The review group, tasked with improving the Scottish Criminal Justice System for the management of sexual offence cases, have now published their findings and recommendations on 18th March 2021.ⁱ The focus was to improve the system for the complainers and the vulnerable witnesses, without compromising any of the rights of the accused.

The review was chaired by the Lord Justice Clerk, Lady Dorrian. The comprehensive review includes a number of recommendations that, if accepted, would entirely reform this part of the Criminal Justice System.

It has proposed that a new, national specialist Court with trauma-informed procedures, be created to deal with serious sexual offence cases in Scotland. The recommendations also included that only lawyers, including the High Court Judges and Sheriffs, who had been specially trained in dealing with vulnerable witnesses, would operate in the Court and there would also be changes to jury involvement. There are also proposals to change aspects of the Children’s Hearings System including, trauma-informed practice and nationwide specialist training for interviewing children.

At this stage, the review is only providing recommendations. It has been passed to the Lord Justice General, Lord Carloway, to consider if any of them should be adopted into the Criminal Justice System. They will not be considered until May 2021, following the formation of the next Scottish Government.

Following the publication of the review, there has been some concerns raised that it is a step too far to remove the jury from the criminal justice process and that it may mean that the voices of the innocent accused would not be heard.

The rights of the accused were considered in making the proposals. The review has had an overwhelmingly positive reception from charities and support groups that work with survivors every day, including Rape Crisis Scotland. The changes outlined would be welcomed. There is no doubt that the current adversarial system causes’ significant fear and distress to the majority of survivors that have gone through the process. It is estimated that only a very small percentage of survivors report the assault for fear of not being believed and also, because of fear of the current system.

During the course of the past year, there has been a significant increase in sexual crimes and violence, as it is an unseen consequence of the lockdowns, which is a concern that I have discussed in a previous blog: COVID 19 - When your home is no longer your ‘safe’ place  However, the statistics relate to the reports made. It is feared that the real effects of lockdown will never be fully known.

The review has meant that there is genuine opportunity for reform within the Criminal Justice System within Scotland. It would create a complainer centred approach that is not seen in any other country. For survivors of sexual crimes, this would be considered a significant step in improving the process but, would also open the doors for access to justice.

Blog by Emma Wheelhouse, Solicitor

[i] Improving the Management of the Sexual offence Cases, Final Report from the Lord Justice Clerk’s review Group, March 2021