Chamber and committees

Thank you very much for bringing to our attention your point about the importance of transcripts—that is something else that I think that we will need to take on. I know that a pilot on the use of transcripts is running at the moment, which you should take credit for.

I am very sympathetic to that point. I think that you have made a very good point from the perspective of survivors. I am just concerned about the volume of cases that would be transferred to the specialist court and how we would achieve that.

You might not be able to answer this question. Again, I do not fully understand why the Government, when it legislated, said that murder, if it had a sexual element, could be indicted in the specialist court. Had you asked for that? Had you made representations to the Government on that?

That has muddied the waters—for me, anyway. Murder cases should be in the High Court, so I do not understand. Obviously, they can be prosecuted in either court, but once we lose that provision from law, we will never go back to it—that is for sure.

I have a question for Kate Wallace. The committee is persuaded that the lack of certainty in the floating trial system must be traumatic; we have heard that from survivors. What concerns me about how we would fix that is that the figures that the Lord Advocate gave the committee last week demonstrated that the volume of cases that would be removed from the High Court to be dealt with in the specialist court would strip the majority of cases out of the High Court. We know that because, in essence, the root of the problem that we are trying to address is the number of sexual offences cases. I think that she gave a figure of about 73 per cent.

Are you not concerned that, if all those cases then go to the specialist court, rather than the High Court, we are going to have a problem trying to get certainty about the date because the same problem will arise? The volume of cases going to the specialist court will then be high. Do you see what I mean?

I want to focus on how we could change the role of the advocate depute or, as Ellie said, determine that the public interest also includes the proper conduct of the trial, including consideration of all the relevant evidence.

Hannah, I want to come back to you on this. Even if, in those circumstances, you had an independent advocate, they would not be able to intervene at that point. There is not really a way of going back on that, but perhaps if you had an opportunity during the course of a trial to say to the advocate depute, “You didn’t put this crucial point—why did you not do it?”, that would give them a chance to go back over that evidence.

I am wondering whether having that ability is more important than having an independent advocate, because at least the AD has a full understanding of the case. As you were told by the Lord Advocate, they are only human, so mistakes will be made. Would having a right to say to the AD, “I want a recess in the trial in order to put some of the points that I feel have not been put,” be more useful than independent advocacy?

It would help the quality of the evidence, because you would have more of a say.

That is really helpful. The incredible evidence that we have had—I thank all of you—from victims and survivors, has persuaded me that a lot of the changes that are required are not legislative but are about the system itself.

I suppose that it goes back to Emma Bryson’s points. I am going to have to give some thought in my mind to how we can get such a change.

Other members have asked about how victims can get more of a say in their own cases and how they get access to advocate deputes. My very scant knowledge tells me that the issue might be cultural, in that for many years ADs were trained in such a way that they were told, “You are the prosecutor; it’s your job to act in the public interest—you’re not representing the victim.” That is very much how they have been trained, but what we are hearing is that that does not really help the conduct of trials. There is a lot of thinking to be done around that.

Sandy Brindley has made the case with regard to conduct, but to me, there is a separate issue about changing the culture. That might be something of a resource issue, too, because it would require more time. Are those changes as important as—or, indeed, more important than—the changes in the legislation?

Do you want to go first, Sandy?

As Ellie said, you are an outsider—what we have heard bears that out.

I have a separate question for you, Jennifer. We have talked a lot about rape myths, so I have thought about what that means to me. However, you have added something else that is really important, which is other myths that I have never thought about. You said that you were expected to break down in court, and Hannah said that she had to fight not to have a screen. I wonder whether we need to look at those elements when deciding what a trauma-informed approach looks like and what proving a case looks like.

You will know that the law on proving rape has changed over the years. You used to have to show distress, because juries wanted to see visible distress in order to believe the victim. You do not need to prove that any more, but the two points that you made are really important. If a jury expects you to break down, because that is their myth, but you do not break down, perhaps you are less believable.

On whether you have a screen, I wonder whether that is another myth, whereby juries think that, if you do not give evidence behind a screen and you are able to face your accuser, perhaps you are not to be believed. Are those important aspects of taking a trauma-informed approach and proving a case that we should now draw out?

That is helpful. Jennifer has spoken about the right to choose. If you want to hear the trial, there should be a way of allowing for that that you would feel comfortable with.

I was going to ask about that issue, so I will carry on where Rona Mackay left off.

Emma Bryson spoke about the difference between theory and practice and asked what the practice will be. What will the law be? What is it that we are legislating for? That is what I am thinking about. I was quite persuaded by Lady Dorrian’s evidence last week and her report on the specialist court, which she envisages as being a branch of the High Court. I am mystified by some of the changes that the Government made when it went from the report stage to the bill stage, and that is what I want to ask you about.

Sandy Brindley, as you rightly said, the sexual offences court will be a national jurisdiction court that will have sentencing powers, but what is missing is that the rights of audience will not be the same as those in the High Court. You also said that in your submission. For that reason, my view is that the specialist court will not be the same as the High Court unless that issue is resolved.

I draw attention to a point that I made to Lady Dorrian. Do not quote me on the year because I have no idea, but when we extended the sentencing powers of the sheriff court, Lord Bonomy made the same point about floating trials as he did about the right of an accused person—who, before we extended the powers, would have been tried in the High Court—to have rights of audience of more senior counsel. It is now impossible to get senior counsel approved by the Scottish Legal Aid Board. It strikes me that we need to ask SLAB what its view of that is. If the right is not enshrined in law, I am absolutely certain that the whole area will become murky. In my view, the distinction in law is that rape and murder can go only to the High Court, and everything flows from that.

Sandy, from your submission, I think that you share my concerns that we need to persuade the Government that, if we do not sort out the issue, the specialist court could not really be what Lady Dorrian envisaged it being.