Improving victims' experiences of the justice system: consultation

Chapter Seven: Specialist court for sexual offences

Background

Developing a criminal justice system that is person centred and trauma informed means striving to ensure that insofar as possible, the system itself, and the structures and processes within it, cause no further harm or trauma to witnesses. That requires a close examination of the significant and ongoing concerns regarding the experience of complainers in cases involving serious sexual offences.

In particular, concerns are regularly raised over the process of giving evidence in court for complainers, particularly the tone, content, duration and scope of the questioning, particularly during cross-examination.

This was illustrated in the case of McDonald v HM Advocate, where the Lord Justice General, Lord Carloway, Scotland's most senior judge noted:

"This trial was conducted in a manner which flew in the face of basic rules of evidence and procedure, not only the rape shield provisions but also the common law. It ignored a number of principles which have been laid down and emphasised in several recent decisions of this court. If justice is to prevail in the prosecution of sexual offences, it is imperative that those representing parties abide by these basic rules. If they do not do so, the judge or Sheriff must intervene to remedy the matter. During her cross-examination, this complainer was subjected to repetitive and at times irrelevant questioning. She became extremely distressed and rightly so. The court did nothing to intervene. Were this to be repeated, the situation in sexual offences trials would be unsustainable."

Lady Dorrian's Review suggested it was important to consider the role of the judiciary in terms of delivering a better experience for complainers in sexual offences cases.

Recommendation of Lady Dorrian's Review

Lady Dorrian's Review considered the evidence in support of the creation of a new specialist court and made the following recommendation:

"A national specialist sexual offences court should be created to deal with serious sexual offences including rape and attempted rape. The core features of the court should be:

1. pre-recording of the evidence of all complainers

2. judicial case management, including Ground Rules Hearings for any evidence to be taken from a complainer, either on commission or in court

3. specialist trauma-informed training for all personnel."

These core features of a specialist sexual offences court are of course all distinct and have the potential to be delivered within the existing court structure without the need to create a separate specialist sexual offences court. Each has been considered within Chapter Two.

However, the question that arises is whether the delivery of these features, and the benefits they would bring, would be maximised through the operation of a specialist sexual offences court.

This consultation is seeking views on the potential development of a specialist sexual offences court in light of Lady Dorrian's Review making the recommendation. The recommendation, if implemented, would introduce a new court for Scotland with specific and bespoke jurisdiction and sentencing powers which would not sit within any existing level of court in Scotland.

The role of the Lord President

The Scottish Government recognises that under section 1 of the Judiciary and Courts (Scotland) Act 2008 ('the 2008 Act'), the Scottish Ministers have a duty to uphold the continued independence of the judiciary. Section 2 of the 2008 Act designates the Lord President as Head of the Scottish Judiciary. Amongst other things, the Lord President has a responsibility for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts.

Establishing a specialist court with bespoke jurisdiction and sentencing powers, as envisaged by the recommendation made by Lady Dorrian's Review, would however require primary legislation to be implemented. This consultation seeks to gather views on the recommendation to inform the development of any legislative proposals.

Specialist courts

It is worth noting that there are different models of specialist courts. For the purposes of this consultation, the specialist sexual offences court as recommended by the Review is a court where all those involved in the operation of the court – for example, the judiciary, prosecutors, defence lawyers - are specially trained for dealing with sexual offences cases in a trauma informed-manner and all the procedures are aligned with the specific needs that arise in dealing with serious sexual offences (including pre-recording of complainers' evidence and the right of complainers to independent legal representation as discussed previously). The recommended model of specialist court also has bespoke jurisdiction and sentencing powers.

An alternative model of a specialist court is that it is a court that only deals with one type of offending, but where there is not (necessarily) the type of specialist training and specialist procedural arrangements in place.

Specialist courts are not new to Scotland, for example a number of specialist Domestic Abuse Courts dealing with summary level offending have been established across the country following the successful pilot of the first specialist Domestic Abuse Court in Glasgow in 2004.

Whilst the particular arrangement of each specialist Domestic Abuse Court varies depending on the sheriffdom, each is constituted with regard to the local context and without the need for additional, specific legislation. As noted above, it is for the Lord President and sheriffs principal to determine how the courts operate including whether specialist courts should operate such as Domestic Abuse Courts. In order for specialist Domestic Abuse Courts to operate, no additional sentencing powers were needed and so no legislation was required. As discussed later on this in this chapter, specialist sexual offence courts may need legislation including to deliver new sentencing powers for certain members of the judiciary involved in the operation of a specialist sexual offences court.

These specialist courts are generally established through local court programming (the exception to this being the Virtual Summary Domestic Abuse pilot which is reliant upon provisions within the Coronavirus (Scotland) Act 2020). Given the volume of cases of serious sexual offences, particularly in the High Court, and the other problems it identified with the conduct of these cases in the course of its work, Lady Dorrian's Review concluded that specialism through court programming within the existing court structure, to fast track or cluster cases together, would not be sufficient.

Lady Dorrian's Review therefore considered the merits of the creation of a new specialist court to deal with the most serious sexual offences, including rape and attempted rape which currently must be prosecuted in the High Court. The model of specialist court proposed by the Review would introduce a new court for Scotland with specific and bespoke jurisdiction and sentencing powers which would not sit within any existing level of court in Scotland.

Alternatively, instead of creating an entirely new court for the purposes of hearing serious sexual offence cases, another option would be to establish a specialist sexual offences court as a branch of the High Court. Such a court could, in effect, operate the same way as the High Court with equivalent procedures, sentencing powers and jurisdiction but with trauma-informed approaches embedded from the outset in order to improve the experience of complainers. A further alternative may be to establish specialist sexual offences branches within the High Court and the Sheriff and Jury Court. This was however not the recommendation of Lady Dorrian's Review which favoured the creation of a new dedicated specialist court distinct from the High Court and Sheriff Court.

Arguments in favour of creating a new specialist court

There are a number of relevant arguments advanced in favour of a specialist court which suggest there could be benefits to Scotland's criminal justice system from the introduction of a specialist sexual offences court.

Specialism already characterises the response of other parts of Scotland's criminal justice system to serious sexual offences including the investigation, preparation and prosecution of cases by Police Scotland and the Crown Office and Procurator Fiscal Service respectively.

• Training for the judiciary, staff and practitioners - Broadly speaking, the case for specialist courts centres around the opportunity to target the required training for all those involved in the court (including the judiciary, prosecutors, defence practitioners, court and support staff), to develop best practice in conducting trials in a manner which recognises the impact of trauma, reduces the risk of causing distress or re-traumatisation to complainers, enhances their opportunity to give their best evidence and improves the overall administration of justice. While it is possible such training could be given to anyone who may be involved in sexual offences cases, the targeting of such training which a specialist court would facilitate, and it being an essential requirement to participate in the model proposed by the Review, is a key suggested advantage.

Developing skills and expertise in the management of these cases, having stand-alone court rules and procedures designed to support a specialist, trauma-informed approach and developed with the specific intention of reducing delay, achieving early disclosure of evidence, and encouraging communication between the Crown and the defence (all as proposed by the Review Group), would benefit complainers and may also lead to a reduction in overall delay and increased efficiency, benefiting others in the justice system including the accused, other witnesses and jurors.

• Better efficiency in managing cases and improving the experience of complainers - An evaluation specific to domestic abuse pilot courts introduced in Glasgow Sheriff Court was commissioned by the then Scottish Executive and took place from October 2004-October 2006. The Evaluation found that the court was effective, and had many benefits compared to traditional courts, including improved outcomes such as: a higher proportion of cases in which there was a guilty plea at some stage (81% compared to 73%); a higher proportion of guilty pleas at the first appearance (21% compared to 18%), a higher proportion of pleas changed to guilty at or before the intermediate diet (54% compared to 45%), a higher conviction rate (86% compared to 77%). The speed of processing cases was much faster in the domestic abuse court than the comparison courts. There was overwhelming support for a specialist court approach to domestic abuse amongst participants of all types and this evidence supported a decision by the judiciary to establish permanently the Glasgow domestic abuse court and others that followed.

• Evidence from New Zealand's Specialist Sexual Offences Court - Outwith Scotland, Lady Dorrian's Review noted that there were examples of specialist courts, or pilots of such courts, in South Africa, New South Wales and New Zealand.

In New Zealand, a time limited pilot specialist court for sexual offences, including rape and attempted rape, was established in late 2016 in two court districts. The pilot developed and adopted guidelines for best practice that: used designated trained judges with an enhanced role in case management and more active control of cross-examination; used special measures more frequently; and adopted other measures to address the comfort and safety of complainers such as separate court entrances and meeting the judge, prosecutor and defence counsel before the start of the trial.

Sue Allison and Tania Boyer's report on the evaluation of the sexual violence court pilot court was published in 2019 and, whilst the evaluation noted there was scope for improvement, the key findings included:

• that pilot cases progressed more efficiently, faster and with fewer delays overall
• participants perceived that trial quality had improved, with fewer adjournments and better quality evidence
• complainers were generally better prepared for attending trial, reducing anxiety, and trials were managed in a way that did not cause them to be re-traumatised by the process
• the judiciary were more alert to unacceptable questioning and intervened more frequently
• firm trial dates were issued earlier, resulting in more and earlier guilty pleas
• that there was unanimous support among participants for the model to be developed nationally.

The specialist court has become a permanent feature in the two court districts in New Zealand which it was piloted with national expansion under consideration.

Arguments against creating a new specialist court

There are a number of relevant arguments which suggest the current court arrangements for dealing with sexual offences could continue, embedded by the new procedures, processes and training suggested by other recommendations within Lady Dorrian's Review including a greater emphasis on the pre-recording of evidence.

• Perception of downgrading of serious sexual offences - Some argue that the prosecution of the most serious sexual offences including rape and attempted rape belongs in the High Court to mark the seriousness of such offending. It is suggested the creation of any court which is perceived to be inferior to the High Court to hear these cases would downgrade the seriousness of that offending.
• Perception that creating a specialist court would introduce a two-tier system for serious sexual offences - Some concerns focus on the way the court is constituted, its jurisdiction and its sentencing powers. If some cases involving serious sexual offending are dealt with by the specialist court and some are not, then there is a risk that would create the perception of a two tier system of justice for similar types of offending. For example, the High Court has exclusive jurisdiction over murder so where such a charge appeared alongside a serious sexual offence, that case would still have to be heard in the High Court and not the specialist court. In other words, the specialist court would not have exclusive jurisdiction to hear serious sexual offence cases and some would continue to be heard elsewhere.
• Suggestion that the aims of establishing a specialist court can be achieved within existing structures - Some argue that the preferred approach is not to create a specialist court but to ensure that existing courts operating with the sentencing powers they hold can appropriately manage these cases and ensure that complainers can give evidence in a manner that is trauma informed. This argument was however addressed by the Review Group which suggested that cases which continue to call in the High Court would be presided over by a judge who was also appointed to sit in the specialist court, meaning they could bring their specialist training and experience to bear. The Review Group also acknowledged that the unlimited sentencing powers possessed by the High Court of Justiciary had not prevented its review from being necessary.
• Limited impact on reducing delays in cases - Operationally, given the number and complexity of cases involving serious sexual offences in Scotland, some argue that it may be unlikely that a specialist court would have an effect on delay in these cases. However, the expectation of the Review Group was that there would be a reduction in delays overall once such a court was operational as the specialism had the potential to assist the judiciary, staff and practitioners to be better equipped in dealing with complainers, enhance the experience of complainers, encourage greater sharing of information and to reduce delay.

A pilot specialist sexual violence court in New South Wales, evaluated in 2005 (Cashmore J. & Trimboli L. - An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot) did not see significant impact on delay or case management, suggesting that the specialist approach alone is not adequate to tackle the problems with the management of these cases. It was however noted by those who carried out the evaluation that there was little to differentiate the pilot court from mainstream courts and problems arose because of the way in which the pilot was set up.

• Impact on the judiciary - While a matter for the judiciary, there may also be concern that a member of the judiciary who only sits in a sexual offences court may lose some aspect of their experience and skills in dealing with non-sexual offence cases.

Scottish Government response to the recommendation as to the principle of having a specialist sexual offences court

The Scottish Government is seeking views on the legislative changes that would be required before the recommendation of the Review to create a specialist court to deal with serious sexual offences could be implemented. We recognise that the key features of that specialist approach (including the expansion of pre-recorded evidence, judicial case management and the development of trauma-informed training), should be in place to serve as the foundation of the new court and enable it to operate as intended.

The Scottish Government further recognises that those steps, which are distinct from the operation of a specialist sexual offences court, should be progressed without delay so the benefits they bring can be materialised for as many complainers as possible, as soon as possible.

The establishment of a new specialist sexual offences court will require significant exploration and engagement across the justice sector to ensure that all opportunities for innovation and improvement are identified. Detailed consideration will have to be given to: how the court would interact with existing courts, procedures and legislation; the impact across the justice sector on resourcing; and opportunities for third sector involvement. Therefore, before any legislation establishing a specialist sexual offences court could be implemented, a number of important operational matters would need to be fully assessed.

Given the observations and conclusions of the Review on the experience of complainers, it is clear that where possible, the other necessary reforms identified should be progressed while potential development of a specialist sexual offences court is considered separately.

The Scottish Government is committed to fully considering how a specialist court might operate and is pursuing this both through the work of the Governance Group and by using this consultation to seek views on key aspects of the proposal which require legislative change in order for the court, as envisaged by Lady Dorrian's Review, to be established.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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

a) within the High Court

b) within both the High Court and the Sheriff and Jury Court

c) other – please provide details

Please give reasons for your answer.

Practical features of a specialist sexual offences court

Lady Dorrian's Review set out a number of further features of the court including its jurisdiction, sentencing powers and other matters:

a) A national jurisdiction in respect of serious sexual offences prosecuted on indictment

b) Procedures based on current High Court practice, revised to meet appropriate standards of trauma-informed practice

c) Those procedures to include judicial case management including Ground Rules Hearings and practises similar to those developed in High Court of Justiciary Practice Note No 1 of 2017 and No 1 of 2019

d) Presided over by a combination of High Court judges and sheriffs, who have received trauma-informed training in best practice in the presentation of evidence of vulnerable witnesses and appointed to the court by the Lord Justice General

e) Sentencing powers of up to 10 years' imprisonment

f) Rights of audience available to members of the Faculty of Advocates, solicitor advocates, and prosecutors all of whom have received specialist trauma-informed training in dealing with vulnerable witnesses, including examination techniques, in accredited courses approved by the Lord Justice General

g) Scottish Courts and Tribunals Service administrative and support staff trained in trauma-informed practices expanding on services already provided in the evidence suites in Glasgow and Inverness

h) Pre-recording of the whole of a complainer's evidence as the default method of presenting the complainer's evidence

i) The right to independent legal representation (ILR) to allow complainers to oppose section 275 applications with appropriate public funding

j) In the event of complainers requiring to attend court measures adopted will be those which address the comfort and safety of the witness

k) Measures in respect of pre-instruction and charging of juries

l) Legal aid provision for the court including a dedicated table of legal aid fees

The following questions in this chapter seek views on particular aspects of the specialist court that would require to be set out in legislation.

Other standalone features which would apply broadly to all cases involving serious sexual offences, and not just those being heard in a specialist court were it to be created (such as (i) the right to independent legal representation to allow complainers to oppose section 275 applications), are considered in detail elsewhere in this consultation.

Jurisdiction of a specialist sexual offences court

Lady Dorrian's Review recommended that the court has national jurisdiction to hear solemn level cases where the primary charges are serious sexual offences. This would include charges of rape which currently, as a matter of law, must always be prosecuted in the High Court. The court would also have jurisdiction to deal with other non-sexual offending where charges appeared on the same indictment (for example, where an assault was charged along with a rape).

The Review noted that the High Court would still hear cases where the sexual offence featured alongside other serious offences such as murder, attempted murder or abduction or where an Order for Lifelong Restriction was anticipated to be a consideration upon conviction.

Currently, unless the matter is set out in legislation, prosecutors working for the Crown Office and Procurator Fiscal Service, acting with the delegated authority of the Lord Advocate or the Procurator Fiscal, make decisions on the appropriate forum for prosecution, taking into account a range of factors including the sentencing powers of the court. As noted above, while there is currently a requirement in Scotland that rape be prosecuted in the High Court, no similar rule applies in England and Wales where it is dealt with at Crown Court level.

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)?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

Sentencing powers of a specialist sexual offences court

Currently, sheriffs have solemn sentencing powers of a maximum of five years' imprisonment whereas High Court judges are able to sentence up to life imprisonment (although both sheriffs and judges sentencing powers are subject to any maximum sentence specified by the legislation governing the particular offence an accused has been convicted of). Where a sheriff is sitting as a temporary judge in the High Court, for the purpose of dealing with High Court cases, they have the same sentencing powers as High Court judges.

Following a conviction, sheriffs may remit individual cases to the High Court for sentencing if they consider their powers to be insufficient.

Lady Dorrian's Review recommended that the specialist sexual offences court be given sentencing powers of a maximum of 10 years' imprisonment with the ability to remit individual cases to the High Court where this sentence limit is considered to be insufficient. Statistical evidence was cited by the Review which demonstrated that a sentencing power of 10 years would have captured more than 95% of sentences for sexual offences convicted on indictment for the period from 2016 to 2019.

However, the Review acknowledged that this was a sensitive aspect of their recommendation and that further consultation may be required.

To create a specialist court to deal with offences of rape, but with a maximum sentence lower than that which can currently be imposed by existing non specialist courts hearing those cases, is seen by some to be counter intuitive, regressive and may potentially undermine the credibility of the specialist sexual offences court.

The principal concern is that imposing a limit on the sentencing of serious sexual offences, beyond any already existing in legislation for specific offences, could be perceived as downgrading the seriousness of sexual offences. It is, however, important to note the recommendation would not mean sentences of more than 10 years could not be imposed in cases prosecuted in the specialist sexual offences court; however, any such sentence would require the case to be remitted to the High Court for sentence post-conviction.

There are also concerns that a sentencing limit of 10 years' imprisonment creates a two tier system whereby those cases which continue to be prosecuted in the High Court, whether because of the nature of other offences included on the indictment or another reason, would be perceived to be subject to a higher maximum sentence than those prosecuted in the specialist court. As noted above, this is not entirely accurate (as a case can be remitted) but nonetheless the perception may exist. This is perhaps most acute with rape which currently as a matter of law has to be prosecuted in the High Court.

Another aspect to the debate however is that the Scottish Sentencing Council is currently developing sentencing guidelines on sexual offences in relation to rape, sexual assault, and indecent images of children, which all judges will have to take into account when sentencing in a relevant case. Sentencing guidelines are approved by the High Court and help to ensure sentences are consistent, fair and proportionate.

As a general point of principle, sentencing is for the court in any given case and this is based on the simple and compelling argument that it is the court that is aware of the full facts and circumstances of an offence. While remitting to a higher court for sentencing is a feature of current practice, it is not necessarily an approach that must be embedded at the outset of a new court structure.

Where a court finds an accused guilty, the starting premise is that the same court should follow through to sentence given they will have heard all the facts and circumstances. When a case is remitted, the court within which the conviction has arisen will provide a report on the facts and circumstances which informs the sentence to be imposed.

Exactly whether a specialist sexual court should be created with the knowledge that some sexual offence cases will always need to be remitted for sentencing to the High Court is a question to be carefully considered.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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?

a) unlimited

b) other – please provide details

Please give reasons for your answer.

Judicial appointments to a specialist sexual offences court

Lady Dorrian's Review recommended that the specialist court be presided over by High Court judges and sheriffs, noting that currently sheriffs can and do sit as temporary judges in the High Court (meaning that currently, a large number of High Court sexual offences cases are currently presided over by sheriffs sitting as temporary judges). The Review recommended that appointments to the court would be made by the Lord President upon satisfaction that the judge or sheriff had the experience and had undergone necessary specialist training as determined by the Lord President.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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

a) sheriffs only

b) High Court judges only

c) other – please provide details

Please give reasons for your answer.

Legal professionals involved in specialist court cases

Lady Dorrian's Review recommended that possessing appropriate training consistent with the gravity of cases being heard by the court and their impact on complainers should be a requirement of all legal practitioners involved in the specialist court.

Specifically, the Review highlighted that the right of legal practitioners to appear in the High Court, where the most serious sexual offences cases are currently heard, comes with an associated requirement to 'undergo significant and rigorous training' on aspects of court procedure and practice and which reflects the severity of cases heard by the High Court. As such, Lady Dorrian's Review recommended that the level of training required of legal practitioners permitted to appear in the specialist court should match that of the High Court. This would mean that cases would be prosecuted by Advocate Deputes, who are advocates or solicitor advocates appointed by the Lord Advocate and the defence would be conducted by advocates or solicitor advocates.

Additionally, the Review also felt that this should be reinforced by a specific requirement for all those involved in cases within the specialist court to undergo trauma-informed training with a view to improving the experience of complainers.

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 be match those of the High Court?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer, including any specific training requirements that you think should be introduced.

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?