 Good morning and welcome to the 26th meeting of the Criminal Justice Committee in 2023. We have no apologies this morning, again. Polling McNeill is just running a little bit late and will hopefully be joining us shortly. Our first item of business is the continuation of evidence on the victims, witnesses and justice reform Scotland bill. As a reminder, we are at phase 1 of our scrutiny byll, o fwy o bwysig o bwysig o fwy o bobl yw'r cyfnod o'r part yw i ddweud o ddweud o'r byl. Mae'r parts yw'r byl mae'r cyfnod o'r fwy o bwy o bwy o ddweud o'r bys, o bwy o myl o'r cyfnod o'r byn, o ddweud o brwy o bwysig o brwy o'r byd, o ddweud o brwy o bwysig o brwy o bwy o bwy o ddweud o gweithio cyffredinol. Rydw i'n sefydlu ffysg ysbyt yn ymgyrch Fyelubscribenyddiol flows anion ni. I we will then move on to considering other parts of the bill. We are joined by a panel of organisations who represent the legal profession, so I welcome James Fowlas of Balford medicine and a member of the Family Law Association. Mr Stewart Monroe, convener of the Criminal Law Committee of the Law Society of Scotland and Jonathan Campbell, president of the Edinburgh Bar Association. Welcome to you all. I refer members to papers 1 and 2. I intend to allow about 90 minutes for this session. Before we get under way, I would like to ask members to be succinct with your questions and panel members to be succinct with your responses. If we can, let's try to work through parts 1, 2 and 3 in terms of our questions. If I may begin with a question on part 1, namely the proposal of a victims commissioner. In broad terms, are you supportive of the proposal for a statutory victims and victims and witnesses commissioner and why? I'll maybe come initially to James Fowless and then I'll bring in Jonathan Campbell and then finally Stuart Monroe. The Family Law Association would broadly be supportive of the introduction of the Office of a Commisioner. I note from the bill that how that may operate in a civil context remains to be seen. As a result of that, I suspect that my ability to comment on it would be limited. I think that probably I would pick up on an observation that has been made during the previous evidence gathering session that what exactly it would do that is not already done by other agencies would perhaps need to be clarified. It appears to me that the value of the Office would be to parties who consider themselves or are seen to be vulnerable. The creation of an Office by statute for them to go to and I suppose represent their views and interests would be something that would be valued by them and feel that they are given a voice that they do not already have. It seems to me from the powers that are envisaged at the moment that the main ability of a commissioner would be to bring political pressure to bear both through the preparation of a report with recommendations and the conducting of investigations with presumably the power to make recommendations at the conclusion of that. It did occur to me when looking at the bill that, for example, when it comes to the power to request information, if that power is to have some force, clarity as to, for example, the timescales within which it is expected that that information would be provided to the commissioner would assist. One perhaps more narrow observation that I would have in relation to the remit of the commissioner, which perhaps more applies to point part 2, but I will touch on briefly, is that if it is anticipated that the commissioner will be an individual who is expected to ensure that trauma-informed practice is observed in the criminal and civil justice spheres, I wonder whether a commissioner for victims and witnesses would cover every situation in which trauma-informed practice is important. I say that thinking about family cases where, for example, there will be perhaps an individual who is making allegations that they have been the victim of abuse and, clearly, trauma-informed practice is something that should be in the minds of individuals dealing with that individual. There is also, in my view, the potential for an individual to be experiencing trauma, if, for example, they are the subject of those allegations and they are facing a scenario where, in the short term, they are not seeing their children or are facing the prospect of that being a long-term scenario. I raise that simply as I suppose an observation about whether a commissioner for victims and witnesses, if that is the label that is chosen for that office, is perhaps the best person to monitor compliance with that principle broadly. I think that those would be my general observations. I will move swiftly on to Jonathan Campbell. The Edinburgh Bar Association supports the appointment of a victims and witnesses commissioner. We have some concerns about the functions within the bill being ill-defined and extremely broad, but we recognise that they may be refined in time. I think that there is an on-going tension, I think, with some of the terminology that has been chosen in so far as in the criminal justice sphere. We use the term victim in the context of someone who has gone through the process of a criminal trial in respect of which there has been a conviction, and the term that is used in the criminal law sphere prior to that is complainer. One of the concerns that we have is about the name that has been selected for the role, and, as has been detailed in the Law Society of Scotland response, we want there to be sufficient recognition of the legal terminology that we use in practice. We also have some concerns about the way in which the commissioner's role would encompass that of defence witnesses and, potentially, accused persons. We understand that, perhaps in the civil sphere, there is not that clear distinction, but in the criminal sphere, we often require to call defence witnesses, they can often be persons who have underlying vulnerabilities. In particular, as we come to when we talk about trauma-informed practice, there can be quite a significant crossover in the criminal sphere between persons who, perhaps on one occasion, have been called as witnesses by the crown and, on a separate occasion, face allegations themselves as an accused person. One of the concerns that we have is that there is perhaps not adequate recognition within the bill about that. Touching upon what Jamie has said about the lack of specification of time limits, that is something that I would concur with. There is also perhaps not clarity about what the potential penalties would be for failure to comply with requests for information or requirements to give evidence. For that role to have full effect, there needs to be clear definition of that, as there is in the context of other professional bodies making requests of defence solicitors. Broadly, we support the appointment of the Victims and Witnesses Commissioner. We recognise that there is a place for it, that there is scope for it, and we recognise that it has to be an independent role, independent of particularly other criminal justice partners. It is perhaps an area of the bill that I can say in respect of criminal defence solicitors and the Edinburgh Bar Association. That is one of the less contentious. The Law Society of Scotland represents all solicitors in Scotland, and that is not just those doing criminal defence work, even though I come from the criminal law committee. The society, as with the Edinburgh Bar Association and the Family Law Association, supports in principle this part of the bill and the objectives set out therein. The only thing that I would seek to add to what has already been said is that, in a legal sense, the position of witnesses and complainers in the criminal justice system has been slowly evolving over the years. The courts have recognised that witnesses and complainers in particular can have particular interests that need to be protected, such as in relation to the release of confidential medical records and any proposed attack on the character of witnesses in the court process. Those concerns have resulted in changes in practice through effectively hard-fought cases brought before the courts, very often by way of judicial review. Those are not processes that are easy for individuals to access. In addition, there is sometimes a concern that legislative change such as in the Victims and Witnesses Scotland Act has not always had the practical effect for individuals in terms of filtering down to practice on the ground. Finally, there are countless anecdotal accounts of poor experiences in the system that can often be as simple as a lack of communication or issues around resources that are not really something that this committee or Parliament can necessarily do a great deal about. For those reasons, we feel that it would be a benefit to have somebody whose job is effectively to champion the interests of witnesses and complainers within our system and to try and shine a light on some of those issues. It is back on to the commissioner again. What is it that you think the commissioner will do that is going to be better than the current charities that we have that already speak out on behalf of victims, complainers and witnesses? We heard from some of them last week. It is going to be a substantial cost to set that up. What is it that you think that the commissioner will do that is not already done by the charities that he has done in the voices already? It is a fair point. Some of the charities that are involved in this area do tremendous work, including some that you heard from at the previous session. The charities are often able to speak with real authority because they have a very close working relationship with individuals who have been through those experiences. The issue is simply that a commissioner may have a more structured, mandated role in being able to access information from public bodies criminal justice agencies and speak for the cohort of victims and witnesses as a whole rather than just the individuals that they represent. However, if it were to come down to a choice as to where to spend the money, I appreciate that that is a very different matter altogether. Perhaps it is simply a formalising of the process. The organisations that you have heard from in a previous session have been very successful in lobbying the Government, in lobbying other justice partners, if we can put it that way. However, they are largely voluntary organisations and perhaps do not have one formal figurehead. I suppose that the victims and witnesses commissioner would provide a representative who would act in their interests and somebody to whom the many and varied considerations and concerns that they have could be directed. In terms of whether or not it is necessary, we support the appointment. I think that it is really for others to assess whether or not the money is best spent in that particular area without a clearer definition of the role. It is difficult for me to comment on how specifically it would operate and it would work. Perhaps it would take some of the burden away from the voluntary sector and allow a single point of contact, which can always be useful and can help to have changes perhaps implemented in a more coherent way and quicker. I would be concerned that some of their voices would be diluted going to one person. How accountable do you think the commissioner would be? At the moment, we have already got a cabinet secretary and a minister that are accountable to Parliament. How accountable is the commissioner going to be? It is a difficult question for me to answer. I can understand your concerns about the dilution of the voices that we already have at the moment, but it is within the remit of the commissioner to ensure that they have a very broad function, but they have to ensure that they take into account all the views of the interested parties. It is a very difficult role. It encompasses many aspects. In the law society response, it gave a breakdown of the different categories of cases that appear in our courts. It is important that we do not simply focus on the sexual offences that are perhaps at the heart of a number of those reforms. It is certainly a broad role. It is a difficult role, but I do not think necessarily that it would dilute the existing work that is being done. I think that it would provide a focal point where perhaps there is not one at the moment. I think that everything that has just been said is perfectly fair. It is important to remember that the business that goes before the criminal court sexual crime accounts for a relatively small proportion of it is not to say that there are not very specific issues that arise in those cases. However, the act as a whole or the bill as a whole is focused on victims and witnesses across the board, so it is important to keep that in mind. There are bound to be voices that are heard more clearly than others in this process. I suppose that one of the arguments for a commissioner is to try to ensure that everybody's voice is heard in one way or another. On another subject, section 12, the powers there. The powers restricted when the person is a member of the Crown Office and Procurator Fiscal Service, but there is no similar exemption for defence agents. Could you expand on that? I know that there were concerns in the submission that was put in. Could you expand on what the concerns were? I think that that was in the law society submission. It may be that, in practical terms, it is difficult to conceive of a situation where that would necessarily arise. The drafting of section 12 is clearly consistent with the way in which similar investigative powers of Parliament are set out in the Scotland Act as I understand it. And there is a particular reservation for circumstances where the Lord Advocate considers it would not be in the public interest to supply material, for example, that a parliamentary committee called for. There could conceivably be circumstances where somebody representing the interests of an individual complainer, for instance, or indeed an individual accused, was concerned about the public interest issue that might arise from disclosure. But equally, it may well be that that would be protected by subsection 3, which effectively provides that no material requires to be produced, which would not be required in equivalent proceedings before a court. Maybe something for consideration, whether at a practical level it would give rise to any real difficulties, I'm not so sure. I would echo that. We were concerned about the provisions of section 4 of part 12. They are not being a link exemption for the defence bar, but I think that subsection 3 of part 12, providing the general exemption in relation to matters which a person or would be entitled to refuse to answer questions or produce documents in a Scottish court, perhaps covers matters of legal privilege. I think that that is sufficient that it would address any concerns that we have. I would like to ask Stuart Monroe, my first question, and then Jamie Fowler. I just wanted to pick you up on something that you said about your concern about there could be no practical effect and it wouldn't filter down, etc. I just wondered if you could put some context around that and expand on what you mean, because, obviously, legislation that is passed here is incumbent on the legal profession and solicitors to carry it out, so I wonder if you could maybe expand on what you meant by no practical effect. I think that comment was in the example of the Victims and Witnesses Scotland Act, and it wasn't really from the defence perspective. It was the extent of which individuals who were complainers in criminal cases were able to get the information that they considered that they were entitled to in terms of that act. The, again, entirely anecdotal experience is of a very variable response, whether that is from the police or from the Crown Office, in being able to get information about what is happening in cases. Should the Honour not be on you and the legal profession to make sure that they do have that? No, I am talking about information being provided by criminal justice agencies to... The example that I am seeking to give, for example, is a complainer who wants to know what is happening in a criminal case, who maybe with the assistance of a solicitor makes inquiries of the police or Crown Office and is concerned about the lack of information that is provided. That is variable in my experience. Certain individuals are able to get very comprehensive information, others are not. The point that I was simply seeking to make is that, from the perspective of those end-users, as it were, those complainers in the system, they do not find that necessarily the Victims and Witnesses Act gives them a straightforward solution. I think that the point is about to what extent are those principles actually capable of being acted upon, actually capable of being enforced. The focus, as I say, of that example is not on the defence bar, but on the criminal justice agencies and how they engage with that legislation. Jamie, you said in your opening statement that you were broadly in favour of a commissioner and that it would be, in your view, to represent the interests of victims or witnesses. Given the fact that they cannot be involved in individual cases, how effective would you think that would be? Would your preference be that they were involved in individual cases? I suppose that dealing with those questions in reverse order, in the civil context, I do not think that I would be in favour of the commissioner being able to become involved in individual cases. I think that, procedurally, what their locus would be would be perhaps difficult to ascertain in circumstances where there is a difference between the criminal sphere where an individual who is a complainer probably does not have the benefit of legal representation and a civil case in which you have a pursuer and defender. In relation to procedural questions during the course of the process, both or all parties, if there are more than two, parties in the proceedings will have an opportunity to make representations, and if they have legal representation, have their position represented to the court in relation to those questions. I do not necessarily see a justification for the commissioner having an ability to become involved in specific individual cases in the civil sphere. In relation to civil cases, as I said, I am conscious that how the involvement of a commissioner may work is very much a work in progress, and I think that that is acknowledged in the terms of the bill. It occurs to me that, logically, the merit in it is that if a commissioner has an ability to represent the interests of complainers or victims, depending on what terminology is being used, in relation to how the criminal justice system is operating, there is an overlap in a significant number of cases between individuals who have been involved in criminal cases, particularly concerning domestic abuse, and individuals who are involved in civil cases. Again, particularly in the context of family proceedings and proceedings concerning the welfare of children, I think that there is a logical sense if a commissioner is going to have the ability to ensure that proceedings within the criminal justice sphere appropriately safeguard rights and interests of those individuals, that they equally have the ability to ensure that those same rights protections are not undermined by how proceedings within the civil justice sphere are conducted and are operating. So you think that there could be a role there? I do, yes. It may well be a narrower one and one that is less frequently used than in the criminal justice sphere, but yes, I do. Before I bring in Russell Finlay, if I may, I wonder if I can just come to use Stuart Munro. Just picking up on the point that the line of questioning from Rona Mackay, in the law society's submission, you welcomed the proposed restriction on the commissioner intervening in individual cases. Are there any additional points that you would like to make in and around that, just following on from the response from Jamie? Not really. I think that a lot of that also brings in what I think is a later part of the bill in relation to the provision of independent legal representation for complainers in certain cases. I do think that that potentially will go a long way to addressing some of the concerns that might be in members' minds. Jamie is absolutely right that in civil cases both parties in that case will generally be legally represented, whereas in a criminal case complainers will usually not be. I think that, again anecdotally, complainers often speak of the very considerable benefit of having access to independent legal support. There are very serious questions about the funding of that, about signposting the right kind of advice, about knowing who they can go to to get practical advice, about some of the remedies that I was talking about earlier, such as the Vulnerable Victims and Witnesses Scotland Act. It is difficult to see that, if the commissioner became involved in individual cases, A, how that would work in practice, given the sheer volume of cases that go before the courts, how the time could be split effectively to allow meaningful engagement in individual cases, what that might mean for imbalances in treatment and to what extent that could impact on the criminal justice process as a whole. Broadly speaking, we were of the view that there were probably better ways of addressing those concerns than allowing direct involvement in individual cases. Two questions initially, and perhaps if we get time more general one towards the end. The first question relates to part 1 on the Victims Commissioner. It is in relation to evidence supplied by the Law Society in its written submission. Section 21.2 applies just criminal justice agencies to comply with the request to cooperate with the commissioner in any way considered necessary for the purpose of their functions. However, the society goes on to say that there is no enforcement mechanism provided in the event of non-compliance. It may well be that there is no likelihood of non-compliance by criminal justice agencies, but we have already heard evidence from some contributors to the committee that the commissioner may lack teeth. I wonder from the Law Society's point of view what could be done to fix that and ensure that co-operation is guaranteed and there is some kind of mechanism to ensure that. You would like to think that criminal justice agencies would be slow to reject any request for information from the commissioner. By the same token, as I said earlier, you can see the parallels in the bill with the phrasing of the powers of committees in the Scotland Act. The Scotland Act does have teeth in terms of the penalties for non-compliance. I do not have it in front of me, but I am pretty sure that it does. There might be sense in having a broadly comparable provision in the bill to effectively create a penalty for failure to comply, whether or not that, in practical terms, is ever going to have to be deployed, of course, as in the other matter. Is there a sensible amendment to include, presumably, on the basis that it might happen? Ultimately, there is little point in having a power to request something if there is no compulsor attached to it. In relation to part 2 trauma-informed practices, we hear repeatedly from victims or complainers, depending on your preferred terminology, about the difficulties that they experience going through the criminal justice process. They often talk about the same issues of lack of communication, delays, uncertainty and all the difficulties that go with that. I wonder whether there is really a need for legislation to bring into force trauma-informed practice within the criminal justice process. Why do we need legislation to do that? I do not want to steal the thunder of anybody else. Trauma-informed justice is not a completely new and entirely different way of approaching things. One would like to think that most practitioners in the system are broadly facing in the same direction. I can maybe just intervene at that point and maybe just pull members back to part 1, just focusing on victims and commissioners. I do not like being too precious about questioning, but if we can maybe just pull it back for us, just so that members have the opportunity to explore part 1 first and then apologise for interrupting us. Pauline McNeill, I will bring you in. I apologise to everyone for being late. Feel free to stop me if I have got this wrong in terms of part 1, because there is a little bit of crossover, but I understand how we are doing this. It is just an answer to the question about the establishment of a commissioner. It strikes me that what you might be setting out is the arguments for and against a commissioner, as against some of the inadequacies in the system for victims and complainers in relation to their rights to know what is going on. You said in answer to Sharon Dowie that the Victims and Witnesses Bill does not really give any rights, and is it a question of creating a victims commissioner that would not take on individual cases but can investigate certain matters, as against maybe the legal rights of complainers to know what is going on with their cases? It might be a better alternative to if you see where I am going with this. It is relevant, because that is the way I see it, is that would the money better be spent in giving those rights? Do you think that putting a duty in the bill in relation to providing information for complainers and victims about the status of their case? In previous sessions, the law society and the legal profession have pointed out in relation to the delays that it is impossible to know when your case is getting called, even as a practitioner. There is no transparency around whether your case will be called in time or they will use the powers under the Covid legislation. I understand that having questioned the Court Tribunal service on this, it will be down to the availability of council, availability of courts. It is not that I am suggesting that they are preferring one case over another, but I am clear in my own mind that currently, as the delay gets less, there is still no transparency around when cases get called. Fundamentally, I suppose that my focus is on giving victims better rights to know when their court case is going to be heard. If you saw the question of victims commissioner versus other things that we could do in the Victim Witnesses Bill to make that better, I am sorry that that is so long. That is all that I have to say. Again, is that directed to me? Stuart, yes, please. Thank you. I do not want to hog the microphone. I think again from the society's point of view, it is recognised that there are many things that could make the system better. Everybody shares an interest in making the system as trauma informed, as efficient, as inclusive as it possibly can be and nobody wants to see people finding the system any more damaging than such an adversarial process inevitably will be. There is a whole range of things that could be done to make that better. We already have certain provisions in law, so, for example, about the entitlement to know what is going on in a case, section 6 of the Victims and Witnesses Scotland Act, define what information means in particular cases. That is where it starts getting tricky. Who do you go to to get that information? Who is going to be providing it? How do you access somebody who actually knows what is going on with the case? Delays, I suspect, and again I do not want to speak to four witnesses or complainers, but I suspect that for many people, one of the worst things about the criminal justice experience is the idea that you have to wait for years for cases to come to a conclusion and the uncertainty in knowing when a case is going to be listed. One of the things that I know groups such as Rape Crisis Scotland complain about is the fact that we still have the concept of floating trials in the High Court, where a trial might start on a Monday or it might start on a Tuesday or whatever, and you may have a complainer who has already given a pre-recorded testimony sitting at home worrying about what is happening and not really knowing what is going on, and it is being almost capricious as to whether or not they are getting regular feedback from a point of contact within one of the criminal justice agencies. There are many ideas that have been floated about how things could practically be better investing in the system to reduce the delays. An app, for instance, the idea that a complainer would be able to have an app on their phone that gives them information about the process of giving evidence, that gives them fly-throughs of courtrooms so that they can see and they are not so traumatised by going into court in the first place that allows them direct contact with an aimed individual. There are lots that can be done that do not necessarily have to have a victims commissioner, but if those things are not otherwise going to be done, then it might be a commissioner as a best person to try and jockey that kind of change along. I wonder if I can just ask a final question and then we will move on to looking at embedding trauma-informed practices. I will bring Russell Finlay in. We heard from Scottish Women's Aid in the post of the commissioner and some concerns that they had that a commissioner post would essentially add an additional layer of bureaucracy into the system and it might limit what they describe as fairly positive current access to organisations by the likes of Scottish Women's Aid to the likes of policy makers and justice agencies. I wondered if you perhaps have a view on that in terms of how a victims commissioner might interfere or change that current process of communication, if you like. It might be come back to Jonathan first of all. Touching on what I said earlier, it would provide a focal point that the remit of the Victims and Witnesses Commissioner would clearly be much wider than the individual organisations who presently represent the interests of victims and witnesses that fall into various groups. I can see why there might be concerns about the additional layer of bureaucracy, but within a situation where the witnesses and complainers often perhaps feel that they don't have a champion of their interests and I take the view that a commissioner would provide that focal point, that champion of their interests, somebody whom they can readily identify as being someone acting independently and solely in their interests. As long as the bureaucratic processes were straightforward and streamlined, I don't think that it would cause any additional problems. Unfortunately, the criminal justice system is inherently bureaucratic and protracted and when we perhaps go on in a moment to talk about the trauma-informed practice, I certainly have much to say about the delays in the system and the inherent delays, but perhaps I'm encroaching into that point slightly, but I don't think that the Victims and Witnesses Commissioner would have any power or any ability to impact the delays that we find in our courts. In terms of the representation of the interests of different groups, as I say, it would provide a figurehead and I think that as long as the processes are streamlined, it would have merit. I'm going to stop there and we'll move on to the next part, which is obviously embedding trauma-informed practice and I'll bring Russell Finlay back in. You know my question now, but I'm going to reframe it slightly in a more provocative way. Legislation is being brought forward to ensure trauma-informed practice and I suppose my question is the need for this legislation because the legal profession has failed to ensure trauma-informed practices in all the past years and I can open up to anyone that cares to answer. I think my answer to that question would be no. The legal profession perhaps has had regard to trauma-informed practice in an informal way. I don't think that anyone could operate in the criminal justice system without having due regard to the many and varied traumas that are experienced by the persons that they represent, by witnesses that they encounter in court. I principally represent the Edinburgh Bar Association, which is an organisation of principally defence solicitors working in the criminal courts. Our role is many and varied. We encounter clients and witnesses on a daily basis that have a wide variety of difficulties and challenges and it's often said that our role is not just to represent accused persons, we also find ourselves acting almost as a proxy social worker. There isn't necessarily formalised training at the moment that recognises perhaps the impact of trauma, the way it affects the behaviour of the persons that we represent and also the witnesses that appear in the cases that we deal with. I can see that there is a benefit and a focus in ensuring that the profession understands the way that traumatic experiences impact the behaviour of witnesses, the way it's exhibited but also the way in which we can conduct ourselves in court to try and avoid re-traumatising witnesses. I'm acutely aware that there is often criticism of the way that defence solicitors, advocates, solicitor advocates behave in court. I think that some of those criticisms are unwarranted, I think that some of them are outdated. I accept that there are individual cases perhaps where the conduct has been below that which it might be expected to be and that there are of course cases where the mark has been overstepped, but in general the profession understands that they have to take a very careful approach, particularly in sensitive cases, particularly in sex cases, but perhaps when it comes to formalised training that doesn't currently exist and if there was a uniform and comprehensive package of training, I think that that would be to the benefit of the whole profession. Thank you. Would anyone else like to come in on that? Yes, I think that if I may, Mr Finlay, I would broadly agree with Jonathan's assessment looking at it from the perspective of the area of work in which I and members of the family law association practice. I don't think that you could credibly conduct yourself in that area without being aware of the potential for trauma that a vast number of the individuals that we come across go through. We will act on behalf of and encounter individuals who have been the victims of abuse of many different forms. We will act on behalf of individuals who are the subject of allegations of that nature which are unfounded. We will act on behalf of individuals in almost all of our cases whose personal lives, as they have known them for a number of years, have fallen apart and who are coming to terms with their financial position being radically different from what they have known and we are expecting to know it to be. I would like to think that we are always mindful of that and to try to put an awareness of that into practice when we are conducting cases and when we are dealing with those individuals. That does not mean that we cannot improve on that. I think that there is a growing appreciation that having a law degree, having a diploma in legal practice and having completed a traineeship does not necessarily mean that you are all knowing in relation to those areas. For example, the law society recently rolled out a training module on trauma-informed practice which was fully booked well before it began. That indicates an awareness on the part of practitioners that there are areas for improvement in relation to that and we can do better. On a statutory footing for trauma-informed practice, I think that the formal benefit of it is that if ministers, such as the Scottish Court of Service, require to have regard to that as a principle, if, in their actions, they fail to do so, that then gives a basis for legal challenge to that act, whatever it may be or may do. I think that that perhaps is a significant change from being aware of the principle and trying to put it into practice. If victims and witnesses tell us that repeated delays to their cases can cause additional trauma, sometimes that happens when solicitors seek to postpone proceedings, usually at the instruction of their client. Some victims perceive that to be a deliberate tactic on the part of the accused. Do you think that the bill will go in any way towards curtailing the worst examples of that and that that can be open to anyone? I agree with what my colleagues have said on the point about trauma-informed practice. Delays in our system are endemic and incredibly corrosive. They are corrosive to everybody's interests. We have accused people of sitting in remand for periods of time that we would never have contemplated only a few years ago. That is a product of Covid, but it is also a product of the resourcing of our system. I do not recognise that there are any meaningful number of instances of trials being adjourned improperly because of some tactic on the part of the accused. Again, one cannot speak for every individual case. Maybe that does happen, but the courts are there to be the guardians against improper use of procedure. And there would be a few judges that would tolerate an adjournment or a postponement of proceedings unless that was properly founded. Very often delays occur because of difficulties with witnesses or because of difficulties with disclosure of evidence and so on and so forth. Very often it may be that the complainer sees an adjournment but does not quite understand the full context in which that has happened. Ultimately, it is the judge's job to ensure that the interests of justice are protected in any decision that is made regarding scheduling. However, I think that the question raises the wider issue about what trauma-informed practice means. Yes, it behoves the defence lawyers to conduct themselves properly in the proceedings. That is a given. That is understood and I should say that that is something that is very rigidly and robustly enforced by the courts. The High Court in particular has a very clear direction of travel in that regard, but trauma-informed practice requires more than that. It requires proceedings not to be extensively delayed in the way that they are at the moment. It requires people to be given some appreciation and understanding of what is going on in a case, the communication point that was touched on earlier on. It ideally would involve certainty in terms of scheduling so that we do not have floating trials. It ideally would involve judicial consistency, so it is the same judge making decisions from the start to the end of a case rather than somebody different on every single occasion. There are a range of issues that arise, some of which are bigger and smaller, but all of which contribute to the aim of having a properly trauma-informed system. I would like to explore some of the contents of the Law Society's submission to the committee this morning. The submission opens up with the statement that the Law Society is the professional body for over 12,000 solicitors. We are a regulator that sets and enforces standards for the solicitor profession, which helps people in need and supports businesses in Scotland and the UK overseas. It goes on to say that, while all those who come before the courts should be treated with respect and dignity, the court process is an adversarial one. I would like to ask Mr Monroe if he believes that everyone who comes before courts is treated with respect and dignity. I absolutely believe that they should be. My question is, are they and you are the regulator? The one cannot comment plainly on every experience that every single individual has in every single case. That is a given. There are doubtless cases where individuals come before the courts and are not treated with appropriate respect and dignity, but within that I do not simply mean in the context of, for instance, how examination takes place in a trial. I mean that in all gamative experiences that people have within the system. It is having trials cancelled without receiving notification in advance and turning up. It is about the physical geography of our courts that put witnesses in a case in the same physical place as an accused person or the accused person's family. It is about the delays. It is about the concerning levels of remand and custody. My question is to you as the representative of the regulator of the legal profession. I hear all your saying about the other contextual information. I want to focus on your regulatory role and how you see your role as a regulatory organisation in ensuring that everyone who comes before the courts is treated with respect and dignity. I want to understand what the law society sees as its role in ensuring that that is the case. I would say this. Firstly, my personal role is as convener of the criminal law committee, which has a focus on looking at the practice of the criminal courts and proposals for legislative change involving the criminal courts. There is a different part of the law society that deals with regulation, but I just want to make that caveat in fairness. In terms of the point that you are driving at, I think that it would come back to this. There are from time to time instances where the courts, for instance, express concern about the conduct of individual solicitors. There are equally cases where the courts will express concern about the conduct of prosecutors or police officers who give evidence and so on. Where that occurs, there are processes whereby the regulatory functions of the relevant body, whether that is the law society Crown Office Police Scotland, will kick into force. Were there to be a case of a judge saying that I think that this individual behaved improperly and breached their professional rules, then that is something that the professional regulatory bodies would take very seriously and act upon. Do you believe that that is the case, that the professional regulatory bodies do that? I have seen that happen. Now, can I warrant that that happens in every single case? I simply cannot comment on that. Others in the society might be a better place to do so, but it should not be suggested or believed that there is no regulatory bite behind that. There is. If there are concerns about the professional conduct of individuals, then there are mechanisms whereby that professional conduct can be investigated and if appropriate sanctioned. The reason why I pursue this line of questioning is that, in other parts of the submission from the law society, although the society says that it believes that placing the principle of trauma-informed practice on a statutory footing should better focus court users, I think that the society's commentary on the application of that principle is, in the submission, pretty half-hearted. I will give a couple of examples of that. Firstly, the submission goes on to say that the duty to have regard to trauma-informed practice will extend to justice agencies and it lists the various agencies. It begs the question for me, should that be extended to solicitors as well, so that solicitors are as bound as the agencies are? It then goes on to say that we have supported the principle of trauma-informed practice by the extent to which this principle will transform hearings and scheduling remains unclear. It leaves me with a sense that the law society is advancing what could be a sort of tokenistic attitude towards this point in principle without embracing the concept of trauma-informed practice being applied to court proceedings in a way that is clearly envisaged by the legislation and referred to by the support and principle for the concept, but not necessarily the support and practice. I would respectfully disagree that the society's position on trauma-informed justice is tokenistic. That is simply not correct. The society, as any body responding to the bill, requires to respond to the bill as it is presented. The comments are made on the basis of the way in which the bill has currently been drafted. There are undoubtedly issues about definitions. It is important to be clear, for instance—again, I appreciate that this is later in the bill—when it comes to sexual offences court, the degree of training that might be required to gain rights of audience in that court. It is important to be clear about what in practical terms that will involve and what sort of sanctions might be in place where that training not to be conducted and so forth. The society has no difficulty with that. If the submission gives this impression, then that was certainly not intentional. The society has entirely supports the proposed embedding of trauma-informed practice within the criminal justice system and does not, for a moment, regard that as a token gesture. I am surprised by that when I read the entire sentence of one of the bullet points that is in the society's submission. While all those who come before the court should be treated with respect and dignity, the court process is an adversarial one. That strikes me as essentially having about it a big caveat. On the proceedings of court, yes, everybody should be treated with respect and dignity, but fundamentally the court system is an adversarial one where the adversarial principle has got to prevail, which I think has raised a lot of the conduct that I am raising concerns about. I do not think that the law society as a regulator regulates this effectively or nearly as emphatically as it should. How can I be persuaded that that is not a half-hearted statement from the law society? The point that is made about the fact that we have an adversarial system recognises that in a typical prosecution, particularly a sexual events prosecution, you have a prosecution case that says that an event happened and you have typically a defence case that says that it did not or that it happened in a different way. The job of the court is to determine which account is correct. Inevitably that means that a witness who speaks to the prosecution version of events has to be challenged on the veracity of their account. That is what an adversarial system involves. That does not mean that you cannot do that in a trauma-informed way. That does not mean that those involved in the process should not have at all times at the forefront of their minds the need not to retraumatise an individual who may have been through a traumatic event. Inevitably, where you have a complainer coming to court, where their account is going to be challenged, that in itself is likely to be difficult. That is the point that is being made. Do you believe that this legislation will have the effect of ensuring that that appropriate and necessary approach to cross-examination will be conducted in a trauma-informed practice? Or does it not materially change the basis upon which that cross-examination of that process is being undertaken? I think that earlier in the proceedings this morning, you said that legislation had not, or maybe one of your colleagues said that, legislation had not had practical effect on changing practice, because it is the approach to practice that I am interested in. Just to be crystal clear about that, what I was referring to was the Victims and Witnesses Act, which is not about what happens in a courtroom. It is about, for instance, the ability of a complainer to get information about what is happening in a prosecution from criminal justice agencies. That was the point that was being made earlier on. In terms of the conduct of, if you like, trials or the examination of witnesses, this proposed legislation is not coming in a vacuum. There have already been and there are continuing changes to the way in which evidence is taken. For instance, in sexual offences cases in the High Court, complainers almost always now will give evidence by commission. There is judicial oversight of the nature of the questioning that will be permitted. It is a very different world to what even was the case 10 years ago, 20 years ago or longer. The same applies for witnesses who are considered to be vulnerable for child witnesses and the like. The embedding of trauma-informed justice as a cornerstone of the system in the way that this legislation proposes is another step in that direction, but I do not think that it should or could be seen in isolation. However, I think that the point that I am trying to make is that we are already in a process of change. The courts are already, as it were, exercising ever-greater control over the way in which examination takes place in cases of this nature, and practice is already shifting as a consequence of that and as a consequence of other aspects. My last question, convener, is what would the law society do to ensure that trauma-informed practice is embedded in the activities of slisters? The law society has already, as has been alluded to, developed a comprehensive and heavily subscribed course in trauma-informed practice for solicitors. We are engaged in discussions with other agencies. I have seen the Crown Office training on trauma-informed practice. I have seen the Scottish Court Service training on trauma-informed practice. We are in discussions as to how we can learn from those already established processes in order to try to make sure that everyone is given access to that kind of support and training. Ultimately, once Parliament has decided how the bill should land, as it were, in terms of what provisions for trauma-informed practice are to be embedded within the system, the society will respond accordingly. I bring in Rona Mackay and then go to McGregor. First of all, I would like to say that I am pleased to hear you say that you will embrace trauma-informed practice. Johnathan, you said something about, because you always take a sensitive approach, but I think that you would appreciate the difference between taking a sensitive approach and being trauma-informed. Most of what I was going to ask Mr Swinney has asked, but I just wanted to say that, as a committee, we have taken countless pieces of evidence from women, primarily victims of sex offences, who have said that the court experience is worse than the actual crime itself. That lay mainly with defence lawyers. I am trying to believe you when you say that things will change, but we have not had that experience on this committee of hearing that victims have been dealt with sensitively. I would like to know how you are going to evaluate, if the bill is passed, how you will evaluate and monitor whether that is actually happening, along the same lines as Mr Swinney's questions. Would anyone like to? I am happy to come in on this. As Stewart has just said, the practice has already been shifting. There are a number of changes in the way that we deal with cases, particularly in the High Court. We have heard mention of evidence on commission, which is the use of pre-recorded evidence that does not require the complainer to attend perhaps on the day of trial at the court itself. That is in a environment that is far less intimidating and is designed to assist them in feeling relaxed in giving them evidence. There is a culture of significant judicial oversight, and I cannot stress that enough. The judiciary is acutely aware of the criticisms that are often made. They are alive to any instances of misconduct on the part of defence lawyers. There are both practice notes, which are notes that are issued, which dictate the practices that we have to follow. There are also legislative provisions that restrict, particularly in sexual offence cases, the questions that can be asked. As Stewart mentioned a moment ago, there has been significant change in recent years. However, although no-one has an interest in re-traumatising witnesses or complainers, we have to understand that often the subject matter of what we are dealing with is extremely difficult and that the adversarial process can be inherently upsetting. We can minimise upset and distress, but we cannot eradicate it and we have to be realistic about what we are doing and how our criminal courts operate. We have to be in a situation where complainers understand that the adversarial process entitles the defence to challenge their account of particular events. It is anecdotal evidence, but practitioners often take the view that perhaps that is not sufficiently understood by complainers in certain situations when they come to give evidence and that perhaps they are not fully appraised of what to expect is part of the problem, part of the difficulty that they experience, because in certain situations it is the court process that is perhaps the first time that that particular witness has had their account challenged or that they feel perhaps that they are not being believed in the course of questioning. We have to be realistic about what we are doing. Those are often very difficult allegations, difficult subject matter. Defence lawyers are acutely aware that they have to be very careful in the way that they deal with witnesses, with complainers. We can see the benefit of formalised trauma informed training to ensure that we can adequately recognise the problems that can be caused by careless questions by an approach that is not appropriate. I want to be clear that defence lawyers do not have free rein to ask what we like to aggressively question or persistently question complainers, that simply does not happen. If it is allowed to happen, respectfully it is a matter for judicial oversight and there should be judicial intervention at that point in the course of the trial to essentially stop it before it continues. As I mentioned in response to a question earlier, we are aware of the criticisms and we are also aware of the evidence that has been given earlier about the conduct of defence lawyers, but defence lawyers recognise that their role is essentially walking a tightrope between representing their client's interests but ensuring that they do not do anything improper, which causes upset or distress to witnesses. I just wanted to say that, as you said, it has been changing over the years. We are talking about recent accounts of complainers' experience in the courts. Is either not happening or there is no judicial intervention and so something has to change? Occasionally we see criticisms that perhaps the complainer of the witness feels like they were the person on trial. I can understand why that would feel incredibly difficult, but some of those criticisms, for example, about the challenging of their account, about the fact that they are not being believed. Unfortunately, that is inherent in the adversarial system. Clearly, it is not the job of a defence lawyer to assess whether they believe or disbelieve the allegation, but it is their duty to ensure that they test the crime case because the burden of proof rests with the crime. They have to prove the case beyond reasonable doubt and the defence lawyer has to ensure that any potential for reasonable doubt is highlighted in a respectful manner and within the rules. That sometimes necessitates the asking of difficult questions and it sometimes requires it to be put to a witness or a complainer that their account is either inaccurate, unreliable or untruthful. We have still got a number of members wanting to come in, so we can ask for fairly succinct responses. I will bring in Fulton MacGregor and then Katie Clark. I can be quite brief because I think that this area has been given a good bit of coverage over the last half hour or so. I just wanted to ask the panel what they believe the bill is trying to achieve here with trauma and from practicing a bit of background to my question. We have already spoke to them and heard from a couple of the panelists on something that I agree with, that this is not a new term or idea to the justice system. I think that what the bill is trying to achieve is to make sure that there is more of a focus when it comes to victims and witnesses and having a criminal justice background myself. I think that there is already a great degree of trauma and from practice work around offenders or accused and then later offenders in criminal justice and social work, etc. However, the role of witnesses and victims in the justice system is a bit different. It is a bit more standoffish and the only comment at certain points. I wanted to get the views of the panel on that. Do you see a distinction between those who are accused possibly becoming convicted or witnesses? Is that something that you are thinking about when you are thinking about trauma and from practice? I am quite happy with that. Can we just ask for one panel member to respond to that, just a wee bit to get through? In terms of your questions and the distinction between the way we deal with the accused persons and the trauma that they might face and that of witnesses who come into court in relation to particular cases, is that your question? It is, but what about if you think that the provisions in the bill will add value? Yes. To the way that the current system deals with victims and witnesses? It will add value in the sense that it would provide uniform training, training for every practitioner if it is to work in the way that I anticipate. We have to already undertake, as I am sure you are aware, a required number of hours of what is called continued professional development. Those with extended rights of audience who are sorts of advocates and can appear in the High Court have to do particular training in order to satisfy the CPD requirement to allow them to continue to appear and to fulfil their rights of audience. I can see value in a sense where it becomes a mandatory requirement for practitioners. The defence bar is a principally privately run. The firms are often particularly small. In the Edinburgh Bar Association, for example, there is no firm that has more than 10 solicitors. I think that there are only four firms. We have around 100 members. There are only four firms that have more than five solicitors. Those are small organisations, disparate groups, if you want to put it that way. In that sense, it adds value because it brings us all together under one umbrella, ensures that we are all getting uniform training and ensures that the practices that we are following are applied by everybody. There is not the same, whereas we are regulated, of course, by the law society. There is not the same oversight that you might have, for example, at Crown Office and Procurator Fiscal Service, where they can provide uniform training to all fiscal advocates across Scotland. If I could just make an observation in relation to civil law, in relation to Mr MacGregor's question, and I suppose what it adds, and being very brief, firstly, it would seem to me that when rules in relation to procedure in civil cases are being prepared and enforced, it seems to me that the value of the provisions in relation to trauma-informed practice in relation to that is that it makes it a cornerstone of the law of procedure in that area and it would require the ministers, the Scottish Courts and Tribunal Service, to have regard to it when those rules are being prepared. Giving it that formal footing would bring about a benefit, in my view, when it comes to ensuring that proper regard is had to trauma-informed practice. I appreciate that everybody on the panel has a particular role that they play within the judicial system and that they did not create what that system looks like. However, our role, particularly as an Opposition member of this committee, is to say, is this bill going to make any difference at all? I think that everybody on the committee picking up on what Rona has said has had many dozens of conversations about how the system isn't working and how it isn't working for those who are victim of rape, in particular, but other offences as well. The question, really, I want to ask, because it's been said quite a number of times that we've got an adversarial system, and the big question, really, is it possible to make changes in an adversarial system that deal with some of the genuine concerns that have been raised repeatedly? Or whether we need to look at a more inquisitorial model? If there have been changes already, what does that look like? If it doesn't seem to be resulting in a significant belief that things have changed substantially, is it possible to make what are relatively minor changes and address some of the genuine concerns that are being raised with us? I don't know if any of the panel would have a view on that. I might bring in Stuart. I'll volunteer that. I think that the answer is yes. It is possible to make changes and indeed fairly substantial changes in the system. We've touched on already the fact that in rape prosecutions, you give the example, complainers will typically now give their evidence via commission, pre-recorded evidence, taken under the supervision of a judge, very often with some discussion about the scope and nature of questioning happening at a hearing prior to that. That is almost unrecognisable from practice, however many years ago, 10 years ago, 20 years ago, an entirely new process, and one that has, I think, transformed the way likely to have transformed the experiences of complainers. I think that there are softer steps that perhaps can be taken as well. I think that Jonathan touched on one of them, which is about the fact that complainers very often will get to the stage of giving their evidence, whether it is in court or pre-recorded, without anybody ever having sat them down and said, by the way you might be challenged about this. I know that that is something that has been expressed by some of the victims groups, that maybe there needs to be within the system a process whereby complainers are, as it were, given some indication as to what to expect by the process, and that in itself will make the process more bearable for them to go through. So there are, I think, changes that can be made, some of them are high-level, some of them are more low-level. I think that the bill will make a positive difference. In terms of the question of whether we move to a non-adversarial system, that is an altogether more enormous question. Our system is one that has developed over the centuries with various bits bolted on. There is always a legitimate question to be asked as to whether it would be better off, as it were, starting from scratch, but that would be an enormous and complex process. I will bring in Pauline McNeill. Thank you very much, convener. Perhaps my point question might have been overtaken by what Stuart Monroe said in relation to the changes in the system, but following on from one of Akai's line of questioning, and I agree with her that what we have heard is pure practice really more than robust, let's say. I do accept that cross-examination has to be robust, is the nature of the system when someone is facing a jail sentence. However, there are lots of examples over the years that have been reported in the press, but, interestingly and anecdotally, I would add that some practitioners will say that there is also a failure of the prosecution to intervene in those cases. I know one case in particular, and the failure of judges. I highlight that, in the early years of the introduction of section 275 of the Parliament, one of the reasons why the committee at the time were so willing to change the processes in order to protect the trauma experiences of victims is because it was a failure of not just the defence to be robust but not cross lines, but failures of prosecutors to raise things like previous offences, which, as you know, was the old rule. Judges, in particular, criticised for not intervening when a witness was clearly being traumatised by lines of questioning. Do you accept that it is the whole system that makes witnesses feel traumatised? Do you have any experience—maybe this question may be reacted to you, Stuart, given what you said about the experience of the commission? I suppose that judges will be forced to play that role in ensuring that, in robust cross-examination, it does not result in the witness being traumatised in the process of that. Yes. Clearly, if what we are considering is improper questioning, then that shouldn't be happening. The primary responsibility for that rest with the person who is engaging in the improper questioning. The prosecution has a role in that. The advocate deputy can intervene. The judge has a role in that. The judge has a responsibility for ensuring that the process is conducted fairly and with appropriate respect to those appearing before the court. However, the primary responsibility rests with the person who is engaging in the improper questioning, so that shouldn't happen. I hear what you say in terms of the early days of section 275, and I think that that inevitably, with any legislative change, it can take time for it to, as it were, filter down into the system. However, the experience of those practicing before the criminal courts now is of a very strong culture of compliance on the part of the judiciary, the senior judiciary in particular. An absolute expectation that the provisions of sections 274 and 275 will be applied very, very rigidly and carefully, and that carries across to other areas of practice. In essence, whatever criticism might be made of the early days application of section 275, there is no room for criticism of the way in which that is being applied now. There's no reason to believe that we wouldn't see a similar approach from the judiciary in respect of the principles of this bill. We'll move swiftly on to questions around part 3 of the bill, so that's around special measures in civil cases. I wonder if I can maybe just kick off with a question in and around some of the commentary that we received at our last evidence session from Scottish Women's Aid and Rape Crisis Scotland. They argued that the scope of who is deemed vulnerable within the bill wasn't broad enough and that special measures should be automatically available to those who are deemed vulnerable. I'd be interested in, if I can maybe just ask you all to come in on that as succinctly as possible, just what your view is on this and do you consider that there may be any sort of drawback to the changes that they're proposing? I'll just go from my left, I'll bring in Jonathan, then Jamie, then Stuart. In relation to this part of the bill perhaps, Jamie is better placed than I am to comment, because my background is solely in criminal law. What I can say is that special measures are routinely granted in criminal cases and have been for quite some time. The system is well placed to accommodate requests for special measures. There are clearly statutory provisions that have what are called deemed vulnerable witnesses, persons who are automatically vulnerable witnesses, and they automatically have the entitlement to special measures should they wish to take them up. It's difficult for me to comment how that would operate in the civil sphere and I think that Jamie perhaps could comment. Yes, thank you. I think that I would be cautious about special measures being automatically available. In my view, what is in the bill provides robust protection when it comes to the measures that are available to witnesses. The reason why I have a hesitation about them being automatic is that my own view is that there must always be a discretion available to the decision maker, whether it be sheriff or judge, to ensure that the measures that are in place aren't prejudicing the rights of the other party to the proceedings. As I alluded to at the start, in a large number of civil proceedings, particularly family proceedings and particularly those concerning the welfare of children, there is at least the potential for significant trauma to both parties. Taking as an example a case where allegations of abuse are made, it is critical that the person who is making those allegations is able to give their best account in support of them and that appropriate measures are available to support them doing that. It is, however, important and appropriate in my submission that the other party has the ability to challenge that account. It is important that the judge or sheriff presiding over proceedings has the opportunity to ensure that the measures that are put in place safeguard both of those rights and balance them. I would be concerned about an automatic entitlement undermining that. I say that partly because the logistics of certain sheriff courts are at a limit to the measures that can be put in place. Society broadly supports the provisions in the bill. There is no difficulty with the notion of certain individuals being deemed vulnerable and therefore entitled to special measures. The only observation that I would make—and it is one that applies in any type of judicial process—is that we should be slow to remove the agency from the witnesses. We should not be overly paternalistic and assume that, because the witness falls into a particular category, they should be put in a different room or so forth. It is important to take the witness along to engage with them in identifying what they think might be appropriate and to take that into account in any decisions that are made. There are, again, anecdotal instances of certain witnesses in cases being frustrated by the fact that decisions are made without consultation with them and feeling that they then do not get to give the evidence in the way that they might prefer. I simply make the point that it is important that their views are always taken into account in that process. Point that you are making about the mechanism for identifying who might be vulnerable in the context of the bill? Not necessarily. Stage 1 is somebody vulnerable. Stage 2 is if so, then what do you do about that? In terms of stage 1, the bill extends the principle of deemed vulnerability that we already have in the criminal courts, covering certain situations, and we have no difficulty with that. It is simply at the second stage in determining what that should mean for the mechanics of how the witness should give evidence. It is important to take the witness's views into account. That is helpful. I am going to open it up and I am firstly going to bring in Sharon Dowie. I have a question in the Children's Scotland Act 2020. Sections 4 to 8 of the Children's Scotland Act 2020 aim to address some of the weaknesses of the 2004 act by making changes to it. However, those provisions are not yet enforced. I was wondering if you would be able to comment on the provisions that have not been put in force and why. Why are you confident that any legislation that would be passed in this bill would be implemented? It is the reasons behind the implementation. Some of the submission of court rules—a high court and court of session already have powers to set out rules regarding practice and procedure in court proceedings. The submission also says that achieving a properly trauma-informed system requires much more than legislative change. We have heard in the years to submissions previously just now that it says that we now take evidence and commission that it is pre-recorded. Practice is already shifting. There has been significant change in recent years and that seems to have happened without legislation. We have put legislation through an axe that has not been implemented. Why do we need legislation to do those changes when it seems that you can actually do it already? I suppose that the short answer is that the legislation changes the position in so far as it introduces a presumption in favour of special measures being available to individuals where those presumptions would not have operated in their favour previously. The example here is in relation to individuals who are involved in proceedings with a party who has been convicted of or who is the subject of proceedings concerning domestic offences, for example, or who has protective orders in their favour against that party. The value of the provisions that are being introduced and the provisions that were introduced by the 2020 act is that, as opposed to it being entirely at the court's discretion whether measures should be in place to benefit the individual who is making the allegations or who has the benefit of the protective orders, the bill and the 2020 act create a presumption that those special measures should be available to them. I suspect, from my own experience and again anecdotally, in a lot of those situations if the measures were applied for under the 2004 act, that there is a reasonable chance that the court would grant them. However, I think that when we go back to the question that we have discussed at some length about whether our justice system, civil justice in this context, is adopting a trauma-informed approach, I think that having that presumption that those measures will be available to somebody when they come to court to give evidence is, I suppose, symbolic or principled significance, knowing that those measures will be available to me unless there is a good reason otherwise, is perhaps different from having it in your mind that there might be special measures available, but I am going to have to justify them. The measures under the 2020 act? No, no. I am afraid that I cannot comment on why those are not in force. The bill broadens the circumstances in which those are available. That is something that I and the family law association would welcome. Why the measures introduced under the 2020 act are not in force? I am afraid that I cannot comment on that. If anybody were to comment on why they are not in force, why would you be confident that anything that would be put in legislation in this bill would be put into force? No, I am afraid that I cannot comment on that. I wonder if I can just come in and ask a question. It is around the register of solicitors that is proposed. In the law societies submission, you raised some concerns about how the register would work in practice. That includes a concern about how much detail is being potentially left to secondary legislation. I wonder if Stuart Mew might want to pick up on that and add any other comment. I will bring in Jonathan and Jamie to seek their views on the concerns that have been raised. It is really just practical issues around that. Plainly, if there is a requirement that an individual cannot cross-examine an opponent in a civil case directly if a case is set down for proof, that in fairness will affect a relatively small number of cases, because most civil cases do not end up in contested hearing and evidence. Where that to arise, plainly, there would have to be some other mechanism in place for that cross-examination to take place. The obvious way of doing that is that, as we have in certain sexual offences cases, the possibility of the court appointing a solicitor to take on that particular responsibility. The bill proposes a register. I think that we are just saying that there needs to be a bit more flesh in the bones of that. How that would work in practice, what the arrangements would be for remuneration, what the expected standards for qualification would be and so forth. In principle, the provision makes sense. We have an existing system in the criminal courts where, in sexual offence cases, accused persons are prohibited from representing themselves. We have the Scottish Legal Aid Board have a duty scheme where each firm of solicitors in turn has a period in which they are available to be appointed by the court, should there be an accused person who is unrepresented. I could see the parallels between what is being proposed in the civil courts and what already exists in the criminal courts. It is a system that generally does work, although it is a wider issue, but there are resourcing issues in the criminal courts that mean that there are often not enough solicitors to fulfil the appointment requirements. That is a wider matter, and I will not expand on that at this stage. I might come back to that. Jamie, is there anything that you would like to Yes. Just briefly, in principle, the idea is supported by the Family Law Association, and it seems to me that the intention is broadly to replicate the register of existing criminal cases that Jonathan has mentioned. The difficulty is likely to be one of resourcing and ensuring that there are practitioners who register themselves. Inevitably, the provisions regarding remuneration will be a part of that. As insurance is the position in relation to criminal cases, those will be complex and difficult cases to become involved in. They would be anyway if you were the individual's nominated solicitor, where a practitioner is going to be parachuted in and there may be a starting position that essentially you are a representative who is being foisted upon this individual who they do not want. Inevitably, a practitioner is going to be facing a difficult task, but that being said, I think that the principle of it is sound. The principle that a situation where an individual is not re-traumatised by being subjected to cross-examination by the individual who they have been subjected to abuse by is one that is really a sound one that I couldn't contradict. Thanks for that. I am just staying on special measures in a broader sense in terms of special measures that are in place around criminal cases. I would be interested in the panel's views on whether or not you feel that the current arrangements for special measures are being adequately used or making a difference. Again, going back to previous evidence that we heard in particular from children first, they feel that they have some concerns about the effectiveness of special measures in the criminal context and didn't feel that they are working as well as they should. I will maybe come to Stuart first and then work across the panel. I think that the experience probably differs according to where evidence is being taken. In the High Court, as I say, children in particular would not be expected to be giving evidence at the trial. There would be a reliance on evidence and commission or more likely a pre-recorded testimony, which might be a statement given at an earlier stage in the proceedings, would take the place of their evidence. That gives rise to various issues about resources. We know about the Bairns House model, for instance, and I think that we currently have one of them in existence. I know that there is an aspiration to have them across the country, but the preference would be that, if children were to give evidence in the form of pre-recorded testimony, it should ideally be done in a therapeutic, appropriate environment such as a Bairns House model. How do you do that when you only have one of them? There are growing facilities in place through the Scottish Courts and Tribunals service in terms of places where commissions can take place. Those are appropriate locations now increasingly around the country, and that is assisting in the process in high court cases. The implementation of the recent legislation to extend the use of commissions in pre-recorded testimony to sheriff court cases is still under way. There are undoubtedly variable levels of facilities within our sheriff courts around the country. There are pressures in the system that are brought about by resourcing and no doubt the experiences of individual witnesses in being taken through the journey of how they might come to give their evidence will be variable. No doubt there are steps that can be taken to improve that through better communication, better interaction and maybe more resources. However, no doubt it is a mixed picture, particularly at the sheriff court level. Jamie Greene and then Jonathan? In relation to children in civil proceedings, I have to say that my view is that they are operating successfully. In fact, my experience, both personal and anecdotal, is that it is very rare for a child to be expected to give evidence in civil proceedings. Where allegations, for example, of a domestic nature are required to be considered by the court in civil proceedings, my personal experience has been in every case what has occurred is that the pre-recorded interview of the child has been obtained and has been relied on without that child being subject to cross-examination. Can I ask about criminal justice space? I am interested in your comments about children in the civil space, but my question is more about the experience of special measures being used in criminal cases. If it relates to criminal matters, then I think that I am better passing over to Jonathan in relation to that. Is there anything further that you want to add, just to what you were? No, I do not think so. Thank you, madam. To touch on what Stewart has already said, in the High Court I think that the practices are well understood and well followed. My personal experience of trials in the High Court are that we increasingly use evidence on commission. We often have a scenario where the original interview of the child joint interview by a police officer and a social worker is the evidence in chief, so it is the prosecution evidence that is led. Consideration is given as to whether there is to be cross-examination. If there is not, that is the evidence. If there is, we fix a commission where, before the trial, the evidence is pre-recorded. We are often directed in relation to children to submit written questions to the judge in advance of that hearing to ensure that the questions are properly framed. In the Sheriff Court it is a slightly different scenario, and I take the view that it is a resourcing issue. In relation to children, we particularly use commissions or we use what is called a live link, so a child giving evidence from a different place over a live link. We do not have sufficient resources to roll that out in the Sheriff Court as a norm. We tend to use it more in indictment matters, so Sheriff and Dury cases where the maximum sentence is up to five years in prisonment. It is not routine in summary cases where the maximum sentence is 12 months in prisonment. I understand that that is what is desired by a number of justice partners, but we do not have the facilities because we need rooms where the witnesses can go to give their evidence. Some of them may be off-site, but some of them might be in the court building itself, and we do not have enough of them. A recent experience that I had in a high court trial did not relate to a child witness, but particularly in smaller courts there was a witness who was to give evidence from Forfer. There was a problem because the room that was available there was double booked. The court was in a situation where it was having to explore whether surrounding courts had the facilities to be able to take that evidence. We are in a situation where smaller courts are disadvantaged because Edinburgh and Glasgow, perhaps Dundee Aberdeen, have existing facilities, smaller courts where there are perhaps multiple cases being conducted and witnesses giving evidence in multiple cases, there are problems that arise. Resourcing is the issue, and I think that it would need greater investment. That is an interesting point that maybe speaks to some of the commentary that we heard previously about a trauma-informed environment in addition to trauma-informed practice, but thanks for raising that. Rona Mackay, I think that you want to come in. Thanks, convener. Just to give a wee update, Stuart mentioned the Bearn's house. For the record, the Scottish Government has funded six Bearn's houses and by £6 million they are putting into that. It is in Fife, North Strathclyde, which is the one that you mentioned, Aberdeenshire, Aberdeen City, Tayside and the Outer Hebrides. They are coming down the line, which is good news. Thank you for that update, Rona. I think that we will draw our session to a close. I thank all the panel members for attending today. I am just going to suspend this meeting for a few minutes to let our witnesses leave. Our next agenda item is consideration of correspondence from the Scottish Government on access to court transcripts. I refer members to paper 3. Members will recall that we have been writing to the Lord President and the Cabinet Secretary for Justice and Home Affairs with a view to reviewing the process for accessing court records by survivors of rape and sexual offences and the elimination of any charges. As part of this, the cabinet secretary agreed to set up a pilot and the latest update from Angela Constance is set out in this week's papers. Before opening this up to members, I would like to highlight a couple of points. First, we might wish to check if the pilot will be retrospective, i.e. open to survivors who first raised the issue with the committee. The clerks could be asked to check this with Scottish Government officials. Secondly, members are asked to note that copies of the cabinet secretary's letter have also been sent to rape crisis Scotland, Scottish Women's Aid and Victim Support Scotland. I can open it up to members to consider that any further action is needed at this stage beyond keeping the Scottish Government's plans under review and the actions that I have mentioned already. I apologise. Two issues. The letter from Angela Constance talks about an application form being developed. I wonder what that might look like. It shouldn't be a barrier or a hurdle. It should be user friendly. It should be, as the buzzword is, trauma informed. I wonder if there is a way of trying to establish how to ensure that that isn't going to be any kind of difficulty for people seeking this. Also, the letter talks about establishing the reasons why people are accessing this. I don't really see why that's an issue. Surely, in the interests of open justice and transparency, people should be entitled to it for whatever reason they see fit. Again, that's just more of an observation. Any other members wish to come in? Really, it was just to comment on the fact that we've got the pilot, which is welcome. I think Russell Finlay is quite right that we need to make sure that we're going to do this and assess it that it's easy and accessible. There was coverage this morning on BBC Scotland about it. One of the figures that was quoted, which I've got to be aware of, is that I think it's £100 a hour for the transcript in Scottish courts. What I didn't understand is that, if the courts are doing—if they are transcribing court cases, I presume for the purposes of recording, publishing and appeal processes—I don't understand why it's a more simple process to make that available. Now, there's a question of whether that's desirable or not, but that's one thing that struck me. Perhaps something in the course of the assessment of the pilot that the committee would like to think about getting an answer to that. On that basis, are members content that we—perhaps right to the Scottish Government—just on the point of whether or not the pilot intends to be retrospective or to—yes, the pilot is open to survivors who first raised this issue previously? I wonder if, in doing so, we can flag a couple of other points that members have made, in particular around the application form and the process being trauma-informed, which I would imagine will very much be at the centre of that piece of work. We'll note the comments that you've made, Pauline, on simplifying the process of transcript production. Are members in agreement with that proposal? Moving on, our next agenda item is for the committee to discuss the annual report of His Majesty's Inspectorate of Prosecution in Scotland. Specifically, Laura Peyton, Inspector of Prosecution at the Crown Office, has raised several concerns over the current model for the provision of forensic pathology services in Scotland. Those are outlined in the annual report, extracts of which can be found in paper 4. Laura Peyton has described efforts to reform the forensic pathology system as ad hoc, rather than transformational, and notes Crown Office and Procurator Fiscal Service preference to move towards a national forensic pathology service. We're invited to consider whether to ask the Crown Office and Fiscal Service, NHS and the Scottish Government for their views on the points raised by the inspector for prosecutions and whether there are any further plans to review the current model for providing forensic pathology services in Scotland. If I can maybe open it up to members just to come in with any views that you may have in terms of the action that the committee considers that will take, John Swinney. I think that if I read between the lines of what the chief inspector is saying, I think that there is a sense that there is a clear need for reform, that existing arrangements are not satisfactory or sufficiently robust, and that the Crown Office has an obligation to be responsible for this activity, but not to undertake it and is dependent on others to undertake it, and they cannot get the necessary focus on undertaking the reforms. I think that what that probably leads the committee to what I would certainly be happy for the committee to consider is trying to put a bit of impetus behind a reform agenda here. I am not arguing for a national model, but I am arguing for a model that is available in all parts of the country, which is an absolute necessity, and a model that operates in all parts of the country to the right levels of satisfaction for us all. That is my fundamental point, convener. My additional point is that I have certainly had experience of a number of constituency cases that have come to me over a number of years, in which I think that the experience of families where a pathology service is required to act is not always that great and is not always that… Obviously, if there has been a fatality, it is a traumatic period, I am not quite sure. It is certainly my constituency experience that I have had a couple of cases where several many years apart, during which I have had assurances that these arrangements were becoming stronger, where I am not absolutely sure that that is the case based on recent experience. We could do with probably giving a bit of impetus to this. The suggestions that I made in the paper from the clerks are certainly the recommendations that I would support. Pauline McNeill, I think that you want to come… Thank you. I mean, this following on from John Swinney, which I very much agree with. I mean, it has been my experience over the years and probably more recent times where families have had to make great presentation about the release of a body where simply might be unexplained circumstances. I am particularly sure on religious grounds where there is a requirement to bury in a certain period of time. There is huge pressure on Crown Office and Procurator of Fiscal Service and Pathology services to do that. It is quite a radical proposal to drive this forward in saying that, while it should not be driven by Crown Office and Procurator of Fiscal Service, it should go to the Government. I do not know enough about it to comment on whether that is the right way. Perhaps at some point it is wider. We have absolutely no time, but it strikes me that you would want to know a little bit more about whether or not there is modernisation of pathology services that have taken place. Some families have made representations to the Parliament around the trauma that they have had about changing the principles of some of the pathology investigation and how it is done, which is not within the parameters of that. However, it may be a question that we need an answer to is that whoever is in charge of the service in the long run, we need to be sure that there is modernisation of those services so that we can get the most efficient one and then take a view about who is best to run it to get this change in the dynamic of it. Laura Patons' report is quite shocking. I think that the most overarching tone is one of completely utter frustration. She says that everybody knows where the problems are. That is a significant cost to the public purse. She is even talking about not wanting to conduct some kind of other review because to do so is just going to cost more money and more time and reach the same conclusions that are already known to be the problem. I agree with John Swinney what impetus there can be from us is presumably helpful, but I am not entirely sure what that looks like in practice. Given that we appear to know what the problems are and that the agency is responsible, we do not appear to be able to find a way of dealing with them. Any other comments at all? Thank you very much for those comments. I think that they are all absolutely appropriate. From my own perspective, I welcome the observations of the HMI for prosecutions. I think that that is something that has perhaps been a long time coming. I know from my personal experience some of the challenges around the provision of pathology services in local areas. I would also like to highlight that the challenges that we face currently in that regard perhaps extend to other organisations such as Police Scotland, COSLA, even education. That is perhaps a wee bit further down the line in terms of the wider way in which we approach that. If members are happy just returning to the recommendation that was made in the paper, are members happy for us to pursue that approach at the point in time and revisit that? That concludes our public agenda for today. At our next meeting on 1 November, we will continue with evidence taking on the victims' bill and will hear from organisations on the proposals to embed trauma-informed practice in the criminal justice system.