Seòmar agus comataidhean

You said that you think that the sex offenders register has resulted in a reduction in repeat offences—recidivism.

So, is it both?

Good morning. I will start with some technical questions, the answers to which should be short.

I just want to be clear. Charlie, you have already said that the provisions relate to those who are convicted on indictment in solemn proceedings and those who receive a 12-month sentence. Am I right that the 12-month period relates to the sentence?

So that might not necessarily be jail time.

Anyone?

Well, I am going to make a suggestion. I hope that you would agree that we need to have a wider discussion. With regard to your bill, you have said that you think that the solution is telling boys that domestic abuse is wrong—

But I am suggesting that—

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.

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?

Good morning. I thank the cabinet secretary and all her officials for their helpful exchanges, which helped me to understand some of the technicalities in the bill. Some of my amendments were drafted before we had our most recent conversation, so I ask people to bear that in mind.

I wish to probe some important issues relating to how the provisions on virtual attendance at our courts would be used. I am fully supportive of the principle of virtual attendance being a permanent feature of our courts, because that is important for the proper functioning of courts and, as Crown Office officials said in their very good evidence to the committee, it is important for victims who would not otherwise come to court. Excellent framework legislation on vulnerable witnesses has been introduced in successive parliamentary sessions, so the provisions do not stand alone.

Amendments 33, 35 to 37, 39 and 40 would give the Lord Justice General the power to issue a determination to change the default mode of attendance to virtual attendance in certain circumstances, but not for certain types of cases. I confess that, on reading the bill, some things were not clear to me. I think that, depending on the case and the type of trial or proceeding, virtual attendance would be for individuals. I note that the Lord Justice General has exercised the power quite sparingly, but, if we grant an extensive power, it could be used much more regularly.

The default mode of attendance being virtual already applies to certain types of hearings, including preliminary hearings, some sentencing hearings, full committal hearings and bail appeal hearings. I have no particular concerns about any of that, because those hearings are administrative in some senses and do not really involve witnesses, although the Scottish Solicitors Bar Association has raised concerns in relation to custody appearances. I want to be clear that the Lord Justice General, who has used the current powers in relation to those hearings, could not say that a category of trials, for example, should be virtual. I do not think that that is the case—the cabinet secretary is already shaking her head—but I want to be sure about where the powers stop and start.

Amendment 38 prescribes that, if virtual attendance is to be agreed, it must have the approval of both parties—the accused and the complainer. That is probably already accounted for. The cabinet secretary will probably say that the test is whether it is in the interests of justice for that to happen. That is fair enough, but I hope that she will appreciate that I am testing where the line is drawn for hearings that already have virtual attendance.

In its report, the committee highlighted an issue to do with

“the criteria which should be used by the Lord Justice General in making a determination in favour of virtual attendance in particular categories of case. The Bill does not elaborate on what the criteria should be, beyond that it should not prejudice the fairness of proceedings or be contrary to the interests of justice.”

The committee’s view is that there should be

“additional criteria which the Lord Justice General must take into account before making a determination.”

It is simply a case of taking a belt-and-braces approach in that regard.

During the committee’s evidence sessions, Sharon Dowey asked about the case for virtual appearances in custody cases. Paul Smith and Simon Brown had concerns about ensuring proper co-ordination with the person they were representing if there was virtual attendance. They also raised concerns about the issue of the quality of the connection, which I share. I will not go through those again, but I have seen that issue for myself.

I would have thought that, if we are going to rely much more on virtual attendance in courts, it would be a prerequisite to ensure that we are clear about where that approach can be used, and that the connection should be as good as it can be. In particular, we should ensure that virtual attendance does not detract from the current arrangements, especially—as Paul Smith said in his evidence—where an accused person has never been through the court process before. It would not be fair to prejudice their interests. It is important that we are clear that those aspects are all brought together in a satisfactory way.

I move amendment 33.