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I do not. Teresa Medhurst might know the answer.

I come back to Mr Findlay’s previous point. He asked whether there had been a reduction in mail as a consequence of the measure. There is another consequence in which he might be interested. As I have mentioned before to the Parliament, sometimes, when we try to deal with drugs in prison, if we deal with one aspect, it causes an increase elsewhere. That is what has happened in this case: there has been an increase in the number of perimeter fence attempts to provide drugs in prison.

It is clear that there is a tidal wave—[Inaudible.]—and we do what we can, not least given what Teresa Medhurst said about the changing nature of drugs. Mr Findlay is right to say that there is a consequence to what we do.

I do not know who the academics consulted. They have a legitimate point and we are happy to take into account their concerns for the rights of prisoners and others. I point out that one of the initiatives came from Her Majesty’s chief inspector of prisons, who is very concerned, and obliged to be concerned, about prisoners’ rights. We believe that the measure is a proportionate response to safeguard those rights.

Perhaps Teresa Medhurst could answer the question about who the academics consulted before they made their submission.

I think it important that the police respect the rights of everyone in this situation. It is not a cliché to say that Police Scotland is very focused on human rights—indeed, that was very much the case at COP26 and has been so in various other respects—and I think that the police should, as DCC Malcolm Graham said, try to uphold the rights of everybody involved.

You have said that such a situation is new, but I am not sure that that is the case. In fact, I am not sure what new situation you are referring to. Trans people have been a feature of the justice system for a long time, and I think that the police have dealt with this rightly in the way that DCC Graham suggested.

Moreover, just in case there is any confusion, I would point out that nothing in the proposed gender recognition reforms should impinge on this area. There are no proposals for changing crime recording in that respect. Given that not one of the 1,129 rape cases that were reported in the first six months has fallen into the category that you have mentioned, I think that the police’s proportionate approach is the right one.

I hate to preface my answer with the same point again, but that will be a matter for the courts with regard to how they run the system. You are right to say that Lady Dorrian has made a recommendation on that, and we will give careful consideration to that and the on-going research on the issue. We are clear that there should be restrictions on the use of sexual history evidence, with the court, as always, having a critical role in deciding whether to allow such evidence in any given case. As you will know, there are safeguards in Scots law that mean that the court must give explicit approval for character and past behaviour evidence to be used in sexual offences cases. Convener, you might also note that we hosted a round-table discussion in November 2020, before either of us was doing the jobs that we are doing today, on the safeguarding of privacy rights for sexual offence victims and the perceived barriers to their coming forward to report crimes against them.

We must ensure that complainers are aware of their rights. That issue has come up in evidence to the committee and was covered in the committee’s earlier evidence session today. Some of the victims that you heard from highlighted that point as well. We have to ensure that they are aware of their rights. We also look forward to receiving further information on the proposal for the Scottish Legal Aid Board-funded pilot project. That is not to say anything definitive, because we will wait to see how Lady Dorrian’s recommendation is taken forward in the governance group, but important safeguards exist, and we must ensure that people are aware of how their rights can be safeguarded to a greater extent than is currently the case.

Apologies—I had the wrong one there. I am happy to cover the second LCM.

I am grateful to the committee for the opportunity to take questions on the supplementary legislative consent memorandum for the Police, Crime, Sentencing and Courts Bill, which the committee has had before it previously. The memorandum covers the clauses on extraction of data, which are intended to clarify the existing position following the Information Commissioner’s report on procedures in England and Wales. The measures are not intended to create any new powers.

The Government lodged an LCM on 5 August for the provisions that extend to Scotland. At the time of lodging, I advised that the Government was not able to recommend consent for the power to extract information from digital devices of witnesses, victims and others, as discussions were still on-going between the former Lord Advocate and UK ministers. I also stated my intention, once the position on investigation of deaths was resolved satisfactorily, to lodge a supplementary memorandum for those provisions in order to ensure a consistent approach that takes account of Scotland’s distinct position.

Following confirmation from the UK Government that the issue of investigation of deaths will be kept under review once the measures are in force, we have now concluded that the identified risk is not sufficiently material to prevent the Scottish Government from recommending that the Scottish Parliament consent to the provisions.

The matter is central to how the court system is run and, as such, the decision is ultimately for the judiciary. Jamie Greene is right to say that there will be implications of having such courts. I understand that we do not want to have court systems tripping over or cutting across one another. It is not for me to speak for the Lord Justice Clerk, but I think that her intention is that the specialist courts will be able to build up a body of experience. As Pauline McNeill said, there is such experience in the High Court, given that it frequently deals with the same issues. That will also lead to greater efficiency, which might help to deal with the backlog. I hesitate to say much more about how those potential duplications and crossovers might be detrimental. It is for Lady Dorrian and the judiciary to comment on such matters.

However, as he said, Willie Cowan is on the governance group that will consider the issue. I know that this only partially answers the question, but the Government stands ready to help, whether that is through introducing legislation on sentencing powers or, as Jamie Greene said, through providing resources to fund whatever the judiciary believes is needed. I think that it expects to report on the matter next year.

If there is a change, there are likely to be resource implications, and I hope and expect that the Lord Justice Clerk will be well aware of any potential problems with duplication or overlap.

[Inaudible.]—from DCC Malcolm Graham, where I think that he pointed out that there had not been a single case of the type that has been mentioned, despite the fact that, if I have the figure correct, there were 1,129 rape cases in the first six months of this year. That is a horrendous figure that we are trying to deal with through some of the reforms that I have mentioned. In many cases, the police will do the data collection on the issue, although you are right to suggest that the Government will have an interest in and view on that.

It is important that the police take a human rights approach; that the rights of everybody involved are, as DCC Graham said, observed, respected and upheld; and that the safety of everybody is upheld, too. That is the right approach for the police to take, and I am therefore very supportive of DCC Graham’s comments.

I have not seen Mr MacAskill’s views, but I am much more inclined to take the up-to-date position presented by DCC Graham in the previous evidence-taking session.

As you said, we have Lady Dorrian’s recommendation, and the committee has heard from the Lord Advocate. One of her main concerns is that the backlog be impacted in a positive way, which single judge trials might help with. There are other factors, too, such as the specialist nature of the judge’s knowledge.

We want to see what comes out of the governance review group. I cannot give you a definitive answer at the moment, but we are mindful of the fact that various groups and political parties, as well as some members of the committee, have serious concerns about the use of single judge trials, as do the Faculty of Advocates, the Law Society and others in the system. They say that they think that there is not widespread support for such a measure. That is probably reflected in the fact that Lady Dorrian’s review group could not come to a consensus on the matter.

The issue will form part of the work of the governance review group. There is no way that it would ever be proceeded with without full parliamentary involvement, to the extent that that is necessary and appropriate. We must wait and see what the governance review group comes up with.

It is a very good question. It may be useful to hear from Willie Cowan on this, too. The governance group will consider the issue. There is a particular issue around the court considering domestic abuse, although rape will be part of what the court will examine. Where does that properly sit? I know that you will be speaking to the Lord Advocate next week and, as you know, she has discussed how we can get the pace to address the backlog. There is a huge issue with the backlog, and part of that is to do with the impact that it is having on victims and witnesses. We want to deal with the backlog, given the preponderance of sexual assault and rape cases in it. That is one of the drivers for the specialist courts.

It is also true, as I am sure you will know, that the Faculty of Advocates, the Law Society of Scotland and the bar association have expressed concerns about some of the proposals. That is more to do with judge-only trials, but it concerns both specialist courts and the proposal for judge-only trials. The latter area, at least, was one where there was no consensus when Lady Dorrian’s group considered the matter.

The governance group will have to give more thought to those aspects. Of course, whatever we choose to do, Parliament will get the chance to have a say. If we decided to bring in specialist courts, we would have to legislate in any event. It might be worth hearing from Willie Cowan on some of the detail.

I do not control the court system—it is the judiciary and the Scottish Courts and Tribunals Service that deal with it. However, no matter whether we are talking about the courts, the prisons or the police, I would say from all the evidence that I have seen—and I have looked at this in some detail—that they are very cognisant of the rights and safety of individuals. They are trying extremely hard to ensure that they are upheld, and I support them in that process.