Seòmar agus comataidhean

I will start with amendment 89, in the name of Sharon Dowey. At stage 1, the committee heard very moving testimony from victims and survivors on their experiences of the criminal justice system, sharing that they felt that they did not have enough choice in how they gave their evidence. However, although I totally support the principle of addressing those concerns, I cannot support the amendment, due to its approach and the impact of how it would work in practice within the existing complex legislative framework that provides for special measures.

The amendment would give all deemed vulnerable witnesses across summary and solemn courts an entitlement to non-standard special measures. Such a significant change would create significant extra costs, have huge implications for resourcing and, crucially, strip the courts of an important function in balancing rights.

I can illustrate that with an example of non-standard special measures. Evidence by commissioner allows a witness to pre-record their evidence in advance of a trial in a more trauma-informed environment. Work is already under way through existing legislation to carefully manage the roll-out of access to pre-recorded evidence, partly to avoid overwhelming the system but also to ensure that we are appropriately prioritising pre-recorded evidence for children in the most serious cases, and amendment 89 would massively disrupt that work and place significant additional demands on the criminal justice system.

The amendment would also remove the ability of courts, when considering special measures, to balance the rights of all parties and ensure fairness for the accused, in accordance with article 6 of the European convention on human rights. In addition, the amendment places an obligation on a party citing a vulnerable witness to provide them with unspecified information about special measures. As most vulnerable witnesses are cited by the Crown Office and Procurator Fiscal Service, they already have a number of existing rights to information, including in relation to special measures, and I do not think that another statutory obligation is necessary or meaningful.

The amendment also puts the same obligation on courts, requiring them to provide vulnerable witnesses with information after a vulnerable witness notice or application has been lodged. However, courts do not routinely have contact with witnesses at that stage, so, again, the amendment would be potentially far reaching, resource intensive and significant, causing duplication, inefficiencies and delay across cases.

The amendment also duplicates existing obligations to seek the views of vulnerable witnesses on special measures. The party citing a vulnerable witness is already under an obligation to seek the views of a witness on what special measure or measures they would like to use when giving evidence.

For those reasons, I do not support amendment 89, but I understand what the member is trying to achieve, and I hope that she, and the rest of the committee, will be reassured by and supportive of the amendments in my name in group 27, which address the committee’s view in the stage 1 report that the way in which the bill provides for pre-recorded evidence in the sexual offences court fails to recognise the importance of choice for complainers. My amendments will provide more control to complainers in a targeted manner by removing the discretion of the court to require them to use pre-recorded evidence where that is not what they want. I believe that that is the right way of addressing the concerns that were raised at stage 1, which were not about a perceived lack of entitlement to special measures but about making sure that, where a complainer has such an entitlement, they are not required to use those measures, if that is not what they want to do.

My amendment 216 creates a new non-standard special measure of admitting the record of a prior examination as a vulnerable witness’s entire evidence. Currently, although some witnesses can pre-record their evidence ahead of trial, that evidence cannot be reused as that witness’s whole evidence in any subsequent separate criminal proceedings. An example of that would be when a complainer, having given evidence in one trial, was subsequently cited to give evidence against the same accused in another trial, where that evidence was being led, under the Moorov doctrine, to establish corroboration and a sufficiency of evidence for other offending.

Currently, previous recorded evidence can constitute the witness’s evidence in chief under the special measure of admitting a prior statement as the evidence in chief of the witness, but that would mean that the witness would remain subject to fresh cross-examination. Amendment 216 therefore allows for previously recorded evidence to be reused at a future separate criminal trial. That recorded evidence should be taken as the witness’s entire evidence, so that the witness does not necessarily have to be cross-examined again about their experience.

However, it is still important for the rights of the accused and for the interests of justice that an accused person can apply for the witness to be questioned further about their evidence. That questioning can be granted by the court in certain circumstances: where there are questions relevant to the proceedings that were not previously put to the witness and could not reasonably have been expected to have been put to them in their prior examination; where refusing the further questioning would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice; and where that risk would significantly outweigh any risk of prejudice to the interests of the witness if the further questioning is allowed.

Any additional cross-examination must take place at an evidence by commissioner hearing, which is a form of pre-recording of evidence that is held in a less formal environment, with the benefit of a more focused questioning, unless the court considers that an exception to that is justified in the individual case. That will ensure that the accused’s right to a fair trial is protected, while minimising the risk of retraumatisation to the witness.

Turning to my amendment 217, the Criminal Procedure (Scotland) Act 1995 provides that in situations where a presumption in favour of pre-recording of evidence applies, the court can permit a child aged 12 or over and under 18 to give evidence at their trial, rather than pre-recording it, if the child expresses a desire to do so, and if the court considers that that would be in the best interests of a child witness.

Amendment 217 would permit the court to also do that for children aged under 12, in order to further implement children’s rights under article 12 of the United Nations Convention on the Rights of the Child. Article 12 of the UNCRC requirements puts an obligation on public authorities to give all children aged under 18 the right to express their opinions on matters that affect them, and for their views to be given due weight in line with their age and maturity. If the court is unable to grant an exception for children under the age of 12 based on their wish to give evidence at a trial, it is unable to give due weight to those children’s views.

Permitting the court to grant an exception for a child under 12 does not mean that the court will be required to grant an exception, even if a child expresses a preference to give his or her evidence live. The court will still need to consider whether giving evidence would be in the child’s best interests, in line with the 1995 act and with article 3 of the UNCRC requirements, which states that

“the best interests of the child shall be a primary consideration”.

I urge the committee to support my amendments and to oppose amendment 89.

What I think that I am clearly saying is that, in the work that is done with offenders to address their offending behaviour, a very prominent strand in any assessment of someone’s rehabilitation is their attitude to their offending history. Although some of us might have thought that we were very good at that work, we ultimately have to recognise the complexity of assessing people. I have no doubt that the Parole Board, because of the way in which the rules are drafted, can—and does—take the matter into account.

My concern is that the practical effect of amendment 251 will not, on one level, have the impact that I think that you are striving for. It is the amendment that causes me most anxiety, because, at the end of the day, this is all subjective, and, in particular, I do not want to tilt the system in favour of our more socially adept, slicker-at-communicating, more deviant offenders. Of course, assessments can take account of someone’s neurodiversity and all the rest of it, but, as someone who has worked in the field, I genuinely think that this is a deeply problematic area. Of this group, it is amendment 251 that causes me most concern.

In summary, then, given the Parole Board’s capacity to address the concern where it arises, I do not support the amendment. I ask Mr Greene not to move it, and, if he does, I ask the committee to oppose it.

I very much understand the intention behind amendment 91. The committee has heard from victim support organisations and from survivors about the distress that the uncertainty of floating trials can cause. Indeed, the issue was explored in the policy memorandum for the bill.

You have also heard from the Scottish Courts and Tribunals Service that abolishing floating trials in the High Court would add, on average, 22 weeks to reaching a trial date. That was reflected in the committee’s stage 1 report, which stated:

“we do not think it is realistic to legislate to prohibit the use of floating trials completely. Instead, we recommend that the Scottish Courts and Tribunals Service should make every effort to keep the use of floating trials to the absolute minimum that is required.”

I agree with that position, and I would like to see the use of floating trials reduced, but not at the expense of people needing to wait for justice.

The courts service also recognises that there is a need for greater transparency and awareness of the use of floating trials, and I understand that it is considering ways that it could provide more information on that. It might also be worth being aware that the Scottish Courts and Tribunals Service and the Crown Office are trying to improve estimates of how long trials will run for. Two years ago, around 50 per cent of cases lasted longer than anticipated; that has reduced to 33 per cent.

It is also worth highlighting that the bill already requires the courts to consider trauma-informed practice when business is being scheduled. In the new sexual offences court, there will be a presumption that complainers pre-record their evidence before the trial, helping to reduce the direct impact that a distant or uncertain trial date has on them.

I understand Ms Dowey’s desire for greater accountability over how floating trials are used and for more to be done to recognise the negative impacts that they can have. However, I do not believe that the amendment would give us meaningful information. It would capture floating trials only in the High Court, not solemn trials in the sheriff court, which account for a greater number of trials without a fixed start date. More importantly, it would require the courts service to report every year on the impact that floating trials have on victims, but the courts service has very little direct engagement with victims and so could not report in a way that gives us any real insight into victims’ experiences. I therefore urge the committee to oppose the amendment.

I assure members that I view all three amendments on this aspect with the same seriousness. I have endeavoured to keep the committee informed of progress on the pilot, which enables free access to court transcripts for victims in rape and serious sexual assault cases. It is the first such pilot in the United Kingdom, and it has attracted interest from elsewhere.

I have been open with the committee about the challenges involved, in particular the level of demand, the need to meet our obligations under data protection law, and the current limitations of technology redaction and artificial intelligence, in particular as regards accuracy. I recognise that, in the future, there will be an opportunity for such areas to be considered as part of the pilot’s extension.

I remain mindful of concerns that have been expressed about how such an approach might see a change in behaviour, through transcripts being shared through social media. I am therefore ever conscious of ensuring that we consider any unintended consequences of our actions and that we are confident about how we might respond if those concerns were to be realised. The evidence to date does not support the concerns, but the pilot is still in relative infancy.

I have also been reassured, through the detail provided by applicants, that the reasons behind requests for transcripts accord with the Scottish Government’s wider aim of delivering a truly person-centred, trauma-informed justice system. However, some of the feedback suggests that more needs to be done. I have therefore extended the pilot for a further 12 months so that we can resolve any issues ahead of assessing changes that might be required in legislation. It is worth reiterating that I want the pilot to provide information that will support any future legislative change to the general position under the Criminal Procedure (Scotland) Act 1995, on which the three amendments in this group are founded, and the specific secondary legislation—the Transcripts of Criminal Proceedings (Scotland) Order 1993 and the Transcripts of Criminal Proceedings (Scotland) Amendment Order 1995—all of which are pre-devolution legislation.

I have already outlined to the three members with amendments on this matter that, although I do not support the amendments as they stand, I am entirely sympathetic to their aims and want to work with all of them ahead of stage 3, as there will be an opportunity to include aspects of all their intentions at that point.

Amendment 145, in the name of Pauline McNeill, would significantly increase the number of free transcripts that are being produced and create a major capacity issue for the Scottish Courts and Tribunals Service and the company whose services have been procured for that purpose. In turn, that would create a significant cost to the public purse.

However, I would like to discuss the matter further with Ms McNeill, alongside Jamie Greene’s amendment 263, which is an innovative proposal that recognises the costs that are associated with free transcripts that are paid for from the public purse. Therefore, over a longer time than we have had to consider the amendments, I would like to consider what the proposal for a regulating power, which Jamie Greene’s amendment would introduce, would look like in practice and how it could enable the aspiration of wider access that is outlined in Pauline McNeill’s amendment 145.

On amendment 179, in the name of Audrey Nicoll, notwithstanding my words of caution, I consider that there is an opportunity to build on the premise of the amendment, subject to some further refinement. I fully understand the desire to ensure certainty around the pilot and the limited opportunity that remains to achieve that in this parliamentary term. I would also like to place the current pilot on a statutory footing. It is important that we get this right and that we recognise that there might be a need for further legislative changes, informed by and evidenced from a range of areas, including those who have participated in the pilot to date.

I think that that delivers a level of cross-party consensus and, therefore, recognition of how we can deliver and acknowledge our respective positions. Noting that and that I will work with members, I ask the three members to withdraw their amendments and to work with me and collectively ahead of stage 3.

I add my thanks to members for their diligence in this area and put on the record my thanks to the many survivors whom I have met on this and other matters.

The amendments seek to achieve something that we are all committed to. They seek to ensure that victims are fully supported by the justice system and that appropriate sentencing options are available and used by the independent court to protect victims. I cannot support the amendments as drafted, but I have written to Pam Gosal, Maggie Chapman and Sharon Dowey to indicate that I am sympathetic to their clearly well-intentioned amendments and to suggest that we work together ahead of stage 3 to deliver the underlying policy aim of improving protection for victims.

The role of our independent courts in considering the need for protective measures for victims is a critical part of the criminal justice system. That role is especially relevant in cases that involve sexual offending. Mandatory non-harassment orders, or NHOs, were debated during the passage of the Domestic Abuse (Scotland) Act 2018. It was argued at that time that mandatory NHOs in all domestic abuse cases were not appropriate because the Crown prosecutes a broad range of domestic abuse cases, and removing all discretion from the court might result in NHOs being made when, in the circumstances of individual cases, they were not appropriate.

During those debates, concern was expressed that mandating the use of NHOs in all cases might risk undermining the credibility of NHOs if the court was required to make them in cases in which there was no reason to consider it necessary to do so. However, I acknowledge that the protection of an NHO will be required in a great number of cases, and the court has the power to impose an order under the existing law, but not all cases will require imposition. The court makes that judgment as part of its independent sentencing duty.

I can give the committee information on the application of non-harassment orders in DASA convictions under the 2018 act. The figures for 2024-25 thus far show that an NHO was made in 82 per cent of cases. The 38 per cent figure that Ms Gosal quoted is for offences with a domestic abuse aggravation, which has increased from 11 per cent in 2019-20.

On Ms Gosal’s amendment 85 in its current form, it is unclear how a court would go about deciding what conditions should be included in an NHO in cases in which the court’s view was that an NHO was not required to protect the victim, but the law nonetheless obliged it to make one. It is also worth noting that a court can make other protective orders in respect of some of the offences that are listed in the amendment, such as a human trafficking prevention order, a sexual harm prevention order or a female genital mutilation prevention order. One of those orders might be a better way for the courts to deal with the risk that is posed by the offender, rather than there being mandatory imposition of an NHO.

I also want to touch on a significant risk that might arise through requiring a victim to give consent for an NHO to be imposed, as there might be unintended consequences. Scottish Women’s Aid and Rape Crisis Scotland have raised that during our engagement. Although I understand why the provision is there in the context of a mandatory requirement to make an NHO, that would mean that there would be a risk that an offender might seek to pressure the victim not to agree to the making of a non-harassment order, especially in cases involving coercive control. That is not something that any of us would want to see.

Although I do not, for those reasons, support amendment 85 in its present form, I consider that there is a strong case for affording victims of offences of the kind covered by the amendment the same protections that exist for victims of domestic abuse offences. Therefore, I urge Ms Gosal to work with me on a suitable amendment ahead of stage 3.

The same arguments apply to amendment 241, in the name of Sharon Dowey, which seeks to make it mandatory for the court to impose an NHO in all domestic abuse cases. As I have said, the court is already required to make an NHO in any domestic abuse case unless it concludes that there is no need for the victim to be protected in that way. Amendment 241 would require the court to make an NHO notwithstanding its conclusion that it would not be required to protect a victim; however, in such cases, it is not clear what restrictions it would or could make in an order. There are no standard conditions that must be included in an NHO. Typically, an order could include conditions such as not contacting or approaching the person protected by the order or not coming within a certain distance of where they live or work, but it is not clear that such conditions would be applicable in cases where the court did not consider that protective measures were needed, yet an NHO had to be imposed.

Amendment 242, in the name of Maggie Chapman, seeks to make the imposition of an NHO mandatory in any sexual offence case where the victim does not take steps to indicate that it should not be made. In other words, if the victim does not offer a view, the NHO has to be made. In circumstances where the victim indicates that an NHO should not be made, the court can still make an NHO if it concludes that the degree of risk posed by the perpetrator to the victim is such that the making of the order is necessary. That second element is exactly how the current law operates, with the court having the discretion to make an NHO, even where the victim does not wish them to do so.

I acknowledge that such an approach seeks to address the concern that I highlighted with regard to amendment 85, in respect of which perpetrators could be encouraged to pressure a victim into not agreeing to make an NHO. However, in light of the removal of discretion from the courts in individual cases, I have the same concern about how the court goes about making an NHO in a case where it does not consider that it is necessary to do so, either because it does not consider that the perpetrator poses a risk of harm to the victim or because it considers that an alternative protective order might be more appropriate to manage risks posed by the offender. Perhaps I can highlight some examples of when a court may decide that an NHO is not applicable, particularly in relation to sexual offences. We might be talking about, say, an online offence where the victim was not known to the perpetrator, but the making of an order would result in their becoming known to the perpetrator.

Amendment 242 also provides the victim with a right to apply to the court to vary or revoke a non-harassment order. Under the current law, only the prosecutor and the person against whom the order has been made, as the parties to the original criminal proceedings, have that right. Again, although I do not support amendment 242 in its current form, I have sympathy for what part of it seeks to achieve, and I am confident that Ms Chapman and I can work together ahead of stage 3 and consider further whether it would be appropriate to provide victims with a right to make an application to the court to vary or revoke an NHO without having to go via the prosecutor.

I therefore urge Ms Gosal to withdraw amendment 85 and Ms Dowey and Ms Chapman to not move amendments 241 and 242 in favour of our working together on amendments on which we can seek agreement at stage 3.

Happy birthday, Mr Greene. You caused me some anxiety when you said that there were 11 amendments in the group. I put on the record that there are eight.

For clarity, I will summarise, if that would be helpful. On amendment 246, we accept in principle that that is an important issue for the consultation that will take place in August. We have the vehicle of a statutory instrument, and I hope that I have demonstrated that, without prejudging the consultation, there is a willingness to proceed thereafter. We should look at amendments 247 and 248 ahead of stage 3. The provisions in amendments 252 and 253 are not appropriate for primary legislation. I accept in principle that we should discuss amendments 254 and 255 at stage 3. Finally, I am resistant to amendment 262, on the statutory review.

I understand how difficult and emotional it can be for victims and their families when the prisoner who is linked to their case comes up for parole and potential release. I have met with a number of victims who have shared their experiences with me and told me how they feel the system can be improved to better support them though that part of the justice process.

We all want to ensure that victims and their families are informed about how and why decisions are made and to have an effective system in place for the release of prisoners that keeps victims and their families informed and supported while maintaining the confidentiality and integrity of decisions and the safety of all involved.

The issues raised in this group are deeply sensitive and so I will take time to state my reasonings on my positions.

I start with Jamie Greene’s amendments 249 and 250. I accept that there is a strength in the sentiment that has been expressed. However, I urge Mr Greene not to press amendment 249 or move amendment 250 and to instead work with me in advance of stage 3 to develop alternative drafting to ensure that the legal and operational aspects are fully considered.

The intention behind amendment 249 is that the Parole Board for Scotland

“must take into account the ... impact of its decision on the safety and security of ... any victim”

and any of their family members. The decision on whether to release a person on parole licence is a matter for the Parole Board for Scotland, which is independent of ministers. The safety of the victim and of their family members is already taken into account in existing rules regarding the consideration of public safety, which means that the Parole Board must assess when a prisoner may be released without posing a risk to the community, including a risk to victims. Amendment 249 would pose an operational challenge for the Parole Board when it comes to identifying victims who are not signed up to the victim notification scheme.

Amendment 250 would require that prison governors, when considering whether to grant a prisoner temporary release, must take the safety of the victim or victim’s family into account. There are already clear directions in the prison rules that instruct prison governors to assess the risk that the prisoner may pose a danger or cause harm to the public.

The Scottish ministers’ directions on the operation of temporary release reinforce the requirement that the governor must assess whether the prisoner might cause harm to the public. The governor must also consider the views of victims where those views are known to them.

As I said, there is a strength in the sentiment, but we should consider the effect of the amendments—legally and otherwise—in advance of stage 3. I am happy to do that.

I acknowledge the important concerns that motivated Jamie Greene to lodge amendments 256 and 257, and Sharon Dowey to lodge amendments 258 and 259. However, I cannot support those amendments today.

The Parole Board operates with the primary aim of assessing whether an individual is suitable for release, based on their readiness to reintegrate into society and on the risk that they might pose. The process is conducted carefully and with all relevant evidence being taken into account. Although transparency is important—I stress that it is important—there must be a balance to ensure that the Parole Board’s decisions, which involve highly sensitive information, are made independently and based on a thorough assessment that is given without fear or favour. It is also important to ensure that sensitive personal information about the offender and about victims and others involved in the case is not disclosed unnecessarily and does not unintentionally compromise safety.

We all very much agree on the desire to ensure that victims and their families feel informed and supported. It is absolutely essential that those who are impacted by crime can engage meaningfully with the process and we all want to ensure that they are treated with dignity and respect. However, I do not believe that the proposed changes require primary legislation. Instead, they should be considered as part of the broader Parole Board for Scotland rules. I fully intend to include consideration of the issue in the consultation on parole reform that I discussed when commenting on the amendments in group 13. One reason for that comes from some of the issues that Ms Clark touched on regarding the status of information.

I ask Mr Greene and Ms Dowey not to move amendments 256, 257, 258 and 259, and to allow the consultation to run and gather the widest possible range of views on the matter. If those amendments are moved, I ask the committee to oppose them.

I turn to Mr Greene’s amendments 251, 260 and 261. Once again, although I recognise that the issues raised in the amendments are deeply sensitive and are a cause of on-going concern for victims’ families, we must, even with regard to such emotive issues, also consider the practical and legal issues that arise.

Amendment 251 says that, when deciding whether to grant parole, the Parole Board

“must take into account any remorse shown by the prisoner in relation to the impact of the ... offence on any victim”.

I understand that Jamie Greene does not intend the measure to require the prisoner to admit guilt through that expression of remorse in order to be granted parole if no such admission has previously been made. As he says, that would clearly raise other legal concerns.

Release on parole does not depend solely on the individual admitting guilt or showing remorse for their actions. The board takes into account the full circumstances of the case, including the offence itself and the trial judge’s report as well as the individual’s behaviour in prison. The board can also examine whether the prisoner has taken steps to address any underlying issues that may have contributed to their behaviour or that could inform their future actions. In part 2 of the Parole Board (Scotland) Rules 2022, section 11 states that the board

“may take into account any matter which it considers to be relevant”.

In this context, there is already scope for the board to take account of the individual’s overall actions and behaviour when considering release. Those could, where applicable, include any expression of remorse or contrition.

I will pick up on points made by Ms Mackay and Fulton MacGregor. I can speak with some certainty on this as someone whose bread and butter was compiling parole reports and other assessments, including the old RA1-4 spousal assault risk assessments.

Remorse and empathy are interwoven into the many assessments that social workers, prison officers and psychologists make. However, the difficulty is that about 80 per cent of the prison population has, we believe, a communication difficulty, whether it be neurodivergence, a learning disability or mental health issues. Where we need to take great care is with those who can learn the language of therapy, who can absorb the language of social workers, psychiatrists and psychologists, and who can be very slick at communicating remorse, when what lies underneath it is a whole other matter and different motivations.

Also, to be blunt, I think that it is not clear how the board would assess an individual’s expression of remorse, given the subjective nature of these matters and the difficulty of applying a consistent approach across different cases.

There will always be an argument to be made with regard to how we use our resources now to impact on change. I do not demur from that, but there is also the argument that there is a very strong case to be made for having a victims and witnesses commissioner to uphold and undertake specific statutory functions—those arguments are not mutually exclusive. We should bear in mind that criminal justice agencies are independent from Scottish ministers—and rightly so. After all, we do not want undue ministerial interference in independent decision-making functions. I contend, therefore, that there is a gap that can be filled by a statutory victims and witnesses commissioner who will fulfil statutory functions that cannot be undertaken by anyone else.

I acknowledge the concerns about finance that Ms Dowey has raised consistently throughout stage 1 of the deliberations on the bill, but I contend that, although the recruitment of a victims and witnesses commissioner and the establishment of their office will, of course, incur a financial cost, making such an investment only for the post to be removed a few years later would not seem to be a wise use of resources.

My instinct is to seek consensus where I can, but, on some issues, you are either in or out. When it comes to the debate on the victims and witnesses commissioner, I remain fairly in.

I urge members to oppose all the amendments in the group.

Convener, I had finished my remarks and I did not appreciate that I had a right to reply, but I will take a brief moment to respond to Ms McNeill.

I understand the points about resources. We have to carefully consider every pound that is invested. I hope that members will be cognisant of that as we proceed through stages 2 and 3, because cost is much more of a germane factor in some of the other amendments that we will come on to.

The financial memorandum sets out that approximately £600,000 would be required to set up the commissioner’s office and that there would be approximately £600,000 in recurring costs, which is not an insubstantial amount of money. However, to put that into context, the victim-centred approach fund is £48 million and, over the past five years, the justice portfolio alone has invested £92 million in victim support and related matters. There are ways to reduce costs, although it would be up to the Scottish Parliamentary Corporate Body to do that by sharing services or premises.

Finally, I understand Ms McNeill’s point, but in order to best serve individuals we also need a robust system that is held to account.