Hansard

I greatly enjoyed my time on the Justice Committee in the previous session and often find myself missing it, but I do not envy Audrey Nicoll and her colleagues the task of scrutinising this wide-ranging bill. However, I sincerely thank the Criminal Justice Committee for its diligent work, and I add my tribute to the survivors of rape and sexual assault, in particular, for sharing their experience and informing what I think is an excellent stage 1 report.

I also thank the cabinet secretary and her officials for the time that they have taken to engage with me on the many issues arising from the proposed reforms. We have not always agreed, but I am grateful for the characteristically constructive way in which the cabinet secretary has gone about that task.

This is a tricky bill to speak to, as others have alluded to. It is both expansive and complex, and its complexity is born not just of the number of provisions but of their variety. Russell Findlay made that point. The bill brings together the recommendations of Lady Dorrian’s review, alongside other changes. Matters are further complicated by the fact that important changes, which have long been demanded by women’s groups and victims groups, have recently been introduced not by Parliament but from the bench.

In last year’s Lord Advocate’s reference, by overturning Smith v Lees, the High Court appears to have overhauled the principle of corroboration as it applies to sexual offences. As a result, the situation that faces Parliament now, as it considers the bill, is very different from that which applied when the bill was introduced, let alone when Lady Dorrian came forward with her review.

Of course, there are reforms in the bill that are needed—and which, some would argue, are long overdue—and that enjoy fairly widespread support. For example, the introduction of independent legal representation for complainers is very welcome. At present, under section 275 of the Criminal Procedure (Scotland) Act 1995, complainers can be questioned about aspects of their

“sexual behaviour not forming part of the subject matter of the charge”.

In reality, that has often opened up a situation in which victims have their privacy violated.

The recent legal victory by pioneering campaigner Ellie Wilson against the advocate who cross-examined her will, it is hoped, lead to real change on that front. However, we should not be placing the burden on victims to fight long and drawn-out battles just for the right to decent, fair and respectful treatment in court. They deserve the right to have someone who will fight their corner. That is what the bill gives them, and Scottish Liberal Democrats warmly welcome that reform, as well as the reform to confirm the anonymity of rape victims. Russell Findlay was right to pay tribute to the media for the way in which they have observed that in practice.

Other aspects of the bill are more concerning. Although I do not have time to go into each of those, I will touch on a few that other members have mentioned. The first relates to the introduction of a specialist sexual offences court and a pilot of juryless trials. I recognise the rationale for those proposals and the reasons why Lady Dorrian came forward with her original recommendations. Nevertheless, I still share the concerns that have been expressed by many, both within the legal profession and among colleagues across the parties, in relation to that aspect of the bill.

Overturning a key tenet of our legal system in Scotland was always likely to stir up a reaction. I know that the justice secretary has sought to respond constructively, but I think that it is fair to say that she has so far been unable to allay those concerns. Defence practitioners have made clear their outright opposition, which makes it unclear how any pilot might work, or indeed what success might look like.

Postponing the pilots until 2028 may sound like a compromise, but it raises the question of why on earth Parliament would put a provision in a bill today, rather than leaving it to a future Government and Parliament to decide, further down the line, whether it was felt to be necessary or appropriate in the light of circumstances at that time.

The Diplock standards for juryless trials elsewhere in the UK include an expanded right of appeal for the accused on matters of fact as well as law. That is a safeguard against case hardening, in which judges, who may think that they have heard it all before, begin subconsciously deciding the facts based on their experience of similar cases and not on the merits of the evidence. The UK Supreme Court has reiterated the importance of that safeguard, as did the Dorrian review itself, yet the Government’s proposals include only a narrow right of appeal on matters of law. I understand that the justice secretary has indicated her willingness to make changes, but the proposal seems, at this point, to be beyond salvation.

On a more positive note, Scottish Liberal Democrats remain supportive of the proposed abolition of the not proven verdict, which—as Audrey Nicoll and others suggested—has had its day. Nonetheless, like many witnesses and members of the Criminal Justice Committee, and even the Lord Advocate, we are not convinced about the proposed changes to jury size and majority rules. That aspect may yet be salvageable, but the Government has its work cut out.

Plans to create a separate victims commissioner appear to be well meaning but are misguided. Instead of swelling the ranks of commissioners and ombudsmen, there is a much stronger case for using any resources that are available to support existing organisations that currently do invaluable work in supporting victims, highlighting their needs and advocating on their behalf.

With this bill, the cabinet secretary appears to be adopting the kitchen-sink approach to justice reform. I appreciate the attraction of doing so when it comes to the interests of victims and witnesses, but I worry that the Government may be biting off more than it can chew in a single piece of legislation. For that reason, while I will certainly be happy to take up the cabinet secretary’s offer of continued engagement, as I will with the committee, I find myself very much in the same position as Pauline McNeill in not being able to support the bill at stage 1.