Seòmar agus comataidhean

I will come to both of those points. It is important that the other questions that you asked are answered, but it may be not a good idea to—[Inaudible.]—publicly. Perhaps I could pass information about some of the issues that have been raised—for example, the number of items of mail that have been intercepted—on to the committee outwith the public sphere. As Teresa Medhurst rightly pointed out, there is a battle of wits between the Prison Service and those who are trying to safeguard prisoners and stop drugs getting into prisons, and those who are trying to find new ways of doing that.

You asked about police follow-up. I mentioned that an MOU between the Prison Service and the police is being discussed to ensure that all those items are uplifted. It is my understanding that there is no recourse in relation to prisoners who, at that point, would not have received any infused materials. That is my understanding, but Teresa Medhurst will know about that better than I do. The MOU will result in all those items being uplifted by the police. How the police will prosecute that is a matter for them. Again, Teresa Medhurst may have more information, because she will be involved in the drawing up of that MOU.

That issue has been raised before; it is valid and is the subject of the discussion on an MOU between the Prison Service and the police. You will know that the Prison Service has no right or powers to confiscate those materials; it has to come down to the police. That is why the MOU, which will result in the uplifting of materials that have been infused with drugs, is being put in place.

On the previous point, which was really important, Mr Greene mentioned that family members might be sending materials. However, serious organised crime might still be behind that, and the family member could be under duress. It is a bit like human trafficking, where we do not want to punish the victims. It is a complicated matter. Mr Greene raised an interesting point about getting a better handle on what the police are able to do once they discern criminal behaviour, and we will follow that up. I am happy to write to the committee on both the matters that he raised.

Thank you, convener. I wish the committee a happy new year.

The purpose of the Scottish statutory instrument is to add psychoactive substances, as defined in section 2 of the Psychoactive Substances Act 2016, to the list of prohibited articles in the Prisons and Young Offenders Institutions (Scotland) Rules 2011, and to provide prison governors with powers that will enable them to mitigate the risk of illicit substances that are being introduced through general correspondence that is sent to prisoners via the mail system across the prison estate.

Prohibited articles are items that prisoners are not allowed to possess in prison, and currently include controlled drugs, alcohol, offensive weapons and other items. The amendments also provide prison officers and employees with powers that will allow them to photocopy a prisoner’s general correspondence, provide the prisoner with a photocopy of that correspondence and retain the original correspondence for return to the prisoner on their release. Prison staff will also be provided with the power to test general correspondence for the purposes of investigating whether it contains a prohibited article.

The use of psychoactive substances in prisons across the United Kingdom is escalating. The Scottish Prison Service has been working tirelessly to adapt security measures to prevent, detect and deter the introduction of contraband to the estate. However, the use of such substances is a complex and multifaceted problem in our society, and there is no simple answer to the issue of its impact in the criminal justice system.

During 2021, five confirmed deaths in SPS custody have been linked to suspected drug overdose involving the psychoactive substance etizolam, an illicit class C drug that can be infused into paper, card and clothing. Intelligence from the SPS also indicated that there has been an escalation in the number of emergency drug-related escorts to hospital and incidents of prisoners being suspected to be under the influence of drugs. Members will be aware of the emerging debates on the issue, and that Her Majesty’s chief inspector of prisons has been calling for the introduction of the measure that we are discussing today.

I am also aware that Families Outside, which works with children and families who are affected by imprisonment in Scotland, has written to the committee to note its support for the proposals. On the other hand, I know that concerns have been raised by stakeholders regarding prisoners’ human rights.

Many operational decisions in our prisons require a rather delicate balance to be struck to address a range of competing rights but, ultimately, the SPS must do all that it can to protect and ensure the health and safety of its staff and people in its care.

The instrument that is before you today is considered essential to mitigate the threat of significant harm to prisoners and staff that might be caused by further increases in the volumes of psychoactive substances entering the prison estate. The power that is set out in the instrument will help prison officers to prevent the entry of illicit substances into prisons and reduce the availability of those substances to prisoners. That can only help to reduce the risk that those substances present to prisons, prisoners and prison staff.

We considered options that would make the measure less intrusive, such as handing mail that had not tested positive for illicit substances to prisoners while they are in custody, but we are responding to an ever-developing threat, with new substances created that we cannot detect. Other options would not have been as effective in stopping that route into prisons for those substances. We acknowledge that there might be an impact on prisoners as a result of the instrument and its implementation, but they will continue to receive the substance of their correspondence, and they will be offered the choice of having the photocopied correspondence destroyed or retained, so that they can receive clean originals on release.

The amendments will also affect only general correspondence sent to prisoners, not confidential correspondence, such as privileged correspondence, court correspondence and medical correspondence, all of which are already protected under rule 56 of the prison rules.

The impact of not doing anything would be further disorder, illness and potential risk to life in prisons. I think that the measure strikes a fair balance between prisoners’ rights and the security and good order of prisons, which is also an essential factor in upholding prisoners’ rights in general.

The instrument has been in force since 13 December 2021, and I acknowledge the concerns that have been expressed by members of the Delegated Powers and Law Reform Committee regarding the breach of the 28-day laying period.

In normal circumstances, negative SSIs require to be laid before the Parliament for at least 28 days before they come into force. However, as outlined to the Presiding Officer by the head of the SPS, there was a concern that, in the run-up to the festive period, when the volume of mail increases, the SPS would in all probability have experienced a great escalation in the volume of psychoactive substances being sent into prisons via general correspondence with prisoners. The instrument was laid in November after careful consideration by the SPS and escalating concerns following the incidents at HMP Shotts and HMP Addiewell involving illicit substances. It was considered critical that the process be put in place quickly, and before mid-January 2022, which is when the SSI would have come into force if laid before Parliament in accordance with the 28-day rule.

The SPS will also commit to doing everything possible to mitigate any detrimental consequences that impact on the receipt of special mail such as photographs and occasion cards. Where possible, governors have been asked to give consideration in the first instance to testing all cards and photographs using the Rapiscan Itemiser drug-detection machine to allow the issuing of the original copies.

It is recognised that the maintenance of personal connections and family contact are essential to the lives of people in SPS care and, of course, their families. The SPS has implemented a number of measures to support that, including access to physical and virtual visits, access to communal and in-cell telephones and access to the Email a Prisoner and Prison Voicemail schemes.

The SSI has been in force for about four weeks, and there has been support for the change from the prison population to date. Early indications are that there has been a significant decrease in recorded drug-taking incidents and drug-related emergency escorts in the month of December 2021, compared with the previous two months. There were 248 drug-taking incidents in October, 305 in November and 131 in December; and there were 39 drug-related emergency escorts for the month of October, 37 in November and 15 in December. The SPS will continue to closely monitor the implementation of the policy across the estate.

The SPS and Police Scotland are reviewing the current memorandum of understanding concerning the management of illicit substances found in prisons, including the investigation, collection and destruction of such substances. A further meeting to discuss the MOU is planned for mid-January. In the meantime, Police Scotland has agreed to uplift all items suspected to be contaminated with illicit substances. I know that that was a concern that was raised by prison officers.

The instrument is, of course, only one of a range of measures and support that is required. There was a co-ordinated effort by the SPS, the national health service, Police Scotland and other criminal justice partners to limit the supply of drugs, including psychoactive substances inside and outside prisons, and the provision of support and treatment will be required. It is, therefore, crucial that our approach to tackling the problem concerns a balance between security and deterrence on the one hand, and also recovery and support on the other.

I am aware that there is a range of views among members on the issue, and I welcome this opportunity to answer members’ questions.

You will be aware, not least from some of the points that I made in my opening statement, that there is an on-going review on the impact of the new measure, which is looking at, for example, how the attitude of prisoners has developed. Although, initially, prisoners’ attitude was in some respects hostile, it is now much more supportive. That is explained by the fact that the bullying and the medical fallout from the prevalence of such psychoactive substances in prisons affects prisoners directly. In many cases, they are pleased that the measure in question has been taken, not least because it leaves them less vulnerable to being bullied to provide drugs for others.

We are also talking to prison officers and the trade unions; I am sure that the Prison Service will be able to say more about that. I am not aware of there being a long-stop deadline for a review to take place, but I am more than happy to continue to have a dialogue with other interested parties, including some of those that have raised objections, as the process moves on.

I would be keen to hear from Teresa Medhurst on that question.

I think it important that the police respect the rights of everyone in this situation. It is not a cliché to say that Police Scotland is very focused on human rights—indeed, that was very much the case at COP26 and has been so in various other respects—and I think that the police should, as DCC Malcolm Graham said, try to uphold the rights of everybody involved.

You have said that such a situation is new, but I am not sure that that is the case. In fact, I am not sure what new situation you are referring to. Trans people have been a feature of the justice system for a long time, and I think that the police have dealt with this rightly in the way that DCC Graham suggested.

Moreover, just in case there is any confusion, I would point out that nothing in the proposed gender recognition reforms should impinge on this area. There are no proposals for changing crime recording in that respect. Given that not one of the 1,129 rape cases that were reported in the first six months has fallen into the category that you have mentioned, I think that the police’s proportionate approach is the right one.

I hate to preface my answer with the same point again, but that will be a matter for the courts with regard to how they run the system. You are right to say that Lady Dorrian has made a recommendation on that, and we will give careful consideration to that and the on-going research on the issue. We are clear that there should be restrictions on the use of sexual history evidence, with the court, as always, having a critical role in deciding whether to allow such evidence in any given case. As you will know, there are safeguards in Scots law that mean that the court must give explicit approval for character and past behaviour evidence to be used in sexual offences cases. Convener, you might also note that we hosted a round-table discussion in November 2020, before either of us was doing the jobs that we are doing today, on the safeguarding of privacy rights for sexual offence victims and the perceived barriers to their coming forward to report crimes against them.

We must ensure that complainers are aware of their rights. That issue has come up in evidence to the committee and was covered in the committee’s earlier evidence session today. Some of the victims that you heard from highlighted that point as well. We have to ensure that they are aware of their rights. We also look forward to receiving further information on the proposal for the Scottish Legal Aid Board-funded pilot project. That is not to say anything definitive, because we will wait to see how Lady Dorrian’s recommendation is taken forward in the governance group, but important safeguards exist, and we must ensure that people are aware of how their rights can be safeguarded to a greater extent than is currently the case.

Apologies—I had the wrong one there. I am happy to cover the second LCM.

I am grateful to the committee for the opportunity to take questions on the supplementary legislative consent memorandum for the Police, Crime, Sentencing and Courts Bill, which the committee has had before it previously. The memorandum covers the clauses on extraction of data, which are intended to clarify the existing position following the Information Commissioner’s report on procedures in England and Wales. The measures are not intended to create any new powers.

The Government lodged an LCM on 5 August for the provisions that extend to Scotland. At the time of lodging, I advised that the Government was not able to recommend consent for the power to extract information from digital devices of witnesses, victims and others, as discussions were still on-going between the former Lord Advocate and UK ministers. I also stated my intention, once the position on investigation of deaths was resolved satisfactorily, to lodge a supplementary memorandum for those provisions in order to ensure a consistent approach that takes account of Scotland’s distinct position.

Following confirmation from the UK Government that the issue of investigation of deaths will be kept under review once the measures are in force, we have now concluded that the identified risk is not sufficiently material to prevent the Scottish Government from recommending that the Scottish Parliament consent to the provisions.

That is a good question. We are probably not yet ready to answer it completely, but I will give some background information. We are working with Police Scotland, the Crown Office, Rape Crisis Scotland and other organisations that have been involved in developing domestic abuse courts, which, so far, are in Edinburgh, the Highlands and Islands and Dumfries and Galloway. Evaluation has still to be undertaken, but Crown Office statistics from earlier this year showed that the number of charges related to domestic abuse last year was at its highest since 2015-16.

Again, it is important to reflect that specialist courts are a matter for the judiciary to consider. If the judiciary and Lady Dorrian indicate a willingness to progress specialist courts, we will consider what is needed. There are areas in which domestic abuse courts operate, and there are areas in which domestic abuse cases are dealt with on an ad hoc basis. Those are all operational decisions for the Scottish courts.

The date on which the new domestic abuse offence will have been in operation for three full years is 31 March 2022, which will trigger the need for the Government to publish a statutory report that details the qualitative and quantitative information about the operation of the new offence and the experience of victims. That will probably be the most useful publication in answering Jamie Greene’s question.

Willie Cowan might be able to say whether there has been informal feedback from the different partners.

I think that it has to be live. The governance group will decide what to look at, but you have made a very reasonable point. Referral to the High Court, when the specialist court does not think that it has the required sentencing powers, would replicate what happens in other spheres.

The basic point is about ensuring that there is no confusion, overlap or duplication. Knowing the people who are on the governance review group—not least Willie Cowan, although he can mention others—I think that they will have that in their minds. It is not in anybody’s interest, especially in the context of the current backlog, for us to duplicate anything. We want to make things as efficient as possible at the same time as making sure that justice is delivered and is done in a trauma-informed and victim-centred way. I therefore think that the group will be considering that issue. It might be looked at by one of the working groups that could be set up to look at various aspects; however, that will be for the group to decide. Willie might want to come in on that.

Convener, you will have seen in the letter that I sent to the Lord Justice General, which I copied to you and the committee, the draft remit of the governance group. I expect that that will be finalised when the group meets, as I have said, next week.

I can provide some details—I am happy to provide the relevant correspondence if committee members would like me to do so. The discussions next week will cover the work plan, the timetable and the identification of any working groups that the governance group wants to set up to look at specific areas that the report covers. The committee will be aware of the breadth of the report.

As the committee will also be aware, there is a very public timetable commitment, which is outlined in the programme for government, to legislate in the current session of Parliament for a statutory right to lifelong anonymity for complainers in sexual offence cases. We will also give serious consideration to the Dorrian review’s other recommendations, including the potential introduction of specialist courts and what the implications of that would be.

As I said, I expect that the group will work at pace and provide regular updates to the national criminal justice board and the Lord Justice Clerk’s review group. I also expect that the committee will be kept fully up to date.

I have one final point, convener. Your question touched on the idea of duplication. As I mentioned, we have, this week, initiated a consultation on the not proven verdict, which involves a number of related issues such as the size of a jury and the majority that is required for a conviction. Many of Lady Dorrian’s recommendations, a number of which would require legislation to take them through, will start to come in at that point, once we have undertaken that consultation and we have a way forward. Those issues are not all of a piece, but they are certainly interrelated, so we would want to take them through in concert. That might give the committee an idea of the timetable that we are looking at.

I will say this now, and I am sure that it will come up again. We know of about 22 pieces of legislation that we have to take through, and there will be more that others will bring forward. There is a crowded landscape and we cannot do everything at once. We are trying to do some of those things as quickly as possible while taking the time to consider them properly.