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I am grateful.

Several highly experienced organisations, however, have responded to your consultation and suggested that, if a law such as the one that your bill proposes were to be brought in, it could compromise safety and even increase the risk of violence against those involved. How do you respond to that? Is there at least a possibility that similar legislation has driven practices underground—that prostitution has not decreased but has simply been driven underground where it is not so known about—which could explain the statistics that you have just adduced?

That data seems crucial to me. If the data exists—

I understand. Thank you.

Yes, that is interesting. As I said previously, the more data that you can send the committee, the better, if that is possible, although I note your remarks earlier about the support that you have.

Pam Gosal, on your point that the provisions in your bill would act as a deterrent, I note that you based the notification requirements on those in the Sexual Offences Act 2003. Some organisations, in their responses to the consultation, have said that there is no evidence that those requirements have had an impact on the behaviour of offenders, and thus your proposals would not reduce or prevent domestic abuse offending. How do you respond to that? Do you have evidence to show that your proposals would have such an impact?

Good morning. Ash Regan, I can entirely understand the premise of what your bill seeks to achieve, and I find myself sympathising with an awful lot of what you have said in your set-up.

According to your policy memorandum, your bill will

“reduce the amount of prostitution in Scotland”.

However, that begs a question. What evidence can you provide to the committee that your new offence and the repeal of the existing offence will reduce the number of people who are involved in prostitution?

Correlation is not causation. However, if you could supply data that shows France bringing in legislation and then having a decline in prostitution, that would be very helpful for the committee.

I am grateful for the answer. I say that with great respect, because I enjoy our exchanges, cabinet secretary, but I am not sure that it answered my question, which was about the data and the research that has been done on the impact that the reduction will have on rehabilitation in prison. If you have that data, perhaps you could outline it in your response to my next question.

In your opening remarks, you said that there would be no change to the risk assessments. However, if people are in and out of prison sooner, it would, logically, be more difficult to risk assess them and to address any issues that they are bringing with them from the outside. You say that there will be no change to those assessments, but has there been any investigation as to whether there might be a need for such a change, or has it just been assumed that there is not?

I will speak to amendment 44 and then to amendments 45 and 46, relating to section 4, which starts on page 8 of the bill. Taken together, those amendments are aimed at ensuring that, although digital productions will be possible, all parties would have the right to view physical evidence and that physical evidence could be produced.

Amendment 44 would delete section 4(2) of the bill. The reason is that subsection (2) refers to section 68(2) of the Criminal Procedure (Scotland) Act 1995, which provides that the accused is entitled to see the physical productions in specific places, depending on in which court the trial diet is happening. Section 4(2) of the bill would change the default position, such that the accused would no longer be able to see the production physically if it were available in electronic form and the accused had had the opportunity to see it in electronic form. I do not quite understand that, because it feels as though it is a removal of rights for no discernible benefit. My amendment 44 would therefore remove section 4(2) from the bill, such that the default position would continue to apply and the accused would be able to see the physical production on request.

I turn to amendment 45. Section 4(4) of the bill provides that an image of physical evidence

“is ... to be treated for evidential purposes as if it were the physical evidence”.

Again, I am not sure that we should be putting handcuffs on the court and the processes that it follows. My amendment 45, therefore, would simply wind us back from the absolute, such that the image “may” be treated as if it were the physical evidence, if the court wants to do so—thus giving the court a more proactive discretion over whether that should be done, rather than accepting it as the default.

My amendment 46 builds on that principle to provide that, where the court has directed that the image of the evidence

“be treated ... as if it were the physical evidence”,

all parties and the judge may still request to see the physical item.

Once again, my authority for the amendments is the committee’s report, which, on page 20, says:

“At any point, up to and including during a trial, any party, including the judge, who wished to see the physical production should not be prevented by this Bill. We recommend that the Scottish Government strengthens these provisions on the face of the Bill to make it clearer that this would be the case.”

That was in line with the Faculty of Advocates, which, in its submission to the call for views, said:

“in some cases, the item may have certain distinctive physical characteristics which are less obvious in an image. This may be of particular importance in determining whether the item can be seen in CCTV footage. There may be limited occasions when this is the case. However, on such occasions the items themselves may provide decisive evidence to incriminate or exculpate an accused. It is important if the court is not satisfied by the use of an image in place of the physical evidence that it remains open to the court to otherwise direct that the original item be produced.”

That is what I have sought to capture in my first three amendments in this group.

Amendment 49 is slightly different, but it would also apply to section 4 on digital productions. The amendment was suggested to me by the Law Society of Scotland. I remind colleagues that I am a member of and am regulated by the Law Society. Amendment 49 simply says that, even though there is now a valid image of the physical evidence, the actual physical evidence

“may not be destroyed while proceedings are ongoing”.

That includes until after any appeal is completely finished.

Again, that is in line with the committee’s report, which says:

“it is not clear how long that object must be retained for beyond that point. The concern from some organisations was that, in the absence of any guidance to the contrary, the existence of a digital image might make it more likely that the original physical object would be disposed of. This clearly would be inappropriate if there was the chance that the object may be required in any future court proceedings.”

That was the reason for my lodging amendment 49.

Pauline McNeill’s amendment 48 is similar. It is very helpful, but it goes beyond what I am proposing. At this stage, I am not persuaded by amendment 48 and what it proposes in relation to the Scottish Criminal Cases Review Commission. We know that the SCCRC can accept a request to investigate at any time, potentially years after a conviction. Should amendment 48 be agreed to, presumably the original productions would always need to be retained—perhaps in perpetuity—which would undermine the point of the proposal.

I remain to be persuaded by Pauline McNeill’s remarks on amendment 48, but my starting position is that it might go too far and undermine the proposal.

I move amendment 44.