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Criminal child exploitation and cuckooing have been a frequent topic of consideration at the serious organised crime task force, which I chair, along with the Lord Advocate. I am quite sure that the committee is aware of the work that was commissioned by Action for Children on the matter and that Alexis Jay led that work.

Cuckooing is an issue that involves a mixture of devolved and reserved law—there is reserved legislation on drugs and firearms, and the devolved law includes Scots common law, the Criminal Law (Consolidation) (Scotland) Act 1995 and the Criminal Justice and Licensing (Scotland) Act 2010. There is a bit of complexity in this area regarding the interaction of the laws.

In relation to cuckooing, there was a view from the Crown Office that there is a current legislative gap—although that might be overstating it—in and around the trafficking and exploitation legislation. The Crown Office was consulted at an early stage and it advised that the relevant legislation in Scotland is primarily the Human Trafficking and Exploitation (Scotland) Act 2015, but that it might not apply to all situations envisaged by the offence of cuckooing, such as those where the householder is not really being controlled by criminals or is not considered to have been recruited by them. There was therefore a requirement for a cuckooing offence in Scotland. There is agreement on that from our stakeholders.

The Crown Office had some queries around the drafting in relation to victims providing consent for their home to be used in a particular way, but officials have engaged closely with the Home Office on that, particularly around the formulation of the offence. It considered removing the element of consent altogether; however, officials were advised that the control of a property is not inherently harmful, and that a person could consent to control of their property for criminal purposes without any real harm being caused to them. It is the view that there is no justification to legislate for an offence in that scenario. Officials can perhaps put that into humanspeak for me.

To be fair, yes. It is a frustrating process, because the way in which we legislate and the way in which Westminster legislates are pretty different. There are not necessarily parallel tracks—you will be well versed in that, Mr Hepburn. There have been occasions when we have said that we would want something to be extended to Scotland, but there has not been time at a UK level to do the necessary drafting. Of course, that is disappointing, but it has not happened often. The fact is that the pace and the timelines are not within our gift. Inevitably, there are frustrations and disagreements, but I think that, overall, we are in not too bad a place.

That is an important aspect of the bill. It will introduce powers so that regulations can be made to implement future international agreements as they relate to the sharing of information. That is of particular importance; it is vital for Scotland’s law enforcement agencies to be able to co-operate with counterparts across the UK and in Europe, particularly following Brexit, which disrupted the well-oiled arrangements that existed hitherto. Subsequent legislation has resolved matters only to an extent, leaving co-operation arrangements quite clunky and a bit more time consuming. The bill will enable better and deeper co-operation with our trusted partners, which will enhance the tools that are available to our law enforcement agencies, particularly in relation to tackling serious organised crime. We back legislative consent for the measures. Similar provision was proposed in the previous UK Government’s Data Protection and Digital Information Sharing Bill in 2023, but that bill was not progressed.

We can, of course, write to the committee with further information. We can give a more detailed explanation and follow up on any points, as required.

In short, that is correct. There have been some issues on which we have entered into correspondence or dialogue at an official-to-official level. For example, the issue of proceeds of crime is both reserved and devolved, whereas entering into international agreements is, of course, entirely reserved to the UK Government. Bearing in mind that policing is devolved and that we have our own legal and criminal justice systems, the Scottish Government’s position is that the legislative consent motion process has been triggered in relation to some clauses. We have come to pragmatic positions on that, but we felt that it would have been appropriate for the UK Government to seek the Scottish ministers’ consent for particular clauses.

At the end of the day, we have agreed with particular provisions that are about tackling crime, keeping communities safe and cracking serious organised crime, and we have settled to be a statutory consultee on matters. We have been co-operating with pragmatism.

The information before me might not relate exactly to the question, but we will see how we get on.

We are very interested in further amendments that we anticipate the UK Government lodging around child sexual abuse and exploitation online, specifically concerning what are euphemistically called child sexual abuse manuals. There will be new offences on the possession of materials that contain advice, guidance or content on how to groom, otherwise known as “paedophile manuals”—forgive me for using that term. The volume of indecent images of children is also an issue that we will be considering with interest.

Further possible amendments might be lodged as a result of the pornography review by Baroness Gabby Bertin, which would be around the possession and publication of depictions of strangulation and suffocation in pornography. We are standing by to see the detail of that.

Were you, in any shape or form, asking about spiking?

We are strongly of the view that we do not need further legislation on spiking. Spiking is addressed under common law as well as under the Sexual Offences (Scotland) Act 2009, so, in my view and in the view of the Government, there is not a legislative gap around that in Scotland. Legislation is there to prosecute people who do that and to imprison them for up to five years.

Where work has been done on spiking—the Minister for Victims and Community Safety, Siobhian Brown, has led round-table discussions on the issue across the stakeholder groups and parties, and there has been considerable interest in it in the Parliament—the focus has been on raising awareness and on the work that Police Scotland does around the night-time economy in pubs and clubs. There has also been work on the pathway to report spiking and to get care. There was a need to be clear that people can and should report spiking, but they also needed a healthcare pathway.

Good morning, convener, and thank you very much for the opportunity to appear before the committee. I thank the committee for accommodating my request to move this session from last Wednesday, due to stage 3 of the Victims, Witnesses, and Justice Reform (Scotland) Bill. That is much appreciated.

I very much welcome the committee’s inquiry into drugs in prisons, which recognises the significance, harmful impact and dynamic nature of issues that relate to illegal drug and substance supply in prisons, including concerns about the rise in strength of synthetic drugs, the impact on people in prison—and, of course, prison staff—and the importance of access to effective rehabilitation and support, on which, I am aware, you have taken evidence.

As the committee is aware, there is a high and complex prison population, and issues that relate to preventing supply, keeping people safe and managing the impact of substance use in prisons is demanding, to say the least, for the Scottish Prison Service as well as for our national health service colleagues and other partners. I put on record my thanks for the hard work and dedication of the staff in those organisations in keeping safe the people in our care as well as their colleagues.

The health and wellbeing of those in the care of the Scottish Prison Service is a key priority. Having been Minister for Drugs Policy and now Cabinet Secretary for Justice and Home Affairs, I have a strong appreciation of the importance of a strategic approach across health and justice. I know that the committee is interested in how the health and justice portfolios are co-ordinating to reduce deaths and support recovery, and in how lived experience and evidence are being embedded in strategy.

As you may be aware, I chair a cross-portfolio ministerial group on prisoner health and social care, which provides clear leadership and helps to ensure a joined-up strategic approach to health and social care in prisons. The vision for justice provides an overarching strategic approach, including focusing on person-centred approaches to reduce crime and harm in our communities and support rehabilitation by the most effective means possible. Our national mission to reduce drug deaths continues to focus on a public health approach to improve the treatment and care provided for people with drug issues. The Scottish Prison Service’s 10-year drug and alcohol strategy, which was published in February, sets out a framework for improving the outcomes of people in custody.

I am sure that you will want to ask about a range of issues in more detail, convener, and I look forward to the committee’s questions, but first, I hand over to Ms Todd.

Mr Kerr is quite correct to point to the impact of significant overcrowding on prisoners, staff and access to drug treatment, as well as to other forms of rehabilitation. Overcrowding puts the system under immense stress.

I would be the last person in the room—and, I suspect, the last person in the Parliament—to ever demur from the serious and significant challenge that we face with a prison population that, as I have said on a number of occasions, is too high. Our prison population needs to be sustainable, because ultimately that is what keeps our communities safe; our prisons need to be able to accommodate those who pose the greatest risk.

I respectfully remind the member that every time that I have taken action I have reminded Parliament that there is no one solution. Early emergency release provides temporary relief. The Prisoners (Early Release) (Scotland) Act 2025—and the programme known as STP40 that it brought in—reduces the prison population in a sustained way by 5 per cent from what it would otherwise have been.

I, too, would quote Teresa Medhurst, who also said in The Scotsman:

“I am grateful for the leadership and support we have received from the Cabinet Secretary ... and colleagues in the Scottish Government. Were it not for the emergency early release programme last year, and the Prisoners (Early Release) Scotland Act, which came into effect this year, our situation would be far worse.”

I accept that that in itself is not good enough, though, so I reassure the committee that I am intensively engaged with the Scottish Prison Service. I have always proactively kept Parliament up to date with the situation, and that will not change. Should new measures be required, I will announce them in Parliament, as I have always done.

I am perhaps going to be a little bit cheeky now, Mr Kerr. I have not walked away from my obligations to take action, but other members in the Parliament have often balked at such actions. I suggest that doing so is perhaps for political expediency instead of prioritising the safety and security of prison staff and managing a very high and complex prison population.

There is a lot in that question, Mr Kerr, so I hope that the convener will bear with me.

The latest figures show that in excess of 15,000 community payback orders have been issued across Scotland. Let me stress that I am very supportive of drug testing and treatment orders when they are appropriate for an individual. The latest figures show that, in 2023-24, there were 280 such orders; they are, by their very nature, a much more discrete intervention, and they obviously involve the courts. Their implementation also varies across the country, which has presented challenges in getting a firm view of their effectiveness.

I have visited drug courts that monitor drug testing and treatment orders, and I know that they have been very successful in helping many people turn their lives around. They are, like all community interventions, delivered locally, so I am very aware of the decision that Edinburgh services took and the impact that that had on East Lothian and Midlothian. I should stress again that these are local decisions.

The orders are effective for many people. The completion rate for a DTTO is around 51 per cent, with 75 per cent of those finishing without any breach. As I have said, the evidence on them is a bit complex.

The great strength of a community payback order is that it can be tailored to the individual. One thing that the sentencing and penal policy commission is looking at is how not just custody but community disposals are used. Why a comparatively low proportion of additional conditions that are specific to drug and alcohol treatment and mental health are put on community payback orders is an interesting question. I am not necessarily saying that that is right or wrong, because sometimes we forget to look at treatment and support in a much broader context. Treating someone’s addiction could be better than treating their trauma. We also need to consider employability, support with life skills and daily living, addressing the specifics around offending behaviour and any underlying attitudes as well as treatment of mental health and addiction issues.

As I have said, it is difficult to say at this point whether that is a good or a bad thing. We need to understand it more, but I can say that the strength of a community payback order is that it can be tailored to the needs of an individual.