Chamber and committees

Thank you, that is really helpful. I have one other question, which I put to last week’s panel. We attended a custody court—I thank the SCTS again for letting us in on that because it was really helpful—and the evidence that we heard there was that, these days, fiscals do not seem to have the discretion to take a different view from what is marked up on a case. Procurators fiscal who served previously whom I have met said that they would have had more discretion.

I asked last week whether that was because centralisation of marking in the Crown Office has led to a more rigid approach. I am really keen for you to comment on that because it seems to me—correct me if I am wrong—that a procurator fiscal, as a highly trained lawyer, has an individual commission to make decisions on behalf of the Lord Advocate. Why should a procurator fiscal not be able to use their discretion, if they hear, in court, reasons to change how a case is marked?

Good morning. As much as I have read the bill, the policy memorandum and all the evidence, I am still trying—given that we are not practitioners—to get my head around legislation that is quite technical, and around amending the 1995 act, which is quite technical in itself.

To follow on from Katy Clark’s line of questioning, the Crown Office and Procurator Fiscal Service’s submission raises issues around whether we should define public safety tests. I do not take a view on that—I simply want to put an alternative view to you, and you can comment as you wish. I now feel that I would like to ask more people this question, so that I can sort it out in my head.

Others have said that it is incorrect to say that public safety in terms of proposed section 23B(1A)(b)(i) will serve as a sole gatekeeper, which is the matter in question, and the provision in summary procedure to which proposed section 23C(1)(a) would apply.

Some have said that it is more correct to state that, in such cases, the section—namely section 23B(1A)(b)(i) and (ii)—would serve as a separate and distinct ground for refusing bail.

Some witnesses are of the view that it may not be necessary, therefore, to define what is meant by “public safety”.

I am really asking whether there is another way to read it. As previous witnesses have said, it is for politicians and the Government to frame the policy, and the policy is to give sheriffs more discretion not to remand. You can agree or disagree with that, but that is what the policy is designed to do.

The committee has been asked to consider a number of substantial matters, including whether “public safety” requires to be defined; whether it should be left to the courts to define it; or whether Parliament should say, “We want to give the courts more guidance on that.” There is always a balance to be struck.

I am not asking for a really technical answer on that, but is there another reading of that, or could we amend the bill?

What I understand about all of that is that, if public safety is the sole gatekeeper—if it is the only requirement—there could be another provision in the bill. Of the cases that Mr Donnelly has raised, housebreaking and kinds of dishonesty are the obvious ones. They are easy to understand. Housebreakers are not violent criminals, so where is the harm? However, communities might say, “Well, it would be nice if we had some respite from a housebreaker for some time.” Under the current framing of the bill, could sheriffs say, “Okay, we will take a wider view of what the test is.”?

Anything that you want to say on that would be helpful to me.

My first question is for Mark McSherry. The committee has heard a lot about the provisions that would allow sheriffs to remand fewer people, and various views have been expressed about whether we need a definition of public safety. I would like to give you a chance to talk about that, given that the body that you represent is, I presume, the expert on risk management of offenders.

I will put it more succinctly. We know that public safety is already a factor that is considered by the courts when they are deciding who should be released on bail and who should be remanded. Will the bill give the consideration of public safety a more central role in those decisions?

Is there a need to define what public safety is more clearly? Some sheriffs are saying that they already make decisions that are in the public interest and consider harm to communities. For example, a housebreaker may not cause physical harm, but there could be harm to the community as a result of their actions. On the other hand, some of the judiciary are saying that they want the Government to define what it means by public safety, because otherwise they will not know what the Parliament intends.

It would be helpful if you could speak to those issues.

That is helpful. Does that mean that you think that there is a need for a definition in the bill, or would it be more appropriate in guidance?

My second question is for Jim Kerr. We have previously had an exchange with the SPS on remand figures and so on. As I understand it, the bill came about when the committee raised questions about those figures. I want to give you a chance to talk about your general sense of why we are here. I presume that you see the figures and the profile of the remand population regularly and can see it more clearly.

We went to the custody court in Glasgow and, although it was only a snapshot, we saw that, in the summary cases, there was a lot of bail supervision, so we can assume that most of those in the remand population are involved in solemn proceedings. Last week, the remand population was at 29 per cent of the overall population, which looks high, although I know that it changes. Is there a sense in the SPS that that is a crisis? What is the profile of the remand figures? It would be helpful to know what your sense is of why we are here.

I am assuming from what you have said that no policy decision has been made that fiscals cannot depart from how a case is marked.

Do we need to look at how the system is resourced? I take your point that the decision is up to the sheriff, but if we are sending in young inexperienced fiscals, would not it be helpful to the court if the fiscal who is in the court is in a different position from the one who is marking the case and is hearing all the facts and circumstances? I note what you say about the pressure that fiscals—experienced or otherwise—are under in custody courts. That has been a concern of mine for more than a decade. Would it help the court if, in a minority of cases, the Crown could, having heard all the points that have been made, say that it will not oppose bail?

Does Fred or Stuart want to come in?

Right. Obviously, we need to ask social work what is going on there. Do you have you any ideas? There is a potential human rights issue here. The courts run until 7 in the evening. If someone is taken at 2 in the afternoon and gets the benefit of social work, and someone else is taken at 5.30 and does not, that is a clear omission of the system.

Good morning. I have two questions: one to David Mackie and one to Wendy Sinclair-Gieben. I will begin by thanking the Howard League for the work that it has done in highlighting not just the remand population, which first drew my attention to this horrendous issue for Scotland, but the conditions in which prisoners have been held on remand in particular. The committee is at one on this, and we have discussed it with the chief inspectorate. It is a situation that we all want to get out of. I just want to thank you for that.

In your submission, David, you say that you would like to see the bill also include provisions for discretion where a case is unlikely to result in a custodial sentence. Can you say more about that? I imagine that you would not know in all cases whether there is likely to be a custodial sentence, but anything that you can tell the committee about how that would operate would be helpful.

Good morning. Thank you for the evidence so far, which has been really focused and has helped me to understand some key points. It strikes me that the system is not joined up; there is also an issue with resources.

Last year, the committee questioned the remand figures—those are of concern to the committee, and we raised that with ministers. The response was that the bill would go some way to reducing the remand population. I am sure that you what you are saying is correct, but—perhaps this is not clear in the bill—I always understood that to be what we are attempting to do.

You and others have raised a number of issues in which clarity is needed, including around what a public safety test is. We need to get into the detail of that. One of the issues that came up when we visited a court on Monday was whether there would be a public safety test for theft or housebreaking cases, so it is really helpful to hear your comments.

I have a couple of questions for you, Joanne. You mentioned 12-month sentencing, young people and the approach of the Crown. In addition, Fred said that the Crown no longer seems to have discretion. Does the centralised marking system have anything to do with that? I have had concerns about the system because marking is no longer done locally—as you know, it can end up anywhere. There is a real disconnect, with fiscals marking cases from, for example, Glasgow, which I represent, but who do not know the area. I wondered whether you thought that that might be one of the reasons for the decisions that are being made.