Chamber and committees

I thank my colleague for his comments. Amendment 35, in Katy Clark’s name, is well drafted and important. There is a suggestion that it would increase the workload of the courts, and we are all a bit nervous about that. These are fast-moving hearings. However, there is a gap here, because victims are left in the dark as to why certain decisions are made. If we are going to make changes, which the bill does—whatever our views are on those changes—let us make changes that improve the information that is given to victims.

If bail is granted, it is entirely reasonable and rational for the appropriate reasons to be given. The court should set out the specifics of why it believes that the accused does not pose a risk to public safety—that is the new test, and it includes the safety of the complainer, which is important—and why it thinks, if relevant, that the accused can be appropriately managed through the imposition of bail conditions. We are looking at a scenario in which the courts say, “We have a new enhanced bail test but, on balance, we believe that the risk can be managed through, for example, enhanced bail conditions, and here are the reasons why we do not believe that this individual poses an immediate risk to the complainer and can therefore be released back into the community.”

At the moment, the only recourse available would be for the complainer to make representations to the Crown and ask for an appeal. There is no mechanism for the complainer to request that a reason be given for a decision, other than what has been said verbally in the court on the day, and to hear that, you would have to be there, which, for many complainers, would not be entirely appropriate. We all know the problems with getting records and transcripts of what has been said in court—it is a prolonged and expensive process.

Unless the Crown has been proactive in providing information to the complainer about why it thinks bail was granted, there is no real mechanism for getting that information. I do not want to add to the workload of the court clerks or to make the decision-making process more difficult for judges and sheriffs. However, if we are going to enhance the process by which reasons must be given for remanding someone, we should do the same for the contrary situation—we must give complainants more and better information when bail is granted. Accepting amendment 35 is one way of doing that, and things could be tidied up by the Government ahead of stage 3.

Equally, it would be a good outcome if the cabinet secretary said that she will take the matter away and work with members to see what can be done, but we need that commitment. Otherwise, if Katy Clark does not push this issue, someone else will.

I support it, so I will move it.

Amendment 52 moved—[Jamie Greene.]

That is only on the assumption that the provision states that the court “must” remand. Section 2 of the bill says that

“The court may determine that there is good reason for refusing bail only if it considers that”

one of the grounds in section 23C(1) applies and that the new bail test that the Government has introduced via the bill is met. The interpretation is interesting—my understanding of the changing of “and” to “or” is that we would either revert to the status quo under the 1995 act or we would simply afford the court the flexibility to make an and/or decision. If replacing “and” with “or” is the wrong way to go about that, the Government could suggest a better way. The provision states:

“The court may determine ... if it considers”,

so there is no “must” about it. There is no absolute that weakens the current remand test or expands it in any way.

I appreciate your taking all these interventions—it is a good debate.

What is the Government’s fundamental problem with the court having additional options? Under its wording, amendment 58 proposes that the court may consider refusing bail

“due to any other substantial factor which appears to the court to justify keeping the person in custody.”

It is the “justify” bit that is important, because, when a judge or sheriff decides to remand someone, they must give a valid and justified reason for doing so. Equally, the person in question has the right to appeal the decision. Why does the Government believe that courts should not have that power? The case has not been entirely made.

The proposed new section appears in the bill as drafted, but that does not mean that it has to stay in it. We have a new cabinet secretary, and we have a new focus on victims. The cabinet secretary has an opportunity to do the right thing on section 5. I feel uncomfortable with her response. I appreciate that she has inherited the policy, but that does not mean that we have to live with it.

Who was consulted on the formulation? During our stage 1 deliberations, all that we heard on this aspect was evidence from two academics who said that they had heard an idea about it somewhere else. We certainly took no evidence on it, and members of the judiciary did not indicate that they had been consulted. Where on earth did the formula whereby two days on electronic monitoring means one day in prison come from?

I thank Pauline McNeill for lodging amendment 65. As she said, the amendment was one of a number of proposals from victims organisations, and I think that the rationale has been quite well explained. Those organisations have some nervousness about the matter.

When we took evidence on the proposal, there were two schools of thought, which were expressed publicly and in private. It seems that the legal profession is keen to see the removal of section 23D of the 1995 act, which it feels is problematic. I wonder whether the Government had discussions with the Crown, solicitors and the judiciary on the issue, as such discussions might underlie the rationale for removing section 23D. Equally, the perception of a number of organisations was that its potential removal is worrying—they feel that section 23D is a valid safety net, particularly for those who are at risk of domestic abuse and sexual crime.

Victim Support Scotland got in touch with a number of members, seeking to remove section 3, which will abolish section 23D. It is important that I put that organisation’s claims on the record because I would like the cabinet secretary to address them. Victim Support Scotland’s perception might be an error, but I want to give the cabinet secretary at least the opportunity to alleviate its concerns. Its interpretation is that the proposal to remove section 23D would

“allow bail to be granted to convicted repeat and serial perpetrators of domestic abuse and sexual offending against women and who present a particular danger to women’s safety.”

It went on:

“Given women’s experiences of abusers being given bail, including the lived experience of survivors given in evidence to the Criminal Justice Committee, women need as much protection as the law can afford them. The safety of victims should be at the heart of any decision to release a person on bail, so the removal of this restriction and reliance on the new all-encompassing bail test does little to show victims of these types of crime that their safety is being protected under the law”.

Those are Victim Support Scotland’s words, not mine. I do not want to put words into anyone’s mouth or even take a personal view on the issue, but there is a case to be answered around the removal of section 23D, and amendment 65 gives us the opportunity to have that debate.

I, too, thank Katy Clark for lodging amendment 37. My understanding is that she will not be moving it, but I will let her explain that when the time comes. The committee has certainly grappled with the issue of data.

I want to speak to amendment 8, which was a very welcome surprise when it appeared on the daily list of amendments. It is not often that the Government comes forward with comprehensive reporting requirements in that fashion. [Interruption.] Well, you are doing so now, which is a welcome change of tack.

My understanding is that some of the data is already collected, although it is quite hard to get. Indeed, we have been trying to get information for quite some time. It is very tough to tease out the data, which often comes out through various reports or through the publication of statistics in response to a freedom of information request or parliamentary questions.

I could make a controversial comment and say that, if we had done what is set out in amendment 8 before introducing the bill, we might have a better picture of the effect that the legislation might have or whether it is even needed at all. Amendment 8 would give us some of the data that we have been crying out for throughout the stage 1 process. That includes the information provided for in subsection 2(d):

“an analysis of the length of time that individuals spent within the remand population”.

That might explain away some but surely not all the anomalies as to why our remand population is so high. We really would have loved to have had such data. I mean no disrespect to SPICe in saying that, because there are limitations to the data that is collected.

The point of interest to me is on bail orders and the relevant convictions off the back of that. Clearly, there is a cohort of people who go on to do one of two things after they have been given bail: some breach the bail conditions, whether those are simple or enhanced conditions, and others commit entirely unrelated offences. With the limited data that I could unearth, I found that—I think that I have raised this in committee before—in 2020-21, 15,724 crimes were committed by somebody on bail. Those are the Scottish Government’s own statistics. That is one in four crimes that were recorded in that year, which is a fairly substantial number. That might explain some of the uneasiness that some members had about the direction of travel of the proposals. If the effect of the legislation is to—

The point is that someone who has been bailed has been neither tried nor found guilty of any offence. Therefore, any restriction is a by-product of the bail conditions; it is not part of their sentence.

As you have rightly said, there is a big difference between someone who has been bailed with some form of supervised or enhanced restrictions or parameters around the bail—in other words, the bail is conditional on certain activities or restrictions—and someone who has been remanded into custody and is awaiting trial. At the moment, the law takes the latter into account in sentencing—and rightly so. Somebody could have been stuck in prison for a year and a half because their case has been endlessly postponed and delayed. When they get their day in court—and if they are found guilty of the crime—the sentence might well be less than the time that they had already spent in custody, and they will walk free from court that day.

However, that is an entirely different matter. My point is that section 5 tries to conflate two issues: the idea that electronic monitoring could be useful in enhanced bail, which is the point that Ms Stevenson has made and which I agree with, and the issue that Pauline McNeill has highlighted of the time that people spend in custody on remand and the loss of liberty in that respect, which should absolutely be taken into consideration, too. However, the sole focus on this entire section is the time spent on electronic monitoring as part of a person’s sentence.

That is why I think that the section needs to come out—and perhaps be replaced, which is something that we can work constructively on. The section cannot be amended in any meaningful or feasible way that provides a solution that we might all want and that we might, surprisingly, agree on.

I will end my comments there.

The Crown agent should be given flexibility to change their mind on the day—notwithstanding what it says in the centrally marked papers—if further information that is relevant to the complainer or the victim comes to light during proceedings, and many of us have tried to insert that into the bill through amendments. The Crown might choose to oppose bail on the day, and it should have that power and flexibility. Whether or not the agent has the confidence and experience to do so is an entirely different matter; as we know, that is a whole other kettle of fish. Equally, the Crown might choose not to oppose bail, given further information that comes to light up until the point of the hearing. We know that they rattle through cases speedily on the day—there are many cases to get through—so I am not entirely convinced that everyone is in receipt of all the information that is needed.

Amendment 62 takes it a little bit further, because it says that the prosecutor

“must give the court opinion as to any risk of something occurring”

so that the court can make a consideration on what the impact of granting an offender bail would be.

In essence, all my amendments seek to strengthen the process so that victims’ rights are at the heart of decision making. As drafted, the bill does not do that. I hope that the Government will be open to that, because I am not the only one asking for it. It is not only the judiciary that has voiced concerns; victims organisations have as well. They are on the record as saying that—it is all in the stage 1 report and in the evidence that the committee received.

I am happy to look at amendments 61 and 62 if they are problematic on a technical level. That is absolutely fine, and I am willing to talk to the cabinet secretary about that. However, my other amendments in the group would give judges the flexibility that they need; it cannot be an “and” situation. The new two-step test will tie the hands of judges. It is up to the Government to explain why it does not.

I will let other members speak to their amendments in the group.

Okay. I am just checking my statistics. Over which period was that?