 Rwyf ddawnau, ac rwy'n gyfweld i gyd. Mae Gwyrdd ystod o'r Ffwrdd yma yn 2016. Ffulton MacGregor ar gwaith ddylgrifon, ond rwyf yn fawr i gyd ac yn ddiweddio'r ymddangosiau ac yn y ffrif. Ben, mae gennym ni'n ddeglaryddiadau. Mae rwy'n ddeglaryddiadau. Rwyf wedi gweithio'r ddeglaryddiadau'r ddechrau'r ddechrau'r ddeglaryddiadau yn ddeglaryddiadau i'r ddeglaryddiadau, Gael yna boards tynnu'r ffordd. Okay. Thank you. Item number one. Are members content to take agenda items three and four in private? Thank you for that. Item number two is our first panel, and it's my pleasure to welcome Sandy Brindley who is the National Coordinator of Rape Crisis Scotland. John Halpin, ond hefyd y gallu cyfreithfaith sy'n gwneud hynny sydd ei ffordd a gweithio i lefyo sydd. Martia Scott, gweithio i iechydig sydd hof yn holl I refer the members to paper 1, which is note by the clerk, and annex A of paper 1. Without further ado, I will open up for questions from the committee. John Finnie. Thank you, convener. A couple of references have been made to the centralised initial case processing teams. Some of them have been positive because it brings about standardisation, and some about lack of local awareness of issues. Can the panel comment on that, please? In terms of sexual offences, I think that one of the significant improvements in recent years has been a move towards specialisation. I think that that does sometimes come at a cost in terms of local connections with communities and organisations, but, from our view points, certainly in terms of high court work, I think that specialism has been very beneficial in terms of the prosecution of sexual offences. Mr Halpin. Certainly the feedback from services in SACRO represents all the areas of Scotland from the workforce on the ground. There is a great commitment, an obvious great commitment, from the Crown Office Procreate a Fiscal Service to work collaboratively and jointly with us, but there is a reality as services become centralised, the further we are away from the centre, the risk of communication being less effective increases. That is just a fact. I think that everybody recognises that. There is no doubt that our staff are important, but if you look at the purposes of the Administration of Justice, you have obviously got the element of holding people to account for what they have done and the punishment element and the other element is more person-centric about how do we make sure that we heal the harm that has been caused by that and allow people to return to what are very productive lives and potential them for many. The decision making around that aspect, when you have a centralised system, is weaker because you are focused on the process, you are focused on efficiency and the Administration of Justice and those decisions about what other perhaps diversion from prosecution may be alternatives to prosecution, they need to have a strong link with what is available locally. We would highlight the fact that that needs to be a real priority in terms of where the fiscal service focuses at attention going forward and community justice planning offers some opportunity there. Mr Almond, can I just maybe push a bit further on that because in your evidence you talk about I believe the transition in this transition local knowledge has been diminished and the bit I was interested in local collaborative working has become restricted. By that, do you mean diversion from prosecution? We diversion from prosecution would be one element, but also what other facilities are there to refer people on to, for instance the start of justice would be one that I mentioned in my submission, but that is only one element of it. If you are looking at working with community payback orders for instance supervision of unpaid work and people who find it difficult to comply with the order, those discussions about what happens going forward have to happen at a local level. I think I'm going to echo some of Sandy's comments about our happiness with the move to specialist competence within the Crown Office. I think it's important not to confuse the consequences of that with perhaps the consequences of some other changes that have been made in the structure and operation of the Crown Office. I think specialism for us actually is sort of another way of saying that the Crown Office has built some real competence around domestic abuse in their team making decisions about case marking and certainly in the establishment of a special prosecutor for domestic abuse. I think that shouldn't be confused with the questions of centralism and decentralism and I just want to say I think the Crown has had more successful and less successful attempts at trying to create efficiencies by both centralizing and then decentralizing, but I think that's a separate process from creating specialist competence within their structures, which are not just to be lauded, I suppose, from our perspective, but are absolutely critical to ongoing improvement and quality assurance in the organization in terms of the experience of women and children experiencing domestic abuse. I absolutely agree that decentralization has been tried and I think that I want to just say I think the Crown Office has done a lot of problem solving around how to create structures that make the best use of their resources and they haven't always got it right, but as an improvement guru I will tell you that you learn more from failure than you do from success. But I think it's really important not to conflate the consequences of centralism and decentralism with specialism because I think there really been two separate pieces of work for the Crown and I just want to pick up on the question of diversion from prosecution and I think that one of the dangers of attempting to move people out of prison is that we have conflated the consequences or the way to approach crimes of violence as all one thing and I think we have noticed that a very quiet process has happened through the whole system and the Crown is only one small part of it where an enormous number of perpetrators who are convicted of domestic abuse wind up on community payback orders, which nobody has really had a public discussion about but essentially is diversion and I think that that's possibly in part a consequence of needing to find ways to move cases through the system more quickly but unfortunately in the context of domestic abuse it's had some unfortunate consequences. Thank you, not to conflate the issues already or even to regurgitate them. I would say that in our experience from Victim Support Scotland's experience the centralisation work that occurred in the Crown office from probably over the last 20 years was very very welcome in terms of their strategic and policy making agendas. They have been very positive in terms of victims and witnesses issues and I think that since the decentralisation of some of the VA teams we have seen an inconsistency in practice across the board and that has caused issues in trying to operate our witness service in the sheriff and high court. I would say though in addition to that when we're talking specifically about specialisation and the case progress agenda that those witnesses that come into court that are not facilitated through the route of VA have no access to case progress information so there's still a gap there in terms of knowledge and information being passed to those people. Thank you very much. So is it fair to say then looking at the type of cases there's a bit of divide and perhaps how centralisation is looked, how cases are treated for example there's the joint protocol in domestic abuse and that seems to dictate that certain things will automatically happen but the vast majority of cases will not come into that category. Is there therefore an issue, I think maybe Sacro has picked up on it, more pro-arrest presumption of favour or prosecution less autonomy on the part of the prosecutor? Certainly my organisation's view is that there is a sense that there is less autonomy for the procurator fiscal mark in the case when you have the predetermined results of marking and if you look at every case in its own light and those who are closest to that case and professional around that case can make the best decisions around that case and if those are predetermined by a policy decision that everyone will go to prison because of a particular offence that doesn't consider the individual circumstances and the exceptions which would particularly in domestic abuse where it might not require that but you have to look at that case and there are issues around a case where perhaps alternatives are appropriate but they have to be very specifically risk assessed, they have to be absolutely agreed by those who are involved in the prosecution and the management of that case that that is appropriate but what we need to be really careful is that we impose solutions that are not the best for that case. I noticed particularly Mr Halpin that you talked about local case management and how maybe there has been some local knowledge lost when it's moved to a centralised system, other members may pick up on that but and the large number of procurator fiscals marking papers, could you maybe expand on the difficulties that that can potentially cause? We have evidence I suppose of areas where we've had long-established services available, now I'm very conscious that it's hugely difficult for a national service like the Crown of Procurator Fiscals to know what's available everywhere in the country and I think that that's a real challenge for them but if you don't know locally what's available you won't refer people to that and we have seen cases where long-established services after centralisation of case market, the referrals as an alternative to prosecution perhaps with young people and restorative justice for instance where those referrals have virtually collapsed then we've had to negotiate going back, for example the police notices, the fixed penalty notices are warnings where virtual became a process flow a model and you know if you do this you can get a warning and that's seen as a disposal but in the previous world that would only be part of the decision another decision would be and we'll refer you on to this service to challenge the anger that you've got or whatever and we've had to go back and discuss and negotiate with the Procurator Fiscals Service and they've been responsive to that but as a reality when you take the decisions away from where they were previously made you lose that local knowledge and what we're highlighting is that as a risk for them at this time. Okay, thank you, Liam McArthur. I thought that Marsha Scott was going to say something. I'll be sorry. I'll be tee you up because I think that the point that Marsha Scott was making earlier about not trying to conflate the specialism and the expertise which I think all of us agree was was badly needed with I suppose the expertise or the loss of expertise in terms of the local dimension and the local contacts, the local relationships. Is there a way that we could perhaps have the best of both worlds? We've got the expertise within a centralised structure but that centralised structure needs to work more effectively and in a more joined up fashion with the local expertise so that we maintain those relationships and we don't lose the benefit of that expertise which I think has been if not lost certainly diluted through the centralisation that's happened over recent years. Is that something that you think is achievable? I think it's the best and most important task or problem to solve to be to be absolutely honest and I have to disagree slightly with my esteemed colleague to my left here which is that I think I think when we were talking about the importance of specialist knowledge and competence around domestic abuse that contradicts the notion that it's the local team that should be marking the cases because what we're talking about is an expert group, folks who've had lots of experience and lots of training and I think those are the two key pieces however that are missing sometimes when you move out of the specialist world into a more locally based team so I suppose the answer which is an answer to so many things up to your question really is the best of both worlds would be that we would have specialist knowledge and experience at the local level but I think probably the assessment was that that's not feasible given the resources so they were trying to find a structure that managed to use the you know the extra competence and training and then provide that to the local group. I think what that does for me and we've touched on it in our paper is makes transparent the fact that no matter how many times you rearrange your structure there is no way to get around the need for significant and ongoing training and prioritisation of that for both people on the ground and people at the centre. I mean the way that our system works provides some really difficult problems like the time in which a fiscal has to mark a case makes it almost impossible for them to get a significant amount of local information into the process and when I was in West Lothian we saw that that caused real problems for the marking and if we had more flex over some of that then you would have an opportunity to use the specialist knowledge in the decisions to prosecute or not but you would allow then if you had more time you could then allow the local knowledge to go into place about how you know what should happen with the prosecutor and the victims in the process of that prosecution and I just have to point out that fewer than 1% of perpetrators convicted of domestic abuse in Scotland go on to a prison sentence over six months, 1%. So it's really the presumption to prosecute is an effort to counterbalance what was seen as a negative assumption around prosecution and sentencing domestic abuse. I think it's whether or not not withstanding the time constraints whether or not there's a risk that we we overweight the expertise in terms of the the specialism with the expertise that can be brought to bear at a local level and I don't know how we we strike that balance given the given the time constraints I don't know whether Mr Hoppin you have I think I would go back. I tried to alluded to earlier that I think part of the solution here is the the emerging local planning that will go on within community planning parts which is in the community justice planning and if the procurator fiscal service is fully engaged with that at a local level then you start to bring in local responses to those situations which does recognise the expertise nationally and that is to be welcome but there is still even with that there is still elements of this. There was over 20% of the men arrested in Glasgow who never appeared in court in terms of domestic abuse at one stage. So what happens with them those local decisions do we just wait because a lot of the services for male abusers in terms of addressing the behaviours apart from the prosecution of it only kicks in if you're convicted in a court if you're prosecuted so do we allow that percentage to just go back and increasingly carry on with their course of action and then we intervene at a later stage or do we actually look at the other decisions that can be made locally that can work with those people to challenge those behaviours as early as you can. Okay that's helpful and maybe followed by Mary. Thank you I just wanted to ask for a bit more detail around issue of capacity in local services and I'd be interested in the panel's views on whether one there's enough capacity and there's enough resource put into that capacity but is there enough within the system in local services to adapt them to different areas because you can't have a one size fits all across the country so is there enough space if you like to adapt and change local services to really fit the needs of the people and the other question I wanted to ask was round if there is an alternative to custody and people are being dealt with in a local area is there enough work done with the victim in all of it to ensure that the victim knows absolutely what's happening to the perpetrator why it's happening to make sure that they fully understand and support what's been done. I don't mind starting on the capacity issue I do think it's significant that there's been such a huge increase particularly in the case load around sexual offences and I think that's a similar situation with demiscubism I think it is without doubt that that has put significant pressure on the criminal justice system as a whole not only in terms of the crown office capacity and I think as most of us have said in our written evidence that has created issues particularly in terms of communication and information the provision of the VA service I think could sometimes be particularly problematic and complainers don't feel that they've been kept informed either pre or post conviction I think there's more we could do there and I would like to revisit the solicitor general review on that area to see how we could improve this I think another issue more generally is around floating trials we're seeing being used more and more for rape trials which is against the recommendations of the original lord body review so our experience is there's a huge issue in terms of capacity within the justice system as a whole and that is directly impacting on people's experience of justice and I do think it contributes to the possibility of victim withdrawal so I think we need to think about how do we get best evidence within what is quite a stretched criminal justice system and it has to be by keeping the complainer informed and supported and trying to reduce these delays that are being caused by capacity I would completely agree with what Sandy's just said there from from our experience victims and witnesses information in terms of being kept up to date is very very limited and sometimes the information that is provided is written in a language that's undescribable to the public generally and that in itself is an issue because as an organisation we end up trying to interpret some of the information that is there that has been meant to be provided to aid people and that in its sense of providing people with an inadequate sense of justice as Sandy highlighted and a feeling that actually they don't know what's happening in the process at all in terms of consistency issues and capacity we feel very strongly that via locally anyway have not necessarily got the capacity and a lot of that is to do with the resources have not been necessarily put in place to enable them to do the job that actually they are there to do and that in effect has had a huge issue in terms of witnesses and the amount of information that they're prepared before coming to court also throughout the court experience and then once they leave the information that should be provided to people is not necessarily getting through to them specifically on that point Douglas it is I just wonder if I can ask the panel we've obviously got a second panel coming up today is the perception from victims that the delays and the lack of information is solely on their side or is there a recognition actually from our second panel of witnesses today that actually they accused have similar frustrations for their own defence teams getting information I just wondered you know it would be very easy as a victim to see that it's a victim that suffers in this but actually we are seeing it's both sides of the process are suffering because of capacity issues I think from our experience in the witness service anyway we have countless examples of where witnesses victims have started to give evidence and then suddenly for example there's been an issue that has meant that defence haven't got the information or the evidence that is required to enable them to look at things prior to the court so that the case has had to be adjourned and that from a victims perspective is very very difficult but they also can sometimes see the issues that the defence have not necessarily therefore got the information that they need but to be truthfully honest from our perspective it's about the victim and the witness and their impact and their knowledge of the system. Just follow up on that I fully accept that but do you think it helps in any way that if a victim was to see that it's not just their side that's affected that they can see that the capacity issues stretch across the court because it's very easy as a victim or even as the accused to think it's only your side and I'm not saying it makes it any better but could there be a better understanding that these delays and you know the capacity issues affect both sides of the argument I don't know I'm just asking the question. Can I maybe just weigh in on that which is I think actually it's not um I think it's apples and oranges to be absolutely honest because um whereas the accused has a defence lawyer working um on his or her behalf to manage their engagement with the system the victim doesn't and um and so their experiences for all of the reasons that you can imagine um are um are you know vastly more difficult in the system in terms of not having some a professional person who's advising them if they're in the in the right place in the country in terms of the postcode lottery they'll have a very good advocacy service supporting them in which case um they will have somebody who who is at least able although not representing them in the same way as a defence lawyer does to to help to explain the system and how it works but so many places that's not available and so a victim is at the mercy of of you know whether there's an adequate via service you know whether the witness service gets the gets the information it needs and in a timely fashion and I don't think any of us you know can say hand on heart that that more resource would fix all these quickly but we know that it's necessary but not sufficient probably. My organisation as you can imagine with the services does work with both victims and offenders and well I absolutely acknowledge the point that Marcia makes and I recognise that. It is a fact that the issue of not having information does affect those who are accused of an offence as well and you just look at some of the cases where you've been working with someone on a journey which is really challenging for their life as well not to minimise the impact that it's had on others but then you get a roll-up of cases coming in and put some straight back to the beginning again or whatever so the issue about is does information affect both parties it just has to be acknowledged it does but notwithstanding the points that have been made. No it was just a few you touched on the via service and that was really what I was wanting to ask and get a bit more detail on I mean you'd highlighted that well it seems to be a bit patchy at best and from evidence that we've heard before from victims themselves too that seems to be the case so it was just kind of what feedback are you getting from people that are having to that are using that service and and how it operates. I think from our perspective there is some really good practice out there in Scotland some via officers who are really working very well at assessing victims needs prior to coming into court and passing that information through the system and victims themselves have said that they really do appreciate some of the work and the compassion of some of those officers in the local areas however that practice is not consistent and what we find is victims saying to us they actually don't know who their via officer is sometimes or the information is not getting passed to them they're left not knowing whether or not the special measures will be in place when they come into court they're walking into court without any knowledge of what's going to happen they're getting support through the witness service but the witness service as Marsha said sometimes has not been provided with the information to ensure that that person's special measures are in place and they're ending up getting a default special measure that sometimes is not suitable for them so there are real issues in terms of practice and consistency but I think it has to be borne that there are some examples of really good practice out there it's not all a negative picture but sadly for victims and witnesses it really does impact on their ability to give their their best evidence can I just add a footnote to that which is um I totally agree with everything Susan said but one observation I suppose on my part from having been relatively close to the coalface for a long time is that it's structurally if you're a victim you know the way that that our system is set up is that you know you have you have via one and in a very you know sort of tightly defined period of of time um and uh but that's not how victims experience the system you know they experience it from the first time they come to the attention of the criminal justice system um so we've created something that's that's almost not fit for purpose in terms of victims experiences because they're their support and their advocacy is well it's this person between this time and this time and it's if I'm lucky I've got somebody that's going to help me through the pre-cord and the court time but nobody to help me through the you know the post court time or this or what happens over sentencing or all of those things and I think um no matter how with the greatest will in the world and all the resource in the world the way it's structured at the moment is not terribly friendly to victims I would totally concur totally concur with that the seamless throughput is not there for victims and witnesses at all add to that I think what one post to development is the government funding advocacy services for people going through the justice system so just um last year we received funding to establish an advocacy service across Scotland for sexual offence complainers so that's because I think what complainers are looking for is support from the start right through and post court as well as the really important period I think where people are in need of support but I think to make this as effective as possible we need to make sure that advocacy services have decent access to information and I know that our advocacy workers sometimes struggle to get information from via which does make you think how is that for complainers that are doing it directly without advocacy support so I think we can do much more I do think it's something that's been considered really in depth by the previous asset genals review and I think we should we should consider that absolutely because I think that's what strikes me you just think if you were coming into that system for the first time and obviously the trauma of what you're dealing with in itself and as well as having to work your way through that and the different organisations that are being presented to you must be really difficult so thank you very much for that it was also just in terms of the evidence that was given by rape crisis and you highlighted about the the use of sexual history and character evidence in the evidence here and how but the most recent evaluation of that was done within the last 10 years there's just really to hear a bit more or more detail about that and are you proposing that another evaluation of that should be undertaken or it's been an issue that we've legislated on twice now in Scotland to try and restrict the use of sexual history and character evidence and sexual offence trials and the most recent evidence we have about how effective it is is now 10 years old it painted a very worrying picture I mean really the highlight I think or the the key fact the previous evaluation was that seven out of 10 women are virtually guaranteed to be asked about their sexual history or character in the course of a rape trial I think that should concern us all I think it's prejudicial potentially to jurors it puts women off reporting absolutely I think we just need to look at the recent Chad Evans case I think which our view was a it was a complete travesty what happened to the women in in that case so I think our concern is that we do not have an up-to-date picture of what's happening and how effective our legislation is in this area we had some data from the Scottish Government which we referred to in our submission on the face of it it's worrying to see such a high success rate in such a low level of opposition to these applications but really it's pretty meaningless data without any context because it is possible that some of some or many of these applications were legitimate or were made by the crown because the crown need to apply to introduce this kind of evidence so really I do think we need to have an independent proper evaluation of how this legislation is working my my sense is that things are better than they were 10 years ago or certainly in terms of sexual history they're better I think there's more and more of a focus in medical records complainers medical records being thought as part of abuse prosecutions which does not happen in this way for any other crime so really I think we just need a much clearer factual base about what's happening is this legislation protecting complainers and if not what should we look at doing about that I think it's a human rights issue especially in terms of access to medical records that are being brought up in domestic abuse cases it's very problematic we had a call to the helpline the other day where a woman was asking for information and she was given it and she said well I don't know if I'll call because they'll just lift me also and then they'll be looking into my all of my records to find my medical records and I don't think I'm comfortable with this and it's it has a hugely chilling effect on disclosure absolutely I just wonder on that point if the recent judicial review decision by lord glenny has actually had any effect now I'm told that that should be up and running and so advice is available to to the victims I think the lord glenny judgment was very welcome it only applies to the defence and what we know is that many requests to access records are coming from the crown office I think there is still an issue there in terms of access to legal advice for complainers in those circumstances I think it's really two stages it's the access to legal it's the access to medical records where somebody has legal representation if it's the defence but the next stage is then to go through the 274 275 process and I think it's that stage we need much much better information about but also I think that there's no point of having a right if we don't tell people about that right and I think we need to do more if somebody if a complainer is in the situation where the records are being sought they need to be told where to seek help I think it's not enough we've had one experience of what we've just been told that I hear in next week for all your medical and psychiatric records you need to get a solicitor and that this is somebody really vulnerable position who doesn't have a lawyer already where do they go that we really need to put proper processes in place but also I think we need a standardised form that really clearly sets out what's happening because I think it is still confusing to complainers and I think we're not telling them consistently they have this right to legal representation I think that's helpful Stuart followed by rona thank you I've got two quite brief points conveyor one of which arises from previous contributions and perhaps is initially directed at Marsha and that was simply on the allocation of resources there are specialist resources centrally and locally and I just wondered if you had a view as to whether in some of the smaller sheriff courts and I'm thinking for example in my constituency bam sheriff court is very different from Glasgow sheriff court whether there is sufficient business for some of the specialisms for specialists if they were to be located in a small sheriff court to to keep up to scratch with their specialisms and assuming you accept there is an issue around that do you think the right balance is being struck in other words I'm suggesting it isn't simply about whether there's enough money for resources but also whether there's enough work for the specialists well I would not sell myself as an expert on what all of the businesses that's running through the sheriff court small medium or large but I will say that it's likely to be at least 25 to 30% domestic abuse cases so I think under and no matter the size of the court domestic abuse is always going to require specialist competence and there can be case clustering there can be all kinds of things that make the process more efficient but I think from a human rights perspective we we can't decide that people living in Orkney or or you know wherever with the smaller sheriff courts somehow have less right to have properly trained and properly marked cases and properly prosecuted ones with that also apply to have others good views on that if not it's okay we'll move on it's not it's not it's not compulsory rona followed by ben then Oliver good morning and from previous evidence we know that a lot of victims and witnesses have defined the whole process of prosecution and being in the justice system very difficult a lot of what you've said answers my question but I just wondered if you could crystallise or prioritise the main issues that you feel still need to be addressed for helping victims through the system and witnesses I think from our perspective one of the major issues was touched upon by sandy earlier is that victims and witnesses need a single point of contact to come into the system potentially they only have to tell their story once they should be able then to have a throughput through that system without having to regurgitate everything that they've ever said before to 47 different people as they participate through they should be provided with a holistic assessment of their needs in order how to best to give that evidence and we feel quite strongly that the justice system in Scotland could do far less and far more if it actually introduced such a system and what I mean by far less is the bureaucratic notions that are in place at the moment and the administrative burdens that are on everybody in the system is quite substantial and I think a lot of efficiency and effectiveness could be cut if that throughput was there in a meaningful way for people I just want to add that I think sandy's point about advocacy services and sexual assault and rape cases is absolutely applicable across across the field which is that victims who have robust advocacy support have a better experience have less chance that they're going to become part of victim attrition less likely to withdraw and have a better sense no matter the outcome of the case at the end because they understand what's going on so an advocacy is not the you know the silver bullet is going to make it a wonderful experience but but absolutely I think it's the very first and most important resource for victims and it helps makes that experience seamless which it is so far from at this point but I also think that there needs to be a higher I suppose the that communication with victims needs to be a higher priority across the system system and from our perspective it's sometimes difficult to discern whether negative experiences of victims come through court processes through prosecution processes through police you know the the way the whole system comes together it's sometimes difficult to unpick exactly where you need to fix it but I do think that creating a system that is centered around the experiences of victims would would make the whole thing work better and be more efficient as well as be more humane can I just follow up on that point about good advocacy and just to put in perspective what sort of percentage would you say roughly of people actually get that I would not hazard a guess on that I can go away and try and figure it out and take a look at where this but also it will change significantly according to offence so I would I would guess that probably there's more domestic abuse advocacy available than any other offence and it's not anywhere near adequate okay thank you sorry just to answer the question about what would make a difference for complainers I think it's important to acknowledge that certainly sexual offences the vast majority of people who report rape never see their case get to court if you look at the statistics it's a very small proportion are prosecuted and I think that that does give lie to this notion that the crowner are prosecuting weak cases because of political pressure like fact I just do not think that's poor now certainly in terms of sexual offences and it is corroboration is the main reason that complainers in touch with us are being given but for those whose cases are prosecuted I do think cross examination is the single most difficult part of the justice process it's always going to be difficult we need to test evidence do we're not saying let's just like put women who say they've been raped into court and accept every single thing they say but I do think we could do more to get to the truth within our justice process and make it less of a memory test if you look at the delays in cases coming to court it's often at least a year and a half after somebody's reported a rape that the case has been heard in court and so much of the defense question focuses on very very specific details that are like slightly different recollections which are completely natural and sometimes somebody's given evidence about something that's happened 20 years ago I don't think the current process enables best evidence in these cases in particular I don't think they get to the truth necessarily and I think this is out with the scope of the review into the Crown Office but I do think the evidence and procedure review that the Scottish Court service is leading on would be a really welcome approach to enabling us to more get better evidence and more get to the truth in these cases thank you I suppose if we're looking at evidence and there's a problem with that being available at the appropriate time that leads to delays and it leads to very much the heart of our inquiry and what the Crown Procurator Fiscal need to put in place very quickly Ben Oliver followed by Douglas and we'll try and make our responses and questions quite succinct thank you thank you panel for your written evidence there's been much discussion already around communication but I just wanted to touch on the the support and protection of witnesses and complainers and victims the in the written evidence that was mentioned from from sandy about the process of trial and marshy commented on not enough preparation time prosecutors meeting with complainers and the not enough intervening in the court process to protect aggressive or questioning so I wondered if you wanted to maybe comment on that more widely and also Susan as well and on a separate point Tom I thought the mention of restorative justice within your evidence was was really interesting I wondered if you wanted to elaborate on that as well I'll just be brief I I do think more could be done to protect complainers in court there's been a number of high profile cases where in particular the Lord President has commented on the treatment of complainers during cross examination I think as we said in our evidence it's everybody's responsibility I think the judiciary obviously have a clear responsibility to manage what's happening in their court but certainly our sense and from working with complainers is that I also think the crown could take a more practical role would at the very least if they objected it would force the judge to make a decision on whether or not to intervene I think what complainers say to us quite frequently is they feel that nobody's protecting them in court and notwithstanding it's always going to be a difficult process I think we could do more to protect complainers in these circumstances it is the the single most common reason we hear for not reporting to the to the police as what would happen in court I echo I think all of those and certainly some of the the judicial behaviour over the last few months that we've seen in in terms of responses to victims of domestic abuse have caused us to come to a place where we feel that the system needs to change in in that there should no domestic abuse case should be heard in a court where the the sheriff hasn't had specialist domestic abuse training because that sets the frame for the for the treatment of everybody in the room and whereas we know we have limited influence over training of the judiciary certainly there must be some way that we could take a look at how we can but we're going slightly up the subject matter and given the time restraints we've taken your point on the on board. Tom the whole issue of restorative justice for me my background and some will know it was in a career in policing so I've worked in the justice system through my whole adult life and I'm now working in sacro in terms of those who have caused harm in the system so I'm not a soft touch just to and I'm not naive in that broad base of where I come from the whole my experience of restorative justice in Scotland is one for the countries almost split and you know that it's used extensively in youth justice with young people in lower tariff offences offences and sparsely in the adult system and there are areas when we started this journey for myself and I had to do a lot of fact finding to actually substance rather than it just being intuition so it was a lack of evidence of its effectiveness and you know there is a huge point there around coercive power and it's an appropriateness and domestic abuse a view which I share to just to be very clear on that but we've got to be very careful that professionals don't become gatekeepers to what people need in going forward and the fact is that we all have experience of those who access our services and there are those who don't feel our services fulfil the needs that they want and we in sacral frequently have to turn people away who ask for restorative justice victims and those who have caused harm as well and I just feel quite strongly about this that you know that the UK Parliament has published a review last year in terms because it was extensive the role out of restorative justice in England and Wales of where it has proven to be effective and where the shortcomings are etc so there is a body of evidence building up now but I do think that there is an opportunity in Scotland sentencing has two parts there's a bit of actually recognising what you've done and paying the price for that and the other bit is about rehabilitation and there's what's used for redemption moving forward and this allows people the opportunity to to repair the harm and to make peace and for people to move on in their life and that's importantly has to be victim led and the whole process is voluntary anyone can say I'm not taking part in that but it's not just about benefits to those who have committed a defence it's benefits to those who have been harmed by that offence and I think there needs to be a serious discussion in Scotland about where we are going with this because there needs to be a part in our justice system actually repairing the harm Ben, do you want to very quick follow-up as well Susan in your evidence you made reference to a duty of care and on occasions where the accused has been let out of the building during a trial at the same time or soon after or soon before victims and complainers I wonder if you could just comment further on that how widespread that may be because that sounds absolutely I was going to pick up on previous points but in relation to protection safety of people who cite witnesses to court and also during their experience within the court building there needs to be the protection safety of those witnesses up most in people's minds and what's actually happening is people are intimidated within the court building for example if they're sitting in a witness room where the door is open they can see somebody outside that door who they feel are intimidating them and obviously at the end of the court proceedings as highlighted in our evidence we've got countless experiences where accused are let out in advance of witnesses and they're then walking out to be intimidated and abused in some cases as soon as they walk out of the court building so that in effect we feel is something that we should look at as a society in terms of the protection and safety of everybody as they enter and leave and within those court premises thanks all and was it a follow-up on on that particular point folder? Yeah just a very very quick supplementary for for Tom if that's all right I'm wondering if he would be able to provide information on what areas aren't taking up the restorative justice to the same levels and given the time constraints I would be happy if that can be provided even to the committee after this. I certainly can give you Sackrose position but it's difficult because there is no central depository of where these services are available and indeed because of the investment decisions that are made they could be there today and gone tomorrow it's not seen as a core bit of the justice landscape. Sorry what's Sackrose position I was looking for because I was referred to in the papers. That would be helpful for us to see that and moving on now to Oliver and Douglas. Thank you convener I know all of the panel have touched on sort of communication and efficiency I was sort of specifically interested in the comments that Sackrose had made in their written evidence around the potential for improved IT provision and I wonder if that was something that Tom you'd be willing to sort of elaborate on and if any of the other anyone else had any comments I'd be interested in. I'm sure all the organisations will experience similar things in terms of getting not just access to information but Timmyus access to that information and working the principle that justice is transparent and open and case progress and decisions made by the court being available that those who have a real role to play can access it without having to ask someone where is it and allow us to intervene expediently is absolutely essential going forward. Thank you convener can I maybe ask all the panel when someone you are involved with has gone through the court process do you get feedback from them after every case either immediately or sometime later because Marsha you were saying that you know there's a whole range of issues that could put people off you know they've gone through it whether it's a communication. Sandy you were very clear it was the court experience was the biggest issue that would prevent someone perhaps reporting a crime in the future or being called to give evidence so how do you go about evaluating the experience and I don't want to put it like that because it almost sounds like a customer survey but how do you find out how people have felt during the process and who do you feed that back to or do you just store up that there is this great concern about the court process the lack of communication and really how do you disseminate that information with others with a view of trying to change things for the better for future witnesses. It's a really important point certainly in terms of sexual offences there's significant effort as going into improving responses but what we need to do is ask complainers about has this made a difference. So at rape crimes of Scotland we have a protocol with the police like an automatic referral protocol and part of that protocol is we do an anonymous survey with complainers to go through their experience with the police and also forensic examinations and we're then doing monthly reports to police Scotland detailing what this feedback is and it works very very well because it means the police have a really clear overview of what the issues are and if there's any issues coming up they can address them so I think that's a model that works well getting proactive feedback from complainers and using it to feed into practice it's also something we're looking we're in discussions with the Crown Office about a similar possibility because I think it is something we should be doing much more proactively is seeking feedback from complainers and then feeding it in to both the strategy work we're doing but also the direct practice of justice agencies. I think that the protocol is brilliant and the the difficulty within domestic abuses I'll just remind you that there were 60,000 almost 60,000 police calls around domestic abuse last year so we can't we don't have the ability to take a more centralized approach I think because the numbers are so much bigger so I think that in essence I think what you're asking is how do we how do we create a feedback loop in the system so that local practice can change quickly in response to what victims tell us and I think this is this is an issue that touches on one of the previous questions which is there needs to be enough capacity in all the players in the system to do local multi agency working because that's that's how you you create change you create a responsive system so if a victim has a negative experience that could be avoided and absolutely I'm taking Sandy's point on board that sometimes it can't be but that could be avoided either through improved communication more timious information whatever it is the only way the system's going to respond to that is if it feeds back locally because they're usually not central strategic considerations and I will say that one of the first thing that goes in a system that's stressed for resources is multi agency working because it takes a lot of time but it also delivers the most the most important improvements in in local systems so I think that's a really important question for us to look at is how do you how do we improve and how do we resource engagement with the other agencies because that's where you get that feedback from certainly the the experiences that I had when I was in West Lothian told us that when that works it works beautifully but everybody needs to be at the table we also have quarterly meetings with the police and the crown and bringing together all the rad because they workers from across the country so that there's that direct link between the issues that complainers are facing and the police and the crown and that information shared in that forum for raising any issues seems to work really well as well. Let me just say one more thing. I will say that okay I will be very quick I will just say that my our experiences because we work really closely with the crown office and with Emory Hicks is that we've had a really good experience when we fed back into the strategic level of the organization problems that we're picking up a pattern with but I think there's a disconnect in part between what happens at the strategic level and what's then followed through with the local level. Susan and Tom. Yes we have a range of different mechanisms in place our witness services there on the day so people feedback immediately sometimes some people just want to get out of the building but others will feedback on the day to our witness service their total experience and that is then fed into some of the local via teams if possible alternatively it's fed up into our structure and we then use that as experience in some of our evidence and also some of the work that we do at a strategic level with the crown as well. In addition to that we as an organization undertake surveys and also I know the Scottish courts and tribunal service have also undertaken surveys so there's quite a wealth of experience out there and we try to use that experience at the different policy levels and practice levels that we have. Tom. There's been much more at the personal level I don't think we're doing that analysis that you'd be seeking. Okay Liam are you just very quickly want to follow up all of us question and listen to communication the availability of the information and transparency around cases we've been way aware of I think a one instance where the information provided to a victim on the state of the case wasn't just so it was actually incorrect which is a sort of real concern and I wonder whether through better use of IT that information could be made available not just to the victim the witness but essentially to anybody other data protection issues around that potentially and to what extent are victims or witnesses expecting a bespoke communication of progress on a case or whether that more generic provision of updates on the progress of the case may be sufficient to keep them abreast to make them feel as if they are aware in a timely fashion as all of you have referred. Wasn't a short one important. Okay good answer. I think it'll be both. There'll be generic information that everyone needs to see the general progress but there will always be bespoke specific information for case for victims, witnesses and those who are being prosecuted. So the Crown Office actually piloted with Victim Support a case progress information service in Tayside for a couple of years and one of the experiences of that was that the information was rapidly changing and the IT infrastructure was not in place to enable a smooth transition from victim support and also from the Crown the Scottish court system into victim support so that we were able to update victims and witnesses. What I can say is from the experience of the victims and witnesses it was seen as a very very positive move that they actually had somebody to talk to about what was happening but the reality was our member of staff was running backwards and forwards three or four times a day across the road to the court to actually get accurate information because that information was changing so there is inaccurate information that's out there and people have been provided with it routinely so an IT structure should actually assist that as long as it's accurate. Okay, thank you. Just before we close this session can I ask you about the decrease in the use of recognition and specifically Susan in your submission you've mentioned that which means it's led to unsatisfactory outlands sometimes the Crown Procurator Fiscal not being adequately prepared that these third gennements and so on. Yes we have experience of individuals who feel themselves that they have not been able to give their best evidence because they've not actually talked to anybody about their evidence in advance of coming into the court arena and we know that in the past when precognition has been in place people have felt that they've been able to get some information across in addition there's also the aspects of the assessment not necessarily being carried out now by VIA which is meant that people are walking in without that knowledge and without the PF and also the Crown able to look at that individual's needs as such they're getting special measures that they don't necessarily feel are right and they then say to us they don't feel that they were able to give their best evidence because actually they're terrified we've got examples of people who have been so distressed they've been unable to speak because they were expecting a CCTV remote site and actually they ended up in court with a supporter and a screen because that was what was provided and they said I physically couldn't speak I couldn't actually give my evidence and therefore cases potentially dropped or adjourned because of that. What would be the reason for lack of use of precognition? Is it a resource? Is it a cost thing? I think you would have to ask. I think our humble opinion it is about resource rather than anything else in people's ability because of the volume that's coming in now. Paul has made a decision to move away from precognition but doesn't apply in sexual violence cases and in most rape cases precognition will still take place. Thank you. That's been very very helpful. If there's anything that you you know go out and think cool I should have said that please add it we're happy to to receive anything else but from people who are very familiar going in and out the court that's been a very worthwhile evidence session thank you all very much. I'm going to suspend briefly to allow the other panel to take their places. Before I welcome panel two I believe Stuart Stevenson you've got a brief declaration. I'd just like to declare that I sponsor Michael Clancy's parliamentary pass. Thank you for that. It's my pleasure to welcome Liam McAllister on the Aberdeen Bar Association, Stephen Manfield from the Edinburgh Bar Association, Lindsay McPhee Glasgow Bar Association and Michael Clancy from the Lost Society of Scotland. We've had apologies from Paul Nicholson of the Erdrey Society of Solisters. Could I perhaps start by referring to one of the submissions and quite well through it I think it was the Edinburgh Bar submission I'll just double check that no it was the Glasgow Bar submission and I thought you know this was quite apt and it might help focus the the discussion can I say at the beginning the submissions have been so very worthwhile and have provided so much for us really to to look and see where we can make improvements but the the line I was looking at the paragraph was obviously it's right that such serious high court cases in sheriff and jury proceedings are prepared and prosecuted thoroughly we are concerned that the standard summary cases are also accorded appropriate attention the public undoubtedly would expect that serial instances of drug drugs public order dishonesty and violent offences are properly prosecuted by well resourced and properly supported deputes whilst the very significant impact upon the public of high court offences cannot be overstated it is the case that many more members of the public will be affected by such offences generally prosecuted at summary level so if we use stats kind of starting point could I invite comments on where improvements could be made thank you and members of the justice committee we're grateful for the opportunity to address the committee this morning and thank you for directing me to that paragraph I think it's clear from the general tone of the Glasgow Bar Association submission that whilst clearly we're extremely concerned that domestic abuse and more serious cases are prosecuted at a very well prepared level it is our experience in Glasgow that what I've referred to as the standard summary cases are the ones that are at the moment being very badly impacted upon by what appears to be a lack of resources and that is our it is the main thrust of the submission as I think outlined in another paragraph of our submission the deputes are trying sometimes to deal with up to 10 to 12 cases all scheduled for 10 o'clock all with numerous witnesses and as I think I indicated what I've referred to as standard cases as a non domestic abuse cases can include very complex and difficult cases I think I referred to what are colloquially known as benefits fraud cases and perhaps sexual offences a standard assault case and I see standard to distinguishing domestic abuse can involve child witnesses so a standard domestic course in itself is extremely difficult and we are concerned that these are being overlooked in the current situation okay anyone else like to add to the kind of day-to-day problems that you experience thank you I would like to express my thanks for inviting me down from Aberdeen to speak to you today I would echo what Lindsay has said I think the resources are there it is about where the effort to the time that deputes have which is very limited should be and can be focused and I think the thrust of the very short and punchy approach from the Aberdeen submission was the fundamental point here that I think the committee need to understand in order to have an effective co pfs is that the discretion of deputes to channel their intellect to channel their critical skill their evaluation of evidence or potential evidence and prioritising the ability to prioritise that very low level in a busy court with you know a fearsome sheriff breathing down your neck that has to be where these deputes are allowed the opportunity to do that and they're not confined or restricted to having to go to three managerial levels above them to get authority to do that focus your attention on where they think the public interest is I think that's very important and so I would echo what Lindsay says in that regard in terms of going to someone above is that because it's a short term contract the person who is dealing with it is relatively inexperienced and doesn't feel competent to I think that is a factor that's the perception that the Aberdeen bar would have and the north these generally that I think one of the submissions speaks about it that we give deputes the power and the huge power and authority that they have to prosecute crime in our courts from a very early age but we constrain that we we curtail it in certain cases and I don't know why we do that we should either give them the ability to be lawyers to think analytically to think like lawyers and act independently or we don't and I think there is a fear element I don't know it that was the perception that the Aberdeen bar have that there is a fear that short term contracts not knowing whether or not you're going to be kept on after a traineeship because it's often second year trainees who are thrown into courts up and down the country rural courts where there often isn't anyone they have to make calls they have to adjourn courts to do that these are all limiting the decision making ability of deputes at a very low level and creating the churn that is so hated by witnesses by complainers and and by accused and by churn just to explain that term it's a case continuing and being adjourned and reappearing again so if it was dealt with efficiently in the first instance then obviously the benefits are huge in terms of freeing up the court and access to justice absolutely absolutely okay if I could just start in from one convener leaving side the question of policy decisions for the for the time being looking rather the question of resource excuse me I think it would probably be reasonable to say that the the types of resource and the time that is allocated for preparation for domestic cases that's probably in an ideal world the way it should be across the board the difference that you can see is that in relation to a court which is not dealing with domestic cases which could as Lindsay says involve for example a complicated fraud there might be a drugs case that involves forensic evidence there could be child witnesses the deputes that are dealing with those courts aren't being afforded the same time to prepare and engage and just make sure that the cases are ready to proceed and it's always a question of finite resources but if there are an opportunity to allow more time for those cases to be prepared as well rather than taking away resource from the domestic cases and I think that would be ideal one thing which I hope is clear really from all of the submissions that the that the committee have received is that we all consider ourselves quite lucky as far as the quality of the the prosecutors on this country are concerned that there are a group of very dedicated intelligent lawyers really at every level but it's a question of giving putting them in a position to allow them to do their jobs to the fullest of those abilities I think more than anything else I think that's an important point that's come very strongly through in all the commissions this is not criticism of the deputes who are struggling monthly on onward and the whole point of the inquiry is to see what can we do to to help to help them do their job as efficiently as possible and anyone else let's see thank you convener yes I think I would echo some of the comments which we've heard of course the procurators fiscal depute who work in our courts day in day out are dedicated hardworking professionals who prosecute in the public interest and we depend as citizens on their hard work and dedication and of course they are working as Audit Scotland's report shows to an extremely high degree of 88,000 cases prosecuted in our courts each year in the sheriff court and of course that against a backdrop of a lowering of resource from government year on year so between 2010 and 2015 the government's overall budget fell by seven percent in real terms and over the same term the overall budgets of the Crown Office and procurator fiscal service and the Scottish court services then was fell by 14 and 28 percent respectively so that shows that the the staff in cops are working very hard against very difficult circumstances that's a point well made Ben I just wanted to ask on on a matter that wasn't raised directly within the evidence but I think it is of pertinence and that's around expert witnesses I just wondered if any of the the panellists would like to comment on the the process of calling expert witnesses the cost involved and whether you think in terms of the those that you represent there is room for efficiency and development in that area well as far as the process is concerned obviously the vast majority of defense work is done under and through legal aid so it follows that the the cost of meeting the cost of using expert witnesses is also met from the legal aid budget in terms of the the process that's involved the particular defense law would be expected to identify an expert at least one expert depending on cost specific a specific request would have to be made of the legal aid board once the costs were known for sanction for funding to meet the cost of employing that witness and thereafter the witness would be instructed usually to prepare a report and potentially if there was a trial on the case to come along and give evidence in the court that's not always the case because sometimes expert evidence can be agreed in advance which would avoid that necessity as far as the actual cost of employing experts I don't know if my friends in the panel would agree with me but I think anecdotally the cost of experts themselves is increasing it is well taking a specific example I think it's fairly common now there is a standard allowance for getting a basic medical report from an accused person's general practitioner there's a set fee now for whatever reason it's becoming a more common experience for general practitioners to respond to requests for reports of that nature say look we're really sorry but we're not prepared to do the report for that fee and then the defence and by extension the accused person are left in limbo because the report might be absolutely necessary for one reason or another in relation to the defence but because there is a gap between what the legal aid board will pay and what the general practitioner will accept as payment you just can't get the report so I mean that's just a very narrow example but thanks for that it's very helpful perhaps I can refine my question slightly around potential use of technology and helping to enable expert witnesses to give their evidence more efficiently and also in a way that's less cost effective for all involved would I be correct in thinking that you might be asking about for example the possibility of experts giving their evidence by live television link or something of that nature exactly I think that's plenty I'm just speaking for myself and for our association I think there is plenty of scope for that I mean the use of TV links is something which is being introduced more and more not just through actual court hearings but for example facilities are now being made available for lawyers to consult with their clients who are in custody by effectively a Skype or a TV link obviously has to be a secure link because of for reasons of confidentiality but I can't see any reason why expert evidence couldn't be treated more often in that way if the expert doesn't live within reasonable travelling time of the particular court that's supposed to appear in I think it would be important to distinguish between dealing with expert evidence in that way and for example simply I don't mean simply but a normal if there is such a thing eye witness because then there's the court will have more emphasis on assessing the demeanor of the witness and giving evidence and the credibility of the witness and giving evidence which I think I think would be fair to say probably isn't such an issue when you're dealing with an expert so yes I think that there is scope for dealing with it in that way more often thank you I think if one looks at the evidence which the committee received from the three medical examiners Dr Cumming and his colleagues Dr Henderson and Dr Jimison you get a sense of a creed occur here that these experts are being put upon to do superhuman tasks one person talks trial location is being a qualification for the job and another talks of an incipient crisis because at one point he essentially predicts that there'll be fewer and fewer doctors who will do this kind of work he chooses to remain in this job he says so I think we've got to be aware of the the nature of expert evidence that it's clearly important with complex cases revolving around difficult issues across a range of points not necessarily simply medical but maybe in other forensic areas such as forensic accounting or areas such as that that we must be prepared for the future too and now is the time to invest for the future to make sure that we get the right level of evidence the best evidence on which the courts can make the decision thank you it was on this point a follow-up maybe was it it was on a point that was made earlier and then I wonder if I could perhaps come back to evidence in the submissions particularly from the Aberdeen bar association about the inability I suppose for ffiscals to be able to exert their judgment and I noticed the the evidence from the Edinburgh bar association spoke of the leaching of the ability to use judgment and I wonder if you could perhaps explain a bit more exactly what you mean by that is the removal to use your own judgment is that done by dictat or is there a lowering of the the level required for evidence to take cases forward in particular types of prosecutions and on the back of that if you are taking forward cases that you think should not go ahead what impact that has on the perception of judge justice for both the victim and the person accused if I may respond to that I think that that is the fundamental issue that the Aberdeen bar wish to reflect and convey today and I think it's an important one unfortunately the reality of our criminal justice system and in particular our our lower level courts are that pragmatism and flexibility are unfortunately essential to have a system at works there is a perception there is a perception from the defence bar in the northeast that there is an eradication of a willingness to make decisions at a very low level or a willingness to use discretion and the sooner or the more readily available it is that that can be filtered down to a lower level I think that perception will eradicate and therefore all stakeholders including the accused will have a better idea or a better viewpoint that justice is being seen to be done I think that can only be done as it filters down to a very low level I think it's it's a very difficult decision to make at times whereby you are being asked to be critical of witnesses or you're being asked to look at it from a purely legal sense when you have the pressures of public perception behind you but I think that's what's fundamental to our prosecution service is ensuring independence and someone who can back them up all the way if that has been a justifiable a justifiable decision it can only come from within it can only come from those higher up the ladder backing them up can I just ask you then on the back of that if you don't mind convener when you say to back to back them up are you talking about then all the support services all the victim support services they should be on board with the reason why someone something isn't taken ahead the support that someone will need to be given and that they are fully on board with the whole process to be able to support someone if something's not taken ahead yeah I think it would make the decision making process easier and I think the more involved I think that the previous speakers before the committee this morning all conveyed that the issue of communication is fundamental and the more involved witnesses complainers victims are in that decision making process the more they understand what the legal constraints are what our law actually is the easier it may well be for them to understand why certain decisions have been made that may often be the decision that no prosecution is made unfortunately that's the reality of our of our system that is just a practical reality the more informed people are as to why such a decision is made the better useful line of questioning wasn't however a follow-up so I'll be more straight next time someone jumps to the queue each year I've said in the panel today that you feel that the summary court process could could be better could be improved could I ask what what it is that you think the real term outcomes are for people in the current situation is is it the fuel that there's miscarriages of justice that justice hasn't been done or that victims or those accused aren't getting the proper service what is it you think for the for the public in real terms is has the outcome of summary courts not been treated the same priority as a result of a lack of resource I think would be the the main one that I would I would want to mention I think that's something that's probably mentioned in everybody's response there's a situation whereby in any summary criminal prosecution if there's been a plea of not guilty there are some months down the line there's a procedural hearing called an intermediate diet the purpose of which assuming that they accused is still pleading not guilty is largely to check that both prosecution and defence are prepared for trial and if they are the case would be carried on to the to the trial itself which would be a matter of a few weeks later now just as a for instance one of the principal issues that the court would deal with at the intermediate diet is whether or not prosecution witnesses have been cited to attend at the trial now it's extremely common certainly in Edinburgh I'm sure in other jurisdictions as well that the information that court would be given at that stage is no we haven't cited the witnesses or the the citations are out to be given to the witnesses but can we continue on to the trial in any event now the the problems that that creates is that you arrive at a trial oftentimes and the witnesses still haven't been cited or a sufficient number of the witnesses haven't been cited to mean that the trial cannot proceed and then as a result of which either the prosecution will be adjourned to later dates or depending on the procedural history of the case that's to say how many cycles of this procedure have been gone through the prosecution might be brought to an end by the sheriff so just looking at that narrow issue you've got a situation whereby either victim or complainer accused witnesses who have attended and other people involved in the case are having to are having the thing delayed for several months justice delayed potentially either for the complainer or the accused depending on the the facts of the matter or a prosecution which might be entirely properly founded is being brought to an end simply because I think that the procedure isn't as far as citing the witnesses having been done properly now that would apply equally to circumstances cases where for example a piece of evidence hasn't been disclosed or a report hasn't been obtained that's not always it has to be said the fault of the crown because they're reliant on other agencies to get these reports but that would be those are the types of problems that we have just as a follow-up to that during the last panel we heard a wee bit about diversion schemes and perhaps an inconsistency of their use throughout the country you know even just briefly sort of one answer on it what's your view what's the panel's view on diversion and do you think if that was used more regularly more reversely that would free up the summary court prosecutors I mean I think it probably is an answer which would have to be given by members of the crown office and procreator fiscal service it would be up to them presumably to decide which cases they thought were appropriate for diversion but I think what we're finding in the summary courts at the moment that there are a whole range of cases which because of policy wouldn't be deemed appropriate for diversion racial offenses homophobic sexual offenses so that as to return to the point that a standard summary court can contain a whole array of of these cases which presumably have not been deemed appropriate for diversion I'm slightly going back to answer another point that to alleviate perhaps some of the pressure on the summary courts if the crown office and procreator fiscal service perhaps had a clear structure of how senior you have to be before a decision could be taken in terms of discontinuation of proceedings or we wouldn't have a situation where a relatively young deputy would say well I can't make that decision or I'll have to go and ask someone more senior if there could be a structured in place where a defence agent could identify in advance that okay I have to go to a rank of a senior deputy to make this submission to them to decide whether a decision can be taken in this case that might alleviate some of the pressure on the the deputes in court verify it's not you maybe to free up court time but a more appropriate referral and disposal so that that's dealing adequately and properly and efficiently and the best way with that individuals particular needs which means that hopefully they don't re-offend and they don't appear back in court I think maybe that was the and the point that was being made about these referrals and diversions not being even a local letter even aware of what's available there which is a huge resource wasted absolutely right convener and that takes us back to the problem of having rigid prosecution policies because you're in a situation where there's a but I'm using domestic cases as an example because that it's a huge issue in terms of resources and as a problem across Scotland as a type of crime but there's a situation whereby for example a 70 year old we'll say a 70 year old man with no previous conviction there's no history of police call outs to to the house as a result of any domestic complaints there might be a situation where neighbours over here allowed in quite aggressive argument between the gentleman and his wife of equally good character and age they call the police the police attend the married couple explain to the police what's happened have no reason not to they don't think that either of them has done anything wrong but that then amounts to and is classified as a domestic incident now the issues that then stem from that are the policy is that that person will be arrested if it's on a Friday evening that person will be arrested and held in custody all the way through to a Monday whereas somebody who perhaps has three or four criminal convictions has been arrested in the centre of town for involving themselves in drunken violence might be released on a police undertaking or even just kept overnight at the police station until they sober up so it's entirely right and proper that domestic crime is taken seriously it's prepared properly and is prosecuted to the fullest extent of the law but the problem in having rigid policies about how they're dealt with is that's the type of situation that arises now i know that sounds like an extreme version of it but it's not as uncommon as you would like to to think the issue of course of diversion was identified in the audit scotland report again last september and they identified that of course there were police officer alternative measures as well as decisions by cops and when they gave the statistics on that it amounts to something like 50 percent of all cases so they they dealt with in a quarter of a million individuals and over and 50 percent of them 126 000 of these individuals received a non court disposal so you it's quite obvious miss McPherson that that if all those cases went to court there would be considerable difficulties sorry if i might add to answer mr mcpherson's question more fully that i think it was actually mr mcpherson oh sorry i do apologise i think as the crown office procreator ffiscals or ffda union have indicated the profile of cases now reaching court and proceeding to trial can involve very complex and difficult cases the nature of which they're likely to proceed to trial and so just to follow up that means that many more cases are going to proceed to trial there won't be a ready acceptance of responsibility for the nature of cases that are being prosecuted which i think makes perhaps diversion more difficult okay douglas followed by uh not after the last experience we can keep it and bring it in at the end douglas followed by Liam then john and rona thank you can be there can i ask about centralisation in terms of the communication because all of the submissions have mentioned glasgo mentioned specifically about the cost of the the hotline that you have to call to contact solicitors you all mention or certainly Edinburgh mentioned that you just take it for granted that your first letter will go unanswered which i think is despicable you know it's unacceptable and uh i'm particularly worried to read that but then i also read in the glasgo submission you say there have been discussions about this i thought okay we're trying to solve it discussions have been ongoing for five years you know really how can we have any credibility that changes will happen if these things are highlighted when you've been ongoing for so long and really could you expand more on the difficulties that you experience with this if i i could perhaps echo Stephen's comments that we have a massively positive working relationship with the Crown Office and Progrative Fiscal Service in Glasgow they're all extremely hard working dedicated professionals we have a great deal of professional respect for them and i think is a highlighted in our submission it's a very difficult situation for a young deputy to be in standing before a sheriff being asked to explain why a letter hasn't been answered or a phone call hasn't been returned sometimes the deputy is even unaware that the letter has been sent and there is a will to try and resolve these issues the plea hotline was set up after discussion and it works well for a while and then the deputes are deflected to do other business you know they have to go into court there just isn't anybody there to man the phones or to deal with the the numerous pieces of mail it is the case unfortunately that we telephone a business rate line and to the call centre and it seems like a very basic and pedestrian point but we are told specifically by the call centre operator we are not allowed to give out the direct dial number for the the young or any Progrative Fiscal i have to stress that if you meet the fiscal the following day in court they'll say of course here's my direct dial number i'll text it to you there is no unwillingness on their part at all um but it makes it very difficult sorry it makes it very difficult for me to understand then that there's been a problem on going for five years when both sides seem to agree that direct contact is the best way forward because it then saves the fiscal depute being embarrassed in court the fact that a letter has been sent to them scanned into some central reserve that they never see yet this has been on going for so long you've got both sides agreeing the way forward but you've got someone sat in a call centre not willing to give out any information surely it shouldn't it shouldn't be that difficult to say well there's the problem area there in the middle at this business rate number let's uh you know take away that function or just go direct because presumably if you've dealt with one uh fiscal depute in the future you don't then call this number you call them direct yes that's correct we just store their number and then um i think it would have to be a much wider policy decision that that these direct dial numbers can be given out and there's clearly not um you know it clearly can be done i think is a highlighted in terms of the solemn case structuring at the moment the Crown Office and Pregnative Fiscal Service in Glasgow came along in advance of the practice note and we now have a sheet of numbers designated or with the designated fiscal with their contact number which makes a world of a difference so i don't think there shouldn't be any reason why that can't be done in summary cases um so i fully agree that it's very puzzling why um why it's not being rectified before now and the willingness of fiscal deputes to give out their own number is replicated across the country yes i mean the the switchboard um often it feels as if it's a a barrier a deliberate barrier that you have to get through um in order to to communicate with somebody about a case it's not um it's not something which i think has helped at all i'm not sure what costs are involved in having it i suspect that it might it might actually be even more expensive to have the thing rather than simply have people dealing with their local offices i don't i don't have the figures that are involved in that but it doesn't seem to me to serve any useful purpose i echo all the comments and observations made by the panel regarding centralisation of communication doesn't work it has to be on a regional on a local level our very system is based upon a defence lawyer and a prosecutor standing up in court communicating with each other in whatever form that may be but again echoing the fact that procurator fiscals are want to interact with defence agents they want to resolve matters quickly for everyone concerned they want to get things resolved if they can be communication is a major factor one of the things that has been introduced is the cj sm secure email i have not the Aberdeen bars experience has been that has not been overly positive um if you're sending letters by first class mail and they're not getting placed into the relevant files when deputes appear in court um we're finding exactly the same process is happening with what is supposed to be a far more secure far more technologically advanced that the way that we all want to move towards um you know a more um sensible option is using email we all use it now um in our private practice it's becoming so important yet there are breakdowns there where emails that are supposed to have that have been securely sent are not finding their way to a lawyer i a procurator fiscal depute who can analyse the content of it and make a decision that will help avoid churn that will help avoid trials going to trial that don't need to go to trial and will resolve things for everyone concerned not just the accused but the complainers witnesses and victims could i move on to another issue in the Edinburgh submission about um it was reported in the press over the weekend about the court system you know backlogs impact that has on witnesses both the victims of crime police witnesses um and also the impact it will have on the accused and such like and you make the point uh or it was certainly put across in response to some of that criticism that you know the management is as good as it can be you know they try their best to manage the cases yet the Edinburgh submission says when it appears five or even six backup cases have been called it is clear that mismanagement is at play i know that's particular to you know when you have the two week period but could you just give a bit more information on on the management side generally in courts you know across your areas and also maybe more for Aberdeen i'm not sure perhaps Edinburgh as well could i ask uh how much of an impact there's been with the closure of some of the more local courts and then the case load going on to other courts well in terms of management if i could deal with the the last matter that you raise um first to do the wrong way around um the closure of um for example Harrington Sheriff Court in our own jurisdiction has had a massive effect because the portion of the Edinburgh bars submission which talks about mismanagement of solemn cases that's the i think the portion that you that you refer to Edinburgh is now dealing not only with all of the sheriff and jury or more serious cases for the Edinburgh area but also all of the more serious cases for East Lothian which previously would have been dealt with at Harrington at least the majority of them have been dealt with in at Harrington as far as general mismanagement is concerned um there are there are big differences between the procedures that involve for summary cases and for solemn cases i mean that much is self-evident that as far as summary cases are concerned overloading of trials courts is a problem um that's not something that was specifically raised in our submission because it's not just a matter that is linked to COPFS but also the Scottish court service and just the the court resources that exist so i don't think it'd be fair particularly to criticise them for that um as far as um sheriff and jury cases are concerned it's there might be 10 or 12 cases marked down for a two week sitting of the court um the deputes are i know under pressure to actually run trials during that two week period but there's almost a scattergun approach in terms of well we'll just call in four or five cases see what witnesses are here and then we'll pick one and crack on with it um the fact that i find myself using the word scattergun in that description i think will give you an idea of the the type of problem that's involved i don't know if Aberdeen wanted to mention about the local i'd be interested in that as well yeah i think um clearly in Aberdeen we've been affected by the closure of stone haven sheriff court um and the volume of business in Aberdeen has increased i think um Aberdeen scott at the court service um has a good approach to trying to handle that i don't think the apparent saving that has been or would have been would have resulted in the closure of stone haven sheriff court has then been filtered back or fed back in to the resources that the co ps should have to tackle the increased volume of business i would say the majority of that volume of business is at the lower end of the scale the the justice of the peace and summary court sheriff summary court business um but i don't think it's been the co ps have been given the additional support that's the perception from the Aberdeen bar i would say that the closure of stone haven as a sheriff court in of itself um has caused i think there was a very very sensible recommendation made before the closure of stone haven sheriff court and that was and i think touching upon stevens point the jury business in Aberdeen is significant stone haven sheriff court would have been an ideal court to sit permanently and there would have been enough business there would have been enough business for stone haven sheriff court to sit regularly daily conducting jury trials taking the strain off of the Aberdeen market gate building which Aberdeen being a centralised area there is a high court sitting in Aberdeen almost all the time that's that's another court that we do not have to have sheriff jury court business so there has been an effect in terms of volume of business has that been reflected in co ps being given the resources to manage that in Aberdeen no is my respectful submission on behalf of the Aberdeen bar could i ask a final question sorry very briefly on agreeing evidence and what's the biggest challenge to agreeing evidence is it the communication issues we were speaking about before and how do we overcome that because it seems again that there should be will on both sides to agree evidence to speed things up to save some witnesses coming in i particularly often look at police officers who spend a lot of time waiting around courts rather out on our streets to just read out of their notebook evidence that really should be agreed beforehand and i noticed in the submission from edinburgh again you know the example of cctv evidence that could almost you know do you away with the need for a trial if it was presented earlier rather than often on the day so could you very briefly to keep in the convener's favour given answer to that communication issues is the main issue and to touch on the speakers who were addressing the committee earlier in terms of keeping witnesses and complainers informed the earlier that the crime and the defense communicate to resolve issues the better for the witnesses and the complainers and i think the example given by the edinburgh bar association with guards to cctv is is very appropriate because as i think edinburgh indicated immediately the item of disclosure is available it will decide often the issue one where the other and as soon as the crown and defense can speak to each other about the agreement of evidence that could save a huge amount of court time and witness expense and inconvenience but again it returns to the the issue of resourcing and communication i think the there have been significant improvements in solemn business in Glasgow in terms of communication because the resources have been directed there in advance of the practice note being issued and this was the practice note issued by the lord president and lord justice general who was at that point the lord justice clerk and there is now a focus upon pretrial preparation prior to the first diet and to focus on issues of agreement of evidence which can then be reported to the sheriff at the first diet that now witnesses five to nine are no longer necessary for the trial so if similar resources were directed to the summary courts there could be similar savings accrued there that's a late production potentially that can cause all the problems and all the benefits not being realised whose duty is it to to make sure that that ctv is available and got from the police if you like best who'd be obliged to ensure that the evidence was ultimately available but again it's a situation where they are reliant on the police you have to engather the cctv evidence from the witness or the location where the the footage was filmed so there's a chain of responsibility but ultimately the responsibility would lie with c o p f s in that regard i think just on this particular point it's only fair to to make mention that it's a problem which is plain c o p f f s or aware of i know that inquiries are being made into the viability of forgive me if i don't get the terminology absolutely right but i think a virtual evidence vault whereby when the police take possession of cctv it would be uploaded to a secure system to which access could be allowed at an early stage both to the crown and the defense i think of necessity the crown would get first access to it but if that's something which can be brought into existence and it's very much only at the the talking shop stage i think that's something which would help so these are good practical examples of things that you know we can we can focus on in highlight Liam John followed if you've still got your follow up thank you convener Douglas has has helpedfully gone over some of the ground in relation to centralisation and also the the closure of sheriff courts which i think have given rise to some concern but following on the the point in relation to the the opportunities in terms of encouraging more agreement on evidence prior to practical cases coming forward and there seems to be a a view that's been expressed to us over recent months that there's quite a bit more scope there to make improvements i think from what you've said i'm getting the feeling that you don't necessarily ensure the that view that there is a great deal more that can be done or that it would have a great deal of an impact in terms of improving the efficiency of the work of our court system is that is that a fair conclusion to draw depends on the the nature of the case you know if on a case where it's dependent upon eyewitness evidence and the matter of perception of the witnesses and their demeanor then that won't be capable of agreement but if it's a case where i think it's been touched upon where expert witness evidence might be to speak to specific issues of fact then that that no doubt it could be right for agreement it might be helpful to explain that the trigger in every summary case for disclosure of the crime case is what's called the letter of engagement and as soon as the letter of engagement is received by the procreator fiscal which denotes that a defence agent is instructed for that accused then the disclosure is then uploaded and we can receive it and the sooner that is received then identification can be made of which areas of agreement or sorry which areas of evidence are capable of agreement so certainly you know i don't see any difficulty with their being more use of agreement of evidence dependent upon the nature of the case but it comes back to the trigger of everything being available for the intermediate diet which is the calling of the case before the trial and at that stage it is the case that the procreator fiscal will say well is the evidence of witness why capable of agreement and providing the disclosure is in your hands and you've had an opportunity to discuss it with the client then an answer can be given then in the year and that witness not not necessary not necessary for that witness to be called. Some of the problems that the court system is struggling with at the moment would defeat some of the aspirations in relation to to earlier disclosure as it is. The sooner you have the evidence in your hands or the sooner in proceedings that you have access to it the better able you are as a defence solicitor to assess whether the evidence is capable of agreement if for example as unfortunately is not unknown you arrive on the morning of a summary trial and you're passed something across the table before that i don't mean immediately before the trial begins but on the morning of the trial oh such and such a witness can't attend today for whatever reason it might be a police officer is on other duties or really anything can you agree their evidence then in those circumstances you're almost duty bound say no I'm afraid because you're not in a position then to have properly considered it in the context of the evidence and whereas if you'd had it before the intermediate diet you could have dealt with it if for example the evidence couldn't be agreed you might be able to postpone the trial at that stage rather than get all the way to a trial with witnesses having been cited in attending court with all the attendant expense and worried that's involved in that so to cut to a long story short the sooner we have the evidence the better able we would be to to consider agreement and the more evidence probably that could be agreed just a final observation to the point of agreement of evidence something I think the committee has already picked up on in light of the previous speakers and panel was recognition and the lack of it rather in COPFS in the majority of cases there is an agreement there is a there is a duty on not only defence agents but on the crown to agree evidence and that includes the defence evidence and there is often not the there is not enough time for deputes to consider defence evidence properly that might sound perverse but they're focusing on their own case a lot of court time could be cut down if they were given the time to precognise to consider the defence evidence be it defence productions witnesses experts or there may be I think Mr Ross made the point that police officers are called to give evidence where it doesn't seem like there is a lot of dispute in what they are saying or adding it might be there are just some matters that a very short precognition by the deputy might avoid that police officer having to come to court at all it could be drafted in the form of a joint minute something could be clarified a very small point a paragraph or two could be clarified and that witness is no longer needed so there is an onus on both the crown and the defence to agree evidence but often we forget that because of a lack of time to consider all the evidence i the defence evidence ffiscals don't have the time to consider it they just think well the onus is on you to lead it on you go we've lost these concerns which we've heard are genuine and immediate and we ought not to forget that there is an on-going evidence and procedure review which is looking at smartening up the summary justice system and the use of technology is going to be a key issue in all of that and if i can hopefully inspire colleagues to look to sunny uplands in the future you know the use of digital captured evidence documents photographs cctv the whole gamut would improve the agreement of evidence procedure immeasurably and i think we've got to encourage the courts and tribunals service to take on the challenge which the lord president issued to have clear sky thinking and that would also involve changes to procedure and changes to the way in which the evidence of children and vulnerable witnesses is captured and used and i think that the the space which we can get to where the courts are more efficient is is not now it's not happening at this moment but we have hopes that it will happen in the future with that i know there is this procedure and in many ways when we've talked to the ground fraud informally then high hopes for it but isn't a panacea for everything and i think you mentioned ms McAllister the emails you know you're doing more but if there isn't the man or people there to to direct that there's still very much a resource issue about using and having the man power to use the technology properly and i'll refer to my comments at the start of the session where we're talking about cuts in budget rather than expansion of budget but it might be that efficiencies saved in the future through the use of it proper use of it by people who are trained appropriately and a complete buy-in by those who collectively participate in this process that may well result in efficiencies which can be applied elsewhere very briefly Douglas i'm letting this session go on this is really the evidence we're getting from you who are using the courts you know the cofys every day is absolutely essential so i consider this a really important evidence session therefore i'm going to continue it until the members are satisfied with the questions thank you convener just very briefly to mr clancy i was more encouraged by your verbal statement than what you'd written in your written submission because you you seem very pro the use of technology yet you have a caveat in your written submission about issues such as internet poverty don't disadvantage certain groups in society could you maybe marry up your positive comments from a couple of minutes ago to to what you're saying there and how significant do you think that issue is i think internet poverty is quite significant to the citizens advice scotland so that's what it was tagged to you had done a survey of evident of internet poverty in deprived areas in Glasgow and it's quite significant that in their study 42 percent of the respondents to their study had never used the internet which is quite a remarkable statistic when we think about it but how does that statistic compare with people in the court process and really what we're looking at here is how to use it and that form of technology to improve the efficiency within the court process rather than looking at general issues which i have obviously across the highlands and islands about access to the internet and broadband and i just wondered if it's slightly confusing the the issue here because you sound as i say in your verbal submission very pro using it yet you use this caveat of the cab issue about internet poverty well there's always a caveat isn't there i've got to give myself some wriggle room but of course the the discussion which we've had about the evidence and procedure review and the use of it in that connection is about court users such as my colleagues here and crown office and procurator fiscal service itself but i think going forward if we're looking at the engagement of victims and witnesses then you can see that that the application of technology particularly when there are court closures across the country it could allow greater participation by people in that group and that i think is where we were aiming to to have the caveat it's about how technology is used right across the board there'll be a high use by those who are actually engaged in the justice system on a day-to-day basis that solicitors procurators, fiscal advocates, deputy and such and for those whose engagement is more periodic then we've got to up the game there i think and that is where the reference to internet poverty comes about waiting very patiently john then rona and then mary to one another thank you cabina it's a question specifically for mr manafield about what you refer to as a notable minority of cases mr manafield it's about the issue of disclosure and your relate a situation where there may be two statements noted from someone the disclosure of the evidence that's less than helpful to your client subsequently to find that there is beneficial evidence that's not been disclosed that seems very sinister and worrying i don't think it's as sinister as it might appear at first blush i suspect that there is a a natural focus on the part of the police and thereafter the c o p f f s to in gather what might be considered helpful prosecution evidence that flies in the face of the the disclosure of all evidence beneficial or otherwise that police officers have to go mic just to continue in in what i was saying i don't think there is a a lack of willingness to provide excavated evidence where it exists but because of the scarcity of resources and again i'm i'm speculating because that's i'm not part of the the prosecution system but there seems to be often a situation where crimes are investigated certainly in less serious cases up to the point where it's necessary or the the standard and and the quality of evidence and quantity of evidence which is required to prove a crime or potentially to prove a crime has been met that's disclosed and then thereafter if there are any inquiries to be made in relation to a defence position that's left to the defence i mean a specific example of that might be where a suspect is interviewed by police prior to being charged and during the course of that interview they might as not always the case but they might actually lay out their position which may incorporate an alibi or we were the person might in the case of assaults say that they were defending themselves and the information which is provided by the accused isn't very often followed up by the police in terms of an investigation unless it's potentially useful to the prosecution in disproving what the accused might have said for example in terms of an alibi so again as is the case with most of the criticisms that's been made of COPFS during the course of the written and verbal submissions i suspect at largely lies with staffing and resourcing issues i wouldn't like to cast doubt on the integrity of the prosecution service that's where i suspect the problem lies are you casting doubt on the police scotland or indeed police scotland i referring to because you also go on to say that when you make inquiries of COPFS about issues that comes back in the form of a memo rather than a statement and memos are not necessarily disclosed now that's a fairly narrow issue i would have to say i think it was important to raise it during the course of the of the submission it's not a common feature of prosecution cases again it might come down to the the time that police officers have available because a memo is simply as far as the prosecution is concerned it's simple anemia which has passed to them with a response from a police officer whereas if a statement is to be provided the officer will have to sit down and formally prepare a written statement that will have to be to go through the channels with COPFS and thereafter would be disclosed i suppose a question of defence lists are having a different assessment of what might be relevant to the defence than than the COPFS on one level it would seem a material whether you call it a statement or you call it a memo if it's information that's pertinent to the case it should be disclosed to yourself i would agree with that and the defence would agree with that but i think it's more if a formal witness statement is received into the crown office or a particular procurated fiscal's office if a statement is received that is a red flag that that is something which should be disclosed whereas if it comes in the form of an email that's something which is i know it seems like a narrow distinction but that's a just a response to a request for information and might not automatically be treated as something which should be disclosed and that's where we have a difficulty but i can't stress enough that that is a fairly narrow issue within the the broader problems that there might exist in the fiscals when when they come yes indeed i was just going to ask is that being specifically followed up perhaps if it's a very local issue or very pertinent you said you reduced the term notable might not as luck would have it mr finnie i'm actually scheduled to have a meeting on behalf of the association with with with our local COPFS management later on today so it's something i will be following up with many things okay thank you rona i was quite concerned to read i think it was edinburgh's submission about the issue of whether non-appearance warrant should be enforced by police officers or not and you explained that historically if there was a good reason cops would arrange an appointment an invitation and set a date and this has been stopped so it involves you know vulnerable people getting arrested basically we would advise some time ago um i can't put an exact time frame on it but certainly more than a year ago um that the practice of offering invitation warrant appearances was being brought to an end now um i think that that certainly has been in large proven to be the case and it might be that the crown reached the view or reached the decision to stop doing them because they felt that unreasonable requests were being made and perhaps and again this is speculation but a fairly educated speculation i hope it might be that they were having too many requests to deal with but we're now in a we've now gone too far the other way i mean i think it's probably fair to say that now and again and i have to stress now and again the odd invitation appearance might be offered but far too often the response that you met with this i'm sorry there's a policy we don't do that okay well what's the timescale when did this start happening over over a year ago i'm sorry i can't be more clear than that does it amount to a significant number of cases where that happens oh yes absolutely okay i mean it's it's a regular problem faced by defence agents and people who are the subject to warrants of the nature that i've described in the submission and when i was seeking the the views of the members of the association in advance of preparing their submission it's something that was raised on a number of occasions so it's it's a problem or certainly we would describe it as a problem okay thank you mary thank you convener and i will be very brief i want you to come back to a comment mr manifield that you made earlier when you spoke about the rigid policy in relation to domestic abuse cases and i just wondered is this is the rigid policy only applicable to domestic abuse cases or are there other crimes or types of crimes that are subject to the same kind of rigid policy well that's a very good question if you don't mind me saying that the references made in our submission or a written submission to for example um offenses which have um a racial element of some kind um other categories of case which i think are included in the same bracket would be where there is um an allegation involving prejudice of against sexual orientation or religious persuasion of one type or another i was quite careful in the way that i phrased in the written submission that what the policy was it i call it a stated policy rather than a published policy but i think it's fairly common across the country that if you were to approach a depute about a case involving one of those types of behavior and you were able to point to good evidential reasons why it wouldn't be in the public interest for the case to proceed or to go back to the example i gave much earlier on the case of the 70 year old man who'd never been in trouble the response that he would receive is i'm sorry my hands are tied you know the you know the policy in these cases if you get as far as or when you get as far as a hearing from COPFS there might be an issue when is a policy not a policy they have as i understand them guidelines but the consequences for people making a decision which isn't in accordance with those guidelines and missing people i mean procurated fiscal's depute um they wouldn't be treated very kindly if they hadn't prosecuted in line with the guidelines which amount to the policies which i've described wouldn't be treated kindly by whom there are superiors and the consequences of that would be well that that would be speculation on my part but i do refer in or we we refer in our submission to a sort of a fear culture and reference is also made to the short term contracts that are offered to certainly young procurated fiscal's deput and i think it's natural that if you are constantly concerned with the renewal of your contract then there's a natural inclination or disinclination to not following guidelines i might add that the impact of the perhaps perceived lack of discretion is from the accused point of view also is that they will then just proceed to trial you know with on a narrow point which perhaps if the exercise of discretion could have been made would have saved the trial altogether so i'm not saying that there shouldn't be protocols and guidelines and i think as i said earlier perhaps if the deputes or and the defense agents were aware of the level of seniority which has to be applied before that decision can be taken because we sometimes find ourselves in the very difficult position of saying to a very respected but young colleague would you mind terribly if i try to go above your head which seems like professional discur to say when you greatly respect their abilities to try and identify who it is you should be approaching and i wonder if it might be permitted to say that you know that the anxiety of these cases is also applicable to the accused that these are very complex cases to prepare cases involving aggravations sexual offences child witnesses and it might be that in due course the justice committee would widen their inquiry in terms of the wider criminal justice system and the resourcing available both for the defense also in respect of the very difficult and complex cases which defense agents are dealing with very conscious of time there's one area we haven't covered the inspectorate of prosecution in scotland little known independent statutory inspectorate because a lot of the submissions have said to not aware of it or they don't have a comment however and there are some helpful comments about possibly increasing the effectiveness from the lost society i wonder if if you could perhaps talk to these please michael certainly convener we we haven't had much contact with the inspectorate i think and when i say that i'm using the word much advisedly um but when looking at the legislation on this surely it was a good idea to create such a body but we we thought in looking closely at it that there would be ways to improve transparency and independence and bringing on board non-procurators fiscal or cops employees it would be a good way to do things there is a a memorandum of understanding from February 2014 between the HM chief inspector of prosecution in scotland the director general justice at the scottish government and the lawd advocate and i think that it behooves us to to be aware that the inspectorate exists issues its reports to the lawd advocate and i think there may be advantages to a broader appreciation of its role terms and conditions and appointment being transparent for example and perhaps the lawd advocates under no statutory duty at present to consider the recommendations perhaps that's something else with i'm sure the lawd advocate does consider them and i'm sure the lawd advocate would act on something which the inspectorate found to be worrisome but i think we live in a much more transparent world nowadays than before and just as much as transparency has shone a light on other areas in the justice system this is another area which might benefit from it and just before i leave that point there was talk of pre or rather post legislative scrutiny and this could fall easily into that that bracket and certainly when mr stevenson chaired the the procedure standards and appointments committee there was an examination of the legislative procedure process and we were very much in favour of post legislative scrutiny at that point and we remain so and at the risk of giving the parliament more work to do i think we're very keen to do post legislative so we welcome that suggestion i have let this session run on because your submissions really were so helpful i wanted to get as much as possible on the record kind of thank you all very much for attending it's very much appreciated and with that the next meeting of the committee will be on the first of november when we will continue taking evidence from the crown on the crown and procurator at fiscal inquiry and we'll also have an evidence session on the future of the british transport police in scotland and we now move into private session and i suspend the meeting to allow the public and official report to leave the room to the public to see what's going on and what's going on in the future.