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I wish to return to the issue at stage 3, but I will not move amendment 270.

Amendment 270 not moved.

Amendment 33 not moved.

Section 43 agreed to.

Section 44—Sittings of the Sexual Offences Court

Amendment 34 not moved.

Section 44 agreed to.

Section 45—Transfer of cases to the Sexual Offences Court

Amendment 198 moved—[Angela Constance]—and agreed to.

Amendment 35 not moved.

Section 45, as amended, agreed to.

Section 46—Transfer of cases from the Sexual Offences Court

Amendment 199 moved—[Angela Constance]—and agreed to.

Amendment 36 not moved.

Section 46, as amended, agreed to.

Section 47—Rights of audience: solicitors

A number of these amendments seek to amend elements of the sexual offences court, including what it will be able to do and what crimes it will be able to deal with.

On amendment 157, my intention and how things have come out might be two entirely different things, as is often the case, but my intention was to ensure that the crime of rape would be presided over only by a High Court judge. I appreciate that the cabinet secretary might say that that is what she would expect, but it is really important, when we are legislating, to nail down the detail on the expectations under the law. I would not be happy if the door were to be left open to any discretion whatever.

Amendment 69 seeks to leave out murder as a crime that could be tried in the sexual offences court. The senators of the College of Justice have said that murder should be tried only in the High Court and that “the anecdotal nature” of paragraph 280 of the policy memorandum

“gives no confidence that this ... constitutional change has been thought through properly.”

Paragraph 280 in the policy memorandum states:

“There are known cases in which sexual abuse perpetrated by an accused is alleged to have escalated over time, against multiple complainers, ultimately leading to a murder. Given the experience of the surviving complainers and the nature of their evidence ... the policy objective is to afford those complainers the benefits of the case being prosecuted in the Sexual Offences Court.”

On that, the senators stated:

“While this is undoubtedly true, there are not many such cases and the anecdotal nature of para 280 gives no confidence that this major constitutional change has been thought through properly. The appropriate place for charges of murder and attempted murder is the High Court. Murder is the most serious charge in the criminal canon. It is that charge which should determine the forum. The suggested change ignores the fact that in the very few cases where sexual offences are alleged against a surviving complainer, it is likely that the case will be tried before a judge who is also a judge of the sexual offences court and that most if not all of the benefits of that court will be able to be afforded to such a complainer.”

They continued:

“We remain firmly of the view that life imprisonment and OLRs”—

that is, orders for lifelong restriction—

“should be the exclusive province of the High Court.”

It would be a mistake if, in trying to sort out the status and importance of the sexual offences court, we in any way diluted the importance of the High Court of Justiciary, which will still be the highest court. I am happy to be contradicted on that, but I would challenge such a view. Under the Scotland Act 1998, the High Court of Justiciary will remain the highest court. It is a requirement of the Scotland Act 1998, and its integrity should be protected.

I move amendment 157.

I welcome the amendments that the Government has lodged in this group and whole-heartedly support them.

I will address my amendment 270. Rape is among the most serious of crimes and if we are potentially making a fundamental change to who hears rape cases in our criminal justice system, that should be examined thoroughly and properly.

What I am hearing is that you will be able to appoint more judges, which might reduce delays. That is fair enough; it is a compromise. I accept the argument; I can see that it is a good one. However, before we have closure on the issue, it is important to flush out the other side of the argument. Rape cases are heard in the highest courts by High Court judges. My understanding is that they might not be heard in the sexual offences court, because there is nothing to prevent a sheriff presiding over a case, albeit one that is trauma informed and everything else.

First, I will address the question of temporary judges. I have to say that the committee has not really had the benefit of drilling down into the detail on that. We have not had the benefit of full and frank discussions with the judiciary on the issue—which is often the case. I will admit that I do not have as much knowledge of the issue as I would like, but I would still like to test the argument.

Temporary judges go through a process before they sit in the High Court. One wonders what is temporary about temporary judges, given that the post has a five-year fixed term and automatically gets renewed, unless they have done something. I just wonder why there are temporary judges in the first place.

That aside, there is a separate issue. Temporary judges will be able to sit in the sexual offences court as they can in the High Court. Sheriffs will also be able to sit in the sexual offences court. I am a bit concerned. It is important in our criminal justice system that the serious crime of rape is seen by the criminal justice system as being a serious matter. I am not sure that I want to leave that to chance. People did not like the idea of the creation of a sexual offences court in the long run. I am open-minded in a way. I have heard the arguments, but I hope that the cabinet secretary will at least accept that it is important to have this discussion, because there is no doubt in my mind that, although the cabinet secretary might get lots of benefits, she will lose something in all of this. Many practitioners who I have spoken to about the issue think that something will be lost in the creation of a sexual offences court because of its nature, even if we can achieve a reduction in delays.

Amendment 77 would insert a duty to provide information to complainers in sexual offence cases. It states that the

“Advocate Depute must ... meet with the complainer”

before

“the first hearing”

and

“provide the complainer with relevant information on the progress of the case over the course of proceedings.”

Tony Lenehan KC said:

“It is important that I am allowed to say to them beforehand that the trial can be conducted as slowly as they need it to be, that they can think about the questions and, if they do not understand the questions, that they can tell me that. We can build that into the process so that, when they come into the court, they know me a bit.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 43.]

He has also highlighted that a current practice note indicates that the advocate depute should meet the complainer in advance of their giving evidence when evidence is taken by commission.

My amendment falls within the broad scope of issues that are raised in relation to independent legal representation and a single point of contact. The overwhelming experience of the vast majority of victims from whom we have heard was that they felt that they had no agency in their own case. In many cases, nothing was explained to them and they felt that they had no stake in what was happening in the case in which they were the victim. It is clear to me that we cannot go back to what we had before.

The Lord Advocate is to be commended for the way that she has, from what we have seen, promoted among advocate deputies the necessity of seeing victims. We have heard from at least one victim who expressed on the record that her experience was completely different from the experiences of all the other victims from whom we heard in that evidence session, who did not feel, in any way, that they had a part in the whole process.

The important thing is that the advocate who is dealing with the case will have read the papers and will have some understanding of the intricacies of how the trial might be expected to go. It is a really important aspect of making a difference to complainers.

I imagine that Governments are never happy to put this type of thing into statute, so I will listen to find out whether there is another way to do that. You will note that Tony Lenehan said that it is already covered in a practice note. However, I want to ensure that the right for a complainer to sit down with a person who is, after all, going to be prosecuting their case, is made permanent and does not slip when a new Lord Advocate comes into post.

I see that Liam Kerr is about to intervene, so I will take his intervention.

It is clearly a difference of opinion about how to achieve the same end. I feel as though I am arguing something that was part of last week’s debate—what I am trying to get at in this group of amendments is that the High Court’s integrity should be protected. This is not just about creating something new—and, by the way, I am absolutely sure that, if there were a new division, there would be a fundamental change. If a new division were to be created in the High Court or the sheriff court for sexual offences, the situation would be different. In the same way, we created the drugs court and now the practice is different. It operates differently.

Convener, I apologise for taking up too much time. I need to make sure that my arguments are understood, albeit that people may disagree with them.

Yes.

That is a fair point. The intention behind the amendment is to allow the complainer to get an insight into how the case will be argued and into any other factors that might have arisen. We have heard the case for independent advocacy at the preliminary trial and in relation to a section 275 application, but then there is the trial itself. How the case looks at the outset will differ from how the case looks later on. As is often the case with provisions that are drafted by back benchers, there is room for improvement.

I will hear what the cabinet secretary has to say about it, but I am sure in my mind that I want the measure to be permanent. It is worth having a discussion, because there is a lot of commonality in the principles of providing legal advice and legal support and changing the fundamentals of how a victim is involved in understanding the case throughout. I feel more strongly about this stuff than I do about the change in structure that was debated in an earlier group, which the Government feels strongly about. I want to support measures that would change fundamentally the experience of victims, because I believe that victims can give their best evidence when they have the fullest understanding.

Katy Clark’s approach to piloting independent legal representation is important. It is right that we evaluate something that is not tried and tested.

I am sympathetic to Maggie Chapman’s amendment 264, because that is something that Lady Dorrian asked for, and that is quite persuasive. Again, I do not know whether there is a crossover between independent advocacy support and what I am trying to achieve. It probably needs to be further fleshed out, but I am clear about the principle that something permanent needs to happen to change the experience of victims before and during the trial, and some of the amendments would make that change happen.

I can see that there are some drafting issues, so I admit that. You said that the practice has been established by convention, but that convention is very short lived. The current Lord Advocate, having headed up the sexual offences unit, is very passionate about sexual offences. This is not to talk down other Lord Advocates, but she strikes me as someone who is very passionate about the issue. When we have another Lord Advocate, the convention could fall away—that is what I want to discuss. I expected you to say what you said, which is fine. Perhaps these things are better not done by legislation but by practice notes, but will the Government consider ensuring that the practice cannot be dropped by a future Lord Advocate?

I agree. On the question of hierarchy versus practicalities, it is possible to get both. As I have said, the specialist nature of a sexual offences court can be achieved in a different way. However, fundamentally, I think that we should hang on to some kind of hierarchy—we have a High Court; the hierarchy exists.

As I said to the cabinet secretary, and as Rona Mackay was right to say, the trajectory of sexual offences cases heard in the High Court is such that they make up 70 per cent of those cases. Are we saying that the judges hearing those cases do not have a specialism—seriously? Two thirds of the cases that they hear are about sexual offences. They may not be trauma informed, but that can be resolved.

I seek to withdraw amendment 157, but I will move amendment 69 when it is time to do so.

Amendment 157, by agreement, withdrawn.

Amendments 180 and 181 moved—[Angela Constance]—and agreed to.

Amendment 69 moved—[Pauline McNeill].

You may remember that, in relation to a previous set of my amendments, I said that the same approach could be achieved by having a sexual offences division of the High Court and a sexual offences division of the sheriff court, rather than creating a new court. Rape, for example, would therefore be tried in the sexual offences division, if you like. There would still be fundamental change, but a new court would not be created. My fear is that there will be a lot of cost and bureaucracy in creating something that we could do without and which could be created without legislation, as was done with the drugs courts and the domestic offences courts.

Amendment 69 relates to a separate point. At the moment, murder—being a plea of the Crown—can be tried only in the High Court. I wish that to remain the case for the reasons that I outlined. I am arguing that, if there is to be trauma-informed practice, which I presume would involve training for judges and practitioners in the sexual offences court, the same people could also sit in the High Court. A High Court judge sitting in the sexual offences court would have to be trauma informed, as would the practitioners; however, the same people could sit or practise in the High Court. Therefore, the trauma-informed argument is not really solid. Do you follow me?