Chamber and committees

I am happy to go back and check that point, but my understanding—particularly after yesterday’s debate about the trauma-informed justice skills framework that is to apply to all actors in the justice system—is that we need to give victims meaningful information. Although the information needs to address the facts of the matter on whether someone has been remanded or bailed, I do not think that it is unreasonable to expect people to be given some context about what was said in open court, bearing in mind that it might not be appropriate or desirable for the complainer to be present in court. The route to provide that information would be via the Crown Office. I am happy to have further discussions on that point.

On Mr Findlay’s other point in relation to my amendment 7, I gave the reasons for refusal and will repeat them for the record—I apologise if people recall hearing them. Amendment 7 removes 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.

Amendment 7 agreed to.

Amendment 35 not moved.

Amendment 66 moved—[Rona Mackay]—and agreed to.

Amendment 36 not moved.

Section 4, as amended, agreed to.

After section 4

There are a number of issues to clarify and put on the record, and I hope that colleagues will bear with me.

It is apparent that Ms Stevenson’s amendment, which is to be pressed not by her but by Mr Greene, would remove section 5 from the bill in its entirety. I make it clear to Ms Stevenson and others that section 5 is not about the existence of electronic monitoring of bail—that already exists. There are important debates and factors to consider further in relation to how the use of electronic monitoring of bail could be enhanced. It exists now in 21 local authority areas, and it is coupled with bail supervision, which exists in 30 areas. That is a separate matter, and we need to be clear about that.

All that we are seeking to do is give the court the option to acknowledge good behaviour by a person who is being electronically monitored. Although a restriction of liberty is not the same thing as a deprivation of liberty, it is nonetheless a restriction. If someone is sentenced, it would not be unreasonable for the court to have the option to take their behaviour into account or not to do so, as it sees fit.

Our approach has been consulted on; I take exception to the suggestion that we have sneaked it in.

In a moment, Mr Findlay.

For the record, before I make some more formal comments, I refer members back to the comments that I made when we debated the amendments in group 3. Remand remains an essential component and option to protect victims who are at risk of violence—including domestic violence—whether physical or coercive.

We are talking about a section of the bill as introduced. I am responding to endeavours to remove that entire section from the bill. Members are entitled to lodge any amendments that they wish, but I am entitled to put forward arguments to protect the overall integrity of the bill.

Section 5 is only a small part of the bill, but I will go through the reasons why I think that it has merit, notwithstanding the fact that there may be further scrutiny and debate and that other amendments may be lodged. Section 5 adds new section 210ZA to the Criminal Procedure (Scotland) Act 1995. It provides the court with discretion during sentencing to take into account a period that the accused person has spent on electronically monitored bail with a curfew condition, which is referred to as “qualifying bail”. Section 5 also sets out how that ought to be taken into account.

The system is based on a similar one in England and Wales. For example, a person might be on qualifying bail for a period of six months. If, on conviction, they were to receive a sentence of 18 months, new section 210ZA of the 1995 act would enable—but not mandate—the court to decide how much, if any, of the six-month period was relevant for sentencing purposes. That might be none, some or all of that period.

The court will make its assessment on the basis of the circumstances of each individual case. For example, if the person has not complied with the curfew, the court may decide that none of the six-month period is relevant, which would mean that the person would enter custody to serve their sentence with none of the time spent on qualifying bail being treated as time served. Equally, if a person has fully complied with the curfew, the court may decide that the whole of the six-month period spent on qualifying bail is relevant.

Once the court has decided what the relevant period is, the bill provides a formula for the court to apply. Importantly, the formula does not treat time spent on qualifying bail and time spent in custody as equivalents; they are not. Instead, the formula in the bill converts every two days of the relevant period spent on qualifying bail as meaning one day of the sentence served. The use of the formula will ensure that a consistent and fair approach is taken if the court considers that the time spent on qualifying bail should be accounted for at sentencing.

I will make more specific comments about resourcing issues in a wee while, but the heart of the matter here is whether justice social work has a relevant contribution to make or relevant information to pass on. The amendments that we are discussing now are about the practical impact of those contributions rather than about resourcing. Of course, when justice social work has a valuable contribution to make, it should be enabled and empowered to do so.

Consequently, amendments 28 and 29 are, in my view, unnecessary, although I can understand why they have been lodged. If a way can be found, ahead of stage 3, to reframe the ability of justice social work to provide the court with information, I will be happy to consider that. However, I think that the bill currently delivers what we want in this area.

Pauline McNeill’s amendment 49 seeks to remove the requirement for the court to provide an opportunity for justice social work to provide information that is relevant to the question of bail. It has been suggested that decisions on whether to admit an accused to bail could be delayed by section 1, but the approach in the bill will not result in unnecessary or longer periods of remand, because, under existing bail law that will continue to operate, the court has only until the end of the day after the accused person’s first appearance to make a formal bail decision.

Sorry, convener, it is a long time—five years—since I have done stage 2, and I was unsure whether I was permitted to intervene, being a guest of the committee and the person under scrutiny.

I want to give some clear reassurance to Pauline McNeill and Jamie Greene. Perhaps I did not mention it earlier because, for me, it is stating the obvious, but previous convictions are, of course, a consideration. People will come to a judgment—whether it is the justice social worker, the prosecutor or the court itself, which will be the final arbiter—on the significance and relevance of previous convictions. They are a fundamental part of any assessment of any alleged offender in any circumstance. I hope that that is helpful.

Yes.

For further clarity, convener, earlier in my remarks I acknowledged that, depending on the nature of the information that is provided, some further time may be required at a bail hearing, but that is separate from the timescales for when a bail hearing must be heard. I hope that that is helpful.

The formula is informed by practice in England and Wales. It is not for me to opine on the evidence that the committee heard at stage 1. However, I am well within my rights to point to the fact that the Government undertook a full public consultation on the bill. As we always do, we published the responses to that consultation. If, after today, any member or, indeed, the committee collectively would like me to provide further information on any remaining issues, I will be more than happy to do so. That is not a problem.

To return to the example that I have just given, applying the formula to the six-month period would mean that, as a maximum, the person would enter custody being treated as having served three months of their 18-month sentence. Although a person who is subject to electronically monitored bail with curfew conditions is not in the same position as someone who is in custody, such a measure represents a significant restriction of their liberty, as I indicated earlier. Therefore, the bill enables—rather than mandates—the court to take cognisance of that, should it wish to do so, in a proportionate way when a custodial sentence is imposed. The measure brings Scotland into line with similar arrangements in England and Wales, which I believe that the committee supported in its stage 1 report.

Therefore, with respect, I ask committee members to vote against amendment 67.

I have spelled out my real concern—and, indeed, the Government’s concern—that a direct impact of separating the two requirements of the new bail test and making them alternative rather than cumulative—it would help if I could say the word—would be a significant expansion of the court’s ability to remand under the current bail test. That is where our nervousness arises—that this is not a step forward but a step back.

Amendment 58, in the name of Jamie Greene, also seeks to expand the use of remand by inserting a catch-all provision into the new bail test to enable the court to refuse bail where it considers that necessary

“due to any other substantial factor which appears to the court to justify keeping the person in custody.”

The amendment would give the court a broad discretion to refuse bail, as long as one of the grounds in section 23C(1) of the 1995 act applied.

Another amendment that seeks to expand the use of remand is amendment 59, in the name of Russell Findlay. It would expand the reasons for which the court may consider it necessary to refuse bail—