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

Part 2: the new specialist court structure and legislative requirements

At the commencement of discussions it was identified by members of the Group that the model recommended by the Lady Dorrian Review, namely of a new national sexual offences court with specific and bespoke national jurisdiction, sentencing powers, identifiable trauma-informed judges and compulsory training requirements for all those legal professionals who would appear before it or facilitate it had proceeded on the basis that primary legislation would be required to support and implement its core principles and operation.

Some members of the Group however queried the need for a specific new statutory court, and asked whether there was potential for its core elements, which they saw as training, to be replicated as envisaged but within the current court structure, perhaps via the creation of a division of the High Court, or even specialist courts in each sheriffdom. The suggestion of some was that change for change sake, should be avoided wherever possible and that options for establishing specialism that would deliver against the objectives set out in the Review but in a quicker and more cost effective way should be considered.

Mindful of this concern, resourcing generally and the requirement to critically consider implementation of the New Court, the Group therefore extended its remit and gave detailed consideration to two alternatives to establishing a new statutory court. With a focus being on using the current powers, court structure and practices with no or very limited legislative intervention or change in so far as possible. The view of many of the Group was that if it was identified that significant legislative change was required to facilitate fitting the court in to the current model without the ability or certainty to be able to gain all of the benefits of the recommended court, such effort and time would be best focused on creating the new statutory court as envisaged. The two alternative options considered were namely:

• establishing a specialist sexual offences court as a division or branch of the current High Court (option 1) using the current legislative processes and procedures in so far as possible.
• establishing a specialist sexual offences courts within the High Court and the sheriff and jury Court i.e. option 1 but with the addition of specialist courts within the 6 sheriffdoms (option 2).

In reviewing the options the Group looked at each of the key elements of the Lady Dorrian Review model in turn and gave consideration to the extent to which they could be replicated in so far as practicable within each model. One difficulty immediately identified by the Group in respect of both options was an apparent barrier within the current legislative provisions to the creation of a division or branch within the High Court. Furthermore both models would have to rely upon and use practice notes and directions to try and achieve the aims of the Review. These documents would not be permitted to change or recommend procedure contrary to the terms of primary legislation. Legislative reform would be required to effectively deliver these alternative options and the question was, what would be gained or achieved by that approach to legislative reform as compared to the approach recommended by the Lady Dorrian Review; and conversely, what gaps would exist or what benefits would fail to materialise or be maximised. Ultimately the Group rejected both options for a variety of reasons, favouring the creation of a new bespoke statutory sexual offences court via primary legislation.

The reasons while lengthy, focused both in legal and practical terms on the impracticalities or inabilities to guarantee replication of the rationale and core elements and goals of the recommended court model, and ultimately the benefits it would bring. This was particularly so with regard to the requirement to create national jurisdiction, utilising all available judicial and estate resources, ensuring compulsory training of all legal individuals participating in the court (other than judges as current legislation was in place to assist) and ensuring the consistency of practice required to improve the experience of all users while not impacting the rights of the accused. All of these would require to be stipulated in statute to ensure their desired effect.

In respect of specifics, the Group's concern was that neither options 1 or 2 could compel or introduce a requirement for non-judicial participants to undertake trauma-informed training as a pre-requisite for appearing before the New Court. At most, parties and particularly legal professionals, could only be encouraged to take the training. Of greatest concern to some members of the Group was that each option, effectively involved an approach of tweaking current practice and procedure and using current structures and 'diffuse' aspects of training without the legislative backing, aspects which the Lady Dorrian Review had been at pains to discount. As the Lady Dorrian Review had stipulated (at 3.11) given the nature of the problems outlined in its report and the significant volume of cases the options of fast-tracking, clustering or using current procedures were clearly not sufficient, hence it favoured the creation of a dedicated specialist court for serious solemn sexual offences. Option 1 without the legislative ability to use other judicial resource had the potential to further aggravate the capacity issues the Review was seeking to address.

Over and above the aforementioned, some members advocated the position that implementing the recommendation, and advancing it on a statutory footing (subject perhaps to the innovations and commendations the Group makes) had a number of benefits over and above those detailed in the Review Report and discussed. These included:

• evidencing that the Scottish Criminal Justice System was taking positive and proactive steps to address such serious and life changing crimes, rather than as some jurisdictions were doing, attempting to do this by what might be seen by some as easier 'fixes' within current procedure and practice, something which the Lady Dorrian Review was opposed to, preferring a 'clean sheet approach'
• that the placing of the New Court on a statutory footing as intended allowed greater potential for future proofing of the court, evaluation, Parliamentary scrutiny and innovation. Avoiding the Lady Dorrian Review's concern that our successors will be examining the same issues forty years hence if a radical and new approach was not taken
• it should assist in restoring and increasing public confidence in the justice system generally; which may in turn increase volumes of reporting of crimes

The Group therefore recommended the progression of a national specialist sexual offences court as recommended by the Lady Dorrian Review, but subject to such further innovations or recommendations it or others might seek to make. Discussion on such matters and the ultimate recommendations made by the Group now follows.