Chamber and committees

I will not move the amendment on the basis that I need to consider for stage 3 whether it introduces new policy.

Amendment 1056 not moved.

Section 43 agreed to.

After section 43

Amendment 1004 moved—[Keith Brown]—and agreed to.

Section 44—Effect of early release from prison or young offenders institution by virtue of regulations

Amendment 1057 moved—[Russell Findlay].

Okay. On that basis and in good faith, I will not press amendment 1035 or move amendment 1036.

Amendment 1035, by agreement, withdrawn.

Amendments 1005 and 1006 moved—[Keith Brown]—and agreed to.

Amendment 1036 not moved.

Amendment 1007 moved—[Keith Brown]—and agreed to.

Amendment 1010 not moved.

I thank Katy Clark and Brian Whittle for their amendments. This group of amendments is important because we are being asked to agree to far-reaching time limits for all cases, and that will have a significant impact on victims and accused persons.

There were significant delays to court trials prior to Covid. I am also aware that judges were granting, quite liberally, extensions on cause shown for virtually any reason at all; if no courtroom was available, they would grant an extension. I was therefore already concerned, and, in fact, I discussed it with the cabinet secretary at some point. Scotland was once proud of its time limits. For good reason, it had reduced the limit for trials to begin to 110 days and 140 days for trials in the High Court, and we are now being asked to extend those limits to a maximum of 320 days until 2025. That applies to every single case, so I ask members to think about that.

It was open to the Crown and the Government to argue that, since judges have been liberal on extending time limits until now, it could be done case by case. That is an alternative to the proposed changes. If any member thinks that the extension is justified because we have a backlog, the alternative is to say that, if certain trials cannot proceed, arguments can be put before the court for individual cases. However, the Government has chosen not to do that. As Katy Clark said, those time limits will be used. Make no mistake that people work to deadlines, and so they will use the limits.

The legal profession made the point that the Crown will not disclose what priority it will give to cases, and some might say that there is good reason for that. I am sympathetic to it, because I understand that there are so many variables—including whether the court, evidence and witnesses are available—but it means that an accused person could be sitting in Barlinnie jail not knowing if their case will be called next week or in 320 days.

I do not think that it is acceptable for victims, either, as Brian Whittle said. Some victims of sexual crimes have said that they would not be inclined to proceed with their case if there were significant delays, and the Government has to take that into account.

I will speak to each of my amendments to explain why I have chosen the timescales on them, but first I want to contribute to the general debate.

The committee has discussed remand prisoners many times. Scotland has the worst remand figures in Europe—they are utterly horrendous—and when we questioned the Scottish Prison Service, which, I accept, does a very good and difficult job, it said that some remand prisoners double up in cells. I checked with the chief executive of the prison service, and she confirmed that. That means there are issues with the prison estate. We need to consider the health of prisoners. Those things will give me cause for concern if the proposed limits are used until 2025. I know that the cabinet secretary will say that we need some slack in the system, and I accept that, but I do not accept that we need those particular time limits.

Amendment 1042 amends the time limit in relation to remand and service of the indictment from 260 days to 110 days in solemn cases—it was 80 days, before the coronavirus pandemic. That is the one amendment that I think is worthy of consideration by the Government. Why would the preparation of a case require 260 days? It might be said that that question needs to be put to the Crown, which is fair enough, but I am raising the question now.

Why does the Crown need to go up from 80 days to 260 days to prepare a case? Everything will flow from the indictment. If the 260 days are used, the preliminary trial and the trial itself will obviously take place much later down the line.

I have suggested an extra 30 days. That might be classed as arbitrary—let us see—but I acknowledge that some extra time is needed. I just do not accept that a 260-day period is required to make the system work.

Amendment 1043 amends the remand time limit until High Court pre-trial from 290 days to 170 days. I have used the arbitrary figure of an extra 60 days.

Amendment 1041 is a Law Society amendment, which provides that there should be no extensions. I thought that we should put that in the group for discussion for completeness. I favour having some time limits, but not the ones suggested in the bill.

Amendment 1044 reduces the remand time limit until a trial goes to the High Court from 320 to 200 days. The period was previously 140 days.

Amendment 1045 amends the remand time limit until sheriff court pre-trial hearing from 290 days to 170 days. Prior to the pandemic, that period was 110 days.

Amendment 1046 amends the time limit for remand until trial for solemn cases from 320 days to 200 days. That was previously 140 days. That amendment provides for significant extra time.

I am sympathetic to Brian Whittle’s amendments, which I will comment on. Members should feel free to intervene on me.

Brian Whittle is quite correct. We have made a lot of progress in reducing time delays for cases involving sexual offences, which have a disproportionate effect on women and children. However, I was not clear what “sexual offences” means in his amendments. Is that the full range of sexual offences in solemn procedure cases? I am sympathetic, because of the disproportionate effect on women and children. However, other solemn procedure cases, such as those for serious assaults that involve injury to someone’s face or body, are also very stressful for those victims.

There will obviously be practical issues with court availability and availability of defence. We have had discussions about the latter with the Faculty of Advocates, which is concerned that it is losing people from the bar who are not being replaced. That was probably already having an impact on the availability of counsels to proceed with trials.

Some of those issues are fixable. There is an on-going debate with the Government about fees and investing in defence as well as prosecution. It is much more lucrative to go for a job at the Crown Office now because it pays more. At the moment, it is less lucrative to stay in the defence profession.

All in all, it is not satisfactory for a Parliament to agree to extended time limits with no commitment on how something is to be fixed, no explanation of why the Crown needs so long to prepare a case, no real progress on the conditions of prisoners on remand, and no real commitment on how the various cases will be dealt with in a very lengthy process.

There has been a lot of discussion in the committee about conducting court business by electronic means. By necessity, that approach allowed us to conduct court proceedings during the pandemic, and I acknowledge that the Government has said that it wants to monitor its effectiveness. We have heard quite a lot of concerns from lawyers groups about whether, in some proceedings, virtual appearances are fair and balanced, when all things are considered. I realise that there is a lot further to go in that discussion.

Amendment 1035 in my name would remove the suspension of the requirement to physically attend court by removing the following wording:

“(1) Any requirement (however expressed) that a person physically attend a court or tribunal does not apply, unless the court or tribunal directs the person to attend physically.

(2) But sub-paragraph (1) does not apply in relation to a hearing in which a person is to give evidence.”

The amendment would have the effect of taking out the default position of virtual appearances for all court proceedings. I am probing that provision in the bill, because we need to have on-going discussions about it.

I will probably push amendment 1036, which would prevent appearances in custody courts from being virtual by default. That is mainly based on my experience of visiting the Glasgow custody court. I appreciate that that was just one day, but I am assured that what I saw there is a regular occurrence. It gave me cause for concern about continuing to have virtual appearances in custody courts. I was there on a Monday, when four or five cases were dealt with in an hour. After those cases, because the audio and visual quality was so poor, the court had to be adjourned. I was informed that, the previous Monday, the custody court ran until 9 or 9.30 pm, and that that is not unusual, because of the audio and visual quality.

I also witnessed, by permission, a petition case in which the wrong accused was brought to London Road police station, and the proceedings had to start all over again. I could not actually see the accused. Everything about that just seemed to me to be undermining the process.

Yes.

I acknowledge the importance of the legislation. In various debates regarding violence against women, we have highlighted the importance of cybercrime and of the harms that can happen online. I note, for example, that 70 per cent of girls aged 12 to 18 have been sent unsolicited nude images of boys or men.

Do you agree that it is important to monitor how effective the legislation is in the long run? If it is to be worth anything, we must ensure that it will protect women and girls from unsolicited images. I am sure you agree that it is part of the unfortunate umbrella of violence against women and girls.

I thought that you would say that. Surely the Government cannot seriously be saying that it would put up with an unsatisfactory situation that the Law Society of Scotland has highlighted until 2025. It is not right that an accused person cannot consult their solicitor, never mind the second issue.

There has been a commitment to improve the technology but will it improve before 2025? Are there more immediate plans than that?

The member is correct that I am referring to people who are being detained in a police station. We have heard evidence on that, but it just seems that the system is not really set up for it, and there is an issue with the quality. The Law Society of Scotland has said that the use of virtual custodies raises significant operational and human rights concerns. The evaluation of the Falkirk pilot in May 2022 was critical of the virtual custody process in the absence of significant additional investment, and stated that the issue of fairness to the accused is fundamental.

There is an important point about physical separation. Many lawyers have complained about the physical separation of the accused in speaking to solicitors. That was accepted as necessary during the pandemic, but why is it necessary now? Do we not want to reinstate the fundamental principle that an accused person should be able to see their lawyer before appearing in the court? That is simply not possible if the accused appears directly from custody in a police station. The situation is far from satisfactory.

Jamie Greene referred to the police. Police Scotland has concluded that it cannot fully support the virtual model without a complete overhaul of the custody process and significant investment in resource. That is telling. For those reasons, I am inclined to push amendment 1036.

I point out to the Government that it strikes me as a costly exercise to have a sheriff, and all the clerks, sit until 9.30 at night. It is a very poor experience for staff—if anyone is interested, and if that matters—to sit all day in a court when proceedings started 45 minutes late because the Crown did not prepare its cases on time.

A lot of issues are slowing down the process, and they need to be looked at. Nonetheless, in my view, virtual hearings are totally unsatisfactory and do not meet the interests of justice. They will not even solve the problem of separation between solicitors and the accused—a solicitor is unable to confer with the accused when one of them is in the police station and the other is not—at least until such time as we can provide a certain level of quality of electronic means to enable that to happen.

For the record, I accept that there are aspects of court proceedings in which, many people say, the use of virtual hearings is perfectly acceptable, where the balance of justice is not interrupted and it makes sense. However, with regard to this particular aspect, I am not convinced that it makes sense.

I move amendment 1035.

Cabinet secretary, thank you for outlining the rationale behind the amendment. Initially, on reading it, you might think that you would not want to depart from the general need to get a balanced panel. I am reasonably familiar with the difficulties in getting people to sign up. Will you say more about what the Government will do to correct that, so that we can have mixed panels in the future? How long will the measure be in place before you review it?

I will move this and amendment 1048, convener. I hope that I did not mishear members saying that they would support them.

Amendments 1047 and 1048 moved—[Pauline McNeill]—and agreed to.