Seòmar agus comataidhean

The bill provides for virtual attendance in criminal proceedings by making permanent the legislative underpinning that has been in place since 2020. The framework for virtual attendance is, admittedly, somewhat complex, which is inevitable given that it must account for the complexity and range of scenarios that arise day to day in the criminal justice system.

I am afraid that the amendments in this group would unpick that framework and shift the balance away from individual decision making case by case to an approach in which there is less flexibility and a greater role for blanket determinations and decision making, and powers of veto. I appreciate that that might not have been Ms McNeill’s intention, but I am sure that she and the committee will understand that I have to respond to the effect of the amendments according to their terms and the operational impact that they would have.

The amendments would erode—and, in some cases, eliminate—the ability of our courts to consider the full range of facts and circumstances of the cases that they hear in making decisions on virtual attendance. I therefore cannot support any of the amendments in the group.

Under the bill, the default position is that people attend court in person. In individual cases, the court can opt to disapply that default and direct individuals to attend court by virtual means, after taking into account what is in the interests of justice and any representations that are received from the parties. The exception to that would be proceedings in which the only party is a public official, such as police officers or prosecutors seeking warrants or court orders, where the default position is virtual attendance. Again, the court can disapply that default case by case and require physical attendance.

The bill gives the Lord Justice General the power to issue determinations to disapply the default for physical attendance in certain types of cases and in certain circumstances. Currently, there is an important limitation on that power: the Lord Justice General cannot issue determinations in relation to trials or for hearings at which the only party is a public official.

Amendments 33, 35 and 40 would remove that limitation and expand the scope of the Lord Justice General’s power to make determinations to any form of criminal proceedings. That would give the Lord Justice General the power to effectively set virtual attendance as the default for criminal trials, should he choose to do so. That would be a substantial expansion of the power and a significant departure from the current approach. I do not believe that the committee heard any evidence at stage 1 that would support such a change, nor did it make such a recommendation in its report.

In addition, I have not heard any support for the amendments that relate to guidance that is issued by the Lord Justice General. Amendment 37 would require courts to “comply with” such guidance rather than “have regard to” it. Amendment 39 would require that the guidance must set out when virtual attendance must “always apply” and when it must “never apply”.

Again, those amendments represent a departure from recognising that the courts will need to consider cases and circumstances on an individual basis in order to balance all relevant interests. After taking into account such information, it should ultimately be for a court to decide how individuals should appear before it at trial.

Amendments 36 and 38 would further erode the court’s flexibility. Amendment 36 would, in some circumstances, create further procedure overall. When there had been a change in circumstances between the pre-trial hearing and the trial, with the result that a witness required to give evidence remotely, amendment 36 would mean that an additional hearing would have to be convened to allow parties to be heard on the matter. The existing drafting is more efficient, as it gives the court the ability to make a direction, which the other party could object to at trial if they so desired.

In relation to amendment 38, I do not agree that it is appropriate for complainers or the accused to be able to unilaterally veto the virtual attendance of another person, such as a police witness or a forensic scientist. Such matters are properly decisions for the court, which will balance the interests of those involved. The bill requires the court to hear representations from the parties and to consider whether such a direction would prejudice fairness or otherwise be contrary to the interests of justice.

Taken together, the amendments in this group would lead to a more prescriptive framework that would restrict the court’s ability to be agile and responsive, and to take into account individual circumstances and make informed decisions, when determining how individuals appear at court. For that reason, I cannot support any of the amendments in this group.

As Ms McNeill and colleagues will recall, the virtual custody court provisions have been paused until the issues have been fully resolved.

The committee will recall that my initial position was that the purpose of the review is different from that of the prosecution of domestic abuse. They are clearly different. One is about holding perpetrators to account and one is about learning for the purposes of prevention. However, I have reflected on the committee’s view as expressed in your stage 1 report. If things change in future, there is the enabling power in section 10. It has been a matter of fine judgment, but the overall view of the committee and others was that we need to anchor domestic abuse in our gold-standard definitions.

Amendment 15 makes a consequential adjustment to the concept of a connected death of a young person. A connected death is when a young person is killed in an attack on another primary victim. The amendment provides that, when the primary victim has survived, the connected death is reviewable only if the primary victim’s death would have been reviewable. If that would not have been the case because there was no context of partner domestic abuse, the connected death would also be outwith scope.

Amendment 17 adjusts the sift criteria in line with the changes in scope, so that the review oversight committee is tasked with considering whether and to what extent there is any link between partner domestic abuse and the death. It will also sift out cases that have some history of domestic abuse but that is not linked in any way to the death of the victim. That will involve an exercise of judgment based on all the facts and circumstances, so it is not possible for the initial notification stage.

Amendment 18 is a minor technical amendment to correct the terminology used in section 16(3)(a), to match the rest of the section.

I move amendment 14.

Amendment 14 agreed to

Amendment 15 moved—[Angela Constance]—and agreed to.

Amendment 61 not moved.

Section 9, as amended, agreed to

After section 9

Amendment 62 not moved.

Section 10—Power to modify matters in relation to reviews

Amendments 63 to 66 not moved.

Amendment 16 moved—[Angela Constance]—and agreed to.

Section 10, as amended, agreed to.

After section 10

Amendment 67 not moved.

Section 11—Review oversight committee

Amendment 68 not moved.

Section 11 agreed to.

Section 12—Case review panels

Amendment 69 not moved.

Section 12 agreed to.

Section 13 agreed to.

Schedule agreed to.

Section 14—Notification of deaths

Amendment 70 not moved.

Section 14 agreed to.

Section 15 agreed to.

Section 16—Determination as to whether to hold a review

Amendments 71 to 73 not moved.

Amendments 17 and 18 moved—[Angela Constance]—and agreed to.

Amendments 74 and 75 not moved.

Section 16, as amended, agreed to.

After section 16

Amendment 19 moved—[Angela Constance]—and agreed to.

Section 17—Carrying out of review

Amendment 76 not moved.

It is important to emphasise that, when the physical production of evidence is critical to a case, we would, of course, expect the Crown to protect its position in relation to producing the physical item. I note that Ms McNeill does not think that there should be any deadline to parties being able to object to an image being produced as opposed to a physical object. I reiterate my point that applications could be made after that point if it can be demonstrated that the application was made as soon as was practicable.

My final point—I appreciate Ms McNeill’s indulgence—is that my broad concern about her amendments and Mr Kerr’s amendments is that they would not protect the status quo, because they would move us backwards. I appreciate that members will have views about any proposed changes and how we move forward, but the amendments would not protect the status quo and would make things worse for victims and justice partners.

Amendment 50 would remove an existing power of the Scottish ministers to increase the maximum level of fiscal fines by subordinate legislation. Fiscal fines are an important tool that is available to prosecutors to use in appropriate circumstances as a proportionate response to lower-level offending. For those penalties to be effective, they need to be set at an appropriate level to address the range of circumstances for which they might be used. Modification of the maximum level is therefore required from time to time to ensure that they continue to be effective and to allow court and other resources to be focused on more serious cases.

The maximum level was set at £300 in 2007 and it remained there until the Coronavirus (Scotland) Act 2020 was put in place. As well as reducing the burden on the courts during the pandemic period, the increase enabled inflation to be taken into account. Requiring primary legislation to change the maximum level of fiscal fines would not represent an efficient use of parliamentary time. It would unacceptably restrict responsiveness to inflationary pressures, lead to inefficiencies in the justice system and fundamentally reduce the effectiveness of fiscal fines.

I emphasise that the power has existed since 2007. All that the bill will do is to update the power to make any changes more accessible to those who look at the statute book by ensuring that changes are made in the act. I therefore cannot support amendment 50.

That will be a decision for legislators—that will be for you and me. I am not going to make a blanket determination on that.

I would be happy to engage directly with Scottish Women’s Aid on that, because I do not want that to be the perception or the reality. As Ms Chapman mentioned, in the on-going improvement work following the workshops that we undertook with partners, 10 areas have been identified in which more detailed work is needed, including training, data sharing, court processes and structured case management. Ms Chapman spoke about some of the work that needs to be developed.

Rather than make promises now that I cannot keep—other than to say that I will want to give a fair hearing to all of this—I will simply say that we will consider matters further over the summer. I have a meeting arranged with Mr Findlay, and I would also be happy to meet Ms Chapman, separately or together with Scottish Women’s Aid, over the summer, so that we can at least ensure that we look with a fresh pair of eyes at where we are, what the timescales are and what the journey ahead is.

I would consider best practice to be aligned to modernising our criminal justice system so that—in the example of DESC—evidence can be shared from crime scene to courtroom. That supports the overall efficiency and effectiveness of the justice system and is to the benefit of everybody who comes into contact with it. As a programme of work, DESC has benefited from £33 million of investment and has the support of our justice partners. I hope that you understand my reticence about rolling back on the use of DESC. It is right and proper that I, with respect, point out that amendment 44 would not permit the use of DESC to store digital evidence and share it in court, which is one of the main benefits of that significant programme of reform.

My comments on amendment 46 also apply to Ms McNeill’s amendment 93. The bill, and my amendment 5, which I will come on to, clearly set out the process by which parties can apply for a judicial direction to have a physical item produced. Amendment 93 would give parties an unqualified right to have items produced when they requested it, with no role for the court to decide whether that was necessary to avoid prejudicing the fairness of proceedings.

I take this opportunity to reassure Mr Kerr and Ms McNeill that there is an existing common-law right for the defence to examine any physical item whose condition is critical to the case against the accused, even when it will not be produced at trial. There is nothing in the bill that interferes with that right, which will continue to apply even when an image is used at trial. That right should be exercised promptly after the defence is made aware of the item through disclosure by the Crown and should inform any application to require the physical item to be produced in court instead of the proposed image.

At this point in time, I have no thoughts or plans in the immediate or short term to use the power, if Scottish ministers retain it. It is not a subordinate power that has been used very often. The committee should bear in mind that the upper level did not increase from 2007 until the coronavirus pandemic hit. I put on the record that I do not have any plans to use the power post this legislation, but it is important that it is future proof.

I have listened carefully to Mr Kerr and the position that he has put forward. I am, of course, aware that there has been a great deal of debate on the subject of the extended time limits that have been put in place to assist the criminal justice system to manage the backlog of cases that has built up as a result of the pandemic. There has been significant progress in addressing those backlogs, and it is for that reason that the only time limit extension provisions that remain in effect as of today are those that relate to solemn cases. Those provisions will expire later this year, on 30 November.

As I set out to members when the committee considered the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Saving Provisions) Regulations 2025 in April this year, justice agencies have not raised concerns with me about the transition back to pre-pandemic time limits, provided that appropriate saving provisions are put in place.

I understand that amendment 55 is focused on how prosecutors and courts manage the transition. However, I have concerns about how it is framed. I do not think that it would be appropriate for the Scottish ministers to report on the ability of the courts to comply with criminal procedure time limits. That is because, under the Judiciary and Courts (Scotland) Act 2008, which was supported by all parties in this Parliament, the Lord President, as head of the judiciary, is responsible for the management of court business. The role of prosecutors is relevant, too, and they are, of course, also operationally independent of the Scottish ministers. The proposed reporting requirement would, in effect, result in the Scottish ministers being asked to offer an opinion on how court business was being managed by the Crown Office and the judiciary, and I do not think that that would be appropriate.

I also think that it is important to highlight a number of other issues with amendment 55. The amendment would require information to be broken down by reference to the positions before and after the changes that were made by the Coronavirus (Recovery and Reform) (Scotland) Act 2022 came into effect. However, that act simply re-enacted changes to time limits that were first made in the Coronavirus (Scotland) Act 2020, which was passed in the early weeks of the pandemic. As such, the use of that reference point would, in effect, provide information about the extended time limits but not information on the pre-pandemic time limits.

Further, there is an issue in relation to the concept of a time limit being met. Both time limits can be extended on application to the court on a case-by-case basis. It is not clear whether it is intended that those would be considered to have been met, because there was a new, extended time limit, or not met, because the extension had to be applied.

The proposed reporting period of one year from the date on which provisions in the 2022 act cease to have effect is also too short. That is because, in the light of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Saving Provisions) Regulations 2025, cases that are subject to the time limits that were set by the Coronavirus legislation will continue to be in the system for a considerable time after the provisions themselves have expired. Indeed, there will still be cases subject to the pandemic-era time limits in the system for six months beyond the point at which the amendment would require the report to be published. Further, as the pre-pandemic time limit for commencement of a trial in which an accused is granted bail is 12 months, no cases would have breached that time limit at the point at which the report had to be published.

More generally, I am not persuaded that such a reporting requirement is the best way to monitor the transition back to pre-pandemic time limits. The Scottish Courts and Tribunals Service already publishes extensive information about court business on its website on a monthly basis, including the average time between pleading diets and evidence-led trials in sheriff court cases, solemn cases and High Court cases. That has informed the Scottish Government’s understanding of how the courts have been managing the backlog of cases that built up during the pandemic. Of course, if, for any reason, the committee or any MSP wanted to garner more specific information, it would be open to them to request additional information from any justice agency.

For the reasons that I have outlined, I ask Mr Kerr not to press amendment 55. If he does, I ask the committee to vote against it.

I know that Mr Kerr and some of his colleagues have a very keen interest in fiscal fines. The matter was debated every time the coronavirus legislation rules were extended during the annual debates that we had at that time. I repeat that the introduction of a higher level of fiscal fines increases the number of cases and does not increase the number of offences that are encompassed. It is, in my view, appropriate that ministers have that power to make such subordinate legislation. It is subject to the affirmative process, so it must be fully democratic and transparent.

On the matter of the increases being linked to inflation, that is an action for Mr Kerr to pursue. I am focused on pursuing other actions right now, and making further changes to fiscal fines is not at the top of my list.

On amendment 58, in general terms, I note that the increased level of fiscal fines has been available to prosecutors since 2020, and the Parliament has had a number of opportunities to scrutinise and test the available evidence in support of their continued use. That included during the passage of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 and subsequent annual extensions, each of which required ministers to carry out a review and consultation before publishing a statement of reasons for extension. I am not persuaded that a further review of those embedded measures is needed.

On the specifics of amendment 58, the report would have to include an assessment of the number of fiscal fines that had been issued. That data is already published in the annual criminal proceedings data, as well as in statistics that are published by the Crown Office. I also understand that the Lord Advocate has regularly written to the committee on the use of the higher levels of fines and has offered to continue doing so.

The report would also have to cover the impact of the higher sum on reoffending levels and on victims. However, it would not be possible to produce anything robust on either of those aspects. There are many variables that will impact reoffending and victim experience, and it would not be possible to isolate and narrate the impact of a higher level of fiscal fines. The numbers that are issued are also too small to allow robust conclusions to be drawn.

Further, although I agree that it is always important to consider the impact on victims, I refer to the correspondence that the committee received from Victim Support Scotland in February, in which its chief executive said:

“victims have frequently told us that delays in the justice system can be a distressing and frustrating experience. VSS is satisfied with the notion that court time will not be tied up in prosecuting crimes that can be disposed of with a fiscal fine. Furthermore, we see a benefit for witnesses who will not have to attend court to give evidence if the offer for a fine is accepted.”

Finally, the report would have to cover the impact of the new level of fines on the courts. It is unclear how that could be assessed other than by looking at the numbers that had been issued and accepted, or deemed to be accepted, and noting that those were all cases that did not take up court time. As I mentioned, that information is already available.

For those reasons, I cannot support amendment 58.