���˿���

My questions follow on quite well from those that Rona Mackay and Katy Clark asked, so I run the risk of repeating what has been said or of asking the witnesses to repeat themselves.

Like other members round the table, I was involved in the bill that became the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, which has been mentioned. That was before the pandemic, when we had no idea about the existence of Covid. Scotland was very much on a route—rightly or wrongly; I believe that it was right—to ensure that vulnerable witnesses did not need to go into a court set-up, given the trauma that they could experience. The pandemic then came. As Katy Clark articulated, we all felt that there would be more such trials, so the statistics are perhaps a wee bit surprising, given the opportunities that the pandemic allowed for.

All that said, I note that the bill asks us to allow some of the provisions to continue in order to speed up the process of vulnerable witnesses being able to give their evidence out of court. Will the bill as drafted allow you to continue to take steps, which began with the 2019 act and other processes that were already in place, to ensure that vulnerable witnesses in the most difficult of cases do not need to appear in court?

I am hearing good levels of support from both of you, but is the bill required? You have both identified that other processes are in place. Is the bill required to make the transition easier and give you more tools in order to get to the point where we want to be?

Yes—thanks a lot. I have to say that the previous panel, who were from the Crown Office and Procurator Fiscal Service and the courts, indicated quite strong support for the bill. I do not want to step on Katy Clark’s toes here, as I am sure that she will go into this but, when I asked the previous panel about the progress that they had started to make, their answer seemed to be that there had not been as many virtual trials as we had expected throughout the pandemic, but that there was a clear desire to move in that direction. The previous two witnesses felt that the legislation was needed to allow us to do that. I suppose that I am just following up with you the question that I asked them, but I think that you have answered it.

Thank you. It was important to get on the record some practical examples of how the bill might impact.

Have all the cases that you identified and have been working through been subject to the professional override that you talked about in the chamber last week? I will come back to that issue. Was the level of risk lowered from what the LS/CMI said in all of those cases? Do you have that information?

Yes.

That is the point that I hoped to make. I felt that, last week, some of the questions implied that the situation was about the clinical override bringing down the risk to that in the LS/CMI. However, it is as likely, if not more likely, that, if the LS/CMI indicates low risk but professional judgment suggests higher risk, a higher risk is put in. Do you accept that point, cabinet secretary?

Thank you for that, Stuart—

I think that you have called me Fulton Mackay once or twice as well, Rona.

I hope that the witnesses—and the deputy convener—do not mind my going back a wee bit, like Collette Stevenson did. I want to return to an earlier line of questioning by my colleague Rona Mackay to Stuart Murray.

Stuart, I am sure that you will be used to the points that you have made being picked up on—I apologise for doing so, too. I should say that I really like your tenacity in your work for people who are accused—it seems that you would be a really good lawyer to have.

On that note, however, I disagree with your comment that the accused should have the right to see their accuser. I can understand that from a general, theoretical point of view, but we have heard evidence in committee on a number of occasions and in various evidence-gathering sessions indicating that that can be a really traumatic experience for the accuser in some of the most heinous crimes that have been reported. I appreciate that they are only alleged crimes at that stage, and I understand the complexities around that.

However, it has become clear to me that there is also an issue of access to justice. We have talked a wee bit about access to justice for the accused and whether they are not getting a fair hearing or to have a trial in the old-fashioned, pre-Covid way—although that can include virtual elements, too. If a victim—an alleged victim, rather—is so scared or traumatised that he or she cannot give evidence to the best of their ability, that is another aspect to consider. I get that there is a balance to be struck on that. I wanted to come back to you on that point.

Do you not see any merit at all in continuing virtual hearings, for example for domestic abuse offences, sexual offences or serious assault offences? If you do not, do you see any way to bring in some sort of hybrid format? That might be like the one that we use in the Parliament, for example. Could such a format be brought in to capture—almost—both elements: ensuring that the accused gets a fair hearing and ensuring that the witnesses, who have perhaps experienced really traumatic things, get to give their evidence in the best way possible?

Thanks, convener. Just for the record, it is Fulton MacGregor. I get “Fulton Mackay” all the time.