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Seòmar agus comataidhean

Meeting of the Parliament

Meeting date: Thursday, June 22, 2023

Agenda: General Question Time, First Minister’s Question Time, Point of Order, Deconcentrating Land Ownership, Presiding Officer’s Statement, Portfolio Question Time, Education Reform, Children (Care and Justice) (Scotland) Bill: Stage 1, Children (Care and Justice) (Scotland) Bill: Financial Resolution, Bail and Release from Custody (Scotland) Bill, Decision Time


Bail and Release from Custody (Scotland) Bill

The Presiding Officer (Alison Johnstone)

The next item of business is a stage 3 debate on motion S6M-09599, in the name of Angela Constance, on the Bail and Release from Custody (Scotland) Bill. I would be grateful if members who wish to speak in the debate pressed their request-their-speak button. I call Angela Constance to speak to and move the motion. You have up to seven minutes, cabinet secretary.


The Cabinet Secretary for Justice and Home Affairs (Angela Constance)

I am pleased to open the debate on the Bail and Release from Custody (Scotland) Bill. I start by expressing my thanks to the committees that took part in considering the bill, particularly the Criminal Justice Committee for its careful and thorough scrutiny of the bill over the past year. I also thank the Scottish Government’s bill team. In particular, I want to say a special thank you to everyone who engaged with the committee and the Government during the development and passage of the bill. Their engagement and input have undoubtedly made the bill better.

I will start by summarising how the bill will make a positive difference to how imprisonment is used and to supporting the effective reintegration of people who are leaving prison.

The bill has two main purposes. The first is to focus the use of remand on those who pose the greatest risk to public safety or threaten the delivery of justice. I will discuss in a moment how the bill does that. The changes brought about by the bill will not, on their own, radically reduce the remand population—certainly not in the short term. We have all acknowledged that point on a cross-party basis, as have victims organisations.

The bill ensures that remand and imprisonment are reserved for those who pose a risk to the safety of victims and communities. There is no single solution to reduce the use of remand in Scotland, which, again, everyone in the chamber agrees we need to do. The bill is one—albeit important—part of a wider approach, along with action to address the court backlog and invest in alternatives to remand.

The second purpose of the bill is to improve the support that is provided to people leaving prison. That benefits all of us and the communities that we seek to serve. I listened carefully to the tragic examples that members highlighted yesterday of where that support has not been in place and to their descriptions of the devastating consequences that that can have. I am clear that we can do more to support people leaving our prisons and to keep them and others safe. The bill aims to do that.

I highlight some specific provisions that have the potential to bring about real and lasting change. They include ending scheduled liberations on a Friday and the day before a public holiday. They also include placing new duties on the wider public sector to engage in pre-release planning so that planning starts at an earlier point in a prisoner’s time in custody. That applies to remand and sentenced prisoners, as well as those released direct from court. Also, in establishing national statutory throughcare standards that will include remand and sentenced prisoners, we will ensure more consistent support for people leaving prison across Scotland. Taken together, those measures should lead to more people leaving custody with the support that they need in place, not just a list of appointments that they might struggle to attend.

I will focus on the concerns that victims group such as Victim Support Scotland and Scottish Women’s Aid have about the move to a single bail test and the removal of the presumption in favour of remand for certain cases. I acknowledge their concerns about victims’ views on, and perceptions of, those changes, and it is only right that I address them directly. Given the trauma experienced by victims of crime, they should and must have confidence in our justice system.

I make it clear to members that the single test of bail will allow a court to remand someone who is accused of a serious sexual offence or a serious domestic abuse offence, particularly where there is a track record of offending. Such cases are currently covered by the presumption in favour of remand and are exactly the types of case in which remand will be used under the single bail test. In fact, the new bail test emphasises that. That is because, although the single bail test recognises that remand should be used as a last resort, it makes it clear that remand is necessary where victim safety is put at risk.

That is why the bill means that the court must specifically consider the safety of the victim and their protection from harm when applying the new bail test. Importantly, the concept of harm in the bill includes physical and psychological harm. It uses the same definition as in the Domestic Abuse (Scotland) Act 2018. As a result, the bail test explicitly recognises the type of harm arising from coercive and controlling behaviour.

In addition to that focus in the new bail test, steps have been taken to further emphasise the importance of victim safety in the bill through amendments. Those include Maggie Chapman’s amendments that were agreed to yesterday to emphasise the importance of victim safety information being sought from the prosecutor when the court makes its bail decision. Parliament yesterday also agreed to amendments to require information to be collected on the use of bail in cases previously covered by the presumption in favour of remand. In the coming years, that will aid understanding of how the new bail test is operating for that category of case.

We have been open to making improvements to the bill throughout the process, while maintaining a firm focus on what it seeks to achieve. I am grateful to everyone who has provided their time and expertise to inform amendments. The bill will ensure that the use of remand is firmly focused on public and victim safety. It will also improve the opportunity for the rehabilitation and reintegration of people leaving prison. That will make a positive difference and will keep people safe.

I move,

That the Parliament agrees that the Bail and Release from Custody (Scotland) Bill be passed.


Jamie Greene (West Scotland) (Con)

Today marks the end of a long journey for the Bail and Release from Custody (Scotland) Bill. Although it seems quite technical in nature, it attracted a range of outlooks on and experiences and views of our criminal justice system. The bill will have far-reaching consequences, which we must consider. It is our duty to do so.

We face important questions about the bill. Is it in part, or as a whole, entirely necessary? Will it improve outcomes for those who interact with our criminal justice system? Will it make people’s lives safer and better? Does it increase or decrease the risk, or any perceived risk, that is posed to them? Does it produce better outcomes than the status quo?

Legislation, wherever it comes from, must, in my view, meet all those criteria to be passable in this place. In fairness, there are parts of the bill, most of them in part 2, that pass those tests. I support those parts and I welcome them. There are, however, parts that do not pass the tests.

It would be predictable, and probably quite easy, for us, as politicians, simply to divide down the traditional political lines on the bill: to oppose, for opposition’s sake, on this side of the chamber, and to resist compromise on the other side, on the wrong assumption that what is being proposed is somehow motivated by ideology. I will be honest: I find that whole approach rather depressing. That is why I approached this bill as I would any other: with an open mind, a constructive attitude and a willingness to listen—in particular to listen to those who know what the changes mean out there in the real world, rather than in the confines of a committee room.

That is perhaps why the committee’s stage 1 report was unanimous: because we got out of our comfort zone. We visited prisons and courts, and we met victims, judges and advocates, as well as staff and police and their unions. That is why at stage 1 I laid out my own thoughts, in this exact place in the chamber, as to where I thought that the bill meant well but had scope for improvement.

I have to say that, on the day, that was met with typical bombast, to which I sadly became accustomed, from the former Cabinet Secretary for Justice and Veterans; I should add that that is a direct compliment to the current cabinet secretary. That is why my party lodged 24 amendments at stage 2 and 33 amendments at stage 3.

I personally lodged 29 amendments over those two stages, and many of my amendments were drafted in conjunction with organisations such as Victim Support Scotland, Rape Crisis Scotland, the ASSIST—advocacy, support, safety, information and services together—project, Scottish Women’s Aid and so many others. When every other public service shuts its door at 3 o’clock on a Friday afternoon, those organisations are always there for victims and their families. I make no apologies for being guided by them in my approach to the bill.

Many of my party’s amendments, which sought to improve the information that is given to and received from victims in relation to custody hearings, were voted down. Our amendments to scrap the formula that equated two days electronically tagged on bail to one day in prison were voted down. Our amendment to record the reasons for why bail was granted was voted down. Our amendments to give judges the ultimate flexibility and discretion around bail, and to remove the new two-part test, which is the cause of so much concern, were voted down.

Our amendment to stop the emergency release of prisoners without the scrutiny or approval of the Parliament was voted down. Our amendment to stop the early release of prisoners on a four-year sentence after serving just 18 months of it was—guess what?—voted down. Finally, our amendment to remove section 3 of the bill, which itself removes from law section 23D of the Criminal Procedure (Scotland) Act 1995—that vital safeguard for victims of domestic abuse—was voted down too.

Nothing substantive that was asked of the Government by me, by other members and, more importantly, by those victims organisations, which pleaded every step of the way for the Government to listen, was accepted—not one amendment. It was not my amendments that were voted down—it was their voices that were shut down in all this.

I suspect that those organisations are, today, as angry as they are saddened, despite the comments that the cabinet secretary has already made—and all for what? It is so that the Government can say, “We are tackling Scotland’s remand population,” on the assumption that these changes will do so, or on the assumption that judges are wilfully sending people to prison when perhaps they should not be.

The number of untried prisoners arriving into custody has dropped by 35 per cent over the past 10 years, while at the same time, the length of time spent on remand due to backlogs has doubled. There is the remand problem right there in one statistic. Nonetheless, we ploughed on with the bill, which makes two fundamental errors. One is that the bail test should be amended, about which I and many, many others, have serious doubts, and the second is the removal of a much-needed safeguard that determines whether someone who is accused of serious domestic abuse or assault is remanded into custody or is released. Section 23D is not a buzzword for lobby groups—it is a very real protection in law that was created in response to the horrendous rise in violence against women and girls. Shame on any MSP who voted against my amendment yesterday to retain that protection.

The words of Victim Support Scotland and their friends and partners in their 11th-hour appeal to MSPs today are thus:

“The safety of victims should be at the heart of decision making. The new bail test is not sufficient to keep people safe and it does little to show victims of serious crime that their safety is being protected under the law.”

That is a devastating assessment of any bill at stage 3, in my view, and I proudly give them the last word today. I do so because it is deeply personal to me. As the only child of a family of domestic abuse, I owe so much to organisations such as those. My promise to them is this: you made it your red line and it is my red line, too. That is why I cannot support the Bail and Release from Custody (Scotland) Bill.

I ask members not to listen to me or even to their whips but to listen to the voices of those to whom this bill matters and to their own conscience. Mine is clear; I hope that others can say the same.


Pauline McNeill (Glasgow) (Lab)

I thank members of the bill team for making themselves available to the Scottish Labour team and the committee clerks for their incredible support in creating the stage 1 report. At stages 1 and 2, Scottish Labour stated that it could not support the Bail and Release from Custody (Scotland) Bill if the Scottish Government did not address serious deficiencies in the bill and, crucially, provide clarity on its purpose.

There has not been any consistency from the Scottish Government team on whether the bill’s purpose is aimed at reducing the remand population or is about something else. When the former cabinet secretary was first asked to clarify the purpose of the bill, he did not confirm that it was to restrict the use of remand, and he subsequently seemed hesitant to confirm that that was the purpose. I appreciate that, yesterday, Angela Constance, the Cabinet Secretary for Justice and Home Affairs, used exactly that language, but I need to emphasise that, right up until that point, we had been trying to clarify the purpose of part 1 of the bill.

The description on page 1 of the bill does not use such language. The policy objectives section in the policy memorandum states that the purpose of the bill is

“to refocus how imprisonment is used.”

It also says that

“the use of custody for remand is a last resort ... to give a greater focus to the rehabilitation and reintegration of individuals leaving custody.”

Although the policy objectives section says that the bill’s decision-making framework is to be

“reserved for those who pose a risk to public safety (including victim safety) or for when it is necessary to prevent a significant risk of prejudice to the interests of justice in a given case”,

it is hard to see why the new bail test will make any real difference as compared with the old one that is contained in the Criminal Procedure (Scotland) Act 1995, where there is also a presumption for bail.

Exceptions to that are provided for under section 23D of the 1995 act, but, as Jamie Greene mentioned, the Government has deleted that section through the bill. That provision means that, in all solemn cases where there has been an analogous previous conviction on specified serious offences, including domestic violence, the person must be remanded to custody unless there are exceptional circumstances. The bill removes that provision, but we do not have any evidence either way on whether keeping or removing it will make any difference to the remand population, and the deletion of section 23D of the 1995 act does not have the confidence of victim support organisations.

Last night, Victim Support Scotland, Scottish Women’s Aid and the ASSIST project urged members to vote against the bill to protect the interests of people affected by crime in Scotland. They are adamant that the removal of that vital safeguard presents a serious risk to the safety of people affected by crime in Scotland and, in particular, victims of gender-based violence.

The Scottish Government tried to explain its position today and disagreed with that assessment, but I do not think that it has adequately explained what the removal of section 23D would result in, and I do not think that it has adequately worked with victim support organisations to convince them of the need to remove that section.

Members should remember that subsection (3A)(c) of section 23D, which added domestic abuse to the category of offending, was only inserted into the 1995 act by the Domestic Abuse (Scotland) Act 2018. Last night, victim support organisations reiterated that section 23D is, in their opinion, still

“a vital part of Scotland’s commitment to eradicate violence against women and girls.”

We are all concerned about having one of the highest levels of remand population in Europe but, on the face of it, the bill does not appear to change that. One of the biggest factors, as has already been mentioned, is lengthy waiting times for court hearings, which we have tried to reduce, but that might not happen until 2026. We believe that our primary focus should be to get those waiting times down.

The Scottish Government has not given any indication of what specific reduction it anticipates seeing, although I appreciate what the cabinet secretary said about that today.

The concerns of Scotland’s judiciary, which we have discussed yesterday, have caused me a great deal of concern, too, and I am not convinced that the issues that Lord Carloway raised in his 17-page letter on behalf of the senators of the College of Justice have been adequately addressed.

During the consultation process, Lord Carloway stated that the bill introduces

“an unnecessary, cumbersome and artificial process.”

He also said that it was

“difficult to see how the proposed new structure will make any practical difference in outcomes. The overarching test, that bail is to be granted unless there is a good reason to refuse it, remains the same.”

The Scottish Government’s “Vision for Justice in Scotland” programme aims to have a justice system that prioritises the experience of victims of crime and places women and children at the heart of service delivery. Many things in part 2 of the bill on the management and release of prisoners are important, but they are not enough for us to pass the legislation today as some of that could be done without legislation.

As we proceed to a final vote, Scottish Labour believes that we must balance the interests of justice for those people who are accused of crimes with the safety of victims. A clear consensus exists among all parties that Parliament needs to do more work to change the experiences of victims. Yesterday, I tried to show, through a serious amendment, what I think is a gap in the law in relation to the notification for bail—

I ask you to conclude, Ms McNeill.

Pauline McNeill

However, the Government did not accept that either—it was quite deflating that nothing that we suggested seemed to be accepted.

On behalf of Scottish Labour, I am resolute in my commitment to victims but, unfortunately, Scottish Labour cannot support the bill.


Liam McArthur (Orkney Islands) (LD)

I commend the Criminal Justice Committee and, particularly, the small number of MSP colleagues across the parties who did the bulk of the heavy lifting with the amendments yesterday. I add my thanks to the many stakeholders whose insight and expertise has informed Parliament’s scrutiny of the bill.

As I did at the stage 1 debate, it is important to underline why I believe that reform of bail and release is necessary. Scotland’s prison population is among the highest in Europe and it is growing, which has led to overcrowding, poor conditions and problems undertaking the purposeful activity and throughcare that are essential for rehabilitation and reducing the risk of reoffending. That situation is not sustainable, nor is it safe.

The growth in the prison population has been driven largely, though not exclusively, by the numbers on remand. Despite what Jamie Greene has said—although I accept the figures that he has mentioned—the majority of people on remand are untried. Even as the population of sentenced prisoners fell during the emergency Covid releases, the remand population grew because of the backlog in our courts. As important as tackling that backlog is—Jamie Greene made that point yesterday—the problem in relation to remand certainly predates Covid.

Scottish Liberal Democrats have no difficulty with the policy memorandum when it states:

“The provisions of this Bill ... are intended to ensure that ... the use of custody for remand is a last resort”.

At the same time, a balance must be struck with the rights and safety of victims and witnesses—that was a focus of much of the attention yesterday. In that respect, I again thank organisations such as Victim Support Scotland for helping us to understand the experience of victims when it comes to the bail system. I know that they have real misgivings about aspects of the new bail test and understand why that is the case. However, some of the amendments that were passed at stage 2, and again yesterday, have improved the substance of the test and clarified the interpretation.

Consideration of victims as well as public safety is now more explicit and front and centre. I appreciate that the repeal of section 23D has caused particular anxiety, in part perhaps because of the message that that repeal is seen to send. I do not in any way underestimate the level of that concern. On balance, however, embedding victim and public safety more explicitly in a single bail test is appropriate. That said, it will need to be closely monitored, and Parliament will obviously take a keen interest in scrutinising reports that the Government must now provide.

Another area in which on-going focus will be required is the resourcing of criminal justice social work, which is set to take on an enhanced role in informing court decisions around bail and remand—that is as it should be, but it certainly cannot be achieved on the cheap. Criminal justice social work provides a way of ensuring that the court is aware of victims’ needs and safety requirements. I welcome the changes that were made at stage 3 on the basis of the amendments that I lodged at stage 2. However, with council budgets under pressure, ministers must ensure that they will the means as well as the aims in relation to the role of criminal justice social work.

Due to chairing duties yesterday, I did not take part in the debate. Overall, I was impressed by the tone of the contributions, even when opinions differed markedly. That has been reflected again so far in this afternoon’s debate. I draw special attention to the exchanges on Jamie Greene’s so-called Suzanne’s law provisions, which, although they were not agreed to, allowed for an important debate and a statement of collective intent. Like Jamie Greene, I was disappointed that proposed amendments to the emergency release powers were not agreed to. There were a number of options, and it was disappointing that none of them were taken up.

However, all in all, the bill introduces necessary reforms that can help to balance the need to address the problems arising from Scotland’s high and growing remand population with the interests of victims and the public more widely. On that basis, the Scottish Liberal Democrats will support the bill at decision time.


Audrey Nicoll (Aberdeen South and North Kincardine) (SNP)

I am pleased to speak in the debate, with most of my speech being made in my capacity as convener of the Criminal Justice Committee. I again thank witnesses, the bill and clerking teams, other Parliament staff and organisations and individuals who supported and informed our scrutiny of the bill.

It is an important bill. I want to note from the outset that, although the committee did not reach consensus on all the issues that we considered, we were able to reach an amicable view in our report on the bill. I will start where most consensus was found.

Part 2 of the bill proposes changes to the process of release, including on planning for release, accessing services and throughcare, release on certain days of the week, release on licence, powers to release early and victim notification. Committee members were clear in their support for most of the provisions in that part of the bill. Throughcare plans for prisoners and access to key services including housing, benefits, healthcare and medication on release are essential to support reintegration and avoid the revolving door of recidivism and the setting up of people to fail. As the committee heard, release planning must start on the day that someone enters prison.

An issue of particular personal interest to me is how to better support prisoners who are released unexpectedly by court, and I am pleased that the Government accepted my amendments providing ministers with a regulation-making power to make further provision in the area of release planning, if necessary.

Part 1 of the bill proposes important changes to the use of bail. It was here that committee members differed on some of the key provisions of the bill. Some members wanted the Government to be clearer about what it wanted to achieve with the bill, as has already been articulated by other members. For example, did the Government propose the changes so that bail being granted would be more likely, which would, in turn, bring down the numbers of people being held on remand, which we all agree are too high?

As noted at stage 1, the Scottish Government has not set a specific target for the number of cases in which it expects that the outcome would be different under the revised bail test. That made it harder for the committee to scrutinise the likely difference to the numbers of people being granted bail who would previously have been remanded.

We had concerns about the resource implications for the wider role of justice social work in bail decision making and whether that would, in fact, slow down the process.

There were differences of opinion on the proposal to remove section 23D from the Criminal Procedure (Scotland) Act 1995 and around provisions on the consideration of how time spent on electronic monitoring while on bail might be taken into account during sentencing.

However, despite those differences, all members agreed that there are some useful provisions in the bill that, resourced properly, will go a long way to improving the release process for prisoners. Despite our differences, the bill benefited from robust scrutiny at stage 1 and from amendment at stages 2 and 3. That is especially true in relation to part 1 of the bill, on which views among committee members differed.

I look forward to the Criminal Justice Committee undertaking further scrutiny on the legislative provisions to follow and to confirming that we have, indeed, delivered positive reform to bail and release from custody.


Sharon Dowey (South Scotland) (Con)

My party has serious concerns about the damage that the Bail and Release from Custody (Scotland) Bill could do. Regrettably, the bill is yet another example of the SNP’s soft-touch approach to justice. The needs of criminals are, once again, being prioritised over the rights of victims.

The bill seeks to reduce Scotland’s prison population, to let criminals out early and to remove restrictions that protect people from dangerous offenders. Unfortunately—I do not say this lightly—it will put public safety at greater risk. Before I get into broader arguments, I will outline the specific sections of the bill that deeply concern us.

Section 2 makes it more difficult to remand an accused offender in prison. Section 3 removes some restrictions on bail being granted in the most serious of cases that are heard by juries, such as cases involving violent, sexual and domestic abuse offences. Section 5 allows time spent on electronic monitoring to be deducted from an offender’s sentence. Section 7 allows SNP ministers to release prisoners for up to six months at a time, even before the Parole Board recommends release. Section 8 allows SNP ministers to release prisoners early, before the end of their sentence, without parliamentary approval. We have raised issues with those sections throughout the bill process, yet the SNP has refused to make the necessary changes to improve the bill.

If the bill is passed, what impact will it have? First, it will not deal with one of the main sources of the problem. Scotland’s remand prison population is high largely because there is such a large court backlog. A recent Audit Scotland report said that the backlog will not be cleared until March 2026. Instead of tackling the root of the problem by working to clear the court backlog, the SNP Government is trying to take the easy way out by seeking to empty prisons.

That approach will have profound consequences. The increased risk to public safety is so clear that it is stunning that the SNP Government does not recognise it. One in four crimes are committed by people who are on bail. In the most recent year for which we have data, that amounted to 15,724 crimes and offences. Those figures include the most serious crimes, from rapes to murder. Despite that, this SNP law will release even more criminals on bail and will cut time off prison sentences that are already short. That is not justice.

Statistics tell only a small part of the story. Specific cases are more enlightening. A few years ago, Robbie Smullen stabbed Barry Dixon in the heart and killed him. Barry was 22. A witness in the trial said that Smullen was not upset afterwards; he was bragging about it. Barry Dixon’s murderer was on three different bail orders when he committed that vile crime. Barry’s aunt, Jade Taylor, said:

“It’s as if it’s acceptable for our children and loved ones to be collateral damage because of policies they have put in place simply to save money. We are talking about murders, rapes and serious assaults that would never have happened if the monstrous individuals responsible were remanded in prison instead of repeatedly being granted bail while continuing to offend.”

The Government must reflect on the words of Barry Dixon’s family. It must consider the horrific and tragic consequences that can come from letting criminals walk the streets freely on bail. If the Government carries on with the bill, it could increase the risk to public safety, it could result in more victims and more broken families across Scotland, and it could stack the justice system even more in favour of criminals.

I urge colleagues across the chamber to think again and vote against the bill.


Carol Mochan (South Scotland) (Lab)

I think we can all agree that giving greater focus to reintegrating people into society when they are released from prison is a worthwhile and essential cause. Reforming how we utilise remand is key to that, and I am supportive of all efforts to do so, provided that they effectively achieve that aim.

Sadly, on balance, I do not believe that the Bail and Release from Custody (Scotland) Bill achieves that aim. I say that because, at times, it has been difficult to ascertain what the Government is seeking to do with the bill. My colleague Pauline McNeill articulated how clouded some of the Government’s explanations have been during the bill’s progress through Parliament.

In particular, Scottish Labour would like to see more evidence that the Scottish Government is committed to, and is able to financially resource, the shift towards alternatives to custody. The Government seems to miss the point that much of what we all hope to achieve needs the resources to achieve best practice, rather than additional layers of bureaucracy.

We really cannot say with any clarity what the intended purpose of the bill is, what effects it might have or how it will be delivered. To put it simply, the bill does not seem ready. There is important work to do and I do not doubt the good intentions. I say that genuinely. The cabinet secretary was clearly engaged yesterday. She was very considered and took individuals’ responses seriously. I was impressed by how much she engaged with parliamentarians from across the chamber during our stage 3 discussions, and I thank her for that.

I was not involved in the committee stages of the bill process, but the papers that I have read suggest that we require far more research detailing why Scotland has so many people on remand and what the specific causes of that are. Some of that may be due to the case backlog caused by Covid, but the number of people on remand was stubbornly high even before then. The Criminal Justice Committee has sought to shed light on those issues, but it appears that the Government has decided to push ahead with the bill regardless. It is clear that the committee wished for a better understanding of how the provisions in the bill will bring about change.

We do know, as others have said, that Scotland has the highest remand rates in Europe, which cannot be allowed to continue. Will the bill decrease the number of people on remand? Unfortunately, we do not know. I believe that the only way that we could have said that with any clarity would have been if the data suggested by the Criminal Justice Committee had been pursued by the Scottish Government, but the Government did not seem to support efforts to do that.

We know from the testimony given to the committee that organisations representing victims, victims’ families and victims themselves do not have confidence in the bill, nor do many judges and criminal justice organisations. In fact, I have rarely seen a bill reach this stage following so much criticism from expert groups. I urge the Government to think far more carefully about victims’ experiences and concerns and to consider how the bill, in its final form, can be sustained in the long term if it passes into law. Those voices must be heard.

Judges will be required to register their reasons for refusing bail. It would be useful to have that data, but it is unclear why that cannot be done without the legislation. My colleague Pauline McNeill explained that much better than I can, because I am not heavily involved in that particular field, but the legal profession seems to be saying that there is much that can be done without having to put legislation in place. That is my understanding.

Please conclude.

No bother.

I support the position of my colleague Pauline McNeill, but, on balance, I am unable to support the bill.


Maggie Chapman (North East Scotland) (Green)

I begin by thanking all the parliamentary staff, from security and catering to the official report and chamber desk teams, who worked until after 10 pm last night to enable us to complete discussion of all the amendments.

I welcome the provisions in the bill and am grateful to both the former and current cabinet secretaries for the constructive conversations that we have had. I thank the Criminal Justice Committee, clerks and the bill team who have worked so hard on all the details, and I am very grateful for the input of victims and survivors, and the organisations that support them, for all their contributions.

I refer colleagues to my entry in the register of members’ interests.

This is a complex and technical bill that has required much work and has rightly received much scrutiny. Fundamentally, the bill is about reducing harm—both the harm done to the victims and survivors of violence and abusive crime and the harm experienced by people who are accused or convicted of crime. This is not a zero-sum game. Effective, human rights-based justice means that there will be justice for everyone, and everyone benefits when we get it right.

Scotland has not got it right so far, especially not for women and girls who have experienced gender-based violence. Far too often, they have been treated with insensitivity and disdain by the criminal justice system, denied vital information and placed in situations of distress and danger. I therefore entirely understand the concerns of individuals and organisations who are worried about the repeal of section 23D of the 1995 act, which contains the presumption against bail. In a society of embedded misogyny with a justice system that has repeatedly failed women and girls, I know how vital it is to have appropriate safeguards.

However, section 23D has not always been an effective safeguard for all survivors of gender-based violence and domestic abuse, and its broad application, including to non-violent drug offences, prevents courts from making bail decisions based on genuine safety considerations. The bill specifically has those considerations at its heart. Critically, it says that what matters is that both actual and potential victims are protected from harm. Properly implemented—and we are determined that it should be properly implemented—the bill should be far more effective than section 23D in keeping victims and survivors safe.

We know that prison is not a safe place. It is not safe for those who are incarcerated, including, as we discussed last week, women who have themselves experienced violence and abuse, and it is not safe for society—for the communities and families that receive people when they leave prison. For the sake of those communities, we need rehabilitation and reintegration to be deep-rooted realities and not pious pipe dreams. Prison makes that much, much harder.

It is not soft, then, to demand more effective forms of justice; it is simply common sense. If we recognise that prison is not a good place for the defendant or for society, then refusing bail should be absolutely the last resort. That is why cumulative tests are more appropriate than alternative ones. Let us not forget that people who are considered for bail have not been found guilty. To curtail someone’s freedom without trial rightly requires a substantial hurdle to be overcome.

In the same way, the restrictions and humiliations of electronic monitoring should not be lightly imposed or blithely disregarded. Electronically monitored bail is not full freedom, and that needs to be recognised in any subsequent sentencing. It is entirely appropriate for the bill to make that principle clear.

The bill is an important step on the journey towards a fairer and a safer Scotland—one in which the criminal justice system, which so often acts to reinforce trauma and inequalities, instead works to counter, redress and heal them.


Fulton MacGregor (Coatbridge and Chryston) (SNP)

Scotland has one of the highest remand populations per head in the world. A claim is often made that Scotland is soft on crime, but our use of prison and remand would suggest otherwise. The main purpose of the bill is to help to reduce the remand population and create a greater focus on the rehabilitation and reintegration of people leaving prison in order to help them to resettle in their communities.

Both the Criminal Justice Committee, of which I am a member, and the Scottish Government see refocusing the use of remand as a key priority. The committee noted that short periods of custody can often be detrimental, especially for those who have not yet been convicted of an offence. Early last year, the committee unanimously supported a reduction in remand. That is in line with the conclusions of the Justice Committee in the previous session of Parliament, of which I was also a member. It noted that remand should be used only as a last resort.

We have acknowledged that remand is and will always be necessary in some cases, but the bill provides that, for the first time, the court should specifically consider victim safety, including the risk of both physical and psychological harm to the alleged victim, when applying the new bail test. That was strongly supported during our evidence gathering. To allay any fears, statutory exclusions will prevent specific groups of prisoners from being considered under any early release process and prison governors will retain a power to veto the early release of any eligible prisoner where it would present a known risk to a specific individual.

The bill also aims to create a greater focus on the rehabilitation and reintegration of people who are leaving prison in order to help them to resettle in their communities. We found that short periods in custody, including on remand, can be quite detrimental to effective rehabilitation.

Those short stints in custody also do little to address the underlying causes of offending. During stage 1 evidence, Fergus McNeill made the point very clearly that they can also increase the chances of reoffending on release. Short-term imprisonment can and does disrupt families and communities, adversely affecting health, employment opportunities and housing—the three things that, in a stable situation, are critical in preventing reoffending. A justice system that more effectively addresses the reasons why people offend and provides greater opportunities for rehabilitation benefits everyone and will lead to fewer victims in the future.

We have heard that part 1 of the bill requires the court to give justice social work the opportunity to provide a report when the court is considering bail. Although we know that that often happens, it is clear that it varies by court and across the country. At this stage, I should refer members to my entry in the register of members’ interests; I am a registered social worker.

The committee spoke to social work and other organisations ahead of our stage 1 report, and it is fair to say that we need to match our ambition with funding. We have increased the criminal justice budget a bit, but to do the provisions in part 1 right might take even more resources. Savings might be able to be found via a reduced prison population. More workers in court social work teams will allow for more detailed assessments and more joined-up working, allowing voices of victims and third sector organisations to be heard, which we all think is important.

I want to touch on the removal of section 23D of the Criminal Procedure (Scotland) Act 1995, which was debated at length yesterday. I would like members to know that our committee spent a lot of time on that, as the convener has referred to. I will read from our stage 1 report briefly, as it probably summarises the position best:

“The Committee has been acutely aware of the concerns expressed by organisations representing victims of crime regarding the proposal to repeal section 23D. The Committee has explored with a number of witnesses what the impact of the repeal of section 23D will be and how, in practice, it will impact on bail decisions. The Committee notes that there appears to be a view from many observers that the removal of section 23D would not impact on how the courts take into account the safety of victims. Furthermore we heard arguments that the removal of section 23D could bring some advantages in terms of better decisions by courts as it would allow judges to exercise a degree of discretion.”

That perhaps sums up the issues around section 23D.

I see that you are asking me to conclude, Presiding Officer. I wanted to elaborate on section 23D, but I will conclude by saying that I fully support the bill and ask members to vote for it at decision time.

We move to winding-up speeches.


Katy Clark (West Scotland) (Lab)

I am pleased to close the debate on behalf of Scottish Labour. We wish to see a reduction in the use of remand in Scotland, a greater role for alternatives to custody, more justice social work involvement and better throughcare. However, we do not believe that the significant concerns about the bill that have been raised with the Scottish Government by the judiciary and victims organisations have been addressed, or that the bill will achieve its policy aims.

We accept the view of many legal practitioners that the lack of a definition of the new public safety test in the bill will lead to more uncertainty and appeals. We note the strong opposition to the bill from Scottish Women’s Aid, ASSIST and Victim Support Scotland and their concerns about the implications of removing section 23D of the 1995 act.

Although we have heard conflicting evidence on the wisdom of removing that section, we do not understand why the Scottish Government is lowering the threshold in those most serious cases where the accused has analogous previous convictions, as those are the cases where remand is most likely to be appropriate. Indeed, it was as a result of bail being granted in such a case that those provisions were originally enacted, when the accused who had been granted bail then committed offences of abduction, rape and murder.

We have repeatedly asked the Scottish Government for examples of what kind of accused who are currently remanded would be granted bail if the bill passes, but that detail has not been forthcoming.

We believe that there continues to be a lack of robust alternatives to remand available to the courts, and we support the development of more forms of supervised bail. Electronic monitoring has been less used in recent years in Scotland compared with other jurisdictions, and we believe that there is great scope for greater use of electronic monitoring as a bail condition to avoid remand. However, having spoken with Victim Support Scotland, we share its concerns about the current lack of tracking and monitoring that is associated with electronic monitoring, and we support the need for GPRS systems, so that there can be tracking.

We also share the concerns of legal practitioners with whom we have spoken about the lack of a definition of the public safety test in the bill. At stage 2, I lodged some probing amendments with potential alternative wordings and called on the Scottish Government to provide a definition. However, we have accepted the advice of those in the legal profession who believe that it is safer to retain the current bail test, which is settled law, and which, of course, provides a presumption in favour of bail in most cases.

We remain unconvinced that this bill will achieve its aims with regard to reducing the remand population, and we believe that many of the concerns that have been raised are legitimate. Although there is much that we agree with in part 2 of the bill, most of those provisions do not require legislation and could be delivered now by the Scottish Government within the current legislative framework. For those reasons, we will not support the bill in the final vote.


Russell Findlay (West Scotland) (Con)

I begin by thanking everyone who gave such insightful and informative evidence to the Criminal Justice Committee, and I also thank our team of clerks for their hard work.

An essential role of the Government, the Parliament and, indeed, us as members is to prioritise the safety of the people of Scotland. We should strive to ensure that people not only feel safe but are safe, whether they are at home, on the street, in the workplace or at school. However, every day, we hear distressing accounts of crime in our communities. Those can include the most depraved and devastating acts of violence. Those crimes are committed not just against adults but against the most vulnerable: the very youngest of children and our cherished senior citizens. Those events can be life changing and, of course, sometimes life ending.

I believe unequivocally that survivors deserve justice and that we have a duty to ensure that that is what they get. On many occasions, however, that is not what they get. Too often, the initial pain and shock of the original crime is compounded by the justice system. We keep hearing the same stories from survivors who feel disrespected, isolated and unimportant. The word “betrayal” is often used.

One of the most important stages in the process is at the very beginning, when an alleged perpetrator is arrested by the police. The bill that we are about to vote on seeks to change the law relating to what happens at that critical juncture: is an accused person remanded in custody or released on bail?

In the very short time that I have, it would be impossible to rehearse every detail of the bill’s passage since its introduction last June, but some important contributions and observations must be revisited. The Government’s apparent intention for this law is to reduce the number of prisoners on remand. However, my colleague Jamie Greene has cited data showing that the number of prisoners being remanded has plummeted over the past decade. That revelation alone debunks and demolishes the Government’s entire justification for its legislation. Incidentally, that is exactly the kind of crucial information that was withheld from the committee.

Throughout the passage of the bill, there has been a background drum beat. Some campaigners suggest, often implicitly, that old-fashioned judicial attitudes are to blame for Scotland’s high remand rate. This morning, a BBC television report reflected that narrative by saying that remand will now be used only as “a last resort”. Anyone who has spent time inside a court or spoken with practitioners will know that that is what already happens. Bail is always the default position. Sheriffs remand someone only after full and careful assessment of the individual circumstances of the case.

Mr Greene’s statistics also confirm what many have suspected—that there is a more fundamental problem, which is that Scotland’s stubbornly high remand rate is actually due to a failure of the Government to properly fund our criminal justice system. It is little wonder that Scotland’s most senior judge, the Lord President, gave the Government’s plans such short shrift. He described its consultation as “a tick box exercise” that

“is simply an unacceptable way to deal with complex issues of such societal importance”.

There was a similarly scathing take from the Scottish Police Federation, which posed the question: what exactly is the problem that the bill is trying to fix? I wish I knew. Why do we need a law that will tie the hands of sheriffs and make their ability to remand even more difficult? Again, I wish I knew.

Last night, as we tangled with 90 amendments, three prominent victims groups, including Scottish Women’s Aid and Victim Support Scotland, issued a press release that urged members to vote against the bill. They said that that is necessary

“to protect the interests of people affected by crime in Scotland”.

As MSPs, we have a choice. Do we prioritise the needs and the protection of victims, or do we instead seek to make life easier for those who commit crimes? I believe that that, essentially, is the choice that is before us today, and our party will make the right choice.


Angela Constance

I once again thank all members for their contributions throughout the journey of the bill. I think that we have, by and large, demonstrated that we can disagree agreeably. However, I point out to colleagues that the vast majority of the Government amendments that I lodged at stage 2 and stage 3 were in direct response to requests and comments from members of Opposition parties and victim support groups. I reassure members that, even though at times we will disagree and divide, I will continue, even where I have to make decisions, in that spirit of co-operation.

I also once again thank my bill team, which has had a lot to put up with, not least a new Cabinet Secretary for Justice and Home Affairs.

Most of all, I thank all the organisations, including victim support organisations and other justice stakeholders, that have agreed or disagreed with the Government in whole or in part. It is important to acknowledge that numerous pieces of written and oral evidence were submitted to the Criminal Justice Committee that spoke in favour of the bill and its overall aims or specific parts of it, such as that from Professor Fergus McNeill and Sheriff Mackie of the Howard League Scotland. There was also commentary from Social Work Scotland and Community Justice Scotland.

I point out to members the progress that we are making in tackling the court backlog and the progress that has been made on the roll-out of bail supervision schemes. That is now evident in 30 local authority areas.

There is no doubt that we have all wrestled with big questions and hard decisions for Government, Parliament and, indeed, our country. Nothing is more important to me than public and victim safety. I know that I do not have a monopoly on that concern and that we all share it, even though we may disagree on how best to achieve that.

This is the first time since 2007 that the bail test has been significantly reformed, so it is inevitable that it has been at the centre of the debate. I believe that, in simplifying the bail test and embedding public and victim safety in all cases, we have strengthened it in shifting the focus rightly on to those who present the greatest harm. It speaks directly to those solemn cases that section 23D sought to address.

Although no bill is a magic bullet, this bill will move us forward in refocusing on what and who incarceration is for. Prison is for punishment, but it is also for rehabilitation. It plays a vital role in public protection, but it can also be an incubator for risk. The evidence shows that short periods of remand can be particularly damaging and it can disrupt the very things that prevent reoffending: a home, health, work and family. As we proceed in partnership and in the spirit of debate, support and scrutiny, I have no doubt that we will come back to the issues in and around community justice services.

There is a bigger prize here if we have the courage to make some of those hard decisions, and Liam McArthur spoke to that. Our collective challenge is that, if our prisons continue to deal with a high number of highly vulnerable people who services and society have not served well, our prisons and the justice system as a whole will be less effective in identifying and managing those who present the greatest risk. That is not in the interests of victims or of the communities that we all seek to serve.

Will the cabinet secretary give way?

Angela Constance

I will not; forgive me.

I want to finish where I started. This is not the end of the journey—far from it. However, it is a journey that we must be prepared to continue. The Government will come forward with other legislative plans and non-legislative plans, and I am sure that other members will also do so. If it is passed tonight, the bill will introduce a new bail test that puts public and victim safety at its core. For the first time, our courts will be required to consider the physical and psychological safety of victims. It will end Friday liberations, and for good reason. It will place statutory duties on wider public services to prepare prisoners for release. It includes measures to help remand prisoners. For the first time, there will be statutory throughcare standards. It extends the provision of information about prisoner release to victim support organisations. It gives us more tools to support rehabilitation and reintegration. It gives more safeguards, more consultation and more review and reporting.

I recommend the bill to members. All its actions will help to reduce reoffending and make our communities safer.