Chamber and committees

The member is right that we are talking about massive, fundamental changes. In our stage 1 report, we unanimously agreed that digital justice

“should only progress if there is genuine merit in the proposals, rather than simply being a matter of a cost saving or administrative convenience”,

and that

“we cannot make fundamental changes to how our court system functions and the rights of individuals involved without full and proper debate.”

The problem is that I am not convinced that we have yet had that “full and proper debate”. That is why Katy Clark and I are both seeking to amend the bill so that there is more transparency in relation to data on the use of virtual courts and trials. I hope that that debate will happen at some point in advance of our passing the bill.

Good morning, colleagues and cabinet secretary.

Amendment 1009 relates to the functions of the Parole Board for Scotland. Section 32 of the bill specifically includes a provision that allows certain functions of the Parole Board to be conferred upon another individual. That has been possible throughout the Covid pandemic, and it is particularly important in the absence of the chairperson, who plays an important and vital role in the proceedings of parole hearings. No one has any problem with that in principle. However, amendment 1009 seeks to do something else. It seeks to ensure that, should the chairperson be absent from a hearing, the scheme that sets out who takes over their functions and what functions they take over also ensures that victims can still attend parole hearings, despite that change in relation to the chairperson.

The amendment states:

“The scheme must include provisions which set out how those authorised to carry out functions conferred on the chairperson ensure registered victims are able to attend parole hearings in the absence of the chairperson.”

It then defines what a “registered victim” is, using existing legislation.

It is quite a short amendment, but it is also quite an important one, because I think that we would all agree that the coronavirus pandemic has made it more difficult for victims to have a voice in the justice system, as processes have moved online, hearings have been delayed and postponed—often repeatedly—and, indeed, victims themselves have contracted Covid and been unable to fully participate in proceedings.

Victims whom I have spoken to have been concerned that changes to the Parole Board and its operations during the pandemic have given them no say in proceedings and no voice through the process. That is backed up by statistics. It was discovered through a freedom of information request that 26 victims made applications to attend parole hearings during the period between March 2021 and October 2021—during the pandemic—and none of those was granted. I do not have wider statistics, but I am sure that what those show would be equally poor.

The reason for those denials is unclear. In fact, many of the victims—some of whom I have spoken to personally—have said that they had been given no reason. It will not be a surprise to members to hear that I believe that, pandemic or no pandemic, chairperson or no chairperson, victims deserve the opportunity to attend hearings in whatever manner, shape or form they take.

One victim whom I spoke to just two weeks ago is still facing repeated challenges in attending parole hearings, which are only now moving from teleconference to video hearings, none of which is face to face. They have been endlessly and repeatedly cancelled and delayed with no justification.

If it is the former and not the latter, we have heard from the police that physical court appearances take them out for a whole day and cause them, and remand officers, concern. Is it not much more efficient to deal with proceedings virtually?

This is all about my amendment, convener. I am highlighting the reason for the concern in this respect.

Because of that concern, which was best illustrated by Brian Whittle when he talked about the human interest, or the victims, and the types of cases involved, and, indeed, the points that Pauline McNeill and Katy Clark raised about the human rights elements such as the numbers on remand and in prison and the associated problems, I think it is important that the Government considers whether all those provisions on time limits remain necessary.

I understand that the cabinet secretary said that he would work with me to bring the issue back at stage 3. [Interruption.] He is nodding at me. In that case, I will not move the amendment.

Amendment 1023 not moved.

Amendment 1050 moved—[Russell Findlay].

With regard to amendment 1038, on raising the bar for fiscal fines to £500, the cabinet secretary needs to answer a fundamental question. Are we talking about increasing the amount from £300 to £500 from a purely financial point of view—in which case I would have absolutely no problem with it—or does it in any way encompass offences that previously would not have been included?

That question brings us to the point of the issue with amendment 1038: at the moment, we do not know. If we knew, that would be helpful. If the argument is being made that raising the bar would allow us to dispose of more offences more efficiently and quickly in order to get through the backlog, and for all the other reasons that I suspect that we will hear, we need to know what types of offences will be included if the fine is raised to £500.

It is not as simple as saying that the amount is being increased from £100 to £300 and now to £500. If there is a knock-on effect on the types of offences that are encapsulated by the new bar, that is an entirely different matter. It should, therefore, absolutely be subject to proper scrutiny and debate, which we have not had and are yet to have.

What my colleague is trying to do is probe whether it is the case that fiscal fines may be used only where they were already an option, in the sense that we would not be changing the scope of where and when fiscal fines can be used.

On the point about people who refuse a fiscal fine option, they really are taking a gamble, but it is quite a statistically well-informed gamble. If there is a chance that four in 10 people would not be prosecuted after refusing a fine, that should be a matter of concern to us.

Is it the case that procurators fiscal are not proceeding with those cases through any other means of disposal simply because of their workload resulting from the backlogs that we spoke about earlier? Again, we have not taken any evidence as to why so many of those cases are not followed through when a fine has been rejected. Is it simply that the case is not strong enough? If so, why has the case even got to the stage at which the person is being offered a fine? If there is a case, is the issue that the procurator fiscal simply does not have the capacity or the resource to take it forward? I suspect, from those to whom I have spoken, that the latter is more true.

Amendment 1040, on victim notification, is entirely appropriate. It remains unacceptable that a complainer is not told about the outcome of such offers. They should not necessarily be told about the nature of the offer, as there may be reasons why that should not be made public to complainers or victims, but the fact that they are not told at all is itself a sorry matter, and more so when such an offer has been rejected, with regard to what happens thereafter. In my view, they are completely entitled to that information, and trying to assert that that is on the statute books is—

Yes, I will.

It is not for me to speak to other members’ amendments, but even if there were unintended consequences as a result of the wording that Mr Whittle has proposed, I am still sure that that would not be the intention. I am sure that the intention is to raise awareness of the fact that the victims of those types of crimes are suffering.

As I have said, such extensions affect both parties. They affect the accused, who are often being held on remand, and the victims, who are having to wait a year or so. I actually find it quite shocking that victims are pulling out of continuing with cases because of the timescales. They should never have been put in that position, and we should all work together to stop that happening.

In essence, what I am saying is that, whether we feel that the extensions are unnecessary, illegal or morally justified—depending on what side of the argument we are on—the Government has a duty to consider where the extensions remain necessary on a three-monthly basis, for as long as they remain in place, with a view, I hope, to getting back to the statutory norms that we were used to before the pandemic.

Amendment 1036 refers to “an appearance from custody”. Can the member confirm that her intention is for it to apply to those who have been arrested and are held in a police station and not to those who are in a custodial sentence environment?

I thank members for their contributions thus far. I have a couple of short comments to make. There are probably things that we can agree on. All the amendments in the group, including mine, are very well intended.

Nobody wants cases to time out. That is not a scenario that any Government wishes, and that has necessitated extensions, unwelcome as they are to everyone in the system. It remains the fact that there was a considerable backlog of cases before the pandemic and it is entirely true that the pandemic has added to the pressures on the courts and all partners in that process.

Equally, however, I hope that we all agree that nobody wants temporary extensions to become the new norm. We have heard concerns about there being a bit of mission creep, with statutory maximum time limits continuing to be extended for substantial periods of a couple of years for the wrong reason. For me, the right reason would be to ensure that cases did not time out due to circumstances, while the wrong reason for extending for long periods of time would be to deal with backlogs, given that they would be matters of resource, capacity and capability in the court system. As for whether it is right to extend criminal procedure time limits in that way, I have to say that I believe that the extensions are lengthy—320 days is a substantial period of time—and I hope that we will agree that the measures must be temporary and that the limits must drop back.

We are arguing that this proposal is the best way of doing this, because if we do it the other way and make the case-by-case approach the default, as Pauline McNeill has alluded to, it would undoubtedly lead to a huge volume of traffic in the system, with the courts and those involved in the process seeking to extend thousands and or even tens of thousands of cases.