Seòmar agus comataidhean

I am grateful to the cabinet secretary for what she has said. I think that her intention is clear. I do not plan to press amendment 28 to a vote or to move any of my other amendments in the group. However, I am grateful to the cabinet secretary for saying that she will look at whether there is a need to reframe the wording of the bill, given that we seem to have different legal views on how the section would be interpreted. I would be concerned about the possibility of appeals if there are different legal interpretations of the wording. I am very much raising technical issues and not addressing the principle, which the cabinet secretary has made clear.

I lodged amendment 1 because I am concerned about the resourcing implications. Although we are politically very supportive of more social work involvement and more information being available, we are also very aware of the cuts to justice social work over recent decades and that, in reality, it will not be possible for justice social work to get involved in every case. It is not possible to lodge an amendment that would enable the bill to create the funding to ensure that there is adequate resourcing. The amendment was framed as it was to bring a focus to the resource implications.

I will not be putting amendment 37 to the vote. I look forward to hearing what the cabinet secretary has to say about amendment 8, which also seeks to introduce a reporting requirement.

Amendment 37 relates to women prisoners. It arises out of the difficulties that exist in obtaining information about the nature of the women who are held in custody in Scotland and, in particular, the difficulty of obtaining data in relation to women who are held on remand.

Amendment 37 also arises out of the concerns that exist—I know that the cabinet secretary shares them—about the overall number of women in custody and about the proportion of women in custody who are on remand. According to the most recent figure that the committee received, 36 per cent of the women who are being held in custody in Scotland are currently on remand. We know that Scotland has the largest number of people in prison, as a proportion of the population, in western Europe. We also have by far the highest remand figures.

In addition, women make up a higher proportion of our prisoner population and Scotland has the highest number of women in prison. A higher proportion of the prisoners who are in custody in Scotland are women than is the case in other countries; I think that women make up approximately 4 per cent of the prison population.

We know from research and evidence that the courts tend to give more stringent sentences to women than they give to men for the same offences. That is not a new feature. It is not the responsibility of any particular party or of the current Government. It has been a feature of our custodial system for many generations. Across the political parties that are represented in the Parliament, there is concern about why we have such a high level of women in custody and about whether we are dealing with women offenders in the best possible ways and have the necessary range of resources and mechanisms in place to deal with those challenges in the most effective way.

As I said, I will not push amendment 37 to a vote. I am interested in hearing from the cabinet secretary about the type of information that could readily be provided to the Parliament or about systems that could be developed to provide information.

As drafted, amendment 37 would require ministers to publish a report on women who have been refused bail, which must include information on

“the nature of the offences women refused bail have been charged with”.

As I said, that information is not currently available to the committee, although equivalent information is available in relation to male offenders.

My amendment also asks that information be provided on women who have been refused bail in relation to whether they have a history of offending; whether they are classified as primary carers; their age; and any specific common health issues that they have, including physical health issues, mental health issues and any issues in relation to drug addiction. The amendment does not mention alcohol addiction, but that is another area of concern.

Amendment 37 also asks for information about the proportion of women who are refused bail who are subsequently sentenced to imprisonment. Obviously, there is concern about women who are held on remand for a lengthy period who are found not guilty when they come to trial, or who receive a sentence that is significantly less than the period that they have already been in custody.

As I said, the list that amendment 37 provides is not definitive—it is just a range of suggestions. It might be the case that certain types of data are more readily able to be calculated by the prison system and the rest of the justice system than others.

My intention in lodging the amendment is to create a pathway so that more information is available about the nature of the women who are being held in custody, so that policy makers and legislators are able to grapple with the challenges that we face and enable us to address the level of custody that is used for women, which I believe is not appropriate for the society that we live in.

I will listen very carefully to what the cabinet secretary says in relation to her amendment.

I move amendment 37.

I am grateful for the opportunity to make a short contribution.

I will not be pressing Collette Stevenson’s amendment to the vote, but if it is pressed to the vote, I will support it. I think that the proposal from the Scottish Government is too restrictive and too prohibitive, and it goes way beyond the general concept that there might be circumstances in which the court has the discretion to take into account periods spent on electronic monitoring. I will touch on that point in relation to the amendment that we will debate next week, which I lodged as an alternative. That would involve the deletion of section 5 and the insertion of an alternative, whereby periods on electronic bail could be taken into account by the court.

The fundamental point is that electronic monitoring is not a sentence; it is a bail restriction in circumstances in which there is a risk that the accused poses a public safety threat or a threat to the victim. In the same way that a curfew or a condition that the accused must not approach the complainer is used, electronic monitoring is used only in situations where there are genuine risks. We must be really clear about the fact that that is the way in which it is used.

However, if that restriction is so great, there is an argument that compliance with electronic monitoring, or failure to comply, might be something that the court would take into account in sentencing. I believe that the courts already take into account such considerations. Whether someone has adhered to a curfew, electronic monitoring or other bail conditions can be facts that the court has the discretion to take into account. The problem with the Government’s wording is the highly restrictive way in which the provision has been drafted. We will undoubtedly continue that discussion next week, but I support Collette Stevenson’s amendment 67.

It might be helpful to say at the outset that I do not plan to push any of my amendments in this group to a vote. I have lodged them in a genuine attempt to get a better understanding of the Government’s thinking on how the provisions as drafted would operate. It is worth saying that Pauline McNeill and I have had a number of meetings about the provisions with lawyers and practitioners—mainly criminal defence agents—so some of what I will say will be based on those discussions.

Amendment 28 relates to the requirement that the sheriff or judge must give an officer of the court the opportunity to provide information. When the committee discussed the issue initially, our understanding was that that would be a mandatory requirement. However, in the course of our deliberations, we were given advice that there would simply be an opportunity for a social worker to give information to the court and that there would not be a mandatory requirement.

The committee’s major concern in that regard related to the resource implications. The backdrop is that there are probably far fewer justice social workers available to the courts now than there were in previous decades. There are genuine issues regarding the ability of a sheriff or High Court judge to have access to a social worker within the timeframes. Custody courts usually involve the sheriff court, and many dozens of cases go through a busy custody court on, for example, a Monday morning.

At our meetings, solicitors, acting sheriffs and defence agents said that their interpretation of the provision as drafted was that it would be compulsory that there be social work involvement at a very early stage. There are obviously practical implications to that.

I therefore thought that it would be helpful to bring the matter to the committee’s attention in the form of an amendment, in order to tease out the issues and focus on the specific wording. It is important to put on the record that Scottish Labour wants a great deal of social work involvement in such cases. We take the view that the more information available to the court at the earliest stage, the better, because that makes it more likely that the court will be able to make the correct decision in the interests of justice.

Amendment 28 would remove the stipulation that the judge must get information from the local authority before making a determination. That is the more extreme of the amendments that I have lodged on the issue, but it reflects the consensus in the meetings that we had with defence agents. Their view was that, in the early stages of cases, where somebody might be arrested one night and appear in court the next day, it is onerous and unworkable to expect that level of information, or any information, to be available. Therefore, amendment 28 would completely remove the provision that the judge must get that information.

Amendment 49 is drafted in a slightly different way and would simply change the word “must” to “may”. That would mean that there would be no mandatory requirement, but it would give the court the ability to get the information and would, I suppose, make clear Parliament’s view that we would like that to happen and that we see it as advantageous. Amendment 49 would be a weakened version of the provision in that the judge could formally give local authorities the chance to provide information—the court would have that information where it required it and asked for it.

As I say, lawyers have raised serious concerns about the practicality of the provision, given the level of social work support that is currently available to courts. Given the budgetary provision that the Scottish Government has presented to us, it seems unlikely that we will be in a substantially different position when the bill comes into force.

Amendment 1 relates to a different issue, but I presume that it would be helpful for me to speak to it at this point in the discussion. It would introduce a requirement on the Scottish Government to report to the Scottish Parliament on the operation of the provisions with regard to criminal justice social work. Clearly, that is related to the resource implications that I have referred to and whether, in reality, it will be possible for social work reports to be available at such an early stage in cases.

I hope that that is helpful and enables us to scrutinise the provisions at this stage.

I move amendment 28.

Amendment 2 would revert to the original wording on absconding that is set out in the Criminal Procedure (Scotland) Act 1995. Amendment 33, which Jamie Greene refers to, would, as he says, set out that the court, when considering whether to refuse bail, may take into account any on-going or previous proceedings, and not just the accused’s failure to appear. Indeed, the current legal position is that the court may take those matters into account, and it regularly does so. The court takes a view as to whether it believes that the accused will come back if they are given bail, and will appear for the next court diet.

My understanding of the bill as introduced is that, if an individual had failed to appear in previous diets of the case that is currently before the court, that matter could be taken into account, but that, on a strict interpretation, if the accused had failed to appear in other outstanding cases that had not yet reached their conclusion, that could not be taken into account. It will often be clear from someone’s schedule of previous convictions that there has been a failure to appear on previous occasions relating to other matters, perhaps where the accused has already been convicted.

The effect of amendment 33 would be to make it clear, for the avoidance of doubt, that the court could take into account not just what had happened in the particular case and in relation to that particular complaint but other information, which is how Scots law has worked until now.

The amendment is an attempt to get a better understanding from the Scottish Government of how the bill will change the law and whether it will make a significant difference. I put the issue to the previous cabinet secretary when he appeared before the committee, and he said that, if people do not appear, they could, of course, be remanded. However, we cannot just rely on what the previous cabinet secretary said to us; it is about the strict interpretation of the legislation, which is what the courts will have to grapple with. We have to ensure that the courts are able to take into account the circumstances that are presented to them.

Amendment 34 is consequential to amendment 33.

Amendments 35 and 36 relate to issues that have been raised by Victim Support Scotland. They contain alternative approaches and raise issues that we will probably want to come back to at stage 3.

Amendment 35 would ensure that the safety of the complainer has to be taken into account. It would ensure that the court must, when granting bail, state the reasons why it considers that the granting of bail does not pose a risk to public safety. The current wording of the bill would require an explanation when an individual is remanded. The presumption is that people will get bail, so there does not need to be an explanation as to why they are granted it, but, when a person is remanded, the court will be required to set out the reasons for that.

As I said, amendment 35 was lodged as a result of discussions with Victim Support Scotland, which is concerned that victims often do not understand why bail has been granted. The amendment would enable equality in that reasons would have to be given not just when somebody is remanded but when somebody receives bail.

Amendment 36, which is an alternative, would delete section 2 completely so that there would no longer be a requirement for reasons to be given. As I said, I have also worked with Victim Support Scotland on that proposal.

I move amendment 55.

Yes.

Amendment 28, by agreement, withdrawn.

My amendments in the group, which is on entitlement to bail, relate to three areas: the public safety test; the fear of flight; and, in amendments 35 and 36, alternative approaches to address issues that Victim Support Scotland raised on these provisions.

Amendment 55, which is a probing amendment, seeks to remove the new public safety test for bail so that the law reverts to the current public interest test. As I have indicated, Pauline McNeill and I have been involved in a number of meetings with defence agents and other practitioners—including, on occasion, sheriffs—in relation to the drafting of the bill, and the view of many whom we have met is that what I have proposed is the preferred approach due to uncertainty around how the new provisions will be interpreted by the court.

On a number of occasions, fear has been expressed that the lack of certainty in relation to the definition of the public safety test is likely to lead to appeals. Even if, at the end of the day, the outcomes are the same as they are under current bail law, such uncertainty is not in the interests of justice or of victims, and, indeed, the arguments that will have to be presented in the courts over interpretation of the legislation will come at a cost to the public purse.

My lead amendment would remove the public safety test. I am looking for the cabinet secretary to outline why the Government is proposing the change so that we can get an understanding of how it believes that it will impact on bail decisions in the courts, particularly given that Lord Carloway’s submission to the Scottish Government was that, although the measure would add bureaucracy and place more onerous requirements on the courts, outcomes would not be changed. I am looking for the cabinet secretary to give an explanation of the kinds of cases in which she expects that, if the bill were to be enforced, bail would be allowed where it would not be allowed at the moment and, similarly, situations in which individuals would be remanded under the measure when they are currently not.

Amendment 31 would enable the court to have discretion to take into account electronic monitoring or other specific conditions or requirements to which the accused was subject. That issue was discussed in the committee. The approach that the Scottish Government proposes is that, where an individual has been subjected to electronic monitoring, it will be compulsory for the court to take that into account, and every two days of electronic monitoring will be counted as one day in custody.

The approach that I outline in amendment 31 would enable the court to have discretion to take into account any period of electronic monitoring or, indeed, any other specific conditions and whether the accused has complied with the conditions to which they have been subject. That would mean that the court would have the discretion on occasion to reduce a sentence—for example, if there was evidence to suggest that the person had complied with the conditions of curfew or electronic monitoring—but it would not be obliged to do that. Similarly, it would enable the court to increase the sentence if an individual had not co-operated with the special conditions that were placed on them. It could be that they had not co-operated with electronic monitoring, a curfew or another condition that the court had presented—for example, if they had made attempts to contact or approach the complainer. The reason why I have lodged the amendment is to enable the court to have a far broader range of responses and to take account of specific facts that are presented.

Amendment 30, which is also in the group, is a probing amendment that came about as a result of discussions about the public safety test. As the committee has discussed and as lawyers have stated in their various representations, there is a view that it would be helpful to have a definition of the test. One of my concerns is that I have attempted to ask others to draft a public safety test or to give an indication of the factors that they believe should be on the face of the bill but they have been reluctant to do so. Amendment 30 therefore provides an indicative list of the types of factors that might be taken into account. As I said, it is a probing amendment and I do not plan to push it to a vote today, but I am looking for the Government to give an indication as to whether those are the kinds of factors that it expects the courts will take into account when considering what public safety will involve.

Amendment 63 would require consultation with victims groups about the drafting of the public safety test. It would require the Scottish Government to come back in writing with detailed proposals for how the courts will interpret the public safety test and to consult victims organisations and others on how the courts will be expected to deal with such matters.

I lodged amendment 32 to get a better understanding of the Government’s thinking. The current bail provisions are clear that the court is able to refuse bail if it believes that that will be in the interests of justice and that granting bail would be prejudicial to the interests of justice. One reason why granting someone bail could be prejudicial to the court process is that they would be given the opportunity to intimidate witnesses or complainers. If the bill were to be passed, it is unclear whether the Government would expect the courts to have a lower threshold when considering such issues. Amendment 32 would reintroduce the current law in relation to the intimidation of witnesses and complainers. It would make it clear in black-letter law that the court is entitled to remand someone if there is a legitimate fear that there could be intimidation.

One of my other amendments relates to the fear of flight. We have focused on that issue, but, when the committee discussed the bill, we did not consider to any great extent that the bill’s provisions change the current bail law in that the public safety test will very much focus on the risks to the public. Issues around the fear of flight and absconding relate primarily to the ability for the interests of justice to be served, with the court process being able to proceed to its conclusion because the accused is available to attend court.

It would be useful for the Government to indicate how many individuals are currently remanded because of issues relating to the fear of flight and individuals absconding. It would be useful to understand whether the Government believes that the bill as drafted will result in fewer individuals who fall into that category being remanded. What would the implications be for the justice system and the ability to obtain convictions if that were to happen?

Amendment 33 contains a similar provision. My understanding and the understanding of those from whom I have taken advice is that, under the bill’s drafting, the court would be obliged to consider the failure to appear in a particular case when considering whether to grant bail. Amendment 33 would enable the court to take into account a wider course of action. If an individual had a history of failing to appear or of absconding—there might be evidence from previous convictions, or other evidence could be provided to the court—such information could be taken into account.

It might well be that the Government’s amendment 7 deals with the issues that I have attempted to address in amendments 35 and 36. As I have said, amendment 35 was drafted after work with Victim Support Scotland, and it is also supported by Scottish Women’s Aid, ASSIST, Rape Crisis Scotland and other organisations. It would be helpful to put on the record the reasoning behind that amendment and, indeed, amendment 36, which was drafted following discussions with defence agents. I would want to go back and have discussions with those organisations before the next stage of proceedings.

On amendment 35, as we know, the bill places a duty on the court, when bail is refused, to state the grounds on which it has determined that it has good reasons for doing so. Those reasons are to be entered into the record of proceedings. In that respect, I heard what the cabinet secretary said in relation to amendment 7.

However, the concern raised by Victim Support Scotland relates to issues of equality and rights to information for victims. Although it accepts that the bill as drafted will contribute to transparency of judicial decision making around bail and will, for that reason, be of benefit to victims of crime, it believes that the provisions need to go further by ensuring that written reasons for the granting of bail are provided, too. That will enable victims to have an understanding of the court’s thinking.

Victim Support Scotland has said that, in consultation sessions that it held with Scottish Women’s Aid, women and workers for local women’s aid groups highlighted that the lack of information available to women explaining the court’s reasoning was a common and repeated issue and a source of frustration and concern to them. The organisation has therefore argued that, to ensure consistency and transparency of decision making and proceedings for participants and to assist in the enforcement of bail conditions and safety planning for victims, the reasons for refusal must also be communicated in writing to the victim, particularly women experiencing domestic abuse. I think that we will look at electronic monitoring later, and Victim Support Scotland feels that similar provisions are required in that respect, too. Moreover, the organisation has pointed out the precedent in the 1995 act for the court to give reasons for making decisions on specific aspects of bail that would have an impact on a complainer, referring to section 24(2B) in particular.

I very much welcome the cabinet secretary’s amendment, but I want to reflect further on the points that are being made by Victim Support Scotland and other organisations with regard to equality and the availability of similar information, whether bail is granted or refused.

The alternative position that I have put forward in amendment 36 came out of discussions with solicitor practitioners and, as I said, some practising sheriffs. They felt that the onerous nature of the provision and the added bureaucracy would involve more time but would lead to the same outcomes. Amendment 36 was lodged to remove the provision completely for the reasons that the legal profession has set out on a number of occasions and that are referred to in Lord Carloway’s submission to the Scottish Government.

I will reflect on what the cabinet secretary said about the provision simply being a formal requirement. However, I want to look at issues around equality and whether the proposal meets the needs of victims. Therefore, I do not intend to push either of my amendments to a vote.

Given what has been said, I will not press amendment 37, which I now withdraw. I also warmly welcome amendment 8, as lodged by the Scottish Government.

Amendment 37, by agreement, withdrawn.

Section 5—Time spent on electronically monitored bail

Theme 3 is about new policies. Quite a number of new policies were suggested under themes 1 and 2. I was going to read them out, but there are far too many of them, so I will not do that. As the deputy convener said, many of the policy levers lie at Westminster but, at the same time, the Scottish Parliament and the Scottish Government have substantial powers not only over areas that are their responsibility but over the ability to mitigate.

To develop some of the themes that have already been raised, what new policies do we need to prioritise to tackle the specific issues that have been identified in relation to lone parents? Are there any that would probably not cost significant amounts of money and might be easier to prioritise in the current situation? What permanent changes do we need to make, particularly given the fact that the Scottish Parliament has extensive responsibility for social security? We have to develop our social security system in Scotland differently. How would you develop some of the themes that have been raised?

I will go to Kirsty McKechnie first, if she is comfortable with that.