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Do not worry.

I will press you on that, because the committee aims to help the Scottish Government do its job. Bullet point 3 on page 8 of your report specifically suggests that we should write to the Cabinet Secretary for Justice and Home Affairs and the Lord Advocate to highlight that

“poor prison conditions in Scotland have led to requests for assurances”.

I am trying to understand what specific prison conditions were raised in the three occasions in which requests were made.

Good morning to you both, and thank you for your presentation. I will put my question to Professor Davies, because it is about something that you spoke to in your presentation. Bullet point 3 on page 8 of your report says that

“poor prison conditions in Scotland have led to requests for assurances in extradition/surrender cases. This is causing delay in Scotland receiving wanted persons from overseas and increases the risk that extradition is refused.”

The detail of that is at page 36, where you go on to mention

“the increased frequency of challenges related to prison conditions.”

That will be hugely concerning for the committee to read, because I think that you are suggesting that conditions in Scottish prisons are raising human rights issues and challenges to extradition. Will you tell the committee more about exactly what you are getting at? What are the specific issues? How big a problem is it, and what does the Scottish Government need to do, and by when, to address it?

That is fine—thank you.

I have a brief question about amendment 210, which the cabinet secretary just talked about and which would pull out the reference to a complainer who

“otherwise falls to be treated as a vulnerable witness”.

As I understand it, the intention is to deal with that through other legislation, such as through the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 or something like that. Can you confirm that that is the case and are you able to give us any timescales for when it might happen?

My starting point is that I feel that that is the right thing to do. My concern, however, on which I would be keen for you to allay my fears, is about the new duty that amendment 77 sets out. The amendment would impose a duty to

“provide the complainer with relevant information”,

and it goes on—rightly—to define “relevant information” as various things. The proposed new subsection 5(d) of the Criminal Justice (Scotland) Act 2003 includes, as “relevant information”,

“information requested by the complainer”.

That makes sense, but it seems very broad. In theory, surely the complainer could ask for anything under that provision. Are you able to explain to me why you choose to make it such a wide right in law, and have you considered the practical impact of including that particular subsection?

I have five amendments in this group. Amendments 129 and 131 are related, so I shall deal with them together. Amendments 130, 132 and 133 are separate but related to each other.

I will deal with amendments 130 to 133 first. Members might wish to know that those amendments were suggested to me by the BBC. They fall in section 63 of part 6.

Section 63 concerns the anonymity of a victim or complainer in a sexual offence listed in proposed new section 106C(5) of the Criminal Justice (Scotland) Act 2016. Under proposed new section 106C, no publication, which is a defined term, could publish certain information if to do so would be likely to lead to identification of the victim.

Members will note that the offences that are listed—the ones that prevent publication—all involve a sexual element, which makes sense, given that the whole section is about the reporting of sexual offences cases. However, one of them does not explicitly relate to sexual offences cases—the one in section 106C(5)(e) is the offence of human trafficking or slavery under the Human Trafficking and Exploitation (Scotland) Act 2015. In order for consistency with the rest of the offences that are listed in subsection (5)—and, indeed, with the purpose of the section—my amendment 130 would add the clarifier:

“where the offence”—

that is, of human trafficking or slavery—

“involved a sexual element”.

Amendments 132 and 133 would tighten the provisions further. I do not know whether they will be contentious. They would simply add provisions to proposed new section 106F of the 2016 act, which sets out the punishment for the offence of publishing information that would not be allowed to be published. It not only says what would happen to someone if they did that but, rightly, sets out the defence to the charge. Section 106F(3) states that one defence is when

“the person to whom the relevant information relates”—

the victim—has

“given written consent”

to its being published and has not, before the publication happens, withdrawn the consent by

“written notice”.

All that my amendment 132 would do is to clarify that the consent that would be needed up front from the victim to say that the information can be published could be written or other recorded consent. Amendment 133 provides that the notice to withdraw consent—the victim saying, “Actually, I don’t want you publishing this. Here’s my written notice”—could also be written or other recorded consent. I am trying to give the person who has the ability to give or withdraw consent an increased opportunity to protect themselves if they wish to do so and to remove any ambiguity.

With amendments 129 and 131, we stay in section 63, which members will remember is about anonymity for victims and restricting publication in sexual offences cases. Under that section, no one can publish information that identifies victims of sexual offences. Under proposed new section 106C(3), at the top of page 40, the restriction on publishing a victim’s information stops when that victim dies. Therefore, as soon as the victim died, the restriction on publication would go away under the section as drafted. If committee members agree to my amendment 129, that position would change such that the restriction on publishing information identifying the victim would continue after the victim died. The restriction would not go away just because they had died.

Amendment 131 would protect the position in so far as it is always important that absolute positions can be challenged. In proposed new section 106D of the 2016 act, which is on page 41 of the bill, the Government has rightly ensured that, when there is a child victim and someone other than that child wishes to publish information relating to that child, that someone can apply for a court order and a sheriff can grant it. A sheriff can reconsider the restriction on publishing in relation to a child victim and, if it is the right thing to do, lift it. My amendment 131 would simply add a new and pretty much identical section below proposed new section 106D so that there would be a pretty much identical power for a court to remove the restriction on publishing when someone had died.

Remember that, with amendment 129, I would change the position such that the restriction on publishing would carry on after someone had died, but, in amendment 131, I would give the court the power to take that away if necessary. I have added a further safeguard to amendment 131 such that family members of the deceased would have the opportunity to make representations before a decision was made.

Amendments 129 and 131 would extend the right of anonymity for complainers or victims of the listed offences so that it would continue after they had died and would ensure that there was the possibility of applying to the court to take away the restriction after the victim’s death. Colleagues will be keen to know that the two amendments have the support of the Law Society of Scotland—for transparency, I remind colleagues that I am a member of the Law Society—and that Victim Support Scotland supports amendment 129. For full transparency, it is important to note that Victim Support Scotland does not support my amendment 131.

I move amendment 129.

I am listening to the debate and genuinely trying to work out what to do for the best. I think that I completely understand Pauline McNeill’s intention.

To reflect back, I think that the cabinet secretary’s point was that, if your amendments 157 and 69 were agreed to, that could prevent rape from being tried in the sexual offences court. I think that that was the point that was made. If that is your intention, how do you respond to that point?

Thank you.

Yes.