Seòmar agus comataidhean

I thank Pauline McNeill for opening the discussion on this group. It is an important discussion and an interesting one at that.

Amendment 1010 would establish a requirement for the Scottish Courts and Tribunals Service to publish information about the operation of trials in which there is a virtual element. It uses the words “attendance by electronic means” as opposed to the word “virtual”, which I accept might encapsulate a wide range of trials that already utilise electronic means. However, in the short timescale that we had, that is the drafting that I came up with.

I understand that the SCTS is extremely busy and overworked and that it has a huge backlog of cases—that is well known. However, amendment 1010 reflects not just our stage 1 report but an important piece of work that will have to be done to establish whether the use of electronic means that were hitherto not used in trials should be continued or made permanent.

The committee’s stage 1 report states:

“a greater evidence base is needed about (a) how they work in practice; (b) what advantages they deliver and any disadvantages; (c) the outcomes of virtual criminal trials; and (d) any unintended consequences. This evidence base is needed before a view can be taken as to whether the temporary provisions in this Bill should be made permanent in future legislation.”

We already know that there is a wide range of views on the issues. The representative of the Scottish Solicitors Bar Association told the committee:

“I am wholly disappointed by the resulting systems that we are now working with in relation to virtual courts and virtual trials”.

He continued:

I can say—on behalf of the vast majority of the profession, I think—that the experience has, unfortunately, been nothing but a resounding failure.”—[Official Report, Criminal Justice Committee, 2 March 2022; c 13.]

I realise that that is a quote from one end of the spectrum, but concerns were also raised about the solemnity of proceedings, which many felt was not present during virtual trials. The Faculty of Advocates expressed some sympathy for that view, in slightly less strong terms. It said that, if implemented, the proposals

“would create problems with access to justice, the quality of justice and inequality.”

The concerns are not only in the defence sector; those representing the wider public also expressed concerns. Citizens Advice Scotland told the committee:

“we are concerned that the reliance on digital means of participation in court business risks people being excluded from the justice system. We believe more support is needed to enable vulnerable and digitally excluded groups access to justice.”

On the flip side, many support the on-going use of virtual means, including the Howard League and Victim Support Scotland, which also submitted evidence to the committee.

That brings me on to the substance of amendment 1010. I appreciate that the particular information that I am asking for is specific and probably quite wide ranging, but the essence of the amendment is that the committee said that the evidence base should already have been provided—the information should already be out there—and we should have already analysed it before we take a view on whether the measures should be continued. The problem is that we are not in that position at the moment, and we do not have that evidence. The next best thing that we can do is ensure that, under the proposed legislation, the SCTS publishes data that will inform not just the Government and the committee but all the stakeholders who have concerns.

I appreciate that the cabinet secretary has made the offer that, if I do not move amendment 1010, he will work with the SCTS to look at what data and information can be published. Of course, I do not want the SCTS to face an onerous and undue workload or to have to give out sensitive information that should not be published—that is not the intention of my amendment. I would therefore be happy not to move it, but only on the premise that we revisit the wording of the amendment and that the issue comes back at stage 3, not that it is removed altogether and that is the end of the matter.

Although I take what the cabinet secretary has said at face value, it is important that, in reflecting the committee’s view at stage 1, we include in the bill what I have set out in an appropriate fashion that will not overly affect the day-to-day work of the SCTS in any way, shape or form. It is not the intention of amendment 1010 to have such an effect. I hope that the cabinet secretary can give that commitment.

My amendments always are, Mr Simpson. I appreciate your support.

There is a genuine point to be made. People have asked the question: why on earth are people being denied the ability to attend hearings in environments in which there is no physical meeting? We understand that many processes moved online for good reason. We also understand that the bill seeks to extend some of the measures in the eventuality that they are needed. However, my view is that there is no excuse for doing things only virtually these days when, as we can see, the world has opened up again.

I am sure that the cabinet secretary will clarify that there is already a process for how victims can participate in hearings. That process already exists, but it is clear that it is not working. My amendment 1009 does not say that all victims must attend every parole hearing—it does not go that far. I ask that, in the eventuality that the chairperson, who often makes the decision on who can and cannot attend, is incapacitated in any way and their functions are conferred on another, that individual must lay out the process by which registered victims are able to attend hearings, which they clearly are not doing at the moment.

I hope that other members and the cabinet secretary will be sympathetic to the rationale behind my amendment.

I move amendment 1009.

I thank the cabinet secretary for the technical explanation of why the amendment does not fit there. It is interesting that he seemed to imply that he is sympathetic to the rationale behind what I am trying to achieve but, for technical reasons, he does not believe that that is the right place to put it. I question where else in the bill the proposal could go. The bill seeks to extend temporary measures that were implemented during the Covid pandemic in the judiciary. It is clear that there is a deficiency in the process that needs to be addressed somehow and somewhere in the bill—possibly at stage 3.

With the assistance of the parliamentary legislation team, I have tried to include the amendment in a section that relates to the functions of the chairperson. If it is not accurate and technically competent to put it in that place, there might be another place where we could put it. Perhaps I will propose that at stage 3.

The cabinet secretary did not address the issue; he only disputed the amendment for a technical reason. That leads me to believe that there is still an issue to be fixed. With that in mind, I might work with the legislation team—or, indeed, with the cabinet secretary, if he is willing—to look at how we can ensure that victims are front and centre when the bill comes back to us at stage 3.

Amendment 1009, by agreement, withdrawn.

Section 32 agreed to.

Is the cabinet secretary comfortable with the prospect that, where a fiscal fine is offered to a person who is accused of something and then rejected on the premise that they say that they are not guilty of the offence and they want to be tried properly, no further action is taken? We are not talking about a small proportion of cases; in a large proportion of cases, no further action is taken. Does that not suggest that it is worth the gamble for someone to reject the fine?

Indeed—that should be happening anyway; it is ridiculous. The point is that we are using the legislation that is before us, which is obviously already making changes that are in the interests and for the convenience of other justice stakeholders, to make a change that is in the interests and for the convenience of victims, who are another set of stakeholders in the justice process. If we can use the bill as an opportunity to improve outcomes for victims, so be it; I am happy for the bill to be the vehicle.

I look forward to what the cabinet secretary has to say in response.

The member is right that we are talking about massive, fundamental changes. In our stage 1 report, we unanimously agreed that digital justice

“should only progress if there is genuine merit in the proposals, rather than simply being a matter of a cost saving or administrative convenience”,

and that

“we cannot make fundamental changes to how our court system functions and the rights of individuals involved without full and proper debate.”

The problem is that I am not convinced that we have yet had that “full and proper debate”. That is why Katy Clark and I are both seeking to amend the bill so that there is more transparency in relation to data on the use of virtual courts and trials. I hope that that debate will happen at some point in advance of our passing the bill.

Good morning, colleagues and cabinet secretary.

Amendment 1009 relates to the functions of the Parole Board for Scotland. Section 32 of the bill specifically includes a provision that allows certain functions of the Parole Board to be conferred upon another individual. That has been possible throughout the Covid pandemic, and it is particularly important in the absence of the chairperson, who plays an important and vital role in the proceedings of parole hearings. No one has any problem with that in principle. However, amendment 1009 seeks to do something else. It seeks to ensure that, should the chairperson be absent from a hearing, the scheme that sets out who takes over their functions and what functions they take over also ensures that victims can still attend parole hearings, despite that change in relation to the chairperson.

The amendment states:

“The scheme must include provisions which set out how those authorised to carry out functions conferred on the chairperson ensure registered victims are able to attend parole hearings in the absence of the chairperson.”

It then defines what a “registered victim” is, using existing legislation.

It is quite a short amendment, but it is also quite an important one, because I think that we would all agree that the coronavirus pandemic has made it more difficult for victims to have a voice in the justice system, as processes have moved online, hearings have been delayed and postponed—often repeatedly—and, indeed, victims themselves have contracted Covid and been unable to fully participate in proceedings.

Victims whom I have spoken to have been concerned that changes to the Parole Board and its operations during the pandemic have given them no say in proceedings and no voice through the process. That is backed up by statistics. It was discovered through a freedom of information request that 26 victims made applications to attend parole hearings during the period between March 2021 and October 2021—during the pandemic—and none of those was granted. I do not have wider statistics, but I am sure that what those show would be equally poor.

The reason for those denials is unclear. In fact, many of the victims—some of whom I have spoken to personally—have said that they had been given no reason. It will not be a surprise to members to hear that I believe that, pandemic or no pandemic, chairperson or no chairperson, victims deserve the opportunity to attend hearings in whatever manner, shape or form they take.

One victim whom I spoke to just two weeks ago is still facing repeated challenges in attending parole hearings, which are only now moving from teleconference to video hearings, none of which is face to face. They have been endlessly and repeatedly cancelled and delayed with no justification.

If it is the former and not the latter, we have heard from the police that physical court appearances take them out for a whole day and cause them, and remand officers, concern. Is it not much more efficient to deal with proceedings virtually?

This is all about my amendment, convener. I am highlighting the reason for the concern in this respect.

Because of that concern, which was best illustrated by Brian Whittle when he talked about the human interest, or the victims, and the types of cases involved, and, indeed, the points that Pauline McNeill and Katy Clark raised about the human rights elements such as the numbers on remand and in prison and the associated problems, I think it is important that the Government considers whether all those provisions on time limits remain necessary.

I understand that the cabinet secretary said that he would work with me to bring the issue back at stage 3. [Interruption.] He is nodding at me. In that case, I will not move the amendment.

Amendment 1023 not moved.

Amendment 1050 moved—[Russell Findlay].