Chamber and committees

I indicated earlier—in relation to the amendments in and around justice social work, for example—my willingness to have further discussions, whether that is on legislation or non-legislative approaches.

I know that we have not yet got to these matters but, with regard to reporting, I am willing to ensure that we have the right reporting mechanisms that can give us some facts, in particular through the use of data to help our understanding. I hope to do that in a way that is comprehensive, and through a more collective approach, because—this is not meant disrespectfully—if it is done sporadically across various amendments from different parties, the result could be less than cohesive.

There is another factor to bear in mind, which gets to the core of Mr Greene’s concern. It is about risk, and how all the players—the prosecution, the defence and justice social work—take information and evaluate the risks, and come to a judgment about those risks, whether to victims or to the public more generally.

The bottom line is that risk is appropriately a matter for the court, because it will adjudicate on that when it makes its bail decision. Of course, it is also a matter for the individual players, whether those are justice social workers or the prosecution, who will provide information that is based on an understanding of risks or potential risks.

Those are matters of professional judgment, and they are quite difficult, if not near-impossible, to legislate for in the bill, but there are other ways in which we can tackle the issue—for example, through other aspects relating to the bill such as standard operating procedures, risk assessments or throughcare standards. It is not due to a lack of willingness on my part.

In conclusion, for the avoidance of doubt, I ask members not to press or move their amendments in this group. If they do so, I ask members to vote against them.

At the risk of stating the obvious, I say to Mr Greene that it is Parliament’s job to make legislation, and legislation either gives very wide powers or places some restrictions on the decision-making powers of independent agents—in this case, for good reasons of victim and public safety. It is, of course, the job of judges to interpret law, but we have to make this law on the basis of our all agreeing that, although there is always a place for remand, remand figures are too high overall.

There are many factors contributing to that situation, some legislative, some cultural and some relating to policy and practice—indeed, we have been engaging in the debate about resources—but the bill is built on the acknowledgement that remand, which should be a very short time in custody, is largely, though not always, ineffective; does not reduce but actually increases reoffending; and, as a result, increases the risks to victims and community safety.

We all broadly agree on that and on what we are trying to achieve. At the risk of being less than diplomatic, my concern about some of the amendments, although well intentioned and about further scrutiny, is that their effect would undermine the overall approach of the Government’s policy and what we are trying to achieve.

Amendment 31, in the name of Katy Clark, may seek to widen the use of remand by adjusting the new bail test. However, we do not think that it does, as the new bail test already covers the situation that the amendment seems intended to address. The court can refuse bail to an accused person on the basis that they pose a risk to public safety. In addition, the current law requires that the court must consider the extent to which the public interest could be safeguarded by the imposition of bail conditions in the event that bail were to be granted. The bill does not change that. That includes the use of electronic monitoring.

Katy Clark’s amendment 32, which relates to the intimidation of complainers, witnesses or others and the definition of the phrase

“prejudice to the interests of justice”,

would not have any practical effect, other than add to possible confusion on the bail test. The risk that an accused may interfere with witnesses is already one of the listed grounds for refusing bail. The definition of

“prejudice to the interests of justice”

under proposed new section 23B(9) of the 1995 act includes

“the course of justice ... being impeded or prejudiced as a result of ... the giving of false or misleading evidence, or the quality of evidence, or its sufficiency in law, being diminished.”

Of course, that would be the intended effect of witness or complainer intimidation.

Amendment 57, in the name of Russell Findlay, which seeks to amend the new bail test in relation to an accused person absconding, is unnecessary. Under the new bail test, in determining whether there is a good reason for refusing bail, the court must consider that at least one of the grounds in section 23C(1) of the 1995 act applies. Section 23C(1) already includes the grounds of there being any substantial risk that the person might abscond if granted bail. The risk of an accused person absconding is also covered within the meaning of

“significant risk of prejudice to the interests of justice”,

for the purposes of the courts’ determination as to whether that ground has been established in order to justify remand. The bill provides that the definition of

“prejudice to the interests of justice”

includes

“the accused person evading justice as the result of the proceedings being delayed or discontinued”,

which, of course, would be the effect of a person absconding.

Katy Clark’s amendment 2 would remove the limitation on the use of remand where the accused poses a risk of failing to appear in court. Under the bill, in summary proceedings, the court can consider the failure-to-appear ground in only two scenarios. The first is if the accused has failed to appear at a previous hearing of the case, having been granted bail or ordained to appear. The second scenario is that the charge in respect of which the accused is appearing before the court is a failure-to-appear offence. If neither of those situations arises, the ground cannot be used to justify a refusal of bail.

Those restrictions do not apply in solemn cases. The restriction for summary cases in the bill, which amendment 2 would remove, is a proportionate step in minimising the use of short periods on remand pre-conviction, while ensuring that summary courts retain the power to remand those who are considered to pose a risk to the delivery of justice.

Amendments 33 and the consequential amendment 34 would make changes to section 2(3), should amendment 2 not be agreed to. The amendments, which would replace the reference to “relevant diet” in the bill, are not necessary. Although their effect is somewhat unclear, the amendments seem to be based on a view that the definition of “relevant diet” does not cover all court hearings at which an accused may potentially fail to appear. However, the definition covers all court hearings, so the amendments are not needed.

Amendment 30 seeks to define the concept of public safety for the purposes of the new bail test. I do not think that a definition is needed and I am of the view that providing one would carry significant risk, as was acknowledged in the committee’s report and discussed at stage 1.

The words “public safety” have been part of bail law since 2007, and I am not aware of any cases in which the lack of a statutory definition has caused an issue. The bill does not include a statutory definition of public safety, and it is the policy intention of the bill that it is for the courts to continue to interpret and apply the term in the same way as they have been doing until now, by giving the words their ordinary meaning. It is common practice not to include statutory definitions in legislation when the ordinary meaning is intended to apply.

I have highlighted the risk of providing a definition; I have concerns about the definition that is offered, too. Paragraphs (a) to (c) in amendment 30 specify examples of behaviour by the accused that might indicate a risk to public safety. Although those examples might be said to be broadly in line with our understanding of the term, by listing things to be included in the meaning of public safety, the term itself could end up being construed too narrowly by the reference to that list. The reverse could also be true, with a broader definition being applied than is otherwise intended.

A definition could create uncertainty. For example, in relation to the proposed definition, it is unclear what amounts to being

“known to demonstrate aggressive, abusive or antisocial behaviour”,

as set out in paragraph (a). There is uncertainty, too, about the terms that are used in paragraphs (b) and (c). Amendment 30 also widens the concept of public safety beyond its ordinary meaning to include mere “likelihood to re-offend”, with no link to public safety being needed.

Amendments 60 and 64 would insert a regulation-making power that would require ministers to

“set out ... the meaning of ... ‘public safety’”.

A statutory definition of public safety is not necessary and is not without risk, whether it is provided in the bill or done through regulations.

Amendment 63 would require the Scottish ministers to

“consult ... about the impact of the public safety test”—

which forms part of the new bail test—and to publish a report relating to that consultation.

I have lodged amendment 8, to which we will come later, which will require the Scottish ministers to publish a report on data relating to bail and remand. That is, in my view, the appropriate approach to follow instead of focusing a report on the impact of an individual element of the bail test. Bail decisions are based on the individual facts and circumstances of each case and are made independently by the court; as such, a precise measure of the impact of the public safety test would be impossible to deliver.

Lastly—with thanks to the committee for its forbearance—I come to Jamie Greene’s amendments 61 and 62. Amendment 61 would require the court to ask

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

relating to public safety that was proposed in amendment 52. In our consideration of the previous group, I set out concerns about statutory provisions in the area that amendment 52 covers; the same concerns apply here, which relate to the deliverability of, and appropriateness for, such a significant expansion of the role of justice social work.

Similarly, I set out in response to Liam McArthur’s amendments 50 and 51 that the prosecutor can, and routinely does, make submissions to the court on the question of bail. As part of that, the prosecutor can, and should, reflect any victim safety concerns that the prosecutor considers are present, for the court to be aware of. As I said on the previous group, I am open to further discussion with Mr McArthur and others.

Amendment 62, in the name of Jamie Greene, seeks to require the prosecutor, the defence or justice social work to provide an opinion on risk in order that the court may consider public safety matters in accordance with the new bail test.

The 1995 act, if it is amended as the bill proposes, will ensure that it is for the relevant party—the prosecutor, the defence or justice social work—to decide whether to give the court an opinion as to any risk of something occurring, or any likelihood of something not occurring.

Katy Clark and Jamie Greene mentioned the information that should go to victims. Information should, indeed, go to victims, and that should happen via the Crown Office and the victim information and advice team. If concerns exist about that not happening—members might have constituency cases, for example, or might have heard experiences from victim support organisations—I am happy to hear them.

Let me be transparent with the committee and say that there remains a question as to whether the solution can be found through legislation or through policy, organisational structures or, indeed, resources. I am happy to have a broader discussion about that point, but—without ruling anything in or out—the solution to the problem might not necessarily be legislation.

My only other remark on Ms McNeill’s amendment 53 is that I do not think that there would be any practical benefit from it, and I say that with respect.

Katy Clark’s amendment 1 seeks to put in place a requirement for the Scottish ministers to report to Parliament on the operation of section 1. I recognise that the enhanced role of justice social work carries resource implications as set out in the financial memorandum. We have been clear during stage 1 that the Scottish Government will continue to work with partners during implementation planning to review the resourcing requirements and timescales for commencement.

Members will be well aware that there are real challenges in relation to budgets, which is likely to continue. That means that difficult decisions will possibly need to be made. Phased implementation of legislation can be a way of flexibly managing the resource implication of any bill. It is also worth highlighting that Parliament—and, indeed, this committee—already has the power to carry out post-legislative scrutiny of any acts of Parliament.

I ask members to reject the amendments in the group.

I will speak to amendment 37, in the name of Katy Clark, first. Amendment 37 inserts a new section after section 4 that would impose an annual duty on Scottish ministers to publish a report on women who have been refused bail. A non-exhaustive list of the information that the report must contain is set out in subsection (2), from (a) to (g), of the proposed new section.

I recognise that the amendment is well intentioned, and I agree that there is benefit in a requirement for the Scottish ministers to publish a report in relation to women on remand. However, I have some concerns about the amendment as it is drafted.

Some of the information that is covered by amendment 37 is already routinely published as part of the Scottish Government’s official statistics release. In particular, the following data is already published: the nature of the offences that women who are refused bail have been charged with, the average age of women who are refused bail and the number of women who transition from the remand population to the sentenced population.

Conversely, some of the data that is listed in amendment 37 would be either difficult or, in some instances, impossible to produce. Accordingly, it may impose onerous requirements on the Scottish Courts and Tribunals Service and, potentially, the Crown Office and Procurator Fiscal Service, to compile the data that is sought.

As such, I ask Katy Clark not to press amendment 37, and I will undertake to work with her to see whether we can return at stage 3 with a workable reporting requirement that explores the characteristics of the remand population—including by gender—in a meaningful and informative way but that does not place unduly onerous burdens on the Scottish Courts and Tribunals Service and others. I am conscious of the concerns that have already been expressed throughout stage 1 about the capacity demands on operational justice agencies, but I will seek to strike the right balance.

I now turn to amendment 8, in my name. The committee’s stage 1 report expressed concern about a lack of information about the circumstances in which remand decisions are made. Amendment 8 responds to that concern by imposing a statutory duty on Scottish ministers to

“publish a report on bail and remand.”

The report will be required to contain certain information broken down by year and covering the first three years during which the new bail test under section 2 is in operation. The report must contain certain specified information in relation to bail and remand decision making. In relation to remand, that includes information such as

“the average daily remand population”

and

“the number of individuals who entered the remand population by reference to ...

(i) the offence (or type of offence) in respect of which the individual was remanded in custody,

(ii) the individual’s gender,

(iii) the local authority area in which the individual lived immediately before being remanded in custody”.

In relation to bail, that includes information such as

“the number of bail orders made by reference to the offence (or type of offence) in respect of which the individual was granted bail”

and data related to

“bail-related offences, and ... other offences ... committed while on bail”.

Amendment 8 sets out the full list of information that must be included in the report, as well as, importantly,

“any other information that the Scottish Ministers consider appropriate”.

I trust that that will be welcomed by the committee, and I ask members to support amendment 8, in my name.

Yes.

I am happy to go back and check that point, but my understanding—particularly after yesterday’s debate about the trauma-informed justice skills framework that is to apply to all actors in the justice system—is that we need to give victims meaningful information. Although the information needs to address the facts of the matter on whether someone has been remanded or bailed, I do not think that it is unreasonable to expect people to be given some context about what was said in open court, bearing in mind that it might not be appropriate or desirable for the complainer to be present in court. The route to provide that information would be via the Crown Office. I am happy to have further discussions on that point.

On Mr Findlay’s other point in relation to my amendment 7, I gave the reasons for refusal and will repeat them for the record—I apologise if people recall hearing them. Amendment 7 removes 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.

Amendment 7 agreed to.

Amendment 35 not moved.

Amendment 66 moved—[Rona Mackay]—and agreed to.

Amendment 36 not moved.

Section 4, as amended, agreed to.

After section 4

There are a number of issues to clarify and put on the record, and I hope that colleagues will bear with me.

It is apparent that Ms Stevenson’s amendment, which is to be pressed not by her but by Mr Greene, would remove section 5 from the bill in its entirety. I make it clear to Ms Stevenson and others that section 5 is not about the existence of electronic monitoring of bail—that already exists. There are important debates and factors to consider further in relation to how the use of electronic monitoring of bail could be enhanced. It exists now in 21 local authority areas, and it is coupled with bail supervision, which exists in 30 areas. That is a separate matter, and we need to be clear about that.

All that we are seeking to do is give the court the option to acknowledge good behaviour by a person who is being electronically monitored. Although a restriction of liberty is not the same thing as a deprivation of liberty, it is nonetheless a restriction. If someone is sentenced, it would not be unreasonable for the court to have the option to take their behaviour into account or not to do so, as it sees fit.

Our approach has been consulted on; I take exception to the suggestion that we have sneaked it in.

In a moment, Mr Findlay.

For the record, before I make some more formal comments, I refer members back to the comments that I made when we debated the amendments in group 3. Remand remains an essential component and option to protect victims who are at risk of violence—including domestic violence—whether physical or coercive.

We are talking about a section of the bill as introduced. I am responding to endeavours to remove that entire section from the bill. Members are entitled to lodge any amendments that they wish, but I am entitled to put forward arguments to protect the overall integrity of the bill.

Section 5 is only a small part of the bill, but I will go through the reasons why I think that it has merit, notwithstanding the fact that there may be further scrutiny and debate and that other amendments may be lodged. Section 5 adds new section 210ZA to the Criminal Procedure (Scotland) Act 1995. It provides the court with discretion during sentencing to take into account a period that the accused person has spent on electronically monitored bail with a curfew condition, which is referred to as “qualifying bail”. Section 5 also sets out how that ought to be taken into account.

The system is based on a similar one in England and Wales. For example, a person might be on qualifying bail for a period of six months. If, on conviction, they were to receive a sentence of 18 months, new section 210ZA of the 1995 act would enable—but not mandate—the court to decide how much, if any, of the six-month period was relevant for sentencing purposes. That might be none, some or all of that period.

The court will make its assessment on the basis of the circumstances of each individual case. For example, if the person has not complied with the curfew, the court may decide that none of the six-month period is relevant, which would mean that the person would enter custody to serve their sentence with none of the time spent on qualifying bail being treated as time served. Equally, if a person has fully complied with the curfew, the court may decide that the whole of the six-month period spent on qualifying bail is relevant.

Once the court has decided what the relevant period is, the bill provides a formula for the court to apply. Importantly, the formula does not treat time spent on qualifying bail and time spent in custody as equivalents; they are not. Instead, the formula in the bill converts every two days of the relevant period spent on qualifying bail as meaning one day of the sentence served. The use of the formula will ensure that a consistent and fair approach is taken if the court considers that the time spent on qualifying bail should be accounted for at sentencing.