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

Part 3: jurisdiction of the Specialist Sexual Offences Court, transfer of cases and appeals

National jurisdiction

The Group considered the proposed jurisdiction of the New Court as recommended by the Lady Dorrian Review i.e. the cases it would hear; as well as the practical and legal issues associated with implementing it in 'day to day' practice. This included who had responsibility for, and how cases would be brought to it, and how rights of remit would occur, and the associated tests for each. In doing so, it revisited the understood reasons and rationale for the recommendation, while taking cognisance of the time that had elapsed since the Review's publication, developments thereto and the practical experience of the Group's members.

The Lady Dorrian Review recommended that the New Court should have a national jurisdiction in respect of all solemn cases on indictment where the primary charges were serious sexual offences including rape, alongside any ancillary offences triable on indictment. 'Serious sexual offences' were defined as all offences identified in paragraphs 36 to 59ZL of Schedule 3 to the Sexual Offences Act 2003, with the exception of paragraphs 41A, 44, 44A, 45 and 46 on the basis that such offences were unlikely to involve an individual complainer providing evidence or determination of whether there is a 'sexual element' to the offence would be a matter following trial. Paragraph 59A was similarly to be dis-applied in circumstances where there was no identifiable complainer who would give evidence. Indictments which featured serious sexual offences alongside or in combination with other serious offences such as murder, attempted murder, abduction, or where, it was anticipated that consideration of or the actual imposition of an Order for Lifelong Restriction (OLR), would be excluded but heard in the High Court presided over by a judge who was also trained to sit in the New Court, assisted with similarly trained SCTS personnel in so far as possible.

In the first instance, some members of the Group asked for consideration to be given to the potential revisal of the list of cases proposed to fall within the New Court's jurisdiction. In doing so, the Group gave consideration to the possible reasons for the approach taken by the Lady Dorrian Review, particularly the exclusion of certain crimes from the Court i.e. murder, attempted murder and abduction. It was acknowledged by the Group that allowing murder to be heard as standard in the New Court, and also at the High Court would raise notable constitutional issues and create an anomaly, given the High Court presently has privative jurisdiction for the crime.^[1] Furthermore it carried with it an automatic life sentence with the punishment part rarely set at less than 15 years (a level rarely applied to sex offence cases based on the data available to the Review at the time of its report). This would exceed the recommended sentencing limit of 10 years for the New Court. In a similar vein, an OLR was seen as a significant custodial order, only available to those presiding in the High Court presently. The view was taken that some commentators might perceive murder to be 'downgraded' if allowed to be heard as standard in the specialist court which had bespoke sentencing powers and judiciary.

The main driver for those members who ultimately proposed to revise the jurisdiction was to ensure that more complainers and users reaped the benefits associated with the New Court. A number of members were more cautious about increasing the list of cases given the undeniably finite resources within the criminal justice sector generally, and the need to use those wisely.

The experience of COPFS members of the Group was that as attempted murder and abduction were not within the privative jurisdiction of the High Court; they could and were on occasion prosecuted in the sheriff court with sexual offences. Furthermore rape with abduction often featured on the same indictment and from members' perspective there would be undeniable benefits in such cases calling before the New Court automatically. While acknowledging the benefits in principle of this some members of the Group continued to express caution about the automatic extension of the New Court's jurisdiction. It could unintentionally place strain on the New Court. The key aim of the recommended court was to use finite specialist resources for serious sexual offences, while allowing the High Court, and as applicable the sheriff courts, to continue to resource the remaining case load from its complement. Categories of charges libelling conduct such as serious violence including murder and attempted murder, drug trafficking or serious and organised crime remained a significant proportion of the work of the High Court and the professionals that support it. It would not be without its operational challenges if these cases were to be before the New Court automatically rather than by exception.

Notwithstanding such concerns a significant majority of the Group wished to recommend that the New Court's jurisdiction should be extended to hear indictments which featured at least one of the serious sexual offences designated by the Review alongside, or in combination with, all other types of solemn cases, with the exception of murder only (which would remain exclusively within the High Court). I.e. including abduction and attempted murder which had been excluded by the Lady Dorrian Review. Where murder appeared on the indictment alongside at least one other serious sexual offence charge the case should be indicted to the High Court, but parties would have the opportunity to seek a remit to the New Court (subject to the requirements for remit which are discussed further below.)

Introducing cases to the New Court

Consideration was given to who should have responsibility for identification of cases to be presented to the New Court, and how in practical terms that would be achieved. It was unanimously agreed by the Group that it should be COPFS, as masters of the instance who should determine in the first instance whether a case should be indicted to the New Court. This was for basic and practicable reasons if nothing else. Alternatives considered, such as requiring cases to be indicted to the High Court as standard and then an application being made for remit to the New Court with a determination being made at the Preliminary Hearing (PH) added an additional layer of complexity and administrative and resource burden. Identifying cases and indicting them to the New Court from the outset provided a degree of certainty for all concerned and ensured, in so far as possible, that cases benefited from the New Court's specialised practices, procedures and case management from the outset. It was acknowledged, as the Lady Dorrian Review itself did, that powers for remit to and from the New Court would also be needed for circumstances where a case had not been indicted directly to it.

Remit/transfer of cases between existing courts and the New Court

The Group, while initially struggling to envisage examples of when a case might require to be remitted out of the New Court agreed it was prudent to make provision for such eventualities. In doing so the Group recognised that the Lady Dorrian Review had not directly considered a remit from the New Court to the sheriff court. While it accepted that the possibility of such a remit being required was extremely small/rare, it concluded that it was nonetheless prudent for provision to be made for it. It accordingly gave consideration to the circumstances in which a remit could occur and what the legal tests for remit to be applied by the High Court should be.

As to the very rare circumstances a remit from the specialist court to the High Court might cover, it was suggested by a member that circumstances might arise where the sexual offence charges were removed from the indictment e.g. where a complainer had died or is no longer engaged since indictment and therefore the charges for consideration were no longer sexual ones. Another potential criteria for remit out was if it was envisaged that an OLR would be considered and/or to be imposed. That was presented on the basis that as per the Lady Dorrian Review recommendation the New Court was not to have the power to make an OLR. The Group (discussed further later on) now recommends that the New Court should have the ability to make such an order with an unlimited custodial sentencing power (discussed further below). Given all of the above-mentioned it was unclear to the Group as to why or in what additional circumstances a case could not be heard in the New Court, as it should be seen as being capable of dealing with the most serious sexual offence cases including those involving significant complexity, with the exception of murder. No other limited circumstances could be identified by the Group.

Timing of applications for remit

The unanimous view of the Group was that applications for remit should be made, and determinations should occur at the earliest possible opportunity, with a preference for this occurring no later than at the PH stage. This was to avoid unnecessary delay and ensure the efficient disposal of business; key underlying principles of the Lady Dorrian Review overall. The onus would be on the parties to identify the need for, and make the application as a matter of priority. The Group acknowledged that there might be exceptional circumstances in which an application may occur after the PH, and a decision as to whether to consider such an application and its determination, particularly that relative to remit out of the New Court, would be a matter for judicial discretion of the court/presiding judge as required.

Who can make applications and the test to be applied

Given the Lady Dorrian Review's reference to the statutory tests for remit that applied within the civil court sphere,^[2] the Group gave consideration to its terms, how in practical terms the provisions might assist in its determination on the subject, in particular; and the experience and knowledge of its members. It was ultimately agreed by all that the aforementioned tests should be adopted and adapted and the High Court should have a final say on a 'cause shown' basis as to whether a remit to it should be ordered. The New Court would have the final say in respect of cases remitted to it. There was precedent for and awareness of the test across the justice sector, and introducing an alternative test had the potential to add further complexity or uncertainty. No higher or alternative test for remit out of the New Court, as suggested by some members to address concerns that parties might seek to frustrate the aims of the New Court, was felt warranted, particularly given the need to avoid over complexity, and the extremely limited circumstances in which the Group itself envisaged an application could be made in practice.

Akin to the civil provisions, it was agreed by members that a remit could be made by application of one or both the parties, or by the applicable court of its own volition having considered the facts and circumstances of the case before it. The consent of the parties, would not be needed, given concerns by some members that such a requirement could stall or otherwise frustrate a remit. Adopting the procedure used in civil matters, a decision of a single judge was all that was required. The Group acknowledged that further consideration as to e.g. the legal competency to legislate on such matters as it is identified in this section (and throughout this report) would require further consideration by appropriate officials and legal advisers as implementation of the New Court progressed further.

Jurisdiction of the Specialist Sexual Offences Court, transfer of cases and appeals recommendations

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
• That 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.^[3]
• That 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 it.
• That 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.