Hansard

I am very pleased to speak in this afternoon’s debate on behalf of the Criminal Justice Committee. I extend the committee’s sincere thanks to the clerking team, who worked tirelessly to support members in what was a significant piece of work, and to colleagues from the Scottish Parliament information centre and the participation and communities team—PACT—who also supported the committee throughout our consideration of the bill at stage 1.

The committee’s stage 1 report has been a major piece of work. From the outset, we were clear that we needed to take the necessary time to consider the bill in a thorough and balanced way. Beginning in September last year, we took 36 hours of oral evidence over 14 meetings. We received 262 responses to our call for views and heard from 64 witnesses. Our report is 200 pages long.

Not everyone will agree with all our conclusions, but we ensured that we heard all sides of the arguments on the main issues. Throughout our report, we referred to the important evidence that we heard from survivors of sexual crime, and I thank all those survivors who gave evidence. Their evidence was powerful and invaluable in helping us, as members, to shape our thinking about the bill.

The words of one of those survivors remind us all why the bill is so important:

“when we talk about what happened, each one of us mentions the exact date that our case went to trial. We remember the date that we were raped, but we also remember the date that we went to trial, because they are as traumatic as each other.”

I acknowledge the constructive way in which my fellow committee members worked together to scrutinise the bill. As a result, a great majority of our report was agreed unanimously.

I wish to highlight the main conclusions and recommendations that were reached by the committee. I will leave it to others to comment on the Scottish Government’s response to our report, but I thank the Cabinet Secretary for Justice and Home Affairs for her constructive engagement with the committee throughout stage 1 and for her willingness to consider changes to the bill following our recommendations.

Turning, first, to part 1 of the bill, on the proposal for a victims and witnesses commissioner, we heard evidence about the potential benefits of establishing the commissioner post. The commissioner could champion the voices of victims and witnesses, highlight areas of concern to policy makers and promote good practice. However, the committee heard about the wider implications of creating a new commissioner post, including the costs associated with having another commissioner at a time when public finances are under significant pressure. We also heard concerns that the commissioner could be another layer of bureaucracy and could stand in the way of victims and advocacy groups engaging directly with policy makers.

Overall, we remain to be convinced that a strong case has been made for the establishment of a commissioner. Instead, better outcomes may be achieved by focusing spending on areas where there is a more direct benefit for victims and witnesses. We recommend that, if a commissioner post is established, it should be for a time-limited period to allow for an assessment to be made of the value of the role.

Part 2 of the bill proposes embedding trauma-informed practice in the criminal justice system. As a committee, we support that objective. Some of the evidence from survivors about the trauma that they experienced as a result of their treatment in the justice system was truly shocking to hear. We made several recommendations about how that part of the bill could be improved. For example, the definition of trauma-informed practice should be strengthened to bring it in line with the knowledge and skills framework created by NHS Education for Scotland.

We concluded that training in trauma-informed practice should be extended to include defence lawyers and judges participating in all court proceedings. Although we recognise the independence of the judiciary, we recommend that court rules should require that court proceedings must be conducted in line with trauma-informed practice. We noted that legislation is not necessarily required to deliver improvements, and survivors highlighted improvements that could and should be delivered now.

Part 4 of the bill proposes to remove the verdict of not proven in criminal cases and to reduce the size of juries from 15 to 12, with a majority for a guilty verdict set at eight. Those are fundamental reforms of great significance to the criminal justice system. On the basis of the evidence that we heard, we concluded that the not proven verdict has had its day and it should be abolished. We do not think that it is satisfactory to have a verdict that has no accepted legal definition and cannot be explained to a jury. Furthermore, we heard compelling evidence about the devastating impact that the verdict can have on victims and, sometimes, the accused. The proposed changes to jury size and majorities are designed to balance the system as the Scottish Government believes that abolishing the not proven verdict will make convictions more likely.

However, we received contradictory evidence about whether those balancing changes are in fact needed. Notably, the Lord Advocate told us that the proposed changes were “very concerning” and that it was her view that acquittals could increase as a result. That left us in a difficult position when it came to drawing conclusions, given those conflicting views. Ultimately, although we supported the abolition of the not proven verdict, we did not hear compelling and convincing evidence to support the balancing changes to jury size and majorities proposed by the Scottish Government in the bill. Unfortunately, we also did not hear convincing evidence in support of any specific alternatives proposed by others. As such, we agree that the not proven verdict should be abolished and that further thinking needs to be done on what else, if anything, is required.

Part 5 of the bill proposes the establishment of a new sexual offences court, which would have the power to deal with a wide range of serious sexual offences, including rape, and other charges appearing on the indictment, including murder. Its jurisdiction would extend across the whole of Scotland.

Some members support the proposal for a new sexual offences court. For those members, the model of a new sexual offences court has the potential to deliver improvements in the handling of sexual offence cases that cannot be realised using existing mechanisms. Other members do not support a stand-alone sexual offences court. Their view is that it would be possible to achieve the necessary improvements through the creation of a specialist division of the High Court and the sheriff court.

Despite that difference of views, we agreed on a series of recommendations to enhance the proposals in the bill. For example, we made recommendations about the level of legal representation that should apply in the new court. It is important that there should be no perception that a sexual offences court lacks seriousness or solemnity. We also recommended that the Scottish Government amend the bill so that any case involving murder can be tried only in the High Court, as happens now.

I turn to the proposal to pilot judge-only trials for rape cases without a jury. That is a very controversial proposal on which there has been considerable debate. In our report, we set out in detail the wide range of views that we received. Ultimately, members of the committee reached different conclusions as to whether the pilot should go ahead and under what conditions. Those positions are set out in detail in the report. However, we made a series of recommendations, which were all agreed to by members.

We recommend that more details about the criteria for assessing the pilot should be included in the bill. Any regulations that are introduced for a pilot should be subject to more detailed consultation and parliamentary scrutiny, with time allowed for detailed consideration of draft regulations. We recommend that the Scottish Government should amend the bill to make it clear that the pilot could be run only once. Finally, we highlight the idea that an alternative to a single-judge trial would be a panel of judges.

I have given a short summary of some of the committee’s main recommendations, and I refer members to our conclusions on other parts of the bill.

Part 3 would expand the availability of special measures in civil cases. Part 6 would provide for independent legal representation for complainers when applications are made under rape shield provisions, and it includes provisions for automatic statutory anonymity for various sexual and related offences. In summary, we supported those provisions in principle, but we made some recommendations for improvement to the details in the bill.

Although the committee is content to agree to the general principles of the bill at stage 1, we note that further improvements can be made. Committee members did not support every proposal in the bill, but we all recognise that it has the potential to improve the justice system for victims and witnesses, and we wholly support that. For some members, the final composition of the bill at stage 3 will determine whether, ultimately, they feel able to support it. In the meantime, we stand ready to give the bill our detailed scrutiny at stage 2.