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

Part 1: background

The Governance Group was established to bring partners from across the justice system together to champion shared ownership of, and consider approaches to implementing the recommendations of the Lady Dorrian Review on a cross-sector basis. In order to fulfil this remit a number of short life working groups to undertake detailed consideration of specific or aspects of specific recommendations contained within the Lady Dorrian Review were established. Among those was a Working Group specifically established to consider the creation of a national specialist court for serious sexual offences (the New Court) with the core features as recommended by the Lady Dorrian Review. The full terms of the recommendation made (Recommendation 2) are as follows:

"A National, specialist sexual offences court should be created, in which the core features should be:

1. Pre-recording of the evidence of all complainers;

2. Judicial case management, including GRHs for any evidence to be taken from a complainer, either on commission or in court; and

3. Specialist trauma-informed training for all personnel

The court should have the following features:

(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 GRHs 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) SCTS 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 (discussed further in chapter 4);

(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 as recommended in chapter 5 of this report; and

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

In support of the case management powers available to the specialist court, and the High Court currently, and for the reasons given in paragraphs 1.19 and 1.20, there should be a review of the utility of section 70A of the Criminal Procedure (Scotland) Act 1995 with a view to strengthening the requirement therein to lodge a meaningful defence statement. This review should proceed irrespective of the implementation of any of the other recommendations made in this report."

Remit and membership of the Working Group

The Specialist Court Working Group (the Group) comprised representatives from eight separate organisations drawn from the membership of the Governance Group, specifically chosen to provide the perspective of and insights from different parts of the justice system.

Terms of Reference setting out the parameters of its remit and proposed deliberations were ultimately agreed. The full terms of which, including details of the Membership of the Working Group are reproduced at Annex A.

It was agreed with the Governance Group that the Group's role would be to focus on, and critically examine the key component parts required of the national specialist sexual offences court as recommended and what the practical considerations and challenges to implementation were, and possible solutions to them. In doing so, certain elements of the recommendation (items 2(g) to (l)) were expressly removed from consideration because they were either being considered and explored by other Working Groups, Scottish Government led Implementation Groups, via consultation or were otherwise the responsibility of other organisations or a combination thereof; with updates on progress on these being provided to the Governance Group separately in any event. The aim of the Group was not to revisit the need for a Court given the extensive consideration over a period of two years by justice partners in the Lady Dorrian Review, but to provide criterial input and feedback on aspects associated with it and to help with its implementation, with a specific requirement to suggest next steps.

This paper accordingly sets out the key views expressed and insights provided by Members during meetings in which papers were circulated beforehand, and associated correspondence. The conclusions and recommendations on implementation of the New Specialist court set out at page 29 reflect the broad consensus among Members on the issues discussed. Differing views or perspectives, and an inability to reach unanimous agreement or any agreement of course occurred and in so far as possible this has been documented. For example at the time of the paper being written, Rape Crisis Scotland (RCS) was not in a position to support the proposal that sheriffs, other than those appointed as temporary judges, preside over all cases before the New Court. Whether agreed unanimously or by majority the recommendations, commendations and suggestions made in this paper should be taken as final and are for further progression.

The Working Group's approach

Following its establishment on 28 February 2022 the Group met remotely on six occasions. At the outset and to facilitate delivery of its Terms of Reference the Group identified the key component parts of the national specialist sexual offences court which it required to critically examine from a practical and legal perspective (in so far as possible acknowledging that further detailed and legal analysis of any recommendations made was for others) to make recommendations to support implementation of the court in the future. Its work proceeded on the basis that the need for a new specialist sexual offences court should not be revisited, that a court was to be implemented and that the Group's observations and recommendations were to address the practicalities associated with implementation, and ultimately to assist those primarily responsible for that given that some form of legislative change would be needed to support its creation. The term 'the New Court' is used as an abbreviation throughout this paper to identify the national specialist sexual offences court discussed by the Group and to be introduced in Scotland.

The key elements for critical and practical consideration were as follows:

• the jurisdictional reach of the New Court. (This included the list of cases that would appear before it; how cases would come in to it; what exceptions, if any, might apply; and how cases could be transferred in to and from it, and the relevant legal test(s) for that)
• judicial appointments to the new court (i.e. the types of judges who could sit on the court)
• the sentencing powers of the new court
• the rights of audience for the new court
• the requirements and reach of trauma-informed training associated with participation in the new court
• other practical points with the establishment of the New Court or the recommendations made as they arose or were identified in the course of discussions
• the review of defence statements, as also recommended by the Lady Dorrian Review, this matter is addressed under a separate section in this report.

It was acknowledged at the outset that jurisdiction, the judiciary who would preside over the New Court and its sentencing powers were particularly inter-related, and that if for practical or legal reasons the Group was to recommend a change to one element it had the potential to address or aggravate concerns and practical challenges with another element. This was particularly the case for sentencing. It was acknowledged that there would likely be additional, and in some instances not insignificant costs associated with any proposals made by the Group. That taking different options from those chosen by it, or indeed from the model recommended by the Lady Dorrian Review inevitably had the ability to either subtract from or add to those costs.