Chamber and committees

My amendment 51 would ensure that national jurisdiction can be used only for the initial custody hearing and, beyond that, only with the agreement of the defence. Following that, jurisdiction should remain linked to the locus of the offence. Simon Brown from the Scottish Solicitors Bar Association said that:

“The issue is the plummeting number of defence solicitors available to deal with this work, and the concomitant difficulties that places on being able to deal with cases outwith one’s normal practice area. If we were in a situation where I had a Sheriff and Jury accused out on bail for a case, and I assume that it would be prosecuted at Kilmarnock, I would be faced with considerable logistical difficulties were that matter to be indicted in, say for example, Greenock.”

My amendment 52 would ensure that national jurisdiction would end at the point of liberation on bail. Further to that, Simon Brown also said, when I asked him, that:

“The issue is, though, that those fully committed for trial and therefore remanded in custody are only a relatively minor percentage of solemn cases. The vast majority of solemn proceedings commence with the case against the accused being continued for further examination and the accused liberated on bail. We would require a similar undertaking that national jurisdiction would end at the point of liberation on bail to make the system workable.”

I welcome the cabinet secretary’s amendments 8 and 10, which provide the clarity that I was seeking at stage 1 about how far national jurisdiction would be allowable in relation to various proceedings. In simple terms, I think that that would not be the trial, but could be proceedings before that.

Although I am sure that I do not need to mention it again, you have heard from Sharon Dowey and from me about the crisis that we are experiencing in terms of the loss of criminal defence lawyers. That was mentioned in the press again this week. The Government does not seem to have taken that into account when legislating for national jurisdiction. We have to hope that everyone will be sensible about it and that we will not have lawyers or victims going up and down the country. It is less about victims, because the provisions relate to procedural hearings, but it will cause practical difficulties for defence lawyers and accused persons, particularly as people are leaving the criminal bar.

It is sensible to have national jurisdiction for custody hearings. My reading of the bill is that the default will be virtual appearances for custodies, which makes sense—you can see the efficiency in that. However, we must remember that national jurisdiction is about not just virtual but physical appearances. I am concerned about the practical impact on solicitors’ ability to conduct their business if they have to be in different sheriff courts for different things.

I do not have experience of that—I have only seen instances in which people have given evidence in Victim Support Scotland’s headquarters, which, as I said, are very impressive. Who checks when someone is giving evidence from whatever location? I presume that those giving evidence still have to take the oath and so on, and I think that we all agree that there should not be anyone else in the room who might interfere. Who checks that? Is there a way of doing that?

I totally acknowledge that it might not be practical for a court official to do that—I concede that to Liam Kerr and to you, cabinet secretary—but surely there should be some checks and balances. If people are not giving evidence from Victim Support Scotland’s lovely, well-established offices, who will check that the conditions in that location are the same as they would be if they were giving evidence in court? It just my lack of understanding that makes me ask.

I am broadly content with what the cabinet secretary has said. I put on record the fact that, when working on my amendments, I had asked for drafting that would provide clarity on how the power of the Lord Justice General could be used in relation to hearings and trials. When I read the bill, the explanatory notes and the policy memorandum, I could not see the distinction clearly set out that I think that the cabinet secretary has said is there, and I am content with that. That is what I had asked to be drafted, but I accept that what was produced is not quite what I had intended.

As I hope that the cabinet secretary will acknowledge, the committee’s biggest concern was the one that legal representatives had raised in relation to some of the practicalities—as opposed to the principle—of virtual attendance at custody courts, which is why the provisions have been paused.

I would like to come back to that issue at stage 3, as I would not want us to simply let go of it and to pass the bill while the matter is on-going and unresolved. We are talking about granting powers. Once those powers have been granted, there will no coming back from that, if we get it wrong.

On that basis, I seek to withdraw amendment 33.

Amendment 33, by agreement, withdrawn.

I agree with the convener. I am content with the status quo—whatever that is. However, the bill says that the other items that I am talking about could be digitally produced. If the defence or the Crown, for whatever reason, does not apply for the item to be produced in court, it will not be produced, which would be contrary to the interests of justice. I accept that this is a huge area, but I wonder whether there should be a bit more detail in the bill to prevent that from happening. My amendment says that there should be no deadline. Why should there be a deadline at any point before the trial in relation to producing a weapon in court if it is practical—it might not be—and in the interest of justice to do so?

I am not sure that I agree with your final point. I am trying to make the point that, if the default will be the digital production of evidence, that cannot be done at the expense of the interests of justice. Although I acknowledge that what we are talking about could happen in court, the court could say, “We’re not allowing it.”

I wonder whether this is human rights proof. Let us say that the evidence is a murder weapon and the court says, “No, we will not allow the physical production”—for whatever reason—which it is entitled to do under the legislation. How can that be fair if the Crown or the defence thinks that such evidence is important for its case? It has to answer to the court, but these things happen all the time. That is why I want to explore the issue, and Liam Kerr’s amendments are probably a bit more comprehensive than mine.

Paul Smith of the Edinburgh Bar Association said:

“At the moment, if someone is charged with possession of a knife, that knife needs to be retained and physically produced in court. Section 4(4) will allow the police to take a photograph of the knife and that photograph to become the evidence, so they will not need to produce the knife. That might lead to the original knife being lost or destroyed and not available for the defence to inspect. My concern is that, if the police know that a photograph is as good as the real thing, they will take a photograph and dispose of the real thing, and thereafter it will be lost.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 27.]

It would be helpful to tidy up some of these concerns before stage 3. Although the convener outlined lots of benefits to the bill, I would be deeply concerned if all eyes were to be on getting everything digitised because that is much more efficient. If we lose some of the things that we already have, that will be contrary to the interests of justice.

It is useful to know that there is a common-law provision to allow parties to examine the item. I will speak to what I and Liam Kerr are driving at. If you think that it is in the interests of justice for the jury to see the weapon—if it is a weapon—it should surely be an unqualified right. There is a difference between examining something and it going before the court.

I want to check that I understand what you have said. National jurisdiction could apply up to full committal. That means that some hearings, such as procedural and preliminary hearings, could be held under national jurisdiction. Did you say that you expect national jurisdiction to be used mainly for custody appearances, or do you expect it to be used in other circumstances? The big problem is that, if hearings can be heard anywhere in Scotland prior to full committal, that might involve lawyers running up and down the country. Did you say that you expect the custody hearing—the first appearance—to be held under national jurisdiction?

Good morning. I thank the cabinet secretary and all her officials for their helpful exchanges, which helped me to understand some of the technicalities in the bill. Some of my amendments were drafted before we had our most recent conversation, so I ask people to bear that in mind.

I wish to probe some important issues relating to how the provisions on virtual attendance at our courts would be used. I am fully supportive of the principle of virtual attendance being a permanent feature of our courts, because that is important for the proper functioning of courts and, as Crown Office officials said in their very good evidence to the committee, it is important for victims who would not otherwise come to court. Excellent framework legislation on vulnerable witnesses has been introduced in successive parliamentary sessions, so the provisions do not stand alone.

Amendments 33, 35 to 37, 39 and 40 would give the Lord Justice General the power to issue a determination to change the default mode of attendance to virtual attendance in certain circumstances, but not for certain types of cases. I confess that, on reading the bill, some things were not clear to me. I think that, depending on the case and the type of trial or proceeding, virtual attendance would be for individuals. I note that the Lord Justice General has exercised the power quite sparingly, but, if we grant an extensive power, it could be used much more regularly.

The default mode of attendance being virtual already applies to certain types of hearings, including preliminary hearings, some sentencing hearings, full committal hearings and bail appeal hearings. I have no particular concerns about any of that, because those hearings are administrative in some senses and do not really involve witnesses, although the Scottish Solicitors Bar Association has raised concerns in relation to custody appearances. I want to be clear that the Lord Justice General, who has used the current powers in relation to those hearings, could not say that a category of trials, for example, should be virtual. I do not think that that is the case—the cabinet secretary is already shaking her head—but I want to be sure about where the powers stop and start.

Amendment 38 prescribes that, if virtual attendance is to be agreed, it must have the approval of both parties—the accused and the complainer. That is probably already accounted for. The cabinet secretary will probably say that the test is whether it is in the interests of justice for that to happen. That is fair enough, but I hope that she will appreciate that I am testing where the line is drawn for hearings that already have virtual attendance.

In its report, the committee highlighted an issue to do with

“the criteria which should be used by the Lord Justice General in making a determination in favour of virtual attendance in particular categories of case. The Bill does not elaborate on what the criteria should be, beyond that it should not prejudice the fairness of proceedings or be contrary to the interests of justice.”

The committee’s view is that there should be

“additional criteria which the Lord Justice General must take into account before making a determination.”

It is simply a case of taking a belt-and-braces approach in that regard.

During the committee’s evidence sessions, Sharon Dowey asked about the case for virtual appearances in custody cases. Paul Smith and Simon Brown had concerns about ensuring proper co-ordination with the person they were representing if there was virtual attendance. They also raised concerns about the issue of the quality of the connection, which I share. I will not go through those again, but I have seen that issue for myself.

I would have thought that, if we are going to rely much more on virtual attendance in courts, it would be a prerequisite to ensure that we are clear about where that approach can be used, and that the connection should be as good as it can be. In particular, we should ensure that virtual attendance does not detract from the current arrangements, especially—as Paul Smith said in his evidence—where an accused person has never been through the court process before. It would not be fair to prejudice their interests. It is important that we are clear that those aspects are all brought together in a satisfactory way.

I move amendment 33.

That was a helpful exchange. I just want to put on record that I hope that my intention here is not misunderstood—I do support the use of virtual attendance. The cabinet secretary has clarified that, whatever the location, the proceedings will be delivered with solemnity et cetera, which is important. I do not think that the committee should settle for anything less; if this is going to be a permanent feature of the Scottish criminal justice system, we have to ensure that it is done to everyone’s satisfaction. However, we all recognise that it can reduce delays and make things easier for victims.

I should say that it was not me who brought up the issue of locations. The Law Society and the Scottish Solicitors Bar Association raised concerns about people giving evidence from home, and it was mentioned by another witness, too. That is why I addressed it. I share their concerns, although I think that there is a distinction to be drawn here, and the cabinet secretary makes an important point when she says that someone could have a specific reason for giving evidence from home. I think that that would be okay, but I am not in favour of people giving evidence at home for the sake of convenience, because I do not believe that that would satisfy the test. I would prefer it if we nailed that issue down at stage 3 so that it is clear in the bill, because at the moment it is, as far as I can see, silent on the matter.

It is important that we future proof this legislation. I presume that, if we improve electronic connection, this approach might be used a bit more, and we have to be clear about when it can be used in the interests of justice.

I accept what the cabinet secretary has said about public officials and the giving of virtual evidence as a vital component of their work. However, I was surprised by the evidence from the police with regard to their concerns about it, for reasons that I think are, once again, related to connection.

I did not comment on Liam Kerr’s amendments at the time, but on his amendment 41, I am not clear about why that provision should apply in all circumstances. I can see why, in some circumstances, you might not publish the location. The location could be checked, for reasons that we have already discussed. In any case, I am not too clear about that; after all, if you give evidence in court, you are giving evidence in a known location with a known address.

I do support what was said about Liam Kerr’s amendment 43. If there is to be a report, it has to be about more than just gathering data. There are some reservations about whether virtual attendance is all that it is said to be, and I hope that the Government will consider what might be done to give us the kind of report that will mean something, given that this is a substantive—indeed, permanent—change. We did what we needed to do during the pandemic, but the fact that we did something then as a necessity to get through trials should not be an argument for continuing to do it now.

I hope that, before we close the door on this at stage 3, the Government will give more thought to it. That said, I will not be pressing amendment 34.

Thank you for that clarity. I was not aware that legislation on the matter existed prior to the pandemic, so it is useful to know that. That is fair enough.

However, I still say that, given that the bill’s purpose is to modernise—to make those things permanent—you must envisage greater use being made of that power. However, the bill is silent on when it can be used. What we are here to do when we legislate is to correct anything that might not have been right in the first place. That might just involve being satisfied that the requirements for the conditions under which this approach would be allowed are clear to the Parliament before we put it in the legislation as a way of modernising the court system and making that better.

Amendment 34, by agreement, withdrawn.

Amendments 35 to 42 not moved.

Section 2 agreed to.

After section 2

Amendment 43 not moved.

Section 3 agreed to.

Section 4—Digital productions