Improving victims' experiences of the justice system: consultation analysis

Specialist court for sexual offences

A key recommendation of Lady Dorrian's Review was the creation of a national, specialist sexual offences court underpinned by increased pre-recording of evidence; improved judicial case management and a requirement for specialist training for all personnel. The Review suggested that a specialist court with these features could make a significant contribution towards better management of sexual offences cases and improving the experience of complainers. Using the model of sexual offences court suggested within the Review as a guide, this chapter of the consultation sought views on how a specialist court might be implemented so as to optimise improvements in the management of sexual offence cases.

Question 56: To what extent do you agree or disagree that a specialist sexual offences court should be created to deal with serious sexual offences including rape and attempted rape?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	33	48%	69%
Somewhat agree	6	9%	13%
Neutral	4	6%	8%
Somewhat disagree	3	4%	6%
Strongly disagree	2	3%	4%
No response	21	30%	-

Base = 69

Just over two thirds of respondents who answered this question (69%) strongly agreed with this proposal and a further 13% somewhat agreed.

Those who supported the creation of a specialist court indicated that this would allow those involved in hearing sexual offence cases, including court staff, judges and legal representatives, to be supported by those with specialist training in sexual offences and trauma. It was felt this would provide expertise to deal with such cases, whilst also instituting more sensitive approaches that could contribute to a less traumatic experience for victims. Respondents hoped that this would lead to increased conviction rates for sexual offences and could encourage more victims to come forward and pursue cases. Furthermore, respondents noted that specialist courts had worked well for other case types, in particular, the domestic abuse courts.

A few also felt that some of the other proposals considered as part of the consultation, such as video recorded evidence and trauma-informed practice, would be best suited to a specialist court setting.

A few were hopeful that a specialist court would mean that cases could be dealt with quicker and more efficiently, however, others were sceptical that this outcome would materialise. They argued that the delays were typically caused by a lack of facilities, availability of the judiciary, etc. and that without an increase in such tangible resources, cases would not be processed any faster.

Of those who disagreed with the creation of a specialist court, a few (including an academic organisation and a local authority/justice partnerships) argued that efficient disposal of business and trauma-informed practice should be standard across all courts, and felt that there were challenges in separating sexual offences from other related/connected crimes (for example, domestic abuse). Concerns were also raised around the potential for such courts to detract resources from other cases, resulting in negative impacts elsewhere, including those cases involving serious sexual harm but where a sexual offence did not appear on the indictment.

One advocacy/support organisation for children and young people also discussed concerns about the impact a specialist court might have on making some sexual offences seem 'less serious' where they did not qualify to be heard in the specialist court. Similarly, another common concern discussed by a few respondents throughout this section of the consultation, was that moving serious sexual offence cases out of the High Court could be seen as 'downgrading', however, one legal organisation disagreed that this would be the case:

"We do not agree with the arguments that this would lead to a downgrading of sexual offences. On the contrary, they would be treated in a court which was able to give them specialised attention which would demonstrate the seriousness with which they are treated." (Legal organisation)

A few other respondents who were neither for or against a specialist court expressed concern about the impact it could have on equity of provision for sexual offence victims. They argued that any approach to centralise these courts could make them less accessible for some, with one suggesting a solution would be to move the specialist court around the country rather than asking accused and victims to travel. One law enforcement agency felt that the current shortcomings could be addressed with better resourcing and funding, rather than necessitating a new court to be established. They were also sceptical about the scale of any funding available to create a new court. While they agreed that a specialist court would improve the experience of complainers, they argued that the rationale for establishing a specialist court in order to improve the experience of complainers could equally be applied to other offence types.

Question 57: To what extent do you agree or disagree that, if a new specialist sexual offences court is created, it should be - as recommended by Lady Dorrian's Review - a new court for Scotland, separate from the High Court or the Sheriff Court?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	28	40%	60%
Somewhat agree	4	6%	8.3%
Neutral	4	6%	8.3%
Somewhat disagree	7	10%	15%
Strongly disagree	4	6%	8.3%
No response	22	32%	-

Base = 69

Just over two thirds of respondents who answered this question (68%) either agreed or strongly agreed with creating a specialist sexual offences court as a new court for Scotland, separate from the High Court or the Sheriff Court.

Many of those who agreed with this proposal simply indicated that the current system did not work, and reiterated their support for a specialist sexual offences court (as detailed above) without expanding on why they felt it should be separate from the High Court and/or Sheriff Court. Others expressed their support for the rationale provided in Lady Dorrian's Review or the arguments set out in the consultation document, again without further elaborating on these.

One victim and witness support organisation felt that having the specialist court sit apart from the High Court or Sheriff Court would be beneficial as it would allow for a structure to be created that is designed around trauma-informed, specialist approaches:

"Having it sit separately would allow more a purposeful trauma-informed structure, particularly as the other courts will not have been built around these principles." (Victim/witness support organisation)

Another felt that having a new court would allow for training that is better tailored to the needs of sexual offence complainers as well as a greater depth of knowledge and experience to be accrued by those working within:

"A stand-alone court would also support the training in trauma-based approaches, the cultivation of specific skills and expertise required for the management of these cases, encourage better efficiency in managing cases, therefore improving the experience of complainers." (Victim/witness support organisation)

Others felt that, as awareness of the specialist court and the safeguards it could provide grew (such as protection from journalists outside the court, trauma-informed services, etc.), this would reduce fears around attending court and could encourage increased reporting of such crimes. It was argued that having a new court would send a strong message that the specialist court was differentiating itself from past approaches to the management of sexual offence cases (which, as noted above, was commonly seen as failing).

A few respondents caveated, however, that those presiding over cases in the specialist court must not have lesser sentencing powers than those in the High Court.

Another caveat was provided by an academic organisation:

"Careful attention will require to be given in the primary legislation creating the court and related changes to the Criminal Procedure (Scotland) Act 1995, to ensure that the new court's jurisdiction is clearly outlined, and issues relating to…what happens to indictments that contain sexual and non-sexual charges…will require to be considered." (Other (academia))

Those who disagreed, tended to feel that the specialist court could or should be incorporated within the existing structure of the High Court and Sheriff Court. This was seen as necessary to:

• ensure the court had sentencing powers that were commensurate with the severity of the cases it would be hearing including the ability to impose an Order for Lifelong Restriction (OLR)
• avoid any perception that sexual offences were being 'downgraded' or treated as 'less important'
• allow cases with both sexual and non-sexual offences to continue to be indicted together
• ensure sharing of expertise related to the management of cases which involved sexual offences
• avoid adding complexity and bureaucracy to the system which could make dealing with cases that include both sexual and non-sexual offences more challenging.

One legal organisation also felt that it would be necessary for the judiciary and legal practitioners to be able to move in and out of the specialist court, and to mix this with other business, in order to both attract applicants, and to avoid practitioners leaving the system entirely. It was highlighted that sexual offence cases were among the most "gruelling", and if this was the only case type practitioners worked on, it would likely result in them not applying or in them leaving after a period of time.

Question 58: If you disagree that the specialist court should be a new separate court for Scotland, where do you consider it should sit?

	Number of respondents	Percentage of respondents	Valid %
Within the High Court	5	7%	22%
Within both the High Court and the Sheriff and Jury Court	10	14%	43%
Other	8	12%	35%
No response	46	67%	-

Base = 69

Those who indicated that the specialist court should sit within the High Court did so on the basis that it already hears the most serious sexual offences and would retain the most experienced members of the judiciary and legal profession in hearing/acting in these cases. It was also felt that having the specialist court as a division of the High Court would ensure that sexual offences continued to be treated among the most serious crimes.

Those who felt the specialist court should sit within both the High Court and the Sheriff Court felt that it was important to retain two tiers for managing these cases. It was argued that this approach provided flexibility to prosecute based on the seriousness of the case, with the ability to refer cases up or down as required for sentencing. It was further suggested that this would also allow personnel to switch between the court as necessary to avoid burnout (as discussed above). This High Court and Sheriff Court model was the preferred model among those who felt that it should not be separate from existing structures.

One local authority/justice partnership also argued that housing the specialist court exclusively within the High Court could exacerbate existing delays to sexual offence cases coming to trial.

Most of those who responded 'other' to this question and who provided additional commentary to their answer, indicated that they felt it should be a distinct court. Two other respondents (including an individual and an academic organisation) indicated that they did think a specialist court should be created at all.

Question 59: To what extent do you agree or disagree that, if a specialist court is to be created, it should have jurisdiction to hear cases involving charges of serious sexual offences including rape as well as non-sexual offences which appear on the same indictment (for example, assault)?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	29	42%	64%
Somewhat agree	10	15%	22%
Neutral	3	4%	7%
Somewhat disagree	-	-	-
Strongly disagree	3	4%	7%
No Response	24	35%	-

Base = 69

Most respondents who answered this question either strongly agreed (64%) or agreed (22%) that the court should have jurisdiction to hear non-sexual offences which appear on the same indictment as a sexual offence, although a few qualified their responses by specifying that these offences should be linked and involve the same complainer. Both individuals and organisations stressed that to split sexual and non-sexual offences over separate indictments would not be trauma-informed, and would add further distress to all involved. On a practical level it was also argued that splitting offences would be inefficient and inappropriate as it would increase costs, uncertainty, complexity and delay, as well as creating the potential risk of there being different outcomes from the same evidence given in different settings. It was also felt that the full picture needed to be taken into consideration when arriving at a verdict, particularly as the circumstances in which the offences, both sexual and non-sexual occurred, would likely be linked:

"If there were also charges of assault for instance, it would be disadvantageous for the complainer to have to attend in different court systems and repeat evidence, this would increase distress rather than decrease it. It would also impose restrictions on what a complainer could talk about at a particular trial." (Victim/witness support organisation)

Two respondents felt that legal professionals involved in the trial would benefit from additional training on domestic abuse and coercive control should the court be given jurisdiction to hear sexual and non-sexual offences on the same indictment.

A few respondents did, however, highlight challenges with the specialist court hearing cases which involve both sexual and non-sexual offences. One noted that cross-examination for the non-sexual offences may also be subject to a Ground Rules Hearing (as deemed necessary for the sexual offences elements), while another was concerned that "decisions to charge or not charge sexual offences alongside other serious offences could be overly influenced by preferred venue for trial" (Other (academia)). One respondent felt that cases involving numerous offences on the same indictment could be dealt with more easily if the specialist court sat within the existing High Court/Sheriff Court structure, building on existing models of specialist court already in operation with the Court system such as as the domestic abuse and commercial Courts. They felt that housing the a specialist sexual offences court outwith this structure could, however, create complications.

Others gave views that reflected support for the most serious cases to continue to be heard in the High Court.

Question 60: If a specialist sexual offences court distinct from the High Court or the Sheriff Court were to be created, to what extent do you agree or disagree with Lady Dorrian's Review that it should have a maximum sentencing power of 10 years' imprisonment and the ability to remit cases to the High Court for consideration of sentences longer than 10 years?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	6	9%	14%
Somewhat agree	5	7%	12%
Neutral	5	7%	12%
Somewhat disagree	10	14%	23%
Strongly disagree	17	25%	39%
No response	26	38%	-

Base = 69

Almost two thirds of those who provided a response (62%) disagreed that the court should have maximum sentencing powers of 10 years imprisonment. This was because they felt that the court should have access to the full range of sentencing powers that might be appropriate in the context of the cases that the court would hear. It was suggested that a 'two-tier' system similar to that which already exists in the High Court and Sheriff Court would be necessary to ensure the court had the full range of sentencing powers required to hear serious sexual offences:

"We propose that the specialist sexual offences court should have two tiers to it - one at Sheriff and Jury level and one at High Court level. The Sheriff and Jury level would continue [to] deal with cases marked to be dealt with at that level and be presided over by Sheriffs who would have the same sentencing powers as they currently do in those cases. In the High Court, the most serious cases of rape and sexual abuse would continue to be dealt with and there should be no sentencing limit there, even when Sheriffs sit in that capacity." (Victim/witness support organisation)

Several victim and witness support organisations were concerned that only allowing the specialist court to impose sentences of up to 10 years for rape would be seen as 'downgrading' such offences, minimising the complainer's experience, and increasing trauma for victims.

A few, whilst in general agreement with the proposal to limit the court's custodial sentencing powers to ten years, were concerned that it would introduce complexity to the process, and increase time required for cases to reach a conclusion.

Several respondents felt that it was counterintuitive to create a specialist court, with specially trained professionals, only for it not to be prevented from hearing all serious sexual offences, and having to refer some of the most serious cases to a non-specialist court. It was argued that this undermined the credibility of such a court.

One respondent stressed that, should cases need to be referred to the High Court, the same protections would need to be put in place as those in the specialist court:

"…victims may feel disempowered in this court setting knowing sentence lengths would be within a certain window. If there is a need for sentencing to take place at the high court in certain circumstances, this would need to have the same protections in place that the specialist court has in order to reduce the impact on victims." (Local authority (including justice partnerships))

Those who agreed with the proposal generally felt that 10 year custodial sentencing powers, with the ability to refer cases which might require longer sentences to the High Court, seemed appropriate. One legal organisation was "not in favour of creating a system where two courts with equal jurisdiction sit in parallel".

One respondent felt that a stand-alone specialist court would/should not be allocated the same powers as the High Court as it would not be presided over by Senators (of the College of Justice), but expressed concern this would send a message that serious sexual offences and rape were being downgraded.

Question 61: If you disagree that a specialist court should have a sentencing limit of 10 years' imprisonment, what do you consider the limit should be?

	Number of respondents	Percentage of respondents	Valid %
Unlimited	29	42%	94%
Other	2	3%	6%
No response	38	55%	-

Base = 69

Those respondents who supported 'unlimited' sentencing powers for the specialist court (accounting for 94% of those who answered the question) largely repeated their responses as given at Question 60 above. Again, it was argued that the court should have the power to impose sentences which fit the nature and seriousness of the offence with respondents noting that unlimited sentencing powers may be necessary to deal with cases which feature multiple charges on the same indictment. It was also seen as important not to downgrade rape or serious sexual assault cases by limiting sentencing powers within the specialist court, and that such serious cases should continue to be heard in a setting which can continue to impose the current maximum available sentences. A few suggested that High Court sentencing powers should apply to the specialist court, with one respondent indicating that housing the specialist court within the structure of the High Court would ensure the specialist court had these powers.

Question 62: If a specialist sexual offences court distinct from the High Court or the Sheriff Court were to be created, to what extent do you agree or disagree that it should be presided over by sheriffs and High Court judges?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	16	23%	42%
Somewhat agree	6	9%	16%
Neutral	10	14%	26%
Somewhat disagree	2	3%	5%
Strongly disagree	4	6%	11%
No response	31	45%	-

Base = 69

Just over half of the respondents who answered this question agreed to some extent (58%) that both sheriffs and High Court judges should be able to preside in the Court although responses were mixed with a large proportion (26%) indicating that they were neutral on this question.

Those who agreed with the proposal to have sheriffs and High Court judges preside over cases in the specialist court felt this was important to emphasise the seriousness of sexual offences, and to provide the range of sentencing powers necessary. A few also felt that the current distribution of cases between High Court and Sheriff Court, as well as a sheriff's ability to preside over cases in the High Court when appointed to the role of temporary judge where appropriate, should be mirrored in the new specialist court.

Several respondents caveated, however, that any judges and sheriffs sitting in the specialist court should first have received specialist training.

A few respondents, despite indicating support for the proposal overall, expressed a preference for High Court judges to preside over all cases in the specialist court:

"It should operate at the highest possible level which will be the one of the HC [High Court]. Summary Sheriffs may not have suitable knowledge or experience to preside in such cases." (Advocacy/support organisation (Children and Young People))

Of the six respondents who disagreed, four explained their reasons. Two preferred High Court judges to preside over all cases; while one wanted to see juries being used (although did not say why). The final respondent wanted specialist judges to be used, and expressed concerns that sheriffs might impose lower sentences due to the sentencing options available to them.

A few who either did not respond to the closed element of the question or who were neutral about the proposal indicated they were more concerned with the training of those presiding over the case than the level of the judge or sheriff involved. One respondent also preferred a trained judge/sheriff over a jury where members had not received any training. One legal organisation stressed that "this proposal should not lead to a de facto increase in the sentencing powers of Sheriffs" (Legal Organisation), while another was concerned that public confidence could be negatively impacted by the appointment of judges/sheriffs to the specialist court by just one person:

"Concentrating the power of appointment in a single person would render the appointment process open to public scepticism." (Legal Organisation)

Question 63: If you answered disagree to the previous question, who do you think should preside over the court?

Of the six who disagreed with the proposal at Question 62, five indicated that the court should be presided over by High Court judges only and one said 'other'. Among those who gave neutral responses to Question 62, three indicated High Court judges only and two said 'other'.

Only three respondents who thought the court should be presided over by 'High Court judges only' provided further comments to support their answer. Two felt that the seriousness of the cases would require High Court judges and their sentencing powers, while the other was again concerned that anything less than a High Court judge presiding over such cases would be seen as 'downgrading' sexual offences:

"…populating the Bench of any such new court with High Court judges would diminish the negative effects of any such new court structure, by proclaiming that those who need that court will encounter only the most able of our society's legal minds, in the person of full Senators of College of Justice." (Legal Organisation)

Of those who indicated 'other', three respondents felt that both sheriffs and High Court judges would be necessary in order to deal effectively with the different severity of cases, one called for specialist judges, and another stressed that "the Lord President should appoint only those who have been trained" (Other (campaign)). One individual disagreed with the creation of such a specialist court.

Question 64: If a specialist sexual offences court distinct from the High Court and Sheriff Court were to be created, to what extent do you agree or disagree that the requirements on legal practitioners involved in the specialist court should match those of the High Court?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	29	42%	69%
Somewhat agree	4	6%	9%
Neutral	7	10%	17%
Somewhat disagree	-	-	-
Strongly disagree	2	3%	5%
No response	27	39%	-

Base = 69

Most who answered this question either strongly agreed (69%) or somewhat agreed (9%). Just under a fifth gave (17%) gave a neutral response.

Those who agreed that the requirements on legal practitioners involved in the specialist court should match those of the High Court felt it was important for the new court to maintain consistency with existing structures. It was felt this would help to ensure confidence in the new court. It was also argued that sexual offences were among the most serious types of offences and should be treated as such, i.e. at the High Court level or following a High Court approach.

Again, several respondents also stressed the need for trauma-informed training and practice across all those involved with the specialist court, and one respondent felt that anything less than operating at High Court level would be seen as downgrading sexual offences.

A few who were neutral about the proposal felt it should depend on the court's jurisdiction:

"The rights of audience should continue to match the structure of the existing court system. In Sheriff and Jury level cases solicitors and Procurator Fiscals would have rights of audience but in High Court cases only Ads [Advocate Deputes], Advocates and solicitor advocates could conduct the cases." (Victim/witness support organisation)

Only four respondents disagreed with this proposal, with one indicating that this could have significant impacts on the legal profession and requesting further details on how this would work.

Question 65: To what extent do you consider that legislation should require that legal professionals working in a specialist court should be specially trained and trauma-informed?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	35	51%	74%
Somewhat agree	4	6%	9%
Neutral	3	4%	6%
Somewhat disagree	2	3%	5%
Strongly disagree	3	4%	6%
No response	22	32%	-

Base = 69

Just under three quarters of those who answered the question (74%) strongly agreed with this proposal. A further 9% somewhat agreed.

Many of those who agreed that legal professionals working in a specialist court should be specially trained and trauma informed, felt this was a necessary requirement. It was felt this would help to provide a trauma-informed approach throughout the trial process, and mean that legal professionals could be held accountable for their treatment of complainers:

"Being specially trained and trauma-informed would mean more understanding of what had happened to the individual and would help them understand what needs to be done to support the individuals through the process. This would enable the individual to feel safe and know that they mattered." (Other (academia))

Several also argued that all staff in the court should undergo such training, not just legal professionals:

"Specialist trauma-informed training should be mandatory for legal personnel and for all personnel involved in the court process including VIA and SCTS personnel." (Victim/witness support organisation)

A few respondents had practical suggestions about how such training should be implemented and managed, with one suggesting a need for both formal training and continuing on-the-job support and feedback, while another argued that an accreditation should be required, which can also be revoked in certain circumstances. One individual felt that training should go beyond being trauma informed and include a range of other areas as well:

"Such training is essential and should go beyond 'trauma-informed' to understanding the impact of Adverse Childhood Experiences, Mental Health, the impact of poverty, deprivation and stigma on peoples' lives… Jurors should also undergo such awareness training to better understand why some witnesses may present or behave." (Individual)

One organisation stressed that it would be important to ensure enough staff received training to avoid delays being created due to a shortage of qualified staff. This was also of concern to one organisation who disagreed with the proposal. They argued that imposing such training requirements on the legal profession, which was already facing significant resource challenges, would result in few applications to practice in a new specialist court.

Of those who disagreed with the proposal, one preferred to see all professionals trained within the current court structure (a few who had agreed with the proposal also requested this). Another felt that training for the legal profession was a matter for the Law Society of Scotland and that this requirement was straying from the policy area in question.

Question 66: Are there any other matters relating to the potential creation of a specialist court for serious sexual offences you would like to offer your views on?

While most responses to this question were unique, a few recurring themes did emerge. A few respondents indicated a desire for greater multi-agency working to ensure that specialist and critical agencies are involved at an earlier stage/across all stages of the justice process, and so that the victim can be provided with support from specialist service providers throughout.

There was also support expressed for certain elements of Lady Dorrian's Review, particularly the pre-recording of evidence from all complainers and specialist trauma-informed training for all personnel. Some additional proposals were also suggested by a few respondents, including:

• provision of advocacy services for the complainer/victim/survivor
• dedicated areas for the complainer and their family, such as entrances/exits, waiting areas, and places where they can watch proceedings
• avoiding floating trial diets.

One final respondent also suggested that sentencing needed to be considered in order to address barriers to reporting and low conviction rates, although they did not comment on what they felt appropriate sentences should be.