Chamber and committees

My first point is maybe a wider point. This is quite a big SSI and we are looking at it in the context of the negative procedure, which, as members know, gives us limited options. For example, it is impossible for us to amend it; such matters are outside of our control because of the primary legislation that the rules are connected to. Had the instrument been subject to the affirmative procedure, we could have heard from the cabinet secretary and his advisers on it, taken evidence on it and done other things with it rather than being left with the only option of annulling it, which is unhelpful, because there is some good stuff in it.

However, there are things in the rules that are not so good, and that is what I wanted to point out. The point that my colleague Russell Findlay made about matters that the board may consider around release was absolutely correct. The issue is specifically about someone who has been convicted of murder or homicide and whether they have failed to reveal the location of a victim’s body. This is a real missed opportunity. The issue will feature in my member’s bill, which is yet to be drafted, unfortunately, and it featured heavily in my consultation. The overwhelming response to that was that there should be an overt rule on the matter with regard to the test for release. The policy objectives just say that the rule

“does not change the underlying test for release”

but revealing a location might be a factor that is taken into account. I presume that it already was a factor, so the rules do not seem to make any change there.

Had I been given the opportunity to amend the rules, I would have made them stronger. The Government has missed an opportunity to introduce Suzanne’s law through a simple procedural mechanism that would go a long way towards serving justice to the families of those victims.

The second point is about the final paragraph on page 5 of the policy note, which talks about changes to the rights and roles of victims in all of this. The provision simply allows for victims to observe parole hearings. Again, that is a missed opportunity. It still does not give victims the opportunity to make meaningful representation during those hearings, which is a long-standing issue. The rules could easily have been altered to allow victims to speak or have a voice during parole hearings, and I have felt strongly about that for some time.

Furthermore, that paragraph talks about those who are registered with part 1 of the VNS who do not want to be involved with the Parole Board process. I question the evidence on that. How many chose not to be involved in that process? How many victims or their families were subject to poor communication from the VNS and were notified so late or out of the blue that they were unable to participate in the process, or unwilling to because of retraumatisation? We know that uptake of the VNS is poor because of its opt-in nature. Again, there is a missed opportunity to look at opt-out versions of the scheme.

We also know that a number of people who asked to participate in—when I say “participate” I mean “observe”—parole hearings were rejected. I would have liked to have seen some numerical evidence about that. How many people asked to attend a parole hearing and were rejected? I have only anecdotal evidence but the figure is certainly in the dozens, and I have tried to get some more information about that in the past few months. A number of people were denied access to those hearings, especially when the process went online.

Should the Parole Board rules be explicit and make it clear to victims way in advance and up front that they have the absolute right to observe hearings unless there is good reason for them not to or a reasonable objection is raised? It should not be a matter of discretion for the person who is in charge of that Parole Board hearing. I have more questions about that.

I am disappointed that we are being asked to shoo through a negative instrument when it concerns important matters that could have empowered victims of crime and is failing to do so.

Yes—at summary level. However, that is not my interpretation of what I heard. Perhaps you can write to us. I am sure that we will talk about the issue again.

I am happy to put this to Mr Lamont and the cabinet secretary. We heard evidence last week from David Fraser from the Scottish Courts and Tribunals Service. He said:

“I have managed to determine the number of people who are on remand and awaiting trial in our legal system … In summary cases, only 1 per cent of people are on remand. For sheriff and jury cases, it is 12 per cent, and for High Court cases it is 27 per cent.”—[Official Report, Criminal Justice Committee, 25 January 2023; c 33.]

That contradicts what I have just heard from Mr Lamont, who said that, by the very nature of those types of offences, those people will likely be held on remand anyway, even under the new rules. Surely that contradicts the purpose of the legislation, because you are trying to reduce the number of people held on remand who you consider do not need to be, but, at the same time, we are saying that people who commit serious offences and who should rightly be held on remand will still be held on remand. The two do not add up. Either those people will still be held on remand or we will be letting them out with bail conditions.

I am a bit confused about the purpose of the legislation. It is clear from the statistics that the lion’s share of people held on remand are there through High Court cases, which are normally quite serious cases that result in a custodial sentence.

In summary cases, it is only 1 per cent. Very few people in summary cases are held on remand, which is where you would think that the bulk of it would be. If that were the case, there absolutely would be a problem, but there does not seem to be a problem.

That is interesting. The cabinet secretary said that it is not for the Government to interfere overly with decisions that are made by the Crown but, if we make legislative change, that will alter its behaviour and decision making.

Mr Lamont mentioned Kenny Donnelly, who raised a particular concern that I do not think has been properly addressed in the bill—I hope that that is done as the bill moves forward. That concern relates to section 23C of the 1995 act. Mr Donnelly talked about removing

“from a summary court the ability to oppose bail for people who simply have a record of not attending or about whom there is information that they will not attend.”—[Official Report, Criminal Justice Committee, 25 January 2023; c 27.]

That would not necessarily fulfil the public safety criteria, based on the ordinary meaning definition that you have described.

How do we counter that? How can we ensure that courts have the ability to remand people where there is a significant risk of their not appearing at or attending future hearings? We know all the implications that come with that—the financial and human costs and, of course, the implications for court time, which is precious. It seems that people feel that their hands may be tied in that respect.

I could talk all day on this subject, but I appreciate that there are lots of other members who want to ask questions. I am happy to come back in if there is time later.

Okay. So that test could still apply in solemn cases, and it would be grounds for remand but, at summary level, it would not. There is the removal of that ability. We know that there are people out there who are repeat offenders at summary level who regularly do not appear and are taking the proverbial, with the system. There now seems to be no way to hold them on remand as a result of that behaviour. That is unfortunate.

Good morning, cabinet secretary. I would like to ask a few perhaps more philosophical questions about the nature of the proposed legislation. Obviously, the bill comes in two parts. The first deals with the issue of bail and the parameters around the courts’ decisions, and the second deals with release from custody.

You said in your opening statement that the intention behind the bill is twofold: to reduce crime and to reduce reoffending. Will you explain which bit of part 1 of the bill around narrowing the conditions for bail and remand will reduce crime and reoffending?

Is it the Government’s view that the wrong people are being remanded in custody? If we look at the statistical data, the nature of offences is really enlightening. What has changed over the period that I mentioned when the remand population has seen a huge spike? The change has been to the offences for which people are held on remand. For example, the figures for those on remand for crimes of violence and for crimes of sexual violence have doubled and crimes committed by people on bail for similar offences have been markedly high. In Scotland, 40 murders and 770 attempted murders or serious assaults were committed by people who were on bail; the numbers of rapes and attempted rapes are high as well.

From what we can see, we are not sending low-level criminals to prison on remand. In fact, 1 per cent of summary cases end up on remand. It seems that high numbers of cases are being dealt with at the High Court, in those solemn cases where the offences are grave and serious. Is the Government suggesting that people who are currently on remand for those serious offences should be walking the streets? This is what I cannot get my head around.