Seòmar agus comataidhean

:The whole issue of digital evidence is one where the legal system has fallen behind technological advancement. The petition’s ask is that digital material should be capable of being independently authenticated. It is an eminently sensible and, I would have thought, necessary part of any evidence that it can be authenticated as genuine and not manufactured, or otherwise inaccurate or wrong. Therefore, the petitioner’s ask is, in principle, correct, but in practice it perhaps requires the Lord President to introduce rules of court that analyse the role of digital evidence, in what circumstances it would normally be expected to be applicable, in what format it should be provided and how it can be authenticated, so that there is an open and clear set of rules, guidelines and regulations.

I think that the petitioner made a supplementary submission to us in the past couple of days. Although his original ask was perfectly sensible, if we close the petition, he might reflect on whether he wishes, in a further petition, as Mr Torrance talked about, to open up the issue a bit and extend it to a more comprehensive ask than the one that is set out in the current petition.

I am trying to set out a possible course of action, in case that is of interest to the petitioner, although I respect that he has gone through a nightmarish experience, including leading to his entertaining suicidal thoughts at one stage, as he said in his submission.

:Even the petitioner, in his submission of 10 February, has referred to the lack of a guarantee that concerns about digital evidence will be

“examined, addressed, or learned from”.

He has gone beyond merely requesting authentication; he has asked for a more comprehensive set of rules and regulations to be developed by the Lord President—or it might be somebody else, if I have that procedurally wrong.

The petitioner has, in effect, asked in subsequent submissions to extend, amplify and expand his original ask. We are probably all a bit hesitant about asking petitioners to do more work if they have already done so much, but I get the impression that the petitioner is not afraid of spending time on advancing his case given that he has been a frequent respondent since the petition was lodged. I imagine that the petitioner is happy to do that work and I certainly encourage him to do so. That would be better than just restricting him to the petition’s original ask, because the new committee would have a much wider remit on the matter. This discussion has perhaps teased out that something pretty comprehensive is needed.

I have perhaps been unfair to the Scottish Courts and Tribunals Service, which was not my wish because I do not claim to be an expert on the matter. None of us on the committee is an expert but we are a voice for petitioners. The SCTS might have done work that I am unaware of, and I apologise to it if that is the case. On the other hand, it does not currently look that way, so I suggest that we thank the petitioner. He has brought focus to a very important area, because more and more cases will be determined by digital evidence as digital technology supersedes previous forms of communication and information gathering.

:I concur with what the convener and Mr Torrance said. I find the bureaucratic approach almost comical in its absurd complexity. There has been a complete failure to exercise any discretion in favour of people who plainly merit it, even when, as Rhoda Grant points out, extensions have been supported by a citizens advice bureau, specialist autism advocates and formal medical certification. The lack of the exercise of discretion seems to be quite perverse, and it is just everything that is wrong about bureaucracy.

I do not know whether the SPSO has any regard to anything that is said here, but this is just not right. The ombudsman is paid for by the public; it needs to serve the public and it needs to be sympathetic to the public. That is what it is there for. That is what it was set up for—not to engage in endless navel gazing about exploring possible means of possibly reporting a statistical outcome to the Parliament. What pettifogging nonsense. Why does the chief executive not get a grip of that organisation and start to serve the public better? I hope that that is fairly clear.

:I agree—the petition should be closed. There has been quite a swift response to the petition, in comparison with others, which is to be welcomed.

The response was that Food Standards Scotland will discuss options for packaging-based consumer protection measures, which is reserved to the UK Government. Obviously, the petitioner can quite legitimately write to the chief executive of Food Standards Scotland at any time and ask what the outcome of the discussions has been. If that does not lead anywhere and the petitioner remains dissatisfied, she can point to what was supposed to happen, according to the Scottish Government, and the fact that it has not led anywhere. That is an obvious route for the petitioner to pursue ad interim if she is so inclined and wishes to do so.

I thank her for bringing the issue to the committee, because it affects between 1 and 6 per cent of the population. There is a latex allergy in my family, so I know that it is quite a serious thing for those people who have it. It has not registered much on the radar up until now, so it is good that the petitioner has enabled focus to be brought to the issue.

:I concur with what the convener and Mr Torrance said. I find the bureaucratic approach almost comical in its absurd complexity. There has been a complete failure to exercise any discretion in favour of people who plainly merit it, even when, as Rhoda Grant points out, extensions have been supported by a citizens advice bureau, specialist autism advocates and formal medical certification. The lack of the exercise of discretion seems to be quite perverse, and it is just everything that is wrong about bureaucracy.

I do not know whether the SPSO has any regard to anything that is said here, but this is just not right. The ombudsman is paid for by the public; it needs to serve the public and it needs to be sympathetic to the public. That is what it is there for. That is what it was set up for—not to engage in endless navel gazing about exploring possible means of possibly reporting a statistical outcome to the Parliament. What pettifogging nonsense. Why does the chief executive not get a grip of that organisation and start to serve the public better? I hope that that is fairly clear.

:I can see that the circumstances are tragic for the petitioner—

:I think that SEPA produces maps at such a precautionary level of risk that the whole of Scotland might as well be shown as a flood risk, apart from perhaps Ben Nevis, where the affordable housing opportunities are somewhat limited.

Developing the houses in my constituency took about 10 years of heart‑rending struggle by a local builder, who could have built luxury houses, sold them off and made a big profit. He had received permission for such luxury houses in exactly the same area, but he was then denied permission for affordable housing later. It was only because of his persistence and a favourable decision from Mr Ivan McKee that those affordable houses were built. In rural Scotland, it is very hard to find anywhere to build affordable houses.

I think that the family, ably assisted by Jackie Baillie and others throughout, have done a great thing in the circumstances, which are absolutely tragic in respect of their daughter. The health secretary met the family and provided a written submission as recently as 6 February, which is not only very detailed but indicates that progress has been made in dialogue with the UK about introducing something similar to Jess’s rule, where someone presenting three times should be recognised and treated and not downgraded in the way that tragically happened in their daughter’s case. Secondly, six rapid cancer diagnostic services are being established. I wonder whether that progress would have happened had it not been for the work of the petitioner and the deliberations of this committee.

That progress means that, if the family or others wished to pursue a new petition, the aim would be slightly different—it would not be to start climbing the hill but to get to the summit, where they nearly are now, if you see what I mean. Therefore, the reframing of a petition in the new session of Parliament could focus on and acknowledge the progress that has been made, rather than fight that part of the battle that has already been won.

Although I think that Mr Golden is correct in saying that the petition can be closed today, it can be closed with honour, having had considerable success, and within sight of the summit, in metaphorical terms. It would be simple for the family to submit a new petition, assisted by Ms Baillie, assuming for the moment that she is back with us in the next session of Parliament.

:Why not?

:—and that the shroud of mystery surrounding the death of his son will linger for ever.

Obviously, the petitioner’s desire is for there to have been a proper, thorough inquiry and investigation into the situation, conducted by an independent judicial authority in Scotland. It need not be said again—I do not need to lecture the petitioner about this, because he has heard this on many occasions—but there are extreme evidential hurdles in any such work concerning something that happens in another jurisdiction. I understand from the evidence that, normally, for there to be an investigation here, there needs to be the agreement of the host jurisdiction where the death occurred. I understand that Lord Cullen enabled the conduct of FAIs here, but said—to the extreme anger of the petitioner, frankly—that those “might be exercised rarely”. I think that the petitioner’s view was that the word “might” was doing an awful lot of heavy lifting.

I think that the petitioner might now wish us no longer to focus on the definition of “ordinary residence”. The responses that we have had from the cabinet secretary, the Lord Advocate and the police have been clear that the issue is reasonably well understood and settled; it is rather that the petitioner wants there to be the capability of having investigations. It may be that that is not hampered so much by the definition of “ordinary residence” but by the fact that the processes in Scotland are so different.

I would be interested to hear whether Ms Baillie thinks that that is a fair point—I am trying to pursue the matter fairly and rationally, to the benefit of the petitioner.

However, it may well be that the petition could be reframed to focus on the desire to have a similar process to the post-mortem procedure in England, which, although different, may have offered a relief and remedy, had it been applicable in Scotland. That issue has not been fully examined and explored.

In short, this is a case, as with the previous petition, where the petitioner has achieved clarity and focus of the sort that just would not have happened otherwise. There is not a shadow of a doubt about that. This clarity has resulted only because of the persistence, determination and guts of the petitioner, who has been assisted ably by Ms Baillie.

I do not know why it is that Ms Baillie seems to get all the most tragic cases, but there we are. That may be a curious psephological fact.