Chamber and committees

The reality is that our phones have more biometric data about us than the police, local authorities or the NHS. The problem is that we are talking about narrow use of facial recognition, such as cameras that identify people at football matches, but if we look at where technology has gone, it is 100 years ahead of that. There is ear recognition, hand and finger recognition and vein pattern and voice recognition. Artificial intelligence could be using pretty much everything about you to proactively identify you, and it is already happening in many commercial settings. However, we are talking about what happens in the legal world and we already know that law enforcement agencies in some countries are using it to discriminate and pull out certain ethnic and minority groups to incarcerate them. It can therefore do down a dangerous road. Thankfully, we do not live in that environment.

That was years ago, and that was a very specific trial that went wrong. We get that. However, I do not understand the link between a seven-year-old decision that cost tens of millions of pounds for technology that is currently sitting there and not being used to its benefit, and the modern-day environment, when we are halfway through 2022. I think that the conversation has moved on. Technology—the software and the hardware—has certainly moved on. However, are you saying that the public mood has not moved on so, as a result of that, we should not do things, because the public are against them?

Yes. My question follows on nicely from the point about procurement. It is not directly about that, although procurement is an issue.

I am sure that you will remember that, as far back as 2015, through the future cities project, Glasgow procured a high volume of digital surveillance cameras to replace its old analogue system, at a cost of around £24 million. Around 500 cameras currently sit there. They are capable of providing forms of facial identification if the appropriate software were to be enabled. That was quite widely reported at the time and probably quite widely resisted by many stakeholders.

Reading between the lines, it seems that the Scottish Police Federation is of the view that its operational members in front-line policing are very much in favour of much more enhanced use of technology on a proactive basis, such as the enabling of CCTV to perform certain functions around the specific targeting of people, tracking missing persons and preventing crime in certain areas of the city. However, off the back of the 60-page report that the Justice Sub-Committee on Policing published in the previous parliamentary session, the federation felt that those views had not been taken fairly into account by that sub-committee. I say that with respect to members of the current committee who sat on the sub-committee. That is just a general overview on the part of the federation.

It seems to me that there is a conflict. It seems that local authorities and operational police are very much in favour of the benefits of the technology, but they feel that its use has been thwarted by a public or political perception of the so-called big brother state argument. Where do you sit on that? Are you likely to make a more proactive recommendation to Glasgow City Council and the police on enhanced use—in other words, the switching on—of those cameras, which are sitting there and not being used to their benefit?

Will the member take an intervention?

I thought that, rather than intervening, I would let the cabinet secretary make his case. However, I have one comment.

The argument seems to be that, in an emergency, the affirmative procedure would simply take too long and would affect the policy intention of an instrument. How long is too long? How long would the affirmative procedure take in practice, and how long has it taken historically? I question whether it would take too long.

If the argument is that amendments 1024 and 1025 would mean that, if the Parliament was in recess, nothing would happen for months on end, I dispute that. We found during the coronavirus emergency that, in such emergencies, Parliament can be recalled and can sit virtually or otherwise to pass legislation, including regulations that are subject to the affirmative procedure. The amendments could easily be fixed on a technical level to ensure that they applied only when Parliament was sitting and that there was sufficient time to give the affirmative procedure its due process.

In the past, the Government has expedited regulations and law-making powers when that suited it, so we know that the process can be shrunk not just to days but almost to hours. Therefore, I dispute the argument against Mr Simpson’s amendments.

I thank Pauline McNeill for opening the discussion on this group. It is an important discussion and an interesting one at that.

Amendment 1010 would establish a requirement for the Scottish Courts and Tribunals Service to publish information about the operation of trials in which there is a virtual element. It uses the words “attendance by electronic means” as opposed to the word “virtual”, which I accept might encapsulate a wide range of trials that already utilise electronic means. However, in the short timescale that we had, that is the drafting that I came up with.

I understand that the SCTS is extremely busy and overworked and that it has a huge backlog of cases—that is well known. However, amendment 1010 reflects not just our stage 1 report but an important piece of work that will have to be done to establish whether the use of electronic means that were hitherto not used in trials should be continued or made permanent.

The committee’s stage 1 report states:

“a greater evidence base is needed about (a) how they work in practice; (b) what advantages they deliver and any disadvantages; (c) the outcomes of virtual criminal trials; and (d) any unintended consequences. This evidence base is needed before a view can be taken as to whether the temporary provisions in this Bill should be made permanent in future legislation.”

We already know that there is a wide range of views on the issues. The representative of the Scottish Solicitors Bar Association told the committee:

“I am wholly disappointed by the resulting systems that we are now working with in relation to virtual courts and virtual trials”.

He continued:

I can say—on behalf of the vast majority of the profession, I think—that the experience has, unfortunately, been nothing but a resounding failure.”—[Official Report, Criminal Justice Committee, 2 March 2022; c 13.]

I realise that that is a quote from one end of the spectrum, but concerns were also raised about the solemnity of proceedings, which many felt was not present during virtual trials. The Faculty of Advocates expressed some sympathy for that view, in slightly less strong terms. It said that, if implemented, the proposals

“would create problems with access to justice, the quality of justice and inequality.”

The concerns are not only in the defence sector; those representing the wider public also expressed concerns. Citizens Advice Scotland told the committee:

“we are concerned that the reliance on digital means of participation in court business risks people being excluded from the justice system. We believe more support is needed to enable vulnerable and digitally excluded groups access to justice.”

On the flip side, many support the on-going use of virtual means, including the Howard League and Victim Support Scotland, which also submitted evidence to the committee.

That brings me on to the substance of amendment 1010. I appreciate that the particular information that I am asking for is specific and probably quite wide ranging, but the essence of the amendment is that the committee said that the evidence base should already have been provided—the information should already be out there—and we should have already analysed it before we take a view on whether the measures should be continued. The problem is that we are not in that position at the moment, and we do not have that evidence. The next best thing that we can do is ensure that, under the proposed legislation, the SCTS publishes data that will inform not just the Government and the committee but all the stakeholders who have concerns.

I appreciate that the cabinet secretary has made the offer that, if I do not move amendment 1010, he will work with the SCTS to look at what data and information can be published. Of course, I do not want the SCTS to face an onerous and undue workload or to have to give out sensitive information that should not be published—that is not the intention of my amendment. I would therefore be happy not to move it, but only on the premise that we revisit the wording of the amendment and that the issue comes back at stage 3, not that it is removed altogether and that is the end of the matter.

Although I take what the cabinet secretary has said at face value, it is important that, in reflecting the committee’s view at stage 1, we include in the bill what I have set out in an appropriate fashion that will not overly affect the day-to-day work of the SCTS in any way, shape or form. It is not the intention of amendment 1010 to have such an effect. I hope that the cabinet secretary can give that commitment.

My amendments always are, Mr Simpson. I appreciate your support.

There is a genuine point to be made. People have asked the question: why on earth are people being denied the ability to attend hearings in environments in which there is no physical meeting? We understand that many processes moved online for good reason. We also understand that the bill seeks to extend some of the measures in the eventuality that they are needed. However, my view is that there is no excuse for doing things only virtually these days when, as we can see, the world has opened up again.

I am sure that the cabinet secretary will clarify that there is already a process for how victims can participate in hearings. That process already exists, but it is clear that it is not working. My amendment 1009 does not say that all victims must attend every parole hearing—it does not go that far. I ask that, in the eventuality that the chairperson, who often makes the decision on who can and cannot attend, is incapacitated in any way and their functions are conferred on another, that individual must lay out the process by which registered victims are able to attend hearings, which they clearly are not doing at the moment.

I hope that other members and the cabinet secretary will be sympathetic to the rationale behind my amendment.

I move amendment 1009.

I thank the cabinet secretary for the technical explanation of why the amendment does not fit there. It is interesting that he seemed to imply that he is sympathetic to the rationale behind what I am trying to achieve but, for technical reasons, he does not believe that that is the right place to put it. I question where else in the bill the proposal could go. The bill seeks to extend temporary measures that were implemented during the Covid pandemic in the judiciary. It is clear that there is a deficiency in the process that needs to be addressed somehow and somewhere in the bill—possibly at stage 3.

With the assistance of the parliamentary legislation team, I have tried to include the amendment in a section that relates to the functions of the chairperson. If it is not accurate and technically competent to put it in that place, there might be another place where we could put it. Perhaps I will propose that at stage 3.

The cabinet secretary did not address the issue; he only disputed the amendment for a technical reason. That leads me to believe that there is still an issue to be fixed. With that in mind, I might work with the legislation team—or, indeed, with the cabinet secretary, if he is willing—to look at how we can ensure that victims are front and centre when the bill comes back to us at stage 3.

Amendment 1009, by agreement, withdrawn.

Section 32 agreed to.

Is the cabinet secretary comfortable with the prospect that, where a fiscal fine is offered to a person who is accused of something and then rejected on the premise that they say that they are not guilty of the offence and they want to be tried properly, no further action is taken? We are not talking about a small proportion of cases; in a large proportion of cases, no further action is taken. Does that not suggest that it is worth the gamble for someone to reject the fine?

Indeed—that should be happening anyway; it is ridiculous. The point is that we are using the legislation that is before us, which is obviously already making changes that are in the interests and for the convenience of other justice stakeholders, to make a change that is in the interests and for the convenience of victims, who are another set of stakeholders in the justice process. If we can use the bill as an opportunity to improve outcomes for victims, so be it; I am happy for the bill to be the vehicle.

I look forward to what the cabinet secretary has to say in response.