Chamber and committees

Good morning. The Victims, Witnesses, and Justice Reform (Scotland) Bill places victims and witnesses at the heart of the system. It is informed by the experience of victims, their families and organisations that support them, as well as by independent research, cross-sector groups and individuals with academic, legal and practical expertise.

The committee is well aware of the significant and long-standing concerns about the not proven verdict. You have heard evidence that it is not defined or well understood. It can result in confusion and trauma for victims and their families, and it can lead to stigma for the accused. It is vital that we improve the fairness, clarity and transparency of decision making in the criminal justice system and in criminal cases. The bill seeks to abolish the not proven verdict and to retain the widely understood verdicts of guilty and not guilty.

Reforms to our criminal justice system must command confidence in its integrity and protect balance and fairness. Therefore, the bill proposes to change the jury size from 15 to 12 and to change the majority required for conviction from a simple majority to two thirds. That is a proportionate way to achieve balance.

Violence against women and girls is a worldwide endemic problem. Lady Dorrian has been clear that we need to make seismic structural and statutory changes to how our system responds to sexual violence. Piecemeal change is not enough to achieve the cultural shift that is needed to improve the experiences of victims and give them meaningful access to justice.

The bill proposes an automatic lifelong right of anonymity for victims of sexual and certain other offences to ensure privacy and dignity during their lifetime. That might help to increase confidence in reporting offending behaviour. Placing that right in statute is particularly important in today’s social media age.

The bill also proposes to strengthen the rights of complainers through automatic, publicly funded independent legal representation when requests are made to lead evidence about their sexual history or character. That substantial reform will ensure that complainers have a right to access their own legal representative, who will assist them in ensuring that their voices are heard in that deeply intrusive aspect of sexual offence cases.

The bill seeks to create a new sexual offences court with national jurisdiction to hear solemn-level sexual offending cases. The court will embed specialist approaches to the way in which those cases are managed and complainers are treated, and it will drive reform of practice, process and culture.

Complainers’ experiences will be improved through greater use of pre-recorded evidence, better judicial case management and mandatory trauma-informed training for all who are involved in the work of the court, including lawyers.

Finally, the bill seeks to enable a time-limited pilot of single-judge rape trials. I am aware that there are mixed views on that proposal, which, again, arose from Lady Dorrian’s review. I agree with her that we should explore, in a practical way, the role of juries in delivering justice for victims of rape. Piloting single-judge rape trials for a time-limited period will provide much-needed evidence and will let us have a properly informed debate on how our system deals with those most difficult and challenging cases.

The committee has heard compelling evidence from multiple sources that our Scottish justice system is not working for victims of sexual offences. None of us should be comfortable with that and, as the Lord Advocate observed, it is “simply not good enough”. As parliamentarians, it is our role to address the issues that have been identified. This is our watch, and it is our responsibility. If we do not act, we will pass the problem on to our successors and lose the opportunity to bring about real change for victims who are going through the system now and those who will do so in the future.

No part of the system should be beyond scrutiny. The bill proposes reforms. I repeat the remarks that I made in the chamber last May in a debate about trauma-informed justice:

“if not this, what? If not now, when?”—[Official Report, 9 May 2023; c 68.]

It is time to move forward in the debate. I hope that we can do so together.

That detail will be worked through with experts in sexual offences cases and trauma-informed practice, as well as with the courts, which will have to ensure that all participating parties in the new sexual offences court have undertaken the requisite training. The point about training for professionals who will support the operation of the court is important. We are working with our justice partners on how that training will be developed and, crucially, how we will implement it.

Substantial work on what is required was undertaken with the publication of the trauma-informed skills framework for the justice sector as a whole, which we debated in the Parliament. We know what trauma-informed practice is and what trauma-informed training should look like, and my officials are engaged with our partners on the mechanisms for how, as part of the implementation process for the court, all that will be rolled out in advance of the court becoming operational.

The point that I am making is that no one chooses the procedure or the court that they appear in right now; that decision is taken elsewhere.

Conviction rates will be recorded. That information will be gathered.

The fact sheet did that, but I think that I am hearing that people want more detail to be made available, the proviso being that there is still no definitive—

It is not binary. I understand why you are pressing me, but it is not binary. Of course I want more women to have the justice that they deserve but, as I have outlined—

We do not want to turn the clock backwards, so yes, we need more justice for more women.

I do think that. It has always been my intention that Parliament will know that as we progress, and following deliberation by the committee. There is a bit of a chicken-and-egg scenario, here. It is appropriate for me to canvass a full range of views and insights. Fundamental decisions about how the pilot will operate will have to be made in the not-too-distant future. That will certainly happen before stage 3. I hope that, before stage 2, I will at least be in a position to give more definitive detail about our thinking and the direction of travel, rather than just giving options.

I very much agree, Mr Swinney. There are benefits in taking a more inquisitorial approach as opposed to an adversarial approach. As I alluded to earlier in the proceedings, I have spent some time engaging with other jurisdictions. I am not for a minute suggesting that a lift and shift can be done from one jurisdiction to another, but valuable learning and reflection can always be gained from experience elsewhere.

Many comparable jurisdictions have a more inquisitorial rather than adversarial approach. Given that such cases can be evidentially challenging, they need a particular approach, and the intention of the pilot is to ascertain whether a change in the decision maker will lead to better outcomes. Will more women get justice? Will the process be fairer for all involved including the accused, as well as the victims and witnesses? Will it be a better way of conducting affairs? Will it use resources more effectively? I have always been persuaded that a more inquisitorial approach is worthy of consideration, particularly in what are sensitive, complex and sometimes evidentially challenging cases.

I must also recognise, from my engagement with criminal defence lawyers, that the proposals mark a big change for people. Someone who has spent all of their career presenting evidence to persuade a jury might well find the change quite difficult. I have heard Simon Di Rollo talk about a different skill set being involved in persuading either a single judge or a panel of judges. I acknowledge that change can be difficult, but I stress that we are talking about a pilot, and we need minds to be engaged on it, because the fact is that we are collectively failing people, primarily women and girls, and I think that we all agree that we want to do better.

We need to find a way to bring as many people as we can on board with the proposition of a pilot. I give the committee the absolute assurance that we will do whatever we can to provide more detail and clarity on key decisions at an earlier stage.

I think that there is huge value in having written reasons, for the reasons that I outlined to Ms McNeill earlier. For a start, such a move will provide an unparalleled quality of deliberative information. The provision of written reasons as part of the pilot, together with transparency for victims and safeguarding the rights of the accused, will give us an unrivalled opportunity to gather better evidence about what the real issues, deliberations and challenges are. It will give us information that we cannot, with the best will in the world, gather in any other fashion.