The next item of business is stage 3 proceedings on the Bail and Release from Custody (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, SP Bill 16A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division of the stage 3 proceedings. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after any debate, and subsequent divisions will be 45 seconds. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button or enter the letters RTS in the chat function as soon as possible after I call the group.
I advise members that there will be some comfort breaks and that members will be notified of the timings and duration of those in due course.
Members should now refer to the marshalled list of amendments.
The focus of the bill is to limit custody to those who pose a risk to public safety or to when it is necessary to prevent significant risk of prejudice. There are clearly benefits to reducing the damaging effects of short-term detention. Section 1 requires the court to give criminal justice social work the opportunity to provide information to the court when making decisions about bail.
Under the current language in the bill, that opportunity is mandatory. Although I think that the intention is good, I raised concerns at stage 2 about the inconsistencies in the provision of justice social work in courts across the country. In Glasgow, we are well served, but other parts of Scotland are not. Therefore, the opportunity will not be equal across the country.
Amendment 67 would replace the requirement that the court “must” request information from justice social work, and it would make that discretionary by inserting that the court “may” request that information. In a written submission to the Government, the Senators of the College of Justice stated:
“there will be many occasions on which such input is plainly irrelevant and the imposition of a statutory requirement to seek a report in such circumstances would seem inappropriate. For example, if an accused person is charged with a serious offence of violence and has a significant record of similar offending there is, on the face of it, very little prospect of that person being granted bail. In such cases it is difficult to see any purpose in requiring the court to seek a report with the attendant delay and demands upon the resources of the social work department.”
David Fraser of the Scottish Courts and Tribunals Service also noted that, if justice social work reports were required in every case, that would create the potential for reports not being available when they were required in court.
I would like the Parliament to note that, in my exchange with the Cabinet Secretary for Justice and Home Affairs at stage 2, she clearly and helpfully set out that there is no intention behind the provision to delay any proceedings of the court in that manner, although some people had thought that that was the case. It just seems to me that it would make more sense to say that there “may” be an opportunity, rather than that there “must” be one, because the opportunity does not have to be taken up in every single case.
My amendment 67 would remove the statutory requirement to seek a report and, instead, allow the court a degree of discretion, depending on the context of the case and the history of the alleged offender.
I move amendment 67.
Before I speak to my amendments in this group, I would like to thank the victim support organisations and others who have worked tirelessly to ensure that the voices of victims and survivors are heard in this process. I appreciate that we will not all agree on everything today, but I am grateful to them for their insight and expertise. I refer members to my entry in the register of members’ interests.
Amendments 15, 16 and 21 focus on the new victim safety element of the proposed bail test. Throughout the scrutiny process, I have listened carefully to the voices of victims organisations, which rightly wish to ensure that the court has the fullest possible information about victims’ safety concerns at the time of making a bail decision, including decisions on special conditions of bail.
Amendment 15 aims to strengthen that area. In particular, it would add to the court’s general power to seek further information that is relevant to the bail decision from the prosecutor, the legal representative of the accused or, as amended by the bill, justice social work by expressly enabling the court to ask the prosecutor to provide it with information on the risk of harm to the complainer.
Amendment 15 would make clear the situations in which victim safety is a relevant consideration in a case before the court, such as cases of domestic abuse or sexual offending. The court could then ask the prosecutor for additional information to help it to make a determination on bail. The amendment would also serve to emphasise to the court the importance of the victim safety element of the new bail test and of being as fully informed as possible when making bail decisions.
Amendments 16 and 21 are consequential on amendment 15. Amendment 16 is a technical amendment that will be necessary if amendment 15 is accepted. It would make minor and technical amendments to section 1(3)(c) to reflect that section 23B(7) of the Criminal Procedure (Scotland) Act 1995 will no longer immediately follow section 23B(6). Amendment 21 would amend the definitional power in section 2(2)(c) of the bill to ensure that the definitions of complainer harm and psychological harm also apply for the purpose of the new section 23B(6A) that I am proposing to be inserted into the Criminal Procedure (Scotland) Act 1995. I ask members to support amendments 15, 16 and 21.
Amendment 68 focuses on the resources that local authorities need to provide justice social work. It requires the Scottish Government to report on the operation of section 1 of the bill and the impact on local authorities, particularly on whether they have adequate resources to meet the requirements of the legislation, whether further resources are required and, if so, what action needs to be taken to address that.
Amendment 68 would require the Scottish Government, in the preparation of the report, to consult local authorities and any professional bodies that represent social workers. The background is that funding for justice social work has been flat for the past three years, which is a real-terms cut of £86.5 million. Social Work Scotland said that
“members report that waiting times for assessments, support and treatment are all increasing, and in some social work teams over 30% of posts are unfilled”.
Unison Scotland said that justice social workers are faced with some of the highest case loads and that many local authorities are scaling back social work services as a result of real-terms cuts in local government funding.
It is clear that the Scottish Government wishes to enhance the role of justice social work in the provision of information to the courts. Scottish Labour also wants that, but it is difficult to see how it can happen without additional resource. When I lodged the same amendment at stage 2, the cabinet secretary acknowledged the budgetary challenges and said that the introduction of the legislation would be phased. However, the financial memorandum does not recognise the serious cost and resource implications of the proposals. It is not possible to lodge amendments to require the funding that is needed for adequate resourcing, so amendment 68 has been lodged to ensure focus and scrutiny on the resourcing issues.
I put on the record my and my party’s thanks to all those organisations that have worked with committee members and others during the passage of the bill.
The bill is a bill of two parts. Part 1 is the substantive part because it deals with the pivotal moment when a judge has to decide whether to remand someone in custody or bail them on release back into society, often with conditions attached. That is a grave and difficult decision.
As we go through the next couple of groups, I want to make it clear that there is little doubt that the real and general intention of the bill is to reduce the remand population in Scottish prisons.
However, the question that I sought to answer from day 1 was a simple one: is that the stated intention of the bill or the inferred one? In unearthing the answer to that, we need to look at how the Government’s proposals have been responded to by the judiciary, by victims organisations, by justice practitioners, by our courts and our police and, most importantly, by victims.
This afternoon, I will present a series of amendments that I think deal with some of the deficiencies that exist in the bill even at this late stage. Indeed, I would go as far as to say that, when the bill was published, we spent far too long talking about improving the experience of the accused or the offender rather than that of victims and complainers. I sought to redress that imbalance at stage 2, and I will do the same today at stage 3. I do not think that we can vote for amendments that change our bail system and that will put families or victims at any greater risk than they are currently at. The onus is on all of us as members to look considerately at the amendments before us. We should reflect not on the source of the amendments but on their content. I make that ask of all members.
I have worked extremely closely with Victim Support Scotland, which will feature often in my comments today, in drafting my amendments. I am really grateful for its support and for its backing for most of my amendments.
I turn to my first set of amendments. Amendment 19 seeks to add a provision to the bill that would allow the complainer, if they wanted to, to make representations to the court during the bail hearing on how they would be impacted if the accused person was granted or refused bail. Members should note that I took care to use the word “may” rather than the word “must” in the amendment. I absolutely do not want complainers in such scenarios to feel forced, or to be forced, to make representations when they would not be comfortable doing so or when it would not be relevant for them to do so. Amendment 19 would not force them to do that.
I also wanted to ensure that the wording of amendment 19 was broad through the use of the word “representations”. Those members who have been to a busy custody court will know that the judge has to weigh up whether to remand an individual in custody in the immediacy of that environment using the information that has been presented to them during that hearing. Much of part 1 of the bill goes some way in allowing criminal justice social work and other relevant parties to make greater representations to the judge on the day on behalf of the accused, presumably with a view to informing their decision so that they make the best decision possible. I do not have a problem with that, but I ask that the same privilege be afforded to the complainer or the complainer’s representative in such instances, because both voices must be heard.
Some victims organisations said that, although they agreed that that might be a helpful provision in most cases, they were concerned that victims of domestic abuse, for example, could be coerced into making representations to the court that did not accurately reflect their circumstances. I share that concern, which is why amendment 19 is an enabling one that simply creates a mechanism by which the complainer—if, and only if, they want to—can ensure that the court is in full possession of all the relevant information about the case that is before it. I think that that is vital, but I am willing to hear what the cabinet secretary has to say in response to my well-meaning amendment.
If amendment 19 is problematic, I ask the chamber to consider amendment 20, which seeks to amend the 1995 act by including a clause that states that a submission by the Crown must include
“information in relation to the complainer’s safety or safety of other persons”.
It also states that that information could be obtained from a wide range of sources, including a victims advocacy or support organisation. For me, consideration of the complainer’s safety should be the top priority in such deliberations. Therefore, I am delighted that Victim Support Scotland, Scottish Women’s Aid and ASSIST have urged members to support amendment 20.
I turn to the other amendments in the group, which other members have spoken to. I am very happy to support amendment 67, in the name of Pauline McNeill. Similarly, we will support amendment 68, in the name of Katy Clark. I am also happy to support Maggie Chapman’s amendments 15 and 21, which would allow the court to request information from the Crown on the risk of harm to the victim.
I had a problem with amendment 16, albeit that Maggie Chapman described it as a technical amendment, which, in my interpretation of it, at least, would allow the prosecution and the defence to give an opinion to the court on the risk of something occurring, as mentioned in the bail test. Amendment 16 does not have the backing of VSS or other victims organisations, much to my surprise, but I will trust their judgment on that.
I will speak to all the amendments in the group.
Amendment 67, from Pauline McNeill, seeks to remove the mandatory requirement for the court to provide an opportunity for justice social work to provide information relevant to the question of bail and, instead, make that discretionary. An identical amendment was lodged by Ms McNeill at stage 2 and was fully debated by the Criminal Justice Committee.
The purpose of section 1 is to ensure that justice social work is always given an opportunity to provide information to the court. Amendment 67 would completely cut across that policy, as it would be left to the court to decide.
As was discussed at stage 2, there have been suggestions that decisions on whether to admit an accused to bail could be delayed as a result of the changes proposed in section 1. That will not happen, however, as Ms McNeill acknowledged in her remarks. Section 1 does no more than require the court to give justice social work an opportunity to provide it with information that is relevant to the question of bail.
It does not mean that justice social work has to provide information in every case, nor does it mean that the court cannot make the bail decision if information from justice social work is not provided.
If a person appears, for example, on a Monday, the bail decision must be made by the end of Tuesday—in other words, the next day. That is and will remain the legal timescale.
The court will continue to make bail decisions on the basis of the information that is put before it, whether or not justice social work has provided information. There is no risk that bail will be refused because the court is awaiting information from justice social work.
The court cannot refuse bail because it is waiting for information from any party.
Amendment 67 would leave it to the discretion of the court whether to offer an opportunity to justice social work to provide information. There is a risk that that could mean that valuable information would not be provided in individual cases, as the court might not always be aware of whether criminal justice social work held relevant information, because it had not asked justice social work.
I ask Pauline McNeill not to press amendment 67. If she does, I ask members to vote against it.
The Scottish Government supports amendments 15, 16 and 21, from Maggie Chapman, which respond to some of the issues raised at stage 2 by the Scottish Liberal Democrats. As Ms Chapman has set out, under existing bail law, at any time when the question of bail is being considered, the court has a general power to seek further information that is relevant to the bail decision from the prosecutor or the accused’s legal representative. The bill seeks to extend that power to include justice social work.
Sitting alongside that general power, amendment 15 expressly enables the court to ask the prosecutor for additional information in relation to victim safety, to help inform the bail decision. That highlights to the court the importance of the victim safety aspect of the new bail test and that it is primarily the role of the prosecutor, who acts in the public interest, to provide the court with information about any perceived risks of harm that the accused poses to the complainer that would be relevant to the court’s decision on whether to grant the accused bail.
I am aware that, throughout scrutiny of the bill, ensuring that the court has the best information to inform its bail decision has been a key issue. Amendment 15 acknowledges the important position of the prosecutor in that regard and is a sensible and helpful provision that will aid the operation of the new bail test, including consideration of victim safety, which is at its heart.
Amendments 16 and 21 are consequential amendments.
Katy Clark’s amendment 68 would require the Scottish ministers to report to Parliament on the operation of section 1 during its first year in force. The amendment is identical to the one that Ms Clark lodged at stage 2, which was fully debated by the Criminal Justice Committee.
I very much recognise that the enhanced role of justice social work through section 1 carries resource implications, as set out in the financial memorandum. It is important to remember, though, that the bill simply requires the court to give justice social work an opportunity to provide information that is relevant to the question of bail in each case before the court.
It does not place any duty on justice social work to provide such information. Ultimately, it will be for justice social work to identify the cases in which it can best help to inform the court’s decision making by providing additional information.
Throughout the passage of the bill, I have made it clear that the Scottish Government will continue to work with justice agencies during implementation planning to review the resourcing requirements and the timescales for commencement.
Members will be well aware, as we all are, of the real challenges that exist in relation to budgets across Government and across the country, and that those are likely to continue. However, I remain close to the issue, and I contend that the ring fencing of criminal justice social work has certainly given it a stability notwithstanding those pressures.
Of course, the Parliament has the power to carry out post-legislative scrutiny of any act of Parliament. It may also choose to scrutinise particular provisions of an act. The Parliament also requires to pass the Government’s annual budget bill, and so elements of the justice budget, including that of justice social work, can be looked at through that process. Accordingly, the Parliament would be able to consider the impact of the bail reforms on justice social work through those scrutiny processes without having to add a further reporting requirement to the bill to allow for that.
I ask members to vote against amendment 68.
Amendment 19, in the name of Jamie Greene, would give the complainer the right to make representations to the court when it is determining whether to grant or refuse bail.
The subject of how the court is best informed about the potential risks to complainer safety is a key issue that was, quite rightly, discussed in some detail at stage 2. With the new bail test explicitly embedding public and complainer safety within its operation, it is clearly important that the court has appropriate information to assess that.
Amendment 15, which is being considered in this group, emphasises to the court the route by which information on complainer safety should be obtained: it is from the prosecutor. As was discussed at stage 2, I would have concerns about placing in the bill any requirement or expectation that a complainer should appear in front of the court. I know that that is not Mr Greene’s intention.
It is clearly important in many cases, such as those involving domestic abuse, that information on potential harm is made known to the court, but that should be done via the prosecutor, and amendment 15 helps to strengthen the law in that regard.
I am grateful to the cabinet secretary for explaining the Government’s position. However, I pose the scenario of a busy custody court. I do not understand how the situation would be best addressed there. On the day, Crown counsel would probably be presenting a large number of cases to the judge. Amendment 15 says:
“the court may ... request the prosecutor to provide it with information in relation to the risk of harm”.
How is that practically achievable in a scenario in which neither the complainer nor their representative is in court on the day? The advocate depute would have no access to such information, particularly if the arrest has been made in the course of a weekend, as is often the case in domestic abuse cases.
Why is it such a problem to allow the complainer to provide such information to the court—potentially in advance—so that it can be heard by the judge on the day? The process that is outlined in amendment 15 alone would not suffice in every scenario, and it certainly would not give every complainer the opportunity to make representations to the court.
The whole purpose of section 1 of the bill is to ensure that the court has the best possible information available to it. Notwithstanding that prosecutors are busy—as are judges, criminal justice social workers and victim support organisations—we are well within our rights to be crystal clear on the role of the prosecutor in providing vital victim information where it exists.
I put another scenario to Mr Greene. Although I am sure that it is not his intention, my worry is that amendment 19 might have unintended consequences and carry an increased risk of harm if a complainer were to make representations at court in person. It might increase the risk to their safety or that of their being coerced into making representations to help to secure an accused person’s release on bail.
Therefore although I accept that amendment 19 is well intentioned, it is not one that the Government can support.
Amendment 20 from Jamie Greene would place a mandatory requirement on the prosecutor to always include information on the safety of the complainer or other persons in their bail submission. Where such information is relevant to the question of bail, the prosecutor will of course provide such information. However, to require it in every case—even when, for example, there is no complainer or where there is no question of complainer safety being an issue, such as may be the case in a shoplifting case—is a step too far.
In addition, amendment 20 would require the prosecutor to include information on complainer safety obtained from a victim advocacy or a victim support group. Again, I understand the intent, but if there is no complainer, or if the complainer has no wish to engage with such a group, the prosecutor would still require to include such information, even where clearly it is not relevant or where it is not available from the victim group.
It is for the independent prosecutor, who acts in the public interest, to ensure that relevant information is presented to the court in relation to complainer safety, and amendment 15 strengthens the law appropriately in that regard.
There are also some technical issues with amendments 19 and 20. For example, there is no definition of a “victim support or advocacy group,” which is referred to in amendment 20. Given that the amendment imposes a new duty on the Crown in connection with court decisions on bail, it is important that there is legal certainty.
On that basis, I ask members to oppose amendments 19 and 20.
I agree with the cabinet secretary that the principle of providing the maximum amount of information to the court is very important, but I do not think that the Government addressed the question of the inequality of resources across the country. In fact, I argue that it is a meaningless mandatory requirement to provide an opportunity, and in some courts that is just not possible.
Although the cabinet secretary said that resources can be considered, what she said in relation to Katy Clark’s amendment seems to leave that question totally unanswered. If no social work is available in some courts, the opportunity will simply not be taken up, and that creates inequality, so it becomes a bit meaningless, and it makes more sense to change the “must” requirement in legislative terms.
With that, I will be supporting amendment 20, in the name of Jamie Greene, but not amendment 19, because there was not enough technical information. There is quite a lot to be considered around how this will be done before the court. I will support amendment 15, in the name of Maggie Chapman, but not amendments 16 or 21.
There will be a division. As this is the first division of the day, I will suspend the meeting for around five minutes to allow members to access the digital voting system.
15:23 Meeting suspended.
15:28 On resuming—
We will now restart proceedings, and we will proceed with the division on amendment 67. Members should cast their votes now.
The vote is now closed.
The result of the division is: For 51, Against 63, Abstentions 0.
Amendment 68 disagreed to.
Group 2 deals with entitlement to bail. I draw members’ attention to the procedural information relating to this group, as set out in the groupings. If amendment 22 is agreed to, I cannot call amendments 69 to 71, due to a pre-emption.
I apologise to Labour for the pre-emptions in this group—I will explain those shortly.
Amendments 22 and 23 in this group are largely consequential on the primary amendment, which is amendment 17. I apologise to members for the fact that the speech that I am giving just now is the main one that I will give today, from my point of view, because it relates to the bail test, which is the core of part 1 of the bill.
Whether we like it or not and whatever our views on Governments using primary legislation to restrict parameters around the independent decision making of the judiciary, the effect of this section has caused debate and consternation. I would go as far as saying that it has attracted, perhaps unusually, widespread criticism from the judiciary and, at the other end of the spectrum, those who represent victims and their rights.
As currently drafted, the bill limits the scope of the court’s ability to refuse an individual bail. At the moment, as per the Criminal Procedure (Scotland) Act 1995, judges have a list of criteria that they use to determine whether someone should be remanded or granted bail. The Government’s proposals in the bill change all of that. The proposed bail test requires that bail must be refused only if both of the following tests are met. The first is that the court deems that the case involves at least one of the criteria that are set out in section 23C of the 1995 act, including, for example, things such as the likelihood of absconding, the risk of further offences being committed if bail is granted and the risk of the person interfering with witnesses or otherwise obstructing the course of justice—all sensible things that we would expect judges to consider. The second test is that the court must be satisfied that the accused should be refused bail
“in the interests of public safety … or ... to prevent a significant risk of prejudice to the interests of justice.”
It is no longer an “or” scenario; it is an “and” scenario. That is an important difference—it is the so-called two-stage test that we have been referring to throughout this scrutiny process. Here is the problem with that: questions have been posed by the judiciary about the properness of such a move by a Government. There is a fundamental question here about how ministers who frequently rest on their laurels in relation to the so-called independence of the judiciary when posed questions about such matters are very quick and keen to legislate to narrow the decision-making powers of the judiciary.
There are a range of views on the efficacy of the change in its entirety. Some stakeholders seem to hint that judges will just ignore it altogether, doing what they always do, making the sort of decisions that they think are right and that they always make anyway. In fact, Lord Carloway stated that the bill
“introduces an unnecessary cumbersome and artificial process” without changing outcomes in bail decision making. That is extremely strong criticism from the highest judge in the land of the proposed changes to the bail test, and we ignore it at our peril.
There was also a huge amount of debate about what constitutes the second test: the new public safety test. Some argued that it was too narrow—that it would effectively bind the hands of judges and severely limit their use of remand even where that option may be appropriate. There were substantive arguments about how, or even whether, to define “public safety” and what effect that will have in practice on remand decisions and remand numbers.
What is the compromise here? There has, so far, been no answer on that from the Government, yet the committee’s stage 1 report said:
“the factors that judges need to take into account would be preferable on the face of the bill.”
At stage 2, I lodged a simple amendment that sought to change the “and” in the test process to an “or”, thereby allowing judges more scope to remand individuals who they believe pose a risk to the complainer or to other individuals. That amendment was rejected by the Government, notably on a 4:4 split and the casting hand of the convener. The Parliament, the judiciary and victims organisations are split on the issue. That is why I have brought the amendment back at stage 3.
Amendment 17, in my name, again seeks to replace the “and” in the two-stage process but instead inserts five conditions as reasons for which a judge could remand someone. It would provide that, in addition to the so-called public safety test,
“at least one of the following” criteria must also be met:
“(i) the … person is likely to breach … bail conditions,
(ii) the … person is likely to commit further offences whilst on bail,
(iii) the … person is likely to abscond” from court;
“(iv) the … person … is likely to interfere with witnesses or … obstruct the course of justice”; and finally, in subparagraph (v), the court feels that
“there is another substantial factor” that would justify
“keeping the person in custody”.
The fundamental question, which the Government has been either unable or unwilling to answer throughout the bill process, is what is driving the remand population in our prisons in the first place. It must be a number of any of the following factors. Is it a result of the overuse, or the wrong use, of the existing bail test by sheriffs or judges? That is a key question, but we saw no evidence of that.
Is it, perhaps, a result of the huge backlog in our courts, which is driving up the remand population, with many people lingering in prison for months—or, in some cases, years—while their trials are continually delayed? We have evidence for that, because Audit Scotland recently revealed that our backlog for solemn cases will not be cleared until at least March 2026, some three years away. Someone who is held on remand will be waiting for their trial, and therefore the remand numbers will be higher.
Another question that it is right to pose is whether we have a comparatively high remand population relative to the types of crimes for which those people are being remanded. What do I mean by that? What is the proportion of people who are remanded, for example, for serious assault, attempted murder, sexual assault, rape or serious organised crime? My point is this: is it the profile of crime that has changed and resulted in the inevitable action of a judge having to, or feeling that they have to, remand someone?
The Criminal Justice Committee struggled with those questions to get below the skin of the issue. As far as I can see, remand is already the option of last resort by sheriffs and judges, which is perhaps why 8 per cent of custody hearings in summary cases result in remand, and 40 per cent of solemn cases result in remand, largely due to the seriousness of those cases.
If the system is not broken, why change the bail test? That is not just the question from members on the Conservative benches but a question that the judiciary are asking the Government, to which the Government has not replied.
I appreciate the member giving way on that point in particular, given that he mentioned the Lord President’s 13-page letter. With regard to the change not having the confidence of the judiciary, would he acknowledge that we put to both cabinet secretaries the very question that, as he says, the judiciary highlighted, as to whether the proposed changes may make no “ practical difference” to outcomes? Would he agree that the committee did not really get an answer to a 13-page letter that was full of substantial questions?
No, we did not, and—disappointingly—neither did the judiciary come and give evidence to us. I would have liked to have heard from judges and sheriffs in front of the committee at stage 1, as we gathered evidence for our stage 1 report. Nonetheless, they produced—unusually—a 13-page letter, which we cannot ignore. It is not often that the most senior judge in Scotland would criticise such a change to the law in such a way, but the Government has not replied. The Government may disagree with Lord Carloway, which is fine—there is nothing wrong with the cabinet secretary and the Government having a different policy direction—but it was not forthcoming with an answer to that letter. I do not think that we should ignore those concerns.
Pauline McNeill is absolutely right. The problem here is about what effect the bail test change will have on the remand population, and the answer is that we do not know. It could go a number of ways. The remand population could stay the same, because judges will still use their own judgment, and the bail test will make no difference, in which case the policy objective will have failed at the first hurdle and is therefore unnecessary. The other option is that more people are released into the community who would hitherto have been remanded in custody. That may present a problem, and that is perhaps why victims organisations have a problem with it. The opposite outcome is that the definition of “public safety” could be so wide ranging that it could be used in any scenario to remand someone in custody, and therefore more people may end up being remanded.
We have heard all the scenarios, and the Government does not seem to know what the outcome might be, nor has it done any modelling on it. That is my concern, and that is why I am seeking to insert the original bail test back into the bill, so that we are clear about the parameters that judges can use. The public safety test is so vague, so weak and so misunderstood; the original five-condition test is clear, and it is being used by judges—fairly, in my view. I am not sure whether the Government trusts judges on this matter; I perhaps have more faith in them, and I urge members to support my amendments in this group.
I turn briefly to other amendments in this important group. I support amendment 18, in the name of the cabinet secretary, because it changes the wording of the public safety test in some way to consider the protection of the complainer from the risk of harm. That seems to be a technical change from what was proposed at stage 2, which is welcome.
Amendments 69 and 70, from Pauline McNeill, add to the bail test the ability for judges to refuse bail on the basis that the person has previously breached their bail conditions, for instance. That is not in the existing tests as set out in the Criminal Procedure (Scotland) Act 1995.
Amendment 71 adds to the existing bail test a provision that allows bail to be refused if the court considers that there is a substantial risk that a person, if granted bail, might breach bail conditions. Amendment 70 does something similar.
Those amendments are important because, as we know—and as I will discuss in relation to a different group of amendments—a high volume of prisoners breach bail conditions. Many people who are released on bail are repeated bail breachers, and the effect on victims, particularly on domestic abuse victims, is quite horrific. We have had first-hand evidence of that.
There are other amendments in this group that I will not speak to, but I am keen to hear what the cabinet secretary has to say in response to the many criticisms that I have laid out.
I move amendment 17.
72, in the name of Katy Clark, would remove the proposed new bail test from the bill in its entirety. A similar amendment was lodged by Ms Clark at stage 2 and was debated at the Criminal Justice Committee. I cannot support the amendment.
Part 1 of the bill does not change the general entitlement to bail under section 23B of the Criminal Procedure (Scotland) Act 1995. Under the new bail test, as is the case now, bail is to be granted to an accused person unless the court determines that there is good reason for refusing it. That determination continues to involve a two-part test.
The first part of the test remains the same. The court may determine that there is good reason for refusing bail only where at least one of the grounds in section 23C(1) of the 1995 act applies. The bill narrows the second part of the test to provide that bail may be refused only if the court considers it necessary for one or two specific public interest reasons. The first is that it is necessary in the interests of public and victim safety. The second is that it is necessary to prevent a significant risk of prejudice to the interests of justice. If an accused person does not present a threat to public and victim safety or to the delivery of justice, bail should be the default.
The new statutory limit on the use of remand is a direct response to calls made by the Criminal Justice Committee and others to take action to reduce the number of people being held on remand. If Katy Clark’s amendment 72 is agreed to, the potential benefit of the new bail test in reducing the use of remand would be lost. I ask members to vote against that amendment.
Amendments 17, 22 and 23, in the name of Jamie Greene, would expand the circumstances in which remand can be used by the court not only under the framework that is envisaged by the new bail test in section 2 of the bill, but even in terms of the current system.
It is, of course, the job of Parliament to set legal parameters. The Scottish Government is seeking to do so in this instance via primary legislation. Mr Greene and others are also seeking to do so via their amendments. However, Mr Greene’s amendments would represent a significant change in the operation of bail law, and no consultation has been undertaken on the specific changes that he has proposed.
Amendment 17 is the main amendment; amendments 22 and 23 are largely consequential. Jamie Greene lodged a similar amendment at stage 2, and it was debated and defeated. Amendment 17 would separate the two requirements of the new bail test to make them alternative instead of cumulative. That would mean that the court could remand an accused person either when one or more of the grounds that are listed in Jamie Greene’s amendment 17 are established or when there is a risk to public safety or a significant risk of prejudice to the interests of justice.
The current bail test and the new bail test are two-part tests. By removing the need to satisfy both parts of the test, the change has the potential to massively expand the court’s ability to remand and to massively expand the legal parameters. It would mean that an accused person who poses no risk to public safety or to the delivery of justice could be remanded solely on the basis that at least one of the grounds that are listed in amendment 17 applies. That includes any other
“substantial factor which appears to the court to justify keeping the person in custody”.
That would give the court an extremely broad discretion to refuse bail for any reason that the court determined met the criterion of being a “substantial factor”.
The point of the amendment is precisely to give the courts that discretion. The factors that are listed in my amendment are reasonable grounds. The problem is that, if someone meets all those criteria—there is evidence of their breaching bail conditions; they had previously been released on bail and committed further offences, of which there is evidence; and they have repeatedly absconded or failed to attend at a court diet—but does not meet the secondary test, the judge will be forced, again, to release that person on bail. Where is the discretion and the fairness in that? All that I am trying to do is reinsert into the system that the judges on the day—not ministers here today—are the best people to make that decision.
I will come to embedding the important principles of the interests of justice and victim and public safety in a few moments.
The fundamental point is that Mr Greene, here today, at stage 3, is proposing to massively expand the court’s ability to remand, and that is a proposition on which he has not consulted. He might disagree with the Government’s proposal to narrow the statutory limits on remand, but we have at least consulted thoroughly and debated that matter thoroughly at stage 1, stage 2, and now at stage 3.
Mr Greene’s amendment 17 would remove from the new bail test the requirement for at least one of the grounds that are specified in section 23C(1) of the Criminal Procedure (Scotland) 1995 to apply in order to justify refusal of bail and would replace it with a new set of grounds. Although the replacement grounds in amendment 17 are broadly similar to the grounds in section 23C(1), a different threshold is set for when each of the grounds applies, moving from “substantial risk” to “likely”. Exactly what the intent is in changing the threshold from “substantial risk” to “likely” is not immediately clear. If there had been earlier scrutiny of that change in wording, it could have been considered. However, I contend that stage 3 of an important bill is not the time to adjust a part of bail law that has not been fully considered.
Amendment 22 is largely consequential, but not insignificant. That is because, although section 23C(1) of the 1995 act has largely been replicated in amendment 17, section 23C(2) has not been. Repealing section 23C would mean that the court would no longer be required to have regard to important factors that are set out in section 23C(2) when making the bail decision, including the nature and level of seriousness of the offences before the court, and the character and antecedents of the accused person, including, in particular, their previous convictions. Exactly why the court should not have regard to those long-standing factors is unclear, and, in my view, not to allow it to do so is unwise. Therefore, I ask members to vote against amendments 17, 22 and 23.
Amendments 69 to 71, in the name of Pauline McNeill, would make changes to section 23C(1) of the Criminal Procedure (Scotland) Act 1995. The effect of those amendments would be to add two new grounds to the list in section 23C(1) so that the court may cite one of those grounds as part of a determination to refuse bail. The two new grounds would be where
“the person has previously breached bail conditions” or there is
“any substantial risk that the person might, if granted bail, breach bail conditions”.
Although they are well intentioned, those amendments are not necessary. I will explain why.
First, the breach of bail conditions is a separate criminal offence in its own right, and any substantial risk that an accused person might, if released on bail, breach bail conditions is already covered by the existing ground for refusal of bail set out in section 23C(1)(b). Amendment 70 is, therefore, not necessary and already covered by existing bail law, which the bill does not change.
Secondly, existing section 23C(2) already instructs the court, when considering the grounds upon which bail may be refused, to have regard to all material considerations, which include whether the person was subject to a bail order when the offences are alleged to have been committed, and the character and antecedents of the person, including the nature of any previous convictions. That means that the court is already required to have regard to whether a person has previously breached any conditions of bail when deciding whether there is good reason to refuse bail in a given case, so amendment 71 is not necessary.
Therefore, I ask Pauline McNeill not to move amendments 69 to 71. If she does so, I ask members to vote against them.
Katy Clark’s amendment 74 would remove section 4 from the bill in its entirety, with the effect that the duties contained in it for the court to state certain reasons for its decisions on bail and record its reasons when bail is refused would not be introduced. Again, an identical amendment was extensively debated by the Criminal Justice Committee at stage 2, although it was not pressed to a vote.
Amendment 74 may be a consequential change to amendment 72, but section 4 has its own specific policy reasoning. The removal of section 4 would directly contradict the committee’s stage 1 report recommendation that more information be collected about the reasons why remand is used. The importance of collecting more detailed data on the use of remand was universally supported by people who gave evidence to the committee at stage 1.
I understand that concerns were expressed at stage 1 about the potential burden that the recording duty as originally drafted would place on the courts, but the bill was amended at stage 2 to reduce the amount of information that the courts would be required to record and to focus it more clearly on only the reasons why the court decided to remand the accused. It is that key set of information that we consider will be most useful in the coming years to understand the reasons why remand is imposed.
Therefore, I ask Ms Clark not to press amendment 74. If she does so, I ask members to vote against it.
Finally, my amendment 18 is a minor and technical amendment to the new bail test that section 2(2)(a) of the bill will introduce. It revises the limb of the new bail test that deals with public and victim safety, so that the court may refuse bail if it considers it necessary to do so in the interests of public safety, including for the
“protection of the complainer from a risk of harm”.
That is a slight change from the original wording of the provision, which provided that the court may refuse bail if it considers it necessary to do so
“in the interests of public safety, including the safety of the complainer from harm”.
That minor revision does not change how that aspect of the bill test operates; it simply reflects that it is more natural to talk about protecting the complainer from a risk of harm. For that reason, I ask members to support amendment 18.
I will start with a similar point to the one that Jamie Greene made. In some senses, the debate that we are having now is about the heart of part 1 of the bill. The basis of the discussion is that we have the bail test under the 1995 act, and the bill has a completely new bail test. I have to say from the outset that I do not envy the cabinet secretary in taking on the bill halfway through the process, but I say in all genuineness that I am trying to get to the bottom of the real purpose of the bill.
I noted down a phrase that the cabinet secretary used that I have not heard before. She talked about a
“new statutory limit on the use of remand”.
The Government has to be consistent so that people understand what the bill is attempting to do. For those who have not been involved in the scrutiny of the bill, I point out that it is a highly complex and technical piece of legislation. I do not pretend to understand it all, but I am trying to get clarity on the purpose of the new bail test. The reason why I mention that phrase that I had not heard before is that the committee, in its entirety, raised concerns about the extent of the use of remand and, every time we asked whether the purpose of the bill is to reduce the remand population, we could not really get a clear answer. The Government needs to be clear about whether or not that is the purpose of the test.
I will move on to the test itself—Jamie Greene made the same points that I am about to make. In the 13-page letter that I referred to earlier, the judiciary seemed to say that it has issues with the new test and is not convinced that it will make any real practical difference. That is a problem in legislation. The bill will introduce a new test, which the cabinet secretary has outlined very well, but it is unclear whether it will actually make any difference. Furthermore, it could be complex for people to understand.
In amendments 69 to 71, I am trying to do something similar to what I think Jamie Greene is attempting to do, by putting some prescription back in the test to get clarity. One of the first comments that was made to me about the bill was that the bail test does not have as a specific consideration whether someone has previously breached their bail. I know that it is not in Jamie Greene’s amendment 17, and that his amendment also introduces a slightly different test in that, where my amendment 71 references “substantial risk”, Jamie Greene talks about the “likelihood” of bail being breached. Those are important aspects.
Section 2 seeks to change the grounds on which a court may decide to refuse bail, and amendments 69 to 71 would allow consideration of the risk of breach of bail. The Scottish Government has said that the amendments are not necessary, and I accept that it has been said that, under the new test, the court will be able to consider whether there is substantial risk. However, my preference is to make it clear in the bill that, in fact, breach of bail is a ground for refusing bail.
The Law Society of Scotland said that a
“one-size-fits-all ... solution ... does not really assist the court to make proper judgments as to who could or could not be trusted with being admitted to bail”.—[
Official Report, Criminal Justice Committee,
18 January 2023; c 19.]
It said that, although the Government is seeking to introduce a more focused use of remand, it must be careful that a recalcitrant offender is not continuously released on bail without any consideration of the rights of the general public.
The Scottish Government’s written response at stage 1 stated:
“The new bail test in the Bill is intended to refocus how imprisonment is used to ensure that, as much as possible, the use of custody for remand is a last resort”.
However, it is important to note that that is already the case under the 1995 act, where there is a presumption against the use of remand. Again, I am seeking clarity about the purpose of the bill.
The policy memorandum explains that the purpose of the provisions is
“to refocus the legal framework within which bail decisions are made by a criminal court, so that the use of custody is limited to those accused persons who pose a risk to public safety, which includes victim safety, or to when it is necessary to prevent a significant risk of prejudice to the interests of justice in a given case.”
Given the phrasing there, it is important that the language of the new test is quite different from that in the 1995 act and that we all understand exactly what the bill is intended to do.
It concerns me deeply that the provision in that part of the bill does not yet appear to have the full confidence of the legal profession and the judiciary. I admit that the letter was written some time ago, but we have not had an update since then, and I asked the question. It would be helpful at some point to have an update on whether any changes that have been made to the provision now have the confidence of the judiciary.
Amendments 72 and 74 would remove sections 2 and 4 from the bill. That would, in essence, maintain the current bail test, which in the vast majority of cases includes a presumption that the court will grant bail. The approach that I am taking is similar but slightly different to that proposed by Jamie Greene.
Scotland has the highest number of people in prison and the highest remand rate in Europe. The figures that were provided to the Criminal Justice Committee show that almost 30 per cent of the male prison population is on remand and that, in the women’s estate, 37 per cent of women are remand prisoners. It has to be said that that is not because Scotland is a more violent country than comparable countries. Our contention is that those high remand rates are not because of the law or the bail test that we are discussing, but because of a lack of robust alternatives to custody being available to the courts. In addition, it is clear that decisions of Parliament to extend the time limits relating to criminal cases and, perhaps, culture might be other reasons. The pandemic clearly increased the number of people who are being held on remand, but Scotland having extremely high remand figures is a historic issue.
The Criminal Justice Committee first discussed the bill at our away day last August, and although we have taken extensive evidence since then, we have been unable to find evidence about how changing the bail test from a public interest test to a public safety test will reduce the number of people being remanded. The current test has been in place for many decades and is settled law. What the Scottish Government is proposing
“is likely to make submissions to the local sheriffs lengthier, increase the time taken to determine the issue of bail, result in some accused persons being detained unnecessarily while inquiries are carried out, produce more errors, increase the opportunities for appeals and add to the heavy burden on the sheriffs and the staff who are tasked with the management of what can be extremely busy custody courts.”
Those are not my words but the words of Scotland’s senior judge, Lord Carloway, in his submission to the Scottish Government on behalf of judges.
Pauline McNeill and I have spoken to dozens of practising lawyers about the proposed new bail test and it is clear that what the Scottish Government is proposing does not have the support of victims’ organisations, it does not seem to have the support of the judges and, from the discussions that we have had and the evidence that we have taken, it does not seem to have the support of the legal profession. Pauline McNeill and Jamie Greene have also referred to the submission that I have just referred to, which said clearly that the proposed new bail test introduces
“an unnecessary, cumbersome and artificial process”, and that it is
“difficult to see how the proposed new structure will make any practical difference in outcomes.”
When we are scrutinising the bill, we need to look at whether the law will make it easier for the courts to make decisions and make the law more certain. It is far from clear how the Scottish Government believes that changing the bail test in the proposed way will either reduce the remand population or, indeed, make it clearer to the courts what Parliament intends.
We believe that, instead, the focus should be on developing more robust forms of supervised bail and electronic monitoring.
As the cabinet secretary said, amendment 74 is consequential to amendment 72. It seeks to remove section 4 of the bill. During the Criminal Justice Committee’s evidence taking on the bill, section 4 was opposed by victims’ organisations, as it fails to provide complainers with an explanation of why bail is being granted. In addition, as we heard already, many parts of the legal profession are opposed to the proposals that are outlined in section 4. We believe that section 4 is unnecessarily onerous and that it would extend the length of hearings.
On those bases, I urge the chamber to support my amendments.
I thank all members for their contributions. The debate on this group has been a long one, but it is an important one. As Pauline McNeill said, it gets to the heart of what the bill is trying to do and what the Criminal Justice Committee has spent many months trying to unearth.
I have a number of brief comments to make in response to the cabinet secretary and other members. It is still entirely unclear, even as we come to the end of stage 3 consideration of section 2, what the Government’s real intention is. The Government has not been up front about that at any stage in the proceedings. Today, it has been given ample opportunity to be clear about its intention to members, who must vote on the amendments. Is it simply the Government’s intention that making the proposed change to the bail test will result in a reduction in the number of people who are remanded in custody? It is clear that that is what lies at the heart of the proposal. If that is the policy intention, the Government should say so. There is no point in hiding behind the idea of modernisation or change for change’s sake.
It is clear that the Government has not listened to any of the criticisms that have been made, not by politicians here today or at stage 2, but by the people out there who reflected on and reacted to the publication of the bill.
I will shortly. I want to pose a question to the cabinet secretary.
Of the proposed change, the Lord President said:
“It is difficult to see how the proposed new structure will make any practical difference in outcomes.”
I will stop the quote there and carry on in a second. Surely that is the whole point of what the Government is trying to do—to make a practical difference to outcomes—but the Lord President does not seem to think that the new structure will do that.
The Lord President went on to say:
“The overarching test, that bail is to be granted unless there is a good reason to refuse it, remains the same.”
The problem is that that view is also shared by the Crown; it is not simply the view of the judiciary—judges—or defence advocates and solicitors. In its evidence to the committee, the Crown Office and Procurator Fiscal Service said:
“Different sheriff courts or, indeed, different sheriffs in the same court might take a different view of what public safety encompasses ... The issue for me is that sheriffs could broaden the definition of ‘public safety’ for other crimes in some jurisdictions and not in others. That would lead to inconsistency, confusion and, ultimately, inefficiency.”—[
Official Report, Criminal Justice Committee
, 25 January 2023; c 24, 27.]
“Inconsistency”, “confusion”, “inefficiency”, “unnecessary”, “cumbersome” and “artificial” are all words that were used by the judiciary and the Crown. Why are they all so wrong and the Government so right?
It is very important that members do not claim to represent the entire legal profession. Although I have come to the bill relatively late in the process, the Government has been absolutely transparent in setting out three reasons for this part of the bill.
The legal profession has welcomed the fact that we are seeking to simplify bail legislation. Perhaps Mr Greene would agree that it is imperative that we embed the focus on public safety, including victim safety, and the interests of justice, in all cases. We are seeking to place statutory limits on the use of remand in the full knowledge—I think that we are in danger of agreeing on this—that there are many measures that will reduce the remand population and that we need to look at all the solutions.
However, it is disingenuous of the Conservatives to complain to Parliament about our high remand population and then not seek to take every opportunity to take measures that could at least play a part in reducing it.
We have been really clear about how to deal with the remand population: get through the backlog and get through it more quickly. That will reduce the remand population massively, cabinet secretary, and you have the power to do that. Apologies—I should be speaking through the chair.
I am not paraphrasing anyone in anything that I have said this afternoon. I am quoting directly the words of the Lord President, Lord Carloway; the evidence of the Crown Office and Procurator Fiscal Service; and the words of Kate Wallace of Victim Support Scotland. No one has been misrepresented; they have been quoted, and there is a massive difference. I would ask the cabinet secretary to reflect on that.
Victims lie at the heart of this. The last word should go to Victim Support Scotland, which has grave concerns about the new test that the Government is introducing. It said:
“It will be a concern to the public in general and victims of crime specifically that the provisions relating to bail narrows the court’s discretion to refuse bail.”
The cabinet secretary has just reinforced that message. Kate Wallace went on:
“That is, no doubt, with the intention of reducing the prison population.”
What that tells us is that more people will be put at risk. There will be more victims of crime and more lives will be ruined. Again, no one is being misrepresented, misquoted or paraphrased. Those words are in black and white in the stage 1 report. If the cabinet secretary will not listen to us politicians, she should listen to victims.
I press amendment 17.
Amendment 73 is on report on bail in certain solemn cases. It concerns a debate that we had at stage 2 in relation to a provision in the bill referring to section 23D of the Criminal Procedure (Scotland) Act 1995.
Amendment 73 is a similar amendment to amendment 1, which Jamie Greene will speak to. I moved a similar amendment at stage 2 and I will now go through the rationale for the amendment. Amendment 73 would remove section 3. It would also add a requirement for Scottish ministers to carry out, within 12 months of royal assent, a review of bail restrictions in solemn cases in order to consider what the effect has been of removing section 23D of the 1995 act.
Section 3 of the bill seeks to repeal section 23D of the 1995 act, which restricts the granting of bail in certain solemn cases. Section 23D provides that bail is to be granted only in exceptional cases if the accused is being prosecuted under solemn procedure—which is used in more serious cases—for a violent, sexual or domestic abuse offence and has a previous conviction under solemn procedure for any such offence, or a drug trafficking offence, which is also included within the provision.
With the repeal of section 23D, the courts would instead simply apply the general rules that we have been discussing—the new bail test or the old bail test, depending on what happens at the end of stage 3—but victims’ organisations believe that removal of section 23D from the 1995 act presents a serious risk to the safety of people, and the victims of gender-based abuse in particular. For them, retention of section 23D is a vital part of Scotland’s commitment to eradicating violence against women and girls.
The proposed grounds for refusing bail are not sufficient on their own in relation to protecting people who are affected by crime, and are an inadequate alternative to the additional safeguard that is contained in section 23D of the Criminal Procedure (Scotland) Act 1995. The Faculty of Advocates is of the same view as Sheriff Mackie, who, when speaking for the Howard League, supported removal of section 23D to allow discretion, so we can see that opinion is split on the issue. On one hand, victims think that it does one thing, and on the other hand, many practitioners are quite happy to repeal it.
I should say that the provision in section 23D of the 1995 act has a bit of a history, because it was discovered that the reference in subsection (3A)(c) to previous convictions for domestic abuse was only inserted into the 1995 act by the Domestic Abuse (Scotland) Act 2018, whereas all the other offences that I have referred to were previously mentioned in it.
Initially, my view was that the court should have discretion. As one witness said, if someone had been convicted of an offence 20 years previously, that would tie the hands of the sheriff, because they would need to apply that particular provision. However, on balance, I feel that that provision should probably be removed. I am certainly concerned that there is a difference of opinion about leaving it in or taking it out. One of the things that puzzles me is why the Government, having put the provision on domestic abuse into section 23D, would take something out that was only put in four years ago.
My suggestion is that, if we take that provision out, that should be reported on. We should, arguably, report on it anyway because of the difference in opinion about what it actually does. We need some clarity about what the impact of keeping it in or taking out would actually have.
I move amendment 73.
I will speak for long enough for folk to have a cup of tea so that they are not rushing back.
This is an important group of amendments, and I am glad that Pauline McNeill was able to open the debate on it. I will speak first about the other amendments in the group and am supportive of all the amendments in the group, for the following reasons. Amendment 73, in the name of Pauline McNeill, comes closest to my amendment 1 and therefore has my support. She would add an additional review to the restrictions on bail in solemn cases. My only concern is that such reporting would not go far enough, so I will talk about my proposal on that in a moment.
I also support the amendments that are in the name of the cabinet secretary, and I particularly welcome amendments 63 and 36, which seek to add a requirement to report on the reasons for granting bail in certain solemn cases. I think that that is a good step forward, but I do not think that the amendments go far enough.
That leads me to my amendment 1, which is number 1 for me in both name and nature, because it is the most important amendment that I will speak to today and is my red line, on the bill. It is not only my red line: it is the red line of many organisations and victims whom I have spoken to in the past nine or so months, as we have scrutinised the bill.
There are people who sympathise with many elements of the bill and who sympathise with the Government’s intention to make changes to the bail test and with part 2 of the bill, which seeks to improve the throughcare of offenders after their release. There are aspects of that with which I, too, have sympathy.
The one thing that might make people struggle on technical and moral levels, and which might make them struggle to support the bill at all, would be rejection of my amendment 1. If that amendment were to be rejected, the whole bill would fly in the face of the evidence that every victims organisation gave to the Criminal Justice Committee and the work that they do not only with that committee but, frequently, with the Government itself on a wide range of proposals. There are people whom we rely on time after time. We quote them in the chamber or in committee; the Government and Opposition members quote them. They are, to an extent, overquoted, but their voices are as useful as they are imperative.
My amendment 1 is a simple one—it is simple because it must be. It would entirely remove section 3 from the bill. The reason for that approach is that section 3 of the bill would remove from the existing law section 23D of the Criminal Procedure (Scotland) Act 1995. Let us be clear about what section 23D does: it effectively states that a person should be granted bail under solemn proceedings only if there are exceptional circumstances to justify that. That means that someone who is charged with a violent sexual or domestic abuse offence must be granted bail only in exceptional circumstances. As Pauline McNeill said, that was not always a feature of our legal system, but it was rightly put into law to highlight the acute impact of violence against women and girls and to show how seriously the matter should be treated.
I agree with the current law and I am not the only one. Section 3 of the bill, which seeks to remove section 23D from the current law, is controversial. I admit that there are two schools of thought. There are members of the judiciary, who practice law and who look after defendants, and there are those who have suffered domestic abuse, assault, rape and other serious crimes. It is them to whom I will be listening and it is for them that I am seeking to amend the bill.
Scottish Women’s Aid, which I have not yet mentioned today, has very serious concerns about the removal of section 23D. I would really appreciate it if the cabinet secretary would reflect on and respond to the following three quotations. Scottish Women’s Aid told us that, far from acting as a protection to victims, the proposal in the bill would effectively
“allow bail to be granted to convicted repeat and serial perpetrators of domestic abuse and sexual offending against women and who present a particular danger to women’s safety.”
It also said:
“women need as much protection as the law can afford them”
Rape Crisis Scotland commented, too, saying that it has “significant concerns” about removal of what it sees as “an important safeguard”. Those comments were echoed by other organisations, including Victim Support Scotland and Speak Out Survivors, which is a wonderful organisation that supports victims of such abuse. It said:
“We certainly have concerns about repealing section 23D, because it was specifically intended to address violence against women and girls”.
We had plenty of other evidence of that ilk, including evidence from a number of individuals. I know how strongly people feel about this.
In my view, we have to be careful about this element of the bill. If we choose not to remove section 3 and we therefore repeal section 32D of the 1995 act, that will have implications for the decision making of judges in those types of cases. That is something that places a huge responsibility on us when we vote today, and I ask the Government to reflect on that.
God forbid that anything should happen if, as a result of voting against my amendment, section 3 is not removed, and the safeguard—perceived or otherwise—in section 23D of the 1995 act is removed. However, if a judge grants bail to someone who, prior to the passing of the legislation, they would have remanded in custody because of section 23D, and that offender walks free from the court and commits another horrific crime of domestic abuse or assault, as the victims organisations have warned might happen, that would be an unforgivable outcome, and we would have to look that person’s victim or victims in the eye and justify our decisions today. I am comfortable with my decision today, as I have lodged an amendment that would keep that vital safeguard in our current law.
There are two amendments in this group that seek to retain the operation of the presumption in favour of remand that is contained in section 23D of the 1995 act—amendment 1, in the name of Jamie Greene, and amendment 74, in the name of Pauline McNeill. In addition, there is amendment 73, which would require a review of the operation of the restrictions on bail in solemn cases by the Scottish ministers.
The policy content of the bill was first consulted on in 2021. That was a full, open public consultation to which anyone with an interest could offer their views. Included in the consultation was a proposal to move towards one core bail test with public safety and victim safety at its heart. Following consultation, the bill was developed and introduced to Parliament more than a year ago for effective scrutiny, which has taken place over the past 12 months. That involved the committee holding numerous evidence sessions throughout the autumn with full stage 1 scrutiny and detailed stage 2 amendment sessions. With respect, I therefore dispute the need for the further review of the operation of this aspect of bail law that is envisaged by amendment 73, but I will talk later about other reporting requirements that the Government will come forward with.
It seems to me that the key question that Parliament is faced with in this group of amendments is whether to move to a new single bail test that has embedded within it public safety and victim safety. Those are exactly the issues that will arise in section 23D cases, where the court can use its expert judgment in assessing when remand should be imposed.
If amendment 1 or amendment 73 was agreed to, the current statutory restriction on bail that is contained in section 23D of the 1995 act would apply alongside the new bail test that is set out in section 2 of the bill, which would mean, in effect, that there would be two bail tests. The new bail test would operate for most cases, while the section 23D test would operate for certain solemn cases. It is important to remember that bail can be granted under section 23D in exceptional circumstances.
I am very aware that, through the scrutiny process, concerns have been expressed about the removal of the statutory restriction on bail in such cases. It is important to note that those who have expressed concerns have tended, overall, to focus less on concern that the repeal of section 23D of the 1995 act would lead to a change in bail decisions in such cases and more on concern about a perception that bail law is being weakened. I note for the record that I consider matters of perception to be of fundamental importance, particularly with regard to trust and confidence. I will come back to that in a moment.
We know that most people, especially in the legal sector, accept that there will be no significant change, given that the new bail test has at its heart public safety and the need to protect the complainer from the risk of harm. However, I am aware from my direct discussions with victim support organisations, including Victim Support Scotland and Scottish Women’s Aid, that they would prefer the continuation of the statutory restriction on bail for that category of case. I acknowledge that those perceptions matter. If the law is to be credible, it should command support from those who are affected by its operation. That is why I have lodged amendments that will help us to understand more, and give reassurances, about how the new bail test will be used in the future for cases that would previously have been subject to section 23D of the 1995 act.
My amendments 27, 30 to 33 and 35 will extend the reporting requirement in section 5A, which relates to part 1, on bail and remand. Amendment 27 will require information to be included on
“the number of bail orders made in respect of ... individuals ... accused” of certain serious offences where those individuals have a previous analogous conviction. With the bill seeking to move to a new single bail test for all cases, the requirement for information to be reported on cases that would previously have been subject to the restriction on bail in section 23D of the 1995 act will help us to assess the operation of the new bail test for those cases.
Amendments 32, 33 and 35 are consequential to amendment 27. They simply define the types of offences that the specific reporting requirement covers.
Section 5A also contains a general power for the Scottish ministers to include in the report other appropriate information over and above that which is specifically listed. Amendment 30 adds to that to make it clear that such information can, in particular, include information on the repeal of section 23D of the 1995 act, as provided for in section 3 of the bill. Where the report includes such information, amendment 31 requires the Scottish ministers to consult certain groups in preparing the report, including persons who provide support services to victims.
Overall, my amendments will strengthen the reporting requirements so that information will be available on how the new bail test will operate for types of cases that would previously have been covered by section 23D of the 1995 act.
Throughout the scrutiny process, there was strong support for the repeal of section 23D from many, including the judiciary. That support was based on the law being simplified so that one core bail test can be used for all cases. Crucially, consideration of public safety and the risk of harm to the victim is embedded in the new bail test. That is an essential element of the new test, which will continue to allow the court to remand those who pose a risk to public or victim safety.
The new bail test caters explicitly for exactly the types of cases that section 23D of the 1995 act currently covers—that is, where an accused person is charged with a serious sexual, violent or domestic abuse offence and they have similar previous convictions. That is exactly the type of case in which public and victim safety will be of critical importance and it is exactly the type of case in which the new bail test provides for the court to refuse bail.
I appreciate the cabinet secretary taking an intervention. I have two points to make on that. First, she said—I think that she used these words—that there is “strong support for” the removal of section 23D of the 1995 act. I do not think that that is the case. Support came from some quarters, but not all. In fact, views were quite split. I sat through all the evidence sessions, so I know that to be the case. I ask the Government to reflect on that.
My second point is about the new single bail test. Is the cabinet secretary confident about that? Can she give confidence to the many organisations that have voiced concerns, many of which I have raised, although there are others? Is she comfortable that the new bail test will cover every scenario that section 23D of the 1995 act has covered and that no one will be released where, under the old system, the judge would have preferred to remand the person, given the risk to a victim or their family? Will that be followed up as a result of any reporting that takes place due to the amendments? If it transpires that the provisions are not working and that people are committing further offences while on remand, will the Government consider changing the law further, perhaps by including the provisions of section 23D in future legislation?
I always acknowledge, of course, where there are a range of views. At the end of the day, it is the job of the Government and Parliament to balance views, particularly where there are competing views and views that are particularly strong. I would have hoped that members of the Criminal Justice Committee would have heard me speak often enough to know that I very much believe that policy should be led by the evidence. There has to be a purpose to gathering information, and that purpose is not just to put it on a shelf; it is, of course, to vindicate a system and verify that it is working. If it is not working, it is beholden on us all to address that.
I hope that I have helped Parliament today, including Mr Greene, by putting on the record why it is the Government’s view that having an embedded public safety or victim safety test in all cases will cover section 23D cases. It is my view that having one core bail test is preferable to having two tests, which could lead to confusion and would not assist with the administration of justice.
Although it is not the main reason why the Scottish Government opposes amendments 1 and 73, they also carry a real risk of confusion under the law, as the new bail test was designed to operate as a single test of bail. Retaining a second test to be operated alongside it without having made the necessary adjustments to bail law could lead to legal uncertainty.
For those reasons, I ask members to support amendments 27, 30 to 33 and 35 and to reject amendments 1 and 73.
My amendment 36 seeks to introduce a new section to the bill. It will place a new requirement on the court to state and record its reasons when a decision is made to grant bail in certain solemn cases. I know that that has the support of victim support organisations. The relevant cases will be those that are currently subject to a restriction on bail under section 23D of the 1995 act.
As members have debated extensively throughout the scrutiny process—and as I have acknowledged—there are conflicting views on the repeal of section 23D. There is support for repeal from many quarters, such as the judiciary and the legal sector, while there is clearly opposition from others, including victims groups.
If Parliament approves the repeal of section 23D of the 1995 act, the recording of the reasons for bail in the relevant cases will support the reporting requirement under section 5A of the bill through the collection of information over the length of the reporting period for inclusion in the report that will be published. That information on those who are granted bail will help us to assess the operation of the new bail test in an area of the bill that has been contested. I hope that that demonstrates that we are building in scrutiny and greater transparency from the start.
Amendment 63 is a minor consequential amendment that provides for the new section that is added by amendment 36 to be commenced on the day after royal assent.
I ask members to support amendments 36 and 63.
The debate on the group has been very useful. I will make a point in response to the cabinet secretary’s point about two different bail tests being provided. I have thought about that, but the provisions in amendment 73 are for serious solemn cases. We might not find it desirable, but we could have a separate test for more serious cases, so I am not persuaded by the cabinet secretary’s argument on that.
From the beginning, Jamie Greene has been very particular about his reasons for not keeping the provisions in section 3. I have been more divided on that point, because I feel that sheriffs and judges should be able to use their discretion if the test was overused. However, I am not really sure what practical difference it would make to take section 3 out. I still think that it is worth reporting on bail in certain solemn cases, although I might have drafted the amendment slightly differently if I had had more time.
On that basis, I press amendment 73.
Amendments 5 and 6 are the only two amendments in this group. As drafted, the bill requires the court to record bail determinations when it refuses bail. That is one-sided and does not consider the interests of victims or the wider public.
A recurring theme in the justice system is transparency—or, rather, a lack of transparency. Too often, victims are left in the dark and left to fend for themselves. They might well ask why criminals, especially those with a history of violent or sexual offending, are granted bail under the bill, so amendments 5 and 6 would require a court to record the reasons for granting bail.
To recap, the bill as drafted will give accused criminals the right to know why they are remanded, so I can see no good reason why a victim should not be entitled to know why they are bailed. Amendment 5 would fix that oversight.
?Amendment 6 would extend that transparency by making the right universal. Journalists are the eyes and ears of the public and, due to the commercial difficulties of the news media, fewer of them are able to attend court cases. Consequently, the public are increasingly deprived of information or left reliant on public relations from public bodies that are primarily concerned with pushing their own agendas.
Justice must be seen to be done. Members can vote for amendment 6 to ensure that the public are entitled to know why bail has been granted. However, if that is unsuccessful, at least amendment 5 would give that basic right to victims. I urge members to support both amendments in the group.
I move amendment 5.
Section 4 of the bill, as introduced, required the court to state and record the grounds and reasons relating to decisions to impose remand. At stage 2, the Scottish Government responded to a committee stage 1 report recommendation by reducing the recording burden that would fall on the courts through section 4 of the bill.
Amendment 5 would significantly increase the burden well beyond what the bill required even on introduction, let alone after the duty to record reasons was narrowed at stage 2. That is because the vast majority of decisions in relation to bail result in bail being granted, so amendment 5 would place an increased burden on the courts in a very large cross-section of cases that enter the system. That might require further information technology changes by the Scottish Courts and Tribunals Service, as it is not currently required to record that information, as well as adding time to thousands and thousands of bail hearings a year.
It should be noted that there is an overarching legal presumption in favour of bail, which should only be refused when there is good reason for doing so. As such, in effect, bail is the default position. As I explained at stage 2 when a similar amendment was debated, any requirement to provide reasons why bail has been granted could simply point to the legal requirement to do so and the absence of any good reason not to.
Also, it should be noted that it is already a requirement under existing bail law that, whenever the court grants or refuses bail, it must state its reasons for doing so. Therefore, the grounds for granting bail are information that will already be stated in open court under that duty.
For those reasons, I ask members not to support amendment 5.
Amendment 6 would require the court to publish any grounds that require to be recorded under section 4 of the bill. The information that is to be recorded is intended to be used to help to develop a better understanding of why remand is used in Scotland. It is intended that the information will be anonymised and that data will be available through statistical publications. However, it is not likely to be published by the court, as amendment 6 would require, and instead would likely be done via Scottish Government statistics.
It might be that Mr Findlay considers that the publication of information would assist individual victims to understand decisions that are made in cases specific to them. However, publishing case-specific information would raise potential data protection issues and, given the late stage at which the amendment has been proposed, we have not had the benefit of the Information Commissioner’s Office’s input on the implications of the proposal. It is through the Crown that victims can and do receive information about the court’s decision on bail, rather than through the publication of case-specific information.
On the basis of the explanation that I have given and the fact that information that is recorded will be available through statistical publications in future, I ask members to oppose amendment 6.
The cabinet secretary talks about reducing the burden on courts but, if I understand correctly, it remains the case that remand decisions will be recorded under the bill, despite the changes that were made at stage 2. It therefore seems entirely reasonable and proportionate to record the reasons for bail being granted. This is about equality for victims and complainers—I believe that they should have the same right to information that has been given to the accused.
I do not accept the cabinet secretary’s explanation about possible data protection issues—that sounds a little bit weak, to say the least. What goes on in courts and the decisions that they make ought to be a matter of clear public record. It would be no great hardship for the courts to make available to a member of the public or someone from the media the details of why a bail decision has been reached.
Can Mr Findlay advise members whether, when he was drafting and doing his research for his amendments, he approached the Information Commissioner’s Office? I assure him that data protection and the rule of law are not things that I have conjured up. In addition, I wonder whether Mr Findlay would acknowledge that the Crown has a responsibility to inform victims and that victims can and do receive information via that route.
I did not use the phrase “conjuring up”; I said that the cabinet secretary did not particularly fully explain the suggestion that there are data protection issues. I think that the courts are well used to journalists and members of the public having, in theory at least, the right to access information. My amendments would just extend that principle and formalise that right in an important area.
The result of the division is: For 19, Against 91, Abstentions 0.
Amendment 74 disagreed to.
Group 5 is on provision of information about date of release from custody.
I advise members that we will get through this group and then there will be a short comfort break, particularly for those who are participating in the debate.
Amendment 75, in the name of Pauline McNeill, is grouped with amendments 9, 89 and 90.
Thank you for that good news, Presiding Officer.
Amendment 75 seeks to insert a new section that will require the Scottish ministers to take all reasonable steps to ensure that victims are made aware of when an accused person is admitted to bail as distinct from being notified following their release from prison after serving a sentence. A report that was published by the Scottish Government in February looked into the experience of families who have fallen victim to domestic abuse, and female victims of domestic abuse told interviewers that the investigation, prosecution and sentencing for domestic abuse offences does not adequately reflect the sustained level of severity or impact of the abuse that is experienced. One woman told of her harrowing experience in the run up to the court case. She said:
“Eventually the police sergeant phoned me the following afternoon to tell me that he’d been released on bail, and he was released about an hour ago to two hours ago, and, if I’m in the house, make sure I get out, because he’ll be there any minute.”
In recent months, I have been meeting people—I think that we all have—who have lived experience of the criminal justice system as victim complainers. It is a common aspect of the experience of victims that they are not notified of release from remand at bail hearings or from custody so that they can take whatever steps they think are necessary to deal with that situation. I have heard of cases in which a perpetrator has been released on bail without the police informing the victim complainer of such a development, which left them feeling vulnerable and at risk.
This should also apply to bail appeals because people who are remanded to custody have the right to appeal that decision. Adding an amendment to ensure that a person against whom the offence is alleged to have been perpetrated is aware of the court’s decision would surely ensure the safety of the victims of crime.
Amendment 90 seeks to insert the wording:
“The Scottish Ministers must take all reasonable steps to ensure that a person entitled to receive information under subsection (1) is—
(a) aware of their right to the information, and
(b) given every opportunity to intimate whether they wish to receive the information.”
That is one of the issues that goes to the heart of the bill. It is about the rights of victims who come forward and have their day in court, but there is an omission in the bill in relation to the right of victims and complainers to be aware when someone has been granted bail, certainly in serious cases, as distinct from notification when they are released from prison.
I move amendment 75.
I have two amendments in this group: amendment 9—despite what my dodgy notes say—and amendment 89. As with my amendments in group 4, amendments 9 and 89 relate to transparency. While doing my research for them, I made a surprising discovery. It turns out that section 16 of the Criminal Justice (Scotland) Act 2003 already gives crime victims the right to know when the person who committed a crime against them is being released from prison. That goes back to the cabinet secretary’s earlier comments about information being made available to victims by the Crown.
However, I would bet with some confidence that most victims would have no idea of that entitlement, and I strongly suspect that they are rarely told about it.
The bill presents an opportunity to put victims’ rights front and centre and, indeed, to extend them. Section 16 of the 2003 act allows victims to know about a perpetrator’s release only if they are serving a sentence of 18 months or longer. Amendment 89 would give all victims the right to know when the perpetrator was being released, no matter how long the sentence. Why should anyone who has suffered from a serious crime that has resulted in a prison sentence be kept in the dark?
For clarity, amendment 89 would give victims the right to know, no matter how long or short the sentence. That brings me back to my opening comments about transparency and the comments that I made in relation to group 4 about the importance of journalists to the justice system. Amendment 9 would create a simple database that recorded prisoner release dates. When someone is sentenced, the public rightly expect to know the details of the sentence, so it surely follows that people are also entitled to know how much time is actually served.
The right to know is even more pertinent given the confusion that exists about what prison sentences mean in reality. Yes, there is the victim notification scheme, but it has been acknowledged that that is not doing the job that it should be doing. Yes, there have been some chinks in the opaque armour of the Parole Board for Scotland, but accessing basic information can be complex, confusing and conditional. There remains a culture of secrecy around the justice system. Far too often, the sentence that is stated by a judge, and which ends up in the headlines, has no bearing on the eventual reality of the time that is served.
The public are entitled to the truth. A public record of the duration of prison sentences is such a basic and fundamental thing that I find it odd that that information is not already a matter of public record.
Amendments 9 and 89 represent an opportunity for a long overdue reform of the Scottish criminal justice system. In the same spirit, I support Pauline McNeill’s amendments 75 and 90.
T he amendments in this group seek to place duties on the Scottish ministers to provide information on bail and release and to make changes to the victim notification scheme—the VNS.
Pauline McNeill’s amendment 75 seeks to amend the Criminal Procedure (Scotland) Act 1995 by inserting in it new section 33A, which would require the Scottish ministers to take all reasonable steps to ensure that victims were made aware when an accused person was admitted to bail. Although amendment 75 is well intentioned, I would like to set out why I am asking Pauline McNeill not to press it.
It is the duty of the Crown Office and Procurator Fiscal Service to take all reasonable steps to ensure that victims are made aware when an accused person is admitted to bail, either proactively or, in cases with no identified sensitivities, on request from the victim. It is, of course, the Crown Office that will have access to that information, not the Scottish ministers.
The Crown Office has advised that, when marking a case, prosecutors must refer certain cases to its victim information and advice team. In the normal course of events, a victim information and advice referral would be instructed when a case is being marked, but a referral can happen at any point during the lifetime of a case, should the requirement for VIA involvement become apparent at a later stage.
Certain categories of case must be referred to VIA, such as any solemn case with an identifiable victim, and cases with hate crime victims, domestic abuse victims and sexual offence victims. There is also general discretion for a legal member of staff to refer any case to VIA where they consider that a victim would benefit from the service. The criteria for a VIA referral are therefore extremely broad.
Where a case has VIA involvement, that will mean that the victim who is named in the charge, and any witness who is listed in any relevant bail order, will receive a notification by telephone, which will be followed up in writing, that an accused person has been released on bail and whether any additional bail conditions are imposed. That will usually happen within 24 hours of the case calling in court.
For any cases where the victim or witness has not been assessed as requiring VIA involvement, the victim or witness may contact the Crown Office and Procurator Fiscal Service inquiry point team or the local procurator fiscal office directly to ask about the bail status of the accused and any relevant bail conditions. That can be done at any time.
I recognise the system that the cabinet secretary is describing. However, I have a constituent who was allegedly raped. The alleged perpetrator was arrested, held in custody and then given bail, and my constituent found out only when she walked into him in the supermarket.
I accept that the rules state that my constituent should have been told but, in reality, that is not happening in many cases. How can we in this chamber make sure that that does not happen again if we do not support Pauline McNeill’s amendments?
I very much appreciate the information that Mr Whittle has shared on behalf of his constituent. That is clearly unacceptable. I suppose that the point that I am making to Ms McNeill is that, in effect, the purpose of her amendments already exists in law. However, Mr Whittle points to issues of practice, and the events that he describes are, of course, unacceptable. I am quite sure that he will be pursuing that vigorously on behalf of his constituent, and if he wishes to keep me informed, I will be more than happy to receive any further information or communication from him.
I return to amendment 75. Given the approach that should be taken by the Crown Office, which I have described, through the operation of the victim information and advice service, and the fact that any victim not covered by VIA can ask the Crown for that information at any time, I ask Pauline McNeill not to press amendment 75. If she does, I ask members to vote against it.
Amendment 9, in the name of Russell Findlay, would place a requirement on the Scottish ministers to publish a database containing information about the release date or expected release date of everyone in custody. I cannot support the amendment, as I have significant concerns that it would place ministers in potential breach of data protection requirements and the European convention on human rights. The amendment potentially interferes with a prisoner’s article 8 right to a private life and, more seriously, potentially their article 2 and 3 rights—the right to life and the prohibition on inhuman or degrading treatment.
I am sure that I do not need to give Mr Findlay a lecture on GDPR or the importance of the European convention on human rights. It might be more useful to him, and indeed to other members, if I were to give a practical example of how his proposition, which is detailed in amendment 9, could put people at risk.
Let us say that there was a woman in the female estate who was at significant risk of further abuse from her partner or ex-partner. If ministers were to publish her release date, it would make that information freely available to the person who intended to harm her, who, on her published release date, could simply wait outside the establishment in which she had been held—and the Scottish ministers would have provided him with that information. To be frank, that is not a risk that I am willing to take.
Although I appreciate that the motivation behind amendment 9 is not to cause harm in the way that I have described, it is a possible outcome. If Mr Findlay’s amendment is intended to ensure that victims have more information about a prisoner’s release date, the victim notification scheme provides that route. Further, we are of course extending access to information about prisoner release to victim support organisations under section 11 of the bill.
It is for those reasons that I ask Mr Findlay not to move amendment 9. Should he do so, I strongly recommend that members vote against it.
I turn to amendment 89, which is also in the name of Russell Findlay. That amendment would amend the victim notification scheme for the victims of prisoners who are serving sentences of 18 months or more, by removing the threshold of 18 months. That means that the remit of the scheme would be extended so that every victim in cases where the perpetrator has received a sentence of imprisonment would be eligible, regardless of the length of that sentence.
However, there is already a branch of the victim notification scheme for the victims of prisoners who are serving sentences of less than 18 months, which was brought in by the Victims’ Rights (Scotland) Regulations 2015. Those regulations inserted section 27A into the Victims and Witnesses (Scotland) Act 2014, which has been in force since 2015. Section 11 of the bill builds on that by adding a new section 27B into the 2014 act to give victim support organisations the right to information about release of those prisoners, too.
The information that is provided to victims differs slightly according to which of the two branches of the VNS is applicable as it is appropriate for more detailed information to be available for longer sentences, which are usually imposed for more serious offences. However, information in relation to prisoner release and, where applicable, licence conditions imposed for the purposes of protecting the victim, are shared under both branches of the scheme.
Mr Findlay might be interested to read recommendation 15 of the review of the victim notification scheme that has just been undertaken, which comments on potential improvements to the provision of information on the release of short-term prisoners.
Amendment 89 would result in two simultaneous but different schemes applying to prisoners serving sentences of less than 18 months, but it is not clear how the two schemes would operate or interact with each other. The amendment therefore seems likely to bring a significant degree of chaos to the process. I am concerned about the impact that that could have on victims. It is crucial that they can be certain about their entitlement to information. Unfortunately, amendment 89 simply will not provide that certainty. I am sure that members will agree that we cannot legislate in a way that will undermine victims’ rights rather than enhance them.
Furthermore, such a substantial change to the VNS process would require proper scrutiny, including consideration of victims’ views, rather than being brought in at stage 3 of the current bill’s progress. As I have said, there is also the matter of the independent review of the victim notification scheme, and the recommendations contained in its report, to consider.
It is not appropriate to pre-empt any changes to the VNS at this stage, given the need to collaborate with partners and victims organisations on the VNS review’s recommendations and the possibility of changes to the scheme in the future. The Scottish Government is working with those partners as a matter of priority on developing a response to the report, which we will publish as soon as we can.
I understand the appetite to make changes to the VNS, but I ask Russell Findlay not to move amendment 89 and to engage with the work—
The Government has still got to formally respond to the independent review of the VNS. I am pointing to the importance of not cutting through that work, but I think that the findings of the independent review will be of interest to Mr Findlay.
Furthermore, I have also pointed out to Mr Findlay that there is already a scheme in existence for victims in cases where the perpetrator is serving less than 18 months, and the purpose of the VNS review is to improve that further.
Amendment 90, in the name of Pauline McNeill, would place a requirement on the Scottish ministers to ensure that all victims who are eligible to receive information under the VNS are made aware of their right to receive the information and that they are given every opportunity to intimate whether they want to receive the information. Currently, the Crown Office and Procurator Fiscal Service brings the VNS to the attention of eligible victims after sentencing. Requiring the Scottish ministers to be involved in that process would be a significant change that would require detailed scrutiny and collaboration with partners, particularly in relation to data sharing.
I also notice that amendment 90 seeks to make changes to the VNS only for victims of prisoners serving 18 months or more and that there is no comparable amendment making changes to the scheme for those serving less than 18 months.
As with amendment 89, I think that amendment 90 potentially cuts across the recommendations of the VNS review, so I do not think that it is appropriate for it to be included in the bill at this late stage without the chance to give it the scrutiny that it requires.
I therefore ask Pauline McNeill not to move amendment 90 and to await the work that will come out of the VNS review.
There is no difference of opinion between any of the parties and the cabinet secretary on the importance of victim notification, so that is not the question here.
I acknowledge what the cabinet secretary said in relation to my amendments and how they might have been different, but I think that we would have taken the same approach either way.
It is important to recognise that what Russell Findlay and I are trying to achieve in this group of amendments is highlighting that the system is failing many victims. The cabinet secretary said that, in reality, people can contact the procurator fiscal’s office and ask these questions, but anyone who has ever tried to phone that office—even an MSP—knows how difficult it is to do that.
By the way, I have had this conversation with the Lord Advocate, who said that it is one of the things that she would like to change about the system. I once wrote to the Glasgow fiscal and asked whether there was any chance that they could call me, because there was absolutely no possible chance that I could get in touch with them because their phone system was totally inaccessible.
Yes. I acknowledge that there are a lot of big issues—particularly in part 2 of the bill, which we are yet to come to—that relate to huge policy areas that we all have the best of intentions to change, and it is not outwith the scope of the bill for us to discuss doing that.
I plead with the cabinet secretary for the piece of work that she referred to. It is obviously not enough to have law, and I recognise that, even if you support the bill, the system needs to be fit for purpose, and that, if there is a notification scheme, victims will be notified. I also recognise that, although it might not be in every single case that a victim needs to know, they should know in serious cases about release at bail hearings and bail appeals. I think that there was an omission in relation to bail appeals. I would happily stand corrected, but there does not seem to be provision for notification where someone who has been remanded to custody is subsequently successful in their appeal. However, I raised the issue for that very reason.
The Presiding Officer:
The result of the division is: For 50, Against 63, Abstentions 0.
75 disagreed to.
As announced previously, we will now move to a comfort break, for 10 minutes or so. I suggest that members return around 10 to 6, but the division bell will ring to advise that we are about to recommence.
17:38 Meeting suspended.
17:53 On resuming—
I call Jamie Greene to move amendment 24 and speak to all amendments in the group.
Thank you, Presiding Officer—let me just get my bearings.
For the benefit of members who have not been following the bill, group 6 is on a section concerning time spent on electronically monitored bail. For most folks, that is commonly known as electronic tagging as a condition of bail. Section 5 as currently drafted will require judges to consider the period of time that an offender has spent on electronically monitored bail when passing a custodial sentence.
The bill states that if the court is passing a sentence of imprisonment, time spent on electronically monitored bail will be somehow equitable by the application of a prescribed formula for the purposes of sentencing.
In other words, it may lead to a reduction in an offender’s sentence if they have spent time on electronic monitoring, and the sentence is backdated accordingly to include that time spent. [
I see members coming back into the chamber from their tea break, so they will be full of sugar and rowdy, Presiding Officer, but I hope they will listen to what we have to say on what is quite an important aspect of the bill.
I have a few points to make, on which I hope we can reflect. As members will spot from the marshalled list, my colleague Russell Findlay and I have taken two quite different approaches in our amendments as to how to resolve this issue.
My first point concerns the policy context—and perhaps even the legal context—of the Government’s proposal around what the point of electronically monitored bail actually is. Electronic monitoring is commonly perceived to be a condition of bail. Indeed, a judge or sheriff may use it as a tool to avoid remanding someone in custody by releasing them on bail with such a condition.
Someone who has been bailed in that manner has not yet been convicted of any crime. They are, to all intents and purposes, an accused person. A sentence, however, is the custodial punishment given after someone has been convicted of a crime. The two are not the same.
The second point that I wish to make about the Government’s proposal is more of a moral one, rather than a technical one. The proposal goes as far as to dictate the formula that judges should use in such a scenario. The Government proposes that two days spent on electronically monitored tagging will somehow equate to one day spent in prison—in custody. I would argue that time spent in the house, at work, outside with friends or in shops with an electronic tag on is in no way the same as or equal to prison time. The formula mandates how much time judges must take off an offender’s sentence if they are going to prison. It was not entirely clear to the Criminal Justice Committee where that idea came from, where the formula came from and whether it was cooked up in research, by academics or by Government policy advisers. That is entirely unclear.
It is the moral argument that is important. For the complainer or victim in such scenarios, time spent worrying that the offender is out there with an electronic tag is in no way equal to how they would feel in the scenario where they know that the person is in custody, behind bars.
Turning to my third point, I have no idea what this element of policy has to do with the bill whatsoever. The bill concerns bail and release, not sentencing. For me, that means separate legislation. My comments and views do not stand alone on that. A number of concerns were raised with the committee and with members, as was reiterated in the briefing that we got just ahead of today’s debate. Three organisations—Victim Support Scotland, ASSIST and Scottish Women’s Aid—were very explicit and clear about section 5 and about the Government’s proposal. They said:
“Our organisations do not believe that any time spent on bail subject to electronic monitoring (EM) should count as time served.”
That could not be more simple.
They went on to write:
“The sentence received for a serious crime including domestic abuse, sexual violence or rape, should consider the severity of the crime, victim safety and victim protection, rather than time spent subject to EM.
It is suggested that time spent on bail with EM could be interpreted as being more limiting to the accused, but this is an artificial and inaccurate construction.”
Kate Wallace from VSS went further. She said:
“A custodial sentence is completely different from electronic monitoring at home, so we continue to disagree with others on that.”—[
Official Report, Criminal Justice Committee
, 11 January 2023; c 5.]
Scottish Women’s Aid was equally damning about the proposal, saying that electronic monitoring is only partial inconvenience to the movements of the accused, that it is not in any way comparable to time spent on remand, and that it should not be treated any differently from any other form of bail—which relates to my first, technical, point.
That issue came up at stage 2, as the cabinet secretary will know, and Collette Stevenson lodged an amendment—perhaps after the conversation with some victims organisations—as is the prerogative of any back bencher.
I was disappointed that she chose not to move that amendment—perhaps under pressure from the Government—when it was handed to her in good faith by those victims organisations. However, I moved the amendment and it was rejected—again, on a four/four split, which I think is quite telling. I do not blame members for bringing such amendments forward—indeed, I am sure that they were heartfelt.
If the Government insists on retaining this bizarre proposal in the bill, I have lodged two amendments to try to resolve it. Amendment 24 would mean that, when passing sentence, rather than saying that the court “must” take into account the bail period, including the period where the person was electronically monitored, the section would say that it “may” do so. That is a simple change, but it gives the judge discretion. If, in his eyes, he feels that it is appropriate to take into account the time that the person has spent being electronically monitored, he can do so, but it is not a “must” or an absolute.
Amendment 25 would remove the bizarre formula that suggests that two days spent being electronically tagged equates to one day in prison. It does not, and I think that everyone knows that. No evidence whatsoever has been given to support the use of that formula.
My amendments take two approaches; my colleague Russell Findlay’s amendment takes a third, and he will speak to it accordingly.
It is important to say that the committee felt overwhelmingly strongly about the issue. The stage 1 report made a specific recommendation to the Government, and I am not convinced that the Government has responded to it. Recommendation 228 says:
“Our view is that sheriffs and judges are best placed to determine the extent to which time spent on electronic monitoring should be deducted from the length of custodial sentences.”
We were clear that the formula does not work and is not appropriate. That was the cross-party consensus on the committee; there was no division on that recommendation.
Recommendation 229 says:
“The Committee is content that if the Bill allows time spent on electronic monitoring to be taken into account, and if the court so decides, this would be a helpful change.”
However, no such change was forthcoming—no Government amendment along those lines was lodged, so I had to lodge one.
We were clear that it is an important principle that the courts are to be given a degree of concession to determine such matters themselves, and that those matters should not be prescribed in primary legislation in the way that the Government has done.
I look forward to hearing what the Government has to say about this issue, but I think that it will struggle to defend this one.
I move amendment 24.
I have one amendment in this group: amendment 2—a small number but a big amendment, as it would completely remove section 5 from the bill.
To reiterate what my colleague Jamie Greene has just said, the bill as drafted will allow judges to deduct time off a prisoner’s sentence based on time spent on bail while wearing an electronic tag. The bill states that two days subject to electronic monitoring is equivalent to one day behind bars. That cannot be right, as a point of principle. As Jamie Greene said, bail is not a punishment. Those subject to bail are not yet convicted, and this bill is entirely about bail and release, not sentencing. I believe that those proposals could have unintended consequences that could be far reaching.
I refer to a freedom of information request covering the period from May 2022 to March 2023, which I think could be useful for members. In that time, 638 accused criminals in Scotland were subject to electronically monitored bail. They spent an average of 120 days under those bail conditions. Therefore, using the proposed two-for-one formula that is set out in the bill, they could each expect to have 60 days—two months—deducted from their eventual prison sentence. I admit that these calculations are somewhat rudimentary, but that equates to a combined reduction of 112 years less jail time. I believe that that would risk undermining public faith in justice, and it would add to an existing perception of a gulf between sentencing spin and the reality. I also believe that it would be a gift to career criminals and their creative lawyers, because surely an offender with an electronic tag would be further incentivised to postpone the trial if every delay that they chalk up would result in less prison time. I think that that risks fuelling court churn and making the court backlogs even worse than they already are. The outcome of that will be further misery and uncertainty for victims and other witnesses.
We have already heard from Jamie Greene about amendments 24 and 25, which seek to address those issues. I agree with his solutions and we are working as a team, but I see his amendments as perhaps a plan B and I think that the better solution and more efficient approach would be to scrap section 5 of the bill in its entirety.
Members should note that Victim Support Scotland supports amendment 2 and should also note something that Jamie Greene touched on, which is that a Scottish National Party member of the Criminal Justice Committee proposed a similar amendment at stage 2, citing “huge concerns”, only to not move her amendment, which we supported at stage 2.
If the Government is serious about this two-for-one deal for prisoners, it must go away and produce a properly researched and coherent argument for it, rather than taking this back-of-a-fag-packet approach.
I appreciate that this is an area in which there is a stark difference of opinion between victim support organisations and most of the others who have engaged with the bill in the past year or so.
During committee scrutiny, Social Work Scotland stated that electronic monitoring is “punitive, restrictive and intrusive” and that it is therefore
“right that the court considers this when imposing a prison sentence.”
As Jamie Greene has already said, Kate Wallace and others who oppose taking electronically monitored bail time into consideration during sentencing are of the view that a custodial sentence is completely different to electronic monitoring at home. I agree. However, I am also of the view that it is different to being on bail without any form of monitoring or surveillance. I believe that putting someone on bail and subjecting them to electronic monitoring is a not insignificant curtailment of their rights, including their right to freedom of movement and their right not to be monitored by the state, to name but two. Electronic monitoring is a restriction of liberty. Our laws should recognise that and should do so in a fair and consistent way.
Section 5 of the bill seeks to provide a new power for the court to take into account any time that an accused person spends under a relevant electronically monitored curfew condition of bail and to treat that as time served in relation to any custodial sentence.
Section 5 does that by granting discretion to the court to decide how much of any period that is subject to such a curfew condition should be taken into account. The court has complete discretion on that key question and can take into account none, some or all of that period. Once the court has decided on that, a formula is used to convert that period in a consistent and fair manner for the purpose of calculating the time-served portion of the sentence. As members have said, every period of two days spent subject to a relevant curfew from the qualifying bail period is regarded as one day of time served, should the court wish to implement that.
Mr Greene asked where that idea comes from. It is based on a very similar formula that is in operation in England and Wales. As I have explained, the court will have discretion to assess the circumstances of a specific case before it decides whether an accused person should have some, all or none of their bail period accounted for, which allows for consideration of an accused person’s conduct while they are subject to a relevant curfew condition. Clearly, any person who does not comply with a relevant curfew is unlikely to have any period accounted for in their custodial sentence. That is very much best left to the court to decide in any given case, and the bill would ensure that the court has the necessary and important discretion to do so.
The combined effect of amendments 24 and 25 would be to provide the court with the statutory discretion to account for time spent on a relevant curfew condition, but to do so in such a way that there would be no legal requirement for consistency across the country, because no formula would be set out in statute for the court to use in converting a time period that is subject to a relevant curfew condition into time served from a custodial sentence. It would lead to potential inconsistency in how the relevant time period is converted for time-served purposes and is also not how the law in England and Wales—which the bill is informed by—approaches that subject.
I therefore ask Mr Greene not to press amendment 24 or to move amendment 25. If he does, I ask members to vote against the amendments.
Amendment 2, in the name of Russell Findlay, seeks to remove section 5 from the bill in its entirety. The principle of enabling time spent on electronically monitored curfew to be accounted for at sentencing was consulted on by the Scottish Government in 2021. It was in the bill at introduction and, of course, the Criminal Justice Committee has given it due scrutiny and consideration. It is worth noting that it was supported in the committee’s stage 1 report, which said that allowing time spent on electronic monitoring to be taken into account at sentencing if the court decides is “a helpful change”, although I acknowledge that there are different views among committee members, as we have heard today.
Although a person who is subject to electronically monitored bail with a curfew condition is not in the same position as someone in custody, such a measure represents a restriction on their liberty. The bill therefore enables the court to take cognisance of that if it chooses to do so in a proportionate way when a custodial sentence is imposed. As I mentioned, the measure brings Scotland into line with similar arrangements in England and Wales, and the committee, on balance, reported favourably on it. I therefore ask Mr Findlay not to move amendment 2 but, if he does, I ask members to vote against it.
I thank members for participating in this short debate, and I thank the cabinet secretary for her comments. I want to sum up with a number of points that reflect on the point that Maggie Chapman made about the correlation between being electronically monitored while on bail versus being in custody. The whole premise of the bill, which we discussed at great length earlier, is that the Government is trying to reduce the number of people who are being remanded. One of the tools that has been proven to do that over the past couple of years is the use of electronic monitoring as a condition of bail. In some ways, it is an incentive to keep people out of custody when they can be monitored in other ways. As we know, there are many other conditions of bail.
However, it is not the same when someone has been convicted of a crime. If someone has been given a custodial sentence, there are two things to consider. First, it is quite likely to be a serious crime, given the presumption against short sentences, which rules out any form of custodial sentence for less serious crimes. Secondly, there is the fairness aspect, which many victim support organisations rightly raise. Take the scenario in which someone is on bail. As we know, there are lengthy delays to trials. There is the added element that Russell Findlay rightly pointed out, which is the issue of court churn and, in many cases, the delaying tactics that are used by the accused. It is feasible that someone could spend a tremendous amount of time on bail under electronic monitoring, only to be given a custodial sentence when the trial diet finally comes to court. The sentence would be backdated and, according to the formula, converted into a reduction. The two together could mean that someone could be given a custodial sentence—bear in mind the seriousness of the types of offences that generally result in a custodial sentence—and could effectively walk out of court that day as a result of the delay in the trial and the electronic monitoring formula.
Victim Support Scotland is right that the two situations are not the same and that there is a sense of unfairness and injustice in that. That is why I lodged the amendments.
As I said in my remarks, time on electronically monitored curfew in the community is not the same as a custodial sentence. Does Mr Greene accept that, under the bill, there is no compulsion on the court to take time on electronic monitoring into consideration and that the court has complete discretion in that matter and may choose not to implement it?
“Time spent on electronically monitored bail”, it says that,
“After section 210 of the 1995 Act (consideration of time spent in custody)”, we insert:
“When passing ... sentence, the court must ... have regard to the bail period”, and so on—it is all on page 4 of the bill. Changing the word “must” to “may” would make it abundantly clear that it was a matter of discretion for judges. If that is the policy intention, that is fine but, at the moment, the “must” is what concerns me, which is why I lodged amendment 24.
It is not entirely clear that judges have full discretion. If they did, surely they would be the ones to decide how much time should be deducted from a sentence, not a prescribed formula that is set in primary legislation by politicians. I am not convinced that they have full discretion in the matter, which is why my amendment 25 seeks to remove the formula that is stated in the bill. No evidence has been given to back it up. No equation says that spending two days being electronically monitored is in any way the same as spending a day in custody. Anyone who has ever been inside a prison to visit or to speak to people will know that it is an entirely different environment to that experienced by those who are on bail—and I understand that being electronically monitored is a condition of bail—and they will know that the two are in no way the same and that electronic monitoring is certainly not a punishment. Any victim of crime who has experienced a serious offence would be astonished to think that, somehow, somebody’s sentence will be reduced as a result of wearing a tag. A sense of fairness has been lost and that is what I am trying to reintroduce to the proposed legislation. For that reason, I will press amendment 24.