 I welcome to the 15th and final meeting of the Criminal Justice Committee for 2021. There are no apologies this morning. Can I please ask members and our guests to switch all mobile phones to silent and wait for the sound engineer to switch on your microphone before speaking? Our first item of business is the continuation of our consideration of evidence on efforts to improve the ways in which we prosecute violence against women and girls and also how we support the survivors of such crimes. I refer members to papers 1 and 2. I am very pleased to welcome to today's meeting the right honourable Dorothy Bain QC, a Lord Advocate, and Mr David Harvey, Crown Agent and Chief Executive of the Crown Office and Procurator Fiscal Service. I am going to allow up to an hour and a half for this evidence session this morning. Before we start, I just want to go over a few practical points. This is obviously a fully virtual meeting, and I intend to use the chat function as our means of communicating. If you want to come in, please type an R in the chat function and I will bring you in if time allows. If we lose connection at any point with a member or a key witness, I will suspend the meeting and try to get them back into the meeting. If we cannot do that after a reasonable period of time, I will have to deem the member as not present and we will just carry on. If we lose connection to me, our deputy convener Russell Finlay will take over convening, and if we lose him too, Rona Mackay will step in as our temporary convener with the committee's agreement. Please, can everyone keep their questions and answers as succinct and as possible? If that is all clear and there are no questions, we will make a start. I would like to invite the Lord Advocate to make some brief opening remarks for the advocate. I thank the committee for inviting me to this evidence session for permitting me to give some opening remarks. I am appearing to do with the Crown Agent, who is the professional head of the Crown Office and Procurator Fiscal Service, to David Harvey. Rightly, there is public concern over the number of rapes, sexual offences and crimes of violence against women and girls and the response to that offending from the criminal justice system. The World Health Organization describes sexual violence against women as a major public health problem and a violation of women's human rights, which perpetuates gender inequality. Scotland has a lot to learn about attitudes towards women and the intolerable levels of sexual violence in society. There is a responsibility on all of us to do what we can to address these profound challenges. The volume of serious sexual offence cases indicted and awaiting trial was significant before the coronavirus situation. There has been a clear and obvious upward trend in these cases, which doubled in the two years up to March 2020 when trials were suspended. Pandemic has had significant consequences for the justice system with increased delays in cases calling for trial and the uncertainty where their trials will proceed on a given day, causing anxiety and distress to victims and witnesses. There is a particular impact on the High Court, where, as of 30 September this year, 837 serious sexual offence cases were indicted and awaiting trial. The situation impacts disproportionately more female victims and witnesses. The range of issues raised from the routes of these crimes due to the way that they are dealt with by the justice system requires a broad response, drawing upon a societal and political will to do better for our women and girls. Members of the committee have heard from victims and support agencies what it means to be involved in the criminal justice system and the trauma that accompanies that. Scotland's prosecutors work with justice partners as we strive to ensure that victims are treated with dignity and respect. Furthermore, the Crown Office and Procurator Fiscal Service is committed to working with those partners to transform the way that the criminal justice system deals with those cases. As part of that commitment, I would like to inform the committee of two major initiatives within the Crown that I am confident that we will deliver long-term improvements to the experience of victims and witnesses. Firstly, I have commissioned Suzanne Tanner, QC, to become the System Principal Crown Council and to conduct a full review of how prosecutors deal with reports of sexual offences. The remit of the review will be approved by me in due course and will take into account the views of victims and agencies from across the criminal justice system. It will build upon the existing specialist approach that prosecutors have to sexual offence cases and the expertise that they have in their work. Since becoming Lord Advocate six months ago now, I had important conversations with the senior prosecutors in the Crown Office and Procurator Fiscal Service on how sexual offence cases are prepared and presented in court. I have been impressed by their dedication to improving the experience of complainers in those cases and this review will support them in that ambition to improve. I am delighted that Suzanne Tanner is taking forward this crucial work and I am confident that she will make a significant contribution. Secondly, the changing profile of prosecution casework and the backlog created by the pandemic have placed huge pressures on the Crown's victim information staff. I am pleased to announce that the Deputy Crown Agent Lindsay Miller will read a review of the work to ensure that the service can continue to deliver the high levels of support and advice to all victims and witnesses that they do currently. While this is a long-term programme of work, any measures identified by the review which criticised in the delivery of victim information services will be put in place in the interim while the review is on-going. These are two of the steps being taken and I am determined that the part of prosecution service I have responsibility for does everything it can to improve for people it serves. These steps are being made in the wider context of change and challenge. The Crown Office has received a satisfactory financial settlement from the Government this year and the committee's views in this budget report are noted and most welcome. The processes of increasing capacity of recruitment and training are under way. The planning for how to develop and improve the prosecution service is kept under review to ensure that goals are realistic as the pandemic develops. Improving the experience of women in the justice system is something Scotland's prosecutors and their work partners endeavour to do every day. To make further improvements possible, some of the steps that may require consideration. For example, the implementation of the Lord Justice Court's review improving the management of sexual offences will require extensive consultation and careful consideration and ultimately necessitate the elected members of the Scottish Parliament to make decisions that will have a profound impact on the way in which Scotland's justice system deals with serious sexual offences cases in the future. The Crown Agent and I will be happy to elaborate on the services plans in this session. Thank you very much. Thank you very much Lord Advocate for that very helpful and welcome update. We will now move on to questions. If I may, I would like to open up with a fairly general question. You will be aware that a key focus of our work so far this session has obviously been to really understand the experiences of complainers and witnesses as they journey through the criminal justice system following an allegation of rape or sexual assault. As part of our work, we have heard first hand from a number of brave women on their experiences in that regard. This morning, we would like to pick up on some of their testimony. If I may start off by referring to Lady Dorian's review that you mentioned a moment ago on the management of sexual offences, I would like to ask a little bit about what actions the Crown Office and Procurator Fiscal Service have taken to date in response to Lady Dorian's recommendations bearing in mind that the report was published coming up for a year ago. It was really just to ask for a broad update in respect of your response. Yes, so, convener, you will appreciate that I took up office six months ago, and that was sometime after Lady Dorian's review was published. Perhaps the best way to deal with that is to see what I have done following on my appointment. Perhaps then we can add to that equation what the Crown Agent can assist in terms of other information. It is important to put some of Lady Dorian's review and perspective in so far as my own involvement in the prosecution of sexual crime is concerned. In 2008, at that time, I was commissioned by the Len Lord Advocate, Elish Angiolini, to report on and make recommendations on prosecution of sex crimes in Scotland, and that outcome led to the formation of Scotland's national sex crimes unit. That was 12 years ago now, and in that time, the challenges faced by the Crown Office in the prosecution of sexual crime and domestic violence has changed. We may change being the significant increase in the reports that the Crown receive through the police and the proportion of work that it makes up, both in the High Court and the Sheriff Courts. However, I see that the principles that underpin the creation of the national sex crimes unit remain good today, and many of those principles are reflected in the recommendations in Lady Dorian's report that do not require the legislative change, so, in that respect, I refer to support for victims and witnesses in these very difficult cases, dedicated training in these matters for the lawyers undertaking the work. The importance of advocate-deputy meeting in the High Court with victims of sexual crime pretrial has with the pocket of fiscal deputies in the Sheriff Courts dealing with these cases on indictment. However, in addition to that, I also see that much of what I recommended at that time is still being relevant. That is sound marking of these difficult cases. That is a decision taken to proceed or not. With specialism being brought to bear in the assessment of prosecutorial decisions and the way in which complainers are supported and the way in which those prosecutorial cases conduct them, until I left the Crown Office in 2011, there was the standing instruction for specialism to be brought to bear in these cases, standing instruction that advocate-deputies met complainers well in advance of cases, and that there was particular training given to advocate-deputies in order to provide them with the necessary skills to assist complainers to give their evidence in court. I myself had direct experience in many cases of doing just that, where I found my own personal commitment and my professional contribution to the prosecution of these difficult cases was enhanced by the fact that I met these vulnerable people well in advance of the trial, spent time with them to give the necessary support that they needed that gave them the confidence and the ability to come into court with a screen and to give sound, compelling and powerful evidence that often resulted in a conviction in these very difficult cases. What I do not know is why it might be that some of the principles that underpinned the creation of the national sex crimes unit perhaps did not continue after I left the Crown in 2011. I do not think that it was because of a lack of ambition to do the cases well. I suspect much of it is to do the volume of case work and the increasing complexity of that case work and the challenges that the Covid pandemic has brought. I see that the review that has been done by Suzanne Tanner at QC will reflect on what we did previously in the formation of the national sex crimes unit and bring all the principles that were identified as necessary and as reflected in Lady Dorian's report to the situation that we have today and deliver along with me the sort of prosecution service that Lady Dorian's review championed and the one that I would very much welcome and want to be very much a part of. Perhaps the Crown agent could fill the review with what happened between my departure and my return just six months ago. Thank you very much, Lord Advocate. Mr Harvie, do you want to come in at all? I will come in very briefly if I may. I will touch on a number of points, but I will touch on them since I suspect that they are matters that we might return to. The first point is the point that Lord Advocate was making towards the end about the change in the profile of the high court case load. There is no doubt that over that 10-year period it changed dramatically and the committee has heard the realities of that in terms of it being 70 per cent of the case work that is indicted into the high court, which is a very dramatic shift over the period of that decade. It speaks to a range of things in terms of investigative and prosecutorial approaches, but it is also continuing issues at a societal level that I hope will have an opportunity to touch on. Insofar as your key question is concerned, convener, in relation to steps being taken in the meantime to implement elements of the Lord Justice class review, those are being taken forward collectively, as you would expect. There are things that are for prosecutors, but because it is a system, it needs to be taken forward collectively. For example, the key element in the review about the presumption in favour of pre-recording complainers' evidence in serious cases is gathering momentum. Evidence and commission hearings are assigned on an almost daily basis now for the high court, which is, in contrast to two years ago, a very significant change. The recommendation in relation to visually recording evidence of complainers at the start with video recorded interviews is a pilot phase. We are waiting cases coming through 19 cases involving video recorded interviews at the inception of the case have been indicted, and we anticipate that those cases will start to come through for trial, which will enable evaluation at that stage. Separately, in light of developments in case law and the Lord Justice class review, there have been changes to crime policy in relation to the intimation to complainers about applications in section 275 of the Criminal Procedure Scotland Act in relation to their rights and their opportunities to ensure that they are separately represented when it comes to issues in and around access to their records. Those are just three examples of matters that are being taken forward in the interim. Thank you very much. That is very helpful. You are right. I am sure that we will come on to some of those issues and others throughout the session. I will bring in other members now. I think that we would like to move on to some questions around not proven and judge only trials. I will bring in Russell Finlay, followed by Katie Clark. Russell, over to you. Yes, good morning, Lord Advocate and Mr Hardy. It is interesting to hear that 70 per cent of high court cases are now of sexual nature and how those disproportionately impact on female victims. In a recent interview, Lord Advocate suggested that sex crimes require a different and distinctive approach. Can you explain what you would like that to be about? I think that much of what I was referring to there is reflected in Lady Dorian's review. The reason that I said that it requires a different and distinct approach is because of the particular nature of the crime and the particular impact that that has on individuals who are the victims of those crimes. We know that the World Health Organization in particular has identified that the nature of those offences are very problematic and they perpetuate gender inequality. Those particular types of crime have an impact on society widely. Those types of crime impact on women's human rights. If we are to do something about those issues, we are required to look at the nature of that type of offending with great care. When we do that, we see that victims who are the victims of sexual crime have a very powerful response to the fact that they have been sexually abused and their personal integrity has been impacted upon. It has a particular effect on the mental health of individuals and it has life-enduring consequences for individuals. We can see that readily just by virtue of the fact of all the work that Lady Smith's inquiry has done. Just reading through the reports of her work, we can see the profound impact that sexual offending has had on people as children that is left and scarred for the rest of their life and makes it very difficult for them to, in later life, sustain relationships, engage in society at a good level in terms of an ability to progress at work. It often leads them to offending in their own right because they have struggles with mental health issues and they have struggles with drug addiction and alcohol addiction. We know that the very nature of the offence is very damaging and because of that, we need to look at it with care and because of the impact that it has on society at large, we need to look at it with care. We need to ensure that the victims of these crimes are properly supported and ensure that, as a proportion of our society, they are given equal access to justice. I am supported in that requirement that I ask for specialisation for a distinct approach by many expert writers in the field and, indeed, by the European Court of Human Rights and by our own appeal court. That is what I ask for. Because of the nature of the offence, because of the impact of it and the life-long scars that it leaves, it should be looked at differently. In respect of judge-only trials, there is strong resistance from criminal defence lawyers. One concern is that, instead of a jury of peers trying somebody, they are accused to be in front of a usually male, white, middle-aged, privately educated lawyer. What would you say to that specific concern and those lawyers who are very vocal about the issue? Are you trying to persuade them? Finally, a three-part question, I suppose. Is there any evidence that you have seen in the profession of this being a male-female split in respect of the issue, given that this is relating primarily to crimes of a sexual nature? I suppose that I would like to answer that question, Mr Finlay, not by saying that I am trying to persuade. What I am trying to do is, as the head of the prosecution system in Scotland, bring to the committee and bring to the public at large, if I possibly can, the issues in and around those particular types of cases. I do so at this stage because, obviously, I have been invited to do so. We have the Lord Justice Clarke to review and we have the backlog and the problem that that is causing in the prosecution of these very difficult cases. What I think is important is to understand what I am saying comes on the back of one of the recommendations in Lady Dorian's review, which is for a limited time of single judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers and to enable the issues around that to be assessed in a practical, rather than a theoretical way. That was a recommendation of the review. That recommendation is rooted in the fact that the review explained in detail that, for many years, there has been a lower conviction rate for these cases than any other type of crime. From that, the review identified a demonstrable inequality and a lack of justice for a particular group within society. The review stated that there was public disquiet about that. The review said that the conviction rate for rape and attempted rape has been the lowest of all crimes in each of the last 10 years—all crimes. The review said that the figures could not be ignored, the disparity was such that it could not be explained by poor prosecutorial decision making, and the disparity was such that it could not be explained by the fact that the victims, predominantly women and girls, were not capable of being believed. The review legitimately asked the question that those who all have a responsibility for the prosecution of sexual crime is the system of justice failing to refine justice? Is there genuinely a perceived lack of justice for the victims of sexual crime? The review said that that is not unique to Scotland and that the statistics that we are concerned with are raised in all corners of the United Kingdom and in New Zealand. What the review said is that it has identified a problem that may be remedied in a particular way. Ultimately, as the independent head of the prosecution system in Scotland, it would be fundamentally wrong for me to reject the law justice clerk's recent and rational recommendations because all that she seeks to do is to further explore a possible method of dealing with a seemingly intractable problem that results in an erosion of the public confidence in our system of justice. I support the review, but it is as I stated at the outset, for the democratically elected members of Parliament to give effect to any or all of that. I support the review because any modern, progressive prosecution system must be inclusive and must uphold equality and equality before the law, and, indeed, that is one of the guiding principles of law. That is justice and fairness. If it is legitimately the case, as identified by the review, there is public discretion over a failure to deliver justice for a particular group of our society, and as the head of the prosecution service, I would ask that that review is considered. I would ask that parliamentarians take on board what the review says, and I would ask that there is a debate informed by all members of society, all members of the legal community, in order to form our elected representatives of what might be the right way forward. That is all that I am seeking to do. I am not looking to proceed one way or the other, but I am pointing out that a review has said that justice may not be delivered to a group of our society, and I think that, as head of the prosecution service, I have a responsibility to react to that. Thank you. I am separate to that, but connected is the issue of not proven. Do you have a view on whether not proven should be grabbed, or do you also have a view on whether, instead of guilty and not guilty, the two verdicts should be proven and not proven? I would say to Mr Finlay that I, in the Crown Office and Procure Physical Service, will consider any proposal coming from the forthcoming Scottish Government public consideration and consultation on this verdict, and the abolition of the requirement of co-operation. Those matters cannot be considered in isolation, and consideration will required to be given whether not they should be accompanied by other safeguards. The detail and interconnectedness of any elements of any proposal will be critical, so I, as head of the prosecution service, look forward to receiving the outcome of the consultation and that I will react to any decision that is made by Parliament in that regard appropriately. It is not for me to express a personal view as the head of the prosecution service. I thank you very much if that is you finished, Russell. I will bring in Katie Clark, followed by Jamie Greene over to you, Katie. Thank you, good morning. Llyrge, I advocate that you have been very clear in your support for a time limited pilot in relation to single judge rape trials. One of the other suggestions is that there could be more training or support for juries. Is that something that you have given any thought to? What do you think that might look like? Something that was explored in Lady Dorian's review, and there was some concern over whether or not that could be delivered. I have also seen some discussion of that in expert papers, and indeed some views on that from expert psychologists who have looked at the jury system and who have identified that rape myths and the belief in these can negatively impact on a jury's decision in terms of guilty or not guilty. I understand, Ms Clark, the point that you make. What I think that the review has recommended is that there are better directions, clearer directions to the jury, that there is better direction and clearer directions given over noting of the evidence. Those are all things that can no doubt assist. Over and above that, I would honestly say that I have not given it any further thought, but anything that can assist a jury's understanding of the rape myths and the negative impact that they have on the decision making of a jury and the unfairness that they may bring about in a jury's decision making would be a very good thing, because there has been evidence-based reviews that demonstrated that that does exist. If there is to be assisted in a way in which they see the way through the evidence and come to the decisions that they are required to come to in these difficult cases, then I am very supportive of that. Indeed, the Crown Office and Procurator Fiscal Service would assist in any work that was needed to be done in that with the judiciary and the judicial institute and other parts of the profession. That is very helpful. In relation to not proven, there is a suggestion in that you have already said that that perhaps could be linked to other changes in the system. If there was a decision to move towards a two-verted position, do you think that other changes are essential? If so, perhaps could you outline in more detail what they might be? For example, one of the suggestions that has been made is that there should be a change during majorities. Do you think that that would be a necessary condition? What other aspects of the justice system do you think that we would need to look at as well as the verdict if something was given live consideration? I think that I have made my position clear on the not proven verdict that I do require to await the outcome of the consultation. I understand that this consultation and the not proven corroboration is also to take place in and alongside the work that has been done on Lady Dorian's review by the Governance Review Group. In addition to that, there will be a consultation process on Lady Dorian's review. The justice system is such that all those issues are interconnected. If you alter one aspect of the system, it is essential that we take great care to explore what impact that has on other parts of the system. If there is a change to the verdicts, there has to be a consideration as to whether that impacts on jury size and during majorities. It also has to look at whether the rules of corroboration are relevant and whether, ultimately, those issues might impact on the decision that might be made in relation to the best way to prosecute cases of sexual violence and the best way in which to ensure that justice is served in those cases. I think that I would like to come back in and then I will hand back over to Jamie Greene, followed by Rona Mackay. Russell, do you want to come back in? Sorry. I did not indicate that. No. Okay. Apologies. I thought that you indicated apologies. In that piece, I will bring in Jamie Greene, followed by Rona Mackay. Thank you, convener. I hope that everyone can hear me okay, despite my earlier technical difficulties. Good morning to the Lord Advocate. Thank you for appearing with us today. I think that much of what I was going to ask has been covered in the initial two questions, but I thought that maybe I would just pick up on another point. That is based on the evidence session with the cabinet secretary that we had last week, which I am sure you saw or indeed read the transcript of. I was quite struck by many of the answers by the cabinet secretary, which implied that any such changes, fundamental changes to the legal system, whether it is corroboration, whether it is jury-less trials, removal of not proven, changes to jury sizes and majorities, etc. It was quite clear that those were matters for the Lord Advocate, not for him to comment on as the cabinet secretary. I guess what I am trying to get to the bottom of is in your answers that you seem to imply that those are political decisions or matters for parliamentarians. Politicians are not for the crown, but politicians are saying these are matters for the crown. Where do you think that the buck will lie with some of those decisions, some of those very difficult and indeed controversial decisions? Mr Greene, in relation to, for example, if we take the question of a pilot, a time limited pilot for juries, the review that Lady Dorian did was very clear that there was a strong historical and emotional attachment to trial by jury and that valid arguments in favour of the democratic benefit of community involvement were strong. The review also said that there were very strong arguments in favour of conducting trials in other ways. It said that the traditional arguments in favour of juries were met equally by compelling arguments for judge by trial alone, which cannot be left unexamined and ignored. Lady Dorian's review identified the issue because she identified that there was an area within society that there was a question as to whether or not we were delivering justice for a particular group. As the head of the prosecution service, as the independent head of the prosecution service, that troubles me, as does the low conviction rates, for good reason. It would be irresponsible for me to not have concern about it, but ultimately the decision as to whether or not the change that requires to be made in order to legislate for a pilot, for a time-limited pilot, for judge-only trials, in order to understand whether or not Lady Dorian's review was correct in its assessment and indeed how that might be examined and looked at later to inform better our understanding and whether or not genuinely we can make things better for this particularly vulnerable group of people, that is what we want to achieve. However, the only way to achieve that is by legislative change. Legislative change is for the Government and for the elected members of the Scottish Parliament to decide on. I can only give my views as the head of the independent head of the prosecution service. As I do, I can only say that I would like a really strong, properly informed debate over this critical issue, but change is not for me. It is for you and all the other members of the Scottish Parliament elected by the people of Scotland who, I am sure, want a criminal justice system that delivers for everybody and that is consistent with the rule of law, because the rule of law requires that the criminal justice system serves every member of society, not just one section of it, so that everybody has to feel confident that the law is there for them if they need it. That is helpful. I might come back to you on that in a second, but I believe that the Crown agent wants the comment as well. Yes, thank you, convener. Very briefly again, as Lord Advocate said, this requires a legislative fix if we were to go down this route, but there is another more fundamental point here. It is not just the rule of law, it is about equality, and there are obligations on the state and on Scotland that parliamentarians have a role to play on. I suppose that, if I might just look back to Mr Finlay's question about whether there was a male-female split in any way, shape or form, and I chose not to come in at that stage rather than interrupt the flow. However, there is absolutely no doubt that the current situation is having a disproportionate impact on women and girls. It is clear that men need to own that problem and the solution. That comes back to the broader societal point, but it is also relevant for the purposes of the professional response. I was involved at the very inception of the Lord Justice Party review, and there are a number of very significant recommendations in that, beyond those that are obviously the headline ones in relation to independent legal representation, in relation to victim advocacy, in relation to single points of access, etc. Members will recall that the Lord Justice Party review was very clear in starting with a blank sheet of paper. There is no doubt that that blank sheet of paper is not going to start from here. It is not going to start from where we are. That is why the proposals in the review are as they are, because what we need is a shift not only in terms of the way in which we are dealing with those cases and the way in which we are supporting people through the system, but also separately and more broadly challenging the behaviours that underlie the need for those changes in the first place. I thought that it would be helpful to pick up on Mr Finlay's point, but also in relation to Mr Greene's point, the key elements here are, from my perspective, leadership across the board, whether that is political, prosecutorial, judicial or otherwise. We have had some judicial leadership here in making recommendations that are well informed that follow consultation with a range of individuals, including experts in the system, and I would commend the report to the committee. I possibly will respond to what we have just heard. Of course, go on, Jamie. I do appreciate that. There is very little to disagree with in what I have heard from previous two answers. That is a collective problem, but what I am trying to get to the knob of is what happens next. To me, that is still unclear. The reason I raise it is because I listened with great intent to the language used by the cabinet secretary who represents the Government and sits in the Parliament about how we could take forward quite significant changes. Whether there are trials or more permanent changes, I appreciate that they will require legislative change. However, it is whether the legislative change is simply a technical requirement to enable that change to happen or whether it is the legislative change that informs the change itself. In the cabinet secretary went to great lengths when asked about, for example, trials to duriless trials or other such changes that would be matters for the Lord Advocate. What I am trying to get at is are you, Lord Advocate, advising the Government as to what sort of changes it should be introducing through legislation of which the Parliament will debate and vote on? We will all do that as individual members. Or are you looking to the Parliament to come back with a set of proposals that you are then forced to introduce as the Lord Advocate? I am the head of the system of prosecution of crime in Scotland. That is a constitutional position that I hold, independent of the Government. My response to what you described, Mr Greene, is to say that legislative change is for the Parliament, is for the Government of the day or indeed in relation to individual parliamentarians to bring forward their own bills in order to debate the issues that they have concerns in and around. I think, as I understand it, that you have your own personal bill that you are bringing forward because of your concern in and around so many of the issues that we will be touching upon today. I cannot be any more clear than that. I read a Lady Dorian's review. I deal daily with the consequences of the pandemic and the impact that it has on the prosecution of sexual crime and, indeed, other crime. I want to have a prosecution system that is progressive, humane and delivers for all sections of society. I say what I say in relation to sexual offences in the hope that people will listen to me and understand that I do see that we have problems and that some other people who have conducted expert reviews that were informed by experts in the field and very eminent senior members of the judiciary have identified that there is a possibility—a real possibility—that a section of our community is not properly being served by the justice system. They are looking to remedy that and they have made recommendations in and around that. As the independent head of the prosecution system, it would be fundamentally wrong for me to reject the law justice cracks' recent and rational recommendations because all that she seeks to do is to further explore a possible method of dealing with a seemingly intractable problem that results in an erosion of public confidence in our system of justice. It is a problem that has been with us for a long, long time and we cannot allow it to go on for another 40 years. We have got to do something about it. I think that whether it is head of the prosecution service or a person who would meet him in the street, any reasonable person would agree with that. Fundament that all that it consumes to green is legislative change is for the legislature. As an independent prosecutor, that is all that I can do. I cannot say any more than I have said. Perhaps a Crown Agent could also come in here. I think that it has just dropped off the call, but I do appreciate your second response on that. I will have to come back later. I have some other questions, so I am happy to reserve those for later in the session. Thank you very much indeed. I am going to bring in Rona Mackay, and then we will move on to our next area of questioning around the role of advocate deputies. Over to you, Rona. Thank you very much, convener. Good morning, Lord Advocate. In a recent interview, you said that judge-led trials do not impact on the right to a fair trial, but we need to look at the suitability of a jury to prosecute a case, and you added that we should be properly informed about judges. You will know that Professor Fiona Leverick's research found overwhelming evidence that jurors hold prejudicial and false beliefs. We certainly heard in our evidence, private evidence sessions, with victims that they felt that there was an element of that, that quite often they felt that the jury might have been prejudiced if the complainer had been drinking, etc. I just wanted to ask your opinion on that and what you mean by the suitability of a jury. Does that mean media training, and I refer particularly to specialist courts? Thank you, Ms Mackay, for your question. In that interview that I gave to the Hollywood magazine, the major purpose behind it was to seek to engender a well-informed, reasonable, balanced debate over what is a critically important issue to the prosecution of Prime Scotland. I was pursuing a personal agenda. I was hoping to engage with others in order to encourage them to take part in a debate that is properly informed, reasonable and takes account of all viewpoints across society. That is the purpose behind the magazine article. In relation to the point that I made about whether we need to look at whether juries are appropriate to prosecute and return verdicts in those cases, that reference was made by me as a result of what was contained in Lady Dorian's review, which, because of what she looked at along with others and because of the expert evidence that she looked at, and she looked at qualitative and quantitative expert review and work. In fact, she looked at the work done by Fiona Leverick that there was a question mark as to whether or not juries were in fact suited for this particular type of case. It was highlighted that the law commission in New Zealand concluded that they weren't suitable for those types of cases because of attitudes towards rape victims in relation to, for example, beliefs that blame the victim and the survivor, beliefs that cast doubt on their allegations, beliefs that excuse the accused and beliefs about what a real rape looks like. It was recognised by Fiona Leverick that those beliefs did not show overwhelming evidence that juries just weren't returning verdicts on the basis of the evidence before them. They were too influenced by rape myths. Lady Dorian's review asks for that to be looked at. She says, and others say, that we need to consider whether or not a particular proportion of our society is getting justice. There's evidence that it's not, and there's evidence that supports that from all those people that we talked about, Fiona Leverick and the like. All I ask is that Lady Dorian's review is looked at. We question, legitimately, whether or not juries are the right way to proceed with these very difficult cases. In that context, the question has to be asked as to whether or not there is a right to trial by jury in Scotland? Is there a constitutional right in the way that is reflected in the English system? The situation in Scotland is very different. There is no historic right to a trial by jury, and whether a case proceeded to trial by jury is determined by the prosecutor and the statutory provisions governing the relevant crime. If the question is, is there a constitutional bar to trial by judge alone, there's not such a constitutional bar? I ask then, we should have a debate in and around all of these issues in order to answer the legitimate question raised by the review, which I repeat again, it's whether or not there's a proportion of our society that's just not getting justice. The conviction rate cannot be ignored and cannot be explained to me by the fact that women just can't be believed. The conviction rate in these types of crime is way lower than any other type of crime, and something has to be looked at in order to address this issue. I think we lost Rona momentarily. I think she's maybe back. Rona, can you hear us? Rona, can you hear us? No, we're obviously still having some problems. Thank you for that Lord Advocate. What I'll do is I'll move on to our next area of questioning and hopefully we can get Rona back in and just confirm if she's got any follow-up questions. I remind everybody where possible to keep questions and responses succinct. We're now going to move on to some questions around the role of the advocate deputy. I'll bring in Collette Stevenson, followed by Colleen Lytmios. Over to you, Collette. Good morning Lord Advocate and Mr Harvey. As the convener alluded to, we obviously had really powerful contributions from survivors in our previous sessions. I wanted to look at the role of the advocate deputy. There were various statements made, such as going through that whole system was like a second violation. I really just wanted to touch upon, when it goes to prosecution, some of the way in which the statements were taken. In some instances there's like fourth and fifth statements and then when they actually got to the prosecution element of it, the statement was completely wrong in comparison to what it provided and it was over years. I just really wanted to ask you if that is a standard practice, in which case, why is that the case? Stevenson, in relation to the question of statements given to the police by complainers, which is what I think that you're referring to, the police officers who are investigating the crime are responsible for taking police statements from complainers and police from the basis for which an assessment is made by the prosecution service as to whether or not a case proceeds to trial, because from the detail of the complainer's statements and the other report made by the police in relation to any particular offence that's reported, we look to the statement of the complainer and the surrounding evidence to identify whether or not there's sufficient evidence and law to prosecute and whether or not the case should be taken forward. The complainer's statements are productions in any trial and those are disclosed in the disclosure process to an accused's representatives before a trial and you will appreciate that what a complainer said in her first statement or second statement that that is something that's looked at with care by the accused council in order to look at whether or not the evidence given before the court or before commission is consistent with the statement originally given by the police. Those statements are productions in the case and the way in which I require advocate deputies to approach a case of this type is in the preparation phase of the case to read all of the statements given by a complainer, to know these inside out and then arrange for the complainer to see the statement before her trial, in good time before the trial, so that she can read or he can read the statement in a quiet space and in a relaxed period of time and understand what she said previously to the police. If there are issues in and around that statement then I would hope that that would be raised by the advocate depute with the procut fiscal or the advocate depute responsible for the conduct of the case at that stage but I should say that prior to the advocate depute being given the trial for court there is the process during which the case preparer and the procut of fiscal considers the complainer's statements and there are opportunities in that period of time to speak with the complainer and to discuss the case with her and to look at the statements with her and so if there are issues in and around the accuracy of the statement I would have thought and the system that I push for is that that all needs to be identified well in advance of the trial and issues in and around that resolved in order that the complainer is properly prepared for any issues that might be raised in and around inconsistencies in her statement and that's all about the process that I touched on before that I very much pursued when I was an advocate depute which was meeting complainers in a very supportive environment ensuring that they were prepared for court and that they were given all the necessary support that they need and indeed in cases that I've recently prosecuted where their advocacy support worker has been with them, the rape complainer has sat in the room of the advocacy support worker and gone through her statement in a supportive way in order that they're not on their own and that they're given the necessary support and advice in and around these issues so that's how it should work and if it's not been working in that way I'm very disappointed. The difficulty of course is much of the criticisms within the material to the committee are anonymous and can't then be followed up by me or explored in detail but falling on my reading of the committee's, the evidence committee of these complainers that is precisely something that I followed up directly with the deputy crown agent and all of the advocate depute team and it wasn't something that I didn't react to immediately and so all I can say is what should happen what I have done in response to reading the evidence from the committee and what we really are trying to do in driving through improvements with the review that I've asked for and the increased level of training to advocate deputes and procured physicals in and around the expertise that's needed for these cases. Okay, thank you very much. I don't know whether Mr Harvey wants to come in if he's available. Thank you, thank you convener forgive me I was offline there for for an extended period with a connection issue so my apologies I missed the question. I was touching upon our evidence session with the survivors and there was a really strong criticism over the process not just from the prosecution police as well and in terms of given statements the interaction or the lack of interaction from the actual advocate depute and I was really just to see if you feel that as that can act in terms of the delays and the years and the backlog and what not if that's standard practice and if so why and what can we do to try and rectify that? So it's certainly not best practice is where I would start and I agree entirely with the points that I heard the Lord Advocate make once I was reconnected. I suppose that what I would probably add is just a little bit of context in relation to where we are so the staff in particular but case preparers and those involved in contact with victims are seeking to deliver to those standards against a reality as we've said where things are taking longer. There are more cases than there were simply because of the backlog which has built up and there's also as a result of all that and an unintended consequence of the recovery frankly greater uncertainty as to when for example cases will call and I think that that was part of the evidence session that you heard as well and in and around anxieties and the uncertainties about floating trials etc etc so the net effect of all of that is that individual interactions with victims are taking longer and there are more of them simply because of all of these various uncertainties and also because of the scale. So I agree entirely with all the points that Lord Advocate has made. The other point that I would add is that during periods where for example our public counters were closed it was not possible often to meet with complainers in circumstances where it would be helpful to them to be able to look at their statements so in some instances suboptimally we were using teams for that on occasion but that's I suppose an indication of the efforts that were being made to try and ensure notwithstanding the difficult circumstances that we've found ourselves in at different stages that we are in a position to try and make good progress with the provision of information and those discussions which the Lord Advocate has talked about in preparing for cases. So I suppose I'm adding context in terms of scale, context in terms of uncertainty and context in terms of mitigations that have had to be taken in the context of lockdowns in order to try and progress these things whilst in no way taking away from the experience that individuals have had nor indeed disagreeing in any way with the Lord Advocate's points about how things ought to be conducted. Can I just come back to Lord Advocate in its question about who provides the complainers with legal advice at present and really just your views, reviews really on whether victims of sexual assault and domestic abuse should have access to independent legal representation as well? So I think that that's a very good question because the crime office and property to fiscal service doesn't provide legal advice to complainers. We are not the complainers' lawyers. I also think that it's really important that we understand that nowadays there has to be an enormous cultural shift in an understanding of how sexual crimes are prosecuted in the sense that it's no longer a two-dimensional process in that it's crown and defence. The victims of sexual crime have legally enforceable rights. They have rights under the convention, and they have rights that are recognised under the Victims and Witnesses Scotland Act. We have to recognise that they have a voice. They have a right to information, a right to effective participation in the process, and they have a right to be informed about, for example, applications to lead evidence of previous sexual behaviour in court in relation to their case. So these are all difficult issues. These are all issues in and around sexual behaviour and previous sexual conduct. They're all very difficult, but the Crown can't give independent legal advice to a complainer in a case, and it really would have to be an independent lawyer who would be able to give that independent legal advice. The Crown can and does, through victim information and advice, and through the lawyers working within the system, give advice to complainers about particular issues, but it's not independent advice, and we are not their lawyers, and so we are restricted in what we can say and what we can do. I think that the time has come for recognition that there should be independent legal representation for victims of sexual crime. Because of all the issues that we're talking about, the complicated nature of the subject matter, the impact on victims and the challenges that the system provides. I support that, and I support it particularly in the way that Lady Dorian's review has, which is for independent legal representation in and around section 274, 275 applications, because it's important to understand that that process of itself engages victims' rights under article 8 of the convention, and they have rights that are enforceable in that regard. I should also say one other thing, though, in relation to independent legal representation of the issue. There has been, for some time now, legal aid available, non-means tested for victims of sexual crime and victims of domestic violence in relation to recovery of their medical records that would allow them to get independent legal representation where an application is made to the court for recovery of their personal and sensitive records. The law recognises in Scotland that such a complainer, in the case of that nature, can get legal representation, can be heard through her own lawyer in the court process process and can and is entitled to non-means tested legal aid for that application and advice. The tragedy is that I understand through the memorandum of understanding that I have with rape prices who provide me with information in order to assist in the way that we deal with these cases is that often women are turned away by the legal profession who don't seem to understand that legal aid is available and that legal representation and the right to be heard in those applications is available for the complainers at that stage. The law has moved on significantly in a case of WF against the Scottish ministers to set the law for the right to be heard in relation to sensitive records. The Government of the day reacted to that and provided those women with non-means tested legal aid to ensure that they could have lawyers representing them, but the outcome is not quite as predicted in the sense that there is not a real understanding that that is currently available. It goes back to what I said before that there has to be a cultural shift and understanding that it is not two-dimensional, it is three-dimensional and victims of crime have legal rights underpinned by the victims directive enshrined in Scottish law and enshrined in the convention of human rights and we just have to alter our thinking in relation to these cases. Okay, thanks very much. That was really, really interesting and I don't know if Mr Harvey wants to come in, if not, then I'm happy to hand back over to the convener. Mr Harvey, if you would like to come in and then I will have to move us on, I'm just very conscious. Over to you and then I'll bring in, I'll actually bring in Rona Mackay just to follow up on her original question when she dropped out, so Mr Harvey. Thank you convener, I suppose it was just to pick up on that legal aid point and the availability of legal aid, so again as part of system response we have been seeking to promote and highlight that point with the law society and the legal aid board to ensure that practitioners are well aware of the availability of those provisions in terms of being able to secure non-means tested funding for assisting individuals in those circumstances. I suppose just the other point is just in relation to the again the Lord Justice Clark's review and the potential benefits of that independent legal representation, which Lord Advocate has discussed. There is absolutely no doubt from the evidence that you've heard in the private session but frankly something that we have heard repeatedly over a number of years, that there is an understandable combination of misunderstanding and frustration on the part of victims about their perception of the crown role and a sense of dissatisfaction when they appreciate the true nature of the crown role and that that is not necessarily the same as they would expect it to be in terms of in many instances representation of their interests as opposed to the crown's position in representing the broader public interests. Frankly not only would it be of great assistance to those individuals but it would also frankly be of great system benefit enabling prosecutors to focus on assessment of public interest and advocating on that part whilst giving support and clarity and advocacy rights to those victims in the context of applications for material and also in the context of section 275 applications. I'll hand back to Rona Mackay, who we lost, just to pick up on her previous line of questions and then I'll hand on to Pauline McNeill. Rona Mackay Thank you, convener, and apologies that I did lose connectivity. I just wanted to come back on the second part of the question and ask the Lord Advocate what she could expand a bit on her saying that we need to be properly informed about judges and what that actually means and also in that context would you support a register of judicial interests? So what I meant about being properly informed about judges is that I was saying we need to be properly informed about what the role of the judges in the determination of cases of this nature and indeed of very sensitive cases throughout the whole of our system of justice in Scotland. We have a judiciary that's appointed through an open, transparent process and through the judicial appointments board and we have a judiciary who are subject to their own professional rules and responsibilities. They are professional judges who judge and my point that I was making was the criticism that's levied against Lady Dorian's recommendation for a pilot for judge-only trials is that judges don't represent democratic society, judges aren't reflective of society, they're white middle-aged, affluent, university-educated individuals who won't return convictions in the way or acquittals in the way that the current system does, which is properly informed by a jury system. So my point is that we should look at what judges actually do and is that criticism of the judge fair against the background of what judges in Scotland are known to do day and daily in the work that they undertake and we know that in England and Wales and indeed in Scotland thousands and thousands of criminal cases are heard before members of the judiciary on their own and there's no criticism of that process. The magistrates court in England and Wales hears cases without juries as do the crime court in England and Wales in certain cases and the sheriff court hears many cases of the sexual nature and in relation to summary crime without a jury across the country day and daily without any criticism of the process. Judges sit in the court session and deal with very difficult sensitive cases that require very difficult decisions to be made and there's no criticism made of the floor in the fairness of that process. So I think that we're to have a balanced debate about the issues that the suggestions and lady doing interviews give rise to. We need to properly understand what judges do and we need to properly understand whether or not we can just dismiss the judiciary as being the appropriate trial of fact in sexual offence cases as opposed to only ever being suitable for trial by jury. That was the point that I was getting at. I've forgotten your other point, Ms Mackay, I'm sorry. Would you support a register of judicial interests? I think that that's really not a matter for me to comment on as the independent head of the prosecution system, that's a matter for others, Ms Mackay, but what I support is a debate over an issue that is eroding public confidence in the prosecution of a particular time of crime. I'd like a debate, I'd like to see the recommendations of Lady Dorian's review just looked at that in a careful and balanced way. I support the review for that reason and for the reasons that I've given before. Thank you, I appreciate that. Thanks very much, thank you, convener. Thanks very much. I'll hand on to Pauline McNeill now and then I'll bring in Jane. Thank you very much, convener. Good morning Lord Advocate and Crenagent. I'm really interested in the line of questioning that collects Stevenson, started office, and your answer regarding independent legal advice. I think that this is a critical area for the committee to look at and I know what you've said there already is at the right to be heard on a section 274, 275 application where it relates to medical records. My questions really relate to that. First Lord Advocate, do you think that the right to be heard should be wider than simply medical records? An application to use evidence of sexual history at these preliminary diets, you'd have thought that the complainer should have an interesting application and not just medical records, if you thought that the right to be heard should be wider than simply medical records. I think that the right to be heard is available in the pre-trial process or in the process that's called in connection with the criminal procedure and that relates to the recovery of personal and private records. You've got that spot on. That right to be heard is available now and that was confirmed in WF against the Scottish ministers and is in statutory form, and we know that complainers are entitled to be heard on those applications for recovery. The application for 274, 275 relates to the lines of cross-examination that an accused person wishes to lead at trial, which is a very sensitive issue for complainers in those cases. It can be such that it's so troubling and so profoundly impactful that we find it very difficult to cope with, even just knowing that the application has been made, because you can understand that they're waiting at trial and then it's the first real contact that they have in order to understand what lines of cross-examination will be led against them and what attack may be made on their character and what evidence might be led of previous sexual conduct. There's a very sensitive point in the case. What we understand is that different complainers deal with those issues very differently. Each has very different vulnerabilities. It's important that we identify the nature of those and the support that's required before we embark on the process of telling them that the application is made, explaining what the contents of it are and whether or not we think that it would be granted or not granted by the judge at first instance. You can understand that that's a really important conversation, one that needs to be done with great care and support and sensitivity, and currently the Crown do that through contact with FIA and through contact with other representatives of the fiscal service and lawyers of the service. We have engaged in discussions with the rate crisis about that and we have very good guidance in and around how an approach is made to complainers about a 275 application. Indeed, that was informed by rate crisis recently and the guidance has recently been updated. However, you'll see that it's an issue and it's important because the 275 process engages the complainers' legal rights under article 8, so they have to be told about the application and their views have to be taken and reported to the court. Currently, you'll appreciate what Mr Harvey himself has said. We are not the complainers' lawyers. There's a restriction on what we can do and a restriction about the context in which we meet and discuss these matters. I would have thought that the benefit of independent legal advice in and around probably one of the most sensitive issues in the case would be entirely beneficial for a vulnerable complainer who's being contacted about what is probably one of the most difficult issues in the trial process. What that would mean from Lady Dorian's review is that the independent legal representation would involve giving advice and giving legal advice but also being able to make submissions on behalf of the complainer in court on her behalf in order that the court could be properly informed as to how to balance the competing rights in a case of this nature between the rights of the accused, the rights of the complainer, and to properly apply the statutory test under the Criminal Procedure of Scotland Act. I see great benefits in what Lady Dorian's review has recommended and I see enormous benefit in the Parliament discussing that and considering that and indeed the Government consulting on that issue. Mr Harvey, who is part of the review right, just put the comment on that. Ms McNeill in case I've not covered it all off. Mr Harvey, would you like to come in and if I can ask Lord Advocate just in the spirit of time and we've still got a few areas of questioning that we'd like to cover off if you can keep your answers fairly brief. Mr Harvey. Thank you convener, I will keep this answer as brief as I can. So just picking up on that point about the obvious complexity and sensitivity of those issues, I suppose that the other point that I would add is that the current statutory framework requires a notice of one of those applications seven days before a preliminary hearing. In other words, the types of contact, the types of discussion can be in very compressed timescales, which in itself is something that, as part of a package if that is being reviewed, I think is something that, again, as I'm sure all members will appreciate in light of the potential content of those applications, they need to ensure that they are approached sensitively, they need to ensure that there is appropriate time to reflect, they need to ensure that there is appropriate time to seek advice if that's the line that the members are minded to go down, which I would commend, then the current seven-day timescales for all of that are frankly unrealistic. Thanks very much. Thank you, Pauline. Yeah, I mean, these are really helpful answers, so it is clear to me that if we want to pursue this, there's quite a bit of work to be done on this to strengthen this right to be heard, which I do agree with the Lord Advocate on. The question is how do we make that happen both in legislation? I noticed that the Lord Advocate said that women are turned away, so there's work to be done in terms of the legal profession. As my only remaining question, given the shortage of time, I take it if we legislated and created this right, albeit that there are issues with the timescale for the complainer, to be fully represented at a preliminary trial where sexual history evidence is asked for. Can I presume or ask you that the Crown itself would have no objection to dealing with what effectively is a third party representing the complainer, so you'd be satisfied as the Crown agent that you would be able to and be happy to deal with the third party on this? Thank you, Ms McNeill. The answer is yes. Again, referring to the Lord Justice Clarke's review of which I was a member, Paragraph 443 and 444 cover this, and I commend those to members. You will see that if we were to go down this line, we wouldn't be trailblazers. If it's happening in other common-law jurisdictions, and positive research has been produced, which concluded that your provision had two important benefits. One, it allowed the prosecutor to focus on the application purely in terms of its significance for the prosecution, and two, it ensured that complainers could be satisfied that their views were heard by the court deciding the application. Such benefits would apply equally in Scotland, reducing almost entirely the tension between Crown and complainer, discussed above. For all the reasons that are discussed in the report, the answer is yes. I am going to hand over to Jamie Greene now, but before I do so, I am able to extend the discussion this morning beyond 11.30, but I know that those are really interesting topics that we are looking at. However, if I can ask for responses, Lord Advocate and Mr Harvey to be as succinct as possible. Over to you, Jamie. Thank you, convener. I will try and keep my questions succinct. In 2018, the electorate of prosecutions did a thematic report on the victims' right to review. Last year, there were nearly 34,000 cases where Crown Office either discontinued prosecution or decided not to prosecute a case in the first place. What percentage of those complainants were notified of that decision? How were they notified? Why are less than 1 per cent of victims applying for a review to a decision not to prosecute or continue a case? That is the question for Lord Advocate. I hope that I am still heard. I had a problem with my connectivity. You can hear me, Mr Greene. I actually think that the Crown Agents in a far better position than I am to give these sort of figures now. It might be that we cannot give all of them today, but we are happy to follow that up in a letter. Crown Agent, do you think that you have a bit more information than I do? Thank you, Lord Advocate. You are happy to follow that up in writing. The numbers of discontinuations that you refer to just for the avoidance of doubt don't relate specifically to cases involving the main topic of discussion today. I think that I am right in saying, Mr Greene, if I am wrong, that those are figures that relate to the overall proportion of prosecutorial decision making both at first instance and discontinuation. That might involve a whole range of different offences, many of which might not involve any complainer or victim at their heart. Separately, there are provisions in place at the moment in relation to intimation, and those do not yet fully extend to all cases. I think that we have previously written to the committee, but we are happy to do so again in terms of the work that we are doing to seek to explore how we can extend that. I am conscious also that that is something that is in Mr Greene's bill. I appreciate that, Crown Agent. I wanted to flag it because the review was quite clear in its recommendation that it felt that all victims should be notified of a decision and also offered what options of remedy are available to them should they wish to apply for review and the numbers speak for themselves. I look forward to more detail from the Crown on that. My second question is about the issue of the Murrow of Doctrine, which is very relevant to many of the cases that we are talking about today. We took some compelling evidence in our private sessions, and I will not go into great detail from victims of those types of crime who felt that that was perhaps a misunderstood practice and felt that either they misunderstood the implications of that type of prosecution and that they felt that perhaps juries misunderstood the consequences of their decisions as well. That is well documented in the public paper that we produced. I wonder if either the Lord Advocate or the Crown Agent might comment on what measures the Crown are taking to improve communication around Murrow of its practice and whether they felt that it was an appropriate and successful measure or metric of prosecuting people with very complex and multiple circumstances. Perhaps I could start, Mr Greene, by explaining that the Murrow of Doctrine is a very important doctrine of evidence in Scots law, and it is very important to the prosecution of sexual offences in Scots law. As you will be aware and all the members of the committee will be aware, in order to have sufficient evidence in relation to any charge in Scots law, you have to have corroboration, and corroboration is evidence that supports or confirms, in a sexual case, the complainer's account. In relation to that, quite often you would have the account of the complainer, DNA evidence, some eye witness evidence, some evidence of distress, and the combination of those elements of evidence means that you would have sufficient evidence in law, you would have corroboration to use the basis on which to take the prosecution. The Murrow of Doctrine is an exception to the rule of corroboration. Murrow of Doctrine means that you can have the evidence of one complainer taking to a sexual assault against her in relation to the accused, and her case is corroborated not by independent evidence but by the evidence of another complainer speaking to sexual assault by the same accused in similar circumstances that demonstrate that the accused is responsible and guilty of a course of conduct. In that way, you can have the evidence of two individual witnesses, two individual complainers of sexual assault, that corroborate each other, they are mutually corroborative. You would have sufficient evidence to go to a jury, ask a jury to return a conviction against the accused in relation to birth complainers. Each complainer supports the other. The difficulties are right where you have a case, for example, I think that it is documented in the report from the committee, where you have two complainers and the jury rejects one complainer but will leave another. The difficulty is that, in law for that other complainer, there has not been corroborated evidence, so there is not a basis in law to predict. That is what I think was the description given by one of the women who spoke to the committee in such compelling terms. I see what the committee said that it was pretty shocking, upsetting and disturbing to hear that there was a conviction for rape but that it could not be returned because of the way in which the jury understood the operation of the moral doctrine. It plainly had not understood it because, in that case, it must have been that the only way that you could corroborate complainer 1 is if you believed complainer 2, and the only way that you could corroborate complainer 2 is if you believed one, and that would be the only basis for which you would be able to return the conviction. What we can identify from that situation that the committee heard about is that the jury plainly had not understood the legal directions. In a way, that is not unsurprising because it is quite complex and the law of corroboration is complex. I think that what the Crown can do is to make as much use as it can of the rules of evidence to bring forward those prosecutions. The Crown can do all that it can to use the moral doctrine to develop the law in and around the moral doctrine to push the boundaries of that, to try and secure convictions in those cases where otherwise we would not be able to because we do not have corroboration. That is what we can do in and around it. It might be worthwhile thinking about whether or not the directions given to the jury, as Lady Dorian was discussing in her review, are appropriate and adequate and are appropriately reflecting the law, but the jury needs to apply. That is how I feel that I can answer those questions to do. That is all your questions, Jamie. I would like to move on to another area around communication. I will bring in Russell Finlay, followed by Colleen McNeill. Russell, over to you. A few weeks ago, my colleague Jamie Greene and I met some of your Crown Office colleagues who prosecuted in the lower courts. We discussed an issue that is not often really talked about, and that was plea deals. There is one particular case that I am familiar with in which a serious domestic violence case had 16 charges that, after four years, was pled to drop seven and amend some of the others. The victim was not informed of that decision, and some of the details that were amended were quite jarring and, I suppose, re-victimised in some respects. There are two points to this question. One is, should victims be told when plea deals take place and the details about them? Secondly, given the court backlog, is there not a risk that those are going to be used more than they are currently and perhaps disproportionately so to the detriment of justice and what safeguards are there against that happening? Mr Finlay, I will follow up the issue that you have raised about that particular case. I think that it was with Mr Loog that you met John Loog, is that right? Yes. Yes. I will follow up that particular case because it is standing— It is a historic case. I mention it as an example, but I do not suppose that there is much purpose in revisiting it, but I just mention it to give people, I suppose, an idea of what does happen. All I can speak to is the practice that I understand should take place in relation to those cases, which is that, if there is a plea on offer from the accused that what happens is Procate of Fiscal Depute or indeed the Advocate Depute discusses that with the Defence Council and the Defence Agent and decides whether or not, on the basis of the evidence and in the public interest, the plea that is an offer is acceptable. It might be that some of the detail of the plea, the complainer does not understand or does not approve of it, but what I understand should have happened, and I always did, and I understand the standing instructions to all lawyers in the services, is that there is a discussion with the witness about the plea, with the complainer about the plea, and they are told what the detail of that is and the basis on which it is accepted and the reason and rationale for that. I am disappointed to hear that, in a case that you know of, that that should not happen because it is imperative that victims are told about plea deals in their case at the time before they hear it and record it and that it is done in a sensitive and supportive way. That is what I have always done and that is what I expect to be done. If that has not happened, I will make efforts again after today to reinforce that instruction that is service-wide and an instruction to the advocate team. In relation to the temptation to do a plea deal because of the backlog, I think that that is what you are hinting at, Mr Finlay, that there might be an temptation in part of the prosecutors to say, we will just take a soft plea in order to get through this backlog. I just reject that that would be temptation for any prosecutor prosecuting the public interest. It is certainly not an approach that I would give any support to whatsoever. The difficulties with the backlog remain, as I said in my first evidence session, political solution. We have a responsibility, a moral responsibility, to look again fresh at where we are with the backlog, and we need to look around at remedies to that, but it cannot be that soft justice is the answer, and I certainly do not support that. I wonder if the Crown agent could come in because he will be better with a better position in terms of the overall service approach. I will be brief, convener. Crown policy has not changed in light of the pandemic, in relation to the first point. There have been calls from various individuals within and outwith the system, but in some way the Crown should take some sort of wholesale approach in terms of trying to resolve the backlog that is rejected. That will not be the approach, and individual cases continue to be assessed in terms of individual public interest. I suppose that, just picking up on the initial case that prompted the question and appreciating Mr Finlay's comment that it is now historic, but for the avoidance of doubt, since this is a public hearing, there are complaints and handling procedures that are available to all members of the public. If there are situations that give rise to the kinds of concerns that Mr Finlay has alluded to, we would want to hear about them, and I would encourage people to look at the material that is available online as to how those complaints can be made and they will be acted upon. I am reassured by the commitment from you both that, going forward, the plea deals will only be taken in the public interest and the interests of justice, but the case that I referenced was not unusual. From the conversation that I had with your colleagues who prosecuted in the lower courts, my understanding was that there was not the mechanism to routinely inform complainers about plea deals just perhaps through volume of work. It may be that the Lord Advocate in her day, when she was prosecuting the higher courts, was more likely because she was perhaps prosecuting fewer cases, albeit more serious ones, but, again, thank you for your answers. Thank you very much, Russell. I will hand over to Pauline before we move on to our next area of questioning. There has been a suggestion that a single point of contact with the complainer might reduce the scope for complaints around communication. That is my question. Do you think that it is practical to do that? What would then be the relationship between that and Victim Support Scotland? I must say that when I was listening to the evidence on that, I would not go through all the testimony, but we had lots of failures in communication, so that would be a way of solving it. Do you think that it is practical to do that? Who would do it? I kind of thought that that is what Victim Support Scotland did, but maybe they do not have the capacity to contact the police and the Crown, and anyone has ever tried to—it is not a clear, I cannot just lift the phone, that is the problem—wasn't it? I asked the fiscal what was going on before we would even know where to find the number, so somebody has to do that for them. I just wondered who you think should do it, and is it practical to do that? Thank you very much. I think that, Mr McNeill, this is probably something that the Crown agent could give you more detail on. I know that Leslie Thomson produced a report on and around all of that, recommending a single point of contact. One can see the sense of that. There is one single point of contact that gives you all the information throughout the history and journey of your case, and that means that you have consistency in your advice and confidence in the system that is giving you the information for your case. It just stands to good sense that that would be the way forward. I think that there is work being done in and around that, that the Crown agent could come back on, and how that links in with the Crown officers' victims and information advice. I think that he is better pleased to explain the strategic arrangement that that would require. Thank you very much. Mr Harvie, do you want to come in with anything additional? I might look back once again to the theme of the day of the Lord Justice Clarence review. Members, if on careful reading, will really note that there are three elements in this area. There is the single point of contact, there is the advocacy and there is the independent legal representation, all of which I would respectfully suggest are gaps in the system that are leading to many of the frustrations that you have heard about during the various evidence sessions. Insofar as the single point of contact is concerned, Lord Advocate is correct, and members, again, if they were part of previous committees, might recall previous discussions about the Thompson review, the recommendations that were there and the work that was then taken forward by the Victim Task Force. That work is on-going. It is led by Victim Support Scotland, with support from the Scottish Government, and it is supported by all justice organisations, including COPFS. That is still at the design phase. We entirely support the work that is going on there. All I would say is that, when one looks at single point of contact, when one looks at advocacy services and when one looks at independent legal representation, given that none of those teeth rings exist, that is further investment in the system, is what I would say. Therefore, consideration will not have to be given to that in terms of not only legislative vehicles, but also organisational structures and budgets. I am going to move on now to some questioning around use of pre-recorded evidence and culture issues, and I will bring in Fulton. Fulton, over to you. Thanks, convener. I have a question for the Lord Advocate on something that we heard in our private sessions, the private testing that we heard from survivors around culture within the Crown Office. The example that we heard was about the advocate deputes acting like they were part of an old boys club and being friendly with the defence council now. I think that we can all understand how that might come across because people will know each other and defence lawyers will know advocate deputes and such like. I am just wondering though, is that something that the Crown Agent and the Lord Advocate recognise? Is it something that is a cultural issue that could perhaps be addressed if it is indeed recognised? Mr MacGregor, can you just be clear about what the criticism was that a complainer in a sexual offence case considered that the advocate depute in the High Court was too close to the defence and looked as though they were friends and part of what seemed to be an inappropriate relationship or too close? I just want to understand. I think that that is a good summary. We know that the people who are victims and who are having to present at courts have a very difficult time for them. That particular person was their experience and they were quite definite on it. Was that a one-off or was it something that you recognised as being an issue? Obviously, those people will have professional relationships and there is no getting away from that as well, but that can then look like something else to somebody going through such a traumatic experience. I completely agree with you that it would be very upsetting to a complainer in a sexual offence case if she was in court in relation to her case. She considered that the prosecutor was behaving in a way that was inappropriate and demonstrated to her and to her eyes that they were overly friendly and part of what you would describe as a voice club. That is just entirely inappropriate and inconsistent with anything that I believe in. A prosecutor in the High Court and indeed any other court has to be respectful of all the individuals who appear in the court—the judge, the defence counsel, the accused and the complainer. You have to behave with appropriate professionalism and you have to give each and every one of those individuals respect. You have to recognise that, for a complainer in that situation, if he is very vulnerable, if he is exposed and all he is looking for is justice, that sort of conduct, as described, is inconsistent with the way in which I consider cases to be prosecuted and I am deeply upset to hear about that. It is not something that I recognise, but we are. We are not immune to criticism and we are open to self-reflection. I have, as I say, appointed to Zantanarch, UC to review and as part of that review we will be examining our own conduct, our own engagement with complainers, because it is an aspect of humanity that we deal with these people respectfully, properly and we feel that justice has been done in their case. Thank you for that, Lord Advocate. Thank you for that very definite and strong response. The individual who took time out to come and speak to the committee privately, if she is watching this or watches it at some point in the future, I hope that she will be pleased with that pretty strong response from you. Convener, I think that there is something in the chat about David Watman. I will bring in Mr Harvey. Do you want to come in on that? Sorry, no, convener, not on that, and I do nothing to add to that one. Okay, sorry, that might be my fault. I might have misread the chat there, convener. Yeah, I have got a second question as well. If that is okay, convener, I know we are tight in time, but it is on the taking statements. I know that this has already been discussed and Lord Advocate has already given a good overview on this, but on the introduction of pre-recorded complainers evidence in serious sexual assault cases, I wonder if there are any barriers just now to introducing this service quickly. I also wonder if those could be extended for domestic abuse cases and whether Lord Advocate can read it out or plans on that area. That will be me, convener. In relation to recorded statements, there is a pilot to visually record the statements of complainers in rape cases taking place in a number of jurisdictions that the crownage will tell us about. We are yet to hear about the outcome of that pilot. I am not sure what the situation is to domestic violence cases, but there is a recognised and leaded orange review benefits from evidence that has been taken on commission, and that means that the evidence is captured before the trial so that a complainer evidence is recorded and they do not need to wait for the trial to come to court. I have to say that, in and around all that, there are some issues. While we are working along with the leaded orange review, while we are seeking to implement those parts that can be implemented without legislation, there is a push for evidence being taken on commission. As Lord Advocate and having spoken to a number of prosecutors in those cases, I think that, from my perspective, I would like to see just how impactful prerecorded evidence is in terms of securing conviction or otherwise. We are at very early days with evidence being recorded on commission, and we need to be careful about a wholesale adoption of that. I say that because, sometimes, the prosecutors that I work with and I support tell me that they are anxious about the impact of the evidence in court, in a live court, and the question whether or not a recorded evidence is as impactful as live evidence. That is one question that we need to explore. I have also had situations in which I have met victims of sexual violence who have told me that they felt disengaged by the process, that they felt that they wished that they had gone into court with a screen, and that, although they chose to give evidence remotely to CCTV, they found that they did not enjoy that and felt disconnected by the process and felt that they perhaps did not come across as well as they should. I repeat what victims of crime tell me, but I also know that there are some benefits in prerecorded evidence in terms of commissions because it means that victims do not have to wait ages to give their evidence in court, and they do not have to put up with constant adjournments of the cases before they are called to give evidence, which is a feature currently of the system that we have. Because of the backlog, because of the number of cases in the system, cases are repeatedly adjourned before the witness gets to come into court or give their evidence remotely. It is not a straightforward black-and-white issue, and we need to take care to revisit all of that issue in a reasonable period of time. Perhaps a crownage you could tell me about recording in domestic abuse cases? I just do not know the answer to that just now. Thank you, Lord Advocate. Fulton, if that is your line of questioning finished, I think that Mr Harvie wants to come in. I will bring in Pauline McNeill and Russell Finlay, who are both interested in asking supplementary questions on that. Mr Harvie? Perhaps, given the time available, I can fall up in writing in more detail, but the headline is in relation to some of the cases that evidence by commission has not used at present. The video recorded interview process that I referred previously to in pilot again tends to be at the higher end in terms of allegations. In that context, particularly in relation to those cases that are likely to end up as summary prosecutions, perhaps the discussion and correspondence in any future discussions might want to focus on the potential of body-worn cameras in that context. Thank you very much, Mr Harvie. I will bring in Pauline McNeill and then Russell Finlay. I imagined one of the key issues about pre-recorded evidence. Forgive me, I have not understood the process. That is the cross-examination of the complainer in court. How does that get done then? I imagine that the person standing trial lawyer would want to put questions to the complainer. Is that done before, or is that done in court? It would be helpful to know. Would you be concerned about that? I certainly have a concern, but I just would like any answer you have to that. Thank you very much. I hope that I can answer most of that, Ms McNeill. In relation to evidence that is pre-recorded, that would be her evidence in chief. That would be played either at a commission where cross-examination would then take place, or it is played in evidence in chief at the trial, and cross-examination takes place at the trial. It might be that the victim gives evidence remotely, or indeed it can be in court. I think that, undoubtedly, in order to ensure a fair trial, there has to be an opportunity for the accused to cross-examine the witness. Pre-recorded evidence means that it can be used as evidence in chief, but the opportunity to cross-examine must remain, and it would depend on the way in which the evidence is led at trial. I suspect that, if you have evidence in chief recorded, it would be done—the cross-examination would then be done on commission, and those recordings would be played to the jury at the trial. Thank you very much. In a similar theme, as in discussing support for victims and witnesses, I think that in your opening remark, you said that you tasked Lindsay Miller to review the Crown's Victim Information and Advice Service. The question is, does its ability to help victims and witnesses not boil down entirely to decisions that you make about your budget? In other words, the primary function of the Crown is to prosecute crime. Ergo, that takes up by far the biggest slice of your budget. Given the chronic backlogs, funds for victim information will always be a secondary consideration. Do you agree with that, and, if so, can anything be done about that? I do not know about the budget and the allocation to VIA. It has given me only six months since it entered the role. The Crown agent will be able to give you a chapter in verse on that. I am sure that, Mr Finlay, we really want to ensure that VIA communicates effectively and timelessly with complainers and that they do it in a supportive and sensitive way. The backlog has meant that each individual VIA officer has cases for far longer, and probably their individual caseload has increased by 100 per cent, perhaps even more. The challenges that the backlog brings is that VIA has cases for longer, and they are finding it more and more challenging because of the immense emotional involvement that VIA requires to give. The fact that their cases are lasting for longer and that there is anxiety in and around adjournments and delays is making the job much more difficult. In a sense, some of the hidden issues of the backlog relate to people in the service who do distinct roles. Those involved with VIA at the co-face are dealing with the difficulties that victims and witnesses have because of the backlog. Those are major challenges, and that is part of the reason why we instructed Lindsay Miller to conduct a review. Perhaps the Crown Agent will answer your point on the budget, Mr Finlay. Thank you, Lord Advocate. I am happy to provide further information. On the broader context point, cases are taking longer. There are more of them. There is greater uncertainty as to when they will call, and there is the overall societal issue of greater uncertainty in terms of restrictions and the pandemic and availability of diets. As far as the impact that that is having on VIA and their case loads, just by way of illustration, the most recent figures that we have indicate that the number of contacts—in other words, the number of times that VIA officers are in discussions with complainers has increased by 92 per cent since March 2019. That is obviously significant. Coming back to the budgetary point, I am bearing in mind that we are constantly moving picture in relation to the nature of the backlog, the nature of Covid variants and the implications that that has for the system. We have consciously increased the VIA staffing in the High Court and continued to do so on a previous occasion when I spoke to the committee, I referenced the on-going recruitment exercise. As far as High Court VIA is concerned, there will have been an increase of over 50 per cent in that staffing capacity once those posts are filled. You will appreciate that, even with that and those projections and the budget that we have, there is a difference between 50 per cent increase in staffing and 90 per cent increase in demand in terms of contact. The other point that I would highlight is simply that the enhanced court programme, moving from 16 High Court trials to 20 High Court trials, while welcoming and tackling the backlog, does by definition mean that more of those VIA officers need to be, for want of a better phrase, court-facing, which is important in terms of the experience for those who are going through court at that particular moment and fine, but increases the pressure on those who are seeking to support in relation to those cases that have yet to come to court. That is why the review is necessary, it is a constantly moving picture. We have been planning in terms of mitigations that have been taken in terms of the increase in staffing, but candidly there is much more to do, which is why the review is necessary. Mr Finlay, do you want to come back in? Please. Sorry, I just wanted a bit of clarification on the 92 per cent. Mr Harvey, I did not quite know what that related to exactly. In terms of interactions with complainers, compared to March of 2019, just as a baseline—in other words, a pre-pandemic level—the number of interactions that an individual VIA officer is having with complainers has increased by an excess of 90 per cent. Thank you very much indeed. Time is against us as usual. We were hoping to ask some further questions around the backlog of cases, but we will follow those up in writing. Lord Advocate, you mentioned a review that Suzanne Tanner will be conducting. It would be helpful for committee members to perhaps have some further details from you on the review, and if we could ask for you to write to us on completion of the review with some updated information on any appropriate actions that are identified, that would be helpful. In the meantime, I thank both Lord Advocate and Mr Harvey for your time today. It has been most helpful. As I said, if there are any questions that we have not asked today, we will follow those up in writing. That concludes the public part of the meeting. Our next meeting will be on Wednesday, 12 January 2022, when we expect to take oral evidence from the Cabinet Secretary for Justice and Veterans and witnesses from the Scottish Prison Service on the SSI entitled, The Prisons and Young Offenders, Institutions Scotland, amendment rules of 2018-21. Further details on that meeting will be available with the agenda and papers on our website in early January. In closing, I take this opportunity to thank all those who have given oral and written evidence to the committee in 2021. I wish all staff, witnesses and members of the public a very safe and happy festive season and a very happy new year. Thank you very much, and we will now move into private session.