Seòmar agus comataidhean

I will start with Mr Kerr’s amendment 104, which is on protections for defence agents in relation to requests from the victims and witnesses commissioner to answer questions or provide documents for investigations that the commissioner is carrying out. The amendment speaks to the direct relationship between a defence agent and the accused, and the role of legal privilege, and is specifically aimed at protecting such privilege.

Although I very much understand the intention behind seeking that protection for a defence agent and the accused, section 12 already outlines that a person is not obliged to respond to a request from the commissioner where they would be entitled to refuse to respond to the same request in court proceedings. Investigations by the commissioner, as referred to in Mr Kerr’s amendments, would not call on defence agents to provide information that was not already available to the court. As such, I am unable to support amendment 104 and, consequently, amendment 105.

In relation to amendment 106, committee members might recall discussions at stage 1 on the need—

I very much appreciate that Ms Clark’s amendment 67 was lodged some considerable time ago. She has alluded to the fact that a lot of work in the area of electronic monitoring has been progressed since she lodged it. Consequently, I do not think that the amendment is necessary and I cannot support it, for reasons that relate to other on-going work, which I will talk about in a moment.

My starting point, and where I agree with Ms Clark, is that providing more help and support for victims and witnesses is key to building a better criminal justice system. It is important that we have the right information available to help us to achieve that. Electronic monitoring is tried and tested. It is a feature of Scotland’s justice system and a key tool that can be used as people move on from prison or as an alternative to custodial sentences. The amendment’s premise is that GPS offers an opportunity to improve monitoring in order to better protect victims. I reassure Ms Clark and the committee that I agree with that, which is why we are progressing with the technology.

As alluded to, Ms Clark’s amendment has been superseded by policy developments. On 31 January, regulations came into force that enabled the use of GPS monitoring devices for eligible individuals who have been deemed suitable for release on home detention curfew after the completion of an individualised risk assessment process. We will progress further GPS developments carefully and the timescales for future uses will depend on the learning from home detention curfew.

That means that subsection (2)(b) of Ms Clark’s amendment, which would require the report to set a timescale for prescribing GPS devices, has been overtaken, and that is one reason why I do not support the amendment. Another reason is that we have already committed to publishing, after a year of use, evaluation and learning from the first phase of the roll-out of using GPS with HDC. That evaluation will include a number of feedback elements, including on the performance of the technology’s protective aspects.

Any further expansion of electronic monitoring with GPS would require regulations to be brought back before the Parliament, and the published evaluation may be part of what the Parliament wishes to consider at that point. The report that the amendment would require would duplicate that work. In addition, there are on-going mechanisms, including regular multipartner meetings, to assess GPS. That will continue over the first year of operation, so that feedback can be collected in real time and the service can be responsive to all aspects of operational practice. I consider that that will be a more effective way of determining impact in this important area in swifter timescales.

There are also practical challenges for the amendment. It is not currently possible for the relevant evidence to be collated in the way that the amendment requires—that is, to show the impact of electronic monitoring on protecting victims and witnesses—as electronic monitoring requirements can be in place across a range of different court orders. I believe that the qualitative evaluation that is already planned for GPS will be a better means by which to surface important learning about it and the future role that it can have in protecting victims.

I therefore respectfully urge the committee not to support amendment 67.

Good morning, convener and colleagues. I begin with my minor technical amendment 140, which adjusts the wording of the definition of “child” in section 23 of the bill so that references to age are internally consistent in the bill.

I will now address the rest of the amendments in the group, which were lodged by Mr Kerr. I understand that the intention of the amendments is to establish the different legal meanings of the terms “victim” and “complainer” and to add “complainers” to the title of the victims and witnesses commissioner. I will respectfully outline my concerns about Mr Kerr’s amendments and why, for a number of reasons, I am not able to support them.

Most importantly, the commissioner is to be a champion for all victims and survivors of crime. Many people who are victims of a crime might not report it or pursue it beyond an initial report. One of the main drivers of the bill is to improve the experiences of all victims and survivors to ensure that they come forward, seek justice and are supported to do so. Although I do not think that it is Mr Kerr’s intention, there is a danger that his amendments would send a message that the commissioner distinguishes between victims. That is unhelpful and goes against the aims of the victims and witnesses commissioner and of the bill.

Of course, I recognise the legitimacy of the term “complainer”. Indeed, the bill uses it where legally required—for example, in section 64 in relation to independent legal representation. In fact, members will note that the terms “victim” and “complainer” are used in different parts of the bill. Those words are used deliberately and intentionally to befit the legal status of the individual being referred to.

I disagree with any notion that a victim is not a victim unless a person has been tried in a court of law. I also resist any suggestion that using the term “victim” is prejudicial and assumes guilt. I know that Mr Kerr did not do that in his remarks, but the term “victim” attaches to the individual who has been harmed, rather than implying anything about who has caused the harm.

Victim Support Scotland has told us that the term “complainer” is particularly problematic for a large number of victims and survivors. It makes them feel that they are seen as complaining in the ordinary sense of the term, rather than having a legitimate right to seek justice. It makes them feel as though their experience is being trivialised as a complaint, rather than seen as a life-changing event. Therefore, it is important for us to acknowledge that victims do not need to have gone through a formal legal process to have been harmed, to be victims and to know that the commissioner has regard to them.

I urge the committee to oppose Mr Kerr’s amendments and agree with me that there should be no change in the name of the commissioner.

That said, I already plan to lodge an amendment at stage 3 in relation to the current definition of “victim” in the bill, taking account of the Government amendments on the victim notification scheme. I would therefore like to end on a conciliatory note and offer to discuss the definition with Mr Kerr ahead of stage 3. Having listened to Mr Kerr’s commentary this morning, I think that we actually have the same aims on these matters.

I have reminded the committee on a number of occasions that I must adhere to our manifesto commitment. I am aware that the Parliament agreed to a moratorium, but it also acknowledged that, out of respect for the legislative process and the work of committees, individual decisions would have to be made on a victims and witnesses commissioner and a disability commissioner. Given that the work on those matters was in process, Parliament acknowledged that full consideration would have to be given to them and so the Parliament’s position does not bind decisions that could be made in relation to this bill.

Yes, I have.

It will be my enunciation.

I will try to summarise my concern. I would never demur from the acknowledgement that there is much more to do. In broad terms, my concern about the amendments is that they take us into an area of prosecution that can, at times, involve overreach. The water is being somewhat muddied by the fact that we are trying to build a system that is based on ensuring protection for victims, whether that is through a reformed victim notification scheme or other measures. This is a particularly complex area for us to dig into and it needs much more thought.

There are also limitations, including under the Scotland Act 1998; Mr Greene will be well aware of the limitations for ministers and parliamentarians in that regard.

By and large, I accept that. However, I point out that, particularly in the context of legislation, blanket approaches can be problematic. I will not rehearse the arguments that I have made about that.

We have already touched on the Victims and Witnesses (Scotland) Act 2014, under which victims have the right to request information about their case, including when a decision has been made not to prosecute or to discontinue proceedings. I will not repeat what I have said about the work that the Crown Office is currently undertaking. I know that members of the committee will be aware of the specific right to access the victim’s right to review scheme. There has also been discussion about Police Scotland’s your care card.

For the reasons that I have outlined, I cannot support any of the amendments in the group, and I urge the committee to oppose them.

Well, that was the issue that you raised at stage 1, Mr Findlay. I referred—it was probably a page and a half ago in my notes—to the integrated domestic abuse courts, or IDACs.

I have intimated some of it. We have had detailed feedback, Mr Findlay.

I appreciate that, in your amendment, you have attempted not to interfere with the independence of the judiciary or the Lord President. However, the Scottish Courts and Tribunals Service has raised many practical issues with me—indeed, the subject came up when I had my first formal meeting with the new Lord President and the Lord Justice Clerk last week. A number of issues have been raised and I have highlighted some of them.

If I may, I will go on to talk about what we are doing over and above the research, although that research is important in helping us to learn from other jurisdictions, such as England and Wales, and we want that research to be published in time to support the next Government and the next Parliament.

Another reform that emerged from the workshops deals with the potential to make changes to court rules to ensure that civil courts get information about domestic abuse and sexual assault at the early stage of the civil process. Although court rules are made by the courts and not by ministers, the Scottish Government intends to send a policy paper to the Scottish Civil Justice Council. That paper will propose changes to court rules about the information regarding domestic abuse and sexual assault that is provided to the civil courts. A draft of that policy paper will be ready by the start of stage 3.

On the basis of the steps that we are actively taking to improve the interface between the civil and criminal courts, and because such significant change should not be dealt with by an amendment to this bill, I ask committee members to oppose amendment 78.