 Good morning and welcome to the first meeting of the Criminal Justice Committee in 2024. We have no apologies this morning, and our first item of business today is an evidence session on the work of the review into improving the management of sexual offences cases in Scotland. We're pleased to be joined today by Lady Dorian, the Lord Justice Clerk and Senator of the College of Justice, and I refer members to papers 1 to 3. Lady Dorian chaired the review, which produced a report on improving the management of sexual offences cases. It's fair to say that the ideas in her report underpin many of the provisions of the Victims, Witnesses and Justice Reform Scotland Bill, on which the committee is currently taking stage 1 evidence. We're pleased that Lady Dorian is joining us this morning to speak about her report, and I intend to allow up to 75 minutes for this session. I invite Lady Dorian to make a short opening statement. Thank you, convener. The Lord President is grateful to the committee for accepting his offer that I come today to speak about the report of the review group. Members of the judiciary don't often attend Parliament to comment on the proposed legislation, and the fact that the Lord President has agreed that I should do so shows the support of the judiciary for many of the reforms proposed in the bill, particularly those foreshadowed in the review group report. Improving the experience of victims and witnesses in the criminal justice system has been of primary importance to me since I became a judge both before and after I became Lord Justice Clarke. I've either initiated or participated in a number of initiatives that have contributed to an improving picture. Those include the practice notes that I hope the committee has been given, which I arranged to be sent yesterday. I thought that it might be useful. The 2017 one was designed to encourage greater use of commissions and to give guidance about the issues that the court would expect to hear submissions when asked to grant an application. The 2019 one was really aimed at getting written questions in advance where children were giving evidence and to simplify the process. The evidence and procedure report is a process that started in 2013, but the report in 2015 of the review was transformative. I was a member of the steering group of that, chaired by Lord Carlaway, which was calling for new ways of thinking to transform existing procedures rooted in the Victorian era. It focused, as you know, on the benefits that would come from pre-recording the evidence of children and vulnerable witnesses and looking at what constitutes best evidence. That was followed up with the next steps report in 2016 to develop those proposals. A recommendation was made that all vulnerable witnesses should be able to give their evidence by pre-recording. There was a further report in 2017 making a large number of recommendations to enable wider use of audio-visual recording. Of course, the act in 2019 enshrined that for children in particular in the High Court, but giving scope for further development. All of the various measures drove a more than 20-fold increase in the number of applications for commissions granted between 2017 and 2023. They went from 33 in 2017 to 750 in the year to November of 2023. Even in the year following the 2017 practice note, there was a substantial increase. That is the single most effective measure of pre-recording, whether it is done by commission or preferably at an earlier stage by pre-recording by police interview, to enable the witnesses to give their best evidence. The sexual offensives review group followed on all of that, commissioned by the Lord President, and conducted a comprehensive cross-justice sector evidence-based exercise producing the suite of recommendations with which I'm sure committee members are familiar, but designed to bring about a sea change in the management of sexual offences, cases and focusing on what seemed necessary to improve the experience of complainers, without compromising the right to a fair trial. As you pointed out, convener, the report foreshadowed many of the provisions in the bill. It's worth pointing out that we found that, despite reforms stretching back 40 years to the first rape shield legislation, complainers were still at the time of our reporting unsatisfactory experiences. Largely, we felt that was partly anyway because those reforms had taken place on a piecemeal basis, a bit here, a bit there, without focusing on how they fitted into the overall picture of the prosecution of serious offences. The review group sought to review that by approaching it in a kind of holistic manner at making the six principal recommendations designed to develop a more complainer-centric system and to improve their experience significantly. With that introduction, I'm very happy to try to answer questions about my report. Thanks very much, Lady Dorri. That's a very helpful opening overview of the backstop, if you like, the backdrop to the review and just the amount of work that went on and has been going on for a number of years. As you say, I'm interested in your quote to introduce new ways of thinking rooted in the Victorian area. I wonder if I can open up, then, with a general question about the second recommendation in the report that relates to the establishment of the sexual offences court. It sets out a wide range of key features, including pre-recorded evidence, judicial case management and many others. I'm interested in whether the review considered whether similar benefits might be achieved through specialism within existing court structures. I'm looking at that from a practical perspective, in particular given the number of sexual offences cases that are reported to Crown Office is steadily increasing. We did, and one of the reasons why we rejected it was the very point that you're making, which is the number of cases. We felt that, given the increase that there has already been in those cases—and it's a continuing increase—year on year, those cases are increasing, and that increase is not as far as I can see going to stop. There are lots of reasons for that, and they are addressed to some extent in the report. Different ways of investigating by the police, the effect of numerous investigations going on elsewhere, and inquiries that reveal abuse, which then becomes a subject of prosecution—a whole raft of reasons. Our view was very firmly—I should say that the review group was unanimous on this. It wasn't unanimous on everything, but it was unanimous on this—that an approach was necessary, which went beyond tinkering, and went beyond creating a little specialist group within the overall judiciary. You'd need to do more than one anyway, because you could do a group in the high court, but you wouldn't be touching on the issues of solemn prosecutions of sexual offences in the sheriff court, which are also bound to be on the increase. We were concerned that the kind of piecemeal reforms that had taken place, which had been largely focused on the high court, I suppose, but there had been others, hadn't actually achieved the overall improvements that we felt were necessary. We recognised that there is a benefit, of course, in fitting the work in the hands of specialist judges. We can see that from other areas, but there are smaller areas, such as the commercial court. One of the big successes has been the focusing of work of preliminary hearings in the high court in the hands of a small group of judges. Until that happened, the bonomere reform was never really rooted, but that did have the effect. We felt quite strongly that simply creating another division of the high court, for example, would not achieve the necessary end. What was needed was a court of full national jurisdiction with the embedding of trauma-informed practices, common training of individuals across the court, uniformly applicable procedures—which, at the moment, is not the case between the sheriff court and the court of session—uniformly applicable practice notes and directions, which again is not the case, because the high court directions apply to the high court. The sheriff court and the sheriff principles in each sheriffdom are responsible for issuing directions in the sheriffdom. With uniformly applicable procedures, expectations and case management, uniform, whether from Dumfries to Wick, was what was required. We also felt that, and this was really important given the huge increase in the number of cases, that a national court of this kind would also enable greater and more efficient use of the whole court estate across the country and the judiciary across the country. That, we thought, was very important for a raft of reasons for delivering local justice for individuals, for minimising the effect on the judges who deal with those cases, because one of the issues was a concern about the knock-on effect of the traumatisation of judges having to deal with a whole lot of these cases. If you spread it more widely, that is less of a risk. We are also conscious of the fact that, so far as the high court is concerned, we have been told on more than one occasion by the Crown Office that there is an increase coming our way—I think that we have already started to see it—of serious organised crime, which will also be a drain on the resources in the high court. The idea—there were a number of factors behind it, but the main issue was that it would be a court of national jurisdiction uniformly applicable across the country. I could go on at length about it. That was a helpful and comprehensive answer. I think that one of the things I certainly have grappled with a little bit is around the practical application of our specialist court in a national context. You have helped to set out a lot of the benefits of this model, if you like. Did the review consider what the challenges around that would be more from a practical application? Obviously, the options—there is not an option to do nothing. The options are either you embed this in a new culture in a court that is of uniform practice across the country, or you try to embed it piecemeal in sheriffdoms and in the court of session. Either way—in the high court—there will be a requirement for specialist training, for judges, for staff, for clerks, for everyone. That is going to be necessary however you do it. You will probably get more detailed answers in this form SCTS, but we were not of the view that there were going to be significant issues in relation to that. One of the benefits would be that we would be able to have a greater use of the court estate. We would have many more courts available for use by the sexual offences court than are available at the moment, for example, in relation to the high court. I think that I have got figures somewhere if you would just give me a moment. The idea was that we would be able to do that. We would be able to have a much greater use of the court estate and of the judiciary. I think that one of the issues may be, if I can say so, is that, to some extent, the provisions of the bill are quite complex about the creation of the new court. They seem to have been based on the creation of the Sheriff of Hill court, which was a completely different model, a completely different animal. For example, some of the structural requirements and concepts, including the possibility that the president of the new national sexual offences court might be someone other than the Lord Justice general or the Lord Justice clerk, seem to be overcomplicated, and, if I may say so, counterproductive, especially given that it is the holders of these two offices that have driven all the reforms over the past 10 years. Another example is the complicated formal process for appointing and removal of judges. I think that we had in mind that a much more straightforward amendment procedure of the 1995 act could have achieved the objective without this somewhat cumbersome framework. Thank you. I'm sure that other members will have some more follow-up questions on the court model, if you like. I'm going to open questions up to members. I'm freshly going to bring in John Swinney and then Sharon Deming. Thank you very much, convener. Lady Dorian, one of the remarks that you made just a moment ago, I thought was of enormous significance and I'd like to develop the thinking a bit further, is that you talked about this concept embedding a new culture. I think for the benefit of the committee's understanding of the thinking that has underpinned your work here, I think it would serve to hear just a little bit more about what, because I think having listened to the evidence and other contents about this bill, that culture issue really resonates with me about the necessity of changing the dynamics and the nature of the process that is under way, and I think if I understand you correctly you're saying to us you can't really achieve that by tinkering with, for the argument's sake, a Victorian set of procedures, you need to go in and obstruct by that from your report on a blank sheet of paper basis. So I think it would help us to understand the cultural point that you're making in that respect. Yes, well you're quite right that it is linked to the point made in the report that piecemeal reforms don't achieve cultural change. I think that's abundantly clear. So for example in my report we deal with the issues in relation to the rape shield legislation, which is now 40 years old since the first iteration of it is 40 years old and it didn't work. It didn't work partly because of the way in which it was written, it didn't work partly because of the way it was interpreted, it was firmed up and revised and it still didn't take hold sufficiently for the reasons that we address in the report and I don't need to go into them, I don't suppose, but it was only with a concerted effort by the senior judiciary, the appeal court, in a number of cases to focus on what should be being done in relation to those that we actually got to the situation where we have really reached, we've gone past a tipping point, there are still instances of cases where something has not happened as it should, but they're much fewer than there were. So that has happened only after 40 years by an enormous amount of effort because the culture wasn't changed at the outset and that's only one area, there are a whole load of other ones that really require to be looked at and it's one of the reasons why we're recommending that underpinning this all should be trauma-informed practice and training for everyone because that's where you start changing the culture once people understand what this is all about. That's also why we think that it should be embedded in legislation because that provides the legislative impetus towards creating this necessary culture change. That's very helpful as an explanation. Can I ask you to reflect further on what is necessary about the cultural change to be undertaken or to be achieved to make this process effective because I think that the challenge that I would think would exist would be that Parliament may well be able to legislate for this, but it's then how does that become a meaningful change of practice? Now one of the points you've made very powerfully is that judicial leadership has been crucial in taking us thus far, so what else is required to make sure that we can be in a position where 10 years down the track we are looking back on this and seeing this as a significant moment in changing the experience of those who happen to be involved in the work of a sexual offences court? In large degree that would be because of the training and educational requirements which would be a necessity for the operation of the new court. It would be operating according to trauma informed practices. Its procedure would be developed in the light of trauma informed practices. The whole idea in the report was designed to try to find ways of minimising the trauma of giving evidence and going through the process as a complainer or witness in these kinds of cases. The idea that the cases would be in the hands of judges, court staff who've all been trained thoroughly assisted by prosecutors and defence lawyers who've similarly been trained to standards set by the Lord President. Applying rules developed by reference to trauma informed practices should actually achieve that change of culture because everyone understands what's behind this and where we're going. So when we first started this journey, when we were trying to change and improve the number of commissions with the 2017 and actually also I think with the rapeshield legislation, it was clear that practitioners hadn't come along as far as we had in the judiciary and so they were not understanding why we were doing what we were doing and why we were saying what we were saying and that has substantially changed with better training from the point of view of the lawyers involved with prosecution and defence and I think that we are now at a stage where they do fully understand the position about the rapeshield legislation, why it operates as it does and why it should operate that way and the same thing I think has happened in relation to commissions following on the 2017 practice note. Until that point the lawyers were not always and often it's a crown who make the application for the witness to give their evidence by special measures or by commission usually it will be but there was a lack of thought about what is it that are the requirements of this witness, what are their communication requirements, what are they afraid of, what can be due to make that process easier for them and all of those things were addressed in the practice note. Now if you start from common base where everyone understands that you've got a much better chance of changing the culture. Thank you for that and the last question I have Kavir is just on the one of the issues that we've discussed in previous sessions of the committee has been the role of question of witnesses, the role of defence council, particularly sometimes it may well also be the position of the actions of the crown as to whether or not that is conducted in a fashion that is compatible with the legitimate aspirations which I entirely endorse about trauma informed practice and I suppose one of the lines of argument that's been put forward to us is that well you know we've got to be satisfied that the right questions have been asked in the right fashion to ensure a fair trial is being delivered. Now I'm all for me, I obviously want fair trials to be undertaken but I am concerned that trauma informed practice might be disregarded in the name of ensuring a fair trial is being undertaken and particularly in relation to the conduct of defence council and defence agents and I'm just interested in your observations about what the court can do and what the judiciary can do to make sure that yes we have fair trials but also we have fair trials conducted in a fashion that are not damaging to witnesses that are coming forward in good faith. I think that there's very little risk that the trauma informed practices would be set aside or ignored in the way that you were suggesting. We've already had a lot of judicial training on that so that judges, all judges in the High Court and all temporary judges in the High Court have had trauma informed training. That training has been developed exponentially really as we've gone on so it's been improved and so on and we've got more courses coming up to improve the situation and the Lord President and I could not have made it any planer what the responsibilities of judges are and what is expected of the lawyers in a series of cases. I have to say that it's working but it's working because we have been insistent on it over a period of time and the other judges have also accepted and adopted that culture and of course in those systems 100% foolproof but the matters that used to cause concern and were the cause of concern at the time of this report have improved really enormously. Judges are much more interventionist than they used to be but also the lawyers are behaving better generally. I mean there are pockets of instances of bad practice but we're aware of that and we're dealing with it. I have for example asked all judges some time ago to bring to my notice any egregious examples of bad practice that they encounter so that I can take them up with the law society or with the dean according to what might be necessary and I have absolutely no hesitation in doing that. Has it been required for you to do so? It has not been required for me to do so recently. I have in the past had occasion to do so but in the last year I would say I have not had occasion to do so. I asked yesterday for some figures to be given to me about appeals from preliminary hearings because the rape shield legislation is dealt with at the preliminary hearing usually in 97% of cases or something and if the parties either the Crown or the defence are not happy with that they can seek leave to appeal and have the High Court deal with it on appeal. There's a very quick process for those appeals and until about 2020 we had a fair number of appeals which were to do with dissatisfaction with the way the judge had decided the rape shield legislation. Usually the defence is saying that the judge was wrong not to allow questioning but occasionally there was a Crown appeal and I've not been able to get very detailed figures and I just asked him to look at a couple of years but it was my impression and this confirms it that those kind of appeals have reduced it quite substantially so from 2020 to 2021 63% of appeals from preliminary hearings related to dissatisfaction with rape shield legislation. In 2021 to 2022 that went down to 43% and I strongly suspect that it will be even less then which to my mind shows that control is being exercised by the judiciary but also that the profession is now accepting that and understands the position and I think that perhaps caught in the forms with evidence that I read that the committee had to receive from Stuart Monroe when giving evidence in an earlier session. We've got quite a bit to get through that's happened hour and already so if I can maybe politely ask for fairly succinct answers lady Dorian so I'm going to bring in Sharon Dowie and then Rona Mackay. Good morning. Good morning. The review group concluded that a specialist sexual offences court should be set up which adopts the routine pre-recording of complainers evidence and uses trauma-informed practice and you mentioned earlier on about how there was a requirement for specialist training however we done it so with the bill obliging all courts to comply with trauma-informed practice is there a need for a new court to be set up? Well I think I've really answered that question when the convener asked me about this it's really that that is only one part of it you need you need to make sure that you have a whole court that adopts this and doing it across the country the rape shield legislation for example that applies to all the courts across the country has always done by virtue of the legislation but it hasn't embedded a practice and this is only this is only one part of embedding the practice it's helped it's a way of helping to change the culture but it's only the start and much more is needed. Okay thanks in the review when you recommended setting up a specialist sexual offences court did you envisage a new purpose built court for this or do you think it can be done in the current estate? I had no conception of there being a new purpose built court my idea throughout was that we would be able to utilise to a much greater extent all of the resources across the crown across the estate and that we would be able to spread those cases so that they could be dealt with more locally local justice quite an important issue and I had no had no notion that we would be looking at a new court building that would be completely unnecessary in my view. Right so is that what you meant when you said that we would have access to a much wider pool of venues and currently available to the high court that was just using all of the courts that were available to you? Yes that's fine thank you. Can I ask that the reviewer recommended that the sexual offences court should have sentencing powers up to 10 years in prisonment what was the basis for the limit considering there is no limit on the length of prison sentence when someone is convicted of rape in the high court? Well we've given an explanation for that in the report in some detail basically that was based on what our understanding of sentencing practice in the high court is a vast majority of cases do not end in sentences of more than 10 years we were recommending that cases where which were likely to be to result in a life sentence or in actually more likely an OLR they can be identified in advance when we do we dealt with either in the sexual offences court by a judge of the high court who would then be able to deal with it to give a higher sentence or to remit to the high court that's a very familiar practice you know that in sentencing that sheriff for example could remit to the high court for sentencing in a case where they think that their powers are inadequate. Okay thanks and just like do you anticipate further delays in the judicial system with the setting up of the court do you think it'll add delays to the process no i think i think it should have the opposite effect i would hope but yeah right okay thank you thank you Rona Mackay followed by Pauline McNeill thank you convener good good morning lady Dorian i wanted to ask you about rape trial pilots and in your report you say that the review group was divided on this yep and the report recommends that consideration should be given to developing a time limited pilot of rape trials without juries could you maybe expand a bit on that and what level of support was there within the review group for a pilot of that nature well the the group the group was divided i think it's fair to say it was reasonably easy evenly divided i don't have the exact figures of of how the division went but my recollection is it was relatively evenly divided and the rationale behind the recommendation was that the real benefit would be we would then have evidence of what happens in a judge only trial and we'd be able to compare that with what happens in jury trials we'd be able to compare the experience of a complainer in one compared with the other we can't do that we'd be able to compare the outcome we'd be able to compare how the questioning was handled we'd be able to compare how long the trial took we'd be able to compare all of these things at the moment it's all speculation because we we have nothing to compare it with and thank you so would this be taken into account the the evidence related to rape myths and would that be part of the consideration for perhaps having that was one of the underlying reasons for considering that it would be a benefit because we went into some detail about the issue of rape myths and i won't give you the details 534 and 540 to 42 are the relevant relevant paragraphs in the report but judges are not going to be affected by those and so that would definitely be a difference and given that we now instruct juries about rape myths we'd then be able to compare and see whether those who said it's not necessary it'll be enough just to give juries better instruction on this we'd be able to see whether they were right so you say time limited do you have any indication of what time scale that would be just i had in mind myself something of a couple of years probably something like that to to obtain sufficient material but you know that's something that i think would have to be considered carefully and do you know of any other jurisdictions where this is happening and judiolist trials or i think that there was a some reference in this to it having been tried in in a number of jurisdictions or or going to be tried i think new zealand was one and the had maybe new zealand maybe new zealand was actually thinking about doing it i think maybe south africa had tried it but it's in the report i'm sorry i can't recall the international evidence yeah so just on the review groups kind of division on it would you say and i'm obviously not asking for figures but the majority would be in favour of this or i couldn't say i all i can say is they were divided there was no majority otherwise there would have been a majority of you put across they were divided in general terms and that's all i can say there were there were some who were vocally strongly against there were some who were strongly in favour there were others who could see a more nuanced way of looking at it there were others who thought there might be some benefit in some elements and not in others it's impossible to say other than that it is an issue upon which the review group was unable to reach a concluded view okay thank you thank you Pauline McNeill thank you good morning first of all i'd like to commend you on the work that you've done and the way you've presented it to the committee thank you it's clear that there is a need for change so i'm absolutely clear about that i wanted to give some context to my question so it's really about so you've made the case for a specialist court but what i'm interested in is where does it then sit in the hierarchy excuse my terminology but that's the way i see it as a lay person so i'm interested in what the status of the specialist court would be and if you thought that the legislation as drafted really high it really reflected what you had intended in your report for example the report says that the rights of audience and the sexual offences court should be limited to advocates and solicitors advocates but it's not reflected in the legislation now i can go as far back as the reforms that because i did chair the committee at the time when lord bornomey not only did the report on the preliminary hearings but also extended the sentencing powers of sheriff courts but it stuck in my mind and i think there's a parallel here for me that when he proposed the extension of the sentencing powers for sheriff courts to five years he was clear that there should still be the allowance of sanctioning of counsel for serious cases now you'll know it's very very rare now for counsel to be sanctioned in the sheriff court so my concern about the creation of the specialist court which i think that's a very good case for is it in the creation of it if the rights of audience changes so solicitors can now under the legislation represent an accused person i don't think for rape or murder but for a serious sexual offence i wondered if you could speak to any concerns that you might have about whether the legislation reflects what seems to me to be a report to maintain a high status of the court and how do you see the status of the specialist court in relation to the high court well i've already said that i don't think that the legislation does reflect what i had in mind it seems to be trying to create some kind of new different structure as opposed to fit what i had in mind into the structure and what i had in mind was effectively a parallel court in a sense but with the lord president or law justice general asked the head of it the law justice clerk asked the deputy head of it just asked generally across the court system is the case i'm used being able to use all of the the court estate and all of the judicial resources as and how necessary as long as properly trained and everything else in place and we recommended as you picked up that it should be the equivalent of the rights of audience in the high court because we wanted to make sure that the importance of this was understood that these are serious matters that should be dealt with at a particular level and that really was the reason why we said that rights of audience should be solicited advocates with extended rights or advocates but it's in the report the justification is there thank you very much and so if the legislation were passed so the rights of audience would would change that would include sheriffs would be sitting in the specialist court which they can't in the high court at the moment i mean will sheriffs do sit in the high court at the moment as temporary temporary judges there's a very significant number of them who do and they do a very good job indeed so that wouldn't be the issue but the issue is the issue is those appearing who are doing the questioning of the witnesses and the cross examination of the witnesses those are the ones that we were concerned about and we wanted to make sure that they had gone through the additional training that is necessary to obtain and that's not i'm not now talking about the trauma informed practices only i'm talking about additional training in court craft and additional training in court processes procedures and behaviour that you get if you become an advocate or get extended rights of audience so my final question is related to that mean that there are many discussions in this parliament about how we tackle the crime of rape which seems to be a low conviction rate for if the specialist court the sexual offences court looks as if it doesn't have the same status as the high court so if it doesn't have the rights of audience for the i mean i'm assuming that the reason it's drafted that we're designed that is to reflect the seriousness of crime and the importance of the status of rape as a serious crime as a plea to the crown which can only be tried in the high court would you have concerns if the legislation doesn't reflect your recommendations or rights of audience it's going to look like a lower court we made it very clear that one of the drivers for the the main driver for this whole idea was to improve the experience of complainers and that the way to do that was a specialist court properly set up properly with proper training and with serious rights of audience of those who can appear in it and this was specifically to make it clear that we were not in any way diminishing the importance of these cases and quite the reverse and i can i just refer you to paragraph 341 of 342 of the report where this issue is dealt with thank you very much good morning a few questions the first one is about dutyless trials your review group consists of all the key players in the Scottish justice system but they couldn't reach a consensus on this as you've already told us and it's perhaps the single most contentious part of the bill and i'd be interested to know what your own position is on that well i i took the view that this was something worth looking at that was my position simply that it's something worth looking at it's worth examining it's worth having a a pilot because as i've already said then we would have the evidence i have not and the review group considering this was not looking at this as a long-term plan at this stage at all it was looking at this being an evidence gathering exercise to enable us to address the issue properly and with an evidential base i mean all our report was based on evidence and this is an important area and we don't really have the evidence to be able to compare whether a complainer would have a better experience with a judge alone trial or with a jury trial did the review group foresee the reaction that would have come that has come from many in the legal profession and and this is perhaps straying into the bill and what happens next but if practitioners as they threaten to do do not participate how could that then happen well that's a matter that is with respect for you to grapple with and not so much for me but on the first part of that question the answer is yes obviously because i've already explained to i think it was to miss mckay that that they they there were some who were very vocal against it and there were others who were fairly vocal in in favour of it so that there was definitely a dichotomy there that was very obvious and clearly would be carried through into the wider world. In respect of the sexual offences court proposal some people have already asked about who can practice there and so on but one issue is the bill extending the court's proposed remit to other crimes including murder for example the Scottish Court and Tribunal service say that this could result in much greater cost than what's suggested in the financial memorandum do you think on the basis of your review that the court should deal only with crimes of a sexual nature? I think it's difficult to go quite that far but what we did say was that crimes such as murder should be tried in the high court, continue to be tried in the high court even if there is a sexual offence along with them. I don't think one could go as far as saying it should only deal with sexual offences because frequently just to give an example you might have a dozen charges on an indictment 10 of them might be sexual offences one of them might be a breach of the peace one of them might be a drugs offence so it's not practical to suggest that the court shouldn't have jurisdiction over other crimes but it's in the report on the question of jurisdiction at 3.36. Your review also recommends that complainers should have access to legal representation in the event of a section 275 application but concerns about how this would work have been raised by many people Crown Office, Scottish Courts Tribunal Service, Law Society and even your senior judicial colleagues and in their submission to the committee the judges said that this measure and I quote will create a considerable amount of extra work and again quoting considerable potential for delay and churn. Now the Crown and SCTS submission to the committee also used that word churn and the Law Society also cited a risk of potential extra cost so on the basis of these concerns did the review group perhaps not give adequate consideration to the potential unforeseen consequences are now being warned about? Well to some extent I think that the so-called unforeseen consequences are a result of section 64 in the bill and the way in which it's envisaged that this should operate it seems on the face of it somewhat cumbersome time consuming and a procedure of that kind may have the kind of consequences that you're talking about I would have thought that a much simpler procedure could be developed because in the Crown submission to us it's four pages of that related directly to the practicalities of dealing with seven 275 issues in legal representation so in essence you're supportive of it but take the view that the bill could be amended potentially I think a more streamlined way of dealing with this could be could be found is my own view of it but I'm very strongly supportive of the proposal for independent legal representation I in fact I think that there's an unanswerable case for independent legal representation given the experience of complainers given the experience that we have had over the years where the Crown have not objected to section 275 applications when it was blatantly clear that every single paragraph of the application should have been objected to and should have been refused and so there have been a number of cases of that kind and it's it's quite clear that sometimes not only has that happened where the Crown have not represented the complainers interests in that way there can be a conflict between the interests of the complainer and the interests of the Crown as a prosecutor and there are all sorts of other reasons and they're all dealt with in detail in the report but even if the proposed legislation is fixed and streamlined surely by the very nature of an additional voice in the court there's going to result in more delay potentially I don't really I don't really think that's necessarily the case the 275 applications are dealt with at preliminary hearings as long as the notice period is sufficient to enable that still to be done then there's no reason why they can't continue to be dealt with at the preliminary hearing it's one hearing and it takes place anyway as part of the process combined ground rules and procedural hearing it takes place there would be an additional voice a lot of the stuff is dealt with in writing anyway because detailed a detailed application has to be made and very often parties will submit a written note of what their views are on this and the court will then determine it so and there is at the moment the scope for an appeal I've already given you the figures about them they were about I think about 11 last year 22 years ago and they're not all of course on section 274 but a significant proportion of them would be it's a small number allowing the right of appeal to the complainer as well wouldn't really shouldn't really have that major effect okay thank you very much thank you okay okay Thulton McGregor followed by Katie Clark thank you a good morning yes lady Doreen um I was actually going to ask about independent legal representation as well but Russell Findlay was in there before me but there is there's still an area I would like to ask about and I think one of the things that we we heard that was quite amlinell favored on some of the evidence that is being collected about how victim ethnicities have, I meant to call them, have failed during the trial and particularly the cross-examination session, and that has done with the particular practice of bringing up their character and sexual history. Yw y yr y mae rhoi'r spesdau sydd gyda'r rhai o'r iawn? Fe'i rhoi'r rhai o'r iawn? Fe'i rhoi'r spesdau sydd gyda'r iawn? Mae'r rhai o'r iawn o'r iawn. Mae ddim ond e'r rhai o'r iawn i gautig y cyfnodau honno. Mae hi yn ogymell efo'i rhoi'r iawn i ddweud. Mae'i rai o'i rhoi'r vychydig. Mae taww'i rhoi'r cyfnodau ers cyfnodau, ond mae'n gydol i gynhyrchu efo'r rhai o'r iawn. Mae'n gwybod i addysg ar yr driftdwyr rhwllaun cyfatgwyr, ond wrth gwrth rhoi'r gwahawr o'ch ddysgu'i announcements, gan ddews i'r ddym wrth â'r talo'r ddaud o'r drwy iawn. Wrth gwrth gwrs, mae'n dechrau'r ddaud o'r ddau mynd o gyfer mae'n decidedbeth am ddawnau grifetig maen nhw, mae'n teimlo i'r ddau i'r ddawnau drwy iawn i'r ddau mynd o'r ddau seksuol hystod i'r ddechrau i ddifen. Is there another way that the group would that that could perhaps be addressed? The only other way of doing it is the way that has failed. Is there any way to strengthen the current arrangement to make sure that it doesn't fail? Well, the court has been trying to do that by requiring the crown to confirm that they have obtained, they have notified the complainer, they have sought the views of the complainer and so on. The court has been trying to do that because it was clear that it wasn't happening, it was meant to be happening though before that, it was meant to be happening, it just wasn't happening. When we discovered in an appeal, it was another case, when we discovered it wasn't happening, we changed the preliminary hearing sheet where they have to provide all the information to the court beforehand. We changed the sheet to make sure that the crown confirmed in writing that the complainer had been told of the content of a 275 application, had been invited to comment on the accuracy of any allegations within it, had been asked to state any objections which the complainer might have to grant in the application and that then those would be put forward to the court when the application was dealt with. Our view of it, and this was the unanimous view of the review group, was that independent legal representation was the best way of doing this. If the committee feels otherwise, then steps would have to be very clearly set out identifying what the obligation on the crown was and what would happen if it failed in that obligation. Thank you, I think you've made a very compelling case here about how the review group and yourself came to that decision. Review consider whether complainers might be provided with independent legal representation in a wider range of circumstances. You may well be aware that in other jurisdictions, in recent decades, they have brought in legal representation in some cases throughout the process. Is that something that the review group looked at or indeed you have given any thought to? We did look at this. We thought that independent legal representation in relation to section 274 was the critical thing. In making that, we were also conscious of the fact that where there is, for example, an application for recovery of medical records, that's a separate process. There is already ability for a complainer to enter that process and to oppose the recovery of medical records, psychiatric records or anything like that. We felt that the limit of what should happen within the criminal trial was independent legal representation at the section 275 stage. Anything else was likely to derail the trial, cause additional delay, put out time limits and everything else. All the concerns that Mr Finlay and Mr MacGregor have been voicing already this morning. Have you looked at other jurisdictions or was that not something that you looked at in any detail and whether some of those consequences have taken place in other countries where they have brought it in? We are aware that there is one jurisdiction in the UK where there is independent legal representation, namely in Northern Ireland. I don't think that we were able to look at what the consequences of that had been. Possibly it hadn't been in place for long enough, I can't recall, but it's addressed in our report. I mean, because one of the major concerns is that you know... Sorry. I thought it was available in Northern Ireland. It had been recommended, it's available in Southern Ireland, I apologise. 443 of the report. I mean, it's something that happens in many parts of Europe and indeed in parts of South America and other jurisdictions. I don't think that one can make those comparisons because those are not systems where they operate the same kind of legal system. There's a system where there is a party civil, for example, involved in criminal proceedings throughout, so it's an entirely different kind of provision. I don't think that one can make that comparison. The proper comparison is with what our common law jurisdictions are. Ireland is one and Northern Ireland is one. So, I mean, as you know, one of the concerns that's raised repeatedly by survivors and by victims' organisations is the lack of power and information that many rape victims in particular feel throughout the process, not just during the court process but from the very, very early stages. And we did make recommendations about that. We made detailed recommendations about improving the quality of the information given to complainers, improving the quality of the communication. We made a recommendation for a one-stop shop, as it were, a single point of contact for that, because we recognised the validity of the point that you're making. Okay, thank you. John Swinney. I'll just follow up that point, Lady Dorian, that Katie Clark has raised with you about that flow of information, because it takes me on to one of the issues that I'd like to raise with you, which is that you chaired a review group, which was a whole system review group, recognising that there are whole system issues involved in this. And I just wonder if you could share with the committee what else you think needs to be improved to get to a position where we might look back on these reforms. I think this has been a seminal moment in improving the experience of complainers and to ensure that the process operates any more timely fashion, given the premium that you've attached to evidence that's been gathered in a timely fashion so that recollections are able to be tested in the most effective way and at the strongest moment in the experience that individuals have. Well, I think we spent quite a lot of time in the report talking about the communication issue and talking about the experience that complainers had of feeling that they weren't being listened to, feeling that they didn't have someone they could contact who could give them adequate and accurate information. That's notwithstanding the 2014 act and we've noted quite a lot of information about that in the first chapter of the report, especially on the kind of information that we think should be given to complainers, that it should be through a single point of contact. It was suggested to us on a number of occasions that that was extremely difficult to achieve, but we couldn't see why that would be the case as long as there was someone in each or because the idea was that different organisations are involved in this, but there's no reason why they couldn't all have a single point of contact working together with one additional one who was the point of contact for the complainer. I think that's one of the issues. Delay at various stages, we addressed that both at the stage of the investigation at the stage when it gets into the hands of the Crown and then at the stage when it's in court. We made recommendations there and I think quite a few of those have been acted on by the police and by the Crown and the court has certainly acted upon them. The other things, the prerecording of evidence at a much earlier stage, that is the key thing, a much earlier stage. Even at the time of the EPR, our thinking was that evidence in chief should effectively be the first interview with the police. It should be by a skilled interviewer and given that police now are going to be wearing body cameras and that's being ruled out. That's how the evidence should be captured at the beginning and that would enable give a much more likely chance of any additional commissions or cross-examination being able to take place at a much earlier stage as well. That was key to the evidence and procedure review. The other things were that if on the assumption that we continued with juries, we made a whole raft of recommendations about the changes that should be made in relation to how juries are instructed, directed and so on. We haven't had to wait for legislation to introduce those. We've introduced every single one of them. Right, thank you for that. The last question I've got is really on part of the issue that we've long debated about the successful or unsuccessful prosecution of sexual crimes has been about quality of evidence. I'm interested to know your thoughts on whether any of your, do you consider the suggestions that you are making? Are there any dangers that in any way they lead to a reduction in the quality of evidence that is available? Is there a sense that evidence by commission is not as sturdy as evidence that's gathered in some other fashion? No, I've heard that canard on a number of occasions and it's just incorrect. There is evidence, we refer to it in the report. There is evidence to show that it's incorrect. We in Scotland have the best evidence possible to show it's incorrect because for three years we operated trials where juries saw no live witnesses at all and the conviction rates over that period were really not in any way uncomfortable to the conviction rates prior to that period. So for three years the jury didn't see a single live witness. All they saw was witnesses on screen. The other thing to bear in mind is this and it's dealt with quite a lot of detail in the report, I think. Our experience of commissions is that the evidence is much more focused. It's compressed because there's no jury and a whole lot of repetitive questions that are being made for the benefit of the jury and I'm not criticising that as a practice, sometimes it's necessary, but that happens a lot less. There is a much greater focus on what needs to be asked of the witness and what does not need to be asked of the witness and the length of time that the commission takes. I think at the time of the report people's experience was it was about half the time that it took for the witness to get evidence in court. I think it's probably a lot less than that now. It probably is down to something a matter of hours compared to a matter of days that it might be for a witness to give evidence. Of course there are complicated cases which are slightly different, but that has to be borne in mind as well. The nature of the evidence that is taken on commission is done in a much clearer, much more focused way than is generally done at trial and that too is a benefit. That strikes me as being absolutely consistent with the aspiration about trauma and from practice of minimising the negative experience for a witness. Absolutely, it's key to it. Just watching the time Lady Dorian, if I may just come in with a couple of final questions. Just I think it was in response to some questions from Russell Finlay around the rape trial pilot. You used the phrase evidence gathering in terms of the purpose and the objective of the pilot. I'm just interested in whether or not the review considered if there may be any influence or risk that the pilot could perhaps impact or influence the outcome of a case at all, just by virtue of the fact that a case was being heard as part of a pilot and also perhaps whether the issue around an accused or if they were convicted may have again by virtue of their case being heard as part of a pilot may have a right of appeal. I'm just interested in the review considered those points. In relation to the first point I don't think that there is any risk of that. Those pilots would be presided over by experienced professional judges and who would decide the case only according to the evidence. We're quite used to having pilots of one kind or another which don't seem to have caused problems in the past with piloting, drug courts, piloting, and other kinds of courts. As far as the appeal is concerned, there is one big advantage of judge alone trials and that is that there is an obligation to give reasons and so the reasons are there. I'm not convinced that that would result in more rather than fewer appeals. Thank you that's helpful and my final question I know Pauline McNeill wants to come in. I'll just ask my final question on the issue of anonymity of victims and again your report recommended express legislative protection for the anonymity of victims of sexual offences. I'm interested in what were the reasons for this recommendation and what difference do you think that protection would afford victims? It would give them a degree of comfort for a start because they would know that it was clearly set out in legislation that they had anonymity. It would reflect the position in other jurisdictions where it's set out in statute. At the moment there is no statutory protection, it's all based on common law and it's all based on effectively a gentleman's agreement with the press and the mainstream press have shown themselves to be trustworthy in that respect and to be able to abide by the convention that they do not identify complainers but we don't live in an area at a time when the mainstream press is the only source of reporting and we have now to deal with blogging, social media, citizen journalists I think they call themselves and also there is a trend seems to be developing towards reporting trials by proper reporters reporting them in a podcast as the trial goes on and there's nothing wrong with that but again it's a different way of presenting the material to the public and really in order to provide a real safeguard against the risk of inadvertent disclosure by a professional or mischievous disclosure by a non-professional we felt that it should be made clear in statute. I put this question to the senators when they come but just as the convener asked the question about the jurialist trials so I'm right in saying that normally in a trial where the jury would decide the evidence they believed but the judge would decide the law on it does that mean that in a jurialist trial then the judge would be deciding both the evidence as well and does that mean there's any different process for a judge to go through in a jurialist trial because they wouldn't normally decide the evidence the jury that would make those decisions? No not really I mean that every day in the sheriff court judges are making decisions on both the facts and the law when they sit as a sheriff without a jury and decide criminal cases so they're doing it all the time and judges are also used to dealing with quite complex legal and factual cases in civil matters where they're responsible for making the decision themselves and in fact over the last few years we've had a number of cases where the allegation in the civil case is one of rape and the judge has not had any difficulty in dealing with the matter. Thank you very much. Thank you and I'm just going to squeeze one final question in from very quick. It's a very quick one, it's to do with proposed sexual offences court. You said earlier in your evidence that you didn't think tinkering would be sufficient however the submission to the committee from the faculty of advocates is quite robust in saying that through existing mechanisms I quote there's no single feature of the proposed court which could not be delivered rapidly I just wonder whether you could give me your views on that particular view they've expressed. Well the we have of course managed to bring in the changes of the way in which juries are directed and so on but whether you bring them in rapidly or not they're still being done in a piecemeal way they're not being done in a principled way with the underpinning of a whole court dedicated to you know trauma informed practices and you know one of the things that we said in the report was if we if we if we don't seize the opportunity really to create what mr swinney's been talking about as the culture change and create that from the ground upwards there is every risk that in 40 years time my successor your successors are going to be in this room having the same conversation. Thank you. Okay thank you very much indeed lady Dorian we appreciate your time this morning and coming and joining us so we'll now take a short suspension. Thank you our next item of business is to consider it's to continue I beg your pardon with our stage one evidence taking on the victims witnesses and justice reform Scotland bill so today we're starting phase three of our scrutiny of the bill focusing specifically on parts five and six of the bill and this covers the establishment of a new sexual offences court anonymity for victims of sex offences independent legal representation for complainers and the proposal for a pilot for judge led trials in certain rape cases so this morning we're joined with by the right Honourable Dorothy Bain KC the Lord Advocate so welcome and I refer members to papers one to three and I intend to allow around about 75 minutes for this session so I wonder if I can begin with an opening question Lord Advocate. In the Crown Office submission it expressed support for the creation of a sexual offences court a specialist court however the submission did detail some concerns in and around the practical application of such a court so can I ask what are your reasons for supporting the idea of a specialist court and perhaps just to maybe expand on some of the concerns that were raised so I think it's clear from the submission that the crown is fully supportive of the creation of a specialist sexual offences court and that's because of an identification of the need to transform the way in which sexual crime is prosecuted in Scotland and it will require a determined effort by all of those within the criminal justice system to accept that there's need for change and to engage in a radical rethink of what the rule of law requires and so for the crown the introduction of the proposed specialist sexual offences court would play a critically important part in the development of the type of change that is required. I just heard the Lord Justice Clark speak about why the need for the specialist court was so profound and I agree with her on that. I think underpinning all of this is a fact that sexual violence against women and girls is now recognised as a worldwide endemic problem and the world health organisation and the united nations have identified violence against women as a global problem of pandemic proportions and statistics produced in 2021 is estimated that in one in three women worldwide they've experienced either physical or sexual intimate partner violence or non-partner violence and sexual violence in their lifetime so the identification of intimate partner violence is one that is very troubling in terms of these statistics so that's a background but it's also become recognised across the profession that effective prosecution of sexual crime requires specialisation and the needs of complainers require the most careful consideration and provision of effective support so I consider that the proposed court reforms offer the opportunity for a complete rethink and redesign of the court process in order for the court to deliver for both complainers and indeed the accused to appear in it so the creation of a new court with new procedures and practices presents an opportunity for positive radical change in the way that the criminal justice system approaches sexual offending and I say that because the level of offending the volume of case work and the current system operated by our courts means that we simply do not have the ability to support victims of sexual crime and commit our prosecutors to these complex cases in the way that they deserve and the way that they require so the fact that so many victims of sexual crime report that they have no confidence in our system is easy to understand and one can see why we trouble the crime prosecution service deeply and this is not a problem that's isolated to Scotland is an international problem it's present in the United Kingdom, England, Wales and Northern Ireland and across the Commonwealth and for these reasons we need specialisation, we need a routine branch recreation of the court system that is directed specifically towards these types of crime. Thank you Lord Advocate. So just following on from the final point that you made about specialism in particular across the court system one of the questions that we asked Lady Dorian in her session was around the option whereby similar benefits to a bespoke sexual offences court if you like could be delivered through the existing court structure and Lady Dorian set out her thinking on that and the findings within the review. So be interested in what your views are on that notion of a sexual offence as bespoke court as opposed to an arrangement within the existing court structure. So I think it's easy to say we can do all of this with what we've got. Well why hasn't that happened? It's a simple answer to the question. I think we really have to have a principled creation of a specialist court that from the ground up in every aspect and the way that it deals with every aspect of the administration of the court, the provision of justice, the support for those who are coming to court, the specialisation needed from prosecutors and defence counsel and judges that we look to see what is necessary and we build what's required and the creation of a specialist court with all of that aim in mind is the way forward. What's happening at the moment just isn't good enough and all the efforts that's been made over the years to bring in changes such as the rape shield provisions, changes in relation to specialisation, the way that we take evidence, evidence by commission, supportive measures for vulnerable witnesses, none of that has shifted the dial on the basic problems that remain which is complainers anxiety about becoming involved in any way in the criminal justice process, about their retraumatisation in the process that's currently in place and about their lack of understanding, the lack of support that they have and the feeling that they are abandoned and that justice isn't there for them. We have a section of society that says justice is not there for me so let's go about changing that radically and create a court that's just for that purpose. That's what's needed and it would help the Crown enormously if we had a specialist court that only dealt with special sexual crime, it would assist in our management of these cases enormously. Thank you. I'm going to open questions up to members and I'm first going to bring in Sharan Dowie and then Russell Finlay. Good morning. Good morning. On the specialist courses does the Crown office have the resources it needs to adapt to a new specialist court being set up in terms of prosecuting in the sexual offences court? I think that we have touched on the financial consequences of the proposals and I can look at that with you. I think that the significant issue is the increase in cases that we were dealt with by the specialist sexual offences court in the sense that what's currently dealt with in the High Court is just a proportion of the sexual offence work that the Crown does so there is serious sexual offending prosecution work done at summary level, at sheriff and jury level and in the High Court and it's important to recognise that we do operate within a budget provided by the Scottish Government and therefore currently we take a pragmatic approach to operational decisions in relation to how we prepare and prosecute cases reported so consequently our resources currently are focused on the most serious offending and therefore cases that call in the High Court level have a greater level of resource required and to account for the increased preparation and engagement that is present in those cases so we do put a greater level of resource into the High Court in relation to preparation, presentation, dedication of victim support, dedication of advocate deputies time that is very different to the situation in the sheriff and jury court so a practical example I can give you just to let you understand is that a trial prosecuted in the High Court level would be allocated to an individual advocate depute who would prepare for and conduct the trial which would be fixed at floating or dedicated trial diet for a specific date. At sheriff and jury level the trial prosecutor may be responsible for all the trials that have been fixed across a one or two week period and so may be responsible for the preparation for and conduct of five or six trials during that period as opposed to just a single trial so to allow the same time for the preparation for trial as in the High Court the prosecutor would only have to have one case for each jury sitting so you can see why it would be that in order to shift the level of cases that sheriff and jury level into the specialist sexual offences court which I think is a good idea that we're going to have to have far more resource and I think we've provided figures for our estimation of what that will mean in terms of costs at this stage it is only an estimation and we've done our best to explain that but the summon substance of it is that we wouldn't have the resource available to conduct the specialist sexual offences court in the way that is the ambition requires. At the moment are you talking about staff resource you're talking about you don't have enough of? No I'm not talking only about staff resource I'm talking about a variety of different sources so we would need to be able to have a greater number of prosecutors a greater number of those involved in supporting victims of sexual crime if we are going to be able to replicate what we do in the High Court across to the Special Sexual Offences Court and bring within that the very serious case work that's prosecuted at sheriff and jury level. So it's across the board and I think in our response to the financial memorandum we've explained what we think at this stage the additional resource would be required. Do you think the financial memorandum in reflects the actual costs? Well I think that what we've said about that is just have a look and see what we've said about the costs. So we did come back and I think the financial memorandum did recognise the potential resource implications by the Crown and we've also I think the cabinet secretary's responded to that but I think I would have to just say that we can only say what we've said previously and that is that we would need a significant increase in our resource. So the Crown I think it's important to remember the Crown is a demand led organisation with responsibility to meet state obligations to deliver justice and re-operate within a complex criminal justice system. The volume of our case work and the complexity of it continues to grow and there continue to be an increase in complex cases which require longer investigations and court hearings and sexual crime has increased to make up almost 70 per cent of high court cases and there's also been a significant increase in domestic abuse cases. Many very serious domestic abuse cases are in our high court with sexual elements that demonstrate profound levels of sexual violence being perpetrated in the context of domestic relationships. So violence against women and girls, sexual crime and domestic violence crime will form the bulk of our case work for some many years to come. So what we've done is we looked at the number of high court indictments and the number of sheriff and jury indictments in a year which would meet the criteria for indictment in the specialist sexual offences court and this indicated that there would be an increase in 86 per cent increase in sexual offence cases that would be indicted and prosecuted in the specialist sexual offence court equating to the high court level. So you're talking about a significant increase in sexual offences cases and that would have a very significant resource implication for the crown and so calculating the potential financial impact of that we've based our calculations on the average cost per case at each corresponding level of prosecution and so I think it's important for the committee to know the average cost per case in the high court for prosecution is around £75,000 and currently it's just at £7,234 per case at sheriff and jury level. The differential in cost reflects the different processes and practices in the high court as opposed to the sheriff court level and the nature and type of preparation and presentation that's required to be undertaken by the crown at each level so we have projected that it would be reasonable to assess the increase cost of the cases that we'd call in the specialist court as opposed to the sheriff and jury court as being set at a level of perhaps half the average high court case costs namely £37,157 per case and that would then mean that it would be an additional cost of about £17 million per annum if you move the cases from the sheriff and jury level into the specialist sexual offences court and as I repeat we prosecute some very serious complex cases at sheriff and jury level so the issue is just not about moving business around it's about a profound change in practice that will have enormous implications for the crown. Should the proposed sexual offences court have exclusive jurisdiction to hear sexual offence cases or can you envisage circumstances in which a case of this nature would still be tried in the high court? I think you got to ask the question what's the purpose of the specialist sexual offences court and it's in order to resolve a problem which is described by victims of crime and specialist within the field as a problem that's creating an absence of justice an absence of access for justice for victims of sexual crime so if we're going to have a specialist court it has to be there for the victims of sexual crime there are some situations where in the specialist sexual offences court we probably try and I think this is within the material available to the committee some sexual offences charges in combination with some very serious other charges such as murder charges but if you're going to have a specialist court it's got to deliver for the purpose that is required so I don't see why we would have a specialist court and then opt to put these specialist cases in the high court which is dealing with more general work. I just wondered if you think a specialist court would eliminate the need for floating trial diets which cause a lot of distressed victims? I know that the Scottish Courts and Tribunals Service have indicated that the use of floating trial diets is essential in order for them to properly administer their business and I know that when Lord Bonomy's review in relation to the high court that recommended the preliminary hearing system for sexual offences trials recommended that we shouldn't have floating trial diets for rape victims because of the uncertainty that it brings so I would hope that within the specialist court in order for them to operate in a trauma-formed way they would very much bear in mind the impact that floating trial diets has on a victim and recognise that it's inconsistent with trauma-informed practice to have floating trial diets that float from one period of float to another without the case starting and I know that the Scottish Courts and Tribunals Service have identified figures that would indicate that within a float over 90 per cent of the cases start within a four day period and I think that we have expressed with the Scottish Courts and Tribunals Service an anxiety over whether or not those statistics are sufficiently robust and that is against a background of a challenge for the whole of the Scottish criminal justice system to get data that is reliable across the board in those cases and our assessment is that really the figures produced by the Scottish Courts and Tribunals Service only take into account cases where the trial actually commences during the float and don't take into account cases which don't proceed to evidence being led due to plea, desertion or more commonly adjournment and our figures for the year 2020-23 indicate that it was only in 64 per cent of trials that they actually did commence within the float and so that means that 35 per cent of cases don't proceed to trial and only 61 per cent of complainers will actually give evidence during a float so I would hope that it could assist in the move towards doing away with floating trial diets. I think that that would be work in progress in fairness to the Scottish Courts and Tribunals Service but I can say from personal experience from prosecuting cases in the high court of a sexual nature that it is very traumatic for the victim to be waiting to find out when they're going to be called to give evidence and waiting for a phone call at four o'clock in the afternoon and being on the edge of your seat all day and for that to be the process that essentially sets you up before you come to give the evidence in the most important part of the case is just not the way to proceed at all. I recognise and we might come on to the benefits of early recording of evidence but there's some victims that don't want that and some victims want to come to court and see their accused in court and so there's no one-size-fits-all for the process but I think that floating trial diets are a problem that is a profound problem and it's deeply upsetting to victims waiting for their case to be heard and it's challenging for the prosecutor waiting for the case also to come in to be aware of the strains and stresses on the victim and it's challenging for those within the criminal justice system to be responsible for delivering the message that your case isn't starting today or tomorrow or the next day. It's just not conducive to trauma-informed practice. Thank you, that's helpful. Rosa Finlay followed by Joyce. Thank you very much. I have a fairly general question to kick off with and we've heard some very strongly opposing views over the past few weeks and months in relation to the legislation and the head of rape crisis Scotland told us that it's a quote obvious to anyone that guilty men are regularly walking free and the faculty of advocates of which I assume you are or where a member say that the system works ostensibly. You've been very clear today for the need for radical and profound reform and legislation being the only way to achieve that but I just wonder whether you think the legislation will achieve that reform that you believe is needed. Can I start by saying I remain a member of the faculty of advocates. I was independent counsel at the Scottish Bar 30 years I think is the period of time that I've been in practice at the Scottish Bar and I've been a silk queen's counsel now king's counsel since 1994 and in my period of private practice I undertook a significant proportion of my career which is unusual to dedicate to public service prosecuting in the public interest and I was a prosecutor for eight years and I was successful in being the first woman to be appointed to principal advocate deput, the most senior prosecutor in this country and I was very proud to hold that position. In my period of practice as a prosecutor I identified all the problems that rape crisis have reported on and all of the problems that are reflected in Lady Dorian's review I experienced all of these first hand as a prosecutor. These are issues that are not made up, they are profound problems and they've been in existence from the time that I was a prosecutor and unless we change radically we're not going to make any difference and I think so. I do believe that as Lord Advocate and with my experience having dedicated a very significant proportion of my career to prosecution in the public service that we do need legislative change and we do need changes to be brought about by specialisation. I think that it's come to be appreciated that the ordinary adversarial system is not well suited to the prosecution of these cases, it requires specialisation, the needs of the victims require the most careful consideration and provision of effective support, special measures in the manner in which a victim gives evidence and the existence of rape shield provisions have not resolved the issues. Scotland and the UK and other countries across the Commonwealth are considering and consulting on further developments such as independent legal representation, judge only trials because many of the victims of these crimes are plainly not receiving justice. I think that we need the sort of change that this Parliament is interested in but in addition to that we must as a society overcome the cultural attitudes that allow prolific abuse of women and girls to occur within plain sight. So we need change here but we need societal change too and I think it has to be a combination of both. It's incredible to think that it was two years after you became a QC that the first female Scottish judge was appointed in 1996, which is of course less than 30 years ago and it's perhaps taken women in these positions to drive a lot of this need for for changing. I think that as lawyers and as parliamentarians trusted with the administration of justice we must find a method of ensuring justice for the so many victims of the appalling acts of sexual and physical violence and we need a proper functioning judicial process that delivers that and that's all that's been asked for a judicial process that delivers for victims of crime and I think the need for that is exemplified by the very serious crimes now we are seeing prosecuted at high court level and just to give you one example in last year we saw a case prosecuted in the high court which was a case in respect of which the accused had been a prolific domestic abuser from the age of 14 and he murdered his partner after an 18 month relationship which included physical and emotional abuse. Six previous partners of his gave evidence in the high court of the most extensive level of domestic violence and sexual violence that had escalated over all of his period of time from age of 14 to the age of 30 when he committed this very serious crime. He seriously assaulted the complainer on the day prior to her death and she would admit it to hospital. He then attended the hospital and persuaded her to discharge herself against medical advice. He then drove her to a garage where he dealt them drugs and during that night he beat her to death with a tyre iron. He faced 30 charges in total and six of those involved serious previous partners. So that is exemplary of the type of cases we are seeing in the high court and it tells you why we need to say to ourselves as lawyers, as parliamentarians, as those who serve the public because we are public servants what do we do to sort this out and we need to make a radical change and it is not good enough to say that everything is fine, it simply is not. Now moving to the subject of anonymity for victims which is proposed in the legislation, the crime submission to the committee makes quite what just be a very important point about a potential oversight relating to the proposed anonymity measure. As drafted it seems that anonymity would apply or would not apply in cases where the outcome was one of a quiddle which then may result in victims being deterred from reporting crime which is completely at odds with the intent of the legislation and trauma and fraud practice and so on. Since making the submission to the committee can you tell us if the Scottish Government has had any communication with Crownabella? Yes, they have. I think that they've taken on board a lot of the issues that we've raised and they're considering the issue, it's not being ignored, it's being worked on and I think you can see the logic in remedying this deficiency. So in all likelihood there would be an amendment from the Government? I understand so. Okay thank you. Judge only rate trials, there's another issue about these which we've not yet touched upon. Judges would be required to provide written reasons for their decisions which is an unusual thing to be happening in the Scottish Courts in criminal courts rather. The Scottish Criminal Cases Review Commission has warned that this might generate a significant number of appeals and they say that this risks adding to victims distress and again that would be at odds with the bill's trauma informed intent. Does the Crown Office have a view on this particular issue? So I just in relation to the pilot I think that the point that needs to be, the starting point needs to be, I think the proposal represents an integral part of the recommendations of Lady Dorian's review and I think that it's a suite of measures that she's recommended so the pilot's an integral part of that and I think that what will happen, I hope, by reason of the pilot being delivered on is that it will allow an evidence base for further consideration of what it is that is wrong with the current system that results in such a diversion between levels of conviction in one type of crime as opposed to sexual crime. So I think the review was split down, it was half way, split half way in relation to whether or not to recommend a pilot but the whole purpose of that is to give a basis upon which to then develop a reasoned approach to the future way of dealing with these cases. Hence the need for the written reasons. So the written reasons will, I think it will be a very important part of it because it might remove a perceived deficiency in the current system. I think the suggestion is that it would provide an entirely altered experience in court for the victims of crime and crucially for all concerned be accused and the victim. It would provide for a reasoned and written decision explaining why a particular outcome was arrived at and the public have confidence in the judiciary which will be reinforced by the provision of written reasons. So the judiciary in our country is something that we should be proud of and the independence of the judiciary is something that we all protect fiercely and judges day and daily in our court of session and in our share of courts sit on their own dealing with very serious matters and the issue of written reasons and they sit on their own in criminal matters, they sit on their own in very complex court of session matters and I'm yet to hear that there's a suggestion that that process is inconsistent with the rule of law and is inconsistent with the fair judicial process. So the benefit of the pilot would be written reasons in order to inform why it is that the conviction rate is as it is and I think the important point is the pilot is for a time limited period only for a special section of cases which we call acquaintance type cases and that is the case where you have one complainer and one accused and in our experience and on the basis of the statistical analysis that we've been able to do on again our data collection is something that we are concerned about but on our statistical analysis currently and on our experience as prosecutors it is in these acquaintance type rates that you have very low levels of conviction and so the current conviction rates disguise the fact that in acquaintance type rates we are looking at conviction rates about 20 to 25 percent as opposed to the overall conviction rate that's been reported so that is being disguised and I think it was why that selection of cases was identified it's time limited and the written reasons will allow us all to move on and to understand whether or not it's rate myths whether or not there's something else going on that makes us thank you very much thank you thank you lord advocate one of the comments you made in response to Russell Finlay's questions this morning was that in your judgment this was in relation to your point about the the difference of views expressed by rape crisis scotland and the faculty in relation to the system you said that the ordinary adversarial approach is not suited to cases of this type and I'd like to explore that comment because I think in a sense I think that gets to the heart of some of the points I was exploring with Lady Dory in this morning about culture within the court and I'm interested to know whether you how what are the nature of the changes that need to take place within a specialist sexual crimes court and the approaches that are taken in there that are necessary to live up to that challenge that you've set out in that comment that the ordinary adversarial approach is not suited to cases of this type what is it that needs to be different so I I think that the a good place to start is the fact that in 2020 in a case of Gavin Watson mcdonald the appeal court in scotland it's only 2020 criticised the trial judge the crown and the defence for a number of serious deficiencies which resulted in the young woman who'd been attacked being paid damages because of the effect on her of the actual trial process she was severely traumatised as a result and suffered an exacerbation of her mental health problems the lord justice general the most senior judge in scotland said that the trial was conducted in a manner which flew in the face of basic rules of evidence and procedure not only the rape shield provisions but also the common law he said it ignored a number of principles which have been laid down and emphasized in several principles that were set down in recent decisions of the appeal court and he said this if justice is to prevail in the prosecution of sexual offences it's imperative that those representing parties abide by these basic rules he said if they do not do so the judge or sheriff must intervene to remedy the matter during her cross examination this complainer was subjected to repetitive and at times irrelevant question she became extremely distressed and rightly so the court did nothing to intervene where this to be repeated the situation in sexual offences trials would be unsustainable so that was in 2020 and those state that statement was made by lord justice general because of the way that a trial was conducted it was at sheriff and due level it was a very serious sexual offence against a young girl and it was against that background that lady dorian's review was conducted and against that background in which she made her recommendations so it requires root and branch reform and it requires everybody across the board to recognise that these cases require specialisation you need as a lawyer to train yourself to understand what's needed to prosecute these cases properly and what's needed to defend them properly and the judiciary need to understand that there's a whole specialisation in this field that needs to be understood and required training on it is to my mind an area of prosecution work that is in its infancy and the beginnings will start the beginnings of a real way to deal with all the problems is a creation of a specialist court so practices within the court across the board the way in which we deal with evidence in the court the way justices ministered the way people are dealt with supported respected the humane aspect needs to be uppermost in everybody's mind so that we develop a progressive humane justice system that delivers justice to everybody across the board and it is that profound level of change that's required and I think we just need to reflect on the fact what the mcdonald case was in 2020 so thank you for that lord afrin that strikes me as essentially acknowledging that there are cultural questions that need to be addressed and obviously the the words of the lord justice general in that in the mcdonald case illustrate some serious failings in the protection that all of us would expect there to be in place there for a witness ie that you know a member of the judiciary can step in to make sure things are done properly and the lord justice generals conclusions in the appeal obviously demonstrate that was not the case so there's a there's a cultural element about ensuring that leadership and practitioners are operating properly effectively but is there also procedural questions that need to be addressed about the operation of the courts in relation to the handling of cases of this type so i think there was a there were recommendations in relation to directions to juries and a way that things could be improved upon in lady do reviews review i think she touched on on those in terms of procedural improvements the most fundamental procedural improvement has to be as far as we can the elimination of delay in these cases to bring about a system that is supportive and provides prompt decision making the delay needs to be eradicated as far as possible in relation to the way in which victims are supported in court again that could be improved on i think the review touched on independent legal representation in relation to applications under the ratio provisions i see these as an important step forward but procedurally the biggest thing could be the eradication of delay and the taking away the sense of the process not being capable of being relied on there has to be the procedural changes must be capable of delivering to those who have been victims of the crime a confidence that the process will be supportive and be capable of delivering what's required and i see that these procedural changes and an increase in confidence in the prosecution system would ultimately increase across the board victims of sexual crime confidence in the process because we know that a major issue is that the majority of sexual crime is not reported because people haven't got the faith in the system that will give them what they require and i think that's present in in in scotland and i think it's also something that has been touched on very recently in england and wales by two very recent reports i think that i'm just looking at the work that was done by the eighth yes the eighth report by the house of commons home affairs committee on the investigation of prosecution of rape they reported that public confidence in the ability of the criminal justice system to respond to reports to rape to support victims and survivors and ultimately bring perpetrators to justice is what could be at its lowest point police forces in england to wales recently recorded the highest ever number of rapes within a 12 month period yet only 1.3 of recorded rape offences have been assigned an outcome resulted in a charter of summons so these were very low figures of cases that were actually then taken up and i think that was also reflective of what the victims commissioner in england and wales also reported is that um that the people are worried about reporting these cases and the three quarters of those who went to court said that their cross examination was traumatising and the vast majority of people agreed that the whole process was invasive as the actual offence and 95 percent of survivors who didn't make a report to police cited a fear of being disbelieved and the fact that they'd heard negative things about the trial process so it's you know this fundamental change in the trial process i hope would go some way to ameliorating the problems at large which is that in scotland england wales norther island and across the commonwealth the majority of people do not report sexual crime because of the lack of firm confidence in the system but your answer your answer there laurethica opens up a wider question which i accept which is that this is um you know a lot of this is about how a court the court proceedings are handled but an awful lot of it is about a whole justice system approach whether it's the actions of police scotland the operation of the scottish court and tribunal service the role of the crown the role of defence agents faculty law society and ultimately the judiciary to shepherd this process um there's quite a number of players there and i'm struck that um you know eradicating delay in the system is needs everybody to improve their performance and to get there faster and quicker and more effectively what is the best means of driving that because it strikes me that as i look at those organisations police scotton the scottish court and tribunal service the crown the practitioners and the judiciary all of them are kind of self self governing institutions so who drives the process the government will get criticised if it drives it too aggressively because that will be interference so where within the system does the necessary drive come from to eradicate the delays and how and i suppose maybe a better way of putting it is how can we how can we get those different players who are all critical in the process to be focused on that eradicate on the eradication of delays yeah so obviously we have an enormous challenge at the moment with court delays because of the covid backlog um that's something that you know we have to bear in mind but it is about streamlining processes and making making it easier for victims to report and for the cases to be brought to court more quickly and i think we can all try individually in all our our areas of work to seek to improve but it does need an overriding overarching overseer a sense of bringing all together um it is difficult because different parts of the justice system operate independently of each other for good reason in order to protect the interests of the accused quite rightly in order to protect the independence of the judiciary to respect the independence of the investigation authorities and the prosecutors the prosecution service but i think it can only come about through a common understanding of what's required and people working together with a common goal and i i see the development of specialisation the creation of a single court and everybody working towards the processes developed by that court as a very significant part in bringing matters to a better place the delay has to come about through resourcing of the police investigation appropriately and resourcing of the crown work appropriately proper management of the crown work and then proper management of the court process in terms of support for victims of crime i do recognise that the crown can only do so much uh the crown operate in the public interest and i do see the public interest as a wide concept and within that public interest it's important that the crown do what they can to support victims of crime through a very challenging process but in addition to that the development of a one-stop shop i think a system whereby victims can go to one resource and get a full explanation of all the different parts of the criminal justice process and what they can deliver for them as also a very important part in what can be done to improve matters but delay will require a transformation in the way in which we deal with the processes in around the reporting and then the prosecution of these cases my last question convener is in relation to the procedures of a specialist court and and i'm going to raise specific material from the bill but i obviously acknowledge that the bill is not for the lord advocate to argue for but section 55 in the bill it states that the provisions of the 1995 act apply to proceedings in the sexual offences court as though the proceedings were taking place in the high court of judiciary and to my layman's reading of that that worries me a little bit that we won't have a fresh start reassure me on that point well um i suppose what i can say about that is this obviously the judiciary are are responsible for the administration of the courts it's the president uh lord president is head of the project the court justice system that's responsible ultimately for the way that the courts administer their business um i i in relation to the procedures that are there within the criminal procedure scotland act there is the ability within that act for very significant case management being undertaken by the judiciary at a stage at which a case is indicted so the preliminary hearing system that we have in the high court and recently taken over to the sheriff and jury court allows for judicial management of cases in a very strong way and judicial management can look at the case in a very robust way and put the prosecutor and defense council on the spot in relation to all that's needed in relation to witnesses who are being cited the way in which for example in relation to question of a children how question of children should be done whether or not the defense do need more time in order to explore areas in the case what is the case actually about what is the defense in this case what can be agreed so the case management system adjudicated by the court by the presiding judge is a very significant way in which the court processes can be applied in a way that would be beneficial to the overall administration of justice so i think the benefit of the specialist sexual offences court with specialist judges dealing with these cases who will be seeing the same type of cases regularly they will begin to appreciate where it is that in terms of case management improvements can be made and how it is that trauma informed practice can be applied appropriately to the way in which the case progresses through the court system and so case management which is provided for very extensively in the in a sense in the criminal procedure scotland act and all of the requirements in around disclosure defense statements and the rest these are the tools that are available to the judiciary and i i see that combined with specialisation that we would see an improvement in the case management of these cases i would hope that to be very much the case morning lord advocate and may i thank you for being so vocal on the importance of actually doing something in this parliament on the scandalous number of increasing cases in sexual offences so thank you for that i'm interested in the mechanics of the specialist court i mean i think a good case has been made by lord justice court on yourself but my questions relate to how would this operate and how does it fit in with his current court system you gave the committee some useful figures earlier on talking about the cost of cases in the high court but also in the sheriff court and i suppose my first question is do you think the government fully appreciates what the resource implication of this is in trying to get my head round what this would look like it looks like it will be a substantially large court with a substantially large number of cases and it will not be part of the high court it'll be separate from the high court although as lady dorian said her vision was very much to be a parallel court but that isn't trained in the legislation as i question lady dorian on that but did that aside do you think the government fully appreciates the resource implications for setting up such a court i think that really would be a matter for the government to respond to i am here as the lord advocate the independent head of the criminal prosecution service responsible for prosecution of crime and investigation of deaths and what i can do is to say what the impact will be it's just not moving business if you're going to make the change you need to apply the resource and i think it shows you the the the figures that i am able to provide show you of the big challenges at sheriff and jury level and what we are asking of our prosecutors at sheriff and jury level to do in cases that are just as complex the decision to prosecute at sheriff and jury level as opposed to the high court can come down to very fine decisions and it's the nature of the offence that's relevant to the forum not the complexity of the case we see very complex institutional abuse cases being prosecuted at sheriff and jury level and we're seeing sentences high sentences of five years regularly handed out at sheriff and jury level so it's not the complexity of the case it's the nature of the offence that determines forum so moving sheriff and jury business in sexual offences cases to the high court will not mean that we're bringing in less complex cases or less serious cases sometimes it's just a simple difference between whether or not there's been a penetrative act as opposed to a non-penetrative act in a sexual case that would determine forum because of the possible exposure to sentence but you know these are fine distinctions that actually probably victims of serious sexual crime wouldn't understand whether it was penetration or not and what we found through the evidence from the children's Scottish children's abuse inquiry which is a very important piece of work is that victims of this type of crime sometimes a non-penetrative act the really nasty sadistic type of conduct is far more impactful far more damaging than a penetrative type of act in a different context so I think we really need to appreciate it it's not just about moving business we're dealing with very complex areas of work and it's the combination of that alongside the increasing levels of pre-recorded evidence will have a profound impact on our budget and we can't without the necessary resource meet that and we can't do it with the current resource thank you so i suppose it's that fine line that you talked about earlier as to where cases go whether they go to them won't currently go to the high court or the sheriff court so you talked about in the case of high courts on ad would have a single case and the cost of that um that fine line will that disappear then under the specialist court in other words who are you going to instruct to take on those cases well there'll be ad's that will take on those cases how will you decide that then if there's no distinction between the moment cases that have to go to the high court in cases have to or you've decided to go to the sheriff court see what i mean so for my perspective i would i see the specialist sexual offences court as being the supreme court along sitting alongside the high court the supreme court in the prosecution of bisexual crime and in our high court advocate deputes with my commission prosecute these cases and i certainly wouldn't see any diminution in the quality training and standard of prosecutor and so for the high the specialist sexual offences court from my perspective i don't see it being anything other than an advocate deputy prosecuting with extended rights of audience so it wouldn't be someone who didn't have extended rights of audience to prosecute in the high court that would be prosecuting these cases they they are very serious cases and if we're going to deal with them appropriately and give them the recognition that they deserve i foresee it being advocate deputes prosecuting these cases because it's going to be part of the high court yes thank you i think that's what those interested would expect to happen because in the many proposals over the years in this parliament about how we deal with rape cases maintaining the seriousness of rape which currently could only be prosecuted in the high court i think is really really important is important to me certainly and i know many others um does that therefore mean that in your view that we should legislate to ensure that because a future lord advocate might take a different view that would be my worry so i'm i'm very content with your answer on this but i'm interested to protect that that fine line i mean arguably i can think of cases that in my opinion um should have gone to the high court that we're not understanding that that's a fine line because of the seriousness of it and i completely take the point that there's so many factors to consider but who prosecutes and who has rights of audience and who represents the accused i really feel strongly should be no change to that if we're changing the nature of the court i just wondered if you could respond to that yes so i recognise the distinction in our roles ms mcneil and you are an elected member of parliament representing your constituents in the voice of the scottish people and i think that all i can do is seek to inform you as to what the current prosecutorial view is across scotland in relation to these types of offences and it's this they are the most challenging difficult cases that we prosecute the concern us greatly the the the thing that we talk about most they're the issue that gives us the greatest cause for concern there's not a single member of the prosecution service that i've met that joined the prosecution service in order to do these cases badly everybody wants to do them well and wants to do them to the best of their ability i see the prosecution of these types of cases as of critical importance to the whole of the criminal justice system and i would see no diminution at all being applied to the standard of prosecutor that we would be taking these cases if the sexual offence court was part of the high court it would be high court prosecutors as i've said previously i consider this issue to be the challenge of our generation as prosecutors we need to resolve these issues in and around sexual crime they have a profound impact on the victims the ruin lies we've got to do something about it we've got to have a better system thank you very much this is my final question some of us attended our round table discussion with rape crisis and as you would expect as you have said in your evidence the experience of rape sexual offence victims it's just appalling we did have one survivor who came to the round table to say that they had a completely different experience but it was very recent and she talked about how she got some time with advocate debut and her experience was really positive so i take from that that maybe there's already some changes in the system but my question is do you think as a standard practice and i appreciate all the implications for resources when i'm asking this question i've been able to have a meeting with the advocate deputy prosecutor and even if because i've heard of cases where victims have said they've sat in complete frustration in the court where they feel that the prosecutor has not maybe mentioned something that's really important now i fully appreciate the independence of the practitioner and i've realized it's an important principle but do you think that maybe there should be more exposure for victims in relation to the prosecution of their cases or not so i have always in my time as an advocate debut met a victim of sexual crime before he or she gave evidence in court and that was something that i was a great supporter of from very early on and i've never changed my view on that and it is the practice in the high court that advocate deputies meet victims of this type of crime before they give their evidence i'd like to do that better and our current review of sexual offences i hope will deliver on that i think there's a greater challenge in the sheriff and jury court where you can see the pressures on the prosecutor and the greater burden of casework they have and the resources available there are very different but i think that i can say this i know how to do these cases and it requires a significant support for the victim of the crime and it requires meeting the victim of crime to give them the necessary confidence that the prosecutor understands them understands the case and gives them some assistance in preparing for giving evidence and i would like to give you one example and i think it's a really important one i put my skill and experience and i don't make out that i'm anything particularly special to critical use in the trial of a man called mark adams he had an OBE he was a 54 year old businessman a graduate of cambridge university and a former private secretary to john major and tony blair and he was convicted of the rape and sexual assault of an 18 year old student edinburgh city centre when she was on her way home from a night out during the festival in 2019 the case demonstrates that this type of offending is not just restricted to any particular class of person the accused was a man of outstanding intellect and he'd been honoured by the monarch with support understanding and careful guidance given in the meetings that i had with the young woman pretrial supported by a member of the procutive fiscal service she was able to overcome her fears and give evidence in court with the use of a screen and supporter when i first met that young woman she was shaking so much she could barely get into the room and she was transformed from somebody without any impropriety in my part with support proper guidance and direction to be able to come in to court and give her evidence with the screen and supporter and she gave powerful and compelling evidence and the jury returned to unanimous guilty verdict now we know how to do these cases we would like to do them that way but we need the resources for it thank you very much you've been on good morning thank you for your very powerful evidence so far including what you've just said there i was wanting to ask about something that i'd asked in the previous session is when i don't know if you've seen it or not and that's about independent legal representations what are your views on this because i think that what i'm getting from your submission is that the crown office is generally supportive of the idea and the provisions but does envisage some problems and i think that you've outlined some ways that they might be resolved i wonder if you could just expand that yes so the the crown aren't the victims lawyers and that is part of the fundamental problem whilst we can do some things within the concept of the public interest we can't do everything an independent lawyer would be able to do and that was really what underpinned i think the recognition that you need independent legal representation on the issue of the rape shield provisions because the impact on the victims article eight rights and the victim has individual rights in relation to the issues that arise in and around the 275 application so in relation to that application before it's granted it requires the applications made in court and the defence required to set out whether evidence should be admitted or elicited what the nature of the questioning that is proposed the issue at trial which the evidence is considered to be relevant the reasons as to why that evidence is considered relevant in the trial and the inferences which the applicant proposes to submit to the court that should draw from the evidence so there's very clear statutory provision so a properly drafted 275 application should contain sufficient evidence to enable the parties to be able to identify what the evidence is within the case that's relevant to the evidence that should be elicited so what is it within the case that the defence need to cross examine complainer on in order to properly pursue their defence case what is it so in order to determine whether or not that's right there has to be a question mark over the extent to which the crown would be responsible for receiving the application and thereafter identifying the evidence that would be necessary for them to properly advise the complainer and her lawyer to prepare the relevant arguments so if you have an independent legal representative in this area of the criminal justice process they've got to be able to understand what the evidence is how they could oppose the application so they've got to have access to the material in court and so we have to have a process by which that material is going to be disclosed and we are anxious to ensure that that process of disclosure is done is reviewed independently properly protects the rights of the accused and doesn't draw the crown into difficulties in relation to excuse me whether or not they're actually acting consistently with their independent role so what we're saying is in relation to the way that the ILR operates the court really is in a position to hear submissions from the parties on whether or not the 275 application has merit thereafter understand what it is within the case that requires to be disclosed and thereafter for the court to oversee that process I think it is very dangerous to put all of that responsibility in the hands of the crown that is deciding what the evidence is that should be disclosed and being responsible for the disclosure I think there has to be a proper sort of sifting mechanism in the 275 process so the application should be made the court looks at it is it something that's got merit is it not is it something that should be intimated to the complainer should it not because we know the intimation of these sorts of documents cannot be profoundly traumatising on victims and then a proper consideration of what material it is that defends the independent legal representative has to have access to in order to properly frame any opposition so it really I think it's important that we look at it with care not just say it's in the responsibility of the crown to administer I think need to have a proper processing court that protects the rights of the accused protects the independence of the crown delivers a proper process for the victim ensures it's trauma informed and you're not opening up a can of worms and allowing these applications to be sent to victims of sexual crime in a way that doesn't properly administer them with a trauma informed lens before they actually receive them we don't always get it right in the crown but we have set down very careful safeguards for the way in which we speak to victims about the fact that there's been an application in relation to the rape shield provisions we have very very many vulnerable individuals who in respect of giving that information to we've caused them severe problems severe mental health problems we deal with some most vulnerable people in society and you don't want to have a system that's going to make it worse and you don't want to have a system that puts a burden on the crown that is unnecessary and you don't want a system that's not properly adjudicated upon and administered by the court so i think what you're saying there is it you know i was just going back to a supportive submission is it you know you are supportive of this it would it's not fair to put it all on the crown but it does need to be thought out in terms of how it's going to work in practice yeah i think it really needs thought out i also think that in relation to the profession at large who will be taking on this role that my i would be concerned to ensure that there's a proper process of accreditation for solicitors who will be coming involved in this work who have no experience of persecuting in the public interest and who will operate it in private practice you we as i say we don't always get it right in the crown we're trying really hard to make improvements but you don't want just to take that away give it to an area of the profession that isn't properly trained and doesn't realize the profound implications of being involved with very vulnerable complainers in relation to an issue as a sensitive and as important as an application to pierce the rapeshield provisions and obviously my question so far and in the earlier session what's focusing on independent legal representation around the rapeshield provisions as you say and as Liddy Dorian said she only recommended it for that but i just wonder what your thoughts were for perhaps independent legal representation being provided for complainers in a wider context so perhaps at the start of you know maybe when they first make a complaint because a lot of the evidence that we've heard and i'm sure you've heard it as well is that when somebody goes to make a complaint in these situations they make a complaint at least and then that's it almost for them in terms of until the next year about you know contact from the criminal justice systems and do you think there's a role there for independent legal advice at an earlier stage being provided so that somebody could get through with people how things might pan out? I think that's something that would be worthy of consideration but it's certainly not something that I've given consideration to before today but what I would say is that if we had a system whereby it was properly trauma-formed the police engaged with victims of crime appropriately and the victim support services operated in a way that provided holistic wraparound care that's necessary and the Crown did what was necessary in relation to engagement with victims then I don't see the need for it. In my view in relation to what the Crown can do in engagement with victims is that we can do a lot more a lot more effectively and Suzanne Tanner case review is going to be reporting I think in February making recommendations in that regard but the example that I gave you of the case that I prosecuted is an example of what we can achieve and I know that the victim in that case was supported properly and I know from the reports that I received afterwards that she felt justice had been served so we have the tools available at the moment is just better management, greater understanding and a drive to improve and and it is also better resourcing that's required. Thank you and I think finally Echrona Mackay. Mr Quick question now just thinking back to the first evidence session you gave this committee at the start of the session and you said that radical reform would be needed to tackle men's violence against women and girls and I'm thinking that we're coming to that now because this could be the start of it but I wanted to ask you to support a pilot of single judge rape trials do you have any concerns about that? I support it for the reasons that have been expressed my anxiety is to ensure that when the Parliament takes the decision on that that it's done against the background of a properly informed reason debate that's the anxiety that I have about it and I don't say that anybody's voice should be discounted the review itself was split down the middle there were powerful arguments for and powerful arguments against and lawyers are good at presenting powerful arguments sometimes and so I'm afraid what I would say is it's over to the parliamentarians now it's what you believe to be appropriate in the interests of your the people of Scotland you're the democratically elected legislator and you now have your place to do what you think is right thing okay thank you very much thank you okay thank you I think sharon dowey you're indicating you want to ask a very short question just a very short question in the last point on the due release rape trials do you think that provisions for this should have been laid out in the bill itself rather than laying out a power for Scottish ministers to pilot this using secondary legislation I think that's not a matter for me I think the terms of the bill and what ministers decide on the way forward in relation to the legislation as a matter for ministers not the Lord Advocate but I would say that it's it is the case that everybody within the system requires to understand there needs to be a change in culture and views and legal change is not enough thank you very much okay I think on that note we'll bring the session to a close so can I thank you lord advocate for joining us today it's been a very interesting and useful session so on that we'll just have a short suspension to allow for a change of witnesses thank you thank you members so we now move on to our next panel for today and can I welcome David Fraser executive director at Scottish Courts and Tribunals Service and Danielle McLaughlin head of the Lord Justice Clerks review with the Scottish Courts and Tribunals Service so I intend to allow around about 40 minutes for this session so I'm going to open up with a general question which is no surprise around the specialist sexual offences court proposal and we've obviously taken quite substantial evidence already this morning from the Lord Advocate and Lady Dorian on this proposal so I wonder if I can just ask in view of the fact that Scottish Courts and Tribunals Service has expressed support for the creation of a sexual offences court I wonder if you can just outline in your view what the main benefits would be of that but also some of the challenges that could be faced as well let me bring in Mr Fraser first thank you very much indeed yes the Scottish Courts and Tribunals Service very much support the creation of this new specialist sexual offences court and it gives us the opportunity and I think you know the committee have heard from both Lady Dorian and the Lord Advocate in terms of some of the benefits that this will bring is a sea change potentially in terms of how these cases are dealt with it has the potential to encourage the population to see that we take these offences as a Scottish people very very seriously and it also has the potential to create additional business dare I say it through people having greater confidence in terms of the system as we currently see it if I pull it more down to within the organisation some of the benefits that I see is that we have got very much got a tour to your system in the moment and I think the Lord Advocate referred to that in terms of the level of resource which is given to each of the different tiers within the system the creation of a single national specialist sexual offences court gives us the opportunity to actually create a level playing field to deal with what has become an increasing amount of cases if we look at the numbers if we are to create the specialist court it removes about 47 percent I think of the business from the high court it removes about 11 percent of the business from the share of enduring court and actually creates a specialist court which will deal with more business in the high court once it is created so I think there's a lot of societal benefits in terms of this I think Lady Dorian touched it as well that you know there are other options of things we can do those would be seen I think as tinkering around the edges and I think we have done that in a number of ways in the past and it is time for I think a sheet classified at the clean sheet approachable actually a brand new court which encompasses a lot of new things things that have already started since we've discussed we've talked or you know the committee has considered the trauma informed aspect on how that will be part very much part of this court as well and I think probably finally from my perspective this is all about a change of culture I think Mr Finnie you talked about that in terms of this being very much focused in terms of the experience of the complainer as they come through the system I think I heard a lot of advocates say she's been in the judicial system sometimes so have I as an administrator within the Scottish courts and I think we are now seeing that change in terms of the attitude and in terms of recognition by those within the system that actually having the centre of attention and focus of the experience of the complainer as they come through the system is paramount and that certainly was the basis in which the Lady Dorian's review and how she conducted that review so probably a long answer but very much supportive and I think there's a lot of benefits and you talked about what challenges I see and I think probably Lady Dorian has already covered that in terms of how the legislation is drafted as opposed to what her views and vision was as she made that report so there is annuances if you like in terms of the legislation as it's been currently drafted set against what she saw in her vision and I wouldn't sort of go over what she's already gone over before the committee this morning. Thanks very much. I don't know if you would like to come in on that, Daniel McLaughlin. Thank you, convener. No, I would merely reiterate the majority almost everything that David said but also we've come as David mentioned after Lady Dorian who is the most person who can speak to the subject matter on this and David and I both supported Lady Dorian in the course of the review as well and we are now, as David said, operational colleagues within the CTS organisation as well. The fundamentals of this court is providing that uniformity. We've got a two-tier system. We will see increased case management at pH level which as Lady Dorian referenced does not happen at the sheriff court level. As David said, 11 per cent of sheriff court business currently can be categorised as sexual offence crimes and that adds to a total number of cases that's more than that's in the higher court currently. It's changing that uniformity how these cases are managed but most importantly increasing the experience for complainers and for the accused and for the fundable witnesses involved in it. One of the key aspects of the court is the pre-recording of evidence. The Lord Advocate and others reference delay in the system. The purpose of pre-recording of evidence is taking that evidence earlier, significantly earlier, particularly when we are in the unfortunate environment of extended delays because of the pandemic. Commissions can take an average 16 weeks from the start of a high court trial. Currently we are waiting, the latest data from SCTS is that the wait from pH to trial is 49 weeks so that's reducing complainers waiting time to give evidence by 36 weeks into that effect. So the key aspect is providing evidence earlier and also that allows it to be disclosed to and heard by the defence too which in turn should help reduce the matters that are in dispute, help assist preparation of trials and reduce the length of trials and improve the efficiency of case business generally. Thanks very much that's helpful and I suppose in the spirit of consistency because we did ask the Lord Advocate and Lady Dorian some questions around putting in place a specialist approach within the existing court structure and you've obviously articulated. I think you said Mr Fraser early on in your contribution that currently the system is two-tier but obviously in evidence we've heard an argument if you like for the current system to become more specialised if you like rather than go to the bother so to speak of creating a bespoke court. Is there anything further that you'd like to add just on that point? I was very much part of the group Lady Dorian's group I supported her and the discussions that formulated her report and that dimension was discussed in terms of actually could we create a specialism of being trauma informed within the High Court, could we create a separate specialism within the Sheriff Court but it was felt that this would be tinkering within the current system and I think Lady Dorian has already referred to the fact that what was required was an absolutely new approach to how we dealt with this set against that context and back down that this is an increasing issue in terms of the volumes that are coming through the course and it needs a long-term solution in order of how we will address and how we will deal with this particular type of offending. I'm going to open it up to members now and I think we've got Pauline McNeill followed by Sharon Dowey. Thank you very much, good afternoon. Thank you very much for your insights and I know you put a long involvement with us and thank you for that. My first question is I was surprised to hear you used the language of a two-tier system and I just wondered if you'd maybe elaborate a bit more on that because my lines of questioning to the Lord Advocate and Lady Dorian, which I was very content with the answers I have to say, would still be an important distinction between the seriousness of crimes which is why we have a high court and a lower court which it is and my understanding is that cases go to the lower court because they don't require to go to the high court so if you mean by the two-tier and a level playing field is he talking about the trauma-informed aspect of it because it would concern me if the suggestion is that we wrap up all the crimes which some will be more serious than others in one court. That's not the way I would have seen it. No. What this new specialist court does in essence is take the sexual offences out of the high court which it is a matter for the Lord Advocate in terms of which court the cases will be prosecuted and that is a decision for crime office in terms of what level within the system that they are prosecuted. The expectation is that the more serious crimes will go to the high court and the less serious crimes will go to the Sheriff and Dury Court but I think in terms of what we've already heard this morning is that there are some very complex and difficult cases that are within the Sheriff and Dury Court and what the new specialist court actually creates is the ability for specialist trained people and not just the judiciary it's the clerks of courts it's the prosecutors it's the defence looking at this type of offending with a very specialist lens being trauma-informed and there being an element of consistency in terms of the new court for all sexual offence cases I don't know if I've answered your question. I think so I think you have in relation to trauma-informed just just so for clarity in my part I mean there is an important distinction and we've had this exchange before about rape cases can only go to the high court so in a sense we have a legislative necessity for a two-tier system because of the seriousness of those kinds of I was just worried that the suggestion is that there's something wrong with having two tiers of crimes because there are but what I think what you're saying is if I understood it is that's the specialist the level playing field you're talking about it's the specialist nature of the crime and everything because I won't go through it today but the rights of audience or who prosecutes is will create to what in a sense by necessity I'm you know I've got very strong views on that Benny that's why yeah if I can just clarify that and hopefully put your mind at rest the creation of this court doesn't remove the need for certain cases to go through what would be the remaining high court and other non-sexual cases to go through the remaining sheriff and jury those tiers would still remain and quite rightly so for the different level it is the specialism that this court creates so I think we're agreeing thank you thank you so that these are helpful figures given the committee the 11 percent of business from the share of court but 47 percent of business so it's quite significant I just wondered I'm just wondering what does the high court look like in no circumstances then it's just a quieter court then it will it will deal with I mean that I think as well I mean that the committee is aware that when we we're talking about 47 percent of cases that's indictments that go through the high court sexual offence cases actually translate to more trials than other types of business so it actually comes out about 73 percent that actually proceed to trial so yes the high court will be a very different creature once the sexual offences court has been created do you think then when I said this to Lord Advocate was trying to envisage in my own mind what this court will look like so given we know that I some sexual offences case is going to be a substantially large court does that suggest that there might be a shift in resource then to the the specialist sexual offences court and what discussions have you had with the government about the resource implications of their proposal yeah I mean we have set out in the memorandum that you know there would be costs involved for the scourge courts and tribunal service mainly an initial set of costs but there would be an on-going running cost as well in creating in creating this single court the resource is very much we're not creating new business as a relation of this court the the what we are in essence doing is taking the existing business that is currently within the sheriff court and the existing business that was in the high court but also looking at the resources within these two different courts as well to create the new specialist sexual offences court and so the resources in the high court what would remain the high court it would be very much reduced with the resources that would be required for the specialist sexual offences court being actually part of that new court I suppose it may be forgive me I'm trying I like to visualize anything but it could be that the specialist sexual offences court could meet in what would be classical higher court but just be called something else and it still could be judges that would have presented in the high court in the my right to say that right okay and one of the key things as well at what the new specialist sexual offences court gives us is it will sit in a a vast increased number of locations that we currently sit or where the high court currently sits and so yes the specialist sexual offences court is envisaged that it will sit in the key areas where that type of business is actually predominant it doesn't necessarily preclude the need for the specialist sexual offences court to sit beyond that in any of our locations and again I think Lady Dorian alluded to that that we're not creating you a court accommodation we are just utilising the court accommodation we've got so to answer your question yes you could have a judge you will have the position where you have a senator who may sit as a high court judge but they might will also be ticketed and be able to sit in the specialist sexual offences court and they may sit in both courts it's not a case that we create a system that's so inflexible you wouldn't allow that you know you would you would allow the flexibility me to ensure that wherever the business is that's where the resources would be. Thank you. Sharon Dewey followed by John Swinney. Thank you. I think Pauline McNeill actually can have touched on some of the things I was going to cover. I was really looking at the financial memorandum for the bill and the costs of it because we've heard throughout about the resources it's going to take to create this new court so in the financial memorandum table 14 do you think that still accurately reflects the cost that you think it will take to set up the record and also the recurring cost because the recurring cost I thought looked quite low we've heard throughout as well you know it was mentioned about body worn cameras as well and that could be taken in evidence which obviously would include that's another cost implication and they still haven't been given out so have you had any conversations with the Scottish Government in relation to the cost and do you have an updated estimate of how much it would be? I'll start that but I'll let Mr Woodlachon conclude that answer if you don't mind. We have most definitely had conversations with the Scottish Government the information that we set out was that on the basis of what we anticipate the court will look like it does not take account of any potential increase in the level of business as we go forward if you know as the trajectory is such that sexual finding continues to increase year upon year but is there anything you would like to add to Mr Woodlachon? No I think we try to set out in our response to the finance committee's calls for views on the financial memorandum as well in addition to those costs there are the variable pulls and pushes of the environment we're currently in the costs for staffing for example are based on our 2223 pay deal so inevitably if we are continue to or seeking to recruit 24 clerks those costs may have a slight increase due to pay deals or changes in environment also there will be changes if for example we are relying upon the flexibility in real organisation and recruiting from our own internal pool of staff to gain that expertise and specialisms but if we do have to go to the market there are some changes in that one of the areas probably missed out is in relation to trauma informed practice and training inevitably obviously it's part of our organisational response to our commitment to do that we are looking at how we will roll out that training def across our whole organisation and that may impact on the costs we incur associated with training the staff specifically so we don't to cut my answer short and apologies for the ungrated response we believe what's in the financial memorandum supplemented by what is in our response to the calls for views is broadly our anticipated costs there may be some increases due to matters that are out with our control i the costs of training or the cost of staff or another proportion of the cost is in relation to developing an IT system and that will be dependent upon the final provisions that are in this bill because our system will have to adapt to whatever us parliamentary parliamentarians approve but also some parts of that have to be outsourced to third parties that's fine thank you thank you john swineyd followed by russia thank you thank you i wonder if you have any if you're able to share with the committee any data on the level of spare capacity within the court and tribunal infrastructure in scotland you know what what proportion what's your utilisation level of the court infrastructure in the country that is a very good question um it is one that if you want specifics i will have to come back and provide that information i know that in the high court the utilisation and it varies from court to court because it's very much based on the individual court programmes that happen in all the different courts um and what is programmed as opposed to actually what takes place now i know that within the high court the utilisation is very very high but as you come down the different tiers if you like down to the solemn and summary and the justice of peace court it does vary and i don't have that specific figures at hand mister if you can provide that to us with as much detail as possible mr Fraser because i think it's i think it's material to some of the questions around about improve which i'll come on to about improving the throughput of the court system and addressing some of the issues about delays that i heard with the lord advocate as you may have heard earlier on and i think it also gets to the nub of whether we need to build a new infrastructure for this which i'm profoundly sceptical about given the fact that i would imagine there is spare capacity it just might be spare capacity in the wrong place to so to suit particular schedules but you can give us you know where i'm getting to on that please do please i can give you perhaps a little bit i mean we have we found within the existing estate capacity to run the recovery programme um and that was through lots of different ways because we have now utilising a lot of the virtual in the civil side which released courtrooms that were then converted into criminal so we have got the physical capacity to do more business within the court of state if that is the area that you are coming from that's what i'm getting at right okay yes so i suppose what and actually the ground you've covered in that supplementary answer which is very helpful addresses some of what i'm i'm keen to air as part of the evidence for the committee that it doesn't have to be about the building of new buildings because court processes have changed dramatically as a consequence of covid there have been changes that have taken place that people have been trying to undertake for 50 years and nobody's been interested in them and they're now happening they had to happen because of covid and thankfully they've been retained some of the emergency legislation that some people in this parliament complain about that we've contained in force is actually quite helpful in addressing some of these challenges so the more you can write to us about that mr phraser the better okay can i give sorry mr swinney can i just give you one other thing that probably adds a little bit to that um one of the areas that the new specialist sexual offenses court is is looking at taking what really good things happen in the high court and looking at that um just you know touching on an example we did during the period of covid introduced virtual preliminary hearings within the high court um as one of the necessities required as a result of the pandemic as we come out of the pandemic we were asked actually this should be returned to a physical environment um we did that and then we found actually the practitioners and those preferred and actually saw it as a retrograde step reintroducing physical and asked us to go back to virtual which we now do and again these are some of the things that we would take forward into new special sex within the court you understand exactly where i'm coming from so i'd be keen to hear that further information the only thing i'd like to explore convener is is on the question that i was discussing with the lord advocate about delays and i don't know if you were in for the question that i was raising with the lord advocate but you know it strikes me that the solution to delays does not rest in the hands of one organisation it's a it's a joint effort between for example police scotland the judiciary sorry police scotland the court and tribunal service the crown practitioners and the judiciary i suppose what i'm interested in is for you to share with us what steps you feel you can take to address those issues that are obviously contributing to some of the very poor experience that complainers are having because processes are taking so long as part of that collaborative effort okay that's a very big question for the scotland tribunal service to to provide an answer about it will do my very best i mean we are fully committed in order to getting our delays back and the amount of time it is taking for complainers and absolutely sympathise with the time and the difficulties that the complainers and victims have as a result of the fact that yes it's taking much longer now to go through the court process and it did pre-pandemic we are working through the recovery programme we are programming everything we possibly can do we are working over capacity in terms of of creating that ability to actually claw back the length of time it's taking to go through the the court system and we are making inroads in terms of that we are working collaboratively with our justice partners i don't think there's anyone within the justice system who is not acutely aware of the need to actually get us back on an even keel as we go forward i'm very much hoping that we will have reached that position in time for the creation of potentially the sexual offences court because the more or less i anticipate and hope that we will have our recovery programme done and dusted in the time frame it will take for the introduction and use specialist sexual offences court and it would dovetail together and that for me would be a wonderful achievement and do you see progress being made in eroding the delays that are taking place yes i do is there data you can share with the committee on on that point there is indeed and we publish we publish both projections in terms of which is is developed in consultation with our crown colleagues in terms of what we see coming into the system how the system is behaving and then how long it will take us to actually recover we also publish quarterly reports in terms of what performance so i won't make that available for the committee sorry if i help mrs winney i've got some of the data in front of me as well as david says we work in collaboration with c o pfs and other justice partners to support the recovery programme an updated modelling paper was produced just before christmas since the start of the recovery programme the backlog has been reduced by 16344 cases with 227,262 trial trials at the end of november 2023 we've gone from waiting periods of up to 63 weeks at the start of the recovery programme to as at December as at november's waiting period it reduced to 49 weeks we are robustly reporting and working with our justice partners and we're committed to supporting the recovery programme and continuing to reduce that further we're working to a new renewed baseline of 20 000 cases falling towards the end of the recovery programme is the new baseline the one challenge we do have is that we're facing an increased volume of cases as we go forward so the backlog is no longer a backlog per se but it's the what was left from the pandemic but as a consequence of the new increased volume of cases as well i hope that that's very helpful indeed and in making that progress are there you know are there particular areas where you think there could be further improvements that would help to accelerate that progress that's been made we're moving a little bit i think off the sexual offences court and if i can talk more generally absolutely there are other things that are happening at other parts of the system and i would refer to the the summary case in terms of of the very healthy progress that's being made in terms of the pilot courts in relation to summary business and how that is managed and that's one area where actually that has the capacity to make greater efficiencies within the system and of course summary is our largest volume of business that goes through the court system so that's where the greatest impact is going to be but some of the lessons that are learned there can equally be applied across other parts as well thank you thank you thank you very much good afternoon lady dorian's review recommended the creation of the specialist sexual offences court and scottish court and tribunal service are supportive of that and just picking up on some of the questions put by pauline mignol earlier on your submission says that the inclusion of other crimes up to and including murder could add to much much higher costs being borne by the court service given that unpredictability and we heard from lady dorian today she still believes that crime of murder should not be in this new court what's your position on that and have you get any more information as to what the costs might look like in that scenario firstly yes i would absolutely support the position that lady dorian put forward that it will it was never envisioned in the model that we were looking at that that would be included within the sexual offences court you have to ask yourself then what becomes the purpose of the high court and if some of the primitive primitive jurisdictions of cases that go through that are then moved into the specialist sexual offences court such as murder and so yes i would i would i would say that legislation is drafted i would i would follow lady dorian's line that she gave you this morning i go sorry and in terms of the financial aspect i would ask ms mglockan is anything you would like to add in that that was the main point we were trying to make with our response to that is the extension to include murder for all the reasons david alluded to and also to lady dorian's review that that lady dorian alluded to as well that the expansion of murder creates a duplication between the high court and it has impacts on resources as well the the provisions is currently drafted of course have the benefit of scottish ministers having the ability to amend the list of offenses so there is obviously the potential for murder or other some of the other cases that others may have challenges about being added in the future but the purpose of lady dorian's review was the acknowledgement that we need to focus the most serious life impacting cases to the one uniformed court and use the finite resources we have in a better and more manageable way and i think that was our main concern i mean the lord advocate referenced a particularly horrific case that took place just six months ago in five and an individual who ultimately murdered his female partner but the evidence led was a huge catalogue of violence and abuse against her and many other female partners but your position would be that should remain a high court case rather than a sexual offenses court case if there's a sexual element i think that that should go into the specialist sexual offenses court for the very reasons that you're saying is that this was not an isolated incident or and i don't want to talk about specific cases but what we've heard there there can be a build-up in terms of previous behaviour and you know that is that should be in the specialist sexual offenses court i mean i raised that case because the lord advocate did so and it seems pertinent to this potential fault line and but it is your view that in a case as described that would even though murder is the primary charge in that case that would find itself in the sexual offenses court a big apart i'm going to backtrack sorry yeah because the ultimate in that case was that the there was a deceased victim as a result of that that no again you know in terms of the vision that lady dorian set out that would be the case that we'd actually remain within the high court because that predominantly is a murder case and the sexual offenses court and i'm going to go in a limb here predominantly the vision was that that would be dealing with the victims and complete sorry complainers that would actually be part of that as opposed to the deceased now i've probably gone out in a limb there miss with lockins going to correct me no i think what lady dorian visage was that if that sort of case remained within the high court we would put and ensure that there were relevant provisions in place whereby a high court judge who was trained in trauma informed practice and potentially may be a court judge of the sexual offenses court would preside over that case the most important thing is and apologies if we you may interpret our initial view of don't include murder in the court but there are these extreme examples there are transfer powers within the bill that would allow applications to be made in decisions to be the potential for that case to go into the specialist court to be discussed and determined anyway i mean in which case does it not then make you ask if the ability to impose the trauma informed best practice of the sexual offenses court to high court murder trial why bother with the great cost and effort of creating sexual offenses courts in the first place if i i will i will come back in terms of that and say that you know the whole fundamental point of doing this was looking at what happens within our system currently from the lens of those that come through the system from the complainers perspective and i think you know from from my involvement in the various reviews there's most absolutely a need that what we have got currently within the scottish jurisdiction has there is room for improvement and this is one way that you can make a you know a fundamental change in terms of what we do to try and make improvements on where we currently are we also have to look at the case volumes as well mr finlay if i may add is that wealth just under 50 percent or 50 percent on average of indictments to the high court equate to sexual offence cases that then increases this year to 74 percent of trial courts so 18 over 22 trial courts have already dealing with sexual offenses whereas as you would appreciate therefore a smaller proportion deal with murder so we very much of the views davidus has expressed as leedie dorian has expressed we need a new flesh clean sheet approach to this and while exceptions could be made to support the exceptional cases whereby there is a combination of murder with six serious sexual offenses those can be adapted but the large proportion of cases we need something more than that so our strong and you've note our position in the response we're strongly in support of the creation of the court apologies if i've gone over time the proposed judge only rape trials are the most contentious part of the bill arguably scts support them scts support the sexual offenses court the anonymity of victims the victim legal representation and indeed that i just wonder whether given your role as almost like a neutral party in many respects given the opposition in particular to the judge only rape trials whether there's any consideration given to perhaps the court service being potentially less being seen to be supportive of a government or establishment view for all these radical measures scts and tribunal services is there as an organization to support the judiciary and deliver the best that we possibly can in running and supporting the running of the courts from our perspective within the organization the creation of a single judge or juryless court from an operational perspective is something that we can do and it's something that we would support for the reasons set out that at the moment there is no evidence base to determine some of the things that were talked about at the point of the review and beyond and what it does is it creates from my perspective it creates an opportunity and if you set it within the parameters of a time limited pilot and not a normal pilot that we start a pilot and it will just continue on you do it for the purposes of gathering the information to then have the debate and then have the discussion of actually what is best in terms of going forward and I think there are there are benefits in doing that okay thank you very much thank you okay thank you um full to mcgregor and then I think pauline mcneil wants to come back it thank you thank you good afternoon now to the both of you um i'm just going to stick to the line of question and that uh was going on in the previous two panels as well and that's around about um this you've independent legal representation i mean your submission um is different again from both world elite endorians and the world advocates um and that you are raising concerns over resource implications of this and possibility of delays to cases just wonder if you can expand on your concerns around it and um if you think there's any any merit in the suggestions and how they could be achieved if not through this okay um for the first instance is we stress that we support in principle the creation of independent legal representation to support 275 applications as a member both of the review um we supported lady doing through those recommendations in just to clarify our criticisms are just currently and our concerns about delay in turn are a consequence of some of the way that has been presented in the bill the procedures and practices that are suggested in the bill that's what our main concerns are and I can articulate them fully if that would help our particular concern relates to what's referred to or what we refer to in our submissions as the disclosure process whereby a new process has been created in the bill to to allow documentation to be given to the complainers i lr representative that is a from our perspective is rather convoluted and will increase and require additional judicial resource will need an increase of a judicial court time but most importantly will act contrary to what we see was the tensions of Lady Dorian's review and also the intentions of the bill it will build in turn and delay for complainers because an additional process to disclose information to them before the actual decision on the case can be on the application can be made has been built into the process and there are a lot of other steps that depend on the outcome of the 275 before the impact of complainers so if we have a extra key hearing that's needed before we can have the 275 we can't then have the ground rules hearing you need a decision on the 275 to allow the ground rules hearing to take place to allow a commission to take place so it builds in unintended and I stress actually apologies I said convoluted but it's clearly unintended delay but it's created a process that from our perspective and as Lady Dorian alluded to could be much more simplified it also fails to address some of the key parts of Lady Dorian's recommendations there's a lack of clarification as to what will happen during trials if a 275 happens during a trial there's no certainty or no clarity in the bill as to what will happen the inference is that we will have to stop and delay the trial for an indefinite period of time which will inevitably cause complainers accusing all involved in the process concern and delaying the process I think it's it's it's that Mr Mr McGregor I can provide further clarity if that helps the key point of the disclosure process is I understand that is to allow the complainer to have additional information to respond to the 275 application currently the engagement with the complainer is done by crown and as I understand it that information isn't necessarily part of the information that they need to give to the complainer to advise the court of the process and allow the court to make their decision if I can come in sorry in terms of that just to absolutely clarify as well I mean you know we are supportive in terms of the the as as we've stated is we are supportive of independent legal representation for all the different reasons that we've talked about it is purely down to the mechanism of how this is envisioned it would work that as an organisation we see actually that needs to be streamlined and it needs to be revisited and I think we're happy to work with the Scottish Government to actually look at that dimension if if if that would be of assistance well that was my next question because it does sound like your support of the principle of it but perhaps like Lord Advocate you've got some concerns over how it might work in practice so I guess that that is my next question how how do we make it work easier what's what is the answer if you like or if it's not as simple as that you know you're obviously saying you'd be happy to work with the Scottish Government going forward but at this stage of scrutiny of the bill it'd be helpful for us to understand how it could how it could work that is an excellent question which I don't have an answer to and be absolutely honest I think what we'd need to do is go and look at what the alternative I mean to be honest it is not for scts to really sort of develop the policy and what you're asking me to do is develop the policy now we are happy to give our input in terms of how we would see from an operational perspective a system that would introduce this that would avoid some of the churn that we currently envisage and we're happy to have those discussions I think that's probably as far as I could go not really asking you to develop the policy but you've been quite clear that it's that as it's put out you know that you've got some issues with so I kind of what was asking was if you had any thoughts and suggestions about how they could be rectified and how it might work how it might work better in practice but I do accept what I do accept we are saying just now and it would take further discussions I think maybe just to supplement David's comments as I think the key areas and we're open to discussion to work with just as partners on it would be the disclosure and exercise and also identifying some of the key aspects that lady Dorian recommended that's not there currently as in what's to happen in relation to trials is there to be what's to be dealt with how are 275 sections subsection 9s to be dealt with though there's just matters that are not addressed and there's not some timescales that are not identified in the bill that would give the court greater certainty and would give all parties greater certainty Mr McGregor I've probably gone out in a limb by stating those matters but you've asked the question and those are the areas we're happy to have further discussions with Scottish Government on to allow a greater efficient process for all concerned because that's it we support these provisions it's just as currently drafted some of the mechanisms that have been put in place will unintentionally delay complainers getting their evidence taken and delay the journeys for all partners involved thank you final question from Pauline McNeill thank you very much it's just some clarity I was looking for Daniel so I mean this is a huge proposal that we've got to scrutinise so it's really important to understand what this would look like if passed into law so I'm sure you tell me if you're the wrong person to answer this but in answer to a question about from Russell Findlay about a murder case this is what's confusing me so at the moment murder can only be tried in the high court because it's the most serious crime and attracts the highest sentence and if it's a sexual element will attract an even higher sentence so so this is where I need clarity surely there could be no change to that but this is concerning me if if there's some great area now that murder cases could go to a court which is designed for sexual offences when the victim is dead I don't understand why there's any great area here could you explain there's I think the lady Dorian didn't want that great area she wanted murder to remain within the high court and if there was a charge or element of sexual offence to it that could be addressed properly by ensuring that the relevant court staff the judiciary were there the bill and so there's a murder case with a sexual element that would go to the high court that was what lady Dorian recommended and that's what you use that's your evidence right okay I misunderstood what he said to Russell Findlay I apologies it may have been because it was yeah so that's clear that won't change okay but the bill does allow the case with bird Dorian's sexual element to go to the sexual offences court that's exactly the point why but who do they need to address that question I don't understand why that would be consistent with what this is trying to achieve you see what I'm saying so we've heard evidence about just coming on on that just to provide a wee bit of clarification so I've just quickly looked at the policy memorandum for the bill and if I can quote paragraph 282 it says for the avoidance of doubt the decision as to whether any individual case including those involving a rape or murder is to be prosecuted in the sexual offences court will be a decision for independent prosecutors up to on behalf of the Lord Advocate the bill permits rather than for the buyers at the moment it's not a decision for the prosecutor murder is automatically tried in the high court and no Lord Advocate and no prosecutor can take it to any other court because it is the highest court and my concern remains which is if the bill which I right so I really realize my question should be direct to the cabinet secretary for justice because the legislation leaves that open for a prosecutor to allow the prosecution of a murder am I right in saying that the legislation allows the prosecution of a murder in the sexual offences court but that's a matter for the cabinet secretary who is right okay thank you thanks very much okay thank you on that no we're running out of time so can I thank both our witnesses this morning that's been a very helpful session and that now completes this agenda item thank you for attending just to remind members that we are meeting again tomorrow at lunchtime to look at the management of transgender prisoners and two related SSIs next week we will return to the victims witnesses and justice reform bill with evidence from survivors of sexual offence cases and then from victims and survivors organizations I'm sure that this will be a powerful and important session and I can I pay tribute in advance to those who will be attending so thank you and we'll now move into private session thank you