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

Part 5: judicial appointments - judiciary to preside over the New Court

As recorded^[7] by it, the Lady Dorrian Review was prompted in particular by the growth in volume and complexity of sexual offending cases affecting all sections of the criminal justice system to a degree and particularly the High Court, which would become unsustainable as presently managed. To allow all available resources and available expertise to be used flexibly and to full capacity across the country, acknowledging that the volume of business was already such that serious sexual offence cases were presided over by sheriffs sitting as temporary judges, the Lady Dorrian Review recommended that the New Court should consist of both High Court judges and sheriffs. Appointment to the court was to be made by the Lord Justice General upon satisfaction that the level of experience and specialist training of candidates in question had been attained, irrespective of which branch of the judiciary they came from. Such criteria is yet to be considered or determined and will be a significant and important part in the implementation of the New Court. The Review's view was that the judicial officers sitting in the New Court were to have the same sentencing powers, otherwise there would be the potential for two tiers within the same court to be created which might otherwise lead to potential perceptions that cases, or some at least, were being downgraded.

The Group carefully re-considered this recommendation and potential alternative options, given particular concerns made by some e.g. the Faculty of Advocates following publication of the Lady Dorrian Review Report that the appointment of sheriffs, not just those who currently serve as temporary judges to the Court, could be perceived as a downgrading of justice; and also given its own recommendation to increase the sentencing powers of those judges presiding in the Court from the 10 year limit recommended by the Review to that of an unlimited nature; and expand the jurisdiction of the Court and the impact on resourcing to support that. The Faculty of Advocates remained opposed to the appointment of sheriffs other than those serving as temporary judges to the New Court.

Options to extend the judicial complement

It was acknowledged that the current senator (36) and temporary judge complement (c24) would not be sufficient to meet the expected case load of the single national court model which the Lady Dorrian Review recommended, nor the further extended caseload which this Group now recommended, particularly when such a resource also required to service the civil justice system as a whole. The alternative models to a single national court which the Group also considered (discussed above at 10-17) also posed resourcing or practical difficulties. Options or alternative methods as to how a sufficient complement for the New Court could be supported were considered. One option considered was whether to extend or increase the number of temporary judges, which some members were initially in support of, while a number of others were opposed to. Consideration was also given to increasing the number of High Court judges (senators). Both were ultimately rejected as being impractical for a number of reasons.

Option 1: increasing the senator complement

As to increasing the number of senators, irrespective of the financial costs and the statutory limit^[8] on the number of judges who could sit in the Court of Session/High Court (currently 36 are available to serve all civil and supreme court work and including first instance and appeals), the latter of which could be changed by legislation, the greater challenge from the Group's perspective was the ability to actually recruit sufficient experience numbers if such a step was to be taken. Steps were being taken by the Judicial Appointments Board and senior judiciary to encourage practitioners to consider a judicial career. There was concerns that the pool from which senators (like all judicial posts) were drawn from was an increasingly small pool. Appointment from the pool, if achievable, would inevitably leave vacancies within the prosecution and defence profession to be filled, with a potential knock on impact on the ability to support the New Court and the criminal and civil justice system as a whole. This option's ability to facilitate the New Court also lacked certainty. It was dependent upon a number of factors outwith the justice sectors control. E.g. people with the relevant skills and attributes might not apply, or if they did they might not be successful in the recruitment process. Sufficient lead in time would also have to be considered. Some members also acknowledged that newly appointed judges who have come from the profession might not automatically have the full skill set or experience that the Review envisaged or as set down in the LJG's criteria. The reality being that skills obtained as a practitioner, while essential would need to be supplemented by experience as a judge. New senators might not automatically equate to experienced judges to complement the New Court.

Option 2: increasing temporary judge complement

The Group appreciated that to increase the number of temporary judges was not straightforward or an immediate solution either. The potential increase in temporary judges had the advantage over option 1 as candidates would already have gained judicial experience over and above that as a practitioner. Legislation stipulated that temporary judges required to be appointed by Scottish Ministers^[9], thus potential sheriff candidates whose expertise to the New Court would be invaluable (and who otherwise would meet the criteria for appointment to the New Court) would require to go through a separate additional process before potentially being selected for the New Court. Posing an additional barrier. As with option 1, whether candidates with appropriate expertise would be appointed as temporary judges was also not a certainty. Furthermore, the appointment of additional temporary judges, as the Group understood it, would not equate to a fulltime judicial resource for the New Court as their sheriff court commitments would require to take precedence.

Overall the model proposed by the Lady Dorrian Review had one particular advantage as it increased automatically the potential pool from which the New Court could be resourced, without the arguably administrative burden and uncertainty which came from seeking to increase the number of judicial posts outright. Currently there were 116 fulltime sheriffs, senators and c24 temporary judges from which candidates with the essential expertise, and training could be drawn.

Concerns regarding perceived downgrading

It was acknowledged throughout Group discussions that irrespective of their veracity concerns regarding downgrading had to be addressed. For many members it was clear that the proposal that sheriffs may sit in other, perceived more superior or hierarchical courts with greater powers was not without precedent, even before the Review's recommendations. Sheriffs already sit as temporary judges in the High Court. They sit in the Sheriff Appeal Court as Appeal Sheriffs in both civil appeals and summary criminal conviction and sentence appeals.^[10] Many of the Group felt strongly that the argument could not be sustained when all the features and the additional proposals the Group was making were taken, individually or collectively in to consideration, particularly the need for increased and additional training on the use of unlimited sentencing powers for those office holders to be appointed to the New Court. The focus of attention should be the expertise, experience and training of those judges who preside over the New Court not the title which they held currently or when not sitting in the New Court. It was acknowledged that the true challenge was addressing what could be described as perceptions, misguided or otherwise associated with the judicial title held by the judge in question, rather than their experience and expertise suited to preside over these important and life changing cases. Experience did not necessarily equate to nor was commensurate with judicial title alone. The recommendation had not envisaged that every sheriff, temporary judge or High Court judge would preside over the New Court. There were many sheriffs with extensive expertise which would be lost if they did not have the potential to be appointed to the New Court merely due to status, provided they met all other appointment criteria.

The Group also acknowledged that there was also scope to provide greater public education on the roles of judges and specifically those in the New Court in the future to address what might be misunderstandings or perceptions. Greater knowledge and understanding of the criteria required for candidates and the process involved in becoming a judge to the New Court (discussed further below) would also assist.

Alternative approaches: separation of cases

Some members of the Group, RCS, suggested that to avoid perceived concerns about downgrading the most serious cases before the New Court- rape and attempted rape- should continue to be presided over by High Court judges and temporary judges only. Doing this, it was submitted, would provide a greater sense of parity between the rights of audience for the New Court as recommended by this Group (discussed further below). The underlying rationale behind it was that like solicitors no sheriffs would ordinarily preside over rape cases or cases of rape and attempted rape when they appeared on the same indictment, and that was a concept that would be retained. However unlike solicitors there was scope for sheriffs to preside over such cases without a change or requirement to take additional legal qualifications if appointed as a temporary judge. The greater concern for the Group about such an approach was that it created a two tier system leading to further concerns about and potentially providing further ammunition to the downgrading of cases argument. A two tiered system was something which the Lady Dorrian Review and this Group were at pains to avoid. There were also practical challenges to such an approach which could not be easily set aside. These included the programming of cases before the New Court; and resourcing of the Court more generally if the current complement was to continue to preside over rape and attempted cases, which were understood to be a significant proportion of the current High Court caseload.

Creation of new statutory judicial office holder

The Group did give some initial consideration to whether there was a need to create an entirely new type of judge in law by statute, separate from current posts to mark the separation and individuality of the New Court, and address concerns. Basically a statutory sexual offences judge in addition to the post of senator, temporary judge or sheriff. From its perspective there would be a number of legal and practical challenges in taking such an approach including the need for statutory criteria, a legislative appointment process and changes to the work of the Judicial Appointments Board for Scotland amongst others. Significant consideration would have to be given to such matters. The general issues associated with recruiting as identified in options 1 and 2 above would also apply. Alternative options using current practice and process in so far as possible were therefore favoured by some of the Group.

Alternative judicial title when sitting in the New Court

It was suggested within the Group that a possible solution to the perceived downgrading of justice associated with judicial title that had been mentioned in discussions was the creation of a new judicial title for use by all who sat in the New Court irrespective of their judicial status when sitting on non-sexual offence cases. This was separate from the creation of an entirely different judicial post by legislation. Careful consideration would require to be given to the title and the legal challenges and ability to do so. Some members of the Group understood that there was precedent, largely in civil law and most notably employment law for use of the same terminology to describe a variety of legally qualified and non- legal parties sitting in the same role as decision maker. This was notably seen in the employment tribunal field where it was understood that employment judges regularly consisted of senators and solicitors without a distinction of their title being drawn. Reference was also made to current provisions whereby sheriffs became appeal sheriffs^[11] in both civil and summary criminal appeals, and senators were known as 'commercial' or 'intellectual property judges; when sitting in commercial or intellectual property courts, which evidenced to some extent the concept in practice.

Importance of the expertise, skills and training

The Group acknowledged that the Recommendation made by the Lady Dorrian Review was to make sure that serious sexual offence cases were given the proper attention their particular nature demands with the creation of specialist professionals to preside and appear before the New Court. The fact that the most serious cases were already presided over by High Court judges and temporary judges had not prevented the Review or its recommendations from being necessary. The reported appeal cases referenced in the Review concerned decisions and duties of presiding judges, and sheriffs alike. In the Group's view this reinforced the need for the focus and appointment to the Court to be on appropriate experience rather than a focus solely on current judicial title.

Ultimately of key importance to the Group therefore was to ensure those with the right experience, training and expertise in what were technical and sensitive cases were appointed to the New Court irrespective of their current title and the perceptions associated with their judicial title. It was accepted that the best candidates could and should be drawn from the High Court, sheriff and temporary judge complement. While criteria for appointment was to be a matter for the Lord Justice General and those who supported him in that process, the Group envisaged this would stipulate clear criteria and evidence of suitability for appointment which candidates would require to evidence before consideration and appointment. Appointment would require to be supported by essential and ongoing training on the requirements of the New Court, trauma-informed practice and sentencing in particular.

The Group acknowledged that while a matter for others, the issue of judicial salaries and other factors associated with the day to day running of the New Court would likely require further exploration and discussion once there was greater finality on the model to be introduced.

Appointments to the New Court

During its considerations the Group identified that neither the original Recommendation nor the Review report had made specific comment or provision on the right of removal from such a post. It was stressed that this was aside from and distinct from the specific primary legislative provisions in place for the removal of judges from their judicial office.^[12] All Members agreed that while by inference a right of appointment included a right of removal, for the avoidance of doubt the LJG should, in its view, have the right to both appoint and remove a member from the New Court, distinct from the removal from judicial office.

Presiding judge and governance of the court

The Group gave initial consideration to whether there was merit in recommending the appointment of a principal judicial officer who would be responsible for and oversee the day to day running of the new Court, with the individual perhaps reporting to the Lord President as applicable. Doing so would align the New Specialist Court with other courts specifically created by statute e.g. of the Sheriff Appeal Court.^[13] In considering this question the Group was reminded that the Lord President, as head of the Judiciary, had general overriding responsibility and associated powers to secure the efficient disposal of business.^[14] Supported and assisted by the Lord Justice Clerk, and Sheriffs Principal, as applicable. In the High Court in particular, the day to day management was further assisted by e.g. an appointed administrative judge. Some thus felt that the statutory appointment of a specific principal judicial officer for the New Court to oversee it might add unnecessary bureaucracy given the role of the LP/LJC, their undeniable interest in the New Court, and current practice. It was, however, acknowledged by members of the Group, that while perhaps not possible for this Group to determine at present, due consideration would need to be given to the governance structure of the New Court in the future. Given the volume of business before and the number of judicial officers presiding over the New Court had the potential to significantly exceed that of the High Court; combined with an expectation that it promulgate, develop and exemplify best practice and procedure in all sexual offence cases, while also supporting the efficient disposal of business; it would need some support and potential governance to perform and flourish in that role. The form and substance, if any, of the model would require further legal, constitutional, policy and practical consideration during the further development of the New Court.

Judicial appointments recommendations:

The Working Group recommends that:

• 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 determined 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