Seòmar agus comataidhean

What I said is that amendments 8 and 10 make it clear that the default will be for national jurisdiction to end following initial custody hearings. National jurisdiction will continue until the conclusion of a case only in very specific circumstances. The amendments recognise that, in solemn proceedings, not all accused people will be fully committed. Full committal is not a compulsory step if, for example, the accused has been bailed.

Amendment 8 sets out the changes for sheriff court proceedings, both summary and solemn, and amendment 10 replicates the changes for proceedings in the justice of the peace court.

Amendments 9 and 11 respond to concerns that Katy Clark raised with me about how national jurisdiction applies to an accused who appears following an earlier failure to appear in principal proceedings and who is due to be sentenced in respect of those principal proceedings. My amendments provide that, in those circumstances, the national jurisdiction court can pass a sentence or otherwise dispose of the principal proceedings only when there has not been an evidence-led trial or, if there has been an evidence-led trial, only in circumstances in which it is considered to be in the interests of justice to do so. An example of that might include circumstances in which the accused changed their plea to guilty early on in the trial, with the result that very limited evidence was heard.

Amendment 9 covers proceedings in the sheriff courts and amendment 11 covers those in the justice of the peace courts.

Although I have lodged amendments that clarify the end point for national jurisdiction, as well as adding some limitations to sentencing under national jurisdiction, justice partners have warned of the risks of introducing additional complexity by making disproportionate changes to a system that is well understood by justice partners and practitioners.

I ask members to support my amendments, which respond to the committee’s recommendation at stage 1 and provide clarity on the end point of national jurisdiction, while preserving the progress that has been made in making better use of resources, as well as protecting the rights of the accused.

With regard to research, home detention curfew has been with us for a long time—for decades now—and it is rooted in the Prisoners and Criminal Proceedings (Scotland) Act 1993. As a concept for the justice agencies to work with and assess, therefore, it is well established. It runs in parallel with the victim notification scheme, in which I know the committee has taken a great interest; there are improvements to that scheme in the Victims, Witnesses, and Justice Reform (Scotland) Bill.

On whether there has been any research on the specific change, the answer is no, but the change is being made to align ourselves with the position that we took before changes were made to the short-term prisoner automatic release scheme. Before the Prisoners (Early Release) (Scotland) Bill was passed by the Parliament at the end of last year, on any given day, we had around 150 people on home detention curfew. Because of those changes, and particularly the changes to the transition period, in which people were released in three tranches, the numbers reduced to between 70 and 80, but they have slowly increased since then.

Essentially, the order is a realignment to optimise HDC so that it is at the level that it was prior to the changes to the point of automatic early release for some short-term prisoners.

For the record, I assure Mr Kerr that we are still incarcerating people for shoplifting offences. Of course, people will have their own views on whether that is a positive or a negative thing.

My amendments in this group will provide for the expansion of domestic homicide and suicide reviews in certain defined circumstances. At present, the bill will enable reviews that can learn lessons from the death and the circumstances that led up to it, but not beyond it. The amendments will allow a review to consider the aftermath of a death in circumstances in which the victim and perpetrator were partners or ex-partners and where, at the time of the death, either of them had a child who was a young person or an adult at risk. That will also apply if there was a young person who was not their child living in their household at the time of the death.

The amendments will enable a greater understanding of what happens to such bereaved persons following a death, whether their views are sought on decisions that impact them and whether those views are considered by professionals in making their decisions.

Amendment 19 will make provision to allow the remit for the reviews to be expanded beyond the point of death while setting out the persons to whom the expansion applies and the parameters of what can be examined within an expanded review. The amendment also sets out that the consent of the Lord Advocate will be required before the remit of a review can be expanded. That is to ensure that any live criminal investigation or proceedings are not jeopardised.

Amendments 12 and 13 will make consequential changes to section 9, which describes what a domestic homicide and suicide review is. That simply reflects the fact that, under amendment 19, in some cases, a review will now be expanded beyond the point of death.

Amendment 21 will make consequential changes to section 17 to require that the terms of reference of a review reflect any expansion of the remit. The amendment will also allow the review remit to be adjusted later to cover any cases in which it is appropriate to revisit the initial decision on whether to expand the review remit. That will allow for flexibility. However, it continues to be the case that the Lord Advocate’s consent will be required for any extension, so the same safeguards will apply as to any initial decision on whether to expand the remit of a review.

The expansion of the reviews to consider relevant bereaved persons following a domestic homicide or suicide is in line with the United Nations Convention on the Rights of the Child—specifically, article 12, which states that children and young people have the human right to have opinions and for those opinions to be heard and taken seriously. By expanding the review model in such circumstances, domestic homicide and suicide reviews will help to learn from the aftermaths of such deaths to improve practice, implement change and better safeguard children, young people and supported adults.

I move amendment 12.

Amendment 12 agreed to.

Amendment 13 moved—[Angela Constance]—and agreed to.

There are two Government amendments in this group, both of which are minor technical amendments to provide clarity. Amendment 20 would replace the word “joint” in section 17(2)(a) of the bill with the word “combined” when referring to a

“review of two or more deaths”.

That is to avoid confusion as to what is meant by a “joint review”. The bill as introduced states that a joint review is a review of more than one death. However, stakeholders have adopted the term “joint review” to refer to a review that is carried out together with another type of review—for instance, a domestic homicide review and a child protection learning review. The amendment therefore looks to replace the term “joint” with “combined” to allow the term “joint review” to continue to be used as stakeholders are using it presently and to avoid any confusion.

Amendment 30 is another minor technical amendment, which relates to who, under section 25 of the bill, must have regard to guidance issued by the Scottish ministers. The amendment ensures that there is no doubt that references to the Scottish ministers’ “functions” mean the functions of the review oversight committee and case review panels. Although that is how the provision would likely have been understood, the amendment puts the issue beyond doubt.

I move amendment 20.

Family is an integral part of the review model; therefore, I very much appreciate Ms Dowey’s rationale in lodging amendments 77 and 92. However, in their current form, the amendments are problematic for a number of reasons.

First, the next of kin in the context of domestic homicide or suicide is often the perpetrator. Although the amendments would allow the review oversight committee to select which particular family member was contacted—I appreciate that partners and ex-partners are not on the list in amendment 77—that list is not exhaustive. In cases where the only family member was the perpetrator, the committee would be obliged to notify them, or if no other family members could be located, there would still be a statutory duty to notify, which the oversight committee would be unable to fulfil.

A further risk in the oversight committee attempting to fulfil its duties would be when the committee contacted a family member who was not appropriate. I have said that it is my intention to include in the review model so-called honour killings, once the necessary work to define what that means in Scotland has concluded, both from a policy and a legal perspective. As I said earlier, in such cases, there are often multiple perpetrators of honour abuse in the family, extended family and community. Therefore, when there is a duty to notify in such cases, it might not be clear who the appropriate person to notify is.

Although it is not currently required by the bill, it was always expected that the review oversight committee would take all reasonable steps to contact relevant persons to make them aware that a review would be undertaken. The intention is to set out further detail in the statutory guidance, using the existing power in the bill, to ensure that that happens. That would provide more flexibility to take a considered approach to the circumstances of the case and to determine who, if anyone, is to be notified.

I hope that those comments about the use of guidance are sufficient to reassure Ms Dowey that nothing more is needed on that front. However, if she remains concerned, I would be happy to discuss the matter with her further and, if appropriate, work with her to bring back an amendment at stage 3 that would achieve the aspiration of the current amendments, while ensuring that it is sufficiently flexible to adapt to the wide-ranging considerations that all need to be taken into account in relation to family and next of kin in the context of domestic abuse, homicide and suicide reviews. On that basis, I ask Ms Dowey not to press amendment 77 and not to move her other amendment.

Amendments 22 to 26 in my name relate to an operational matter with regard to domestic homicide and suicide reviews. As introduced, the bill makes provision for the Lord Advocate to be able to order

“the suspension of consideration of a death ... or of a domestic homicide or suicide review, for such period as appears to the Lord Advocate to be necessary to allow for

(a) the completion of any other investigation, or

(b) the determination of any criminal proceedings”

or a fatal accident inquiry. There is a similar power for the Lord Advocate to be able to discontinue the review altogether.

The amendments extend the powers of the Lord Advocate to cover

“an inquiry under the Inquiries Act 2005 for which the Scottish ministers are solely responsible”,

which will ensure that, when a public inquiry is examining a death, perhaps as an alternative to a fatal accident inquiry, the Lord Advocate’s powers can also be used in relation to such an inquiry in the same way as they could be used in relation to an FAI.

Prior to the introduction of the bill, we sought the views of the United Kingdom Government on whether similar provision was necessary in relation to public inquiries that it has established. The UK Government stated that such instances would be rare, and it does not consider that, in such instances, a domestic homicide or suicide review in Scotland would need to pause or stop. Therefore, my amendment expands the provision in respect of Scottish inquiries only.

The bill also makes provision in section 19 for a protocol to be developed and agreed between the Scottish ministers, the chair of the review oversight committee, the Lord Advocate and the chief constable, on how those new reviews will interact with other proceedings. Together, those protections are to avoid prejudice to criminal investigations, proceedings or an FAI. Amendment 26 will now expand the protocol to include public inquiries for which the Scottish ministers are solely responsible, as a consequence of section 18 being expanded by amendments 22 to 25.

I move amendment 22.

Amendment 22 agreed to.

Amendment 81 not moved.

Amendment 23 moved—[Angela Constance]—and agreed to.

Amendment 82 not moved.

Amendments 24 and 25 moved—[Angela Constance]—and agreed to.

Section 18, as amended, agreed to.

Section 19—Protocol in relation to interaction with criminal investigations etc

Amendment 83 not moved.

Amendment 26 moved—[Angela Constance]—and agreed to.

Section 19, as amended, agreed to.

Section 20—Duty on public authorities to co-operate

Amendments 84 and 85 not moved.

Section 20 agreed to.

Section 21 agreed to.

Section 22—Reports on case reviews

Amendment 86 not moved.

I make it clear to the committee that I fully intend to include so-called honour killings in the review model. However, there is on-going work that needs to be concluded before that can be achieved. I am referring to work that is currently being undertaken by the Scottish Government and stakeholders to develop a policy definition of what so-called honour abuse means in a Scottish context. That will lay the foundation of how we then look to define such deaths for review purposes.

Although I share Ms Dowey’s ambition to bring so-called honour killings into the scope of the review model, I cannot support amendments 60 to 76 or amendments 78 to 91, for a number of reasons. I acknowledge Ms Dowey’s remarks about her intentions, but I will go through the reasons anyway, because it is helpful to put them on the record—it will, I hope, help us as we work together.

The first reason why I cannot support the amendments is that, at present, neither familial homicide nor honour killings is defined in a Scottish context. Although I recognise that amendment 67 includes time for a definition of familial homicide to be developed, there is no such work under way. My understanding is that there is not sufficient appetite to include familial homicide without an honour context in the model, although there is a strong desire to see so-called honour killings included.

I turn from the regulation-making power to the amendments that would include the extra category of death in the model with immediate effect. Those amendments look to define so-called honour killings in fairly broad terms in order to capture the wider set of relationships that such abuse and deaths include. However, the consequences of broadening the scope in such a way are that it would significantly expand the model and create delivery risks.

The broadening of the scope to include familial homicide would also cover circumstances in which there is no domestic abuse link or so-called honour killing link. Such deaths go outwith the focus of the proposed review model and would risk overwhelming it if they were to be included from the outset.

The amendments make no reference to the important context of perceived—I emphasise that it is perceived—dishonour and shame that a victim is said to have brought upon their family, extended family and community. At the same time, I am concerned that the definition is too narrow in the context of so-called honour killings, as it captures only close family members and does not cover the full range of possible perpetrators. Therefore, although the definition is, on the one hand, too broad and would bring a wider range of deaths into the model scope, it is, at the same time, likely too narrow and would cut across the work that is being undertaken by stakeholders to define what so-called honour abuse means in a Scottish context.

For similar reasons, I cannot support amendment 67, which would require the Scottish ministers to make regulations in relation to both familial homicide and honour killings. The coverage—which includes familial homicide, not just honour killings—is too broad. However, I give my commitment that reviews will be extended to include so-called honour killings. In the event that there is a desire in the future to include broader familial homicide, the bill already contains powers to extend the scope of the model with the necessary flexibility.

Therefore, I cannot support the amendments, but I reiterate my absolute commitment to ensure that the review model extends to so-called honour killings at the appropriate time and when the crucial preparatory work to which I have referred has been undertaken. I would be happy to discuss the issue further with Ms Dowey ahead of stage 3 to set out the detail of the work that is already happening in that regard. I therefore ask Ms Dowey not to press those amendments, and she has intimated that she will not do so.

Amendment 16 would amend the regulation-making power in section 10 of the bill. That power will enable Scottish ministers to expand the review model to include further types of death arising from abusive behaviour, and it will be used to add so-called honour killings to the review model. Amendment 16 would allow adjustments to be made to the considerations to be weighed by the review oversight committee at the sift stage, so that the sift can be altered when the scope of the review model is being adjusted.

Amendment 16 has been prompted by the need that we identified to adjust the sift criteria at stage 2, in light of my amendment 14, in the next group, which relates to anchoring reviewable deaths in a domestic abuse context. It has been shown that it will not necessarily always be possible to alter the scope of the review sufficiently through a change to the definition alone, and it might be necessary to combine definition changes with changes to the sift mechanism to get the correct result. The same may well apply when the scope of reviews is widened under section 10 in future. So-called honour killings are a salient example of where there will be a need to adjust the sift criteria.

Amendment 16 is therefore an important amendment that will help to future proof the model in the event of changes in social and cultural circumstances that may lead to modification of the types of deaths and events that the model may look to review in time. It also demonstrates my commitment to include so-called honour abuse in the model and ensures that that inclusion will be able to take place in the way that I believe that we all want.

I therefore ask committee members to support my amendment 16. I reiterate my offer to discuss so-called honour killings further with Ms Dowey and ask that she does not press her amendments in this group.

It is certainly not a way to empty our prisons—that is for sure.

I will give an example. At any given time, there are around 3,000 short-term prisoners. Yesterday, there were 106 people on home detention curfew. I hope that that gives a sense of proportionality. There is absolutely no automatic right, even when we change two of the criteria. It is all subject to risk assessment. It is also important to say that home detention curfew has a high rate of successful completions.

On rehabilitation, it is important to point out that our prisons are for rehabilitation as well as punishment, so what happens in relation to the rehabilitative process in prison is important. However, for some prisoners, home detention curfew shifts the balance between time spent in custody and time spent sentenced in the community, and we must bear in mind that they are tagged, electronically monitored, on a licence and on a nightly curfew.

Home detention curfew is a restrictive way to ensure that people can spend part of their sentence in the community. It also enables people to engage with support that they require in the community. It is a managed process of reintegration, and the evidence shows us the value of community-based approaches in comparison with time in custody. I stress that the rate of successful completion of home detention curfew is very high.

I understand Ms McNeill’s point, but if I go back to stage 1, the evidence from the Crown Office emphasised that its expectations for vulnerable and non-vulnerable civilian witnesses were that, when attending remotely, they would do so either from a Scottish Courts and Tribunals System remote site or from another designated site, whether that is a Victim Support Scotland facility or a designated site such as a bairns’ house. The Crown Office has confirmed that that remains its position.

I know that Ms McNeill did not quite ask this, but witnesses are not routinely giving evidence from their homes. In fact, that is exceptionally rare—I have been told that that is vanishingly rare. That would happen when a witness has a medical condition—perhaps agoraphobia—or is medically unfit. Before the emergency legislation, there was always scope to make an application to the court to enable such an arrangement, if that was crucial. The court would have to specifically sanction any such arrangement. That was the case previously, and it remains the case under the emergency legislation and the bill.

Ms McNeill has spoken about the fact that we continue to invest in evidence by commissioner suites for pre-recorded evidence. She is correct that witnesses must still take an oath and that the Crown Office sends guidance to witnesses. That is about ensuring that people understand the solemnity of the proceedings.

The guidance is quite detailed, so I will not read out a lot of extracts from it, but I can perhaps ensure that the committee receives a copy. It includes information such as that the procurator fiscal will inform the witness via telephone when it is their time to join. There are very clear expectations that people must be heard and that they need to be able to see the proceedings.