agenda, which Rona Mackay mentioned.

The strength of the barnahus model is, of course, that children are able to give evidence in the most comfortable environment possible, thereby avoiding retraumatisation. The taking of evidence on commission is part of the answer for Scotland, but a look again at the practicalities of location and environment, as Lady Dorrian specified in the original practice note, should be the next step in ensuring consistency of provision in that respect across the country. That should be the focus of the bill, if we are really to improve children’s and vulnerable witnesses’ experiences of the Scottish justice system.

Lady Dorrian said in 2017:

“In all aspects of the work being undertaken we should never lose sight of the underlying aim. That is to secure a justice system which allows the guilt or innocence of an accused to be determined on the basis of the best possible quality of evidence available, in a manner that does not cause undue distress or harm to any participant in the process, and which is transparently fair, efficient and effective.”

Transparency, fairness and dignity in order to protect our vulnerable witnesses and to ensure that Scotland’s children are spared the trauma of giving evidence in court are all aims that I am glad every MSP can support.

Annie Wells (Glasgow) (Con)

I am very pleased to speak in this stage 1 debate. Although I am not a member of the Justice Committee, I am aware of how important the bill is to victims and witnesses of crime. Too many people find themselves being retraumatised by the court process. We all agree that that is not right. In supporting the reform, we are taking a positive step in the right direction.

However, there is still more to do; I stress that Scotland must become the gold standard for victim support. The bill aims to improve how children and vulnerable witnesses experience criminal trials by enabling greater use of pre-recorded evidence. Significantly, the bill’s focus is on child witnesses in the most serious cases, unless there is a significant

“prejudice to the fairness of the hearing”,

or if the child witness is “aged 12 or over” and

“expresses a wish to give evidence”

in a way that would serve their “best interests”.

Although the current methods of pre-recording will continue to be used, the bill also aims to improve the process of taking evidence by commissioner in all cases, not only when the new rule applies. That is a welcome move. Children’s groups have been clear that the justice system in its current form causes distress and trauma. The charity Children 1st likened it to what was in place during the “Victorian era”.

Not only should the introduction of pre-recording reduce the trauma that is caused to child witnesses—it should also improve the quality of justice. A review of criminal procedure by the court service concluded that, for children in particular, traditional examination and cross-examination techniques in court are more likely to produce inaccurate and unreliable accounts of their experiences. That view was supported by the Lord Justice Clerk, who stated the importance of getting evidence from children as close to the event as possible. Confusion can arise from memory loss, which increases the likelihood that the witness will agree with the questioner when they cannot remember something.

Importantly, and of reassurance to people who are concerned about potential miscarriages of justice, research has shown that pre-recording evidence does not make jurors more sympathetic, and that use of pre-recorded evidence from child witnesses has no significant effect on the outcome of the trial.

There is always a need to put checks and balances in place. We support that, too. The Faculty of Advocates made that point and stressed the requirement for sufficient safeguards to be put in place

“to enable the rule to operate fairly”

and so that evidence can be tested on an informed basis.

The bill gives ministers the power to expand the rule to adult vulnerable witnesses in cases of rape, sexual assault and domestic abuse. It is obvious why, in such cases, a victim would not want to give evidence in the presence of the alleged perpetrator, whether in the courtroom or via a live television link. I ask members to think about whether they or a loved one would really wish to go through the heartache and pain of having to relive what happened over and over again. Sometimes, the process can take years to come to an end, so it is no surprise that victims say that the process leaves them traumatised.

I appreciate the fact that the process for applying for special measures will be simplified. I also understand that the courts system is under huge strain and that reforms need to be implemented in an effective and manageable way. Undeniably, however, it will be disappointing to women who are affected by those heinous crimes that they will have to wait until the mid-2020s to be offered the same reforms. Rape Crisis Scotland stated that the current approach to taking evidence from adult vulnerable witnesses causes significant distress and trauma, with frequent significant delays in cases coming to trial. Trials can be cancelled at the last minute, which puts more strain and pressure on the witnesses.

On potential changes to put victims at the heart of the justice system, I strongly support the introduction of the one-sheriff system for victims of rape and sexual assault, which the Scottish Conservatives have previously called for in cases of domestic abuse. As things stand, victims of those crimes can have their cases and related proceedings heard by various judges and so have to relive their stories over and over again. It is vital that we look at the one-sheriff approach, which has been trialled successfully elsewhere, and assess the impact that it would have on reducing retraumatisation. I therefore ask the cabinet secretary for his thoughts on how a one-sheriff system could be implemented for such cases.

I reiterate my support for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at stage 1. To give evidence as a victim or witness is difficult enough; to do so as a child or as the victim of domestic violence, rape or sexual assault is even more difficult. It is fundamentally important that we support victims of crime. The bill will play an important role in that.

That said, there is still much more to do, so we must strive to reach a point when Scotland is the gold standard for victim support.

Shona Robison (Dundee City East) (SNP)

As a member of the Justice Committee, I support the general principles of the bill and welcome the consensus that has been demonstrated in the debate.

The bill forms part of a much wider and more ambitious programme of work being undertaken to improve and modernise the experience of victims and witnesses in the justice system. The bill’s objective is to improve how children and vulnerable witnesses participate in the criminal justice system, with greater use of pre-recorded evidence. It would apply in solemn cases, such as those that other members have mentioned.

As has also been said, few can imagine being an already traumatised young child, who is interviewed, sometimes multiple times, or who has to relive harrowing events at a later date through the traditional judicial processes for giving evidence. The bill will help to remove any legislative obstacles that would have a detrimental effect on the greater use of pre-recorded evidence and that includes the power to make the pre-recording of evidence available to adults who are deemed to be vulnerable witnesses in solemn cases.

The bill is supported widely, including by the judiciary and many third sector organisations. I am pleased that the Scottish Government is committed to looking at how the Scandinavian barnahus principles could work in the context of Scotland’s child protection, health and justice system. Unfortunately, due to a prior engagement, I was the only member of the committee not to see the barnahus model in real life in Norway, but I spoke to other committee members and they were very impressed with the model’s potential.

The model was adopted because it was recognised that multiple agencies’ information sharing and co-ordination were poor and it was introduced to overcome those challenges. Children were previously required to give multiple interviews to professionals from each agency, thereby damaging the reliability of the evidence that they were able to provide, and they were being traumatised by having to give testimony in court. Consequently, few suspected perpetrators were charged and convicted and victims were not adequately supported to recover from the trauma of sexual abuse.

The barnahus model offers all the services under one roof in a non-threatening and child-friendly environment. A trauma-trained interviewer is with the victim, and on a video link are a range of professionals, including the police, child protection and the prosecutor and defence solicitors. They communicate via an earpiece with the interviewer who relays questions in a child-friendly manner that is consistent with the principles of forensic interviewing. It is vital that the interview is carried out as quickly as possible after the alleged offence; the children’s charity Children 1st agrees that it is in the best interests of the child to give their complete testimony as soon as possible. It minimises the anxiety that is felt by children and allows directed support networks to work with children to improve their welfare.

Although I fully understand that some stakeholders that are involved in the consultation want quicker progress towards the barnahus model, it is crucial to get it right and to take a phased approach. The Scottish Government’s proposed phased approach could initially be in the form of a pilot scheme, and it would allow the system to absorb change while minimising risk both to the system and, importantly, to individual cases. Our justice system is not identical to those in Scandinavia and we have to recognise that.

I therefore welcome the Scottish Government’s commissioning of Healthcare Improvement Scotland with the Care Inspectorate to develop Scotland-specific standards for the barnahus approach—that is the right way to proceed. The specific standards would balance a child’s right to recovery with their right to access justice in a child-centred way, in line with the United Nations Convention on the Rights of the Child and, of course, the getting it right for every child approach. I am sure that progress can be made towards adopting the best elements of that system here in Scotland, and I look forward to progress in the foreseeable future.

Rhoda Grant (Highlands and Islands) (Lab)

I, like other speakers, welcome the bill. Anything that makes giving evidence easier for children and vulnerable witnesses has to be welcomed. The bill is geared towards children, but it must be wider, to recognise the nature of the crime and how that can make witnesses vulnerable.

I will speak about domestic abuse, as many people have done this afternoon. I welcome the cabinet secretary’s comments on considering amending the bill to make sure that the process is available in cases of domestic abuse where children are giving evidence. That is the right thing to do, rather than introducing that at a later date. The trauma that is attached to domestic abuse is well understood for adults, but not for children. It has a long-lasting effect on their development, so it is really important that, where possible, we limit the trauma as much as possible.

We can imagine a case in which a child is in court giving evidence against a parent—having that person in the same room makes the evidence giving very difficult. It is serious, but quite often the justice system does not treat domestic abuse as serious. That point was made by Daniel Johnson; most cases are summary cases. The NSPCC noted that a tiny minority of domestic abuse cases are heard in solemn court proceedings; therefore, if the first phase of reform is limited solely to solemn cases, a large number of vulnerable children who will potentially give evidence in domestic abuse cases will not benefit or be protected under this system.

It is important that the ability to pre-record evidence is extended to all domestic abuse cases, regardless of which court they are heard in. It should also be extended to all child witnesses. A court case can take one or two years to come to court and young children will forget the evidence that they have to give, whereas if their evidence were recorded at the time, when the incident was fresh in their minds, they would be much better witnesses. Children in all court cases should be protected, but particularly those involved in domestic abuse cases.

That goes for adults as well, and particularly those who are victims of domestic abuse. Domestic abuse relies on coercion and control and therefore coming face to face with their abuser in court can have a devastating effect on the victim giving evidence in the case. It is right that the bill focuses on children, who need our protection. However, it should be extended to adults in not only domestic abuse cases, but cases where witnesses are vulnerable adults, people with learning difficulties or people with poor physical or mental health. Those people should be afforded the same protections as children, because the way in which they give evidence at a later date could be compromised if they are not.

Humza Yousaf

Although we are moving towards a presumption of evidence by commission, which we will implement in phases in cases involving adults who are deemed to be vulnerable, it is important to say that as things stand, if there is an application, evidence from adults can already be taken by commission.

Rhoda Grant

I hope that the bill makes that the norm and that that is applied to adult vulnerable witnesses.

Other members talked about rape and sexual abuse cases. That is another area to which the approach should be extended. Those crimes leave victims extremely vulnerable. We have heard during parliamentary debates stories in which victims have said that the process of going through court was worse than the damage done by the original crime. That is unacceptable. We need to protect people.

I have constituents in the Highlands who have had to go to Glasgow because rape and sexual abuse crime is tried in the High Court. That is not local and those cases can be cancelled at very short notice. In some cases, women have had to arrange childminding, cover for their jobs and somewhere to stay in Glasgow—as well as somewhere to stay for those who are giving them support, the cost of which is not always covered—and they have had to cancel it all at the last minute. If their evidence was recorded, that would not happen.

I know that I am short of time, Presiding Officer, and forgive me if I abuse my position in the debate, but I want to flag up to the Cabinet Secretary for Justice the issue of custody of children who have suffered domestic abuse. Custody is given to abusive partners. I know that it is an issue that the Scottish Government is considering and that the bill is perhaps not the right place to address it. However, I do not believe that a domestic abuser should automatically get custody of their child. Indeed, the opposite is the case: the abuser should not get custody until they can prove to the courts and to the victims of their abuse that they will not harm the child or use the custody to further promote their abuse.

The bill is welcome and overdue. It is striking that Children 1st talked about the court process being an adverse childhood experience, rather than the crime that the child had suffered. Justice should be cathartic, rather than abusive. I hope that the bill will be a step in that direction.

The Presiding Officer (Ken Macintosh)

That brings us to the debate’s concluding remarks.

Daniel Johnson

It has been a useful and very consensual debate. The touchstone is the trauma and length of time that the bill seeks to eliminate. The convener and deputy convener of the Justice Committee, as well as other members such as John Finnie, have brought to life the importance of reducing trauma and the amount of time between the event that is witnessed and the gathering of evidence, because reliability is key.

Many members have made the point that our courts reflect a Victorian way of doing things. The bill is an important step towards modernising our courts and our justice system.

It is important to look at the reliability of what is being proposed, and I thank Annie Wells for reminding us that the bill proposes a sound way of taking evidence. In such consensual debates, it is easy for us to leap to conclusions, but it is important to bear witness that the evidence shows that pre-recording evidence is reliable and does not unduly sway juries one way or another.

It is also important to reflect on context, and for doing so I thank my colleague Johann Lamont. We should view the measures not in isolation but in the context of our wider services and the wider circumstances that people find themselves in.

I particularly thank my colleague Fulton MacGregor for his remarks. He provided some of the context. The example that he gave of the child and the clear trauma that providing evidence gave that individual brought to life the importance of delivering the proposals as quickly and efficiently as we can. He also provided some of the technical detail about the JIIs that I was not able to cover in my introductory remarks.

When we examine what takes place in the initial contact that a child or vulnerable person has with the authorities—the integrated approach of social work and the police, the training and the focus that is happening—we begin to see some of the next steps that we can take. Most important among the proposed measures is the proposal about how we can promote such evidence as evidence in chief in the courts, meaning that direct evidence is not required from individual witnesses.

I thank my colleagues Jenny Gilruth, Rona Mackay and Shona Robison for describing the barnahus model that we saw, which means that I do not have to. When we compare and contrast the JII with the barnahus model both generally and specifically in Norway—its single interview in an integrated facility where other forensic procedures can take place and the three-year training that the police officers in the barnahus in Norway have to undertake, which involves taking a bachelor’s degree, as opposed to the one year that we are just proposing and not even delivering for the people who undertake JIIs—we can see how a JII could conform to the barnahus model. We could deliver much of what we seek from that model through a JII, and I urge the Government to look at how that can be done.

Much is made of the ability to test evidence and the need for cross-examination. In Norway, the fact that a second interview can be requested shows how we could deliver the testing of the evidence that is so important to our legal system. I urge the Government to look at that.

John Finnie

I am grateful to the member for taking an intervention. Does the member recall—as I do—that, although there is the facility in the barnahus model to request a second interview, such is the efficiency of the initial interview that a second one is very rarely called for by the defence?

Daniel Johnson

I thank my colleague for that intervention. I was struck by that point, too. It points to the place that we could arrive at if we are so minded.

The key point—it is one that many members have made—is that we must not see the bill as an end point but must push to go further. The comments that have been made about domestic abuse cases, which have been acknowledged by the cabinet secretary, point to the fact that we must strive to go as far as we possibly can.

Although it is a good bill, its logic leads to a danger of defining vulnerability by reference to the charge or the court in which an individual gives evidence, which is clearly not right. An individual who gives evidence is not traumatised because of a particular charge or court; they are traumatised because they are having to recount the experience that they had. We must therefore expand the measures as widely as possible and make them the norm. It is self-evident that expansion to other courts and charges is the next step.

It is a good bill, but it has to be the first step on the journey, not the last.

Gordon Lindhurst (Lothian) (Con)

There has been interesting discussion in the chamber today, and much agreement has been evident in the speeches that we have heard. In particular, there is agreement that the bill could improve not only the experience of the justice system but the quality of the evidence—something that is in the interests of not just witnesses and victims but justice itself.

To put it simply, it is better to take evidence closer to the time of events, while memories are still fresh. I say that from direct experience as an advocate in many, many criminal trials before our courts. Video evidence that is taken at the time can, therefore, be of more value than evidence that is taken directly from a witness many months—if not years—later, as members have said. The obvious answer to that, on one level, is that court proceedings should take place more quickly. Indeed, the Faculty of Advocates made that point during evidence taking.

Our court system has been referred to as “Victorian”. I am not sure that I recognise that as an accurate description of where we are—and I say that as someone who has dealt with child witnesses in a courtroom setting. Indeed, I have dealt with victims of sexual offences who were as young as three at the time of the commission of the offences. Changes have been made in Scotland over the past 40 years or more, such as the introduction of the standard special measures that are available, which are described in the committee’s report. For example, live television video links allow evidence to be taken from outside the courtroom.

However, there is always room for improvement—there is no doubt about that. As Liam Kerr pointed out, the bill, in effect, extends the protections that are already in place. It can be viewed as a bill that takes sensible next steps. Ensuring the participation of witnesses, especially vulnerable people, is vital to the effective pursuit of justice. Maurice Corry rightly referred to the need to bear in mind the difficult balancing act that must take place if the outcome is to be just and fair and no witness is unnecessarily to suffer distress in the process.

In trying to strike that balance, it is critical that we get it right for all the parties who are involved in criminal proceedings, because, as well as efforts to reduce the stress that vulnerable witnesses often feel and thereby improve the evidence that is available from such witnesses, there must be safeguards to prevent miscarriages of justice, as Annie Wells said. There is, of course, no single, one and only consideration when it comes to dealing with justice and crime, but an honest desire to find out the truth of what happened needs to be one of the overriding considerations. The committee received evidence of that.

The issue is particularly pertinent because the success of the bill will depend on the child’s evidence being tested sufficiently and on an informed basis. That will involve full disclosure of evidence at an early stage. As the bill progresses, it is important that concerns about current trends on late disclosure be addressed. Late disclosure can result in a need to revisit evidence with a witness, which defeats the purpose of the bill.

If we are to get things right, the answers might not be entirely simple and straightforward. Changes might need to be informed by the experience that follows the bill. That is why I welcome the Cabinet Secretary for Justice’s commitment to take a careful approach to the changes and to the timetable for implementation, which will include reaching out further to all children who give evidence and to adult vulnerable witnesses.

As Annie Wells pointed out, we need a more detailed timetable, with thought given to which groups of people could benefit through these measures. As the committee’s report highlights, it is partly a matter of resources. In any country, starving the justice system and the courts of the resources that they need is a false economy. That applies as much to Scotland as to anywhere else. As has already been mentioned, the risk is that we overwhelm the system, meaning that procedures such as commissions do not operate as they should and the aims of the bill—the interests of vulnerable witnesses and justice—are not met as a result. That would be counterproductive and could defeat the good intentions behind the desire to immediately include all vulnerable groups.

Like Liam Kerr, I hope that the evaluation evidence will be shared with the committee, as was promised, so that sufficient parliamentary scrutiny can be applied to any consideration of further extending the bill’s provisions. That could facilitate the speedy extension of the provisions, as and when appropriate, to other witnesses.

With my colleagues, I look forward to developments and to the cabinet secretary’s further careful consideration of these matters.

Humza Yousaf

The debate has been excellent: it has been very constructive, insightful and, at times, extraordinarily powerful. It is sometimes worth taking a step back. I think that, despite our various differences in a number of policy areas, every single one of us is in politics to make a difference to the most vulnerable people across Scotland, and that is what the bill very much aims to do.

I want to pick up on a point that Liam McArthur made at the beginning of the debate about the consensus on the bill, which is a good thing. Having been in front of the committee, I can say that there is no lack of scrutiny of the bill. That is also good, and I have every faith in my Opposition colleagues robustly scrutinising the bill. That consensus has not come about by accident; it has resulted from a lot of reflection and from taking people on the journey with us. It is great that we have progressively minded people in the legal institutions that we put our faith in, from the Lord Advocate to the Lord President to the Lord Justice Clerk and many others. It is great that we have consensus, but that certainly has not come about by magic by any stretch of the imagination.

I will try to pick up on many of the points that have been raised in the debate. Members from almost every political party suggested that the Government consider extending the list in the bill to include domestic abuse cases. I reiterate that I am seriously considering that as the direction of travel in which the Government will move, but I have to consider the implications. I highlight again some of the numbers. Four per cent of cases that were marked for trial on indictment in the sheriff court were domestic abuse cases; 0.9 per cent were marked for trial in the High Court. The percentages are small, of course, but we are talking about 150 High Court cases and, I think, 710 sheriff and jury cases. Not all such cases will necessarily involve a child witness but, nonetheless, I have to take those considerations into account if there is phased implementation. Notwithstanding all of that, I am quite confident that we can get to a position at which we will, I hope, extend the list.

Daniel Johnson

Is it worth inquiring into the numbers of cases that involve children? We could therefore get an idea of the resources that might be required for implementation.

Humza Yousaf

I am doing that as part of my consideration of the issue. Despite that, that is the direction that the Government should absolutely go in and in which I will take the Government if I can.

Another issue that I think has been raised by members from every political party is the barnahus model and Scotland fully adopting the barnahus concept. It is the Scottish Government’s intention to implement barnahus. It is really important for it to be recognised that we are making improvements and that we are making our way towards that approach. Clearly, in order to get there, we will have to take others, including our legal institutions, with us along the way.

When John Finnie intervened during Daniel Johnson’s closing speech, he made a very good point about secondary interviews not often being taken up. However, I know that John Finnie recognises that our system is very different from an inquisitorial system. Our adversarial system is not decades but centuries old. That legal tradition is not to be scoffed at by any stretch of the imagination and it has served us well. Although it presents inherent difficulties, they are not insurmountable, and I take Lady Dorrian’s point that, in the long term, we should have one forensic interview.

John Finnie

On joint investigative interviews, I am not being critical of the practitioners, but if we can enhance the quality of the system, we are likely to reduce the trauma or the requirement for a revisiting interview.

Humza Yousaf

John Finnie makes that point very well. I will come to joint investigative interviews shortly.

I will finish off my point about the barnahus model. On Rona Mackay’s point, significant work is under way to explore the barnahus concept, and I am happy to update the Justice Committee on our work to develop—I hope by April—Scotland-specific standards for barnahus. I will therefore go back to the Justice Committee to give further detail on how we are getting on with that.

Liam McArthur

I am very encouraged by what the cabinet secretary is saying. Does he accept that, by making it explicit that not only the direction of travel but the ultimate objective is to put in place the barnahus concept, those who have concerns about how that is achieved will have certainty about where we are going? We can then work on the solutions to the problems, rather than get overly vexed about the problems themselves.

Humza Yousaf

Yes. I am more than happy to say on the record that that is our destination. We want to have barnahus—or a bairn’s hoose or whatever members want to call it. I again make the point that the barnahus model is different in each of the jurisdictions in which it has been adopted, depending on the legal framework. That point should not be lost.

Members have made very valid points about joint investigative interviews. I have heard from the Lord Advocate, the Solicitor General for Scotland and many in the legal professional about the quality—and, sometimes, the lack of quality—of joint investigative interviews.

Members will probably know that the “Evidence and Procedure Review Child and Vulnerable Witnesses Project Joint Investigative Interviews Work-stream Project Report” made 33 recommendations on how the current JII model could be strengthened. The recommendations are being progressed by the relevant organisations and multi-agency working groups have been established. The Scottish Government has also committed more than £300,000 to a joint project, led by Police Scotland and Social Work Scotland, which will create a revised JII model and develop an approach to investigative interviewing of children that is trauma informed and achieves best evidence through more robust planning and interview techniques.

All that said, I was struck by Jenny Gilruth’s comment about our partners being wider than just those in the legal system and our need to look at education and health improvement. I will reflect on her point and see how we can include those wider sectors in some of our work.

I thank the committee and all the members who spoke in the debate for their important recognition of the fact that we must have a phased implementation approach. We all want to get to a place where everybody who is vulnerable—child or adult—has the opportunity to give evidence by commission, which they can do on application as things stand, and where the presumption is in favour of their giving evidence in a trauma-informed way, including through pre-recorded evidence by commissioner. Equally, we cannot afford to overwhelm the system—as, I think, John Finnie said. We must get it right, not rush it.

Members across the chamber are, of course, right to press the Government for further detail on the implementation plan. Once we have that, I will, of course, share it with members.

Daniel Johnson and other members spoke about the ground rules hearing. I reiterate what I said in my opening speech. There may be benefit in lodging questions in advance, but I warn against any suggestion that such a requirement should be in primary legislation. I was struck by Lady Dorrian’s stage 1 evidence that

“The flexibility that would be maintained by having those recommendations on the ground rules hearing set out in the practice note would be much more beneficial than trying to put those into primary legislation, which would be much more difficult to change.”—[Official Report, Justice Committee, 18 December 2018; c 10.]

I am pleased that the committee is so minded, too.

I turn to other issues that were raised. Many members, including Daniel Johnson in his closing speech, made the valid point that, although we are—for right, good and understandable reasons—focusing on solemn cases because they are the most serious cases, there is no doubt that witnesses and complainers in summary cases can be vulnerable. As Rhoda Grant said, the majority of domestic abuse cases go through summary proceedings. The Government will reflect on that valid point.

Extending the approach to summary cases would have serious implications for resources and other matters, which is why we are dealing with solemn cases first, after which we will perhaps look at summary cases. However, the point about vulnerability is not lost and is well made by members across the chamber. Daniel Johnson’s point about measurements of vulnerability is also something for us to reflect on.

I will reflect on a number of other points that were made. Annie Wells made a powerful speech, as did others, about taking a holistic approach to victim support. From the moment that I was appointed as the Cabinet Secretary for Justice, I have ensured that we look to strengthen the support that we give victims. Victim Support Scotland is a key player in that, as are Rape Crisis Scotland, Scottish Women’s Aid and many other organisations.

The victims task force will be a key group, and the Justice Committee has already asked me to go to future meetings to update the Parliament on the task force’s work, which I have agreed to do. I extend to Annie Wells and any other member who is not on that committee the opportunity to have a briefing and an update on the task force and the difference that we are making and to suggest issues that we should consider.

Annie Wells asked for my opinion on the one-sheriff system for certain cases. I noted and will reflect on what she said. I know that she is aware that court programming, including the scheduling of judges, is very much a matter for the Lord President, whose territory I am always wary of stepping on. If she has not done so, Annie Wells might want to raise the issue directly with him.

Substantial points were made about the need for trauma-informed training. Jenny Gilruth and Shona Robison made their points about that well, as did other members across the chamber. It is important to approach that in a joined-up way. The Deputy First Minister, who is on my right, and I are often in meetings together to talk about the trauma-informed approach, the ACEs agenda and overlapping governmental responsibilities.

Developing an ACE and trauma-informed workforce, including implementing national trauma training, is a programme for government commitment. In June last year, the Deputy First Minister announced £1.35 million of investment to launch a national trauma training programme, which involves training that is consistent with the transforming psychological trauma framework. Specific lead projects have been identified to raise awareness among medical professionals and those in the criminal justice system of how to handle trauma and adverse childhood experiences. On 30 January, the Judicial Institute for Scotland announced plans to provide new refresher training for all sheriffs and judges ahead of the provisions on the new domestic abuse offence coming into force.

The Scottish Government plans to host a round table early this year that will allow NHS Education for Scotland and the Law Society of Scotland, together with many other stakeholders from the legal profession, to discuss opportunities to develop a bespoke trauma-informed training resource for solicitors that will count towards continuing professional development. We take seriously the points about the trauma-informed approach and trauma-informed training.

I end by thanking Fulton MacGregor for his very powerful account, which he received from his constituent, of the impact that going through a court process can have on a vulnerable individual, especially a child. That is the reason why we—not just the Scottish Government, but all of us in the Parliament who support the bill—are doing what we are doing.

I thank members for their detailed scrutiny of the bill, which has yielded many suggestions on which the Government will reflect. I am pleased to say that we will do so with an absolutely open mind. I have greatly enjoyed the stage 1 debate and look forward to stage 2, when we will look at the amendments, and to working with members from across the chamber to ensure that we get our criminal justice system right for the most vulnerable people in our society.

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-15277, in the name of Derek Mackay, on the financial resolution for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Humza Yousaf]

The Presiding Officer

The question on the motion will be put at decision time.

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-15699, in the name of Humza Yousaf, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at stage 1, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

The Presiding Officer

The final question is, that motion S5M-15277, in the name of Derek Mackay, on the financial resolution to the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

The Convener (Margaret Mitchell)

Good morning, and welcome to the Justice Committee’s ninth meeting in 2019. No apologies have been received.

Agenda item 1 is stage 2 of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. I ask members to refer to their copy of the bill and to the marshalled list of amendments and groupings for this item.

I welcome the Cabinet Secretary for Justice, Humza Yousaf, and his officials.

Section 1—Child witnesses in certain solemn cases

The Convener

Amendment 1, in the name of the cabinet secretary, is in a group on its own.

The Cabinet Secretary for Justice (Humza Yousaf)

Good morning, convener and committee.

At the heart of the bill is the reform to require pre-recording, in the first instance, to have to take place for certain categories of child witness in the most serious cases. The new rule in favour of pre-recording is subject only to some narrowly drawn exceptions.

The substantial change that the reform, if passed, will bring about cannot be overestimated. That has been recognised by the committee with its support for a phased approach to implementation. I am very grateful for the committee’s understanding and consideration on that point and on the need to ensure that the reforms are commenced in an appropriate and managed way that does not overwhelm the system. For that reason, the list of offences is intended to capture only the most serious cases. The bill also includes a power to add to, otherwise amend or remove the list of offences, although I accept that it may be some time before it is appropriate to use that power. I was interested to hear the committee’s views on the list as it is set out in the bill, particularly its views on whether the offences that are listed strike the right balance.

In the committee’s stage 1 report, I read with interest its views and the views of stakeholders who also raised the issue, including the Scottish Children’s Reporter Administration, Children 1st, Scottish Women’s Aid, Barnardo’s Scotland and the ASSIST—advocacy, support, safety, information and services together—service at Community Safety Glasgow. I am grateful to those stakeholders for taking the time to set out their position on that important provision. In particular, powerful evidence was heard that giving evidence in domestic abuse cases can be particularly distressing for children. I found that testimony very persuasive. I also listened carefully to the stage 1 debate, during which members expressed their opinions on why domestic abuse should be added to the list of offences that the rule applies to in solemn cases. I found many of the committee members’ reasons for inclusion compelling and was convinced that the provision is an addition that will really strengthen the reforms in the bill.

However, as I indicated in the stage 1 debate, I had to be sure of the implications of widening the remit of the pre-recording rule. That could not be done lightly, as any widening of the rule’s remit is likely to have major practical and financial implications, and I am grateful that members showed that they understood why it was appropriate to carry out further work. Since the stage 1 evidence sessions, my officials have carried out a detailed appraisal of the impact of such an amendment and have consulted justice stakeholders including the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service, to ensure that the implications have been given due consideration.

There is no denying that such an amendment could have substantial resource implications for the justice sector. I remember Daniel Johnson specifically making a request during the debate for the number of High Court and sheriff and jury cases that might involve a child witness. We have projected that the number of cases involving a domestic abuse offence in which a child may be called is likely to be approximately 43 High Court cases a year and around 203 sheriff and jury cases a year. That is only a rough estimate, though—there might be even more. Furthermore, we need to see what effect the new domestic abuse offence will have on case numbers over the coming years. Indeed, it is very relevant that the committee is considering this amendment today, as it is less than three weeks since the commencement of the Domestic Abuse (Scotland) Act 2018.

Despite those significant implications, it is important that we take progressive action to improve the experience of child witnesses in domestic abuse solemn cases. This provision is an ambitious step, but, as I say, many members here today have put forward a compelling case for its inclusion. Once again, I put on record my thanks to all of you for raising the issue and to all the stakeholders who contributed, and I thank the committee for recommending a significant and very important addition to the bill.

I am pleased to move amendment 1.

Liam McArthur (Orkney Islands) (LD)

I thank the cabinet secretary for his comments. He has fairly summed up the conclusion that the committee reached. We all recognise the resource implications and pressures that amendments such as amendment 1 might place on the justice system. I am interested in getting a better understanding of where the pressures are likely to fall and what additional resources the Government may need to put in place to ensure that there are no knock-on implications for other cases. However, I welcome the move that the cabinet secretary has made in lodging amendment 1, and I will certainly support it.

Daniel Johnson (Edinburgh Southern) (Lab)

I echo Liam McArthur’s comments. During the stage 1 debate, there was considerable discussion of the merits of extending the provisions in the bill to the summary procedure. We are all mindful of the need not to overwhelm the system by going too far too quickly. However, with that in mind, and given that the measures could be used under the summary procedure, has the cabinet secretary given any consideration to possible non-legislative measures the use of which might be encouraged where appropriate? That applies to domestic abuse cases, in particular, but also to any case in which vulnerable witnesses give evidence under the summary procedure.

John Finnie (Highlands and Islands) (Green)

I welcome amendment 1. To make a general comment, I know the frustration that Opposition MSPs often feel in respect of legislation that is introduced by the Government and what is sometimes felt to be a not particularly positive response to stage 1 reports. However, this is a good example of the process working. That is not intended in any way as a criticism of the Government. The fact that the cabinet secretary talked about the implications and the on-going consultation, which is important, shows that we can make a recommendation that can have wider implications. I welcome amendment 1 and will support it.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I welcome the amendment. I give credit to the cabinet secretary and the Government for taking on board what stakeholders and the committee said at stage 1. It is an absolutely fantastic amendment.

I ask the cabinet secretary, in summing up, to say whether the research that his officials have done has highlighted anything on the number of children who might become witnesses compared to what the situation would be if the legislation was not in place.

The Convener

We all welcome the fact that the cabinet secretary has taken account of our recommendation in the stage 1 report. The committee considered the issue and all members agreed that the provisions should be extended to domestic abuse cases that are dealt with under the solemn procedure, as a way of addressing the issue but not impacting on the phased approach, the aim of which is to get it right at every stage.

The cabinet secretary talked about a projection of 43 High Court cases and 203 sheriff and jury cases, but there is no guarantee that child witnesses would be involved, so it will be interesting to hear his comments in answer to Fulton MacGregor’s question.

Humza Yousaf

I thank members for their comments and feedback. I do not have all the detail on the research behind the numbers that I quoted of 43 cases in the High Court and 203 sheriff and jury cases. However, I can come back to the committee with some detail if members are interested. It is important to say that the figures are projections and estimates rather than exact figures and that there is an important caveat relating to the new domestic abuse offence.

The estimated cost—again, I add the caveat that it is estimated—of adding domestic abuse to the list of offences in solemn cases could increase the recurring cost of the bill by up to approximately £1.3 million per year. It is clear, from the financial memorandum, that the reforms will be expensive to implement. However, they are important, as the committee and stakeholders have said, so the costs can be justified.

If the bill is passed, we will continue to monitor the financial implications of the changes, and we will engage fully with our justice sector partners—in particular, with the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service—on their funding requirements. The financial requirements that arise from the bill will be considered in the next spending review.

Liam McArthur

That is a helpful clarification. I accept that it might be difficult to put precise figures on it, but can the cabinet secretary assure the committee that, ahead of stage 3, we will see a revised financial memorandum that firms up the figures as far as possible?

Humza Yousaf

Yes. I will be happy to explore that. We will have to look at the financial implications of any amendments that are agreed to at stage 2, which will affect the financial memorandum.

I do not have anything to add to the points that Daniel Johnson made other than that he is absolutely right. The special measures that we have put in place are perhaps not being used to their fullest at the moment. A lot of work has to be done to encourage the use of those measures, particularly for the most vulnerable. I am happy to take the conversation with Daniel Johnson offline—or to continue it formally with the committee, if members wish—in seeking what more can be done through non-legislative measures to ensure that the use of special measures is greater than is currently the case.

Amendment 1 agreed to.

The Convener

Amendment 2, in the name of the cabinet secretary, is grouped with amendment 5.

Humza Yousaf

The amendments in this group are both of a technical nature. I will not lie—I had to ask my officials to go over the technical detail a couple of times so that I could fully grasp it.

Amendment 2 is a technical amendment to ensure that two sets of provisions that are contained in the bill function properly in relation to each other. They are the new rule in favour of pre-recording and the simplified notification procedure for standard special measures.

Section 271D of the Criminal Procedure (Scotland) Act 1995 enables the court at any time, up to and including when a vulnerable witness is giving evidence, to review the arrangements for the giving of that evidence at the request of any party to the proceedings or of the court’s own accord. The bill modifies the review provision for cases in which the new pre-recording requirement applies. The modifications are necessary so that the exercise of any review in such cases is applied consistently with the pre-recording requirement.

The bill also modifies section 271D of the 1995 act to allow the court to review the arrangements for taking a vulnerable witness’s evidence when the arrangements were the result of the new simplified procedure for requesting standard special measures administratively and were not authorised by a court order. That is what subsection (4A), which is referred to in amendment 2, does.

However, the simplified notification procedure does not apply in cases to which the new pre-recording requirement applies. That is because taking evidence on commission requires a judge or sheriff to be appointed as commissioner, a commission hearing to be set and a ground rules hearing to be set and conducted, which are matters that need to be dealt with through court orders.

I am proposing a simple technical amendment to remove the modification of the review provisions that relates to the simplified notification procedure from the modified version of section 271D of the 1995 act, which will apply to cases that fall within the new pre-recording requirement.

Amendment 5 addresses an anomaly in the bill as introduced. As the committee is aware, even though standard special measures are an automatic entitlement for children and deemed vulnerable witnesses, the sheriff or judge still has to authorise the use of those measures. That is required even though the other party cannot object.

Section 6 simplifies the procedure for seeking standard special measures for child witnesses or deemed vulnerable witnesses. I am grateful to the committee for welcoming the reforms to streamline the process in its stage 1 report. The policy intent was always that the simplified procedure should be available for all child witnesses who are entitled to standard special measures. That would have included the child accused, but, inadvertently, the bill did not contain appropriate technical modifications to facilitate that. The standard special measures for the child accused are a live television link and a supporter, but the measures do not include screens. Amendment 5 provides for appropriate technical adjustments, to ensure that, in the future, the same administrative procedure for requesting standard special measures can apply seamlessly to a child accused as to other child and deemed vulnerable witnesses.

The bill does not apply the pre-recording rule to the child accused, as that would raise complex issues about interaction with the accused’s right to silence. There is, however, no justification in procedure terms for treating a child accused’s application for standard special measures any differently from that of any other child witness in a situation outside the new rule. We consider that simplifying the procedure for standard special measures should also benefit a child accused. It would, of course, still be for the defence to consult their client on the most appropriate special measure if they chose to give evidence.

I move amendment 2.

Amendment 2 agreed to.

The Convener

Amendment 3, in the name of the cabinet secretary, is in a group on its own.

Humza Yousaf

In any legislation proposing reforms to our criminal justice system, it is important that we strike the right balance. The intention behind the bill is—in the interests of justice—to support vulnerable witnesses better by reducing the potential impact on them and helping them to give their best evidence, but we are clear that that can and must be done while securing the right to a fair trial.

I have been keen to emphasise that it is not our intention that the bill’s provisions should limit or prevent cross-examination. We do not consider that the bill does that or that it affects the necessary safeguards. It simply, but importantly, requires that the evidence of many more of our most vulnerable witnesses be pre-recorded in advance of trial. However, I listened to the concern that was expressed during stage 1 by many important voices in the legal sector that the bill’s reforms could potentially enable the use of a prior statement as a witness’s only evidence in circumstances in which another party wishes to cross-examine that witness. That could potentially have the effect of, for example, preventing a defence representative from questioning the witness.

The committee rightly raised that concern in its stage 1 report and asked what steps the Scottish Government intends to take to address them. Although we do not agree with the view that was expressed on the effect that the bill’s provisions could have in that regard, it is clear that the concern is genuine and that we need to do what we can to allay it.

We considered that the best approach would be to put the matter beyond doubt in the bill. We could have added a clarifying provision confirming that none of the bill’s provisions would preclude the right of the other party to cross-examine the witness, but that approach could have had an unintended consequence, as the right to cross-examine is not and has not needed to be set out in legislation. It has always been accepted that cross-examination is needed for a fair trial, so such an amendment could have cast doubt on other areas where the right to cross-examine has simply been assumed and nothing explicit has been said about preserving it. Amendment 3 proposes a slightly different approach, but one that we consider would have the same effect. It would create an appropriate mechanism that parties could use to require a commission to be held in cases in which the court had originally decided to admit a prior statement as the witness’s sole evidence.

The amendment would enable any party to the proceedings to have the court authorise the holding of a commission. For example, a party to the proceedings could have a commission set up for them to conduct their cross-examination of the witness when a child had already given their evidence in the form of a prior statement and further evidence came to light at a later stage. The remedy is to enable a party who needs to cross-examine the child witness to seek a review of the order authorising the use of that special measure of prior statement alone and to request a commission hearing. The amendment would require the court to authorise evidence taking by commissioner, which would enable the child to be cross-examined.

I am grateful to all those who gave evidence in writing on the issue and to the committee for its consideration of the matter. It is important that we continue to have wide support for the pre-recording rule, and amendment 3 should give the necessary reassurance to deal with the concerns that have been raised. Indeed, we consulted representatives of the Faculty of Advocates, who confirmed that the faculty is content with the amendment.

I move amendment 3.

Amendment 3 agreed to.

Section 1, as amended, agreed to.

Sections 2 to 4 agreed to.

Section 5—Taking evidence by commissioner

The Convener

Amendment 4, in the name of Liam Kerr, is in a group on its own.

Liam Kerr (North East Scotland) (Con)

Amendment 4 makes it clear that the commissioner has power to take steps to protect vulnerable witnesses

“after the conclusion of proceedings”.

Its effect is that where a special measure is presided over by a commissioner, the commissioner must consider whether the witness will participate in the proceedings more effectively if they are assured of protection after the conclusion of the proceedings.

The justice system must recognise that although the formal process of giving evidence might be over when proceedings conclude, victims and other vulnerable witnesses might require further protection and support afterwards. Amendment 4 would add to the powers that are available to commissioners if they deem that the steps could reasonably be taken; it would not mandate action or place an overly burdensome duty on them.

Since lodging amendment 4, I have received Lady Dorrian’s very helpful comments on it and other proposed amendments. If the cabinet secretary is minded to oppose amendment 4, I ask that, in replying, he set out what work the victims task force is doing to support and protect vulnerable witnesses after the conclusion of proceedings, as far as their mental and physical wellbeing is concerned.

I move amendment 4.

Daniel Johnson

Amendment 4 is interesting, in that while there is broad agreement that the bill’s provisions on taking evidence by commissioner are measured and reasonable, there are concerns about whether some go far enough towards proactively seeking assurances that vulnerable witnesses will be supported through the process in the way that they need to be, and that they will have continuity of contact. I very much bear in mind what Lady Dorrian has said, but question marks remain over whether the requirements should be made more proactive rather than passive.

Therefore, I will not support amendment 4. I will abstain, in the hope that the Government will consider the possibility of improving some of those provisions.

Liam McArthur

I am grateful to Liam Kerr for setting out the purpose behind amendment 4. He is absolutely right about the concerns that we heard throughout stage 1, about what Daniel Johnson has referred to as continuity of contact. However, Lady Dorrian has made a very important point about the suitability of such an amendment for a bill of this type. Therefore, while I will listen very carefully to what the cabinet secretary says on the work of the victims task force—that is probably where the issue would be best addressed, as it needs to be—I cannot, for the reasons that Lady Dorrian set out, support amendment 4 as it stands.

John Finnie

I have a great deal of sympathy with what Liam Kerr has said. However, I adopt the same position as Liam McArthur. It is quite evident that a lot of support is provided throughout the process, from engagement with the police and social work services to during the court proceedings. However, from my casework I have seen that that support can tail off. In some communities, in particular geographical areas, there can also be a lasting legacy. Therefore I, too, will be very keen to hear what the cabinet secretary says about the victims task force.

Fulton MacGregor

Like others, I will not support amendment 4, although I have some sympathy with its aims. At stage 1, I raised the case of a child witness, in which there had been a perceived lack of support. However, I do not think that the issue should be put into legislation by means of the bill; it is more a matter for practice. Having listened to the cabinet secretary’s remarks in summing up the stage 1 debate, I feel that the matter will be progressed.

The Convener

I, too, very much welcome the fact that Liam Kerr has lodged amendment 4. The fact that there is support for witnesses and their families prior to their enduring trial but not afterwards, when there can be repercussions for them, is a real issue. I know that the cabinet secretary recognises that, especially in closed communities and rural settings. I am therefore pleased that the lodging of amendment 4 has allowed him to respond to that issue.

Humza Yousaf

I thank Liam Kerr for raising the issue and for lodging amendment 4. The Government will resist the amendment, for the reasons that other members have mentioned. However, like other members, we appreciate the intent behind the amendment.

On 8 January, when the issue was raised by the convener, I said that we often talk about throughcare for prisoners. Early on in my role as Cabinet Secretary for Justice, it struck me that it is important that we also consider throughcare for victims and others. From my engagement with victims—I do not doubt that committee members have engaged with victims, too—and as John Finnie will also know, from his experience in his previous role, I know that victims often feel, if they have needed to go through a really difficult ordeal, that the level of support that is available to them tails off at the end of a trial. That is not the end of the experience for victims by any stretch of the imagination. There can be shock when victims receive, for example, a letter that tells them that the person who committed the crime will have their first grant of temporary release or will have a parole hearing. Such a letter can come a number of years after a trial takes place, so the need for support is vital.

I acknowledge the points that the convener and John Finnie made about the real issues in relation to witnesses from closed communities, as well as the differences between rural and urban settings.

A lot of the work that we have done on supporting victims is underpinned by the Victims and Witnesses (Scotland) Act 2014, which includes the right of a victim to protection during and, importantly, after a criminal investigation. There is also the requirement for the police to carry out an individual assessment of a victim’s needs by considering a variety of factors, including the risk of repeat victimisation and intimidation. Those rights are set out in the victims code. However, members are absolutely right in that one of the core remits of the victims task force will be to look at that issue, in order to improve support, advice and information for victims and witnesses of a crime at all stages of the criminal justice system, including the trial process. The work will include looking at the information and support that are available to child and vulnerable witnesses.

The victims task force will look at how we can improve end-to-end support for victims and witnesses throughout the criminal justice system and beyond. That will include ensuring that victims and witnesses feel safe from any threat of harassment, victimisation or intimidation—for example, after the conclusion of a trial or when an offender is due to be released from prison, bearing in mind that that could be years after the initial trial takes place.

A key focus for the victims task force will be to drive forward work to develop a new victim-centred or single-point-of-contact approach to supporting victims and witnesses at every stage, because many victims have told us that retelling their story is a retraumatising experience for them.

The work will be led by Victim Support Scotland, in collaboration with task force members. A report setting out further details of the victim-centred approach will be published this spring. We can ensure that the report is sent to the convener, for her to distribute to the committee more widely.

I will not restate the objections to amendment 4, because Lady Dorrian, whom many members have referenced, can articulate them far better than I can. Although everyone—including Lady Dorrian, through her letter—recognises the good intent behind the amendment, the bill is not the right place for it. Indeed, it would not necessarily be in the courts’ remit to look at end-to-end support. That said, I reiterate that, although I do not support it, Liam Kerr’s amendment raises some very important issues. I hope that I have given him and the wider committee real assurances that a core part of the victims task force will be to look at the issue.

Liam Kerr

I am grateful to all members for their persuasive arguments. As the cabinet secretary rightly pointed out, we can all agree with the principle behind my amendment. In that regard, I was pleased to hear the cabinet secretary’s reassurances, and I hope that we will see evidence of the victims task force taking on the issue. Lady Dorrian’s argument is, of course, well reasoned and persuasive. For all those reasons, unless the committee is particularly minded to vote on it, I will withdraw amendment 4.

Amendment 4, by agreement, withdrawn.

The Convener

Amendment 6, in my name, is in a group on its own.

Amendment 6 seeks to amend the bill to ensure that parties who are involved in the taking of evidence by commission must comply with training requirements relating to the questioning of vulnerable people. It follows the evidence that the committee heard about the importance of, and need for, appropriate training for all who are involved in the process of taking evidence by commissioner. As well as being provided to judges and sheriffs, such training should be provided to prosecution and defence solicitors and advocates who are involved in ground rules hearings and the subsequent commission. Amendment 6 has been lodged as a probing amendment to facilitate a discussion about what would be required to ensure that appropriate training takes place.

In addition to her formal evidence, the committee has received from Lady Dorrian very helpful new comments that explain, for example, that the training could not and should not be regulated

“through Court rules in an Act of Adjournal”,

because that would interfere with section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which governs the rights of audience of qualified practitioners. Furthermore, in Lady Dorrian’s view, the introduction of such a provision would have far-reaching consequences for Scots legal practice. More significantly in the context of the bill, it would be contrary to the collaborative process that was adopted by the evidence and procedure review group,

“in which the professions were fully invested and were willing participants”.

For the purposes of today’s discussion, and in order to focus on the best possible training measures, it should be recognised and accepted that the Scottish ministers will be responsible for the determination and delivery of such measures. In this area, the committee’s evidence highlighted the importance of ensuring that the training process is tailored to individual needs. Children 1st stated that in order to ensure that witness questioning is carried out appropriately,

“all professionals involved in forensic interviewing of children”

should have

“the skills and knowledge to sensitively elicit the best evidence”

without retraumatising the witness. Children 1st, Social Work Scotland, Police Scotland, NHS Education for Scotland’s psychology directorate and Victim Support Scotland all emphasised the need for the training to be trauma informed and sufficiently resourced, and I would be grateful if the cabinet secretary would address both of those crucially important points.

Finally, academic research has suggested that to improve the quality of investigative interviewing of children, it would be best practice to adopt the National Institute of Child Health and Human Development protocol training system rather than continue with the traditional structural focus of the model that is used in Scotland. I would therefore be grateful if the cabinet secretary would comment on that protocol and its key recommendations, which are that recording interviews is the best way to preserve evidence and that it should be explained to children before the substantive interview phase of communication that they are in control of the interview and that, if they do not know the answer to the question or do not understand it, they should say so. In addition, suggestibility and misleading questions should be avoided. An unconnected topic practice interview would help to establish a rapport with the child and would provide the opportunity to practise open-ended prompts such as “Describe how or where” and so on. Monitoring and assessment of training should be carried out periodically well in advance of, say, a two-year deadline for review, to allow improvements to be factored in as the training progresses.

I look forward to hearing the comments of the cabinet secretary and other members on those proposals.

I move amendment 6.

John Finnie

I have a great deal of sympathy with what the convener said. We recently visited the Court of Session to see the training available. I have often been critical of the training that is delivered and its relevance, particularly in relation to this aspect. The issue is challenging, for the reasons that the convener has laid out in detail about leading questions and the like.

We know, from the committee’s visit there, about all the factors that are considered in Norway regarding the appropriateness of engagement with children at different levels, ages and abilities. The issue is complex and important, and training needs to be a foundation stone if the bill is to be successful.

There is a “however” coming, I am afraid. Lady Dorrian has laid out the reasons why the bill is not the vehicle in which to deal with the issue. It still has to be picked up, though, so I will listen intently to what the cabinet secretary has to say.

Daniel Johnson

I thank the convener for lodging this probing amendment, which gets to the heart of the fundamentally important point about the way in which children are questioned and their evidence is obtained. Although the measures in the bill are welcome, their success will come down to the way in which advocates and judges put questions to children. The convener’s point about the need to monitor and encourage best practice was extremely well made. Given the proposals in other amendments to have reviews, I wonder whether lodging at stage 3 an amendment to introduce a provision to monitor and promote best practice might be a way of taking the issue forward. I welcome both the raising of the issue and the sentiment, and hope that the amendment leads to further developments at stage 3.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I agree with the previous comments. The amendment is well intentioned, but, for the reasons that Lady Dorrian outlined, I do not think that it is practical. Training is really important and has to be at the top of the agenda, so I look forward to the cabinet secretary’s remarks.

Liam McArthur

We have all lodged probing amendments to bills in the past. This one serves the useful function of underscoring the issue that came through loud and clear, not only from the visit to Norway but from other evidence that the committee took, which said that the bill will only be as good as the way that it is delivered by well-trained professionals. The amendment provides an opportunity for the cabinet secretary to underscore that point and set out measures to ensure that such training takes place as the bill is rolled out.

Humza Yousaf

I agree with the sentiment that members have expressed. It is important that any questioning of vulnerable witnesses is carried out to the highest standard, and training is a key element in achieving that. I therefore welcome the convener’s probing amendment, which has raised the issue and allowed us to focus on the important role that training has in the questioning of witnesses. Unfortunately, we cannot support it; we will resist it for the good reasons that have been mentioned by Lady Dorrian and committee members.

The most recent meeting of the victims task force was hosted by the Judicial Institute for Scotland, which is the agency tasked with training judges and sheriffs. That gives further reassurance that the victims task force is looking at training as a live issue. Training for judges and sheriffs is for the Judicial Institute, and training requirements for solicitors and advocates are for their professional bodies. The inclusion of training requirements in an act of adjournal would therefore be unprecedented and, as Lady Dorrian has said, inappropriate, as it would cut across the professional regulatory responsibilities of the Faculty of Advocates and the Law Society of Scotland. I know that that is not the convener’s intention. It is not for the court or the Lord President to determine what training is appropriate for advocates or solicitors, or to certify an appropriate provider.

Amendment 6 might undermine the principle that once a practitioner has the right of audience, the court cannot refuse to hear him or her. It might also cut across the role of the Lord Advocate as the independent head of the system of criminal prosecution. As you will be aware, the Lord Advocate is the prosecutor in all High Court trials; advocate deputes appear by reason of the commission that he gives them, and it is a matter for the Lord Advocate to decide to whom he gives such a commission. The amendment might constrain him in cases involving evidence before a commissioner, but again I do not believe that to be the convener’s intention in lodging this amendment.

None of my comments should be taken to suggest that I do not agree on the importance of training in this area, but I consider that that can be dealt with in a more appropriate and effective way. One area where it might be addressed is in the High Court practice note that came into effect on 8 May 2017 and which provides extensive guidelines for practitioners for the taking of evidence by commissioner. It also directs practitioners to the advocate’s gateway website, which provides helpful guidance on how to ask appropriate questions depending on the age of a child or young person.

There is also a supplementary practice note that will come into effect in April, which contains further detail about the submission of questions in writing in advance and sets out a protocol for the general approach to be taken. The protocol was agreed by the Crown, the Faculty of Advocates and the Law Society of Scotland, and the greater use of that procedure will help to ensure that questioning is appropriate. Perhaps the four issues that the convener has well articulated can be examined when the practice note comes into effect in April, but we can take away what the convener has said and have those conversations with the Crown, the Faculty of Advocates and the Law Society of Scotland to ensure that those principles are reflected in the note. That would be a more appropriate way of addressing the issue and would ensure that we did not undermine the important role of organisations whose remit covers the training of judges and lawyers.

On the point about trauma-informed training on which the convener has rightly pressed the Government, it is a hugely important issue, and the 2018-19 programme for government includes a commitment to developing an adversity and trauma-informed workforce. We have announced £1.35 million to launch a national trauma training programme to support the Scottish workforce in responding to psychological trauma, and that will be in line with the first knowledge and skills framework for the Scottish workforce, “Transforming Psychological Trauma”, which was published last year by the Scottish Government and NHS Education for Scotland. I hope that that gives the convener some reassurance, but I would also add that in its first couple of meetings the victims task force has often talked about the need for a trauma-informed approach to the criminal justice system.

The Convener

Can you address the specific point about resources? All the people whose views I have read out and the people from whom we took evidence very much sought an assurance that the training would be sufficiently resourced.

At the same time, can you explain how, on an on-going basis, you will know and be assured that the training is happening? How is the quality or effectiveness of that training monitored at present?

Humza Yousaf

As far as training is concerned, we have regular discussions with the Scottish Courts and Tribunals Service and various agencies, and I have related to them what the Judicial Institute for Scotland has said. It is up to them to determine the appropriate training for judges and sheriffs, but we often work closely with them, particularly when new legislation is coming into force. For example, there has been extensive training for judges and sheriffs in relation to the domestic abuse legislation, and that, of course, comes with resource implications. If the Judicial Institute feels that there is a need for more training for sheriffs and judges, it can make that representation to the Government.

As for our overview of the situation, I am always very aware that the Government has to respect the independence of our judges and sheriffs. We can, of course, be involved in this kind of activity, but we must do so only when appropriate, and it is certainly not something that we would set out in primary legislation.

For example, the Scottish Government hosted a round-table meeting in February this year for NHS Education for Scotland, the Law Society of Scotland, the Faculty of Advocates, academics and other stakeholders from the legal profession to discuss opportunities to develop bespoke trauma-informed training resources for solicitors to count towards continuous professional development. It is important that training is developed practically like that, rather than there being an inflexible approach via legislation. I hope that hearing that we have regular dialogue with the Judicial Institute for Scotland on resources and training needs provides an element of comfort.

The Convener

The cabinet secretary will appreciate that the training aspect—the content of the training and the effectiveness of questioning—will be key to the success of the bill’s provisions. Amendment 6 has been helpful as a probing amendment in ruling out an act of adjournal as a way of taking matters forward. However, there remains the question of the NICHD protocol, which has very sensible suggestions regarding, for example, explaining to a child that they do not have to feel under pressure to answer questions, that they can say that they do not understand and can ask for more explanation and that they can simply say that they do not know, if that is the case. It is about avoiding suggestibility and misleading questions and having more practice in open-ended questions, which are all germane to getting the best evidence and moving towards the forensic interview. A practice interview, even on an unrelated topic, could also be helpful in practising techniques and establishing rapport in order to put the child at ease. Crucially, there should be monitoring and assessment of the training to see whether it is effective, rather than just stating that trainees have done their training and that is it.

Is the cabinet secretary prepared to meet me to discuss the matter a bit further to see whether we could add anything to the bill at stage 3 that could ensure that the very best training is carried out?

Humza Yousaf

Yes, of course. I am very happy to meet and explain my views on the issue. The four points that the convener articulated are eminently sensible. However, the caveat is that I suspect that the Crown Office, the Faculty of Advocates and the Law Society of Scotland would be much better placed to judge whether there would be any unintended consequences of what is suggested. It is important to explore that in further detail with those stakeholders. I am happy to meet the convener, but she might also want to touch base with those stakeholders to get their views on the issue.

The Convener

That is very helpful, and I appreciate that it would also be important to meet those stakeholders. I propose to withdraw amendment 6.

Amendment 6, by agreement, withdrawn.

The Convener

Amendment 7, in my name, is grouped with amendment 8.

The bill is silent on the issue of additional commission hearings, but it was confirmed at stage 1 that, if new evidence emerged, a further commission hearing could take place. I therefore lodged amendment 7, which is a probing amendment, to provide the committee with the opportunity to discuss the issue.

The amendment proposes that, where an additional commission hearing with a witness is required, the court must meet a test for the taking of new evidence of there being a

“compelling reason for doing so.”

Academic research and the 1989 Pigot report recommended the pre-recorded capture of evidence to ensure that children should not be revictimised by having to give evidence all over again in court. The same principle should apply to additional commission hearings.

The additional comments by the Lord Justice Clerk, Lady Dorrian, are extremely helpful here. She pointed out that although there might be some advantage in setting out a new process to allow the holding of a further commission hearing, there would also be significant risks. For example, if the bill had such a provision, experience suggests that, in practice, applications for a commission hearing would rapidly become a routine occurrence. That would undermine two of the bill’s central objectives: to minimise the uncertainty as to when a witness might have to appear; and to avoid repeat appearances.

It is the judiciary’s view that there is already sufficient flexibility in the current court procedures to allow for such follow-up hearings, if required. It would be helpful to have on the record the cabinet secretary’s understanding of the legal basis for the taking place of multiple commissions, where necessary and appropriate.

In its stage 1 evidence, the committee heard that there has been no instance in which new circumstances have arisen that gave cause for a second commission hearing. Given that, and given Lady Dorrian’s comments, does the cabinet secretary agree that it is not necessary or desirable for the bill to provide for additional commissions?

Amendment 8, which is also in my name, provides for a review of the bill’s impact, focusing on

“the taking of evidence from child witnesses by commissioner on multiple occasions in relation to the same proceedings”.

The review would have to be carried out up to two years after the bill receives royal assent, and the Government would be allowed a year to respond.

Although amendment 8 provides for the review to be carried out up to two years after royal assent, it is important to stress that, given the proposed phased approach to adults, it might be sensible to carry out the review to establish effectiveness before the two-year deadline. I would be grateful for the cabinet secretary’s view on whether the review provision should be in the bill.

I move amendment 7.

John Finnie

I do not support the proposed approach. The evidence from Norway is that if we get a robust system first time around, there will be no such requirement.

However, you have raised a valid point, convener. As is always the case with justice issues, there is a tension between the rights of the complainer and the rights of the accused. I am reassured by the very clear statement from Lady Dorrian that the judiciary’s view is that, if a further accusation were to come forward, there would be sufficient flexibility in current court procedures to deal with that. The bill as it stands meets the requirements of both the complainer and the accused.

Fulton MacGregor

Like John Finnie, I do not support amendment 7. We heard from various witnesses that we need to limit the number of times that a child is retraumatised—the convener raised that issue. An important point is that nothing in the bill prevents a second commission from taking place if the circumstances require it. We need to trust the practitioners who work with the children involved to make those judgments.

Humza Yousaf

I thank the convener for amendment 7, on the power to hold a second commission, and amendment 8, on a review of the impact on child witnesses who give evidence on multiple occasions in the same proceedings.

On amendment 7, it is helpful to have the opportunity to consider whether specific provision is required to enable a second commission to take place. It is an important point, so this has been a valuable discussion.

The policy intent is clear. We do not want multiple commissions, as that would remove the main benefit for the child or vulnerable witness of pre-recording their evidence. It would also delay the point at which the experience would be over and done with and the witness could attempt to move on with their life.

However, it is necessary to have a procedure for allowing another commission to happen in the rare circumstances in which there is a need to recall a witness for further questioning. I note from the stage 1 report and the comments of many members of the committee that it is accepted that we need to limit the impact of further questioning. It is right to seek clarification on whether a specific provision is required or the current legislative framework will suffice.

In the Scottish Government’s response to the committee’s stage 1 report, we advised that we would consider further whether a specific provision in the bill on second commissions would be helpful, but it is still our view that it is unnecessary.

As has been mentioned, Lady Dorrian, the Lord Justice Clerk, has written to the committee to advise that the judiciary’s view is that

“there is already sufficient flexibility within current court procedures to allow for a follow-up hearing if it is required.”

She helpfully highlighted the risks in setting out a new process to allow the holding of a further commission hearing. In particular, if there was an explicit procedure in the bill, such applications would become routine, which

“would undermine two of the central objectives of the Bill”.

The very existence of a separate procedure could encourage applications for further commissions. That is at the heart of the issue that concerns me most about setting out a separate procedure.

The convener asked about our legal understanding of the position. We align ourselves with what Lady Dorrian said—we believe that a second commission could be done by review under section 271D of the 1995 act and that more than one vulnerable witness notice can be submitted under section 271A of the 1995 act, so there are already mechanisms that the court could use to order a second commission if that was necessary.

Amendment 8 focuses on reviewing the bill’s impact and specifically the impact on child witnesses who have had to give evidence on multiple occasions in relation to the same proceedings. Of course I understand the rationale and the good intention behind the amendment, and I agree with the principle that these important reforms should be evaluated.

As we set out in the implementation plan, which I sent to the committee on 7 January, monitoring and evaluation are integral to ensuring that the commencement and roll-out of the bill are undertaken in a managed and effective way. However, there are a number of issues that mean that I cannot support amendment 8.

The first issue concerns timing. The amendment would require a review process to commence two years after royal assent, which we expect would be in approximately June 2021. Under the implementation plan, we expect in those two years to conclude the first six-month evaluation of the operation of the provisions in the High Court. It would not make sense to embark on another evaluation so soon after that, particularly given that the new rule would not yet have been rolled out to sheriff and jury cases.

The second issue is about inflexibility. I accept the convener’s point that, if a child witness has given evidence on multiple occasions in relation to the same proceedings, that is an important factor that we must consider. However, to create an entirely new process to focus appraisal on that one issue might be disproportionate, particularly given that, as Lady Dorrian pointed out, there has not yet been an instance where new circumstances have arisen to give cause for a second commission hearing.

In any evaluation, there should be close monitoring of a range of other matters, such as the volume of commissions and the types of cases, as well as how commissions are working operationally, to ensure that the reforms are having the desired effect and to inform decisions about the next stage of the roll-out. Furthermore, we would want to evaluate not just the bill’s impact but aspects of the broader system, such as the High Court practice note.

Thirdly, the amendment would require consultation with “vulnerable witnesses” when the report is prepared. It is important to hear the voices of the people we seek to support, but the matter is clearly sensitive, and I am concerned that a statutory obligation could not only be ineffective but have unintended consequences for the people we seek to protect—for example, they might have to retell their stories.

All that considered, I see merit in potentially having a review provision in the bill, which I intend to comment on in the debate on the next group. However, a review that focuses on multiple commissions, which are unlikely to be numerous, is not the preferred approach.

Convener, I hope that my comments have given sufficient reassurance on second commissions to enable you not to press amendment 7 or move amendment 8.

The Convener

As I said at the outset, amendment 7 is a probing amendment. I think that it has been useful to get on record the cabinet secretary’s view, which concurs with the judiciary’s view, that there is sufficient flexibility in the current court procedures to allow such follow-up hearings, if they are required, without setting that out in the bill, and that setting it out in the bill would be undesirable and would only encourage applications, which would not be helpful.

It has also been useful to hear the cabinet secretary’s comments establishing that there would be an evaluation after six months, which is roughly the time when we would want to think about commissions and other aspects of the bill.

I think that it has been helpful to put that discussion on the record. In light of that, I seek the committee’s permission to withdraw amendment 7.

Amendment 7 withdrawn.

Section 5 agreed to.

After section 5

Amendment 8 not moved.

Sections 6 to 8 agreed to.

After section 8

The Convener

Amendment 9, in the name of Liam McArthur—I am sorry, I mean Liam Kerr. Were you panicking there, Mr McArthur?

Liam McArthur

Amendment immediately withdrawn. [Laughter.]

The Convener

Amendment 9, in the name of Liam Kerr, is grouped with amendment 10.

Liam Kerr

Throughout stage 1, the Scottish Government made the point, rightly, that these reforms must be progressed slowly in order that careful monitoring can take place throughout implementation with regard to different groups of vulnerable witnesses in various types of proceedings. The cabinet secretary has just made clear his view that any review must be wide and all-encompassing. I agree, which is why amendment 9 would place the requirement to review the operation of the act on a more formal basis and include it in the legislation.

The report that is envisaged by amendment 9 would enable the committee and the Parliament to scrutinise the reforms closely and receive all the information that they require to do so. When the cabinet secretary decides to halt or progress a particular phase or extension, the report would give the public confidence that there is an evidence base behind such a move and ensure that the cabinet secretary is accountable for that decision.

If the cabinet secretary is minded to speak against the amendment—he has indicated that he intends to comment in depth on amendments 9 and 10—I would be grateful for suggestions about how the Government proposes either to share the progress and results of extension with the committee or to move to such an outcome at stage 3.

I move amendment 9.

The Convener

Amendment 10 is another probing amendment, which focuses on the principle of moving to the barnahus model. The amendment specifically seeks to ensure that, after the bill has received royal assent, there will be a review of the progress that has been made by the Government and Government agencies towards implementing the principles of a Scottish version of the barnahus model.

The committee has been clear that it wants to see how the collecting of information has evolved and what progress has been made towards the one forensic interview and barnahus-type model before the end of this parliamentary session. I would be grateful to hear the cabinet secretary’s view on how that objective can be realised.

Daniel Johnson

I welcome both amendments in the group. As a general principle, I think that the idea of embedding the requirement for a review of a piece of legislation in that legislation itself often makes sense. It makes particular sense in this case, given what the bill seeks to do with regard to the change in the way in which evidence is gathered and the experience of the courts, which is, ultimately, the intention of the bill. Reviewing whether that effect has been achieved, and whether there are further steps that could be taken following implementation, makes a great deal of sense.

With that in mind, I think that amendment 9, in the name of Liam Kerr, is well framed and broadly stated in looking at the effect of the legislation in general. It is not prescriptive and gives flexibility with regard to the contents of the review, and it requires ministers to respond with consideration to the key agencies and actors involved in the operation of the legislation. My only concern is that a period of three years might be a little too short, for the reasons that the cabinet secretary set out in his response to the previous group of amendments, but that could easily be remedied and other considerations taken into account at stage 3.

I urge members to support amendment 9, as I will if the member chooses to press it.

Shona Robison (Dundee City East) (SNP)

I have sympathy with the sentiments behind amendments 9 and 10. Boiling them down, I think that they represent an attempt to ensure that progress is made and that the Government has a timeframe for demonstrating progress on important measures, particularly the shift to the barnahus model, that have been supported by all committee members.

However, my question is whether this is the only way of achieving that aim. We will have to hear what the cabinet secretary says, but if the intention behind the amendments can be achieved in a different way that does not require to be set out in the bill, I would be sympathetic to such a move. The most important thing is that we achieve progress towards an end that the committee has unanimously agreed on.

Fulton MacGregor

I welcome amendment 10 as a probing amendment. At stage 1, many of us pointed out that the infrastructure is already in place; police and social work already conduct joint investigative interviews, and the health services are already involved in assessments. It might be relatively straightforward to put in place a pilot for a one-stop-shop barnahus approach, and I will be interested in hearing what the cabinet secretary says about that. I think that that issue, too, was raised at stage 1. Although I will not vote for amendment 10 at this stage, I welcome it as a probing amendment.

Rona Mackay

Again, I think that amendment 9 is well intentioned, but I am worried about the retraumatising aspects of it. For that reason, I cannot support it.

As for amendment 10, I am happy that the issue has been brought up, and I look forward to hearing the cabinet secretary’s views on the matter. As Shona Robison said, everyone is very supportive of Scotland moving to the barnahus model, and I look forward to hearing from the cabinet secretary whether that could be done without putting prescriptive provisions in the bill.

Humza Yousaf

I thank the convener and committee members for their remarks, and I thank Liam Kerr and the convener for raising the issue of the monitoring and evaluation of the legislation by lodging amendments 9 and 10. I understand the rationale behind the amendments, and I very much agree with the principle that these important reforms should be evaluated.

As I said a moment ago, the implementation plan, which I sent to the committee on 7 January, has monitoring and evaluation as an integral part of the bill’s phased introduction. It is crucial that commencement and roll-out of the bill’s provisions are undertaken in a managed and effective way to ensure that the intended benefits are delivered to the individuals involved in these most serious of cases. We have included dates for only the first three phases in the draft implementation plan, because we must ensure that there is a suitable period of evaluation and monitoring before moving to the next stage of implementation. I intend to update the committee on that monitoring work after it has been completed for each phase and on what that evaluation means for moving to the next planned stage.

We need to retain flexibility in the timing of the evaluations, so it would not be appropriate to set that out in primary legislation. However, that is different from having an overarching provision in the bill to review and report to the Scottish Parliament on how the new pre-recording rule is working in practice. I understand that that is the intention behind Liam Kerr’s amendment and I can see the merits of such a provision. I am very much minded in favour of such an addition to the bill. Unfortunately, there are issues in relation to amendment 9 that mean that I cannot support it at this time.

Daniel Johnson

Will the cabinet secretary clarify whether he would accept the amendment if it did not have a set timeframe or had a longer timeframe? How long a timeframe would he accept?

Humza Yousaf

There are several issues with the amendment, in addition to the timing, which I was about to discuss. I suggest that I work with Liam Kerr and other members who are interested in the overarching review to see whether we could come back with a proposal at stage 3. I would not object to Daniel Johnson taking part in those conversations. I agree with the sentiment in principle, although there are other issues.

The drafting of the review provision suggests that any report on the impact of the act would focus on the support and information that are provided to vulnerable witnesses and would detail any new proposals from ministers in relation to that. Although I agree that monitoring and reviewing such information and support are important, I do not think that the proposed report on the operation of the act is an appropriate vehicle for such a review. As the bill does not propose any reforms on providing information to vulnerable witnesses, a statement on the impact of the legislation on such issues is likely to be very limited.

By highlighting the issue in his amendment, Liam Kerr has raised a vital matter. A key focus for the victims task force is the development of a victim-centred approach, which will include consideration of the support and information materials that are made available to all victims and witnesses. That approach, led by the task force, will enable a comprehensive review of information and support. We must ensure that the statutory review is timed to be as effective as possible, after those reforms have had a real chance to make the difference that we all believe they will.

It might be better to start the review three years from the date of commencement of the first phase of the roll-out of the pre-recording rule, rather than from royal assent. I emphasise that any statutory review would be in addition to our monitoring of each phase of the roll-out, on which we would update the committee.

In the previous group, I explained why I think that the amendments’ reference to consultation with vulnerable witnesses poses problems. However, although the amendment does not quite have the effect that I think is intended, it is a very constructive proposal. As I said, if Liam Kerr is willing not to press amendment 9, I would be happy to work with him and other members on an amendment to the bill at stage 3 to include a provision on a formal review of the act.

On amendment 10, I thank the convener for highlighting the importance of working towards ensuring that children’s evidence is taken in a child-centred setting, where children can access the wraparound care and support that they need. I am aware of the committee’s deep and sincere interest in the barnahus concept. A Scottish version of the barnahus concept is the best way to achieve that aim; as I said in the chamber on 5 February, that is the intended outcome of the Scottish Government’s work on the matter. I can fully understand why the committee is keen to ensure that progress is made and the evidence that the committee has gathered will inform our future work.

However, the issue for consideration today is whether amendment 10, although well meaning, would actually have the effect that is intended. In 2015, the Scottish Courts and Tribunals Service’s evidence and procedure review produced a comprehensive review of the process and identified clear areas for action. That was a detailed process, which took place over several years. I am not convinced that a Government-led review considering the same areas is necessary or appropriate at this time. Furthermore, introducing a requirement for another wide-ranging review of the process for taking evidence from children would inevitably divert resources from making progress on that important work.

In order to meet the requirement in amendment 10, any review would be focused on the way in which evidence is taken. Although that is an important part of the barnahus model, the concept is so much more than the type of accommodation in which evidence is recorded, although that is a vital element. It is about wraparound care and providing services that truly address trauma and promote recovery to vulnerable child victims at the earliest opportunity.

To perform a thorough, systematic review, work would need to begin in this parliamentary session, so the resource that we intend to commit to scoping how the barnahus model could work in Scotland and the development of Scottish-specific standards might have to be diverted to undertake another review of the evidence-taking process, which has already been done. That would be on top of the review into the operation of the act, which, with respect to Liam Kerr’s amendment 9, I have said should be added to this legislation. Although I understand that the amendment is considered to be a way to ensure that progress is made, I do not consider that such a review is the best way to do that, particularly as the report from the review would not be required until the next parliamentary session.

We are committed to working with stakeholders to consider how the concept would work in Scotland, which is why we have asked Healthcare Improvement Scotland and the Care Inspectorate to develop Scottish-specific standards for barnahus that are based on best practice from Nordic countries. That work will involve extensive consultation, including with health boards, children’s services, the third sector and justice partners, so it would be informed directly by children and young people’s evidence and their thoughts.

I do not believe that amendment 10 would be the best way of achieving that truly child-centred, trauma-informed response. The work that we are beginning on the barnahus concept in Scotland will do that. Instead of supporting the amendment, I am happy to commit today to providing a formal report to Parliament on progress that has been made on barnahus. I also reiterate the undertaking that was made in my letter to the committee of 12 December and in the stage 1 debate on 5 February to keep Parliament updated on progress in developing a Scottish approach to barnahus.

I hope that my comments will reassure members of my commitment in this area and that we will have the opportunity to work together on how to best ensure that progress is made in developing a Scottish approach to barnahus. I reiterate that I consider that that is most likely to be achieved by focusing on making progress rather than by committing to yet another review. I ask for amendment 9 not to be pressed.

Liam Kerr

I am grateful to members for their thoughts; it has been an interesting discussion. In particular, I take Daniel Johnson’s point, which succinctly summarised many of my views in lodging the amendment in the first place.

I am interested in the point that three years from royal assent is too soon, and I hear the cabinet secretary’s points on the implementation plan and on general timing and drafting. I think that the committee will agree that it is crucial that we get this right, and I welcome the cabinet secretary’s offer to work with us to ensure that outcome before stage 3.

On that basis, if the committee will indulge me, I will withdraw the amendment.

Amendment 9, by agreement, withdrawn.

Amendment 10 not moved.

Section 9—Consequential amendments

Amendment 5 moved—[Humza Yousaf]—and agreed to.

Section 9, as amended, agreed to.

Sections 10 to 12 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. I thank the cabinet secretary and his officials for attending.

Our next meeting is on Tuesday 19 March, and we now move into private session.

The Deputy Presiding Officer (Christine Grahame)

The next item of business is stage 3 proceedings on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds—I know that you are taking this all down carefully in handwriting as I say it. The cabinet secretary is! I am so impressed. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.

Section 5—Taking evidence by commissioner

The Deputy Presiding Officer

Members should now refer to the marshalled list of amendments. Group 1 is on taking evidence by commissioner: presiding over a ground rules hearing. Amendment 2, in the name of the cabinet secretary, is grouped with amendments 3 to 6. I ask the minister, Ash Denham, to move amendment 2 and to speak to all the amendments in the group.

The Minister for Community Safety (Ash Denham)

The amendments in this group are all of a technical nature. Section 5 of the bill makes provision for taking evidence by commissioner. It introduces the requirement for there to be a ground rules hearing before evidence is taken by commissioner. Depending on the circumstances, the ground rules hearing may be presided over by the commissioner, another judge of the High Court or another sheriff.

The amendments in the group do two things. First, they improve the drafting by making it more precise. The references in section 5 to “a judge” are wide enough to include a sheriff, too, so it is not necessary to use the word “sheriff” as well as the word “judge”. Secondly, the amendments ensure that, in a case where a ground rules hearing is not presided over by the commissioner, it is presided over by a judge of the court that appointed the commissioner.

Amendment 2 seeks to remove the reference to a sheriff, because a reference to a judge is sufficient to include a sheriff, and to clarify that the judge who presides over a ground rules hearing is to be a judge

“of the court which appointed the commissioner”.

Amendments 3, 4 and 6 seek to remove references to a sheriff, because the references to a judge are sufficient to include a sheriff. Amendment 5 will make a minor adjustment to improve the precision of the drafting.

I move amendment 2.

Amendment 2 agreed to.

Amendments 3 to 6 moved—[Ash Denham]—and agreed to.

After section 8

The Deputy Presiding Officer

Group 2 is on a report on the operation of sections 1 and 5. Amendment 1, in the name of Liam Kerr, is the only amendment in the group.

Liam Kerr (North East Scotland) (Con)

Members might recall that, at stage 2, I lodged an amendment that sought to implement a review of the operation of the bill as enacted. A good and incisive debate took place on my amendment, which included the cabinet secretary not only making persuasive points, but undertaking to work with me and other interested members to create something that would achieve the goals that we all felt were worthy.

I am pleased to report that that engagement took place, and I am grateful to the cabinet secretary and the Government staff for working collaboratively to put together amendment 1, which is a good amendment. Its purpose is to require the Scottish ministers, following consultation with key stakeholders, to conduct a formal reporting review of the operation of the bill as enacted. As amendment 1 is drafted, there will be two elements to the review process. First, there will be a qualitative review of whether the pre-recording reforms in the legislation have helped witnesses to participate effectively in the criminal justice system. Secondly, certain data must be included to show how many child witnesses have benefited from those reforms.

The review period covers the three years from the commencement of pre-recording for child witnesses under the bill as enacted. The draft implementation timetable indicated that pre-recording for child witnesses would start in January 2020. That should mean that the report of the review would be published by the end of 2023. Subsection (2) of the proposed new section sets out the information that the report must include, but it does not prevent the provision of any additional data that might be appropriate, recognising the need to maintain the principles of the independence of our courts and the protection of sensitive details of individual cases.

Amendment 1 will also require ministers to set out the next steps for commencing the pre-recording rule for any purposes or groups for whom it has not yet been commenced by the time the report is prepared, such as adult deemed vulnerable witnesses. It is a good amendment.

I move amendment 1.

Daniel Johnson (Edinburgh Southern) (Lab)

I voice my support for amendment 1. It has been clear throughout the passage of the bill that although the bill represents progress, it is not the finished article. We must continue to make progress in protecting vulnerable people as they interact with the criminal justice system.

The review process for which amendment 1 provides is an important step in ensuring that we see the progress that we all hope that the bill will bring. The recording of qualitative evidence on the effect that the measures in the bill will have on vulnerable witnesses in the court system will be particularly useful. For all those reasons, Labour members will support amendment 1.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I, too, want to express my support for my colleague Liam Kerr’s amendment 1. During the stage 2 proceedings, he continually raised the need for such a report to be prepared, and it is to his credit that he has worked with the Government to produce an amendment that works. I believe that the review process will demonstrate that a lot of children and young people and other vulnerable people will have been helped by the passage of the bill.

Ash Denham

I am grateful to Liam Kerr for lodging this important amendment. I know that, had the cabinet secretary been leading the discussion today, he would have placed on record his appreciation for having had the opportunity to work with him and others, as he mentioned, to ensure that amendment 1 appropriately reflects the strong views that were expressed at stage 2 for a mechanism to deliver a more formal review of the legislation.

I believe that we all recognise that we must be able to measure the extent to which the bill’s objectives have been delivered—everyone impacted by the legislation would expect nothing less. Being clear about our intent, and how we are going to monitor and evaluate, are fundamental to that goal.

The Government is committed to a transparent process, and it is right that the Parliament should want to be kept fully updated as the reforms progress. I also acknowledge the fact that the provision has been drafted to ensure that it does not impact on the independence of our courts in relation to individual cases.

Amendment 1 reflects our pragmatism and ability to achieve consensus throughout the passage of the bill. On that positive point, I thank Liam Kerr for his amendment, which I am happy to accept.

The Deputy Presiding Officer

I call Liam Kerr to wind up.

Liam Kerr

I have nothing further to add other than to thank colleagues for their comments and to endorse what has been said.

Amendment 1 agreed to.

The Deputy Presiding Officer

Group 3 is on reporting on the process for taking evidence from child witnesses in criminal proceedings. Amendment 7, in the name of Margaret Mitchell, is the only amendment in the group.

Margaret Mitchell (Central Scotland) (Con)

Amendment 7 focuses on ensuring that Scotland makes progress in moving towards the barnahus model. In particular, it responds to and addresses the cabinet secretary’s comments at stage 2 when I lodged a probing amendment on the same topic.

The amendment provides that, three months after the bill has received royal assent, there must be a review of the Government’s progress towards adopting the barnahus principles and that that must happen

“at 6 monthly intervals thereafter until the Parliament is satisfied that the matters have been sufficiently progressed.”

The review will cover what

“progress has been made toward taking evidence from child witnesses in criminal proceedings—

“(i) in accommodation other than court buildings,

(ii) in accommodation that provides such other support to child witnesses as is considered appropriate,

(iii) in as few interviews as possible”,

which is shorthand for moving towards forensic interviews.

In its stage 1 report, the committee made it crystal clear that it is essential to ensure that that issue, and making progress towards a Scottish barnahus model, remains on the agenda for the Government in this parliamentary session and, crucially, at the start of the next session for the incoming Government in 2021.

The amendment also makes provision for the Parliament to remain informed about the development of the interview process and the progress that is being made towards achieving a “one forensic interview” approach before the end of this session.

As the minister is aware, the Cabinet unanimously agreed on working towards implementing the barnahus principles. The committee’s stage 1 report states:

“The Committee recognises that there is no single model of the Barnahus and that its implementation would have to be adapted in the context of Scotland’s adversarial criminal justice system. However, the Committee does not consider that this should prevent the Scottish Government from moving towards full implementation of the Barnahus principles, specifically a ‘one forensic interview’ approach.”

Therefore, I hope that members will support amendment 7, to ensure that progress to achieve that objective is monitored, reviewed and brought back to the Parliament in this session and the next.

I move amendment 7.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I rise to speak against amendment 7, which is in the name of Margaret Mitchell, although I believe that it is well intentioned. The committee fully supports the introduction in Scotland of the barnahus model of a child-friendly, “one forensic interview” way of taking evidence from children—personally, I would like to see it happen tomorrow—but amendment 7 is not helpful as part of this bill.

The amendment assumes an obligation to move towards a new model when no such obligation is introduced by the bill. Indeed, no evidence was taken from the stakeholders who would implement it. The Scottish Government is working with stakeholders to consider how the model could operate in Scotland, and the cabinet secretary has written to the committee with a clear timeline of how that work would progress, along with Healthcare Improvement Scotland and the Care Inspectorate. Commenting on the bill, Children 1st said:

“We are pleased that the Cabinet Secretary has set out a clear timetable for the next stages in the delivery of the Barnahus approach in Scotland and the recognition of the need for a fully collaborative approach.

We welcome the commitment made during the stage 2 discussion of the Bill to review the progress that has been made by the Government and Government agencies after the bill has received Royal assent.”

There is also no correlation between the subject of the reporting requirements that are set out in amendment 7 and the objectives that are set out in the bill. The amendment seeks to introduce an onerous six-monthly reporting requirement with no clear end date and to ensure that that duty would continue until Parliament was satisfied that sufficient progress had been made. It sets out no mechanism or threshold that would allow Parliament to identify whether that had been achieved. Meeting such an indefinite reporting requirement would divert Government resource away from work on progressing the barnahus concept in Scotland, which is now well under way.

Amendment 7 specifies that ministers must consult child witnesses in preparing those repeated reports. The most important point to make in that regard is that asking child witnesses to revisit their experiences risks retraumatising them, and they would have no knowledge or experience of the new model that is the subject of the questions. Moreover, such an obligation is likely to be practically difficult and perhaps legally impossible, due to data protection issues associated with accessing and retaining details of child witnesses and contacting them without their consent or the consent of their carers.

There is also a technical flaw in the definition of child witnesses, in that the amendment refers to “the 1995 Act”, a term that is defined in neither the amendment nor the bill.

I thank Margaret Mitchell as convener of the Justice Committee for her enthusiastic support of the barnahus model, but I ask her not to move amendment 7 for the reasons that I have outlined.

The Deputy Presiding Officer

Well, she has already moved it, so you cannot ask her not to.

Daniel Johnson

I am somewhat conflicted, because I agree with everything that Margaret Mitchell has said. She is absolutely correct to state that we need to maintain our focus on the development of the barnahus model and to ensure that it is delivered as quickly as possible. However, I disagree with how she has set out to do that in her amendment.

As Rona Mackay made clear, the six-monthly reporting periods are unduly onerous and, given the effort that would be required, might well be counterproductive. I understand why Margaret Mitchell has applied the threshold of the Parliament being satisfied with progress, but I am not entirely clear what that satisfaction would mean in practical terms. It might lead to future disputes, which I do not think would be helpful.

For those reasons, we will vote against amendment 7, should the member choose to press it. However, I ask the Government to reaffirm its commitment to the barnahus model and perhaps provide further detail on how that work is progressing at the earliest available opportunity, either in response to this amendment or in the course of the stage 3 debate.

Fulton MacGregor

In speaking against amendment 7, I want to back up what Rona Mackay and, to a certain extent, Daniel Johnson have said. The barnahus concept was perhaps the most defining feature of the passage of the bill, and in that respect, the committee’s trip to Oslo was very valuable. We all want to get to the position where we can introduce barnahus, but the amendment puts undue pressure on the Government. The cabinet secretary has already written to the committee, outlining plans for how we will get there, including tackling the various legal challenges that we heard about. I know that the convener understands that—indeed, she has already mentioned it.

Finally—I will not overdo this point—I want to mention the issue that Rona Mackay highlighted about the retraumatisation of children. Given that that could be an outcome, I just do not think that voting for the amendment is acceptable. As a result, I, too, encourage colleagues to reject the amendment, but in doing so, I make it clear that that should not be mistaken as our not being supportive of the barnahus concept, which is something that we all want to be introduced.

Ash Denham

I am grateful to Margaret Mitchell for her continued commitment to achieving progress in ensuring that children’s evidence is taken in an appropriate setting, where the right support is available.

As the cabinet secretary has said to the Parliament throughout the passage of the bill, a Scottish version of the barnahus concept is the Scottish Government’s intended destination and the bill is an important initial step towards that destination. We are committed to making progress towards a truly trauma-informed, recovery-focused response to child victims.

However, although I understand the positive sentiments behind amendment 7, I do not believe that the overarching reporting requirement as set out by the amendment is the right way to deliver that progress. In order to meet the requirement as drafted in the amendment, resource would be focused on indefinite, repeated, short-term reporting to Parliament on where and how often children’s evidence is being taken. We believe that that resource would be better directed towards delivering such improvements holistically, in the context of the expertise of those interviewing children and the quality of the wraparound care and support that are provided to them and their families.

The amendment as drafted would also introduce a statutory requirement for ministers to consult child witnesses in the preparation of reports. Clearly, the voices of children and young people are crucial in shaping how barnahus should operate in Scotland. However, I am concerned that introducing a statutory obligation to consult highly vulnerable child witnesses in the preparation of frequent, repeated reports could have some troubling consequences. We heard clear evidence during the passage of the bill about the retraumatising impact that repeated retelling of their experiences can have on vulnerable child witnesses. It is important that, wherever possible, we try to remove—not add to—that burden.

In addition, it is highly likely that data protection issues would pose a barrier to accessing details of child witnesses whose evidence has been pre-recorded. Even if it was possible, the amendment would require ministers to consult those vulnerable children who are currently going through the process of giving evidence in our criminal courts about what they think about progress towards a different system. At such a difficult time in their lives, that does not seem at all appropriate. I am sure that that was not the intention behind Margaret Mitchell’s amendment, but we believe that that would be its effect.

I understand and commend the intention to ensure that children’s voices are heard, but particular care is required in how we achieve that. I believe that the answer is to develop our approach on barnahus in partnership with organisations that support children and their families every day, such as Children 1st. I want to let them tell us how best to engage with and include children’s views. For that reason, we are providing funding to Children 1st to support work on participation and children’s rights, which will help to shape our approach to barnahus.

As the cabinet secretary set out in his letter to Margaret Mitchell last week, work is now under way by Healthcare Improvement Scotland and the Care Inspectorate to develop Scotland-specific standards that will set out the road map to barnahus. That work is now at the scoping stage. A stakeholder event will take place this summer and we will share draft standards for wide consultation at the end of this year.

At stage 2, the cabinet secretary committed to keeping Parliament up to date on progress with this work, as requested by Daniel Johnson just a moment ago. I repeat that commitment today—we will come back to Parliament on progress before the end of this parliamentary session. That will be in addition to the regular updates that we will provide on the progress of the victims task force, which will give Parliament a full picture of all the work that is under way to improve victims’ journeys through the justice system.

We have listened to the Justice Committee’s strong views on the benefits of the barnahus concept and I am grateful for our consensus on the need to transform how we respond to child victims and witnesses. I do not believe that amendment 7 would achieve that transformation. Instead, it would mean that, rather than progress being made towards that important objective, resources would be focused on a constant cycle of consultation to prepare a report every six months, with the unintended consequence that that would take up the majority of time and greatly reduce the real progress that could be made.

What is needed now is careful work across the justice, child protection and health systems and the wider legal community, and we are beginning that work as we move towards a Scottish version of barnahus, which will start with the improvements under the bill.

I hope that what I have said makes my commitment clear. On that basis, I ask Margaret Mitchell to withdraw her amendment 7.

Margaret Mitchell

I thank all the members who have spoken for their comments. I was somewhat puzzled by Rona Mackay’s remarks, which Fulton MacGregor supported, about stakeholders not having been consulted on the barnahus model and on having one forensic interview. The committee took so much evidence on that, and I cannot think of any witness who was not in favour of having one forensic interview and of moving to a Scottish barnahus as soon as we can.

The minister referred to the timetable that the cabinet secretary set out but, unfortunately, that runs only until summer next year and falls well short of ensuring that the end of the year means the very end of 2001. Crucially, the timetable does not keep the matter on the agenda to ensure that it will be there for any incoming Government after the 2001 parliamentary elections.

Fulton MacGregor

As everybody has said, everybody supports the barnahus concept, which stakeholders support, too. However, is Margaret Mitchell saying that all the stakeholders who gave evidence to the committee agree with her amendment 7?

The Deputy Presiding Officer

I want to check whether I heard something correctly. Did Margaret Mitchell refer to 2001 or 2021?

Margaret Mitchell

I should have said 2021; if I said 2001, we would be going back in time.

My amendment would support introducing one forensic interview as the best way to ensure that children and other vulnerable witnesses are not traumatised time and again through having to give evidence, and it would move us towards the barnahus model. All the stakeholders who gave evidence were in favour of that so, by extension, I contend—

Rona Mackay

Will the member take an intervention?

Margaret Mitchell

If the member will excuse me, I would like to make progress.

It is really important for the committee to follow through on its commitment to ensure that such an approach is introduced as soon as possible.

Daniel Johnson expressed concern about the consultation process. Reporting twice a year would not be unduly onerous, given that consultation can take many forms. Those involved would be the Crown Office and Procurator Fiscal Service, where people are engaged in the process daily; Police Scotland; the Scottish Courts and Tribunals Service; and vulnerable witnesses. Members have said that such an approach would retraumatise vulnerable witnesses, but I think that the people who were to consult them would have the wit to ensure that they talked not about their traumatic experience but about how they found the evidence-taking process.

Such issues are not insurmountable, but a far bigger risk is that the proposals would be resource intensive, as with much legislation that the Parliament passes. Legislation has been passed for which resourcing has not been provided, and the danger is that we will make a provision and do an excellent report but the issue will gradually slip off the agenda and be forgotten. For that reason and to do the best for vulnerable witnesses—including children and others who might be phased into the process—I will press my amendment.

The Deputy Presiding Officer

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Deputy Presiding Officer

There will be a division. As this is the first division of the afternoon, I suspend proceedings for five minutes.

The Deputy Presiding Officer

We move to the division on amendment 7.

For

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Smith, Elaine (Central Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)

The Deputy Presiding Officer

The result of the vote is: For 29, Against 82, Abstentions 0.

Amendment 7 disagreed to.

The Deputy Presiding Officer

That ends consideration of amendments. I ask members who are leaving the chamber to do so quietly, please.

As members will be aware, at this point in the proceedings the Presiding Officer is required under standing orders to decide whether, in his view, any provision of the bill relates to a protected subject matter, that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. [Interruption.] Members have a funny idea of leaving quietly.

In this case, the Presiding Officer’s view is that no provision of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-17210, in the name of Ash Denham, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

The Minister for Community Safety (Ash Denham)

I am here because the Cabinet Secretary for Justice’s paternity leave has started unexpectedly early. I know that members of the Parliament will want to join me in congratulating him and his wife on the birth of their daughter. [Applause.]

The cabinet secretary has asked me to thank, on his behalf, the members and clerks of the Finance and Constitution Committee and the Delegated Powers and Law Reform Committee and, in particular, the convener and members of the Justice Committee, for their thoughtful and diligent consideration of the bill.

As always, we are grateful to all organisations and individuals who gave evidence during the Government’s consultation and, latterly, to the Justice Committee. Their evidence was vital and has helped to shape not just the bill but related non-legislative work. I also thank our justice sector partners, who worked closely with our officials to inform the policy development and practical implementation of the bill.

The reforms in the bill will make important improvements to how children, initially in the most serious cases, are able to give evidence about what are often distressing and traumatic experiences. Many more children will be able to record their evidence at an early stage and will not have to wait for the trial. It is right that we support such witnesses to give their best evidence in appropriate surroundings, while ensuring that the interests of accused persons are protected. The reforms do just that.

I am grateful for the constructive scrutiny and support that the proposed changes received from members as the bill progressed. The process is an excellent example of all parties working together on a consensual basis to make proposals as effective as possible.

It is important to acknowledge again the impressive work that was carried out by Lady Dorrian and the Scottish Courts and Tribunals Service in their evidence and procedure review. The work began in 2015—there has been quite a journey to get to this point—and it started a vital debate on whether more could be done to utilise existing special measures and technology to improve how we take evidence. One of the review’s immediate outputs, a new High Court practice note on evidence by commissioner, has already been shown to be having a positive impact.

The Justice Committee’s stage 1 report was detailed and brought a number of important issues to the fore. First, although we are all keen to see the greater use of pre-recording rolled out as quickly as possible, it was helpful to reach an agreed understanding that—given the scale of the reforms—a phased implementation approach is sensible. The committee emphasised the need for careful monitoring and evaluation of each phase, and the need to be kept informed on the outcomes of those evaluations and on more detailed implementation plans as they are developed. I know that the cabinet secretary is in full agreement with the importance of that, and that he will keep the committee updated throughout the implementation of the reforms.

The Deputy Presiding Officer

I think that you are a very clear speaker, minister. However, according to broadcasting, you need to move your microphone a little closer to you.

Ash Denham

I will.

As part of the phased implementation, the new pre-recording rule will first apply to child witnesses in the most serious cases, with the clear intention to extend it to adult deemed vulnerable witnesses in the future. At the bill’s introduction, the offences to which the new rule would apply were significant, but the committee’s in-depth scrutiny and the stage 1 debate made persuasive arguments that the offence of domestic abuse should be added to the list. That major addition to the bill was made at stage 2, and it has been an important one. The cabinet secretary thanks everyone for making such a compelling case and for further enhancing the reforms.

As with most criminal justice reforms, we must get the right balance for victims, witnesses and accused persons. Some in the legal sector raised concerns that the reforms might prevent the cross-examination of child witnesses. Although that was never the intended effect of the bill, it was an important issue, as we do not want any concerns to undermine the legal sector’s support for the changes. The cabinet secretary was therefore happy to propose an amendment to clarify the point at stage 2, and he was grateful that it was supported in committee.

The passage of the bill to date has also focused attention on the development of the barnahus concept in Scotland. The cabinet secretary recently wrote to the Justice Committee with an update on our work in that area, which I trust was helpful. Clearly, there is much more to do. However, we now have a great basis on which to work together to progress that vital area of work.

This bill marks a major milestone, of which we can all be proud.

I move,

That the Parliament agrees that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill be passed.

Liam Kerr (North East Scotland) (Con)

I am pleased to open for the Scottish Conservatives and, more so, to speak in favour of passing the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill.

In short, the fundamental principles of the bill are ones that, it is fair to say, all parties and members were able to unite behind. It was clear from the evidence that we heard throughout its passage that the current system for taking evidence from children is less than ideal. Indeed, I recall that our stage 1 committee report quoted Children 1st as suggesting that the current system is “Victorian”.

It certainly became clear from the evidence that too many victims and witnesses of crime currently find themselves being retraumatised by the court process, and that they can often suffer greater trauma and harm. It also became clear that the bill should reduce the distress and trauma that are caused to child witnesses through giving evidence, as well as improve the quality of justice. The bill does that, because it is at its core about improving the experience and evidential strength of children and vulnerable witnesses in the criminal justice system.

The bill will ensure that children have to give evidence in court only in exceptional cases, and it will enable the greater use of pre-recorded evidence. Its key provision is that, when a child witness is to give evidence in serious criminal proceedings—for one of a set list of offences—the court must enable all of the child witness’s evidence to be given in advance of the hearing. The Scottish Courts and Tribunals Service described it as

“a critical step in improving both the experience of witnesses and the quality of justice”.

It clarified that in a submission to the committee, in which it stated:

“justice would be best served if young and vulnerable witnesses could give evidence in a way that maximised the chances of it being comprehensive, reliable and accurate, and minimised any potential further harm or traumatisation from the evidence-giving process itself.”

Let us also note that the Scottish Courts and Tribunals Service’s evidence and procedure review, which the minister talked about earlier, suggested that

“particularly for young and vulnerable witnesses, traditional examination and cross-examination techniques in court are a poor way of eliciting comprehensive, reliable and accurate accounts of their experience.”

Parliament will recall that, although the principles of this bill were sound, there were a number of areas that required review at stage 2. Parliament will be pleased to note that, as requested by the committee and many stakeholders, the cabinet secretary amended section 1 to include child witnesses in domestic abuse cases. I align myself with the minister’s comments on that.

The cabinet secretary also amended the bill to put it beyond doubt that prior statements could be cross-examined. This amendment enables any party to the proceedings to have the court authorise the holding of a commission, which is a power that might be used when new evidence comes to light after the prior statement has been taken.

As members will recall, by working collaboratively with the Government and colleagues across the chamber, I have secured an amendment that compels the Government formally to review the operation and extent of success of the act. I also sought to amend the bill at stage 2 to ensure that victims were given the necessary support after the commission had taken place. I maintain that that is the right thing to do, but Parliament may be interested to know that Lady Dorrian expressed her concern in a letter to the committee that it should not be the role of the judiciary. That is a fair comment and, following assurances from the cabinet secretary that the issue would be addressed by the victims task force, I decided not to press the amendment.

This is absolutely a step in the right direction, but it is only a step. There are further actions worth exploring that may be brought out in the debate today. First, I reiterate my colleague Annie Wells’s call earlier this year to trial a one-sheriff system for domestic abuse victims. As it stands, the entirety of a domestic abuse case and related proceedings could be heard by various judges, especially if civil courts become involved in the event of a subsequent divorce or to make child residence arrangements. The system has been successfully implemented in parts of the US and Australia. Steps should be taken to minimise what victims have to relive, by requiring them to tell their story only once to a single judge.

Many speakers today will no doubt address the barnahus model. For those who are unaware, in its simplest terms—as Margaret Mitchell rightly pointed out, there is no single model—the barnahus is a child-friendly house that deals with criminal investigation; child protection; physical health, including forensic examination; mental health and wellbeing; and recovery and support needs, including family support. The beauty is that this is a multidisciplinary approach, which means that all services are provided under one roof, with relevant professionals coming to the child.

Perhaps the most important thing is that a key role of the barnahus is to produce valid evidence for judicial proceedings in a way that means that the child does not have to appear in court, should the case be prosecuted. As I have made clear previously, I align myself with the committee’s conclusion that there is a compelling case for the implementation of the barnahus principles in Scotland, as the most appropriate model for taking the evidence of child witnesses. I note the cabinet secretary’s assurance that that is the Scottish Government’s preferred direction of travel.

Parliament is called today to indicate its support for the bill. It is clear that the bill is a start, but it is the right start. It is clear that pre-recording evidence of children and adult vulnerable witnesses reduces the stress that they go through and can help ensure that the most accurate evidence is obtained. For those and many other reasons that I look forward to hearing from colleagues throughout the chamber this afternoon, I am pleased to confirm that the Scottish Conservatives will support the passing of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill at decision time.

Daniel Johnson (Edinburgh Southern) (Lab)

I, too, am pleased to support the bill. It is a good bill—it is a good start.

As we mark the 20 years of the Parliament, it is important to think about what has been done under the devolved settlement. We must remember that, until devolution, judges were appointed by ministers. In 2002, the Judicial Appointments Board for Scotland was established by the Labour-Lib Dem Administration; it was then put on a statutory footing by the SNP Government. That was a positive step forward. It is important to emphasise that progress and to recognise the importance of the judiciary. It is also important for us as legislators to work co-operatively with sentencers to make sure that we make progress in our criminal justice system.

It is important to recognise where the changes have come from—the courts and the judiciary—and that, in some instances, progress will require to be led by judges, so it is important to respect their independence. My remarks about the bill are therefore made with that in mind.

The bill is progress, because it will lead to better evidence being taken and less trauma being inflicted on those who give that evidence. Ultimately, justice must seek to defend and protect the vulnerable, and I think that the bill will do that.

How we have arrived at where we are has been well set out by the minister and by Liam Kerr. I will look at how we must move forward from this point.

The bill contains a number of sound provisions, but they must be a starting point. We need to focus on practice and on the ground rules hearings in particular. When we went up to Parliament house to see pre-recorded evidence in practice, many members of the committee were struck by the different environment that we saw—one that was conducive to the provision of better evidence. However, at the end of the day, it still ended up being a very alien environment with a child being cross-examined by two middle-aged men.

Although we must respect ground rules hearings for exactly the reason that I set out at the beginning of my speech—the need to respect judicial independence—we must look at how we can encourage better practice and ensure that evidence is given in those hearings in the way that we all hope that it will be.

Much thought was given to extending the provisions. We must recognise that we in Scotland are not necessarily at the forefront of measures that make provision for vulnerable individuals giving evidence in court. It is welcome that the Government lodged amendments to extend the provisions to domestic abuse cases. Likewise, I note the extension of the provisions to other persons deemed vulnerable, but we must ensure that those provisions are enacted as effectively and as constructively as possible. I believe that my colleague Jackie Baillie will speak further on that point.

Likewise, during stage 2, I spoke a lot about extending the approach to other types of case. The vast bulk of cases that go through our courts will go through the sheriff court, which will be unaffected by the provisions in the bill. I tested and probed that position, and I understand that it would have been inappropriate to extend the provisions to such cases, given the resource requirements and the nature of trials in the sheriff court, many of which would delayed by such a move. However, I ask that we look at the special measures, such as they exist, in the sheriff court to make sure that they are as good as possible and that the best technology and the best techniques possible are used.

Finally, I want to talk about the barnahus concept. We need to be careful of buzzwords and although the barnahus concept is an incredibly important one, with an important set of principles, sometimes some of us who are used to talking about these issues are a little bit too comfortable using the term. In essence, it is not that complicated. It is about having interviews with vulnerable witnesses as early as possible and making sure that those interviews are taken by specialist individuals with extensive training, in a context that is comfortable for and sympathetic to the individual giving the evidence. It is also about ensuring that, wherever possible, that interview is done only once.

Given that the evidence gathered in joint investigative interviews can be taken as evidence in chief, I do not believe that we in Scotland are that far away from being able to deliver barnahus, through better training for JIIs and better investment to make sure that there are no technical problems with that evidence, which I believe sometimes happens. We can achieve that. We must ensure that we make that progress, and I think that we can do so through collective focus and effort.

I thank the minister for her letter, in which she set out much of what she has said about how the Government seeks to make progress, funding for Children 1st, which is based in my constituency, consultation and developing standards.

I thank Lady Dorrian, among other people, for showing such leadership and I look forward to voting for the bill at decision time.

John Finnie (Highlands and Islands) (Green)

I am delighted to say that the Scottish Green Party will support the bill at decision time.

I thank all the witnesses whom the committee heard from, the clerks and everyone who has contributed, including by providing briefings. We have carried out very detailed scrutiny. As I have said in the chamber previously, the Parliament is at its very best when committees provide detailed scrutiny of legislation.

One of the briefings that I received was from Children 1st—an organisation that needs no introduction. It included a case study of its work with a woman and her 15-year-old son in the Highlands. Her son was one of the witnesses when she was the victim of domestic abuse. She said:

“My son is still haunted by the fact that he had to sit in the court waiting room. He said it was the worst day in his life. Even though there was a court case, my ex was still trying to harm us all the time. Our lives were very much in danger.

My son was terrified that we’d run into my ex at court. His anxiety was going through the roof. He couldn’t cope going to college: he was too scared. He didn’t leave my side. He had really bad anxiety and didn’t sleep through the night. I didn’t think he’ll ever recover but things are getting better.

Children 1st should be brought in right away, and stay until the end of court. Children should always know there’s that lifeline.”

That indicates the trauma faced by victims of domestic abuse and the children who are involved. Some of us are only too familiar with such situations, given the evidence that we have taken. Everything requires to be child centred.

The bill is a fine piece of legislation, but of course it is not the finished article, and our direction of travel means that there will be more work to come. The Scottish Government’s positive response to the committee’s stage 1 report, not least in relation to domestic abuse, is welcome.

What is the purpose of our justice system? Self-evidently, the system needs to deliver justice for everyone, including the accused. Sometimes, we forget that.

Comments have been about the ability to cross-examine, which is very important. However, even in an adversarial system, we know that the best evidence—of which oral testimony is a vital part—is delivered when witnesses feel comfortable. The reality is that being in court is stressful for everyone, and that witnesses, particularly children and vulnerable people, will respond best when the groundwork has been done.

Lady Dorrian has been mentioned, and we should not underestimate the importance of her intervention in 2015, which led to the introduction of the practice note. Along with colleagues, I visited the High Court to see an example of how evidence by commissioner might be taken. Such steps are very positive, but people have rightly identified that special measures are already in place. I have had contact with constituents who have had cause to deal with such measures, and the experience has been mixed. We heard evidence that things do not always work out, particularly in relation to domestic abuse cases.

In a briefing that we received, the Law Society of Scotland talked about the administration of cases—which is a very simple thing—and said that early information is required for additional measures. We can get the top-level stuff right, but getting the simple stuff right can be just as important.

Adverse childhood experiences should be addressed through the courts; they should not be compounded by attendance at court. The question is the extent to which the bill will ameliorate the trauma, which will be ever present.

How long do I have left, Presiding Officer?

The Deputy Presiding Officer

I can be generous. Do you want me to be generous, Mr Finnie?

John Finnie

I always like it when you are generous, Presiding Officer.

As my colleague Daniel Johnson said, the key to the barnahus model is, in part, already in play in Scotland. Joint investigative interviews are undertaken by the police service and criminal justice social workers. We heard about the challenges of the system, in relation to compatibility. However, I thank our friends in Norway for our very informative visit to one of the houses that is used, which allowed us to see the forensic nature of such interviews and the level of training that is provided to those who carry them out. As with most things, it is very important that the system is adequately resourced.

Like many others, I took great pleasure in receiving the cabinet secretary’s letter in April, which explained the next stages of the delivery of the barnahus model. There is a welcome recognition of the need to take a collaborative approach that involves the Scottish Courts and Tribunals Service to get us to where we all want to go.

As I said, I am delighted that domestic abuse cases are now covered. We know that the pernicious effects of controlling and coercive behaviour can be offset if we get good evidence. We want the very best in our criminal justice system. The bill is progress, but there is work still to do.

The Deputy Presiding Officer

You are looking at me anxiously, Mr McArthur, but I can be generous with you, too. Isn’t that nice?

Liam McArthur (Orkney Islands) (LD)

You may come to regret that, Deputy Presiding Officer.

I congratulate Humza Yousaf and his wife, Nadia, on the birth of their daughter. Can I say how much I am looking forward to the 20-page commemorative pull-out in The National, which must surely follow that event?

I start by thanking my committee colleagues, the Scottish Parliament information centre, the clerks and all those who gave evidence to us throughout consideration of the bill. I also want to record my thanks to the cabinet secretary and his officials for the constructive way in which they engaged with the committee throughout the process. Needless to say, the Scottish Liberal Democrats warmly welcome and strongly support the provisions of the bill, which will give children and young people, as well as vulnerable witnesses, greater protection in our criminal justice system. That is not simply in the interests of victims and witnesses; it is also in the interests of achieving greater fairness and efficiency in the system as a whole, as others have said.

Special measures already exist to enable children and vulnerable witnesses to give their best evidence. However, there is a compelling case for extending and strengthening those measures; indeed, the longer-term objective should be to take children out of our courts entirely. That position is supported by Children 1st and many others. I will develop that point a little further in a minute.

First, I want to acknowledge one of the key changes that the committee—acting in unison, as others have said—managed to secure. The process of rolling out the reforms—enabling more extensive use of pre-recorded interviews, ground rules hearings and joint investigative interviews—will not be without its challenges. It will certainly put enormous pressure on almost every part of our justice system, from the third sector through to our courts.

Therefore, the phased approach that is proposed in the bill, whereby categories of case will come within the scope of the bill over time, is sensible. It makes sense to reflect on experience and to ensure that, where appropriate, lessons are learned before we embark on the next phase. However, delaying of exclusion of child witnesses from giving evidence in domestic abuse cases was never an acceptable proposition, so I am delighted that the cabinet secretary agreed to the committee’s call for those witnesses to be included in the first phase of the roll-out.

Although the changes are welcome, they fall short of where we ultimately need to get to. Again, I am grateful to those who hosted our visit to Oslo last year to see at first hand how the barnahus principles are applied in Norway. I firmly believe that that genuinely child-centred and integrated approach to criminal justice is what we must aspire to here in Scotland.

I accept that the “one forensic interview” approach of barnahus might require a shift in legal culture and practice in Scotland, given our adversarial system, but that is not an insurmountable obstacle. As the NSPCC in Scotland points out, integrating justice, healthcare and on-going therapeutic social care services all under one roof, in purpose-built child-friendly accommodation, is the best, if not the only, means of effectively reducing trauma for child victims and witnesses, while maximising the chances of capturing their accounts of what has happened.

Lady Dorrian’s contribution to the wider debate has been recognised by everyone. I whole-heartedly agree with her that ways must be found to take evidence from children and other witnesses

“in an environment and in a manner that does not harm them further, but allows their evidence to be given and tested fully and appropriately.”

Needless to say, I am particularly interested in how the model might be tailored to work in more rural and island areas. The fact that the model has been such a success in Norway—a country that has many remote, rural and island areas of its own—should give us confidence in our endeavour.

I welcome the commitments to the adoption of a Scottish barnahus model, and to a review of progress being made towards that goal, that were made by the cabinet secretary at stage 2, and which have been repeated by the minister this afternoon. The committee will take a great interest in that, and will keep ministers’ and other stakeholders’ feet to the fire.

I will conclude, as I did at stage 1, with a quotation from Children 1st, which said:

“a joined up approach to the care and justice needs of child victims and witnesses through a Barnahus or ‘Child’s House’ is the best way to get it right for children from the moment they tell their story, ensuring that the child and their family get the support they need to recover. This will ensure that we have a justice system that is able to do both what is best for children and best for securing evidence.”

The Scottish Liberal Democrats strongly endorse that sentiment and will continue to work with ministers and colleagues from across Parliament to make it a reality—sooner, rather than later. For now, we look forward to voting for the bill at decision time.

The Deputy Presiding Officer

We move to the open debate. The generosity continues; all four members in the debate can have five minutes each, if they wish. That has made your afternoon, Ms Baillie. I call Jenny Gilruth, to be followed by Maurice Corry.

Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I am grateful for the opportunity to speak in today’s stage 3 debate, particularly given the legislation that we agreed to only 48 hours ago. On Tuesday, we voted to raise the age of criminal responsibility from eight to 12, and this evening we will vote to protect child witnesses in the most serious criminal proceedings. Those two pieces of legislation put children’s needs at the heart of our criminal justice system. I contrast that with Children 1st’s evidence to the Justice Committee, which was cited earlier by Liam Kerr, that Scotland’s justice system is inherently “Victorian” and often causes children “greater trauma and harm”.

The bill therefore marks a hugely significant shift, which is epitomised in section 1(3) of the bill, which states:

“The court must enable all of the child witness’s evidence to be given in advance of the hearing unless the court is satisfied that an exception is justified under subsection (7) or (8).”

That use of language is crucial, because it denotes a shift in power from Scotland’s court system towards putting witnesses’ needs first. As we have heard this afternoon, pre-recording evidence from vulnerable witnesses, especially children, will reduce trauma and distress.

I am proud that the Scottish Government has also included domestic abuse specifically in the bill. As the committee heard in evidence sessions, that is particularly important given the widening scope of what we now understand constitutes domestic abuse.

Pre-recording evidence is, of course, important in avoiding retraumatising of vulnerable witnesses. As the Lord Justice Clerk told the committee:

“When children ... are asked to give evidence at a time that is remote from the event, not only has their memory diminished, but they are more likely to be confused by general questioning about the incident, and in cross-examination might come across—often wrongly—as being shifty or unreliable.”—[Official Report, Justice Committee, 18 December 2018; c 3.]

That is an important point. Pre-recording evidence should expedite the process and avoid the need for evidence to be taken repeatedly from a witness. The example that has stuck with me was given to the committee by Daljeet Dagon of Barnardo’s Scotland, who told us of the witness who had to give 27 statements to the police. By the time the trial went to court, she was deemed to be an unreliable witness. So, another reason why the bill is so important is that it will result in better-quality evidence.

The Scottish Government is taking a phased approach to implementation of pre-recording of evidence; that approach is supported by the legal profession. At first, the rule will apply only to certain child witnesses giving evidence in the most serious cases in the High Court. That will allow witnesses who are most vulnerable to be supported swiftly. That approach is not simply about installing video recording equipment; it is about challenging an enshrined culture in the legal system, which historically has not always put witnesses’ needs—in particular, the needs of children—at its heart. Indeed, as the Crown Office and Procurator Fiscal Service told us,

“Phasing will allow the system to absorb change while minimising risk both to the system and to individual cases.”

In my contribution to the stage 2 debate, I raised the link with the Scottish Government’s getting it right for every child, or GIRFEC, policy, which is the foundation stone of our education system. I compared the barnahus model—a one-stop shop where services come to the child—to our GIRFEC approach, which is also child-focused. Many schools in Scotland now also focus on being trauma informed. In Glenrothes, our police officers have embraced the trauma teddies scheme, which provides children with reassurance during or after distressing events.

In the cabinet secretary’s letter to the committee last month, he pointed to the Government’s commissioning of Healthcare Improvement Scotland, in partnership with the Care Inspectorate, to develop Scotland-specific standards for barnahus. I was glad to hear the minister mention commitment to that in her speech. It is welcome to have a commitment to concrete action, but I again encourage the Government to look at the links with our child-focused education system and to ensure that education partners are linked into development of the standards. It cannot be about just the justice system, if we are to get it right for every child.

Let us use the expertise that we have in Scotland to build a system that truly supports and protects child witnesses. I very much hope that that is exactly what our Scottish standards for barnahus will do in the future.

Maurice Corry (West Scotland) (Con)

I, too, thank everybody who has been involved in bringing the bill to this stage, particularly the clerking team. I welcome this debate on the bill at stage 3. What the bill puts forward—the pre-recording of evidence for some child witnesses outwith the courtroom—is an important step to take. For the sake of those witnesses, many of whom are victims of atrocious crimes, it is vital that the proposed changes are as effective and sensitive as possible.

The bill is a positive move forward and I join my colleagues in supporting it. I found the committee report to be sound in its helpful analysis of the bill, and it is right that some of its recommendations have been listened to and will be adopted. It is that scrutiny that strengthens the possibility of real change to Scotland’s justice system.

As was generally agreed at stage 1, the bill deserves a gradual and careful implementation. It would do no good to overload the court process without consideration of the detailed planning and resources that are needed to secure meaningful and effective change that balances a fair outcome for the perpetrator with the respect and support that are owed to the witness. We have to be mindful of the different proceedings and the vulnerable witnesses at the heart of those cases.

More widely, the bill has encouraged us to take a step back to consider the best way to take evidence from child witnesses. None of us can condone the risk of vulnerable witnesses feeling targeted or traumatised by the court process. As I have said in the chamber before, the quality of their participation is vital to the outcome of the verdict. Therefore, ensuring that evidence is pre-recorded in those cases will provide children of different ages and abilities with a process that offers them the best chance to give accurate and informative evidence. As the children’s charity Barnardo’s Scotland highlighted, the better the support the witness receives, the better the evidence they give.

The bill should surely encourage us to look at transformations that could go further. With that goal in mind, I support the committee’s recommendation to explore the case for establishing a barnahus approach, which would take into account the importance of providing the right services to support young witnesses in a child-friendly setting. There is a persuasive argument that that pathway might be better equipped than a court process to handle children through what can be an intimidating and traumatic experience for them. Although I appreciate that the concept would take time to establish, I welcome the Government’s commitment to share progress on what a Scottish approach to barnahus-inspired principles would look like.

I am pleased that child witnesses in domestic abuse cases will now be included in the bill, as a result of the stage 2 amendment that was lodged by the justice minister. That addition to the bill was much needed, especially given the introduction of the Domestic Abuse (Scotland) Act 2018, as the ASSIST—advocacy, support, safety, information and services together—project highlighted in its insightful evidence. Under that new law, we expect to see a rise in the number of children who are called to give evidence under solemn procedure, the thought of which must weigh heavy on the mental health of those witnesses. With that in mind, the expansion of the provision in the bill to include domestic abuse cases is right and vital.

Further to that, it is worth exploring a one-sheriff system for victims of domestic abuse. If we are looking to stop the retraumatisation of witnesses, they would surely benefit from relaying their account to a single judge. We have seen how that can work in Australia and the United States, for example. The fact that that approach might promote greater efficiency is also worthy of note. Perhaps, following the passing of the bill, a trial of such a system should be the next step, as it could be how we make Scotland’s justice system work even better for victims.

Scotland needs its courts to be of the highest standard possible. For that to happen, we need to restore confidence in the justice process. We cannot lose the scope for wider reform that the bill encourages. We all want the bill to target the gaps and creaks in our court system and, with careful implementation and a clear view of the future steps that we must take, I believe that it can.

The Deputy Presiding Officer (Linda Fabiani)

Jackie Baillie, to be followed by Fulton MacGregor.

Jackie Baillie (Dumbarton) (Lab)

Thank you, Presiding Officer. You and the previous occupant of the chair are nothing if not generous with time.

I welcome the bill and its intention to ensure that there is support for children and the most vulnerable in our society at what can be an extremely difficult and often distressing time for them. It is all about giving the best possible evidence. I understand the immediate focus on children and I welcome the amendments that were made at stage 2 to include domestic abuse victims.

I will speak specifically about section 3, as that is the part of the bill that deals with other categories of vulnerable witnesses. The criteria and timing are entirely in the gift of the Scottish ministers. I have not heard any indication of a timetable to enact that aspect of the legislation, but I believe that it must not be left to gather dust on a shelf. I am particularly keen to hear from the minister in her summing up when she will extend measures to other vulnerable witnesses. I am afraid that I am less patient than many of my colleagues in the chamber.

I want to focus on people with learning disabilities as vulnerable witnesses. As convener of the cross-party group on learning disability, I am particularly keen to ensure that their voice is heard in every aspect of society, and that includes our criminal justice system. The debate has largely focused on children and I want to ensure that the views of people with learning disabilities are not overlooked or somehow othered in discussions surrounding the bill.

According to the Scottish Government’s survey, learning disabled people in Scotland were more likely to be victims of a crime in 2016-17 than non-disabled people. It is a fact that the heightened level of vulnerability that comes with having a learning disability makes some of them prime targets for criminal acts ranging from small-scale theft to sexual abuse and rape. It is vital, therefore, that their experiences of the criminal justice system are heard. I urge the Scottish Government and the minister to do that when considering the implementation of the bill.

The reform that is central to the bill, which essentially mandates for child witness statements for serious cases to be given in advance, is absolutely right, but it must be extended to people with learning difficulties as soon as possible. Presiding Officer, day-to-day tasks that may seem easy and even mundane to you and me can be hugely stressful and testing for many people with a learning disability. We know that some learning disabilities create real barriers to people feeling comfortable when talking to others or going to new and unknown places. Imagine for a moment the trauma that can occur from asking an individual with a learning disability not only to be the centre of attention in a courtroom but to relive over and over a horrific crime that they were a witness to, while being asked questions—often very personal questions—by a stranger.

The Equality and Human Rights Commission stated:

“People with learning disabilities can find the court environment very challenging, and often don't understand what is being said or what is happening.”

Prior statement giving completely removes that situation and will allow everyone to feel as comfortable as possible, given the circumstances. The Government’s policy statement says that extending provisions to other vulnerable witnesses represents “a major change”, and I agree. It also says that that will take time, but it would be useful for us to know how much time—what the target is for implementation—and to have an assurance that it will not be left on the shelf.

Finally, I want to mention the appropriate adult scheme. It is not directly connected with the bill, but the Scottish Government consulted on that last year and it is referred to in the policy memorandum. Indeed, the Government made a commitment to launch the scheme this year, so I ask when it will be launched. In that, and in the implementation of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, it is essential that progress is made to ensure that the most vulnerable people in Scotland have the protection that they need and deserve, and that that is not put off for another day.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

It is a great pleasure to speak in the debate—as it was at stage 1—as we stand, at stage 3, on the verge of making the bill law. I hear what others have said about its being just a start, and I agree with that, especially on the back of the main theme of Jackie Baillie’s speech. However, it is a very significant start, because this is real and proper legislation that will have a positive effect on people’s lives and will go some way to rectifying the discrepancies in our current system. Such people include the constituent whom I mentioned in my stage 1 speech, whose situation I highlighted again to the cabinet secretary at portfolio question time a couple of weeks ago. That is the sort of real-life situation that will be helped, in the future, by the passing of the bill. I know that the people involved continue to monitor the proceedings.

As members know, I was a member of the Justice Committee, and the argument for progressing the bill was very much won at stage 1, as has been reflected today in the chamber. The majority of the evidence that the committee heard from stakeholders, including Barnardo’s and Children 1st, was supportive of the need to reform the system and to introduce a rule that would ensure that, in the most serious cases, evidence from a child is taken at the pre-trial stage. It is also worth mentioning that, if, as seems likely, the bill is passed at decision time, that will present opportunities for children from black and minority ethnic backgrounds, who we know can face additional challenges when it comes to criminal and court proceedings.

As colleagues will know, I was particularly pleased that the bill process gave a good airing to the subject of joint investigative interviews, which Daniel Johnson focused on. Several years ago, when I was a social worker, I would share my frustrations with colleagues after carrying out such interviews. Never in a hundred years did I think that I would have the opportunity to talk about those experiences in our national Parliament, where changes can be made. That is why I have welcomed the steps that are being taken to allow joint investigative interviews to be used as evidence in chief. Those steps include expanding the training and increasing the number of interviews that are carried out by individual practitioners, which are two areas in which we heard that there were difficulties. That could lead to our going down the road of specialised expertise, which I think practitioners, the police and social workers would support.

I would also like to comment on the issue that has perhaps been the most prominent during the bill’s passage—the issue of Scotland moving to a barnahus model, which was raised again during today’s stage 3 consideration of amendments. I have said previously that my experience suggests that we could certainly move to such a model at least on a practice level, if not on a legal level, relatively straightforwardly, and I nodded eagerly when Daniel Johnson made that point. I think that we could interview children, offer support to families and provide health investigations in a one-stop child-friendly environment, because the current situation, whereby the involvement of health professionals and social work takes place at different points, which everyone accepts is not in the best interests of children, is a bit patchy.

That brings me to Margaret Mitchell’s amendment 7. Although I spoke against it and voted against it, I want her to know that I think that it is honourable that she has been a champion of the barnahus model. However, amendment 7 was a wee bit out of place and I could not support it. Despite what I said about the move to a barnahus model being relatively straightforward on a practice level, amendment 7 would have given rise to various complex legal technicalities, which the cabinet secretary and the Government would have had to look at. Most important, it risked retraumatising children, which is why I could not vote for it. Nevertheless, I credit Margaret Mitchell for her passion in this area. I think that she was very much taken by what the committee saw in Oslo, as we all were.

I welcome the cabinet secretary’s letter to the committee, which outlines that a scoping report will be produced as early as June this year and that final standards are expected by 2020. To my mind, that represents rapid progress, which must be welcomed. As the cabinet secretary said, that will allow for a collaborative approach between Healthcare Improvement Scotland, the Care Inspectorate and other partners on how we can deal with the difficulties in this area, such as those to do with pre-recording.

I commend the bill to Parliament.

The Deputy Presiding Officer

We move to the closing speeches.

Daniel Johnson

One of the advantages of opening and closing a debate for your party is that you get to say the things in your closing speech that you ran out of time to say or forgot to say in your opening speech. I congratulate Mr Yousaf: of all the reasons not to be present in the chamber, his is a pretty good one. I also acknowledge the contribution of Ash Denham, who has been left holding the legislative baby while Humza has gone off to hold an actual baby. I think that she has done very well, because the bill is technical and has taken everyone into a great deal of detail.

One of the key things that I want to highlight is the important fact that the bill does not stand in isolation. Other members have mentioned the Age of Criminal Responsibility (Scotland) Bill, and we are currently scrutinising the Management of Offenders (Scotland) Bill. The Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill can be a mark of progress, but it will be so only in conjunction with other legislation and other measures.

There are commitments to reducing short sentences and moving towards community sentencing. It is vital that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill sits alongside those measures, that the proper investment is made in the technology and facilities that are required to deliver it and that, above all else, it enjoys the confidence of sentencers and legislators.

There is undoubtedly a confidence issue around community sentencing. We need to focus holistically, to ensure that the measures in the bill gain and enjoy the confidence that it seeks to provide. Above all else, we must, as Liam McArthur said—he made his point very well—aim to take children out of courts. The courts are no place for children. They serve only to traumatise them, and, in so doing, undermine the very things that, as I set out earlier, the justice system does to protect them.

I agree with the many members of the Justice Committee who highlighted how useful and informative our trip to Oslo was. It helped us to burst the jargon around the barnahus model. It struck me—it clearly struck Fulton MacGregor, too—that we are not terribly far away from that approach, given our joint investigative interviews and special measures.

There is an adversarial system in Norway, but it also has the barnahus model. Critically—this is the point on which we will have to reflect—what enables Norway to protect its adversarial system is the possibility of a secondary interview, although I understand that that measure is not used often, because of the confidence that exists in the barnahus model and, indeed, the professionalism with which the interviews take place. We ought to aim towards a system that can incorporate the important adversarial aspects of our justice system in a way that has the confidence of all those who participate in it. That will require investment and, above all else, training.

I will make one other point about the barnahus model. The police officers who carry out the interviews and run the barnahus approach have to undertake a three-year degree so that they get the specialised training that is required for that model. I fully believe that that is what we must aim for in Scotland.

The other key point that was raised in the debate—by John Finnie and Jackie Baillie, I think—is the fundamental need to improve people’s experience. Vulnerable people do not know that they will be traumatised because of where they are or the nature of the crime that might have been committed against them. If there is one possible flaw in the bill—I reflected on this issue during its passage—it is that the bill defines vulnerable people by the type of crime. I understand why that definition is used, but a child does not know that they will be traumatised if they give evidence under summary or solemn proceedings. That they can be traumatised in that way is clearly not right. We need to apply the barnahus principles, to ensure that those traumatising experiences are avoided and that giving evidence is not, as John Finnie said, the worst experience of a child’s life.

Likewise, vulnerability is not defined by age. Jackie Baillie’s speech was extremely powerful. There is every possibility of adults with vulnerabilities or learning disabilities being traumatised by their experience of court—in some ways, perhaps more than others. We must ensure that the measures in the bill are extended to those vulnerable people as quickly as possible to ensure that they, too, are supported.

Above all else, this is about taking people with us. This is about making progress, but we must take sentencers, legislators and, indeed, wider society with us, so that we can achieve the benefits and the progress that we all hope will result from the passing of the bill this evening.

Margaret Mitchell (Central Scotland) (Con)

The Justice Committee’s scrutiny of the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill has provided an excellent example of a parliamentary committee united in its support for, and working together to improve, legislation. I thank all committee members for their constructive contributions, and I pay tribute to all the organisations and witnesses who gave invaluable evidence to the committee. As always, the clerks have given the committee superb support, for which I thank them.

I want to thank both the Scottish Courts and Tribunals Service and Lady Dorrian for arranging a visit to the High Court to see how evidence is currently pre-recorded.

The committee also visited a barnahus in Norway and saw at first hand the benefits of providing child witnesses with a dedicated child-friendly facility away from the court, with a range of support services under one roof, and of the “one forensic interview” approach, which delivers the best evidence and reduces, and helps recovery from, trauma. The committee is extremely grateful to all the staff at the barnahus in Oslo for their warm welcome, and for the time that they spent answering our questions and explaining how the barnahus approach secures the best evidence from children in order to help secure a prosecution.

The bill’s main policy objective is to improve the participation of children and vulnerable witnesses in the criminal justice system through greater use of pre-recording of their evidence in advance of a criminal trial. As a result of a provision in the bill, pre-recording all of a child’s evidence will generally be required in the most serious cases. That new rule will have major implications for our adversarial criminal justice system, and it will require a major shift in legal practice and legal culture. In view of that, the Scottish Government’s phased approach to the rule’s implementation makes sense, as does the requirement for detailed analysis of each phase, with the initial phase focusing on child witnesses. That is why amendment 1 in the name of Liam Kerr was so important. I also point out that, as a result of a stage 2 amendment that was supported by the entire committee and all members in this debate, phase 1 will now include child witnesses in solemn domestic abuse cases.

Issues that were raised by the committee in its stage 1 report and at stages 2 and 3 include the importance of, and necessity for, effective training in interview techniques, and the requirement for that to be monitored. As the Mental Welfare Commission said,

“a bad interview done early is no better than a bad interview done in a trial.”—[Official Report, Justice Committee, 27 November 2018; c 33.]

In other words, as Daniel Johnson and John Finnie effectively argued, the significance of training for those who are involved in joint investigative interviews of children and other vulnerable witnesses cannot be overstated.

There is also a need for measures to support and to protect witnesses against harassment or further victimisation throughout the evidence-giving process, including—this is crucial—after they have given evidence. In that respect, the continuing work of the Government’s new victims task force, which is looking at ways of improving the experience of victims and witnesses who give evidence, is extremely welcome. That will be essential not only in protecting witnesses from harm, but in ensuring that witnesses are not deterred from giving evidence.

Finally, the committee emphasised its commitment to moving, as soon as possible, to a Scottish barnahus model. Although I welcome the cabinet secretary’s letter updating the committee on what is planned up to summer 2020, it falls short of providing on the face of the bill a timetable of reviews up to the end of this parliamentary session and into the next. I thank Fulton MacGregor for his kind remarks, but I concur with Jackie Baillie’s comments about the necessity for progress and a timetable for implementation.

In conclusion, I ask the Scottish Government to commit today to providing the substantial resources for the new technology that will be necessary to achieve a Scottish barnahus. In the meantime, the Scottish Conservatives will have much pleasure in voting for the bill this evening.

Ash Denham

I begin my closing remarks by thanking again the many stakeholders and individuals who gave evidence to the committee—in particular, on the benefits that pre-recording evidence can bring. I suspect that many of those people are looking on to see the conclusion of the debate today.

I also thank everyone who has contributed to the very constructive and well-informed debate this afternoon. It is clear that we are all committed to the key principles that underpin the bill. I consider that that positive approach has been the hallmark of the bill’s entire process, and is a true reflection of the professionalism and integrity of the Justice Committee, as is its vigorous examination of the bill and amendments.

I believe that we now have a bill which has broad and significant cross-party support, on which we can lay the foundations for further protection of the most vulnerable victims and witnesses. It reflects a positive template for managing legislation for the future.

That said, we do not doubt the scale of the challenge and the appetite for rapid and early momentum. The bill prepares the foundations: now is the time for clear progress on delivering the reforms. We will continue to work closely with our justice sector partners and stakeholders to ensure that the reforms work well in practice and benefit vulnerable child witnesses.

At this juncture, I put on record again my welcome and support for the sentiment behind amendment 1—the review amendment that was lodged by Liam Kerr. I believe that it provides a suitable and sensible mechanism through which we will be able to determine how successful is delivery of the measures that are detailed in the bill. We need to learn from our successes and from evidence about what we could do better. I am pleased that others in the chamber today have also seen fit to support Liam Kerr’s amendment.

The Deputy Presiding Officer

Excuse me, minister. Will members who have just arrived in the chamber be a bit quieter, please? Thank you.

Ash Denham

I regret that we were unable to support Margaret Mitchell’s amendment 7. We believe that the amendment would have placed an unnecessary and potentially inhibiting legislative burden on the Scottish Government. I hope that what I have said today reassures Parliament that we are committed to developing a truly trauma-informed and child-centred response to child victims. I believe that we have consensus on that: it will take careful work across the justice, health and child protection systems in the coming months.

We will continue to communicate with Parliament and the committee about progress on barnahus and key milestones. I am happy to make that commitment again today.

I will now address some points and common themes that have emerged from the contributions this afternoon. A number of members, including Liam Kerr, mentioned barnahus, as we would expect. I note the strong interest both in moving towards that as a destination and in the idea of keeping up momentum, which has come across strongly from members.

Of course, barnahus is about more than just criminal justice; it involves healthcare, child protection and the legal profession, so it is right that we take the time, across Government and with our key stakeholders, to develop a Scottish version of the barnahus model. We have set out a clear timetable to develop standards for Scotland. I hope that that reassures members that we are committed to keeping up momentum.

Daniel Johnson made a number of points, the first of which being that the bill is a really good starting point. I thank him for that view, which was echoed by others across the chamber. He also made a point about potentially developing the ground rules hearings further in the future. He will be aware of the latest High Court practice note, which sets out a general approach for preparing questions in advance for child witnesses, for instance. Obviously, the practice note can be updated over time, which I think offers an appropriate level of flexibility.

Daniel Johnson also raised a point about greater use of special measures. It is important that vulnerable witnesses in general are aware of the special measures that are available to them. The Crown Office is beginning a process of reviewing all the correspondence that is issued by the victim information and advice service, as well as information leaflets and so on, to make sure that they are as understandable and clear as possible and so that people have the right information.

The Scottish Courts and Tribunals Service plans a rolling programme of upgrades across its estate, which will ensure that technology—Daniel Johnson made a point about that—and equipment in courtrooms and in live television link rooms keep pace with improvements.

I will address a couple of points that Jackie Baillie made. Changing the way in which evidence is taken for so many needs to be done in a controlled and careful way. We will deal first with child witnesses in the most serious cases but, as has been noted, the bill includes a framework for extension to other vulnerable witnesses, so that it can cover more deemed vulnerable witnesses over time. It is important to make the changes in a managed way, as I am sure Jackie Baillie understands. The draft implementation plan sets out the Government’s intentions; unfortunately, I cannot give any commitment beyond that today.

Jenny Gilruth mentioned a child witness who was made to give evidence 27 times. That example alone shows us why the bill will be transformative and will lead to a better quality of evidence.

I am delighted to have spoken to the bill at stage 3, because it is clear how important the changes will be. The bill is a major milestone in ensuring that many more children can pre-record their evidence before a criminal trial. I hope that all of us in the chamber will support the reforms, and that we will pass the bill.

The Presiding Officer (Ken Macintosh)

There is one question to be put. The question is, that motion S5M-17210, in the name of Ash Denham, on the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, be agreed to. As the question is on passing a bill, there will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 112, Against 0, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill be passed.