Hansard

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 SOC—will have jurisdiction to hear.

My position is that the SOC should be given a broad jurisdiction to ensure that its benefits are extended to as wide a cohort of victims of sexual offences as possible, while ensuring that the way in which that is done protects the court’s resources. It will then be for the independent prosecutors, acting with the delegated authority of the Lord Advocate, to decide whether to indict specific cases to the SOC, based on the facts and circumstances of that case. It would disadvantage victims if we were to place arbitrary restrictions—in my view—on the cases that the SOC can hear.

We have just heard from Pauline McNeill on her amendments 157 and 69, and I appreciate her comments on her intentions. I have a different perspective on the matters that she raises, and I am particularly concerned about the impact that amendment 157 would have if agreed to.

Amendment 157 would restrict the SOC to being able to hear only cases that can be prosecuted on indictment in the sheriff courts. In effect, it would mean that the SOC could not hear cases that included an offence of rape or murder, on the basis that those offences cannot be prosecuted in the sheriff courts.

I have significant concerns about the suggestion—whether it be Ms McNeill’s intention or otherwise—that the SOC should be prevented from hearing rape cases. Rape is, without question, the most serious sexual offence that can be committed against an individual and, as such, it is victims of that offence who arguably stand to benefit most from the specialist trauma-informed approaches that will be at the heart of the sexual offences court.

We will not have a credible or effective sexual offences court that will deliver for the very victims for whom it is intended to deliver if rape is excluded from its jurisdiction. Depriving victims of rape access to the SOC while victims of other sexual offences benefit from the important reforms that it will introduce seems to me to be without justification and would serve only to exacerbate existing challenges that those victims face when interacting with the courts and the criminal justice system. I would also add that sheriffs sitting as temporary judges can currently preside over rape cases in the High Court. I therefore strongly urge members to reject amendment 157.

I also ask members of the committee to reject Ms McNeill’s amendment 69, which would remove murder from the SOC’s jurisdiction. Following the committee’s stage 1 report, I have carefully considered whether the SOC should be able to hear an offence of murder where it appears on the indictment alongside a qualifying sexual offence.

I respect that there is an argument for and against that. However, I remain of the view that there is a clear rationale for empowering the SOC to hear murder cases when combined with sexual offences charges on the same indictment. Indeed, that view was articulated at stage 1 by the Lord Advocate, and she gave the committee specific examples of such cases, which she has recently repeated in correspondence to the committee. On balance, I have heard no compelling rationale for depriving such victims of the specialist, trauma-informed approaches that will be a key feature of the SOC.

I acknowledge the view that the role of the High Court of Justiciary, as Scotland’s superior criminal court, means that it is the proper place to hear cases that feature an offence of murder. However, on balance, I believe that our paramount concern should be the experience of complainers and that we should not be constrained by court hierarchies and tradition. Historical function and status have not delivered the system that we want for victims of sexual offences. I want all victims and survivors of sexual offences to be able to have their case heard in a forum that is specifically designed to support them.

I now turn to my amendment 218, which will ensure that the new evidence exception to the rule on double jeopardy applies to all cases that are prosecuted in the SOC. The new evidence exception will allow the Lord Advocate to apply to the High Court to set aside an acquittal where the statutory test that is set out in section 4 of the Double Jeopardy (Scotland) Act 2011 is met.

That test broadly relates to the emergence of new and compelling evidence that was not available at the time of the original trial and which would appear to show that the accused might be guilty of the offences of which they were previously acquitted. The High Court considers the Lord Advocate’s application and decides whether an acquittal should be set aside and permission for a new prosecution granted. At present, the new evidence exception can be sought only in cases that were originally prosecuted in the High Court, but in recognition of the serious offences that will be heard in the SOC, including rape and murder, I consider it important that the new evidence exception apply to that court, too.

As well as allowing cases heard in the SOC to be reprosecuted under the new evidence exception, amendment 218 will allow such cases to be retried in the new SOC to ensure that complainers can also benefit from the specialist, trauma-informed approaches that it will introduce.

Amendment 218 will also require that, where an accused who is being prosecuted in the SOC makes a plea to the judge against prosecution on the basis that the indictment relates to offences for which they have previously been acquitted, the plea be remitted to the High Court for consideration. That will ensure that the High Court retains sole authority to grant the right to bring a retrial under the new evidence exception.

The remaining amendments in this group are technical in nature, their primary purpose being to ensure that the SOC has appropriate jurisdiction and will function as intended. Amendments 180 and 181 make it clear that the SOC will have jurisdiction over non-sexual offences that appear on an indictment alongside a qualifying sexual offence from the point at which the indictment is served on the accused. They put beyond doubt that the SOC will be able to take action in relation to non-sexual offences, such as accepting guilty pleas, before a case reaches trial.