 Good morning, and welcome to the fifth meeting of the Criminal Justice Committee in 2024. We have no apologies this morning. I would like to welcome to the meeting the right honourable Dorothy Bain Casey Lord Advocate. Thank you for taking the time to attend today's meeting. It is very much appreciated. I know that we have already heard from Crown Office officials and have had written evidence. However, there were a few very important issues that the committee felt we needed to ask you specifically about, so we are very grateful that you were able to join us today, Lord Advocate. I intend to allow up to 60 minutes for this panel. I propose that we focus our questions to the Lord Advocate on the proposal for a victims commissioner and then move on to our questions on trauma-informed training and then finally the abolition of not proven and changes to jury majorities. I understand that the Lord Advocate does not want to make an opening statement, so if I may, I'll begin with an opening question on the victims commissioner provisions. We understand that you have concerns that the provisions in the bill relating to the proposed victims and witnesses commissioner might unintentionally interfere with your independence, so I wonder if you can outline just what those concerns are and any changes that you consider would be needed to address them. I understand that Laura Buckan and Alastair McLeod gave evidence about the matter and focused the concerns for the committee. What I would say in relation to the matter is that the Crown Office and the Scottish Government have been working together on the issues outlined in the written submissions. I did not and do not consider that the bill is incompatible with my independence. The proposals in the Crown's written submissions did not impact on the intended powers of the victim and witnesses commissioner nor the accountability of the Crown Office and Procurator Fiscal Service or the Lord Advocate in relation to the experience of victims and witnesses. I think that the concern was raised that those reading the bill may consider that the victims commissioner could make recommendations which impinged on the Lord Advocate's independence on prosecution decisions and prosecution policy, but we are reassured that that is not the intention of the bill. In light of further discussions that I have had with the Scottish Government and the Crown, it is no longer being submitted that there requires any amendment to the proposed bill. The process of sharing the written submissions to the committee and the exploration of the issues before the committee, and further work with the Scottish Government officials have resolved any of the issues that were of concern previously. Thank you very much. That is a very helpful update and clarification on that particular issue. I suppose that, just by way of follow-up on still with victims commissioner, obviously in the bill there are a number of proposals set out in terms of the role that the commissioner would have. I am interested in whether or not generally there might be anything else beyond what is set out that you feel would be relevant for a commissioner role to include that may not already be in the bill. Or, as it stands at the moment, are you supportive? I think from your previous answer that you are supportive of what those provisions are. The Crown is supportive of the aims of the legislation to improve the experience of victims and witnesses and the establishment of victims and witnesses commissioner. The Crown recognises the importance of a single body that can promote and support the rights and interests of victims and witnesses in relation to both criminal justice agencies and third sector organisations. The Crown would engage and collaborate with the commissioner if the role is established. It is clear that the commissioner would not have the power to interfere with the Lord Attic's independence on prosecutorial decisions and prosecution policy, but the commissioner would be influential on bringing a voice for the victims and witnesses in this area of work, which would be welcome and informative. It would be a step that is radical and one that would require the Crown to respond to an influential body with the recognition that the victim's commissioner would be given. I am going to open it up to members now. I think that Pauline McNeill might be wanting to pick up on the victims' commissioner. That was what I was going to ask you, Lord Attic. We have heard evidence that is quite correct from witnesses whose reading of the bill is that this would give powers that could potentially cross over the independence. Not just of the Crown Office, but of other agencies as well, and that is clearly not the powers within the bill. You have answered that already, but perhaps you agree that the Government probably needs to do a bit more work. Should this be passed into law to make sure that everybody understands the role of the victims' commissioner in relation to this point? With any new role and such an important role that has been granted, it is critical that the manner in which the role will be operated and the powers of the role are clearly defined and made clear in legislation and also in any policy memorandum, and any further guidance that would be issued on the development and appointment of the role. As with everything new, there requires to be education for all who are involved in and around the issue, but you are quite right, Ms McNeill, about the restrictions on the role. It is an important role and one that will hopefully reflect well on the prosecution system in the future. I have heard quite a bit of evidence and I have been really interested in particularly the evidence of one witness who had a very positive experience in recent times. One of those strands, if you like, of good experience is because they had access to the advocate deput. Is this a question for me, considering the bill? Would that resource be considerable to set up the commission—I am guessing that John Swinney is in the room—that can correct me from about £20 million, all with a figure that starts off with a figure? Closer to one, I would say. Closer to one, okay. That is the resource that might be able to be used elsewhere, and that is a consideration that the committee has got to think about. Just to whistle my question to you, Lord Advocate, if the Crown Office was going to provide more access to advocate deputs for victims to have a better experience, would you need some additional resource for that? Is that a fair consideration, as against spending money on the victims commissioner? The choice of spending is not for me. The choice of spending and where resources should be applied are for this committee, first and foremost, and ultimately for Parliament. I think that that is a very good question that you asked, and perhaps I could be allowed to give a reasonably extensive answer to that, because it does put into perspective a lot of what the committee is looking at. I read the evidence that you are referring to, and I read the evidence of the mistakes of Ysim, Ms Ellis, Ash Bay and also the victims who were in the Lidoy case evidence. In relation to three of those cases, Stakes, Ysim and Ellis, I am sorry if I got the wrong name there, all of those cases were indicted well before my time as Lord Advocate. The case of Ellis came to trial on May 2022, but that was on the back of a very long period of closure for the courts, and I am sure that her case was heavily impacted by the Covid-19 pandemic. The case of Ash Bay was one that was tried in 2023, and that was the case in respect of which there was positive evidence given about the interaction of the aggregate deput with the victim before court and also the support that she got in relation to court visits. She described a real sense of support, and she described how that helped her to be prepared for giving evidence in court. I previously said that that was a very important part of the role of the aggregate deput, and it is of enormous importance that we properly support victims of this type of crime from the point of report all the way through the justice system. What is relevant to the availability of an aggregate deput for that support and, indeed, the support for a victim before trial is the resource that we can apply to that sort of support? When I was appointed Lord Advocate in June 2021, there were only 32 advocate deputs in post, and that is not because it was not recognised that more were not needed or that there was not the budget for those individuals. It was because there was a real challenge coming off the back of the pandemic to encourage individuals to take up the very formidable role of an advocate deput. When I was appointed Lord Advocate, I identified the enormous challenges with the numbers of aggregate deputs that were in post, the huge pressures that put on the serving aggregate deputs to deal with the level of work that they had. They were dealing with 25 to sometimes 30 preliminary hearings per cycle, and the maximum that you can do well would be in and around the number of 12. We were just asking far too much of a very small group of people, so the availability of individuals to consult before trial and to be given a case in good time before trial was heavily compromised. I set about when I was appointed to really try to encourage people to become advocate deputs. It was a very important part of the work that I undertook immediately. I identified the huge pressures on the rota. I identified, in addition to that, the enormity of the evidential challenges that faced sexual crime. I had in mind the Lord Advocate's reference in relation to evidence, rules over distress. I also, through the work that I had done in private practice, promoted victim's rights, for example, in the case of WF against Scottish ministers and RR against the Lord Advocate, promoting victim's rights, recognised that what was being given to victims of sexual crime just simply wasn't good enough. I have set about seeking to improve the number of advocate deputs that we now have, which is at 70.5. We should have 77.5, but we still are challenged in and around those numbers. I took the Lord Advocate's references, and we have further references to take this year. I worked very hard on the rota, with the very dedicated team of Principal Crown Council. I have been able to develop opportunities for early allocation of work. I have been seeking to inspire those in the service to recognise that the prosecution in the public interest encompasses supporting victims through the process and ensuring that they can give their best evidence. I think that what you see in the case of 2023 is the positive developments in and around all the work that has been done. I think that that is an enormous way that we can improve matters. It is going to take more resource. Ultimately, if you need early allocation of cases, if you need better trained prosecutors, if you need more prosecutors, and if you need better support systems in the service itself, the Crown Overs and Procurator Fiscal Service is going to take a resource that we do not have at the moment. I am going to ask you about the victims commissioner, and you have preempted my question by saying that the initial concerns that the Crown raised in their submission about the need to amend sections 16 and 17 have been laid by conversations with the Scottish Government, but just for clarity is that the case that the initial concern was that a requirement on the Crown to respond to the commissioner's annual report might have been seen as meddling in the Lord Advocate's independence where as now you accept. What was the nature of the conversation with the Scottish Government? Was the concern premature, or was there more explanation provided by the Scottish Government? I think that there was a better exploration of the issue. There was a sharing of an understanding of the legislative provisions. There was a desire to understand what Scottish Government envisaged from legislation, and there is always, within the Crown Office and Procurator Fiscal Service, a desire to ensure that we always continue to protect the independence of the Lord Advocate. Those are very important issues. People were concerned to ensure that the protections enshrined in the Scotland Act were not in any way compromised. I would say that all of the discussions and concerns are rejuvenated from a good place, and I can say that the matters have been resolved. I know that the senior executive team in the Crown Office discussed the issue and indicated their contentment with what was proposed. I am grateful to give you an answer from the Lord Advocate. What the Lord Advocate has put on the record is very welcome in that respect, but it begs the question in my mind as to whether any of that needs to be formalised beyond what has been the basis of agreement between the Government and the Crown. I wonder if the Lord Advocate would say that, although we have reached a place of welcome understanding and that the independence of the Crown has been clarified and assured, I wonder whether the Lord Advocate believes that there is any degree of formalisation required beyond what has been arrived at so far. Perhaps I could reflect again on that point, Mr Swinney. I understand that there is contentment with the legislation as it is drafted, but perhaps I could take that away again and come back and specifically answer that question in writing, because it would be worth my exploring both with Crown Office officials and Scottish Government officials on that issue, because it is an important one, I see. You might, for example—I am grateful for that answer, Lord Advocate—that it does not require legislative change but perhaps a memorandum of understanding or something of that nature, but if that could be explored. We can obviously explore that with the cabinet secretary when we see her next week, but I am grateful for that clarification. In terms of trauma-informed practice, which is in part 2 of the bill, the Crown Office is in the process of implementing something called trauma-informed justice and knowledge and skills framework for working with victims and witnesses. Given that we are told that this is already happening, it perhaps begs what has been our recurring question, which is, do we need legislation to enshrine trauma-informed practice when, in fact, this is happening at your behest already within the Crown? I think that the embedding of trauma-informed practice as proposed in legislation is critical to the development of a criminal justice system that properly delivers on the needs for victims. I think that the trauma-informed practice reflects not just the role of the prosecutor but those who work within the Scottish Courts and Tribunals Service from court staff through to the Scottish Courts and Tribunals Service's responsibilities in relation to listing and managing business and, in addition to the responsibility of the judiciary overseeing those very sensitive cases. I think that, whilst, yes, people talk about the fact that they realise what trauma-informed practice is now and are saying that we are committed to it and we are providing training on it, I think that the importance of embedding it in legislation means that it is there and people recognise that it is a statutory responsibility that has to be adhered to and cannot be ignored. It is just not something that you sign up to by reason of wanting to do it or not wanting to do it. It is a compulsor that is critical to the development of the sort of sexual offences courts and the sort of prosecution system that those who are advocating for change really desire. In what way does the framework differ from what the legislation will achieve practically? I can only talk about what the Crown are doing in relation to their trauma-informed practice. We have been highly influenced by the work of the agencies involved in providing Scottish Governments reports on those matters. I can talk about what the Crown is doing and what the framework means for that, but I cannot go much further. It is more just that the framework, I am not fully up to speed on its contents or what it is going to achieve and how that might differ from what the legislation will seek to achieve. I suppose that I can only talk about the Crown's response to this. It is important that we recognise that we work within a prosecutorial system that is adversarial, which means that there are certain constraints to the extent that we can offer, for example, choice to victims and witnesses. Prosecutors act in the public interest and do not represent individual victims or witnesses. That means that, although prosecutors will take account of a range of factors, including a victim's views, when reaching a decision, their views will not necessarily determine the decision that we take. We also prosecute within the rules of evidence and the procedure of the Scottish legal system, which enshrines the rights that I am accused, person to a fair trial and places the responsibility for proving the charges against them beyond reasonable doubt on the prosecutor. Many of the cases that we are involved in require us to lead evidence from witnesses and an accused person is entitled to cross-examine those witnesses during the trial. Inevitably, that will involve asking the victim to recall and speak about events, which might be very traumatic for them. All that said, many of the current processes already enshrine trauma-informed principles. Those include the use of special measures to help vulnerable witnesses to give effective evidence, rules of evidence that protect complainers from irrelevant and inappropriate questioning, a better understanding of the need for courtroom advocacy to take into account the communication needs of vulnerable witnesses, recognition by the courts that where a party wishes to recover sensitive personal records relating to a witness, a witness should be given the opportunity to make representations and the ability to take evidence from children and particularly vulnerable witnesses at a commission hearing before a trial. All those processes are in place, but I think that the way in which we then go on to train prosecutors and those who deal directly with victims throughout the service necessitates a development of a level of understanding that was absent previously, and the compulsator on us to do that is a very important one, and it's one that we've reacted responsibly to. I hope that answers your question. I'm not really quite sure if it does, Mr Finlay. I've got a general question if that's okay very quickly. We've got a submission from the Senators of the College of Justice, some of whom support the proposed pilot scheme and due to its rape trials and so on, and some of whom are opposed to this. Those who are opposed to say that it may not comply with article 6 of the ECHR and may not be within the legislative competence of the Scottish Parliament and sites the Scotland Act, which you referred to in your initial answer to me about independence of law and advocate. I just wonder whether the Crown Office has assessed that particular warning that they have made about this potential issue of legislative incompetence and if so, how real that threat is, what's being done to address it, if anything, and what we as members should perhaps do? How serious we should take that? Many other parts of the profession are split down. I'm not sure what the proportion was of the judiciary who indicated a concern in the most latest submission about the proposal. The highest that they came to in relation to those issues was that it may breach article 6 and it may not be within the legislative competence of the Parliament. I didn't read their submission as having carried out a full legal analysis of that. That's my reading of it, at least, Mr Finlay. What I know happened in the prelude to all of the work that's being done by the committee was that issues around the concerns over article 6 were considered with great care, as was the legislative competence of the bill and the view of the Scottish Government as a senior legal adviser to the Scottish Government and head of the prosecution service and those within the service supporting me is that the provisions of the bill are within the legislative competence of the Parliament and there's no breach of article 6 in relation to the suggestion that you could have a jury trial without a jury. I think there's very sound case law across the board and indeed from the European Court of Human Rights that indicates that you don't need to have a trial by jury to have a fair trial. In their warning, they specify section 292 of the Scotland Act. Does that relate to trial by jury? Section 292 of the Scotland Act don't have it in front of me, but I think the point is that it may breach article 6, which is the right to a fair trial, and it may impact on the Lord Advocates. It may be relevant to legislative competence of the bill, but those matters were looked at. You're satisfied that that's not the case? I was, yes. I'm going to remind members that we're looking at parts 1 to 4 of the bill and I'm going to bring in Sharon Dowie and then John Swinney. I just want to follow up again on the points that were raised by Pauline McNeill on the varying experiences of witnesses and the point that was raised by Russell Finlay on the requirement for legislation. We've heard from witnesses that came before us about the different experiences that they've had and just in the submission we've got in it that should provide evidence that there should be sufficient time for a court visit and meaningful discussions between the witness and prosecutor about special measures. In another part, it has prosecutors act in the public interest and do not represent individual complainers or witnesses, so do all advocate deputes, are they all supportive of spending extra time with complainers to explain the processes or is it down to what you said earlier on about the resources? My instruction to all of the advocate deputes is that they must meet a victim before they give their evidence in court. I have developed, since my appointment, a system where in some of the very serious cases we allocate an advocate depute at the point at which the case is reported. We can do that in every case, but in some of the very difficult cases that we've had, stranger rape cases and very, very vulnerable victims, cases involving children at the point of report, I've allocated an advocate depute, they've met the victim, they've talked through how they're going to give their evidence, how their evidence would be best taken, they've supported them in court visits and they've met them at least twice before they give their evidence in trial. That is how I would like all of the cases to be done, but we simply cannot do that, we simply do not have the resource. I think that it is quite right to point out there's a distinction between the role of the public prosecutor who prosecutes in the public interest and the role of a victim's own lawyer, which is what the independent legal representation provisions are about, but the role of a public prosecutor is to prosecute in the public interest. In my view, the public interest is a wide concept and within that it must mean that victims who come to court to give evidence in these very difficult cases are properly supported and that proper support must be through the sort of engagement that you highlighted, the evidence sessions indicated was necessary, support in the pretrial process, support in deciding how you're going to give your evidence, one of the most important decisions in the case, support in giving your evidence and preparing the victim for court, and support thereafter in the form of meetings and discussions about the case. We do all of these things as much as we possibly can do, but we don't do it in all our cases because we simply do not have the resource. You can understand that if there are many, many cases listed for trial and some of those are floating trials, we don't know the date that they're going to start on, it's very, very challenging to organise a rota that means all these individuals who are coming to court get the sort of support that they need. I would like to be able to do more. I did highlight some of the work that I've done as Lord Advocate, but one of the most exciting things that we're doing, and I think is going to hopefully lead to significant transformation, is the review that Suzanne Tanner is doing. It is the most significant review that's ever been undertaken into the work of sexual crime in Crown Office, and I'm sure that you'll hear more about it, but just to give you this sense of this, it was commissioned by me at the end of 2021, not long after I was appointed. The terms of reference were agreed with me. They were broad and have demanded a large-scale inquiry using mixed methods of approach to evidence gathering, including seeking personal views from over 400 contributors in individual interviews, group interviews, focus groups, questionnaires and round-table events to consider proposed recommendations. There has been enormous engagement with those within the Crown Office and Procuse Biscule Service about those types of cases. There will be very significant recommendations coming from the review, and I'm very excited about it. I think that it will highlight everything that I've ever spoken about in relation to the challenges with those cases and what we don't get right at the moment. Just on the point that Russell Finlay does about legislation, you seem to be doing an awful lot of work already. Is the reason that we require the legislation because along with that comes a financial memorandum that I'll actually give you resources to be able to implement it? I think that's a very big part of it, Ms Dowey. I think that's a very important point that you make. This doesn't come without the need for significant resource, and I think that we're here today discussing this issue because it has been a terrible burden on the Crown Office and Procuse Biscule Service for as long as I possibly can remember. We want to make it better, and in order to make it better we need to change things. As part of the change, it does mean a recognition that we try to do all that we can do at the moment, but we can't do everything. You see that in the varying reports that you got from victims who came to give evidence here. Some of what they spoke about is just unacceptable. Some of it was really encouraging, particularly Ms Ashby's experience in 2023. There's a lot that still needs to be done to be able to provide what Ms Ashby had to every victim, and not every victim's the same. They all need to have their needs recognised and, as far as possible, bespoke packages of support delivered to ensure that they give their best evidence and that they have a good experience of the system that is just not delivering at the moment. With the current and expected future resources, do you think that trauma-informed practices can be implemented meaningfully? The indication in our financial response to financial memorandum was that it would need further resource in order to deliver on the training that is necessary for trauma-informed practice. I think that Ms Bucking and I gave evidence about that before. I have the figure. I think that it is something in the region of £600,000. What resources are required? I think that we have previously given evidence that the resources required would exceed current resource provision. Currently, we can advise that the costs to the Crown for all existing staff to undertake one day of training in relation to trauma-informed practice would be £600,000 if the resources requirement fell within 2020 to 2024. Should the requirement fall in future years, an adjustment would be appropriate, pay award uplifts and inflation rises would be cry to be applied. The Crown Office anticipates incurring costs from developing and delivering training in trauma-informed practice with its staff. As with other agencies, irrespective of the proposals of the bill, we have already committed to the implementation to the skills framework. We envisage adapting the framework to make the more trauma-informed and resource implications. We can provide all that we can so that we can do on the existing budget. I wonder if I could ask some questions in relation to part 4, particularly in relation to the composition of juries. I wonder if you would share with the committee any issues that you believe the committee needs to be mindful of in the consideration of the parts of the bill that relate to the change to the jury majority provisions away from a simple majority to a two-thirds majority. What considerations should the committee have about that particular proposal? In my view, I consider that the changes that are proposed will make it more difficult to get a conviction in the type of cases that we are talking about here today. I think that we need to recognise that currently our system operates with interconnected concepts of a three-verdits corroboration, which are very important to understanding what needs to be considered when changes are being made. Our system requires corroboration unlike the system in England and Wales, for example. My concern is that the proposals only legislate for a guilty verdict to require the identified two-thirds majority, and no similar requirement is imposed in relation to the return of a not guilty verdict. In other jurisdictions that operate a qualified majority or a requirement for unanimity, that applies to the returning of both guilty and not guilty verdicts, and the provisions in Scotland then would be unique in requiring only a majority for guilty verdicts. Previously, in evidence sessions and in written submissions, the Crown identified the potentially unsatisfactory situation where a jury made a decision where seven of the jury returned a verdict of guilty and five returned a not guilty verdict, but in the absence of a requirement for a majority of not guilty to be returned, a not guilty verdict would result, although the minority of the jury reached this verdict. I suggest that the situation is more than undesirable than the existing difficulties caused by the not-proven verdict and would be unsatisfactory for both the accused and the complainer. Although the individual verdict of each juror is not provided at the end of a trial and there is no requirement to establish the number of each verdict reached by the jury beyond whether our verdict is unanimous or by a majority, experience has shown that juries will often return to the court seeking guidance as to what verdict should be returned when the required majority has not been reached. That seems often. When juries seek guidance where, for example, eight votes have not been reached, there are seven for guilty, five for not guilty and three for not proven, and it's anticipated that notwithstanding clear directions from presiding judge and sheriffs, juries under the post-system may seek guidance from the court where the verdict is returned as seven guilty and five not guilty or where the jury is split six six. The Crown's position to this committee is that if Parliament is considering changing the majority, it might be worth considering whether the majority should remain for both guilty and not guilty verdicts and whether there should be a provision for retrial. Thank you Lord Advocate. It's a very substantial and important answer that you've provided the committee in that respect. I wonder if I can explore a couple of details about the answer. The first is in relation to the question that you raise understandably about in, for example, a 12-member jury and the decision is seven-five, so the two-thirds majority under the proposals of this bill are not reached. I wonder if you could spell out to the committee what you consider and the Crown considers to be the dangers for public confidence in the criminal justice system as a consequence of the fact that, for all time, simple majorities have resulted in convictions within the Scottish courts. We would suddenly be embarking on a position that would have a simple majority not being good enough but a majority still being there. I wonder what the Crown's thoughts are on the implications for public confidence in the criminal justice system? I think that it would erode public confidence in the justice system to go ahead with the two-thirds majority proposal without the sort of safeguards that the Crown is asking for, which is a provision for retrial. Currently, the system that we operate is one of a simple majority, but it is a system where there are 15 jurors and 53 per cent of the jury's verdict for guilty is required in order to return a guilty verdict. We are going to be increasing the percentage required of that jury for a guilty verdict and we are going to be in a situation where even where a majority has not come down in favour of a guilty verdict, there is still within a jury five people who have been voting for guilty. Five people have been voting for guilty, there is not the majority required and the case just no longer continues. The case is lost and it would just be the wrong way to proceed. We have very profound concerns about what was proposed for the reasons that have been set down in our written submissions and in the evidence previously given. My last question relates to a comment that you made about the fact that Scotland would be in a unique position if we were to embark on those proposals. Scotland is in a rather unique position just now because we have the three verdicts situation. I am not yet persuaded that replacing one unique situation with another unique situation is much of a step forward in that respect, particularly given the serious issues that you have placed on the record today, Lord Advocate. I wonder if you could perhaps share with the committee what you consider given your formidable track record in relation to the prosecution of crimes in this area that is of concern to the committee. Of the standard and the scale of challenge that corroboration puts into the prosecution of crimes of this nature as a unique feature of the Scottish criminal justice system to explain to the committee comparatively how much greater the hurdle is to get a conviction because of corroboration, which is not being in any way challenged or changed by this legislation, how high is the hurdle because of corroboration that needs to be overcome? And what do we need to be mindful of in addressing the implications of the height of that hurdle in the sense of decision that we have to comment on to Parliament in that respect? The issue around corroboration is a matter that this Parliament has looked at before. There has been a previous Lord Carlyw's review and it is an issue that I know many survivors in relation to sexual crime talk about as being a real barrier to justice. And I think in the judiciary's response to the consultation exercise, they moved away from previous opposition to removal of corroboration to supporting removal of corroboration because they described it just as such a barrier to justice. But there's very profound issues in and around the rules of corroboration that aren't part of what this committee is looking at, but from the perspective of prosecutors, in every case, we have to look to see whether or not there's corroboration. In cases of sexual crime, which are often committed in clandestine circumstances, we struggle to identify corroborative evidence because it is the type of case that is committed in secret between the assailant and the victim, and there's not very often eyewitnesses. So there's always a challenge in these cases to look for and find corroboration. I think that the committee knows a little bit about the Lord Advocate's reference that I took that overturned the longstanding authority of Smith Against Lease, which was a case from the 1990s that set down the rules that for corroboration in cases of sexual crime you required to prove each element of the crime. That is that the accused committed the crime, the accused was responsible and that the complainer was sexually assaulted and in a case of rape that she was penetrated, and these separate elements of the crime required corroboration, penetration, lack of consent, identification of accused. The Lord Advocate's reference that I took, which was a big part of why I took the role of Lord Advocate in the first place challenged that authority and re-looked again at all the historical authorities, the institutional writers and the Court of Appeal overturned the five judge bench decision in Smith Against Lease and ruled that in cases of sexual crime, and indeed it relates to other cases, in cases of sexual crime all you need is evidence that the crime was committed and the accused committed it and you needed corroboration of the fact that the crime was committed and the accused committed it. So in relation to corroboration of the crime now, we looked to the evidence of the complainer and we still have to find independent evidence that supports her account. And so, for example, in Smith Against Lease it was ruled that distress only corroborated lack of consent, but the new ruling, which overturns Smith Against Lease, says that distress corroborates the complainer's account of the fact that she was sexually assaulted and the manner in which she was assaulted. And so previous understanding of the need for separate corroboration of penetration was ruled as a misunderstanding and a wrong application of the law. But that's a long answer to your question, Mr Swinney. It's the biggest challenge for prosecutors in the prosecution of these types of crimes to obtain corroboration. Can I ask one very brief, final question? Would it be fair for the committee to assume Lord Advocate that your view would be that where we to enact the changes to the jury majority provision, we would be making the challenge of securing convictions greater given that your success with the Lord Advocate's reference has improved the prospects and that it's almost it could be characterised as one step forward and two steps back? I think that your characterisation is sound. We have found concerns about it and we've provided submissions, given our concerns and to ensure consistency with other jurisdictions that require unanimity or a qualified majority. There should be provisions for the Crown to seek the authority of the court for a retrial where a majority is not reached. Those provisions are not unknown in Scots law. We have, for example, double jeopardy provisions and we have the power for the appeal court to order fresh prosecutions. Fundamentally, if you're going to increase the percentage of individuals that you require for a verdict of a guilty vote, you are going to make it far more challenging to secure a guilty verdict in a system that requires corroboration. I've got about 10 minutes left, so I'm going to bring in Rona Mackay. Thank you, convener. Good morning, Lord Advocate. Just following on from John Swinney's line of questioning, you previously gave evidence to say that only 20 per cent of single-rape cases were prosecuted, were on for convictions. Do you think that the removal of, if you've set aside corroboration because it's not in the bill, would the removal of not proven improve that situation? I just don't know the answer to that question. What I know is that juries are directed currently that are not proven and not guilty are both verdicts of acquittal. I know that there's discussion in some cases and case law in and around sheriffs and judges saying to juries, while it's just a different emphasis perhaps. The fundamental point is that it's a verdict of acquittal and juries know that. I can honestly say that, but I think that we could reasonably deduce from the fact that juries are told they're verdicts of acquittal, it might make no difference at all. If I'm understanding correctly, in terms of not proven, what you're saying is that if we get the balance right with regard to jury size and majority, it would work. Your point about retrials, would that not be an enormous burden on already overcrowded court system? Well, of course we operate, Crown operates within the structure of a criminal justice system that's created and determined by the legislative term, but there are some potential consequences of the proposed changes and the ancillary reforms that were indicated necessary following the removal of a not proven verdict. We urged caution in the extrapolation of previous research in suggesting that the removal of the not proven verdict would require to be balanced by an increase in majority required for a guilty verdict. We indicated it, it was unclear why the removal of not proven would result in an increase in conviction rates. We think that there's no logical argument that can be made that a properly directed jury who's discharging their oath would, after hearing evidence, find that a case has not been proved beyond reasonable doubt and return to a not proven verdict in the free verdict system, would, on hearing the same evidence, decide that the case has now been proved and return a guilty verdict in a two verdict system. That's the concern. I recognise the point that you make about provisions for retrial, but my point is that, if you're going to go with the proposals, you have to be able to provide some form of safeguard for the situation that will arise where you have a seven-five split in a jury, and my submission is that it would be appropriate that, following the failure of a jury to reach the required majority, the Crown could seek the authority of the court to re-raise proceedings. It wouldn't be an automatic right to re-raise and would give careful consideration to the issue, including the public interest in undertaking a second trial, and the court would have to be satisfied as to the appropriateness of granting any such application. I think that we can take some confidence from the way in which that works in England, because research indicates that hung juries are about 1 per cent. Evidence was given that that might include a single charge among other charges. However, it could be that the murder charge in an indictment of smaller assaults might be a significant charge, and even at the rate of 1 per cent that would still amount to somewhere in the region of 20 trials per annum, based on current projections of 2,100 jury trials in which evidence is being led in the period 23 to 24. I don't think that it would place the burden on the system that has been highlighted. I'm assuming that it's not a road that you would want to go down anywhere if we could get the balance right with what you consider to be a fair jury size. I think that everything is so interconnected. I think that that's often what has always been said, that the whole system is balanced out by different checks and balances, and we have inherited our system from our forefathers and we have been working in it, but it's only right that you look to change and it's only right that you challenge what's gone before and ask a question, is it right? In doing that, recognise the strengths of some of what's gone before in addition to recognising some of the weaknesses that we deal with day in and day out and we've got to change. We're going to bring in Fulton MacGregor. We're just coming up to time, so if we can ask you to be brief, please. Thank you. Good morning to the Lord Advocate. As remaining on part 4, I think that you have given a very fulsome response to part 4, so it will be a brief question. I know that this is a question for the Scottish Government, primarily not yourself, but I just wanted to know your views on why you think those proposals have been put to us. What I'm trying to understand is where has this link came from between getting rid of not proven and changing the jury size. I'm sure that the Government won't call it that, but it's some sort of compromise, almost. That's just my word, so that's no dailies words, not the committee or the Governments. I'm just trying to understand where you think this might have came from, because every witness we're asking doesn't seem to have an answer. I come here as the Lord Advocate, the independent head of prosecution service, responsible for the investigation of deaths in Scotland. I am not an elected member of Parliament. I am not involved in the development of policy, which is a matter for the legislature and the executive of the day. It's often said that the Lord Advocate is the legal adviser to the Government on legal issues and the separate role of independent head. That is genuinely the approach. The development of policy is a matter for the cabinet secretary of justice, the elected parliamentarians and the elected party in power of the day. It is not for me to comment on that, and I would never do that, because I protect the integrity of my office at all costs. I'm not going to be drawn on that question. I can't answer it. I apologize for asking that manner. What I was more thinking was, do you see any benefits, if we remove not proven, to change in the jury sizes? I know that you spoke clearly about the jury sizes, but if not proven is to be removed, do you think that something needs to change with the jury size, or I suppose what I'm asking is would you rather leave the jury sizes than the jury sizes? The question about not proven is whether you remove it or not. If you remove not proven, I've been asked whether that would mean more verdicts of guilty if that's the question. I just don't know the answer to that, but it's reasonable to suggest that, if juries have reached a stage where they're not satisfied of the guilt of an individual beyond reasonable doubt, whether the characterise that in their own mind is not guilty or not proven, you're not going to get over the hurdle and get to a guilty verdict. That's my answer to not proven. My answer to the changes in relation to the jury size and the changes to majority are that they are very concerning, and the would to my mind make it far more difficult to achieve a conviction in the type of cases that we are so concerned with here. We know that, for example, in the single accused acquaintance type rate cases, that the current level of conviction rate disguises the very low level of conviction rates in these types of cases. I think that one of the young women who spoke to you about her experience was that, even in her case, when she had a recording of an admission by the accused to the offence that it was only majority verdict, she echoes some of what I'm saying today. I think that she gave a very powerful evidence on that. As ever, I've got a number of members who would like to come in with supplementary questions. This is really important to part of our bill, so I'm going to bring in Pauline McNeill, then John Swinney, who can ask you to be as brief as possible. It was just on a specific point, Lord Advocate, which, given the committee a lot of food for consideration here in relation to the implications of the 75, not a two-thirds majority. You said as previously to the committee that, therefore, you thought the crown should have the... not an automatic right, but a right. I just wondered if you agreed that there needs to be some peer rules around this or transparency on what the grounds would be. Obviously, it's actually going to be pressurised by families and victims in every case. I would have thought to use that. I just wondered if you thought there should be some consideration should the Parliament legislate for every trial in those circumstances. I think that that would be protected by the fact that it wouldn't be an automatic right to reread proceedings and that, in any case, careful consideration would be given by the crown to the public interest in undertaking a second trial. The court would have to be satisfied that it was appropriate of granting any such application. I think that if the committee were to be looking at that issue, it might very well be that you could be further informed by an exploration of the way in which that currently is undertaken in England and Wales. There are numerous examples of cases that can be looked at where the crown have gone back in England and Wales and sought a retrial. Just for example, in a very high profile case recently, the Lucy Letby case, some of the charges were returned as guilty, some of them the jury couldn't return a verdict on and the crown went again on those charges. That was after very careful consideration. If it would help the committee, the crown could put in a further submission in and around the case law that is developed in England and Wales around the issue. What might be the very significant issues that we would look at in the context of our assessment of what is in the public interest? The question of what is in the public interest can encompass so many different things at each of the cases, the impact on the victim, the way that the evidence came out at trial. All of those things might be relevant to the public interest decision. We will undertake to do that. I just have one question if that is okay. I understand completely Lord Advocate that you are being asked to speculate. However, you have already indicated that you believe that, if the proposals went ahead and are currently proposed, they are likely to make it more difficult to get convictions. If it was the case that it was simply that the not proven verdict was to be abolished with no change in jury size and no change in majority, what would your view be on the likely impact on convictions? I appreciate what I am asking you to speculate. I speculate that, by removing the not proven verdict and retaining everything as it is, it would still be very challenging to get convictions in the type of cases that we are concerned with today. However, I do not think that what would change the rate of convictions, in my view, would be one very significant issue. The far better support that you give to victims and witnesses coming to court. If you have a better prepared victim, if they are ready for court, if they are prepared for the court process and if the confidence to deal with it and the confidence in the system and those who are involved in elusising their evidence and taking the case to court are properly informed in terms of trauma-informed practice, that, to my mind, would be one of the biggest and most significant improvements in what we do. I think that that would really help because my own experience is that the better prepared you are for anything in life that requires you to perform, to give a talk about if you are interviewed for a job, if you have to come to a committee room at the Parliament to give evidence, if you are prepped, you are better, you are more confident, your answers are prepared and that, to my mind, is the single biggest improvement that we could make. I took up this job to try to make that difference. That is why I am Lord Advocate, to make this change. Everything that I have done since my appointment from the ordering of the review to taking the Lord Advocate's reference to going out and speaking to young fiscals, speaking to members of the senior staff, encouraging a change in culture and embedding in people a desire to secure justice for victims in these kinds of cases is what I have been about. I would really like to see that very significant improvement in this time that I have in my time in office. On that positive note, I thank you Lord Advocate for joining us this morning. It has been immensely helpful. I will now have a short suspension to allow for a change over of witnesses. I would now like to welcome our second panel for today. I welcome the right honourable Lord Matthews, senator of the College of Justice and Sheriff Andrew Cubie, Sheriff of Glasgow and Struth Kelvin, Appeal Sheriff and temporary High Court judge. Welcome to you both. We are very grateful that you have been able to give up time and join us this morning. I intend to allow up to 90 minutes for this panel. I propose that we focus our questions initially on the proposal for a new sexual offences court before moving on to jury majorities, the proposals for a pilot for judge-led trials in certain rape cases and the proposals for independent legal representation for complainers and finally anonymity for victims of sexual offences. I understand that neither of our witnesses wish to make an opening statement, so if I may, I will just move straight to questions and open up with a general couple of questions. The first is on the proposals around the specialist sexual offences court. If I can maybe just come to Lord Matthews first and then Sheriff Cubie. I wonder if we can just ask you what your views are on the or what the views of the judiciary are on the idea of creating a specialist sexual offences court? Is this supported and if so, why? Lord Matthews. Thank you. I'm glad that you took out a reference to my views because I'm not here to represent my own views as you know. The judiciary are, Lorde speaking, in favour of the proposal for a sexual offences court. We agree with the thinking and the conclusions drawn by Lady Dorian's review group for the various reasons that she has set out because despite a number of statutory interventions over the years and the best efforts of everyone involved, change has been glacial and we've not been able to affect the cultural change that we think is needed because reform has been piecemeal and we need to get away from the practices rooted in the Victorian era and develop a modern approach. As you know, there have been a number of statutory interventions over the years from 1985, 1995, 2002, 2004, 2014, 2000 and so on. Each of those has brought about a useful change but a piecemeal change. We think that it's important that we start with a clean slate. If we had a clean slate we wouldn't invent the court that we've got now, I don't think. A specialist court would have its own rules and procedure, albeit that we start off with the practices and the rules for the High Court. I think that as time goes on these will be refined, I hope, and developed. The court would be trauma-informed, all the practitioners in it, the judiciary, the clerks, everyone would be trauma-informed. Specially trained personnel can be expected to develop the best practice both at pre-trial stage and during the taking of evidence. I think that we've recognised the benefits of specialism in a number of areas. It can increase efficiency, reduce trauma, with the experience of the preliminary hearing judges, a small coterie of judges who have developed best practice in preliminary hearings, as opposed to the approach before when anyone could—not anyone, but there was not a consistency of approach in pHs before. Example, we've heard that some lawyers and you've heard I think that some lawyers have not understood the pre-old legislation. Perhaps some judges haven't understood it or followed it properly. The appeal court has, in recent years, taken great steps to explain exactly what the rape shield legislation means. A small court of specialist judges—well, a big court of specialist judges in a sexual offence court—will understand that better than people who are just flitting in and out, as it were, of those types of cases. In my own experience, I was a sheriff in Glasgow, and we started off the Glasgow drug court. We saw how that worked in specialist court domestic abuse courts, particularly have been shown to work. Different types of crime affect perpetrators and victims in different ways, and I think call for different approaches. The human rights act when it came in, brought about a culture change, looked at things from a completely different lens. I think that consistency can be delivered in a specialist court the way it's not been done so far. For example, one idea that came to me a lot ago was that instead of putting the defence case to a witness as often as done, you did this, you did that, and the answer is always no. You wonder what's the point of doing that, and that just increases the trauma. It may be the practice to develop not having to do that, for example. That's just one area where a new court could start off with a clean slate and not go down that sort of route. Generally, a court with national jurisdiction separate from the high court should be able to make greater and more efficient use of the court estate and judiciary. From all that, you can see we're in favour of it. Thank you very much, Lord Matthews. I mean a very comprehensive and well-articulated position. I'm just bringing in Sheriff Cubie on that same question. Thank you, convener. You'll be aware from the consultation that the Sheriffs and Summoners Service Association made no comment about the policy choice of a sexual offences court, but I associate myself with what Lord Matthews has said. The tinkering with existing courts, I think, would not necessarily achieve the kind of impetus that a new court, a new discrete court, would have in relation to having a trauma-informed, complainer-centred set of procedures which can evolve in a more focused way, given the focus of the court. Unless there are any particular questions arising from what Lord Matthews has said, I associate myself with what's been said. I have had experience as a specialist sheriff in domestic abuse in the family court, and I can speak of the particular benefits of specialisation and expertise and the consistency that arises from specialisation, which I think would be one of the benefits of a sexual offences court, as I say, with its own discrete jurisdiction. I wonder if I can just ask a follow-up question, but I'll come back to you, Lord Matthews. Again, I'm interested in the views of the judiciary on what the Scottish Government is proposing in terms of the new court and how it might operate, what that would look like, given that it's not strictly being proposed as a new division of the High Court? I think that, in terms of Lady Dorian's review, she saw this as a separate court, a particular court, not just regarding the High Court's sexual offences division or anything like that. It would be a separate court using the same estate as we have at the moment, and the judiciary is made up of judges and sheriffs, which are probably sheriffs who normally sit as temporary judges as well, I think. To that extent, there would be no moving around of building new buildings around that, at least not in the initial stages, I don't think. It may be that some of the estate might have to be adapted in due course, if, for example, there was a problem with complainers coming across the accused as they walked into the building, that kind of thing, but an awful lot of the estate has been modernised in any event, places like Inverness and Salt Market in that kind of place. They do have a separate building, Aberdeen is not ideal, but these things are a matter that can be looked at and addressed. I think that, as far as the court itself can, I'd imagine that it would wigs in gowns and that the normal formal processes of a court would be there, but we would hope that the evidence in the court would not consist of, normally, the complainer giving evidence at all in the court because we're in favour of the use of pre-recorded evidence, I think would be a crucial part of this if it's going to succeed. Okay, thank you. I don't know if Sheriff could be, you want to add anything just on that before I open it up to members? I don't think so because I think it's anticipated that the same estate will be used. Lord Matthews talked about the potential problem of complainers being accused. That will be a less of an issue when the complainer's evidence is captured in advance, so some of the issues in terms of the state and the buildings and so on are less likely to be a problem in circumstances when complainers won't be there on the day of the trial, the evidence having been recorded at an earlier stage. I don't think it's anticipated that a new court building will be required or much modification to the existing estate where trials with juries already take place all over the country. Okay, thank you. I know members will want to come back and look at this a lot more closely, so I'm going to bring in Rona Mackay, then Pauline McNeill. Thank you, convener. Good morning. Just on the last point, before I ask my question really about pre-recorded evidence, we've heard from survivors saying that they would like to have the choice. Some preferred it. Would you agree that they should have the choice? They have the choice, yes. I think the bill provides for that, as it happened, I think. Yes, so in the new court it wouldn't be mandatory that they had to do that if they chose not to. We can't force it on them. I've been involved in a case where they said, I didn't want this. I'd rather have a screen or I don't want a screen. I said, right, who said you had to have it? That's fine, I just wanted to... No, there won't be any issue with that. They'll have to be told, obviously. It can be daunting because I've seen cases where people want to come in and they go in and they go, oh God, I don't want to be here, I want to go here. It's fine, we can deal with that as well. That's great. There's actually provision for variation of special measures at any time, depending on the view of the complainer, as has been recognised. Sometimes the complainer will think they want to give evidence in court and change their mind. Other times they'll come to give evidence remotely and decide they want to go into court and the variation of any special measures can be made at any time. Thank you. I'm sure that will be the same. Thanks for that. It's got to be an informed choice as well, so I don't know. My question is that the bill provides that judges of sexual offences court would be appointed for a period set by the Lord Justice General who would also have the power to remove them. I wanted to hear your thoughts on that. We heard evidence from the Factive Advocates last week who were casting doubt on the seniority of the judges and their experience in this court. They were dubious about that. I wonder if you could maybe set out how that would work in practice. I think that it's all related to the fear that a sexual offences court could be downgraded from a high court if Woodman Rape is involved. Well, as far as the appointment of judges in the Senate, that's a matter for the Lord Justice General rather than me. I can't imagine there to be any issue about the seniority of the judges. The Lord Justice General is not in the business of appointing people who are not senior enough to do the job and I don't think that can be said. Judges themselves, as the Senators, will have been appointed as judges through the normal processes that by people of experience and skill over the years. The sheriffs are appointed to the temporary judges. Posts are also people of vast experience and skill. I'm not sure where the fact is coming from in that regard but generally speaking the appointment of judges is a matter which is done on the basis of skill and experience. I'm struggling to see where the faculty of advocates concerned. They were very insistent on that and I was struggling as well. That's why I'm keen to ask you both your views. Sheriff Cupy, do you have a view on that? I think again I would associate myself with Lord Matthews. I know that in both the Senators' response and the Sheriffs' and the Sheriffs' Association response there was some concern about the tenure of any judges that were appointed and the mode of appointment has been described as cumbersome and the mode of removal. It might be preferable to have some level of tenure and further to be more formality. Given the model that we already have of the appointment of temporary judges, which does not seem to have given rise to any specific concerns about that, it is a little bit difficult to understand why there is now thought to be a difficult in relation to appointment. It will remain, as Lord Matthews has said, in the control of the senior judiciary. Although there might be some matters raised in the responses in relation to appointment, removal and tenure, I don't think that it would be appropriate for me to comment on other than to say that it's difficult to see what the particular grounds are that would give rise to disquiet appointments to the sexual offences court as opposed to, for example, to the role of a temporary judge. Do you have any concerns about any perception that the sexual offences court would be downgraded less, shall we say, somber and serious than the High Court, which traditionally has dealt with rape and murder cases? No. I think that the Lord Advocate made the point in her earlier evidence session that, in the Sheriff Court solemn cases at jury level, some very serious crimes are dealt with. I have no reservations about that any degree of salamonyty or downgrading as a result of characterising some offences as being part of the sexual offences court. It comes to sentencing, for example. As you know, our suggestion, or the very Dorian suggestion with which we agreed that there should be a limit up to 10 years, but I think the bill doesn't have that limit as the same sentencing powers as the High Court. That's a matter obviously for Parliament to decide. But I don't think there's a downgrading. I think what we have is, in fact, an upgrade, if you like, by giving these particular cases a special court to deal with them, rather than simply being part of the day-to-day business of the High Court. I wouldn't agree with that. The formality of the court would be exactly the same, I would have thought, as the High Court. There's no reason to think otherwise, except I would hope that it would be, while still adversarial, if the witness is in the court, or if the witness is giving him some commission, it would be perhaps less confrontational. I hope that that would be the case. Thank you. I appreciate that. Pauline McNeill, followed by Russell Finlay. Thank you. Good morning. Can I start by asking you, Lord Matthews? Just about one point, you made an answer to my colleague about not putting the accused statement to the victim, because it always results in an answer of no. The committee has had a lot of exchanges around the culture of some defence counsel, in the way that it questions victims. Would you have to agree that with the defence solicitors in order not to have to put that? How would that operate? I think that what we do nowadays, where our commission is to be fixed, we have a checklist that we go through at the preliminary hearing. One of the questions there is to what extent is it necessary to put the defence case. At the English have more experience of this than we do. I don't know how it developed in Scotland that the idea of you must put the defence case to give the witness an opportunity to comment, but it's pretty obvious in most cases that if the defence is going to say that you did this and you did that, we won't find exactly what the witness is going to say and what she would say where she asked about it. I think we have to bring people on board, so we know in advance that we can discuss at the preliminary hearing whether it needs to be done. The Crown, I think, is quite content not to do it. The thinking behind it, I think, was that if a witness went into the witness box and said XYZ and was not asked about something else, then the accused went in and said it without this hand being put to the complainer. The first question that the Crown would ask is, did you tell your counsel that, because, or have you just made it up? Whatever the answer to that was, it was generally a reasonably cheap shot, because most of the time it didn't have much effect. I think that that was why people did it, to make sure they couldn't be criticised in that way. If it was understood that they didn't have to do it, then that sort of thing wouldn't come into the equation. I think people do get upset when they're asked about things, which they say didn't happen, and why are you asking me that? I've already told you what happened, why are you asking me about this, which didn't happen. The repetitive questioning about what you did, you did that. I get some very upset, I've seen it, and I don't see the need for it. I think that if we can have a practice developed in this court where we don't have to do that and people understand that nothing could be made of it, then I think that it would be a good thing. It would decrease the length of any croc examination as well. Thank you very much. My next set of questions are obviously about specialist court, and your evidence is really helpful. I forget that the strike could be transformational, but you'll be aware that the provisions in the legislation do not mirror Lady Dorian's recommendations in a number of ways. The sentencing powers are the same as the High Court, but it is not the High Court. My personal view is that what we are reading in the legislation is not what Lady Dorian envisaged, because rights of audience will change, and there's this oddity in my opinion of murder being appealed to the count of as a sexual element that could be tried in the specialist court, or the High Court, which doesn't seem to me to be any real need for it, and you've referenced it in your submission. My question is, do you think that the Government have thrown the baby out of the bath water here, where there seem to be a consensus around the need for a specialist court being a parallel court to the High Court, but what we are seeing in this legislation does not mirror that at all? I'm not going to make any comments on what the Government has done in that good try. The judges are of the view that murder should stay where it is in the highest court in the land. I think that there are constitutional issues about having two courts with parallel jurisdiction running alongside each other. In a sense, what was the High Court for, because it's not for treason or abuse of power by magistrates, or arson and naval dotiers and any other things, which don't happen anymore. It does seem a bit constitutionally anomalous if we have two courts with the same powers. I'm not just saying this because we are High Court judges. We are just in there, as you know, for a short period of time, as judges. It's been the Supreme Court in Scotland for centuries, and a major constitutional change to run another court is something that has to be thought out very carefully. I'm sure that you won't think of it very carefully, but we think that murder should stay where it is, because it is the most serious crime, and the High Court has to be the one that deals with that. Whether the baby is in the bath or not, it's not the one to discuss. You are saying that your submission in relation to rights of audience, the requirements on legal practice should match those in the High Court, and that legislations are required to be specifically trained to think that we are all agreed on that? Do you want to add anything? I understand it. Everyone will be trauma informed, which is a new thing, which is good, but the people who appear in the sexual offences court will either be advocates who have rights of audience in the High Court, or solicitor advocates who have rights of audience in the High Court, at least insofar. There will have to be solicitor advocates for counsel if the case involves that I understand that rape or murder, if that's the case. Cases other than rape or murder, there won't be a requirement to have rights of audience in the High Court, because they don't need rights of audience in the High Court anyway in the Sheriff Court if you deal with cases other than rape or murder. I'm not convinced that there is a real change in the rights of audience. I'm not sure myself, because not being a practitioner is what I'm trying to understand, because if the specialist court would hear a whole range of cases, including rape, that would mean that there would be specialist court if it was parallel to the High Court, let's say, in Lady Dorian's how she envisaged it, but the crimes that would be indicted in the specialist court would be crimes that previously would have been the High Court and the Sheriff Court, so there are not going to be some differences there. Yes, you can have, the High Court can deal with any crime, but rape and murder would not previously have been in the Sheriff Court, so if the indictment involves rape and or murder, then it will have to be someone who's got rights of audience in the High Court. For crimes that are not rape or attempted rape, some of those cases would have been tried in the Sheriff Court, but they will all come together in one specialist court, is that what you're understanding? They will, but I think that the nature of the indictment will determine who can appear to defend it. It's some great area around, so some cases which are not rape or attempted rape would still be indicted in the High Court if the Lord Advocate thought it was severe enough. Yes, I mean, if someone has committed— And would attract rights of audience of counsel or those cases potentially not provided for in relation to the specialist court because they're not ring fenced by being represented by senior counsel or counsel in relation to rape, but would you see where I'm going with this? As I understand it, yes. Sometimes you might have a case involving, I don't know, five or six episodes of attempted rape with different complainers. Now the Crown would, in a case like that, normally put that into the High Court where someone with rights of audience in the High Court would have to appear. Such a case could, in theory, go into the sexual offences court if it's enacted in the current form. In a case like that, if the indictment did not conclude murder or rape, then someone who did not have rights of audience in the High Court could appear to defend that, as I understand the bill, although it's obviously for the Government to explain it. That's my understanding of the position. Whether that's a good thing or not, it's a proper thing to say. That's my understanding. Finally, is it your position, as your submission, that the legislation should reflect Lady Dorian's recommendations, as they were? That was the position of the judges or the senators. Just one quick question to Sherry Cubie. In relation to 10 year temporary judges, that point was made to us by Lady Dorian, but just as a lay person listening to that level, temporary judges are temporary judges. They aren't permanent judges. So there is a difference between temporary judges and judges who have sat for many years as permanent judges in the High Court. When you say perhaps you need to look at the question of 10 year, do you mean that there will be a fixed term so that the question of the independence of the judge and the appointment by the Lord President wouldn't be compromised? Temporary judges receive a commission for a period of five years, and that commission will automatically be renewed unless the temporary judge doesn't want it to be renewed or unless there's some reason for it not to be renewed. So there's a degree of structure to that, and it was the absence of that. I think that it caused some concern in relation to the appointment. I wonder if I might say something in relation to Lord Matthew's answer to your first question about putting the defence case. I think it's important to recognise that the act embodies a ground rules hearing in advance of any commission taking evidence, and that's a particular ring-fenced hearing simply about how the case is to be put to the complainer. That can involve and has done up to now in relation to children actually seeing questions in advance and approving the questions and the questions being agreed. So there is a really good opportunity for the kind of concerns expressed about does the case need to be put being looked at in detail by specialist judges in relation to the provision of a ground rules hearing which will take place in advance of every commission. So that the kind of concerns expressed by complainers will be addressed in advance of any attempt to take evidence from complainers. That's very helpful. Russell Finlay followed by John Swinney. Thank you, convener. Good morning. I'm not sure if this is declarable, but I don't know. I've previously been a witness in Lord Matthews. Good witness as well. On three occasions, I might add, I know complaints of the trauma-informed experience, but Scotland is a very small place. Now, I wanted to ask about the judaolus rape trial pilot initially. The submission from the senators to the committee says that there are, quote, different views held about this. And I just wonder if you can give me some sense of what the breakdown of those uses are. 36 senators, roughly what the proportions were. I can't really. We didn't take a straw poll. All I can say is there are, I think, significant numbers on each side if that helps. Right. So we didn't take the numbers. Was that a meeting? Or was it a form? We had a meeting of a swall committee, effectively, which, in the first instance, I was part of it. In the second instance, when the bill came in, I chaired it of, I can't remember half a dozen, five, six, something like that, judges. That was split. And then the wider judiciary, we know, were split from some emails that came in. So I don't know the numbers from my friend. The reason I ask is because it would help us, I think, to understand the judicial thinking, and in respect of some of the other proposals, there is a lot more certainty or specific detail about how the breakdown is. For example, the vast majority oppose not proven being retained. And then they provide, in the 2022 submission to the Scottish Government, it's a breakdown of two to one in respect of abolition of corroboration, which is no longer on the table. And then, in your evidence earlier, in respect of not hearing murder cases in the proposed new sex crime court, that seems to be unanimous. Yes, as far as I can see. Is that correct? We don't have a problem with what we do normally, but these are submitted. Anyone who wants to comment on it, because we put in two sets of answers, as aware, to the pilot court business, people may have been quite content with one or other of these answers, but not told us. It's hard to say what the figures are. As far as mudlach, no-one has, I don't think, any of us have commented adversely by Amy or otherwise on what we say about murder and so on. If it's not unanimous, it's a fairly strong majority. And that particular issue, which Pauline McNeill has already spoken about, seems to be throughout the system from the Scottish Courts and Tribunals Service to the Crown to the Judiciary. The proposed legal rape trial seems to be the most contentious issue across the board. Last week, we heard from Tony Lennon, Casey, who said, if I can just quote him, the fact that someone sits on the bench and takes the oath does not guarantee an absence, sorry, is not a guarantee of an absence of hidden bias or an absence of character defect. There are recent examples of people who have clearly smuggled character defects through the judicial appointments where board was going to end up on the bench. He was referring to a particular case of a sheriff who trains judges, who judges, judges and was appointed to do so by the First Minister, yet was laterally convicted of a criminal offence. He also says in his evidence and I'll summarise here that certain sheriffs are known to be either more likely to convict or more likely to impose lighter or heavier sentences. This appears to be according to Mr Lennon's common knowledge amongst defence practitioners. My question is, given those realities, is that not an argument against getting rid of juries? The problem I've got is, as you know, the judges are divided and that would no doubt be a concern of some of the judges who are against the pilot. I can't really do much more than point to our submissions to say that that may be a legitimate concern and part of some others would say that everybody's got a character defect of some kind. Juries may have been biased. Who knows what people bring into a decision making process with them? I mean, we've all come across just who we thought were biased or horrible or nasty. Name names. You probably could work out one or two when I was a boy, appearing in front of them. But hopefully, I think, this day and age is different. Even though I say so myself, when I was a boy going into the appeal club, for example, I used to have to get in with a 10-at, but now I think we have pussycats compared to what went on before. I think there's been a seed change because people were not prepared to put up with this sort of nonsense that we had to put up with when we were younger. But maybe it's a circular thing. The next generation will be like the last one, I don't know, but I hope not. I'm not sure I can go much beyond what we said, that there are views either way and I'm not here to represent my own view. I obviously fall into one of those categories, so I can't say if it's not fair and someone who's not here from the other category to hear the views, but those concerns are obviously legitimate. This is more of an observation and is an extension of the point made by Mr Lennon and the Senators. Submissions already stated that they're quite candid in accepting that the make-up of the senior judiciary is quite homogenous and that in itself might be an argument for maintaining juries. It's an argument which I think is made by the Senators themselves in the half of the argument which was opposed to it. As far as that's concerned, the make-up of the judiciary is just a reflection of the pool from which the judiciary has been drawn. When I started as an advocate, I think there were 170 practising advocates and about memory says about eight or nine of those were women and you look at the difference now, it's huge and it's just gradually working out that way and I think there are more women studying law now than men, so hopefully in the years to come the figures will change and reflect better our society. Also just picking up on your earlier answer about the evolution and the developments you've seen in your time on the bench and in the profession, we heard in the committee some evidence from rape complainers who all waved their anonymity because they were so moved to do so because of in most cases the poor experiences they suffered in respect of the justice system. I don't know if either of you saw that but it really is worth seeking out the transcript and much of what they seem to want from lawyers on all sides, whether it be crowned prosecutors, defence solicitors or members of the judiciary, is clear communication and essentially basic standards of respect and courtesy. Given that there have been so many horror stories spanning so many years, albeit you say things have improved significantly, I just wonder why that doesn't already happen and why do we really need to legislate to ensure trauma-informed practice becomes standard? I think I know the case you're talking about and I have read the transcripts as it happens in that case. I don't want to address individual cases but generally speaking things actually have improved. We could I suppose move towards trying to do that in the High Court. The problem is, as you say, the first real effort to do something about it was in 1985 and here we are 39 years later and we're still talking about this. I think the time has come to wipe the slate clean, move on and do it. Right, this is where we go from now on with a clear statement of intent towards that because trying to change things gradually as could be done in theory has not worked so far and I've got no real confidence that it would work. We're going courses and things like that but we can't really control lawyers until they ask a question then we can stop it that the question's been asked but we can't. I think we're getting better at doing that, I have to say. That's actually very pertinent to another point about the section 275 applications. Some of the rape complainers said that in their cases the defence hadn't formally sought a section 275 but it effectively introduced character or sexual history evidence by stealth by just stating it and then the presiding judge has told the jury to disregard it but the complainers of the view that the damage is already done. Do you see that happening frequently and is there any sanction or do you think that if section 275 and independent legal representation became enshrined in the law there'd be more likelihood of these types of tactics? I haven't seen it personally and to that extent there's probably some lawyers who will obviously push the boat out as far as I can push it but it's our job to stop that. I think nowadays it's not this bad because the 275 applications are all dealt with at preliminary hearings so they know full well what can and cannot be asked. Any lawyer who tries to do something which has already been prohibited by the court or for which he's not asked permission should be slapped down immediately. I had a case involving one particular lawyer who put in a 275 application and it was completely inadmissible the evidence he sought to lead and it was all against all principles which had been established in the act and in recent authorities and he told me that he didn't agree with the appeal court and he was waiting for the day when all these convictions would be overturned and he could say look I started it. I told him this was wrong, he shouldn't be doing it and I had a word with the faculty officer who spoke to him and told him to mend his ways for things he has done so there are ways and means of telling lawyers not to do this and at the end of the day if they persisted in doing that kind of thing that would be open to discipline but I haven't seen it to that great extent but I think as I say things are better now than they used to be but the case you're talking about was a particularly egregious example of a lawyer who doesn't seem to want to do what he was told but I won't say too much because it's a matter still being looked at. Thank you very much. Thank you. Thank you. John Swinney followed by Sharon Dowey. Thank you, convener. I hope I'm not going to follow the convener that I'm going to ask about part four if that's okay. Thank you. I'm very interested in the contribution from the senators on the question of jury size and from the response to the government's consultation paper the senators are not supportive of the changes to jury size. I just wonder, Lord Matthews, if you could explain the senator's position and the concerns that they have about the proposals from the government. I think what we thought was that a jury of 12 while obviously common in various and other countries gives a greater opportunity for one particular juror who may be recalculant in one way or another to influence the jury. Where the jury falls shorter is reduced because of illness or whatever. We can go down to 12 anyway as matters happen. If you start with the jury of 12 and you start reducing it to 9 or 10, the proposal in the bill I think is for someone 7 out of 9 or 10 to become enough of a majority. That's quite a high hurdle, I would have thought, for the Crown to reach. We thought that 10 out of 15 would be an appropriate majority for a verdict. We're not convinced that a case has been made out to change. I think that was the way we approached it. I'm interested in the language that you used there, Lord Matthews, that you felt that this represented a greater hurdle for the Crown. I'm interested in your perspective on a point that I put to the Lord Advocate earlier on, which is about confidence in the criminal justice system. Sheriff Cubie might want to comment on that as well. Today, an individual can be found guilty on the basis of 8 votes to 7. We never know that it's that, but that can happen. We could find ourselves in a situation where a vote in a case is 7.5 in a jury of 12, but the person will be acquitted on the basis of the two thirds majority threshold not being reached. I'm interested in the view from the judiciary about your perspective on what that does to confidence in the criminal justice system, where, for all of our time, a simple majority has been judged by members of the public to be sufficient to convict an individual of a crime, but suddenly an actual majority is not going to be enough. It is going to have to be what I might call a supermajority. What does the judiciary think is the risk of that provision in relation to confidence in the criminal justice system? It's not something that we discussed as such, but the size of the majority is not something that is ever revealed, so we don't know what it is. The simple majority is one of eight out of 15. That's in a situation where there are two verdicts. To that extent, we're moving on to a completely different playing field if we abolish not proven, as we're in favour of. The idea of a simple majority—I know that a lot of people don't have confidence in the notion of a simple majority, where there are only two verdicts. I think there's a difference of approach there, and I'm looking at it through a completely different lens, so I'm not sure if we're comparing like with like when we look at what the bill would entail and what would be a position in the past. Could the submission from the senators go on to make this point about a connection between the abolition of not proven and the change of jury size? I'd like to come on to explore that in a moment, but I just wonder what the judiciary consider are the points of anxiety about a simple majority on a two verdict trial. Given that we are all told, and all the evidence that we've heard tells us this, that in effect we actually do have a two verdict trial already, it's just that there's two variants of the not guilty side. Plogically, that is the case, but it's almost as difficult as trying to explain what not proven actually means. The idea that there are two acquittal verdicts has always been seen as the sort of counterbalance to the simple majority. Whether that's right logically is debatable, but nonetheless some people will go for not proven as opposed to not guilty, and where they don't have the choice of that, it becomes a stark choice between two verdicts. Therefore, if you have a simple majority in that, let's say one vote swing either way, it's quite probably, it may be difficult to say that this case has been proved beyond reasonable doubt, when so many people out of that jury have found that there is a reasonable doubt and are not satisfied. Why should it, how can it possibly be said that this is a safe conviction as a word to use a language phrase? I think that that is the anxiety, which is why we're a bit concerned about a majority of one in these cases. We've said I think that we wanted to see 10 out of 10, two thirds majority as it were, rather simple one. We think that perhaps there will be easy anxiety that any one vote can sway this. So the position of the judiciary would be that if we were abolishing not proven, having, but we should retain 15 as the jury size and a threshold of 10 should be arrived at for conviction. That was the thing. It's very much a policy matter, obviously, the end of what size the jury bed is, but that was the figure we arrived at. When you look at England, for example, they require unanimity at first, and then the judge can tell them we'll take a majority of whatever 10, two or whatever. We don't want to get down that route of having to explain to the jury you've got so long, and then I'll tell you, you don't need to be unanimous. But I think with what we have just to do, a simple majority of where one vote can swing it, it just doesn't strike us as being right somehow because of the anxiety. It tends to indicate that a reasonable doubt has played a very big part in the minds of a very large minority of the jury, but we don't know what the majority is in any particular case, but we do know that that potentially is a position that's only one vote. I wonder if Chef Cubie has any perspective on these questions as well. I don't think of anything. I actually jotted down with Lord Narthues who's speaking that the simple majority would seem to be counterbalanced by the two alternative verdicts of a quittle. If we are to be left with a simple guilty or not guilty, then some qualified majority might be appropriate, but I don't think I have anything useful to add to what has already been said by Lord Narthues into what is essentially a policy matter. Thank you for that. In the submission from the centres, the point is made that given that the standard direction that a jury can only convict where the crown has proved its case beyond reasonable doubt and where there is a requisite majority for guilty, votes for not proven would not logically transfer in whole or in part to guilty. The way that I read that observation I think it helpfully lays the emphasis on the remaining necessity, whatever we do in these circumstances, for the crown to prove its case beyond reasonable doubt. I think what is underlying a lot of the motivation behind this legislation is a recognition that it is already very difficult to secure convictions in cases of a sexual nature. Given the fact that that point of absolute central principle in the criminal cases of the necessity to prove a case beyond reasonable doubt, is that not sufficient assurance for the preservation of the simple majority that would, because there is that necessity for the crown to prove its case beyond reasonable doubt? I think the problem is because the anxiety would be that if it's a simple majority of seven to five, I suppose it's a swing of two votes, one vote could change that easily. How confident can the public be that in fact the right decision has been made in any particular case when it depends on just the one vote? There are two schools of thought about juries. Is it a one body who comes up or is it a collection of individuals? I'm not sure it's helpful to try and work out which is the right answer to that, but we're concerned that with a qualified majority I think we can be more confident that the right decision has been reached, whatever it is. It may be obviously, as you say, that if a qualified majority is needed then it will be a higher hurdle for the crown to reach. The point that I'm trying to get at is that the necessity which nobody's trying to change of the crown having to prove its case beyond reasonable doubt is that we all acknowledge a big hurdle. In the absence of three verdicts but in the potential of two verdict scenario, I'm trying to get at what actually materially changes about that requirement because that still feels to me like a big hurdle to get over. It always is whatever the majority is and in every single case that is the test which, the standard which the crown must reach. I'm going to look at it. There's been a discussion for example about whether a single judge should sit and one of the criticisms of that is that single judge will bring perhaps a bias, but here we are with some majority. That could be a single juror who has decided that, even though there's still after-dury discussions. I still come back to the point that I think where it's going to be decided on one vote, it's difficult to see that that's justifiable and would provide confidence. I know it's, logically speaking, exactly the same as it is now because one vote could decide it where we have to either the crown has proved it or it hasn't proved it, but the existence of the not-proven verdict has always been thought to counterbalance that a share of QB has said. Whether in sheer logic that's the case is doubtful, but in fact I think it probably does because there are jurors who will, who knows, in logic they should find the crown, find a return avert of acquittal if they're going for not-proven, but it's hard to say that's always going to be the case. Ultimately it's a matter for the Parliament to decide which of these verdicts they want to enact, but we can always say that we think as a concern that a simple majority with their own juven is possible to be, it's possibly conducive to miscargial justice in due course. Are there any other safeguards that Parliament could consider putting in place that, in the judiciary's view, would be compatible with abolishing not-proven, maintaining simple majority on a two verdict outcome? Are there other safeguards that Parliament could consider to address some of this anxiety without opening up what I certainly hear in this committee as a question, which I think, I don't think the public are that engaged about, that we could actually have under the proposal of this bill a majority in favour of conviction, but not a good enough majority? I'm not sure there aren't, it's not something we've considered particularly, I have to say, obviously I'm here to speak on behalf of the judges, so anything I've got to say is effectively off the top of my head, which might not be very helpful, it might be wrong, but I can't think of anything offhand. I mean, there's routine branch ideas like making sure that juries actually return their written verdicts, for example, or written reasons, but going down that route would be hugely impracticable, because each one of the jurors might have a different reason, but they might all coalesce and be good ones, some of them might be bad ones, and so you can end up with opening up a huge can of worms, which causes more difficulty than it solves. So I'm not sure there is anything I can think of, which would ameliorate that. That's why we thought that a qualified majority is possibly the safest and best approach. Thank you. My colleague Russell Finlay mentioned earlier on about section 275 applications. I was wondering if you could tell us, do you support the principle that complainers should have access to independent legal representation when there's an application to use sexual history or character? Yes, we do. I think we've made that clear, I hope, in our response. We do, because if we can expand a wee bit, we've sometimes found that the Crown have not opposed applications that should be opposed. I mean, in the old days, I think they've had a broad interest of justice test at the end of it, which we don't have now. It's a pure question of relevance, and even if it is relevant, what the probative value of it is. Is this really good enough evidence to counterbalance the attack on the dignity of the complainer? Sometimes the Crown's approach is better now, but it has been occasionally in the past such that we think this should be. We've still had occasionally the appeal court where, over an occasion to say that the Crown should have opposed us, and, in fact, the Crown in the appeal will oppose it at that stage, not having opposed it at preliminary hearing. So I think it's important that the complainer have the benefit of that. Apart from any else, I think that the complainers should know, there's not enough communication, she should know what the defence are going to say about her and be given the opportunity. It may be also that the complainer might say, yes, that is true, this is what happened, and I'm quite happy to have evidence led about that, because of X, fair enough, the facts that she wants. We'll still decide whether it's relevant or not, but at least she's been given the opportunity. I keep saying she, there could be a male, but we know it's normally a woman involved in this, and everything is important. We've already made that clear anyway, I think, in our submission, and we made it clear in the case of RR, I think, that the complainers should be told about this by the Crown, as soon as one of those comes in. Thanks. When the Lord Advocate was in earlier on, she actually said that one of the single biggest improvements that could be made was to have better prepared witnesses and to keep them properly informed. Do you think that the bill goes far enough? Do you think that complainers should have independent legal representation right through the process? Well, it's nothing to stop them having a lawyer, but I think that, in as much as that, if they mean by that, should the complainer's lawyer be in the court during the course of the trial, we don't think so. We're not going that far. We don't have this party's review process that they have in other jurisdictions, and we're not sure what role the complainer's lawyer would have in a case like that. We can't have two sets of cross-examination, for example, of an accused person if he chooses to give evidence. That would be unfair. Hopefully, the Crown would carry out the function of the state to prosecute the function of the individual complainer. We've got to make sure that the complainer is treated properly and that she knows what's going on, and that it's given every opportunity to participate in, as far as that's compatible with the trial process. Putting someone else, another lawyer in, I'm not sure what the role of that lawyer would be, other than perhaps to take an objection, because the Crown should have taken it. Could you tell me a bit more about the concerns that you would have on it causing further delay in the system, and if there's anything that we could do to that? I think that there are delays in the bill, which I'm a bit concerned about, in terms of the Crown. Even the bit that we're happy with is the independent legal representation for 275 applicants. We're concerned at the notion that the Crown has to court for permission to disclose evidence to the complainer's representative. That will be productive of delay. There's no reason we can think why the Crown can't just do that off their own back without involving the Crown. If the defence wants to object, they could doubtless apply to the court to deal with it if there's an objection. We can't imagine any circumstances in which the court would say, no, you're not going to tell the complainer, or not going to tell the complainer's lawyer about particular pieces of evidence. I have to make sure that people are coached, because they can't coach witnesses into what to say, but there's no reason why a complainer should not know what's happening and what the likelihood—the type of questions that are going to be asked—will be put on notice about how the defence is going to approach it. You may have heard evidence already about defence statements, which are really not worth the paper that they're written on at the moment. We can't have complainers coming in and being completely surprised. I've had witnesses, complainers who have taken her back because nobody seems to have told them that they might be cross-examined, that they might be challenged. I think that's awful. They should be told that there may be questions that suggest that something else happened other than what you say happened. I'm not sure. I don't want to impugn the people who are looking after what this is, but I want to say that I should perhaps give the complainers at least better information, because communication is obviously important to the trauma-informed practice. The Sheriffs and Summary Sheriffs Association unequivocally supported independent legal representation for complainers in relation to 275. The observations were limited to the practicalities that Lord Matthews has addressed. I think that it's fair to say that I hadn't really considered whether or not there should be a longer-term involvement of independent legal representation. That's not something that I was anticipating, but there is no doubt that there is widespread support for legal representation for complainers in relation to the section 275 applications subject, perhaps the procedure being looked at to avoid the kind of delays that Lord Matthews has talked about. We're also supported in connection with applications to recover medical records and that kind of thing. Of course, we already made a claim that that should be done. Before I bring in Pauline McNeill, I wonder if I could just ask a couple of questions about the proposals around the rape trial pilot. For example, the judiciary's submission, as we know, reflected different opinions on the proposal, which were well set out and helpful. However, I wonder if I could turn to some evidence that we took from Professor Monroe recently. I'm going to quote what he said in relation to the proposal for the time-limited pilot. In our written submission, we've tried to say that a judge-only pilot would not be an unreasonable move for gathering more evidence, and that is akin to what Lady Dorian said in her testimony to committee on the importance of developing a stronger evidence base for comparison. Then he went on to say that part of the reason for having the pilot would be to learn more about what an alternative would look like and what change that it may or may not result in. Given that we've got different views on the proposals around a pilot, I wonder if you, on behalf of the judiciary, might have a thought or an opinion on how we take that information together—both those sides of the coin, if you like—and perhaps think about what a pilot could look like, perhaps, with some different thinking around the proposal, as it is in the bill, if that makes sense? In a sense, if I answered that question, I'd begin out in a limb giving my own view, and I'm conscious that it's up to the Parliament to work out what to do. I don't know what you're saying about not teaching your granny to suck eggs. Could I maybe come in and maybe ask it in a different way, which would be, as a committee, what should we be thinking about in terms of what a pilot is seeking to achieve, given the range of views of the judiciary? As I understand it, the purpose of the pilot would not be to increase the conviction rate, but it's to work out with a judge giving reasons for an acquittal or a conviction to see perhaps if there are trends of what reasons are there for particular decisions being made, to what extent has the decision been influenced by just the nature of the evidence in that case itself? Are there any indications that perhaps rate myths have played a part or not played a part? I understand that that's the sort of thinking that Lady Dorian had to analyse just what—I know that it's not just a question of looking at numbers in terms of the cuttles or convictions, for all I know they may be exactly the same. I have no idea, just because of the nature of the evidence, but I think that it's to look and see the underlying reasons for the decisions, what they are and if anything can be done to address those in future. I mean, I know when it comes to rate myths, for example, the jury manual committee recently issued a new direction, sample direction, to be given to juries at the start. If there's an issue of rate myths, what do you do after that? After the pilot, such as videos that were suggested in Northern Ireland setting out an example without tilting the balance in favour of convictions, we can't do that. Any video would have to be neutral, is it where? To point out to jurors that there are reasons why people don't give—don't complain right away—there are reasons why people don't resist and so on. If that was understood at the beginning of the trial by a jury that perhaps better made, a video would be better than a written direction, it may be that would make sure that the decision, whatever it was, was based just on the evidence and not on any prejudices that people brought to bear with them. I think that that's the way that the pilot is designed to try and flesh out. Okay, thank you. Sheriff Cewby, you don't know if you want to come in on anything. I don't think so. I think the committee has received a lot of information in relation to the consultation Lady Dorian's review in the first place, the senator's response and other responses. I'm not sure if I can pluck out out of the near some magic answer that would allow the resolution between the competing sides, and I don't think it's helpful to give any personal opinion. It's seen as an evidence gathering, and that's the purpose of it. As a value in that, the committee will know that jurors can't be asked about why they've reached decisions or what they've done, so there is a dearth of evidence and the review thought that this might be some way of filling that vacuum. But I don't think I've got anything to add about what you should be thinking about that has not already been part of the very major consultation exercise that's taken place. I think that it may be not for me to say that the Parliament could think about actually legislating in more detail what this should be rather than leaving it to subordinate legislation, which might an actual act which set out the parameters of any pilot and so on, and what should happen might be better than carrying more weight than subordinate legislation but that's again just a personal thought. Thank you for that. Fulton MacGregor, you want to come in with a supplementary and then I'll bring in Pauline McNeill. Yeah, thanks. This was the area that I was going to actually ask about was about the pilot for the jurorless trials, but you've actually covered a lot of it in the response to the convener. So there's only one further question I've really got in this area and that's why I thought coming in as a supplementary just now. We heard evidence a couple of weeks ago that perhaps not shocked us but it was witnesses who were talking about jurorless trials and some of them said that they would prefer that or indicatedly prefer that and others said that they wouldn't if and they would rather that there was 12 or 15 or whatever the number multiple people making the decision as opposed to one and so what I wanted to ask is rather than getting into that is I do think sometimes when we're bringing forward legislation or changes in the justice system we're doing things that we think that will help victims and witnesses and therefore what discussions around the pilot or observations of the pilot do you think the victims and witnesses should have in that? What input should they have in that in terms of seeing if this is the best way to go forward and is there I'll just tie all my questions together is there actually an argument at some point and I don't know if this would be far too difficult to do and it's only came to me between sessions for actually victims, witnesses, complainers whatever phrase you want to use to almost have a choice there so if just say if a jurorless trial is piloted but they said listen if you actually want a jury that's okay because we did hear clear evidence from witnesses saying no I would have wanted a jury I don't think I'd have wanted a single judge ultimately that is a matter for parliament this was not discussed that particular issue but in terms of the involvement of victims organisations and individual victims beforehand that's obviously a matter to the committee and parliament to decide whom they wish to consult beforehand and I've no doubt you will and I've taken evidence from victims and witnesses and that haven't been done I don't think I can add anything much to that as far as the choice is concerned just speaking general it's not normally the choice of a victim whether a case is prosecuted at somebody level for example or at jury level so whether you want to introduce a choice I say it's not something as a judiciary we've thought about but no doubt it's something the committee will think about and I don't have an answer to you feel that but I mean there are a number of people who have to ask them I mean how do you as a accused going to choose it and a drone rather than a jury who knows well I'm asking about the victims witnesses because it is a victim and witnesses bill and I feel that a jurorless trial pilot does seem like a good idea but I'm trying to take into account that there might be different views there and what I was thinking was rather than it being a choice maybe further down the line I'm thinking about in the pilot because in the pilot you know this is real people this is real victims and witnesses and it's real accused so we do have to be careful about even thinking about it as a pilot so I'm thinking given it is a victim and witnesses bill you know is it is a scope do you think for you know you're actually part of a pilot mrs x you're part of a pilot but you know you you can choose to still have a jury trial just putting that out obviously it's a matter for the partner there's no doubt scope to discuss certain partner and decide on that just as should be done it should not be done at people just as before people so I say I can't give you an answer to that because it's not my decision to make but I think it's a point that is worth making if I may say so. Historically in Scotland the crown determine the forum in which matters are prosecuted whether it's summary or indictment level or or high court level in England for example some accused have the opportunity to to choose that I think to consider giving victims an option would would give rise to it as Lord Matthews has already said the question then of what right the accused has to object to that or to make their own representations about the forum and I think that would really be a matter for legislating and of course if it's to be a jury list pilot and there was an opportunity to say I want a jury it begins to undermine the value of the pilot if the victim were to be given that right so I think that gives rise to a number of other questions although it's a perfectly legitimate view for for some victims to to put that they would rather have had a jury than a than a single judge but I think it opens up other areas for for questioning and for consultation. I make the example but halfway through it the right to choose would have had enough a right to have a jury now or I'd like to have a single judge now and so on so that all that kind of thing would have to be considered but these are the same matters for parliament at Ireland out. Okay thanks as I said there are more questions on that but I think that you covered it to the convener. Thank you and Pauline McNeill. Thank you and yeah you're quite right Lord Matthews to say these are questions for parliament to decide but I have to say from where I'm sitting it's not easy to make some of these decisions which are controversial and we're not practitioners so your insights are really valuable so first of all so far really thank you for the evidence you've given so in relation to the jury the single judge pilot and I think Fulton Mugger is quite correct to say well it's maybe not appropriate for me to say it's a pilot because that could be a live trial in which parliament has decided so my first question that would be helpful to if you can provide any insights as to your opinion on so the single judge would be writing up the evidence of the trial which normally would be left to the jury to decide what they believe what they don't believe any thoughts on how straightforward that is obviously the law be determined in any case by the judge by the evidence normally for the jury to decide on so how do any thoughts about how there's these written reasons would well we do it all the time in civil case for example we have to assess what this is they go along write the evidence down which is the most tedious part of any case is writing down and telling people to slow down while we write it down so it's not a new thing doing that in any sense and it's done in the sheriff court do it all the time in summary cases which could be just as complex if not more so than some jury trials are so at that point if you I don't think I could see it's an issue. Well as it happens we're hoping we had a demonstration a while ago of some new technology which allows speaking to come straight up on to the screen so if a witness speaks into a microphone it will be automatically downloaded so it's all there and it translates as well and we're looking into how we can roll that out into what is possible who knows how long it will take but I would save to look down because it's not easy always to work out what a witness is like if you're trying to note the evidence you're not looking at the witness at the same time at least I'm not because I'm not as capable of doing both at the one time so that that sort of thing would help if we don't have a stenographer anymore or a shorthand writer to do that that's interesting so we can ask the witness later on how did that witness say we have to do it ourselves so we note the evidence anyway in court we note the evidence so you're doing that anyway at the moment we do that during the course of the trial because we might need to refer we have to refer to our notes if we write a report later on on the case if there's an appeal for example or a report to the parole board and if we want to go into the evidence when we're addressing the jury we need to know what the evidence was so we do all that already so I don't think there's a particular issue and I presumably am envisaging as the trial progresses then the judge will have to determine which witnesses what story they're believing or not believing as the trial progresses I think in any case we may form a provisional view we shouldn't form any view really until you've heard all the evidence because signs can change quite rapidly depending on what the next one is says and so I try not to form a few provisional ideas my final question you're quite correct to say and I think it's interesting actually so whether or not there should be more primary legislation around a jury list trial which is very controversial we know that from the evidence and split views amongst the judiciary itself do you think there needs to be clear parameters set as to what is being assessed so let's say the pilot or want for better work because that's what it's called in the legislation is run for a year and as you said the government are quite clear we're not looking at a conviction rate so to be honest I'm not really clear how the government are going to assess the end of it and determine whether it's a good or a bad I mean I know you can't answer that but in your opinion should it be clearly set out as to what the assessment process or the criteria for assessment should be again we haven't considered that as a judiciary so I can't answer on behalf of the judiciary but generally speaking I thought any clarity is always helpful whether it's it might be difficult for the act to set it out but other than how we go about setting up a pilot but it may be the policy memorandum to set out something like that about what's expected but it should be made clear I think that the decision in any particular case is not something which should be evaluated of itself because we're not looking at conviction rates or acquittal rates because we don't want individual judges to think there's some sort of a league table or the public to think there's a league table of judges who acquit or don't acquit or whatever do you not think that might happen I mean it has been suggested that it could be seen as a league table if you run it for a year and you look at the conviction rates yes exactly that's why I think if it could be made clear that that's not what it's about and that would be helpful but I think you're quite right though to call it a pilot with real people in it that's an important point to make it's not something that's going to go away it's not it's not a sort of study as it were with mock jurors in it thank you very much thank you that might helpfully lead into a question that I was going to ask staying with the rape trial pilot and it's on a point that has come up in evidence and I was very interested in and during previous evidence it was suggested that some concerns about the pilot without juries might be lessened if there were more than one judge involved in our ruling now I'm interested on perhaps if the judiciary has a view on that proposal you know it's a hypothetical and I'll also bring in sheriff cubie just we didn't discuss that that's actually it looks at I mean a part of many also two judges doing it will need to double double their number of judges we've got I suppose one view of it but I think Lady Dorian's review considered various models and came up with the idea of one pilot one judge so the choices really were discussing what a single judge or the status quo so we haven't thought about any other issue again that's a matter for parliament in due course thank you sheriff cubie I'm afraid the same as Lord Matthews I hadn't considered that just to respond maybe briefly to something that Pauline McNeill said it probably would be useful in advance of the pilot to have some kind of metrics about what the success of it would be or otherwise that's one of the concerns I think that the sheriff's and summary sheriff's association raised in relation to the success and whether the crude measurement of acquittals or convictions would be used when that isn't the purpose of it but some clarification of that would be helpful but in relation to any development of a single judge pilot court I'm afraid it's not something I've given any consideration to nor has a sheriff's association that's understood okay thank you well I'm going to pull this session to a close just thank you both for your attendance this morning I think that's been hugely helpful for us and we'll just have a short suspension to allow a changeover of panels thank you again okay thank you so I would like to welcome our final panel for today so we have Dr Andrew Tickell lecturer in law at the department of economics and law and Sinead Stevenson McCabe lecturer in law at the department of economics and law both from the Glasgow Caledonian University so we're very grateful that you've been able to join us this morning so I'm tend to allow about 45 minutes for this panel given that we're primarily focusing on the proposal to grant automatic lifelong anonymity to victims in sexual offences cases so I wonder if I can just open up with a broad question I'll come to Dr Tickell first and then I'll come to Sinead so really just to ask if you can outline a bit about the work that you've done as part of the Glasgow Caledonian University project on complainer anonymity and the main findings of the research sure absolutely what's great to be with you here this morning our project on this really began I suppose in 2019 and it began as a result of a conversation I had within newspaper editor about the right to anonymity one of the most common phrases you see in reporting around this issue in the Scottish media and beyond is that victims complainers of sexual offences have a right to lifelong anonymity and in 2019 I believe that was true about Scotland and then I discovered that it was not that in terms of following up on that comment by the newspaper editor I was thinking well I'm a law lecturer surely I can find out where in scots law it says that this right is enshrined and to my shock it I transpired that it didn't in fact exist that the legislation does not extend rights of anonymity to complainers and so every time the media say they have a right they are to a legal extent at least misrepresenting the situation and so partly it was that revelation which caused me initially in 2020 to publish a piece concerned about how Scotland sits in the rest of the UK everywhere else in the UK does protect a right to lifelong anonymity Scotland is alone on this score but above and beyond that I wanted to take a look at how international jurisdictions have dealt with this issue a lot of reporting restrictions internationally were adopted before social media and therefore the regulatory assumptions which underpin them are often based on assumptions that publishers are newspapers and they are tv broadcasters and they are the radio and of course we know that is no longer the case it's no longer the reality so what I did then was look at 20 different jurisdictions in the common law tradition including Ireland Canada the United States a range of Australian states to try and understand what international best practice in this area looks like particularly where countries have tried to change the law after the advent of social media and what I discovered in fact was that the best kind of legislation in my view for this is not simply replicating the English provisions but is trying to learn the best lessons from the international examples particularly Australia which has legislated and generated a whole range of unforeseen but well-intentioned problems as a consequence and broadly I suppose to pull all that together it's about three things what offences does anonymity extend to when does it begin when does it end and who decides those are fundamentally the policy questions which I think the Government had to address in this bill and which our research has largely spoken to each of these issues it might be more helpful if we talk about them individually rather than me trying to summarise at that point okay thank you come back to that and I'll bring in Shanaid if you would like to add anything to that I suppose I would just like to add that we were very fortunate in that at Glasgow Caledonian University we were able to work with our students as part of our work on what we called the campaign for complainer anonymity and we also omitted a key part of his story in relation to when he told me that this was the position in scots law I told him he was wrong I said no no there is legislation I can't call to mind what it would be which was my first error because Dr Tekel is actually very rarely wrong but but I was also ignorant to this fact and we saw that play out again and again we said to our students do you think that you can name a complainer in a sexual offence case and they said no and said now I had the insight and so I could say well tell me show me the bit of law that says that and they also of course could not do that and I think that helped the students to think about how they could contribute to public legal education on this issue and so they've been involved in research they were involved in building our website around the campaign they wrote articles for the journal of lost sight of Scotland for legal women magazine and they assisted in preparing the consultation submission that we put in our students have been a big part of this process and I suppose just wanted to publicly acknowledge that today and also to say that again and again we see this narrative that it is already the law and therefore what is the problem and you summed up very well that many of the problems have come to light in the age of social media and I think that that is something for our students who have grown up as digitally native that that really rang true so being part of the campaign and working with the students has been a really enriching process I think for both of us and I'd like to just put it on record to thank them. Okay thank you and I have to say I did find this at your submission fascinating I didn't know there was quite so much in and around the subject so it was really interesting to get your perspective so I wonder if you could maybe just ask you about your views on the provisions within the bill so from your very informed and expert perspective generally what are your views on the provisions as they're set out at the moment? I think they're very good I mean I think they're extremely positive I think they will set out in general there may be some areas we can discuss where there's continuing controversy but overall I think these learn the best lessons of the international practice which is really what we were aiming for as a result of this project I should say that we did over the course of our engagement around this recognise that all political parties had committed to doing this and therefore it was important to give the Scottish Government the information it needed about international practice because as you say convener on the face of it it sounds simple and it doesn't sound as if it should consume all of these political choices and policy choices and that was my view as well up to about 2020 when I got into it you think no no this is much much more controversial and there are really important choices to be made this is an area if you look at Victoria you look at Tasmania where well-intentioned legislative reform has caused really significant problems for people and so when I discovered that and unearthed that experience in Australia I was hugely keen that we don't do that in Scotland so we were able to share our findings with the Scottish Government at a fairly early stage so it would be fair I think to say that the proposals largely reflect or actually I would say improve on suggestions that we articulated in our academic work around this. Okay thank you I'm gonna I've got a couple of other questions I'll come in on later but I'm gonna open it up to members and John Swinney would you like to come in? Thanks thank you very much for being here today and for the important valuable work that you've done I'm interested you know I think that when we were Lady Dorian in front of the committee Lady Dorian made the point which I think is you know very important in this respect that up until the age of social media the common assumption was that this provision existed because it was essentially voluntarily respected by what one might call the established media and we of course are in a very different era now so just following the convener's line of questioning I'm interested in whether you believe the provisions of the bill cast the net wide enough to a address the current media that we know about and b the media that we might not know about that might be yet to come I think that's a really interesting question because it I think that when we talk about the established media we often say that they generally regulated themselves very well and that is true but there were also incidents where they did not and they were not you know historic that quite recent in 2022 we had a case involving the Greenock Telegraph where a complainer could be jigsaw identified and there was no statutory basis in which a case could be brought to court to challenge that went to so and a complaint was upheld there so another case in 2015 involving the daily record where a gentleman was identified via a report in his family actually found out that he'd been involved in the case via reading the papers so I think that although generally speaking the press did regulate themselves well it is the address code is not law and I think that that's an important starting point and I think that the bill I'm just really heartened to see that the bill exists now that we have these provisions in place that's going to be put in a statutory footing because I think that's important for the mainstream press as well as the social media age on the social media point I think the bill deals with it very well it covers I think the definition of publication whatever speech writing relevant programme or other communication in whatever form that captures social media we are all publishers now every time we send a tweet every time you put up a facebook post we are all publishers and the bill captures that and actually does so in a nuanced way because it also recognises that whilst we are all publishers we are not all journalists we've not all had media training and we don't all understand ethics of publication and the public domain defence I think deals with that particularly well it acknowledges that social media exists and that we don't want to incidentally criminalise people but in terms of whether I can go on on facebook and put up a post students would probably cringe at me referring to to facebook tick tock whatever it may be and put up a post and name someone I can't do that under the the provisions as they are and I think that's a good thing it doesn't make a distinction between what type of publication it is and we can't anticipate what new platforms will exist but I don't think the bill tries to do that and as a result it is broad it covers what it needs to but in a sense thank you for that answer but in a sense the fact that the bill is predicated on the assumption that publishing is not the preserve of institutions but essentially individuals gives you the confidence that in terms of the research work you've undertaken and looking at other jurisdictions this represents what one might describe as the strongest foundation for providing that lifelong anonymity I think it's interesting when we look at other jurisdictions because we are very late to this and so many other jurisdictions if we think about England and Wales our current provisions came in in 1992 they weren't thinking about twitter and facebook and like so they are captured generally speaking when we've looked at other jurisdictions they are still captured by the rules that they have we have the benefit of coming late to this that we can think about how we deal with social media but I am not concerned that the provisions of the bill wouldn't capture social media publication concerns that we had when we initially responded to the consultation for example was not that it wouldn't capture social media because I think it's quite easy to do that you just make it broad our concerns were more around well what happens if someone reshares a post where a complainer has shared their experience and then actually that's a criminal offence but now that the public domain defence exists within the bill I think that's dealt with well so I do think it represents the the best lessons from international comparators one final question for me there's been the question of awareness because in a sense there is it's been examples where people have not but well actually I suppose in your current assessment they are in some circumstances people will be able to publish information just now because there isn't that lifelong anonymity protection place but in terms of getting to the point of how how do people become aware of this obligation that you know every one of us that decides to impart anything in a public domain now will will carry should this legislation be enacted what have you learned from international best practice about how that can be most effectively communicated because we have in front of us as you have observed a complex bill with many different elements within it you're obviously very experienced in this particular element of it what can what can we reflect on to the government about the importance of making sure people know what's actually going to be in the law if the bill is enacted yeah I think that's very important it's interesting that currently many people believe this is already the law so I think probably people generally self-regulate quite quite well in this space but of course that that is that is not the position and so there needs to be public legal education around this there needs to be good strong public understanding of the law I think that's particularly true when we think about young people who are active in social media and could it could be a really good opportunity if you think about public legal education about making sure that these provisions are well understood and schools are a good place to do something like that it's often said that the internet is like a legal wild west as if like the rules don't apply there but that isn't true the the rules still apply on on the internet if you commit you know you're inciting violence you're committing hate speech whatever it might be the rules still apply and so I think that there is generally in the public's mind sometimes a disconnect between the real world and the online world but I think that that is starting to to dissipate and I'm not too concerned that people will be incidentally criminalised for the reasons that we're outlinked. We did actually do some opinion polling on public understandings of this back in 2021 which we received some funding from gcu to pursue which is very interesting and what it disclosed was the public didn't really understand the current situation but a lot of them tended to confirm our anecdotal suspicion which they're told by the media every single day I counted over 100 references to waving your anonymity in the Scottish media since the start of January for just a couple of months. If people already believe that that's the case then they are acting in that way even if they're not subject to legal obligations or journalistic obligations. More generally I think what's really good about this bill is it is informed by the reality of social media I'm always worried when we talk about the regulation of social media it's presented as like a big bad which is universally a menace to people who use it and of course it can be under our online harms but people use social media for a range of different things one of which which is so important in this field is telling their story saying what happened to them and other people learning from their experiences whether that was the me too campaign across the world or in Australia the let her speak campaign that was about this very issue if you look at where this goes terribly wrong you can look at the modern Scottish law dealing with children so for example it's illegal for newspapers and for broadcasters to identify a child involved in a criminal case but not for random people on twitter why is that the case it's because in 1995 the legislated in a technologically specific way with regulatory assumptions about what was being regulated whereas a broad publication approach means that doesn't happen but equally what's really good about this bill is these provisions as Sinead says on secondary publishers effectively what if I share your content and the bill is realistic about the fact that young people adults will share their experiences other people will share them and we shouldn't criminalise that behaviour because this bill is not just about protecting people's privacy and their dignity it's about giving people the autonomy about deciding for themselves without references to the court I want to tell my story or indeed I don't want to do so and that I think is a real strength of what's being proposed here okay thank you I wonder if I can just before I bring in Russell Finlay I wonder if I can just ask maybe a slightly left field question and it's around extending provisions around anonymity to an accused I don't know if that's anything that you've looked at within your scope of work but in any case I'd be interested in what if any views you have on that yeah so this is a question which one is very often asked in this context and a number of submissions to this committee on the bill from from members of the public made this point and it wasn't the focus of my research but I did look at in each of the 20 jurisdictions I considered is it the case that if a complainant or complainer gets anonymity then the accused does true and the answer is no that in fact now I think there are only three jurisdictions where that applies so New Zealand is one where accused people have anonymity the legislation says for the complainers interest not their own we have the Republic of Ireland in particular which has had these provisions for some time and we have the more recent changes in northern Ireland which have introduced that there so I think those international examples tell us that it's not an if then question that internationally complainer anonymity is not regarded as necessitating anonymity for people accused of crime and I would say that if you look at how this works in practice there are substantial problems with it just to give you one rather graphic example I mean if there are provisions which say you cannot identify someone accused of sexual offending unless they are charged or unless they are convicted then it would be a crime for anyone to say that they were sexually abused by Jimmy Saville now that's a very particular example but I think a very clear one that when we're talking about reporting restrictions it's absolutely incumbent on us and I would argue on you as legislators to remember this is criminalising speech and that's not something to be done lightly it's something to be done thoughtfully realistically and proportionately and so that is one consequence I think of extending anonymity to people who are accused of crime we know that many people are not prosecuted sometimes in Scotland because of a lack of corroboration so what one would be effectively doing is saying it would be a crime for those complainers to say they were victimised by a named person and I think that would be problematic okay thank you that's really interesting okay I'll bring in Ross of Thin just extending from that point I suppose the defamation laws protect individuals as well who may be accused of something so yeah I mean I find this research to be really fascinating and I as a former journalist was guilty of the presumption that you describe I'm going to hold my hands up but I think partly due to the fact that the media did and do take it very seriously and in fact the legal advisers to the media effectively gave the impression if the words legal right to anonymity is wrong right to anonymity by almost convention does exist but I do see the need to in the advent of social media to legislate for this and I see no argument really against it I just wanted given you're quite satisfied with the bill as drafted did you have any input in the drafting or advising in that respect so not in terms of the drafting however the article that we published in 2022 in the Edinburgh law review which is entitled how should complain anonymity be introduced in scots law gave a series of specific arguments about approaches that could be adopted we did also have meetings over the course of a number of months with the cabinet secretary on this and also with officials in terms of that but nothing directly and one thing it does do is create a criminal offence for those who are to breach this new measure it struck me that one of the defences seems quite broad in that you don't know you're breaking the law which don't think applies in very many sets of circumstances are you satisfied with that particular defence in terms of a lack of knowledge or a lack of awareness of a restriction they're quite common actually in these cases where you didn't know and had no cause to be aware potentially that you're making a disclosure about someone they're often the case it's in curiosity as a defence I don't know if that's right exactly in the sense you might not in good faith know something right and therefore publish something which incidentally identified somebody but I would imagine in many cases your challenge to that is just the challenge the crown would make to someone who puts information like that in the public domain I mean one other issue about this is a significant change to the system there's repercussions potentially in other parts of the world we've seen what can happen if it goes too far and the backlash in that respect and it avoids seeking to do that but given that this is now part of a bill that includes so many other huge changes and contentious changes you know not proven due to this rape trial pilot changes to jury sizes and majority and that's really getting all the attention do you think this would have benefited from being perhaps a separate piece of legislation I haven't considered that if I'm honest it seemed I think given that we're dealing with sexual offences it seems a perfectly natural home for complainer anonymity to be discussed I do appreciate that this issue seems uncontroversial compared to some of the others I think Andrew and I would actually say to that that there are controversies in complainer anonymity they might not be getting the attention that some of the other issues are I think that's the point it's not getting the attention it's when we start thinking about it and talking about it a lot of the stuff comes to the fore and we've spent so much of our time talking about these other issues understandably so and what do you think Andrew in respect of whether it might have benefited from standalone scrutiny well I suppose I mean I did start researching this in 2019 we're now in 2024 it was urgent to change it in 2019 so in the sense any further delays I think would be problematic I think also it's probably worth saying you know this bill will amend lots of different elements of the existing law in parallel to this committee the education committee is considering changes around very similar issues involving children and therefore there's been a degree of mismatch I think there both at maybe committee level I'm not so sure but particularly at governmental level that a number of the points we've made to you about this bill where the Scottish Government got it right actually didn't mower over into the provisions about children I'm pleased to say they now do after the amendments that the government has laid down because victims support Scotland are seeking to have a right of anonymity to child homicide victims yeah which is similar territory do you have any views on that has that been something you've looked at yeah so one of the major surprises I suppose from the international research that we did was about the impact of death I think it's intuitive the honor human level you can understand a sense that why should someone lose their anonymity simply because they were a victim of homicide whether an adult or a child and I think that sounds really compelling and is a really important point on a human level but when you get into the practicalities about strange things have happened elsewhere give the example of victoria and this is about adults I can maybe come on and say more about the situation involving children which I think are a bit different but in victoria there were a number of high profile cases where women had been killed in the course of sexually motivated homicides and under the rules in victoria victims could waive their anonymity themselves and if that didn't happen you had to go to court now on the face of it that does not sound unreasonable does it but what happened next the family members discovered that in the immediate aftermath of their daughters and sisters being killed it was a criminal offence for them to speak publicly and say that is my daughter and so in victoria what we saw was it was victims organizations and families who had been bereaved who came forward and said why should we have to go to law and that takes time it always takes time and it takes money and it takes lawyers why should we have to do that in order to speak about the fact that we have been bereaved and that's what happened in victoria and it's what happened in other places that introduced these provisions beyond natural life and this might be why rape crisis scotland or the view that anonymity shouldn't continue in after death that was certainly as I understand it their initial position I think I think sandy brindley referred to talking to survivors about it and being and they were concerned about this but I think that's an inevitable consequence if the only way you can waive anonymity is to go to court then that's something we know other people have suffered with economically socially personally and it does underscore for me the fact that this is a crime you're making it a crime for someone to say that is my daughter I think the issues concerning children who are bereaved are being scrutinized at the moment around that I do think they raise slightly different issues death is a public fact it has to be registered in public and causes of death have to be identified equally I'm not sure that the discussion around this recognizes some of the terrible realities about about who child victims of homicide are killed by 63% of them are killed by one of their parents if we anonymize a child who's killed by their parents you're anonymizing their parents and that might be something that is worth doing and I imagine victim support Scotland may say if it helps surviving siblings then let's give anonymity to their parents but we're not intending to give anonymity to perpetrators of crime and so this is why there's a range of moving parts that fit together and why death is proven so complicated there's one potential consequence for a death certificate we'd be breaking the law potentially if it was unlawful to publish it and also I really worry about this that in in terms of who you criminalize is such an important issue around this you know the fact that someone's been the victim of sexual crime is usually a private matter which can remain private where someone is the subject of homicide adult or a child their death is a social fact not simply on paper but in the communities to which they belong they disappear from school or their child they're posted missing there's a significant risk that the people you criminalize by passing such legislation are not intrusive members of the media who are publishing gratuitous stories but they're well meaning people on facebook who say RIP and then insert the child's name and none of us want to do that and so I'm not at my position on this and I've had engaged to be to be frank with you with victim support Scotland around this and we'll be doing my best to try and find a way forward which is constructive but I do just want to say that the challenges around this are so much more profound than I think have been fully brought out so far in Parliament yeah no thank you very much thank you okay I wonder if I can just come in on um with you referenced standing um Russell Finlay's line of questioning spoke about children and in your submission you you talk about how and I'll just actually read what you what's written it's critical that scots law respects the legitimate autonomy of complainers in these cases and facilities their decision to share or not to share their experiences without imposing additional legal or economic costs and then you go on to talk about how finding the balance in and around all that it is particularly challenging in terms of child complainers so can I maybe just ask you to outline a wee bit more about your research specifically looking at the issues impacting on children yeah so there's a range of different things internationally the age at which children are able to identify themselves is different in different jurisdictions so somewhere as young as 16 somewhere young as 14 even in some of the states that I looked at others others are older in terms of adults our goal I suppose fundamentally was to say that you shouldn't have to go to court all everything I just said about about families applies even more powerfully actually to living complainers you heard was a couple of weeks ago from panels of complainers all of whom told you their experience of court was a profoundly disempowering one and in Australia the campaigns let her speak campaign that was founded by a woman called Nina Funnell and Grace Thame who was subsequently named Australian of the year they made all of these arguments for us that they should be able to tell their own story if they choose to clearly children raise other issues around this and most of the jurisdictions do have a different provision in terms of dealing with children what I think is important is that we don't criminalise children for sharing content online and don't pretend to be shocked that they might do so because nothing is more foreseeable frankly than somebody putting information even if it's to a limited friendship group to a section of the public on the internet otherwise in terms of is a court based approach appropriate which is maybe implicit in your question at that stage I probably would say that I'm not a children's rights expert at this phase and on this I think we make the point that others maybe the children's commissioner others maybe better placed to give you a critical judgment about whether the proposed mechanism is appropriate or not okay thank you do you want to add anything to that I suppose all I would add is that I am equally glad to see that it's not going to be a criminal offence for children to identify themselves the provision that applies 106c for applies to children and adults so you can identify yourself and that plays into this idea of autonomy that we've talked about again and again in these cases in some of the international comparators we've seen such paternalistic approaches taken and that can be something that as adults we often feel in relation to to children so there is a degree of paternalism of course when it comes to the court process but what we're talking about there is is other publishers we're not talking about the child themselves and so I think that it is a difficult balancing act autonomy versus paternalism when it comes to adults I'm much more in favour of giving them a significant degree of autonomy I'm heartened to see that there's no suggestion that you would have to get a court order to share your story with a newspaper as an adult but with children there are there are other concerns and I think that that tension between autonomy and paternalism is balanced differently in relation to children I think that's a good thing yeah okay thank you I'm going to bring in Pauline McNeill now thank you very much yes and it's really helpful your evidence so far bear in mind that we've only been aware of this since the proposals were published so I think Russell Finlay is quite right to say that I think you said it yourself daughter Tickell that some things aren't as necessary straightforward as you first think and this is a good example of it so I wanted to maybe start with you should need what are the differences then between children and adults under the proposals in how anonymity is lifted what's the difference exactly so it's not to invert your question but we can start from what is the same so the same is that both children and adults can leave their own anonymity that's a good thing that is empowering for all complainers the difference then is in relation to children is that we're looking at a court process for them being able to to share their story more widely with third parties and that's this extra safeguarding layer when you know that you're dealing with potentially vulnerable young people who could be open to manipulation so there's this process for you would go to the court think the relevant section and they tied together those two things because firstly so the same similarities are they can they can wave their anonymity what's the difference between that and telling your story to have to go to court sell your story to tell your story to have another publisher a third party publisher so if a child wanted to create a TikTok video where they spoke about the experience they have told their own story if we have someone else telling their story then you can dispense with the restriction in relation to child victims under 106d and that sets out a process involved there for adults we're not looking at a court process for adults where there is possible to consent and if we're looking at ports required for consent you know you have to have written consent from the adult complainer and that's sufficient you don't need to go through a court process I think that's a real strength and I think it could have been very tempting for adult complainers and child's complainers to replicate the same system and I don't think that would have been a good balancing of autonomy and paternalism and particularly I mean prior to being an academic I was a solicitor and I trained in litigation and worked there subsequently and often litigators are trying to discourage people going to court it can be costly it can result in delay that's not just in relation to the criminal justice system that's relation to justice generally try to avoid going to court is generally a good motto for a young lawyer and I think that holds true here so I'm glad to see that we don't have a truncated system where adult complainers have to go to court in order to get an order so that they can share their story with the press and the press can run that would be unnecessarily complicated but children are different there is a difference there you have potentially vulnerable young people who could be open to manipulation and I think having that extra safeguarding layer of the court is a good thing so I just want to say I've understood how it applies so a child under the age of 18 can go on to talk and talk about their experience as a child victim can that be used it can be shared presumably because they're sharing it themselves is there any lines here between publishers or people have been able to use that so that's a really interesting point and actually something that we raised as a potential problem because when we come down to the defences when we look at the public domain defence one of the requirements for the public domain defence is that you have to believe that the person is over the age of 18 so for example if your auntie who knows that you're not 18 shares your video the public domain defence doesn't actually apply to her that's potentially problematic now what we've said in our response to the committee is that police and prosecutorial discretion could be used there to not prosecute the auntie that shares the piece would there be public interest in pressing head of that prosecution I think that's very unlikely but the reality is that the public domain defence wouldn't apply this is where I'm having some difficulty every russ openly raised this question because my understanding of scott's law is not knowing it's not generally a defence you can't say I didn't know what the law was and I don't know how the law can make a distinction between your auntie and anyone else I know what you're trying to say the auntie should have known that the person was under 18 but so yes an ordinary understanding of it but we are legislating here and we need to get these bits right so that is exercise me a little bit this this defence seems to be extremely broad so other people with an interest might be using that more widely that would be my concern so there's actually two defences I think here that are getting slightly conflated I feel that 106f so there's there's the defence of written consent there's essentially three defences at play so there's the defence of a written consent that's that separate we then have the defence that's the public domain defense that is where the information is in the public domain and the certain conditions apply and those conditions include having no reason to believe that the person hadn't given written consent or they weren't over the the age of 18 so that's to stop incidental criminalisation people sharing so let's imagine a circumstance in which a newspaper runs a story and I see the story and think that's terrible I would like to reshare that that's wrong I'm not a journalist we shouldn't expect citizens to do due diligence on whether a newspaper had the correct written consent and that when they said the individual was 19 they weren't wrong when the person was actually 16 that's too much of a burden to put on individuals so that's the public domain defense the other defense that I think we're talking about as well is that in subsection 5 a person charged with an offence is a defense if it's established they were not aware and neither suspected nor had reason to suspect that the publication included relevant information really what we're thinking about there is not ignorance of the law not saying I didn't know you couldn't share that complainer in a sexual offence case I didn't know you couldn't share their name it's that they had no reason to suspect that there was relevant information there that could lead to identification what we're dealing with here is jigsaw identification as well as naming an individual so you could easily share something and actually the wider context then creates a situation in which someone can be identified and that's really what that's trying to to deal with I don't think Dr Tekeller I have concerns that these defences are too broad I think they're sensible I think they don't mean that all of us could ask them you don't think a good lawyer could drive a coach and horses through this this last defense I don't because it is extremely broad because my understanding of jigsaw identification is why we're doing that in the first place so that you can't piece it together say well that must be that person but we're talking about the defences here you're clear you don't have any concerns that a good lawyer could drive a coach and horses through that last one which the no I don't and you know as as legal people ourselves as a qualified solicitor myself I don't have concerns about that provision I don't know Dr Tekeller I don't think you do either but perhaps you want to add no I don't I don't really share that I mean because it's not ignorance of the law being no excuse it's ignorance that you've put something in the public domain which could give rise to someone's identification and I think we do need to discriminate as the law always does between intention mens rea as a legally fan and blonde fan to know and other forms of other forms of intentionality have to be proven in court so I don't see this as a significantly problematic we do need to have adequate defences to ensure that we're not sweeping people into criminalisation who we don't intend to it is certainly though fair to say that what counts as jigsaw identification and what kinds of information can give rise to identification is an issue which until fairly recently there were no Scottish judgments about there are judgments in England about that but often they're rather fact sensitive we know that in the last session the Parliament itself was faced with some of the challenges of identifying whether information could give rise to the identification of individuals or not I suppose what I would say is that in the international practice all of the states I've looked at really adopt this approach all of them have something similar which says that we need to avoid publishing information which would give rise to someone being identified and as Lady Dorianne said in the solitary judgment around this that that's not a test about the average punter on the street but whether they would be able to apprehend who the person was but someone who worked for example with the complainer now that can be difficult to judge in any given case because it is so context specific I suppose the safeguard here is that individual courts would have to decide these questions the crown would have to determine that it was worth bringing proceedings against a publisher who had done so and if they were going to make good these defences then they'd have to provide some account which made them out thank you I just one final question just on this issue of where there's a child who wants to share the story so that bit you go to court any give us any evidence to what the court might consider and I was just thinking to myself if you're a publisher if you're a newspaper you might want to offer some money for someone to lift an anonymity so you might be saying and well that's up to the person if they want to do that or not but have they thought through all the consequences of sharing the story when the money looks good any evidence you give what you think court the court would look at and so whether or not to allow that anonymity to be waived I might be take that into consideration do you think bill is also really good on this because it sets that out quite quite clearly and says that the sheriff would have to take into consideration that the child understands the nature of an order so that nature of an order being made where their story would be shared appreciates the effect of making such an order and give consent and also the sheriff would have to consider that there's no good reason why an order should not be made so there's criteria there that have to be reworked through and I think they're really thoughtfully drafted it's not just that they understand the nature of the order they appreciate the effect they've given consent and there's no other good reason why an order shouldn't be made so I think that there are safeguards in place here that deal with exactly the situation that you're discussing so I think it's a positive piece of drafting on that thank you very much okay thank you I'm going to bring in Shadindari in a moment but just maybe kind of following on from Pauline McNeill's last question what's coming to my head during the session is how you know we've spoken about autonomy in terms of of a victim and this perhaps control choice that they make the choices that they make and the control they have how do we inform a victim or what such things should be considered in terms of how informed a victim is in relation to those choices that they have around anonymity so that you're balancing you know the legislative provision if you like their welfare their right to autonomy and so on so it's more a practical question around what that would look like how do we tell them what anonymity is about what it means for them I think that's something that organizations have done really well I'm thinking particularly of rape crisis Scotland they've worked closely with survivors for example miss miss M when we think about the civil rape case who has maintained her anonymity they've also worked with survivors who spoke to to yourselves at the committee who have not to say chosen to waive their anonymity because we know that that is not legally the case but who have very publicly identified themselves so I think there are organizations out there who are doing that work and doing that work in a really important impactful way it's difficult though it's very difficult because I think I think the Lord Advocate said earlier that not all complainers are the same and we wish that we could give complainers bespoke support bespoke individualized support and the truth is that criminal justice systems are rape crisis centres there is a lack of resource there that means you can't always give that individual support but I think that organizations like rape crisis are doing that and doing that well and it's important that survivors can speak out I think Hannah McLaughlin when she spoke to you said that we shouldn't be pushing for everyone to remain anonymous and that's absolutely not what we want to do with this campaign or and I'm heartened to say that that's not what the government wants to do with this bill either and we want survivors to have that choice how that choice is made of course comes down to the individual survivor the individual victim but there are organizations that can provide that kind of support yeah good thanks for that okay I'll bring in Sharon down then Russell Billings what to come back in thank you it's actually just really to go back over something that Pauline McNeill had said and to make sure that my understanding is right on it in paragraph 38 it says as drafted the bill would criminalize a family member friend or stranger who shared a child victim social media post disclosing that they were the victim of a sexual crime this would not necessarily benefit from the public domain defence already discussed so would that take into account somebody's auntie that should know that they're over so we would actually be legislating to criminalize that auntie for sharing a post that the complainer had actually put out of their own free will if that complainer was under the age 18 yes that is the way the bill currently reads and I can I can see there's confusion on your face there and I can understand that because that public domain defence is is there to deal with exactly that kind of situation in relation to complainers it's because a distinction has been made between complainers over the age of 18 and complainers under the age of 18 what we also say in our submission is that realistically do I think that that auntie would be prosecuted well there is always prosecutorial discretion there's police discretion would there be public interest in pressing head with that prosecution but you are correct to say that's our reading of the bill that whilst the individual themselves could under the provisions that they currently stand wave their own right resharing that media could be problematic and that's perhaps something that should be considered in terms of amendments going forward right so even if there wasn't a complaint from the child complainer they could still be prosecuted by the police for sharing the post you mean if they can the child complainer themselves so the child complainer didn't complain they've put the post out it's being shared by friends and family and if they're over 18 and they know that the the person who's shared the post is over 18 under 18 and then and the person that's shared it is over 18 but they know that the complainer who originally put the post out is under 18 then somebody other than that child complainer could actually just go in and prosecute them well so i suppose there's a couple of things there the first is that even if another child shared it that other child under the age of 18 could be could be prosecuted here even if the child didn't go to the police and report the offence that's the nature of our criminal justice system though it's not the victim that takes forward a prosecution but with the in reality would that happen would that happen in reality are the police going to say your auntie did that and that breached the law and we've you know done our detective work to get to this point very unlikely and if someone else were to make a complaint i think there would be police and prosecutorial discretion but where that would go ahead but whether on a black and white reading of the law that would be a potential criminal offence that that is the current position so it could happen it could absolutely look good happen okay okay thank you interesting point um missile friendly a quick point of clarification so as drafted um someone under 18 could put their own experience on social media they've got that autonomy and that could get 10 20 million views it could be viral but if the bbc wanted them to report that they would have to go to court in order to get a sheriff to say that's okay yes and a sheriff could say no because the phrase was the child has to be deemed to be understanding of their actions yes so you could end up with a bit of a odd anomaly whereby this is viral everybody in the planet knows about it but mainstream media who've had this barrier or this requirement are unable to is that problematic or do you think that will just work out through application i think it could be problematic i think what we're trying what we see intention here is that we want individuals themselves to be able to share their story in the way that they choose to shave it and that's why they're video going viral that's them speaking via that particular medium and and also think polemonyl made a really interesting point there's no money involved there there's no kind of commercial interest at play but you are correct to say that the bbc wouldn't be able to run the story under a public domain defence the way they would with a with an adult without going to court that safeguards there to protect children in situations where they could potentially be manipulated i think it's a bit of an anomaly in drafting i'm not sure that it was picked up i think there's probably you can explain this by by comparing and contrasting what's proposed with what happened elsewhere so elsewhere in general it is a crime for children to identify themselves as being involved in the case so that's the makes it on one level much more straightforward because it's a crime for them to to put out a video about it it's a crime for anyone to share it it's a crime for anyone to publish it i think in terms of the thinking underpinning the bill one the government don't want to criminalise the child who shares the content i think that is the right impulse but as i think you correctly point out this is intention with the realities of social media sharing the provisions in terms of children allowing third parties to publish about them are clearly based on assumptions that we're talking about a major Scottish newspaper we're talking about a major concern that will share this story with the nation as opposed potentially to whatever international community might engage with it on social media i do think that is problematic for the reasons that you have identified but that is the reason why we have this tension the only way we have it is because it's not a crime for the child to identify themselves and it's probably useful to think about it that way because the bill doesn't say children have a right to wave their anonymity what it says is they don't commit a criminal offence if they identify themselves and that's why we end up where we end up but i do think it is problematic and it does show you why the regulatory assumptions we make and then the language in our legislation does have to graft on to reality and i think that is an area certainly where there is a risk potentially of over-criminalisation but how do you square that how do you form a provision which doesn't criminalise a child and yet at the same time has mechanisms in place to protect children from being exploited by cynical media organisations just very very quickly if it's okay that the bill says picks the age of 18 it differs in other jurisdictions you say in your submission this is potentially the most contentious element of the proposal and to suggest and the colleagues by calling for this that we should be seeking further evidence from children's right experts again this brings me back to the earlier point about perhaps this needing greater scrutiny and i know you don't want to delay anything but given you're not settled in 18 if i understand correctly you believe we should be taking more evidence in that respect well i think we certainly recommended that you should around this i think as we've seen in a range of different criminal justice contexts there was a degree of incoherence about our thinking around age thresholds in terms of what you can do when you're 16, 70 and 18 does feel rather all over the place and i think that's not necessarily a bad thing i mean lawyers generally tend to say we should have clarity and consistency but in fact what we know about childhood and evolution into adulthood is that it is a thing of steps and stages and that the law frequently has to draw hard and bright line rules which don't really graft on to reality very well i mean there is an argument you might make that 18 is too old frankly that if we are allowing 16 year olds to choose whether you should be an msp or not then why shouldn't we allow them to that well but um in that context if we're making those kind of choices then many 16 year olds will feel robust enough and will potentially resent these restrictions on their rights to go public um so that's something i've been mindful of going through it most of the jurisdictions i've looked at almost all of them say children are handled separately in some sense but i think it's perfectly legitimate and if young people came to you and said i'm 17 and i should be able to go public well i would be inclined to support that personally thank you very much thank you okay i think we'll draw our session to close i wonder if i can just ask a very final question we've spoken a lot about social media and i was interested in your response about the broadcast media and how you know it would appear that there are greater restrictions on broadcast media than say social media given that many social media platforms i think that's what they're called sit out with the UK how difficult would that make it in terms of our scrutiny of how anonymity for victims is being upheld if you like by social media companies well i suppose there's a few different things there there are the standards of service and how old people should be to access them which is seems to be something more honoured in the breach than the observance in many cases i suppose in terms of the reality who is most likely to publish material which identifies a complainer in a case of this kind it's someone who knows them someone potentially with a grudge someone who disbelieves them so i think the social issue if you like and the social knowledge about people is likely to be here not elsewhere and so that reality i think and given the private nature of most sexual offending happening behind closed doors it's likely to be people with a demonstrable connection to scotland who potentially breach these rules and indeed we have seen in recent prosecutions for contempt orders one of the individuals who was prosecuted for contempt in a recent case had shared material while he was abroad thinking that this was likely to preserve him from any consequences it did not because he had a connection with scotland and was back in the country so i think in terms of that sometimes we can envisage the internet wild west as it can be has been much harder to regulate than sometimes it is and i think this is a good example of where these will not be ineffective provisions not least because they build on a real foundation of social consent our polling shows public attitudes suggest media practice underscores that people in general accept the principle that you should be able to come forward that you shouldn't face broader social consequences for taking the very difficult step that many people do not do and i do not blame them for it to come forward and speak about what they say happened to them so this will serve a range of interests from privacy dignity autonomy but also the administration of justice as well and all of these i think are really important values which will really benefit from the core provisions out in these proposals okay thank you thank you for that nice round up that that's most helpful okay so i think we'll close the session now thank you very much indeed for attending it's been fascinating and next week we'll return to victims witnesses and justice reform with two meetings the first is on tuesday and that will be with the scotish solicitors bar association and the second will be on wednesday with the cabinet secretary and that will be our final evidence session on the bill so thank you so much and we now move into private session thank you