Chamber and committees

I think that I have been clear about the Parole Board’s responsibilities in relation to the second scenario in which a reintegration licence could be considered. The first scenario that I outlined is when Scottish ministers, through the Scottish Prison Service, in consultation with the Parole Board, would consider the release of certain prisoners. Certain prisoners are excluded, and not on the basis of offence types. Prisoners who are on an extended sentence are excluded, so it is not for life-sentence prisoners or prisoners who are convicted under prevention of terrorism charges. The supporting documentation to the bill highlights that it covers a small number of prisoners—circa 75 to 200. In essence, it is temporary release by the Scottish Prison Service.

The approach that I outlined prior to Mr Greene’s intervention was supported by the chair of the Parole Board, John Watt, when he provided evidence to the committee at stage 1.

I note that Katy Clark’s amendments in the group seek to remove the Scottish ministers’ ability to release an individual on reintegration licence before their case has been heard by the Parole Board, and I am sure that Ms Clark will outline her reasons for that.

I would like to make a few points in response to Ms Clark’s amendments. First, the intention of the licence, as I have said, is to better support the reintegration of long-term prisoners and, critically, to provide structured testing. Prisoners released on the licence will be subject to conditions including curfew, which can be electronically monitored, and, importantly, supervision by justice social work. I appreciate that it is a new licence and that, understandably, there are questions about how it will operate in practice.

As members will be aware, the provision will not operate in isolation. Section 7(12) requires the Scottish ministers to prepare a statutory operating protocol to underpin the use of the licence. That operating protocol must detail the risk assessment process that will inform release on the licence and the factors to be taken into account when undertaking the risk assessments. It will also cover matters such as how prisoners will be monitored when released on reintegration licence.

In developing that protocol, the Scottish ministers must consult with a range of stakeholders with specific expertise in the area, including the Risk Management Authority and, as I mentioned earlier, the independent Parole Board.

I hope that that provides suitable reassurance to Ms Clark and that she recognises the importance of having the opportunity to test prisoners before their release, subject to risk assessments, as I have described.

Amendment 73 would remove the legal considerations that Scottish ministers and the Parole Board must have regard to when releasing a prisoner on a reintegration licence. I am not clear what the purpose of the amendment is. I note that Ms Clark’s view appears to be that the Scottish ministers should not be making those decisions, but amendment 73 would remove those legal considerations in cases in which the Parole Board directs release on a reintegration licence.

I do not support the view that the Scottish ministers should not be able to release prisoners on the reintegration licence, within the parameters that are described in the bill. I recognise that that will need to be done on the basis of clear risk assessment that takes account of all relevant factors, and the bill provides for that. I therefore ask Ms Clark not to move her amendments in this group.

I turn to Mr Greene’s amendments. Amendment 75 seeks to add the protection of the

“victim or victims of the prisoner, or class of persons, to whom the prisoner may pose a risk”,

if released on the reintegration licence, to the existing list of considerations that the Scottish ministers and the Parole Board must have regard to before releasing a prisoner on the licence. The bill currently lists those considerations as

“protecting the public at large,”

reducing reoffending and supporting the reintegration of the prisoner. Victim safety would be included in the definition of protecting the public at large, but I appreciate that it would be helpful to put that beyond doubt.

Therefore, I commit to lodging a stage 3 amendment that will address the issue of victim safety being one of the legal considerations that the Scottish ministers and the Parole Board must have regard to when deciding to release on reintegration licence. The Parole Board will, of course, already have taken account of victim safety concerns when deciding to recommend release on parole licence. I therefore ask Jamie Greene not to move amendment 75, and I am more than happy to engage with him further on those matters.

Amendment 80, which was also lodged by Jamie Greene, seeks to add individuals who are subject to the sexual offences notification requirements to the list of statutory exclusions from release by the Scottish ministers on the reintegration licence. The list of existing statutory exclusions in the bill does not include offence-focused exclusions, and that was deliberate.

That decision was based on feedback that we received during the consultation and from stakeholders that decisions about release should be based on risk assessment and not on offence type alone. Mark McSherry, the chief executive of the Risk Management Authority, made a similar point when he provided evidence to the committee during stage 1. He said:

“My point is that we need to understand the pattern, nature, seriousness and likelihood of such behaviours, so that we develop a proportionate response that adequately protects victims and addresses the specific risk that is identified. When we use broad offence categories—sexual offending is one example—that sometimes does not allow us to understand the risk that specific individuals might pose within that broad spectrum. Therefore, our view is that that level of”

risk assessment

understanding is required.”—[Official Report, Criminal Justice Committee, 25 January 2023; c 22-23.]

As I have highlighted, the provision has been designed with risk assessment at its core. The risks posed by all individuals being considered for release on the licence will be carefully assessed as part of that risk assessment process, regardless of the offence they have been convicted of. Statutory exclusions on the basis of offence type alone would cut across that.

It might be of interest to Mr Greene that, as I said earlier, people who are given an extended sentence are excluded from eligibility to be considered for release on the reintegration licence. If you look at the figures over the piece, you see that the majority of people who are given an extended sentence are sex offenders.

For the reasons outlined above, I ask Mr Greene not to move amendment 80.

My amendments 9 and 10 are both technical amendments. Amendment 9 repeals section 3AA(7) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which relates to the Parole Board’s decision making in relation to long-term prisoners on home detention curfew. Section 7 of the bill removes long-term prisoners from home detention curfew, so that subsection is no longer required.

Amendment 10 corrects a minor drafting error in which the wrong subsection number was used.

I move amendment 9.

Risk assessment is at the core of these provisions, for all offence types. There are risks if we start including or excluding certain offences. Given that this provision is for long-term prisoners, thorough risk assessment procedures should be applied to all prisoners who are being considered—and, of course, they are only being considered—for release on the temporary reintegration licence. There is no automatic entitlement to that.

In the provisions, there is a clear commitment that the Parole Board and the Risk Management Authority will be consulted in relation to prisoners for whom the Scottish ministers are considering release. I appreciate that the language of legislation can be confusing, particularly in terms of who and what “the Scottish ministers” are. In some scenarios, the phrase means the Scottish ministers; in other scenarios, including in this case, it means the Scottish Prison Service. That is because of its nature as an executive agency.

It is important, when we are considering the involvement of the victim and the recognition of their need for information and security, that we look at the issue as an end-to-end journey. I appreciate that my remarks might seem quite narrow, but they are specifically in relation to the bill. We need to look across the piece. Of course, victims have a right to make representations to, for example, the Parole Board.

Again, at the risk of my comments sounding quite narrow, I am speaking to specific amendments on a specific part of the bill. The Community Justice (Scotland) Act 2016 is focused on offenders, not victims. Whether we are talking about victims or those being released from prison, any amendments on victims might not fit with that act in terms of achieving support and improved outcomes.

We have to be really clear about the detail. I am more than willing, in the time between now and stage 3, to delve even deeper into the detail. I am conscious that this is a large piece of legislation that is amending several existing pieces of legislation. However, as Mr Greene says, it is important—whether for victims or the accused—that we get all the detail right.

There are also limits on the information that can be shared about individual prisoners, and therefore it is not clear what role a victim or a VSO could reasonably play in the management and delivery of a prisoner’s release plan.

I am concerned about the potential consequences of Ms Clark’s amendment 39 and how it would interact with the existing processes under the victim notification scheme. For that reason, I cannot support amendment 39 and ask Ms Clark not to move it.

On amendment 95, I think that Mr Findlay and I probably have a completely different view about what the amendment would achieve. The amendment seeks to include victim support organisations in the list of public bodies in proposed new section 34A(2) in the 2016 act that have a duty to comply with a request from the Scottish ministers to engage in the development, management and delivery of a prisoner’s release plan. As with amendment 39, I am not clear what role VSOs could appropriately have in the development, management and delivery of a prisoner’s release plan. In the light of that, I cannot support amendment 95 and ask Mr Findlay not to press it.

The proposed definition for victim support services in amendment 98, which is intended to bring in organisations that provide support services, does not work, as there is no corresponding definition in proposed new section 16ZA of the Criminal Justice (Scotland) Act 2003, to which Mr Findlay’s amendment cross-refers. Further, on the basis that amendment 98 is dependent on amendment 95, which I have urged Mr Findlay not to press, I do not think that it would be necessary to pass amendment 98, so I ask Mr Findlay not to move it.

The specific intention of amendments 96 and 97 is not entirely clear from the text alone. It would appear that, taken together, the intention of amendment 97 is to include victims in the definition of a “relevant individual” for whom release planning can take place, alongside individuals on remand or serving custodial sentences.

As I discussed previously, the intention of section 9 is to require earlier engagement in a prisoner’s release planning by the universal services that they will need on release to reduce their risk of reoffending. Victim safety will be a key part of that planning. Prisoner release planning is not the same as victim safety planning and I fear that amendments 96 and 97 risk conflating the two. I therefore cannot support them, and I ask Mr Findlay not to move them.

Amendment 41, which was lodged by Katy Clark, would require Scottish ministers to carry out a review of release planning for women within two years of the section coming into force, and to publish a report on its findings. The Scottish Government and the Scottish Prison Service recognise the specific needs of women in custody. That is why we are taking a different approach to the women’s estate and why the strategy for women in custody is so important.

As I said in response to Russell Findlay’s amendment 71 in an earlier group, I am minded to lodge a stage 3 amendment that will encompass all the various asks for reviews of different sections of part 2 to provide a more coherent picture. That could include a focus on release planning for women. In the light of that, I ask Ms Clark not to move amendment 41.

Before I address the amendments lodged by Katy Clark and Russell Findlay, I will speak to the amendments in my name.

Section 11 allows victims to nominate a victim support organisation to receive information regarding the release of a prisoner in their case. That is intended to enable a more trauma-informed approach to the information sharing and to allow victims to be better supported in release planning.

During stage 1, concerns were raised that the bill as drafted would have the unintended consequence of allowing a victim support organisation to request information on behalf of a victim when that victim had not given consent. We have lodged amendments 21, 24 and 105 to address that concern, so that VSOs will be required to secure a victim’s consent before requesting any information about a prisoner on behalf of a victim that they are supporting. Amendments 21 and 24 will require consent for information in relation to prisoners with sentences of 18 months or more, and amendment 105 is an equivalent amendment in relation to victims of prisoners whose sentences are under 18 months.

Amendments 22, 23 and 25 to 27 will extend section 11 to victims when the perpetrator is a patient in the forensic mental health system. When a perpetrator is subject to a compulsion order and a restriction order, amendment 23 will enable victims to nominate a VSO to receive the information that the victim is entitled to and will give VSOs the right to ask for that information. The Scottish ministers will provide the information if they are satisfied that the victim has consented to the VSO making the request.

Amendment 25 will give a VSO that is nominated by a victim the right to be told about certain decisions. As with amendment 23, VSOs will be able to request the information when they have consent to do so.

Amendments 22, 26 and 27 are technical amendments to the 2003 act in consequence of amendments 23 and 25.

Over 2010-11 to 2019-20.

I will speak to amendments 28 and 29 and then to other amendments in the group.

Although concerns have been expressed about resourcing the role of justice social work, the bill requires only that the courts give justice social work the opportunity to provide information relevant to the question of bail; it does not place a duty on justice social work to do so. We deliberately framed the provisions in that way to ensure that local authorities will always have the opportunity to provide information but that it will be for them to decide whether to do so in any individual case.

That is why I said that I was happy to discuss the matter further with Liam MacArthur ahead of stage 3. However, we must be very mindful of unintended consequence in that area, for the reasons that I have laid out.

It is also important to stress that the prosecutor, who acts independently in the public interest, is best placed to provide complainer safety information to the court, which would be presented as part of their submission on bail.

I will address some of the resource issues before I move on to the amendments in the group that were lodged by Collette Stevenson.

As I have already said to committee, I understand the concerns about the potential financial impacts of the bill. Those are laid out in the financial memorandum, but, to offer further reassurance to committee, I note that we have worked with Social Work Scotland, which is supportive of our approach in and around justice social work and bail. That also applies to the Convention of Scottish Local Authorities, the Scottish Courts and Tribunals Service and others. We engaged with those organisations as part of our work to establish the estimates in the financial memorandum. I stress that we will continue to work with those organisations on the implementation plans for the bill. As we all know, Parliament agrees to the Scottish budget annually.

Collette Stevenson’s amendments 52 and 54 would prescribe certain information relating to the complainer that justice social work must put before the court when taking up the opportunity to provide information that is relevant to the question of bail. I understand the intention behind the amendments. However, they would have very considerable resource implications, as justice social work is not usually involved in providing information to the court about complainers. There has been no consultation on creating such an expanded role for justice social work, and we have already heard concerns about resourcing.

That aside, it is unrealistic for justice social work to provide information of that kind in the timescales prescribed by the bail process, particularly in custody cases, because justice social work may not have any pre-existing relationship with the complainer. We also know from the experience of specialist domestic abuse advocacy services such as the advocacy, support, safety, information and services together—ASSIST—project that, in the wake of the trauma and confusion of an incident, complainers are not always physically or emotionally safe enough at that stage of the process to engage.

An amendment of the bill is not necessary to broaden the role of justice social work, because section 1 does not prescribe the type of information that justice social work must provide on the question of bail. Given those concerns, it is something that could be for consideration in the medium term, and I would be happy to discuss further what, if anything, could be planned for outwith the bill process.

Pauline McNeill’s amendment 53 seeks to provide that, where justice social work intends to provide information to the court on the question of bail, it must do so within timescales determined by the sheriff or judge. As I explained in relation to amendment 49, any delay in justice social work providing information would not change the timing of the bail decision.

Before I go through my speaking note and make the remarks that I need to put on the public record, I will respond to Pauline McNeill’s point about the committee’s post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018. I put on the record that I have obviously received the work that the committee has done in that regard, and I very much welcome it. I will seek to respond once I have had the opportunity to discuss the detail with our justice partners. However, my intention is to respond to the committee as much as I can prior to stage 3, because I think that that would be helpful. Pauline McNeill also asked why we are removing section 23D now. This is taking place in the broader context of our work with partners on remand issues.

I will now speak directly about Pauline McNeill’s amendment 65, which seeks to remove completely section 3 of the bill. As we know, section 3 repeals section 23D of the Criminal Procedure (Scotland) Act 1995. The amendment would mean that the current restriction on bail in section 23D would continue to apply alongside the newly proposed bail test that is set out in section 2 of the bill. I understand that the amendment has been lodged because of concerns that have been expressed that the repeal of section 23D could put victims of violent crime, domestic abuse and sexual offences at greater risk of harm. It is entirely right to ask questions about the impact of the repeal, and I want to address them directly.

First and foremost, I want to reassure all victims of crime and those who tirelessly represent their interests that I am clear that remand will continue to play an essential role in protecting victims and the wider public. The bill does not change that. Public safety and victim safety are at the heart of the new bail test. As I have said, there are, of course, occasions when remand is absolutely necessary in order to protect victims from harm, particularly in cases of sexual or domestic abuse. The new bail test will ensure that that can happen.

The bill proposes to repeal section 23D for one simple reason, which is to ensure that the same core bail test applies in all cases. In its place, the new bail test explicitly highlights for the first time the importance of ensuring the safety of victims from harm. The bill not only does that but defines safety from “harm” as safety from both “physical or psychological harm” in recognition of the harm that is caused by threatening or coercive behaviour, which is an insidious feature of domestic abuse. That means that, when the court considers that an accused person poses a risk to public safety, including the safety of the victim—the type of person to whom section 23 currently applies—remand can be used. In fact, the proposed changes to the new bail test emphasise that.

I note that, as Pauline McNeill mentioned, there is strong support for the simplification measure among those who use bail law. It has been said that repealing section 23D gives the court improved, rather than reduced, discretion to fully consider the facts and circumstances of each case, including the risk of harm that is posed to victims.

For all those reasons, I ask Pauline McNeill not to press amendment 65. If she does, I respectfully request that committee members vote against it.

As a point of information, I note that, in the period 2010-11 to 2019-20, the number of offences that were committed by a person while on bail fell by 18 per cent, from 8,261 in the year to 6,800.

I will speak to amendment 7 and the other amendments in the group. Amendment 7 seeks to address the concerns that the committee highlighted regarding the potential additional burden that might be placed on the courts by the recording requirements that are contained in section 4 while still ensuring that the core information that is required to monitor the use of remand by courts is recorded.

In particular, the committee asked the Scottish Government to revisit the recording requirements in section 4 in order that they be made less onerous. Amendment 7 responds to that request. As such, it narrows the recording duty in the newly proposed section 24(2AA)(b) of the Criminal Procedure (Scotland) Act 1995. It does so by removing the requirements for the court, when remanding an accused person in custody, to enter in the record of proceedings, first, where it relies on the failure-to-appear ground in section 23C(1)(a) of the 1995 act as the sole basis for remand and the reasons why it considers that that is necessary and, secondly, the reasons why it considers that electronic monitoring of bail is not appropriate or an adequate safeguard. However, the requirement on the court to verbally state those reasons when bail is refused remains unaltered.

The effect of the amendment is that courts would be required to formally record in the court minutes only

“the grounds on which it determines, in accordance with”

the new bail test,

“that there is good reason for refusing bail”.

Turning to amendment 66, in the name of Rona Mackay, I have reflected carefully on the evidence that was given during stage 1 scrutiny. Special conditions of bail can help both with protecting the complainer from the risk of harm and by providing reassurance that any attempt by the accused to cause them harm would amount to a breach of bail and would allow the police to take action. That requirement was originally introduced in the 1995 act in respect of people accused of sexual offences, and I am persuaded that there is a good argument for extending it to cover those who are accused of domestic abuse or stalking, which are also offences in which the perpetrator singles out a specific victim.

By ensuring that the court must justify any action not to put in place additional protective conditions in those cases, the amendment will emphasise to the court the importance of appropriate special conditions of bail in cases of domestic abuse and stalking, and it will improve the transparency of court decision making. I ask members to support Ms Mackay’s amendment.

Amendment 35, in the name of Katy Clark, seeks to make changes to section 4 of the bill by further amending section 24 of the 1995 act so that the court must state certain grounds and reasons for the granting of bail and have those grounds and reasons entered into the record of proceedings.

As I have mentioned, an expansion of the recording duty falling on the courts as a result of section 4 directly contradicts the committee’s specific recommendations in this area. It asked the Government to revisit that section in order to reduce, not increase, the recording duty.

Amendment 35 would place an increased burden on the courts in a very large cross-section of cases that enter the system. That might require further information technology changes by the Scottish Courts and Tribunals Service and might increase the length of court hearings, with potentially very little analytical value. That is because there is an overarching legal presumption for bail, which should be refused only when there is good reason for doing so. As such, bail is, in effect, the default position.

With any requirement to provide reasons why bail has been granted, one could simply point to the legal requirement to do so—namely, that there is no good reason not to grant bail. The amendment would also require the court,

“in any proceedings in which a person is accused of an offence”,

to explain certain things, including why

“the accused does not pose a risk to public”

or complainer safety. That is an extremely broad requirement that would apply to all cases that enter the system, not all of which would involve a public safety-related offence or an identifiable complainer.

More generally, it is already a requirement under existing bail law that, whenever the court grants or refuses bail, it must state its reasons for doing so. The bill does not change that. As such, the information that is listed in amendment 35 is information that the court may already verbally state in open court under that duty.

During stage 1, the calls for improved data gathering were generally focused on gaining a better understanding of remand. As such, and for all the reasons that I have outlined, I ask Katy Clark not to move amendment 35.

The final amendment in this group is amendment 36, also in the name of Katy Clark, which seeks to remove section 4 in its entirety, with the effect that the duty in that section on the court to state and record its reasons for refusing bail would not be introduced. Again, that contradicts what was said in the committee’s report, so I ask Katy Clark not to move amendment 36.

The policy intent behind section 4 is to help to improve, over time, understanding of the use of remand and to emphasise the importance of its being used only as a last resort. The availability of richer and more detailed data on the use of remand was universally supported during stage 1 evidence-taking sessions, and amendment 7 would, if agreed to, address concerns that were expressed by the committee about the potential burden that the recording duty, as originally drafted, would place on the courts.

I move amendment 7.