Chamber and committees

Let us face it: it is a complex area of law, especially for us legislators to get our heads round when we are not practitioners. [Interruption.] Yes, cabinet secretary, please intervene on me.

In relation to my earlier exchange with Jamie Greene, I note that, when we first examined the remand figures, the then cabinet secretary—I think—specifically referred to section 23D as one of the restrictive provisions and implied that that might have been one of the reasons why the remand figures were high. On close examination, although we do not have the figures, it does not appear that section 23D is used in many cases, so I am not concerned that it is increasing the remand population per se.

I do not want to pre-empt the cabinet secretary’s response to our post-legislative scrutiny, but I wonder why the point about the domestic abuse provision was not even drawn to our attention by anyone, bearing in mind that the exceptional circumstances test relates to when there has been a previous analogous conviction. I thought that the cabinet secretary might address that in her remarks, but she did not. We are talking about people with analogous convictions—that means that, if the offence relates to drugs, the previous conviction must relate to that and not to a summary offence. I assumed that the fact that someone had a previous conviction made it more likely that they would cause harm or abscond and that that was why an exceptional circumstances test was built into the 1995 act. I am probing the issue, and the Government needs to set out what the equivalent of the exceptional circumstances test is.

As I said in my opening remarks, I am sympathetic to the Law Society’s view in that the fact that someone has an analogous conviction from 20 years ago does not necessarily indicate that there is cause for concern. However, if the previous conviction was, say, five years ago, there might be more concern in that it might be more likely that the person will offend while on bail.

I begin by saying that Jamie Greene’s opening remarks on his amendments in this group put the matter really well. When we first started to look at the question of remand generally and questioned the then cabinet secretary about our concerns, the response that we got was that we could deal with some of those concerns in the Bail and Release from Custody (Scotland) Bill. We will deal with the issue of section 23D of the 1995 act later, so I will not address that now.

The committee has taken time to try to understand why the remand population is as high as it is, because that is of concern to everyone. However, I agree with Jamie Greene that further examination tends to suggest that that might not be anything to do with the provisions in the current legislation but is for other reasons. I am sure that we will continue to examine that.

That is what was said to me after the stage 1 report was published, but I am left wondering why the Lord President seems to think otherwise. Why do you think that the judiciary’s interpretation is that the approach in the bill could add on some time? I make a plea to the cabinet secretary. I support the notion that it should be mandatory for an opportunity to provide information to be provided, but the operation of that needs to be sorted out, given that the judiciary think that it could result in a lengthier process. Perhaps it is the phrasing of the bill that is the problem, which is why I suggested an alternative whereby sheriffs could determine how long the period would be.

How would what is proposed operate? Let us say that the court in question was a smaller court where there was no criminal justice social work available. In Glasgow, criminal justice social work would be available, but it would be busy. How is the system meant to operate? If you cannot tell us that now, could you discuss the issue with us before stage 3? I am not inclined to support the current wording unless we can clarify the situation. I would not be putting my argument so strongly were it not for the fact that the Lord President’s interpretation seems to be different from that of the Government.

Yes.

Amendment 65, which would leave out section 3, is a probing amendment, because I would like some clarity about what that section does and what its purpose is.

Section 3 seeks to repeal section 23D of the Criminal Procedure (Scotland) Act 1995, which restricts the granting of bail in certain solemn cases. The section currently provides that bail is granted only in “exceptional circumstances”—if the accused is being prosecuted in solemn proceedings for a violent, sexual, or domestic abuse offence or a drug trafficking offence, or if they have a previous conviction under solemn procedure for any such offence. Those provisions are quite clear.

There is quite a bit of support for the removal of section 3, particularly among some members of the legal profession. In our stage 1 report, we quoted what the Law Society of Scotland told the committee:

“At a practical level, if, say, a 45-year-old man is accused of a domestic violence offence and he had a conviction on indictment for domestic violence 20 years ago, the court would not be allowed, in principle, to grant bail, unless the exceptionality test was met. If, on the other hand, that 45-year-old man had half a dozen convictions in the past three years but all on summary complaint, section 23D would not kick in.”

The Law Society went on to say that section 23D

“is a pretty arbitrary, one-size-fits-all kind of solution”.

Fred Mackintosh KC, speaking on behalf of the Faculty of Advocates, expressed a similar view that section 23D should be repealed because it is unnecessarily restrictive on the courts, and Sheriff David Mackie of the Howard League supported the removal of section 23D as he felt that

“The provisions in the bill provide sheriffs and judges with all the discretion that they need to address the concerns of victims.”—[Official Report, Criminal Justice Committee, 18 January 2023; c 18-19; 19; 42.]

When I read section 23D, I felt satisfied that, with the new bail test, the provisions were sufficient to allow the court to protect the safety of the complainer, and I think that that is the view of the committee’s adviser. However, the cabinet secretary will be aware that a number of victims organisations have urged the retention of section 23D because they are not satisfied of that.

One thing completely threw me, which is the reason why I am seeking further clarity on why the Government wants to repeal section 23D. When the committee carried out post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018—which happened after we had closed our stage 1 report for this bill—we became aware that the subsection in section 23D referring to domestic abuse had been inserted into the 1995 act only in 2018. Had I been aware of that during stage 1, I would have asked the Government why it is seeking to repeal something that went into the legislation only in 2018. I was not on the committee at that time, so I do not know the background, but I believe, from checking with the Scottish Parliament information centre, that that happened through a Government amendment.

I think that we require at least some explanation before we consider taking something out of legislation only five years after it was put in. I am interested in finding out, before stage 3, what happened in the intervening four-year period. I do not expect the cabinet secretary to be able to tell the committee that today, but I would like to know whether there is some concern about the operation of that provision or whether it is just being swept up because the other aspects of section 23D are too restrictive for the courts.

I am open-minded about it and not taking one view or the other, but I want to speak for the victims organisations that do not think that that provision is covered. That is what gave me cause for concern, and I would be grateful for some clarity around it.

I move amendment 65.

I will come back to the issue at stage 3, when I have processed it. On that basis, I will not move amendment 49.

Amendment 49 not moved.

I am trying to understand and process everything that you are saying to the committee. You accept that some time may be needed, but what does that mean? Is the mandatory requirement to give that opportunity to be taken up or not? A social worker might want to give a report, which I realise could be oral or in writing. Does consideration need to be given to the formulation of that? There is already some misunderstanding about the provision. You do not want a situation where the accused is detained further while awaiting a decision on bail.

Jamie Greene puts that really well. That is where we started out, and it is where we are now. We are having to drill down into the details of the new test so that we are satisfied, which is one of the points that I now want to address.

On the new bail test, one view—to take another point that Jamie Greene made—is that we need to trust the judiciary to an extent within the parameters of the law to make the right decisions, and we set the parameters in the law. However, with regard to the new bail test, the bill clearly states that bail can be refused if the court determines that that is necessary

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

I feel that that speaks to some of the concerns of victims organisations.

The other part of the test is that bail can be refused

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

My reading of that provision would partly address the amendments in Russell Findlay’s name, which probe how prescriptive we need to be in that regard, and rightly so. It seems to me that that provision could cover the concerns of victims organisations, depending on how it is interpreted.

I will finish on a point that is similar to one that I made in the debate on the previous group. We have the judiciary asking for a definition of “public safety”, which leads me to be a bit concerned that there is no common understanding of what that provision is expected to do. The Government needs to be clear with us about that; otherwise, I feel that we need to be more prescriptive to ensure that the provisions are commonly understood by the people who will make the decisions.

That is the point that we needed to get to, so that is helpful. The question is what the equivalent would be of “exceptional circumstances”. I think that we are suggesting that the current test means that it would be that the information that was before the sheriff would include previous convictions and the sheriff would have to consider the matter under the umbrella of the provisions on public safety, including the safety of the complainer,

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