Seòmar agus comataidhean

The amendments in this group feature a mixture of substantive and technical amendments related to the offences and cases that the sexual offences court—the SOC—will have jurisdiction to hear.

My position is that the SOC should be given a broad jurisdiction to ensure that its benefits are extended to as wide a cohort of victims of sexual offences as possible, while ensuring that the way in which that is done protects the court’s resources. It will then be for the independent prosecutors, acting with the delegated authority of the Lord Advocate, to decide whether to indict specific cases to the SOC, based on the facts and circumstances of that case. It would disadvantage victims if we were to place arbitrary restrictions—in my view—on the cases that the SOC can hear.

We have just heard from Pauline McNeill on her amendments 157 and 69, and I appreciate her comments on her intentions. I have a different perspective on the matters that she raises, and I am particularly concerned about the impact that amendment 157 would have if agreed to.

Amendment 157 would restrict the SOC to being able to hear only cases that can be prosecuted on indictment in the sheriff courts. In effect, it would mean that the SOC could not hear cases that included an offence of rape or murder, on the basis that those offences cannot be prosecuted in the sheriff courts.

I have significant concerns about the suggestion—whether it be Ms McNeill’s intention or otherwise—that the SOC should be prevented from hearing rape cases. Rape is, without question, the most serious sexual offence that can be committed against an individual and, as such, it is victims of that offence who arguably stand to benefit most from the specialist trauma-informed approaches that will be at the heart of the sexual offences court.

We will not have a credible or effective sexual offences court that will deliver for the very victims for whom it is intended to deliver if rape is excluded from its jurisdiction. Depriving victims of rape access to the SOC while victims of other sexual offences benefit from the important reforms that it will introduce seems to me to be without justification and would serve only to exacerbate existing challenges that those victims face when interacting with the courts and the criminal justice system. I would also add that sheriffs sitting as temporary judges can currently preside over rape cases in the High Court. I therefore strongly urge members to reject amendment 157.

I also ask members of the committee to reject Ms McNeill’s amendment 69, which would remove murder from the SOC’s jurisdiction. Following the committee’s stage 1 report, I have carefully considered whether the SOC should be able to hear an offence of murder where it appears on the indictment alongside a qualifying sexual offence.

I respect that there is an argument for and against that. However, I remain of the view that there is a clear rationale for empowering the SOC to hear murder cases when combined with sexual offences charges on the same indictment. Indeed, that view was articulated at stage 1 by the Lord Advocate, and she gave the committee specific examples of such cases, which she has recently repeated in correspondence to the committee. On balance, I have heard no compelling rationale for depriving such victims of the specialist, trauma-informed approaches that will be a key feature of the SOC.

I acknowledge the view that the role of the High Court of Justiciary, as Scotland’s superior criminal court, means that it is the proper place to hear cases that feature an offence of murder. However, on balance, I believe that our paramount concern should be the experience of complainers and that we should not be constrained by court hierarchies and tradition. Historical function and status have not delivered the system that we want for victims of sexual offences. I want all victims and survivors of sexual offences to be able to have their case heard in a forum that is specifically designed to support them.

I now turn to my amendment 218, which will ensure that the new evidence exception to the rule on double jeopardy applies to all cases that are prosecuted in the SOC. The new evidence exception will allow the Lord Advocate to apply to the High Court to set aside an acquittal where the statutory test that is set out in section 4 of the Double Jeopardy (Scotland) Act 2011 is met.

That test broadly relates to the emergence of new and compelling evidence that was not available at the time of the original trial and which would appear to show that the accused might be guilty of the offences of which they were previously acquitted. The High Court considers the Lord Advocate’s application and decides whether an acquittal should be set aside and permission for a new prosecution granted. At present, the new evidence exception can be sought only in cases that were originally prosecuted in the High Court, but in recognition of the serious offences that will be heard in the SOC, including rape and murder, I consider it important that the new evidence exception apply to that court, too.

As well as allowing cases heard in the SOC to be reprosecuted under the new evidence exception, amendment 218 will allow such cases to be retried in the new SOC to ensure that complainers can also benefit from the specialist, trauma-informed approaches that it will introduce.

Amendment 218 will also require that, where an accused who is being prosecuted in the SOC makes a plea to the judge against prosecution on the basis that the indictment relates to offences for which they have previously been acquitted, the plea be remitted to the High Court for consideration. That will ensure that the High Court retains sole authority to grant the right to bring a retrial under the new evidence exception.

The remaining amendments in this group are technical in nature, their primary purpose being to ensure that the SOC has appropriate jurisdiction and will function as intended. Amendments 180 and 181 make it clear that the SOC will have jurisdiction over non-sexual offences that appear on an indictment alongside a qualifying sexual offence from the point at which the indictment is served on the accused. They put beyond doubt that the SOC will be able to take action in relation to non-sexual offences, such as accepting guilty pleas, before a case reaches trial.

Amendments 198 and 199 adjust the provisions that relate to the timeframe for the prosecution to submit applications to transfer cases into and out of the SOC on cause shown. The amendments move the timeframe for applying to transfer cases into and out of the SOC from the day before the commencement of the trial to the day before commencement of the trial diet. As the trial can commence on any day within the period of the trial diet, moving to a deadline that is linked to the commencement of the trial diet, which is set at the preliminary hearing, gives parties greater certainty on the deadline for submitting applications.

Amendments 183 and 216 provide the SOC with the powers that it needs to deal with cases where an individual is charged with

“aiding, abetting, counselling, procuring and inciting”

sexual offences, and amendment 182 makes the offence of conspiring to commit a sexual offence, as defined in section 39 and schedule 3 of the bill, a qualifying offence for the purpose of defining the SOC’s jurisdiction.

I urge the committee to support the amendments in my name and to oppose the others in the group.

Will the member give way?

Yes.

It is my firm belief that the success of the sexual offences court depends, perhaps more than any other single aspect of the model that is set out in the bill, on the judges who are appointed to preside over cases that call in the SOC. Judges play a hugely important role in any court, but that role will be particularly pronounced in the SOC. Judges will set the tone and culture of the SOC and will be responsible for embedding the specialist trauma-informed practices and procedures that will be central to improving our approach to the treatment of sexual offences cases and the complainers involved.

Given that important role, it is imperative that we maximise the court’s ability to take full advantage of the pool of experienced and trauma-informed judges who have the commitment and specialism to make the SOC a success. Of course, the judges must be allowed to exercise the full powers of their office without fear or favour.

We must have processes for appointing and removing judges of the sexual offences court that strike the correct balance between rigour and proportionality. By that, I mean that appropriate safeguards must be in place to ensure that a sufficient number of judges are appointed and that those judges are, and continue to be, the right people to preside over cases in the sexual offences court.

Provisions in the bill at introduction gave the Lord Justice General a broad power to remove judges of the sexual offences court, provided that the Lord Justice General had consulted with the Lord Justice Clerk and the president of the sexual offences court in advance. During stage 1, it was suggested that that power could undermine the security of tenure of judges, which could ultimately impact on the independence of judicial decision making. That resulted in a stage 1 recommendation from the committee that amendments be lodged at stage 2 to adjust the process for removing judges of the sexual offences court. In my response to the stage 1 report, I committed to doing that, and I indicated my intention to review the process for appointing judges to ensure that there is an appropriate balance.

Before setting out the substance of the amendments, I want to be clear with the committee on what they do not change about the appointments process. It will remain the case that judges of the sexual offences court can be appointed only from among those who hold substantive judicial office as a High Court or temporary judge, sheriff principal or sheriff, and that their role as judge in the SOC will continue to be contingent on their holding that substantive office. Additionally, my amendments will not change the requirement that only those who have completed a course of approved training in trauma-informed practice in sexual offences cases can be appointed to sit in the SOC.

I turn to the amendments. Taking up the committee’s recommendation, the amendments remove the power of appointment from the Lord Justice General and establish distinct processes for appointing those who currently have rights to preside over High Court cases and those who currently have rights to preside over sheriff court cases. Amendments 184 and 195 will mean that all those who hold judicial office as a High Court or temporary judge are automatically appointed to the role of judge of the sexual offences court, provided that they have completed the necessary training in trauma-informed practice.

That approach recognises that those judges already preside over cases that involve the most serious offences that are heard in our courts, including rape and murder, and that they have the necessary associated sentencing powers when they do so. Putting it beyond doubt that those judges will be able to sit in the SOC underscores the status of the SOC and the seriousness and gravity of the crimes that it will consider.

The process for appointing sheriffs and sheriffs principal, as modified by amendments 185 to 193 and 196, is closely modelled on the process for appointing temporary judges under the Judiciary and Courts (Scotland) Act 2008. The Scottish ministers will be responsible for appointing sheriffs and sheriffs principal to the role of judge of the sexual offences court, based on the recommendation of the Lord Justice General.

Individuals will be appointed to sit in the court for a period of five years and will be automatically reappointed unless specific exceptions apply. Individuals can be appointed only if they have completed a necessary course of training in trauma-informed practice in sexual offence cases and the Lord Justice General considers that they have the skills and experience to hold office as a judge of the sexual offences court.

The temporary judge appointment process has been an effective and proportionate mechanism for giving sheriffs the additional responsibilities and sentencing powers that are associated with that office. We continue to engage with partners to ensure that the appointments process strikes the right balance between rigour and proportionality that I spoke about earlier, so that the approach will prove effective at ensuring that the SOC can access and take advantage of the talent and commitment in the Scottish judiciary.

Amendments 229 to 232 respond directly to the concerns that the committee raised regarding the process for removing judges of the sexual offences court. The amendments remove provisions in the bill that give the Lord Justice General the power to remove judges of the sexual offences court and, instead, tie that process to removal from the judges’ substantive office.

Under existing legislation, High Court and temporary judges, sheriffs principal and sheriffs can be removed from office only by the First Minister, following the recommendation of a Fitness for Judicial Office Tribunal. That provides an established safeguard against unfair dismissal and provides security of tenure for judges.

As provisions require that a judge of the sexual offences court holds that position only by virtue of their substantive office, it is therefore unnecessary to have provisions in the bill that create specific powers to remove judges of the sexual offences court from that office. Instead, the approach adopted through the amendments is to rely on the existing, long-standing and fair Fitness for Judicial Office Tribunal process related to their substantive post, so that if they are removed from that office, they also cease to be a judge of the sexual offences court.

Amendments 230 and 232 also make it clear that the conduct of an individual while sitting as a judge of the sexual offences court can be taken into account in a Fitness for Judicial Office Tribunal for their substantive post and can, in fact, trigger commencement of a tribunal.

Amendment 197 gives the Scottish Courts and Tribunals Service the power to pay expenses to judges of the sexual offences court in connection with expenses incurred in fulfilling that office. The amendment also enables the Scottish ministers to make bespoke arrangements for paying judges of the sexual offences court.

That is an enabling power, similar to that provided for in the legislation relating to temporary judges. I consider that it is important for the Scottish ministers to have that power and the flexibility that it provides to ensure that the SOC works as it should and that the framework that establishes it is future proofed to account for changing circumstances.

We will, of course, hear directly from Pauline McNeill on her amendment 270. Following our discussions, I believe that it is designed to address her concerns that moving rape cases to the sexual offences court somehow constitutes a downgrading of rape. However, I have profound concerns about the amendment, which would, in effect, not enable the sexual offences court to function as intended.

In considering the amendment, I encourage members to reflect on the evidence at stage 1. The victims and survivors who spoke to you were not concerned about the status of the SOC nor about the title of the judge appointed to preside over their case. Victims and survivors told us that what they care about is how their case is managed by the court system and that they are treated in a way that recognises and responds to the trauma that they have experienced.

Although senators may be the most senior cohort of judges, sheriffs sitting as temporary judges already preside over rape cases in the High Court, where, as Lady Dorrian told us,

“they do a very good job indeed”.—[Official Report, Criminal Justice Committee, 10 January; c 13.]

There are a great number of sheriffs with many years of experience presiding over sexual offences cases. The positive impact of that expertise and experience would be substantially diminished if sheriffs and temporary judges were to be prohibited from presiding over rape cases in the SOC.

By placing restrictions on which judges can preside over certain offences, amendment 270 impinges on the capacity of the Lord Justice General to deploy the most suitable and effective judges to preside over the cases that are indicted to the SOC. In doing so, it prioritises adherence to existing hierarchies over and above good practice in the management of rape cases. In my view, that would not be to the benefit of victims. In addition, amendment 270 would present significant operational challenges for the SOC.

Prohibiting temporary judges from presiding over rape cases would fatally undermine the ability of the SOC to deal with the cases that will be indicted to it, let alone provide a sustainable model for the management of those cases moving forward. Temporary judges play a crucial role in managing the business of the High Court, including the many rape cases that are indicted to it. By excluding those who hold office as a temporary judge from presiding over rape cases in the sexual offences court, amendment 270 would lead to a substantial reduction in the judicial resource available to manage the current volume of rape cases. There would simply not be enough judges to deal with the SOC’s case load.

I ask the committee to support my amendments.

I move amendment 184.

I am at the committee’s mercy, and I respect the fact that there should be debate and scrutiny on all matters—every member of the Parliament has the freedom to roam in that regard. What we have all wrestled with, perhaps at different points in the process, is that any change from what has ayewis been comes with challenges. We all want to make changes for the better, and we all come to this with different degrees of what we want to give up from what has ayewis been. I am not saying that with any judgment.

I will not rehearse the arguments about why I fundamentally believe in the establishment of a sexual offences court, because I suspect that that would incur the wrath of the convener, but that is the underlying bedrock to the changes that have been made or are proposed in the previous group of amendments, this group and, indeed, in subsequent groups. This group of amendments is about the pragmatics. I want a pool of experienced judges. I am of the view that, ultimately, it is for the Lord Justice General to decide which judges are allocated to which cases.

Our stage 2 proceedings had been very constructive until we reached group 31. We had managed, until Mr Findlay’s appearance, to have robust and respectful exchanges, including in and around the previous group on independent legal representation. I acknowledge Ms McNeill’s point that the bill is large and complex. However, I think that it is somewhat puerile and childish to say that I am the reason why it has taken two years; that shows a lack of awareness of parliamentary process and proceedings—

No, sorry; I said no.

I start with a point around substance. I still believe that it is vital that we do not lose sight of the substantial evidence that the current approach to decision making in rape trials is denying women justice. Data from the Scottish Government that was published last April show that, in rape and attempted rape cases, where there is a single complainer and a single charge, the five-year average conviction rate for cases that reach court is just 24 per cent. That is sobering, and I do not hear many comprehensive answers as to why that is.

That is why it is crucial that we understand more about the barriers to justice for rape victims. One way that we can do that is through research that looks into the content of jury deliberations, in order to help us to better understand whether, and how, rape myths affect verdicts and what measures could effectively address them. I am pleased that the committee supported my amendments to the Contempt of Court Act 1981 in the previous group, which will help to pave the way for that.

It is also important that we continue to challenge rape myths, not just with jurors but in society as a whole. I have confirmed that we will set up a working group to look at that in more detail, and I hope that members across the committee will support that.

As you know, convener, I have always recognised that views on the proposed pilot of juryless trials are mixed. During stage 1, some stakeholders and members spoke compellingly in support of a pilot, while others expressed their concerns. I have listened carefully to all those views and reached the conclusion that there is not enough parliamentary support for a pilot of juryless trials at this time.

When I wrote to the committee in October, I made it clear that I would remove the pilot from the bill. In the interests of building as much consensus as possible, and as amendments were already lodged that would remove the relevant sections of the bill, which meant that I could not lodge my own amendments, I have lent my support to amendments 53, 54 and 59. Consequently, I note Ms Clark’s remarks on her amendments.

I will pick up the point about research. There is always an argument for more research, and I am very open to that. However, without delving too deeply into a future group of amendments that we will, I hope, debate this morning, I point out that using mock juries is the only way in which to see the impact of varying jury size, jury majorities and the number of verdicts. That cannot be done with real juries. A real trial cannot be run 64 times with different jury sizes and different decision-making rules. There are advantages to using mock juries. For example, the jury’s deliberations can be recorded and analysed in a way that would not otherwise be possible just now.

I accept that different research gives us different dimensions and perspectives. I was struck by the comments from Professor Chalmers last year, when he said, rightly, that there is

“a danger in making changes without adequate research, but there is also a danger in believing that an ideal, perfect body of knowledge can be attained. There will always be a limit to what realistically can be known.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 25-26.]

At the end of the day, research does not make decisions for us, although it informs our decisions. Ultimately, therefore, we are all wrestling—as Ben Macpherson eloquently described it—with the weight of responsibility in and around making this decision.

I will reply briefly to Sharon Dowey’s points. She makes a radical proposition, and Mr Kerr was valiant in his defence of that course of action but, for me, after much consideration, the bottom line is that the threshold would be simply too high for fairness, in the context that we still have corroboration.

The requirement for corroboration, although the courts will refine it, is still with us. That refinement does not necessarily mean that we will see more convictions returned in such cases—I am thinking about the Lord Advocate’s successful references that colleagues have mentioned—as the jury still requires to be satisfied beyond reasonable doubt. The balance of proof is the same; that is an important point. However, it means that more cases are capable of being prosecuted and that the jury can rely on a greater range of evidence. Of course, the courts will continue to refine the application of those judgments; we will probably discuss that more in a wee while.

I come to my final point. I know that we are all guilty of quoting one voice when, at the end of the day, we are trying to come to a rounded and balanced view, but once again I quote Lord Matthews. He said:

“We thought that 10 out of 15 would be an appropriate majority for a verdict ... England, for example, requires unanimity at first, and then the judge can tell the jury that they will take a majority of 10 to two or whatever. We do not want to go down the route of having to explain to the jury, ‘You’ve got so long, and then I’ll tell you that you don’t need to be unanimous’.”

We do not have a history in Scotland of instructing juries to strive for unanimity. Finally, Lord Matthews said:

“we thought that a qualified majority is possibly the safest and best approach.”—[Official Report, Criminal Justice Committee, 31 January 2024; c 35-36, 38.]

I will leave my remarks there, convener

It has been evident in today’s discussion and debate that each and every one of us has been engaging and wrestling with the issue on an intellectual and emotional basis. At the end of the day, we will all have to come to conclusions based on our individual positions and perspectives and come to a collective voice that is informed by all voices.

I remind the committee that part 4 is one of the cornerstones of the bill and that it will make changes that apply to all cases in all courts. It is important to remember that.

I will say a few brief words about research without speaking at length. Overall, we have had the Scottish jury research and our own consultation. There has been substantial engagement with all those with an interest in the bill. I assure Liam Kerr that my officials have met the Law Society of Scotland regularly on the bill. I do my best to meet the many stakeholders in the world of justice, but there is always a limit to that, I am afraid.

International comparisons are also important, whether they are comparisons with our nearest friends and neighbours south of the border, with our European colleagues or with Australia, New Zealand or North America. We cannot cut and paste anybody else’s solutions. We need to look at the experience at home and elsewhere and apply what we learn to a Scottish context.

On the quantum of research, I know that we have spent a lot of time focusing on the Scottish jury research, but it is worth bearing in mind that the meta-analysis that was published last year considered studies involving almost 1,800 jurors and found statistically significant divergence in the verdicts that jurors delivered in a three-verdict system versus a two-verdict system. The odds of a jury convicting were 40 per cent lower in a three-verdict system. That points to the fact that, if we embark on the historic reform of removing the not proven verdict—I believe that the majority of us want to do that—we have to make decisions.

I have met with Lady Dorrian on a number of occasions, and she is the biggest advocate of a stand-alone sexual offences court. She certainly—as she narrated to the committee—had some different views with regard to how some of the bill’s provisions were drafted when it was introduced. The one that comes to mind was about how judges would be appointed to the sexual offences courts; we will come to that in discussing the amendments in group 24.

Principally, and crucially, the benefits of specialism can, in my view, be realised only by bringing together all cases of the same type, from both the High Court and the sheriff courts, in a single forum. That will foster the development of bespoke processes that are informed by best practice drawn from across the High Court and sheriff courts, and ensure that those processes are applied consistently to the benefit of all complainers in serious sexual offences cases across the country.

Another key reason why the court must be a distinct court with a national jurisdiction is to ensure that it has access to the combined resources of the High Court and sheriff courts. That will allow it to draw on a much wider pool of court and judicial resources and to use those flexibly in the scheduling of trials. That has the potential to reduce the length of time that it takes for cases to reach trial, which sexual offence complainers consistently tell us is one of the main challenges that they experience in their interactions with the court system.

Lady Dorrian, in evidence to the committee, stated:

“we felt quite strongly that simply creating another division of the High Court, for example, would not achieve the necessary end. What was needed was a court of full national jurisdiction”.

The ability to use the combined resources of the High Court and sheriff courts flexibly is crucial to creating a sustainable model for the management of these cases. Data from 2023-23, which is the most recent that we have available, shows that 1,966 people were proceeded against for a sexual offence in Scotland—a 29 per cent increase since 2013-14. That growth shows no sign of abating, and we must expect that the numbers of sexual offences cases that are heard in the courts will continue to rise. We must be prepared for that growth by putting in place a system that is capable of managing increased demand.

I remain committed, therefore, to establishing a sexual offences court and will continue to persuade people to back it. I have listened to members’ views on aspects of the court and lodged a number of amendments, to be discussed in later groups, to address the issues that are raised by those concerns.

I turn to the specifics of Pauline McNeill’s amendments 76, 155 and 156. The idea of establishing specialist divisions of existing courts in place of a stand-alone court was carefully considered in some detail by the Lady Dorrian review group and the specialist sexual offences courts working group, and roundly rejected by both of them. While both groups identified several reasons for rejecting the idea of specialist divisions, their concerns can be distilled down to the fact that it would represent little more than a continuation of the piecemeal change that has been characteristic of the past 40 years, and it is therefore incapable of delivering reforms that are commensurate with the scale of change that is needed in the management of sexual offences cases.

Another key challenge with Pauline McNeill’s suggested approach is that it would require the courts to establish not one division but seven separate divisions: one for the High Court and separate divisions for all six sheriffdoms. That would inevitably create a significant, yet totally unnecessary, additional layer of complexity and bureaucracy. It is also of note that the courts already have the power to establish specialist divisions should they wish to do so.

Pauline McNeill’s amendments in this group, therefore, fall well short of the scale of change that is needed to reform the management of sexual offences cases, and I urge the committee to reject them.

I urge the committee to also reject Russell Findlay’s amendments, proposed by Ms Dowey, which would remove the proposed sexual offences court from the bill.

However, I will support amendment 47 for technical reasons. That is because it provides the foundation for amendments in my name that will be debated in group 27. Those amendments seek to ensure that there is alignment in the implementation of the presumption in favour of pre-recorded evidence across the High Court and the sexual offences court. I would have lodged a similar amendment, but amendment 47 was lodged first.

The evidence that the committee heard, including from many victims of sexual offences who made passionate pleas for reform, means that no one should be supporting Mr Findlay’s amendments, which seek to make no change to the way that we manage sexual offences in our courts.

I will end by reiterating the warning that Lady Dorrian gave members of the committee at stage 1, when she said:

“if we do not seize the opportunity to create the culture change from the ground up ... there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.”—[Official Report, Criminal Justice Committee, 10 January 2024; c 4, 22-23.]

Let us end the conversation and take action.