Chamber and committees

This has just crossed my mind and you will probably not be able to answer it, but up until now, a trauma-informed approach has not been embedded in the system. However, juries—in cases in which there is a jury—have to make a determination based on what they see in court. Is there any evidence at all that you have come across in relation to juries and trauma? You will probably not have spoken to jurors, but do you agree that it is important to establish what the situation is in that regard? Ordinary people in juries watch the proceedings, and I would have thought that they would be able to read a person’s body language. Would people really need to be trained or could they see for themselves? Have you considered the reaction of juries?

It has struck me that, if we are being honest, successive Governments and Parliaments have tried to get a shift into community justice. That is my view.

We do not have time for you to answer my question, so perhaps you could follow it up with the committee. It would be helpful for our report, given the good evidence that we have had from you. First, what exact numbers are you dealing with? We do not have any sense of that. Secondly, and to wrap up, what I am hearing is that if you had even £250,000 or £500,000 more, you could do something with that. To quote Bill Fitzpatrick, you should not be given a penny more until you can justify it. I agree with that because public and judiciary confidence are essential to move it forward.

Could you follow up with the committee on the numbers and also give us some indication of whether, if you had the additional budget, you could hit the ground running with the things that would give the public and judiciary confidence that, instead of sentencing people to prison, they can sentence them to community services?

Do you see there being a contradiction? In the court system, there are thousands and thousands of witnesses, so there will be a bit of diversity there. The court system is, as Katy Clark said, adversarial, but the stories of all witnesses have to be tested in court. If they contradict themselves or if, to be controversial, it does not sound as though they are telling the truth, you would have to accept, whether we like the court system or not, that there must be a way of balancing trauma-informed training with—I think you said this yourself—the need to not interfere with the natural course of justice, to make sure that any contradictions in evidence are also picked up.

Thank you.

We heard from the previous panel of experts that trauma-informed practice is a universal application. I am trying to think about that for procurators fiscal in court. Is it practical to treat every single victim or witness as if they had a trauma? What trauma are we looking at? Is it the trauma of being in court? How will you train and advise your procurators fiscal and advocate deputes on court practices? I know that you cannot answer that question today, but it is what I would like an answer to in the long run. How are we going to balance this with fair justice to ask robust questions in court of all witnesses?

However, that is the problem. Ask anyone how easy it is to get through—it is not easy. That is the problem.

We have the pilot, which is welcome. Russell Findlay is quite right to say that we need to make sure, if we proceed with the pilot and assess it, that the process is easy and accessible.

There was coverage of the issue this morning on BBC Scotland, which quoted the figure of £100 an hour for obtaining a transcript of Scottish court proceedings. If the courts are transcribing court cases, which I presume they do for the purposes of recording and publishing proceedings and appeal processes, I do not understand why there is not a simpler process for making those transcripts available. There is a question about whether that is desirable, but that is a thought that struck me. Perhaps the committee might want to think about getting an answer to that during the assessment of the pilot.

My apologies to everyone for being late. Feel free to stop me if I have this wrong on part 1, because there is a little bit of crossover, but I understand how we are doing this.

On the question of the establishment of a commissioner, it strikes me that what you might be setting out are the arguments for and against a commissioner as against some of the inadequacies in the system for the rights of victims and complainers to know what is going on. You said, I think in answer to Sharon Dowey, that the bill does not really give any rights. Is it a question of creating a victims commissioner that would not take on individual cases but could investigate certain matters as against giving complainers the legal right to know what is going on with their cases? Might that be a better alternative, if you see where I am going with this? That is the way I see it. Would the money be better spent in giving those rights? Do you think that we should put a duty in the bill to provide information to complainers and victims about the status of their case?

I will just finish on this. In previous sessions, the Law Society and the legal profession have pointed out in relation to the delays that it is impossible even for practitioners to know when their case will be called. There is no transparency around whether a case will be called in time or whether powers will be used under the Covid legislation. I understand, having questioned the Scottish Courts and Tribunals Service on this, that it will be down to the availability of counsel and courts. I am not suggesting that one case is being preferred over another, but I am clear in my own mind that currently, as the delay gets less, there is still no transparency around when cases are called.

Fundamentally, my focus is on giving victims better rights to know when their court case will be heard. Do you see that as a question of a victims commissioner versus other things that we could do in the bill to make that better? I am sorry that question was so long.

My points might have been covered by what Stuart Munro said about the changes in the system. I will follow on from Rona Mackay’s line of questioning. I agree with her that we have heard about poor practice and more-than-robust cross-examination. Cross-examination must be robust—it is the nature of the system when someone faces a jail sentence—but, over the years, lots of bad examples have been reported in the press. Anecdotally, some practitioners will say that in such cases, there have been failures of the prosecution and judges to intervene. I know of one case in particular.

In the early years of this Parliament, section 275 was added to the Criminal Procedure (Scotland) Act 1995. Our predecessor committee was so willing to change the processes to protect victims who had experienced trauma not just because of the failure of the defence in its efforts to be robust and not cross lines, but because of the failure of prosecutors to raise things such as previous offences. Judges in particular were criticised for not intervening when a witness was clearly traumatised by a line of questioning.

Do you accept that the whole system makes witnesses feel traumatised? Given what you have said about the experience of the commission, will judges be forced to ensure that robust cross-examination does not result in the witness being traumatised in the process?

I agree with John Swinney. In my experience over the years and in more recent times, families have to make representations about the release of a body in unexplained circumstances, particularly on religious grounds when burial within a certain period of time is required. There is huge pressure on the Crown Office and Procurator Fiscal Service and pathology services to do that. To say that the process should be driven forward not by the COPFS but by the Government is quite a radical proposal. I do not know enough about the issue to comment on whether that is the right approach.

We have absolutely no time, but it strikes me that we would want to know a bit more about what modernisation of pathology services has taken place. Some families have made representations to the Parliament about the trauma that they have experienced and about the need to change the principles according to which pathology investigation is done, which is not within the parameters of what we are talking about here. Whoever is in charge of the service in the long run, we need to be assured that pathology services will be modernised so that we can have the most efficient service. We can then take a view on who is best placed to run it to achieve the required change in the dynamic of the process.

I have a couple of points of clarification, probably for Sandy Brindley. In the civil cases that you refer to, are you talking about where there has been a conviction?