Chamber and committees

That is why I said that I was happy to discuss the matter further with Liam MacArthur ahead of stage 3. However, we must be very mindful of unintended consequence in that area, for the reasons that I have laid out.

It is also important to stress that the prosecutor, who acts independently in the public interest, is best placed to provide complainer safety information to the court, which would be presented as part of their submission on bail.

I will address some of the resource issues before I move on to the amendments in the group that were lodged by Collette Stevenson.

As I have already said to committee, I understand the concerns about the potential financial impacts of the bill. Those are laid out in the financial memorandum, but, to offer further reassurance to committee, I note that we have worked with Social Work Scotland, which is supportive of our approach in and around justice social work and bail. That also applies to the Convention of Scottish Local Authorities, the Scottish Courts and Tribunals Service and others. We engaged with those organisations as part of our work to establish the estimates in the financial memorandum. I stress that we will continue to work with those organisations on the implementation plans for the bill. As we all know, Parliament agrees to the Scottish budget annually.

Collette Stevenson’s amendments 52 and 54 would prescribe certain information relating to the complainer that justice social work must put before the court when taking up the opportunity to provide information that is relevant to the question of bail. I understand the intention behind the amendments. However, they would have very considerable resource implications, as justice social work is not usually involved in providing information to the court about complainers. There has been no consultation on creating such an expanded role for justice social work, and we have already heard concerns about resourcing.

That aside, it is unrealistic for justice social work to provide information of that kind in the timescales prescribed by the bail process, particularly in custody cases, because justice social work may not have any pre-existing relationship with the complainer. We also know from the experience of specialist domestic abuse advocacy services such as the advocacy, support, safety, information and services together—ASSIST—project that, in the wake of the trauma and confusion of an incident, complainers are not always physically or emotionally safe enough at that stage of the process to engage.

An amendment of the bill is not necessary to broaden the role of justice social work, because section 1 does not prescribe the type of information that justice social work must provide on the question of bail. Given those concerns, it is something that could be for consideration in the medium term, and I would be happy to discuss further what, if anything, could be planned for outwith the bill process.

Pauline McNeill’s amendment 53 seeks to provide that, where justice social work intends to provide information to the court on the question of bail, it must do so within timescales determined by the sheriff or judge. As I explained in relation to amendment 49, any delay in justice social work providing information would not change the timing of the bail decision.

Before I go through my speaking note and make the remarks that I need to put on the public record, I will respond to Pauline McNeill’s point about the committee’s post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018. I put on the record that I have obviously received the work that the committee has done in that regard, and I very much welcome it. I will seek to respond once I have had the opportunity to discuss the detail with our justice partners. However, my intention is to respond to the committee as much as I can prior to stage 3, because I think that that would be helpful. Pauline McNeill also asked why we are removing section 23D now. This is taking place in the broader context of our work with partners on remand issues.

I will now speak directly about Pauline McNeill’s amendment 65, which seeks to remove completely section 3 of the bill. As we know, section 3 repeals section 23D of the Criminal Procedure (Scotland) Act 1995. The amendment would mean that the current restriction on bail in section 23D would continue to apply alongside the newly proposed bail test that is set out in section 2 of the bill. I understand that the amendment has been lodged because of concerns that have been expressed that the repeal of section 23D could put victims of violent crime, domestic abuse and sexual offences at greater risk of harm. It is entirely right to ask questions about the impact of the repeal, and I want to address them directly.

First and foremost, I want to reassure all victims of crime and those who tirelessly represent their interests that I am clear that remand will continue to play an essential role in protecting victims and the wider public. The bill does not change that. Public safety and victim safety are at the heart of the new bail test. As I have said, there are, of course, occasions when remand is absolutely necessary in order to protect victims from harm, particularly in cases of sexual or domestic abuse. The new bail test will ensure that that can happen.

The bill proposes to repeal section 23D for one simple reason, which is to ensure that the same core bail test applies in all cases. In its place, the new bail test explicitly highlights for the first time the importance of ensuring the safety of victims from harm. The bill not only does that but defines safety from “harm” as safety from both “physical or psychological harm” in recognition of the harm that is caused by threatening or coercive behaviour, which is an insidious feature of domestic abuse. That means that, when the court considers that an accused person poses a risk to public safety, including the safety of the victim—the type of person to whom section 23 currently applies—remand can be used. In fact, the proposed changes to the new bail test emphasise that.

I note that, as Pauline McNeill mentioned, there is strong support for the simplification measure among those who use bail law. It has been said that repealing section 23D gives the court improved, rather than reduced, discretion to fully consider the facts and circumstances of each case, including the risk of harm that is posed to victims.

For all those reasons, I ask Pauline McNeill not to press amendment 65. If she does, I respectfully request that committee members vote against it.

As a point of information, I note that, in the period 2010-11 to 2019-20, the number of offences that were committed by a person while on bail fell by 18 per cent, from 8,261 in the year to 6,800.

I will speak to amendment 7 and the other amendments in the group. Amendment 7 seeks to address the concerns that the committee highlighted regarding the potential additional burden that might be placed on the courts by the recording requirements that are contained in section 4 while still ensuring that the core information that is required to monitor the use of remand by courts is recorded.

In particular, the committee asked the Scottish Government to revisit the recording requirements in section 4 in order that they be made less onerous. Amendment 7 responds to that request. As such, it narrows the recording duty in the newly proposed section 24(2AA)(b) of the Criminal Procedure (Scotland) Act 1995. It does so by removing the requirements for the court, when remanding an accused person in custody, to enter in the record of proceedings, first, where it relies on the failure-to-appear ground in section 23C(1)(a) of the 1995 act as the sole basis for remand and the reasons why it considers that that is necessary and, secondly, the reasons why it considers that electronic monitoring of bail is not appropriate or an adequate safeguard. However, the requirement on the court to verbally state those reasons when bail is refused remains unaltered.

The effect of the amendment is that courts would be required to formally record in the court minutes only

“the grounds on which it determines, in accordance with”

the new bail test,

“that there is good reason for refusing bail”.

Turning to amendment 66, in the name of Rona Mackay, I have reflected carefully on the evidence that was given during stage 1 scrutiny. Special conditions of bail can help both with protecting the complainer from the risk of harm and by providing reassurance that any attempt by the accused to cause them harm would amount to a breach of bail and would allow the police to take action. That requirement was originally introduced in the 1995 act in respect of people accused of sexual offences, and I am persuaded that there is a good argument for extending it to cover those who are accused of domestic abuse or stalking, which are also offences in which the perpetrator singles out a specific victim.

By ensuring that the court must justify any action not to put in place additional protective conditions in those cases, the amendment will emphasise to the court the importance of appropriate special conditions of bail in cases of domestic abuse and stalking, and it will improve the transparency of court decision making. I ask members to support Ms Mackay’s amendment.

Amendment 35, in the name of Katy Clark, seeks to make changes to section 4 of the bill by further amending section 24 of the 1995 act so that the court must state certain grounds and reasons for the granting of bail and have those grounds and reasons entered into the record of proceedings.

As I have mentioned, an expansion of the recording duty falling on the courts as a result of section 4 directly contradicts the committee’s specific recommendations in this area. It asked the Government to revisit that section in order to reduce, not increase, the recording duty.

Amendment 35 would place an increased burden on the courts in a very large cross-section of cases that enter the system. That might require further information technology changes by the Scottish Courts and Tribunals Service and might increase the length of court hearings, with potentially very little analytical value. That is because there is an overarching legal presumption for bail, which should be refused only when there is good reason for doing so. As such, bail is, in effect, the default position.

With any requirement to provide reasons why bail has been granted, one could simply point to the legal requirement to do so—namely, that there is no good reason not to grant bail. The amendment would also require the court,

“in any proceedings in which a person is accused of an offence”,

to explain certain things, including why

“the accused does not pose a risk to public”

or complainer safety. That is an extremely broad requirement that would apply to all cases that enter the system, not all of which would involve a public safety-related offence or an identifiable complainer.

More generally, it is already a requirement under existing bail law that, whenever the court grants or refuses bail, it must state its reasons for doing so. The bill does not change that. As such, the information that is listed in amendment 35 is information that the court may already verbally state in open court under that duty.

During stage 1, the calls for improved data gathering were generally focused on gaining a better understanding of remand. As such, and for all the reasons that I have outlined, I ask Katy Clark not to move amendment 35.

The final amendment in this group is amendment 36, also in the name of Katy Clark, which seeks to remove section 4 in its entirety, with the effect that the duty in that section on the court to state and record its reasons for refusing bail would not be introduced. Again, that contradicts what was said in the committee’s report, so I ask Katy Clark not to move amendment 36.

The policy intent behind section 4 is to help to improve, over time, understanding of the use of remand and to emphasise the importance of its being used only as a last resort. The availability of richer and more detailed data on the use of remand was universally supported during stage 1 evidence-taking sessions, and amendment 7 would, if agreed to, address concerns that were expressed by the committee about the potential burden that the recording duty, as originally drafted, would place on the courts.

I move amendment 7.

I indicated earlier—in relation to the amendments in and around justice social work, for example—my willingness to have further discussions, whether that is on legislation or non-legislative approaches.

I know that we have not yet got to these matters but, with regard to reporting, I am willing to ensure that we have the right reporting mechanisms that can give us some facts, in particular through the use of data to help our understanding. I hope to do that in a way that is comprehensive, and through a more collective approach, because—this is not meant disrespectfully—if it is done sporadically across various amendments from different parties, the result could be less than cohesive.

There is another factor to bear in mind, which gets to the core of Mr Greene’s concern. It is about risk, and how all the players—the prosecution, the defence and justice social work—take information and evaluate the risks, and come to a judgment about those risks, whether to victims or to the public more generally.

The bottom line is that risk is appropriately a matter for the court, because it will adjudicate on that when it makes its bail decision. Of course, it is also a matter for the individual players, whether those are justice social workers or the prosecution, who will provide information that is based on an understanding of risks or potential risks.

Those are matters of professional judgment, and they are quite difficult, if not near-impossible, to legislate for in the bill, but there are other ways in which we can tackle the issue—for example, through other aspects relating to the bill such as standard operating procedures, risk assessments or throughcare standards. It is not due to a lack of willingness on my part.

In conclusion, for the avoidance of doubt, I ask members not to press or move their amendments in this group. If they do so, I ask members to vote against them.

At the risk of stating the obvious, I say to Mr Greene that it is Parliament’s job to make legislation, and legislation either gives very wide powers or places some restrictions on the decision-making powers of independent agents—in this case, for good reasons of victim and public safety. It is, of course, the job of judges to interpret law, but we have to make this law on the basis of our all agreeing that, although there is always a place for remand, remand figures are too high overall.

There are many factors contributing to that situation, some legislative, some cultural and some relating to policy and practice—indeed, we have been engaging in the debate about resources—but the bill is built on the acknowledgement that remand, which should be a very short time in custody, is largely, though not always, ineffective; does not reduce but actually increases reoffending; and, as a result, increases the risks to victims and community safety.

We all broadly agree on that and on what we are trying to achieve. At the risk of being less than diplomatic, my concern about some of the amendments, although well intentioned and about further scrutiny, is that their effect would undermine the overall approach of the Government’s policy and what we are trying to achieve.

Amendment 31, in the name of Katy Clark, may seek to widen the use of remand by adjusting the new bail test. However, we do not think that it does, as the new bail test already covers the situation that the amendment seems intended to address. The court can refuse bail to an accused person on the basis that they pose a risk to public safety. In addition, the current law requires that the court must consider the extent to which the public interest could be safeguarded by the imposition of bail conditions in the event that bail were to be granted. The bill does not change that. That includes the use of electronic monitoring.

Katy Clark’s amendment 32, which relates to the intimidation of complainers, witnesses or others and the definition of the phrase

“prejudice to the interests of justice”,

would not have any practical effect, other than add to possible confusion on the bail test. The risk that an accused may interfere with witnesses is already one of the listed grounds for refusing bail. The definition of

“prejudice to the interests of justice”

under proposed new section 23B(9) of the 1995 act includes

“the course of justice ... being impeded or prejudiced as a result of ... the giving of false or misleading evidence, or the quality of evidence, or its sufficiency in law, being diminished.”

Of course, that would be the intended effect of witness or complainer intimidation.

Amendment 57, in the name of Russell Findlay, which seeks to amend the new bail test in relation to an accused person absconding, is unnecessary. Under the new bail test, in determining whether there is a good reason for refusing bail, the court must consider that at least one of the grounds in section 23C(1) of the 1995 act applies. Section 23C(1) already includes the grounds of there being any substantial risk that the person might abscond if granted bail. The risk of an accused person absconding is also covered within the meaning of

“significant risk of prejudice to the interests of justice”,

for the purposes of the courts’ determination as to whether that ground has been established in order to justify remand. The bill provides that the definition of

“prejudice to the interests of justice”

includes

“the accused person evading justice as the result of the proceedings being delayed or discontinued”,

which, of course, would be the effect of a person absconding.

Katy Clark’s amendment 2 would remove the limitation on the use of remand where the accused poses a risk of failing to appear in court. Under the bill, in summary proceedings, the court can consider the failure-to-appear ground in only two scenarios. The first is if the accused has failed to appear at a previous hearing of the case, having been granted bail or ordained to appear. The second scenario is that the charge in respect of which the accused is appearing before the court is a failure-to-appear offence. If neither of those situations arises, the ground cannot be used to justify a refusal of bail.

Those restrictions do not apply in solemn cases. The restriction for summary cases in the bill, which amendment 2 would remove, is a proportionate step in minimising the use of short periods on remand pre-conviction, while ensuring that summary courts retain the power to remand those who are considered to pose a risk to the delivery of justice.

Amendments 33 and the consequential amendment 34 would make changes to section 2(3), should amendment 2 not be agreed to. The amendments, which would replace the reference to “relevant diet” in the bill, are not necessary. Although their effect is somewhat unclear, the amendments seem to be based on a view that the definition of “relevant diet” does not cover all court hearings at which an accused may potentially fail to appear. However, the definition covers all court hearings, so the amendments are not needed.

Amendment 30 seeks to define the concept of public safety for the purposes of the new bail test. I do not think that a definition is needed and I am of the view that providing one would carry significant risk, as was acknowledged in the committee’s report and discussed at stage 1.

The words “public safety” have been part of bail law since 2007, and I am not aware of any cases in which the lack of a statutory definition has caused an issue. The bill does not include a statutory definition of public safety, and it is the policy intention of the bill that it is for the courts to continue to interpret and apply the term in the same way as they have been doing until now, by giving the words their ordinary meaning. It is common practice not to include statutory definitions in legislation when the ordinary meaning is intended to apply.

I have highlighted the risk of providing a definition; I have concerns about the definition that is offered, too. Paragraphs (a) to (c) in amendment 30 specify examples of behaviour by the accused that might indicate a risk to public safety. Although those examples might be said to be broadly in line with our understanding of the term, by listing things to be included in the meaning of public safety, the term itself could end up being construed too narrowly by the reference to that list. The reverse could also be true, with a broader definition being applied than is otherwise intended.

A definition could create uncertainty. For example, in relation to the proposed definition, it is unclear what amounts to being

“known to demonstrate aggressive, abusive or antisocial behaviour”,

as set out in paragraph (a). There is uncertainty, too, about the terms that are used in paragraphs (b) and (c). Amendment 30 also widens the concept of public safety beyond its ordinary meaning to include mere “likelihood to re-offend”, with no link to public safety being needed.

Amendments 60 and 64 would insert a regulation-making power that would require ministers to

“set out ... the meaning of ... ‘public safety’”.

A statutory definition of public safety is not necessary and is not without risk, whether it is provided in the bill or done through regulations.

Amendment 63 would require the Scottish ministers to

“consult ... about the impact of the public safety test”—

which forms part of the new bail test—and to publish a report relating to that consultation.

I have lodged amendment 8, to which we will come later, which will require the Scottish ministers to publish a report on data relating to bail and remand. That is, in my view, the appropriate approach to follow instead of focusing a report on the impact of an individual element of the bail test. Bail decisions are based on the individual facts and circumstances of each case and are made independently by the court; as such, a precise measure of the impact of the public safety test would be impossible to deliver.

Lastly—with thanks to the committee for its forbearance—I come to Jamie Greene’s amendments 61 and 62. Amendment 61 would require the court to ask

“the prosecutor or officer of the local authority to provide the information”

relating to public safety that was proposed in amendment 52. In our consideration of the previous group, I set out concerns about statutory provisions in the area that amendment 52 covers; the same concerns apply here, which relate to the deliverability of, and appropriateness for, such a significant expansion of the role of justice social work.

Similarly, I set out in response to Liam McArthur’s amendments 50 and 51 that the prosecutor can, and routinely does, make submissions to the court on the question of bail. As part of that, the prosecutor can, and should, reflect any victim safety concerns that the prosecutor considers are present, for the court to be aware of. As I said on the previous group, I am open to further discussion with Mr McArthur and others.

Amendment 62, in the name of Jamie Greene, seeks to require the prosecutor, the defence or justice social work to provide an opinion on risk in order that the court may consider public safety matters in accordance with the new bail test.

The 1995 act, if it is amended as the bill proposes, will ensure that it is for the relevant party—the prosecutor, the defence or justice social work—to decide whether to give the court an opinion as to any risk of something occurring, or any likelihood of something not occurring.

Katy Clark and Jamie Greene mentioned the information that should go to victims. Information should, indeed, go to victims, and that should happen via the Crown Office and the victim information and advice team. If concerns exist about that not happening—members might have constituency cases, for example, or might have heard experiences from victim support organisations—I am happy to hear them.

Let me be transparent with the committee and say that there remains a question as to whether the solution can be found through legislation or through policy, organisational structures or, indeed, resources. I am happy to have a broader discussion about that point, but—without ruling anything in or out—the solution to the problem might not necessarily be legislation.

My only other remark on Ms McNeill’s amendment 53 is that I do not think that there would be any practical benefit from it, and I say that with respect.

Katy Clark’s amendment 1 seeks to put in place a requirement for the Scottish ministers to report to Parliament on the operation of section 1. I recognise that the enhanced role of justice social work carries resource implications as set out in the financial memorandum. We have been clear during stage 1 that the Scottish Government will continue to work with partners during implementation planning to review the resourcing requirements and timescales for commencement.

Members will be well aware that there are real challenges in relation to budgets, which is likely to continue. That means that difficult decisions will possibly need to be made. Phased implementation of legislation can be a way of flexibly managing the resource implication of any bill. It is also worth highlighting that Parliament—and, indeed, this committee—already has the power to carry out post-legislative scrutiny of any acts of Parliament.

I ask members to reject the amendments in the group.

I will speak to amendment 37, in the name of Katy Clark, first. Amendment 37 inserts a new section after section 4 that would impose an annual duty on Scottish ministers to publish a report on women who have been refused bail. A non-exhaustive list of the information that the report must contain is set out in subsection (2), from (a) to (g), of the proposed new section.

I recognise that the amendment is well intentioned, and I agree that there is benefit in a requirement for the Scottish ministers to publish a report in relation to women on remand. However, I have some concerns about the amendment as it is drafted.

Some of the information that is covered by amendment 37 is already routinely published as part of the Scottish Government’s official statistics release. In particular, the following data is already published: the nature of the offences that women who are refused bail have been charged with, the average age of women who are refused bail and the number of women who transition from the remand population to the sentenced population.

Conversely, some of the data that is listed in amendment 37 would be either difficult or, in some instances, impossible to produce. Accordingly, it may impose onerous requirements on the Scottish Courts and Tribunals Service and, potentially, the Crown Office and Procurator Fiscal Service, to compile the data that is sought.

As such, I ask Katy Clark not to press amendment 37, and I will undertake to work with her to see whether we can return at stage 3 with a workable reporting requirement that explores the characteristics of the remand population—including by gender—in a meaningful and informative way but that does not place unduly onerous burdens on the Scottish Courts and Tribunals Service and others. I am conscious of the concerns that have already been expressed throughout stage 1 about the capacity demands on operational justice agencies, but I will seek to strike the right balance.

I now turn to amendment 8, in my name. The committee’s stage 1 report expressed concern about a lack of information about the circumstances in which remand decisions are made. Amendment 8 responds to that concern by imposing a statutory duty on Scottish ministers to

“publish a report on bail and remand.”

The report will be required to contain certain information broken down by year and covering the first three years during which the new bail test under section 2 is in operation. The report must contain certain specified information in relation to bail and remand decision making. In relation to remand, that includes information such as

“the average daily remand population”

and

“the number of individuals who entered the remand population by reference to ...

(i) the offence (or type of offence) in respect of which the individual was remanded in custody,

(ii) the individual’s gender,

(iii) the local authority area in which the individual lived immediately before being remanded in custody”.

In relation to bail, that includes information such as

“the number of bail orders made by reference to the offence (or type of offence) in respect of which the individual was granted bail”

and data related to

“bail-related offences, and ... other offences ... committed while on bail”.

Amendment 8 sets out the full list of information that must be included in the report, as well as, importantly,

“any other information that the Scottish Ministers consider appropriate”.

I trust that that will be welcomed by the committee, and I ask members to support amendment 8, in my name.

Yes.