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New specialist Court recommended
Mar 17, 2021
As part of a wide ranging Review into the prosecution of sexual offences, the Group made extensive recommendations, most of which can be considered on a standalone basis. In addition to the specialist Court these include the presumed use of pre-recorded evidence; measures to improve the current experience of complainers with a particular focus on improved communication; steps to enhance jury involvement; and improvements to aspects of the Children’s Hearings System.
The Review Group was tasked principally with improving the experience of complainers in sexual offence cases within the Scottish court system, without compromising the rights of the accused. The recommendations will now be considered by the Lord Justice General, Lord Carloway.
Lady Dorrian said: “The wide ranging review was prompted in particular by the growth in volume and complexity of sexual offending cases affecting all sections of the criminal justice system. We have made recommendations which we believe will fundamentally change and improve the way sexual offences are prosecuted in Scotland. I am grateful to the Review Group, and to all those who contributed to its work, for their commitment and openness, and for the ‘clean sheet approach’ members adopted in undertaking this task, which has enabled a full scope of recommendations to be made for the consideration of the Lord Justice General.”
Recommendations - Summary
A new, national specialist sexual offences Court would be created for serious cases (on indictment) in which trauma-informed practices and procedures were adopted and where those involved in the proceedings were trauma-informed, including support staff. Trauma-informed training for prosecutors and defence agents would include accredited courses in dealing with vulnerable witnesses and the use of examination techniques.
The cases would be presided over by a combination of High Court judges and sheriffs who had received trauma-informed training in best practice in the presentation of evidence of vulnerable witnesses. The Court would have sentencing powers of up to 10 years imprisonment with a provision for remit to the High Court for sentencing higher than that if required.
The presumption would be for the evidence given by the complainer to be pre-recorded.
Presumption of Pre-recorded Evidence
Evidence from complainers in serious sexual offence cases would be recorded by specially trained police officers as early as possible after an alleged incident. Additional evidence, including questioning on behalf of the accused, would also be recorded at the earliest possible opportunity following discussion at judicially lead management hearings. The recordings would, subject to court approval, be used in court as the complainer’s evidence reducing the need for the complainer to appear.
Improving complainers’ experiences
There would be a focus by all parties in the criminal justice sector on improving communication with complainers on basic concepts and the processes and procedures involved from the reporting of an allegation to its progression to trial.
One additional means of implementing this would be via the introduction of a single, trauma-informed point of contact who would provide specific information relevant to the particular case throughout the justice process.
A new Charter for complainers would be created setting out standards and values adopted by key criminal justice agencies. This would lay down the way in which complainers could expect to be treated, the information to which they were entitled, and how they would be communicated with. Complainers would also have access to publically funded, independent legal representation in order to oppose applications made to ask questions about their previous sexual history during evidence (known as a section 275 application).
The right for a complainer in proceedings not to be identified in the media would be expressly set out in legislation rather than relying upon current convention and agreement.
Improvements to the efficiency and conduct of proceedings would also be progressed by fixing targets to reduce the time from when an incident is reported to the conclusion of proceedings; early identification of prosecutors; and strengthening the requirement to lodge a meaningful indication of the accused’s position (defence statement).
There would be more focus on plain language directions given to the jury by the judge, and assistance in explaining the process of how they should go about making their decision (their route to verdict). Other steps to enhance the quality of jury involvement in trials would include the development of a pilot programme to communicate information to juries regarding certain rape myths and stereotypes.
The Group suggested that further consideration could be given to the possibility of developing a time-limited pilot of single judge, rape trials to fully assess and fully consider their effectiveness and how they are perceived by complainers, accused and lawyers from a practical perspective.
Children’s Hearings System
Separate recommendations in relation to the Children’s Hearings System and court proceedings in relation to sexual offences, were made taking into account their unique nature. They include a focus on the adoption of trauma-informed practice; the nationwide rollout of training for specialist recorded interviewing of children and further progression of recommendations made in the Evidence and Procedure Review; the greater use of case management powers; and improving communication to complainers on what is involved in such proceedings, particularly the limits on the information that can be shared and the reasons for that.
Crown Agent David Harvie said: “The introduction of a specialist sexual offences court would be an important step towards meaningful improvement in the delivery of justice in Scotland, for complainers, for accused, for society as a whole and is one that I fully support.”
Chief Executive of Rape Crisis Scotland Sandy Brindley: “All too often survivors tell us that the process of seeking justice – and in particular their experience in court – is as least as traumatic as the attack(s) itself. It is clear that significant action is needed.
“The report of the Review Group, chaired by Lady Dorrian, is important and necessary. The recommendations are bold, evidence based, and have the potential to transform Scotland’s response to sexual crime. This is a unique opportunity for Scotland to lead the way internationally in improving access to justice for people who have experienced sexual crime."
Dr Marsha Scott, Chief Executive of Scottish Women’s Aid, said: “Improving court experiences for survivors of sexual violence is vital in improving their access to justice, and in strengthening the overall response of the justice system to violence against women and children. We welcome the publication of this Review, and believe that the recommendations it makes reflect the gap between the promise of justice and the lived experience of survivors who so often feel re-victimised and let down by court processes.
“This review is a helpful starting point and we will continue to work with colleagues across the justice system to further improve the court experiences of survivors of sexual violence, particularly child survivors who we would like to see further protections for.”
Kate Wallace, Chief Executive of Victim Support Scotland, said: “People who have gone through some of the most serious crime need reassurance that their contact with the justice system will not cause them further harm. It’s important that all agencies involved in supporting people in the aftermath of crime are sensitive to the needs of these people. Trauma-informed practice must become part of the DNA of Scotland’s justice system – from the introduction of a new specialist court, showing commitment to allowing pre-recording evidence, through to improving communication before, during and after a trial.
“We know only too well from our experience of supporting people after crime, the emotional, psychological and financial impact this can have on them. The recommendations as put forward from the cross-justice Review Group are an important step forward for transforming justice in Scotland to allow us to better meet the needs of victims, witnesses and families. We now need commitment from all involved to ensure that the recommendations are carried forward.”
Detective Chief Superintendent Samantha McCluskey, of Police Scotland, said: "The nature of rape and other serious sexual offences present considerable evidential challenges. Investigations must be rigorous and thorough to ensure the best evidence available is secured. Victims must have the confidence that their complaint will be taken seriously and professionally.
"We acknowledge the recommendations from the Review Group chaired by the Lord Justice Clerk, in particular the manner in which our specialist officers record statements made by complainers in cases of serious sexual offences.
"We are acutely aware of how difficult it can be to report sexual crime and we are continually working with partners on ways to improve the police response to reports of rape and sexual crime. We are also fully supportive of wider measures that will improve the experience of victims and survivors of sexual crime throughout the criminal justice process."
Amanda Millar, President of the Law Society of Scotland, said: “This has been a very important piece of work involving representatives from across the justice system. We would support meaningful improvement for complainers and witnesses involved in sexual offence cases that ensure the rights of an accused person are preserved.
“Solicitors work with those accused and those who are victims of crime. Providing greater access to legal advice for complainers would help to ensure they can get the right legal advice and support in bringing forward cases which are by their very nature, highly sensitive and distressing. We would also support introducing a trauma-informed approach and provision of additional training for the professionals involved in these cases. Following on from recent research into how juries make decisions, the recommendation to address some of the myths that surround rape and sexual offences would offer information and insight for jury members.
“We have previously expressed significant reservations about such cases being heard by a single judge without a jury, which was proposed as a means to deal with the backlog of court cases caused by the Covid-19 pandemic. These concerns remain. It will be essential to consider all the implications if any pilot is to go ahead, with outcomes examined carefully along with other important areas of potential reform that impact on the scrutiny of evidence.
“We will examine the report’s recommendations in detail and continue our engagement to ensure that any proposals would work in practice and that we have a fair and transparent justice system that upholds the rule of law and operates in the interests of justice.”
The cross-justice Review Group includes representatives from the judiciary, the SCTS, the Crown Office and Procurator Fiscal Service, the Faculty of Advocates, the Law Society of Scotland, Police Scotland, representatives from the Scottish Children’s Reporter’s Administration, the Scottish Government, the Scottish Legal Aid Board and third sector organisations including Rape Crisis Scotland, Scottish Women’s Aid and Victim Support Scotland.
The Review Group’s recommendations are in furtherance to the recommendations of the judicially lead Evidence and Procedure Review.
18 March 2021