Chamber and committees

I want to continue with my previous train of thought, after which I will—I promise—explicitly address your points in relation to the Lord President, because they are important.

The court is required to decide on bail on the basis of the information that is put before it in the timeframe that I referenced earlier, regardless of whether justice social work has provided information. Equally, there is no risk that bail will be refused because the court is waiting for information from justice social work, because, under existing law and under the bill, the fact that the court is waiting for information from any party is not a reason to refuse bail.

Amendment 49 would leave it to the discretion of the court whether to offer an opportunity to justice social work to provide information. There is a risk that that could mean that valuable information would not be provided in individual cases.

I turn to the remarks of the Lord President. The committee will be aware that, as Pauline McNeill mentioned, the Lord President offered views. I think that it will be helpful for me to take each of those views in turn.

With regard to prescriptiveness, we acknowledge that the new bail test is more prescriptive. That is because it adds two new specific public interest considerations, one or the other of which must apply in order for bail to be refused and remand to be deemed necessary in the future. For the record, those considerations are

“the interests of public safety, including the safety of the complainer from harm,”

and

“to prevent a significant risk of prejudice to the interests of justice.”

That is a deliberate policy approach, which is designed to focus the use of remand. Therefore, the new test is more prescriptive, but it is prescriptive with a purpose. It is part of the policy goal of achieving a more focused use of remand, which we hope will, over time, reduce the use of remand.

In terms of time taken, which the member referenced, we acknowledge that some time may need to be added to some bail hearings. That is to ensure that the courts have better information on which to make their decisions.

I will move on to amendments 50 and 51, in the name of Liam McArthur, which would require the courts to seek views directly from the complainer or from victim support organisations on behalf of the complainer to inform the bail decision. We have concerns about the practicality of those well-intentioned amendments, due to the timescales within which bail decisions must be made, particularly in custody cases. In my view, they are not necessary and they may have unintended consequences.

When the court is deciding whether to grant bail, the prosecutor and the defence are also able to make submissions to the court on the question of bail. In doing so, the prosecutor can and should make the court aware of any safety concerns that they think arise based on the particular facts and circumstances of the case. That is particularly so under the new bail test, which centres the consideration of public safety in bail decision making, including the safety of the complainer from harm.

We all agree that it is important that the complainer’s voice is heard in the court process, and I am happy to discuss the matter further with Liam McArthur ahead of stage 3. However, it is also important to be mindful of the sensitivities around communicating complainers’ safety concerns to the court, particularly in domestic abuse cases.

Domestic abuse involves complex dynamics in which it can be important that information about concerns that may lead to a partner or an ex-partner being placed on remand is not attributed to information that is provided by the complainer, so as not to compromise safety or make complainers fearful to engage.

I will speak to amendment 55 and the other amendments in the group. There is a wide range of amendments that seek to do different things, so it will take a little time to explain why the Government opposes the amendments, and I hope that you will bear with me.

There are amendments that seek to expand the circumstances in which remand can be used by the court, some of which would potentially significantly widen the basis on which remand might be used even in the current system, let alone under the proposed framework that is envisaged by the new bail test in section 2. It is, of course, in respect of the current system that the committee called for a reduction in the use of remand. The relevant amendments run counter to the Government’s policy to narrow the focus of the bail test so that remand is kept as a last resort, either when there is a risk to public safety, including victim safety, or there is

“a significant risk of prejudice to the interests of justice.”

Amendment 55, in the name of Katy Clark, would remove the new bail test that is proposed in the bill. If we are committed to ensuring that remand is a last resort reserved for cases in which it is really needed to protect the public and victim, or to safeguard the interests of justice, it is important that members reject amendment 55.

Jamie Greene’s amendment 56 would expand significantly the court’s ability to remand an accused person under the current bail test. It would have that effect as a result of separating the two requirements of the new bail test to make them alternative rather than cumulative. The effect would seem to be that the court would remand an accused person where one or more of the grounds listed in section 23C(1) of the 1995 act was established, or where there was a risk to public safety or

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

as is set out in proposed new section 23B(1A) of the 1995 act. An accused person who posed no risk to public safety or to the delivery of justice could therefore be remanded solely on the basis that

“at least one of the grounds ... in section 23C(1) applies”.

If you let me finish this paragraph, I certainly will.

Mr Findlay’s amendment would expand the reasons for which the court may consider it necessary to refuse bail to include the phrase

“because the court considers it likely the accused person will breach their bail conditions”.

It is the Government’s view that the amendment is not necessary, because the new bail test already ensures that the court can consider the impact of such breaches of bail.

Of course.

I appreciate that, Mr Findlay, but the point that I am earnestly trying to make is that it is not necessary.

Furthermore, the amendment would also have the effect of broadening the court’s discretion to refuse bail. It would allow the court to refuse bail where one of the grounds in section 23C of the 1995 act applied and the court considered that there was a risk that any bail condition would be breached, whether or not there was a risk to public safety or the delivery of justice.

As far as possible, we want to have parity between systems, notwithstanding the fact that the children’s hearings system is fundamentally about addressing the needs of children, as opposed to punishment.

The bill will increase the obligation on the principal reporter, who will now have a duty, rather than discretion, to inform victims of their right to receive information. That information could relate to the fact that a hearing has taken place or to the outcome of the hearing. For young people who are progressed through the criminal justice system, a victim notification system is currently in place.

I contend that this very specific bill increases the rights and protections for victims, but it is not our only intervention in this area. As, I suspect, Mr Findlay will be aware, we have undertaken other consultations on what else we can do within the broader system to ensure that victims’ needs are met. We have also consulted on initiatives such as a victims commissioner.

We are actively engaged with regard to what we need to do to enhance the rights of victims. As we move forward, there will be other policies and legislation that will help to address the matter.

It is important to highlight that, over and above the financial memorandum, there is a national resources group, because some of these issues need to be unpicked further. I will come on to talk about the cross-border transfer issue separately, but I recognise that there is a need for a clear pathway. Over and above the issues that are detailed in the financial memorandum, we are engaging intensively with stakeholders on this.

My understanding, from work that Scotland Excel has done, is that there is capacity in the system to meet Scotland’s needs. If you remove the cross-border transfers—just for argument’s sake—we have the capacity here in Scotland to meet our needs now and to meet our expected needs in the future, notwithstanding the fact that we could get further information and those expectations could change.

I have also pointed to the beds that we are now funding, which came off the back of a pilot. I think that I mentioned earlier that, in terms of Scottish Government funding, the number of beds in the estate will increase to ensure that we have stability and certainty.

It is fair to say that a place of safety is always preferable to a police station. I would want to avoid police officers feeling stuck in a particular situation and ending up not taking a young person to a police station because they have worries that go beyond that being unsuitable, leading to even more risk-averse practice. The current provision is that someone is taken to a police station when that is necessary and proportionate, and when not doing so might be impracticable, unsafe or inadvisable.

We have live engagement on that issue, particularly with the Scottish Police Authority. The committee might be aware that a conference on children in conflict with the law, in which a lot of attention was focused on the issue, took place last year.

On the basis of my portfolio interests, I am keen that we give the matter further thought. I do not know whether there are any quick and easy solutions through the bill necessarily, but we are just at the beginning of the bill process. I know that there is interest in measures such as multi-agency care settings for children who are in conflict with the law. I suppose that I am trying to convey to the committee that that is definitely an area on which we must have more focused activity and thinking.

We need to be crystal clear on that point. We need to look at issues of reform around young offender institutions, but 16 and 17-year-olds are being moved from the criminal justice system into the children’s hearings system, albeit that, for some of those children, that will be done on a temporary basis for the purposes of their care while they are 16 and 17. The children’s hearings system is for children up to the age of 18 and, although there could be approaches, interventions or work with young people in a secure setting that could provide learning for an adult setting, we need to be clear that extending secure accommodation that is for children in order to meet the needs of offenders who are adults is not an option.

There are a number of legal issues, as well as physical issues, around that. That does not mean that we do not need to constantly review and challenge ourselves on the care of young people in young offender institutions—hence the work around refocusing the use of custody for adults, as well as the need to focus on and improve, for example, mental health support and opportunities to reduce reoffending and to tackle the issues around the heavy use of remand in Scotland. However, there needs to be a clear line.

I will start, and the minister might wish to come in later.

I am aware of the history of the issue—it goes back many years—and it is imperative that we have the right provision at the right time, which requires resources. Going forward, we need to be confident that we have the capacity to meet the needs of children who are being displaced and shifted from the criminal justice system into secure accommodation.

We know that there has been a reduction in the number of young people—16 and 17-year-olds—who receive custodial sentences. Over the past decade or so, that number has fallen by 93 per cent. Therefore, we are talking about a comparatively small cohort of young people.

The most recent figures that I have seen, which are just a few days old, show that we currently have six under-18s in Polmont YOI, and there are currently 12 vacancies across the secure estate. I do agree with Ms McNeill that we need a vigilant eye, because absolute predictions about the circumstances in which a young person will go through the court system are always hard to make.

I think that we are starting from a good baseline position with regard to our understanding of current capacity and the likely demand. I do not need to repeat what is in the financial memorandum and the work that underpins it, but I would just highlight to members our work on secure care plus, which is about our having the correct contingency plans in place to ensure that, in all circumstances, we can meet the needs of any child at any time in an establishment.

This is a complex area, with many issues to do with funding, and I would also highlight the longer-term work that is being undertaken to reimagine the secure estate. I will continue to keep an acute and keen interest in it.

The minister might have something further to add from her perspective.