Chamber and committees

It is of no surprise to me that there is a range of views. I have spent the summer engaging with different bar associations and, in particular, criminal defence lawyers. I hope that the committee recognises that I am not a politician who wants only to meet or engage with people who agree with me. From my perspective, that engagement was very helpful in understanding better the nature of their concerns about the pilot and the other stresses and strains that they are currently experiencing in their day-to-day work.

I emphasise that no part of our system is exempt from change, but I recognise that change can be difficult and challenging. Members of the legal profession are entitled to their view—they will be part of that debate—but we have at least a year between the start of stage 1 and stage 3, when we will all vote on the final bill. We need to give one another a bit of time and space, have the debate and try to work together in the interests of our shared common goal. We all want guilty people to be convicted and people who are not guilty to walk free, and we all want complainers’ experience of our court system to be better.

I would describe the journey that we are on as more of a marathon than a sprint.

I will add to that briefly. I hope that this will get us to the nub of Mr Findlay’s question. In the current system, there is no data on what individual jury members opt for as a result of their decision making and there is no other system that has moved from three verdicts to two verdicts, because no other system has three verdicts. That means that some of the hypotheses that Mr Findlay has—understandably—questioned have no data, because we do not have a crystal ball. However, it is the overall balance and integrity of the system that are crucial.

Yes, that is a reasonable summary.

The issue has not turned up in deliberations so far. Mr Swinney is aware that the reforms are built on substantial independent research, but further, intense cross-sector work has also been done to galvanise and build on the experiences of those who work in operational aspects of our justice system.

There was some consideration of other alternatives. Ultimately, although the Lady Dorrian review encompassed a range of opinions, it settled on a pilot for single judge trials in relation to rape and attempted rape cases on the basis that those trials are not novel in Scotland. The majority of criminal cases—I think 84 per cent—are presided over by a single judge, although admittedly those are less serious cases, which are heard in lower courts. The working group that followed Lady Dorrian’s extensive review gave some consideration to whether we could have a shadow verdict system, which would involve having a shadow judge alongside a judge and jury. However, there were considerable ethical issues in and around that, so the approach was not pursued.

Some consideration was given to having more than one judge and having perhaps a panel of judges. However, a practical consideration is that we do not have an endless supply of judges and in a situation where a case was appealed, for example, we would need an even larger number of judges to supply the panel.

There are other models in other jurisdictions. Other jurisdictions have moved away from jury trials for particular cases. Parts of Australia and New Zealand and parts of America, France and Germany have a judge and a panel of lay people, and, if I am correct in my recall, the Netherlands does not use juries. There are different models, but ultimately the recommendation was to consider a single judge pilot on the basis that that model would not be novel in Scotland.

It will be no surprise to anybody on the committee that we are living in fiscally challenging times. I will not go into the causes of that or, indeed, the solutions, because that will be part of a bigger parliamentary budget debate.

The one-off cost of establishing the sexual offences court will be a minimum of £1.4 million and we will be looking at a minimum cost of £500,000 per annum going forward. It is fair to say that those costs might change, depending on the operational decisions that are made about how we go forward with the implementation.

On the timescale, the bill will be passed a year from now—assuming that it is passed—and the measures that will be implemented first, in 2025, are likely to be those that do not require secondary legislation or court rules. Establishing a sexual offences court will require new court rules and procedures. Therefore, we are still a little bit away from achieving the ambitions in and around having a sexual offences court. As with any bill, particularly a large bill, the provisions need to be phased in in order not to overwhelm the system.

I will end on this point, convener—I am surprised that you are not telling me to cut to the chase. The other crucial argument for, and potential benefit of, a sexual offences court is that it could improve efficiency in dealing with the growing number of complex cases. Again, that is something that the Lady Dorrian review looked at. A large part of her work was about what additional measures could assist with the efficiency of cases. Yes, there is still a court recovery programme, but this measure is also an opportunity to deal with those cases more efficiently.

The bill does not deal with sentencing policy. It is a response to the experience of victims in the criminal justice system. I understand perfectly the point that Ms Dowey makes, but we also know from victims, particularly from the personal testimony of victims who have been through the system, that their experience is sometimes as important as the outcome. A system that retraumatises victims is not in the interests of justice or access to justice, and it will not encourage or support victims to come forward. However, as it stands, the bill makes no reference to sentencing policy.

The current approach is more about practice and protocol and is non-statutory. Right now, the mainstream press abide by and adhere to what is a non-statutory approach, and they need to be commended for doing so, but we are now in the world of social media, with its massive reach and a phenomenal number of contributors who, at the click of a button, can share all sorts of information. Fundamentally, we want more clarity and certainty for complainers, so that they have the confidence to report and the automatic assurance that their privacy and dignity will be protected.

Mr Swinney and other members are correct to encapsulate what Lady Dorrian expressed, which is that the adoption of trauma-informed practices is absolutely central to how we can improve the experience of complainers. The bill seeks to do that in a number of ways. Mr Swinney quoted section 43. The bill creates a statutory definition of trauma-informed practice; it requires justice agencies to have regard to trauma-informed practices in their work with victims and witnesses; and it empowers the courts to set rules and procedures for trauma-informed practice in relation to criminal and civil business. The practical application of that means that trauma-informed practice must be taken into account when court business is scheduled.

With the sexual offences court, there is a move to a presumption that prerecorded evidence will be used. Obviously, there is some legislation on virtual trials at the moment. To get to the heart of the matter and improve people’s experience and the efficiency of the system, rather than tweaking it around the edges, the sexual offences court offers us an unrivalled opportunity to embed expertise and to take what Lady Dorrian described as a “clean sheet” approach, instead of guddling about in the existing system, which is not satisfactory for many complainers and which retraumatises complainers. We are starting with a clean sheet, looking at what we need to do differently and building a new system from the ground up.

Right now, I do, but, of course, the purpose of scrutiny is to shine a light on areas that can be improved or to unravel any knots that exist in legislation. I am very undefensive about such things. The main priority between now and the passing of the bill is to ensure that we have the best legislation possible. I am sure that, as we embark on this journey, we all want to work together to improve the bill.

The rationale for having a specialist sexual offences court is also to improve the efficiency of the process, because we know that delays can have a traumatic impact. A range of operational matters will need to be addressed—regarding independent legal representation, for example—in order to ensure that people can access their rights timeously without additional delays.

There is a lot of detail underpinning the bill that is still to be worked through, but one of the purposes of a sexual offences court is to improve efficiency, and that was, in many ways, the starting point—or one of the starting points—for Lady Dorrian’s work. Given the increasing volume of cases, how are we going to deal with them more efficiently? That is not just in the interests of the court system; it is fundamentally in the interests of victims.

I do not know whether I have missed out or not addressed anything—perhaps my officials can tell me.