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I want to check that I understand what you have said. National jurisdiction could apply up to full committal. That means that some hearings, such as procedural and preliminary hearings, could be held under national jurisdiction. Did you say that you expect national jurisdiction to be used mainly for custody appearances, or do you expect it to be used in other circumstances? The big problem is that, if hearings can be heard anywhere in Scotland prior to full committal, that might involve lawyers running up and down the country. Did you say that you expect the custody hearing—the first appearance—to be held under national jurisdiction?

Amendments 34 and 42 seek to prescribe whether a location would be deemed a suitable location for remote attendance by specifying that the location must have a court official in attendance and an adequate speed of connection. I have previously mentioned my experience in relation to the connection issue, which is one that was raised by all the witnesses.

An issue that I am sure that the Government will address is that of ensuring that there is equality in people’s ability to attend virtually. For example, Age Scotland told us that older people might struggle with getting online. There are issues affecting certain groups of people that must be considered.

It might well be that the cabinet secretary is content that the bill sets out clear criteria for how evidence should be given and where it should be given, as previously mentioned. On the taking of evidence by commissioner, that measure has been a great success. I have seen the facilities for myself, and I thought that that would be the standard.

When I was discussing the issue with the legislation team, I wanted to prescribe some things that would make sense. Maybe they are the wrong things, but I would not be content just to say that people could give evidence in any circumstances and anywhere. It is a court of law, and giving evidence virtually must have some requirements. I would have thought that everyone would be content with the fact that the location should have an equivalency to a courtroom. That is all that I am trying to achieve with these amendments.

I move amendment 34.

I am broadly content with what the cabinet secretary has said. I put on record the fact that, when working on my amendments, I had asked for drafting that would provide clarity on how the power of the Lord Justice General could be used in relation to hearings and trials. When I read the bill, the explanatory notes and the policy memorandum, I could not see the distinction clearly set out that I think that the cabinet secretary has said is there, and I am content with that. That is what I had asked to be drafted, but I accept that what was produced is not quite what I had intended.

As I hope that the cabinet secretary will acknowledge, the committee’s biggest concern was the one that legal representatives had raised in relation to some of the practicalities—as opposed to the principle—of virtual attendance at custody courts, which is why the provisions have been paused.

I would like to come back to that issue at stage 3, as I would not want us to simply let go of it and to pass the bill while the matter is on-going and unresolved. We are talking about granting powers. Once those powers have been granted, there will no coming back from that, if we get it wrong.

On that basis, I seek to withdraw amendment 33.

Amendment 33, by agreement, withdrawn.

I do not have experience of that—I have only seen instances in which people have given evidence in Victim Support Scotland’s headquarters, which, as I said, are very impressive. Who checks when someone is giving evidence from whatever location? I presume that those giving evidence still have to take the oath and so on, and I think that we all agree that there should not be anyone else in the room who might interfere. Who checks that? Is there a way of doing that?

I totally acknowledge that it might not be practical for a court official to do that—I concede that to Liam Kerr and to you, cabinet secretary—but surely there should be some checks and balances. If people are not giving evidence from Victim Support Scotland’s lovely, well-established offices, who will check that the conditions in that location are the same as they would be if they were giving evidence in court? It just my lack of understanding that makes me ask.

I agree with the convener. I am content with the status quo—whatever that is. However, the bill says that the other items that I am talking about could be digitally produced. If the defence or the Crown, for whatever reason, does not apply for the item to be produced in court, it will not be produced, which would be contrary to the interests of justice. I accept that this is a huge area, but I wonder whether there should be a bit more detail in the bill to prevent that from happening. My amendment says that there should be no deadline. Why should there be a deadline at any point before the trial in relation to producing a weapon in court if it is practical—it might not be—and in the interest of justice to do so?

I am not sure that I agree with your final point. I am trying to make the point that, if the default will be the digital production of evidence, that cannot be done at the expense of the interests of justice. Although I acknowledge that what we are talking about could happen in court, the court could say, “We’re not allowing it.”

I wonder whether this is human rights proof. Let us say that the evidence is a murder weapon and the court says, “No, we will not allow the physical production”—for whatever reason—which it is entitled to do under the legislation. How can that be fair if the Crown or the defence thinks that such evidence is important for its case? It has to answer to the court, but these things happen all the time. That is why I want to explore the issue, and Liam Kerr’s amendments are probably a bit more comprehensive than mine.

Paul Smith of the Edinburgh Bar Association said:

“At the moment, if someone is charged with possession of a knife, that knife needs to be retained and physically produced in court. Section 4(4) will allow the police to take a photograph of the knife and that photograph to become the evidence, so they will not need to produce the knife. That might lead to the original knife being lost or destroyed and not available for the defence to inspect. My concern is that, if the police know that a photograph is as good as the real thing, they will take a photograph and dispose of the real thing, and thereafter it will be lost.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 27.]

It would be helpful to tidy up some of these concerns before stage 3. Although the convener outlined lots of benefits to the bill, I would be deeply concerned if all eyes were to be on getting everything digitised because that is much more efficient. If we lose some of the things that we already have, that will be contrary to the interests of justice.

It is useful to know that there is a common-law provision to allow parties to examine the item. I will speak to what I and Liam Kerr are driving at. If you think that it is in the interests of justice for the jury to see the weapon—if it is a weapon—it should surely be an unqualified right. There is a difference between examining something and it going before the court.

My amendment 51 would ensure that national jurisdiction can be used only for the initial custody hearing and, beyond that, only with the agreement of the defence. Following that, jurisdiction should remain linked to the locus of the offence. Simon Brown from the Scottish Solicitors Bar Association said that:

“The issue is the plummeting number of defence solicitors available to deal with this work, and the concomitant difficulties that places on being able to deal with cases outwith one’s normal practice area. If we were in a situation where I had a Sheriff and Jury accused out on bail for a case, and I assume that it would be prosecuted at Kilmarnock, I would be faced with considerable logistical difficulties were that matter to be indicted in, say for example, Greenock.”

My amendment 52 would ensure that national jurisdiction would end at the point of liberation on bail. Further to that, Simon Brown also said, when I asked him, that:

“The issue is, though, that those fully committed for trial and therefore remanded in custody are only a relatively minor percentage of solemn cases. The vast majority of solemn proceedings commence with the case against the accused being continued for further examination and the accused liberated on bail. We would require a similar undertaking that national jurisdiction would end at the point of liberation on bail to make the system workable.”

I welcome the cabinet secretary’s amendments 8 and 10, which provide the clarity that I was seeking at stage 1 about how far national jurisdiction would be allowable in relation to various proceedings. In simple terms, I think that that would not be the trial, but could be proceedings before that.

Although I am sure that I do not need to mention it again, you have heard from Sharon Dowey and from me about the crisis that we are experiencing in terms of the loss of criminal defence lawyers. That was mentioned in the press again this week. The Government does not seem to have taken that into account when legislating for national jurisdiction. We have to hope that everyone will be sensible about it and that we will not have lawyers or victims going up and down the country. It is less about victims, because the provisions relate to procedural hearings, but it will cause practical difficulties for defence lawyers and accused persons, particularly as people are leaving the criminal bar.

It is sensible to have national jurisdiction for custody hearings. My reading of the bill is that the default will be virtual appearances for custodies, which makes sense—you can see the efficiency in that. However, we must remember that national jurisdiction is about not just virtual but physical appearances. I am concerned about the practical impact on solicitors’ ability to conduct their business if they have to be in different sheriff courts for different things.

It could be a mix.

The policy note says that the financial impacts are

“anticipated to be unchanged as a result of the implementation of restitution orders.”