Chamber and committees

I would like to pursue the issue of accountability, if I might, because I am struck by the point that Kate Wallace made and that Dr Scott has just made about the importance of things changing in response to concerns about practice. We have to be really careful about the fundamental dilemmas that exist in relation to expectations about a victims commissioner.

I want to talk particularly about accountability around the Crown and the legal profession, so that the committee can understand your perspective about where accountability should be exercised in the proposed provision. Would it be your view, for example, that a line of accountability has to exist between the Crown and the victims commissioner for the decisions that the Crown makes in relation to criminal cases?

Can I come back in on one point? The issue of accountability and the role for the victims commissioner, which Ann Marie Cocozza has properly set out, is at the heart of the proposals. The point about accountability on which we interacted earlier raises pretty significant issues about how our system operates. If the Lord Advocate was here, she would say, “I am independent”; if the chief constable of police services in Scotland was here, she would say, “I am independent”; and the Scottish Courts and Tribunals Service would say that it is independent. What I am getting at in my line of questioning is how we can fulfil the legitimate aspirations, which Ann Marie Cocozza has put on the record, about ensuring that the standards are properly applied and that people are properly treated. That is the big test that we all want to pass with the bill.

I am interested in the linkage between the bill’s provisions on trauma-informed practice and the provisions in parts 5 and 6. Forgive me for being specific here, convener, but I note that section 43(4) says:

“In carrying out the responsibility imposed by subsection (1), the President must have regard to the desirability of doing so in a way that accords with trauma-informed practice.”

I am keen to understand how satisfied the Government is that the bill’s provisions will result in a genuinely more trauma-informed experience for victims. Sharon Dowey asked whether we could not achieve that simply by adapting our existing court system, but I tend to come to the view that the existing court system is so cumbersome and so heavily laden with procedure that it is difficult to adapt. I am interested to find out about the thinking that has been done to ensure that we can be satisfied that the sexual offences court would operate in a more trauma-informed way than could be achieved by adapting the existing court arrangements in Scotland.

I remind the committee and people observing that I sat in Cabinet when the bill was constructed. That is consistent with what I said to the committee in my declaration of interests a couple of weeks ago. However, I will not return to that every week that we discuss the bill.

There will be cases in which jurors are judged not to be appropriate to sit on particular trials, or become ill and have to stand down. In reducing the jury size, has consideration been given to the potential unintended consequence of the criminal justice system more regularly getting to a point at which a trial cannot proceed because jury numbers have become too low?

Despite the bill’s good intentions to strengthen the position of victims and reduce trauma, victims might inadvertently be put at risk of increased trauma, because reducing the number of jurors from 15 to 12 might increase the risk that the absence or loss of jurors will impact on the jury system’s effectiveness.

I asked the question because the degree of risk increases depending on whether we are talking about three out of 15 or three out of 12; the risk becomes greater. Have you considered the extent to which the turnover of jurors might be a factor in influencing people’s confidence that trials will proceed?

What consideration has been given to placing in statute—in the bill—a greater obligation on organisations to take account of the perspective of victims rather than establishing a victims commissioner? The provisions on the victims commissioner say, for completely understandable reasons, that the victims commissioner cannot look at individual cases but only at general conclusions arising out of particular cases or groups of cases. Would an alternative approach not be to put greater legal obligation on the various agencies that are involved to act in a manner that reflects the perspective and interests of victims?

I appreciate that answer. I will follow up by asking about an issue that, I suspect, contributes significantly to trauma—that of timescales and the amount of time that a victim has to wait for the process to reach some form of conclusion. I completely accept the cabinet secretary’s explanation of the fact that ensuring that trauma-informed practice is applied in all circumstances is the thinking that underpins the Government’s approach. Does the Government believe that the bill as drafted imposes a sufficient obligation on courts to improve timescales for the handling of such cases as part of the process of ensuring that trauma-informed practice is applied in all circumstances?

On that point, there is a lot of hope and aspiration in the comments that Ms McCloy has just put on the record. I am interested to ensure that that is turned into practical reality, and that we do not simply create a sexual offences court that looks awfy similar to existing courts. I am interested in how we are able to oblige that to happen.

I come to my last question. An element of the court process that we have not talked about so far is the conduct of the defence. I unreservedly accept the points in the policy memorandum about the importance of balance and the protection of the right to justice in the process. However, I cannot be the only person who has been horrified by the conduct of some defence solicitors in the way in which these matters are pursued in court.

The Government can introduce a bill that does all that it possibly can to apply trauma-informed practice to the conduct of cases considering alleged sexual crime, but what obligations will the defence be under? What approaches can be taken to ensure that the behaviour in the courts of our land that horrifies many of us is not replicated in the sexual offences court?

I will follow up on the point that Russell Findlay just advanced in relation to the adequacy of the immediate SPS review—I will call it the immediate review—and the immediate health service review of a death in custody. I understand that by statute there is a requirement for a fatal accident inquiry to be undertaken when somebody dies in legal custody. From the perspective of addressing the needs of the families, which you have powerfully put to us this morning, could those processes—I am not sure whether you are familiar with the content of those processes—provide sufficient information in advance of a fatal accident inquiry to, in essence, avoid the need for a fourth process to be added to the system?