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Committee

Criminal Justice Committee 02 April 2025

02 Apr 2025 · S6 · Criminal Justice Committee
Item of business
Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

A number of these amendments seek to amend elements of the sexual offences court, including what it will be able to do and what crimes it will be able to deal with.

On amendment 157, my intention and how things have come out might be two entirely different things, as is often the case, but my intention was to ensure that the crime of rape would be presided over only by a High Court judge. I appreciate that the cabinet secretary might say that that is what she would expect, but it is really important, when we are legislating, to nail down the detail on the expectations under the law. I would not be happy if the door were to be left open to any discretion whatever.

Amendment 69 seeks to leave out murder as a crime that could be tried in the sexual offences court. The senators of the College of Justice have said that murder should be tried only in the High Court and that “the anecdotal nature” of paragraph 280 of the policy memorandum

“gives no confidence that this ... constitutional change has been thought through properly.”

Paragraph 280 in the policy memorandum states:

“There are known cases in which sexual abuse perpetrated by an accused is alleged to have escalated over time, against multiple complainers, ultimately leading to a murder. Given the experience of the surviving complainers and the nature of their evidence ... the policy objective is to afford those complainers the benefits of the case being prosecuted in the Sexual Offences Court.”

On that, the senators stated:

“While this is undoubtedly true, there are not many such cases and the anecdotal nature of para 280 gives no confidence that this major constitutional change has been thought through properly. The appropriate place for charges of murder and attempted murder is the High Court. Murder is the most serious charge in the criminal canon. It is that charge which should determine the forum. The suggested change ignores the fact that in the very few cases where sexual offences are alleged against a surviving complainer, it is likely that the case will be tried before a judge who is also a judge of the sexual offences court and that most if not all of the benefits of that court will be able to be afforded to such a complainer.”

They continued:

“We remain firmly of the view that life imprisonment and OLRs”—

that is, orders for lifelong restriction—

“should be the exclusive province of the High Court.”

It would be a mistake if, in trying to sort out the status and importance of the sexual offences court, we in any way diluted the importance of the High Court of Justiciary, which will still be the highest court. I am happy to be contradicted on that, but I would challenge such a view. Under the Scotland Act 1998, the High Court of Justiciary will remain the highest court. It is a requirement of the Scotland Act 1998, and its integrity should be protected.

I move amendment 157.

In the same item of business

The Convener (Audrey Nicoll) SNP
Good morning, and welcome to the 12th meeting in 2025 of the Criminal Justice Committee. We have received no apologies. Agenda item 1 is continued considera...
The Convener SNP
We start with the group of amendments on the jurisdiction of the sexual offences court. Amendment 157, in the name of Pauline McNeill, is grouped with amendm...
Pauline McNeill (Glasgow) (Lab) Lab
A number of these amendments seek to amend elements of the sexual offences court, including what it will be able to do and what crimes it will be able to dea...
The Convener SNP
I call the cabinet secretary to speak to amendment 180 and other amendments in the group.
The Cabinet Secretary for Justice and Home Affairs (Angela Constance) SNP
The amendments in this group feature a mixture of substantive and technical amendments related to the offences and cases that the sexual offences court—the S...
The Convener SNP
If no other member wishes to speak, I invite Pauline McNeill to wind up and to press or withdraw amendment 157.
Pauline McNeill Lab
It is hard to know how to respond when there has not been a full debate on my amendments. First, I made an error when I spoke to amendment 157. I do not full...
Liam Kerr (North East Scotland) (Con) Con
I am listening to the debate and genuinely trying to work out what to do for the best. I think that I completely understand Pauline McNeill’s intention. T...
Pauline McNeill Lab
You may remember that, in relation to a previous set of my amendments, I said that the same approach could be achieved by having a sexual offences division o...
Liam Kerr Con
Yes.
Pauline McNeill Lab
You can achieve the same thing. A High Court judge—Lord Bracadale, for example—who sits in the High Court could sit in a newly created sexual offences court ...
Rona Mackay (Strathkelvin and Bearsden) (SNP) SNP
I understand what you are saying, and I totally agree with that. I am now a bit confused about whether you approve of the setting up of a sexual offences cou...
Pauline McNeill Lab
I will rehearse the same argument as I rehearsed last week. I do believe that there should be a specialist element but, as I have argued from the beginning, ...
Rona Mackay SNP
I will repeat what I said last week. I understand your argument, but I do not think that anything different will happen unless the new court is set up, becau...
Pauline McNeill Lab
It is clearly a difference of opinion about how to achieve the same end. I feel as though I am arguing something that was part of last week’s debate—what I a...
Liam Kerr Con
I do not think that you are taking up too much time. This is really interesting, and it is clear that your colleagues are trying to get to the bottom of what...
Pauline McNeill Lab
Yes—that is exactly right.
Liam Kerr Con
Great—thank you.
Katy Clark (West Scotland) (Lab) Lab
Will the member take an intervention?
Pauline McNeill Lab
Yes.
Katy Clark Lab
The cabinet secretary spoke about hierarchy as a negative—she said that we should not have a hierarchy. As Pauline McNeill knows, at the moment, the people w...
Angela Constance SNP
Will the member give way?
Katy Clark Lab
I am actually making an intervention on Pauline McNeill. I will hand back to her.
Pauline McNeill Lab
I am happy to give way to the cabinet secretary.
Angela Constance SNP
I reiterate the point that sheriffs and sheriffs principal sit as temporary judges, so they currently preside over rape cases in the High Court.
Katy Clark Lab
They are sitting as temporary judges and they have been certified for that purpose. Our understanding is that the proposed sexual offences court would have a...
Pauline McNeill Lab
I agree. On the question of hierarchy versus practicalities, it is possible to get both. As I have said, the specialist nature of a sexual offences court can...
The Convener SNP
The question is, that amendment 69 be agreed to. Are we agreed? Members: No.
The Convener SNP
There will be a division. For Clark, Katy (West Scotland) (Lab) Dowey, Sharon (South Scotland) (Con) Kerr, Liam (North East Scotland) (Con) McNeill, Pau...
The Convener SNP
The result of the division is: For 4, Against 4, Abstentions 0. As convener, I use my casting vote to vote against the amendment. Amendment 69 disagreed to...