Chamber and committees

I will perhaps come back to that question later.

I am not sure whether it is appropriate to intervene, but I will make a comment. I feel that the previous comments are very relevant. It is about not just the quantity or scale of trials that seem to be fully virtual but the outcomes. The other side of the data would be far more useful in some ways, and that was the piece that we were missing during the passage of the bill. Knowing the volume will be superfluous if we do not know what effect that is having on outcomes. That data might address some of the issues that members have in that regard. It is that level of data that we need to see.

Good morning. Thank you for your written submissions.

I will focus on the bill. I appreciate that there are many wider issues that the committee could focus on, but we have limited time and I am keen to extract as much as I can from you about the bill and its content.

Part 1 of the bill deals with narrowing or restricting the parameters for granting bail. I presume that the Government would argue that our remand population is too high. Others might attest to and agree with that point and would argue that the bill, as drafted, would meet its obligation of reducing the remand population. The financial memorandum to the bill estimates that it would lead to a reduction in the remand population of around 20 per cent. On current figures, that equates to the release of around 1,800 people who would be remanded under the current system.

On the face of it, the bill therefore meets its objectives. First, do you agree philosophically, or as a matter of principle, that the remand population is too high? Secondly, do you agree that the bill meets its objective of reducing the remand population, and does it do so in a way that also meet the needs of victims?

I put that question to Kate Wallace first.

To follow on from the conversation that we have just had, one of the difficulties that we are having is perhaps a keenness not to equate subjective assumptions or analyses with facts. It is quite easy to say that there are too many people on remand. That may or may not be true, but it depends on your definition of what is right and what is wrong in terms of remand decisions under the status quo.

Is it the case that there are too many people on remand or is it the case—I am throwing this out there, not taking a view—that the right people are rightly being held on remand but are wrongfully being held on remand for too long? Due to court backlogs, there is an inevitability to that—we have heard anecdotal evidence of people being held for longer than the end result of their custodial sentence would have been, even after conviction. It appears that there are simply too many people in prison on remand who should have been released much earlier because their cases should have been heard much earlier. That is off the back of the first evidence session that we had.

Professor McNeill made a point about the data—that we should look at not just the numbers but the context and the profile of those who are being held on remand and the types of offences that they are being held for.

I am just throwing that point out there to play devil’s advocate, because it is quite easy to say that there are too many people on remand, and then it becomes seen as a truth without being challenged, so I am keen to make sure that we challenge it.

That is a nice summary. The evidence that we have taken from survivors is quite horrific on the way that perpetrators are flouting and abusing the system, even while they are on bail, to further traumatise their victims. That is not being dealt with.

Convener, for the benefit of time, rather than my asking lots of questions on part 2, would it be more suitable for us to write to the witnesses? I feel like we are eliciting a lot more information than we would get in written submissions.

Do you see my point, though? The bill seeks to address the problem from the other end, through the parameters on which the judge can base the decision whether to grant bail. However, if the primary source of the numbers of people who go through the bail decision system rests initially with the Crown and its opposition to bail—or not, as the case may be—is the better way not perhaps to see first whether there is a problem before restricting judges’ discretion?

I will try to be brief. I welcome the cabinet secretary’s opening position where he says that

“a greater evidence base should be developed before they were made a permanent feature of Scotland’s justice system.”

By “they”, he means fully virtual trials. He goes on to say:

“I continue to agree with that approach.”

I agree with his agreement, but I also share the concern that was raised by a colleague that we are being passed back to the Scottish Courts and Tribunals Service for data on something that has been taking place for three years. It seems unusual for the Government not to have kept a watching brief on that or to have the data that we have asked it for. Nonetheless, if the SCTS has that data, we should ask for it and for a report on the use of virtuality in trials and of fully virtual trials, because we are living off the back of other legislation, not legislation that deals with fully virtual trials.

There will be a lot of interest in the issue from many stakeholders, not just from victims organisations that are proponents of the further use of virtual trials in certain cases but from those who have reservations about it. I do not know what the end goal is here. Does the Government have a plan to move to a form of permanence in law or otherwise, or does it plan to say that such matters are for the courts and not for it to intervene on? I feel that we are in limbo on that. Although I look forward to the consultation responses being published, I do not think that they will necessarily answer the question of what the Government’s plans are.

The issue of transcripts is perennial. We seem to go round in circles: we ask for a resolution, but the Government pushes back and just keeps saying that

“there are several matters that we would need to consider”.

We know that there are—we have been talking about the issue for a year now.

I would like to hope that 2023 will be the year of resolution, and one resolution might be that we get to the bottom of the court transcript issue. As Russell Findlay rightly said, we managed to transcribe 22 hours of robust chamber debate in a matter of 48 hours. If that can be done in the Parliament, I am sure that it can be done in courts.

In essence, what we are doing is ditching the item from today’s agenda, because we are out of time, but that does not mean that it should go completely offline. The action plan is one of the few documents that we share quite widely with the public and stakeholders on the progress that we are making as a committee, so we should revisit it—probably in great detail—but we need to afford it proper time. I would rather do that than it simply become a paper trail of correspondence between members and the clerks. For the purpose of updating people, we should have an open public session on it so that people can follow what we are saying.

Before I bring Emma Bryson in, reading between the lines, I think that you are saying that it is not simply the case that too many people are being chucked into prison on remand; rather, it is the case that the profile of those who are being remanded has changed drastically—in part due to the presumption against short sentences and also due to the nature of the crimes and certain types of crimes increasing—that those people really should be on remand, and that those decisions are best made by judges under the current system. Of course, part 1 of the bill goes to great lengths to narrow the parameters within which judges can make those decisions, so I might ask you both about your concerns about that.

Equally, part 1, as far as I can see, does not do the second part of what you are asking for, which is that, if more people are let out, that must be countered by strengthening bail conditions, enforcing them and communicating with victims about them. The element of public safety is so wide in scope that it does not necessarily take into account some of the secondary types of crime and abusive behaviour that might result from someone being bailed.

I cannot see anything in the bill that addresses any of that or strengthens any victims’ rights. Have you spotted anything? For all intents and purposes, we have to amend the bill where possible, so what should be going into it? I will throw that question out there and bring Emma in, but feel free to come back in, Kate.

Perhaps there is a view that the judiciary are already quite well placed to make those sorts of decisions, based on the information that is available to them—the view that, “Why on earth are politicians tinkering with that independence?” Is that the case?