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It could be a mix.

The policy note says that the financial impacts are

“anticipated to be unchanged as a result of the implementation of restitution orders.”

Is that possibly why there have been only 103 restitution orders?

I will follow up on what you talked about, Tracey, which has also been a running theme. We have all these documents and strategies and lots of things that we are doing really well but the prison regime is completely overcrowded—we are not unusual in that in Scotland, because England has the same problem. That overcrowding is stressing out the staff who run the services and is impacting on prisoners, most of whom, according to the survey, do not even get out of their cells for more than an hour a day and some of whom are doubling up—I do not know what that looks like, but that is the regime in which we are operating—so it is not easy. You said to Sharon Dowey that there is no consistency there.

It is shocking that a prisoner who has opted to go on a programme and is in recovery could be transferred to another prison, when everybody wants that recovery, including the community and the individual. That begs the question that I will ask Tracey first: instead of all the endless documents, is it time that prisoners had a categoric right to continue their rehabilitation or recovery? I am sure that other members feel the same. I get many letters from prisoners about the waiting list for rehabilitation. They cannot get on the list and they say, “I want to do things to get into recovery.” Is it time to take a different approach?

Cabinet secretary, I just want to check that I have understood what you said about what the courts can do. I agree that there should be more encouragement to use the orders, but the Scottish Government policy note says:

“We anticipate that in a given situation the level of financial penalty imposed by the courts is likely to be the same regardless of whether it is a restitution order or another financial penalty such as a fine. The financial impact on the offender and their family, and any resulting impacts, are therefore anticipated to be unchanged as a result of the implementation of restitution orders.”

My reading of that is that, if a court were considering applying a restitution order, that would not necessarily be in addition to a fine, so that would not be a barrier. However, I thought that you said that it can impose both. Did you mean that if it does impose both, the financial penalty should not be higher than it would have been had the court applied only a fine?

If I understand our papers correctly, the anticipated result of the order should be such that the financial impact on the offender would not be greater than it would have been, albeit that a mix is being used. I will just read from the policy note again:

“The financial impact on the offender and their family, and any resulting impacts, are therefore anticipated to be unchanged”.

Does that mean that, even though the courts could impose a fine and a restitution order or a compensation order, there are not three separate figures? In other words, there is potential for the overall amount to be three times as much as it would have been if only a fine been imposed. If that is right, are you saying that the overall amount of the three figures should not be higher? If the courts could do that, and the overall cost to the offender would be higher, that would impact on the ability to collect the fine.

Any information that any of the panel could provide on that would be helpful. We need to know where the system is not working for the purposes of the report.

I will ask about remand prisoners. Around a quarter of prisoners are on remand. Does that need to change? The committee understands the subtle and important difference in how remand prisoners are treated, because they are innocent until proven guilty and they are waiting on a trial. Many of them will be on drugs—although they were not on drugs when they went into prison—and some will not be. There is a combination. Do we need to change anything in relation to how remand prisoners get access to drug treatment?

A mother has written to me because, if her son is released—he might still be remanded but he may be bailed—she knows that there will be a vicious cycle. There is very little chance, or far less chance, of getting a person into recovery because of all those things. I appreciate you giving that example.

As you said, cabinet secretary, whether to impose restitution orders is a matter for the courts to decide. We have heard that there have been 103 such orders and that in a given case the court can impose either a fine or a restitution order. From what I have read, it seems that the amount of any restitution order should be broadly the same as that of any fine that the court might have imposed. Does that mean that the courts have complete freedom to decide which of those options they want to apply? Is there guidance on when a restitution order should be used, or are there any criteria for that?

I had not appreciated that a restitution order could be imposed as well as a fine. I have not looked recently at the repayment figures for fines. I know that, in the past, there have been problems with collecting fines—I do not know whether that is still the case. I would think that someone’s ability to pay might be a consideration. If a court imposes a fine and is thinking about making a restitution order, presumably it would use some kind of self-imposed criteria to decide whether the offender could afford that, otherwise we would not get the return on it.