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Will the cabinet secretary give way?

I thank the cabinet secretary for the thorough answer, and for the strong statement that the provision of medication is not optional and that there is a partnership arrangement on release. If I do not press my amendments, I hope that the cabinet secretary will not mind that I will hold her to that statement. As has been acknowledged, the Criminal Justice Committee felt strongly about the issue. When we make visits, we try to act on what we have heard. I know that other members feel strongly about the issue, too. On that basis, I seek to withdraw amendment 86, and I will not move the other amendments in the group.

Amendment 86, by agreement, withdrawn.

The Criminal Justice Committee pursued this issue following a visit to the Wise Group. One of the issues that was raised with the committee on that visit was throughcare for those who were leaving prison but did not always have access to the prescriptions that they needed. That can be vitally important. There are many reasons why people might falter or get into more trouble when they leave prison, and it is important to ensure that they have the necessary drugs. It was reported to us that, in many cases, that does not happen.

The committee entered into an exchange with the Scottish Prison Service. I think that we have made some progress, but it seemed to me that there was an opportunity to be more specific in legislation and that there should be a mandatory requirement.

Amendment 86 would insert:

“In section 2, in paragraph (e) of the definition of ‘relevant general services’, after ‘services’ insert ‘and prescription services’.”

Amendment 87 would insert in section 10:

“the provision of, and facilitation of access to, prescription drugs,”.

Amendment 88 would insert:

“Throughcare support: duty to report on access to prescription drugs ... The Scottish Ministers must, as soon as practicable after the end of the reporting period, prepare a report on the operation of section 34C during the reporting period ... The report must, in particular, include information on ... whether individuals falling within section 34B(7) have access to the prescription drugs that they require for their physical and mental health, and ... whether medical and prison services have sufficient resources to meet that demand.”

Those are the aims of those amendments.

I do not think that it is enough to have an exchange of warm words about what we would ideally want to see. Earlier in the debate, we talked about not releasing prisoners on Fridays. As far as I am concerned, setting up a system that gives prisoners the best chance of reconstructing their lives on release is an absolute necessity. They should not be leaving prison without their prescription drugs.

I will not press the amendment if the minister gives me anything in response that indicates that the Scottish Government takes a very strong view on the matter. However, I really think that it is not too much for us, as a Parliament, to ask that the Scottish Prison Service and the national health service ensure that prisoners who have served their sentence have, on release into the community, the prescription drugs that they need in order to live their lives.

I move amendment 86.

I agree with the cabinet secretary that the principle of providing the maximum amount of information to the court is very important, but I do not think that the Government addressed the question of the inequality of resources across the country. In fact, I argue that it is a meaningless mandatory requirement to provide an opportunity, and in some courts that is just not possible.

Although the cabinet secretary said that resources can be considered, what she said in relation to Katy Clark’s amendment seems to leave that question totally unanswered. If no social work is available in some courts, the opportunity will simply not be taken up, and that creates inequality, so it becomes a bit meaningless, and it makes more sense to change the “must” requirement in legislative terms.

With that, I will be supporting amendment 20, in the name of Jamie Greene, but not amendment 19, because there was not enough technical information. There is quite a lot to be considered around how this will be done before the court. I will support amendment 15, in the name of Maggie Chapman, but not amendments 16 or 21.

Amendment 73 is on report on bail in certain solemn cases. It concerns a debate that we had at stage 2 in relation to a provision in the bill referring to section 23D of the Criminal Procedure (Scotland) Act 1995.

Amendment 73 is a similar amendment to amendment 1, which Jamie Greene will speak to. I moved a similar amendment at stage 2 and I will now go through the rationale for the amendment. Amendment 73 would remove section 3. It would also add a requirement for Scottish ministers to carry out, within 12 months of royal assent, a review of bail restrictions in solemn cases in order to consider what the effect has been of removing section 23D of the 1995 act.

Section 3 of the bill seeks to repeal section 23D of the 1995 act, which restricts the granting of bail in certain solemn cases. Section 23D provides that bail is to be granted only in exceptional cases if the accused is being prosecuted under solemn procedure—which is used in more serious cases—for a violent, sexual or domestic abuse offence and has a previous conviction under solemn procedure for any such offence, or a drug trafficking offence, which is also included within the provision.

With the repeal of section 23D, the courts would instead simply apply the general rules that we have been discussing—the new bail test or the old bail test, depending on what happens at the end of stage 3—but victims’ organisations believe that removal of section 23D from the 1995 act presents a serious risk to the safety of people, and the victims of gender-based abuse in particular. For them, retention of section 23D is a vital part of Scotland’s commitment to eradicating violence against women and girls.

The proposed grounds for refusing bail are not sufficient on their own in relation to protecting people who are affected by crime, and are an inadequate alternative to the additional safeguard that is contained in section 23D of the Criminal Procedure (Scotland) Act 1995. The Faculty of Advocates is of the same view as Sheriff Mackie, who, when speaking for the Howard League, supported removal of section 23D to allow discretion, so we can see that opinion is split on the issue. On one hand, victims think that it does one thing, and on the other hand, many practitioners are quite happy to repeal it.

I should say that the provision in section 23D of the 1995 act has a bit of a history, because it was discovered that the reference in subsection (3A)(c) to previous convictions for domestic abuse was only inserted into the 1995 act by the Domestic Abuse (Scotland) Act 2018, whereas all the other offences that I have referred to were previously mentioned in it.

Initially, my view was that the court should have discretion. As one witness said, if someone had been convicted of an offence 20 years previously, that would tie the hands of the sheriff, because they would need to apply that particular provision. However, on balance, I feel that that provision should probably be removed. I am certainly concerned that there is a difference of opinion about leaving it in or taking it out. One of the things that puzzles me is why the Government, having put the provision on domestic abuse into section 23D, would take something out that was only put in four years ago.

My suggestion is that, if we take that provision out, that should be reported on. We should, arguably, report on it anyway because of the difference in opinion about what it actually does. We need some clarity about what the impact of keeping it in or taking it out would actually have.

I move amendment 73.

Disastrous implementation.

I thank my colleague Katy Clark for her choice of the subject of the debate, and for her excellent speech. The topic is critically important to justice policy, and I am glad that we are discussing women’s offending and the treatment of women prisoners in Scotland’s criminal justice system.

As many of my colleagues have noted, Scotland has one of the largest female prison populations in northern Europe—as has been the case since 2010—yet women make up only 4 per cent of the prison population. A recent review of evidence found that women are less likely to receive a custodial sentence than men and that, when they are sent to prison, their sentences are usually shorter.

Sadly, it has taken us almost 20 years, or more, following various reports criticising the current system for women, to finally recognise the unique characteristics and needs of women in custody, and the fact that many should not be in a prison, as another facility would be more appropriate.

As Rona Mackay mentioned, the Criminal Justice Committee recently had the opportunity to visit HMP Stirling. I, too, was very impressed by the set-up and by the work that the Scottish Prison Service has done there. The site has no high security fences. To all intents and purposes, it is a prison, but it is completely different from Cornton Vale prison.

Women are a vulnerable group. Jamie Greene spoke to that. Often, they have been subjected to domestic violence, coercive control and sexual abuse, including rape. Women in prison have significantly greater rates of poor mental health than women in the general population or male prisoners. One of the top issues for women prisoners is unresolved trauma. We also deal with prisoners who have huge learning difficulties. The characteristics of the female population are an important factor.

In 2021, the Mental Welfare Commission for Scotland published a report on women with mental ill health in prison in Scotland, noting serious concerns about the segregation of women for extended periods and the conditions in which women were held. A significant concern was women’s access to medication and the recording of that. The commission noted that there were gaps in the dispensing of medications for physical and mental health in individual cases, amounting to significant gaps in treatment. The Scottish Prison Service indicates that many women should be in a mental health facility rather than in prison, because of the powers that are needed to deal with those issues.

Women in prison have higher lifetime instances of trauma, including repeated physical and sexual victimisation, than either male prisoners or women in the general population. A study conducted by researchers at the University of Glasgow found shocking evidence that around three quarters of women in prison suffer from a self-reported significant head injury, and that 40 per cent also have an associated disability.

Prison disrupts women’s lives and has long-term effects on the lives of their children. Although precise figures are hard to obtain, it is estimated that approximately 65 per cent of women in prison in Scotland are mothers. Shockingly, only 5 per cent of children stay in their own homes once their mother has been imprisoned. The effect of women’s imprisonment on families, especially young children, can be utterly devastating. As women are much more likely than men to be the primary carer, the impact of a mother’s imprisonment on children is more pronounced, ranging from their having to move home and school, to their having poor academic performance, increased risk of mental health problems, and involvement in the criminal justice system.

We know that women’s offending is different and we need to recognise that women are in prison for fairly minor offences, such as theft, fraud and minor drug-related offences. Only a small minority of women are convicted of violent offences, and a large majority of them have been victims of violence themselves. It is important to highlight that when we develop prison policy.

The introduction of community custody units, such as the Bella centre in Dundee and the Lilias centre in Maryhill, is welcome and long overdue. They are an incredible development and are part and parcel of a redesigned system. One thing that I thought when I visited them was that the overall numbers need to be revisited. Previously, we would imprison 400 women, so we need to make sure that those alternatives to custody exist and that those units are used in the way in which they are meant to be used. A recent report said that at least one of the units was half empty after six months. We must make sure that we use that resource and use it well.

We know that there is a systemic level of violence against women and girls. When women offend, we must make sure that they are housed in an appropriate setting and that they get the opportunity to rebuild their lives. I commend the Scottish Government on making significant progress in creating a new setting for women who offend, and I look forward to the other speeches this afternoon.

Research shows that the swapping, collating and posting of nude images of women without their consent is on the rise. However, unlike revenge porn, that is not a crime. As the cabinet secretary outlined, under current Scots law, there must be proof that the perpetrator intended to cause, or was reckless in causing, fear, alarm or distress. However, the offence is limited in that proof of specific motivation is required, which means that many cases of cyberflashing are excluded. There is international best practice on the matter—such as that in New South Wales and many US states—which criminalises the non-consensual distribution of intimate images without the requirement to prove specific motivation. That is where there might be a gap in the law.

To ask the Scottish Government what its position is on whether there are any gaps in Scots law in relation to tackling image-based sexual abuse. (S6O-02338)

Does the cabinet secretary take a view on whether adopting a consent-based cyberflashing law might be beneficial here? At the very least, would she be prepared to discuss the matter with me?