Seòmar agus comataidhean

As I said, there is the role of the Lord Justice General in allocating individuals in specific circumstances.

My final word is that we have an existing process to appoint temporary judges, and it is tried and tested. Having listened to the full range of views, we propose to replicate that process for the appointment of others, whether they are sheriffs principal or sheriffs, to the sexual offences court.

I have one more point. Rape is serious not because it is prosecuted in the High Court but because it is one of the worst crimes that we know of. It usually—not always, but usually—involves the most appalling assault on a woman’s agency, which is why it will continue to be seen as one of the most serious crimes in our canon. I will leave it there, convener.

Amendment 184 agreed to.

Section 40—Appointment of Judges of the Sexual Offences Court

Amendments 185 to 196 moved—[Angela Constance]—and agreed to.

Amendment 30 not moved.

Section 40, as amended, agreed to.

After section 40

Amendment 197 moved—[Angela Constance]—and agreed to.

Section 41—President and Vice President of the Sexual Offences Court

Amendment 31 not moved.

Section 41 agreed to.

Section 42—President and Vice President: incapacity and suspension

Amendment 32 not moved.

Section 42 agreed to.

Section 43—President’s responsibility for efficient disposal of business

I do not think that anybody is disputing the importance of independent advice or advocacy. I am sure that people will continue to discuss and debate this but, with the best will in the world, legislation is not always the best place to address funding and operational matters.

I draw my remarks to a close there.

I will absolutely not take any interventions, Mr Findlay, because I really do not want to waste any more of your time, to which you have objected so profoundly—

The amendments in this group largely relate to provisions in the bill on the presumption in favour of pre-recorded evidence as it applies to the sexual offences court. They are intended to ensure that that presumption works as effectively as possible in the SOC.

Together, amendments 207, 209, 211 and 214 amend the bill to include provisions that will allow the SOC to admit evidence that was previously recorded by a vulnerable witness in another case. As members might recall, the committee discussed and agreed to a very similar amendment—amendment 216—during the debate on group 11. The key difference is that amendment 216 introduced provisions that will enable the reuse of pre-recorded evidence specifically in the High Court and sheriff courts.

Together, amendments 207, 209, 211 and 214 will allow for previously recorded evidence to be reused at a future, separate criminal trial. The previously recorded evidence can be used as all, or part of, the witness’s evidence, so that the witness does not necessarily have to be cross-examined again, unless there is a specific need for them to be.

As I said when I spoke to amendment 216 in group 11, at the moment, certain witnesses can pre-record their evidence ahead of the trial, but that evidence can be used only as a witness’s evidence in chief, not for their cross-examination or re-examination. That leaves witnesses open to the risk of being recalled to court to be cross-examined on their evidence again, which could be retraumatising.

The provisions allow for further questioning to be permitted by the court if there are relevant questions that were not put to the witness when the evidence was originally taken or if not asking those questions would risk the fairness of the trial. If the court considers that additional cross-examination of a witness is required, amendment 214 requires that that must take place at an evidence-by-commissioner hearing, unless a specific exception applies. Taken together, the provisions will ensure that the accused’s right to a fair trial is protected, while minimising the risk of the witness being retraumatised.

Amendment 212 will enable applications for a victim’s evidence to be pre-recorded to be submitted to the SOC before the case is indicted. That will ensure that there are no legislative barriers to a complainer doing that, if it is appropriate to do so. The amendment will bring procedure in the SOC in line with provisions established by the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, which ensure that all child witnesses and adult witnesses who are deemed to be vulnerable can, when appropriate, have the opportunity to pre-record their evidence ahead of their case being indicted. It is considered that such applications are likely to be rare, as only at the point at which an indictment is served will it become clear what requires to be proven in a particular case. However, removing the legislative barrier and aligning procedure in the SOC with the 2019 act will provide flexibility and allow what I have set out to take place, if it is considered to be appropriate in a particular case.

Amendment 208 relates specifically to the presumption in favour of pre-recorded evidence as it applies in the SOC, and its effect is twofold. First, it removes provisions in section 59 that give the SOC the ability to apply a best interests test when an adult complainer of a sexual offence expresses a preference to give evidence at the trial, instead of pre-recording their evidence in accordance with the presumption. The amendment requires the witness to have had access to such information, as prescribed by acts of adjournal, to support them in making a decision about how they wish to give their evidence.

The provision responds to a recommendation in the committee’s stage 1 report; it will ensure that complainers have greater agency in how they wish to give their evidence and that they have access to information to support them in making an informed choice. Setting out the information that is to be provided to the complainer by way of court rules will provide flexibility to ensure that the information that is available to complainers remains relevant. The information might include, for example, timescales for commission hearings, which often allow witnesses to give their evidence many months in advance of the trial date.

Secondly, amendment 208 amends the provision in section 59 to permit the courts to grant an exception to the presumption in favour of pre-recorded evidence for children under the age of 12 when the children have expressed a wish to give evidence at trial and it is in their best interests to do so. As currently drafted, the provisions in the bill only permit such an exception for adults and for children between the ages of 12 and 18. The purpose of the amendment is to ensure that provisions that apply the presumption in favour of pre-recorded evidence in the SOC take account of article 12 of the United Nations Convention on the Rights of the Child. Amendment 217 made similar provisions in relation to cases in the High Court and the sheriff courts.

Amendments 210 and 211 are more technical. Amendment 210 restricts the presumption in favour of pre-recorded evidence as it applies in the SOC to complainers of sexual offences only. That will help to align procedure in the SOC with our planned roll-out of the presumption in favour of pre-recorded evidence in other courts, which will ensure that the criminal justice system is able to meet the increased demand.

Finally, amendment 213 amends the bill to align timescales for submitting section 275 applications in the SOC with those in place for the High Court.

I move amendment 207.

Although the overriding purpose of the sexual offences court is to improve the experience of victims and survivors in their interaction with the courts system, it is, of course, imperative that we do so without losing sight of how the reforms will impact the accused.

I therefore welcome the detailed scrutiny that the committee gave at stage 1 to the issue of legal representation for accused in the SOC and the subsequent recommendation that stage 2 amendments should be lodged that embed the principle that cases that are currently prosecuted in the High Court should attract the same level of legal representation when heard in the new SOC. I share that view and, in response to the committee’s stage 1 report, I undertook to explore mechanisms that would hardwire that principle into the model of the SOC for stage 2.

I am pleased to say that my amendments 200 to 203 and amendment 228 deliver against that commitment by developing a mechanism that maintains that principle. My amendments embed an approach that achieves broadly the same balance of accused represented by counsel and those represented by a solicitor.

My amendments mean that accused persons in the type of cases that are currently prosecuted in the High Court will retain access to representation by counsel in the SOC, and the accused in the type of cases that are currently prosecuted in the sheriff courts, with representation by a solicitor, will continue to be represented by a solicitor in the SOC.

I have previously spoken to the committee about the risks of adopting an approach that would lead to a significant redistribution of cases to one part of the legal profession and about the potential for that to result in significant delays in cases reaching trial, which is an outcome that we must avoid.

My amendments in this group provide the accused with three routes to counsel where they have been indicted to the SOC. The first of those routes is provided by extending the list of offences in respect of which only advocates and solicitor advocates have a right of audience in the SOC. Amendments 200 and 201 extend that list beyond rape or murder to encompass a number of additional offences that, based on data provided by the Crown Office and Procurator Fiscal Service, are always or almost always indicted to the High Court. Those offences are attempted rape and attempted murder; offences under section 1 of the Domestic Abuse (Scotland) Act 2018 that libel conduct that amounts to rape; offences that attract a minimum custodial sentence of five years; and offences that are brought forward under the new evidence exception to the double jeopardy rule. The change in respect of the last category is linked to my amendment 218, which was debated in group 23 and extends provisions in the legislation that governs double jeopardy to the SOC.

Amendments 200 and 201 require that accused prosecuted in the SOC for any of those offences must be represented by counsel. Our estimates indicate that those revised rights of audience will capture two thirds of accused who are prosecuted for sexual offences in the SOC who would otherwise be indicted to the High Court. To ensure that we can remain responsive to changing practices, amendment 202 introduces a power that allows Scottish ministers to make regulations that would vary the list of offences for which rights of audience are restricted in the SOC.

The second route to counsel is introduced through amendment 228, which extends legal aid funding for counsel to the accused where the Scottish Legal Aid Board considers that there is a reasonable expectation that, if found guilty, the accused would receive

“a custodial sentence in excess of 5 years”,

or the courts would impose a risk assessment order, which is a necessary prerequisite to considering an order for lifelong restriction. The decision to grant the accused an entitlement to representation by counsel where those criteria apply recognises that only the High Court has the power to impose custodial sentences in excess of five years and to make orders for lifelong restriction.

The third route to counsel is provided through the existing mechanism whereby the Scottish Legal Aid Board may grant sanction for counsel where it considers it appropriate in any case, notwithstanding that that case does not include an offence caught by the first two routes that I have already set out.

We anticipate that the comprehensive process that is introduced by the amendments, which is the product of close collaboration with a range of justice partners, including the Crown Office, the Scottish Legal Aid Board and defence practitioners, will extend access to counsel for the accused in the overwhelming majority of cases that would otherwise be indicted to the High Court.

To ensure that the process created by the amendments is operating as intended and to provide additional assurances to Parliament, amendment 203 will place a requirement on Scottish ministers to conduct a review of legal representation in the sexual offences court. That will allow us to assess whether the approach has met our ambition of delivering access to counsel for the accused in cases that would otherwise be prosecuted in the High Court and to consider what, if any, adjustments to the approach might be required.

Pauline McNeill’s amendments 70 and 71 would remove provisions that give solicitor advocates rights of audience in the sexual offences court in cases that include an offence of murder. The amendments are linked to amendment 69, which was debated earlier and which sought to remove the jurisdiction of the SOC to hear cases that involve an offence of murder. The committee has already voted to retain murder within the jurisdiction of the SOC. Solicitor advocates can represent the accused in cases that involve an offence of murder in the High Court, so it follows that they should also be able to appear in those cases in the sexual offences court. I therefore ask Ms McNeill not to move amendments 70 and 71 and the committee to oppose them if she does.

I move amendment 200.

I have paid careful attention to views on independent legal representation during and following stage 1. My amendments in this group reflect that and the close working that has been carried out by the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service to ensure that the amendments clarify roles and responsibilities and will streamline operational processes.

Amendments 222, 223 and 225 will create notification duties that the complainer’s independent legal representative—ILR—should have by amending the proposed new section 275ZA of the Criminal Procedure (Scotland) Act 1995, which is being added by section 64 of the bill. The amendments would ensure that the complainer’s ILR has a statutory duty to notify the prosecutor and the court “in writing” and

“as soon as reasonably practicable”

that they have been instructed by the complainer. Similarly, and by virtue of amendment 225, the ILR would have to make the prosecutor and court aware if they were no longer instructed. As well as ensuring procedural parity with the defence, amendments 222, 223 and 225 will facilitate the efficient flow of relevant information between all parties.

Amendments 219, 220, 224 and 226 relate to the new disclosure of evidence provisions, with amendment 226 setting out a new, improved process. Key changes include the onus being placed on the complainer’s ILR to write to the Crown, outlining whether they wish to receive copies of any evidence based on what is set out in the section 275 application. If the complainer’s ILR requests evidence, the Crown must notify the defence, which can give consent to that evidence being disclosed; alternatively, they have up to seven days in which to object. In cases of objection, the defence must specify what items they object to and the reasons why. Crucially, the court would be involved only when there was an objection. The Crown would be able to disclose any evidence to the complainer’s representative that was not objected to without the need to involve the court.

The new process removes the obligation that would otherwise be placed on the Crown to sift all evidence and decide what should be made available to a complainer’s ILR. Instead, the complainer’s ILR will determine what evidence they may, or may not, require to fulfil their role. It also aims to reduce the need for court determination, as that would be required only in cases in which there is an objection. Furthermore, the objection period acts as a safeguard, ensuring that evidence that is shared is either agreed upon or determined by the court. Linked to that, amendment 226 also ensures that the complainer’s ILR and the complainer are subject to a duty of confidentiality in relation to any evidence that is disclosed.

Although the restrictions in section 274 apply to deceased complainers, amendment 221 puts beyond doubt the fact that the right to independent legal representation does not apply to deceased complainers, as it would, of course, not be possible for a deceased complainer to provide their views on the accuracy or relevance of the evidence sought to be led. That said, the Crown would retain its common-law obligation to consider and contest applications that did not meet the statutory tests. As I said earlier, the rape shield protections would still be engaged.

I am aware that, during stage 1, committee members met with individuals who had lost a close family member because of a serious crime. They argued that independent legal representation should be made available to them and could have a role in providing legal advice when they are called as witnesses. It should be noted that that is a very different ask from the provision of independent legal representation to deceased complainers and, as such, requires its own separate consideration and scrutiny. The complainer’s ILR is appointed for a very specific purpose in relation to a section 275 application, not to provide general advice on criminal justice proceedings.

I have considered carefully whether the family of deceased complainers should have access to independent legal representation. We need to remember that a section 275 application is, by its very nature, often related to intimate behaviour. Therefore, if independent legal representation were allowed in those circumstances, in what way might family members be able to challenge with any degree of authority or evidence the veracity of the evidence that the section 275 seeks authorisation to lead? Also, how would we define the family in those circumstances? Would it be possible to arrive at consensus among the relatives, noting that, if family members who had already suffered greatly were involved, it would expose them to highly traumatic and intimate evidence? Perhaps most significantly, there is also the question of the complainers’ dignity and privacy and, of course, their consent, which they would be unable to provide.

It is a very emotive and sensitive issue, but I have arrived at the conclusion that the risk of trauma outweighs any benefit that could be derived by a family member and that it far exceeds any impact or the ability to affect the outcome of the application. I hope that my reasoning assures members that I have considered the issue extensively and have given due consideration to the impact of trauma versus outcomes.

Finally, amendment 227 is a technical amendment that ensures that a complainer who is to give their evidence before a commissioner is afforded the same period of 21 days as any other complainer to instruct a solicitor and receive advice prior to the determination of any such application.

I move amendment 219.

I believe that that principle is incorporated in that work. The work of the victim-centred approach workstream is part of the victims task force, which brings together key victim support organisations as well as criminal justice agencies. The work has been done in that forum, and it has been led by victims. I respectfully suggest that the victims task force is a good forum to work through the recommendations and how to implement them. It is fair to say that the work is still at an early stage, but I am confident that it has been built on solid foundations, which has at its heart consideration of the needs of victims.

There are several challenges in Pauline McNeill’s amendment 77, which means that I am unable to support it. The amendment does not recognise that most relevant cases will be prosecuted in the sheriff courts and typically presented by a procurator fiscal depute rather than an advocate depute. Requiring a meeting to occur ahead of the first hearing would also mean—

I am just about to finish—

The pilot will provide choice and agency, which I hope will align with Ms Clark’s ambitions. It will provide advice that will be available throughout the criminal justice process—end to end and beyond, if that is needed. That would go further than what is envisaged in Ms Chapman’s amendment 267, where the advice would stop 12 months after the criminal investigation or proceedings are concluded. I hope that Ms Chapman will welcome that, and I ask her not to move her amendment.

On how the pilot compares to amendment 68, I understand that the amendment aligns with Katy Clark’s consistent calls for independent legal representation but, in that sense, there are difficulties. Perhaps we could compare and contrast the approaches at another time, because there are some points with respect to advocacy that are certainly important.

I appreciate that we have all been able to work together on this, and I thank Ms McNeill for her comments. I will quickly say that the allocation of prosecutors is a matter for the Lord Advocate and those who act for her, so the proposal would get us into legal competency issues. I would be happy to discuss that further or to provide further information for Ms McNeill’s consideration prior to stage 3. At the moment, it is my clear understanding that that is not an area in which I could lodge amendments, because of legal competency issues.