Seòmar agus comataidhean

I have nothing further to say. I press amendment 105.

Amendment 105 agreed to.

Section 18—Meanings of “young offenders institution” and “young offender”

I am sorry, but I am already responding to another intervention.

With regard to the resource challenges that Mr Whitfield referred to, I understand what he is saying—indeed, I do not want to say, “No, we can’t do this.” However, for the reasons that I have outlined, if the amendments were to be agreed to in their current form, they could impact on children’s rights today and tomorrow, and I am not comfortable with that. Might that be something that we need to look at as we move forward? Absolutely, but, as I have said, the amendments could impact on children’s rights immediately.

As for the co-accused issue, it will again be down to the court to look at that on a case-by-case basis. I think that the amendments are problematic for a number of reasons, including, as I have said, the fact that the co-accused’s rights appear to have been given less weighting than the child’s rights. I appreciate the member’s comments in that respect, but, again, it should be down to the courts to make that decision on a case-by-case basis instead of our putting it in statute. As I said in my opening comments, under human rights law, a right does not require serious interference to be infringed, and I think that this particular amendment distorts the existing legal protections and confuses matters.

Summing up, I believe that a lot of what is covered in the amendments is already covered under the ECHR and the UNCRC, and we have to give the judiciary and the courts discretion to look at matters on a case-by-case basis. As a result, I do not support the amendments.

Good morning, everyone.

Sections 12 and 13 of the bill as introduced place restrictions on the reporting of certain information that could identify a person in relation to an offence or suspected offence that occurred while they were children, whether they were a suspect, a victim or a witness in relation to that offence. The restrictions apply respectively before, during or after any court proceedings in respect of the offence.

On introduction, the bill did not make provision to allow such persons to self-identify by publishing information that was covered by the reporting restrictions without committing an offence, unless a court had dispensed with those restrictions or they had otherwise come to an end. Therefore, it could potentially have criminalised a person for publishing their own information.

That approach was criticised by stakeholders, including the campaign for complainer anonymity and the Children and Young People’s Commissioner Scotland, at stage 1. We accept that it did not necessarily strike the correct balance between children’s rights to freedom of expression, autonomy and control over their own information and experiences and their rights to privacy and protection of other rights in the context of their evolving capabilities and development.

Therefore, the amendments in this group make provision to enable a person to self-identify by publishing information that would otherwise be subject to a reporting restriction, without committing a criminal offence.

Amendment 24 will enable a child victim or witness to self-identify prior to any court proceedings for the alleged offence when a court has not already dispensed with reporting restrictions.

Once court proceedings have been raised, amendment 48, which seeks to insert new subsection (1BB) into section 47 of the Criminal Procedure (Scotland) Act 1995, will enable a child victim or witness to self-publish information that can identify them at any stage of proceedings without seeking the prior authority of the court to do so. That echoes the provisions that are made in the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to victims of certain offences that are listed in that bill.

For those persons who are suspected, accused or convicted of committing an offence in childhood, because the considerations are particularly nuanced, that has resulted in provisions that are slightly different in scope. Before any court proceedings, those persons will therefore be able to self-identify only with the consent of the court, as provided for in section 12 of the bill. That is in recognition of the different risks involved for child suspects, which include the risk of self-incrimination during an on-going police investigation.

Moreover, once court proceedings have been raised, as is provided for in amendment 48, which seeks to insert new subsection (1BA) into section 47 of the 1995 act, those persons will be able to self-identify only on the disposal of proceedings, in line with other provisions in the bill. The intention is to prevent other risks from arising, including to the right to a fair trial, whether of the accused or of other persons.

Amendments 49 and 50 are consequential to amendment 48.

We consider that the provisions that are proposed by the amendments in this group strike a more appropriate balance, and I ask the committee to support them.

I move amendment 20.

The group contains a large number of amendments that cover a wide range of important areas. Some of the amendments are quite technical, so I require to speak to each of them in turn.

First, there are a number of Government amendments that concern dispensing with reporting restrictions. Those follow on from the amendments that we have just debated, concerning a person’s right to self-identify through publishing information that is otherwise subject to a reporting restriction, without committing a criminal offence.

Amendment 42 is my main amendment on the topic. It would insert new section 106BA into the Criminal Justice (Scotland) Act 2016 to enable an application dispensing with reporting restrictions to be made in relation to the publication of information relating to a child victim or witness to a suspected offence when no court proceedings are already under way in respect of the offence. That reflects provisions in the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to victims of the offences to which that bill applies. It would essentially enable a person other than a child victim or witness to whom information subject to a reporting restriction relates to apply to the court for an order to dispense with the restriction in order to be able to publish that information. The granting of any dispensation order would, however, be subject to important safeguards. It would require the court to have regard to the best interests of the child as a primary consideration and to consider any relevant representations made by or on behalf of the child or by anyone who is considered to have an interest in the application.

Moreover, the court would also require to be satisfied that the child has understood and appreciates the effect of any dispensation and has given consent to the publication of the information, and that there is no good reason why such an order should not be made. Subject to those safeguards, it would enable a child victim or witness to consent to a third party publishing the information rather than the child self-identifying through publishing their own information.

Amendments 32 and 41 make changes to new section 106B of the 2016 act in consequence of new section 106BA, so that section 106B will now apply only to dispensing with reporting restrictions in relation to child suspects. The new section 106B power remains different in scope from the new section 106BA power. Just as with the provisions on self-identification, there are different considerations in play in relation to child suspects, given the potential adverse impact on future police investigations and, beyond that, fair trial rights.

It would remain possible for a suspect, constable, prosecutor or a media representative to apply for a dispensation from reporting restrictions and for the court to grant that if it was satisfied that it was in the interests of justice. However, Mr Whitfield’s amendment 191 proposes the wholesale removal of new section 106B, which would mean that there would be no scope at all for reporting restrictions to be dispensed with prior to any court proceedings, whether in relation to a child victim, witness or suspect.

Although I appreciate that Mr Whitfield might not believe that a media representative should be able to apply to the court to have such reporting restrictions lifted, the removal of that entire section would mean that a constable or prosecutor would be breaking the law by publishing any identifiable information in relation to a child suspect. Police Scotland and the Crown Office and Procurator Fiscal Service have been clear that they require the ability to do so in some form. Publication of such information could be crucial for the protection of that child or other people and could seriously interfere with the ability of those organisations to investigate crimes and prosecute. That would be to the detriment of everyone involved and could interfere with the ability to protect the public and children. Moreover, even in the case of a media representative making the application, it can be legitimate for the court to consider whether reporting restrictions should be lifted where it is satisfied that doing so is in the interests of justice.

I therefore urge Mr Whitfield not to press the amendment, and, if he does, I urge the committee not to support it.

I will turn back to my amendments. Amendment 60 would insert new sections 47ZA and 47ZB into the 1995 act to make provision enabling applications to the court to dispense with reporting restrictions in relation to the publication of information, respectively, in relation to a child accused after the disposal of any court proceedings and in relation to a child victim or witness during or after the completion of court proceedings. Amendments 44 and 45 are consequential to amendment 60. The amendment broadly ensures parity in terms of the provisions on dispensing with reporting restrictions, whether prior to, during or after any court proceedings.

Ruth Maguire’s amendments 137 and 138 concern the court’s powers to remove or reinstate reporting restrictions. Before I come on to those amendments, I want to state that I recognise that the intention behind those amendments and her other amendments, to be debated in a later group, is to seek to reduce the trauma that is experienced by those who lose a child as a result of crime. I understand Ms Maguire’s motivation for lodging the amendments and I acknowledge the letter that was sent to me and a number of other ministers from families who have been bereaved by a crime, calling for change in this area. That letter was followed by a similar letter from a number of organisations.

The Government is absolutely committed to considering the issue in more detail and in discussion with those with lived experience, victim support organisations, academics, legal professionals and media representatives. To that end, the Cabinet Secretary for Justice and Home Affairs provided further international evidence to this committee and the Criminal Justice Committee in a paper of 23 January, which I think it is important that we reflect on. The Scottish Government is also hosting a round-table event with victims organisations and a range of partners in February to discuss experiences and options. The cabinet secretary and I are committed to working with Ms Maguire and other members on the matter, but we need to take the necessary time to do so.

In respect of amendments 137 and 138, at this stage and as drafted, I have significant concerns about how they could work in practice. I note that officials in the criminal justice agencies have raised concerns with my officials about whether the amendments would be enforceable in their current form. In the case of amendment 137 and an order made under its proposed new section 106C, vast resources would be required to identify all publications breaching the order and ensure that they were removed or withdrawn from public availability. Such is the media landscape that publications, publishers and broadcasters may well be located outwith the United Kingdom, and so publications might have reached an international audience. There are also questions about the value of such provisions, given that once there is widespread knowledge of an individual’s identity it is impossible to completely retract that information.

Today’s media landscape is almost unrecognisable from when legislation on reporting restrictions was first introduced. It is no longer limited to the traditional print and broadcast channels but ranges from international news agencies to individuals posting on public forums, with an exceptional growth in the number of self-published authors, bloggers and influencers. That has been reflected in the updated definition of “publication” in the bill. Many people who are outwith the larger media organisations do not have ready access to legal teams to advise them on what can and cannot be published. It is therefore essential that, as far as possible, provisions on anonymity are unambiguous and offer legal certainty—a sentiment that has been echoed by academics from the campaign for complainer anonymity at Glasgow Caledonian University.

The ability for the restrictions to be applied retrospectively; to be varied or revoked in relation to particular information, people or publications; and to be reinstated at any time following expiry could lead to considerable confusion and the risk of criminalising those who are unaware of or unable to follow repeated court orders on varying, revoking or reinstating restrictions.

We must balance our desire for appropriate safeguards and protection with the principles of open justice and freedom of expression. Although the powers of removal rest with the courts, which would need to take decisions in a way that was compliant with the European convention on human rights, it might be difficult, if not impossible, for a court to exercise those powers in a rights-compatible way in order to identify relevant published information that should be removed or reinstated or to identify who was responsible for that.

Once information has been published in breach of any restrictions, the person who was originally responsible would have no control over how that information might then be used or disseminated by others.

In summary, a host of legal complexities require further consideration and consultation in order to establish how measures would realistically work in practice.

Ruth Maguire’s amendment 138 provides a further power to reinstate reporting restrictions following their removal and raises similar concerns to amendment 137 with regard to its workability, enforceability and potential to undermine legal certainty.

For the reasons that I have outlined, I am unable to support amendments 137 and 138, and urge Ruth Maguire not to move them. However, I am fully committed to further discussion and engagement on how we better protect the privacy of those bereaved by crime, which the committee will discuss shortly.

The next amendments concern the removal of the power of the Scottish ministers to dispense with reporting restrictions. The Government’s amendment 51 would mean that the Scottish ministers would no longer have the power to dispense with reporting restrictions after the completion of court proceedings. Consequently, only a court would have such a power, under section 47(3) of the Criminal Procedure (Scotland) Act 1995, to dispense with reporting restrictions on disposal of the proceedings. That change will locate such decision making solely with the courts.

Amendment 51 follows the compelling stakeholder evidence, including from the campaign for complainer anonymity, which stated:

“We believe the courts are the only appropriate forum for making decisions on whether reporting restrictions in cases involving children continue to apply or are set aside.”

In practice, as it stands, the ministerial power is partial in that ministers can dispense with reporting restrictions only after the completion of court proceedings, and that would only be before the child turned 18, when reporting restrictions automatically lapse.

In the future, it is likely that decisions about dispensing with reporting restrictions and/or extending restrictions beyond the child turning 18 will be made at the completion or disposal of proceedings. If the restrictions are extended beyond a child turning 18, there are provisions to enable the order to be reviewed or revoked.

Leaving decision making with the court brings a number of advantages. Judicial decision making can benefit from hearing the full evidence in a case, with in-built appeal provisions, in a way that the ministerial power could not. That is particularly important given the huge implications and potential risk for the child involved if reporting restrictions are dispensed with, including in respect of children’s rights. The change would also afford consistency with the Victims, Witnesses, and Justice Reform (Scotland) Bill, which was introduced in April 2023, under which ministers have no powers to dispense with reporting restrictions for cases covered by that bill. Amendments 61, 68, 69, 72, 76 and 81 are consequential to amendment 51.

Government amendment 62 concerns the right of appeal under section 47A of the 1995 act. The bill as introduced makes provision for a child accused, a child victim, a child witness or a prosecutor to appeal the court’s decision to dispense with reporting restrictions. Amendment 62 provides greater clarity on the ability of victims and witnesses to appeal that decision. That is an important change to ensure that the ability of victims and witnesses to exercise that right is as well understood as possible.

I move on to the amendments that concern the extension of reporting restrictions. On introduction, the bill did not allow reporting restrictions for victims and witnesses to extend beyond the age of 18 or the conclusion of proceedings, if that comes later. That was to enable victims and witnesses in adulthood to self-identify, should they wish to do so. However, as we debated in the previous group of amendments, the proposed amendments would enable child victims and witnesses to self-identify at any point without breaching reporting restrictions.

Various stakeholders, including the campaign for complainer anonymity, Together Scotland and the Children and Young People’s Commissioner for Scotland, criticised the fact that, while the bill as introduced enabled a child accused to seek an extension of reporting restrictions, no similar provision was made in respect of child victims and witnesses.

That is addressed by Government amendment 65, which amends the power in new section 47B of the 1995 act to extend reporting restrictions in relation to child victims and witnesses. Amendments 66 and 67 are consequential to that. Moreover, Government amendments 54 and 55 would also enable child victims or witnesses to appeal any decision to extend or not extend reporting restrictions in the same way as a child accused. Those amendments now ensure parity between a child accused and a child victim or witness in relation to decision making around extensions of reporting restrictions.

I understand Ruth Maguire’s intention behind and motivation for lodging amendments 147 to 150 and 192 and the associated amendments. They, too, make provision for the extension of reporting restrictions with associated rights of appeal. The amendments appear to have a similar intent to the Government amendments that I have just described.

However, the Government’s amendments go further in some respects, as they extend to child witnesses as well as child victims. I am concerned that Ms Maguire’s amendments would not extend to child witnesses. I strongly believe that child victims and child witnesses should have the option to apply to have reporting restrictions extended, in keeping with our person-centred and trauma-informed approach. To limit that to child victims would mean that child witnesses could miss out on those important protections and benefits into adulthood.

Although I acknowledge that Ms Maguire’s amendment 148 would also enable extensions of reporting restrictions in relation to deceased victims, I have concerns about the extension through the bill of provisions in relation to deceased victims and the potential adverse consequences of that. I will address my concerns when we come to debate the issue shortly.

If an extension has been granted at the request of one family member but another family member wants to identify the deceased child publicly, they would have to apply to the court to have the order varied or revoked, with the emotional and financial costs involved. Failure to do so could result in that individual, and anyone else who subsequently published that information, being criminalised, adding to the trauma for that individual and their loved ones. There could be different views between family members and it is unclear what would happen in such situations.

Another concern is that extending the protection to deceased victims could inevitably extend the protection to those who commit offences. We must keep it in mind that, tragically, the majority of child homicide victims are killed by a parent. It is hard to understand how you could identify one without leading to the identification of the other.

I am therefore unable to support Ruth Maguire’s amendments, for the reasons outlined. Again, I urge her not to move them in return for a commitment from the Government for further discussion and engagement on this deeply important issue, allowing time for the level of detailed consultation and consideration that we have committed to, in which I know that Ruth Maguire is keen to participate. As I said previously, the Government is keen to seek a solution to the issues raised by bereaved families and victim support organisations and to engage on those issues in an open-minded way, but it is essential that we fully explore the complexities involved to avoid any unintended consequences from making such a significant and expedited change to the law. I note that the issue has potential implications for the Victims, Witnesses, and Justice Reform (Scotland) Bill, which also includes provisions about reporting restrictions for the protection of other victims of offences under that bill.

Instead, I ask members to support the Government’s amendments concerning the extension of reporting restrictions. I firmly believe that the Government’s amendments are more consistent with our trauma-informed approach, provide equality for child victims, witnesses and accused, and bring greater consistency with the provisions under the Victims, Witnesses, and Justice Reform (Scotland) Bill.

Finally, I will address the Government’s amendments concerning the application of the public interest test, which should inform decision making by the courts in relation to dispensing with reporting restrictions or not. In further support of Scotland’s incorporation of the United Nations Convention on the Rights of the Child, the amendments vary the tests to be considered in making decisions regarding reporting restrictions.

Amendments 70, 71, 73 to 75, 77 to 79 and 82 make further amendments to new section 47D of the 1995 act, as inserted by section 13 of the bill, which makes provisions for the court’s application of the public interest test in relation to decision-making around dispensing with or extending reporting restrictions.

In relation to decisions concerning a child accused, amendment 73 ensures that their best interests must be regarded as a primary consideration.

Amendments 75 and 79 concern decisions in relation to a child victim or witness. Amendment 79, in particular, would mean that, when a child victim or witness is under 18, the court should regard the best interests of the child as a primary consideration and should have no regard to the length of time until the person will reach the age of 18. That is because reporting restrictions might not cease when a child turns 18, as debated elsewhere in this grouping. That will bring consistency with provisions for a child accused and it should address the concern raised by stakeholders about differential provisions in relation to consideration of those matters depending on whether they relate to a child accused or a child victim or witness.

Moreover, the amendments reflect the call made by stakeholders during stage 1 that the best interests test should be more consistent with the language in the UNCRC.

Members will be pleased to know that that concludes my discussion of the amendments in the group. I urge Martin Whitfield not to move amendment 191. I likewise urge Ruth Maguire not to move her amendments pending further exploration of the important matters that they and her other amendments raise.

I move amendment 21.

Amendments 22 and 46 will mean that reporting restrictions will apply from the point that a child aged under 18 becomes a victim of, or a witness to, a suspected offence, and will continue to apply until the disposal of any criminal proceedings, even where the victim or witness has subsequently turned 18. That will provide parity with the provisions for child suspects and accused, and will avoid a situation in which a child suspect or accused and a child victim or witness both turn 18 prior to the commencement of proceedings but do not both have the protection of reporting restrictions remaining in place, including in the event of subsequent court proceedings.

The change will bring greater parity of protection and address concerns that were raised by stakeholders, particularly victim support organisations. At introduction, the bill was framed to enable childhood victims and witnesses to self-identify in adulthood. However, following amendments 20, 24 and 48 to 50, which were debated in the previous group, the bill will now allow victims and witnesses of childhood offences to self-identify at any point in proceedings without breaching reporting restrictions.

The provisions in amendments 22 and 46 are more consistent with our trauma-informed and person-centred approach and will ensure that those who are victims or witnesses when aged under 18 have their privacy protected, regardless of the date of publication or when criminal proceedings are commenced, if they are commenced.

I move amendment 22.

Amendment 22 agreed to.

I will address that in a second.

As I was saying, I reiterate the commitment to considering the issue in more detail. I appreciate Ms Maguire’s comments about wanting action, not just discussion. I believe that the steps that the Government is taking are leading towards that. The round-table event is focused on deceased victims. As far as I am aware, victim support organisations will be at the event. I am not organising it, but I am more than happy to seek out information on who will be in attendance and provide that to the committee.

The amendments as drafted have the potential for unintended and adverse consequences that could negatively impact on the very people whom they seek to support. It is for that reason that the Government will work closely with Ruth Maguire and other members as we fully consider these matters.

Amendments 124 to 136, taken together, seek to extend reporting restrictions in relation to publication of information that could identify deceased child victims of a crime and their families prior to any court proceedings, thereby providing a right of anonymity. As I said, I have concerns about how certain aspects of the amendments could work in practice. For example, they would require bereaved relatives to go through the emotional and financial costs of applying to court to be able to publicly identify their deceased child as a victim of crime. Also, they could risk criminalising, for example, the child’s peers who wish to publicly express their grief at the loss of their friend in such terrible circumstances and who may not understand that there are any restrictions—

Convener, I know that you want to get through a lot of business today. All the amendments in this group are minor and technical. I am more than happy to go through them in detail and explain any of them, if committee members desire that, but I am equally happy just to move amendment 26.

Amendment 26 moved—[Natalie Don]—and agreed to.

Amendment 127 not moved.

Amendment 27 moved—[Natalie Don]—and agreed to.

Amendment 128 not moved.

Amendments 28 and 29 moved—[Natalie Don]—and agreed to.

Amendment 129 not moved.

I appreciate the intent behind the amendments, but I have concerns and issues with each of them, which I will lay out now.

Amendments 193 and 194 are similar to amendment 165, which the member withdrew last week, in respect of the children’s hearings system. The amendments seem unnecessary, as the courts already have extensive obligations under the ECHR and the UNCRC. Additionally, the task of balancing a child’s rights and their welfare can be even more challenging in the criminal justice system. For example, a child’s right to liberty is not a definitive one and can be interfered with, if that is justified, under the ECHR and UNCRC. Although the child’s rights and welfare are, of course, a primary consideration, they are not always the paramount consideration. Therefore, the amendments would be unworkable.

Amendments 195 to 197 seem to be based on provisions from the Children (Scotland) Act 2020, which the amendments would insert into the Criminal Procedures (Scotland) Act 1995. However, the provisions in the 2020 act were drafted to account for the views of younger children, particularly those under 12, in the unique context of children’s hearings proceedings. Inserting those into the criminal justice environment fails to account for the inherent differences between the two forums.

If I can continue with my points, I will be happy to take it once I finish them.

Last week, the member asked where responsibility for referring a child should sit. When an offence is reported to the police, the police will usually provide information about victim support organisations, although I note Police Scotland’s previous evidence to the committee that that is not always the most appropriate time at which to provide such information. The key must be to ensure that there is access to appropriate support throughout the child’s journey through the justice system, not just at the point when it meets the court process, surely.

On all occasions requiring police attendance, when children are present during a domestic incident, or when they reside in a household where such an incident takes place, regardless of their presence, officers in attendance will consider all information, including previous incidents, to assess whether there is a child wellbeing or child protection concern. That response is outlined in our child protection guidance.

Domestic abuse is always a wellbeing concern. Although I cannot get into a full discussion about information sharing as set out, for example, in the getting it right for every child guidance, information can be shared in a lawful, appropriate and proportionate way, if there are concerns about protecting a child or a young person’s wellbeing. Reasonable efforts must be made to inform the child or young person and appropriate family members that that information has been shared.

Almost all local authorities operate multi-agency risk assessment conferences—MARACs—as part of multi-agency risk management work for domestic abuse cases. MARACs also allow for the sharing of relevant risk-focused information in a safe environment to support the development of a co-ordinated multi-agency safety plan to increase victim safety. Any specialist support that a victim might require can be part of such considerations. Such cases might involve child protection concerns, if there is evidence that significant harm has occurred or may occur, with clear multi-agency procedures that are based on national guidance requiring to be followed in such cases. The response could include referral to specialist support services.

I cannot, therefore, support the amendments, and I urge members not to press or move amendments 193 to 205. I encourage the committee to reject them if they are moved.