Part 6: the required rights of audience to appear before the New Court
The Group noted that consistent with the serious nature of the cases involved, many of which are currently prosecuted in the High Court, the Lady Dorrian Review had recommended that rights of audience for the New Court should reflect those applicable in the High Court, as the training received by such officers was not readily accessible to the legal profession at large. Diffuse efforts to train judges and practitioners had not prevented situations such as those which arose in both the High Court and sheriff and jury court in the cases of McDonald, Donegan, Dreghorn and others. In addition to that, advocates or solicitor advocates appearing before the New Court would be required to receive specialist trauma-informed training in dealing with vulnerable witnesses including enhanced training on questioning and cross examination techniques in courses accredited by the Lord Justice General (LJG) before they would be permitted to appear.
A majority of the Group continued to support the Recommendation itself and felt that steps could be taken to support implementation of it. Some members felt strongly that solicitors should be able to appear before the New Court if they wished to do so and were appropriately trained, the training and scope of expertise required could be considered further. It was acknowledged, that an essential part of the Group's terms of reference and remit was to consider such issues and any challenges to practical delivery and, as applicable, make suggestions on how they might be addressed. In this regard some members identified concerns regarding the capacity of the defence profession generally, and the current Faculty of Advocates, 74 Advocate Depute and solicitor advocate complement in Scotland to support the New Court, particularly if its proposed jurisdiction resulted in the effective transfer to it of some solemn offences which would otherwise have been indicted to the sheriff court. Such cases would have been conducted in all likelihood by solicitors without extended rights of audience. Another concern raised was the potential reduction in the opportunities for solicitors who might otherwise have conducted certain sexual offences before a solemn sheriff and jury court to maintain and develop their skills. Further consideration was therefore given to such concerns given its significant importance to the potential operation of the New Court.
It was importantly acknowledged that the New Court itself was not seeking to create additional courts over and above those already in the High Court complement as extended by the current recovery programme. Rather it would be an effective transfer of those sexual offences cases which fell within the proposed jurisdiction of the New Court which would otherwise be heard in the High Court or the sheriff and jury court going to the New Court. The remaining cases outwith the New Court's jurisdiction would continue to be heard and indicted to their respective court forums.
The exact impact the change of jurisdiction on case numbers being effectively transferred from the sheriff court and the associated requirement for extended rights of audience if the Lady Dorrian Review recommendation remained, was not readily ascertainable due to a number of variables and the lack of data currently collated and published by Justice Partners. Consideration by the Group was therefore limited to what data was available, with relevant caveats, the hope being further information would become available and would inevitably be considered further at that point. Unpublished data shared by COPFS within the Group, indicated that as at December 2021 70% of live indictments (584) in the High Court were sexual offence cases, thus requiring agents with extended right of audience; while this figure was 10% (349) in the sheriff court. At the time of writing it has not been possible to ascertain the extent to which that 10% falls strictly within the New Court's strict jurisdiction. One particular caveat was that from the recent experience and recollection of some members of the Group there had been a steep rise in the number of online sexual offences within the sheriff court which, while likely to be included within that 10%, would potentially fall outwith the New Court's jurisdiction if no 'identified complainer' was involved. Notwithstanding this, some members of the Group preferred a broad brush or 'worse case' scenario to be considered. That provision should be made on the basis that the 10% volume in its entirety would effectively be transferred over to the New Court. Similarly, the specific impact on solicitors without extended rights of audience vis a vis a possible reduction in skills or workload was hard to assess. The Group considered different indicators to assess the potential number of solicitors impacted. However, as there was no data easily available without further analysis, the Group used general data available from SLAB's website on the number of firms who received a payment from criminal legal aid assistance to facilitate general discussion only. It was acknowledged that this number did not equate to the number of solicitors potentially impacted as most firms can have multiple solicitors and multiple solicitors in a firm can be working on a solemn case at any one time. It also did not take account of those solicitors with applicable expertise in COPFS and the PDSO.
During discussions, the Group acknowledged that resource implications had already been considered by the Lady Dorrian Review. It had acknowledged that it could not shy away "from the fact that there are likely to be resource implications in the establishment of a specialist sexual offences court in Scotland, particularly those associated with training personnel, and the drafting and implementation of policy and practice. In reality, however, the establishment of a specialist court would involve, in some respects, the reorganisation or transfer of existing caseloads and the use of existing buildings so that resources are in fact used and managed more efficiently." One Group member indicated those initial start up costs could include the 'training up', as required, of solicitors to obtain extended rights of audience.
The majority of members of the Group who provided a view favoured the exploration of steps to encourage and facilitate the 'up take' in those obtaining extended rights of audience in so far as possible and to join the legal profession generally, irrespective of the model of rights of audience adopted, not only to support the New Court but to support the justice sector more generally. Some spoke of, or suggested steps to encourage wholescale careers in criminal practice given challenges faced by the profession at large in people entering the field and/or leaving it. The upward trend in both new entrants to the Faculty and solicitors advocates as reported in recent years was promising. Some members suggested that steps could be taken by the professional organisations, and the justice sector employers to address what were seen as the key barriers to increasing/having current practitioners obtain rights of audience- namely costs and time commitment for undertaking specialist training. Some members felt the transformative nature of the New Court justified the investment in this regard. Given the limited time and resources available to the Group the likely costs and resource implications could not be explored further.
The Group gave consideration to two alternative solutions to the model proposed by the Lady Dorrian Review, with a majority ultimately preferring one for further exploration. Namely: (i) varying the jurisdiction of the court to allow retention of some cases within the sheriff and jury court setting outright; and (ii) extending the rights of audience for the court to include solicitors.
Option (i) Varying the jurisdiction
Given the earlier detailed discussion on the topic, discussed above, and the intention and wish of the Review and this Group for as many complainers, accused and the justice sector more generally to reap the benefits of the New Court, there was no appetite for restricting the jurisdiction of the New Court further. This alternative was rejected by the Group.
Option (ii) Extending the rights of audience for the New Court to solicitors
It was acknowledged by some members at the outset, that this option would be a significant divergence from the recommendation made by Lady Dorrian and her Review which had been supported by a clear and rationale justification. Other alternatives like encouraging training and the up take in rights of audience to improve and assist solicitor practitioner development and experience generally were viable, and of much benefit to practitioners and the justice sector generally. This would require commitment and resourcing, but should be explored. The Review had envisaged a small pool of expert/specialist professionals trained in obligatory trauma-informed practice, who had undertaken detailed training and had proven experience of questioning and interacting with complainers, training which it said was not readily accessible to the legal profession at large. A dedicated team of PH judges in the High Court had already proven the concept. There was a notable bigger pool of practising solicitors available in contrast to the number of advocates and solicitors advocates, while some would have notable experience many may not. A key aim of the recommendation was to ensure all practitioners before the New Court had undertaken and were experienced practitioners, thus a key focus on any extension of the rights of audience would require to be on unifying training.
A majority of the Group ultimately agreed that as an alternative to the Lady Dorrian model, rights of audience for the New Court should be extended to include Scottish qualified solicitors. An essential and minimum stipulation however to help in achieving the goal of experience and specialism was that those solicitors would complete the accredited trauma-informed training required of advocates and solicitor advocates, the details of which and accreditation therefore were for the Lord Justice General. Consideration may also require to be given to what additional training might be needed to support practitioners joining the New Court. The ultimate conclusion of the Group was that cases of rape and attempted rape, and those which featured charges on the indictment which remained within the privative jurisdiction of the High Court but had the potential to be remitted to the New Specialist court would still require to be prosecuted/defended by those with extended rights of audience. The reason being that such crimes, and specifically rape (and attempted rape when on the same indictment) would always have required extended rights of audience, and there was no reason to depart from that given the very serious nature of them. The Group noted that assigning rights of audience via crime rather than by court forum would be a novel approach in law, but was ultimately one for legislators to address if the proposal was to be taken forward. Consideration was given by members to whether there was a need for, and if so, what measures could be used to address any concerns or perceived concerns regarding the deviation from the Lady Dorrian recommendation; and to ensure the best and most experienced practitioners could practice before the New Court. Introducing an experience requirement or number of Post Qualified Experience years' (PQE) stipulation was suggested by some members and considered but rejected. It was acknowledged that enforcement of this had practical challenges, in addition to a general appreciation that PQE did not necessarily equate to actual experience in the conduct of the types of cases under discussion. There were a number of experienced solicitor practitioners out there doing exceptional work and whose expertise would be an asset to the New Court.
Some reservations and/or practical considerations were still noted about this alternative too. In particular, that the solicitor profession may not be engaged nor have the time or capacity to undertake the specified training to appear in the New Court, thus the objective of increasing capacity and not de-skilling or limiting the opportunities for a tranche of the solicitors' profession might not be achieved in full or in reality. Members flagged that it was important to allow and encourage access given the wealth of experience that some sheriff court practitioners could have and would bring to the New Court. We return to assisting with training later on in this paper.
A further and relevant consideration to such an alternative approach, and its potential success that some members indicated required further consideration was also the cost, time and overall benefit in training up solicitors in this way. If, as some members suggested, the cost in time or resource of a solicitor completing the trauma-informed training was potentially similar or commensurate to that of becoming a solicitor advocate or similar, then there might be greater benefit in training people up. Both for the profession and justice sector as a whole, and individuals development. The Group ultimately acknowledged that as the scope and training for the New Court and its procedure and process was yet to be determined, alongside the fact that accreditation of courses was currently envisaged to be for determination by the Lord Justice General, it was difficult for it to make an assessment on this at this juncture, rather it was a matter that required to be taken in to consideration in the future.
Removal of right to appear before the New Court
RCS representatives in the Group questioned whether there was a need to introduce a specific method by which a legal professional who had attained the relevant training and experience to appear before the New Court could, however, have that 'right' removed in circumstances in which e.g. their professional conduct was perceived as being contrary to the principles and rationale of the court and/or trauma-informed principles generally. It was acknowledged by members that generally a 'ticketing system' in most instances includes a process for removing such a ticket. However it was also acknowledged by members that the removal of a right to appear before a court once all relevant entry criteria had been met would be a significant step. Particularly as conduct is generally a matter for a professional's regulating body. Further detailed consideration would require to be given to the issue generally, and to a number of legal, practical and matters of principle if such steps were to be further considered. These included consideration as to who would have the power to remove- if it was to be the court at all; what circumstances/criteria would have to apply; how the professional would be removed; how the professional might be permitted back in to the court; and whether this should ever be an issue for the court. Given the time limited nature of the Group and its extensive remit it was not possible to consider the issue further.
Required rights of audience to appear before the New Court recommendations
The Working Group Recommends that:
- as an alternative to the approach recommended by the Lady Dorrian Review to address concerns discussed in this section, that rights of audience for the Specialist Sexual Offences Court should be extended to include solicitors practising in Scotland who have undertaken the specialist trauma-informed training in dealing with vulnerable witnesses, including examination techniques, in accredited courses approved by the Lord Justice General required for appearance, but with the exception that no solicitor shall prosecute or defend cases before the New Court in which there is a charge(s) of rape, attempted rape (both statutory and at common law)
- irrespective of the rights of audience model adopted in the New Court, to support its implementation in principle it is recommended that there requires to be further consideration and exploration by justice partners in the criminal justice sector regarding the potential to support, encourage and facilitate the 'up take' of training including extended rights of audience in so far as possible to support the New Court and the criminal justice sector. This could include consideration and discussion of costs and time associated with training and perceived barriers to obtain extended rights of audience.
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