Chamber and committees

I will make more specific comments about resourcing issues in a wee while, but the heart of the matter here is whether justice social work has a relevant contribution to make or relevant information to pass on. The amendments that we are discussing now are about the practical impact of those contributions rather than about resourcing. Of course, when justice social work has a valuable contribution to make, it should be enabled and empowered to do so.

Consequently, amendments 28 and 29 are, in my view, unnecessary, although I can understand why they have been lodged. If a way can be found, ahead of stage 3, to reframe the ability of justice social work to provide the court with information, I will be happy to consider that. However, I think that the bill currently delivers what we want in this area.

Pauline McNeill’s amendment 49 seeks to remove the requirement for the court to provide an opportunity for justice social work to provide information that is relevant to the question of bail. It has been suggested that decisions on whether to admit an accused to bail could be delayed by section 1, but the approach in the bill will not result in unnecessary or longer periods of remand, because, under existing bail law that will continue to operate, the court has only until the end of the day after the accused person’s first appearance to make a formal bail decision.

Sorry, convener, it is a long time—five years—since I have done stage 2, and I was unsure whether I was permitted to intervene, being a guest of the committee and the person under scrutiny.

I want to give some clear reassurance to Pauline McNeill and Jamie Greene. Perhaps I did not mention it earlier because, for me, it is stating the obvious, but previous convictions are, of course, a consideration. People will come to a judgment—whether it is the justice social worker, the prosecutor or the court itself, which will be the final arbiter—on the significance and relevance of previous convictions. They are a fundamental part of any assessment of any alleged offender in any circumstance. I hope that that is helpful.

Yes.

For further clarity, convener, earlier in my remarks I acknowledged that, depending on the nature of the information that is provided, some further time may be required at a bail hearing, but that is separate from the timescales for when a bail hearing must be heard. I hope that that is helpful.

The formula is informed by practice in England and Wales. It is not for me to opine on the evidence that the committee heard at stage 1. However, I am well within my rights to point to the fact that the Government undertook a full public consultation on the bill. As we always do, we published the responses to that consultation. If, after today, any member or, indeed, the committee collectively would like me to provide further information on any remaining issues, I will be more than happy to do so. That is not a problem.

To return to the example that I have just given, applying the formula to the six-month period would mean that, as a maximum, the person would enter custody being treated as having served three months of their 18-month sentence. Although a person who is subject to electronically monitored bail with curfew conditions is not in the same position as someone who is in custody, such a measure represents a significant restriction of their liberty, as I indicated earlier. Therefore, the bill enables—rather than mandates—the court to take cognisance of that, should it wish to do so, in a proportionate way when a custodial sentence is imposed. The measure brings Scotland into line with similar arrangements in England and Wales, which I believe that the committee supported in its stage 1 report.

Therefore, with respect, I ask committee members to vote against amendment 67.

I have spelled out my real concern—and, indeed, the Government’s concern—that a direct impact of separating the two requirements of the new bail test and making them alternative rather than cumulative—it would help if I could say the word—would be a significant expansion of the court’s ability to remand under the current bail test. That is where our nervousness arises—that this is not a step forward but a step back.

Amendment 58, in the name of Jamie Greene, also seeks to expand the use of remand by inserting a catch-all provision into the new bail test to enable the court to refuse bail where it considers that necessary

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

The amendment would give the court a broad discretion to refuse bail, as long as one of the grounds in section 23C(1) of the 1995 act applied.

Another amendment that seeks to expand the use of remand is amendment 59, in the name of Russell Findlay. It would expand the reasons for which the court may consider it necessary to refuse bail—

I want to continue with my previous train of thought, after which I will—I promise—explicitly address your points in relation to the Lord President, because they are important.

The court is required to decide on bail on the basis of the information that is put before it in the timeframe that I referenced earlier, regardless of whether justice social work has provided information. Equally, there is no risk that bail will be refused because the court is waiting for information from justice social work, because, under existing law and under the bill, the fact that the court is waiting for information from any party is not a reason to refuse bail.

Amendment 49 would leave it to the discretion of the court whether to offer an opportunity to justice social work to provide information. There is a risk that that could mean that valuable information would not be provided in individual cases.

I turn to the remarks of the Lord President. The committee will be aware that, as Pauline McNeill mentioned, the Lord President offered views. I think that it will be helpful for me to take each of those views in turn.

With regard to prescriptiveness, we acknowledge that the new bail test is more prescriptive. That is because it adds two new specific public interest considerations, one or the other of which must apply in order for bail to be refused and remand to be deemed necessary in the future. For the record, those considerations are

“the interests of public safety, including the safety of the complainer from harm,”

and

“to prevent a significant risk of prejudice to the interests of justice.”

That is a deliberate policy approach, which is designed to focus the use of remand. Therefore, the new test is more prescriptive, but it is prescriptive with a purpose. It is part of the policy goal of achieving a more focused use of remand, which we hope will, over time, reduce the use of remand.

In terms of time taken, which the member referenced, we acknowledge that some time may need to be added to some bail hearings. That is to ensure that the courts have better information on which to make their decisions.

I will move on to amendments 50 and 51, in the name of Liam McArthur, which would require the courts to seek views directly from the complainer or from victim support organisations on behalf of the complainer to inform the bail decision. We have concerns about the practicality of those well-intentioned amendments, due to the timescales within which bail decisions must be made, particularly in custody cases. In my view, they are not necessary and they may have unintended consequences.

When the court is deciding whether to grant bail, the prosecutor and the defence are also able to make submissions to the court on the question of bail. In doing so, the prosecutor can and should make the court aware of any safety concerns that they think arise based on the particular facts and circumstances of the case. That is particularly so under the new bail test, which centres the consideration of public safety in bail decision making, including the safety of the complainer from harm.

We all agree that it is important that the complainer’s voice is heard in the court process, and I am happy to discuss the matter further with Liam McArthur ahead of stage 3. However, it is also important to be mindful of the sensitivities around communicating complainers’ safety concerns to the court, particularly in domestic abuse cases.

Domestic abuse involves complex dynamics in which it can be important that information about concerns that may lead to a partner or an ex-partner being placed on remand is not attributed to information that is provided by the complainer, so as not to compromise safety or make complainers fearful to engage.

I will speak to amendment 55 and the other amendments in the group. There is a wide range of amendments that seek to do different things, so it will take a little time to explain why the Government opposes the amendments, and I hope that you will bear with me.

There are amendments that seek to expand the circumstances in which remand can be used by the court, some of which would potentially significantly widen the basis on which remand might be used even in the current system, let alone under the proposed framework that is envisaged by the new bail test in section 2. It is, of course, in respect of the current system that the committee called for a reduction in the use of remand. The relevant amendments run counter to the Government’s policy to narrow the focus of the bail test so that remand is kept as a last resort, either when there is a risk to public safety, including victim safety, or there is

“a significant risk of prejudice to the interests of justice.”

Amendment 55, in the name of Katy Clark, would remove the new bail test that is proposed in the bill. If we are committed to ensuring that remand is a last resort reserved for cases in which it is really needed to protect the public and victim, or to safeguard the interests of justice, it is important that members reject amendment 55.

Jamie Greene’s amendment 56 would expand significantly the court’s ability to remand an accused person under the current bail test. It would have that effect as a result of separating the two requirements of the new bail test to make them alternative rather than cumulative. The effect would seem to be that the court would remand an accused person where one or more of the grounds listed in section 23C(1) of the 1995 act was established, or where there was a risk to public safety or

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

as is set out in proposed new section 23B(1A) of the 1995 act. An accused person who posed no risk to public safety or to the delivery of justice could therefore be remanded solely on the basis that

“at least one of the grounds ... in section 23C(1) applies”.

If you let me finish this paragraph, I certainly will.

Mr Findlay’s amendment would expand the reasons for which the court may consider it necessary to refuse bail to include the phrase

“because the court considers it likely the accused person will breach their bail conditions”.

It is the Government’s view that the amendment is not necessary, because the new bail test already ensures that the court can consider the impact of such breaches of bail.

Of course.