What are the plans for sexual offences courts in Scotland?

MSPs have begun taking evidence on wide-ranging reforms aimed at giving victims of crime, especially victims of sexual crimes, more support as their cases go through the Scottish justice system.

The Victims, Witnesses and Justice Reform Bill is a mammoth piece of legislation which proposes fundamental changes to long-held components of court processes including abolishing the "not proven" verdict and reducing jury size from 15 to 12 members.

It also changes the size of the majority needed to convict the accused (from a simple majority to a two thirds majority) and would give life-long anonymity to complainers of sexual offences.

Considerable controversy has focused to date on the bill's plans to bring in a pilot scheme which would see those charged with rape or attempted rape have their cases heard by a single judge without a jury.

But one aspect of the legislation which merits more attention is the introduction of a new specialist court to deal with serious sexual offences.

The proposal is based on a recommendation by Lady Dorrian in her 2021 review of the management of these cases and follows long-standing concerns that the current court system does not deal compassionately with victims of crime with complainers at times saying they have felt retraumatised by their experiences seeking justice.

Under the bill, a new type of nationwide specialist court would be established.

Everyone working in it – including the judges, prosecutors, defence lawyers and court staff – would receive specialist training in sexual crimes and the risks that victims can be re-traumatised by the proceedings.

The policy memorandum which accompanies the bill explains the new court will be "distinct from and separate to existing court structures, with an emphasis on increased pre-recording of evidence", "embed specialism... from the outset and develop best practice in conducting trials in a manner which does not compromise the accused’s right to a fair trial whilst recognising the impact of trauma" and improve judicial case management by having dedicated judges assigned to it.

It adds that the new court would "benefit complainers, accused and the wider justice system by contributing to reductions in overall delay".

Read more:

Unspun | Ewing suspension has inflamed tensions in SNP and reflects deep seated problems

The document goes on to say it would have "Scotland wide jurisdiction for sexual offences prosecuted on indictment, including rape, and any other charges appearing on the same indictment, including murder" and that the presiding judges would have the power to impose custodial sentences of up to life imprisonment and the power to impose an Order for Lifelong Restriction.

Important new details and possible flashpoints emerged when MSPs questioned the justice secretary Angela Constance about the proposals in Holyrood last Wednesday.

Ms Constance told the committee that it was anticipated that the court would take up to 700 cases a year and would have set up costs of £1.4 million and ongoing costs of a minimum of £500,000 a year.

It emerged too that not all serious sexual offences would be tried at the new specialist court and some cases would continue to be heard at the High Court and at sheriff courts.

Justice secretary Angela Constance told the committee that 700 cases a year was anticipated in the proposed court (Image: Newsquest)
Pressed by Labour's Katy Clark, that it was her understanding that the sexual offences court "will not deal with all sexual offences in Scotland in the first instance", senior civil servant Lisa McCloy explained to the committee that prosecutors would decide which type of court would hear a case.

"It is about bringing together cases from the sheriff courts as well as the High Court. However, the bill is not prescriptive. As Ms Clark said, it does not require sexual offences to be prosecuted in that court, but that option is open to prosecutors," said Ms McCloy.

With sexual offences cases making up the vast bulk of business at the High Court (Lady Dorrian noted in her review that from April 2019 to March 2020 they accounted for 69% of its trials) it seems likely that many cases will continue to be heard there rather than in the new dedicated court.

Get Scotland's top politics newsletter sent directly to your inbox each evening.

It's an issue that may well leave some future complainers whose cases were not directed to the new sexual offences court disappointed, perhaps believing that they would have had better experience in the specialist setting where they could, for example, have given more pre-recorded evidence. They may well feel they ended up getting a "second best" experience in the High Court or sheriff courts.

Alternatively though, if there is pressure to direct the bulk of sexual offence cases to the new court, could that lead to a backlog of cases there with long waiting times for victims and accused which undermines the aim to reduce delays?

As the process of scrutiny on the committee continues, both these are matters ministers will be expecting to be pressed on.