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I understand the priority but I think that there is a big opportunity that might serve everyone’s interest, including the interest of financial sustainability.

My last question is about sections 12 to 14 of the bill, which deal mainly with children at court. One reason given for why more financial information is not available in the financial memorandum is the reluctance to cut across judicial discretion. I cannot say that I am convinced that a judge or sheriff might think twice about their decision because an indicative budget has been attached to that somewhere.

The imaginative response might be to say that anything agreed through discussions with the judiciary will give an indicative budget to be used only for that purpose. It might also be helpful for Parliament to look at potential costs, while also ensuring that the judiciary did not feel in any way fettered.

The list of countries is exactly the same. Russia has been precluded by the UK Government, too. The issue is simply that we have a different jurisdiction. I am aware of no tangible differences between our instrument and the one for the rest of the UK.

Thank you for the invitation to give evidence on the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2023. I will make a brief statement about the order and the issue of mutual legal assistance.

The order mirrors the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022, which, in this area of law, allows collaboration across the United Kingdom jurisdictions to support cross-border operations and co-operation. In an increasingly interconnected world, where crime operates without borders, it has never been more important to ensure robust international co-operation to promote justice and to help maintain public safety. The order will enhance our international judicial co-operation framework specifically in relation to mutual legal assistance. Before I explain its contents, it might be helpful for me to outline the context in which the order has been made.

Mutual legal assistance is the formal name for how states request and obtain assistance in other jurisdictions to investigate or prosecute criminal offences. The UK as a whole is a party to the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, which form an essential part of our fight against crime and our co-operation with other contracting parties in relation to criminal proceedings. MLA, as it is known, is an important tool in domestic criminal proceedings and against transnational and international crime.

The second additional protocol to the 1959 convention broadens the scope of available mutual legal assistance among contracting parties and includes specific provisions on requests for hearings by video or telephone conference, joint investigation teams and the temporary transfer of prisoners. As the member of the Council of Europe, the UK ratified that additional protocol in 2010.

In our domestic framework, mutual legal assistance is governed by the Crime (International Co-operation) Act 2003, which states that, for us to request and facilitate certain types of mutual legal assistance, the country must be designated as a “participating country”, as defined by section 51(2). The purpose of the draft order is to designate as participating countries Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland, Turkey, Armenia, Chile and Ukraine. All those countries have ratified the second additional protocol to the 1959 convention, and their designation will allow us to co-operate with them in relation to specific types of mutual legal assistance.

I should say that the order only establishes the ability to provide certain types of assistance to or seek them from the referenced countries; it does not create an obligation to do so. Incoming mutual legal assistance requests from a designated participating country are reviewed by the Crown Office in line with existing practices, including a human rights assessment provided by the Foreign, Commonwealth and Development Office.

I will now detail the specific effect of the provisions for which those countries are to be designated. First, designation for the purposes of section 31 and paragraph 15 of schedule 2 to the 2003 act enables us to assist in requests for a person within Scotland to give evidence by telephone in criminal proceedings before a court in a participating country, in circumstances where that witness gives their consent.

Designation for the purposes of sections 37 and 40 of the 2003 act enables the Crown Office, on request from a participating country, to obtain customer and account information to assist an investigation in the participating country. Designation for the purposes of sections 43 and 44 is a reciprocal provision that enables Scottish authorities to make requests for similar information to a participating country. Additionally, designation under section 45 provides that requests for assistance under sections 43 and 44 must be sent to the Lord Advocate for transmission, unless the request is urgent. Finally, sections 47 and 48 make reciprocal provisions for the temporary transfer of prisoners to or from a participating country to assist with an investigation, provided that the prisoner has given their assent to the transfer.

The draft order will help strengthen our own ability to investigate and prosecute criminality at home and abroad, as mutual legal assistance is a key tool in combating cross-border crime and ensuring justice for Scottish victims of crime. It is important that Scotland, as a good global citizen, plays its part in facilitating international justice co-operation to combat criminality. Being a good global citizen also entails standing with our friends to defend the rules-based order.

In that vein, I emphasise that the draft order deliberately does not designate Russia. Following the invasion of Ukraine, the Council of Europe expelled Russia, a decision unprecedented in the council’s 73-year history. Although Russia ratified the second additional protocol in 2019, the Russian President, Vladimir Putin, announced on 18 January that he had begun the legislative process of terminating Russia’s participation in 21 international agreements associated with the Council of Europe, with retrospective effect from 16 March 2022, the date of Russia’s formal exclusion from membership of the council. We understand that, as yet, nothing has been lodged formally and my officials are awaiting formal confirmation, but Russia’s unprovoked, premeditated and barbaric attack against Ukraine, a sovereign democratic state, removes any basis for the mutual trust and respect for international law that are essential for international judicial co-operation. We are therefore not seeking to designate Russia at present.

We remain committed to improving the provision of mutual legal assistance across borders, and the order will enhance the level of co-operation that we can offer to—and seek from—other countries. I hope that these remarks will be helpful to the committee and I am happy to try to answer any questions.

I will respond first, and then officials will give you the correct answer.

The purpose of the order is to designate the additional countries that I have mentioned. It is possible just now for us to ask each of those countries—or, indeed, any country—for that assistance, or for another country to ask us, without their being designated countries. We can co-operate on that basis already, but the order gives added weight to that, because all the countries that we have mentioned are now part of the rules-based international order. They are now involved in the protocols that we have, and the order gives more force to that.

I have not been involved in such cases—which, obviously, would go to the Lord Advocate—but, in effect, there would have to be quite good reasons for countries not to co-operate. I suppose that, without being added to the list of designated countries with reciprocal arrangements, a country could more easily dismiss such a request and not go along with that co-operation. Therefore, the order gives added weight to the protocols. Moreover, having just told Pauline McNeill that any level of crime might be covered, I should say that I think that there would have to be a different process in relation to international war crimes.

As for Ukrainian people who live here going back to Ukraine or Ukrainians coming here, we must bear in mind that, under the order, the arrangement between countries must be consensual. I am not aware of whether the domestic law in Ukraine is operating as normal—for obvious reasons—and I think that, in relation to war crimes, there would be a different process, which would be started internationally. That is my understanding, but officials might want to add to that.

That is what is specified in the order. Of course, it is quite possible for evidence to be given in other ways—via videoconference and so on—but the order specifies that evidence would be given by telephone, so that is where it will have an effect.

And the prisoner would have to consent to it, too.

I will ask officials to come in, but I am not aware of any area of crime that is not covered by the order. You, too, have highlighted the issue of customer accounts and information—and rightly so—which is obviously to do with the financial aspects of a potential crime. However, that sort of thing will rely on the witnesses’ co-operation. As I have said, though, I am not aware that the order precludes any crimes being looked at—and I see that Vivienne McColl has confirmed that.

We cannot tell other countries what crimes they might want to come to us about and ask for the help of the Lord Advocate and witnesses on. In that case, the answer is yes—any level of crime is possible.

I think that you have heard that there is a lessons learned review on the particular case that has been mentioned and that that will feed into a larger review. The larger review will determine how we go forward.

I restate the fact that the policy that the SPS carried out was, first and foremost, to ensure the safety of all prisoners. The SPS has a very good track record of making sure that that is the case. Therefore, if somebody was admitted to a female prison—it is worth bearing in mind that we have both women and men in many of our prisons—they were held in segregation, to minimise the risk to other prisoners and staff. On top of that, we have provided the additional direction, which you have just mentioned, to make sure that people go to part of the male estate in the first instance.

I should say that there is an exception to that, which we stipulated to the Prison Service, which was that in any case where the SPS felt that it was imperative that that should not happen, it should get ministerial approval. That is the same as in other jurisdictions, such as England and Wales. That is the current situation. The overarching review will take things forward.

You raise two important points. In my opening statement, I mentioned that it is not possible to be sure that someone genuinely cannot pass on the information disclosing the location of a victim’s body, which I think is one of the reasons why the motion butts up against the ECHR. For me, the more profound point—and it is well for us to explain our rationale for such decisions—is that I believe that the court, when handing down a sentence, is the right place to consider issues such as a wilful refusal to reveal the location of a body. I agree that that information is vitally important for the victim’s family for the reasons that we are familiar with, and I think that it is reprehensible for a person to withhold that. However, the court can take that into account. My view is that we are asking for the Parole Board to take on the functions of sentencing, because it could continue to set the sentence beyond that which the court had handed down; not least the punishment part of it.

As I have said, I am happy to listen to other points of view. If people are unhappy, they can annul the rules or they can introduce legislation to amend the Prisoners and Criminal Proceedings (Scotland) Act 1993. I do not want to be too definitive about it, but it seems to me that that would butt up against the ECHR’s provisions, which is my position and that of the Government. As ever, I try to be open-minded if others have a different point of view.

As a point of clarification, England and Wales do not have Suzanne’s law or its counterpart, as has been suggested: there is no provision that does that. The Parole Board for England and Wales would have to take those matters into account, but it does not have the requirement to do that in a way that has been suggested by those people who are proposing Suzanne’s law.

I cannot be held responsible for BBC stories. There was a story in the media saying that I had misled the Parliament last year, which was completely fallacious. It was reported in all media outlets and there were virtually no corrections. Quite rightly, I cannot govern the media. However, I accept some of the points that have been made about improvements to the victim notification scheme. That is why we are having the review. It is independent, but it can receive representations. I encourage members, in particular Jamie Greene who has an interest, to make representations, which will subsequently be taken into account. I genuinely think that we can do more to improve the victim notification scheme, although we have to be mindful—as we have been in the rules under discussion—not to overstep the mark in such a way that we retraumatise people who do not want to have that information for perfectly understandable reasons. I will leave it there.