Questions and answers

Question reference: S6W-24086

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Tuesday, 19 December 2023
Current Status: Answered by Angela Constance on 22 December 2023

To ask the Scottish Government how many court hearings have been (a) postponed or (b) cancelled due to reportedly ongoing issues with the Scottish Prison Service's prisoner escort services.

Question reference: S6W-24087

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Tuesday, 19 December 2023
Current Status: Answered by Angela Constance on 22 December 2023

To ask the Scottish Government how many cases that would have otherwise taken place in island courts have now been heard at "hub" courts in (a) Inverness and (b) Aberdeen as a result of the pause to solemn criminal business in island courts, broken down by affected island court.

Question reference: S6W-24085

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Tuesday, 19 December 2023
Current Status: Answered by Angela Constance on 22 December 2023

To ask the Scottish Government how many court hearings that were redirected to Aberdeen or Inverness, due to the pause to solemn criminal business in island courts, have been (a) delayed, (b) postponed and (c) cancelled due to the failure or inability of a witness or complainer to attend proceedings on the date and time summoned.

Question reference: S6W-23761

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Monday, 11 December 2023
Current Status: Answered by Siobhian Brown on 20 December 2023

To ask the Scottish Government, further to the answer to question S6W-20734 by Siobhian Brown on 30 August 2023, what its position is on whether the same cited considerations for same-sex sexual infidelity being treated as unreasonable behaviour or non-cohabitation could also apply to opposite-sex adultery, and, if it considers this could be the case, what its position is on whether the existence of adultery as a grounds for divorce is redundant.

One of the ways in which irretrievable breakdown of a marriage is taken to be established in divorce actions is if since the date of the marriage the defender has behaved in such a way that the pursuer cannot reasonably be expected to cohabit with the defender. This can include sexual infidelity, both same sex and mixed sex.

Another way in which irretrievable breakdown can be established is if since the date of the marriage, the defender has committed adultery. The Scottish Government’s understanding is that adultery is defined in common law as meaning heterosexual sexual intercourse outside of marriage.

Issues on adultery in divorce law were considered when what became the Marriage and Civil Partnership (Scotland) Act 2014 was being prepared. As the last bullet point of paragraph 138 of the Policy Memorandum for the Bill which became the 2014 Act notes, it appears that for a small number of spouses it may be important to have the civil court find that the other spouse was adulterous.

The consultation planned for 2024 will, in relation to divorce and dissolution, cover court procedures rather than the grounds of divorce and dissolution.

Question reference: S6W-23747

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Friday, 08 December 2023
Current Status: Answered by Siobhian Brown on 20 December 2023

To ask the Scottish Government, further to the answer to question S6W-23651 by Siobhian Brown on 7 December 2023, as part of its plans to consult on marriage law reforms, whether it will consult on introducing so-called "no-fault" divorce, not requiring irretrievable marital breakdown.

The Scottish Government has no plans to do so. The consultation planned for 2024 will, in relation to divorce and dissolution, cover court procedures rather than the grounds of divorce and dissolution.

There has been recent legislation for England and Wales which changed the law on divorce and dissolution of civil partnership. Before the changes, two of the grounds of divorce in England and Wales were based on periods of separation: two years if both spouses consented to the divorce and five years otherwise.

In Scotland, irretrievable breakdown of the marriage for the purposes of divorce can be established in a number of ways, including non-cohabitation. The required periods of non-cohabitation were reduced by the Family Law (Scotland) Act 2006 to one year if both parties consent to the divorce and two years otherwise. The 2006 Act also reduced the non-cohabitation periods for dissolution of civil partnership.

The vast majority of divorces and dissolutions in Scotland are on the bases of non-cohabitation: Supporting documents - Civil justice statistics in Scotland 2021-22 - gov.scot (www.gov.scot) (see Divorce and Dissolutions Supplementary Tables 2021-22; tables 2 and 3).

Question reference: S6W-23748

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Friday, 08 December 2023
Current Status: Answered by Siobhian Brown on 20 December 2023

To ask the Scottish Government, further to the answer to question S6W-23651 by Siobhian Brown on 7 December 2023, as part of its plans to consult on marriage law reforms, whether it will consult on abolishing for opposite-sex couples, as well as same-sex couples, the rule that marriage is voidable by reason of impotence.

The Scottish Government has no plans to do so. The consultation planned for 2024 will, in relation to divorce and dissolution, cover court procedures rather than the grounds of divorce and dissolution or how a marriage can be voided.

The Scottish Law Commission’s 1992 Report on family law (SLC 135) (scotlawcom.gov.uk) recommended that marriages should not be voidable on the ground of impotency (see paragraphs 8.21 to 8.29). The then Scottish Executive indicated in its 2000 White Paper Parents and Children that it did not intend to take forward this recommendation noting that “the concept of a voidable marriage on this ground in civil law would provide a solution to couples who would otherwise be required to seek divorce, against their religious beliefs.”

This matter was further considered in the consultation on the draft Bill which became the Marriage and Civil Partnership (Scotland) Act 2014. Paragraph 139 of the Policy Memorandum for the Bill as introduced said “Consultees suggested that impotency should be abolished as grounds for voiding a marriage. However, other consultees suggested that the concept of “voidable” marriages can have some advantages, particularly for those who might wish to enter another marriage but might not be able to do so (on religious grounds) if they were divorced.”

The Scottish Government’s understanding is the rule that a marriage is voidable by reason of permanent and incurable impotency is little used. However, it is possible that abolishing it could remove an option for some couples.

Question reference: S6W-23613

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Tuesday, 05 December 2023
Current Status: Answered by Angela Constance on 19 December 2023

To ask the Scottish Government how many people are currently imprisoned in Scotland.

Question reference: S6W-23612

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Tuesday, 05 December 2023
Current Status: Answered by Angela Constance on 19 December 2023

To ask the Scottish Government whether it anticipates Scotland's prison population will exceed 8,000 people in 2023, and, if so, when it anticipates this will take place.

Prison population levels change on a daily basis, as people move in and out of custody. Since late September 2023, the prison population has remained above 7,900. Up to the morning of 11 December 2023 the prison population had temporarily exceeded 8,000 in 2023 on the following dates:

7th November 2023
9th November 2023
21st November 2023
29th November 2023
30th November 2023
1st December 2023
5th December 2023

Question reference: S6T-01709

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Monday, 18 December 2023
Current Status: Taken in the Chamber on 19 December 2023

To ask the Scottish Government whether it will provide an update on the roll-out and use of tasers within Police Scotland, in light of reports that they have been used 131 times, and discharged nine times, against children since 2018.

Question reference: S6W-23229

Asked by: Liam McArthur, MSP for Orkney Islands, Scottish Liberal Democrats
Date lodged: Tuesday, 28 November 2023
Current Status: Answered by Dorothy Bain on 13 December 2023

To ask the Scottish Government how many convictions of corporations there have ever been for the (a) common law offence of culpable homicide and (b) statutory offence of corporate homicide, and which corporations were convicted.

On 22 December 1999 in Larkhall, Lanarkshire an explosion destroyed the dwellinghouse at No. 42 Carlyle Road. All four occupants of that dwellinghouse, including two children, were killed. Criminal proceedings were taken against Transco PLC in relation to the explosion on 22 December and the deaths of the four individuals, with the company being charged, in the first alternative, with the common law offence of culpable homicide and, in the second alternative, a contravention of sections 3 and 33(1) of the Health and Safety at Work Act 1974. Prosecution on the culpable homicide charge was unsuccessful. The trial proceeded on the charge under sections 3 and 33(1) of the Health and Safety at Work Act 1974 and the jury unanimously found the company guilty of that offence on 25 August 2005. A fine of £15 million was imposed.

The Corporate Manslaughter and Corporate Homicide Act 2007 created a new offence of corporate homicide in Scotland.

COPFS Health and Safety Investigation Unit leads the investigation and prosecution of all work-related deaths and all health and safety cases across Scotland. It provides advice, support and direction to investigators from Police Scotland, the Health and Safety Executive (HSE), Local Authorities and other regulatory agencies from the very earliest stages of an investigation.

Every fatality at a place of employment or fatality that occurs as a result of a work-related activity in Scotland is investigated as a potential corporate homicide. The very nature of this category of case means that detailed and lengthy investigation, often involving technical and medical issues and expert opinion, may be required. The Work Related Death Protocol for Scotland – which has been signed by COPFS, Police Scotland (ACPOS), British Transport Police and HSE - ensures that when a work-related death occurs, a thorough, co-ordinated and multi-agency investigation takes place allowing all possible offences to be considered.

Once reported each case is carefully considered by lawyers within the COPFS Health & Safety Investigation Unit and turns on its own facts and circumstances. Corporate homicide is considered in every work-related death reported for prosecution, and lines of investigation in connection with corporate homicide are explored regardless of whether or not such a charge was reported in connection with the death.

Since 2008 16 cases have been reported to the Crown in respect of corporate homicide as well as other charges. Of those cases two remain under consideration by the Crown. Two cases, reported in 2011 and 2016, were marked for no proceedings. In the remaining cases all have resulted in guilty convictions in a solemn court. Whilst there have been no convictions under the Corporate Manslaughter and Corporate Homicide Act 2007 the cases have resulted in guilty pleas to breaches of either section 2 or section 3 of the Health and Safety at Work Act 1974 or maritime health and safety legislation. The Court has the same sentencing powers available to them for these offences as for the offence of corporate homicide. The fines issued in these cases range from £4,000 to £234,000.

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