Chamber and committees

I want to ask about resource implications, and I will put the question to David Hamilton. Rona Mackay asked about the distress to officers, and I will quote one of the statements that is made in the SPF’s submission:

“I have seen my hands shaking on my way into some nightshifts knowing I may only have 1 or 2 cars available, just that added stress of increased call volume and low staffing levels is shocking.”

Further on, there are comments from other officers about not being able to get leave, which impacts on the service. As we know, if we lose a lot of police officers under the McCloud judgment, we will be left with a lot of less experienced officers. That would have a huge impact on the mental health of officers, who are having to deal with other individuals who are experiencing mental health issues. Is resourcing for mental health a big issue in the police service?

I want to say in public what I have said in private: the work that you have done is tremendous and I thank you for it.

I am on record as voting for sex to be an aggravator in the Hate Crime and Public Order (Scotland) Bill. I felt strongly that that was missing from the legislation. However, I think that the rationale for not doing that seems to make sense. What problems do you think that we, as legislators, might come up against when we have to define something that is not already defined? The simple part of it is that sex is defined in the Equality Act 2010, whereas we will have to look at the idea of misogyny in some detail.

The working group’s definition of misogyny includes

“male entitlement, while subordinating women”,

and it is important that you talk about male power. To me, that is central to everything that the committee is doing, not only on this legislation but as it looks at the range of things that the Parliament should do. I know that you agree.

Do you have any concerns about how we go about defining? We obviously have to define misogyny and I presume that we also have to define ideas such as the subordination of women. We have an ordinary understanding of what that means, but we know that, when it comes to legislation, things may not be as simple as they first appear to be. Do you want to say anything about that to the committee? We will be dealing with it further down the line.

I was going to ask you about international examples, but you said that Scotland would be groundbreaking if we introduced such legislation.

To illustrate what you have told the committee, I note that there was another example of male power yesterday—the case of Tim Westwood, who has been a well-known DJ for 30 years. There are such examples every day. It is a global issue.

Can you point to any countries that are doing something similar? You mentioned Mona Rishmawi from the United Nations. If the committee wanted, could we get access to her through you? If Scotland is going to be groundbreaking, it would be helpful to get an international perspective, because it is a global issue.

I thank Jamie Greene for raising the issue. The policy note could have been clearer. It refers to

“two further ways in which a person on bail can have conditions varied.”

I am struggling to determine what those two variations are. If that is the substance of the SSI, I do not understand why that has not been set out to the committee.

It looks as though the Government is saying that the instrument will just make a technical change, that we do not need to worry about it and that, as Jamie Greene has suggested, we just need to rubber stamp it. I suggest that the Government should note for future reference that, when we get an SSI policy note, there needs to be a bit more information in it. We need to know what we are being asked to sign off.

I am content with that—and I am not intending to take such action, by the way. However, given what we already know, we need to know what the legal position is. What is the point of lodging a motion to annul if we have a legal obligation? The measures arose from a court case.

Russell Findlay is quite correct: press reports suggest that 80 per cent of the police officers concerned have already applied, with 1,700 people being eligible. Can you imagine that? I feel that the note before us does not reflect the enormity of what the Parliament is being asked to sign off. I kind of feel that we have no choice, but it is important to say how we feel. What choice do we have?

I have two points. I want to highlight one of the actions in relation to Lady Dorrian’s report. We recommended:

“Improved communication with complainers, including the provision of a single trauma-informed source of contact”.

That makes total sense, given the evidence that we have heard, but I do not know whether, at this point, we might want to register that we would like to know more about that. I am never clear about the relationship between the police and Victim Support Scotland and the work that it does. I would just like to mark that for future reference. Also, given the evidence that we had from complainers, we may also want to hear more about

“The expansion of advocacy support services”.

On specialist courts, I understood that the specialist court proposal would allow for 10-year sentences, but the key issue column in the table says that, if a specialist court were to be established, it

“could have unlimited sentencing powers”.

I do not recall the Government suggesting that the sentencing powers would be unlimited. I remember the committee questioning whether a specialist court should be able to give a maximum sentence of 10 years. I have no problem with the principle but that was not what was said to the committee. That was my understanding, anyway.

Just before we move on, I note that, on the use of the Moorov doctrine, which is in the section on “Long-term actions”, the table says:

“sheriffs and judges should ensure that juries understand the consequences of applying the doctrine”.

I do not recall who was in my group, but a lack of understanding about that was a big issue. It is my understanding that the Moorov doctrine is used more commonly for good reason: to try to get convictions. The Crown Office said that it did not agree with our recommendation. However, that does not square with what is in the table about sheriffs and judges. It is not for the Crown Office to say whether sheriffs and judges should explain the doctrine.

I accept the Crown Office’s point that it would be undesirable for prosecutors to discuss hypothetical situations—I am okay with what it has said in that regard. However, there needs to be separation in relation to the role of sheriffs and judges.

I am absolutely clear in my mind that it is a good thing to explain to juries the implications of applying the doctrine so that juries are clear about that, and I am totally fine with that not being explained by the Crown Office. However, those are two separate points and they should be in two separate boxes, otherwise there will be confusion on that very important issue.

Can I clarify something? Death in custody is covered on page 24. There is a statement about the cabinet secretary accepting all the recommendations on 2 February and providing an update by the summer of 2022. I have nothing to say about that, other than to highlight the importance of that statement.

If I recall correctly, accepting all the recommendations means that deaths in custody would be dealt with more quickly and that, regardless of whether there was a police investigation, immediate access would be provided to all the relevant information. I am very surprised that neither Police Scotland nor the Crown Office has said anything about that. That would mean that two things would be running in parallel. Let us look at recent cases in which there might have been criminal behaviour, such as the Allan Marshall case. If there had been “unfettered access” to the prison and the staff to find out what happened, would that have sat well with the current arrangements, which is that we wait to see whether there is a fatal accident inquiry or a police prosecution?

I am in favour of the recommendations, but I was expecting clarification to be provided on whether those two processes can sit alongside each other. Given the number of deaths that we have had in custody, that is quite an important issue.

This is a short debate on the substantial set of papers put before us, so I think that we are probably all holding back a wee bit in terms of prioritising. I am not going to give all my thoughts—I just want to put that on the record.

I note Jamie Greene’s comments with regard to the Crown Office and Procurator Fiscal Service’s submission, and I want to raise a more general point just to find out what other members’ experiences have been. I do not feel that we are getting the data that we need from the Crown Office to support our examination of some of the issues that we are being asked to look at, and I do not feel that there has been transparency. A point that has come through loud and clear in relation to delays is that the Crown Office will be deciding which cases it is going to prioritise, and a big concern for me is the lack of transparency around that. I cannot disconnect the vision from the fact that we are coming through a pandemic that will cause the delays to continue.

For future reference, I would like—with anyone else who might be like-minded—to approach the Crown Office and ask for a little more information, now that we are, hopefully, coming out of the pandemic and beginning to tackle court delays. I do not think that it is unreasonable for us on behalf of our constituents and the people whose work we are trying to scrutinise—those in the Crown Office and the justice department—to get some insight into concerns that we will have over the next two years about the prioritisation of cases.

I will say no more than that, but I do not want to leave the matter there. Given that we are in public session, I put it on the record that I want to come back to the matter, because I am pretty certain that the committee will have concerns as things move forward and we try to get through these horrendously long delays. The Crown Office will, of course, want to protect its right to make its own decisions—and rightly so; I am not attempting to interfere with that—but I do not think it unreasonable for us as politicians and legislators to ask for a little bit more co-operation from the Crown Office and Procurator Fiscal Service to let us do our jobs.

Stop me if I am coming at the wrong bit, convener, but I wanted to mention specialist courts.