Seòmar agus comataidhean

That is not what I am offering. What I have said is that, with regard to Jamie Greene’s suggestion of pulling out a particular category of activities—as Pauline McNeill has mentioned, the discussions between clients and solicitors—I do not know whether that is possible or practical. I am willing to discuss with officials whether it is and to have a meeting with Pauline McNeill, if she will find that useful, but I cannot commit to doing that at this stage.

I am happy to come back to the member at the end of my remarks.

It is important to consider the consequences of such a change, remembering that it is the most serious sexual offence cases, including all charges of rape, that are tried in the High Court. If an application for extension is made by the Crown Office, because a case is not yet ready for trial, and is refused, the Crown Office might well have no choice but to decide that the evidence required to prove the case beyond reasonable doubt is simply not in place, and the trial will therefore have to be abandoned. As Kate Wallace has said, that would risk leaving complainants feeling that justice had not been done. It would also mean that people who are accused of the most serious crimes could escape justice and might offend again.

If, on the other hand, the application was made by the defence, it would perhaps be more likely that the trial would proceed if the application was refused. However, if an application to extend the time limit had been made, for example, to secure more time to identify key witnesses, there is a risk that proceeding with a trial would increase the risk of a miscarriage of justice.

Whatever the position with regard to which party in the proceedings requests an extension, it is clear that the interests of justice might not be served with the much higher threshold of the time limit test that the amendment provides. For those reasons, I invite Mr Whittle not to move amendments 1001 and 1002.

I am afraid to say that the same concerns arise with amendment 1056. It is worth noting that it is wider in scope than the other two amendments, allowing the courts to extend the statutory time limits under section 65 of the Criminal Procedure (Scotland) Act 1995 in any case tried on indictment either in the sheriff court or the High Court only “in exceptional circumstances”. It is not limited to sexual offence cases. Because of the potentially severe unintended consequences that I outlined in response to Mr Whittle’s amendments 1001 and 1002, I invite Pauline McNeill not to move amendment 1056.

Amendment 1021 would require the Scottish Government to report to Parliament every six months on statistical matters relating to the remand population, including the size of the remand population, the average length of time that prisoners are being held on pre-trial remand and the number of prisoners given a custodial or non-custodial sentence, or found not guilty, who were held on remand prior to trial. I can see the merit in reporting on the remand population, given the concerns about the length of time that some prisoners have been held on remand prior to trial. However, I do not think that amendment 1021 quite works, as it is not clear exactly what the duty that falls on Scottish ministers to report on the size of the remand population and the average length of time prisoners are held actually is. It could be a snapshot at the end of the reporting period, say, or a rolling average—the amendment is not clear on that point.

Equally, I am not persuaded that the information on the disposals given in cases where the accused was held on remand prior to trial is necessarily a useful piece of information. Accused people can be held on remand for a variety of reasons that are not necessarily related to the seriousness of the offence that they have been charged with. For example, they might have breached their bail conditions or there might be a concern that they will not turn up to court if they are released on bail.

I also understand that the current information technology systems used by the Scottish Courts and Tribunals Service are not set up in a way that would enable that information to be obtained. Therefore, I would ask Ms Clark not to move amendment 1021, but I am happy to seek to work with her to see whether an amendment to address those issues could be developed in the short time that we have ahead of stage 3.

Amendment 1022 would require the Government to provide a quarterly review of the necessity of continuing extended time limits to the Scottish Parliament. As section 42 of the bill lays out, if the Scottish Government wished for the extended time limits—or indeed any of the temporary justice measures—to remain in force beyond 30 November 2023, the statutory instrument providing for that must include a statement of reasons for such a move. Therefore, the interests and scrutiny role of the Parliament are protected for extensions beyond the initial period provided for in the bill to 30 November 2023. Amendment 1030, which I will discuss in a later group of amendments, might also be relevant in this area.

Convener, I have tried to make clear that extended time limits are, in my view, a necessary measure, which other jurisdictions have also had to resort to, while the criminal court system recovers from the backlog created by the pandemic.

The letter that the committee received in response to the stage 1 report from the Crown Office gave a detailed breakdown of how fiscal fines are being used, including fines of up to £500. I think that, taken together with what I have just said about the use of such powers dating back to 1995, and about their being applied to the same range of offences—with the addition of offences that have been created over the past couple of years, mainly as a result of coronavirus restrictions—that will give a degree of clarity.

I am sure that Pauline McNeill will understand that I cannot answer for the Crown Office in relation to this matter. All I will say is that if there is a practical reason why the Crown Office feels that it is not possible to provide that information, I am happy to try to work with the committee on that. I cannot speak for any policy decisions that the Crown Office might make, but I am happy to work with the committee if there is a practical block to any information being provided.

Amendment 1038 is, in my view, defective, because it does not achieve what it seems to want to achieve. In any event, I oppose it on policy grounds, given the long-standing discretion, going back to at least 1995, that the Crown Office has had as independent prosecutors in using fiscal fines. For that reason, I ask the committee to reject amendment 1038.

Amendment 1040 seeks to introduce victim notification requirements for the Crown Office in cases that are dealt with by way of fiscal fines. First, it creates a proactive duty on the fiscal to inform the complainer when a fiscal fine has been accepted by an alleged offender in a given case. Secondly, the amendment creates a proactive duty on the procurator fiscal to inform the complainer when a fiscal fine has been rejected by an alleged offender and the outcome of any proceedings that result from such a rejection. It might well be the case that amendment 1040 is well intentioned, but I cannot support it.

As we heard from the Crown Office through its written response to the committee’s stage 1 report, it has existing statutory obligations under section 6 of the Victims and Witnesses (Scotland) Act 2014 to advise all victims of all case outcomes on request. That includes cases that are dealt with through alternatives to prosecution such as a fiscal fine or cases in which a decision to take no further action has been made. In other words, any complainer who wishes to know the outcome of a case, including fiscal fine cases, can ask the Crown Office.

I recall that interventions in an earlier debate were covered in subsequent remarks. Perhaps it might help if I can get through my remarks, convener, although of course it is up to you to allow an intervention to be taken.

The purpose of extending the time limits is, in large part, to ensure that scarce prosecutorial court and defence resources are not diverted towards preparing and adjudicating on large numbers of applications to extend the statutory time limits on a case-by-case basis. That was the whole rationale in the first place. If we allowed such diversion to happen, we would reduce the system’s capacity to progress cases and, as a result, it would take additional time for cases to come to court than would otherwise be the case.

We continue to support justice agencies to take action to address the court backlog that the pandemic caused. A justice recovery fund of £53.2 million has been established to aid recovery and we have extended funding for remote jury centres for an additional three months to ensure that capacity is maintained as the court service transitions back to having juries in court.

However, justice agencies have made it clear that it will take several years to bring timescales for the overall case load back to pre-coronavirus levels. In that light, it would be entirely counterproductive to amend the bill to reduce the length of any time limit extension or to remove the extension entirely, if that impacts on the number 1 priority of throughput of cases.

It is not just me who is saying that—I think that Katy Clark made the same point. The committee will also recall that, in her evidence to the committee, Kate Wallace of Victim Support Scotland expressed concerns that if time limits were not extended, cases would time out, denying justice to victims. She said:

“if the time limits were not extended until the system had recovered and we got things back under control, I would be concerned that cases would end up timing out. That is the very opposite of what we want. Victims are very concerned that they will not see justice done.”—[Official Report, Criminal Justice Committee, 23 February 2022; c 18.]

For that reason, I ask Ms Clark and Ms McNeill not to press or move their amendments.

However, amendments 1047 and 1048, in the name of Pauline McNeill, seek to revert to the situation brought about by two specific changes that were made to time limits relating to adjournments in cases that arise post conviction. Neither of those areas—pre-sentence reports and breach hearings—affects the trial process, and they are therefore distinct from the other time limit changes. These amendments would mean that the court could still adjourn a case again if necessary, as the original time limit would apply only to the length of a single adjournment, and the particular time limits would not impact on the throughput of trials. For that reason, the Scottish Government supports amendments 1047 and 1048. They are proportionate and go a small way towards enabling the courts to revert to pre-coronavirus time limits, which I think that we would all support, but not at the expense of the throughput of criminal cases.

Amendments 1001 and 1002, in the name of Brian Whittle, and amendment 1056, in the name of Pauline McNeill, seek to elevate the threshold of the test that is used by the court in assessing whether to extend the time limit. That area has not been changed by any of the coronavirus legislation, and these amendments would represent entirely new policy that has not been considered by this committee or anyone else. I would be concerned—

The time limits need to be extended so that the entire system can cope. Also, as I have been saying, there are constraints on the court service in relation to getting the information that you have been seeking. Generally, though, the time limits are justified by the strain on the entire system.

Of course, I do not want the extended time limits to be in place any longer than necessary, but I am not convinced that amendment 1022 meaningfully adds to the reporting requirements that are already contained in the bill. Along with the need to justify to Parliament any continuation of extended time limits beyond 30 November next year, it is of course always open to any MSP to ask parliamentary questions to obtain information on any aspect of the operation of the justice system that might influence any decision to extend or expire those provisions. For that reason, I ask Mr Greene not to move amendment 1022.

To go back to the point about remand, I think that the Scottish Prison Service will be able to provide that information to the committee if the committee asks for it, although the service will always say that the number that it gives is just the number on any given day.

Amendments 1027 and 1028 seek to provide that the extended statutory time limits in sections 65(3), 147(1) and 200 of the 1995 act, which relate to cases where the accused is being held on remand prior to trial or sentencing, will automatically expire one year after royal assent. It with the other temporary justice measures, those time limits could not be extended by statutory instruments.

We simply do not know what the situation will be with the backlog of cases in the summer of 2023 but, if amendments 1027 and 1028 are agreed to, the effect would be to expire the time limit extensions relating to remand cases, regardless of the scale of the backlog of cases at that point. As I have said, removing the extended time limit provisions before the backlog created by the pandemic has been reduced sufficiently might actually increase the length of time that people spend on remand prior to trial. For that reason, I ask Katy Clark not to move amendments 1027 and 1028.

Amendment 1004 in my name makes transitional and saving provision in relation to the time limit extension provisions in the Coronavirus (Scotland) Act 2020. The bill very slightly changes the length of certain extensions to time limits as expressed as a number of days rather than a number of months, as was provided for in the 2020 act. That is being done to make the provisions easier to understand. Amendment 1004 therefore makes transitional provision to avoid a single case having two different time limit regimes applying at different points in the criminal process.

I am sympathetic to the rationale that Jamie Greene has laid out, but the Government and I do not support his amendment for the reasons that I will enumerate. I will restrict my comments to the amendment rather than comment on the wider issues that have been raised.

Victim attendance at parole hearings is obviously a key issue, and I fully support that, but the scheme of delegation for the chairperson’s functions is not the appropriate, or even logical, mechanism by which to address the issue, as those are entirely separate matters. Ensuring that victims are able to attend parole tribunal hearings is not a statutory function of the chairperson. Instead, provision for victims to attend hearings is made in the Parole Board rules, which were amended last year to expressly provide for attendance by victims.

The scheme of delegation that section 32 of the bill provides for is about delegating functions conferred on the chairperson of the Parole Board. Most obviously, that means functions associated with heading the organisation. However, the chairperson also has particular statutory functions—for example, in relation to the reappointment of other members of the board. It is for the chair of each parole tribunal rather than the Parole Board to exercise the function of granting or refusing an application by a registered victim to observe a hearing. The absence or unavailability of the chairperson of the Parole Board as a whole does not impact that established process, and nor does it affect the entitlement of a registered victim, if permitted, to attend. It is therefore not clear what amendment 1009 seeks to achieve.

It is true to say that, at an earlier stage in the pandemic, victims were not able to attend hearings, as chairs prioritised the safety of victims and staff. I reiterate that such decisions are taken by the independent Parole Board and not by the Scottish Government. However, the board has since successfully held tribunals with victims in attendance, and the Government will continue to monitor, support and encourage that important function, as carried out by the Parole Board for Scotland and justice partners.

I ask Jamie Greene not to press his amendment.

Work will be done through the hearings system working group, which is considering the issue. As Pauline McNeill said, I have laid out that our desire is to return to a situation in which we have that balance. As Pauline McNeill also said, it is true that, for a number of years, we have had difficulties in getting male members. One or two males in my local area were successfully encouraged to join, but Clackmannanshire has a very small pool of people to draw from.

The national convener of the children’s hearings system remains committed to diversity in the recruitment of panel members and in relation to the composition of individual hearings, as does the Government. We think that it is optimal to have that balance for obvious reasons.

Sheriff Mackie, who some members will be aware of—he happens to come from my local area, just by sheer coincidence—is leading the review to consider the future of the system. It might be that the issue is considered further against a backdrop of change in the system more generally. However, that is a matter for the independent hearings system working group. We have asked that data on the gender composition of children’s hearings panels continues to be collected, and we will continue to monitor how and when that measure is used.

As is mentioned in the bill, the measure will be temporary, as things stand.

The committee considered issues around virtual hearings carefully at stage 1. It is clear that, although some stakeholders are extremely supportive and would like the use of virtual hearings to be extended further, others have concerns. We need to explore those concerns with them before we make decisions on any permanent measures in future bills, and we are committed to doing that. Indeed, we have already begun, including through the consultation on improving victims’ experiences of the justice system that we launched just last month.

I mention in passing that Ken Dalling, the president of the Law Society of Scotland, in evidence to the committee last September, said:

“I am a relative convert to virtual custodies ... that approach seems to be well received by the accused who are appearing, because they do not have to be bussed around.”—[Official Report, Criminal Justice Committee, 8 September 2021; c 31.]

On the points that Pauline McNeill raised, I accept that we are all working with the best of intentions to try to get the best justice system possible, but the bill deals with measures that we believe to be necessary in order to respond to the pandemic. It may be argued, of course, that larger elements of the pandemic have receded in recent months, but we cannot take that as meaning that the threat from Covid is over. In addition, Covid is likely to be more prevalent in the justice system, in prisons or even among juries, where people are obliged to be in certain spaces at certain times.

In the meantime, the temporary provisions in the bill will enable the use of virtual hearings, which, in the Government’s view, remain a vital part of supporting the recovery of our courts. Virtual hearings give courts the crucial flexibility to help them to address the backlog, and they enable the continued use of remote jury centres, which remain part of the Scottish Courts and Tribunals Service’s contingency planning.

Virtual hearings have been used extensively for civil procedural business in particular, and the civil courts will continue to rely on the provisions in the bill until new court rules, which are currently being developed by the Scottish Civil Justice Council, come into effect. The continuation of these provisions will also enable partners across the sector to continue to build an evidence base that will allow us to take longer-term decisions on how and when virtual hearings should be used for criminal cases. I am aware from previous discussions with the committee that there are different views, and it is right that we take time to explore those further, certainly with regard to any future permanent changes.

In its stage 1 report, the committee recommended

“that more virtual trials need to take place in the criminal courts”,

including through an extension of the virtual summary trials pilot, led by Sheriff Principal Pyle. Again, that relies on the implementation of the provisions in the bill.

For those reasons, I cannot support Pauline McNeill’s amendment 1035, which would remove the crucial flexibility on which the criminal justice system has relied, and continues to rely, in its response to mitigating the impact of the pandemic on court users, including victims and witnesses. It would lead to increased delays and undermine the development of an evidence base to inform long-term decisions on the role of virtual proceedings. Even if some people think that the pandemic is largely over, we have always known that the backlog is far from over.

Amendment 1036 focuses specifically on hearings where the accused person is in custody, and would require those hearings to be held in person by default. Pauline McNeill has voiced concerns about the operation of virtual custody hearings, and I know that Police Scotland has previously written to the committee about the issue.

In its letter, it highlighted recent improvements to the technology that supports virtual custody hearings and underlined its commitment to ensuring that custody hearings run as efficiently as possible so that people are not detained in custody for longer than is necessary. Listening to the experience that Pauline McNeill passed on, it strikes me that the Parliament has had its own issues with the transmission of virtual proceedings.

It is important to remember that, although there have been challenges with the implementation of virtual custody hearings, as there are with any technological innovation, the provision remains a valuable tool to support safe appearances from custody. For example, if an accused person has, or is suspected of having, Covid, maintaining the provision ensures that the custody hearing can take place safely by video link. Of course, there remains an option for individuals to request an in-person appearance if that is preferred. For those reasons, I do not support amendment 1036. I invite Pauline McNeill not to press or move her amendments.

Amendments 1005, 1006 and 1007 in my name would make it the default position that appearances on undertaking take place in person rather than virtually. An appearance on undertaking means that the police have charged a person with an offence but, rather than keep the person in custody and bring them before a court, the police release the person on an undertaking, which is agreed to and signed by that person, that they will come to court on a particular day. The Crown Office and Procurator Fiscal Service has brought to our attention that there has been some uncertainty about how the current arrangements for virtual attendance in the Coronavirus (Scotland) Act 2020—the first Scottish coronavirus act—should operate in relation to undertaking hearings. In practice, those hearings have continued to have been held in person, and the amendments would put the matter beyond doubt to reflect operational practice.

We will continue to consult justice partners on the operation of the first Scottish coronavirus act provisions as they relate to undertaking hearings and on whether it would be beneficial to move other types of hearing to being in person by default to reflect operational need and practice. If so, we may lodge further amendments at stage 3.

On amendment 1010, in the name of Jamie Greene, I am supportive of gathering and publishing data on virtual trials as part of building up an evidence base that can inform decisions on a permanent approach. However, it is essential that any requirements that we create for the publication of data from the Scottish Courts and Tribunals Service are workable and not unduly onerous for a system that is, as I mentioned, seeking to tackle the backlogs efficiently and effectively.

It is also important that any data that is published is robust, meaningful and focused. As currently drafted, amendment 1010 would capture a sweeping range of cases, including many that we might not think of as virtual trials. For example, it would capture all cases in which a vulnerable or child witness gave evidence by video link as part of standard permitted special measures, which have been in operation for many years and have nothing to do with the Covid legislation or the provisions in the bill. The amendment would also require the courts service to publish information that it does not normally hold, and the courts service has advised us that it would not be possible to deliver the amendment in its current form.

If Jamie Greene is willing to not move his amendment, I will ask my officials to work with the courts service to agree a workable and focused approach to publishing data to improve the evidence base on virtual trials on a non-statutory basis. With that in mind, I ask Jamie Greene not to move amendment 1010.

Finally, I come to Katy Clark’s amendment 1034, which would require ministers to “prepare and lay” regular reports

“setting out the progress that is being made in the implementation of virtual courts.”

It is important to remember that, as Pauline McNeill has made clear, there is not a consensus on what the future of virtual courts should look like, such that we can progress towards it in a linear way. The committee’s stage 1 report recommended that more evidence be built up on the impact of virtual court and tribunal business before any decisions are made on permanent arrangements. We agree with that approach. Our response to the committee’s report sets out work that is already under way to gather more evidence on virtual court proceedings. The findings of consultations and research will be published in due course, and they will inform our decisions on next steps.

We do not want to pre-empt the results of that work, nor do we want to cut across the work of the Scottish Civil Justice Council, which has already consulted on proposed new court rules concerning the mode of attendance in civil proceedings and is developing plans to implement changes. Drawing on the evidence and our engagement with partners, if we decide to legislate to put virtual criminal courts on a permanent footing, Parliament will have the opportunity to scrutinise any proposed legislation that we introduce. In addition, members can use parliamentary questions or the committee system to seek information from the Government on its progress in developing policy on virtual courts.

Therefore, I do not support amendment 1034, and I invite Katy Clark not to move it.

Is the member’s position that he is opposed to the ability of ministers to intervene in sentencing in relation to release? Does that apply only to the Scottish ministers, or does he object to the same power being used by UK ministers?

Without those provisions, we would be required to introduce emergency legislation if the impact of coronavirus placed the security of prisons at risk. Emergency legislation would take time that our experience of the pandemic shows that we could not afford.

For those reasons, I cannot support amendments 1049 and 1057, which would remove the ability for the Scottish ministers to release groups of prisoners in response to the impact that coronavirus was having, or was likely to have, on the security and good order of prisons and the health and safety of prisoners and prison staff. I therefore invite Russell Findlay not to move those amendments.

I turn to amendment 1023 in the name of Jamie Greene. The amendment seeks to limit the application of the prisoner early release power, so that prisoners cannot be released any earlier than six months prior to their scheduled release date. I am happy to support the principle of the amendment and highlight that the regulations that allowed the use of that power in May 2020 restricted release to individuals within 90 days of their scheduled release date. However, there are some significant problems with the way that amendment 1023 is drafted. For that reason, I cannot support it today, but I would like to work with Jamie Greene, if he is willing, to lodge amendments at stage 3 that will achieve what is intended. I therefore invite Jamie Greene not to move amendment 1023.

Amendment 1050, in the name of Russell Findlay, would prevent individuals who have tested positive for coronavirus from being released under the emergency release mechanism. I know that Mr Findlay raised that issue during stage 1.

It should be noted that testing is not mandatory in the community and I am of the view that we should not make it mandatory as a condition of release. SPS worked hard during the pandemic to ensure that the Covid-related restrictions placed on prisoners were proportionate and, as far as possible and as a number of committee members have said, reflected the restrictions placed on the wider community. That was certainly the view of Her Majesty’s Inspectorate of Prisons for Scotland. That helped to protect the good order of prisons and the health and wellbeing of prisoners and prison staff.

I assume that the amendment is intended to protect public health. That is an intention that I support. However, if members of the general public are not required to undertake Covid testing for the purposes of protecting public health, it is not proportionate to require prisoners to do so. If it were the case that a prisoner had tested positive, or, in the absence of a test, was nevertheless reasonably believed by the SPS to be infectious with Covid, the release power would be used to delay their release until they ceased to be infectious. That approach was taken in 2020 and is the approach that we would intend to take in future.

Also, as currently drafted, amendment 1050 could prevent any prisoner who has ever tested positive for coronavirus being released under that power, which I am not sure is the effect that Mr Findlay intended.

For those reasons, I do not support amendment 1050 and I invite Mr Findlay not to move the amendment.

The remaining amendments in the group, all in the name of Russell Findlay, would exclude various categories of prisoner from emergency release by regulations. I cannot support any of those amendments today, because they all suffer from the same drafting error and would have the effect of preventing someone from being released in an emergency if, at any point in their lives, they had been convicted of an offence of one of the kinds that his amendments mention, even if the conviction had been spent decades ago. That would be a completely unreasonable position to take—it might even be an unlawful one—and I do not think that it is what Mr Findlay intended. I assume that he means only to stop the release of people who are actually serving sentences for the offences that his amendments mention.

I would be pleased to work with Mr Findlay to produce, for stage 3, properly drafted versions of his amendments 1052 and 1053, which would exclude from the emergency release mechanism anyone serving a sentence for a domestic abuse offence. Indeed, I would like to go further and also exclude anyone convicted of an offence aggravated by domestic abuse. That is exactly what we did in the one set of regulations made under the power in the emergency act. I therefore ask Mr Findlay not to move amendments 1052 and 1053 so that we can work to bring them back, in better shape, at stage 3.

I cannot support amendments 1051, 1054 and 1055 at all.

Amendment 1051 would exclude from the emergency release mechanism anyone who has been convicted on indictment. The thought behind that seems to be that the crime of a person who was prosecuted on indictment is inherently more serious than that of someone who was prosecuted summarily. That is too simplistic. It is, of course, right that a prosecutor’s decision about whether to prosecute someone summarily or on indictment will be based on their assessment of the seriousness of the crime. However, such an assessment, which is made before a trial has begun, might not reflect what comes out in court. It is wrong to assume that everyone who has been convicted on indictment has committed a crime that is worse than that of anyone convicted summarily, or that those who have been convicted on indictment are inherently more prone to recidivism than anyone convicted summarily. Using the administrative choice that was made about which procedure to prosecute someone under is simply too blunt an instrument for deciding which prisoners should be released early in the face of a deadly virus. I therefore urge members to reject amendment 1051.

Amendments 1054 and 1055 would exclude from early release people who have been convicted of crimes of violence and sexual crimes. The amendments do not define those terms, which do not have any generally accepted legal meaning. Agreeing to them would therefore introduce considerable uncertainty into the law. It would be a dereliction of the Parliament’s responsibilities to pass such ambiguous legislation.

Amendments 1054 and 1055 are not only problematically unclear; they are unnecessary. The bill already excludes from emergency release the most serious sexual and violent offenders. It provides that the power cannot be used to release those serving extended sentences for sexual or violent offences, nor can it be used to release anyone subject to a supervised release order, nor anyone subject to notification requirements under the Sexual Offences (Scotland) Act 2009. As Mr Findlay himself said, on top of those restrictions it gives prison governors the power to deny emergency release to any prisoner who is considered a risk to an identified person.

There is no need for amendments 1054 and 1055, and they do not work technically. I therefore invite Mr Findlay not to move them.