Seòmar agus comataidhean

Will the member take an intervention?

I have four amendments in the group and will try to keep my comments to those, as there are many amendments in the group and we have heard a lot of explanation about others.

Amendments 56, 58, 61 and 62, and many of my amendments to the bill, relate to a particular group of people—victims of crime. My amendments in the group have an overarching goal. Although I understand the cabinet secretary’s approach, I want to ensure that the bill reflects on and considers both victims and offenders as much as is possible. That fits very nicely with the excellent debate that we had yesterday: the Parliament is rightly seeking to constructively refocus our justice system on the needs and rights of victims, and there is broad consensus on that.

The amendments get to the very heart of what part 1 of the bill is about, which is the issue of changing the test for bail. The proposed legislation alters the bail test that is set out in the Criminal Procedure (Scotland) Act 1995. Under that existing legislation, bail can be refused for a number of very valid reasons, including, for example if there is a

“substantial risk that the person might if granted bail ... abscond; or ... fail to appear at a diet of the court”.

We have heard a little about some circumstances in which judges and sheriffs have used that provision.

Someone can also be remanded if there is a substantial risk that a further crime might be committed while that person is on bail—we all know the statistics about crimes committed while people are on bail—or if there might be a substantial risk that the person might interfere with witnesses or obstruct the course of justice. Those reasons are all routinely used to refuse bail, and I think that those are sensible measures that the judiciary has made good use of since the provisions came into force, in 1996.

The Government has challenged us to think about the assumption that we have a large remand population, which is an issue that the committee has looked at in great detail. Is there a conclusion that remand is currently being overused by sheriffs and judges or that it is being wrongly applied when the existing tests are applied? It is not clear from any of the notes accompanying the bill what the Government believes.

Our stage 1 proceedings went into a great deal of detail with a large number of witnesses, and we took much oral and written evidence. There is no concrete evidence of the overuse of remand. The committee went to watch hearings taking place and there was no evidence of that. I understand that remand is generally perceived to be a last resort in summary cases, and I very much got that impression from our private discussions with judges. As those discussions were private, I cannot refer to them, but it was clear that remand was very much a last resort. It was used only once in the 30 or so cases that we watched. Those were summary cases, so that is what we would have expected.

The use of remand will naturally be more common in solemn cases, as it will be in the High Court. That is because of the nature of the cases that go through those proceedings, which tend to involve crimes such as serious violent assault, murder or attempted murder, serious organised crime or serious sexual assault. Naturally, remand figures in those cases are much higher. However, the Government has not made the case that judges are overremanding people.

If the intent through the bill is to reduce the remand population, a very clear way in which the Government could do that would be to get through the backlog of cases. This Parliament voted on legislation to increase the time limits for which someone can be held on remand. We were all uncomfortable in doing so, but we understood the reasons for that. The measure was used during the Covid pandemic, and it was extended. Indeed, some of us felt nervous that it would become a permanent feature of our justice system.

Many people are held on remand who perhaps should not be, but is that a result of their wrongly being held on remand in the first place or the fact that they have been languishing in prison on remand while they wait for their case to come to court? I think that it is the latter. Indeed, we have seen evidence of that, including when we visited HMP Edinburgh—or Saughton prison—early in our inquiry, where we met a number of men, most of whom were young, who had been held on remand for far too long. We all want to address that issue, and I am sure that we will all come together to do that. However, the issue is that the bill will change the bail test.

My amendment 56 might be the shortest of my amendments, but it is probably the most important one that I will speak to today. It would change the word “and” to the word “or”, which seems minor. However, the effect of that would be to ensure that the two-step test, which is the Government’s most controversial proposal in the bill, is removed. In effect, the amendment would remove any conditions that having a two-step test would impose. Some scenarios have already been mentioned, such as further offences that might be committed while someone is on bail or where there is a genuine risk that an offender will abscond or miss future diets—those are primary considerations. Currently, sheriffs and judges—rightly—routinely use those crucial factors.

I want to pay credit to Victim Support Scotland, which has been mentioned a couple of times already. Some of the other amendments that I have lodged in this group have been as a result of my working with it, and they should not be taken lightly.

Victim Support Scotland told us:

“It will be a concern to the public in general and victims of crime specifically that the provisions relating to bail narrows the court’s discretion to refuse bail. That is, no doubt, with the intention of reducing the prison population.”

The Scottish Police Federation said in its written evidence that the proposals would be

“as unwelcomed by communities plagued by repeat offenders as they will be to Police Officers who work tirelessly to keep these communities safe.”

Amendment 56 would broaden the scenarios in which an individual can be refused bail. I do not think that we should be forcing our courts into a situation in which they believe that an offender could be a risk but, due to a technical interpretation of the legislation, would have to release them anyway.

Lord Carloway is absolutely right: the judiciary knows best in that regard. That is my view, too. Indeed, over a number of months, if not years, I have heard from the Government that it relies heavily on the independence of the judiciary and that ministers should not meddle or interfere with it. That is generally the response that I have received to most questions that I have put to justice secretaries historically. If the Government truly believes that the judiciary is independent, let it remain so.

Amendment 58 would give the courts further discretion on the ability to remand someone into custody if they think that there is a substantial factor in justifying that—and they would have to justify that. The amendment replicates the wording of an existing provision in the Criminal Procedure (Scotland) Act 1995, which judges and sheriffs have already used to good effect. It adds extra flexibility. The amendment says:

“insert—

<( ) due to any other substantial factor which appears to the court to justify keeping the person in custody.>”

That is reasonable and proportionate, and it certainly makes sense. In that regard, I also support amendments 2 and 33 on the basis of Katy Clark’s explanation.

The bill must also give—this is where there is room for improvement, which I hope that the cabinet secretary is open to—judges and sheriffs the discretion to use, if the new test is applied, the absolute power to take into account all relevant factors.

I was slightly nervous about the language that the cabinet secretary used when speaking to group 1. She was more explicit than her predecessors in saying that the bail test is “more focused” and therefore might

“reduce the use of remand.”

I am not entirely sure what “more focused” means in that context—does it mean more restrictive, perhaps? The answer to that is yes. What does the cabinet secretary mean by “more focused,” and does she believe that that will tie the hands of judges? If not, why not?

I will discuss amendments 61 and 62 separately. They were drafted in conjunction with Victim Support Scotland. I am pleased and proud to work with it, because it represents the voice of victims—not in all cases, but in many cases. Amendment 61 aims to ensure that, when a court is considering a matter of public safety, it

“must request the prosecutor or officer of the local authority to provide the information”

that is pertinent to the consideration of public safety. The amendment does not use the word “and”; it uses the word “or”.

In my experience—and the cabinet secretary rightly acknowledged this during an earlier group of amendments—the Crown agent who is there on the day is often the best source of information. However, I also appreciate that they are extremely busy. There is often only one advocate in the court, who has a large number of cases to get through, and, when they are asked to provide information in real time, they struggle due to the sheer volume of information that is made available. That is the case on a Monday morning, in particular, if someone has been remanded into custody over the weekend. There is a lot of pressure to get a huge amount of information together for a Monday morning court hearing, and it is possible that not all the information will be there on the day.

The Crown has to make a judgment about whether to oppose bail, and it is on that point that further intervention could better take place. There could be improvements at that level on whether the Crown simply does not oppose bail. Normally, in those circumstances, it would be very bizarre for the judge to remand someone if the Crown has not opposed bail.

One of the problems with the provisions in section 2 relating to “public safety” and

“prejudice to the interests of justice”

is that the lack of definition means that they can be interpreted differently. In speaking to my amendments, I suggested that the bill will lead to a narrowing of the rule on when remand can be used, which will mean that fewer people will be held on remand.

However, is it possible that the obverse could be the case—that, because “public safety” is not defined, the interpretation of

“the interests of public safety”

could be so wide that more people could be remanded, which is entirely counter to the Government’s ambitions?

I thank my colleague for his comments. Amendment 35, in Katy Clark’s name, is well drafted and important. There is a suggestion that it would increase the workload of the courts, and we are all a bit nervous about that. These are fast-moving hearings. However, there is a gap here, because victims are left in the dark as to why certain decisions are made. If we are going to make changes, which the bill does—whatever our views are on those changes—let us make changes that improve the information that is given to victims.

If bail is granted, it is entirely reasonable and rational for the appropriate reasons to be given. The court should set out the specifics of why it believes that the accused does not pose a risk to public safety—that is the new test, and it includes the safety of the complainer, which is important—and why it thinks, if relevant, that the accused can be appropriately managed through the imposition of bail conditions. We are looking at a scenario in which the courts say, “We have a new enhanced bail test but, on balance, we believe that the risk can be managed through, for example, enhanced bail conditions, and here are the reasons why we do not believe that this individual poses an immediate risk to the complainer and can therefore be released back into the community.”

At the moment, the only recourse available would be for the complainer to make representations to the Crown and ask for an appeal. There is no mechanism for the complainer to request that a reason be given for a decision, other than what has been said verbally in the court on the day, and to hear that, you would have to be there, which, for many complainers, would not be entirely appropriate. We all know the problems with getting records and transcripts of what has been said in court—it is a prolonged and expensive process.

Unless the Crown has been proactive in providing information to the complainer about why it thinks bail was granted, there is no real mechanism for getting that information. I do not want to add to the workload of the court clerks or to make the decision-making process more difficult for judges and sheriffs. However, if we are going to enhance the process by which reasons must be given for remanding someone, we should do the same for the contrary situation—we must give complainants more and better information when bail is granted. Accepting amendment 35 is one way of doing that, and things could be tidied up by the Government ahead of stage 3.

Equally, it would be a good outcome if the cabinet secretary said that she will take the matter away and work with members to see what can be done, but we need that commitment. Otherwise, if Katy Clark does not push this issue, someone else will.

I support it, so I will move it.

Amendment 52 moved—[Jamie Greene.]

That is only on the assumption that the provision states that the court “must” remand. Section 2 of the bill says that

“The court may determine that there is good reason for refusing bail only if it considers that”

one of the grounds in section 23C(1) applies and that the new bail test that the Government has introduced via the bill is met. The interpretation is interesting—my understanding of the changing of “and” to “or” is that we would either revert to the status quo under the 1995 act or we would simply afford the court the flexibility to make an and/or decision. If replacing “and” with “or” is the wrong way to go about that, the Government could suggest a better way. The provision states:

“The court may determine ... if it considers”,

so there is no “must” about it. There is no absolute that weakens the current remand test or expands it in any way.

I appreciate your taking all these interventions—it is a good debate.

What is the Government’s fundamental problem with the court having additional options? Under its wording, amendment 58 proposes that the court may consider refusing bail

“due to any other substantial factor which appears to the court to justify keeping the person in custody.”

It is the “justify” bit that is important, because, when a judge or sheriff decides to remand someone, they must give a valid and justified reason for doing so. Equally, the person in question has the right to appeal the decision. Why does the Government believe that courts should not have that power? The case has not been entirely made.

The proposed new section appears in the bill as drafted, but that does not mean that it has to stay in it. We have a new cabinet secretary, and we have a new focus on victims. The cabinet secretary has an opportunity to do the right thing on section 5. I feel uncomfortable with her response. I appreciate that she has inherited the policy, but that does not mean that we have to live with it.

Who was consulted on the formulation? During our stage 1 deliberations, all that we heard on this aspect was evidence from two academics who said that they had heard an idea about it somewhere else. We certainly took no evidence on it, and members of the judiciary did not indicate that they had been consulted. Where on earth did the formula whereby two days on electronic monitoring means one day in prison come from?

I thank Pauline McNeill for lodging amendment 65. As she said, the amendment was one of a number of proposals from victims organisations, and I think that the rationale has been quite well explained. Those organisations have some nervousness about the matter.

When we took evidence on the proposal, there were two schools of thought, which were expressed publicly and in private. It seems that the legal profession is keen to see the removal of section 23D of the 1995 act, which it feels is problematic. I wonder whether the Government had discussions with the Crown, solicitors and the judiciary on the issue, as such discussions might underlie the rationale for removing section 23D. Equally, the perception of a number of organisations was that its potential removal is worrying—they feel that section 23D is a valid safety net, particularly for those who are at risk of domestic abuse and sexual crime.

Victim Support Scotland got in touch with a number of members, seeking to remove section 3, which will abolish section 23D. It is important that I put that organisation’s claims on the record because I would like the cabinet secretary to address them. Victim Support Scotland’s perception might be an error, but I want to give the cabinet secretary at least the opportunity to alleviate its concerns. Its interpretation is that the proposal to remove section 23D would

“allow bail to be granted to convicted repeat and serial perpetrators of domestic abuse and sexual offending against women and who present a particular danger to women’s safety.”

It went on:

“Given women’s experiences of abusers being given bail, including the lived experience of survivors given in evidence to the Criminal Justice Committee, women need as much protection as the law can afford them. The safety of victims should be at the heart of any decision to release a person on bail, so the removal of this restriction and reliance on the new all-encompassing bail test does little to show victims of these types of crime that their safety is being protected under the law”.

Those are Victim Support Scotland’s words, not mine. I do not want to put words into anyone’s mouth or even take a personal view on the issue, but there is a case to be answered around the removal of section 23D, and amendment 65 gives us the opportunity to have that debate.

I, too, thank Katy Clark for lodging amendment 37. My understanding is that she will not be moving it, but I will let her explain that when the time comes. The committee has certainly grappled with the issue of data.

I want to speak to amendment 8, which was a very welcome surprise when it appeared on the daily list of amendments. It is not often that the Government comes forward with comprehensive reporting requirements in that fashion. [Interruption.] Well, you are doing so now, which is a welcome change of tack.

My understanding is that some of the data is already collected, although it is quite hard to get. Indeed, we have been trying to get information for quite some time. It is very tough to tease out the data, which often comes out through various reports or through the publication of statistics in response to a freedom of information request or parliamentary questions.

I could make a controversial comment and say that, if we had done what is set out in amendment 8 before introducing the bill, we might have a better picture of the effect that the legislation might have or whether it is even needed at all. Amendment 8 would give us some of the data that we have been crying out for throughout the stage 1 process. That includes the information provided for in subsection 2(d):

“an analysis of the length of time that individuals spent within the remand population”.

That might explain away some but surely not all the anomalies as to why our remand population is so high. We really would have loved to have had such data. I mean no disrespect to SPICe in saying that, because there are limitations to the data that is collected.

The point of interest to me is on bail orders and the relevant convictions off the back of that. Clearly, there is a cohort of people who go on to do one of two things after they have been given bail: some breach the bail conditions, whether those are simple or enhanced conditions, and others commit entirely unrelated offences. With the limited data that I could unearth, I found that—I think that I have raised this in committee before—in 2020-21, 15,724 crimes were committed by somebody on bail. Those are the Scottish Government’s own statistics. That is one in four crimes that were recorded in that year, which is a fairly substantial number. That might explain some of the uneasiness that some members had about the direction of travel of the proposals. If the effect of the legislation is to—