Seòmar agus comataidhean

Remorse and empathy are there, but in the context of everything else in order to enable a rounder and more holistic view of risk.

Moving to amendment 260, I am very aware of the deep hurt that the issue that it addresses can cause to a victim’s family and friends. It should be noted that failure to disclose the location of a body can already be prosecuted as a criminal offence in itself—that of attempting to defeat the ends of justice—and the court can and will take into account an offender’s refusal to disclose the location of a victim’s remains when sentencing. I am aware that it is, of course, one of the many issues that Mr Greene consulted on in his proposal for a victims bill.

I also remember very well the debate that Mr Greene and I had at stage 3 of the Bail and Release from Custody (Scotland) Bill—now the Bail and Release from Custody (Scotland) Act 2023. At that time, I raised a number of legal issues with his proposition. It was a much more sweeping amendment that certainly would have caused great anxiety, for example in relation to ECHR. I have given considerable thought to the issue since that debate—in which, if I recall correctly, I said to Mr Greene that my door was open on these matters.

I should add that the Parole Board already takes such matters into account when considering release. The Parole Board (Scotland) Rules were amended in April 2022 to make it clear that, where applicable, the board may take into account failure to reveal the location of a victim’s remains when making its decision. In cases in which such circumstances arise, it is clear that the board has scope to reflect that concern in its considerations.

However, I have no issue with amendment 260, which would require the Parole Board, when considering the release of a prisoner sentenced for murder or culpable homicide, to take account of whether the prisoner has information about the disposal of the victim’s remains but has not disclosed it. I am happy to support amendment 260. At stage 3, we might propose some tweaks to the drafting, which might be needed to ensure a good fit with other stage 3 amendments—particularly the other amendments in this group, on which we propose to work with Mr Greene before stage 3. Some minor changes might be needed, but I am happy to support amendment 260 for now.

I cannot, however, support Mr Greene’s amendment 261, which addresses a similar issue. It requires that, when a prisoner serving a sentence for murder or culpable homicide is considered for temporary release and

“the governor has reasonable grounds to believe that the prisoner has information about ... the victim’s remains”

but has not disclosed it, the governor must take the issue into account when making the decision whether to grant temporary release.

A grant of temporary release is made only after careful consideration, and any failure to comply with the conditions of release can result in recall to custody. The term “temporary release” can cover a broad range of activities, from escorted day release to periods of home leave where appropriate; it can also be used when prisoners are escorted to attend appointments for medical treatment or events such as a funeral of a close family member.

Again, I appreciate that, when a victim’s family is left without the knowledge that they seek, such circumstances might be difficult to accept. However, the operation of temporary release is an essential part of the process by which the Scottish Prison Service can assess the individual’s readiness for eventual release, and it provides robust evidence on which the Parole Board can base its decisions.

The Scottish Prison Service conducts a case-by-case assessment before each grant of temporary release, including consideration of the risk that the prisoner might pose a danger or cause harm to the public. Any grant of temporary release is made under detailed licence conditions, which can be adjusted to reflect the particular circumstances in each case.

In addition, the Scottish ministers’ directions on the application of prison rules with regard to the use of temporary release require that

“the Governor must consider the views of ... victims”

when deciding whether to grant temporary release,

“where their views are made known”

to them. That can be accommodated through the work of the victim notification scheme and, when the victim’s family is registered with the VNS, they will have the opportunity to make representations to the SPS before a prisoner is permitted temporary release for the first time.

Given that a broad assessment is made before any use of temporary release, and that victims already have scope to express their concerns about the possibility of temporary release being granted, it is not necessary to add the specific measures that are proposed in amendment 261. In light of that, I cannot support the amendment and urge the committee to oppose it.

I will start with my amendments 141 to 144. The bill deems a person to be vulnerable in a civil case if they have a civil protection order against another party to the case. Amendment 141 adds lawburrows to the list of relevant orders. That is an order that can be made to protect against violence by a particular person. The amendment makes it clear that interim remedies and measures are included. It is, for example, common for a person to obtain an interim interdict.

In addition, amendment 141 provides that a person is to be deemed to be vulnerable if they are applying for a civil protection order or have brought an action for damages following sexual abuse, harassment or assault.

Amendment 143 will amend section 15 of the Vulnerable Witnesses (Scotland) Act 2004, which makes provision on vulnerable witnesses and on taking into account the views of a vulnerable child witness in relation to special measures. As it stands, section 15 includes a presumption that a child aged 12 or older is of sufficient age and maturity to form a view. The amendment will replace that presumption with a new one, which is that the child is able to express their views

“unless the contrary is shown”.

Amendment 142 is a related technical amendment.

Amendment 144 will amend section 33 of the bill, which makes provision on special measures in non-evidential hearings. It relates to when a party to the case has not been deemed to be vulnerable but the court considers that the party might nevertheless benefit from special measures. The amendment will provide that, when making an order in those circumstances, the court must take into account the party’s views and, if the party is a child, the views of the child’s parent. It will also provide that the court must

“have regard to the best interests of the party”.

On Liam Kerr’s amendments, I am pleased to be able to support amendments 122, 124 and 126 to 128, but I cannot support amendments 123 and 125.

I do not want to speak for Mr Kerr on his amendments, but I note that, in 2021, the Scottish Government consulted on the planned register of solicitors that was provided for under the Children (Scotland) Act 2020 for certain family proceedings. The bill will extend the 2020 act’s provisions to civil cases more generally.

I am happy that amendments 122 and 124 would require the Scottish ministers to set in regulations the level of remuneration for solicitors on the register, as opposed to the current position whereby that is optional.

I support amendments 126 and 127, which would require the Scottish ministers to

“prepare and publish a report on the consultation”

that we need to have with the Faculty of Advocates and the Law Society of Scotland before making regulations on the register. I also support amendment 128, which sets out some details on what the report should cover.

However, I cannot support amendments 123 and 125, as they would not be workable. Amendment 123 would require that the Scottish ministers must

“confer the duty of maintaining the register on a person”,

as opposed to that being an option in the bill. At the moment, our intention is that the duty to maintain the register will remain with the Scottish ministers, with the day-to-day administration to be carried out by a contractor. It would therefore not be appropriate for there to be a requirement to confer the duty of maintaining the register on another person. The Scottish Legal Aid Board and the Scottish Courts and Tribunals Service have both told us they do not want that duty, and I do not want to confer—or perhaps foist—the duty on a body that does not want it, so it is better to proceed as we have proposed.

I therefore ask the committee to oppose amendments 123 and 125 if they are moved and to support the remaining amendments in the group.

I move amendment 141.

I have nothing further to add, convener.

Amendment 141 agreed to.

Section 30, as amended, agreed to.

Section 31 agreed to.

Section 32—Register of solicitors for section 22B of the Vulnerable Witnesses (Scotland) Act 2004

Amendment 122 moved—[Liam Kerr]—and agreed to.

Amendments 123 not moved.

Amendment 124 moved—[Liam Kerr]—and agreed to.

Amendment 125 not moved.

Amendments 126 to 128 moved—[Liam Kerr]—and agreed to.

Section 32, as amended, agreed to.

Section 33—Vulnerable parties

Amendments 142 to 144 moved—[Angela Constance]—and agreed to.

Section 33, as amended, agreed to.

After section 33

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.