Chamber and committees

I will, in a second.

The judge will decide on sentencing using the range of factors that are available to them when they are making that decision.

Yes.

Any reduction is, of course, welcome. I am happy to find the provenance of the statistics that I have used for the benefit of the Official Report. Perhaps a link can be provided to that. I suspect that the figures in my briefing are off the back of some published reports. In any case, by the time that I have finished speaking, someone from my office will have texted me about that.

My point is that, clearly, there is a problem, because people on bail are going on to commit further offences. Within that number for 2020-21, there were serious offences, including seven homicides, and a number of serious rapes and domestic abuse incidents. That perhaps underlines why there was nervousness about the proposals: would increasing the cohort of those who are released on bail necessarily lead to an increase in the number of offences that are committed by those people while on bail?

Over the past few months, we have heard from victims organisations about people who are on bail under enhanced conditions but who continue to retraumatise their victims either through direct and overt breaches or through other means, including ways that are technically outside a bail breach. In those latter cases, the police really struggle to charge somebody and bring them back into custody.

That can be as simple as standing at the end of the victim’s street, which means that they are technically not on that street, and being a menace to the victim. We have had a lot of anecdotal evidence about that, so I hope that the Government is looking at that live issue.

There is one other thing that is missing from the reporting requirement, and that the Government might be open to dealing with via an amendment. Reporting is helpful and data is useful, but what happens as a result of that? It would be useful to have an amendment on that at stage 3, which could be as simple as saying that, as a result of the above information, the Government will take any actions that it considers appropriate to achieve a remedy. In other words, if, after the legislation is passed, we see an unfortunate pattern that nobody wants to see, there would be a commitment from or a requirement for the Government to take action to remedy that without necessarily going back to the start of what the bill proposed. That might be helpful and would save the Government from having to repeal major sections of the bill. No one wants to see that, but there is clearly some nervousness that that might happen.

I am trying to get my head around something. The bill clearly wants to offer the court as much information as possible, and it proposes to do that by allowing criminal justice social work to be given a bigger role in providing information about the offender.

All the amendments in this group are also trying to give the court as much information as possible, but about the complainer or the victim, and yet the Government has rejected every amendment that seeks to find a way to do that.

My question is simple. If there is a mechanism in the bill to allow more information, from whatever source, to be given about the offender’s situation, how on earth do we get more information about the victim or the complainer to the court, given that there is no mechanism for doing so?

Yes, in one second.

Giving the Crown more information in advance of that point in the proceedings would mean that it would be up to the judge or the sheriff, as is rightly the case. The way to do that is to better inform the Crown agent; the way to do it is not to restrict the parameters by which judges make such decisions.

We have been trying to decipher the effect that amendment 33 might have. Is its purpose that the court must take into account not only the diet that is relevant to the specific remand hearing but any and all outstanding hearings? For example, if an accused was in front of a remand court but was also the subject of a number of other live cases that were going through the system, and, if the accused had a history of absconding in relation to those cases, would that be taken into account in relation to the other case? It sounds as though quite a lot of work would be involved. Who would present or deliver that information to the judge or the Crown?

I am sympathetic to the idea, because one of the problems with the bill—I will come on to this in talking about my amendments in the group—is that it might remove the safeguard of being able to use remand for repeat absconders. However, will Katy Clark clarify the effect that amendment 33 would have?

Yes, thank you.

When I saw amendment 67 on the daily list of amendments, I thought that it was very welcome. [Interruption.] Would you mind if I close the window before I carry on, convener? There is a very noisy, angry crowd outside—I am sure that it is nothing to do with us. I am not sure which flag they are waving today, but it is quite a protest.

To simply remove section 5, as Collette Stevenson’s amendment 67 would do, is a blunt approach, but I think that that is the best approach. I am not sure what tinkering could be done to it. I fundamentally disagree with the concept in section 5 that time spent being electronically monitored should be considered as part of a person’s sentence.

I do not have a problem with the concept of someone spending time being electronically monitored while they are on bail. However, section 5 relates to a court passing a sentence of imprisonment or detention and the time that is given for a sentence, and it sets out that any qualifying time in which someone is electronically monitored will form part of their sentence. We included that issue in yesterday’s debate in the chamber, pre-empting our discussion today, but it was an important point to make, because electronic monitoring is a condition of bail. Effectively, it could be used by courts as an incentive to say to someone whom they would have previously placed in custody that they will grant them bail with enhanced monitoring. That is the point of the measure.

There are different monitoring tools and different ways to monitor people. Some of those are incredibly useful, including monitoring people’s geographical location and movement, and monitoring abstinence from substances such as alcohol and drugs. We can have a positive and constructive conversation about those. However, the fundamental issue with section 5 is that, if a person spends time being monitored, that will be considered as part of their sentence. That is why victims organisations have been vocal in their opposition to it.

Collette Stevenson’s approach to take out section 5 is the right one. Section 5 does not have a place in the bill and the Government will struggle to justify it. No amount of tinkering could fix the problem. The only tinkering that could be done with section 5 is simply to say that, notwithstanding all the above, it is entirely up to the judge. If that is the case, what is the point of having it?

Will the member take an intervention?

I have four amendments in the group and will try to keep my comments to those, as there are many amendments in the group and we have heard a lot of explanation about others.

Amendments 56, 58, 61 and 62, and many of my amendments to the bill, relate to a particular group of people—victims of crime. My amendments in the group have an overarching goal. Although I understand the cabinet secretary’s approach, I want to ensure that the bill reflects on and considers both victims and offenders as much as is possible. That fits very nicely with the excellent debate that we had yesterday: the Parliament is rightly seeking to constructively refocus our justice system on the needs and rights of victims, and there is broad consensus on that.

The amendments get to the very heart of what part 1 of the bill is about, which is the issue of changing the test for bail. The proposed legislation alters the bail test that is set out in the Criminal Procedure (Scotland) Act 1995. Under that existing legislation, bail can be refused for a number of very valid reasons, including, for example if there is a

“substantial risk that the person might if granted bail ... abscond; or ... fail to appear at a diet of the court”.

We have heard a little about some circumstances in which judges and sheriffs have used that provision.

Someone can also be remanded if there is a substantial risk that a further crime might be committed while that person is on bail—we all know the statistics about crimes committed while people are on bail—or if there might be a substantial risk that the person might interfere with witnesses or obstruct the course of justice. Those reasons are all routinely used to refuse bail, and I think that those are sensible measures that the judiciary has made good use of since the provisions came into force, in 1996.

The Government has challenged us to think about the assumption that we have a large remand population, which is an issue that the committee has looked at in great detail. Is there a conclusion that remand is currently being overused by sheriffs and judges or that it is being wrongly applied when the existing tests are applied? It is not clear from any of the notes accompanying the bill what the Government believes.

Our stage 1 proceedings went into a great deal of detail with a large number of witnesses, and we took much oral and written evidence. There is no concrete evidence of the overuse of remand. The committee went to watch hearings taking place and there was no evidence of that. I understand that remand is generally perceived to be a last resort in summary cases, and I very much got that impression from our private discussions with judges. As those discussions were private, I cannot refer to them, but it was clear that remand was very much a last resort. It was used only once in the 30 or so cases that we watched. Those were summary cases, so that is what we would have expected.

The use of remand will naturally be more common in solemn cases, as it will be in the High Court. That is because of the nature of the cases that go through those proceedings, which tend to involve crimes such as serious violent assault, murder or attempted murder, serious organised crime or serious sexual assault. Naturally, remand figures in those cases are much higher. However, the Government has not made the case that judges are overremanding people.

If the intent through the bill is to reduce the remand population, a very clear way in which the Government could do that would be to get through the backlog of cases. This Parliament voted on legislation to increase the time limits for which someone can be held on remand. We were all uncomfortable in doing so, but we understood the reasons for that. The measure was used during the Covid pandemic, and it was extended. Indeed, some of us felt nervous that it would become a permanent feature of our justice system.

Many people are held on remand who perhaps should not be, but is that a result of their wrongly being held on remand in the first place or the fact that they have been languishing in prison on remand while they wait for their case to come to court? I think that it is the latter. Indeed, we have seen evidence of that, including when we visited HMP Edinburgh—or Saughton prison—early in our inquiry, where we met a number of men, most of whom were young, who had been held on remand for far too long. We all want to address that issue, and I am sure that we will all come together to do that. However, the issue is that the bill will change the bail test.

My amendment 56 might be the shortest of my amendments, but it is probably the most important one that I will speak to today. It would change the word “and” to the word “or”, which seems minor. However, the effect of that would be to ensure that the two-step test, which is the Government’s most controversial proposal in the bill, is removed. In effect, the amendment would remove any conditions that having a two-step test would impose. Some scenarios have already been mentioned, such as further offences that might be committed while someone is on bail or where there is a genuine risk that an offender will abscond or miss future diets—those are primary considerations. Currently, sheriffs and judges—rightly—routinely use those crucial factors.

I want to pay credit to Victim Support Scotland, which has been mentioned a couple of times already. Some of the other amendments that I have lodged in this group have been as a result of my working with it, and they should not be taken lightly.

Victim Support Scotland told us:

“It will be a concern to the public in general and victims of crime specifically that the provisions relating to bail narrows the court’s discretion to refuse bail. That is, no doubt, with the intention of reducing the prison population.”

The Scottish Police Federation said in its written evidence that the proposals would be

“as unwelcomed by communities plagued by repeat offenders as they will be to Police Officers who work tirelessly to keep these communities safe.”

Amendment 56 would broaden the scenarios in which an individual can be refused bail. I do not think that we should be forcing our courts into a situation in which they believe that an offender could be a risk but, due to a technical interpretation of the legislation, would have to release them anyway.

Lord Carloway is absolutely right: the judiciary knows best in that regard. That is my view, too. Indeed, over a number of months, if not years, I have heard from the Government that it relies heavily on the independence of the judiciary and that ministers should not meddle or interfere with it. That is generally the response that I have received to most questions that I have put to justice secretaries historically. If the Government truly believes that the judiciary is independent, let it remain so.

Amendment 58 would give the courts further discretion on the ability to remand someone into custody if they think that there is a substantial factor in justifying that—and they would have to justify that. The amendment replicates the wording of an existing provision in the Criminal Procedure (Scotland) Act 1995, which judges and sheriffs have already used to good effect. It adds extra flexibility. The amendment says:

“insert—

<( ) due to any other substantial factor which appears to the court to justify keeping the person in custody.>”

That is reasonable and proportionate, and it certainly makes sense. In that regard, I also support amendments 2 and 33 on the basis of Katy Clark’s explanation.

The bill must also give—this is where there is room for improvement, which I hope that the cabinet secretary is open to—judges and sheriffs the discretion to use, if the new test is applied, the absolute power to take into account all relevant factors.

I was slightly nervous about the language that the cabinet secretary used when speaking to group 1. She was more explicit than her predecessors in saying that the bail test is “more focused” and therefore might

“reduce the use of remand.”

I am not entirely sure what “more focused” means in that context—does it mean more restrictive, perhaps? The answer to that is yes. What does the cabinet secretary mean by “more focused,” and does she believe that that will tie the hands of judges? If not, why not?

I will discuss amendments 61 and 62 separately. They were drafted in conjunction with Victim Support Scotland. I am pleased and proud to work with it, because it represents the voice of victims—not in all cases, but in many cases. Amendment 61 aims to ensure that, when a court is considering a matter of public safety, it

“must request the prosecutor or officer of the local authority to provide the information”

that is pertinent to the consideration of public safety. The amendment does not use the word “and”; it uses the word “or”.

In my experience—and the cabinet secretary rightly acknowledged this during an earlier group of amendments—the Crown agent who is there on the day is often the best source of information. However, I also appreciate that they are extremely busy. There is often only one advocate in the court, who has a large number of cases to get through, and, when they are asked to provide information in real time, they struggle due to the sheer volume of information that is made available. That is the case on a Monday morning, in particular, if someone has been remanded into custody over the weekend. There is a lot of pressure to get a huge amount of information together for a Monday morning court hearing, and it is possible that not all the information will be there on the day.

The Crown has to make a judgment about whether to oppose bail, and it is on that point that further intervention could better take place. There could be improvements at that level on whether the Crown simply does not oppose bail. Normally, in those circumstances, it would be very bizarre for the judge to remand someone if the Crown has not opposed bail.

One of the problems with the provisions in section 2 relating to “public safety” and

“prejudice to the interests of justice”

is that the lack of definition means that they can be interpreted differently. In speaking to my amendments, I suggested that the bill will lead to a narrowing of the rule on when remand can be used, which will mean that fewer people will be held on remand.

However, is it possible that the obverse could be the case—that, because “public safety” is not defined, the interpretation of

“the interests of public safety”

could be so wide that more people could be remanded, which is entirely counter to the Government’s ambitions?