 Fawr iawn i'r gyfgrifennig gymaint gyda'r Cymru yn 2024. We have no apologies this morning, and Katie Clark is joining us remotely. Our first panel today is here as part of phase 3 of our scrutiny of the Victims, Witnesses and Justice Reform Bill, specifically focusing on parts 5 and 6. Fawr iawn i'r gyfgrifennig gymaint gyda'r cyfgrifennig, Professor James Chalmers, Ieithas Professor of Law at the School of Law at the University of Glasgow, Professor Vanessa Munro, Professor of Law at the Law School at the University of Warwick, and they are both joining us online, and Professor Cheryl Thomas Casey, co-director of the UCL Judicial Institute, so welcome to you all and thank you for taking the time to attend today's meeting, it's very much appreciated. I intend to allow up to 90 minutes for this panel, and I propose that we focus our questions initially on the proposal in the bill for a pilot for judge-led trials in certain rape cases before moving on to other areas. I'd like to open up with a question on the issue of rape myths. I'll come initially to Professor Thomas and then I'll bring in Professor Chambers and then Professor Munro. My question is what does available research tell us about the potential impact which rape myths and other misconceptions have on jury deliberations in rape cases. I'll come to Professor Thomas first. Thank you and welcome to my colleagues who are online. Well, I guess the first thing to say is it really depends upon which jurisdiction you're referring to, and I provided a written submission to the committee to try and set out some of the contrast between the amount of empirical evidence you have about the jury system in Scotland compared to the empirical evidence in England in Wales. I'm here really to provide you with information about the research that I've conducted in England in Wales and some other jurisdictions over the last 20 years. In relation to rape myths and stereotypes, the two main aspects of the research that we've looked at in the UCL jury project is jury conviction rates in rape and sexual offences cases. We have been conducting a very detailed analysis of every single jury verdict against every defendant in every court in England in Wales over the last 15 years. That applies to rape offences as well as any other offences. That's important in terms of having an understanding of the relative conviction rates when juries deliberate to reach a verdict on a rape offence compared to other offences. Our analysis of all those verdicts is that juries in England and Wales are more likely to convict than they are to acquit in rape cases. We've done a very detailed analysis of 10 different types of rape offences and the jury conviction rate ranges from 65 per cent to 91 per cent depending upon the age of the complainant and the sex of the complainant or whether it's a historical offence or not. We also did some research on seeing juries post-verdict and we asked them about their particular views about rape and sexual offences. In that research, we found that contrary to popular belief, those individuals who are doing jury service in England and Wales do not overwhelmingly believe rape myths and stereotypes that there are a few issues where they could do with some additional information to ensure that they're not confused by issues. However, if you marry up those two pieces of research, there isn't evidence in England and Wales to suggest that juries are biased against complainants and sexual offences cases on a systematic basis. Professor Monroe, I think I said I would bring you in next. Would you like to come in? Thank you very much and thank you for the opportunity to give the evidence today and also to the committee for allowing us to do by Zoom when Storm Jocelyn intervened. I think that what I might start by saying is that identifying and understanding jury decision making is obviously a complicated matter. There are always going to be inevitable difficulties around getting into the heads of jurors to uncover what's informing their evaluations of the evidence. Those difficulties are then compounded when you're trying to predict the effects on verdict outcome, given the specific and unique nature of each trial, as well as the complicated ways in which group interactions during the deliberation process can impact on perspectives and narratives. There are inevitably pros and cons to various different approaches that we might take to try to better understand the jury decision making process, and that's perhaps something that we might come back to discuss further. In terms of what we have set out in our submission, it does paint a somewhat different picture from what Professor Thomas has presented already, although there are important areas of commonality as well. Our submission is largely based on a number of previous studies that have relied on simulation methods to better understand the dynamics of the deliberation process by providing participants with mock simulations and looking at how they deliberate in those very grounded and communal environments towards their deliberations. The research suggests that it might give a more nuanced understanding of attitudes than just simply asking through abstract questionnaires, do you think, x or y. In our submission, we rely heavily, of course, on the findings of the Scottish mock jury study, which Professor Thomas and other colleagues were involved in conducting. Those findings also sit in the context of a wider body of evidence, including other simulation studies in England and Wales, which have spanned in total between that and the Scottish jury study over one and a half thousand participants, as well as other international studies involving mock and real jurors, including post-deliberation interviews with those real jurors, including work in New Zealand. What we have found fairly consistently across that evidence is that it's obviously, as I said at the start, difficult to track a kind of linear trajectory from individual views expressed in deliberations to verdict outcomes. But there were certainly prominent themes that have consistently marked those juror discussions, in particular jurors often expressing expectations regarding signs of resistance and physical injury in order to consider a complaint and a complainer to be credible. Focusing on the behaviour of complainers before, after and during the incident to provide evidence of consent or at least a reasonable belief therein, including things like accepting a lift from the accused or receiving compliments or drinking alcohol in the company of the accused. More than half of the juries in the Scottish study it was expressed during their deliberations, sometimes quite repeatedly, the view that false allegations of rape are routinely made and that that should be borne in mind when assessing the credibility of the particular claim. Taking all of that evidence together, our view would be that there is certainly a credible basis for concern regarding the role that misconceptions and misunderstandings of rape rapists and rape complainers might be playing in that deliberation process. Obviously, Professor Thomas mentioned her research, which suggested that there perhaps wasn't, in her assessment, overwhelming evidence of a source for concern, but we would just flag as part of that, that there were nonetheless in that study still some quite significant findings there regarding certain attitudes which continued to be held. For example, 27 per cent of respondents reported that they either agreed or were unsure if they agreed with the statement that it is difficult to believe rape allegations that aren't reported immediately. 17 per cent agreed or were unsure if they agreed that a woman who wears provocative clothing puts herself in a position to be raped, for example. Our argument would be that, in the context of group deliberations in particular cases, that uncertainty of you can often be amplified and have a more significant impact. Professor Monroe has a lot in there, so I will swiftly move on to Professor Chalmers and bring you in over to you. Thank you to the committee for its flexibility as well in allowing me to give evidence by Zoom. I would agree with a lot of what has been said so far. We just emphasised the difficulty that colleagues have mentioned about unraveling what is going on sometimes with rape allegations. As Professor Thomas said in her own submission, as human beings, we can't consciously know all the factors that influence our individual decisions. Identifying exactly when rape myths are having this effect is difficult to do. Individuals who are asked about abstract statements that indicate agreements or otherwise with rape myths may realise that certain answers are socially unacceptable and shy away from giving them and nevertheless rely on them explicitly or unconsciously in deliberations. What we can say, as Professor Monroe said, is from the Scottish jury research, we did see a significant extent of jurors expressing and explicitly relying upon rape myths within deliberations. What we cannot do, given the nature of that research, is quantify exactly what difference that made to outcomes. That is not easy or as possible to do in the context of group deliberations and all of our jurors were watching the same trial. We cannot therefore say how they would have reacted had there not been a basis for that particular myth to be expressed if that was something that could be excluded by the design of the trial materials. There is, as Professor Thomas has noted in her submission, an issue about the comparability of conviction rate data between Scotland and England and a slightly unsatisfactory situation regarding the data that is available about conviction rates and that may be something that we come back to. The latest data, I understand, shows a conviction rate of 48 per cent, and that is in all cases, including guilty pleas. It doesn't explicitly give details of the plea rate in rape cases. We know from the Dorian review that sexual offences in the High Court generally is 19 per cent in the High Court. That suggests that the conviction rate is rather lower in Scotland. I think that you have heard evidence already from the Lord Advocate that suggests a conviction rate of 20 per cent to 25 per cent in what she described as acquaintance-type rapes. There may well be a difference there, but it is not one that we can easily bottom out from the published data. If I can just stay with you, Professor Chalmers, before I open up to other members, what you said, and I think that I am quoting you correctly, was the challenge of unraveling what is going on if you look across the wider body of evidence and research work that has been undertaken around rape myths. As we are trying to understand this issue, how important is it that we are aware of and take into account the purpose of individual pieces of research, the context within which they developed, and not avoiding the risk of comparing apples with other people? How important is it that we are aware of that when we are considering what the evidence is telling us? I think that it is very important to be aware of the limitations of different kinds of research, and all true research has limitations in different ways. There is no perfect way of going about doing this. The purpose of which research is carried out is important, but there are limitations to any research. For example, the mock duty research in Scotland was limited by the fact that participants knew that they were role-playing. They knew that a real person's fate did not rest in their hands. They nevertheless took the discussions very seriously and were very earnestly engaged in their task, but that limitation remains. Research that involves asking jurors about agreement with abstract statements, whether or not they subscribe to certain rape myths, is subject to limitations, partly in the design of those statements, which can vary from between different bits of research. But also by what researchers would call socially desirable bias. A woman who goes out alone at night puts herself in a position to be raped. That question has such an obviously socially acceptable answer that it is unlike the respondents that are going to say yes to it, although a small number did. Even if they give weight to those factors in their deliberations, the difference between what jurors or any individual says they are doing and what they actually do is one that is difficult to get at in research terms. I'm sure we'll come back to that. What I'm going to do is open up to members. I'm going to bring in Katie Clark, who's joining us online. Katie, over to you. From what the witnesses have said so far, is it fair to say that different research has come to quite different conclusions in relation to rape myths? Is it the case that there is any difference between mock jury research and research into real jurors? Are any of the witnesses maybe able to expand on that, or indeed give any other explanation as to why different research has come to different conclusions? We've heard a lot about the Scottish jury research, and of course that was mock jurors. We've also heard that the actual cases were quite short. The amount of time spent by the jurors on the case was quite short compared with a real case, if you like, but also there was only two sets of facts, so there may be limitations with that. Do you think it's wise for politicians to base decisions in relation to the abolition of jury trials on research when there is so little clarity? There may, of course, be other reasons to get rid of jurors in rape cases, for example, the experiences of witnesses and of survivors and complainers. But in terms of rape myths, do you think it's fair to say that it would be unwise to base conclusions when the evidence seems to be so unclear? I don't know if Cheryl Thomas maybe would want to come in the convener's probably better place to see if the witness would like to come in or not. I'll hand over to Professor Thomas. Yes, thank you very much. It's a very good question. Look, I think, as Professor Chalmers has mentioned, every empirical research method will have its limitations, and that's why the strongest research is research that uses a multiple range of methods to try and address a particular question. In terms of what the UCL jury project does, when we've been looking at similar factors, for instance the role of race in jury decision making, but also in relation to the issues of the factors that might affect jury's decisions in rape and sexual offences cases, we always strive to use a multiple range of methods to look at the issue. That's why if you use a multiple range of methods and both or several of them are coming up with the same answer, then you can feel more secure that the research findings are reliable. If you have contradictory findings then something else is going on. I personally would feel uncomfortable with relying upon a single study to come to very large conclusions about major changes in the jury system, and I think in particular the challenge in Scotland is that you currently lack really any empirical research with actual juries in Scotland. There are some issues to do with your statistics about jury conviction rates, and I'm very happy to talk about that with you if you want to go into that in detail, but you haven't had research with juries that, for instance, explores who does jury service, who's summoned, how representative juries are, what the views are that they hold, how the jury system works, what the impact might be of some of the very significant changes. The bill proposes to make, for instance, not just on the issue of jury rape trials, but you are proposing to make very significant changes in the size of the jury, the majority verdicts. You currently have some movement away from your existing legal principles on corroboration in cases, and also judges are changing in Scotland the way that they direct juries. Whether that's in relation to rape myths or not, or also, very interestingly, with an increasing provision of written directions for juries. All of those are things that have been happening in England and Wales for a much more substantial period of time. To come back to your question, I think that we do have to be very careful about how much actual empirical evidence there is in Scotland that underpins the proposals to change the system. It would be wonderful in Scotland if you have fantastic academics here who could do the research and just to make the point that is often mistakenly made that there are not legal prohibitions against doing research. We have real juries at court to address all of those issues that I've mentioned. That's the research that I've been doing in England and Wales, Northern Ireland and other jurisdictions, fully within the prohibitions that exist about discussing deliberations with juries post verdict. Katey, do you like to bring anyone else in on that? Maybe Vanessa Monroe, she may have a different perspective. Thank you very much. I think I probably have a similar but slightly different perspective, as you might expect. I absolutely agree with Professor Thomas' key point, which is that we need to look holistically at that body of evidence and we should rightly exercise considerable caution before we make any fundamental decisions based on one piece of evidence. That would not be something that I would encourage. I think that we might need to be a little bit careful not to get into the territory of assuming that there's a body of evidence which says certain things based on mock juries and there's a body of evidence which says certain things based on real juries. Even there, the findings are more complex. On the one hand, there's the work in England and Wales based on those post deliberation questionnaires that Professor Thomas has been discussing. There's also some important work in New Zealand which did involve real jurors using a different methodology, which, as with them all, have their pros and cons. There, what they did was they observed sexual offences trials to get a deeper understanding of the narratives and the strategies that were being deployed during that trial process. Then, subsequent to the deliberations, they interviewed jurors who participated in the deliberations about that deliberative process. Again, it's reliant on their retrospective recollections and their assessments of what they thought were the influencing factors in that deliberative process, as well as what they were willing to share with their researcher in that context. Those findings, again, whilst underscoring the complexity of that trajectory between views expressed or intimated and outcome in terms of verdict, do broadly support the basis of there being some cause for concern regarding reliance on misconceptions and misunderstandings and what they revert cultural misconceptions in that work. That just slightly adds to the complexity of the picture that it's not mocks studies say one thing, the real juror studies say something else. Also, I think it's important to reference the work of our colleague Professor Leverick who has done some substantial work drawing together the body of pre-existence, and I'm sure that the committee are already well aware of that work, which indicates that there is a mass of evidence there, again, with methodological pros and cons that would support a basis for concern about what may be happening in juries in these cases. Professor Thomas rightly points out the lack of empirical research to date in Scotland with real jurors. I wouldn't disagree at all with the assessment that that would be a valuable contribution to our evidence base and would help to triangulate some of the findings that we have from the mocks study, particularly because of some of the quite unique features of the Scottish criminal justice and jury system. Professor Monroe, can I maybe just come in? Obviously, there's a lot of interest in this. I know that members are keen to come in, and I think that Professor Chalmers is keen to come in on this. I wonder if I can maybe just interject and perhaps bring in Professor Chalmers and then we'll move on. If I could just be very brief here, I would not want the committee to think that it is in the position of having to adjudicate between two competing bodies of research. I think that you do have submissions related to the next evidence session that do place our research that has met Professor Monroe and others and Professor Thomas' in opposition to each other. I don't think that that is quite appropriate. The appropriate course is to read the available evidence together and decide what conclusions can be drawn from that. I would refer the committee in particular to Lady Dorian's report and paragraph 541 of that, which is exactly that in comparing the research emerging from the Scottish jury research and the research emerging from the UCL jury project. There may be room for debate about the conclusions of that, but I think that Lady Dorian is quite clear that it was not a case of choosing one body of research over the other, but reading the two together and seeing what conclusions could be drawn. Thank you, Katie. Would you like to come back in? No. Okay, thank you very much. In that case, I'm going to bring in Russell Finlay, followed by Rona Mackay. Thank you. Good morning. Thank you for coming to the committee. The submission from Professor Chalmers Leverick and Monroe refers to your research, Professor Thomas, from 2020, saying that this is sometimes cited as evidence that jurors don't believe rape myths, but they say that interpretation is untrue and the research doesn't actually demonstrate this. They point to alternative New Zealand research from 2022, which they said found considerable evidence of rape myths among jurors. I suppose what I'm asking is could you perhaps clarify what your research actually found and do you agree with their assessment of it? Thank you. Thank you to the committee for asking me to come and give evidence. My research has been discussed quite a lot in Scotland. Sometimes I feel it's been misrepresented, so it's very helpful to be able to actually explain the research myself to all of you. There was a petition to Parliament in 2018 that called for all juries in rape trials in England and Wales to be provided with training about rape myths and stereotypes. That petition claimed that very large numbers of juries believed rape myths and stereotypes, that the jury conviction rate in England and Wales in rape cases was extremely low, and that this was leading to many guilty people walking free. The then head of criminal justice in the judiciary and then the president of the Queen's Bench division in the judiciary in England and Wales asked me specifically to look at this in response to that petition to Parliament. I was asked to do two things. One was to survey jurors post-verdict to see what their views were about various rape myths and stereotypes. The second was to conduct a detailed examination, as I mentioned earlier, of every jury verdict by deliberation that occurred over this 15-year period in England and Wales. I feel that quite often the research that I've done in relation to this has focused primarily on the post-verdict surveys with jurors. There's been a lot of discussion about that, saying that the jurors felt pressured into saying that they didn't believe rape myths and stereotypes and so on, all sorts of reasons why that research might not be valid. I find that a bit disappointing, simply because if you have one body of research that says one thing and one body of research that says another, the scientific approach is to try and understand why there might be differences between the two. One of the differences is that I only conduct research with real juries at court and other research has primarily been done with those who are volunteered to act as jurors. We know from all of our other research with people who actually do jury service that if they had the option they would not have done jury service. Jurors are not volunteers, by and large. The overwhelming proportion of people who do jury service didn't necessarily want to be there, however they do have a very different experience once they've done that jury research. I do agree with Professor Chalmers that it's incorrect to set up my research as somehow in opposition to all of the other research. I think we simply, as researchers or anyone interested in it, need to ask why the differences might be. The interest in England and Wales was, in relation to that petition to Parliament, is there evidence that juries are systematically refusing to convict defendants in rape cases? The stronger bit of the research that we've done is the detailed analysis of every single jury verdict in the country for 15 years. That leads to the inevitable conclusion that juries are not failing to convict in England and Wales. The situation may be very different in Scotland and, therefore, you would want to ask yourself what might lead to there being differences between the two jurisdictions. In respect of whether or not your research shows evidence of rape myths among jurors, does it do that? Does it show evidence of rape myths among jurors? Well, there's certainly a small amount or number of jurors who did hold some views that would be considered rape myths and stereotypes. There were very small proportions across the range of issues, so much so that if it was a 3% of all the jurors that were surveyed, that would amount to less than one person on a jury. I also want to make a point about there's been an awful lot of discussion or reliance placed on a study that was conducted in New Zealand, and Professor Monroe has very helpfully summarised for the committee what that research involved. I think that it's really important to point out that in that study it didn't come to the conclusion that jurors overwhelmingly hold biased views against complainants. What it said was that in their deliberations jurors sometimes expressed those views. But I actually quote from that report that said, if any cultural misconceptions were expressed in deliberations, it was not possible to draw conclusions about whether these influenced actual jury verdicts, and that is the difficulty. Jurors are asked to go into deliberations to discuss the case. Certainly in England and Wales they are told that they bring their experience of life and their knowledge of human nature into that discussion and into their assessment of the evidence against the defendant. We ask jurors to debate those issues, to discuss them, and it may be that people express views in jury deliberations. We don't have evidence to say that just because someone expresses a view in jury deliberations that automatically leads to them voting in a particular way in a case. I think that that's certainly one area that I'm very interested in the research that Professor Chalmers and Professor Monroe and others have done in Scotland. They have some very interesting statistics on how many juries were their people who expressed certain views, but there isn't a connection made between the expression of that view in deliberations and their ultimate decision in the case. Jury deliberations, jury decision making is a complex business, and it's 12 individual decisions leading to one decision, so that complicates decision making further. I'm not sure if that completely answers your question, but the long and short of it is that there was some limited evidence that small numbers of people who actually do jury service in England and Wales held that would be considered false assumptions. Your research also looked, analysed, assessed, looked at every single rape case in England and Wales between 2007 and 2021. It was a huge number in the thousands, but there's no such evidence or research taking place in Scotland in that respect. You proposed two possibilities for the apparent difference in outcomes in the two different jurisdictions, one being that Scottish jurors are perhaps more biased and the other being that it's due to differences with the legal system, but due to the lack of similar research in Scotland, we can't properly get to the bottom of that. I suppose the question is, and it's to everyone, is this lack of research in Scotland specific to the Scottish system essentially make our job very difficult to assess whether those measures are required and I guess anyone can come in on that. Professor Chalmers, would you like to come in? We seem to have a sound problem with you, Professor Chalmers. I'm not sure I can say too much other than to agree that the lack of research is a difficulty for the committee. It is not perhaps specific to this area. It is something that flows from doing law reform in a small jurisdiction and a small jurisdiction in this case with a distinctive system in terms of juries and the corroboration requirements. So taking lessons from research elsewhere is problematic and that was one of the reasons why the Scottish jury research was commissioned because further back in time the Post-Corroboration Safeguard Review, although there are many thousands of pieces of jury research across the world, found it difficult to draw conclusions from that for Scotland. So there is a limit to what is available and therefore I think if a decision for this committee in the Parliament whether the evidence space that is available is sufficient to justify reform, I recognise the difficulty. I can't offer an easy way out of it I'm afraid. A quick question on research. Professor Thomas has helped fully torpedoed another myth which is that you can't speak to real jurors. Is there any move in Scotland for this to happen that you're aware of? I'm not aware of it. There are limitations that you can speak to real jurors. There's been some very limited research done in that further back in Scotland with surveys of your experience at court, not something that's relevant to these discussions. You cannot, of course, ask jurors about the content of their deliberations. That is prohibited. There are, as Professor Thomas notes rightly in the research, limits to what conclusions you can take from the answers jurors give to any questions about that. In this area, any research would require legislative reform to enable those specific questions to be asked. But as Professor Thomas has noted, research can be done with real jurors after the service at court serving on mockdurys or answering questions. I would have some doubts personally about the description of that as real juror research, because at that point you are subject to the same limitations that other research has, which is that your jurors are not designing real cases, they don't hold people state in their hands. However, you certainly have the benefit that you have a sample of participants selected in the same way as a real jury. That gets around the limitation, Professor Thomas rightly noted, that we don't have research in Scotland showing how representative jurors are of the population. Professor Thomas has conducted that research in England and Wales. That is a limitation that we are subject to here. I don't know if Professor Thomas wants to come in on the original question. I went off at a slight tangent. The original question was that the lack of similar research and data in Scotland makes it very difficult for us to assess. I think it makes your job hugely problematic. You do not have the baseline information about how your current jury system works. The bill proposes to make some fundamental changes to the size of the jury, the majority verdicts, a range of things. You've got other important changes coming in with the jury system. All that's going to make it incredibly difficult to assess the impact of any of the changes that exist in the bill. It's not to say that you shouldn't make the changes, it's simply to say that when it comes to, I know we started the discussion about juridus rape trials, there is to be, according to the bill, a review of that. How are you going to actually review that pilot? What is the measure going to be? What are the measures going to be? Is it going to be jury conviction rate in Scotland compared to the juridus trials conviction rate? I'm not sure that there's a lot of clarity in Scotland at the moment about exactly what the conviction rate is by jury deliberation on rape charges. You need that baseline information to measure any changes. I'll answer one of my other questions, so if I can just come in with one more very quickly. In England and Wales, judges have been able to direct juries about rape myths since 2006 and it's now effectively compulsory. It was only in autumn 2023 that this has become something that happens as a matter of routine in Scottish courts. The legal fraternity says that this needs to be allowed to bed in and the impact of that and the assessment of that to take place. I think that you essentially agree. Can you give us your thoughts on that? I think that this is a very significant difference between the way jury trials are run in England and Wales and the way they run in Scotland. There is obviously a sort of coming together now with the judicial view that juries not only should be directed on this issue, which really was anathema in Scotland for a very long time. In England and Wales, judges have the freedom and the discretion to direct the jury at any point in the trial which the judge feels would assist the jury. What that is resulting in in England and Wales is that juries in rape and sexual offences cases are increasingly directing the jury on the standard direction that they now have on avoiding false assumptions in these cases at the outset of the trial. The other real significant difference is the use of written directions to juries. The research has shown that this is an important tool for juries in focusing their deliberations and guiding the outcomes of the cases. While it has been discretionary in England and Wales for a number of years, it is pretty much universal that all juries will receive written directions and a change in the criminal procedure rule makes that in effect compulsory. That is only very recently, as you say, coming in in Scotland. Rona Fcaith, followed by Shaddan Dowie. Professor Thomas, your research cast into doubt in the existence of the prevalence of rape myths. The results show that 43 per cent agreed that I would expect anyone that was raped to be very emotional when giving evidence in court. We have heard some very powerful evidence from survivors. One of them said that she felt that she was being penalised because she was not crying. It was not how she was dealing with her trauma on that particular day. She was told that she could not sit in the public gallery because it would be a bad look and we have heard lots of evidence like that. The other part of your research says that 23 per cent agreed or were not sure that if a woman sends sexually explicit texts or messages to a man, she should not accuse him of rape later on. I find that very concerning. I do not think that that small number is 43 per cent, 23 per cent. What do you find that concerning? First of all, let's be clear about the statistics. You're absolutely right on the 43 per cent and that was raised in the research report. The one area where jurors could do with additional guidance on the issue was about whether someone giving evidence that the level of emotion was relevant to whether they were telling the truth or not. That is now part of judicial directions in England and Wales. I find it quite interesting that the other statistics you read on the 23 per cent said that those who said they believed that or were unsure. The largest proportion of the 23 per cent were unsure. It was a very small proportion who said they actually believed that was the case. The point that we were making in the research is that if jurors are saying they're unsure, that's an indication where they could benefit from additional guidance from the judiciary. However, on the issue that you've particularly cited about sending explicit text messages to someone, it's very difficult to see how a judicial direction can be made on that issue. It's very different to say about a judicial direction on something that we know to be factually incorrect or correct. If you look at the research, we've been very clear about which judges could direct a jury on or jury could be given additional guidance, whether it's through training or supplemental written information. Others are very difficult to imagine how a judge could give a legal direction on some of those issues. Just going back to the 43 per cent, do you agree then that that is a rape myth? You've just said that judges have— I'm not someone who's sitting here saying, I don't believe that there's no juror who believes a rape myth or not. I do find it really quite worrying that, for some reason, my research is something that has to be knocked down in Scotland. I don't think it's a question of knocking it down. I'm just a question here about 43 per cent. You're saying that action was taken on that, so that does prove that there are some rape myths that are evidential. Yes, and did I ever say that there weren't? I think that that was asked. That's why I'm questioning you on it. That's fine. You've answered that point. Can I just be clear? In the research report, we made it very clear that there were two issues for which there were enough jurors who were either unsure or were incorrect in what they thought, where they could do with additional guidance. One was whether someone was more likely to be raped by a stranger than someone that they knew, and there were enough people who were unsure about that. We know that that's actually incorrect, and therefore jurors should have that information. The issue about the level of emotion that's displayed when someone's giving evidence is also something that we know from psychological research and various other aspects, where that is sufficient grounds for a judge to direct a jury on. Other issues may not be sufficient grounds. There may not be universal agreement whether something is actually true or false. Finally, if I can just ask, did your research include taking any evidence from survivors? I was not asked to do that. If you remember, I explained that I was asked to do research by the Government and by the judiciary, with jurors in particular, to understand what the jury conviction rate was in rape cases and whether jurors held rate-ness and stereotypes. That was not part of the brief that I was given. There has been excellent research done with witnesses in rape cases, and those whose cases never got to court who have described very difficult experience with the criminal justice system. Good morning. The first question, if I could ask to Professor Thomas. You said in your submission that the reason for jury-less rape trials that are considered in the bill is because of the low conviction rates in Scotland. Do you think that it's acceptable to remove juries for the sole reason of increasing the conviction rates? Well, I guess that's really a question for you, the Scottish Parliament, to answer. I think what I was trying to say is that it's difficult to identify exactly what the reason is for the proposal. It appears to be the belief that there is a very low conviction rate in rape cases in Scotland. That may be true. I'm simply making the point that I cannot find the comparable evidence that we have in England in Wales as to what exactly is the conviction rate when juries deliberate on a rape charge and bring back a verdict. The next question is for Professor Monroe and Professor Chalmers. The Scottish List of Bar Association has said that no amount of judicial training or legal direction can remove unconscious biases. I'm just going to ask, as a single judge, not also susceptible to the same rape myths and unconscious biases? If I can maybe ask Professor Monroe first. And it's an excellent question. I think that what we have tried to say in our submission is that there are... A judge of only pilot would not be an unreasonable move to gather more evidence akin to what Lady Dorian said in her testimony to the committee around the importance of developing a stronger evidence base. For comparison, equally, that's not to say that a judge only trial is going to be the solution necessarily to some of these issues. I think that framing the issue purely in terms of conviction rates perhaps misses some of the other aspects of what might be driving a number of the reforms in the bill. And it remains to be seen in that sense whether a judge only trials would be a solution in terms of addressing issues about misconception. I mean, the reality I suppose is in conjunction with specialist courts and a more concentrated opportunity to develop sustained culture change and systemic training. One might hope that that would create some shift, but at this stage, that's part of the reason for the pilot I would have thought would be to learn more about that alternative and what that would look like and what change it may or may not result in. Yes, I would agree with what Professor Monroe has said. Judges are not immune from bias, but there are some safeguards or some benefits to the use of judges in that judges will produce written judgments. And that price of opportunity for scrutiny is also a discipline involved in the process of producing a written judgment that can force the writer to check their own biases and check that what they are concluding is actually supported by the evidence. And there are potentially benefits to just the accumulation of experience and training. But on the fundamental point underlying your question, which I think is judges in some way immune from bias, absolutely not, I don't think anyone is. OK, thank you. And a question in the pilot itself, if we can put that first of all to Professor Chalmers. We've heard from various witnesses that this would need extensive debate and discussion. So are you at all concerned that it's not on the face of the bill and it's actually been brought in by secondary legislation? Do you think that might mean that we won't interrogate it as much as we could do if it was on the face of the bill? I think it's supposed to get that. That might be a question for you as a matter of parliamentary process. I understand the proposed use of secularisation would require further parliamentary debate in this case. The point has, I think, rightly been made by Professor Thomas and others that so many changes are being proposed by the bill that it would not be possible, I think, to hold a pilot immediately because there would be a need to gather baseline data about the operation of the system as reformed by this legislation before any comparisons could be drawn with the pilot. And I would have thought, therefore, that any pilot has to be some way down the line and requiring further debate and not immediately in Parliament on the terms of secretary of legislation. I always hope that, if the bill is passed, that the secretary of legislation is subject to extensive scrutiny because it certainly ought to be. I suppose what I'm saying is that that is really in your hands. Fulton MacGregor, followed by Pauline McNeill. Thank you, convener, and good morning to panel on line and to yourself, Professor Thomas. I was actually going to ask a very similar area to Sian Daweba, with the convener's permission of his will to take the opportunity here, so it's on the judge-led trial. To our two on line, I suppose it's just a simple question. Do you think, in your opinion, in your academic opinion, that having a single judge determining these cases, as opposed to a jury, is better? Either Professor Monroe may be first? I mean, I think that's a difficult question to answer, because, you know, coming back to some of the points about transferability from one context to another, we don't really have a super robust evidence base for evaluating that, which, again, I suppose is part of the thinking behind the pilot proposals subject to appropriate scrutiny about what the baselines and what the points of comparison for better might involve. There is some relatively recent work from New Zealand, which has been looking at judge-only versus jury deliberation in rape cases. And I think some of the things which come out of that certainly indicate that, you know, a switch to a judge-only process is not the silver bullet that addresses all of the areas of potential concern in relation to sexual offences and the handling of complaints throughout that process. But I think that, in the abstract, it's quite a difficult thing, because we don't really have enough of an evidence base currently to be able to see this model is better than this model in this particular context with better being evaluated according to specific measures. Thanks for that. In coming to Professor Chalmers, then, how do you think that the—I know it is following on from what Shandau said, and I appreciate that part of your answer will be for us—but what do you think, in your academic expertise, that how could the pilot look at this? What sort of things do you think—how should the pilot be assessed and where do you think victims and witnesses' voices should be in that pilot? And the reason why I asked that is actually quite surprisingly, I think, to me anyway. I don't know if I speak to other members of the committee. But surprisingly, when we heard from victims last week, there were a number of victims that actually said that they weren't in favour of jury list trials because they felt that it was better that a larger number of people were making the decision. So where do you think victims and witnesses' voices should be heard in the assessment of any pilot? Well, there has been a set of questions produced by a working group associated with the Dorian review. If the committee requires the reference, I can certainly send that on later on. And that does involve not simply looking at outcomes and conviction rates, but actually asking complainers and survivors about their experience of the process. Now, what the Dorian working group here produced was a set of potential questions. Any pilot where to go ahead would have to involve a decision about exactly how that was going to be conducted. But would it have to involve, I think, not simply looking at outcomes, but about the experience of everyone involved in the process? There is, at the end of that, perhaps a political decision about which factors matter. There may be, in any evaluation, factors that point in different directions. Some things that are good about judge-only trials, some things that are bad about judge-only trials. And a decision then has to be taken on the balance of that evidence about whether that is the appropriate way forward. But I agree that it would absolutely not be appropriate to go ahead with a pilot programme that was not as part of the evaluation looking at the experience of complainers. A final question, convener, for Professor Thomas. First, Professor Thomas, thank you very much for coming up. I'm sorry that you feel that your research is under so much scrutiny. We're actually just delighted to have you here and the fact that we've asked you along indicates that we want to hear more about it. And it's just a sort of scrutiny process, so I apologise sometimes it comes across a bit harsh. But we're making really big decisions here as well. So I want to ask you sort of the opposite end of the question from what I've just asked there. Did your research in England and Wales find any positives of a jury? Rather than what would be the positives of having a single judge, what did you find are the positives of having a jury making these decisions if you found any evidence around it? I've been slightly bemused by the need to, not by the committee, but within discussions in Scotland to place my research in somehow in opposition to other research. So I'm happy to share with you that we've done quite a lot of research in England and Wales and there's been other very good research, very long term research in the United States about the overall impact of jury service on members of the public. That's regardless of whether they're serving on a rape or sexual offences trial or some other type of trial. And what is very interesting is, I think I mentioned earlier, we've done research with jurors asking them, they've just completed, returned a verdict and they're about to leave court. We asked them to reflect back on when they had been summoned for jury service and what their views were at the time of being summoned and 87% said that if jury service had been voluntary they would have opted out at that point. So the overwhelming majority of people who get summoned in England and Wales, I make that clear, we don't know what the situation is in Scotland, certainly were not there necessarily voluntarily, they were not looking forward to it, they wondered if they could get out of it, various things. Having served on a jury and at least attempted to return a verdict, that proportion flipped to 85% who said that they would be happy to serve again if they'd been summoned, that they found the experience educational, interesting, challenging. I don't think there's anything wrong with jury service necessarily being challenging. It is challenging from time to time. And so that does indicate that there's some kind of potentially transformative effect on members of the public who are doing jury service. But the American research is extremely interesting and has followed people over many years who did jury service and looked at their behaviour post jury service and they found for instance a very interesting civic change or democratic change in the behaviour of individuals who do jury service so that those who had not voted before doing jury service were significantly more likely to vote after having done jury service. It changed the way they consumed information about politics through the media and it found that substantial proportions of them became more engaged in civic and other democratic activities. So I think that there's something to be said or there's perhaps reason to pause before doing away with juries in general or whether in relation to specific types of offences, if that's helpful in answering your question. If we can move on and I'll maybe come back to you if we've got time. I'd like to bring in Pauline McNeill, followed by John Swinney. Thank you. Good morning, Professor Thomas. My first set of questions are to you. So I'm interested on page nine, which I think you've explored with the committee. You talk about why there used to be substantial differences between England and Wales and Scotland in both jury trial outcomes and rate cases and juror attitudes. But what I've focused in on is what you qualify by saying the lack of clarity in Scotland about jury conviction rates. Would I be correct in saying that that's the reason, because we don't have clarity about the conviction rates? Is it very difficult to come to a determination on which of the two factors result in this apparent difference? Or is your suggestion really that you wouldn't really expect to see substantial differences between the two systems? I don't have an expectation. I think you need to have the data on which to rely to say that we do know exactly what the rate is when it is juries that are asked to reach a verdict. I'm not sure to the extent to which that data exists within the court service in Scotland. Because it does exist within England and Wales and has existed for a very long time, we are able to do that long-term study of jury conviction rates. My understanding from reading the Scottish criminal statistics is the way that conviction rates are calculated here is that it's done on an individual basis, so defendants, the number of individuals who are preceded against each year in relation to a rape offence and the number of individuals who are convicted for rape. It's not necessarily going to be the same individuals, because you can bring a prosecution against someone in one year and obviously the outcome can be in another year. Also, just to be clear, juries don't reach decisions on overall decisions on a defendant. Juries reach decisions on individual charges and that's the analysis that we do. Unless it's a single charge against a single defendant, juries are reaching multiple decisions in individual cases. Sometimes they're convicting on a rape offence, sometimes they're at the same time they might be acquitting on another rape offence or there'll be other related offences in the same trial. The two issues that you brought to the committee is the lack of clarity about conviction rates, but secondly, you also see without any baseline knowledge of how juries actually work, you've got concerns about us drawing conclusions, that'd be fair. I just think you need to know how your juries work, what the effects are, it's a very unique system in Scotland. You have a unique number, you have unique three verdicts and all of that, so you do need that information. I just wanted to ask you about the jurors that you used in your studies, had they sat on rape trials or was it just trials in general? They sat on a range of trials. We ensured that there were those that were rape and sexual offences cases. As I said, there might be an individual case that included multiple different offences and then there would be some cases in which there were not sexual offences, so we were clear to include juries from a wide range of cases, also a wide range of courts around the country. In your submission, it's not being mentioned until now, you talked about pre-recorded evidence in session 28. The suggestion is that it's being used more readily in Scotland than it used to be and it seems to be going well to give victims of witness the opportunity to give evidence out with court. Does your evidence suggest that we should have a look to see whether or not that's impacting on conviction rates? You seem to be saying that we're section 28 of the England and Wales Act is used for pre-recorded evidence as an impact on conviction rates, is that right? Yes, well, the bill does mention the use of pre-recorded cross-examination and therefore I thought the committee might be interested in the very recent research that we've done, again in which we're looking at actual jury verdicts, looking at each offence and whether similar offences had pre-recorded evidence in chief and pre-recorded cross-examination and comparing that to cases where there wasn't pre-recorded cross-examination. This is part of the package of special measures in England and Wales. They're very important. They were introduced over 24 years ago, I think, to assist individuals who might find it otherwise very difficult to give evidence to do so, so they're important. This is not to say that they shouldn't be used, but there's been a roll-out in England and Wales of the use of pre-recorded cross-examination much more widely. There have been concerns expressed by both the judiciary and legal profession about the impact of the main complainants evidence all being pre-recorded. Our analysis showed that there is consistently lower jury conviction rates when the main complainants evidence is all pre-recorded. I was sharing that with you as this is part of the bill and it may be something that you wish to consider. I want to ask Professor Tammers and Vanessa Muno about the question of jury trials and whether they view how the Government can measure the effectiveness. This has given me some cause for concern as to whether you're for or against it. How would you ascertain how effective a single judge would be? What are you benchmarking it against? There aren't other jurisdictions with single judges. Do you think that it is possible to measure effectiveness? Given that the Government has also said that the intention is not to increase or decrease per se convictions but to give victims a different experience of the court system? Vanessa, since you're on screen, do you want to answer first? I think it's fair to say that in the discussions around this it's also something that's given us some pause for thought and reflection because there is no doubt that it's a challenging task. Compounded by the fact that, as we've already identified, there are a number of contemporaneous reforms and shifts potentially at play as well, which makes establishing baselines for then comparing effects. It's very difficult. The reality of any pilot, no matter how carefully constructed, is that it will, as with any piece of evaluation or research, have limitations in terms of what it can and cannot tell you. It will be then for people reviewing that evidence to make an assessment as to how robust or otherwise they feel that the measures of effectiveness are. Having said that, I think that it is right to be thinking about it somewhat more broadly than just in terms of convictions. There is evidence, which indicates the potential for judge-only trials to shift also the tone of the adversarial process itself. I understand that and I think that that's a very important aspect of the proposal, but particularly on that point, how, if we legislate for this, you seem to be saying that it's going to be difficult to ascertain effectiveness because is that fair? I think that that is fair. It would be a challenging task. I suppose that the challenge lies in having as much clarity as you possibly can about what effectiveness does look like before you can support the proposal and thinking about what other alternative forms the baseline evidence for that comparison. You do need to happen. We've identified in this discussion the fact that that might include greater clarity around conviction rates, that might include more information about the jury trial alternative as part of that, too. Thank you. Have we lost James? Is he still here with us? I think James should still be there. There he is. I am still here. I don't have much to add to what Chris Monroe has said, other than to emphasise that there will not be a single measure of effectiveness. Any evaluation will produce data about outcomes, about the speed of the trial process, about the conduct of the trial process and that data may pool in different directions in terms of how the Parliamentary Government wants to go forward with the system. I don't think that measuring is, in principle, difficult, although it's a complex and extensive programme of research to evaluate any pilot like this, but I would caution against the idea that there might be a single green or red light at the end of it. I suspect that it's going to be much more complex than that. I was looking forward. I understand that, but, since that is one of the parameters to ascertain the effectiveness, there must be one or two benchmark measures, and I'm struggling to see what they would be. Fundamentally, one of the benchmarks would be, despite some rhetoric, the conviction rate and whether the outcomes of the process differ. But also what the experience of the process was for complainers. That's interesting that your first answer was the conviction rate, because the Government has been absolutely explicit that they are not going to be looking at whether it's more effective or not, because they are saying that's not what it's designed to do, so that wouldn't be a benchmark, I don't think. Is it not a fair to say that it's going to be difficult to benchmark effectiveness? You also have heard evidence from the Lord Advocate, citing the very low conviction rate in a quaintance-raped type case that I should put it as a reason for reform. I think that, for all that might be said, in principle, it would be surprising if conviction rates did not factor into a decision as to whether or not to go forward with this. Underlying that, I think that there is a concern not about conviction rates per se, but about the nature of the process that underlines on rate myths. There is no way in which a correct conviction rate can be identified, and that will be affected in any event enormously by the cases that the prosecution are choosing to bring into the system in the first place. Can I stop you there? I'm trying to get this straight in my head, but that's a different question. How do you direct juries or train juries? Is a entirely different measure as to the outcome? A single-judge pilot is quite a different measure, is that right? There are two distinct measures here. One is what we do with juries and trauma-inferment practice, but there is a distinct proposal for a single judge to sit. That's my question. I'm struggling to see how you could judge the effectiveness. That is why, to a point of view earlier, I think that you could not have any pilot for several years because you would have to implement the other changes which are included in the bill. You would have to measure how the system operates with those in place. At which point, potentially, you might conclude that everything is working very well and you don't need to go ahead with the pilot. I think that's unlikely if there's a desire to have the pilot in the first place. However, it would only be after those changes had been made that you could have a pilot meaningfully to draw comparisons between the two types of system. Thank you. That's very helpful. John Swinney. I wonder if I could pursue a point that Professor Chalmers made, but it relates to the contribution of all of our witnesses this morning. It's about the adequacy of the research base. If I've heard once in my time that we don't have enough research on a subject, I've heard it a million times. I think that the airing of the research base this morning has been enormously helpful to inform the committee's proceedings. The conclusion that I draw from that is that we should actually look at all of the research and make our judgments out of it. Would it be fair to say that the gold standard of research that we require here is to understand better the deliberative process of individual and collective jurors, and we're never going to be able to get a hold of that? Professor Chalmers, do you want to start on that? I think that that would be fair, and I think that there's a danger. The stage is obviously making changes without adequate research. There's also a danger in believing that some kind of ideal perfect set of knowledge can be attained. There's always going to be a limit to what can realistically be known. As you say, the deliberative process is difficult to get at. One advantage of the mock jury method is that we can change certain parts of the stimulus that is given to mock jurors and hold everything else constant. As in, this is not relevant to this part of the bill, but we were able in the Scottish jury research to give one set of juries the option of not proven and another set of juries only the options of not guilty and guilty and see what the differences in outcome were. But actually getting to what it was that individual jurors were in their heads relying on, to the extent to which individual jurors' expressions or views such as views indicating belief in rate risk, the extent to which that influenced other jurors in their deliberations, the extent to which holding that belief made a difference to that jurors own personal view as to what their outcome should be. Those are things that are very difficult in practice, perhaps they're not even possible to get at. So there is going to be a limit in the evidence base that the Parliament can draw on here of what everybody's done, unfortunately. Thomas, do you want to reflect on that, Tom? Yes, I'd simply say that jurors are judges, they're simply lay judges. Moving to juridus trial is putting the deliberative process and the decision making into the hands of a professional judge. The same issues arise with understanding the decision making process of professional judges. There's been over half a century of research about trying to understand what factors influence professional judges decision making. So I don't think it's simply, you know, it's not an either or. We're going to have exactly similar difficulties with judges as well. In that circumstance we would have a written judgment that we could all pour over. Part of the research around judicial decision making is an assessment of the extent to which a judge's written judgment is actually a revelation of their decision making process. Those of us who do empirical research on judicial decision making don't assume that just what's in a written judgment reveals everything that went into a judge's decision making process. There are reasons why judges have to provide written reasons for their decisions and it will be helpful, I'm sure, to see the extent to which that happens. But I think we all know that, you know, quite often judgments can become very proforma. There can be very standard ways in which judges set out their decisions in written judgments. So the alternative, we could talk about juries providing reasons for their decisions. We could, in relation to, juries now have written directions. Those usually include, in England and Wales, a route to verdict that requires them to make an assessment of the evidence. One option there is to require your juries to have routes to verdict and to provide answers to each of those stages of the judgment. I wonder if I could come to Professor Monroe. I was interested in one of the comments that Professor Monroe made a moment ago. The jurilist trials can affect the tone of a case and I'm particularly interested in this point. I wonder if Professor Monroe could perhaps elaborate on that point as to what particular elements of a judge-only trial would be able to be enhanced or developed which would enable proper and fair justice for all parties to be better assured than under the current arrangements that we have in place? So I think part of what I was alluding to there, I suppose is a twofold element to it. One of them is the narratives given by complainers that they often find the process of having the jury present in their line of vision. The group of strangers that they have to narrate their account to, where they might nonetheless not wish to be present in the courtroom, that process can in itself be particularly challenging. More significantly than that, there is some suggestion in the literature around the theatrical components of the adversarial courtroom and the ways in which tactics of counsel, potentially on both sides, are apt to be aware of the presence of the jury and the persuasive tactics that may or may not work with the jury as the target. There is a suggestion, although it is a suggestion, it would require significantly more evaluation and research to see the extent to which this bears out, that where a jury are not the target decision makers for some of those factual matters, that that would impact on the way in which counsel perform in the courtroom space as well, and that in turn might shift some of the tones and the dynamics of the trial process itself. Thank you for that. That answer addresses or gets into some of the territory which links to other parts of the bill, which are essentially around trauma-informed practice, whereby one of the themes which I have been interested in the bill is that if that principle is going to be faithfully applied in all these situations, then courtroom dynamics have got to change quite dramatically as a consequence. Would you agree with that conclusion? I certainly am on record as having said, and I think that this also has come up in previous evidence sessions, that the adversarial courtroom is not a space designed for the dealing with sexual offence complaints or complainers. We have made a number of inroads to ameliorate some of the excesses of that, to reduce retraumatisation special measures being the most obvious example, also rape shields protections, but they often sit on the peripheries of an adversarial process as exceptions to the norm. That, in my personal opinion, diminishes the potential for really different treatment of those kind of cases. A specialist court, which is of course part of the bill, might be one way in which you can assist in developing some of that culture shift, but there are certain aspects of the adversarial trial process itself which will continue to make that typical in my opinion. I wonder if we could just come in. We have spoken a lot in great detail this morning about the jury research, the juryless trial pilot proposal, but I would like to just move on to the proposal around the creation of a sexual offences court. On that particular provision, there has been a range of views reflected in the evidence that we have heard as well as the written submissions. I am very interested from your academic perspective, and I will come to Professor Chalmers and then Professor Monroe if you are supportive of this particular proposal. As a committee trying to visualise what an effective and successful sexual offences court would look like, what are the key elements that need to exist within that model to make it work effectively and make the experience of victims better? I am not sure that there is much I can say in response to that. I think that it is largely a question of the training that is offered to participants in that court, whether they are judges or lawyers, and the support of two complainers. I know from reading some of the official reports in previous sessions that there has perhaps been a perception that this court might be a different building, a different facility. What is clearly envisaged is that it would be a court that would sit within existing court buildings. We do not look terribly different from the high court or the Disha court at present. It would be, however, a court that would be staffed in terms of both judicial and court personnel, and the lawyers, with people who had the necessary training and experience to deal with these cases. In that sense, the shift is not terribly radical. There is more of a shift in terms of what is required in terms of jurisdictional rules and who sits in that court as a judge, what sex and powers they have. I think that the shift may look more radical on the face of the bill than it would be in practice. It is a welcome development, but the changes may not be as substantial as they may first appear. Professor Monroe? I think that, with that mindset of this not involving necessarily a radical creation of a new court, it is still important to underscore this point that the vision is one where it is not just about moving business to a distinct building. Amongst the very significant benefits of a specialist court would be that consistent approach to embedded training and the culture shift that that can create, which is changing a very difficult thing. In particular, training across every person with whom parties might interact, and that includes court clerks and ushers around a trauma-informed approach and a holistic trauma-informed approach to how we deal with trial parties. More than that, I think, or perhaps more than that, is appropriate and effective technology. One of the things that sits in times with this is increasing potentially the use of pre-recorded evidence. Professor Thomas has already discussed her findings from section 28 and what appears to be a connection between conviction rates and the use of section 28 pre-recorded evidence in England and Wales. The format for that pre-recorded evidence is obviously quite different from what would happen in Scotland, particularly under a commission process, but what is also clear is that there have been substantial problems with technology in playing those videos in the quality of the audio-visual recordings and so on, which makes it quite difficult currently to disentangle how much of an impact those factors are also having on the outcomes and the reception of that pre-recorded evidence. A specialist court requires resourcing to have high-quality, appropriate technology for the use of those kinds of measures to reduce any negative impacts associated with bad tech. That's really interesting, just your commentary there about how essential good technology is. Before I'm going to bring in Katie Clark just in a moment just to ask a final question, Professor Thomas, I don't know if you want to add anything on that particular question. No, that would have been the point that I would have made, is that it's difficult to imagine the use of specialist sexual offences courts to be widespread if the technology is not there to support it. I think that's going to be one of the major challenges, is to ensure that any special measures that are brought in do have the highest quality technology, and that's based on research that will be on-going about how technology impacts on decision making. Thank you, that's helpful. I'm just going to finally bring back in Katie Clark, who I think has a question about independent legal representation. Katie, over to you. Yes, thank you. I was wanting to ask about independent legal representation and professional charmers very kindly and attendees and events I held in the Parliament on this issue last year. The witnesses will be aware that in a number of other jurisdictions there's far more extensive independent legal representation for rape victims or complainers through both the trial process but outside the courtroom as well. That sometimes is in systems that are very similar to the Scottish system in many ways. I wondered if this is something that the academics have looked at and whether they've got any views on that and whether you believe their scope to look beyond what is proposed in this particular bill that we're scrutinising today in relation to independent legal representation. Given that the committee, I think it's fair to say, cross-party is extremely concerned both about low conviction rates but also just as importantly about the experience of rape complainers who repeatedly have given evidence over many, many years about the retraumatising effect of the criminal justice system and the way that the criminal justice system lets them down. It's often said that the role, if you like, of the criminal justice system isn't to deliver for the complainer, it's a process by the state. One of the issues that we are very keen to explore is how we improve experience for complainers and whether independent legal representation and advice is one of the ways that we can help empower them through the process to improve their experience. I don't know if any of the... I know Professor Charmers has looked at this issue previously, so I'll maybe bring him in first. Thank you. Again, I'm not sure how much to say other than I certainly support the provisions of the bill for independent legal representation. There are going to be challenges, I suspect, with resourcing that because it's not an existing stream of work. It's new work and we have a big way of sector under considerable pressure. I think there are differing views about the extent to which it might be appropriate to have a wider right of representation. I think that that would be something that we best looked at with the benefit of the experience of this initial step. It's a future question, perhaps rather than one for this bill. There's certainly more that can be done in terms of access to legal assistance and advice at other stages even if it doesn't involve formal court of representation. As I think you're aware, there is work going on through the establishment of a clinic which my colleagues are involved in at the University of Glasgow to provide legal assistance and support to survivors. So I think the moves are in the right direction here and we will prompt consideration some years down the line about more extensive rights of representation, which, as you say, some of the other countries have. But I couldn't say anything more specific than that at this stage. Katie, would you like to come back in? Yes, I would. Sorry, I couldn't unmute myself. Apologies for that. Maybe if I could bring in Cheryl Thomas on this issue, because what we're being asked to do as a Parliament is to make some really substantial changes to the court processes in relation to rape cases. And some of us genuinely believe that a better approach might be looking at this independent legal representation issue. So I just wonder whether that's something that Professor Thomas can give any sort of information in terms of her experience or whether that's something that she has any knowledge about. So I have to say I have not conducted any research on this issue, but what I would say is that it's obviously being examined in England in Wales as well and has a great probability of coming into being. In part, I think one aspect of this that is very relevant is whether the provision of legal advice for complainants will lead to more staying within the system and getting their case to trial. And I think that's where the real challenge in England in Wales has been is that the overwhelming proportion of complaints fall out of the system before they actually get to a jury trial. So if the provision of legal advice, which will be obviously very helpful in terms of understanding the measures that you're proposing to be available to them so that they can make an informed choice and feel that they can stick with the process and bring a case to trial. It would be fair to ask Professor Monroe if she has anything to add to that. Thank you, I'll keep it super brief. I mean, mostly I would echo what's already been said. I think that what it is worth underscoring perhaps though is that we certainly have a substantial evidence base from survivors lamenting the fact that they experience the process as one where they feel that they become a piece of evidence rather than a party to proceedings as things stand. And that is something which through ILR or otherwise certainly needs to be in my opinion addressed. One of the ways which we can do that outside of an ILR process I think is, I think you've heard this already from survivors, is there's a profound lack of consistency and communication for many in their justice journeys with police and crown in particular. That's often an issue of resourcing and capacity at its core. So I think that mechanisms that take very seriously the need to improve those processes could in itself be a significant contribution to addressing some of the issues outside of any more radical independent legal representation, which may or may not prove to be appropriate. Okay, thank you very much indeed. So that concludes our first panel this morning. I'd just like to thank our witnesses for attending this morning's meeting. I think that it's been hugely valuable. So thank you very much indeed. And we'll now have a short suspension just to allow a wee comfort break and a changeover of witnesses. Thank you very much. So I would now like to welcome our second panel for today. So welcome to Tony Lennon Casey, President of the Faculty of Advocates, the Criminal Bar Association, Michelle Webster, President of the Law Society of Scotland, Mr Alan McCready, Solicitor and Head of Research and Secretary to the Society's Criminal Law Committee at the Law Society of Scotland and Simon de Rolo Casey. So welcome to you all and we're very grateful for you joining the meeting this morning. So I intend to allow around 90 minutes for this panel. And I would like to propose that we focus our questions initially on the proposal for a new sexual offences court before moving on to the proposal for a pilot for judge led trials in certain rate cases. And finally, of course, we can discuss the proposals for independent legal representation for complainers and anonymity for victims of sex offences. So if I can open up as usual with my general opening question for the panel and I'll come, I'll maybe move across the panel from my left so I'll start with Mr Lennon and move the other way. So the question I'd like to open up with is that recently in her evidence to committee, Lady Dorian argued that a specialist sexual offences court, amongst other measures, is required if we're to achieve the kind of changes that we need to see happening. And she warned that the piecemeal reforms would not bring about the necessary shift in culture. So if I can just ask for a response and I'll start with Tony Lennon. So did I understand the question, is it whether this has to be considered in the breadth of all of the proposals in the bill or what do I just think about the specialist sexual offences court? I'm just interested in your view on, I suppose, Lady Dorian's comments particularly around the proposal in relation to the specialist sexual offences court. But if you feel more comfortable responding in the context of the other provisions, that's absolutely fine. I've got concerns about the exact specialist court which seems to be on offer from the bill. I don't have concerns about moving towards greater specialism, I see advantages in that. I have concerns which I've shared in both my original document and also the more recent further submission that for some, the committee will know that rape has been in the High Court for generations. I actually don't know whether it's also centuries that it's been in the High Court and it can only be in the High Court. Particularly in the modern world as we have improved our understanding of the devastating impact of it as a crime, I think it sits squarely in the High Court's territory. My worry is that what's happening here is that albeit we are moving towards some signs of specialism, the practical reality of what you are being asked to deliver in this bill is a downgrading of rape towards the Sheriff Court. I tell you why I say that. If you look at specific sections of the bill, if I look first of all about the personnel involved in the bill, at the moment in a rape trial, because it will be in the High Court, it will either be a solicitor advocate or an advocate who prosecutes the case, so it will be an advocate deput who is from the elite core of prosecutors. This bill will allow that to change so that a procurator fiscal deput can prosecute it. If you look at section 47 subsection 6, you will see that the requirements for the additional training and experience which currently exist will not apply to prosecutors, they need simply a certificate from the Lord Advocate. That worries me, because my suspicion is that I am naive when it comes to the workings of the Scottish Parliament. I have never particularly involved myself in politics in any way, but my strong suspicion is that every word in that bill is carefully chosen by somebody. I don't know who all does that upstream. Subsection 6 is there for a reason, and I think that's to allow procurator fiscal deputes to start prosecuting everything in the specialist court. I worry about that. There is a reason why there is further training and further experience necessary before you are allowed to appear and have rights of audience in the High Court. I worry about that. I also worry about the level of judges. To a different section, section 41 subsection 4, you are dealing with the question of the population of the bench in the specialist court. The bill sets out that the president of the court reads as if it is presumed that that will be the Lord President. I understand that. But what it says at subsection 4 is that the president of the court, if it's not the Lord President, if it's not the Lord Justice Clerk, it can't be any of the judges of that court. It has to be a senator of the High Court. What it says to me is that the judges in this specialist court are being designed to be subordinate to High Court judges. When I look at it in the round, my fear is that what you have here is a situation in which the prosecutors will be sheriff court prosecutors. I mean no offence by that. I really don't. But there is an elite cadre of High Court prosecutors. The advocates depute. It won't be them. And that the judges will be a rank below High Court judges, otherwise you wouldn't have subsection 4. So I hope I'm not excessively cynical. But my worry is that this is, for some, the specialist court is a flag of convenience by which they are sailing towards cheaper rape convictions. I think that that very poorly serves the public, but it particularly, I think, very poorly serves the victims and survivors. Complainers, as I know them in court, but victims are survivors dealing with the reality of the greatest number of people that come before that court. So that worries me. OK, thank you for that. I'll move along to Sheila Webster and Alan McCready. I don't know if you don't have to both come in, but I'll leave it up to you to respond. I'd be happy to take that question, convener. Thank you again for the opportunity. You've provided a law society to appear before the criminal justice committee this morning. We would agree with the faculty that there is no need for a sexual offences court. There may, however, be a need, and there is always a need for greater specialisation in the existing court structure of the High Court and also the sheriff's solemn court. One point that we made, which is reflected in our written, we've also made that same point about the appointment of judges to the sexual offences courts and on the basis that, like everybody else who appears before the sexual offences courts, certainly from the defence bar point of view, there has to be trauma-informed training. One point that we've made, which I'd like to reiterate here, is that there is an issue around the independence of the judge of the sexual offences court by virtue of the fact that he or she will be appointed by the Lord President. There is nothing in the bill around for any particular period or how long that person is going to be appointed, but the question is removal, because I think it's in terms of section 40, subsection 7 of the bill, the judge of the sexual offences courts can be removed by the Lord President without reason. If the kick-off point is article 6 in terms of the fair trial, which must be afforded to the accused, then if there's a question around the tenure of the judge, then the society's respectful position is that that may be subject to challenge. I don't wish to add anything to what's been said in relation to the specialist court aspect of matters. It's specialism is required and high calibre is required. Those are the two things that are necessary. How do you get there is another matter, but that's what's needed. I think that it's safe to say in terms of the written submissions and the evidence that we've heard in committee. We're acutely aware of the breadth of views that there are. There are some very supportive views, as you will know, not least of all the Lord Advocate and Lady Dorian herself. We've got the lovely job of trying to pull all this together and do the best job that we can in terms of responding and populating our report. My question is in and around bearing in mind that there are such a broad range of views. I know that, particularly within your profession, there have been probably some helpful suggestions, as we've heard, about how a specialist approach would look like in Scotland in terms of sexual offence cases. I wonder if I could bring Sheila Webster in on that. I'm just interested in teasing out a little bit more about the key elements in a specialist approach to dealing with sexual offences and rape cases. I think that it is very difficult to design something that will be perfect for all. Our system is underlaid by that presumption of innocence. The system should, naturally, be focused on convicting the guilty but acquitting the innocent. Trying to achieve all of that is a difficult balance. I don't envy you your job. I think that it's difficult. I'm very conscious that the starting point of all of this is an awful lot about the experience of complainers, as we call them, in legal terms, victims and survivors and the language that the bill uses. I think that you'll find that most lawyers will generally say that specialisation is not necessarily a bad thing. I think that we've heard from Mr Rolow and Mr Lennon that there is a general agreement that specialisation is a good thing. I have questions around how, for example, part of what we're aiming to do is to improve the experience, which I think is probably acknowledged by most. It's not ideal for—it's not great—the experience of being involved in a prosecution in sexual offences, serious sexual offences cases, so that is a difficult thing for anyone to go through. So how do we make that better? Would the creation of a court, the sexual offences court, alone do that? If what we end up doing—and I think that, when being realistic about it, it would expect that we're not about to build a number of new centres which would look more modern in style, which might perhaps look at some wider issues. I think that it's interesting that you touched on some of the comments that Lady Dorian made in her evidence about tinkering with small bits. The difficulty is that we have a court estate, which is old fashioned. I'm not sure how many of you have had experience in the courts. I've been in quite a few across Scotland over the years and it's fair to say that they're not modern. They don't look like this building. I suspect that that in itself is intimidating. I suspect things like the language that we use, the legal language, which has been part of our system for hundreds of years. That is all of those things—the wigs, the gowns, all sorts of debates around those things—that all of those contribute. So specialisation of itself may not assist in that task, I think, that we hope to achieve, of improving the experience for victims and survivors. Okay, thank you very much. Okay, there's lots of interest, so I'm going to open up questions to members and I'm going to bring in Katie Clark then, Joyce Winnie. Katie. Thank you very much. I thank the witnesses for the clarity in the responses they've given so far, which I think has made very clear that their concerns aren't about specialisation or indeed the concept of a specialist court. But I think it's fair to say about the specific proposals in this bill. So clearly one of the issues the committee has to consider is whether the bill is acceptable as it stands or indeed is amendable. And in relation to that, I mean, from what Sheila Webster has said, I mean, she's spoken about the experiences of witnesses and has the witnesses got a view in terms of are there amendments that could be made that might actually address some of the very, very genuine concerns that are about the experiences of witnesses? Even with some of the new practices that have already been brought in, such as taking evidence on commission, the evidence that we're getting is that the experience of complainers throughout the whole process of the criminal justice system, so not just in court, is one that simply isn't acceptable. I'll ask Tony Lennon to come in on that, but it may be the convener could bring in any other witnesses because I'm not in the room and it's difficult to catch people's eye to see if they wish to contribute. For my point of view, I would respectfully suggest that you think about ensuring that in whatever the specialist court looks like, wherever it sits, cases which were in the High Court continue to be prosecuted by people of the High Court standard, and that would involve looking at that subsection. And what you could do is you could vary the comments about the requirement, I forget the subsection in particular, but maybe it's subsection 2 about solicitor advocates and advocates having the right to appear in previously High Court cases and make sure that that exists for prosecutors too. And I would also suggest that you incorporate an amendment, which means that those cases which would have been in the High Court continue to be tried by people who were worthy of sitting in the High Court. So, if you do that, then from my perspective, you have not moved the rape trial out of the High Court, you've simply moved it sideways into a specialist court, according at the same respect that you did for the last 100 years. I don't know if any, oh, we seem to have lost Katie momentarily, would anybody, maybe Simon Tarola, would you like to come in on that at all? Well, it's absolutely clear to me that rape should be prosecuted by an advocate deput, properly qualified, experienced and trained, and not by somebody selected because they happened to be available to do it in a physicals office somewhere. So, I think Mr Lennon's on the right track in respect of that. Okay, we'll patiently wait and see if we can get Katie back, but I would imagine she'll have maybe had some follow-up questions. But I don't know perhaps, Alan McReady, if you'd like to come in, if not, I'll bring in John Swinney. Yeah, just on the point about Lady Dorian's report and there was a departure from that in that I think she certainly didn't want murder to be prosecuted in the sexual offences court. I think her recommendation was that the sexual offence be the principal charge and we're now in a situation where how much of a sexual offence court is it actually going to be? Given that the sexual offence, clearly it has to be a sexual offence charge on the indictment, but if that is dropped, the court can then proceed with the other non-sexual offence type charges which remain on the indictment and those can be the most serious of charges such as murder which are traditionally prosecuted. Well, they have to be. Supply of the Crown has to be prosecuted in the high court. I know that other witnesses have made reference to the potential downgrading of the most serious charges, the most serious crimes in Scotland being rape and murder if those cases are going to be heard or be aduricated upon in this new court. This new court seems to be something of a hybrid. It seems to sit between Sheriff's solemn and the high court and concerns have also been raised about the fact that I've made the point about the judges who will be appointed by the Lord President. The only other thing that I can usefully add is that there seems to be no locus at all for the judicial appointments board either in the appointment or the removal of judges to this court. There's another point that I'd like to make about Tony Lennon picked up on rights of audience because it would seem that for the first time normally the right of audience is associated with the court itself, so a solicitor would have rights of audience in the Sheriff court but not in the high court unless that solicitors is a solicitor advocate of course. An advocate or a solicitor advocate would have rights of audience in the high court. The essential offences court takes a slightly different approach in that it's not the court itself but it's the offence. If it's an offence other than rape and murder then the solicitor has a right of audience, subject to the trauma-informed practice training of course, but if it's an offence of rape and murder then the solicitor does not have the right of audience and that right of audience is only enjoyed by the solicitor advocate or the advocate. Thank you for that, that's helpful. I think we're still just working on getting Katie back so I'm just going to move straight on and plan John Swinney. Thank you, Kavira, and good morning. I don't know if all the witnesses were in for the previous session we've just had with the legal academics, but one of the points that I was exploring with Professor Monroe was the whole question of... She made a remark about the judge-only trials could affect the tone of a case and I'm particularly interested in this point as to whether or not the panel believes there is a problem with the tone of sexual crime cases within Scotland today. There's always a risk that the extreme cases are the eye-catching cases and so that what is presented in the press, for example, tends to be the extremity of what happens in court but it is easy to perceive that that's the norm. Now, all I do is criminal work and that's all I've done for the last 20-30 years, 20-something years. I think there have been improvements year on year and with a particular acceleration recently in moving away from the approach of the past where I, with my finery in court, am entitled to be regarded as some sort of elevated being and I can speak to witnesses as I like and I can address the jury as if they must weigh my every word as gold. Now, I think that has moved a great deal whether that's just my perception or not. I don't think it is. I think that's the reality is that we have moved away from that. Every year that I've been speaking to juries, I have upgraded my appreciation of their cumulative intelligence and it means that when I speak to juries and I think this applies to my fellows, my colleagues, otherwise I would not have been put in the position that I'm in. People nowadays are abandoning the theatre which was previously there and the pomp and being very direct both with the juries and with the judges but it has also allowed an appreciation growing commissions for example. I'm very positive about commission and we'll speak about that. That's a different point to come on to where witnesses are always treated with civility and respect. The theatre which went along with powerful sarcasm or whatever as a tool of the trade I think that should not be tolerated and currently is not. In terms of tone, I'm taking too long to say it, getting back to the question of tone, judges now are much better than they ever were to set the tone to say that we need to back off a bit, don't use that tone of language, don't shout, don't raise your voice or whatever. You hardly see that nowadays. There's enormous progress made. The problem I've got with that is that we had six witnesses in front of us last week who were all being involved in sexual offence cases and they wouldn't say that was their experience. We have a quote from Lady Dorian and let me just place this on the record. I thought it was an incredibly powerful quote from Lady Dorian at column 22 of her appearance at this committee in the 10th of January in which she said, We have, of course, managed to bring in the changes in the way in which juries are directed and so on, but even if they were brought in rapidly, they are still being done in a piecemeal way. They are not being done in a principled way with the underpinning of a whole court that is dedicated to trauma-informed practices. One of the things that we said in the report was that if we do not seize the opportunity to create the culture change from the ground up that Mr Swinney spoke about, there is every risk that in 40 years my successor and your successors will be in this room having the same conversation. I found that a really powerful comment because it addresses directly the argument that we are wrestling with this morning about piecemeal versus a substantial departure from some of the traditional norms that Sheila Webster talked about, which can be very, very off-putting to individuals involved in the judicial system. So I'm keen to understand what is the reluctance to fully absorb and incorporate that ground up culture change that Lady Dorian is talking about because I worry that Parliament, in one part of this bill, might legislate for trauma-informed practice and not actually see it happening in courts the length and breadth of the country. Mr Drill. Your question was under reference to what the academics were saying this morning and I think the contrast between or the difficulty between a single judge or a judge and a jury type process. There's no doubt in my mind that the skillset and the approach in a jury type scenario is different for the lawyers presenting the cases. They approach a jury case in a different way than they would a single judge. If you like, it's a contrast between an impressionistic approach in a jury, you're trying to create an impression, where a more analytical approach is taken with a judge. So there is a difference in that. You've then gone on to talk about a culture change. Can I pose you there, Mr Drill, because I think that contrast that you have drawn out for the committee there is really fundamental to our consideration of the question of a single judge trial and what would be the arguments for that, of that point of a difference in tone and approach of impressionistic versus analytical. Right, so that's a different issue in terms of the culture we're talking about also because you're talking about a ground up change of, or Lady Dorian was, and you're quoting her, a change in culture that has, as Mr Lennon has been talking about over the years, there has been a shift. I don't think that we've quite got to where we need to get to, but there has been an enormous change in my career in the way in which cases have been dealt with in sexual matters. But there is still a significant room for improvement in the way in which things are dealt with. Will a specialist court improve that? It may do that. There's a danger that creating a specialist court is just a bit of window dressing. It doesn't actually get to the nitty-gritty of what it is you're trying to achieve. But a culture change is the way in which things are approached by the lawyers is necessary, I think, and we should recognise that. Complainer's experiences do bear that out. If you're doing the question of tone, I agree with half of what Simon de Rolo has said in that the way in which I would address the fact finder would inevitably change, because the time that I spend at the moment speaking to a jury involves time bringing them up to speed with concepts so that a judge knows like that. I don't think that it would change at all how I approach cross-examining witnesses. My beloved laptop has charts for each witness how I'm going to go about it. I think about it in advance and I have a basis for it. There isn't theatre attached to it. There isn't the illicit tactics of anything other than based on the statements that I have, the statements of other witnesses, things that seem to need help from the witness. I don't think I'd change any of that. The essential question of tone, I don't think, would actually apply to the witness. That's what I think you care about more than my tone to the judge is almost neither here nor there because the judge is, and I will be the same if I speak more quickly or if I focus what I'm going to say so be it, your targeted improvement is what happens to the complainer in court. I don't think that it would change how I approach them. I don't say that I am. Do you not think that the difference of their being a jury and their not being a jury, given the very helpful distinction that Mr Darol put on the record between, if we call it impressionistic, performative issues for the jury with analytical presentation to a judge? Does that not fundamentally affect the experience of a complainer? I cannot for a moment imagine that your line of questioning to a witness will be the same in those two different contexts. It honestly exactly will. My questioning to a witness is planned in advance and it's purely there either to focus facts which seem to me to be important, to draw attention to other things which seem to conflict with what that person is saying, that's not going to change, it won't change. To take that example, that strikes me as highly analytical, so I understand that point, but I'm quite sure there must be, unless Mr Darol has just said that although the culture has changed a lot, it's not changed enough, that would still strike me that there is a risk. As a member of Parliament who's scrutinising victims and witnesses in justice reform bill, the victims' complainers may well be subject to conduct which, if I pass this bill and I think I've sorted this issue, might well be, but if we don't pass this bill might not be addressed as a consequence of the reforms which I might leave for the legal profession to make in a piecemeal fashion. I think that the changes which Mr Darol recognises have already happened continue and the improvements continue. There is very much more marked intervention from the bench and from the senior judiciary, from the appeal court saying this, this and this, don't do that. If you do that, we'll be speaking to you about it. I'm conscious of releases to the profession from that saying, because there are still people who approach it in a way that's different from my way. I'm not here to say that I've got the best way, I don't know if I've got the best way or not. I do my best, that's all I can tell you, but there are people who do it differently, but that's not the majority. The analytical way that I describe it, I think that I have the majority approach to that, but there are still examples, otherwise we wouldn't have the focus and we wouldn't have the need to driving this sort of change unless there were things that still need to be improved on. That's really interesting, because you've made the point and the points were made to us by Lady Dorian, it was made to us very powerfully by the sighting of a case to us by the Lord Advocate in the same session on the 10th of January, where the court of appeal had to make a very hard judgment, sorry, laid down a very hard judgment about the conduct of a case, which is not long ago 2020. I've now read the judgment of the court of appeal, which is a grim reading in 21st century Scotland. When I read that as a Member of Parliament, I think to myself, well, we better legislate for this because even with the direction that I recognise there has been from the Lord President, from the Lord Justice Clarke, throughout all of this, their tenure to try to improve these issues, there's still a lot to be done. The committee is having to address the necessity of significant reform because waiting for the piecemeal approach to put forward, which, if I might say so, is what the committee is doing. The committee is having to address the necessity of significant reform because waiting for the piecemeal approach to put forward, which, if I might say so, is what the submissions sound to me like, we're going to be having this conversation for a long time, we'll be back having this conversation in 10, 20, 30 years time. Do you see my dilemma that the necessity and the impetus for action is here to be undertaken? For my perspective and having, from my role, I have no difficulty in saying that the sort of questioning you're speaking about needs to be outlawed because it does not say... I personally don't even think it's effective, I don't even think it's effective, so I don't know what the justification for that is. The belittling or whatever, I've never understood the point of that. I suspect what that does is turns decision makers against me because they just think, why is he being so horrid? So if there is a way of outlawing that, then I will be at your shoulder to help outlawing that, no problem with that at all. I don't see a place for it, I don't see a justification for it, but I also don't see it as being the majority and I see it being a decreasing minority for what that's worth because, except from your point of view, tolerating a decreasing minority stretching off into the distance is not an attractive process. I understand that, so if I can be of help in that process through the professional side of it, then you may trust that it will be because my approach and the approach shared by my members otherwise I wouldn't be sent here to speak to you is that there is no room for anything other than civility and respect. There's a practical difference though, in that I worry a bit about the trauma and form thing, I know we're going to come on to that, but my experience, and this is an experience shared with me by people who are going through the journey that people that have spoken to you have gone through, upstream of me, no one has said to them, we need to look at that in the context of what other people are saying, we need to look at that because there's a problem with that from my point of view. So that's part of the problem and that feeds into the changes about independent legal representation for example, it feeds into the changes about the advantages of the commission in pre-recording. Complainers, victims, survivors are owed the respect of someone saying to them in advance of me standing up and lumbering round to the lectern in court to say we need to have a look at the CCTV, we need to look at that or whatever, because they have, I think, been ill served but with good intentions up until that point, no one is saying to them. I think the police nowadays are very reluctant to sit down and say there's a problem with that because it's this or whatever, just using their usual investigatory minds. And I have had people tell me that the first time they realise that there is an evidential issue that needs to be ironed out in front of the jury is when I stand up. And that's far too late because they haven't been given the opportunity to think. Very often I ask a witness, a complainer, a question to which I suspect I know what the answer is if I'm allowed to do that. But because they're hearing it for the first time in the form of wigs and gowns and 25 stone at the lectern and all the rest of that sort of thing, that's not the best place for them to be able to say there is an answer to that. I know it looks counterintuitive, but this is the position. So one of the great benefits of commissions is in advance of the commission. I don't know if you've been to see any of the commission suites, but they are much more like that. They're less intimidating than this. I don't say this because this is intimidating, but it's a much more organic feel to it. And you have a process whereby defence counsel should, I think, sit down with the witness beforehand and say, I am Tony Lennon and so on and so forth. My practical difficulty is I look like a big cartoon pirate. So especially if I'm dealing with a 13-year-old or a 15-year-old or whatever, it's important that I sit down in advance and I'm allowed to say to them beforehand, I'm not talking about their evidence. This can be conducted as slowly as you need it to be. Think about the question. If you don't understand the question, tell me that and build that into it so that when they come into court, they know me a bit. I hope that when they are in the commission room, they see that I am interested in what they can tell me, but I'm absolutely not there to be horrid to them or anything like that. The sort of things which you identify that need to be stopped as soon as they can be if not instantly. I just don't think that that is the broad reality, but it's not perfect. We haven't reached a stage of perfection, I agree with that. I wonder if the other witnesses want to reflect any of the points that I've raised and then I'll come back to you. I'm absolutely happy to do so. I think it is important that we do recognise that where the system is 25 years, 30 years on since I started is a wholly different place. It isn't there yet, I think that has to be acknowledged. We have made substantial progress, some of which are quite recent. Some of those changes are much more recent. The convener alluded to the fact that there has been evidence that some of those are bedding in. I think that that is true. I think that it is important that we all recognise that an adversarial system is what we have, but adversarial doesn't mean hostile. It is important that witnesses vulnerable and otherwise, and we've obviously had changes in the system that we have for dealing with vulnerable witnesses in all cases, has changed, but we have to be respectful, considered respectful. It does not have to be aggressive and hostile. I think that some of what Mr Lennon has said there about the pre-trial experience and the understanding of what it was. The charges that we're discussing in this committee and in the bill are serious charges. The evidence will be tested, but that can be done in a considered and respectful way. I think that the acknowledgement in what Lady Dorian's evidence and what she said, the steps that she had taken to encourage drawing to her attention, those, I think, rare but egregious cases, is an excellent step. I think also we have seen, and I think across the justice system, we have seen the system become far more interventionist on the part of judges. Judges will and do. There will be exceptions, that case you alluded to, Mr Swinney, undoubtedly. I think we all look at that and read it and think how can that happen. But those cases are rare. The reality is that judges do intervene. They do stop in most cases. On those issues also, is the law society active in protecting the interests and the perspectives and the experience of complainers and victims? Where they've been on the receiving end of what all of us would judge to be inappropriate conduct? I'm sure that the Law Society of Scotland is supportive of the proposals in the bill in relation to trauma-informed training. We encourage it, we provide training in it, and certainly for us that is something that is important. I appreciate that. That's not all that you're talking about here. That's our starting point. We do believe in the trauma-informed system, that is what it should be. I think we were discussing this in advance of our appearance today. Somebody in the team whom I was discussing with alluded to approaching this as a fence at the top of the cliff rather than the ambulance at the bottom of the cliff. We want to stop it before it ever happens, rather than fix it afterwards. Regulation may be what you're alluding to. I think that it's a fair analogy to make, but I accept that. My point is also that there is a regulatory element, because I worry about conduct. The profession is very exercised about all aspects of supposed interference in the regulation of the profession. I've heard it all for many years, but there are people out there who are ill-served. In my humble opinion, I don't think that the profession has got the strongest foundation for its position. I don't agree with that. I think—probably not surprisingly—I don't agree with that. Can I just ask you to meet your comments very brief, because you're slightly straying? Absolutely. I have a view that regulation really comes too late. If we are to improve the experience for those involved in sexual offence trials, then we need to stop it before it starts. That takes back to that analogy of the fence. We can deal with the regulator afterwards. I think that it does work. I think that what Lady Dorian said in her evidence on 10 January indicates that the judiciary is stepping in. We have seen examples in the most egregious cases where there is regulatory action. Perhaps that is a question for Mr Drull or Mr Lennon, because I think that the most highly publicised cases have been perhaps not the solicitor branch of the profession. However, I think that there is regulation there. It does work. The judiciary is involved in it, we are involved in it and we will take action. However, we see that the most important thing is to stop it happening in the first place. We have heard from complainers that they feel that there is a lack of communication through the process. They feel that they are not listening to, that there is a piece of evidence. Some of them have also told us that they feel that there has been pieces of evidence that they thought was crucial that was not brought up in court. One of the witnesses that we heard from last week told us that her experience was greatly improved because she had a lot of contact throughout the process with her deputy advocate. Is there anything that stops that from happening just now? What are the barriers to prevent that from happening just now and why can we not do it? The short answer is probably resourcing, because a lot of those experiences—the advocate deputy obviously—on the crown side of things, that is at the start. Quite often, and I have heard people talk about the experience in the run-up to trial, and I think that Mr Lennon touched on that as well. The preparation for it, I think that resourcing is a problem in all areas. I think that touching on any area of the justice system and someone will tell you that there is a resourcing issue. I think that that is a difficulty. We can address that. Could we improve things with that? Yes, we could, with appropriate resourcing, so that people can do that. There are lots of ideas out there. I have heard our criminal law convener, who was not able to be with us today, but I have heard him talk about technical fly-throughs. Let's use technology to show them what they will be doing, so that they can see what it looks like in the old fashioned courtrooms that we deal with. There are things that can be done to minimise that. I think that several of the things that you alluded to are perhaps things about the way that evidence is presented will ultimately be for the crown and for the defence to deal with, but I think that it is about preparation, understanding what they are going to have to deal with. For that, it is resources then. I think that predominantly that is a big part of it. I am not sure if anyone else on the panel wants to contribute anything, but I think that that is probably the main area. The resource is always going to be an issue, but on the question of the sexual offences court, if there is an appetite for a standalone court, one might want to think about modernisation. I know that one of the victims survived, unfortunately I can't remember, the lady's name gave evidence last week, but she made specific reference to court jargon and I thought she was absolutely spot on. Perhaps if there is an appetite for creating a special offences court, then it gives you that chance to sweep away. I know that in terms of the bill, the procedure in the sexual offences court will be the same procedure as a set out for the high court. As we get to the second quarter of the 21st century, we have the specialist court operating in the main, but perhaps not always in 19th century buildings, conformed to a procedure of a court that was set up in the 17th century. We might want to start to think about modernisation in the context of sexual offences, absolutely, but perhaps across the board, and that is resources. The resources will probably be the answer to my next question. In the Law Society's Well and Submission, you have noted that the requirement that solicitors and advocates take an approved, trauma informed practice course in order to represent clients in the new court will restrict the capacity of defence solicitors considering the restraints that they are already under with legal aid. Do you think that the Scottish Government has to fund the defence properly before these reforms are passed? I would like to see the justice system. It is not the defence, I think that it is the whole justice system. I am conscious that the budget did increase some aspects of it, but not all. I think that you are hearing a theme from me about resourcing as an issue in all areas. I would not limit that to defence. Yes, there is a question, but today is not about the funding of the defence. It is a big part of it, but all of these things need to be addressed. To make the system certainly in the sexual offences area more, I do not like the term user friendly, but to make it more or less of a traumatic experience for those who are involved in those cases. My concern is the financial memorandum for the whole bill. If we do not fund it properly, we will not be able to implement any of it. Moving on, I have a question on the judicial trials. Do you have any concerns that such a shake-up of the judicial system for sexual offences would be brought in by secondary legislation? I have a concern that is getting brought in by secondary legislation rather than being on the face of the bill. I was just wondering whether you had any comments on that one. I do not think that we would dispute that at all. We heard in the earlier session about the scrutiny that we believe is required. A lot of our concerns—we did not mention this when we were talking about the creation of the sexual offences court, but so much—that is also true in the judicial trials that we do not know. It is difficult for us to comment on how we think that that will work if we do not know. Taking the judicial trials, it talks of a time limited trial. That was what the proposal was from the working group. Of a time limited trial, we do not even know what the time limit is, far less. You covered this morning with the previous witnesses about measurement and how that can be measured. I think that it is fair to say that, picking up on something that Professor Thomas said, Professor Thomas was speaking about the very big number of changes that this bill—and perhaps that is what I mean when I talk about tinkering and piecemeal—is huge changes in various aspects of the criminal justice sector. How are we going to design a measure to assess what has made a difference when we are all introducing all of these together? As I have already said, so many of the changes are still very much bedding in our view. I think that there is a big challenge there as to how you could measure that. The point that you make about secondary legislation and all those questions that are still out there, yes, they are concerned. You won't hear—I can't think of anything that has caused greater disquiet within the profession than the question of moving towards juryless trials in rape cases. Parliament will take whatever steps it decides are necessary, but they need to be absolutely well thought out because a misstep on that front where emotions run so high would be a disaster. We have a practical situation just now, and I know that you are concerned with delivering change rather than talking about change or whatever. You want to deliver it. We have a situation just now where people in my situation earn a lot of money, I think. I'm not a premiership footballer but I earn a lot of money. People still don't want to do my job. People are fleeing my job despite the fact that my job is, from my perspective, a very rewarding job. People are fleeing it. So if Parliament decides to implement something that is so widely unpopular, there's bound to be a practical consequence of that. It's a struggle just now to resource the courts that are currently sitting. You saw there was an article in the paper about, I think again, Livingston Sheriff Court—no, it was Livingston's curse because I think the 2020 case came from Livingston too, where a trial just had to be adjourned because there's no one to do it. That's an actual reality, so it's not that no one wants to do it, there's literally nobody. It's not a question of, my first choice can't do it, there's nobody to do it. So as people are driven out of the profession, I talk about an outflux in my submissions. That's a reality, so you've got to be super careful with massive changes that what you don't do is, with the best intentions, deliver chaos and delay and disaster through people just not wanting to do the job. Unless you're going to conscript people to do my job, you need to be realistic. And I know that that's—you want to deliver change, but you need to think about it holistically, I think. I mean, you know that. I say that as if that hadn't occurred to you. I know that it has. I'm just providing some emphasis, please. I think that what Shrewsbury said does sort of come back to what we were talking about, about the different skillset that might be required between presenting in a jury case and presenting before a single judge. I mean, I'm an independent person, I'm not representing the faculty and I'm here just to give the benefit of my experience. But you have to recognise that the concern of the profession, which has been expressed quite vociferously, is, I think, perhaps as a result of the fear of change in relation to the way in which they conduct their work. And that's a change that will be brought about quite quickly. Now, the proposal in the bill is for a pilot, for all—all to describe as a pilot, and I think the concern is, is it a pilot or is it just a revolution, as it were? And that's a legitimate concern that people have. Now, for my part, I think it's something that we should do. I think we should have some form of genuine pilot to have a non-jury way of trying cases, certain types of cases for a period of time. That's something that's worth looking at. But you have to, at the same time, recognise that that will require the profession to adapt to that situation, not just the practitioners but also the judges themselves. So, the question you asked was, should this be done by active parliament or secondary legislation? I think the clever answer that was given in the last session is that it's a matter for you to decide. But there obviously is a difficulty about that, because will the nitty-gritty, the need for the details to be worked out, will that be properly looked at, will it be properly scrutinised and will it be properly accountable to the legislature? That's something you have to decide, I think, if that's helpful. Thank you very much. Rona Mackay, you've got a supplementary, and then I'll bring in Russell. Thank you. Just briefly, just on Simon de Rolo, what you've just been saying, I understand you've been involved in civil cases involving personal injury, actions for rape, et cetera, and the decision was made by a judge sitting alone. Do you think that changes the way the case is presented? Yes. And did it have an impact on the scope for rape myths, et cetera, to impact the outcome? Well, in terms of rape myths, difficult to... I think that it's a single judge dealing with it so the judge would be less, but it's important also to recognise that judges need to be trained and we discussed in the last session, I think, there was a question about judges being subject to unconscious bias, and clearly they are. But, yes, it is a different atmosphere, it is a different tone. The great prize, I think, is having a reasoned decision where the judge sets out why the decision was made in a particular way, and that can be considered. That's something that the complainer gets the benefit of and also the accused gets the benefit of. But there are disadvantages to that because it can be appealed more easily and therefore subject to scrutiny and the process may go on for longer. Does that happen a lot? Well, not in... One of the cases that I've done, two cases involving civil allegations that went out to trial, one was appealed and the other one wasn't, but it's difficult to see. So in relation to, in a pilot scheme, you would find out to what extent cases would be appealed. And how those appeals would be dealt with. That's interesting. Thank you. Good afternoon, panel. I've got a few questions. I'll try and be quite concise. The Scottish Solicitor's Bar Association have told us that our members will boycott any duralis rape trials that are being proposed. They say that this would increase the risk of miscarriage of justice, deliver no discernible benefits and undermine public confidence in the justice system. Incidentally, it's probably worth putting on record that members didn't make any decision not to have them here as witnesses, and I'm confident that we'll continue to welcome their engagement. Now, I put the risk of the boycott to Lady Dorian, who responded by saying that this was an issue for us to deal with not so much for her, but I suspect it will very much become an issue for the senior judiciary if they end up sitting in a court with no jurors and no defence lawyers. My questions are quite practical. Is a boycott the set position of the profession? Is it universally held? And what engagement has there been with the justice secretary or the Scottish Government more generally on this? I'm happy to take that initially. I think you referred there to those who were statements from the SSBA, and then you said, is it the position of the profession? I think those have to be distinguished. The profession is not the SSBA. The SSBA is a membership organisation that represents a significant part of what I understand to be the criminal defence bar, but it's not all. It's not the position of the Law Society of Scotland because that is not a position that we take. It's the SSBA who have said that, and they've said that on the basis, as I understand it, of what their members are telling them. According to them, their members have said no pretty much universally. However, there may be solicitors who may indeed take part. I don't think that it's the case that we can exclude the possibility that there will be solicitors who will be prepared to participate in a boycott. Those are issues for the members of the SSBA and the other independent professionals that we regularly have. However, we cannot compel people to do work. That's not the way the system works. I don't know that we can say that there will definitely be a boycott. That is a question that would have to be directed at the SSBA. I have to say that it's a high risk. The strength of feeling across both sides of the profession, the Law Society and the Faculty of Advocates, there is a strong sense of concern specifically about the single judge pilot. One of the advantages of an independent referral bar is that it has a different relationship with the accused person, because my client is not the accused person but my instructing solicitor. We have the cab rank rule. It means that if you come along with a set of papers for me, it doesn't matter how unpleasant to the subject matter or whatever, the cab rank rule ensures that you will be able to instruct an advocate as far as that's concerned. Many of my members have expressed such strong views. If they declined to take instructions, that would have to be referred to the Dean of Faculty because I don't have the luxury of declining instructions. There might very well be members who say that I'm not doing it and they will live with the consequences of that. As in a disciplinary consequence potentially. Correct. That's why it's the Dean. As the President of the Criminal Bar Association, I don't have a disciplinary function. That would be the Dean of Faculty. Through advice from the Dean, I have issued guidance to our membership about how they stand as far as that's concerned and that it isn't a luxury that is shared with solicitors who can choose who they represent and who they don't. Last week, we heard from rape victims who waived their anonymity and mostly had a pretty terrible experience of the courts and the wider justice system. I asked them if they backed the proposed jury-less rape trials and I think their answers were quite surprising. I don't think that the proposal is a good idea. That would definitely have put me off. Had that been a thing before I reported what happened, I would have reported it. Sarah Ashby said that having a single judge is not, in my opinion, the way to go. A third one, Hannah Steaks, was a bit more nuanced but said that there's something to be done on that but I'm concerned that if a case was heard by a single judge and they were biased, there might be more reasons to worry about a missed trial. That position is at odds with Saved Rape Crisis Scotland and others. I think that sometimes we are falling to the trap of believing all victims because one and all experiences are universal. Are you surprised by the quite strong views that were expressed last week by those victims? Have you had any indication from behind-the-scenes discussions and lobbying and so on whether there's any movement from the Scottish Government on this particular issue? I'm surprised or not. I suppose that nothing surprises you, ultimately. It's not unreasonable for people to have different views and you would expect that. I would be interested to know whether their view would be the same if it was a panel of individuals hearing the case rather than a single judge because there is a great benefit in having a corporate decision. There's no doubt about that. There's something that would be lost by not having a number of people making a decision. These decisions in these cases are not easy. These cases are very stressful and having more than one person making the decision would be a good thing. It doesn't necessarily have to be the case, for my part, that it's a choice between a jury and a single judge. There is the possibility, at least, of having a panel of judges. It wouldn't necessarily have to be all of them at senator level. You could have a high court level judge and a number of others who were drawn from other areas to make the decision. There would be a lot of benefit from that. That would water down the potential for bias and the idiosyncratic nature of one person making these decisions. Have any of you picked up any sense from the Scottish Government in the face of all the opposition that there might be some movement on that? I don't think that we have either. The faculty have told us that there is no single feature of the proposed court that could not be delivered already rapidly. Law Society Scotland has said that the establishment of a specialist division in the existing courts would be quick and paraphrasing quicker, cheaper and as effective than the proposed new courts. When I put this to Lady Dorian a couple of weeks ago, she said that we need to, and the quote is, seize the opportunity to create the culture change from the ground up and the failure to do so by resulting in the same conversations in 40 years' time. I don't want to put any of you in the position of murmuring a judge, but are you persuaded by the Lord Justice Clark's argument about this? I don't know who would like to comment on that. I think that it might not come as a surprise that we continue to have the reservations that we have all talked about this morning. I think that we understand why the Lord Justice Clark is looking for that kind of change. I am not convinced that it will deliver that that is the solution to the problems. Your earlier questions about our surprise or otherwise at the responses that you had, I think that I would just refer back to the fact that the working group led by Lady Dorian that she acknowledged last week was divided on this question. It is a big question and it is attracting a wide range of views, many of which it has to be said are not positive. We all understand and recognise what Lady Dorian is trying to do, but we remain unconvinced across the profession. We have heard from the academics earlier that there is a significant lack of research in Scotland around a lot of those matters. Professor Shelf Thomas' view is that the judicialist rape trials would therefore be at best premature. Those who support the measures, including Lady Dorian, say that that will allow for the collection of evidence. The academic in turn then responds and says that without any existing evidence or research, how can you possibly measure what you are trying to measure with the new body of evidence that will be yielded from this pilot? I mean, do you think that we should get more evidence? I know that John Swinney made reference earlier too. It is not unusual to hear the call for more evidence but this does seem particularly important given the radical changes that are being proposed and the significant lack of evidence that exists. Do you think that there should be much more evidence done before we embark on this? I do not think that I would differ from what you heard from the academics, that the evidence is not conclusive one way or another from what research we do have. More research is always a good thing but I think that one has to recognise Mr Swinney's point about that as well. I would refer back to the concerns that we all have about the measurement. How are we going to measure? We have changed the system. We are about to introduce a ton of other changes at the same time. How are we going to know? How does that bring us more research? We are not comparing apples with pears. We are looking at some very different systems. We do not have a baseline that says, here is what we have at the moment. How is that going to change it? In addition, it was only autumn last year that the new rules were brought in, in which judges are instructing jurors about rape myths. We do not know what effect that has yet had. That is certainly a view that we have. Many of the positive changes that have been made, which we welcome, are in the main. The reality is that we have just not had enough time to bed in, as is our view at the moment. Thank you very much. Good afternoon. I have a number of questions about your submission. I want to start with the specialist court. Lady Dorian's report suggests that it should be a division of the High Court. If it was a division of the High Court, perhaps we would not need all this other exchange about rights of audience, whether the sheriffs can sit. Do you think that the Government has overcomplicated this by what it has put in the legislation? If there is an overcomplication, it is the fact that you are creating another level in terms of the criminal justice system. I understand that you are moving from three to four. You are moving from a JP Court, a sheriff's summary, a sheriff's solemn sexual offence court, a high court, as a court of first instance and a high court of criminal appeal. Those are all the courts. You are bringing in this brand new court. There is definitely a question about specialisation, which can take place either in the High Court or in any court, but particularly what was recommended to the sheriff's solemn court for all cases on indictment, then there is always going to be a question around, is this the best way forward? Does this create more confusion in the system? You are describing a hierarchy of courts where you do not see the sexual offence court as put fighting for in the bill. In section 45, the bill says on cause shown that one case can be transferred to the High Court of the Sheriff's Court. Does that speak to what you are really saying, which is that the fact of section 45 indicates that the sexual offence court would be a lower court than the High Court? It would seem to be. When the High Court is Scotland's highest court, as in the High Court, I know the provision in the bill to transfer out of the sexual offence court and into the sexual offence court. I must say that it is quite confusing. I appreciate that creation has been done with the best will, but it is whether or not it can be done in a way that keeps that separation of the High Court and the Sheriff's Court. I made the point earlier about right of audience. It is the first time, as I understand, that you would have a court where, if you are asking a solicitor, you would have a right of audience. Sometimes I do, sometimes I don't. It depends very much on the offence. Simon Daryl? I do not think that I have anything to add to that. The division of the High Court sounds more attractive to me, as opposed to the proposal. Anything to add? I'm hoping my view is clear in that it's worthy of being tried in the High Court, and if you're going to step it down below that, I don't see the justification, unless it's purely financial. I don't reject the fact that financial decisions are important decisions, but that doesn't seem to be the way it's being couched. If that's a hidden part of it for some proponents of the bill, then I very much regret that, because it's an offence worthy of being in the High Court and it should stay in the High Court. Last week I specifically questioned the Lord Advocate and Lady Dorian on the inclusion of the indictment of murder in this specialist court. I find it extraordinary, but I've not been a practitioner. It would be helpful if you wanted to give a view on that. As a layperson, I'm thinking to myself of murder as a plea of the crime for a reason, even if it's a sexual element. I'm concerned, and the crucial element to this is, of course it could still be prosecuted in the High Court under the bill, but a Lord Advocate could choose to prosecute murder not in the High Court under this bill, and if he'd want to comment on that, I'd appreciate it. As I understand it, that was not one of Lady Dorian's recommendations. Standing that the bill was drafted would allow for a charge of murder. As I understand, the bill is not just a charge of murder, but any other non-sexual offence type, so you could have a situation where someone breaks into a house, there's a rape, there's a murder, there's a setting fire to the house and there's a stealing the car. I know that that sounds a little bit farfetched, but in theory that's the type of case that could be allocated to the sexual offences court because it has at least one charge, which is of a sexual nature. And even if that charge is dropped, in the other cases, the other charges, rather, on the indictment, can remain in the sexual offences court. A progressive step to take this to have a situation where murder goes into this other court. My comments earlier on, possibly prosecuted by a procurator fiscal deputy, that's not a progressive step. That means that in the High Court it would be an advocate deputy, but in another court it could be an advocate deputy or somebody, a procurator fiscal, in other words. In the second year of her traineeship, so a year out of university. Next, I want to ask you about section 39.6, which allows the Scottish ministers to amend by regulation both the definition of sexual offences at section 39.5 and the list of sexual offences at schedule 3. That does give me cause for concern, specifically since I think the Justice Committee of the Parliament 2009 did the reform of the crime of rape. It seems extraordinary that we wouldn't have primary legislation for changes to that, but anyway, I thought I'd ask you to speak to that. We think that any changes to what's a sexual offence should be a matter for the Parliament. That should be on the face of the bill. Any comment on why the Government would want to include such a profession in legislation? I wouldn't want to comment on that, but certainly the society's position is that that should be primary legislation. The same is the case for section 55, which is procedures of the court that would be done by regulation. Again, I made the point earlier about the fact that section 55 ties in a high court procedure to the procedure of the sexual offences court. Against a background of if there is an appetite for a new court, then to make it a new court, what will be this one procedure? We asked this question about victims having access to their advocate deputies' legal representatives. It is loud and clear that we are, with one survivor who had a positive experience, and that seemed to be where she had a meeting before and after and during the trial. I'd like to ask Tony Lennon. Would the profession have any objection to reforms around this, or what is the view of some advocate deputies? Do it, some don't. Some just go straight to court and don't talk to the victims and others don't. Is there a need to prescribe that more in your view? I think it is always going to be a good thing if you have an advocate depute who will engage with the complainers and principal witnesses. I think it's also a good thing if the defence will do that, but at the moment there's no obligation on them to do so. So going back to the commission situation, it might be possible to have a situation where it is expected of all of the lawyers to engage with the complainers beforehand because I'm certain that only good will come from that. It can only serve to improve, to reduce their apprehension and to improve their engagement and experience. But whether you would legislate or not on that, I don't know the answer to that. You wouldn't see objections from the profession if, however you would legislate for it, that changed the experience of victims that would be a requirement for the victims to be able to speak. I know I've got colleagues who don't want to do it, so I can't say to you that I am sent here by the profession to say. So I can give you my view about it and my view is that I think it is beneficial and I would do it. I think it's probably incumbent on me to come back to that resourcing question again and say that if additional obligations are placed on the defence in particular, then I suspect the answer will be, that's fine. I don't think that there will be a principled objection to that, but how is that to be paid for? That is more work at a time when they are already struggling. Forgive me for not understanding this. If I misunderstood it, in the case of defence, presumably the accused would have access to the lawyer or solicitor that would be engagement with the accused, so there wouldn't be a requirement for any change, but in relation to prosecution, because of the principle of the prosecutor prosecuting the public interest in not acting on behalf of any victim is the system, that is where there is this question of is it appropriate for a victim to discuss with the prosecutor the prosecution of the case and understanding of the case? I'm no longer, I have been a prosecutor for many many years, but I don't prosecute in the high court currently. The position when I was prosecuting was that you could speak to the complainer and go over various things, you wouldn't necessarily go into a huge amount of detail but you would try and put them at the complainer at her ease. The problem is that if specific matters are needed drawn to the attention of the prosecutor who is conducting the case, the complainer might have not the same point of contact or as good a point of contact as he would like. I don't think that this is a matter for legislation, I think that it's just a matter of practice, I think that it's something that prosecution authorities can lay down as a way of improving the communication that takes place. I think that dovetailing it with having independent legal representation is where this is going and is a welcome development clearly. I don't really see it as a resource issue to be honest, it seems to me to be good professional practice to build up a rapport with the person you're about to lead in evidence and spend a bit of time with them. If there are specific matters about the case that need to be drawn attention to the person, that may or may not happen in one of these meetings and it's maybe something that needs to be dealt with at an earlier stage and independent legal representation may help that more. I have the final question for anyone, but I thought that I should ask you first, since you've got a different perspective, Simon, on the single-year judge. Given what's been said about the experiences that victims might have in front of a single judge but not withstanding that you might prefer a panel of judges rather than... But we're talking about where there's no jury. Would there be a need for both, a specialist court? A specialist court is about trauma-informed practice and making sure that the jury understands that there are myths around the crime of rape and so on. If there is a single judge, why do you think we'd need both a specialist court and a single judge arrangement? It just seems to me that one might cancel out the other. I don't know if they would cancel each other out. The benefit of having a judge decision as opposed to a jury decision and, as I say, I'm in favour of corporate decisions is that you get a reason decision. You're not going to get that from a specialist sex court. That's not going to come from that. That will only happen if you have a panel of judges dealing with the matter. Trauma-informed, you can instruct a jury about that, to what extent they take that on board and is an open question, I suppose, but at least you'll improve matters by having... If you train the judges in trauma-informed and they are required to do that, then that's certainly an improvement worth making for sure. I want to address the following from that, which is just looking at trying to understand the legislation before us and all the possibilities. It seems to me that it is possible to create a specialist court, as in the bill, which we can decide where you see that in the hierarchy, but there could be different levels of representation, different rights of audience, and sheriffs appointed by a Lord President can sit as a judge in the specialist court, but there's nothing to see the pilot wouldn't be running in the specialist court. It's supposed to be a high court. Is that fair to see that? In other words, the specialist court wherever it sits with national jurisdiction is not the high court. We could have a sheriff appointed by the Lord President and we can have solicitors or any other, no baron solicitors representing accused persons in the specialist court, and a single judge all at the same time. That's possible under this legislation. That's a very good question. The pilot can only deal with rape and attempted rape cases. I understand that it can sit either in the high court or in the sexual offences court. If it sits in the sexual offences court, in the case of rape, because of the provisions, a solicitor could not represent the accused in the sexual offences court. What you have is the pilot in the sexual offences court, and the court can be presided over by a sheriff who has never presided over a rape case, who has applied to become a judge of the sexual offences court, and the Lord President may be happy with that and affords him or her that position. It is then a single judge in the sexual offences court, and you are running this pilot where that decision is being measured. The pilot is in itself, we talked about research earlier and about whether we have too much research or more research, but the pilot itself is research. You are testing live cases. This is not something that has been done in the abstract. This is going to be with real cases, contrary to the position of other jurisdictions or other common jurisdictions. There is nothing on the bill, and I come back to the question about it all in regulation that there seems to be nothing about whether the consent of the accused is going to be required before the pilot can operate. It is advocated that there will be no need for consent of the accused. When they rolled out the public defence solicitors offices, however many years ago that was, there was an initial reluctance for people to go there. What the administration did was say that if you are date of birth, if you are born in January or March, then you are diverted in the custody court from your lawyer of choice to the public defence solicitors office. I think, because I had some involvement in the pilot delivery project sitting in place of a colleague, I think it's anticipated that they will, if you're born in January or March or December or whatever, then you're in the pilot and that's it. It's not an opt-in. That's one of the problems I had with it, is that you're forcing people then into an experiment which could change the course of their lives, and there'll be nothing experimental about 10 years in jail. There'll be nothing experimental about a life on the sex offender's register, and if in due course it's decided this was not a great way forward, that's not much comfort to them. So there is a real problem with the fact that, as things stand, it's not proposed that you opt into it or you agree to go into it, you will be forced into it. Interesting, I don't know if it's connected, but section 45 on where the case is tried allows an application of the accused for it to be heard in a different court. It's absolutely limited, and it's in the guidance notes to the bill that it's only whether it fits the criteria. That's the only basis. You can't say because in the particular circumstances I don't think it suits the interests of justice, there's no provision for that. It's just whether it's rape or attempted rape, and if it's not, then you can move to get it out. I can't see how in practice you would ever find yourself using that, because it's obvious it's either in or out in terms of its subject matter. So there is no scope for it to come out. I think that the intention of the bill is something like that. Just by completing this on section 45, so section 45 allows a prosecutor or defence to say that they want you to be heard in the specials court, they want you to be heard in the high court or the sheriff court. Given what you've said about what evidence you've given the committee already, to me it sounds like where there are rules at the moment, where cases can be heard, there'll be no rules at all, and in fact, these provisions would give the prosecutor's defence almost like they'll just work it out amongst themselves. At least legislators have the confidence, if you're concerned about it, to know the certainty of what cases will be heard in which courts. So if we passed this bill, there would be no way in it that it would be pliarly a matter for the court system. Is that fair, where cases are tried? It seems to me that if you have the pilot operating in either court, then I'm just sort of thinking of this through your another situation, where if the decision is to have the case in the sexual offences court, even though it's the pilot, I'm just interested in the interaction of the pilot and the sexual offences court and whether there can be an application or there can be a transfer from the sexual offences court back into the high court, or into the high court rather. Or be it as part of the pilot. That appears so, because section 45 says on course showing the prosecutor's defence or even the sole application of the accused can ask for a transfer to another court. But it would still be the pilot. Thank you, thank you very much. Fulton MacGregor. Thank you, good afternoon to the panel. My questions are around the jurialist's pilot as well, and I know what has been quite widely covered a bit. I do want to just ask your opinions on what you think the pilot should look at and assess, because we heard in the last session that such a pilot would be further down the line. I think it's sort of remit in its considerations, we need to be given more thought. And I know that that is a job for government, for politicians to mostly look at, but given your expertise in the area, I'm wondering if you've thought about what sort of parameters you think it should look at in terms of is it making the system better for victims and witnesses and accused, or is it not? And I can back the point that Russell Finlay made earlier, which also I had made in the last session, and that was that I think there was an element of surprise in terms of some of the survivor's evidence last week in terms of this particular area. That was around a judge lead, a single judge. There was more reluctance to that from the witnesses than I'd perhaps anticipated being the case. And so therefore, I'll ask what I asked in the previous session to the academics, what role do you think should be given to victims and witnesses within the pilot, in the assessment of the pilot, and I know we're coming to the end of the session, so I don't need everybody to answer if you don't want to, but quite happy to take nods to see who wants to come in. Very interesting to hear from Mr Finlay about the experiences of people who spoke to you last week, and I imagine, if I'm allowed to do so, that that relates to what will be the make-up of the court, so the fact finder is going to be, and that's a point previously made in the submissions, it's going to be somebody my age or older, it's probably going to be a man, it's definitely going to be somebody university educated, and it might be that that's what inspires a lack of confidence in the people that spoke to you in the session that you're referring to, because I wasn't aware of that prior to. So it is interesting to hear that, and the particular point would be if it's going to act as a deterrent to people to coming forwards, then you're never going to know that that's a problem, because you're never going to hear from those people. But that is the principal ill, or one of the principal ills, that this whole process I thought was trying to be designed to cure is to allow people who have suffered wrong to come into this process and be helped through it, whether by ILR or by evidence on commission or by whatever. But if you've got a situation where the people that it's designed to help are saying, I wouldn't have fancied that, I wouldn't have come into it, that should set the alarm bells clanging from the point of view of people who are thinking that this is a worthwhile vehicle. I have to say, having been involved in the debate for the last two, three years or however long, I think for a lot of people, jury list trials is an article of faith rather than an interesting academic exercise of research, because the points made earlier on were that you don't really have anything to compare it to, so what are you going to do with it? And I think that my impression over the last few years of being involved in it is that there are some people for whom this is a grail, and they will go towards it and will do whatever is necessary to achieve that grail rather than the job that you have to deliver, which is how do we actually make progress? It's not just about photo opportunities with vulnerable groups, which feel great from your point of view. It's not about that. You are tasked with improving the actual experience of these people, and so if it doesn't matter how vocal the minority is, if it is a minority who want jury list trials, who want to take citizen jurors out because they, according to them, don't have the wit to understand what's a right with and what's not, if at the end of that process you've got people who are not even going to take the first step into it because of it, you really do need to think why are we doing it, and if you can't answer the question of why are we doing it because of the research and the evidence, then don't do it. Much of what you've said there points to the need for the pilot, and I think that the pilot is key in that, and perhaps when M.Dale's wants to come in and answer to that, I suppose that's what my question is getting at here, because we have given this whole section a good end today, but it's around about the pilot. If the Bill, if, as a committee in a Parliament, we have to pass this Bill, what do you think with this provision intact? What do you think we should be doing around the pilot? What are your expertise in the area? What do you think we should be looking at? One of the academics, Professor Charmers, said that one of the things that they think we'd be looking at would be the conviction rates, but as we've heard from Pauline McNeill when she went back to him on that, said Bill, actually the Government, I've been saying that isn't, I mean, even if the Bill, so where do you think something like that should fit into any pilot? What should we be looking at? What should the pilot be trying to assess? My starting point is that one has to remember has already been mentioned. This is not truly a pilot. We're talking about live cases here, people who will, as others have mentioned, whose lives will be permanently affected if at the end of the pilot we decide that it was a very good idea. That is a concern. We use the word pilot here, but what we're dealing with are real-life cases, which, as we understand it, will not be optional. You will have to go into it, whether you like it or not. I think that that is a concern. I acknowledge entirely what Ms McNeill said about the conviction rates and whether or not they will be used. I think that it's bound up in the whole concept of what we're doing here. So much we have heard about the not-good experiences at all that so many complainers have, but it's very difficult to see how you can disassociate conviction rates as some part of what we end up looking at. It might not be the Government's stated aim, but it's still bound up in it somehow. I don't know how you separate it, to be honest. At the risk of causing offence to others, I'd be astonished if it's not about conviction rates, at least in substantial part. I think that Professor Chambers is absolutely right. That's what it's about. I think that we've heard evidence today that tells us that we don't know how to measure that very well at the moment. For my part, it shouldn't be about conviction rates, although I think that if you did have a pilot, you would want to know what the outcome would be in respect of convictions, but that's not the reason for doing it. It sounds as though there is a need to properly analyse the data in relation to convictions. One of the interesting things from the evidence this morning was that the problem in England seems to be the number of cases that never get to trial. So, when you're looking at conviction rates, you're measuring a very small number of cases, which presumably have a good chance of succeeding because they've got to a particular stage. You need to get a grip of that and make sure that whatever is being analysed is being analysed properly. That's key to the whole thing. You would want to know whether there is a difference, but you need to know whether there is a relevant difference or a difference that you can actually properly measure clearly. The reason for doing it isn't to improve the conviction rate. For my part, I don't think that that shouldn't be the motivation. I don't think that you can necessarily tell whether or not there would be a different outcome in relation to convictions. It's perhaps the case that some cases where there would be a conviction would be acquittals and other cases in which acquittals would be convictions. That's possible. The question that you asked was what is it that should be looked at? If it's the complainers experience, again, a measure of that and how that can be properly analysed is needed before you embark on the project. You have to see how we're going to measure whether the complainer is happier with that experience than they would be with the current arrangements, and that needs to be thought about how you actually measure that. You will be able to say to a complainer, hopefully, here's why there was an acquittal. You can't do that really very easily at the moment. What are we actually going to do? How are we going to measure it? If it is the truth that conviction rates don't matter in this, if that is the truth, then what you're looking for is an improvement of their participation in the process and a reasoned decision. Now, I think it was Professor Thomas who said to you, you can have in the evolving routes to justice, sorry, routes to verdict, instructions to juries, a pathway by which they reach a conclusion, and then you could say to juries, it's now part of your job. We're not going to interview each of you, but you have to identify. We give you a flowchart of how you might reach a conviction or you might reach an acquittal. Tell us simply the nodes in that flowchart, and so you achieve that from an existing jury. If you're not worried about convictions, if that is the truth of the proponents behind the bill, then you've got a situation where you achieve what you want to achieve, what you do not then have as a revolt within the profession, which itself is justified by many on the basis that the public are not behind you in this one. The bill itself is a victim in witnesses' bills, so I was trying to figure out what you've come on to say there that's about what you should be looking at as the experience of victims in witnesses. I think why, you know, not putting aside some of the evidence that we heard last week, the Russell family and I have both mentioned. I think why most of us in the government have been convinced by a single judge on these trials is to try and make things better. So I would give you this opportunity, as my final question, convener, to tell us what do you think victims in witnesses, so not accused in this case, not the legal profession, not anybody else in the Procurate of Fiscal or anybody else, what would victims in witnesses lose by there not being a jury? Victims in witnesses, what do they lose? Or complainants, as you've been referring to them. What do they lose without a jury? Diversity is part of it. A single judge or even two or three judges are not going to give the diversity that will exist on most juries. A non-diversity in the strict sense, but in a life experience diversity. So when complainers, by and large, are 1920, 26, whatever, you're not going to get anybody sitting who has shared their life experience because I don't know what the youngest judge is just now, I'd be surprised if it was someone younger than 52 or something like that. So that's what they lose. They lose the ability to look across and see that there are people on the jury who are of an age with them, have lived life presumably through the years that they have. That's what they lose. That, I think, tracks into the point that you told me about earlier on where you have people who have been through this system who say, I wouldn't do it. I wouldn't want to do it with presumably someone who looks like me or Sheila or whoever sitting there because that's somehow off-putting. That's what they lose. We talk about a jury of their peers. Are they looking out and seeing their peers? If they're not, is that what's putting some of those victims that you heard from last week off? Can I just take a slightly dissenting note to all of this? I'm not sure the juries are of the peers of the person being accused or the person making the complaint. The profile of the jury is just a random thing and sometimes it may reflect the profile of the complainer in this case because you were talking about complainers and sometimes it may not. It just depends. There will be a loss of diversity. You can't get away from that. That cannot be a point realistically because the one thing you can be sure about is that when you take juries out of it, it will definitely not be a jury of their peers. That's an absolute given. You will have someone sitting there who earns £182,000 a year and all the rest of that whereas at the moment you've got 15 people. There might become 12 but you've got 15 times the chance, 12 times the chance of having a direct comparison on that jury. So you'll avoid. I've never had a jury, a single sex jury. Never had it. I've never seen it. So you will have somebody of your gender there to take a decision in your life. If it's just me sitting there, then chances are you won't. On that note, if I can maybe just start to pull things together. I've got a supplementary from John Swinney, the briefest supplementary, and then I still have Katie Clark who would like to come back in. So if the panel can just bear with us. My question follows directly on to this point because Mr Darrow has told us earlier on that he appears in cases in front of judges and it's an analytical experience if I can express it that way. Is there something philosophically wrong with that concept? Because what I've heard, Sheila Webster and Mr Lennon have just talked about the importance of being judged by your peers, although I can't imagine there's many. If juries are selected from the range of population, there's going to be a lot of 50-year-old men and 60-year-old women on juries looking at sex cases involving 18 and 20-year-olds who frankly, in my humble opinion, have grown up in a different world to the one that we're now living. I speak as a just about to be 60-year-old man so it's full disclosure here today. Is there something philosophically? I'm struck by the point that Mr Darrow made earlier on that his cases are heard by a judge and that's fine, everyone says that's okay. What's wrong with it in these cases? I struggle to understand the foundation of what you say because what you're describing is a criticism of juries because there might be older people on them? You're saying that they're peers and I'm saying that if I'm put on a jury to hear a case involving a sexual assault involving an 18-year-old, I'm living in a different world. But that's exactly my point because you would be the single judge. You would be someone of few range. No, but my point is that Mr Darrow has put on the record that he's able to stand in front of a judge and get an analytical experience and a statement of reasons as a consequence. And I'm just asking the question, is there something philosophically wrong with that? There is. So practical differences, that's a balance of probabilities not proof beyond reasonable doubt. It doesn't have to be. Okay, we'll hear from Mr Darrow in a second. We'll look forward to it. First of all, it's a balance of probabilities not beyond reasonable doubt and secondly, the consequences are quite different. You're not sending someone to prison for life on the basis of that. Mr Darrow? The philosophical point deals with the problem that arises from a singularity of decision maker. I won't bore you all with what I've said in writing, but I've got a real problem with the fact and this is shared by my colleagues that you will invest perfect trust in every single decision maker in that situation because I have a problem with that. The judges and sheriffs are composed of lawyers like me and my colleagues and I know that we share the diversity of personalities that I suspect you share in Parliament. You are not created and cracked out of a mould nor are lawyers. You have a situation where the fact that you sit on the bench and you take the oath does not represent a guarantee of an absence of hidden bias but also an absence of character defect because you have recent examples of people who have clearly smuggled character defects through the judicial appointments board to end up on the bench. That does happen and that's my problem because at the end of the day when I'm entrusted with your son or brother or whatever and I say that judge there, I've known that judge for 10 years, I've got a problem with that judge because whatever and I make that point in this as I've travelled the land in all of my years. I go through courts where you have convictors, Sheriff X, Convictor, Sheriff Y, Heavy Sentencer, Sheriff Z, Light Sentencer or whatever and I have to say to your son and then you were stuck with this person. You've got a Sheriff who would have been perfectly placed to go into your judges or whatever you call them in the sexual offences court who appeared before Edinburgh Sheriff Court with some business to do with pornography and racist comments or whatever it was. That's somebody who has gone through the whole process. That's somebody who could be sitting on the bench in the trial of whoever it is I'm entrusted with defending and it's one person I've got no way around that. So philosophically that's my problem, that's my problem and the plurality of it and this actually, Simon de Rolo makes that point, it's the plurality of a corporate decision which reassures me about that. So if you want to multiply decision makers and say there's a reason why citizens can't sit there but we're going to give you that plurality, I'll be quiet but the singularity is a real problem. Is there anything philosophically wrong with doing it analytically? No, there isn't in my view. I do have concerns about a single judge because more than concerns, it's much better that these decisions are made in a corporate way. An individual fact finder on their own, it's much harder. You have an opportunity of discussing the evidence with your colleagues, you go over what they've said, you come to a view about whether the person was lying or telling the truth or was reliable or not reliable. The experiences I've had in the civil courts, of course there's a different standard of proof but that's irrelevant because you can apply whatever standard of proof you like to the case that you're dealing with, that's not a significant problem. The other point is that there's no reason in principle why you cannot have a fair trial before a single judge or indeed a panel of judges you can clearly if it's designed properly. It can be done but as I say my preference is very much for a panel. I'm very quickly going to bring Katie Clark back in and if she would like to do so. Very briefly, I wanted to ask about independent legal representation really to put on the record the views of the witnesses and maybe Sheila Webster in particular because she's spoken a number of times about the whole of the judicial process, not just in court. Does she not think, given everything that survivors and rape victims have said about the disempowering nature of the whole process for them, that there's a very strong case that they need advice and legal representation throughout the process so they understand what's going on and that their interests are protected given the adversarial nature of the process that we have in this country? Maybe see if Sheila could respond perhaps briefly because of time. I'll be very brief. I think the law society's position is that we are entirely supportive of independent legal representation. There may be some questions back to that old question of resourcing and how the practicalities all work but the principle we are 100% behind. Thank you. I don't know if you want to bring any of the other witnesses in or not. I don't know if Alan has anything to add to that. I don't think there's much I can usefully add to that. We certainly support the principle for the reasons outlined in our written evidence. Thank you very much. I think you'll all be very relieved to hear me say the words. That brings our session to a close. Thank you very much for attending today. It's been an extremely important and helpful session. That completes this agenda item. Next week we will return to the Victims, Witnesses and Justice reform bill with evidence from the Lord Advocate on parts 1 to 4 of the bill. Evidence from members of the judiciary and academics who can comment on the anonymity provisions in the bill. I ask members if they are content to defer agenda item 3.