Seòmar agus comataidhean

I entirely endorse what you have just said, convener. Nicola Murray’s evidence was profoundly moving and extremely effective. We all commended her bravery in speaking out on a matter that could not be more sensitive.

There is more evidence that we have yet to hear—we need to obtain, collate and consider it—but, at present, I am minded, on the principal matter in the petition, to go down the route of recommending that there should be a specific new statutory offence.

I have raised with witnesses—including, at our previous meeting, Dr Neal, Dr Scott and Mr Tidy—the possible alternative of seeking to use the existing law of assault by libelling these particular circumstances, or the alternative of an aggravated offence, which Mr Sweeney raised as well, as far as I can recollect. Those might be alternatives.

However, the evidence at that meeting—in particular, Dr Neal’s dismissal of those alternatives—was compelling. I took from her evidence the argument that, although in theory the alternatives might work, in practice they would not, and that a matter of such gravity as the loss of an unborn child merits a proper, distinct and separate new statutory offence. She also pointed to the fact that such an offence exists in England and elsewhere, albeit that the law in England dates back to 1929 and was conceived for a different purpose altogether.

Be that as it may, and subject to learning a bit more information from the various legal authorities and relevant bodies from whom we can obtain that evidence, my feeling has changed from thinking that there might be an easier way—an existing alternative—to agreeing with the evidence that we heard, which was that there should be a new statutory offence.

Another important point, although perhaps not the main one, is that the circumstance that the petitioner described in which she found that the charge had been reduced without her being consulted is, I think, profoundly wrong. All the witnesses that we asked about that said so, and it must be changed. Some recommendations there anent would be appropriate, in my opinion.

I have a suggestion for consideration, although I have not really thought it through and, as I said, there is more evidence that we have to obtain. Because the issue that the petitioner has raised is of such gravity, I wonder whether it might be a candidate for a debate that the committee brings to Parliament, so that we have the oxygen of transparency and openness, and the opportunity for other members to contribute.

I know that we want to use that approach sparingly, and I do not have knowledge of how sparingly it has been used in the past—although you will know, of course, convener. Nonetheless, I feel instinctively that, because this is such a profoundly emotive, important and sensitive issue, there would be considerable interest from other members in hearing more about it.

The Deputy First Minister in his reply said that it would be open to the Fornethy sufferers of non-recent abuse to apply to the existing scheme; in other words, he did not say that they were ineligible. In fact, I think that the implication of his reply to the committee was that they may be eligible. The difficulty is, as you have said, convener, how that can be proven if the records are not there.

I wonder whether we might suggest a solution for the Fornethy victims that, given that it is not possible for them to demonstrate how they came to be in care, they should be given the benefit of the doubt. Would that be possible? If someone is denied the opportunity to provide evidence because of the fact that public authorities have not kept that evidence properly—they have mislaid it or cannot find it—that is not the fault of the survivors. I know that that is not an in-principle answer, because if one has suffered in care, the explanation of how you came to be in care is not relevant. A victim is a victim, and as Victim Support Scotland argues in its submission, all victims should be entitled to redress.

That principle is easy to expound but more difficult to put into practice. I know that it has been considered by the previous Education and Skills Committee in far more detail, but I confess that I have not studied that, so I should put that on the record. Perhaps there are other arguments that I have not considered, but, in order to get a solution for the petitioners, I wonder whether we might make the point that it is simply not possible for those victims to provide evidence that they came to be in care because of a decision that was taken by a public authority. It appears that that is almost certainly the explanation for most cases of children who found themselves at that unfortunate place.

Dr Neal, you have said that you have been immersed in this area for years and you have helpfully alluded to practice in England, Wales and Northern Ireland. Could you submit any material that you think might be helpful to guide our deliberations on this? Plainly, the experience of areas where there is a specific offence is relevant, and the more information that we can glean about how the situations in those places compare with what has happened in Scotland, the better.

I agree with Alexander Stewart. I note that in its response Transport Scotland has stated that delivering a permanent and resilient solution is a priority, which is welcome, but I think that the seven to 10-year timescale will cause concern and consternation in the parts of Scotland that are reliant on the link. When the road is closed, the detour is very substantial indeed and far longer than any other detours that I know of that affect such a large group of people. I know that these things are complex, but I am concerned about the length of time that all of this will take and the fact that the preferred route and solution has not yet been identified in order to provide reasonable transport links for people in those parts of Scotland.

Good morning and thank you for your evidence thus far. I absolutely understand that this is a huge area of concern, but the particular aspect that Nicola Murray has asked us to consider is the proposal for an unborn victim of violence act. That is her focus, and in the evidence that she gave to the committee in June, she gave a very articulate, moving and harrowing account of her own experience of losing children. She told the committee:

“I lost a child—I lost children—my children lost siblings and my parents lost grandchildren”—[Official Report, Citizen Participation and Public Petitions Committee, 29 June 2022; c 2.]

The assailant was charged and was convicted thereafter of a lesser offence and fined £300, which is something that will obviously rankle, probably for ever.

With that background in mind, I want to ask a few specific questions about the petition, given that that is what we have been asked to do, instead of considering the hugely important wider issues that the witnesses have quite rightly talked about.

First, should a new offence be created, or should we simply adapt the existing statutory or common-law offence to libel, if you like, that an act of violence has led, through causation, to the death of an unborn child? I guess that that is a legal question, so I am not sure whether all the witnesses will be able to answer it. It might be that we need to ask it of the Crown Office and the Scottish Sentencing Council. However, what are the witnesses’ views on that? Should there be a specific new act or an offence of causing violence to an unborn child, leading—I imagine in most cases—to the death of that unborn child, or can we use the existing weaponry of offences in statutory or common law?

Thank you for those responses. I will ask a related question. In Nicola Murray’s case and, I suspect, in other cases, the original charge that was libelled was reduced, and she was not aware of or consulted on that. The Crown Office and Procurator Fiscal Service is rightly independent of politicians and so on, and it cherishes that independence, but do the witnesses consider that, in the particular circumstances that we are talking about, there should be a duty, whether it is created by law or practice, on a fiscal or lawyer handling a particular prosecution to consult the victim prior to the decision being taken to reduce a charge?

In the case of Nicola Murray, the reduced charge led to a monetary penalty of £300. We, of course, have to be careful not to make judgments about the case, because we were not there and did not hear all the evidence, whereas the judge heard all the evidence, so I do not mean to make any value judgment and I cannot do so, because I am not in a position to do so.

As a matter of principle, however, do the witnesses consider, given the gravity of the consequences that Dr Neal rightly described, that there should at least be a consultation? At the end of the day, the decision-making power probably has to rest with the prosecution authorities, but should there at least be a form of consultation required prior to the acceptance of a reduced charge by the fiscal or the Crown Office?

I want to probe that further. I can understand that an entirely new act would create clarity and certainty and draw attention to the matter, which I think you are arguing would be good things. Why have you formed that view about the alternative of using the existing measures given the flexibility that is inherent in Scots law, and particularly the ability to libel different types of charges such as assault, culpable homicide or even murder?

The existing common-law offences are flexible and, as I understand it—although my practice as a criminal lawyer is now a distant memory—that flexibility can be used by the Crown Office and Procurator Fiscal Service to libel different circumstances in the charge. It is a matter of will, practice and the determination of the authorities to follow that through and take it seriously. Surely that is the issue, rather than the inadequacy of the legal framework, which could be used to adapt the existing charges.

That is very helpful. Do the other witnesses have comments?

That is very helpful.