Lady Dorrian Review Governance Group: Specialist Sexual Offences Court Working Group Report

Part 11: conclusions and recommendations of the Working Group and next steps

After detailed discussion and deliberation over a wide ranging number of practical and legal issues the Working Group makes the following recommendations, acknowledging in particular the requirement placed upon it in the Terms of Reference to make recommendations on next steps:

Next steps

That steps should be taken to progress implementation by means of legislation the creation of a national Specialist Sexual Offences Court with the core features and elements recommended by the Lady Dorrian, as further updated and innovated on below.

The Working Group recommends that:

• the Specialist Sexual Offences Court should, as the Lady Dorrian Review recommended, have national jurisdiction established by statute with authority to hear all serious sexual offences as listed at Paragraph 36 – 59ZL of Schedule 3 to the Sexual Offences Act 2003 as applicable and enforceable but with the exception of paragraphs 41A, 44, 44A, 45, and 46 (excluding 41A, 44, 44A, 45, 46, and 59A where there is no complainer) "Serious Sexual Offences"
• it should have authority to hear all types of solemn offences on indictment (but excluding murder) provided such charges are alongside or at least in combination with of one or more charges of Serious Sexual Offence, with such charges being the primary charges for consideration by the Court
• as masters of the instance, it should be at the discretion of COPFS to determine in the first instance via indictment the most appropriate forum to prosecute cases including where both sexual and serious non-sexual offences feature on the same indictment. I.e. by indictment to the Specialist Sexual Offences Court, High Court, and sheriff and jury court as applicable
• as recommended by the Lady Dorrian Review there should be a power of remit of cases to and from the Specialist Sexual Offences Court. This will be achieved by application by one or both of the parties, or by the applicable court of its own accord. The following constitutes appropriate criteria for determining whether cases should be transferred from the High Court (and, as applicable, solemn sheriff and jury court) to the Specialist Sexual Offences Court, namely that:
  • the charges libelled on the indictment (which must include at least one serious sexual offence as defined above) otherwise fall within the identified jurisdiction of the Specialist Sexual Offences Court and thus it has jurisdiction to hear the case; and
  • In all the circumstances, the High Court, or Sheriff and Jury Court (as applicable), considers it appropriate to do so
  • the Specialist Sexual Offences Court will have final say on cause shown on whether such a transfer should be effected, as the Court of Session has in respect of transfer of cases within the privative jurisdiction of the sheriff court^[22]
• in those very rare cases in which it may be merited the Sexual Offences Court should have the power to transfer cases to the High Court (and/or the sheriff and jury Court) on special cause shown, with the High Court having the final say on whether such a transfer should be effected in respect of cases being remitted to
• to ensure efficiency and minimise delay and promote certainty in those rare cases in which a remit to or from the Specialist Sexual Offences Court requires to be made, it should be done at the earliest possible opportunity and preferably no later than the first Preliminary Hearing in the case (First diet in the sheriff and jury court as applicable), unless circumstances dictate otherwise
• the National Specialist Sexual Offences Court to be implemented should subject to any derogations or otherwise exceptions in law have an unlimited sentencing power which includes the right to make orders for life long restriction
• as stipulated by the Lady Dorrian Review the New Court should be presided over by members of the judiciary who have relevant experience and 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. Candidates may therefore be drawn from the High Court and shrieval complement. The criteria for consideration and appointment to the New Court is to be determination by the Lord Justice General. Such eligibility criteria for the post should, in so far as possible seek, to ensure that candidates have and can evidence the required range of skills, knowledge and experience to preside over the New Court, including the completion of designated courses. Office holders should for the avoidance of doubt be supported by additional training including on sentencing as required (and as separately recommended by this Group)
• for the avoidance of doubt the Lord Justice General shall have authority to both appoint and also remove appointees from the New Court in such circumstances as are deemed appropriate by him
• as an alternative to the approach recommended by the Lady Dorrian Review to address concerns discussed in this section, that rights of audience for the Specialist Sexual Offences Court should be extended to include solicitors practising in Scotland who have undertaken the specialist trauma-informed training in dealing with vulnerable witnesses, including examination techniques, in accredited courses approved by the Lord Justice General required for appearance, but with the exception that no solicitor shall prosecute or defend cases before the New Court in which there is a charge(s) of rape, attempted rape (both statutory and at common law) or murder.
• irrespective of the rights of audience model adopted in the New Court, to support its implementation in principle it is recommended that there requires to be further consideration and exploration by justice partners in the criminal justice sector regarding the potential to support, encourage and facilitate the 'up take' of training including extended rights of audience in so far as possible to support the New Court and the criminal justice sector. This could include consideration and discussion of costs and time associated with training and perceived barriers to obtain extended rights of audience
• solicitors instructed in the prosecution or defence of cases proceeding before the New Court should be required to undertake trauma-informed training. The scope and detail of which, and the extent to which a solicitor may require to evidence compliance requires to be considered further. It is not envisaged by members of this Working Group that it should emulate the content and terms of the accredited courses required for those appearing before the New Court, but its key themes and issues should be included
• further consideration requires to be given as to the methods and ways in which legal professionals, particularly those solicitors not appearing before the New Specialist Sexual Offences Court could potentially be assisted in complying with their obligations to undertake trauma-informed training, and how that could be evidenced and monitored
• further consideration and possible options, while not exhaustive, could consist of the availability of public funding, the exploration and expansion of free or reduced fees for courses, and review of current training requirements on entry to branches of the profession
• the introduction of fixed trials in the New Court should be a key aspiration, with the introduction and potential use of such a model kept under constant review prior to, at commencement of, and throughout the operation of the New Court by those responsible for the New Court and, or its programming. The model used by the New Court should ultimately seek to achieve an optimum balance between efficiency and flexibility
• fixed trial diets for those cases in which a complainer's evidence has not been pre-recorded and therefore they require to attend the New Court to give 'live' evidence should be used in so far as possible and practicable, taking cognisance of the individual circumstances of the case
• in the interim there should be concerted efforts by justice partners involved in the High Court trial process to review the respective roles they play and collaborate and engage further in the identification of cases for trial, provision of estimates, and trial duration with a view to improving efficient use of current trial diets and trial scheduling in so far as possible and practicable
• with a view to improving programming and efficiency of the use of the trial model to be adopted, in so far as possible and practicable, the New Court should aim to encourage, via the use of judicial oversight and case management in particular, improved engagement and communication between prosecutors and defence to facilitate the identification of cases ready for trial, improved estimated duration of trials and efficiency during trials. Progression in this regard may be assisted with the ultimate conclusions of the review in to defence statements recommended by the Lady Dorrian Review
• progression of a review in to defence statements should remain a priority in accordance with the preference and stipulation of the Lady Dorrian Review.
• the Reviewer should be derived from the legal profession, with a preference that they be drawn from the current or recently retired judiciary. The Reviewee should for the avoidance of doubt have extensive and recent experience of the High Court and defence statements
• the Reviewee should have unlimited/unfettered discretion on its terms of remit and reference which would require to be refined further
• there was a preference for the review of defence statements to be undertaken and completed as soon as practicable taking cognisance of the need for appropriate time for consultation, exploration and discussion and the commitments of the ultimate reviewer. The Group's preference was for an outline time period to be agreed taking cognisance of the aforementioned 9-12 month period