Justice Committee

Meeting date: Tuesday, April 24, 2018

Official Report 532KB pdf

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Remand

Agenda item 3 is our closing evidence session on remand. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome Michael Matheson, the Cabinet Secretary for Justice, and his Scottish Government officials: Philip Lamont from the criminal justice division and Kerry Morgan from the community justice division. I understand that the cabinet secretary wishes to make an opening statement.

It is just a brief comment. Thank you for inviting me to give evidence on remand. It has been interesting to hear the previous evidence sessions, which have covered a range of topics. It might be helpful to the committee if I briefly set out the Scottish Government’s position.

Bail decisions are rightly a matter for the courts, and they are made within the legal framework that this Parliament put in place back in 2007. However, I am keen to address issues relating to the inappropriate use of remand in Scotland, by working together with partners and stakeholders to consider what can be done to reduce the use of remand, where it is safe and appropriate to do so.

I am committed to reducing the use of short periods of custody, as demonstrated by our intention to extend the presumption against short prison sentences. It is clear to me that remand is just as disruptive as short prison sentences. It impacts on families and communities and it adversely affects employment opportunities and stable housing—the very things that evidence shows support desistance from offending.

I believe that measures such as supported bail, as an alternative to remand, have a greater role to play in supporting our vision for a safer, fairer and more inclusive Scotland where those who are involved with the criminal justice system can be supported to be active and responsible contributors to their communities. Crucially, we can take such an approach while ensuring that public safety is maintained.

I hope that that is helpful. I am, of course, happy to answer any questions from committee members.

Thank you. We move to questions, starting with Liam Kerr.

Good morning. I want to pick up on something that you talked about, cabinet secretary—the presumption against short-term sentences. You suggested that people who are remanded may experience the same disadvantages that the Scottish Government has identified in short-term sentences. Will you clarify whether you believe that the disadvantages of short prison sentences are shared by remand, and will you elaborate on what plans you have to reduce the use of remand?

Are you asking whether I share the view that short-term prison sentences and remand cause disruption to people’s lives and end up affecting their employment and potentially their housing situation, as I commented in my opening statement? Of course I do—they have a similar disruptive effect. The average time that a person spends on remand is something like 23 days for a male and 26 days for a female, but for some the time can be longer. We know that things such as housing, employment and family contact are key factors in helping to support desistance from criminal activity, and short-term prison sentences very often have negative impacts on those things. There is no doubt that being on remand impacts on those things as well, so there are similarities between the two.

Over the past 10 years, use of remand has gone down by about a fifth; there has been a reduction of around 20 per cent since 2008. That fits alongside the new provisions in the Criminal Proceedings etc (Reform) (Scotland) Act 2007, which reset the criteria and arrangements for the use of remand. It sets out the exceptions to the presumption in favour of bail and the public safety issues that have to be taken into account. We have made provision to support the development of bail supervision programmes and bail information services, and we have provided additional resources specifically for female-based programmes so that they can provide specialist bail supervision and diversion programmes for women who end up in the criminal justice system.

A range of factors have contributed to the reduction in the use of remand but, overall, our levels of remand reflect the significantly higher prison population that we have compared with nations of a comparable size in Europe. Members will be aware that Scotland has the second-highest prison population in western Europe. It is exceeded only by that of England and Wales. Our use of remand broadly reflects that high prison population, the vast majority of which comprises people who are serving short-term prison sentences.

You said in your opening statement that bail decisions are a matter for the courts. What do you understand the main drivers to be for the current level of the use of remand?

The likelihood is that, when sentencers are considering whether to hold someone on remand, they take into account a variety of different factors. The legislation requires them to do that. Many of the individuals with whom they are dealing will have chaotic lifestyles and, on the basis of their presentation to court, may already have several bail orders in place. There may be issues with the likelihood of their appearing in court. All those criteria have to be taken into account, as does public safety, when sentencers make decisions.

I was interested in the evidence that you received from Sheriff Liddle. There is a perception that, if more services were available, it would change sentencers’ views. I hope that I have interpreted him correctly as saying that that is only one of the range of factors that sentencers will take into account. There is no single aspect that we can say is driving our use of remand. Ultimately, it is a matter for sentencers.

There are also issues with prosecution policy. Cases are marked in the central hub and then determined by the depute who is dealing with the case in court if there is a variation from their views on the case marking. There is no single factor; a variety of different things come into play. I suspect that most sentencers take into account several different factors when they determine whether they should remand someone.

In your opening statement, you talked about inappropriate use of remand. By that, do you mean that the sentencer has made the wrong decision? In fact, those are not the right words. Do you mean that the sentencer has come to a decision that is not appropriate or that it is the appropriate sanction but the wrong thing for the individual?

What I mean is that, where reasonable bail supervision programmes that could have been appropriately used are in place, we must try to make sentencers aware of them and encourage them to make appropriate use of them. Where bail information services are in place, we must also ensure that sentencers make as much use of them as possible.

Is there more that we can do to give sentencers confidence about those matters? Yes—no doubt there is more that they might find helpful, and we should always be prepared to look at how we can improve the information that they have available to them. It is also about looking at how we can do more in addressing issues relating to bail through the use of, for example, electronic monitoring. I know that you will take a briefing on that later in the meeting, and I believe that there is scope for that in the future.

It is not necessarily about them making the wrong decisions. It is about making sure that they are armed with all the necessary information, which includes information on the bail supervision programmes and information services that are available in their locality at the time when they are making decisions.

The starting point for our inquiry was the stark figures on the proportion of the prison population that is there because of remand. We have a written submission from the Scottish Courts and Tribunals Service that shows that, under summary procedure, 40 per cent of those who are remanded are given a non-custodial sentence and 12 per cent do not receive a sentence at all. Half of the people who are on remand and are going through the summary procedure go into prison but, ultimately, that is not where they are destined to be, which seems odd.

One of our frustrations is that there is a lack of data on why remand is being used. Do you share that frustration? Could more be done to centrally collate the reasons why remand is used by the courts?

On your first point about the number of people who end up on remand and ultimately—through summary proceedings, for example—receive a custodial sentence, one of the criteria that the courts should consider when determining whether someone should be remanded or bailed is the likelihood of their receiving a custodial sentence at the end of it. That provision has been in place since 2007 or 2008, so it is a matter that we take into account. However, I fully recognise that there will be times when a sentencer decides that a period on remand is appropriate from a public safety point of view—they might believe that it is appropriate for the purposes of witnesses or victims—even though they recognise that, given the nature of the offence, the likelihood of a custodial sentence is remote. I understand the importance of our courts and sentencers having the flexibility to make those decisions.

On your second point, I am always keen to make sure that we gather as much appropriate data as possible, as long as it serves a purpose. As things stand, when it comes to summary proceedings, the court minute usually records whether someone has been granted bail, but not necessarily the reasons for that, although the sheriff or judge is likely to set out orally why bail has or has not been granted.

I know that the Scottish Courts and Tribunals Service has said that there is potential to gather more data, but there are downsides to that in terms of both the cost and the bureaucracy that might be associated with it. I also want to be clear about whether gathering the data would help to improve and change things, and the purpose that it would serve. I am always open to looking at whether there are areas where, without being unduly bureaucratic, we can collect data that has a purpose and will help to improve things, but we need to consider that further and see whether gathering the data would truly make much of a difference.

Perhaps I can suggest two possible purposes. First, it would ensure that there was consistency so that people received broadly the same outcomes from different courts. Secondly, in relation to your seeking to drive system-wide change, it would be useful to understand at a system-wide level why particular outcomes are arrived at. Will you reflect on those two broad points? Without that data, it is difficult to establish either of those things.

10:15  

On your latter point, I am open to hearing what the committee has to say in its report, having considered the evidence on remand over five evidence sessions. You may believe that the collation of further detail could be helpful in understanding some of those aspects. Would it deliver greater consistency? I am not sure that it would. Very often, sentencing decisions around bail and remand are individualised. They depend on an individual’s circumstances and history, so it would be difficult to create a data collection system that would allow us to make that direct comparison. I understand where you are coming from, but I suspect that there are such variations between cases that appear in court that it is difficult to envisage a data collection system that would allow us to make a direct comparison between cases.

I am open to looking at whether further data collection could assist us in understanding what is going on in the use of remand. However, I sound a note of caution, because the collection of data needs to serve a purpose in improving how the system operates. What are we trying to achieve from the collection of data? If it could improve how the system is operating, let us look to see whether we can develop a data collection system that will facilitate that improvement, rather than just collecting data for the sake of it.

Connected to data are individual court records. I would like to make a distinction. To my mind, data is about the aggregate view and collecting data at a system-wide level, whereas individual courts will have a record of each case. You mentioned in a previous answer that the sheriff will ordinarily give a reason why he is granting bail or putting someone on remand, but that is not necessarily always recorded, and it is certainly not always recorded in the same way. Given both the seriousness of the issue and the general concern that we should be trying to minimise the use of remand, is there scope for recording the reason that the sheriff gives when putting someone on remand rather than granting bail?

In summary cases, the minute of the court will record the basic detail of whether remand was granted. In a solemn case, everything is noted, so much more detail is held on those matters.

It is more a question of whether recording the data would start to drive change in the system. For example, about two and a half years ago, I commissioned three pilots in three different sheriffdoms that used improvement methodology and looked at the use of remand and bail, and a big part of that was about collecting data during those exercises. One thing that they showed was that there were great variations in the use of remand from day to day and from court to court, depending on what cases were being heard.

If we were to create a statutory requirement for sheriffs and the court to record exactly the reasons for not granting bail, additional bureaucracy would go with that. Notwithstanding that, however, I return to my original point about the purpose of doing that and what change it would drive in the system. Even if the court minute noted the reason why remand was not granted by recording what was said orally in court, what purpose would that serve in effecting any change in the system or in how remand is used?

The key factors in my mind when determining whether to make any change to the data collection system would be whether it would drive change and improvement, and what improvement we were trying to achieve. We collected a lot of data during the three pilots that we held in the three sheriffdoms, but it did not give effect to change in practice; it just demonstrated where marked variations were taking place.

Spotting variations does not necessarily lead to changes in practice, but at least it allows you to identify where change might be required. I add that, when we are depriving someone of their liberty, recording the reason for that is important. Setting to one side the wider purposes in relation to the system and thinking only in terms of the individual case, if someone is being deprived of their liberty, recording the reason for that is clearly important in and of itself. What is your reflection on that?

We are getting into the territory of what is and is not in a court minute. I imagine that the Lord President would have views on what it is appropriate to record in that. When it comes to solemn matters, all the details are recorded within the court, unlike in summary cases.

I hear what you are saying. I will be interested to hear the committee’s views, given the evidence that it has heard, on whether additional data collection would be helpful. I am not opposed to that, but I want to understand what purpose it would serve and what benefit could come from it, and to ensure that any additional data that is to be collected will have a purpose and can help to inform practice and improvement in the system. I am open to looking at whether additional data collection could help to improve things, but I am mindful that it should have a clear purpose and an effect on the system.

Good morning, cabinet secretary. I take your point about the allocation of resources. We have heard considerable evidence about where the resources that become available could be usefully spent, and it was not necessarily on data collection.

My question follows on from Daniel Johnson’s question. Notwithstanding the variability that you quite rightly point out, it would be a concern if it were not being captured—whether in an individual court or across the piece—that a consistent part of the unwillingness to grant bail was a lack of available services or that available services were deemed not to be effective enough, because multiple referrals to them had not achieved the necessary outcomes. That information would at least allow some kind of policy response to address whatever shortcomings there are, whether they are to do with a service not being available or its ineffectiveness in a particular area. Would that not be a valuable outcome to be derived from the sort of data gathering that Daniel Johnson is referring to?

That is a potential, although it is important to keep in mind that the presumption is in favour of bail. The use of bail information services and bail supervision programmes is an alternative to the person being remanded. If someone would ordinarily receive bail and the court sees bail as being appropriate, they should receive bail, irrespective of what services are available. Where remand is being considered and it is believed that services provide a viable alternative to remand, it is important that the available services are known to the sheriff or judge to enable them to make that determination. That is an important distinction to make about how the existing arrangements operate.

I am open to the question of whether further data could be collated, but I re-emphasise that it needs to have purpose and we need to know what we are trying to achieve with it.

I go back to the evidence that the committee received from the Sheriffs Association and the Edinburgh Bar Association. There are often several factors, rather than a single factor, that lead to sheriffs and judges determining not to grant bail. It may be that service provision is only one aspect that they would consider in determining such matters.

It might be helpful to note that the lack of data in general is a theme that has run through evidence since the Parliament’s inception. Where possible, if it is not too burdensome, as much information should be recorded as possible, without trying to second guess the purpose of the data. You never know what could be useful in the future. That is how I would approach the emphasis on trying to record as much as possible.

I think that the committee received evidence from the Scottish Courts and Tribunals Service that if additional measures were put in place, there would be not just financial but court time resource implications. Courts are often under significant time pressure.

I am clear that I am not a fan of collecting data for the sake of it. If we are going to request the collection of additional data we should be clear about the purpose and what we are trying to achieve by the collection of that data. We do not want to create undue bureaucracy, cost and burdens, when those could be avoided.

We are cognisant of the burden and the cost. However, when we second guess what data might be appropriate, it can eliminate the possibility of answering questions that suddenly jump out from the data, such as, “How many vulnerable people do we have here?” and, “Is there a niche or gap here?”

If I were to make a request for lots of data to be collected, I have no doubt that people would say that it was creating unnecessary bureaucracy and that that was causing delays to cases. When we collect data, we should be mindful of the potentially negative consequences at the same time as being clear about what we are trying to achieve from the data collection. We should not be asking sheriffs to spend more time collecting data and asking clerks of the courts to spend more time and resources dealing with it if that means that cases are delayed and court time is used up purely for the collection of data. People like to pore over the data, but it might not have any effect in relation to improving how the system is operating.

If there is a view that we should go down the route of collecting more data, it should have a purpose and the potential to create improvement, rather than creating bureaucracy for the sake of it.

We are agreed that there is a balance to be struck.

There is a balance to be struck, but I am not a fan of collecting data simply because people like to collect data.

You have made that plain, cabinet secretary.

I want to move us on to people’s experience of remand. In 2013, the predecessor Justice Committee reported on purposeful activity in prisons and noted that there was a lack of opportunities for remand prisoners to participate in purposeful activities. What has happened since then? Has there been an improvement in the situation? What opportunities are available now that were not available five years ago?

The purposeful activity framework that was introduced by the Scottish Prison Service was a long-term piece of work that looked at how it could ensure that the range of programmes available in our prisons was more effective, more consistently available across the system and better targeted at the prisoner group that it could best serve.

The challenge in respect of remand prisoners is the length of time that they are in prison, which makes it extremely difficult for them to engage in purposeful activity programmes. As I am sure that the committee will recognise, the purposeful activity and education programmes that the Scottish Prison Service operates are targeted at convicted prisoners, as there is a fixed timeline during which the service can engage and work with those individuals. That is not often the case with remand prisoners.

In reality, there is limited opportunity to undertake work in prison with someone who has not been convicted and who is in prison for a very short time—at that stage the period could be undefined, depending on the progress that has been made on the individual case. The timeframe makes it hard for the Prison Service to deploy significant resource to be able to provide the individual with additional input.

10:30  

My view is that it is wholly unrealistic to expect the Prison Service to be able to effect much change in someone in such a short period of time. Many remand prisoners will go through the same process as a convicted prisoner would in being assessed generally and medically, and they will have the opportunity to participate in education programmes where they are available. However, in many cases, it will be a matter of stabilising them. Many of those individuals will have a chaotic lifestyle or a significant drug problem that the Prison Service will need to prioritise and manage. What can be done with someone on remand is very limited in terms of the medium-term to long-term work that we would expect through purposeful activity programmes. Remand prisoners have the opportunity to participate in programmes, but priority is given to convicted prisoners, and it is highly unrealistic to expect the Prison Service to have much effect in changing someone on remand, given the very limited time in which they may be on remand. Very often, the Prison Service will not have a defined period of time for how long the person will be with it on remand.

I understand the point that you have made, but would opportunities be available? Let us say that I have been remanded for an undefined period and that I want to engage in purposeful activity. Would that be available to me, or would I not be able to positively engage in purposeful activity because of the pressures that you have identified?

Remand prisoners are entitled to participate in education programmes if there is availability.

As far as you are aware, is there availability?

It continues to be the case that priority will be given to convicted prisoners, as they are in prison for a defined period and have been assessed and engaged in programmes in order to address their offending behaviour. Remand prisoners are unconvicted prisoners. As members have already heard from their colleague Daniel Johnson, some 40 per cent of them will not end up getting a custodial sentence. Giving priority to convicted prisoners is the right thing to do, given that those individuals have been convicted and are in prison for a defined period and that their offending behaviour should be addressed. Where there is additional capacity and scope to provide opportunities for unconvicted individuals who are in prison, they can participate in programmes.

My question directly follows on from Liam Kerr’s question. When I recently visited Rossie school, which is a residential secure facility for young people just outside Montrose, people spoke about the adverse impact on young people when they are put on remand in a prison environment as opposed to an educational environment in which people are better able to work with them and can have a more positive impact on them. Is where we put young people when they are on remand being looked at, or can it be looked at?

The way to deal with young people is to try to prevent them from getting engaged in the criminal justice system in the first place. Our whole-system approach has proven to be very effective in doing that. As a result, the number of young people who end up in custody has significantly reduced, which has meant that the number of young people who end up on remand has significantly reduced. We continue to take that approach. If we are to effect change, particularly in respect of young people who come into contact with our criminal justice system, there must be prevention.

The arrangements in places such as Her Majesty’s Young Offenders Institution Polmont are somewhat different from those in adult prisons, given the range of services that are available for young people who are remanded to such places, but I agree that if there is an opportunity for a young person to be in a setting other than one such as Polmont, and that is more appropriate for them, we should take that approach. It is the approach that we have taken in our youth justice strategy, which has had a significant impact on the number of young people who end up in custody.

We should try to prevent young people from getting into such settings in the first place. We should work hard to achieve that and our resources should be targeted at reducing the need for young people to end up in custody, through remand or any other means. When young people end up on remand, there is the opportunity to consider other settings, as and when another setting is appropriate for the young person’s needs, and in light of safety issues.

You talked about the negative effects of remand on prisoners and their families. Her Majesty’s chief inspector of prisons agrees that there are negative effects, and Community Justice Scotland has talked about the stress on relationships and the impact on housing and employment. What is the Government doing to mitigate the negative effects of remand?

Part of that is about ensuring that we get the balance right on the use of remand. Some of the measures that I mentioned, such as bail supervision programmes, bail information services, the shine mentoring service and the new routes programme for males, are all about helping people to move on or preventing people from getting remanded.

It is important for individuals on remand that family links are maintained. Eleven of our prison establishments have family centre provision. Four centres were introduced last year and a further one will be introduced this year, which will mean that 12 out of 15 establishments will have a family centre. We are providing funding support for the centres. The purpose is to provide an environment that helps to maintain family links and offers support to families when someone is in prison or on remand.

Of course, the visiting rights for a person who is on remand are different from those for a convicted prisoner. Remand prisoners are entitled to daily visits. Visitors centres can be a much more helpful environment for families who visit prison on such a frequent basis, especially if children are involved.

It is also worth keeping in mind that a parent having a period in custody is recognised as an adverse childhood experience—or ACE—which we know can have a negative impact on the child’s development and future. We need to do everything that we can to support children who are affected by parental imprisonment, whether that is due to remand or a prison sentence. The work that we do in family centres is targeted at addressing such issues.

Sustainable housing on release for everyone—SHORE—guidelines are in place to help people to get housing when they have spent a period in prison. I encourage you to consider the report on the effectiveness of throughcare officers; their work has transformed how the Prison Service supports people as they move out of prison. Sometimes that involves supporting individuals who have been on remand, where appropriate, for two to three months after they have moved into the community.

A range of arrangements are in place that, collectively, can help to address the negative effects to which you referred. However, a level of damage is always going to be caused when someone is in prison, whether they are on remand or have been convicted. We need to do as much as possible to address the consequences of that, so that when people go back to the community we minimise the risk of their coming back into prison and maximise the opportunity for them to become productive contributors to society.

That is a short version of some of the measures that we have put in place to try to address some of the issues that you have just mentioned.

I was aware of the support systems that are available, but I was not sure whether they were available to those on remand. Thank you for clarifying that.

In a number of sessions, we have heard that there are information delays around getting medical data for prisoners on remand—people who might be alcoholics or drug users, people who have chaotic lifestyles or people who have asthma or a heart condition, for example. Basically, we heard that people were presenting themselves to prison, but the data from their medical records was not following them.

Are you confident that the national health service and the SPS are working together to try to sort out that issue? It seems pretty basic to be able to make sure that that information is there.

It is worth keeping in mind that back in 2011, we made a decision to transfer health and medical services within our prison service to the NHS in order to help to improve that flow of data. Prior to that, the SPS was responsible for providing health and medical services within the prison estate and one of the real challenges that came about from that situation was to do with the transfer of information and data, not just into prison but back out of prison.

Transferring the services to the NHS was about helping to make sure that that information and data flow issue was addressed. I believe that things have improved significantly. Are there aspects that could be improved further? I suspect that there are. Some of the evidence that you have heard might demonstrate the need for that.

My health minister colleagues are looking at an area of work on the back of the Health and Sport Committee’s report on healthcare provision within the prison estate. They are looking at some of the measures that need to be taken to improve the consistency with which healthcare is being provided.

It is fair to say that some health boards are better than others. For example, the health board in my constituency, NHS Forth Valley, has to cover three prisons—Polmont young offenders institution, Cornton Vale and Glenochil. By and large, it delivers a very good service and is very attuned to and works in close partnership with the SPS.

In other parts of the country we need to refine that process and make it work better. There are aspects that we can improve and my health minister colleagues are working on how to help that happen.

We have also created the joint health and justice collaboration improvement board, which is headed up by the director general for health and the director general for justice. It has a range of different parties on it, including the chief executive of the SPS and chief executives from the NHS. It is looking at targeted measures that we can take across our justice system, including in the SPS, to improve the flow of data and to get those partnerships right, in order to make sure that people receive the right service.

By and large, however, when someone goes into prison, they will be screened by a nurse and, after that, there will often be provision for them to see a doctor within 24 hours if that is necessary. There will be consistency in how those services are being delivered.

The committee received some anecdotal evidence about whether people were getting access to their medication at the right times. My only note of caution on that is to ask whether there is hard evidence to demonstrate that that is the case. If there is hard evidence to demonstrate that it is, there is no doubt that both the NHS board responsible and whichever prison is referred to need to sort that issue out. However, my understanding from the SPS is that it is not aware of a particular concern having been raised with it. It is open to addressing the issue if there is evidence that it is a problem in any particular establishment.

Those partnerships are stronger now than they have ever been as a result of the NHS now delivering prison service healthcare. Some health boards are doing it better than others and some need to improve further. The work that is being done by my health colleagues is about helping to improve those partnerships and the work that we are doing in the health and justice collaboration improvement board is about helping to make sure that there is much clearer direction on addressing some of these issues at a strategic level.

The SPS and the NHS should be able to address individual concerns regularly as and when issues are raised.

10:45  

We have received evidence that people are not necessarily getting sent to a prison that is local to them. Not only is there a difference for their medical records, distance is an issue.

I asked Colin McConnell of the Scottish Prison Service whether he believed that information sharing was a data protection problem or a process problem, and his answer was:

“I think it is about all of that. There are information-sharing blockages that are related to particular permissions that are not allowed to be given across organisations without the individual giving their say so.

Without doubt, there are system and process issues that simply get in the way because systems are incompatible. That is not beyond us to resolve, but it is a huge challenge for us.”—[Official Report, Justice Committee, 20 March 2018; c 22.]

That backs up what you said, cabinet secretary. We talk about having a national health service but, within the various boards, there tend to be different information technology systems. The problems seem to be with such basic things as that. I know that IT is never basic, but information is key. How can we overcome what seems to be a technical challenge?

I am not an IT expert or an expert on the technical fixes, which is often the term that is used by IT experts.

Before 2011, Scottish Prison Service nurses and medical staff would have had difficulty accessing NHS medical data because of data protection rules. NHS staff are now working within the prison estate and they can access NHS information as required. Part of the challenge will be having computer systems within the SPS that gives it access to NHS data.

Some of the wider data issues are being considered by the health and justice collaboration improvement board. That strategic work needs to be taken forward. We are looking at where there are barriers or blockages, whatever they might be, and, if the solution is an IT solution, whether we can take a more strategic approach.

I would prefer to avoid a situation in which our prison establishments in different health board areas all have to have different fixes so that they can access the appropriate NHS information. It would be good to do this once for Scotland so that the Scottish Prison Service could have a system that allows it to access appropriate medical records as and when that is necessary within a prison establishment, no matter where it is in the country.

That is my view from the justice perspective. I am conscious that there are differences between health boards in respect of their ability to access and share information. I do not kid myself on that it is an easy problem to resolve. That is why we have brought together a new body that includes some of the key leaders in justice and health to deal with some of the more strategic issues. Part of that is about IT and data sharing and putting in place appropriate protocols and systems that can help to facilitate that.

You are quite correct that the evidence that we heard about delays was anecdotal, but it came from people who have a wealth of experience. That evidence was repeated during our visit last week to Circle Scotland, which has a fantastic track record. It told us that people are often waiting weeks, if not months, to see a doctor. That sounds wholly unacceptable. If that is the case, do you share the view that it is unacceptable for someone to wait weeks, if not months, to see a doctor if they are in prison?

It depends on the purpose. For example, someone in the community might require to see a specialist and there could be a waiting period. I am not sure what you mean. Are those individuals just not seeing a doctor—full stop? Are they being referred to see a particular clinician for a specific purpose?

When we discussed it with Circle, there was broad agreement that that is just a general problem. We were talking specifically about addictions.

If someone was waiting weeks to see a general practitioner or a clinician for a basic medical appointment, I would have concerns. However, that waiting time might be for a referral to addiction services or some other specific service. Those services will be meeting the demands that are coming from the community, too, and individuals in the community might also experience a waiting period in order to see someone.

I am trying to understand whether you are asking about someone seeing a GP about basic health issues or being referred to a specialist service, for which there will be a demand from within the community and, consequently, a waiting time to see a clinician. In that case, the waiting time will arise not because someone is in prison but because of the general demand on that service.

I quite understand that you cannot react to the specifics; I was just trying to share our slight shock at the report.

The other shocking thing that was reported last week, certainly from my perspective, was that, if someone self-reports with an addiction problem without a prior prescription or diagnosis, they will be referred only if they have had three positive drugs tests in prison. That is what we were being told by Circle. The implication was that that would be possible only if they were illegally procuring drugs in prison. Again, that strikes me as worrying. Indeed, if someone is self-reporting as having an addiction problem, at the very least that is drug-seeking behaviour, which would be a worry in and of itself, even if they were not correctly reporting the situation. Is that a report that you would want to follow up on? Would that concern you if that were the case?

I need to get a better understanding of this. Is this a problem that has been peculiar to Serco?

This is certainly something that it reported. The practitioners who were discussing the matter were all in broad agreement. The point was not made by one individual, with everyone else reacting in shock. This seemed to be a well-understood problem. It might be worth following it up directly with the people concerned.

It is just, when you said—

Just for clarification, Daniel Johnson is talking about Circle, the charity.

Oh! I thought you said “Serco”, Mr Johnson.

No, I was talking about the charity.

Sorry, I misheard you. I apologise.

I am happy for us to consider that issue, but I think that we need to understand exactly what it is. It sounds to me that, if there is a requirement for three positive tests, there is some sort of protocol in place. I do not know what the history of that protocol is or why it was put in place. It might be that there is good reason for it being in place but, until I have an understanding of that, I am not sure what we can do. However, I am more than happy for us to take away the matter and try to identify what the issues are. We can pick up on some of the experiences of Circle, which is a third sector organisation, and see whether they can be addressed.

It sounds to me that the system that is in place might be having some unintended consequences. However, before committing to saying that the system should end or change, we need to understand what the reasoning behind it is. I can certainly look into the matter.

That would be extremely helpful.

Good morning, cabinet secretary.

We know that Scotland locks up more women than any other part of the United Kingdom does, so I want to focus on women’s experiences of bail. The committee took evidence from Community Justice Scotland, which told us that the provision of services was patchy. The witness said:

“I worry for women in rural areas. The position is great for those who live in town centres, where there are probably enough people to justify having a service.”—[Official Report, Justice Committee, 6 February 2018; c 47.]

In a letter to the committee earlier this year, the Government said that it has committed £1.5 million to local authorities to improve bail support services for women.

My question goes back to the issue of the purpose of data, which we spoke about earlier. How is the Government monitoring local authority spend of that fund to ensure that there is national parity in the services that are offered to women?

Resources are deployed for the purposes of delivering bail, bail supervision and bail information services through the criminal justice social work funding, which is ring-fenced money that amounts to about £100 million a year. It is then down to individual local authorities to determine what services they will deliver in their areas. We do not ring fence certain amounts for the purposes of bail services within the criminal justice social work budget, because that is determined by the local authority.

The element that is ring fenced is the £1.5 million that we provide for programmes that are targeted at female offenders. Local authorities report back to us annually on the delivery of those services and the way in which they are using those resources. If it would be helpful, we could provide the member with further information on the way in which that is taken forward. Some of those programmes are targeted at reducing the risk of people ending up in the criminal justice system and some are targeted at reducing the requirement for remand by providing an alternative.

We have not prescribed how the local authorities should spend the money. We allow them the scope to determine what they believe is appropriate. The additional money that we provide for the purposes of programmes that are targeted at women is ring fenced. That comes off the back of a change fund, which we set up back in 2015. The fund came to an end, but we continued the specific funding for female-based programmes. That money is distributed across the country via a formula that has been agreed by the local authorities. It is then for the individual authorities to determine how they will use the money at a local level.

Given that the authorities report back to us on that, we can draw together some information and share it with the committee, if that would be helpful.

Thank you.

I have one further question, which goes back to Rona Mackay’s point about young people. It is not always because they have become involved in the justice system that a young person has experience of the system: the young person will have direct experience if their parent is in the justice system—you have already alluded to that, cabinet secretary. David Strang told the committee that many women face additional, more complex problems, such as child custody issues, and Social Work Scotland told the committee that people do not always tell children the truth about what has happened, but children will know that something is not quite right.

I was very interested in what you said about the Government’s work on adverse childhood experience. To what extent do you work with the Cabinet Secretary for Education and Skills to join up the work of the justice and education departments in tackling adverse childhood experiences?

That is a really important issue. It is an area where a much more extensive level of engagement is taking place within the Government, across portfolios, to address the issues. The programme for government has a specific section on adverse childhood experiences and the range of different measures to address those issues that are under way across portfolios such as education, justice and health. The Deputy First Minister recently hosted an event at Bellahouston academy in Glasgow with stakeholders from across justice, health and education, including ministers, looking at a range of specific policy measures that can be implemented to address adverse childhood experiences. For example, the work that we are doing—

I am sorry to interrupt you, cabinet secretary, but we have gone slightly off subject. Please continue, but be mindful of the time.

I just want to say that parental custody is a recognised issue for remand prisoners. One of the ways in which we are trying to address some of the issues is by providing support to families affected by imprisonment through the family centres at our prison establishments and ensuring that we are providing a greater level of resource and support to individuals and children in particular. The expansion of those centres over the past year reflects the fact that we recognise the need to maintain those family links in order to address some of the underlying causes of adverse childhood experiences for children.

I hope that that is a practical policy illustration. There is no doubt that, at a strategic level, the Government is trying to join up the dots to minimise the damage that is caused to children who experience custody in some way.

The 2008 report of the Scottish Prisons Commission stated:

“often remands are the result of lack of information or lack of services in the community to support people on bail.”

Have things changed very much since 2008?

11:00  

Yes, they have. The range of available bail supervision and information services has increased and, with regard to the comments that I made about the provision of resources for women, the range of female-specific programmes has increased. That is reflected in the fact that there has been a 20 per cent reduction in the use of remand since 2008.

That said, is there more that we need to do? Yes, of course there is, and it will be interesting to hear what the committee says on the areas in which we need to make further progress. There have been improvements and progress has been made, but there is no doubt more that we could and should do. I hope that the committee report will help in identifying some of the areas where further progress can be made.

I was interested when you touched on pilot projects that have taken place in Hamilton, Dundee and Paisley. We have heard differing views on the impact of supervised bail on the use of remand. Does the Scottish Government have any specific evidence on that issue?

There was the evaluation of bail arrangements in 2012. If I recall correctly, that report said in particular that bail supervision is valuable and helps to improve how the system operates. I do not know whether the committee is aware of that evaluation, which was carried out to evaluate the changes that took place in 2007 and see how they were operating. The evaluation demonstrated that the bail arrangements in place are robust, fair and appropriate in how they operate. Part of the report made reference to bail supervision programmes and their value, so evaluation has been carried out.

Were those the specific pathfinder projects? Why were those areas chosen? How were they different from what happens elsewhere?

No, those were somewhat different. They were informed by the use of improvement methodology, which has been used in the healthcare setting—for example, our patient safety programme has been developed on that basis. I was keen to look at whether we could use that type of improvement methodology in aspects of our criminal justice system to drive some change and improvement.

We worked in partnership with the Scottish Courts and Tribunals Service and the Crown Office to identify a couple of sheriffdoms where we could test whether such a methodology could make a contribution to how our court system operates, particularly on the use of remand. Those three sheriffdoms were identified, by and large, because of their sheriffs principal, who were interested and keen to explore how it could operate. The three pilots operated with slightly different models and approaches, and they were designed in partnership locally to test whether certain measures could be put in place to drive change in the use of remand.

The results were very mixed, part of which goes back to an answer that I gave earlier about the element of consistency in this. It demonstrated that there is no consistency in the use of remand because of the difference in the nature of the cases that present in courts. Trying to set arbitrary levels or make specific comparisons proved to be very difficult. It demonstrated that information being available to sentencers was valuable in helping them to understand that the input from criminal justice social workers was important, and it gave sentencers confidence about whether to use bail, as opposed to remand, in certain cases.

It gave us some important insights, but it did not demonstrate that it would make a significant change in the system, and it demonstrated the significant variations in the use of remand even in an individual court through the course of a day. It tried to test improvement methodologies to find a method that could help us get a level of consistency. It demonstrated that that was difficult to do, because of the variation in the nature of the cases that the courts deal with.

What is the Scottish Government doing to ensure that there is effective and sustainable funding to help third sector services to be effective?

We provide direct funding to a couple of third sector services: the shine mentoring service and the new routes mentoring service. The funding for the bail supervision and bail information services that are operated by third sector organisations will be provided by local authorities, working in partnership with those organisations. From my perspective, I prefer to be able to provide third sector organisations with consistency of funding over a couple of years, where we can achieve that. It is not always possible, but I try to achieve it where I can. The decisions by third sector organisations and local authorities on how funding is arrived at locally are a matter for them, as I am sure you will appreciate.

In our discussions and information gathering, what has come through loud and clear is that third sector organisations find it very difficult to budget beyond one year, because funding comes from the Government to the local authority, and from the local authority to the organisations. The issue was mentioned particularly to me by Sacro when I met it the other day. I am concerned about the funding issue because Sacro would like to do some good, substantial planning, but that is very difficult to do with funding for only one year. Has the Government considered funding for a longer term?

Yes. Part of the challenge has been around the comprehensive spending review. If we do not know what will happen three years down the line, it is difficult for the Government to plan. If we do not know what our budgets will look like, it is difficult to offer budgets to others. However, we do it where we can. For example, I announced new funding of over £13 million last week for Victim Support Scotland over a three-year period, and knowing what its budget will be will allow it to develop the new homicide service, with a single point of contact to create a much more victim-sensitive approach.

I have sought to provide such three-year funding where I have been able to, but I am conscious that that is not always possible in certain areas and I recognise some of the challenges that local authorities have. Having annual budgets is not peculiar to the criminal justice setting, though, because it happens across the third sector and the public sector in general. As I said, I recognise the challenges that arise from that, but I hope that I have illustrated to you that we try to achieve funding over a couple of years, where we can, to give organisations time to plan, manage and develop their services.

Following the reforms to community justice made by the Community Justice (Scotland) Act 2016, the Scottish Government has responsibility for the national strategy and the national performance framework. You have mentioned the third sector and arrangements to use it to support alternatives to remand. However, the committee has heard concerns. Apex Scotland, for example, said:

“It has been quite difficult because there is an underlying tension between the strategy and the localism agenda ... A vast amount of the money still goes through the local authority filter.”—[Official Report, Justice Committee, 27 March 2018; c 10.]

More specifically, going back to the 2016 act, you will recall that there was a bit of concern about whether the third sector would be involved to the extent that we would all like it to be. Turning Point Scotland told the committee:

“There has been a reduction in third sector involvement in structures across the local authorities. The legislation only suggests that they should include the third sector in their decision making and strategic plans.”—[Official Report, Justice Committee, 27 March 2018; c 9.]

Is there something that we could do to firm up that situation a bit, to ensure that third sector organisations absolutely are partners, given the very valuable contribution that they make?

I am very clear that third sector organisations play an important part in the mix of services that work with individuals. That is why this Government provides some direct support to them. It is of course down to individual local authorities to decide with whom they have direct partnerships in the delivery of services at the local level.

There would be a danger in setting out in legislation that there must be third sector involvement—which is why the legislation does not specify that—because in some local authority areas there might not be a third sector organisation that could deliver the service and it might need to be delivered by a statutory organisation such as the local authority itself. It is down to each local authority to determine what relationship to have with third sector organisations with regard to the delivery of such services.

Your first point was about funding. I think that it was Apex who raised the issue of how the funding still goes through the local authorities. You might recall that when we introduced the Criminal Justice (Scotland) Bill, which my then colleague Paul Wheelhouse took through Parliament, there were those who wanted Community Justice Scotland to be the budget holder and to determine how the money should be distributed at a local level. There was very strong opposition to that idea, particularly from our local authorities, which asked why we should create another body that would have control of how their money would be used, so we agreed to take an approach whereby, although a small amount of the money would be retained by Community Justice Scotland, the vast majority of it would be distributed to local authorities to determine how it should be used in their local environments. That was the debate that was had at the time.

I recognise the point that has been made, but it was considered when the bill went through Parliament. It is for local authorities to decide which third sector organisations they choose to engage with and on what basis, for the delivery of whatever services they believe are appropriate at a local level. Notwithstanding that, I recognise some of the challenges that third sector organisations face. I have seen fantastic work being done by third sector organisations, and there are some good, strong relationships between local authorities and third sector organisations that deliver effective, good-quality services.

That said, I am keen for there to be greater sharing of good practice in such areas. As part of its work, Community Justice Scotland is looking at how, where good relationships exist, good services have been developed and partnerships are working extremely well, information on how those operate can be shared with other parts of the country. Community Justice Scotland is looking at how we can more effectively share that good practice—including on the work that is done with third sector bodies—across all our local authorities.

Instead of only suggesting that there be third sector involvement, could the legislation be strengthened to say that local authorities “must, where appropriate” involve third sector bodies? That would strengthen the legislation a bit, while still providing flexibility. That subtle difference would ensure that the third sector was more involved.

The fact that the funding goes through the local authorities provides an element of localism, but given their restrained budgets, local authorities will always be tempted to consider using an in-house service, whereas it is often the third sector that has the flexibility, the experience and the ability to provide a better service, which offers better value for money and, more importantly, results in better outcomes for the recipients of the service. You probably recognise that that is the case from your various experiences.

You were a member of the committee that considered the Criminal Justice (Scotland) Bill, which was passed in its current form and includes the terms to which you refer. Such issues were considered at the time. The Criminal Justice (Scotland) Act 2016 has been in place for only a year and, at this stage, I am not minded to consider changing it. I am not convinced that including in the legislation a provision that said that what you suggest “must” happen would make it happen.

With any service, it is better for relationships between local authorities and the third sector to be undertaken on a mutually agreed basis rather than a forced basis. That is why I think that the work that Community Justice Scotland is doing on helping to share good practice and understanding of how such partnerships can operate more effectively, how they are working in some areas and how that could be translated to other parts of the country is much more valuable than trying to find some sort of legislative fix.

The issue of third sector involvement does not require a legislative fix—it is about culture and approach. If a local authority is forced to provide a service through a third sector organisation when it does not wish to, purely because it is legally obliged to do so, that relationship will not be positive. It is much more valuable for us to promote the sharing of good practice and positive working relationships, rather than looking for a legislative fix.

11:15  

You are absolutely right—I was merely making a comment. I was indeed a member of the committee that considered the Criminal Justice (Scotland) Bill. I laboured the point at some length at that time, as Paul Wheelhouse will probably tell you, and it is worth raising again.

The third sector is valuable in so many ways, and we certainly need to look at whether it is being, or is perceived as being, disadvantaged. I ask you again to consider the language in the legislation, which is crucial. I am not talking about forcing anyone to do anything—I am simply suggesting a shift in emphasis with the inclusion of “must, where appropriate”, which is stronger. However, you have given your view, and I do not want to dwell on the point any longer.

To be clear, I have no intention of revisiting the legislation, and I do not believe that the matter requires a legislative fix.

I understand that, but I think that my point was worth making.

It has been argued that electronic monitoring should be available as a condition of bail. I know that we will discuss the matter at a future date, but it has been raised in our discussions on the Management of Offenders (Scotland) Bill. What plans does the Scottish Government have in that regard?

You are about to receive a briefing on the Management of Offenders (Scotland) Bill. We have sought to provide in the bill powers that enable ministers to bring forward pilots that involve the use of electronic monitoring as an alternative to remand. There has been some past practice in that regard but, for a variety of reasons, the screening was not very effective in enabling us to identify the right individuals. At that time, electronic monitoring involved radio frequency, whereas the bill will allow us to use global positioning system monitoring, which is much more effective in enabling us to know where someone is at any given time. I am keen to ensure that we have the legislative powers to enable us to test that approach as a potential additional dimension to the range of programmes that we currently have in place as alternatives to remand. However, we have to do so carefully, because we need to provide other services that sit alongside electronic monitoring. I want to ensure that we go about it in an appropriate fashion.

The briefing that you will hear later will set out some of the provisions that we intend to put in the bill. With the support of Parliament, the bill will give us the scope to test some approaches. With GPS monitoring, there is now greater potential for electronic monitoring than we previously had with radio frequency. We must be cautious, however, that electronic monitoring is not simply used for upping the tariff for someone who, by and large, would at present receive bail with the appropriate bail information service or with bail supervision provision. Anything that we do with electronic monitoring must be over and above that provision as an alternative to remand. I want us to be cautious in how we take forward electronic monitoring, because it should be innovative rather than simply a way to up tariffs and monitor everyone who gets bail supervision—that is not what we are trying to achieve. Electronic monitoring has value, but we need to be cautious in how we take it forward, and we need to ensure that it is targeted and used appropriately.

As you have heard in a number of questions from other members, the committee has received evidence that a significant reduction in the use of remand will require action beyond the criminal justice system. We have talked about the third sector and local authorities, and I want to pick up on one specific point. You talked about working across portfolios and sharing good practice, and the disruption to the housing situation of individuals who are remanded. How much has your department engaged with the Minister for Local Government and Housing on that matter, in particular with regard to the new action that is taking place on homelessness and rough sleeping?

As a constituency MSP who has a lot of the Edinburgh temporary accommodation in my constituency, I have had individuals who have been liberated from general custody and remand come to me with their concerns. I am interested in your thoughts on that point.

The ministerial group on offender reintegration, which I chaired and which included the Minister for Local Government and Housing and other ministers, looked at the contribution that different portfolio areas could make to reducing reoffending. Housing is absolutely key.

Fairly extensive work has been undertaken. I think that at the end of last year the SHORE guidance was issued on housing provision for those who are leaving custody. A key part of what that seeks to achieve is a consistent approach across the country. There are indications that the approach works well in some local authority areas but not in others.

The SHORE guidelines are specifically aimed at helping to achieve a more consistent and sustainable approach to the provision of housing. It is early days in terms of their impact, but they were taken forward by the housing minister specifically to address some of the issues of people who leave custody and need access to housing.

That takes us back to the point that I made earlier: we know that housing is a key factor in helping to promote desistance and reduce the risk of reoffending. It is important that the narrative around this issue is not just about ensuring that people who come out of prison get a house. It is about helping to promote public safety, because we know that if we get people rehoused and settled, the risk of reoffending is reduced. It is about trying to create that virtuous circle of communities that are safer, and housing has an important part to play in that.

The SHORE guidelines, which were issued at the end of last year, were taken forward off the back of our reintegration working group’s work and were led by the housing minister as a contribution to work to address that matter. We hope to see evidence of improvements as a result of the guidelines now being applied right across the country. We hope that that will help to demonstrate greater consistency of approach. Obviously, time will tell us how effective they have been.

Thank you for that response. I will also ask the housing minister privately about the action group that has been put together on temporary accommodation, in particular, as a lot of the concerns that we have heard are specifically related to that.

On the other side of the issue, will you talk about what is being done to ensure that the interests of victims and families are not adversely affected by measures, whether current or future, to reduce the use of remand?

One of the central legislative requirements for the court when it is considering bail is that it consider the issue of public safety. Even though courts also have to take into account the likelihood of the person’s receiving a custodial sentence if they are convicted of the offence, I can understand that there will be circumstances in which the court will wish to have the person remanded, for the personal protection of the victim or witnesses. I fully support and recognise that.

That is why I am not in favour of the idea of carve-outs that say that there cannot be remand for certain types of case. Courts have to have the flexibility to consider individual circumstances, including potential victim and witness issues. It is a balance. They have to have regard to public safety and there is a public interest element that has to be considered in making any decisions about bail.

There are some exemptions in exceptional circumstances, for example, in offences that will be considered on a solemn basis. Exceptions apply for serious violent offences, sexual offences and drug offences, in that courts should look to remand those individuals. The court has to be satisfied if it is not going to remand the individual, so the balance is changed from a presumption in favour of bail to a presumption against it. The courts have to give proper consideration to a number of factors in deciding whether they are going to remand individuals who are being considered in the context of those particular types of offence.

We have just added domestic abuse to the list. The Domestic Abuse (Scotland) Act 2018, which the Parliament passed a couple of months ago, adds domestic abuse cases as an exception in which remand should be considered, and the circumstances must be taken into account in determining whether bail will be allowed. A key part of that test is public safety.

The balances in the current system, alongside the exceptions, are the right ones. The evaluation in 2012 demonstrated that, by and large, the system is robust and effective. We also tightened up the actions that the courts can take to deal with breaches of bail. I hope that that provides reassurance on the balances that we have in the existing system.

Electronic monitoring can also help to provide greater assurance to victims in certain circumstances. If certain types of individual are going to be given bail, electronic monitoring could be attached as a condition of the bail, to provide some assurance. Should the Parliament approve the Management of Offenders (Scotland) Bill, I will consider whether some of the pilots can take place in areas where victims might be particularly vulnerable, such as in domestic abuse cases, to determine whether electronic monitoring can provide greater assurance. I have already given consideration to the area and would like to explore it.

That concludes our questioning. I thank the cabinet secretary and his officials for attending.

I suspend for five minutes to allow the cabinet secretary to leave and for a comfort break.

11:26 Meeting suspended.  

11:32 On resuming—