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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 8 August 2025
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Displaying 1119 contributions

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Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 12 March 2025

Angela Constance

Yes.

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 12 March 2025

Angela Constance

That is okay.

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 12 March 2025

Angela Constance

Will you take an intervention, Mr Findlay?

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 12 March 2025

Angela Constance

In the interests of transparency, I note that amendments in this area are fraught with difficulties. I will not reiterate what I outlined earlier, but work is on-going with the Crown Office to look at how more victims—not all, but more of them—are informed.

I am relaxed about whether there is a further discussion for me to have with the Crown Office, one that I facilitate between the Crown Office and members, or something that we do collectively. I am always prepared to engage in more discussions. I am just being upfront and transparent: I think that amendments to legislation in this area are particularly tricky and difficult, and I am not in the terrain of making false promises.

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 February 2025

Angela Constance

I understand that argument. All that I was trying to portray is that, in the context of a sexual offences court, where, on the same indictment, there is a murder and sexual offences, there would still be the opportunity for that to go to the High Court or the sexual offences court.

Of course, the sexual offences court has unlimited sentencing power, so it can sentence people for up to life and make an order for lifelong restriction and all of that. I understand the point that is being made. What I am wrestling with is the experience of victims and complainers. Right now, we know that the system overall is not doing enough to support people to give their best evidence. I contend that that relates to issues of the fairness of justice. The whole raison d’être of the sexual offences court is to improve the efficiency of the process and procedures to deliver quicker decision making and improved judicial case management so that cases can be dealt with more quickly.

The evidence from elsewhere in the world shows that specialism assists with that. However, embedding specialism will improve the experience of everybody in the court. If we are concerned about the experience of victims and complainers in the court process, there is an issue with having a sexual offences court that has embedded specialism and then also having a cohort of victims and complainers who have to go to the High Court. I think that the issue involves quite a fine judgment, but that is why I have not brought forward an amendment at stage 2. However, I know that it is a live issue.

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 February 2025

Angela Constance

There are a number of layers to my concern about a supermajority. When we consulted on the bill—I appreciate that that was some time ago—there was low support for near unanimity in a reformed system. It was something like 13 per cent. It also feels disproportionate to go from a system that requires a little bit more than 50 per cent to convict to one that, in the context of a majority of 13 out of 15, would require 87 per cent.

The standard of proof is the standard of proof—there are no changes to that. It is worth bearing in mind that juries in Scotland are not told to strive for unanimity. The process is considered to involve an aggregate of individual votes as opposed to being a collective endeavour.

Another difference between Scotland and other systems with two verdicts is that Scotland does not have hung juries or retrials. Such options, should we proceed with reform to a two-verdict system, were not popular in our consultations. In short—forgive me, convener—in relation to near unanimity, there are still some differences in the Scottish system. Corroboration still exists, and there are no retrials in our system.

Criminal Justice Committee [Draft]

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 February 2025

Angela Constance

Good morning, and thank you, convener.

I wrote to the committee last autumn to update members on my approach to stage 2 of the bill. I remind members of the significance of the proposed legislation. You have all heard compelling evidence that the justice system does not provide a satisfactory experience for many victims and witnesses; for many, it can be actively harmful, particularly for those who have experienced sexual crimes.

Incremental changes over the years have delivered improvements, and I am grateful to all who have worked to drive such change. However, as the committee has heard from the Lord Advocate and Lady Dorrian, the former Lord Justice Clerk, the dial has not shifted enough and the scale of reform that is needed cannot be delivered through existing structures and processes.

The bill sets out a package of reforms that have the potential, if agreed to, to transform the operation of the justice system to the benefit of victims, particularly women, while protecting the rights of the accused. I am heartened that there is significant support for much of the bill. I am, of course, disappointed—although I accept—that that does not extend to the full package of measures that are included in the bill as introduced.

As I hope that my letter makes clear, I want to work across the chamber and reform by consensus. I have set out key areas in which the bill will be amended in response to the committee’s stage 1 report. The most significant of those is the pilot of single-judge rape trials, which I have confirmed that I will no longer pursue. Although that is regrettable, I have to recognise that there is insufficient cross-party support for that.

However, I do not accept that the long-standing issue of access to justice for rape victims has somehow disappeared. The low conviction rates for that type of crime are a stark symptom of a system that does not operate effectively for some of the most serious and gendered crimes. Therefore, I will lodge amendments at stage 2 to remove the barriers to conducting research on jury deliberations, to help us to better understand the impact of rape myths on decision making.

I will also lodge a significant package of amendments to address matters relating to the creation of a sexual offences court. The amendments have been developed in collaboration with justice stakeholders and include changes to address concerns about the legal representation that accused prosecuted are entitled to in court. Amendments will be lodged on appointment and removal of judges to the court and on enhancing choice for complainers in how they give their evidence. I am confident that the amendments will address concerns about the model of the court that were raised by the committee at stage 1.

The former Lord Justice Clerk, the Lord Advocate, the senators of the College of Justice and the Scottish Courts and Tribunals Service, as well as victims, have told the committee that a stand-alone court is necessary to improve the experience of sexual offence complainers. They have made it clear that tinkering around the edges will simply be insufficient. Therefore, I urge committee members to grasp the nettle and embrace wholesale reform to the management of sexual offence cases by supporting the creation of a stand-alone court.

I am pleased that there is cross-party support for the removal of the archaic not proven verdict. You have heard much evidence on the need for consequential changes to the jury system: some from people arguing that we should retain a simple majority, some from those favouring a qualified majority and some from people who would like to move to a supermajority or unanimity. The evidence that we have supports the view that moving to two verdicts could lead to an increase in convictions for all crimes. My assessment is that we cannot abolish not proven in isolation without impacting the balance of fairness in our system. Stand-alone reform would risk miscarriages of justice; equally, setting too high a threshold for conviction would mean that we fail to hold perpetrators to account. To maintain the integrity of our criminal justice system and confidence in that system, the most prudent approach is a model with two verdicts, 15 jurors and a two-thirds majority requirement for a conviction.

Thank you, convener. I look forward to working with the committee over the coming several weeks as we navigate our way through to stage 2.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 February 2025

Angela Constance

To be clear, the Parliament also agreed that it could consider existing proposals—including for the victims and witnesses commissioner and the member’s bill for another commissioner—while the review takes place. There was an acknowledgement that lead committees and the Parliament still have a role to consider the merits of, in this case, the victims and witnesses commissioner in its own right. I appreciate that the Finance and Public Administration Committee has been looking at the roles and the proliferation of commissioners over many years, as is its right. It is, of course, imperative that we scrutinise every penny and every pound.

11:30  

The Government’s position is that we remain committed to the victims and witnesses commissioner. Notwithstanding the difference of views that Ms Dowey has articulated, there is a clear appetite for it among victims and victims organisations. I believe that having that independent voice and independent champion is imperative. It will fill a gap in the mechanisms for accountability, which we are seeking to strengthen. The commissioner will have a key role, crucially, in monitoring compliance with the victims code and the standards of service, including the requirements to demonstrate trauma-informed practice; I know that Ms Dowey has been a big champion of that. The commissioner’s role will be to raise awareness of the rights of victims and witnesses and also to monitor those rights and how they have been met.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 February 2025

Angela Constance

I will answer Ms Mackay’s question in two parts. With regard to the Scottish Government’s planned amendments, we will lodge an amendment on the process for appointing and removing judges of the sexual offences court. The committee will be alive to the debate that was held on that. Originally, we proposed in the bill that removal, for example, would be for the Lord Justice General to do. However, after reflection on representations from stakeholders and the committee, we will instead link that process with the current process around fitness for judicial office tribunals.

Again, that was to reduce the number of issues on which there were debate and discourse, so that we could focus on the bill’s primary purpose, which is to establish a sexual offences court that will implement fundamental change to the effectiveness and efficiency of the system and the experience that people have as complainers in sexual offences cases.

11:00  

I know that there has been engagement with colleagues on the issue of legal representation. We will lodge amendments on that because, as we have indicated, we want to replicate rights of audience and ensure that the accused are not disadvantaged in terms of their access to counsel.

There will also be amendments on pre-recorded evidence, which, again, will pick up on the committee’s representations. We are not moving away from the presumption in favour of pre-recorded evidence, but I note the evidence that was given on the issue of personal agency. Some complainers and victims might well not want to give pre-recorded evidence, but will want to appear in court instead. There is also an amendment that seeks to extend to the sexual offences court the existing exception to the rule that applies in the High Court.

Ms Mackay is right: I am not, at this stage, seeking to lodge an amendment to include murder in the jurisdiction of the sexual offences court. I want to be clear about that. The bill proposes that the court would be able to hear a murder case only where it appeared on the same indictment as a qualifying sexual offence. Of course, it will remain the case that the Crown will make decisions about which court a case should go to—there will be no alteration to that—but I was very mindful of the Lord Advocate’s evidence with regard to the Crown’s prosecution of cases involving serious sexual offending against multiple victims, where the accused was alleged to have killed one of them. In my mind, there is an argument that, for all those potential witnesses, there would be benefit in enabling the case to go to the sexual offences court.

We have not yet lodged an amendment on that, but we will continue to reflect on and consider matters. I know that it is a matter to which the committee has paid close attention.

Criminal Justice Committee

Victims, Witnesses, and Justice Reform (Scotland) Bill: Stage 2

Meeting date: 26 February 2025

Angela Constance

You are not confusing them. It is fine.

On the issues that Ms Mackay raises in relation to part 3, as I said in my letter in October, I was planning to lodge an amendment

“to extend who is deemed vulnerable”,

which would have covered

“persons who provide evidence from a reputable source”,

such as a health practitioner or someone from a domestic abuse or sexual assault support service.

However, I am cognisant of the major concerns that Scottish Women’s Aid has raised in and around the planned amendment. We will no longer lodge that amendment, and I will continue to have discussions with Scottish Women’s Aid. In fact, I think that I will meet Dr Scott at the beginning of next month.

As our plans stand, we intend to lodge the other amendment that you mentioned, Ms Mackay, which would mean that

“persons applying for a civil protection order against domestic abuse or for damages following a sexual assault”

are deemed vulnerable.

I am conscious of the correspondence that Scottish Women’s Aid submitted to the committee and which I saw this morning at 9.30. The organisation is concerned that the amendment does not go far enough. As best as we can, we will work through concerns at stages 2 and 3.

I am always open to turning up the dial, but I recognise that, if we are getting into the area of entirely removing the court’s discretion, that is problematic. However, there is a willingness on my part always to see where we can do more.