Criminal Justice Committee 26 March 2025
We do not even have the costs or a correct financial memorandum. The initial cost for the set-up of the court was £1.4 million, and there are recurring costs. We have already agreed to the victims commissioner, but it was going to cost £640,000 to implement that and the recurring costs would be around £615,000. For the court, there is a one-off cost of £2 million and recurring costs of around £1 million. If that is, indeed, new money coming into the system rather than being taken off victims charities, which has been raised as a concern, how many bairns’ houses would we be able to buy with £2 million? The recurring costs of £1 million would keep them going. Taking that measure would make a huge difference to victims of sexual offences. Given the recent statistics on sexual offences against under-16s, that would be a better use of our money, because it would provide support and trauma-informed practice in dealing with youngsters, which would help them to provide solid evidence to get those who are guilty of those horrible crimes convicted and put in jail.
That, in my opinion, would be a better use of money, and I have real concerns about the sexual offences court. It sounds great, but how will it work in reality, and how will it be put into practice for solicitors, lawyers and everyone else who works in the system? Concerns have been raised about the practicalities of defence solicitors being available to meet the national jurisdiction of the sexual offences court. Simon Brown of the Scottish Solicitors Bar Association pointed out that fewer than 500 defence solicitors are working in Scotland and called it “a dying profession”. It seems to me highly unlikely that enabling the courts to sit at 38 locations across Scotland could be made to work in practice when defence solicitors already have demanding workloads and would face increased travel and other expenses if they were to attend the new court.
The same would apply to sheriff court staff, who would likely be transferred or redeployed to the new court. The costs associated with redeploying 25 clerks, as well as other court staff, to support the sexual offences court is estimated at £235,000, and the cost of regrading sheriff court clerks to work in High Court procedure for the new court is expected to be around £465,000. I do not believe that those costs are justifiable when it is perfectly possible to achieve the same aims by integrating trauma-informed practice in the existing court structure and creating a new division in our existing courts.
As will be discussed in more detail later, survivors of sexual crime have made it clear to the committee that they have real concerns about the perceived downgrading of rape trials if they are moved from the High Court to a new sexual offences court. Rape survivor Ellie Wilson said:
“Rape is one of the most serious crimes in Scots law; such cases are only ever heard in the High Court. That solemnity is sacred, and it is important that we maintain it.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 4.]
Rape survivor Sarah Ashby similarly told us:
“I would not like for such cases to be dismissed or for us to be made to feel that they are any less significant than they are. When you get the information through that the trial is going to the High Court, there is an element of realising how important that is.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 43.]
If that is how survivors feel, we should listen to them.
That is also the position of the Faculty of Advocates and of experienced lawyers such as Tony Lenehan KC. We have a hierarchical court system for very important reasons, and I am greatly concerned that creating a crossover between two distinct levels in that system might have unintended consequences that will cause more harm than good.
It is also unclear how the divisions between High Court and sheriff court cases will operate in the new court. The bill provides for the merging of High Court and sheriff court cases, to be heard by judges and sheriffs collectively as judges of the sexual offences court. Concern was raised by the Law Society of Scotland, which highlighted the impact that that could have on the sentencing process by potentially increasing the sentencing powers of sheriffs sitting in the new court.
My concern is that the creation of a new sexual offences court sounds good on paper but would do little in practice to address the real issues in our court system or to deliver the changes needed to help victims, particularly regarding the delivery of improved trauma-informed practice. That is despite survivors such as Anisha Yaseen telling us:
“It does not matter how much legislation you throw at this, because the issue is the culture. Nothing will change—no matter how many things you put into place—without a change in culture.”—[Official Report, Criminal Justice Committee, 17 January 2024; c 41.]
I agree with that, which is why I do not support the creation of the new court and will move the amendments in Russell Findlay’s name.