Seòmar agus comataidhean

As many witnesses have said, there is no question but that there will be a resource demand, especially on justice social work. The bill’s ambitions have to be met by that resource provision being in place. It will take time to make sure that that happens in advance of the bill’s commencement. We must minimise any delay. That is the intention and, of course, it is the Government’s responsibility, along with others, to make sure that those things are in place.

Let us say, however, that there was a delay in receiving a justice social work report—for a case for which there would not previously have been a report—and that that person could then get bail. That delay of hours—possibly a day—must be compared with the number of days, weeks or months, even, that somebody might be on remand. There is a substantial benefit to be had there. I have given you some of the figures already. We have said that we would put more money in this year—I think that it is an extra £15 million, split into two chunks of £11.8 million and £3.2 million—for the specific purpose of increasing our bail supervision capacity. That is the way in which we intend to meet it, and we are not at all denying that it will present a resource demand.

First of all, it is not for us to say whether the court system has been wrong in relation to those people who have committed serious offences while on bail. One of your expert witnesses—Philip Lamont might have the exact reference—said that around 21 per cent of prisoners did not need to be on remand.

One of the purposes of the bill is to take into account the gravity of the offence, as well as the likelihood of risk of further offending. Of course, to have a sensible estimation of the recidivism—the offending rate—of those on bail, you have to compare that with what it would be if they had served in custody. The two rates are a very useful comparison.

We think that there is a cohort, although not necessarily in relation to serious crime—as I mentioned in response to Rona Mackay, the vast majority of people who are currently remanded under section 23D are likely, for the same reasons, to be remanded in the future—that need not be put on remand.

It would be useful to hear from Philip on that as well, convener.

That does not necessarily relate to the nature of the crimes of which they are accused. It does to some extent; I realise that.

I am a little bit confused. What is it in the test that is proposed that does not go far enough to capture more of the people about whom you are concerned? I say that because I think that the discussion with the committee is also meant to be a bit of a dialogue. I am happy to be questioned, but we are genuinely looking for other people’s ideas about this, so if there is a category of people that we are not going to capture with those proposals, I am happy to hear that.

Since you asked Philip Lamont about a contradiction in his statement, maybe we should hear from him too.

Thank you very much, convener. I echo your remarks about Barry, the firefighter who has sadly died. The Cabinet recorded its condolences to the family and I think that the First Minister has written to the family. The Minister for Community Safety, who has responsibility for the fire service, has written to the fire service to express the Government’s condolences. It demonstrates how much we rely on people in such very difficult circumstances.

The bill’s provisions seek to reduce crime and reoffending. That is the best way to keep victims and our wider communities safe. The bill does that by focusing on two critical parts of the justice system: the point at which bail and remand decisions are first made by the court, and release from prison.

Reducing the use of remand is an explicit call that all members of this committee made in the action plan that you agreed and sent to the Scottish Government. If you think back, you will remember that in the debate that we had in the Parliament last year, all parties demanded a reduction in the number of people held on remand. The bill responds to that call for action, which echoes calls from many others and recognises the damaging impact of remand. Remand removes people from their homes, families, jobs and communities. Remember, at that stage, they may be innocent of the crime with which they are charged. We have to remember that they have not been convicted of a crime but only accused of an offence.

From a victim safety perspective, Professor Fergus McNeill described the issue as follows:

“Imprisonment, whether it is for remand or, in particular, short sentences, is not a magic box that removes or eliminates risk and keeps us safe. Imprisonment is actually more likely to serve as an incubator of risk, so it stores up problems of harm that might come later.”—[Official Report, Criminal Justice Committee, 11 January 2023; c 23.]

Obviously, those downsides can be incurred even if the person turns out to have been innocent of the crime with which they are charged.

The challenge that we all face is: if the proposals in the bill are not your chosen proposals to reduce remand, what are those proposals? At the heart of the bail reforms in the bill lies an absolute commitment to individual decision making by the court, aligned to public safety, including victim safety, and the recognition that remand should, as much as possible, be a last resort.

The ambitions of protecting public safety and using remand as a last resort can coexist. Indeed, in the evidence that you have heard from Professor McNeill and others, they complement each other. Remand will continue to be needed and the new bail test explicitly recognises that. There are occasions where remand is necessary to protect public safety and victim safety; again, the new bail test allows for that. There are occasions where remand is necessary to protect the integrity of the criminal court process to ensure justice can be delivered; again, the proposed bail test allows for that. Those two examples are situations where remand can and should be used as a last resort.

For people who do not pose a risk to public and victim safety, or who do not threaten the delivery of justice in a case, there has to be a better way to support them in their communities, including supporting them to turn up at court for their trial. The bill and the new bail test are ways in which the Government is responding to that call for action, but should be viewed as part of a wider programme of work that is already under way. That work includes increased investment in bail assessment and supervision services, the introduction and roll-out of electronically monitored bail and action to reduce the court backlogs, which have reduced by at least 13,000 since last January.

The bill proposes a more prescriptive bail test, which some witnesses mentioned during your evidence sessions. I say up front that it is prescriptive, but it is prescriptive with a purpose; namely, to ensure that remand is used only as a last resort. Where public and victim safety requires remand, or where the delivery of justice in a case requires remand, the bail test allows the court to use remand.

The committee heard a range of views about the proposed removal of section 23D of the Criminal Procedure (Scotland) Act 1995. I have listened to some of those sessions and read the Official Reports of them. Section 23D is the current restriction on bail for certain accused persons. The bill proposes to remove section 23D for one simple reason: so that in all cases the same core bail test, with public safety at its heart, applies. You will have heard that there has been support for that simplification measure from those who use bail law. However, I understand why some concerns have been expressed. I have no doubt that that issue will be discussed this morning.

The words “public safety” have been part of bail law since 2007. There was whole-hearted support for that step at the time, including from, I think, Pauline McNeill, who is not here today. Nobody indicated at that time the need for a statutory definition. I am not aware of any cases where the lack of a statutory definition has caused an issue. That is the context of the debate that members have been having.

I will explain a little bit about the Government’s approach. The bill does not include a statutory definition of “public safety”, but there is a definition, which is the ordinary meaning of the words. In legislation, where the ordinary meaning of words is meant to apply, it is common practice not to include statutory definitions. The Oxford English Dictionary meaning of the word “safety” is:

“The state of being protected from or guarded against hurt or injury; freedom from danger”.

Therefore, offences, the nature of which pose a risk to safety, are those that threaten to cause hurt or injury, or which present a danger.

The word “public” has been held in case law as meaning either the public in general or a section of the public, as the context requires. Therefore, the ordinary-meaning definitions reflect the policy intention of the meaning of the phrase “public safety” in the bill. As such, we have to ask what benefit is to be gained by adding a statutory definition. It is worth pointing out that including a statutory definition is not without risk. There may be unintended consequences if the definition is limited unnecessarily. However, as with all aspects of the bill, I would very much welcome the committee’s views on that matter in the stage 1 report. If the committee takes the view that a statutory definition would be beneficial, I would be interested in its thoughts on what a statutory definition should include, and whether, specifically, it needs to be different to the ordinary meaning of the words “public safety”.

I now turn briefly to part 2 of the bill, on release from prison. Ensuring that those leaving custody have their basic needs met on release is critical for a safe transition back into the community. It reduces the risk of reoffending, which is, surely, what we are all trying to achieve. It results in less crime—which, again, is something that we all want—and fewer victims, and it provides for safer communities. That is why the bill includes reforms to improve pre-release planning and the throughcare support that is provided to individuals on release from prison. It recognises that a range of universal services have a role to play. I am sure that we all agree that those principles are important.

Lastly, I touch briefly on resources, particularly the role of justice social work, which has been a focus of your deliberations so far. The bill recognises the critical role that justice social work plays in supporting people and keeping our communities safe. We recognise that the enhanced role of justice social workers set out in the bill carries resource implications. Those were set out in the financial memorandum, which was informed by engagement with Social Work Scotland and the Convention of Scottish Local Authorities.

I do not have to tell anyone here, I hope, that the financial landscape is extremely challenging, and we will need to continue to make difficult choices. Despite those challenges, we have continued to protect the community justice budget, such that, in 2023-24, the Scottish Government intends to invest a total of £134 million in community justice services, including £123 million for local authorities. We will continue to engage with Social Work Scotland and COSLA on the future resourcing requirements of the bill.

The pandemic is a major factor in that. Obviously, with the court system having to operate on an extremely restricted basis, that very large increase happened, which other jurisdictions have seen as well.

Many of your witnesses have said quite explicitly that they believe, from their expert position, that legislation is required to change things. If you look back into the history of the issue, you will see that there have been a number of attempts to try—almost by persuasion and by respecting the independence of the courts—to achieve the reduction in the number of people on remand for the best of reasons, but that those has not been effective. We believe that legislation is required.

I will not read them out, but I have quotes from individual members of this committee demanding that the remand situation be dealt with. At that time, no distinction was made between legislative and non-legislative measures; members just wanted us to get on and deal with it. I said in my opening statement that, based on the information that we have, we think that legislation is how we should deal with the situation. If there are other suggestions—I have also asked individual stakeholders in the justice system for suggestions on how we can do this—please tell us.

I want to correct a couple of things. We have not said that the primary purpose of the bill is to reduce the numbers in prison. We have not made that statement. I think that there have been some indicative figures of what a reduction might look like by one of our stakeholders, but the purpose is to make sure that only the people who need to be held in custody are held in custody. That is the primary purpose of the measures, and we think that this legislation is the best way to do that.

Philip Lamont’s contribution on that will be useful. That is an area that it is more than tricky for the Government to get involved in. I think that you are asking about how there would be such interaction, short of there being legislative measures. It is very tricky for the Government to get involved in that, given the independent nature of the Crown Office.

As Jamie Greene said, the committee has heard evidence from some people who have said that legislation is a legitimate way to deal with the matter. That is the role of legislators. However, it is not our role to get involved in the influencing, if not the directing, of the independent service.

It is not my position that the opposing of bail is overused. However, I think that the committee received evidence from members of the judiciary or the legal community who felt that they are currently constrained when it comes to refusing bail.

I do not know whether Philip Lamont wants to add to what I have said.

That is an interesting part of the bill, because, as you hinted, what you will get from recording is a seam of really rich information that others can use, which is the court’s statement on why bail was not granted. That will lead, over time, to greater refinement of those decisions. Some of the academic witnesses from whom you heard also said that they think that it will be a rich source of information in an area where such information is currently very limited. That, perhaps, is the main benefit. I know that it is another process for the court to go through, but it will be extremely productive. I wonder whether—I will try to get the right official—Philip Lamont wants to comment on that. Yes, he has put his hand up; I have the right person.

The quote that I read out at the start from Professor McNeill is useful in this philosophical discussion. He talked about the idea of remanding somebody reducing or eliminating the risk—I forget the exact quote. I think, and he said, that there is an increased risk sometimes. If you imprison somebody, especially in situations where they are then found to be innocent of the crime with which they have been charged, you increase risk. If somebody is put into the prison system—I know that we would all agree that, sometimes, currently, because of the pandemic, that occurs for longer periods than we would otherwise like to see; sometimes, that might be for months—you are increasing risk through that process. It is not recidivism in that case, because they have not committed an offence.

Bear in mind that, these days, since the presumption against short sentences was passed, a far greater proportion of the prison population in Scotland comprises violent and sexual offenders. If people, including those who are then found to be innocent, are being incarcerated with those offenders, there is bound to be a risk attached to that. That is what Professor McNeill was saying. That is one area, at least, where the increased risk comes in.

The length of time on remand, as I have just conceded, has been exacerbated by the pandemic. That is true of every jurisdiction. The concerns about the high levels of remand in Scotland, however, predate the pandemic. The 2018 report of this committee’s predecessor said exactly that, but it has been said many times.

Compared with England and Wales, we have a higher remand population, although theirs is growing fast. There is now a higher prison population in England than we have in Scotland, for the first time in many years. They have seen a huge increase, and their remand population is at a 50-year high, although that is still not as high as the remand population in Scotland.

We are sending more people to remand and we are trying to deal with that. However, we are also dealing with the other point that you rightly make about how long people are spending on remand. I mentioned the reduction in the backlog, although I concede that that is mainly on the summary side rather than on the solemn side. Over the past year, that has been reduced by more than 13,000—it is down from around 44,000 to around 30,000—which is a fantastic achievement. We are tackling the backlog, but we are not blind to the fact that—I have just put this argument to you—being remanded can have a negative effect on risk and being remanded for longer increases that risk. I concede that point and we are trying to deal with it.

You correctly identify the two sides to the issue. On the one hand, we need to get effective bail supervision services in place. We had an underlying concern that we did not have that level of consistency across the country, so we have put in place measures and resources over the past year to make sure that we do. The other side of it—this is the critical side for some of the intentions behind the bill—is to make sure that the courts have confidence in that supervision. I am not sure that I saw that in the evidence that the committee has heard, but I am happy to acknowledge the fact that there is variability—at least, there has been hitherto—in the confidence that different sheriffs have, depending on where they are in the country, about how effective bail supervision is. If they are confident that bail supervision is there, that has to lead to a more proactive approach from the courts where they say, “We know that this is a real and safe alternative, so it is the route we will go down”.