Victims, Witnesses, and Justice Reform (Scotland) Bill: factsheet

Sexual offences court

This page provides more information on the proposal in the Victims, Witnesses, and Justice Reform (Scotland) Bill to establish the Sexual Offences Court.

What the Sexual Offences Court is

The Bill proposes to establish the Sexual Offences Court, a new criminal court for Scotland separate from the sheriff courts and the High Court. It would have Scotland-wide jurisdiction to hear cases involving serious sexual offences including rape.

At the moment, serious sexual offence cases can generally be heard either in the sheriff court or the High Court. It is largely a matter for prosecutors’ judgment as to which court is more appropriate (although cases involving rape must always be prosecuted in the High Court). The Sexual Offences Court would allow these cases to be brought together and heard in the same specialist environment.

The Sexual Offences Court would embed specialism from the outset to:

• develop best practice in dealing with pre-trial and trial procedures in a way that better recognises and adapts to trauma;
• use available resources more flexibly to contribute to reducing delay and increasing efficiency in these cases;
• support complainers to give their best evidence;
• improve judicial case management and
• require specialist trauma-informed training for all personnel, judges and legal professionals appearing in the court.

Background to the proposal

Complainers in sexual offence cases often say that they found it very difficult to be a part of the court process. Victims and survivors report that delays in cases coming to trial, stress associated with giving evidence and the experience of giving evidence itself, all contribute towards an experience which they not only find very difficult but which re-traumatises them.

We must ensure that we have an effective system of prosecution of cases involving serious sexual offences if victims are to have the confidence to come forward to hold those who commit such offences to account.

The Lord Justice Clerk’s Review into Improving the Management of Sexual Offence Cases (known as “the Lady Dorrian Review Group”) published a report in March 2021. The Lady Dorrian Review Group was established because of the need to improve the court experience for complainers and the need to develop a more sustainable model of prosecuting sexual offences,  given the increasing numbers of such cases. One of the Lady Dorrian Review Group’s recommendations was to establish a new specialist sexual offences court which would:

• allow all complainers, as far as possible, to pre-record their evidence before the trial;

• improve ways in which judges would manage cases; and
• require specialist trauma-informed training for all people who work in the court, including lawyers and judges.

The model envisioned by the Lady Dorrian Review Group was a court separate from existing courts on the basis that past attempts at improving the management of sexual offence cases within existing courts had failed to deliver lasting improvements to the experience of complainers in these cases.

A Working Group was set up to consider the detail of the Lady Dorrian Review Group's recommendations. This was made up of people who work in different parts of the justice system along with representatives from victims’ organisations.

Improvements to the experience of complainers

Establishing the Sexual Offences Court will enable a more flexible use of court and other resources and improved ways of managing cases that will help trials to start and finish more quickly and help to reduce overall delay in the system. This has been an important benefit of specialist sexual offence courts introduced in other countries such as New Zealand.

The Bill also aims to make sure that proceedings in the Sexual Offences Court are carried out in a way which is mindful of the impacts of trauma and supports victims and witnesses who take part. This is sometimes described as a "trauma-informed practice". The Bill would make it essential that everyone involved with the Sexual Offences Court, including lawyers, complete specialist training in trauma-informed practice. This will help to ensure that everyone who interacts with a complainer or other witnesses will understand trauma and be able to work in a way that helps reduce the risk of causing further trauma.

The Bill would also introduce a presumption that all complainers of sexual offences required to give evidence in the Sexual Offences Court would be able to have their evidence pre-recorded before the trial. This is intended to mitigate the trauma that victims associate with this experience.

The Sexual Offences Court would also lead to future improvements to the experience of complainers by developing best practice  designed to make their experience in court less traumatic. The approaches it develops would apply consistently to cases involving serious sexual offences from across the whole of Scotland. 

Jurisdiction of the Sexual Offences Court

The Bill lists the offences which an accused would have to be charged with before their case could be heard in the Sexual Offences Court. The Sexual Offences Court would be able to hear any case on indictment which includes one of those offences as well as any other charges that appear on the same indictment including murder.

An indictment is a court document which sets out the charges against the accused in solemn (more serious) cases. Solemn cases are heard before a jury.

Allowing the Sexual Offences Court to hear cases that involve both sexual and non-sexual offences means that cases will not be split across different courts. Splitting cases would be an inefficient use of court resources and risk re-traumatising complainers because they might end up having to give evidence more than once.

In determining what cases the Sexual Offences Court can hear, the Bill lists all serious sexual offences where a complainer may be required to give evidence (such as rape and sexual assault).  The list of sexual offences has been expanded beyond those recommended by the Lady Dorrian Review Group and the cross-sector working group.  It also includes other offences where a complainer may be required to give evidence of a similar nature, or experience barriers in accessing justice regarding conduct that can also be considered to amount to sexual or physically intimate abuse, such as such as female genital mutilation or offences contrary to section 1 of the Domestic Abuse (Scotland) Act 2018 where it is apparent from the charge that there was a substantial sexual element present in the alleged commission of the offence.

This approach recognises that complainers in those cases should also benefit from the specialist approaches introduced through the Sexual Offences Court. Provisions in the Bill would also allow the list of offences to be amended.  This would make sure that the Sexual Offences Court is able to hear any new offences that might be created after the Sexual Offences Court is set up.

The decision as to whether individual cases should be heard within the Sexual Offences Court or another court would remain a decision for prosecutors. The Bill permits rather than requires prosecutors to raise cases in the Sexual Offences Court, provided the Sexual Offences Court has the power to hear them.

Judges of the Sexual Offences Court

The Bill proposes creating a new category of judge to preside over cases in the Sexual Offences Court. These judges would be known as a “Judges of the Sexual Offences Court”.

The Lady Dorrian Review recommended that both sheriffs and High Court judges should be appointed to sit in the  Sexual Offences Court provided that they have completed a course of training in trauma-informed practice.

The Bill automatically appoints anyone who holds office as a Lord Commissioner of Justiciary (senators) or temporary judge and has completed the necessary training on trauma informed practice in sexual offence cases, to the role of Judge of the Sexual Offences Court. This does not mean that all eligible senators and temporary judges will automatically appear in the Sexual Offences Court but rather creates a group of senior judges who already preside over serious sexual offence cases from which the Lord Justice General, as the most senior judge in Scotland, can choose when making deployments to the Court.

Sheriffs and sheriffs principal who have completed the necessary training can also be Judges of the Sexual Offences Court but they must be appointed to the role by Scottish Ministers. Those sheriffs and sheriffs principal who are appointed will hold office as Judge of the Sexual Offences Court for a period of five years and will be automatically reappointed unless specific exceptions apply.

The Bill also provides that the Lord Justice General and the Lord Justice Clerk would be able to preside over cases in the Sexual Offences Court.

A person can only be a Judge of the Sexual Offences Court if they hold office as a Lord Commissioner of Justiciary, temporary judge, sheriff principal or sheriff. Should they cease to hold one of those offices, such as where they retire or are removed from office, then they will also cease to be a Judge of the Sexual Offences Court.

There are specific rules in place for removing a person from their role as a sheriff or a High Court judge which are set out in legislation. These rules will continue to apply in the usual way but are amended by the Bill to allow judges’ conduct as a Judge of the Sexual Offences Court to be taken into account when determining their fitness for office.

The Bill also provides for the creation of two new statutory judicial officer roles to be known as the “President of the Sexual Offences Court” and the “Vice-President of the Sexual Offences Court”. These roles will further enhance the development and operation of the Court by having the responsibility of ensuring the efficient disposal of business in the Court.

Sentencing powers of the Sexual Offences Court

The Bill proposes to give the Sexual Offences Court the same sentencing powers as the High Court. This means that they will have the power to issue a sentence of life imprisonment or grant an Order for Lifelong Restriction. This is different to the recommendation of the Lady Dorrian Review Group, which recommended that the Sexual Offences Court should only be able to imprison someone for a maximum of ten years with the ability to send cases deserving of a lengthier sentence to the High Court.

Giving the Sexual Offences Court unlimited custodial sentencing powers recognises that the Sexual Offences Court will have the power to hear some of the most serious offences, including rape and murder. It ensures that the Sexual Offences Court has all the tools it needs to deal with these cases. Giving Judges of the Sexual Offences Court the same sentencing powers as those that sit in the High Court was also recommended by the cross-sector working group to avoid creating the impression that sexual offences are being treated less seriously.

Legal representation in the Sexual Offences Court

The Bill would allow advocates, solicitor advocates and solicitors to represent an accused person in the Sexual Offences Court. This recognises that it will have the power to hear cases which are currently heard in the High Court and the sheriff courts.

Under current arrangements, an accused who is granted legal aid in a case heard in the High Court automatically receives legal aid funding to instruct an advocate or solicitor advocate (known as counsel). This reflects the fact that solicitors cannot appear in the High Court. In the sheriff courts, where cases can be conducted by solicitors as well as by advocates/solicitor advocates, an accused wishing to receive funding to instruct an advocate/solicitor advocate must apply to the Scottish Legal Aid Board (SLAB) to do so. As the Sexual Offences Court will bring cases together that would previously have been heard across these two courts there is a need to ensure that accused in cases which, under existing structures, are prosecuted in the High Court will be entitled to legal aid funding to instruct counsel when indicted to the Sexual Offences Court. 

The Bill provides accused with three routes to access counsel in the Sexual Offences Court:

• Requiring accused charged with certain offences to be represented by counsel – solicitors will be unable to represent accused in cases which involve specific offences which are always, or almost always, heard in the High Court. Where murder, rape, attempted murder, attempted rape or certain other offences appear on an indictment, accused must be represented by an advocate or a solicitor advocate.

• Assessment of likely sentencing outcomes – accused will be entitled to legal aid funding to instruct counsel in the Sexual Offences Court where they can show that, if convicted, they are likely to receive a custodial sentence in excess of five years or made subject to a Risk Assessment Order (which is used to determine whether an Order for Lifelong Restriction may be appropriate). This recognises that custodial sentences overf five years and Orders for Lifelong Restrictions can only be imposed by the High Court and that accused should therefore be represented by counsel in these circumstances.
• In all other instances where SLAB consider it appropriate - accused will also be able to apply for legal aid funding to instruct counsel in the Sexual Offences Court under the ‘appropriateness’ test. This builds on the established process already in place in the sheriff courts whereby accused who wish to be represented by counsel can apply to SLAB for sanction. Applications are considered on a case by case basis and granted where SLAB consider it ‘appropriate’ for counsel to be instructed in any particular case.

This approach is intended to maintain broadly the same balance of accused represented by counsel and those represented by a solicitor in the Sexual Offences Court as occurs under existing arrangements. Provisions are also included in the Bill which required Scottish Ministers to review legal representation in the Sexual Offences Court including access to legal aid for accused.

The Bill requires that whoever represents an accused, whether that is counsel or a solicitor, must have completed specialist training in trauma-informed practice before they can appear in the Sexual Offences Court. The requirement for lawyers to complete a course of training in trauma-informed practice before being able to appear in the Sexual Offences Court was a key recommendation of the Lady Dorrian Review.

While the Bill does not place a specific requirement on prosecutors in the Sexual Offences Court to have completed trauma-informed training, it does place a requirement on the Lord Advocate to publish a statement in respect of the trauma-informed training that prosecutors appearing in the Court will undertake.

Self-representation in the Sexual Offences Court

The Bill would not allow an accused person to represent themselves in the Sexual Offences Court in any case where a witnesses is required to give evidence. This is in line with existing legislation which prohibits persons who are accused of certain sexual offences from representing themselves in other courts. This applies to the majority of sexual offences and the purpose is to prevent a complainer or other witness from becoming traumatised by, for example, an accused person cross-examining them.

Pre-recorded evidence

A presumption that victims should be able to pre-record their evidence rather than give that evidence at trial was a key feature of the model for the Sexual Offences Court as proposed by the Lady Dorrian Review.

Pre-recorded evidence already exists as a special measure which is available to support vulnerable witness in giving their evidence. It is intended to reduce the risk of re-traumatisation to victims associated with giving evidence at trial and to support them in providing their best evidence. Pre-recorded evidence is usually taken from a witness at a dedicated hearing called an Evidence by Commissioner hearing. These hearings often take place in purpose-built, trauma-informed spaces called Evidence by Commissioner suites. A recording of the evidence captured at that hearing is then played to the jury during the trial.

A presumption in favour of pre-recorded evidence is already in place  for children aged under 18 in the High Court, with plans to extend this to additional groups of vulnerable witnesses  April 2026.

In line with the recommendation of the Lady Dorrian Review, the  Bill  introduces a presumption in favour of pre-recorded evidence in the Sexual Offences Court taking forward a key recommendation of the Lady Dorrian Review. This means that all victims of sexual offences will be entitled to pre-record their evidence ahead of trial unless specific exceptions apply or, in the case of adult victims, they would prefer to give evidence at trial.

The Bill also allows for previously recorded evidence taken at an Evidence by Commissioner hearing to be re-used as a witness’s entire evidence in subsequent, separate criminal proceedings,. Currently, previously recorded evidence can be used as a witness’s prior statement, but this means that the recording only constitutes the witness’s evidence in chief and not their cross-examination or re-examinationleaving them open to the risk of being recalled to court to be cross-examined on their evidence again, which could potentially be retraumatising. The provisions permit further questioning of the witness provided that the party wishing to conduct that questions can demonstrate that they are relevant to the proceedings.