Chamber and committees

Is the Law Society active in protecting the interests, perspectives and experiences of complainers and victims who have been on the receiving end of what all of us would judge to be inappropriate conduct?

That analogy is fair, and I accept it, but my point was that there must also be a regulatory element, because I worry about conduct.

The profession is very exercised about all aspects of supposed interference in its regulation. I have heard that over many years. However, some people are ill served. In my humble opinion, the profession does not have the strongest foundation for its position.

My question follows directly on from that point. Mr Di Rollo told us that he appears in cases in front of judges and it is an analytical experience, if I can express it that way. Is there something philosophically wrong with that concept? Sheila Webster and Mr Lenehan talked about the importance of being judged by your peers, but juries are selected from the full range of the population. On juries that are looking at sexual assault cases involving 18 and 20-year-olds, there will be a lot of 50-year-old men and 60-year-old women who, frankly, in my humble opinion, grew up in a different world from the one that we now live in. I speak as a just-about-to-be-60-year-old man—it is full disclosure here today.

I am struck by Mr Di Rollo’s earlier point that his cases are heard by a judge, which is fine. Everyone says that that is okay, so what is wrong with it in these cases?

My point is that Mr Di Rollo has put on the record that he is able to stand in front of a judge and get an analytical experience and a statement of reasons, and I am asking whether there is something philosophically wrong with that.

Okay—we will hear from Mr Di Rollo in a second, which I look forward to.

The problem that I have with that is that, last week, we had six witnesses in front of us who had all been involved in sexual offences cases, and they would not say that that was their experience.

Let me place a quote from Lady Dorrian on the record. I thought that it was an incredibly powerful quote from her appearance before the committee on 10 January. She said:

“We have, of course, managed to bring in the changes in the way in which juries are directed and so on, but even if they were brought in rapidly, they are still being done in a piecemeal way. They are not being done in a principled way, with the underpinning of a whole court that is dedicated to trauma-informed practices.

One of the things that we said in the report was that, if we do not seize the opportunity to create the culture change from the ground up that Mr Swinney spoke about, there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.”—[Official Report, Criminal Justice Committee, 10 January 2024; c 22-23.]

I found that to be a powerful comment because it addressed directly the argument about piecemeal change that we are wrestling with—that is what I have heard—versus a substantial departure from some of the traditional norms that Sheila Webster talked about, which can be very off-putting to individuals involved in the judicial system.

I am keen to understand the reluctance to fully absorb and incorporate the ground-up culture change that Lady Dorrian talked about. I worry that Parliament might legislate in one part of the bill for trauma-informed practice, but not see it happen in courts throughout the country.

This has been a helpful airing of some of the interactions that I will come on to in a second, but if we doubted the necessity of legislation, we need only look at Lady Dorrian’s remarks last week, when Russell Findlay valiantly put a quote to her from the Faculty of Advocates submission that

“there is no single feature of the proposed court which could not be delivered rapidly”

through existing mechanisms.

Lady Dorrian replied:

“We have, of course, managed to bring in the changes in the way in which juries are directed and so on, but even if they were brought in rapidly, they are still being done in a piecemeal way. They are not being done in a principled way, with the underpinning of a whole court that is dedicated to trauma-informed practices.

One of the things that we said in the report was that, if we do not seize the opportunity to create the culture change from the ground up that Mr Swinney spoke about, there is every risk that, in 40 years, my successor and your successors will be in this room having the same conversation.—[Official Report, Criminal Justice Committee, 10 January 2024; c 22-23.]

There are a lot of moments from the evidence taking that are not going to leave me. A lot of them happened this morning, from our six witnesses earlier and from this session, but that moment with Lady Dorrian registered with me.

That brings me on to think that the process has got to involve a combination of three things. The first is legislation, because Lady Dorrian’s recommendation is that we have to really have a go at this. Piecemeal change and incremental change have been played around with and have not worked. The Lord Advocate took the same view last week.

We also need cultural change, which is about trauma-informed practice. Absolutely nothing should happen in the process that is not trauma informed, so we need legislation to underpin that.

Then we come to the thorny issue of regulation of the profession. I am interested in Sandy Brindley’s comments about ticketing. If there is to be an underpinning of the approach to participate in the specialist court by ticketing, so that everyone who takes part has to be trauma informed, there has to be a requirement or a possibility that the ticketing can be removed—and removed timeously—when people do not follow the principles that are expected of them. I would be interested to hear panel members’ views on whether they are confident that that will be the case.

I have a further question that develops the second part of what I am interested in. You made a point about defence counsel, which I take and recognise. One argument that is put to the committee is that the judge is there as a protection for victims to ensure that there is good order and process and a respectful environment in the court. I am interested in whether you think that that is the case. Could that role be deployed more effectively? For example, are there areas in which it might be assisted by a trauma-informed approach?

I was struck by a point that I think you made, Hannah, although I may have got that wrong. You said that the defence counsel is able to say something in the full knowledge that the judge will say, “Strike that from the record.” In fact, it was Ellie who made that point—I apologise. Despite what the judge might say, we all live in the real world, and what has been said is out there. That does not strike me as being part of a respectful environment: the fact that it is possible for a defence counsel to say what they like, in the full and certain knowledge that the judge will exercise their role in protection, as they should properly do, yet what has been said is already out there.

Thank you.

Good morning. Thank you very much for coming in to share your testimony with the committee, which is incredibly valuable for us. I do not doubt how traumatic it is for you to share that with us.

In the previous evidence session, the system was described as “a game of chance”. When I listen to the testimony that Sarah Ashby and Hannah Stakes have given, I am struck by the validity of that remark. We could not have had two pieces of evidence that made that point more emphatically.

That brings me to another point. Forgive me, convener, because I am going to stray away from the bill. We are here looking at legislation, but in your evidence, Sarah, one of the key points that struck me was that you were enlisted by the advocate depute as a key contributor to the formulation of the case and, Hannah, you were not. If there was ever a point for us to identify as a system failure, that would strike me as being a pretty big one.