 I welcome everyone to the 35th meeting of the Justice Committee in 2015. I want to switch off mobile phones and electronic devices as I interfere with broadcasting even when they are switched to silent. No apologies have been received. Before I move on to the items of business, a comment that I want to make is about late papers. This committee is a very busy committee. It has a huge amount of work. It has a stage three debate this afternoon on a justice bill and yet we receive papers on a Monday, sometimes on a Tuesday morning. I appreciate in some circumstances maybe reasons why they have come late. Some of these ill hasn't managed to send in something, but it is becoming a regular habit. I want to say to those who do submit late papers that we don't have time to read them most of the time and do them any justice. They cannot be looked at on a Monday night on a Tuesday morning and, accordingly, often they are too late and they are a waste of your time at a waste of our time. If I just put that in the record so that we don't have an epidemic of late papers from now on. Now we want item 1 in the business. The committee is invited to consider item 9 in private. This is a discussion on our approach to next week's public evidence session on intercepts of communications by Police Scotland. Our members agreed that we take this in private. Item 2 is the Apologies Scotland Bill. We now move on to stage two proceedings on the Apologies Scotland Bill. Members should have their copies of the bill. The martial list and groupings of amendments for today's consideration. I welcome Margaret Mitchell, member-in-charge of the bill and Scottish Parliament officials. I also welcome Paul Wheelhouse, Minister for Community Safety and Legal Affairs and his officials. Of course, this is not an evidence session, so the officials are not here to answer any questions just to give moral support where required. Now we move on to the amendments. The question is that section 1 be agreed to. Are we all agreed? Amendment 2, in the name of the minister, group with amendments 3 to 9. Minister, please to move amendment 2 and speak to all amendments in the group. Thank you, convener. The amendments in this group reflect the need to ensure the bill does not have unintended consequences. As the committee will be aware, I have expressed concerns regarding the potential of restricting access to justice for pursuers and how it would interact with other legislation. Based on further discussions with the member and further work in cwding engagement with the legal profession and listening to the views of key stakeholders, including the views of survivors, which have been of concern to all of us, I am now satisfied that, if the bill is amended as Margaret Mitchell and I are proposing today, it would strike an appropriate balance between promoting apologies and minimising its unintended consequences. The amendments in this group are key to striking this balance along with the amendments to the definition in section 3. Amendment 3 accepts inquiries, including joint inquiries, which the Scottish ministers caused to be held under section 1 of the Inquiries Act 2005, or which convert section 15 of that act into inquiries under that act. The rationale for this amendment is the same as Margaret Mitchell provided for excluding fatal accident inquiries from the scope of the bill. As Ms Mitchell clearly outlined in the policy memorandum to the bill, inquiries take account of the public interest in ensuring that all relevant evidence may be led. An inquiry is not about liability. It aims to provide a complete picture of what has happened. The same reasoning can be applied to public inquiries in Scotland. It is for the inquiry chair to determine what information is relevant to the inquiry and examine that information to inform the recommendations and conclusions. In this context, the giving of an apology is likely to be a pertinent piece of information and the ability of the inquiry chair to consider this should not be restricted by this bill. That applies even if the bill is amended to remove fact and fault from the definition of apology, since information regarding whether a simple apology was made may be in the public interest. When an independent public inquiry is established, it is often to ascertain what happened and why and identify what can be done to prevent such an event happening again. In this context, the giving of undertakings is often critical to the considerations of an inquiry chair. Undertakings form part of the definition of an apology under this bill and would therefore be inadmissible as evidence in the inquiry. This information may influence any recommendations resulting from an inquiry and it is therefore important that this bill does not limit the information the inquiry can draw upon in this regard. Amendment 4 excludes proceedings under the Children's Hearing Scotland Act 2011 or the 2011 act from the scope of the bill. This would exempt proceedings either before a court or a children's hearing from the scope of the bill. As you may recall, in their written evidence to the committee, the Scottish Children's Reporters Administration, or SCRA, strongly urged the committee to exclude proceedings under the 2011 act from the scope of the bill. They stated that, if children's hearing court proceedings were not excluded from the bill's scope, there would be potentially significant consequences for the children's hearing system in relation to both child protection and youth justice concerns. They shared examples referring to an adult apologising during a police interview and an apology made by a child for committing an offence. If proceedings under the 2011 act were not excluded from the bill's scope, those apologies may not be available as evidence to establish grounds of referral. That might remove the legal basis to bring a child before a children's hearing or for a court to establish these grounds of referral. Therefore, the ability to impose appropriate measures of supervision and protection could have a direct impact on the children's hearing system in Scotland. SCRA has also made the point that, when it comes to children's committing offences, it is dealt with through a civil procedure, however the standard of proof is, quote, beyond reasonable doubt, unquote. They are of the view that, for the same reason as criminal proceedings are excluded from the bill's scope, so should proceedings relating to offence, grounds of referral under the 2011 act be excluded. SCRA has written to the committee and confirmed that the remainder of the view that proceedings under the 2011 act should be removed from the scope of the bill, even if admissions of fault and statements of fact are removed from the definition of apologies. Amendment 6 excludes apologies given in the context of the duty of candour procedure under the health, tomaco, nicotine, et cetera, and care Scotland bill from the scope of the bill. As the duty of candour procedure is not itself a form of civil proceedings, the amendment creates a new subsection 1A. The effect of this amendment is to remove apologies made in the context of the duty of candour procedure from the scope of the apologies bill. As was discussed in the course of the stage 1 evidence session and in the stage 1 report, the reason for the amendment is to remove any inconsistency that exists between the apologies bill and the health, tomaco, nicotine, et cetera, and care Scotland health bill in terms of how apologies are treated as evidence. Apology made in the context of the duty of candour procedure does not of itself amount to an admission of negligence or a breach of statutory duty. This bill would sit at odds with the targeted legislation on the duty of candour procedure in the health bill, and therefore it should be exempted from the scope of the apologies bill. I understand that Ms Mitchell has been persuaded that there is a need to make this exemption. Amendment 2 is a technical amendment to remove any ambiguity that may be created by the inclusion of the examples of proceedings provided in the brackets. I understand from Ms Mitchell that the wording in brackets was intended to provide clarity by indicating what types of proceedings would be covered by the bill. In my view, the inclusion of a non-exhaustive list of proceedings creates ambiguity and is unnecessary. Moreover, as noted earlier, in relation to amendment 3, I am seeking to exempt inquiries from the scope of the bill, which is currently one of the categories of proceedings provided for in the brackets. As noted in the explanatory notes to the bill, all civil proceedings are covered, subject to the exception set out in section 2. On the basis that civil proceedings for the purposes of this legislation simply means legal proceedings that are not criminal, there would not appear to be a need to set out some examples of proceedings covered. Amendment 5 is a technical amendment that replaces the reference to the 1976 act, with the more recent inquiries into fatal accident and sudden deaths etc. Scotland Act 2016, which has passed stage 1. Amendment 7 is also a technical amendment that removes subsection 2 of section 2. That section is unnecessary since it is already clear that the bill applies only to civil proceedings. By removing superfluous information, amendment 8 provides clarity. Amendments 8 and 9 are technical amendments that extend the power of Scottish ministers to modify the exceptions to include modifying new subsection 1A that is created by amendment 6. Amendment 8 does not otherwise extend the Scottish ministers power under section 2, subsection 3, to make exceptions by way of regulations. I move amendment 2. I assume that the minister gets an opportunity to wind up. My only question is in relation to amendment 7. Are there any downsides to retaining section 2, subsection 2? The upside in retention seems to be that it gives absolute clarity and simplicity on the face of the bill. Your explanation was that removing that section would provide clarity, but it could be argued that retaining it provides greater clarity. My only question is, are there any downsides to retaining it? I simply leave that out there and perhaps he is allowed to address that when he closes. Amendment 3 refers to the inquiries act 2005, which is a piece of UK legislation and specifies inquiries that may be set up by certain ministers, including UK ministers, who obviously would not be subject to the legislation, but it also refers to Scottish ministers and Welsh ministers and so on. In terms of inquiries set up by a Scottish minister, would that legislation be excluded from being applicable to the inquiries that are set up under that legislation, but by a Scottish minister? My register of interests is a member of the Faculty of Advocates, but I just really wanted to support the comments of my colleague Gavin Brown on that issue as to 2-2. I am grateful for the minister's comments. I would like to take this opportunity to sincerely thank the minister and his officials for working constructively with me to reach a stage where we will have an amended bill, which, hopefully, in the main meets the aims that we both want to achieve. Section 2 of the bill sets out the legal proceedings covered by the bill. Essentially, it applies to all civil proceedings subject to two exemptions, namely definition and fatal accident inquiries, and amendment 5 updates the reference to the most recent FAI legislation. During stage 1 consideration of the bill, it became apparent that there were a number of additional areas where witnesses and respondents felt that the exception should be extended to include other types of proceedings. I indicated at that time that I would be open to considering other exceptions where the case could be made for their inclusion. Taking each of those in turn, amendment 3 relates to the minister's proposed extension to the original number of exemptions to include inquiries under specified provisions in the 2005 Inquiries Act 2005. It is my understanding that the argument in favour of that is that those inquiries are held to establish the facts, not for any provotive value, and the minister has advanced the argument that apologies should therefore be included in order to ensure that such proceedings are not undermined. I confirm that I accept that. However, I welcome the minister's clarification of the intention behind the proposed exception. In particular, I should be grateful if the minister would give his views and assurances on how the exemption would operate in terms of the historic child abuse inquiry. As the minister will be aware, one of my key reasons for bringing the bill forward in the first place stems from my work with the cross-party group and adult survivors of childhood sexual abuse and the recognition of the benefits of an apology being given without the fear of it being used as a basis for establishing legal liability. Amendment 4 exempts proceedings under the Children's Hearing Scotland Act 2011. Having had discussions with representatives from the Scottish Children's Reporter Administration, I recognise that those hearings are complex in nature and are established for a range of purposes, some of which have been covered by the minister this morning. I am therefore persuaded that the court proceedings under the Children's Hearing Scotland Act 2011 should be added to the exemptions to the bill's application. Amendment 6 provides that new legislation is not to apply to an apology under the duty of candor procedure in the health, tobacco, nicotine etc. and Care Scotland bill. Here, a different approach to an apology is to be legislated for, namely that an apology made under the duty of candor procedure contained in the health bill will not, in itself, amount to an admission of negligence or breach of statutory duty but would be admissible and could be founded on in legal proceedings. Whilst I have reservations about how successful making an apology admissible here would be, I recognise that the Government's intention is to proceed in this way. As the Justice Committee in its stage 1 report stated, it is difficult to see how the bill and the duty of candor provisions could coexist without some form of exception. I agree and hence I am also content with this exception. The other amendments 2, 5, 8 and 9 in this group are in the main consequential amendments as a result of those exceptions or tidy up technical amendments. It is to be hoped, as the bill is established, that the number of exceptions could be kept to a minimum in an effort to ensure that it remains as straightforward as possible. Some may even be removed using the power to do so in section 2, 3, which allows Scottish ministers to modify exemptions to the bill by means of regulation sometime in the future. I note that amendment 7 removes the reference to criminal proceedings. That is a provision that was included in the bill for the avoidance of doubt and to make it absolutely clear that the bill does not apply to such proceedings. I fully appreciate the Scottish Government's position that section 2, 2 is unnecessary and is not essential to set that out on the face of the bill. However, as the provision is currently in the bill, it may cause confusion to remove it, so I wonder if there would be any harm in allowing it to remain there. At the very least, it would certainly be helpful to have confirmation on the record that there is no intention to cast out on the non-application of the act to criminal proceedings. In conclusion, convener, I confirm that I am content with amendments 2 to 6 and 8 and 9. If I can start with amendment 7, I have listened to the points made by Gavin Brown, Roderick Campbell and, indeed, Margaret Mitchell. I am happy to not move amendment 7 if that makes members more confident about the clarity of the bill. In response to Dr Murray's point, Margaret Mitchell's response, the amendment accepts inquiries, including joint inquiries, which Scottish ministers caused to be held under section 1 of the Inquiries Act 2005, or which they convert under section 15 of that act into inquiries under that act. The purpose is to exclude inquiries held by Scottish ministers under section 1 of the 2005 act, converted under section 15 of the 2005 act, or held jointly by two or more ministers, where the Scottish ministers are one party from the application of the legislation. The effect of that is that an apology given in the context of an inquiry or a joint inquiry, indeed, which the Scottish ministers caused to be held under section 1 of the 2005 act, or which they convert into inquiries under section 15 of the 2005 act, would be admissible as evidence in those proceedings. I hope that that helps to put on the record our understanding of what the amendment would mean in practice. I just want to address the point that Margaret Mitchell made regarding amendment 2, and I appreciate that this is something of great interest to Margaret Mitchell, who has had a long-standing interest in those issues. I understand the importance to many survivors of historic child abuse of hearing and apology—I have heard testimony to that effect myself—but I set out section 2, subsection 1 of the Inquiries Act 2005. The inquiry panel is not to rule on, and there is no power to determine any person's civil or criminal liability. Instead, it is, as members will know, a fact-finding exercise to establish a full picture of events that have caused public concern. The aim of inquiries is to help to restore public confidence in systems or services by investigating the facts and making recommendations to prevent reoccurrence, not to establish liability or to punish anyone. Part of that function may include the hearing of an apology and an associated undertaking, which may demonstrate that a person or a company has shown insight into past failings and taken steps to prevent a recurrence. I am not of the view that it would be in the public interest to prevent such evidence being heard in the context of a public inquiry. Not exempting inquiries from the scope of the bill would limit the independence of the inquiry to make its own decisions of what is in the public interest and what can be used as evidence, so the bill would still prevent the simple apology being used in the civil courts as evidence of liability. For those reasons, I am of the view that amendment is necessary. I am going to call amendments 3 to 6, because the minister has indicated that he does not wish to move amendments 7. I am going to call amendments 3 to 6 on the name of minister in all previously debated, and I invite the ministers to move amendments 3 to 6 on block. Does any member object to a question to be put on amendments 3 to 6? A single question, you do not. The question is that amendments 3 to 6 be agreed to. Are we all agreed? I call amendment 7 in the name of the minister. I now call amendments 8 and 9 in the name of the minister, and I invite the ministers to move those two amendments on block. Does any member object to a single question to be put on 8 and 9? The question is that amendments 8 and 9 are agreed to. Are we all agreed? The question is that section 2 be agreed to. Are we all agreed? I call amendment 10 in the name of the minister. A group with amendment 1, minister, please, to move amendment 10 and speak to both amendments. As discussed at stage 1 and as is reflected in the stage 1 report, there has been an overriding concern that the benefit of hearing an apology may be outweighed by the inability to use this as evidence in any civil proceedings. In particular, the committee noted in the stage 1 report that the definition of apologies must be reconsidered. I have reflected on the evidence at stage 1 and my officials and I have undertaken further work to try to ascertain whether, by removing fact and fault from the definition, that would alleviate concerns about any potential injustice to pursuers. I am of the view that amendment 10 is necessary to remove fault from the definition of apology because, in our largely common law-based adversarial system, it is a matter for courts to determine liability and action for damages. Making expressed or implied admissions of fault inadmissible because they are preceded with an expression of regret would not strike an appropriate balance. Some other jurisdictions, including New South Wales, in whose legislation I understand this bill has been based, have largely replaced the common law of negligence with statutory no fault compensation schemes. In such a context, apologies legislation does not present the same challenges when fault is not at issue. Apologising for causing injury is not putting the person who caused injury in a worse position. As I have noted, in largely common law-based adversarial system, if admissions of fault are not admissible as evidence, that would present concerns about access to justice for pursuers. That was clear from evidence from the Faculty of Advocates and the Association for Personal Injury Lawyers, or Apple, at stage 1. In particular, Mr O'Ronald Conway of Apple explained that the first thing that any justice system has to do is get at the truth. It has to find the factual matrix and then apply the law to it. If admissions of fault were retained in the definition of an apology, that would remove, in his words, an extremely powerful and persuasive piece of evidence. The example that he provided was in respect of a road traffic accident, but there are other scenarios where injustice could arise in cases where admission of fault is the only means of demonstrating liability for the harm caused. A pursuer would be unable to succeed in action for damages if fault remains as part of the definition. As I explained to committee, one of my main concerns was in respect of evidential hurdles that survivors of historic child abuse can face when seeking to progress a court action. Preventing the use of an admission of fault in the way proposed in the bill as introduced could add to their evidential burdens. For those reasons, I remain of the view that retaining admissions of fault within the definition of an apology would present a real risk of causing injustice to pursuers. The effect of making admission of fault inadmissible would be to take away from people's rights that they currently have, as we heard in the course of evidence at stage 1. Convener, I note that in stage 1 report you made it clear that the committee must be reassured that individuals wishing to pursue fair claims are not going to be disadvantaged by the measures of the bill. In an effort to work constructively with the member, I have undertaken further inquiries as to the impact of protecting a simple apology, which is what you get if the definition currently in the bill is amended to remove fault and fact. I have listened to stakeholders and am persuaded that if the definition is amended to remove fault and fact, and the necessary exceptions are provided for in section 2, the access to justice concerns previously raised are capable of being addressed. I trust amendment 10 and amendment 1, if agreed, will provide the committee with sufficient reassurance that the access to justice concerns voiced during stage 1 are addressed. I should make clear at the stage that, along with amendment 1 to remove statements of fact from the definition, amendment 10 is key to my continued support for Margaret Mitchell's bill. I move amendment 10 and support amendment 1. Thank you very much. Margaret Mitchell, please speak to amendment 1. Section 3 of the bill sets out the definition of an apology. As it currently stands, that definition is a broad one. That was to set out the fullest possible apology, so included within the apology could be an admission of fault, statements of fact or an undertaking to look at the circumstances, giving rise to the incident to which the apology relates. While all those elements are protected from being admissible in proceedings to which the bill applies, I fully expected those provisions to be tested during the committee's scrutiny of the bill. In particular, I recognise that the inclusion of statements of fact in the definition goes much further than any other apology's legislation. The argument for its inclusion is that there is virtually always another way to prove those facts, if necessary. However, I fully accept that there may be occasions when the statement of fact itself within an apology might be the only evidence available. During the stage 1 debate, I confirmed that I was persuaded that the definition of the bill could be revised to remove the reference currently contained in it to statements of fact. Amendment 1 addresses this point. Amendment 10 removes the elements of admission of fault from the bill's protection and addresses the minister's concerns that the bill, as is currently drafted, could have the unintended consequences of causing injustice to some pursuers. Here, I have argued that to admit fault, whether or not you are actually at fault, is a natural thing to do in the context of giving an apology. Furthermore, an admission of fault is not the same as an admission of liability, let alone an admission of negligence. However, I accept that this is a legal distinction and that the minister and many others who gave evidence were not persuaded that this should be included in the definition. I previously indicated that I was open to being persuaded that the removal of fault is what is required to address the fears expressed at stage 1. I now confirm that I recognise this to be the case and that I am therefore content with amendment 10. The definition of an apology within the bill is, of course, an essential element. The only remaining element beyond a simple apology is a commitment to review. That will still go some considerable way towards giving closure to the recipient and giving the apologiser the encouragement to make a more meaningful apology in the first place. Thank you very much. Do any other members wish to? Rodi Cymru. I have listened to what both the minister and Margaret have said. I think that the minister is wise to have taken on board the comments not only of Mr Conway of Apple but also the form of insurance lawyers and, indeed, my own faculty of advocates. I have to say that I think that the proposed amendments are the right way forward, but I am personally not fully persuaded that leaving in paragraph 3C is appropriate. That is obviously not part of an amendment today, so I will just put that on the record. Any other members? Minister, please to wind up. I am happy to leave it at that. I know that Mr Campbell is concerned, but I believe that we have stuck a fair compromise, which will hopefully deliver the culture change that the member is seeking through her bill but also protect the victims of abuse and other individuals who need to take forward a case from any access to justice concerns. Questions section 4 be agreed to. Are we all agreed? Call amendment 11 in the name of the minister and a group in it, so minister please to move and speak to amendment 11. Convener, this amendment changes the commencement of the act from a fixed period at the end of the period of six months beginning with the day of royal sent to commencement by way of regulations. This amendment is in line with Scottish Government policy. This will allow flexibility with regards to when the act is commenced. This may be important if the Scottish ministers consider making regulations under section 2, subsection 3. Given that parliamentary recess commences on 24 March, it is important that sufficient time is provided to enable parliamentary scrutiny of any such regulations. Given the collaborative manner in which I have been working with Ms Mitchell, I trust that she will be content to work constructively to commence the bill by way of regulations. I move amendment 11. Mark Ruskell, any other member wishes to speak? Convener, as it currently stands new that legislation will come fully into force automatically in six months from royal sent, amendment 11 provides for the act to come into force by regulations on the date to be appointed by Scottish ministers. I know what the minister says and look forward to working with him, but I should greatly appreciate, if possible, a commitment from him that the whole act will come into force within six months of royal sent and, if not, no later than a year after royal sent. I think that I will just leave the two of you to agree that you are getting on so well this collaborative, smiley approach that is going on. Minister, would you respond to Ms Mitchell? I can assure the member that, if I am here in a year's time, I would hope that the legislation has been implemented. Certainly, we have worked collaboratively, convener, on this issue. I hope that it is just a matter of practicalities around the parliamentary recess to avoid any clash with that that we are seeking to avoid. I do not have a strict timetable, but I take the member's point and we want to see this culture change as soon as possible. Thank you very much. The questions of amendment 11 be agreed to or we all agreed. Questions at section 5 be agreed to or we all agreed. Questions at section 6 be agreed to or we all agreed. The question is that the long title be agreed to or we all agreed. At end stage 2 consideration of the bill. Thank you very much. I thank the member in charge. Margaret Mitchell is a successful outing for you, Margaret, and the minister. I am sure that you have more happy little meetings ahead, because she has been going swimmingly. Thank you very much. I will suspend briefly to allow officials to switch over. Moving on to item 3 consideration of a first affirmative instrument today. The draft victims rights Scotland regulations 2015 and remaining with us is Paul wheelhouse minister for community safety legal affairs. He now has with him Neil Robertson, EU criminal justice team, Graham Ackerman, victims and witnesses team and Craig McGuffey directorate for legal services. Good morning to all. I remind you that this is an evidence session, so that the minister wishes that officials can take part in this item, but not in the formal debate that follows and the same applies when we come to the next affirmative instrument. I know that you all know that now, so I should not teach my granny to suck eggs. I put on the record that because this instrument seeks to transpose an EU directive on victims rights and appears to create substantive new rights and obligations, the committee issued a targeted call for evidence on it. We are grateful to those who responded and those responses that have been published on our website will help him for our evidence taking session today. I invite the minister to make a brief opening statement, please. Thank you, convener. The Victims Rights Scotland Regulations 2015 will, in conjunction with the order, which will also be considered by the committee this morning, complete our transposition of directive 2012-29, EU, commonly known as the Victims Rights directive. The directive establishes minimum standards on the rights, support and protection of victims of crime. It seeks to ensure that all victims of crime receive appropriate protection and support, can participate in criminal proceedings in accordance with national law and are recognised and treated in a respectful, sensitive and professional manner. The Victims and Witnesses Scotland Act 2014 goes some way to fulfilling the directive's requirements. However, further provision is required to fully implement the directive and let me explain why. When the Victims and Witnesses Bill was developed, our focus was on certain key areas of the directive that require new procedures or extensive changes to existing procedures. For example, giving victims a right to certain information, giving certain individuals a right to choose the gender of their police interviewer and making extensive changes to the procedures whereby special measures are made available to vulnerable witnesses. We were aware that further work to ensure full transposition of the directive would be required, but at the time we considered that this could largely be taken forward on a non-statutory basis. Many of the directive requirements are already delivered operationally, such as the right to interpretation and translation, and we were keen not to legislate unnecessarily. However, following the passage of the bill, the European Commission published guidance. The guidance, referenced in the evidence provided by Scottish Women's Aid, outlines the approach that expects member states to take in transposing the directive. The guidance suggests that a specific legal framework encompassing all the directive requirements in enabling individuals to clearly recognise their rights and obligations be put in place. In light of that, we came to the view that putting the remaining directive requirements on a statutory footing is necessary and taking into account the commission's view on clearly setting out victims' rights desirable. Together with the existing provisions of the 2014 act and the order to be considered shortly, the regulations achieve this purpose. They do that by amending the 2014 act to extend the rights of victims of crime by creating enforceable rights and by placing obligations on competent authorities, such as the Scottish Courts and Tribunals Service, Crown Office and Procurator Fiscal Service and Police Scotland. As indicated in the evidence provided to the committee by the faculty of advocates, many of those rights are already delivered in practice. For example, the regulations give a victim the right to interpretation and translation, something that is already routinely provided by the competent authorities. In addition, the regulations make provision for the Scottish ministers to publish an information booklet known as the Victims Code for Scotland, which will be published a day on the regulations coming to force. That is the finalised draft, convener. We have produced this in collaboration with criminal justice agencies and in consultation with victims' rights groups. The code provides important information for victims on their rights under the amendment amended 2014 act. Minister, you held something up there. Can I just go back to that? We have not yet published it, convener, so apologies if you have not yet seen this. When will we be seeing this? I believe that it is in about three weeks' time, convener. We did not want to be presumptive by publishing before the regulations are passed. The code also signposts victims to the relevant authorities who can give them further help, support and advice. As the introduction to the code states, and I quote just to aid the committee's understanding, by ensuring that victims' interests remain at the heart of our criminal justice system, victims should feel supported and informed at every stage of the process. The intention is for this to be a living document, subject to regular review. For example, we have already discussed the creation of a child-friendly version with Children First and other aspects of the code through the Victims Organisation's collaborative forum Scotland. It goes without saying that the Scottish Government is committed to strengthening the rights and protection of victims. Our record backs us up, we believe. We believe that the regulations will enhance those rights and that protection. I look forward to taking the committee's questions, convener. Thank you very much. Roddie, John, Margaret, yes? Thank you, convener. Minister, we have had some representations from Children's Organization, in particular that we are going to have a draft victims code that should be child-friendly. Would you like to comment on that? And there is also an additional point on the question of the use of intermediaries, which perhaps you might also want to comment on as well. Well, certainly on the first point, we have had some discussions with, as I said, and I am opening remarks with Children's First. I should say that the full version, which will mainly be used by adults, I am supposing, convener, will be self-simple, we hope to read and to understand, but we want to allow for the fact that we have to cater for the needs of children who sadly present as victims of crime all too often, and to ensure that they have a version that is easy for them to understand and to absorb their, and to feel comforted that they have the support that they need. I just wonder whether I might be able to bring in, I think, Graham Ackerman, maybe able to give more detail on the discussions that we have had with Children's First, convener, which made the member's understanding on that point, and then I will return to the issue of intermediaries. Absolutely. In putting together the draft victims code, we have had extensive conversations with Children's First, the Scottish Women's Aid, the Sport Scotland and others, as the minister says. Clearly, we want to make sure that the code is as accessible as possible and can be read by people that are understood. Along those lines, we have been discussing, as the minister says, with Children's First, how best to go about producing a child-friendly version of the code, and also looking at whether we need to produce a code that is an easy read version, for example, for those with learning difficulties, so that we may otherwise struggle to understand the code. We will be taking that forward over the next few months. Slightly, in terms of a child-friendly code, as to what age group of child you are, it will pitch you down. Otherwise, it could potentially get quite complex. That is one of the issues that we would like to discuss with Children's First, because it is clearly a seven-year-old versus a 17-year-old. Is there a difference in understanding there? Will there be pictures seriously for young children to understand? Seriously, child-friendly versions and easy read versions quite often have pictures in them to help aid, particularly when we are talking about different stages of the justice process and different things that they might have to go through. They are quite often our pictures. Why are you not speaking to the commissioner for children? Who, I thought, has to put out stuff all the time? We have been in contact with the Children's Commissioner. Our focus to date has been the effective implementation of other vital improvements to special measures under the Victims and Witnesses Scotland Act 2014, but we intend to give consideration to intermediaries in due course. That is part of on-going work to look at provision of support to those with communication difficulties through the appropriate adult scheme. We are also the reference to the Barnhouse model in Norway. That approach was recently discussed in the Scottish Courts and Tribunals Service evidence and procedure review, which examined possible ways of improving how evidence is taken, including from children and vulnerable adult witnesses. I believe that the system would involve early evidence being taken, and that being the only time in which evidence is required to be taken in the Norwegian model. Following the publication of the review support earlier this year, SCTS arranged a series of events to explore the implications of the report's propositions with relevant agencies and bodies. The events that ran between May and August brought together the Scottish Government, other justice agencies, the legal professions, victims groups, academics and others with an interest in criminal justice. Feedback from the events will be used in the preparation of a supplementary report, which will shortly be submitted to the justice board for its consideration. I hope that that helps the member with what we are doing on that particular aspect. The EU directive encourages that victims are treated by respect by police, prosecutors and judges and that those individuals are properly trained to deal with them. Are you content that the regulations would adequately cover judges and what avenue of redress would a victim have if there were a view that they had not been properly treated by a judge? I believe that, once the regulations come in, training will be essential to all who interact with vulnerable witnesses. We have just been discussing some particularly sensitive groups such as children and those who have suffered crimes of serious violence. It is important to understand and implement the latest thinking in terms of how we manage sensitively the needs of those victims and witnesses. I would hope that, through the work of the justice board and bringing together the various agencies, including the Court and Tribunal service and clearly through them the judiciary, to ensure that all are trained and how to implement best practice in relation to vulnerable witnesses. I am not sure that I picked up the point. I do not know whether you are aware of a recent publicity about a court case where the comments attributed to the initial trial judge, which surfaced at the subsequent appeal, were quite shocking. I wonder to the extent to which judicial training is compelible because there is a view that judges are, if you will excuse the pun of law, on to themselves when it comes to a lot of this. Clearly, that is something that I can take forward. I am not aware of this specific case, but I would have a concern to ensure that all those who are required to understand the latest regulations if this is passed by Parliament are up to speed with what is required by Government and indeed by Parliament in passing legislation. I might invite my colleague Neil Robertson to comment on anything that he is aware of about the discussion around the role of judges in that respect. Yes, we have contacted the judicial office of Scotland to provide training to judges around the needs of victims and what is required in a court setting, so that is carried out regularly. I can point out to the criminal justice agencies that are carrying out a lot of work as well. For example, the Scottish Courts and Tribunals Service trained all their court officers in association with Victim Support Scotland in how to deal with victims on the front line, because they deal with victims coming into court to give evidence every day. Are you able to say what sanction, if any, would be available to a victim who was aggrieved at the treatment? In terms of the competent authorities, we have put in place in the regulations provision to have a complaints procedure in place, which we see being the competent authorities' normal complaints procedure. That is normally a two-step process within the competent authority, and if they are not happy with that, they can then go further to the Scottish Public Service ombudsman on the place to park, after which, because those are now legally enforceable, rights judicial review could fall into place. What we are trying to avoid is a circumstance where somebody perhaps did not get the expenses that they thought they would get for turning up a court to give evidence and having to go straight into raising a small claim action against the Crown Office to get their money back. We thought that having used the complaints procedure would allow them to do it on a more informal basis and would be more user-friendly to the victim. Is there not a role for the Lord President if a judge perhaps said something untoward rather than, I take it, you cannot complain the ombudsman about a court session? What would happen? There is obviously court of conduct for behaviour of judges in the court system, and Lord President has oversight of the activities of judges. I am happy to come back, convener, if we are interested in Mr Finlay, about what provisions there are in that respect, and to discuss that with the Lord President when we next meet him. If any consideration has been given to the impact that those regulations will have on support services and what measures have been put in place to ensure that there are enough services to meet the demand and that there are no barriers to accessing those services, we are very conscious that there has been some debate around the support for victims' organisations that represent and support victims through this process. I fully accept Margaret MacDougall's point that the system has to work well. We have to have well-supported organisations out there to provide support to victims, and often it can be less intimidating way of getting advice and support than going through more formal channels and through the justice partners themselves. It is important to state that we have had productive discussions with organisations representing victims and their rights. I believe that the provisions here provide the legal framework, as discussed in my opening statement, for transposition of the directive, but equally through other channels we can provide the appropriate support to those organisations and will continue to do so, as required. Perhaps Graham Ackerman, I know who has had some discussions with us, could add to this. The first point that I would stress is that, as the minister said in his opening statement, the majority of the requirements and the regulations are things that various composite authorities already do. On that basis, we do not think that the impact on victim support services will be significant. However, we do appreciate that victim support services provide a lot of support to victims across Scotland, and we are engaged with them to ensure that they are aware of what we are doing and to ensure that that support is in place. Just one more thing, if I may, to add in, which will hopefully give reassurance to the member. Obviously, we are aware that victims can self-refer to victim support Scotland, regardless of whether they have reported the crime or not. That may be their preferred way of approaching the issue. Secondly, we have placed an obligation on criminal justice agencies. For formal reference, that is police, crime office, Scottish Court and Tribunal service and others to refer victims to victim support services upon request as well. There will be signposting to victim support services to ensure that people are aware of what they have. As Graham Ackerman is saying, existing mechanisms exist to provide support to those organisations. Will those organisations have the resources to deal with any additional services that are asked of them as a result of the legislation and regulation? It is obviously difficult to anticipate what level of additional activity there would be, but there would be continued dialogue with victims' organisations to support organisations to ensure that they have the resources that they need and where possible to support them in doing their work, which is obviously vitally important. I appreciate that. Obviously, it is difficult to anticipate exactly what impact there will be. Obviously, it depends on the prevalence of crime and the impact on individuals. My next question is about the submission from Scottish Women's Aid, where they have commented on the regulation with regard to the victims' right to receive information concerning the release of an offender. While they welcome the proposed changes that would enable a victim to obtain certain information, for example the release of a prisoner, including any licence conditions, there is nothing to say that they would get information when a prisoner was temporarily released. Do you consider including that? I recognise the importance of the issue from the point of view of providing timely information to individuals, but by enabling victims to receive information about prisoners serving less than 18 months in prisonment, we believe that we are leading the way in the UK for victim notification services. For example, in England and Wales, VNS applies to sentences over 12 months. For those prisoners serving less than 18 months, we consider that a proportionate lighter-touch approach should be taken rather than extending the full VNS. For that reason, the scheme relating to prisoners will be more closely mirror the directive requirements, for example not including information about the death or transfer of a prisoner. In relation to questions raised by Scottish Women's Aid, prisoners sentenced to less than 18 months are more likely to be released on home detention, curfew done and temporary release, and indeed temporary release for prisoners of less than 18 months is infrequent, if not rare. Considering whether a prisoner is eligible for temporary release, the Scottish Prison Service carried out a wide-ranging risk assessment involving community partners and the police. If there was an assessed risk to a victim temporary release, it would not be permitted and prisoners released on home detention, curfew, fall within the scope of the new VNS. We are trying to take an approach here, which reflects the complexity of the situation and the need to not notify in certain examples where the death or transfer of a prisoner takes place. That is something that is not necessarily something that victims would want to be contacted about. I understand what you are saying, but if a prisoner was released temporarily and he has already been assessed as not being a risk, but if the victim was to meet that individual on the street or on a bus while they are out on temporary release, it would be quite a shock to that individual. That is what I am addressing. That is why it would be good if that was included. Colleague Neil Robertson, can you explain the position as it stands? There are certain circumstances where the victim would be made aware. I spoke to colleagues in Police Scotland when the prisoners were released on a temporary or permanent basis. The victim is not necessarily made aware, but each release is assessed on a case-by-case basis and a victim will be updated and protective measures put in place if they think that there is a continued risk to that person. I can understand the point about the concern that somebody might bump into an individual that they were on a way or had been released on how, potentially in certain circumstances, that could be quite upsetting, if not worse, for that individual. I suppose that the issue that we are dealing with here is that the temporary release for prisoners less than 18 months is infrequent, if not rare. There are notification procedures for those over 18 months, which are more rigorous, so relatively the more serious offences, if you like, would be more rigorous information provided to individuals reflecting the increased risk to them. Obviously, if there was an assessed risk to a victim, then temporary release would not be permitted under the model for those under 18 months as well. My issue is that it is not around the risk, it is just that if a victim was to meet the temporarily released prisoner, how distressing that could be for that individual. I do not see how difficult it would be to carry out that and to disinclude it in the regulation so that they are told, if they are told when they are being released permanently, why cannot they be told if they are on temporary release? If I could bring in Craig on that, I take the point that Margaret MacDougall is making. If I was a victim of crime, I would feel very uncomfortable if I bumped into an individual without knowing they were being released, but if I could invite Craig to address his issue. Short-term prisoners who are sentenced to 18 months or less will be released unconditionally at the halfway stage of their sentence, so that would be nine months. Many of those prisoners do achieve home detention curfew, and that is their first form of release. If they are granted home detention curfew, that is notified to the victim if they choose to receive that information in terms of section 27A. Temporary release is a strange beast in that it is granted on a daily basis. Under section 16 of the 2003 act, the main victim notification scheme, victims are only informed of the first point when the person becomes eligible for temporary release, rather than informing the victim every time that the offender is released. The offender could be released on a daily basis for work, on a daily basis, to stack shelves in a supermarket and return to prison. Informing of the victim every day that the person is released would create quite an administrative burden. We do not have to inform them every day. You could just say that this person is now being temporarily released on a daily basis or whatever. You do not have to tell them once that they are now in that position. Given that temporary release is relatively rare for offender's sentence to this level of sentence and the administrative burden that it places on the prison service, I think that the decision was taken that— If it is very rare, surely it would not be an additional burden? I think that it still involves the checking of records to make sure that the people who are released and matching up that with their requests, because this is a system that works in the request of them. I think that it would be good to make further inquire into that. I think that the member makes a reasonable point, rather than every single time they are released to work, but to let somebody know on some kind. He might wonder at the supermarket where they are stacking shelves. It is about managing people and victims as well, so that they understand that they are not out of the loop. I think that the member raises a fair point, but I would like to hear further about that in writing to explain what that would be. If it is a scheme of a day release to do every second, tell the victim about it and then they will know. They do not be told every single time, but I think that it raises a reasonable point. The idea of risk is disturbing. It would be very disturbing and upsetting to bump into them when you are doing your shopping in Tesco and just support the scheme around the corner. That is the person who is put in jail. There are issues. I take the point entirely. I am sure that colleagues do as well in relation to that. To repeat the point, we see that the issue is being relatively rare for under 18 months, but I take the point that that means that the resource implication might not be in aggregate. We will take that point away and discuss that further with Scottish Women's Aid and others and see whether there is a way in which we can deal with that through the procedures that apply around the regulations. I will try to address that for you. You will be aware of the Scottish Campaign Against Irresponsible Drivers. They argue in their submission to us that regulations do not meet the underlying principles of the directive with regard to victims of traffic incidents. They say that victims and families bereaved by road crashes do not know when the penalty of disqualification imposed on offenders by the courts will not be fulfilled. There is no access of an opt-in process for them to find out whether, for example, somebody has applied to get their licence back early. Was that something that could be addressed in the code? It is an interesting point that Dr Murray raises. I should note that the Skid's proposal is not a directive requirement, so it is not directly relevant to regulations in front of the committee today. However, we are aware of the proposal and gave it full and careful consideration earlier this year, together with Police Scotland, Court Service and Crown Office Procurator Fiscal Service. We have indicated to Skid that we do not intend to pursue the establishment of a notification scheme waiting to the reinstatement of driving licences at present, but that we will keep the matter under review and consider again if any future work is carried out in relation to the information provided to victims and their families more generally. We have also initiated discussions with relevant justice organisations to explore what can be done to improve information available in the circumstances set out in the Skid's proposal, for example, ensuring that bereaved families are aware that offenders may have their licence returned and on what time scales at the outset so that they know what to expect, and thus reducing the potential distress when families observe offenders driving again. We are also looking at that in the context of on-going work to consolidate useful advice and assistance for victims and witnesses in our new website at www.mygov.scot. I hope that that helps to reassure the member that we are aware of the issue and that we are looking at what we can do to perhaps look at an alternative approach that might provide more information to families in advance if they have suffered a bereavement as a result of a road traffic accident or indeed a serious injury and that they are suddenly become aware that an individual, on a similar basis to the point that Margaret McDewill has made, that somebody suddenly sees them driving and they are not expecting that. That could be quite shocking. Is Skid aware of the discussions that have been involved? Is Skid the campaign being involved? I believe that it has. I am not with myself, Dr Murray, but certainly with officials. The other thing that I wanted to ask about is that at various times it has been mooted that there should be a victims commissioner in Scotland to champion the rights of victims. I wonder what your views on that were. Yes, I am aware that a victims commissioner has been proposed in the past and discussed more recently in the context of victims and witnesses bill. I think that the points raised by stakeholders groups such as Victims Support Scotland in their published report on victims and witnesses bill and Scottish Women's Aid in their evidence to the committee on 16 April 2013 are the most compelling way to respond to the question. Money that might be spent setting up a new commissioner's office could instead be used on front-line service delivery. We believe that a victims commissioner would largely duplicate the role that is being filled by Victims Support Scotland and other victims support organisations. We feel that the resources would be better used supporting the immediate needs of victims. I would be happy to consider revisiting this issue if the evidence and key stakeholders working on the ground agree that such a role would add value. The faculty of advocates and their submission to us say that there does not appear to be a recognising mode of redress and no independent body to which complaint could be made. A victims commissioner is not there, so is there some way in which the existing organisations could be strengthened in order to achieve that? I believe that we have addressed that in the point that we made earlier on to Mr Finnie, convener, in relation to the complaints procedure in relation to the judiciary and other parties. Except that the faculty says that there is no independent body to which the complaint may be made. They go further than my colleague says, which is to deal with complaints, review the code, enforce the regulations so that it is more than it is actually reviewing the code and so on. Ultimately, I am informed that it means that the SPSO, the Ombudsman, would be able to review the quality of services that are provided, but I would be happy to come back with further detail on that to you, convener, if that would be helpful. I have got, is Christian Wharton using the same thing or is it somebody else? Gil? I am just going to raise that question myself, convener, so I am grateful for you letting in. I wonder, minister, if you would be prepared to monitor the effectiveness of the commissioners' work in England and see what fruit that bears. I understand what you are saying. It is always better to use the money the best way we can, but here is something that is happening in there and we might get some evidence that it may be cost effective. That is a very reasonable point that Gil Paterson makes, convener. I said in my remarks that we are open to persuasion if stakeholders believe that it has value. If we can look at the operation of a similar system in England and see operationally that is delivering for victims without taking excessive resources away from the front line, then that is something that we can reflect on in the passage of time and come back with a proposal. Our first focus is to ensure that key organisations such as Victim Support Scotland have the resources as best we can provide to meet the front line and immediate needs of victims and ensure that they are given appropriate advice and support through what can be a traumatic process for them, hopefully one that is improving over time and becoming more sensitive to their needs. Clearly, as colleagues around the table have indicated, the importance of victim support services cannot be overstated. Therefore, we want to make sure that they maximise the funding for them at the front line from the resources that we have. Thank you for going out. Good morning, minister. Good morning. A couple of points, if I may, that were raised by Scottish Woman's Head and others. The first one will be on the regression 2. We had some missing wording, particularly around the effect that exercises the rights under the Act and the provision of support is not conditional on a victim's residence status, citizenship or nationality. Maybe you can let us know why it is not in the regression. Well, the regulation 2 or the Act do not restrict in any way or impose conditions on the rights conferred to a certain class of citizen based on the residence status, citizenship or nationality. Accordingly, all victims of crime in Scotland, whoever they are or wherever they are, they may benefit from the rights and protections under the directive. I can also add that all victims organisations funded by the Scottish Government placed no such restrictions on the use of their services. I hope that that provides reassurance to the member that the intent of the policy and, indeed, we believe that the regulations as drafted will deliver for groups regardless of where an individual is from or their national status. If they are a victim in Scotland, they receive support in Scotland. Residual 10 of the directive was a lot clear on it and was warning it a lot clear on it. I might want to suggest that it would be a good idea to repeat the same wording. The second point would be on regulation 3. I know that there is a lot which is very good giving victims the ability to understand the proceedings, but it is not so much giving the right to be understood. It does not again follow the wording on the directive regarding enabling a victim to make a complaint in the language that we understand. If so, it would be minded to amend the regulation appropriately. I might bring Neil Robertson on the wording of the amendment. Any victim using the complaints process would be covered by the further sections in the regulations, which is 3e, the right to understand, and 3f, the right to interpretation and translation. That coupled with the further general principle, the victim should be able to understand information and give them an understood information that they provide to ensure that, when making a complaint, they will receive the appropriate linguistic support. There is no need to make specific provision for it in the complaints process. It is covered elsewhere in the regulations. If they are obliged to receive information, they can have it translated for them. I am just thinking that we spend a lot of time trying to translate what people are saying, what victims are saying, as opposed to maybe hearing their own words and maybe making sure that the justice system understands a lot better the language of their own victims, as opposed to the contrary. The ability for the victim to understand their rights is critical on that. They are not likely to be sitting down with a copy of the regulations. The victims' code will be critical here and will be given out to victims of crimes. We are proposing that the victims' code will be translated into the top 10 languages and then on a on-demand basis, as required for other languages, to ensure that, as far as we possibly can, we will make the appropriate information about persons' rights and their ability to seek translation services in other facilities that they need. It is very clear for them to understand and know what their rights are as a victim in Scotland. I do understand this point, minister. What I am trying to say is that it was not talking about foreign language. I am talking about the way that victims could express themselves in their own language, not talking about foreign language, but in their own wording and making sure that people are trained to understand them, as opposed to translating what we are saying in legal languages. I take that point. I do not know where Craig would like to come in, convener, on that point. I think that section 3e in regulation 5 goes some way to address that issue in that competent authorities must take measures to understand the information that is given to the person by the authority and that they have to take measures to understand the person's interaction with the authority. It is a two-way process. They have to take measures to understand the victim and to help the victim to understand them. It will be very helpful that it goes both ways. When we talk to victims, we make sure that we use their own language as much as possible. I think that there is a point in the regulation that might be worth reading out of verbatim, so that it is clear that, as I read it under section 4b of 3e, there is taken to any personal characteristics of the person who may affect the person's ability to understand the communication and be understood in responding to the communication. We recognise that people go about their communication in different ways. One of the concerns that we all have is that if we are aware of those who end up in institutions such as Pallement and Young Offenders Institute in other areas, there have clearly been concerns about communication problems that some of the young offenders have. Therefore, we need to understand people and how they communicate so that they do not get frustrated. Equally similar are the supplies to victims. We need to understand how people are expressing themselves because it will be a very emotional situation and to be able to reflect on that. It was a specific concern from both the faculty of ad goods and Scottish women's aids relating to regulation 13 and 9a victims' right to protection during criminal investigation, where the faculty says that we consider the meaning of criminal investigation in the directive using a purposeful interpretation to be wider than that set out in the regulation 9a or put another way by Scottish women's aids. The article does not limit such protection to interviews carried out solely by the police. Both cite various things that should perhaps come under this interview—identification parades, surgery, seizure of property, locusts of visits, the victim being accompanied by a person when the crown and solemn cases and sexual offenders have meetings between the crown and so on and so forth. In regard to the perceived narrow definition of criminal investigation, the focus for article 20 is protection during criminal investigation and in particular interviews. That is backed up by the commission's guidance, which makes it clear that the right to be accompanied relates solely to interviews with the police. Accordingly, we have legislated for the right of victims to support during police interviews. The article calls for support during criminal investigations and, in Scotland, there is already a well-established approach in drawing a line between criminal investigations and proceedings, namely that criminal proceedings begin when the report is lodged by the police with the Crown Office and Procurate Fiscal Service and it follows that precognition as part of criminal proceedings would not be covered by the directive. That is our understanding of what is required and hence reflected in the regulations as they stand in regard to the treatment of article 20. I think that they were looking, particularly Scottish women, to say that the victim, because they are accompanied by a person of their choice, and that all and any meetings with competent authorities, unless there is a very good reason based on the possibly contrary interest or prejudice to the proceedings, then the section should be amended to reflect that position. In terms of a directive compliance, as the minister has stated, that only covers criminal investigations as far as interviews go. We have spoken to the competent authorities to ask them what would happen beyond that. For example, the police would consider allowing somebody to be accompanied at an identification trade if they thought that appropriate Crown Office would allow a victim to be accompanied at the precognition stage. What the directive does not oblige us to do, so we cannot do it without going beyond a purse to do so, is to provide a right to that. It is not a case of saying that, as soon as the first interview is over, the support drops away. That is not the case that it does follow through, but it is on a more bespoke basis. The individual needs of each victim are considered, and if they need support and they want that support with them, they would be allowed that. I think that as long as there is a discretion attached to it, there is always going to be some doubt, and that is possibly not the best way forward. It may be something to note. I am sorry, but I ask this question because I have children first in the submission. I beg your panelist. Do you want to ask that one? Children first in the submission are concerned about the definition of parent. Although we understand that the definition of parent in the regulations refers to any person holding parental responsibilities for that child within the meaning of the Children's Scotland Act 1995, it would be helpful to clarify the rights of informal kinship carers who do not have or do not yet have parental responsibilities in this context. That embraces quite a lot of people. What rights would those informal carers have? Is it where they need to grant payments? There is a power for competent authorities to extend the victim's rights to other appropriate persons, including kinship carers, if it is in the child's best interests to do that. I hope that that will help to broaden the point. However, I appreciate that you might be striking a slightly different point. The point is that they do not have a statutory position. They are not their kinship carers, but they do not yet have in statute parental responsibilities that may have applied for them or may not yet have. In fact, some of them have ended up with these responsibilities within days of anything happening. It may involve parents who are in fact part of a prosecution and they have taken the children. It is really to know if something quickly can be done to give these kinship carers informal ones some rights that they would have. If we can bring in the Robertson section 29A, I think that I can read it. 29A allows the parents to come in if that is appropriate to do so. However, if there are circumstances that you rightly identify where it may not be appropriate for a parent to be there to support a child, the purpose 29A4 allows the function to be exercisable in relation to at the request of such person is that the authority considers appropriate having regard to the age, maturity, views, needs and concerns of the child. There is a provision whereby if a parent is not the suitable person, somebody else can be brought in to support that child. If the parent was a victim of what a parent had done, could someone be almost immediately in place? How quickly can that be done so that they are right? They would go through the steps. First of all, is it in the interests of the child to have the child there themselves? For example, we are looking at examples where somebody is 16 or 17, they could be living away from home, they could have their own employment. Is it appropriate, in that circumstance, to involve the parents, maybe for a younger child it would be, maybe at that age, to make a decision? Then you go on to the parents and say, is it appropriate that the parents are involved? I am talking about a case where it is the parents. Unfortunately, it happens. In the best interests of the child for the parents to be involved, if the answer to that is immediately no, you go on to the subsection 4, which is another appropriate person, which would cover kinship carers or indeed a range of people. Informal, when they are not statutory kinship carers. I am talking about an informal where somebody suddenly has the children, they had to take the children in as an emergency, things are going at a rate of knots. How quickly can it be that these individuals, often grandparents or sisters, that they could be in that role? That is really the case that I am looking for. So there is not a loophole, there is not a gap. There are obviously things that may have to take into account such as background checks and the right to make sure that that person is appropriate, but as the authority considers appropriate, so the authority will take into account the content authority. It is most likely to be the police when the child may be there for an interview. I just think that that was covered, so Alison. Sorry, I did not know that you were waiting. No, it is okay, sorry if I had indicated it some time ago. I just want to return briefly to the resources minister. The regulations place duties on the police and the court services in relation to the individual assessment of victims in criminal investigations and, of course, the protection of victims and includes things like specially designed interview rooms, specialist interviewers and separate waiting rooms for victims in court buildings. What assurances can you give us that the competent authorities will prioritise capital spend on some of those issues? I am happy to come back to the committee with some detail on that, but I am aware from responding to previous parliamentary questions and other briefings that I have had in front of me that significant work has been done to improve the experience of victims in the court estate, for example. That is one practical example. That is something that has been a high priority for colleagues on the justice board to try and address, obviously, with the increased number of cases that are coming forward to sheriff courts, which are dealing with domestic violence and sexual abuse cases. That is becoming more and more important as a proportion of the court's work, and so clearly an ever-bigger focus on making sure that experience is one that minimises the trauma for the victim coming to the court. If it would be helpful to the member, we can perhaps come back with some practical examples of what has been done to date, but clearly going forward it will be an area that we treat as a high priority, especially given the focus from First Minister Daimers on tackling domestic violence and sexual abuse in Scotland. I think that Rodgson, Minister of another committee, and we have another item. Minister, the regulations are intended to transpose the directive. It is clear to me that, based on our 2014 legislation and the regulations, victims are moving feasts. What assurances can you give us that the Government will monitor closely how victims are being treated in the system and review what further, if any, steps are needed? I can certainly give a personal commitment. That is something that I take very seriously. As I know that the Cabinet Secretary does, for reasons that I have just given to Alison MacKinnon, it is something that is a very high priority for the Government and, I think, opposition parties to see that the experience, particularly for women and men, in the case of suffering domestic violence and sexual abuse, has improved. All of us clearly are concerned about the welfare of children going through the vulnerable witnesses, going through the court system, so it will remain a high priority for the Government. Indeed, the direction from the European Commission as well is going to maintain a focus on that as we go through it. It has been taken forward as one of the priorities for the Dutch presidency as it takes on the presidency. I have just assumed that for next year. Over the next six months, I think that there will be an even bigger focus on what member states and within them jurisdictions within member states are doing to tackle this issue. I think that there is a growing momentum both at European and domestic level to tackle this issue. I thank you very much for that evidence session. I said to members that we had a very full session on this, and we could write a report on this. I think that it was quite useful so that we can review the position if, in fact, the next item 4 goes through. We can ask more people to raise lots of rather interesting issues. We would be content to do a short report. I haven't got time. We will move on to item 4. I now move to a formal debate in the motion to prove the instrument. I invite the minister to move motion S4M-14801. The Justice Committee recommends that the draft victims' rights Scotland regulations 2015 be approved. Does any member wish to speak in the debate in the motion? You were so fast, convener. I didn't quite get in there, but formally moved. I know that you hadn't moved. The question is that motion S4M-14801 be agreed to. Are we all agreed? Thank you very much. I am now going to move on to item 5. I am sorry, Minister, without any suspension straight on so that you can keep your schedule. It considers me a second affirmative instrument, the draft justice of the peace court special measures Scotland order 2015, and the officials are staying. I invite the minister to make a brief opening statement. It's up to you, the man that knows your timetable. Thank you, convener. I will keep it very brief. The justice of the peace special measures Scotland order 2015 is the second instrument, of course, today, before the committee, which contributes to our transposition of directive 2012-29 EU, the victims' right directive. I have already set out the background to our transposition approach, but it may be useful to outline briefly the purpose of this specific SSI. This order allows special measures to be used for the benefit of vulnerable witnesses giving evidence in the justice of the peace courts. Special measures include, for example, enabling vulnerable witnesses to give evidence from behind a screen to prevent them from seeing the accused or via live TV links so that they do not have to be present in court. Those special measures have been available for some time in the sheriff and high courts and, indeed, were recently expanded through the Victims and Witnesses Scotland Act 2014. I mean, consider that this extension is required to ensure compliance with the victim's right directive, but also that, in principle, it is right that the same protection should be available to vulnerable witnesses giving evidence in the JP courts. I look forward to taking the committee's questions. Thank you very much. Any questions from members? Rodi Cymru. Minister, are you able to clarify for the record why, when special measures were first introduced, those courts weren't included? In terms of the process, we are bringing them up to date with the remainder of the estate. Although it is not for me to speak for our previous administration, I understand that during the passage of the Vulnerable Witnesses Bill in 2003-04, the then Scottish Executive set out two reasons why it considered that extending special measures to the district courts was not considered necessary. That was firstly due to the need for extension, not having been demonstrated, and secondly, in the future of district courts being unclear, pending the outcome of the review of a summary justice being carried out by Sheriff Principal McKinnis at that time. With the uncertainty of the district courts now resolved, unification of the JP courts, having been completed in 2010 with the Implementation of the 2014 act, progressing and compliance with the directive that we have discussed today on victims' rights, the EU directive at the fore, this Government considered now was the time to commence the provisions in the 1995 act and make special measures available in the JP courts as well. That is not another question. I now move to the formal debate on the motion to prove the incident. I invite the minister to move motion S4M-14802. The Justice Committee recommends the draft Justice of Peace Court special measures Scotland Order 2015 be approved. Does any member wish to speak in the debate? Take the don't. The question is that motion S4M-14802 be agreed to. Are we all agreed? As members are aware, we are required to vote on all the affirmative instruments. I have already mentioned the previous one, where we might do a more lengthy vote. Are you content to dedicate the thought to me to sign off on the two instruments that we considered today? Thank you very much. I thank the minister and thank you for the session. I'll suspend for five minutes before we move on to item 7. Thank you very much. I move on to item 7, the agenda of abusive behaviour and sexual harm Scotland Bill. This is an evidence session. I welcome to meeting the right honourable Lord Carly, Lord Justice Clarke, Edward McHugh, Deputy Legal Secretary to the Lord President, and Sheriff Gordon, the Vice President of the Sheriff's Association. I thank you very much, Lord Carly, for your statement, which will, of course, go on the justice website. While I know that Sheriff's Association did not respond to ours, it did respond to the Government's consultation, so I take it that they have not changed their position since then. Excellent. That makes it simple for us. I now go straight to questions from members, please. Margaret Christian, Gil John. Good morning. The Bill for the First Time in Scotland introduces two statutory duty jury directions, which must be given by the judge when certain evidence is led. I wonder if you consider that statutory jury directions represent an unacceptable precedent with regard to the independence of the judiciary. Lord Carly? I would not quite go that far. The statutory jury directions have been introduced, as you know, in other jurisdictions of the Commonwealth. I think that what I am trying to say is that this could be done, but it is not what we would see as the best way of doing it. In other words, we have suggested that if what is wanted is for those facts to be accepted by the courts, the better way to do that is to declare that those facts are within judicial knowledge, which would enable a judge in any given case to give those directions without the necessity of there being any evidence. However, it would then leave it to the judge to decide in exactly what case those directions ought to be given. The position being that jury directions are intended to be real conversations in that sense between the judge and the jury. That is introducing a degree of not exactly artificiality, but it is quite a mechanistic way of doing things. A requirement to tell the jury those facts without more is going to be problematic. Thank you, that is very helpful. You are a bit tougher in your statement about that, Lord Carly. What is proposed is that the judge should essentially take on the mantle of the prosecution in making statements of fact dressed up as law. That is a bit tougher, is it not? Yes, I think that that is fair to say. What the act would do is that it would require the judge to state facts as law. In other words, the law says that those are facts, which are designed to be in favour of the complainer in the case. That has traditionally been the mantle of the prosecutor to argue those matters before the jury for the defence to make such submissions as they wish to do in response and for the judge to act as the arbiter between them. Sheriff Little, do you want to comment? Yes, I would perhaps add to that. We take the view, and I do not think that there is any difference between us in the Sheriff's Association that there are dangers involved in legislating for something that has to go in a jury speech. What occurs in just about every jury speech is a repetition to the jury of the fact that they are the masters of the facts and that anything that is said by the judge in charging the jury need not be taken into account by them. Anything that is said by the prosecutor in the speech or said by the defence in the speech need not be taken into account by them, and they are only there to indicate that that evidence exists and that it should be taken into account. The jury may take it into account, depending on what they make of it. There is a place for what is being suggested in some trials, but no true trials are the same. Depending on the evidence that has come out in a trial, the sort of suggestions could well find a place in a number of them, but there may, for example, be circumstances where, if this is mandatory and this has to be included in a jury speech then what will be required is something to dilute it in order to fairly charge a jury and not encroach on the jury function because the function of the judge is entirely different with a jury. I could see it almost having the adverse effect of what appears to be the desired effect where, if it was necessary that such words have to be used in every case, and if you have assessed circumstances where you really have to tell the jury, however, it may well be that that is not the case, that one thing you could confuse a jury because they would wonder why are we being told one thing and then told another thing. Apart from that, there is always a risk of being run with juries that, although we feel anyway, that, although we stress to a jury that something that is said by me as a judge needn't be taken into account, we are looking for indicators from judges and we have to go out of a way to avoid a jury being influenced in any way whatsoever by what we might say. To come back, what I am really saying is that there are life situations. No two jury charges are ever the same. We have the jury manual, which is a dynamic volume of suggestions and recommendations, and I think that the place for such suggestions is in the jury manual so that judges dealing with a certain array of facts and evidence that's come out can look at that and decide whether such a thing should be included in the chart or not. I would also suggest that, on the back of that, we have the High Court and if a George at first instance, which is what it is with a jury, makes an error then it's correctable. Witnesses in giving the same, I suppose, information? Yes, the current position is that there is specific provision in the 1995 act, as I mentioned in the statement, for the Crown to lead evidence to the same effect as is stated in the bill. The Crown can do that but to do that in every case would be very expensive. On the other hand, in many cases that evidence is agreed because ultimately it's not controversial so that the Crown will have an expert report and they can go to the defence and say, well, will you agree that, for example, there can be good reasons why a person has not reported an incident for a year, two years, 20 years and the joint minute which will agree the evidence is usually much more expansive than what is contained in the bill and will contain greater explanations for what is contained in the bill. Following on from what Sheriff Little is saying, one can envisage the situation where if a judge gives the jury the direction that is stated in the bill, Sheriff Little is saying, one can just imagine the judge immediately going on to say, however, in this case, you will have to consider whether the delay in reporting is significant or not or the same thing would apply in the later proposed directions. There is a danger of achieving exactly the opposite of what the bill is intended by ultimately focusing on something that is not an issue. In other words, if nobody has said in the jury speech that the delay in reporting is significant, why focus on it? Only just one small point about the minute of agreement. It won't be the first to have a very skilled defence lawyer who has brushed over the minute of agreement and then made a lot of some other points which then have put doubts in the jury's mind, so I'm always very skeptical about just the use of the minute of agreement. No, I agree with that. Even if the facts were agreed, the fact that there can be good reasons why a person does not preclude the defence from saying that, in a given case, it should be regarded by the jury as significant and that the question is whether it's perceived that a judge stating those will actually achieve the object of the bill that is intended, I think, to reverse perceived misconceptions in the minds of the jury. That would be odd for that to happen when, set against what Sheriff Little has said, is our standard introduction, which is that we are the masters of the law, you must pay attention to what we are saying about the law, you are the masters of the fact, it's a matter entirely for you, the jury, to decide what to make of the evidence. Gail, the trouble is everybody's going to be asking about jury directions, so there really are no supplementaries in this, I suspect. You're just next after Christian, but I think we really will be focusing on jury directions. Christian, then it's you, Gail. Yes, it's in direction. Good morning. I just wanted to ask the panel if they were aware of some of the evidence that Professor Vanessa Amunro has given us using mock juries. We heard from Lord Calaway this morning already saying that other jury predictions are already using this kind of procedure, so I just wanted to know if you knew about evidence held there. We are aware of the research that was carried out by Professor Amunro and her colleague, which is referred to in the consultation paper. I have not myself looked at the research behind that, but I am aware of what it is suggesting, which is that there is a view that some members of the jury may have preconceived views about the matters in the bill, so that is accepted, which is why the Crown leading evidence to rebut such things may well be a good idea. As I have said in the written statement, the idea that those facts should be regarded as judicial knowledge may well be a good idea to enable the judge to give those directions in a suitable case. Has any member of the panel looked at the research? I have read the research. As Lord Calaway said, it is in the SPIC briefing, but not the research behind it. I don't want to be critical of the research, but it is only a very small sample that was taken and three scenarios that were set up. It might well be the case—probably it could be imagined as the case—that each juror, as a member of the public and ordinary member of the public, brings with them, in the most antidime way that I mean this, certain prejudices that bring with them their own feelings and views on things. Those views will cover all manner of things and not just this single aspect of it. Short of a bothersome duty, I do not see how you can actually address that. We have heard of all the evidence and how these misconceptions are very much present not only in jurors but in society at large, and that would be a way to address those. Particularly when we talk about how to address them, if we talk about what appropriate time will be at the start of the procedure and regarding cases, it will be for all cases attributed to this particular subject. I am a bit surprised when I read some of the submissions saying that it should be only at appropriate time and at appropriate cases. It seems to miss the point that, regarding the evidence, it should be for every case and at the start of the procedure. The directions would be given at the end of the charge to the jury at the end of the case. It suggested in some of the documents accompanying the bill that it would remain for the judge to decide exactly what was said. I am not sure that that is right, because if an act of Parliament says that the judge must advise that and then states exactly what he is saying. Lord Carly, in section 6, subsection 3, there is an opt-out clause there that says that subsection 2, which is mandatory, does not apply if the judge considers that in the circumstance. In the case, no reasonable jury could consider the evidence question or statement by reason of which subsection 2 would otherwise apply to material to the question where they allege. There is still some judicial discretion. There is a judicial discretion as to whether to give the directions. Yes. But if you decide that it is a case where, which applies to the case, you must give that particular direction, I do not think that the act in its present form allows the judge to vary it in some way. That would seem to be contrary to what Parliament would state. It remains the case that if you could imagine that a charge to the jury is actually taking place in a given case, the judge is going to say that I am required to advise you that there can be no good reason why a person, etc. At the end of that, the judge is then free to give such other directions, as he thinks is appropriate, to achieve the appropriate balance of fairness in the case. That is what would cause me concern that what the act is going to do is, in certain cases, focus on the issue for the jury, which is not really something in dispute. I understand. Christian, sorry, it is just to clarity that at the end. I am not saying that. I do not think that any of us have any problem with that type of direction being given in appropriate cases. We think that there may also be force in the view that some judges might be reluctant to give those directions in the absence of evidence to support them. That is to say evidence in the case. However, the way around that is to state that those are judicial knowledge and that enables the judge to state those as fact. Does the judge say that just now? Just because it is a general statement or that they do a specific in a case, what does the judge say at the end if someone has delayed reporting and did not show signs of violence? What would the judge say just now, if anything, in directions to the jury or a sheriff for that matter? I will answer that question. The answer is that it is variable, as I think is recognised. If you can imagine that there has been a delay in reporting now, there can be different types of delay. There can be a delay of a week, a year or a delay of 20 years. Imagine that the dynamic of the trial. Somebody is going to ask the complainer why there was a delay in reporting. The complainer will give a response to that and the response could be a number of things. Therefore, if there is an explanation from the complainer as to why there has been a delay in reporting, which could be to do with embarrassment, et cetera, and all sorts of things, not wanting to go through the trial process and so on and so forth, the judge will listen to what is said about that in the speech from the crown and from the speech of the defence and will then try to balance those two things up. However, in the situation that we are envisaging here, just focusing on this section rather than the other two, many judges will say that, of course, ladies and gentlemen, you will appreciate that just because someone has not reported an incident for a period of a week, a month, a year or whatever it is, it means that the incident did not happen. You have to listen to what the complainer said about that, why she did not report, you have to appreciate there may be many reasons why somebody does not report it. On the other hand, you have the submission of defence counsel to the effect that that is significant and that is something that you will have to bear in mind when assessing the credibility and reliability of the complainer. That would be a relatively common place. On the other hand, some judges would not go into the issue and they would just leave it for the jury to determine. If I may, one of the things that I see, I think that all of us see in every charge to a jury, is that on the one hand, depending on what the jury has made of the evidence, there may draw certain inferences from the evidence, but they are given a specific warning against speculation. If such a thing arose in a trial that I was dealing with, I think that probably all of my colleagues suggested that there could be speculation and that this would be the area of speculation, then there might well be a warning given against that and with a specific reference to a piece of evidence to illustrate to the jury that that could be entering into their almost speculation rather than drawing a reasonable inference from evidence that exists. Thank you. That was very helpful. Gil. I wonder if the panel could tell me if one individual jury member that you were aware that they had preconceived ideas on a matter. How would you react to that? If it came to light during the course of the trial that a jury had views that suggested that he or she considered that a person could not be guilty of rape if there was no use of violence, something like that? Maybe I should explain. Maybe if you were aware that someone before the trial started had preconceived ideas of a nature. I am not sure that we would ever know that unless somebody put it on a Facebook or something. If we did know, somebody would object to that jury sitting on the jury. The evidence from Professor Vanessa Monroe suggests that the public, never mind juries, the public themselves have preconceived ideas on how someone should react. In other words, if someone comes in that claims rape, they should act in a particular way or they should automatically have resisted so they should be injured in some fashion and that does not always happen. There is other evidence that suggests the same thing, mainly coming from women's groups. It is anecdotal evidence when you are engaged in that area. They talk about it all the time. However, if that is the case, if this evidence stacks up, should we not need to do something about it? If you would react to one jury member, but the evidence would suggest a good number of the general public have preconceived ideas on how people should perform in a case when it comes to it? We are not in any way suggesting that, in a given case, what is contained in the bill should not be said to juries in a given case. What we are saying is that what is proposed is not procedurally the best way to go about it nor, in practical terms, is it the best way to go about it? Again, there is an element of, to some extent, trusting the judges to act in an appropriate way in an appropriate case. If the suggestion is made during the course of the trial by, for example, the defence council of the nature that you are suggesting, I personally would expect the judge or sheriff to react to that comment and to correct it. That would be part of his or her job to do that, but to make it a mandatory direction in almost all cases causes the problem. I know that I am repeating myself here, to some extent. Again, imagining the dynamic of the trial as it happens and you giving the jury the direction that is required by Parliament, fine, then the judge is going to go on. He or she will go on to say that you have to look at this case and the evidence in this case. We give juries directions specifically to deal with general prejudices in the case. We give jury directions that they must decide the case purely on the evidence that is led before them. One would expect, again in the dynamic of the jury room, that if someone has a prejudice of some description, the other jurors would presumably attempt to address that in their deliberations. They may not, but I would expect that they would. How would you overcome, if the evidence is correct, that there is a percentage of the public and they do not see it as a prejudice? They see the way people act and react and how they compose themselves in a case like this. If they do not conform to that, they are automatically not believed. The evidence would suggest that the members of the public and the jury, so every trial that takes place, it would suggest that there will be people there who have preconceived ideas and do not mean to do it. It is not that they are bad people, it is just that they think that this woman or even a man now that we can talk about, this person must be lying because they are not acting the way that I expect them to act. This did not happen. If the evidence suggests that that is the case, how do we overcome that? How do we, other than some education through the Scottish Government? I would think that the court is the best place to do it. People are presenting there and listening to evidence, but if they are wrong at the start, I think that it should be explained or is there a better reason why not to explain that? You have raised a very interesting point about the way that people think generally in society. We are trying to look at this from a very practical point of view. We are not in any way suggesting that efforts should not be made to correct misconceptions and juries and, in a given case, the judge will be expected to do that if it is detected. We go back to what we have said already. We, the judges, direct the jury on the law that is to be applied to the case. That is our primary purpose. We say to juries at the beginning that the fact is for you to assess the witnesses and to make up your minds, applying your collective common sense. That is the function of the jury. If a judge is seen to dictate or a tent to dictate to a jury on what fact should or should not be found, you are in the realms of what one is saying is being counterproductive. I do not think that I can answer your question about how to deal with this problem other than to say that we have offered an alternative solution that we think would fit in with our system rather better than what is proposed here and would work from a more practical point of view. If we go back to approaching those facts as judicial knowledge, then we can go back to our judicial institute and say, right, devise some model directions along the lines that they have done in England. Thank you. Lord Calaway, if I know what you collected, you talked about used the phrase appropriate manner, but it is the case that not all judges act in appropriate manner. I am having particular regard to the Court of Appeals ruling in the last couple of weeks where there was criticism made of the judge who was quoted as saying that the victim of multiple rapes had acquiesced in those rapes. There was comment made about delayed reporting and the fact that the victim continued to cohabit with the accused. I am trying to understand the difference between comment and direction and when there is an overlap there. Are you able to give some guidance on that, please? The case to which you are referring to, the important thing to bear in mind in that case, is that there is no criticism whatsoever of the judge's directions to the jury in that case, nor indeed in his conduct of the trial. The convictions followed in what was quite an unusual trial, so there is no criticism of the judge there. I am not aware of any criticism of the judge's directions to the jury on the particular points with which the bill is concerned. The relationship between comments that a judge would make and direction. Do you see directions on the specifics of the law? No, there has been no criticism of the judge's directions in general. If we set that case aside in general, please. Judges will make comments on what has been heard in the course of their direction, and they will comment specifically on their position on the legal issues that that gives rise to it. In the course of directions to the jury, a judge will be expected to direct the jury in accordance with our well-known principles and practice. I go back to stating that I am unaware of any criticism of a judge's directions to the effect that would contradict or in any way affect what is contained in the bill. I think that what you are referring to are not directions to a jury, nor indeed any statements made during the course of the trial, but certain comments that were made by the judge at the point when he is reporting to the appeal court on the reasons for his sentencing. Those reports are released to parties. They may be mentioned during the course of the appeal proceedings. It is very important that a judge should feel free to state exactly why he has selected a particular sentence and to be given free rein to explain his reasoning. If, during the course of that reasoning, he says something that the appeal court determines is wrong, we will say that, as we did in the particular case, that we will expect the judge to take into account what the appeal court's view is and act accordingly. In sexual offences, generally, in relation to the matters that you have raised, as I think I have, I hope that Mr McKinnon has got my reply, I am sure that the committee will appreciate that. In relation to the prosecution of sexual offences and indeed the sentencing of sexual offences, the law is progressing and it is moving from a certain position where it was 20, 30, 40 years ago into the modern era. We are trying to keep the law so far as both approaches to directions and in relation to sentencing in tune with modern thinking. You were referring, for example, to something called acquiescence or condemnation, as it sometimes said. The reason why that was being mentioned was in a particular case in the late 80s, which was the first case in which a husband had been prosecuted for the rape of his non-extranged wife, in which it so happens that I was the advocate deputy at first instance. That went to the appeal court and the appeal court there, the Lord Justice general in that case, made remarks of that nature primarily in relation to whether a person should be prosecuted or would be prosecuted for the rape of his wife with whom he was continuing to live, where the wife had, as it was put, forgiven the act. We are sitting on an appeal court decision of that nature, where those words have been used. They have also been used or similar words have been used in the sense of whether the fact that someone is continuing to live with someone is something that should be taken into account, not in relation to the rape that would be proved—there is a conviction—but whether that is a significant feature on sentencing. The issue of the continued cohabitation with someone and the effect that it has on sentencing is something that I think that most jurisdictions are wrestling with and there are different views being expressed in the commonwealth as to how significant that is, not in relation to whether the person was raped, not in relation to conviction but simply in relation to the appropriate sentence in that type of case. I am grateful for that detailed explanation. There is not everyone who gets the Lord Justice Clarke's personal explanation like that. Public perception is very important. It is out there in some terms, and I will not repeat some of them, that people would find deeply offensive. I have to say that I want to maintain an open mind on that. That is why I am trying to understand to what extent freedom is afforded a judge to make comment, in general terms, away from the specifics of directional law. Clarify. I think that John's point is that if we say that jury directions are a specific thing at the end of the evidence that is led, at any point if a judge makes a highly inappropriate remark which might affect the impact or the jury decision and yet it is not actually in the jury directions, what is the redress or what impact does that have on that decision? That is what you are separating remarks made in the process of the trial separately from jury directions. Well, not entirely. No. You are not. I think that if the totality of summing up, presumably, a judge can say things that might be determined as legal direction and there will be common to ally to that. If I may on this, I am sure that the members of the committee do understand how a jury trial unfolds, but it might be important to lay that out. The judge is sitting and listening to all of the evidence and takes notes of all of the evidence and will review that evidence when it comes to charging the jury. There is a prosecution speech, first of all, to the jury and the prosecutor will probably suggest what the jury should make of the evidence. There is then a defence speech where the defence will probably suggest to the jury what they make of the evidence. That is listened to by the judge. The judge hears all of that and it is at the end of that. The judge having heard that will modify perhaps what that judge thought would go into the charge. The charge is dynamic. The charge goes with everything, the evidence that has come into the case and what has been said in the speeches. It is at that point that the judge will not be at pains to say that the judge is the master of the law and gives the jury what assistance they require in understanding the law that has to be applied, but that the facts are for them and make certain, if necessary, draw attention to parts of the evidence only because the jury has to know what to do with that, how they take it into account and where they place it if they make something of it. It is a very dynamic situation and every case turns on its own circumstances. If you have something that is mandatory, then the biggest danger in that is the unintended consequences where, because of that, it takes prominence to such an extent that, as a judge, I may be required by law to interfere to an extent with the jury function, which I would never do. It is hardwired into judges that they do not interfere with the jury function, which is a consideration of the evidence. I mean this respectfully. Do you resent lawmakers suggesting an approach like that? As we have heard from Mr Paterson, there is genuine public concern about those matters. As I say, I am probably more proud of the prosecution leading an expert witness, but is there a resentment in the part of the justice jury that politicians are interfering? I would not describe it as a resentment, no. We are all members of democracy. We respect parliaments' function as legislators. If Parliament wishes the judges to... However coming, though. There may be, however, but we do not get upset in that way. If Parliament wants to tell us to give the jury these directions, we will give them. We will certainly do that, but we have stated that traditionally it is the role of the judge to give a jury's directions rather than Parliament. That is the way it has been in so far as the division of constitutional responsibilities is, but that only takes you so far. In any jurisdiction in the Commonwealth, it is rare, very rare, for Parliament to dictate to the judges what they should say in jury directions. It has been done in a couple of jurisdictions in that particular area, so if you want us to do it here, we will do it here. However, we are just saying that this is not necessarily the best way to do it. We appreciate that, if we make that law, you will not break it. I understand that. That is handy. It is a bit of difficulty for Alison, followed by Roderick, please. Thank you. If I might just have a follow-up to what Mr Finlay has said and then go on to my main question. I suppose that I am concerned that if a judge, in giving his reasons for sentencing to an appeal court, has views that are so significantly at a step that results in you describing in a mas pithau, surely we can expect that those strong views would be present all the time in that judge's consideration and would influence whether or not he gave a direction to the jury about any particular thing. Is that not the case? Again, I am anxious not to stray into a particular case because we said all that we really wanted to say about it in the opinion of the appeal court. As I have written, the word pithau was not intended to be pejorative. It was just saying that those were succinct remarks that the judge made on certain areas of sentencing. However, the particular directions in that case, so far as we are aware, were impeccable and there is no sense of the judge's remarks that he sent to the appeal court. It is the absence of direction perhaps in relation to something. You have said that, in other cases, I do not want to talk about that particular case, but just draw from that that you have said that some judges give directions in some areas in relation to some of the things that Mr Paterson spoke about and some do not. What we are trying to get to the bottom of is why we do not say, and is it basically the belief system that they themselves go? No, the reason why there is a problem in this area is that some judges take a very strict view of what they can tell the jury. In other words, some judges say, well, if we take this proposition, there can be good reasons why a person may not tell others about it for a while. Some judges will take a strict view. In this case, there is no evidence to support that proposition. Therefore, I should not give a jury a direction of that nature. Of course, the Crown may lead evidence that it is the case, in which case they will give the direction. Other judges may be rather more proactive in their approach of what they say to juries, and they may give the directions contained here without there being an evidential base for it. If they do so, then, of course, they risk the appeal court stating to them that they should not have given that direction, because, in this particular case, there was no evidence to support it. That is the problem area, which is why I think that this legislation is in contemplation, and there is that difference in view between different members of the judiciary. Can I turn to the jury manual, which Sheriff Liddle described as a dynamic document? Can you explain to us how that document is changed over time, how and when it is amended, and I suppose why model directions for the situation have not yet been developed? I can certainly say to help you with that. The jury manual is a fairly substantial document, which is online, if you wish to view it in its entirety. I have not given the last challenge out to you. You can see what it looks like in the sense that it is something that we have created over the last 20 or so years, from a situation in which there was nothing, essentially, except a word of mouth. It contains two different things. It contains, first of all, statements of what the law is thought to be, and it contains model directions to the jury, which judges do not have to follow, and will not follow depending on the particular circumstances of the case. A lot of judges will have their own styles of speaking, etc., which is not consistent with the jury manual. The jury manual is under the auspices of a committee headed by one of the High Court judges, who will revise its terms on an annual basis, but it is in a position of constant revision. If a judge, for example, has a particular problem with the direction or some new case arises, or if Parliament decided that this was a direction that had to be given, then the jury manual would be amended and it is then sent out to the whole judiciary in amended form. You said earlier that the law was moving and that things were changing in relation to sexual cases. Women would say that progress is glacial, I have to say. I am trying to understand at what point someone is able to suggest that, perhaps, you referred to it as judicial knowledge, so that would make its way into a model direction? If it was judicial knowledge, it would enable a judge to give a direction, because there would then be no fear that there was no lack of evidential base, because judicial knowledge is basically a statement of things that are universally acceptable, such as the basic rules of mathematics or geography. If Parliament said that those are facts that are judicial knowledge, that means that the judge does not have to worry about giving the jury a direction that has no evidential base, he or she would be able to state that without fear of contradiction. I remember that you did ask why that particular was not in the jury manual. I understand that, having spoken to the judicial institute who tends to deal with those, it was put on hold. That is not criticism, but when the consultation document came out, this area was left to see what was going to happen. Maybe we should have proceeded to develop model directions at that point. I suppose that I had not, until there had never been in people's awareness that there perhaps should be model directions for that. That is what I am trying to get at. How do judges or the people in charge of the jury manual say that we need to update the thinking? Not the jury manual, but the judicial manual. No, no. It is called the jury manual. Is it really? Sorry, I beg your pardon. I drifted there. Sorry. No, this area has been under contemplation for some time in the sense that the amendment to the 1995 act, which enabled the Crown to Lead Evidence, was made in 2004 because of the same conceptions that we have now that some jury members may have a preconception. Therefore, let us allow the Crown to Lead Evidence, which would previously probably have been regarded as inadmissible because it is evidence directly about somebody's credibility, which we tend to exclude as collateral. The thing has been under contemplation, and it may be that we should have followed the English line sooner and got some model directions out. That is acceptable. Okay, thank you. Can I just tell you one piece of information because I had the benefit of hearing from the director of the judicial institute very recently? The jury manual has very recently gone online for the first time exclusively, and it is no longer—it used to be published on an annual basis, as Lord Calaby Coyle said. My understanding is that that means that it is continually updated now, and when something happens, a decision from the High Court or whatever, or a recommendation, then that is something that is just a continuing process because it is online, and it is easier to do that. Sorry, there is a little debate going on here about judicial knowledge, and the jury manuals, which we will save for later. Next is Roddick, followed by Margaret MacDougall. Morning, panel. Most of my questions have been answered, but I just wanted to put something to you that was suggested in our evidence session by Mr May on representing the fact of advocates. He said that if matters were in the jury manual, there would still be a danger that there would be a direction on which no evidence had been led. Do you think that that is a real danger? Yes, until one—I understand, although I do not have the precise name of the case—south of the border, where there are model directions, there have been instances, or at least an instance, where the judge has gone off piece, so to speak, and given a direction that is a little further than that, and that has been criticised as not having an evidential base. People are quite capable of challenging the jury manual directions as not being correct in law, or there could be a challenge on the basis that a particular direction in the jury manual did not have an evidential base. In fact, it is a possibility, and we would have to decide whether that was well-founded or not. Does that answer? He is basically saying that if this was not statutory and was just simply in the jury manual, is it possible that, say, a conviction was overturned because a judge had given a direction that was in the jury manual but did not have an evidential base? The answer to that is well possibly, because from time to time we do get challenges to the contents of the jury manual because it is not law, it is guidance. He also went on to discuss the question of what would happen if there were mandatory directions in this area. That would set a precedent, and in the absence of jury research, he was not sure whether the jury would find that helpful. If there was a pressure to be considered across the board, what view do you take about the precedent issue? Would jury research assist as we are now embarking on an area of jury research? The cabinet secretary has given us the full scope of the proposed research, but that would be an obvious area in which to see if the research carried out by Professor Monroe and her colleague is correct, not quite the right word, but valid. I am not quite sure how to answer your question. That would be an ordinary for jury research. On its own, setting a precedent is to proceed with mandatory directions. That is the general constitutional position that I was anxious about, not to say that Mr Finnie's comments in relation to whether we resented it or got upset. Yes, it does set a precedent, because obviously, if a Parliament is dictating what should be said to juries by a judge in this area, no doubt, in other areas, other people may seek to extend that, and which other directions to be given, which is where we get into the constitutional divide. I take the concerns that that becomes politicians. The very clear and important line between the judiciary and politicians will have been breached. That is not good news, is it? The mutual respect is a very important thing, which I think we have in this jurisdiction. Would it not be important to retain the tensions between the judiciary and the politicians, tensions that are useful for democracy? Would you subscribe to that? I would. The balance is very important that there remains that form of tension, as long as it does not drift into resentment. I was not suggesting that for a moment. What is your view on that, Sheryl? I have concerns. It is obvious from what I am saying that I have concerns about this section. I agree entirely with what Lord Carly has said on that. These tensions are important and the distinction is important. I tend to think of things in terms of if there is a clear and defined line and it is crossed, quite often the line disappears when you look back and it is gone. Margaret Thatcher, thank you convener and good afternoon panel. I wish to ask the questions around sexual risk orders. One of the features of the sexual risk order is that in the bill, as introduced, the order may be imposed on a person who has not been convicted of any offence but who has done an act of a sexual nature. An act of sexual nature is not defined in the bill. Could the panel perhaps give me their understanding of what an act of a sexual nature is, as provided in the bill? It is not something that the judges have expressed any views on. We regarded this as primary a matter of policy for Parliament and we really did not have any views on it at all. It was entirely a matter for Parliament to determine and we would address it in a given case, but I am sorry that I cannot help further than that. We just thought that this was policy. OK. Maybe you will not wish to answer any of the questions around this because it is not in your... It is that we did not think that it was a... We thought that we were straying into... I do not think that it is a comment. Are you concerned about the fact that sexual risk orders could be imposed on an individual who has not committed any offence? It is not something that we have regarded as... The judges have not made any comment on the validity or otherwise of this legislation on the basis that it was Government policy and a matter for Parliament to rule upon rather than the judges to comment upon. Is there an issue, however, that one of these orders can be imposed without the right of an appearance of the person to prevent it being imposed upon them? Is there any issue there under ECHR? Can you comment on that? I mean, from a legal point of view? The matter is judicially determined by the sheriff, so it would be... It says here, I mean, look at this, when an application is made for a sexual risk order and the person against whom the order is being sought, it would have the right to make or a sexual risk order is imposed. Can you clarify whether or not a case where the application is being made for a sexual risk order under that, they do have a right, not just as discretionary, they have a right to address that? That is, as I understand it, yes. They do. It is absolute. Well, the application is to go to the sheriff. I do not think that I am in a position to address this particular section as a bill, it is not something that I thought I was going to be asked about. Is it from the Sheriff's Association? I am sorry, I have phrased it wrong the long day. It is a procedural matter. Under section 26, if I read it through, it says, it does not actually say, if I am reading it too quickly, that procedurally, the party has a right to appear before the sheriff. Am I right or wrong? It just says in subsection 2, an appropriate sheriff may make a sexual risk order, only if satisfied, the defendant has done an act of a sexual nature, et cetera, and then it goes on. Does it not at any point say that the party has a right to be heard? Well, again, it is not something that I have applied my mind to, and it would be something that we may be called upon to rule upon if there is a problem of that nature. Obviously, Parliament has obtained the usual certificate about ECHR compliance, and it would depend on the procedural rules that were surrounded this. Is it right for appeal, but it seems that it would be better if he had an opportunity at the first hearing to make a representation, rather than go through a pellet procedure? Those replace existing forms of order, the sexual harm orders. Mark Ruskell, if we were able to comment then on the reasons for the very low numbers of RSAJOs, which have been granted by the courts in Scotland to date? I cannot comment on that. I have done no research at all on that matter. I am terribly sorry, but I was not anticipating answering questions on chapter 4 of the bill for the reasons that we regarded this as a matter of policy. I am afraid I could hang on to that for a while. I am really sure that there is nothing I can add to that. I did not come prepared for this sort of question. Again, we thought that it was policy and something therefor that we should not even comment on. If you want us to take this away and think about whether we can make a comment, I would be happy to do that and write in if there is— That would be helpful if you feel it appropriate. Can I just ask a final question? I am probably going to regret asking, as I have already muddled up with professors and whatnot, how does something become judicial knowledge and how do we know that it is judicial knowledge? Judicial knowledge is something that grows over time, so there are certain things that you do not have to prove, such as the fact that there is a railway between Edinburgh and Glasgow and things like that. It is basic stuff. Yes, it is basic stuff that everybody ought to know and it is accepted as fact. So the fact that somebody does not report something of a sexual nature for a period of time, for a longer period of time, is that judicial knowledge? Does that fall into that category that you say it could be a month, it could be years? Would that be just the fact that that sometimes in general happens and that that is judicial knowledge as well, just like the railway line? I would personally think that the propositions that are contained in the bill may well be judicial knowledge because I do not think that what is stated is controversial, as a matter of fact. I think that what is stated is correct and therefore in that sense it is judicial knowledge. I do not think that every member of the judiciary would share that view. It goes back to how confident you feel about stating things to juries with no evidential base. So judicial knowledge is not shared by all judges? Well it ought to be shared by all judges, but it depends. There comes a point where say a principle of mathematics becomes something that requires expert evidence and exactly where that line is drawn. You may know that there is a railway line between Edinburgh and Glasgow, but you might not necessarily know the composition of the points at Winshborough. It is a matter of degree as to what is or is not within the knowledge of the people. I knew I did not want to ask that question. I am going to thank you very much. I have to go on because we have much more to do. I thank you very much for a very intriguing evidence session. Some of it is quite pithy, because I am allowed to use that word now to define it for us, Lord Calaway. Thank you very much and I will just suspend for a couple of minutes to allow the witnesses to leave. It is consideration of four negative instruments. The first is the sheriff appeal court fees order 2015, SSI 2015, a bleed 379, et cetera. Those persons would exempt from paying fees and specific fees exemptions relating to particular proceedings. The DPLR committee did not draw any concerns on the instrument to our attention due to any comments. Our members are content to make no recommendation in relation to this instrument. The second negative instrument being considered as a civil legal aid Scotland miscellaneous amendments regulations 2015, SSI 2015, stroke 380. That adapts the framework and arrangements in existing legal aid regulations to accommodate the changes coming into force in January 2016 relating to civil proceedings in the new sheriff appeal court. Again, the DPLR committee did not draw any concerns on the instrument to our attention. You will see from your papers that a couple of written submissions on this instrument and a late submission of the faculty of advocates have been tabled. Do you have any comments on the instrument? To refer to my register of interests and members of the faculty of advocates, I find it a wee bit concerning, but I do not understand the full timescale. The faculty's point is that the regulation that is now before us for consideration is not the regulation that they saw previously. I think that the Government's comment on the matter is dated at the beginning of November. My understanding of the timetable is that this is all very unfortunate. Well, I think that it is very unfortunate for the faculty as well who could pay more attention to what we are doing. It is not that they are without sufficient legal brains around to come back to the committee sooner rather than later. I am moving on. Are members content? No, it is on the record now, and I think that they are content just to leave it at that. Thank you. Are members content? We have no recommendation in relation to the instrument, right? The third negative instrument is the Scottish Tribunal's eligibility for appointment regulations 2015 SSI 2015 stroke 3 at 1. That creates eligibility criteria for ordinary and legal members of the first-year tribunal and legal members of the upper tribunal. Again, the DPLR committee did not draw any concerns on the instrument to our attention. Do you have any comments? Are you content to make no recommendation? The fourth and final negative instrument is the Act of Sederent, Trees of Solicitors and the Sheriff's Appeal Court 2015 SSI 2015 stroke 3 at 7. That regulates the taxation of accounts of expenses between parties in relation to proceedings in the Sheriff's Appeal Court. Again, the DPLR committee did not draw any concerns on the instrument to our attention. Do you have any comments? Are you alive? Are members content to make no recommendation in relation to the instrument? No recommendation. Thank you. We now move into private session.