I welcome to the 25th meeting of the Criminal Justice Committee in 2023. We have got no apologies this morning, and Katie Clark is joining us online. Our first item of business today is the continuation of evidence sessions on the victims, witnesses and Justice Reform Scotland Bill. Last week, we began with an overview session on the well with the cabinet secretary for justice and Home Affairs Angela Constance and today we move on to phase one of our evidence taking on the bill which will focus specifically on taking evidence on parts one two and three of the bill. So, these parts of the bill cover the establishment of victims and witnesses commissioner, embedding trauma-informed practice in the justice system and extending special measures to civil cases. We expect phase 1 to run around mid-November, after which we will move on to considering other parts of the bill. We are joined this morning by a panel of organisations who represent victims and survivors of various crimes. A warm welcome to Anne-Marie Cacosa, co-founder of FAMS, which is Families and Friends Affected by Murder and Suicide, Sandy Brindley, chief executive of Rape Price of Scotland, Dr Marcia Scott, chief executive officer at Scottish Women's Aid and Kate Wallace, chief executive officer at Victim Support Scotland. A warm welcome to you all I refer members to papers 1, 2 and 3. I intend to allow up to 75 minutes for this session. Before we get under way with such a large panel, I would like to ask members to be as succinct with your questions and panel members to be as succinct with your responses as possible. I remind everyone that we are focusing on parts 1 to 3 of the bill in this first phase. If we can, let's try to work through parts 1 to 3 in turn in our questions. I will begin with an opening question on part 1 of the bill, namely the proposal for a Victim's and Witnesses Commissioner. I would like to ask what are your views on the pros and cons of such a post. I am going to start with Sandy Brindley, and then I will bring in Dr Marcia Scott. As I know, Rape Price of Scotland is supportive of the proposal, and Scottish Women's Aid is more opposed to the creation of the post. Sandy, I will bring you in first. Yes. Rape Price of Scotland, we probably started off in taking a similar position to the Scottish Women's Aid, which has been quite skeptical of the need for a Victim's Commissioner, but also the benefits of it, given that a Commissioner cannot get involved in individual cases. The reason we have changed our position somewhat is because there have been a number of victims speaking out, not specifically of sexual offences, but more generally, saying that this is something that they would value. I do still have some concerns about victim expectations being that a Commissioner can assist with their case. I also worry about the cost of it. I think that we are all aware that the Government is in a very difficult financial position. We are looking at losing 28 rape prices workers across Scotland from next March, so it makes it quite difficult for us to support whole-heartedly the Victim's Commissioner when front-line services are being decimated. We need to see in the context of the financial position and what the priorities should be and what is most important for victims and survivors. I will move straight on to Dr Scott. It is quite uncomfortable to oppose this in the sense that we really see ourselves as an organization that advocates for any expansion of access to power for victims and survivors. We have had multiple discussions amongst my colleagues about this, but it came down to a couple of things for us. When the idea of a Victim's Commissioner was first mooted, I had conversations with Sarah Mason, who is the CEO of Women's Aid Federation Northern Ireland, with Sarah Fitzpatrick, who is the CEO of Wales Women's Aid, and both Nicol Jacobs, who is the Domestic Abuse Commissioner in England, and Farin Azir, who is the chief exec in Women's Aid Federation England. The reason I listed all those is because the response I got was unanimous from all of them, which was that they felt that Scotland was in and the violence against women sector in Scotland was in a singular and unique position in the UK in terms of having really good access to politicians, to ministers, to MSPs, and that creating an institution that would then stand between us and them was retrograde, would actually interfere with that. On top of that, our concern has been, and also in some of those areas, they have victims commissioners and they have not been convinced that they have helped get the voices of victims and survivors. I'm listening to you, but then there's the actually policy changes as a result of what you said, and they said those are two very different things. On top of that, we heard from one of them that there's a high risk of getting somebody in as a victims commissioner who does not understand violence against women and girls well and certainly does not have what we would consider gender competence when it comes to looking at criminal and civil justice issues around domestic abuse. That then for us is very, very risky because then the person who is supposedly speaking for the people that we serve actually doesn't understand what they need and want. So I would say the first, I had these conversations with previous multiple cabinet secretaries for justice. I'm not sure that they were as convinced as they might have been that this was a good idea, and I would hope that the Parliament will reconsider it. The other possible alternative is, and this was suggested in the independent review of funding for frontline services that was just published in June, May, that if we have a victims commissioner, then we need a domestic abuse commissioner. I'm worried, like Sandy, about the money that would go in. I still don't want somebody between us and Government, but if we have a victims commissioner, the only way that I can imagine that we could really reduce the risk would be to have a domestic abuse commissioner. Okay, thank you very much indeed. I'm going to bring in other members now because I know this is a what you've just outlined, Marsha, is something that I think we're all very sensitive to. So I'm going to bring in Russell Finlay first. Thanks very much for your two questions, and I'll try and be brief. Victim support Scotland said in their submission that they want to know what action the commissioner might be able to take in respect of criminal justice agencies that aren't doing their jobs properly. Essentially, will the commissioner have teeth, and apparently this is what victims are calling for, and connected to that, going back to the point about not being able to act in individual cases. Again, I think that victims would like to see that power. Otherwise, what's the point other than to generate whole reams of paperwork for people at us to read? What can be done, I suppose, to questions to Kate, because it relates to your evidence, to give the commissioner teeth? Yeah, I mean, I think a couple of things to remember about the victims commissioner proposal in the bill. This came from victims themselves who overwhelmingly wanted it, the wanted establishment of a figurehead who would champion the rights and hold criminal justice agencies to account. Lack of accountability in the criminal justice system is something that this committee has talked about a lot, and we see that the commissioner's role is being key in relation to that. There's obviously a number of actions that the commissioner could take in respect to that, and the accountability role in terms of standards of service, for example, holding organisations to account for their standards of service under the victims code is one of them, and it's something that we really need and we really want to see, because at the moment those rights are meaningless, because no-one's been held to account for that. We would like more clarity and detail around that, but it's worth remembering that that is yes, you're right, absolutely why victims were behind it and who wanted it, so this is a provision in the bill that victims have asked for directly themselves. Victim support Europe, I think it's worth saying that in a report that they produced last week, have said that an independent victims commissioner is key for a good fabric around victims' rights and upholding victims' rights in each of the member's dates. They see it as good practice, and what we think should happen in respect to the second point that you made is that the victims commissioner role should mirror the children's commissioner role with respect to powers. Like Sandy, we do seek reassurance around funding. The funding for that doesn't impact on front-line victim support services, we're still seeking that assurance. Victim's feedback has been that it needs enough resource to have weight behind it and to be able to do its function, but it should not be a bloated office like we've seen with some other. Getting that kind of sweet spot in between is really important, but having a figurehead who champions victims' rights, who does hold organisations to account and who is not conflicted in their role, that they are solely for victims, an absolute agree with Marcia's point that they need to be the skills and experience. It's absolutely right that we get the right person with the right skills, knowledge and experience, that's crucial. I think that that can be done within the processes that are there. I want to ask a question about how to make rights meaningful and to hold bodies to account. I think that the most effective way of doing that is to provide access to legal advice, thinking particularly for sexual offence complainers. There's a right, for example, to information in the 2014 act that really is pretty meaningless, because there is no way of victims being able to assert that right. The way to effectively enable them to assert that right is to provide access to legal advice and representation, where a solicitor acting in that case can assert those rights on behalf of that individual victim. I think that that is what victims are looking for rather than for a figurehead. Which is probably more part three related. The next question is, there's been some general disquiet within Parliament about the number of commissioners in Scotland. There are seven costing £16.5 million, there are seven more potentially in the pipeline. The victims commissioners are going to cost up to £1 million. I think that some evidence that we've had from the various organisations that creates risking extra layers of bureaucracy and might actually clutter the landscape even further. The Kenny Gibson, who's the finance committee convener, has talked of a sunset clause for commissioners generally. Therefore, if a commissioner has deemed to have achieved its work, there should be some kind of mechanism whereby it could be disbanded. Would that go some way, perhaps, Dr Scott, towards meeting your concerns? I was just having a little snort moment there, sorry, because I was trying to imagine a situation in which I would love the idea of our saying, okay, we don't need you anymore because we've eradicated domestic abuse in Scotland. Could the sunset clause be brought in if they weren't doing their jobs properly then? No, well, I think that what we would want would be a sunset clause of operated when they've done their job so effectively that we didn't need them anymore. And if they're not doing their job properly, the problem possibly could be solved by other ways than eliminating the commissioner post. Can I just add here? I don't really disagree with anything that my colleagues have said. I think we all just want to be in the same place, but we have different ideas about how to get there. But the problem that we're all trying to solve is accountability. That's the problem is that from our perspective and from the women and children that my organization supports, the system doesn't change in response to the things that they say. I don't think putting in a figurehead and maybe it will help. I'm not arguing that it might help, but then that gets everybody off the hook of actually changing the way the system operates to hold itself accountable. And I would be very unhappy if anybody thought that they'd solved the problem of accountability by creating a commissioner. I'd like to pursue the issue of accountability, if I might, because I'm very struck by the point that Kate Wallace made about the importance of things changing in response to their being concerns about practice. I think there's some fundamental dilemmas here, which I think are we have to be really careful about in relation to expectations about a victims commissioner. So I want to talk particularly about accountability around the crown and accountability around the legal profession. To be clear that the committee can understand your perspective about where accountability should be exercised in this proposal. So would it be your view, for example, that there has to be some line of accountability between the crown and the victim's commissioner for the decisions that the crown makes in relation to criminal cases? I think that Kate Wallace would be pleased. I mean, I think that the crown already has standards and service in relation to victims out in the victims code. The ultimate process for that at the moment is going ultimately to the public service ombudsman. Victims don't use that often. They often, in part of the issue as well, is that it's not always clear about which body it is that they should be pursuing in respect of how they have been treated and how their situation has developed. Clarifying that within a commissioner's role, I think, in terms of, as I say, mirroring what happens with the children's commissioner, where in respect of action that's already been taken in an individual case is excluded, but there is an ability within the children's commissioner role to investigate individual circumstances if it hasn't already been taken through a process through other bodies. We think that that's helpful. We also think that often what you see, and it is there already in the provision in the bill around themes that come up so common issues in terms of the way that people have been treated, that a commissioner role around that and resolving some of those issues and accountability, but what we are asking for is for the role to mirror that of the children's commissioner role. Thank you for that answer. It begs the question if the route exists through the Scottish Public Services ombudsman for some of those issues to be pursued, if the standards of service are not being applied or considered not to be applied. The argument for a victims commissioner is that we need to have a victims commissioner because the Scottish Public Services ombudsman is not effective, which we would rather play into the hands of we're creating another commissioner to deal with the fact that a commissioner we're already paying for is not that effective. Do you see my line of argument? The commissioner role is wider than the public service ombudsman role, so the public service ombudsman role is around complaint and the ultimate complaint process. It's not that well, you can see, they publish their cases at the moment, you can see for yourself that it's not that well used within the criminal justice system at all. It's mostly used around areas like health, and the decisions are public. It's not embedded within the criminal justice system. It's a very broad role. Inevitably, what often happens when you look at the judgments that they've made in terms of complaints as well, what they often say is that the victims code, victims rights under the standards of service have not been met through this organisation, for example, COPFS, and that's the decision of the commissioner's role, which would be much wider than that in terms of being able to take forward the learning from that, take forward to other commonalities, which we all know that there are in terms of issues around how victims are treated within the system. I think that you're right, though, in terms of being absolutely clear around, you know, with victims, and this is Sandy's point earlier on, around managing expectation. So, for example, we put in our submission whether that ability to investigate individual circumstances in the mirroring of the children's commissioner's role or not exists. I think what really does need to happen is, this is what the commissioner does and this is what the commissioner doesn't do like they've got in Australia so that that's absolutely spelled out. If I can move on then to the question of accountability around the legal profession, because other committees of this Parliament are looking at the regulation of the legal profession, and there is very strong messaging being come into Parliament about the absolute independence of the legal profession and that cannot be intruded upon, all of which is very important. However, it strikes me that some of the issues about the conduct of defence solicitors in the process of interacting with victims raises an awful lot of questions about conduct actions standards. I'm interested in how the question of accountability can be applied through a commissioner to the conduct of a legal profession that, certainly this Parliament is very strongly presented with an argument by the legal profession. Indeed, in really quite strident terms, its independence must be maintained. I would like to make a comment here that I think one of the most important ways of making the legal profession accountable is to have clear and transparent complaints processes, which I don't think we have just now. We've just seen the faculty of advocates take three years to investigate a complaint against Gordon Jackson for naming complainers on Glasgow, Edinburgh train. That is not a complaints process that gives accountability, and that would be my priority, would be to ensure that bodies such as the faculty of advocates have processes in place that are actually accessible for complainers to use. We have had complainers trying to use those processes to raise concerns about their treatment during cross-examination, but the processes are untransparent, they are lengthy and they are not accessible, and that would be my priority. I think that that's the way of doing it, where you're in no way compromising the independence of the legal profession, but you're making sure that there are very clear processes in place that people can use, and that gives accountability. Is there a role for a victims commissioner in that respect? Yes, I think that from my perspective the commissioner could be overseeing the quality of those complaints processes, the transparency of them. As I say at the moment, it's really challenging for victims to understand often what role different organisations have played on which complaints policy. I had this conversation with a senior member of the Crown a few weeks ago, that even the Crown was struggling to understand which organisation should be complained to about such a complex issue with so many different aspects, and I think that's the perfect role for a victims commissioner to help support around that and also help to make sure that the processes that are in place around complaints are clear and transparent and easily understood by people who need to use them. I was actually in this building yesterday morning giving evidence on the regulation of legal services, and I think there are two things I want to observe. The first thing would be that I worry less about the independence of the legal community and more about the independence of regulation, and the failure to recommend an independent regulator over the legal professions would be an egregious mistake as far as we're concerned, and we're hoping that in the consideration of that other bill that parliament chooses to go with an independent regulator because any system that uses people in its own cohort to regulate themselves delivers you outcomes like the Faculty of Antiquities Complaints Commission. Secondly for me, I think we need to be much more ambitious. I mean really are we going to try and fix what we know are deep and you know decades-long problems in the way victims experience the criminal and civil justice systems by bolstering slightly the complaints process. Surely what we want is accountability that's built into the way the institutions set themselves up and operate and evaluate, and the way we evaluate them rather than just trying to fix what happens when they don't operate properly and people have a complaint, and in the context of domestic abuse given that the vast majority of our victims are women and children, they've been re-traumatized by a system, the complaints process is irrelevant to them as far as they're concerned, so I would just say that the fact of a commissioner helping people make a complaint is not a bad thing but it's deeply unambitious I think. I'd just like to bring in Ann-Marie I'm conscious that you haven't really had an opportunity to come in yet, so I'm just asking you a very broad question about your own views on the proposals around a commissioner. Well similar to Kate and two of my colleagues, when it was first muted myself and everyone at FAMS, the family thought it was a great thing that someone should be as you say, as Kate says, a champion of the victims, but when we looked at it closer, I think it's very unclear really what the remit is, has the person's remit is, I think it's too broad at the moment, it's trying to fill too many, tick too many boxes, and the fact that they would not be allowed to review individual cases to me makes it lose its teeth, so I share really the same views as Kate in particular, in my improvise, Kate. I'm going to bring in Rona Mackay, followed by Fulton MacGregor, and again if I can ask for succinct questions and responses. Thank you. Thank you, convener. Good morning. Can I come to Sandy first, please? You said at the start that you weren't wholeheartedly convinced and I understand your arguments about it being another voice for victims, et cetera, so what parts of it would make you convinced that we should have one and would that be the fact that they could intervene directly in cases, or could you maybe just clarify what would solidify it in your mind that we definitely should have one? Yes, I think that the reason that we have supported it to a degree is that victims are saying that this is something that they want, so that feels quite difficult for us to oppose. I think that we have reflected somewhat on some of the submissions that have been made to the committee, where it seems like there isn't a unified view across victims that this is something that they want, or that they only want if it can intervene in individual cases. I think that it's fair to say that our position now is a bit more neutral than it was. In terms of sexual offence complainers, which is who I'm representing, when we consulted with sexual offence complainers that there was similar ambivalence, some people thought that it could be a good thing, and other people worried that it wouldn't really do anything. That brings me to my next question, which is in your vast experience all of you. Given the trauma that all of the victims that you support have been through, how many of them do you think would take up or go down the route of saying that I want to go to the victims commissioner on this? I know that you can't say exactly what has not happened yet, but just roughly what is your feeling that they would actually think that that's where I want to go now, given everything that they've been through? People definitely want to have a voice, so overwhelmingly, that there's a real appetite from victim and survivor to be able to use their experience to make things better for other people. We have 60 people now in our survivor reference group at Reprise of Scotland, and they are all people who want to take what's generally been a very negative experience in usage to try to make things better. I think that there's still an appetite for being involved and contributing to change whether or not the way to do that is through a victims commissioner or other routes, but there's no doubt there's an appetite for it. We asked that question, so we've been similar to Sandy. We've got two reference groups, one across the whole organisation that's got about 60 people in it, and another one for our service supporting families, believed by crime. All except one person, and that's about 70 odd people, expressed an interest in engaging with the victims commissioner role directly about either from the perspective of speaking about their own experience in order to make sure that that did not happen to anybody else. From our perspective, we see it as something helpful. We see it as something that would be all of our responsibilities to help make it work in the right way, and we understand the arguments about money and so forth, so we would be looking for assurances that would not impact on front-line services. That would be the main thing, but there would be a lot of people wanting to engage with victims commissioner from where I'm sitting, definitely. You said that you felt a bit disappointed because they wouldn't be able to intervene in individual cases, so would that make a difference to people saying, well, at this point? I think that 100 per cent of our lived experience supports the groups. When I said I was coming here and probably been asked questions, there were 100 per cent that they would like to see a commissioner and that there would be more than the appetite that you see would be there for them to contact them on their individual cases and also to prevent what they feel they have gone through in any other family having to go through that. Mostly, I think, when they feel wronged by the system and not to have their voices heard adds to their recovery from the trauma, I think, the feeling of frustration and not being heard, so I think it would be a good thing. Okay, that's really interesting. Thank you. Thank you very much. I'll bring in Fulton Follard. I'll be the sole voice here. I do think that lots of survivors, the survivors who get involved in all of our reference groups are really committed to trying to get change. If there's another avenue for trying to do that, they will certainly use it. But if you look at, it will be very skewed to upper middle class or to people who have the energy and the finances and the safety to engage. For most of the folks we support, it would just be a burden that would just not be available. So we would wind up doing it again to somebody who is now between us in government rather than directly to government. I understand that. Thank you. I'll bring in Fulton and then Pauline McNeill. If I can ask members just to direct questions to maybe two witnesses at the most because we've still got parts two and three to get through. Thanks, convener. I think it feels like almost all the panel are roughly in the same place today if you've got some people who are like yourself, Marcia, opposed to the commissioner, but can see some good points with it and others like yourself, Sandy, who are for it, but with huge caveats. So what I wanted to ask—I apologise to the convener, but it is a bit of a general question— if the Parliament or the Government decide to withdraw this particular part of the bill, how do you think that the main aims of what a commissioner is trying to establish or commissioner is trying to do can be achieved through existing mechanisms, either statutory ones or voluntary ones that are already in place? Marcia, you're nodding, so I'll come to you first if that's okay. Of course we've thought about that. Kate and I were both in a meeting yesterday with officials and the Deputy Director of Justice to talk about the vision for justice and delivering it. That's where the questions for us are about where do you put accountability in the system and how do you get the system to start talking about who it's going—so one of the themes of the discussion was the fact that so often we have these high-level commitments by the Government and the Parliament that say, well, we're going to do this and we're going to do that, but they don't say who they're going to do it for, how they're going to prioritise the resources, what's the change that we're going to look for, and how we're going to measure our success. I know it sounds like I'm asking for smart targets, and actually I am really not. I am asking for people to prioritise. We are in a very constrained resource situation. There is no way that some of the things that are being said are going to be accomplished can be accomplished for all victims. What we need is a really hard discussion about who's the priority victims here and how are we going to manage the resources that we have to have the biggest impact. If there were an easy answer, we would have figured this out, but I also think it's about how does Parliament hold the Government accountable for delivering change and paying attention over time. So when I think about the domestic abuse bill, I'm so sorry, Odie, I know I'm going on too long. When I think about the domestic abuse bill, for instance, it was built into it that ministers would have to report back to the Parliament three years after the bill was passed. The information that was available in COVID was a problem, but it was really scant in that three-year report, and the Parliament needs to have said, well, these are the things we want to know, and you're not giving them to us. I mean, or thank you for A and B, but C and D are missing.  So it's those kinds of things. Everybody's responsibility to hold accountable. So anyway, I'm sorry, I'll stop. Is it very brief, if I had to—it's a means of providing accountability and making rights real, which I think is what we're talking about here. If I had to choose between providing legal advice to a sexual offence complainers or a victims commissioner, if it was a choice between those two things in terms of resources, I would absolutely choose legal advice. I think that it's the only way to make rights real. We have a lot of good words in this bill, particularly around trauma-informed practice. The biggest question I think facing this committee is, how do you make that mean something on the ground? My view is, the way to make that mean something on the ground in reality is to provide access to legal advice to enable people to assert their rights effectively. I'll bring in Pauline McNeill and then Sharon Dowie, and then we'll have to move on. Pauline McNeill, thank you. Good morning. I start by opposing the question that previous members have posed about the effectiveness of commissioners, which was pointed in the past. I cite, for example, the children's commissioner. All the legislation here in this Parliament has been initiated by a Government, and I'm struggling to think about a substantive issue that the Human Rights Commission has raised in the Parliament that hasn't been determined by a court. I suppose that those are where my questions are coming from, and also to follow on from John Swinney's questions about accountability and whether or not one person, one post-holder, could actually do all this, hold a law advocate to account, hold a legal profession to account, hold a court to account. I do really question whether that's desirable, obviously. We all agree that it's desirable, but it just seems to me to wrap us all up in one person. It seems to me very difficult to envisage how that really could work. I suppose that that's my question to Kate Wallace. Do you accept any of that? At the moment, this committee has spoken a lot about lack of accountability throughout the whole of the justice system, and it goes back to your question earlier on. If you don't have that, how do you do that? That's my question back to you. Without that post, as a key component of an approach around accountability, I don't see how you can do that. Obviously, I've got views about expanding the range of organisations that have standards of service under the victims' code, because there are many statutory services that are not in there. I could talk at length about that, but I won't. I would flip that question round. We've got a problem of lack of accountability. I'm hugely sceptical about whether or not we'll manage to do it. We haven't managed to do it so far yet. We see the commissioner as being a key role within that. I don't think that they would be able to do it all on their own, but I think that they would be a key part of a change to the system that makes victims' rights meaningful and holds organisations to account on that. However, I think that that is part of a whole system change, as have I seen it. I would agree with her. We all agree that the whole system. You're convinced that one person, the commissioner, could hold all those criminal justice agencies to account? That's your organisation. My view about the children's commissioner role is that it is up to all of us. If it goes ahead, it would be up to all of us to support that role, to be as effective as it possibly could. It's something that victims are asking for. It's what they want. And there are others that would be other measures. Is it what victims are asking for? Anne-Marie said that it is a voice in a system where they feel submerged by a lack of accountability. The question is whether or not, what's the way forward? It seems to me that the question that the great crisis poses is the legal advocacy. Would that not strike you as—I suppose that the question is to Anne-Marie as well—that some legal advocacy, you could see how they could be more accountable to court proceedings, co-ordination. The committee has heard adding finitum, and through your organisation, just the terrible experience of victims not being advised of court changes. Would money not be better spent putting that into legal advocacy where you could have a hands-on person to try and bring those things to account? As far as I'm aware, there's not a proposal on the table anywhere about giving legal representation to all victims. They could get legal advice and be told that this is what you should be doing and that this is your rights. At the end of the day, they're still back where they were in the first instance. Only they've got it in writing that this is their rights. They've still not got anywhere to go with it. I would say that the commissioner would be the key person, a key player. Yes, advisory groups and all that would assist that position. It wouldn't be that person who would be doing it on his own. The notes that I have taken is to make sure that the advisory groups were fit for purpose and that they had the right people, including victims and survivors and all the other bodies around to do that. I think that if not that, then what else? Just now, when our families want to complain and we just write to the justice minister because that's where we start, we just start at the top and then let them put it go down in the way because there isn't any focal point for them to start with, not anything that's reasonable and gets results. Just lastly, sorry, my questions are more to Kate and Amunee obviously because you support the proposal for the commissioner. How do you see the interaction between Victims Support Scotland and a Victims Commissioner? How do you think that would work? In the same way, I suppose that children's organisations work alongside the Children's Commissioner and other of our sister organisations in England and Wales who, interestingly enough, have just put out a public call to make sure that the Victims Commissioner in England's post, which has been vacant for a year, is filled. We would work alongside the commissioner. We would see it as part of a clear mechanism in order to help with accountability. I would see the answer to your question earlier on about access and about victims directly getting access to the commissioner. We would see a role in facilitating that and helping that to make sure that all victims who wanted to speak to the Victims Commissioner could. We would see a role really as working alongside that. I don't see us being in competition. I don't see that role as taken away from anything. I see it as adding something. That's our perspective. We would do everything we could to help to make that role as effective as possible. I'm sorry to rush you, Sharon. Thank you. We've spoken about accountability. We've already got a cabinet secretary and a minister that are accountable to Parliament. I see you all as the voices of victims and witnesses. I'm trying to work out what the benefit would be of bringing in what would be another layer of bureaucracy and whether your voices would then end up getting diminished because it's gone through one person, so rather than hearing from, say, the likes of the four of you would be here from one person, so we'd maybe end up missing some of the messages. I'm wondering if the cost, which is nearly £640,000 to set up in year one and then £615,000 on going, would that money not be better spent on your organisations rather than going on a Victims Commissioner if I could put it to Kate first and then Mabee Sandy? In terms of the first part about the voices, as I said earlier on, it doesn't work that way with the Children's Commissioner. The Children's Commissioner isn't the sole voice and then other children's organisations are not at the table. That's not how it works, and I would see the Victims Commissioner working in the same way. What the Victims Commissioner could do is have a seat at tables that we are not at, for example, the criminal justice board. There's no victim organisation represented at the criminal justice board at all, and that's obviously a key forum for making decisions all the way through the system. I don't see that role as taken away from voices in the way that perhaps some others are concerned about. In terms of the money, I think it would be interesting to get it. We've always said that we're supportive of a Victims Commissioner's position as long as the finances don't take away from front-line services. I think that's the point where we need clarity on first off, and I haven't heard anything so far about where the budget has been identified for this. It may not be money that's going to be better spent because it might not be money that would have been coming to Victims Frontline Services anyway. I would make to that, but getting clarity on that is absolutely right, but we would continue to champion it, but I would see the Victims Commissioner role as complementary, not instead of. I think that Kate is right. It's not as straightforward as if she's spending this. You're taken away from that, but I do think for us that a big part of her I suppose is noticeable to your more ambivalence about this as being informed that the Government have no funding for these 28 posts. We're going to lose what they're going to have the funding for the Victims Commissioner. That does make it very difficult for us to support it, I think. Okay, thank you for that. I'm going to swiftly move on to part two, embedding trauma-informed practice. Some questions from members. Again, I can ask members just to direct questions to either one or two witnesses at the most, and now I'm going to bring in Russell Finlay. Thanks very much. There's a huge amount of ground to cover, but due to the time when I was just asked one question, I want to ask specifically about floating trial diets for sexual offence cases. In rape crisis, everyone says that the bill needs to include a specific commitment to dispens with those in those cases. They cause uncertainty, distress, disruption and trauma, and it's not even trauma-informed practice. Victims Support Scotland similarly say that they are strongly opposed to those, but in a review of that practice by Lord Bonomy, he recommended that they should not be happening in rape cases. That was 21 years ago, and I find that inexplicable that why they're still happening 21 years later. Given that this bill is a victim's bill, will that now lead to these endings? If not, can the bill be amended to make that happen? Because the question relates to both your organisation's evidence, perhaps it's one for Kate and Sandy. I agree. I also find it inexplicable. It was a clear recommendation from Lord Bonomy that, particularly for rape cases, given how distressing a prospect is giving evidence in those cases that there needs to be certainty, we are so far away from that now. There is a distinct lack of ambition in the proposal for a sexual offence score. It seems to me that the basic thing that we need to do if we are going to have a trauma-informed specialist court is not to have floating trial diets. They cause so much distress. It's not the way to get best evidence. I appreciate that the specialist court, which I know the committee will come on to looking, has a default of giving evidence in advance of the trial, but some people will still want to give evidence at a live trial. Even if they give evidence in advance, they might still want to go and observe the precedence and see what's happening with their case. I think that if we are serious about trauma-informed practice, the most basic thing that we should be doing is not having floating trial diets used in rape cases.  That can just be done or should just be done with an amendment to this bill. Just if I can come in, we would agree around floating trial diets and their use. As you all know, the committee is very well aware about the impact of Covid on delay. Delay was already a big issue pre-Covid. It's now a massive issue, but we're in danger of normalising delay. That is having an impact on trauma. We're all seeing it. We're all of the people that we are supporting and are feeling it, but what we've also now got is layered on top of that adjournment, deferment, adjournment, deferment at a level that I've never seen before. So the uncertainty, you get excited to go one day, oh no, sent away, and routinely I'm meeting people who that's happened six or seven times, which has led into a witness attrition as well as a kind of overall lack of confidence in the justice system, and it's just really compounding people's trauma. From our perspective, trauma-informed practice, the provision that's in the bill at the moment is really necessary to have that touchstone there so that there is clarity around prioritisation, because at the moment the priority is going on making sure that we have efficient use of courtspace. That's the argument for floating trials, as we don't have empty courtrooms. We can't have shared of sitting where there's no case coming forward, but there has to be a better scheduling process to make sure that the cases that might be assigned to floating ones do not have vulnerable witnesses in them, for example, and having that touchstone trauma-informed practice within the bill is really important for that. It will give us something to use. No, this is what we should be using as a trauma-informed, and this is not a trauma-informed way of doing things. The bill includes provisions that will amend the standards that various organisations have to put in place to ensure that trauma-informed practice is pursued. When I look at the 2014 legislation, the Victims and Witnesses Scotland Act 2014, there are some significant obligations in there that, for example, victims should be treated in a respectful, sensitive, tailored, professional and non-discriminatory manner. That's just one of the principles at section 1A2. We all can see that that's, I shall offer my opinion, that I don't think that that's always being applied. If that's not always being applied and we're putting trauma-informed practice into the bill, that raises a question with me, is this got sufficient bite about it to make sure that we actually do genuinely embed trauma-informed practice in our legal system? I'm all for it, 100 per cent behind it, but I want to be convinced that the provisions will be effective and emphatic. I'd be interested in your observations on that point that I raise in relation to the obligations that are already on the system in the 2014 act, and whether the provisions in the proposed 2024 act are going to be sufficiently obligatory. I think that that's one of the most important questions facing the committee when considering this part of the bill, is how do you make this meaningful, because I share that concern. There are very positive statutory obligations in justice agencies set out in the 2014 act that are simply not being met. I did a submission to the committee from researchers that I'm doing as part of a PhD at the law school at Glasgow interviewing complainers about how much they will be able to effectively participate in the justice process, which is also a right set out in the 2014 act. The answer is that those rights are pretty meaningless on the ground. I share that concern, but adding another right to that list of obligations or a list of principles in relation to trauma-informed practice without taking action to make sure that those rights are enforceable. If those rights are not enforceable, they are not meaningful rights. I will return to my earlier point. In sexual offence cases, the most effective way that I see of doing that is giving sexual offence complainers access to legal representation. Advocates of support is life changing, and that's the feedback that we get. It really helps with sexual offence complainers to navigate the system, but what complainers need in relation to accessing the rights that are their own paper is legal advice. We do share your concern. We see the victims commissioners having a key role within that, absolutely. Those rights and the standards of service are only meaningful if they're effectively monitored, and if agencies are held accountable to complying with the standards. We think that it's a missing part of the puzzle at the moment, but we do see the victims commissioners having a key role within that, too. I agree with everything there, but I think that what we said in our response was that we all agree that we want a system that's trauma informed, but that it is really essential to understand that the way trauma informed is rolled out these days is not necessarily domestic abuse competent, and we were quite involved in working with Carolyn Bruce and the development of the guidelines and skills framework for trauma informed practice and justice, and even there we were quite concerned about the lack of specificity about what are the behaviors that we need to see change, what does good trauma informed practice look like. We agree with the intent, but we think it needs to be much more specific. We need to have really explicit commitments, and obviously the bill is not going to say, well, this is exactly what it looks like for each individual area, but what we do need is a set of standards that are then applicable to holding organisations accountable for identifying the behavior that's not appropriate, and this is implementation science, identifying the pervert behavior and then supporting professionals to move and holding them accountable if they don't, and that's the piece of work that has never happened since 2014. Thank you. In the 2014 act, the obligation to pursue those principles that I talked about is applied to the Lord Advocate, the Scottish ministers, the chief constable of Police Scotland, the Scottish court service and the parole board for Scotland. Does that cover sufficient organisations? No, I don't think it does. We've set, we've famed in our submission, housings are a big issue and often in the context of domestic abuse and other types of crimes. Victims are ending up homeless, for example, or with massive coerced debt. We think that there are other statutory organisations and other bodies that should be included within the standards that serve because the rules extend across victims and that trauma-informed decision making with respect to those victims should be applied. Before I move on, Anne-Marie, do you want to come in on any of that at all? Yes, I agree again with Kate that the difference between the 2014 obligations and the proposals now is that we may have a victim and witness commissioner there to make sure that the other organisations are heard accountable. I am coming back to the victim's point of view as a survivor of childhood sex abuse and rape and all sorts of stuff and also having witnessed my family and my sister go through the murder trial of our son. Trauma is trauma. There's no, you know, there's, I don't think there's any, various stages of priority and trauma and priority in victims. They're just obviously treated the same and I do think that the introduction of the commissioner will ensure that all of their rights are equal and that they all get their voices heard. Kate? Can you come back on one point? I think that the issue of accountability in the role that Anne-Marie, who calls her quite properly, sets out for the victims commissioner is at the heart of those proposals, but the interaction on the point of accountability that I raised earlier on raises some pretty significant issues about the way in which our system operates. If the Lord Advocate was here, she would say, I am independent. If the chief constable of the Police Service of Scotland was here, she would say, I am independent. The Scottish Court Service would say that I am independent. What my line of questioning is getting at is how do we fulfil the very legitimate aspirations that Anne-Marie Cacosa has put on the record about making sure that those standards are properly applied and that people are properly treated. That's the big test that I think is relevant to the part of the bill. How are victims and complainers informed about the standards at the moment? You need to get out your way to find them and it's really not that accessible a document. I think that we need to be much better informed of victims of what their rights actually are and what they can do if those rights are not being upheld in practice. I think that some of the post holders that you've described to their independence have a responsibility to make sure that their organisations are upholding the standards of service. They need to be not tokenistic in the way that they are just now. Part of that has been held to account around what they are delivering or not delivering in line with those standards of service. I have been really clear about that. I think that the standards of service themselves need a review of the organisations that they apply to and need to be widened and reflect properly the lives of victims and witnesses. Some of the standards of service, for example, are joint standards, so the rights for victims to get support, but they don't filter down into each organisation individually. They can sit in this vacuum at the top when no one takes responsibility for informing victims about their rights properly. I think that there is a piece of work there, just to answer your question, about making that absolutely clear and making it clear with the heads of those organisations about what their roles and responsibilities are in respect of that. If I can just bring in Rona, we really do have to move on. Apologies, Marcia. To follow on, and then I have a question for Marcia, but just to follow on in that line, I think that it is hugely positive that this has been written into the bill, but I completely agree with the conversation that we have just had. Should that set of standards be spelled out more in the bill, such as, for instance, court reorganisation so that victims do not meet perpetrators' communication with victims' conduct of defence—I take John Swinney's point about independence—but should we be more explicit rather than just saying that it should be trauma informed practice? If it is doable, should we do that? I am not sure. I think that there is a limit to what you can put in a bill. I think that, while I am not disagreeing with the point that trauma is trauma, a one-size- approach does not fit all different victims have different needs and will want to give their evidence in different ways. For me, more important than putting words about trauma in the face of the bill is about mechanisms for informing victims of their rights and enabling them to access those rights. To me, that is what we need more of in the bill, a recognition of those mechanisms of accountability rather than putting more in the bill. As Mr Swinney pointed out, there is a lot of the 2014 act. If it was happening, victims would be having a much, much better experience, but the difficulty is that gulf between what the legislation says and what is happening in practice and the challenges. How do we breach that gulf between the two? I do not know that it is about putting more words in the bill around what we mean by trauma informed practice. I think that it is about those mechanisms. I disagree in the sense that we should be spelling out a bit more, but that is a point for conversation. In your submission, you said that you would like to see more about the specialised nature of domestic abuse in respect of being trauma informed in the bill. Do you expand on why you think that that is important? One of the themes that came up when we were reviewing the skills framework with Caroline Bruce for justice was that when you do not have a gendered and domestic abuse lens and you look at the recommendations for trauma informed, what you see often is a default position that the experiences of victims is because they are vulnerable rather than because there was a perpetrator involved and the system failed to keep them safe. We saw that all the way through whether there was a failure to recognise that something like 75% of the victims who have PTSD are women and children because of domestic abuse and sexual assault. The responses of our system are gender blind and are assuming that it is because they are women that are vulnerable or they are children that are vulnerable rather than we have a system that privileges the needs and rights of other people. In terms of domestic abuse competence, for instance, you may say that what we do not see with a trauma informed approach that is not domestic abuse competent is that they fail to look at the actions of the perpetrator and understand that those provide constraints around the actions of victims and that unless you can see those constraints and you see the behaviours of the perpetrator, you ascribe all of the problems that this victim has who's been traumatised to that vulnerability rather than to the system's failure to hold him accountable. Can I just say the other thing I would say? I do think we need more specifics but I don't think it's an either or. I agree with Sandy that there's a whole variety of things that need to happen to make our system trauma informed and I'm going to sneak this in because I didn't get it in before which is data. Part of the difficulty that we have with holding people accountable is that the system, so for instance when I ask the Crown for data about what percentage of the domestic abuse cases that are carried forward for charge and then wind up with a conviction involve families with children, they don't know because they don't collect that data so I can't tell you how many of them should have a child aggravation. So unless we associate those standards that we would like to see implemented with data collection and equalities data then it's very difficult to hold the Lord Advocate or the Chief Constable or any of those people accountable. So basically you're saying we should work together and be much more transparent about those. We all want the same thing so much more transparent about information and data and it should be collected. Okay thank you. I'll finally bring in Fulton McGregor and then we'll move on to part three. Thanks, convener. I wanted to ask about what has fallen on from the conversation that Rona Mackay had with the panel there about how much you think this bill is trying to change more of a cultural shift in the justice agencies because trauma-informed practice has been around for a long time. I think most folk that are involved in the sector in one form or another are pretty clear on what it is. Your agencies sitting here today have been practicing it with victims of crimes for many years to a high standard but I think that outside your agencies the rest of the justice sector is predominantly concerned with the accused or ultimately the offender if they're convicted and I know that from my time as a justice social worker and trauma-informed practice with offenders is a pretty big thing, it's a pretty important thing as you can imagine as well but even within justice social work there was only limited minimal scope for work with the victims. So how much do you think that this bill is really trying to look at agencies across the board, the justice social work like I mentioned but also the courts to take more into account the victims and do that in a trauma-informed manner? I do think that trauma-informed is really important that it's in the bill for exactly those reasons. I do think that it would be helpful to have a bit more detail in there. What we don't want is the whole system going through a half-day trauma-informed training course and then pretending that it's trauma-informed. Going back to the point that was made about the 2014 act this is more than just about individual behaviours and being polite, it's about processes, systems, policies, training, approaches, it's about embedding a trauma-informed approach across the entire justice system and this is exactly the right starting point. I think you need it, I think you need it there to help with that. I totally agree but making it clear that it's about processes, policies, approaches rather than just individual behaviours would really help solidify that message around cultural change and the expectations around that and likewise the standard including that explicitly within the standards of service for each organisation. Can I say that this example that a complainer gave me in the research that I'm doing that I think really sums up what you're saying there about the focus on the accused where she phoned Viya for information about her case and you didn't give the accused name in Viya in the Crown Office Centre and what are you to him and to me that really distilled just how accused focused the system is but also I think too often when we're organising the justice system and particularly court scheduling it's system focused and it's a priorities of the system and that really is what the floating trial discussion is about but not just floating trial days so another complainer gave the example I've been called to give evidence at quarter to four on a Friday having already been told that if she wasn't taken by three o'clock she wouldn't be taken and she described feeling so destabilised but that she could barely say her name when she was called to give evidence and I think anyone could recognise that taking a rape complainer to give evidence at quarter to four on a Friday when they then wouldn't be able to talk about it all weekend and then they come back in the Monday to give their full evidence that is the opposite of trauma informed and that's because that is the systems need the systems need to have courts running till four o'clock is more important than thinking about what is the impact on this really vulnerable witness waiting to give evidence so I think we need a whole scale shift and the systems focus to make sure we're incorporated within that systems focus the needs of complainers and how do we enable complainers to give their best evidence and it's not by taking that approach of the system always coming first. We have been pushing along with some of our colleagues trying to push the system to implement virtual trials in domestic abuse cases. We have overwhelming amounts of evidence that this will reduce trauma for victims probably improve the evidence in the case and not prejudice the experience of the accused in the eyes of the court and but it so the virtual trials were opposed by mostly defense solicitors and this then comes down to how is it that we can get the system to actually respond to the needs of victims because what has happened is we've had almost no movement in the in terms of implementing virtual trials. We've had a number of proposals that have been opposed generally by different elements of the legal community and the system instead of saying well we hear your concerns but there's no evidence underneath them and yet you know this committee was offered a huge amount of evidence about how much it would reduce trauma to use virtual trials and yet the system has been very resistant and I think that's a really good example of the focus on the accused and creating structures that make the system work rather than that actually deliver justice for victims. I think it's what Kate says, I agree with her because it's very true, it shouldn't become a half day tech box exercise you know it should be embedded in really from police training college that we attend these and we go up there quite a lot in lecture and they're not given anything about trauma informed practices at all no and also we can talk about trauma informed in that text boxes because you just say it's been around for a long time but trauma informed and trauma skilled are two different things we need the support the people who support our vulnerable the trauma skilled in what they're doing and I want to know what you said is helpful because if it is more detailed then it gives a better teaching frame framework. Thank you very much indeed we're going to move on to part three final part you would glad to hear focusing on special measures for civil cases and we'll run up to 1125 so I wonder if I can maybe open up questions and I'm going to direct my first question to Marsha, Dr Marsha Scott. Some organisations that have submitted responses especially those supporting individuals with lived experience of the civil justice system have suggested that the scope of who is deemed to be vulnerable in other words automatically treated as vulnerable should be broadened so I wonder if you can maybe just outline your view in so far as does part three sufficiently strengthen the protection available to individuals who are involved in our civil court case I'll come to you Marsha. I think you know from our response that we don't think it does. I find it gobsmacking frankly that a woman can be offered certain protections in a criminal case and then wind up with almost the same set of actors in a civil case and be you know confronted by her perpetrator or you know a whole variety of situations this is all exacerbated at the moment by the lack of access to solicitors so we have women dropping out of cases and because they can't get a solicitor or having to represent themselves and actually cross examine their perpetrator you know I mean there are a variety of circumstances that are just ridiculously traumatic and I find it actually quite confusing to understand why courts are so resistant to what are really a set of very simple special measures in fact I'd like to see much more significant ones required so yes I mean come down to it we would really like to see the same availability and requirements on courts for special measures and at the very least for anybody involved in a domestic abuse case any victim involved in a domestic abuse case that access to those special measures should be automatic and should not rely on the decision of the of the sheriff okay thank you for that um Kate wall a steward coming on that add anything at all we agree okay make easy for you save you a price out of answer we like sandy then it I think you'll find that a general consensus here my reading of the bill as it stands is that for women taking a civil damages action for rape we're not a bit automatically covered by the bill which just seems nonsensical to me absolutely looking at the same approaches in the 2014 act deemed vulnerable by the offence thank you for that I'm just again I'll open it up to members I mean there is an evidence in that respect is overwhelmingly powerful and clear but I'd like to ask something else in a similar vein and now we know that some abusers will weaponise the justice system to continue their abuse to launch costly and often spurious civil proceedings in tandem with criminal cases costly emotionally and financially and then they use these parallel processes to sort of seek delays to one and the other adding to the delays in distress now in the evidence from rape crisis say that civil courts should quote stop their processes being used as a means of abuse and there's been some suggestion or discussion around the proposal of a single sheriff dealing with cases where there's civil and criminal cases in tandem the cabinet secretary when we raised this with her last week seemed reasonably receptive to the concept I just wonder if you I think you do agree with that model that's been said before but if this bill can be amended to make that happen and if so how and I suppose because marcia scott's been most vocal in this perhaps it's one for you as you know I do I've been proposing that we find a way to close the gap between criminal and civil cases it's very very important in domestic abuse because one of the single biggest reasons that women won't call the police is because they're worried about what's going to happen in a custody and visitation civil matter that might be in in front of them down the road and I don't think there's an easy quick answer to this but I do think that what we have heard from some judges in the United States is that when they have implemented a single judge or sheriff model that it is greatly improved information flow from the criminal because obviously it's the same sheriff I would we would really recommend it and I do think it should I would love to have it in the bill I think probably the way it would have to go in as a pilot because we need it we would need to test it small but I think that every sheriff that I've spoken to thought it was a good idea about it also so it might be actually a miracle that we didn't have a lot of opposition on the part of the system but we might I mean anyone else can come in if you want but I'm mindful of time you can have cases where it's the high court and the sheriff court involved so for example where someone's waiting to give evidence against their ex-partner on a rape case and there's contact proceedings in the sheriff court and I mean that this is an extremely difficult situation for rape complainers where there's this protection in the criminal case where they could have a screen by commission but they're expected to attend a contact here and against the man who's been investigated for for raping them I think that's a slightly more complicated situation because if it's too different if it's high court sheriff court I'm not sure how that would work but it seems to me completely inappropriate that you could have child contact procedures in the sheriff court at the same time as you've got such a serious criminal proceeding in the high court and that might be something that Bill could address thank you thank you very much Pauline McNeill think you'd like to come in yeah thanks just that pop of what's a clarification probably sandy the civil cases that you're referring to you're talking about where there's been a conviction and no there's been two there's been three civil damages cases in relation to rape but two specifically where there's been a criminal prosecution that resulted in not proven where the women have then taken successful civil damages actions so those are the examples that I think it would absolutely make sense that these empty taking a civil damages action for rape should automatically be deemed to have the ability to access special measures rather than the uncertainty before they're high and there are other trying to sort of work out what are the range of civil proceedings that this might cover but what else is it contact cases contact cases there's also I suppose there's no I mean in the context of domestic abuse it can be across a whole range of issues around divorce and access to marital assets um uh we know that 90 plus percentage of the cases of domestic abuse include financial abuse so Kate was referencing coerced debt is an increasingly problematic issue so there's there are lots of proceedings that happen and Pauline you know well that I'm not a lawyer so I can't list the whole what everything that happens in civil cases is an awful lot of it happens out with criminal processes in those cases so for the divorce for example you're talking about changing the procedures for for those cases which there has been a conviction and a civil I'm sorry I didn't hear the beginning of those cases where there's been a conviction and there's a civil case say for example as you said the divorce case you're talking about post conviction yes yeah and the non-harassment orders would they be included in that list well if there's a conviction under a domestic abuse charge then non-harassment orders are the default position so there should be a non-harassment order in place I'm afraid I'm afraid to say but not surprised to say that they're not applied as consistently as we would like to see them and often they don't cover children because the what the sheriff and involved may say is well we have to sort out child contact arrangement so we're not going to protect this child from a dangerous perpetrator until we do that so again this this having a single sheriff would help with that I don't think it'll fix it but it would help with that we had a case just recently where a woman had 29 citations for contempt for not bringing a child to to court order visitation while the police were advising her that it was too dangerous because of the information that they had about this perpetrator that was involved in the criminal case and I think that is the kind of case that that really demonstrates how dangerous it is that we have this gap between criminal and civil but it shouldn't be restricted to cases where there's been a conviction I think just to answer that why not well I suppose that the example I gave of civil damages cases where we've got not proven verdicts mean we we know that on a regular basis that guilty mirror walking free for rape from our criminal system so I think if you then make a conviction the basis for access to protection for seeking civil action that is a significant barrier to justice there that point sandy but to see the range of cases that we're talking about you saying in every case whether it's divorce proceedings or anything else you're saying that it should be I was trying to work out well did you apply special measures where the case has not been heard in the criminal courts and there's not been a conviction or not trying to put clarity around that if somebody's seeking a known harassment order I think they should have access to special measures I mean you know one of the things from our perspective is that you often have women who are advised in a civil setting not to talk about the domestic abuse that happened in a in a in the in the marriage or in whatever whatever the circumstances are and and then they wind up in a child contact hearing where they see that actually the perpetrator is going to be offered significant access despite lots of evidence it's probably not a good idea and then they bring in the domestic abuse and at that point that they're not believed because it wasn't brought in at the very beginning and part of the reason why they were going to be reluctant to bring it in at the very beginning is because they don't have if there's been not been a conviction if there hasn't even been a criminal case then they're not offered any protection so what we're saying is when there is any indication that there's domestic abuse and there is always evidence that there has been domestic abuse if it's been there then the witnesses should be deemed vulnerable thank you thank you I don't know Kate Amary would you like just the final just very quickly because when I read this it's not our area of expertise we're not involved in it but I did find it unbelievable to look at the points and see that the women are victims of crime attending a civil court shouldn't get the same protection as they do in a criminal court thank you Kate just or anything you'd like to add before we finish just that I agree I don't think it should be predicated on whether there's a conviction or not in a criminal case in the same way that we apply special measures to witnesses that are deemed vulnerable in the criminal court prior to proceedings we should do exactly the same a mirror of the same in civil cases for all the reasons that have been mentioned okay thank you very much indeed we're going to have to pull it to a close there thank you to everybody on our panel this morning and we'll just have a very short suspension to let our witnesses leave thank you okay thank you very much members so we're now going to move on to our second panel for today we have several organisations representing groups of people who represent victims of crime or people who may be classed as vulnerable witnesses during court proceedings so I welcome Dr Louise Hill head of policy evidence and impact with children first Bill Scott director of policy with inclusion Scotland and Graham O'Neill policy manager with the Scottish refugee council so warm welcome to you all so I'm going to look to having around about an hour for this session and just like the last session I'll open up with a very general question and I will put it first to Dr Hill and then I'll work across the room so in relation to the proposal around victims and witnesses commissioner I'm just interested in your views as to the pros and cons of creating such a pose so Dr Hill first thank you thank you cabina and thank you committee for having us here today from our perspective I think we come at it from quite a balanced point of view we have seen at children first the value of having a children young people's commissioner in scotland so we are strongly in favour we can see what difference that makes so we are very positive around the opportunity of that we see that there is an opportunity with the victims commissioner but I think probably what the committee has already heard this morning is reflections on how that is operationalised and what difference it makes the big concern that we have and particularly with the legislation in general is we feel children are hidden in this legislation we feel they are silenced and unrepresented so far so the concern that we would have and we say that from a point of view obviously of having services across scotland that are supporting huge numbers sadly of children that are impacted by the scale of violence and harm that they've experienced but we we recognise I suppose with the recorded crimes of sexual offences against children 37 percent of recorded crime recorded sexual crime was against children and yet you know we're in a position of thinking that you know there was no mention in policy memorandums no consideration really of children and I think that that's quite a big concern for us as a children's charity um so the the question that we would have around the role of the commissioner is what the where would this victims commissioner recognise the scale of harm that children experience and that children themselves in their own right are victims um and there's lots more that we can say in terms of what provisions we think should be required for children and through the process so I think that that's a really challenging position for us what we would want to say obviously is the importance of the relationship with the children's commissioner and how the two interact is really key and then I think we also have other reflections about how this piece of legislation is cognisant to the other pieces of legislation that we currently have in terms of the Children's Care and Justice Bill in terms of UNCRC Scotland Bill so I think there's quite a lot for us to take into account that thanks very much that's a very helpful opening commentary and I'll now move to Bill, Bill Scott, to bring you in. Just a slight correction my job title at the moment is senior policy advisor not director of policy there is a there is a heady policy inclusion I don't want to steal their job because I'm now semi retired that's why I gave up the director of policy role um the um we haven't consulted with our members unlike the victim support organisations that you heard before but I think if we did they'd be generally in support of the creation of a commissioner and that's because disabled people particularly disabled women are likely to be subjected both to domestic violence and sexual abuse twice as likely as non-disabled women. Disabled people in general three times as likely to be victims of violent crime um than non-disabled people so they they are often the victims of crime but disabled people experience of the criminal justice system um is that it is not they are not treated seriously as victims um that um the hate crimes, disability hate crimes for example are very much under reported and under recorded um and as a as a sexual abuse um and I do take into account what women's aid have said because you know if it is the case you know that in terms of sexual abuse and domestic abuse if there was a barrier created between those organisations and access to government ministers I think that would that would not be a step forward however with another hat on I do have experience of chairing a commission and I hope we've worked in the poverty and inequality commission alongside other poverty and inequality bodies and not acted as a barrier not not acted in such a way it will be really important to maintain those contacts I think with domestic and sexual abuse organisations represent victims because we need to be continued to be informed directly by by their experience and not have it filtered through a commission um I think I think that's that's their role they are lobbyists on on behalf of those victims so we shouldn't prevent them from performing that role but in general I think a commissioner could act and it that will be the test if they are effective in holding the criminal justice system from the beat Bobby to the court session judge to account and I'll come back to this because it was asked earlier about accountability and all of those organisations rightly stress their independence from the political process because they do not want political interference in their roles that's right that's right for but they should not think that they are unaccountable to anybody because at the end of the day they are accountable to the society in which they operate and if a victims and witnesses commissioner can hold them to account then by exposing their failures to the public's gaze then it may help amend future behavior so we are generally supportive of the creation of commission okay thanks very much Bill Graham of renewing thanks very much convener and thank you to the committee for inviting Scottish Refugee Council I'm Graham O'Neill policy manager at Scottish Refugee Council and I suppose the first thing I would start off by saying is that you know we work with people who have experienced severe trauma often to the complex psychological trauma level so repeated episodes of serious crime and I suppose by its nature sadly that's what refugee experience is you know it is to is you're suffering severe crime and it may of course not always be here in Scotland and hopefully it isn't in Scotland and I've got a few words to say about that in a second but we haven't like we haven't like Bill said from Inclusion Scotland consult their members on the bill I would suspect that they would be supportive the organization has been supportive broadly of the principle of having a commissioner which is there for victims and witnesses of crime but in the bot is we didn't submit written evidence to the committee so you know we acknowledge that we might be able to rectify that but Scottish women's aides evidence I think is worth just to kind of mentioning that before it was like a genuine substantive equality analysis dealing with structural issues and and as such we associate ourselves because you know we work with a group that sadly is a systemically marginalized and frankly in the most brutal way possible currently by the UK government through its nationality and borders act and illegal migration act systems there may or may not be time later on for me to to expand on that but put it this way they're putting the most grim vulnerable position refugees as a result of those two pieces of legislation to the point of being criminalized and a systemically exploited amongst others by organized crime groups anybody I think that doesn't feel that I think needs to speak to senior officers within the criminal justice system particularly in Police Scotland and others so we're supportive in principle we also associate ourselves with the comments from Louise from children first in terms of that we have had a fantastic experience with the children and young people commissioners in Scotland they have really put their weight as much as they can within their competence refugee rights issues such as asylum seeking families getting put into 37 box rooms in the south side of Glasgow through a so-called mother and baby unit two years ago and the children's commissioners listened and worked with those women and those children to get them out of that box room those box rooms ran by the home office in its asylum accommodation contractor mirrors and that was an example of a human rights intervention that really stood by the people who may be reserved but they are not people aren't reserved or devolved people are people within a country so there's a real need I think to avoid Lee's put it very well so I might not put as well as Lee's did but you know there's a real unintended consequence but a risk of creating too many commissioners and not having clearly defined roles but you could segment the scrutiny landscape and that would be something you wouldn't want to do if we're wanting to deal with substantive cross you know cross social issues if you like on refugees frankly refugees are a completely hidden group in relation to Scotland apart from the children young people's commissioner a completely hidden group in terms of Scotland's inspectorate regulatory community it just doesn't happen we have consistently said to police scotland the police inspectorate and to a lesser extent to the crown office inspectorate please look at the experience of refugees within the criminal justice system it hasn't happened within the 23 years 22 years of devolution so there's actually a real hidden world there so that informs our view and principle we're supportive of this I mean if maybe I can talk about a particular illustration later on in the session great thanks very much thanks for that Graham you're right we've got a lot to cover so I'm just going to open up questions to other members if they'd like to come in I think Sharon would like to come in and then I've got Pauline and then Russell so Sharon thank you it's first question to Dr Louise Hill in your submission you've put children for support the proposal to establish a victims commissioner however a commissioner should not be brought in at considerable expense to act as a substitute for real action and improving experiences of victims and witnesses could you tell me more about what action you would like to see happen and would it require legislation okay in terms of action of the commissioner that happened right so thank you for the question I think that is our reflection in terms of it's got to make a difference essentially that's that's our kind of you know top line we would want to roll like this to make a difference for children so what's I suppose essential around that is the level of raising profile the level of accountability that we've discussed the level in which they are able to I suppose kind of elevate to an even greater extent the voices of children that are victims obviously that's from our perspective at children first but all victims would be would be relevant and I think that what we're trying to what we're concerned about say particularly around legislation is and has been demonstrated already we've had a lot of legislation for victims we are very concerned at how much legislation that should make a difference to child victims remains unimplemented so one of the key tasks I would like a commissioner to do would be scrutiny of that legislation specifically the Children's Scotland Act 2020 the vulnerable witnesses recorded evidence act 2019 to look at prerecorded evidence for children which comes from Lady Dorian's review evidence and procedure review you know was already discussed by Lord Carlaway in our research that we did with the University of Edinburgh in 2023 so this year we found that we couldn't find evidence of children giving prerecorded evidence so even though this was you know putting evidence and procedure review in 2015 it is still not acted upon and in our in our kind of study that we done with North Strathclyde two police divisions four local authorities and across one large sheriffdom we were not finding evidence of children giving prerecorded so the challenge for us is that this fantastic hope and aspiration in so much legislation that we've passed through the Scottish Parliament the huge challenge for us is seeing what we call the implementation gap so all good intentions a huge amount of work done with rightly so scrutiny through parliamentary process but does it make a difference to children and families in our day-to-day work well sadly our experience of going along to court supporting children young people you know day in day out across Scotland is that we are not seeing the use of prerecorded evidence we have huge challenges with special measures actually being implemented and that's only in criminal court so sorry convener to take you around to the what would be one of the key tasks of the commissioner is we would say scrutiny of current legislation and the lack of implementation of legislation that we've already passed and holding to account why that is the place why we continue to have excellent intentions but that do not deliver for children so do you think it would take a commissioner to actually do that review and do you think we should actually continue going with this bill just now or do you think there should be a halt to go in and look at all the previous legislation that's not been implemented i think that's a good question i don't know if i'm saying with hope and optimism we currently i suppose if it's another way to hold to account and to provide the level of scrutiny that's required on current legislation um then i have hopes that commissioner a commissioner could help us with that so i would say relative like i know the cabinet secretary was very keen to say it was not going to have any impact in terms of frontline services like that's a huge challenge for us obviously as a as a charity in the pressures that we face at the moment delivering for children but i think if it is one tool one mechanism which can help us look at why we have so much well intentioned legislation that has not been implemented then we would be we're content on balance to say let's explore this okay okay thank you very much i'll bring in poli mcneil and then Russell Finlay poli thank you very much um so what you're seeing um Dr louise hell is quite concerning then that we've been passing legislation in this parliament that's not been implemented so my first question is have you had this discussion with Scottish ministers wait i thought have you had have you raised these concerns with Scottish ministers we have and what response did you get from ministers i suppose an equal level of concern that the good intentions of legislation have not been implemented we have obviously have reflections and our understanding of the impact of the pandemic and what consequences that have had but you know that there is a level of concern that we continue to have this this gap of saying the special measures that we've introduced and have been you know a great in principle this leads us on to part you know between part two as well in terms of what we have in the vulnerable witness legislation the 2014 which should have been implemented that we just we just have a really significant lag in legislation actually being implemented to make a difference for children is it mainly around pre-recorded evidence or the other special measures that are not being implemented we have lots of examples of all the special measures just in terms of how it works in a in a practical route like evidence on commission we obviously have a huge challenge with but the not a challenge with it the challenge with it happening not a challenge with us us having that in place but we have lots of practical like you know the other week in sheriff court you know a young person that's you know practical things like the entrance the separate entrance all sorry that it's the wrong time so we can't unlock the door for you so you're going to have to walk past the accused we have children waiting in waiting rooms that have got no access to refreshments to drinks they're there off school so they're there all day and then told at the end of the day the case isn't going ahead I really want to address the question of special measures because as you see we've we've well I thought we had had significant reform to that so that would include screens yeah children give does that happen children giving evidence behind screens just in the spirit of trying to kind of manage our session can I maybe ask you to come back in with some questions about special measures just later on and we'll just focus on victims commissioner just now okay which is because that was what the evidence that was given last week thank you okay is there anything further I'll bring you in obviously later on Pauline no no that's my interest okay thank you Russell Finlay I'll bring you in this is quite a general question and the evidence from children's first they state that they're extremely concerned that large amounts of important legislation and policies are being introduced without any clear mechanisms intentions or resources to implement in full and you go on to quote attention and energy needs to be directed towards getting legislation that's already been passed implemented to make the intended difference and we've touched on this already but you cite two specific acts one being the children's scotland act 2020 large parts of which are still not enforced and the vulnerable witnesses criminal evidence scotland act 2019 which would allow all children to give pre-recorded evidence this is still only the early stages of being phased in so the question is do you have confidence that this bill if passed will be implemented in a timely manner or is there a risk that it will join the others in the sort of legislation limbo and perhaps what can we do about that other amendments we can do that will make a practical difference thank you thanks mr finlay I think the honest reflection is it's a concern because what we're doing with this piece of legislation is we're extending parts of legislation the children's scotland act 2020 that have not yet been implemented so you know that what we've got in place that should be for criminal courts we'd extend for civil and yet we don't yet see that in criminal so in terms of like I I I suppose probably share some views with Dr marcia scott and try not to do the academic take here but you know on what the data tells us what the evidence tells us and what we know around implementation and sadly we know that legislation is only one tool for culture change happening and it can be quite a blunt instrument at times for that change so one of the challenges I think we have is that we have a huge amount of energy that goes into the legislative process and I would say less resource and energy then into implementation and I think probably my panel might agree that the raft of legislation that we have to attend to often means that we're forced to move on to the next piece of legislation rather than being part I suppose constructively of looking what are the key drivers what's needed for culture change within the justice system to to ensure we make the difference that we want to which is intended which is the ethos that sits behind the legislation and I think we need to do a better job. If I can pull our questions back to victims question I'm really keen that everybody has the opportunity to to contribute on on that specific issue. My questions are solely about the victims commissioner. I'll just ask three brief questions to each of you if that's okay. Dr Hill, you talked about your good relationship with the Children's Commissioner and how you work well with that and then you spoke about problems within existing legislation etc. How do you see that role? I mean the Children's Commissioner should she not be taking that on or should that be the victims commissioner? Do you see a clash there? Thank you. It's not that we see a clash what we see is that clear roles and responsibilities and a recognition that what we wouldn't want is to child victims to almost fall between two stools because that sometimes can happen with if you have different roles of you know their children and they're also victims so I think they would just need to be real clarity of what the victims commissioner would cover. I think as I said in my kind of opening address that the concern just is that children need to be recognised that some children you know we have huge numbers of children that are victims so we wouldn't want the victims commissioner to say well children aren't my part of the house that can be dealt with with the Children's Commissioner so I think they'd have to be collaboration. You're looking for more clarity on that that's fine and I know you'll probably mention this later on but I just want to see the parents who's and you know going back to what you were saying earlier about nothing being done for children I think that's fairly significant and I know you will probably mention that later. Bill Scott can I ask you do you think there's enough in the bill about disability and inclusion and do you think that that's addressed enough in terms of the victims commissioner and his role in that respect? No I don't think that's enough in the bill. I'd have to give credit to a sister organisation People for Scotland they've done a lot of work in the criminal justice space to identify the needs of disabled people particularly learning disabled people but it also affects others to go back to vulnerable witnesses learning disabled people people with mental health issues can be deemed vulnerable witnesses but it needs someone in the system to identify them as such before an application can be made for them to be so deemed and the problem is that when people first undertook research where learning disabled people they found that there is there's no system used by the police or Procurator Fiscal's office etc to identify whether someone in fact has learning difficulties so if the system can't identify that the person has learning difficulties then they're not likely to apply for your vulnerable witness status and that means that people who are vulnerable are being exposed to quite traumatic situations where they've been victims of crimes or witnesses to crime and yet they're not being afforded the protection that they should be so more needs to be done in that space and the Equality and Human Rights Commission did research in 2017 and they found that in the majority of cases where learning disabled people were being interviewed under caution they were not afforded appropriate adult presence so if that's what's happening to accused what is happening to witnesses and victims I'm sorry to interrupt is that in your opinion that responsibility of their legal representation to make it clear that they need special measures and they are vulnerable yes but we go back to how do they identify what procedures are in place what systems are in place and that's where a victims and witnesses commissioner could make a difference by beginning to say to the police to procurator Fiscal's office etc what are you doing to identify whether a witness or victim is a vulnerable person and you know in general issue in reports saying it's not it cannot be correct that you know appropriate adults aren't in place when when interviews are being conducted so you know they can begin to address some of these problems but at the end of the day it comes down to will they make a difference will they take up that those cudgels on behalf of victims and witnesses if they do then they could make a difference over time and actually how much clout do they have as well exactly yeah thank you thank you Graham O'Neill the same sort of question to you do you think there's enough refugee recognition no I don't think so I mean it's a difficult one when how you want to treat refugee within legislation when you speak to people refugees and there's also quite strong reasons you don't always want to put refugee within private legislation obviously the exception of world-leading life-saving international instruments like the refugee convention which this current UK government are are serving in the UK from but that putting that to one side I mean Bill talked about the cut if the victims commission victim and witness commissioner took up the cudgels of exercising scrutiny that then had some enforcement teeth or had some kind of mechanism to ensure compliance by the responsible criminal justice bodies then we are very supportive in my open remarks I talked about the kind of regulatory gap there is in practice among our regulators and the inspectors in Scotland around refugee experience including within the criminal justice system and the more people get punted by the UK government as they are in its criminalisation agenda by the UK government the numbers of people subject to you know police Scotland in the Crown Office won't want this and we're with them on that but they are going to have more people who are in liable to the criminal offence of a regular arrival for example in the UK so including in Scotland more people in police cells there's been 4000 in the last seven years in police scotland cells a regular arrivals about 66 per cent we estimate are from traffic and survivor countries about over 70 per cent from refugee producing countries like Afghanistan, Eritrea etc so if it can take up the cudgels and exercise some genuine meaningful scrutiny that if they exchange then of course we'll be for that I mean there's a couple of really clear areas we would want to see a victims and witnesses commissioner you know be pushing and exercising that scrutiny so ones of the under reporting and under recording of hate crime is suffered by refugees because it's there we get it a lot in our services work and we have done for decades so and we've said to the Crown Office in the past we'd really like you to do some serious research into that and we really hope they do and the committee may consider the recommendation to that effected if it's okay for you just one other example to give I mean a cornerstone of international anti-trafficking law is the non-punishment principle that's an acutely vulnerable group of people that is people that have been trafficked into forced criminality forced criminal acts so maybe it's like an ador a young person or a child sometimes been forced into a cannabis cultivation you know organised crime always behind that the current law of advocates instructions which we support as a prevention mechanism within the 2015 traffic and exploitation legislation in the moment are not an effective safeguard against the injustice of such individuals been subject to criminal justice processes there's a complete reliance at the moment on the layered in home office national referral mechanism by the Lord Advocate and the solicitor general to wait for the home office and then average to take 450 to 550 days to issue what in the jargon is called a conclusive grounds decision whether somebody is recognised by the UK state through its home office as a trafficking survivor including these individuals who force criminality the Lord Advocate is in putting them completely in video's position by the layered in home office not national referral mechanism but what's happening is in practice hundreds of people over the last six or seven years have been left in criminal justice limbo who are actually survivors of forced traffic exploitation forced criminal acts which is unacceptable from our view from a human rights perspective I wonder if I can maybe just come in there yet obviously that you know there is extensive there's an extensive contribution that you want to make I'm just thinking about timing so if we've got time we'll come back to some of that I mean though it's just now that's absolutely fine of course conveyor it was just to conclude to say that you know 384 people over the last seven years have been through the law of advocates instructions against about whether the trafficking survivors have not only 10% that is 40 of those 384 have actually had their cases stopped at the by the national lead prosecutor at that point and the result of those that haven't had those cases stopped is most likely their left in criminal justice process as we hope and expect they've not actually be convicted of offences the reason I raise it is that's precisely the type of issue that if a victim and witness commissioner was able to take up the cudgels that's the kind of issue that we make a really profound difference we know and respect the independence of the law advocate we respect their dedication to this work and we've met the solicitor general to that effect the reason I'm raising it here is that at the moment we have no way as a national refugee rights and the anti trafficking sector I'm sure would concur with this to actually in Scotland get a grip on the issue there's a regulatory gap in practice is what I'm saying so we need to try and address it and that's why I think it's relevant so thank you for your patience okay thanks very much that thank you for your for badance I know that you're very passionate about that and we're going to bring in John Swinney and then I'll bring Katie Clark who's online thank you convener I'm interested in a Dr Hill on the opening part of your written statement which Sharon Dowell referred to earlier on where you said that a commissioner should not be brought in at considerable expense to act to act as a substitute for real action in improving the experiences of victims and witnesses such as consistently scaling up the Bairnsworth's model following the recent very welcome developments that the subject of my colleague Rowan McKay's debates in Parliament and we all know that money is tight so what's the priority okay so thank you for the recognition and obviously we are delighted to have opened Scotland's first Bairnsworth's the and it you know it's a phenomenal kind of time for us I suppose there is a recognition though that that funding did not come through the Scottish Government you know so we went through other sources because we've always said that we not only want to describe the problem for child victims but we think we have a solution and the Bairnsworth's is for us a solution so we but we really recognise and are thankful for the political support that we've got and we hope for the extended rollout that I suppose what we always loop that round to is will this make a difference for children and fundamentally for us the provision of the Barnahouse model will make a huge difference to children and their families so I don't yeah I don't know if it's a difficult position to say an either or in some ways obviously the commissioner role is the you know a collective advocacy point of view we would want them to be a huge champion for the barnahouse in terms of the costings and money being tight the purpose of barnahouse is it's one child friendly you know space house that means that children do not have to go to multiple different settings and that their evidence is taken at the soonest opportunity which would have quite considerable implement you know quite considerable kind of implications for not going through lengthy drawn out court processes which have you know considerable costs associated to them but you know we want barnahouse because it's the right thing to do for children so we're not saying it in terms of from a cost perspective but it's you know it's a kind of critical area I think for us that we want to make a difference on the ground okay okay and so it would be fair to conclude from that that if you had a choice over the same pot of money would you put it into a barnahouse rather than a victims commissioner thank you mr sweeney so I think fairly from the position that we have at children first and from listening to children our decision would be that we would put that money into a barnahouse thank you for that one other issue for me I hear what you're saying about the the absence of for the lack of references in the policy memorandum and documentation to the perspective of children what is it about the victims commissioner that you think can what do you think the victims commissioner could do that the children's commissioner currently cannot do in in asserting the interests and protecting the rights of children yeah so there's a there's a key kind of critical role that the victims commissioner could do which is in response to the scale of criminal justice reform that we have and we think that the victims commissioner could have an important loud voice in that process of which we have various pieces obviously of legislation and they could apply the pressure the scrutiny the accountability that's required from a victims perspective ideally for us in collaboration or in tandem with this being raised from the children's commissioner perspective child victims has not not to do any disrespect to an excellent children's commissioner's office but child victims has not been one of their areas of particular you know scrutiny or concern it's not been an area where they've looked at strategic litigation around child victims they've not had a particular kind of strategic focus on this group partly because their remit for all children over a million in scotland is is quite big so we understand that so i think that it is recognising that the victims what what our experience has been at children first is that we're often invited to meetings where we are the voice of raising the issues for children and we're often the only person at the meeting and there's many many that are advocating for adult victims so we would really want the victims commissioner to recognise the scale of harm and victimisation that we have of children in scotland and how their role can hold up some scrutiny and accountability on that matter thank you thank you and i'll bring in katie clark online katie katie do you want to come in your microphone seems to be showing as on or you can you hear us i can now sorry that it said that the host wasn't allowing me to unmute myself so apologies for that i think graeham has spoken quite powerfully of the need to strengthen the powers of the commissioner and louise about the implementation gap which is a powerful criticism not just of the scotish government and the justice system but indeed the parliament itself and its scrutiny role so i suppose what i'm interested in is why we would believe that another voice of criticism and perhaps focusing on some of the failures of the system is likely to be effective unless it has the power to intervene in cases and it may be that the panel all have a view on that i think graeham perhaps has already said that that power should be there is that the view of all of the panel dr hill do you want to start off and then we'll bring in bill yeah so um thank you for the question i'm not a legal expert so i'm just aware of trying to make sense of the range of evidence that's already been provided to the committee of potential complications of um the individual investigative powers that could come in place so i would say only from a very kind of basic perspective that it seems that there is strength amongst panels that have provided evidence so far that they think that it would have a role um i think it would need to be thought through very carefully um but we think if that would make a difference then you know we would be supportive of that i think we would be as well um in exceptional cases to have that investigate power yeah okay Katie no i think that's helpful so are all the panel agree that both investigatory ability but also the ability to directly intervene in cases is necessary for the commissioner to be effective is that a fair reflection on what you're saying okay i'm graeham do you want to come back on yeah i think it would need to be handled really carefully give them a ton of criminal matters so it's just to kind of say that you know that you know people's liberties at stake you know then depends into the lord advocates you know something that we have in scotland which is you know i suppose it's a for us it's a bigger deal here that needs to be worked through quite carefully if we're going to do that and now I raised the example i did with the with the chairs for bearings to to basically make the point that we do think there's a big problem there and we've we've employed in the jargon a lot of inside track work we're not just saying this today we've done this three years we've spoke with the crown office in police scotland about this and it tells us that there's there's a regulatory gap in the victim and witness commissioner could fill could fill that gap in order to fill that gap to suppose to answer part of your question Katie is that it would actually need to have teeth and it would have to a way to enforce things to happen at the moment i don't see that adequately within the legislation that's a part of that teeth making things happen may or may not be being able to intervene in individual cases but i think there's wider things it should be i would hope in the gift of the parliament in the Scottish government to do around strengthening the investigative powers in relation to the criminal justice sector and how it treats victims and witnesses yeah so for i mean one of the examples that was used by louise was the fact that the children aren't being allowed to give evidence remotely virtually is that something that there should be a legal mechanism if you like that the commissioner would be involved in so that there could be intervention is that the kind of area that you think would need to be explored to make this effective louise held your timing um thank you katey i suppose my like potentially sorry my head's going how would that that work and i suppose it's just thinking that how complicated some of our work is when it's live criminal proceedings that we're supporting children already and i think for us could i just say that the the ethos that is underpins our whole approach to supporting children through the justice system is not having to retell their story and involve lots of different professionals in their life unnecessarily like that is a key principle so i suppose i'm thinking about it in various ways of you know unintended consequences of potentially bringing another body and another person in when we have live cases that we would be incredibly careful and around that as a process so yeah there's an element of me that i'm like gosh it's complicated and an off katey if i'm honest of working it through i'm grateful for those answers thank you that's okay okay thanks very much okay i'm just watching the time and i'm going to have to move us on to looking at parts two and three so if we can i'll open it up to members to ask questions on part two which is embedding trauma informed practice so if any members particularly would like to come in full to mcgregor thanks convener in good afternoon now to the panel i want to ask about the trauma informed practice and for those of you i think i think it was all of you actually were in for the last session you have heard the discussions that we heard about the previous panel so i'm wanting a i suppose firstly a general response to what you think the what difference you expect or hope that the provisions will make in practice and i also want to ask you about the question that asked the previous panel as well is if you think that partly the intention of the bill is to create a cultural shift because again like the previous panel all all of yourselves and your organisations already use trauma informed practice with victims and people that you work with but how do you think that that can be increased across the whole justice system in what role can this bill have in delivering that and happy to start with yourself first dr howland and then okay thanks mr mcgregor so i suppose a kind of opening statement is that our whole system is not trauma informed and does not work for children so the the perspective that we would have is that our current system for children is highly traumatising and we know that through you know years of experience of working alongside children directly on trauma it should be deeply worrying and i know it is to the committee that the experience of court itself is more traumatic for children some have said than the actual experience of abuse and harm so that that's just worrying to put out in itself uh i suppose our reflections on it is there is a solution to this and the solution would clearly be for us that we do not want any child in scotland as a child victim or witness to go to court um we think that we have a pathway for this from the words of lord carlaway from the work of lady dorian on the evidence and procedure review we feel we have a roots now we've also had legal opinion kind of from eminent um qc on the possibility of the barnahouse but we feel that there's in some ways a very simple way of taking the experience of trauma in our justice system out for child victims and witnesses and our suggestion is that we stop making children go to court so that's a kind of basic for us so in some ways i could say what might it mean for us to do you know trauma informed training for judges and for sheriffs and yes fully you know to mean kind of supportive of that but my very strong preference and the preference from you know my colleagues across children first is there's a much easier route to this that we stop making children have to go to court and the deep worry i suppose that we have is that although there has been you know since 2013 statements to say and cross political kind of support to say that we shouldn't be doing this and that we know certainly as a research perspective how re-traumatising the experience of going to court is for children that you know we continue to be in a position where it happens and it happens daily um for the children so so where do you think the stumble and walk in the system is because you're absolutely right there's complete cross party support for children not been in court as an ordinary occurrence i thank the justice committee in the previous session the vulnerable witnesses bill that you mentioned that the previous there was other previous bills as well as the drone in mackay so where is the stumble and walk in the justice system that kids are still contained to court that you know where is it and how can this bill help to address it so i think you you taught mr mcgregor about about culture change and we face i suppose just huge resistance to change of a very traditional adversarial system so despite what the research evidence tells us despite the international learning that we have but we continue i suppose to have the on the ground challenge of almost a wish to see children in court we have lots of examine we have lots of examples still of children being cross examined in a court setting even though we said that that wouldn't happen anymore you know we have some awful examples of that regularly we have examples of children not going to court going to a vulnerable witness suite but the experience of that still being very traumatic for them so for example one of the girls that's been involved in our change makers and our sharing stories for change work you know said that you know her mum had to go and give evidence on the same day so her mum who's her comfort blanket you know who's that rock throughout all what's happened to her she has to go so you know we you know we're supporting her at children first but we're going along to a vulnerable witness suite and she you know she talks about what that experience is like and it's better perhaps than they're going to court but it's still not in any way a trauma informed response to children so you know what can this bill do i suppose possibly as currently framed in in part two it's it's it's still tinkering around the edges for us it's still kind of saying let's let's make sure we have trauma in front like we obviously are huge advocates for that and support for it but into what we don't want to do is just make people a little nicer and understanding and understand a bit about child development in the traditional court system and we still put children and families through that when we know that that is a source of trauma in itself i think i read through some of the written evidence that was sent to the committee and the fact that advocate says the fact that we remain to the view that legal professionals within the justice system already possess the necessary skills and experience required to recognise and adapt practices for the benefit of persons who may have experienced trauma beg to differ. Professor Sharon Cowan carried out research on behalf of the DHRC in 2020 that looked at the use of section 275 applications in cases of rape and what her findings were based on because she says there's very little data available, the last data available was produced by the justice secretary back in 2016 which showed that 90% of section 275 applications went through unopposed by the crown and that was almost exactly the same statistic as in 2003 when those statistics were last revealed to the public before 2016. They are not routinely collected so we do not know what the current situation is. That is where a victims commissioner could step in and again to come back to it why this is particular importance to disabled women, twice as likely to be subjected to sexual abuse and rape and the victims are not being protected by the system. Prosecutors do not routinely object to the defence exposing the sexual history of women in court even though the law says that that should be the exception rather than the rule, it's the rule, 90% go through unopposed. We need somebody to stand there and say to the faculty advocates look into this mirror and tell us what you see because you need this training, you need to adopt trauma and for practice because you are not doing it at the moment, you are subjecting the victims of crime to additional trauma, putting them on trial when in fact they are the victims. It sounds like you are saying there Bill that we need part one the introduction of victims commissioner to almost enforce part two. That's where the company regulates functions and things like that. We would like to see the victims commissioner with teeth. I'm conscious of that. I'll leave that to the convener or not to make a judgment. I just want to ask if Graeme O'Neil can come in from her FUG perspective on the question I've asked and then that's me finished. Thank you. Just the way we concur particularly with what Lee's and Bill was saying. If people look in the mirror, I think what the faculty advocates and other CLC people at me, white, middle class, lifestyle and quite small C conservative that has been trained in schools, which is understandable, quite conventional legal procedure in ways of doing things and it's in a setting, an inherently adversarial setting so I suppose that the fact that if one's trying to cultured at the second part of your question floating around, if one's trying to make cultural change within the criminal justice system, then it needs to be a structural change. In a structural change, I don't see it yet within this legislation so it needs to be about serious investment that supports everybody, both victims, witnesses and the staff who are working in that system too to be dealing with the trauma that they're experiencing and hearing also. That kind of lack of holistic investment seems to be there. Refugees, as I said in my opening remarks, highly traumatised population, significant additional vulnerabilities around and our context language support needs, putting people on that into an adversarial situation is inherently traumatising. It will be bamboozling for people as well and we would imagine that there's quite significant access to justice issues that are experienced. Some of the examples that we've had over the years and some of our services, we're not confident that criminal defence lawyers in Scotland actually do adequate representation work for people of refugee background in relation to their rights and criminal justice settings. John Swinney and Rona Mackay both want to come in with some follow-up questions, if you can be fairly succinct, so I'll let John Swinney first and then Rona. Sure. In my likewise, convener, I just want to follow up the exchange between Mr Scott and Fulton MacGregor a second ago, when Mr Scott was making the point that there is a need for a wider scope around those who should carry the obligation to be trauma informed. I'd like to put to Mr Scott the point that I put to the previous panel as to whether the list of persons to which those obligations should apply, which again for the record are in the 2014 legislation, the Lord Advocate, the Scottish ministers, the chief constable, the Scottish court service and the parole board needs to be expanded beyond that level. Does he have anyone in mind? Well, some of the other agencies that were mentioned earlier, social work and housing, very definitely need to be trauma informed because, as I say, there is actually sometimes quite a lot of support there for accused people within the system, but for victims and witnesses, there isn't as much and certainly social work support. I'm thinking of vulnerable witnesses again in terms of learning disabled people. Many of them are known to local authorities, but they're not automatically deemed as vulnerable within the courts and they still have to have the application. Yet, if they're known to local authorities, why aren't they automatically deemed as vulnerable? In other words, I'm saying when you're looking at the civil cases as well, because I know we're not going to get on yet, I think there are grounds there for treating some witnesses as automatically vulnerable who are not currently treated as such. And what about legal profession? I think legal profession should be able to get very, very definitely. As I say, there's a difference between independence and accountability, and the legal profession should recognise that. Yeah, just very briefly for Graham, and I'm asking you a question. I should probably know the answer to just for clarity. Do refugees currently have the right to language support and interpreters when they go to court? Yeah, they do in terms of criminal justice settings, yes, but it's not that, but the deeper issue to emphasise here is a lack of interpreters, and I suppose that one of the things that we think is definitely the Scottish Minister's gift is to introduce some serious regulations to ensure standards across the board for interpreters, both in terms of the training of them, the regulation of them, and then, of course, through those two things, the capacity, the amount of interpreters, there's a huge interpreter gap in the nation. And in the civil side, is that a recognition? I'll confess for the record, I'm not saying that, but I can certainly get that to you after. Okay, thanks very much. I'm going to move on, just the back, I have 12, so I'm just going to move on to part 3, if I may, which covers special measures in civil cases. I interrupted Pauline McNeill in our questioning earlier on, so I don't know if he would like to come back in at all, Pauline. Thanks, convener. I suppose that I was just generally trying to understand, since Dr Louisa had said that, of all the legislation that we had passed here, a lot of it's not been implemented, and I was just trying to establish so what measures are being used in court currently. So, I suppose, I don't want to say the kind of postcode lottery, but we just find a real mix for even on the day of what children experience in terms of which special measures might be in place, so that might be about whether or not they are a vulnerable witness, whether or not they go into a vulnerable witness suite, it might be whether or not they are going to court, and screens are being used, separate entrances might be being used or might not, there might be consideration of a safe space for the child and family. The challenge that we often have is that it's really difficult for children in taking them to courts and vulnerable witness suite spaces. Does someone not have to apply for special measures for the child, so is that not being done? It is done, but often the decision isn't being made or isn't being communicated in time, or it is being done, they're supposed to happen, and then often what happens for us is your turn up on the day, and there's no screen that's been put in place. It's funny that something that just is so fundamental, often in our experience, and I'm not saying all the time that we have some good examples as well, but in many circumstances we're still having the, it's only by having our own project workers that are alongside that family that's saying, this needs to be in place, and we have to be very... Statistically clear, you've got cases where special measures have been applied for, but not implemented by the court. Anybody else want to come in on special measures? I wonder if I may just finally open up the question generally, and maybe also get Graham and Bill's views on the provisions. In your view, do you feel that part three of the bill sufficiently strengthens the protections that are available to witnesses, vulnerable witnesses in the civil court space, if you like? So it's quite an open question, but I'll maybe bring Graham and then Bill, and if Dr Hill wants to add anything in. So Graham first of all. Yeah, I'm just going to be very honest and straightforward with the committee, we'll