Can Scotland afford to deliver justice for victims?

The Lord Advocate told MSPs last week that the prosecution of sexual offences in Scotland is "just not good enough" and that fundamental reforms are needed.

Dorothy Bain KC gave an impassioned plea for setting up of a new type of national court to handle such cases, currently dealt with mostly in the High Court and sheriff courts.

The new court is one of the main proposals set out in the landmark Victims and Witnesses Bill to address the shortcomings, would be distinct from the existing types of court, and would be established across Scotland to hear the most serious level cases involving sexual offence charges, as well as any accompanying non-sexual offence charges including murder.

The bill also makes provision for judges sitting in the court to have sentencing powers up to and including life imprisonment and the power to issue an Order for Lifelong Restriction (OLR). All judges, advocates, solicitors, clerks and other court staff would have to be especially trained in managing sexual offences.

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"The creation of a new court with new procedures and practices presents an opportunity for positive, radical change in the way that the criminal justice system approaches sexual offending," Ms Bain told Holyrood's criminal justice committee last Wednesday.

"I say that because the level of offending, the volume of casework and the current system that is operated by our courts mean that we simply do not have the ability to support victims of sexual crime and commit our prosecutors to those complex cases in the way that such cases deserve and require.

"The fact that so many victims of sexual crime report that they have no confidence in our system is easy to understand, and one can see why that would trouble the Crown Office and Procurator Fiscal Service deeply."

The proposal was among the recommendations made in a 2021 review by Lady Dorrian, the country's second most senior judge, the Lord Justice Clerk, into the management of sexual crimes.

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Lady Dorrian also put her arguments to the criminal justice committee last Wednesday into why she believed a new court was needed.

She said the proposal was agreed upon unanimously by her review group.

"What was needed was a court of full national jurisdiction, with trauma-informed practices embedded, common training of individuals across the court, procedures that are uniformly applicable," she told MSPs.

The proposal was recommended by Lady Dorrian in 2021, where last week she put her arguments to a committee (Image: Scottish Parliament)
It is clear the legal establishment is strongly supportive of plans for the new court.

Survivors of sexual crimes and groups representing them – who are due to give evidence to the committee this Wednesday – are also much in favour.

However, there may be a question of affordability under the Scottish Government's tight financial situation with many public services facing cutbacks.

Under questioning from Scottish Conservative MSP Sharon Dowey, the Lord Advocate pointed to significant additional costs to run the new service in part due to the volume and complexity of cases that will be heard there.

Sexual crime has increased to make up almost 70% of High Court cases, she said, forecasting a 86% increase in such cases in the coming years.

Ms Bain added that the average cost per case for prosecution is around £75,000 in the High Court and £7,234 per case at sheriff and jury level and projected that a prosecution in the new sexual offences court would be around half of that in the High Court, which would be £37,157.

"That would mean an additional cost of about £17 million per annum – if the cases were moved from the sheriff and jury level into the special sexual offences court," she said.

It is clearly a considerable sum.

Already the Crown Office's budget has grown from £184m in 2022/23 to £199m in 2023/24 and to £223m in 2024/25, according to the Scottish Government's budget proposals published last month.

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So understandably, while ministers want to act to address weaknesses in the prosecution of sexual violence cases, it will be up to MSPs to press ministers on why there has been such an increase and how they plan to tackle the root causes – not just to prevent people suffering from sexual crimes, but also to alleviate the pressures the problem is placing on the public purse.

And with the budget proposing to reduce funding to tackle child poverty from £111m in 2022/23 to £43m in 2024/25, and housing by £200m, for instance, they may well ask if such cuts risk making more women and children vulnerable to predatory men and increase the number of attacks taking place.