Chamber and committees

The reason for the lack of certainty in the floating trial system is that they want to try to push as many cases as possible. If there is a spare court, they want a window of time to let a trial proceed. With a fixed trial diet, the case has to start on that date, so courts might be lying vacant. If a high volume of cases is then going to the specialist court, I am not sure that we can deliver certainty.

Thank you. Do you wish to respond, Marsha?

Good morning, panel, and thank you very much for your evidence so far. It is very persuasive with regard to whether—perhaps John Swinney was getting to this point—the changes that we need to make are structural.

As legislators, we are being asked to look at structural changes, such as changing the nature of the court and abolishing the not proven verdict, which you might be in favour of. However, what I hear from you all, time and again, is that it is about the treatment that you experience in court and the exclusion from the system that you feel. In the system that has grown up, you are not seen as part of the public interest. As Anisha Yaseen said, you do not even have the right to call certain people—that is very common—but when you are needed, you have to be there.

I am thinking deeply about the extent to which the changes that need to happen centre around what we can do to fundamentally change the system, which is culturally broken for a lot of victims. Like John Swinney, I have asked about the role of the advocate depute. In my mind, their role is really important.

Sarah Ashby spoke very eloquently. Your positive experience seems to be fundamental to how you feel and perhaps in relation to how you feel about the court trial itself. However, I have heard of cases in which people who have been accused of crimes have felt the same way as other witnesses: they consider that a question that they felt was fundamental to their trial was not asked, and I do not think that that feeling would be exclusive to them. I suppose that the balance that we need to strike is the extent to which people should have access to the advocate depute in order to have a voice.

There are two elements to that. The first element is when the trial is being conducted. Hannah Stakes mentioned not being able to ask why an argument had not been made. The second element is when people are in the witness box. I have heard other witnesses say, “I never got to tell my story” or, “You didn’t ask me that question.” Hannah McLaughlan said earlier that she wanted someone to throw her a “lifeline”. Those seem to be common experiences.

Given all that, do you agree that the priorities for legislators, or people who are in charge of the system, should be centred around making changes of that kind, to those elements, rather than on making structural changes? That is not to say that structural changes are not important. What do you think about that?

Thanks for that. This is my final question. The proposal to have a specialist court was mentioned earlier. Lady Dorrian recommended that such a court be part of the High Court, but that is not what is in the bill. I am not too clear in my mind what that court would be. It would have national jurisdiction, and we know that it would be trauma informed—there are a lot of important aspects to that—but it will not be part of the High Court. That means that it would not necessarily be the same lawyers, and sheriffs could sit as judges, but perhaps that does not matter. Those are the things that we as a committee must consider.

Sarah Ashby spoke strongly in relation to the importance of the High Court. Rape trials can be conducted only in the High Court, and some sexual offences go to the High Court or to the sheriff court, depending on the severity. If you have a view on that, that would be great to hear.

Good morning, and thank you for giving us your time. I have heard some of your evidence before and some of it has really stuck with me. There are two issues in particular that I want to come back on.

What all of you—and other survivors—have said about not being able to tell your story about what happened to you, because of the court process, really resonates with me.

Ellie, you talked about advocate deputes prosecuting cases, and others have said the same. We will hear from someone on the next panel who had a more positive experience, when they had the chance to sit down with the advocate depute. I think that you also spoke about this issue, Hannah. I have heard so many times about the frustration of having to listen to the case being put when what you think is crucial to your case is not put before the court. Hannah, you talked about feeling that you needed to be thrown a lifeline because of that.

Aside from obvious failings in the system, the apparent reason for that is that the role of the prosecutor is to prosecute “in the public interest”. That term keeps the victim out of it. It strikes me that that is part of what needs to change. I have been really interested in advocacy and the right of victims to have an independent advocate, but I am now more interested in the right of the victim to have conversations before and during the trial with advocate deputes. That practice is not that common, but it does happen. Would each of you like to say how important you think that that would have been in your particular case? Ellie, would you like to answer first?

Thank you. Hannah?

There is a fine balance to be struck, because I imagine that an advocate depute would say that they were the best judge of what the best evidence was. I would accept that, but there are certainly cases that I have heard of in which the case would have been put better if the victim had been able to say, “You missed something really important.”

Rape Crisis Scotland makes reference to that in its submission. Is there a view about where you should be in the court once you have given your evidence, or do you just want to be able to see the on-going trial?

In the interests of time, I would find it helpful if you would elaborate a bit further on what you have said are exceptional circumstances. Will you stick by that? The language is important. I understand that exceptional circumstances would be exceptional. I know that you cannot always guess what they might be, but I would be grateful if you would provide that information.

I have a further question. Most parliamentarians in the Scottish Parliament have taken part in debates about violence against women, and we are agreed that men are the problem—male violence is the problem. When a transgender woman has committed a serious violent offence against a man, would that not suggest that they pose a risk to women? I wonder why you did not include that category, if you like. Does that make sense?

So, a female officer could go to her line manager and say, “I am not happy to search that person,” and that would be okay.