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The majority of the coronavirus time limits have been expired, and we are now left with the two solemn time limits. The SSI that is in front of us today deals with the remaining two of the original seven time limits, so that journey has already commenced. I am acutely conscious that, every time that I have come to the committee to seek an extension to the coronavirus regulations, the area on which the committee has pressed me most is the remaining time limits. Of course, we have all known that the coronavirus legislation would come to an end.

The progress that has been made with the court backlog in the number of scheduled cases has reached a milestone in that fewer than 20,000 such cases remain. The committee will remember that, at its peak, the number of outstanding scheduled cases was in excess of 40,000, so the court backlog has been reduced by more than 50 per cent. Progress has been made and stakeholders—both the SCTS and the Crown Office, with which we have had extensive engagement—are content that the system will manage with that approach.

Thank you, convener, and good morning to colleagues. I will say just a few words.

The Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Saving Provisions) Regulations 2025 are intended to ensure an orderly transition back to the pre-pandemic criminal procedure time limits that apply in solemn criminal cases. The regulations implement the recommendation, which this committee made in its stage 1 report on the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, to put in place saving provisions for the criminal procedure time limit extension provisions that will expire on 30 November this year.

Two time limit extension provisions remain in effect. The first is the time within which a solemn trial must commence when an accused has been remanded in custody, which was extended from 140 days to 320 days. The second is the time within which a trial must commence after an accused first appears on petition—that is, the bail time limit—which was extended from 12 months to 18 months.

The order preserves the extended time limits for any case in which an accused first appeared on petition, or was first fully committed, before the extended time limits expire on 30 November. It will avoid a situation in which the Crown Office and Procurator Fiscal Service is required either to indict a large number of cases or to seek to extend, case by case, the time limits for cases that would otherwise all become time barred on 30 November this year. The consequence of that would be the diversion of resources away from managing other court business. The order will also allow the reversion to the pre-pandemic time limits to be managed over a period of months.

The approach has been agreed with the Crown Office and the Scottish Courts and Tribunals Service, and it is in line with the approach that was taken when the extended time limits for certain summary-only offences were expired on 30 November last year.

The short answer is yes. If I recall correctly, we submitted a written note to the committee on the timescales last year. I do not have that at hand—either I submitted a note or I have answered a parliamentary question, possibly from Liam McArthur—but there is information that I can forward to members. There is a timetable.

I have nothing further to add.

Amendment 219 agreed to.

Amendments 220 to 227 moved—[Angela Constance]—and agreed to.

Section 64, as amended, agreed to.

After section 64

Yes.

As I said, there is the role of the Lord Justice General in allocating individuals in specific circumstances.

My final word is that we have an existing process to appoint temporary judges, and it is tried and tested. Having listened to the full range of views, we propose to replicate that process for the appointment of others, whether they are sheriffs principal or sheriffs, to the sexual offences court.

I have one more point. Rape is serious not because it is prosecuted in the High Court but because it is one of the worst crimes that we know of. It usually—not always, but usually—involves the most appalling assault on a woman’s agency, which is why it will continue to be seen as one of the most serious crimes in our canon. I will leave it there, convener.

Amendment 184 agreed to.

Section 40—Appointment of Judges of the Sexual Offences Court

Amendments 185 to 196 moved—[Angela Constance]—and agreed to.

Amendment 30 not moved.

Section 40, as amended, agreed to.

After section 40

Amendment 197 moved—[Angela Constance]—and agreed to.

Section 41—President and Vice President of the Sexual Offences Court

Amendment 31 not moved.

Section 41 agreed to.

Section 42—President and Vice President: incapacity and suspension

Amendment 32 not moved.

Section 42 agreed to.

Section 43—President’s responsibility for efficient disposal of business

I do not think that anybody is disputing the importance of independent advice or advocacy. I am sure that people will continue to discuss and debate this but, with the best will in the world, legislation is not always the best place to address funding and operational matters.

I draw my remarks to a close there.

I will absolutely not take any interventions, Mr Findlay, because I really do not want to waste any more of your time, to which you have objected so profoundly—

This is a sensitive subject, so I will lay out in detail my position on Liam Kerr’s amendments. Although they are well intentioned, I cannot support them as they raise significant policy issues.

As members have heard from Mr Kerr, amendment 129 would fundamentally alter the anonymity reforms in the bill by extending the legal right to anonymity so that it would continue to apply after the death of a victim. Amendment 131 would create an application process to the sheriff for dispensing with a deceased victim’s right to anonymity.

As members will be aware, the Scottish Government carried out a consultation on approaches to reduce the trauma that media reporting of child homicide cases can cause. After careful consideration, I concluded that legislation would not be an effective approach to dealing with the complexities of media reporting on those cases. The consultation responses raised issues that made it clear that there would be serious difficulties with developing legislation that could strike an appropriate balance between privacy rights and freedom of expression, and that there would be difficulties with the practical enforcement of such legislation, particularly as media and social media cross borders.

Instead, I announced that the Scottish Government will work on non-legislative measures that could improve the experiences of families who are affected by reporting on child homicide cases. Sensitive reporting in respect of victims of sexual offences is a critical aspect of responsible journalism, and dialogue with the industry about how we move forward has already begun.

The policy of anonymity in the bill is focused on the individual victim, who, in almost all cases, will be alive after the committal of the offence that has given rise to their anonymity protections. That is different from child homicide anonymity, when the suggestion of anonymity is, of course, for the benefit of surviving family members.

When developing the bill, we looked carefully at the experience of other countries that have sought to provide anonymity for victims beyond their death. It is significant that jurisdictions that have extended the right to anonymity beyond a victim’s natural life, which include Ireland and individual states in Australia, have subsequently amended their legislation due to the unintended and damaging consequences for bereaved family members. One of the reasons why laws were reversed was that there was a risk of criminalising or silencing bereaved friends and family who, with entirely understandable intentions, wished to comment on the victim’s death, their memories of them and their legacy. Other reasons included the curtailment of freedom of expression and the difficulty of enforcement in relation to social media.

Members will recall Dr Tickell’s evidence at stage 1. Reflecting on the lessons that have been learned from international practice and experience, he said:

“well-intentioned legislative reform has caused people significant problems.” —[Official Report, Criminal Justice Committee, 31 January 2025; c 49.]

More practically, in relation to the operation of the right to anonymity, United Kingdom Government legislation will be needed to ensure that the restrictions apply to publications elsewhere in the UK if they are accessible in Scotland. In England and Wales, the right to anonymity automatically expires on the death of the victim.

Mr Kerr’s amendment 131 would provide a mechanism for the court to consider applications to relax the right to anonymity without being clear about how the court would decide. It proposes that the court use a test of whether there is “no good reason” not to grant an order to disapply the right to anonymity. It is hard to see how the court could make that judgment if individual bereaved family members had different views on anonymity. That was one of the key concerns that was raised in the consultation on deceased child anonymity.

Liam Kerr’s amendment 130 would reduce the scope of the anonymity protections for victims. It would mean that victims of the offences of human trafficking and modern slavery would qualify for anonymity only when there had been a sexual element to the offending behaviour. Under the bill, victims of each of the offences of criminal exploitation, as well as some other offences of limited scope, would gain an automatic right to anonymity, regardless of whether there was a sexual component to the behaviour. Those offences are included because those victims suffer from the same privacy and dignity concerns as victims of sexual offences. The position in England, Wales and Northern Ireland is the same, as victims of human trafficking have a right to anonymity with no requirement for there to have been a sexual element to the offences.

Although I cannot support amendments 132 and 133 in their current form, I offer to work with Mr Kerr to consider whether new amendments relating to adult victims could be developed for stage 3. A fundamental principle of the anonymity framework is that a victim controls their own anonymity—they have full and complete agency. Under the bill, an adult victim can waive their right to anonymity by publishing their own information or publishing through a third party, without the involvement of a court.

Waiver through a third party is established through a defence to the new criminal offence of breaching anonymity. The adult waiver defence provides that a person who publishes identifying information about an adult victim with the written consent of the victim does not commit an offence as long as the victim is at least 18 years old and their consent was not withdrawn in writing before publication. That is the same as the approach in England, Wales and Northern Ireland.

I can see that Mr Kerr’s amendments 132 and 133 are well intentioned in seeking to add a new method by which consent could be provided. However, I have concerns that, as drafted, they have the potential to weaken the procedural safeguards that are being put in place for victims and third-party publishers. I say that because there is no specification as to what some “other recorded” form of consent means or the acceptable parameters of that alternative method. That could create the risk of a publisher going public with the identity of a victim of a sexual offence under the mistaken belief that they had permission to do so, when the victim did not provide unambiguous written consent—for example, two people might have different understandings of a verbal conversation that has been recorded.

My concern is heightened, given that we are considering the operation of a new criminal offence, under which any ambiguity or uncertainty could have significant implications for individual publishers. We all want to ensure that there are sufficient and accessible ways in which an adult victim can make clear to a publisher their consent. However, I am not convinced that the bill, as it stands, is insufficient in taking the simple approach of written consent, which may be a short email or letter that confirms consent for publication.

For those reasons, I ask the committee to oppose Liam Kerr’s amendments in this group, but I commit to discussing amendments 132 and 133 with him ahead of stage 3.

I will now speak to my amendments in the group. Amendment 158 is a relatively minor amendment that adds the offences of forced marriage and forced civil partnership to the list of offences that will gain an automatic right to anonymity. The policy rationale for that is the same as applies to the current extension of anonymity protections beyond sexual offences to certain other offences that share similar underlying concerns regarding preserving a victim’s privacy. It is worth noting that the equivalent offence in England and Wales of forced marriage and forced civil partnership also has victim anonymity protections in place.

Amendments 159, 162 and 167 are minor clarifying amendments on the scope of the core anonymity protections in the bill and the operation of the new offence of breaching anonymity.

Amendment 168 provides for the right to anonymity for child victims of sexual offences and the other listed offences in the bill to take precedence over the existing more general provisions in section 47 of the Criminal Procedure (Scotland) Act 1995, which contain reporting restrictions relating to any offence of which a child is a victim. Amendment 168 will ensure that child victims of sexual offences and the other listed offences that qualify for an automatic right to anonymity benefit from the bespoke protections in the bill. That will ensure, for example, that child victims of sexual offences gain automatic lifelong anonymity, rather than protections ending when they attain adulthood or even earlier under the general provisions in the 1995 act.

Amendment 160 is a technical clarifying amendment to address a recommendation by the committee in its stage 1 report that there should be certainty that the protections that are available to victims will not be impacted by an acquittal verdict in a criminal case. It is not the policy intention that a victim would cease to have the right to anonymity if criminal proceedings were raised that resulted in an acquittal verdict. Amendment 160 puts that beyond doubt.

Amendments 164 and 165 are minor clarifying amendments that reflect points in the committee’s stage 1 report on the operation of the public domain defence. They make minor changes to the wording of the public domain defence to make it clear that it will not protect people who share publicly a child victim’s identifying information, even when a child has self-published their own story. That reflects the policy that extra safeguards be in place for children before a third party can lawfully publish identifying information about a child victim of a sexual or other relevant offence through the requirement of judicial oversight.

Finally, amendments 161, 163 and 166 are minor technical amendments to adjust the wording of the definition of “child” and references to age within the anonymity framework, so that there is internal consistency in the bill.

I understand, appreciate and endorse the comments that Ms McNeill makes with reference to the Lord Advocate—she is an absolute champion of these matters as well as others. From a Government perspective, ultimately, I must emphasise that the amendment is likely to fall outside the legislative competence of the Scottish Parliament, as it would interfere with the Lord Advocate’s determination of prosecution policy, and that is where I am stuck.

Although I very much understand Pauline McNeill’s intention, amendment 77 seeks to make provision for a process that, I think, requires more nuance and flexibility than legislation permits, and it is for that reason that I urge members to reject it.

I also do not support Katy Clark’s amendment 60 and Maggie Chapman’s amendments 265 and 266, which are concerned with independent legal representation for complainers at all stages of criminal proceedings. I very much understand the desire to improve how sexual offence complainers are supported throughout criminal proceedings. We all want to see improvements. However, the independent legal representation provision in the bill as it stands is very firmly focused on what is a deeply intrusive aspect of sexual offence cases in terms of sexual history evidence. The change that the bill will bring is already significant in breaking new ground for complainers, with the introduction of a third party into proceedings.

Providing for independent legal representation throughout a sexual offence case presents complex challenges and could create many unintended consequences that go well beyond the impact of independent legal representation for section 275 applications. At stage 1, Lady Dorrian cautioned that anything beyond independent legal representation at the section 275 application stage would derail trials and cause delays. Lord Matthews also explained that a third party would not be able to cross-examine witnesses or the accused, stressing the role of the Crown as public prosecutor.

I note the committee’s conclusion at stage 1 that the immediate focus should be on properly resourcing ILR in respect of section 275 applications.