Official Report 169KB pdf
Remote Monitoring Requirements (Prescribed Courts) (Scotland) Regulations 2005 (Draft)
Item 2 is subordinate legislation. I welcome Hugh Henry, the Deputy Minister for Justice, and ask him to speak to and move motion S2M-2292, on the draft regulations.
I apologise, convener, as there seems to have been a mix-up over time. I was advised that I was required at 10 o'clock. I regret any inconvenience that has been caused to you or the committee.
I say at the outset that I seek to help the minister make a success of remote monitoring; my questions are not designed with any other purpose in mind.
The debate that we are having this morning is not about the principle of the issue or whether we should proceed with remote monitoring. We have previously established the principle. The draft regulations are about agreeing the dates and the specification of the four courts.
Just to complete the loop, does the Executive have a view on what imposing bail conditions, which might be an alternative in some circumstances, might cost? The figure should recognise that bail does not always work and that costs are associated with the failure of bail.
One of the matters that we seek to determine through the pilot is relative costs and the difference in cost between bail and using the tag.
I understand that the draft regulations are more about taking the number of courts in the pilot from two to four. However, I have a relevant point about section 24A(2) of the Criminal Procedure (Scotland) Act 1995, which is mentioned in paragraph 6 of the note from the clerk, paper J1/S2/05/3/1. The third sentence of the paragraph states:
To an extent, we have had some of that discussion. We could usefully come back to those details when we come to evaluate the effectiveness of the pilots.
It is important that we distinguish between the two separate provisions. The issue was rehearsed in the debates on the Criminal Procedure (Amendment) (Scotland) Act 2004. Previously there was mandatory detention in murder cases, but that is no longer the case. If the court is not satisfied that detention is necessary, the accused will be granted bail. The provision to which the minister refers is a tightening-up measure. It extends to rape cases and forces the court to consider whether it would be safer to have the accused monitored.
We wanted to see how the provisions would work in two different settings. By using the High Court in Glasgow, we can test post-conviction appeal cases. A different category of case will be considered there. We thought that that would be a useful way of testing the effectiveness of the provisions. We anticipate that the figures for the High Court will be extremely low compared with those for other settings.
So the High Court pilot is to be only for post-conviction cases?
The High Court will be used to test post-conviction appeal cases. A slightly different category of cases are considered in the sheriff court. Sheriffs usually grant bail, but appeals against refusal are dealt with in the High Court. In my area, cases in which bail has been refused have been appealed to the High Court. Those cases are considered before conviction, but we want to test the post-conviction appeal cases in the High Court.
I am still a bit confused. Will the pilot cover post-conviction cases and cases in which there is an appeal to the High Court?
I may have confused you—I was trying to describe other situations. In the High Court in Glasgow, we want to test post-conviction appeal cases. The best thing to do is to give the committee chapter and verse on the matter in a letter. Either that, or we would have to take out the High Court for the purposes of the pilot.
Clarity would be helpful. I just wanted to be clear about which cases that go to the High Court will fall under the pilot.
If you give me a moment, I will check the regulations.
Our briefing mentions that the pilot will involve
Yes, that is in regulation 2.
Our briefing also mentions that the pilot will cover any case in the High Court in Glasgow.
Where regulation 2(2) mentions
Right.
The reference to section 24A(1) of the Criminal Procedure (Scotland) Act 1995 relates to the High Court in Edinburgh for appeal purposes. I perhaps confused you with my earlier description.
That is why I raised the issue. If, for example, in a case in Paisley sheriff court, which will not be one of the pilot courts and which will not have the ability to impose a monitoring condition, the individual applies through their solicitor to the High Court to try to overturn the decision—
That will not count.
If somebody is turned down for bail at Paisley sheriff court, which will not have the pilot scheme, and the case ends up at the High Court, which will have the pilot scheme, what provisions are there to ensure that—or even monitor whether—bail is granted, given that monitoring is not available at the court that the person appeared in initially? My concern relates especially to cases of rape and murder.
Let me just think that through. You are talking about cases at Paisley sheriff court in which bail is refused, and in which there is an appeal to the High Court against refusal of bail.
Those are the normal conditions that apply now.
It would be my understanding that, in cases of murder and rape, if such an appeal went to the High Court, electronic monitoring would be available.
But surely that would apply only to the courts where you are piloting the provision. Otherwise, it means that, in every case in a sheriff court in which bail is refused, if the defendant decides to test the refusal of bail in the High Court—which they can do at the moment—the High Court would be bound to consider the same—
No. We come back to my earlier point. In cases of rape and murder, it would only be when bail was being granted that the additional factor of monitoring would be put in. The situation that Bruce McFee describes—in which a person who is refused bail at Paisley sheriff court appeals to the High Court, the High Court says "No", and electronic monitoring is introduced as an alternative—could not happen. It would only be if the High Court felt that it was appropriate to grant bail that electronic monitoring would be an additional imposition.
Our note on prescribed courts refers to
Yes, but it would be a small number of cases in relation to the ones that are heard in Glasgow and, as far as—
What is to stop someone who is remanded in custody and refused bail at Paisley sheriff court, where no pilot is running, appealing against that decision, knowing that the High Court has to consider whether to grant them bail in the same way that Glasgow sheriff court will have to under the pilot? Is that not encouraging appeals to the High Court?
No—far from it. That person could appeal under current conditions, and if the High Court decides to grant bail, as has happened in the past, it would do so. That process would continue.
The High Court would not be duty bound to consider—
Bail could still be granted. We do not want to encourage more appeals by people who want bail. What we are saying is that, if a court is going to grant bail, it can consider an additional imposition. In a sense, for those who are eligible for bail, it is a higher test—a higher degree of sanction.
I hear what you are saying minister, but my understanding of section 24A(2) of the 1995 act is that the difference, essentially, is that the court can impose the monitoring restriction without the person asking for it to be applied. When the High Court is considering an appeal against the refusal of bail, the court does not have to receive a request from the individual who has been remanded, so therefore it automatically has at its disposal the potential of granting bail with the monitoring restrictions imposed. I understand that that is not meant to—and nobody would seriously suggest that it should—mean that people on remand for rape and murder would be released out into the community until their trial. However, in effect that is what monitoring is about in other situations; it is used as an alternative to keeping people on remand—I am quite sure that that is how the provision will be understood.
Some of the questions about the principle that Bruce McFee legitimately asks were discussed previously by the committee, as he indicated. I hope that members of the committee do not seek to overturn the principle that was established. Today we seek to determine whether we should move forward with the pilot in four courts and to agree the implementation date. However, some questions that have been asked relate more fundamentally to the principle of whether the approach is acceptable. Bruce McFee and other members of the committee have previously raised concerns about that.
I agree that the purpose of the committee's discussion is to consider in which courts the provision should be piloted until 2007, when it will be for Parliament to consider the results. However, I want to be clear about the impact of including the High Court and to ensure that there will be no back-door route into using the provision for courts that are not included in the pilot, given that the provision is quite wide. I am rehearsing old arguments, but defence agents will feel obliged to use any provision that is open to them to secure bail for their clients, rather than leave clients remanded in custody. However, we are here to discuss the pilots—
It would be useful to point out that we consulted widely on the proposal. We consulted the Crown Office, the Scottish Court Service, the police and local authorities, which agree with the proposal that is before the committee.
I understand that we are not here to discuss the fundamental principle behind the measure—unfortunately, we lost the argument. However, I remain fundamentally opposed to the policy objective to reduce the number of people who are remanded in custody.
I said that bail was refused in 43 cases in Kilmarnock sheriff court.
Sorry—there were 43 cases in Kilmarnock.
Margaret Mitchell usefully expressed her concerns not in relation to the pilots but in relation to the principle. The reason why we wanted to test the system outside Glasgow is that Glasgow sheriff court is unique in Scotland, given the huge volume of cases that it handles. Also, we wanted to test whether there were different applications elsewhere. We wanted accurately to consider usage of the measures, to gauge their potential and to see whether they will reduce the prison population. In those tests, we wanted to consider different sizes of courts. If we simply chose Stirling and Kilmarnock sheriff courts, there would always be doubt about whether the system would work in a court such as Glasgow sheriff court, given the volume of cases that it considers. On the other hand, if we simply chose Glasgow people might see it as a Glasgow solution with no application for small courts beyond Glasgow. We thought that it would be useful to test the measures in a variety of circumstances.
With respect, minister, you have not answered my question. Why do we need a pilot in Stirling sheriff court as well as the pilots in Glasgow and Kilmarnock sheriff courts? They are all sheriff courts, and I presume that the same procedures go on in them.
Yes, but we also wanted to test in different police force areas and different geographical areas. We thought that it was important that we did not concentrate the pilots in the Strathclyde police area.
I am certainly not convinced by that answer.
Also, I am reminded that Stirling sheriff court was included at the request of the Association of Chief Police Officers in Scotland, which also wanted to test how the measures worked in more than one area.
My fundamental priority is the safety of the public and from what I have heard this morning I am not convinced that the pilots should be extended from two courts to four.
I call Stewart Stevenson.
Sorry, convener, could I perhaps answer Margaret Mitchell's point? Again, I think that she is being disingenuous. She says that she is concerned about the safety of the public and that she is therefore concerned about the extension of the pilots from two courts to four. If that fundamental concern existed, the committee would not have sanctioned the pilots at all. Whether the measures are tested in Stirling, Kilmarnock or Glasgow, we have sought to give assurances that public safety is paramount. The public safety issue is not about whether pilots take place in two courts or in four courts, but about whether the pilots and the courts will have regard to public safety, and we say that they will. It is a spurious argument to say that there will suddenly be more anxiety about safety if we extend the pilots from two courts to four.
On the contrary, we lost that argument.
I am glad that you recognise that you lost the argument.
If you do not impose the pilots, you will go straight to implementation; I am being realistic about that, not disingenuous.
Margaret Mitchell's opposition to the provision during the original debate is well noted.
My opposition now to the extension from two courts to four is—
Hold on. I am not going to allow this. You have had your say and so has the minister. Let us move on.
I just want to be quite clear about something. I think that it will assist us all if we can pin down the comparison between the present situation in relation to the pilot and the introduction of a change—that change being the provision to sheriffs and others, when they have determined to provide bail, of an additional way of monitoring the behaviour of the person to whom bail is granted. We need to compare that with the situation if that provision is not made, and we need to check what is happening. It seems to me that during the pilot—we shall leave aside what might happen after the pilot—we are looking at something that should increase public safety rather than diminish it.
Generally, that would be my understanding. The difficulty with giving a specific answer to Stewart Stevenson's question is that each individual case is determined by the judge in that particular case. It would be wrong of me to second-guess judges or to suggest how they would act. I reiterate a point that Stewart Stevenson referred to. It is our belief that the provision is a public safety measure and that, for those who could be considered for bail just now, there is an additional level of scrutiny involved. I shall leave murder and rape aside because those are specific cases and I have addressed that issue. We will obviously continue to consider the potential for any difficulties that might arise. We have tried to frame the legislation in such a way that it would simply be seen as an opportunity to release people who might not otherwise be considered as being suitable for release into the community. We think that people are sometimes taken to prison who do not necessarily need to be in prison.
I am trying to second-guess, so it might be helpful if you could say whether my guesswork is correct. Following the pilot, you will have on your desk a report about the pilot, which I presume you will share with us, although that is up to you at the end of the day. I want you to share it with us, but it is up to you. Is it your fervent hope that what you will see in that report is that, in the courts where the pilot is being conducted, the breach of bail conditions or the early and effective detection of breaches is improved over the operation of the bail system in those courts where the pilot is not being conducted? In other words, is the objective of the pilot—among other objectives—to improve public safety, and is it the case that one of the tests that you and the Executive will apply in going forward following the pilot will be based on whether it has improved or diminished public safety and the effective operation of the bail system? Is that a fair characterisation of what the pilot is actually about? Are the concerns about public safety that are being expressed around this table precisely the concerns that you will end up sharing with us all?
I agree. There would be little value in my repeating some of what Stewart Stevenson has said. He is absolutely right. As I have said several times this morning, public safety is paramount; therefore, we will not engage in anything that we think leaves the public more at risk.
Can I, in that case, conclude the matter? We could go on for ever, but that would not be helpful. If the pilot shows that there has not been the improvement that is sought, will you proceed further?
I hesitate to prejudge a trial. If the pilot showed that public safety had been put at risk, I doubt that we would want to continue with the pilot scheme. If the trial showed that remote monitoring had had no effect and had not improved the situation in respect of the issues that Stewart Stevenson mentioned, I would hesitate before making any recommendations. If the trial showed that people were being held on remand when otherwise that would not be the case, I would have to question the value of the initiative. The pilot scheme is essentially a way of trying something out without having to make a wholesale change so that we can find out whether the change would make the contribution that Stewart Stevenson suggests. I guarantee that we would not do anything that would prejudice public safety.
What will be assessed in the pilot scheme? Will the Justice Department undertake the assessment in 2007? Who will do it?
Ministers will have to draw a conclusion from the evidence that is presented and then defer the matter to the committee and Parliament for determination of whether there is any value in going forward. However, for ministers to make that decision, we will have to be presented with evidence and analysis that will be carried out by an independent person.
So, it will not be someone in the Scottish Executive who carries out the assessment.
No. We will use an independent assessor.
Who is that likely to be?
We have not decided.
The Executive will just appoint someone who it regards as being independent.
There will be a tendering process.
I see. Will you lay down the criteria for assessing the suitability of the provision? For example, will you consider the number of breaches and the number of failures to turn up at court?
Exactly. The overriding issue is public safety, but we will also want to consider the number of breaches and the impact on the courts. A range of administrative as well as judicial matters will need to be considered, so it will be a fairly comprehensive analysis.
So, in 2007, a committee of the Parliament will have an opportunity to examine the information with which the Executive has been presented.
We do not have the authority to roll out the pilot scheme across Scotland. At the moment, all we seek to do is try it out, as we agreed. We reflected on the concerns that were expressed by the committee, and that is why we are doing it this way. De facto, before there could be any extension of the pilot scheme, scrutiny by the committee and approval by Parliament would be required.
Let us return to paragraph 2 of our note on the draft regulations and the discussion that took place between Stewart Stevenson and the minister. Stewart Stevenson asked whether the idea behind the regulations was to increase public security when people are released on bail, subject to its conditions—clearly, that was agreed on—or whether it was a question of having people out with monitoring devices on who otherwise would have been in custody. That was kind of glossed over.
I confess that I am puzzled. I am struggling to think what the loophole is. As I have probably said on more than one occasion, the High Court must—I emphasise must—decide to grant bail. Then, if the High Court believes that it is necessary or right to grant bail, the court must further impose electronic monitoring. If the High Court decides not to impose electronic monitoring, it must explain why, in the particular case, electronic monitoring was not sufficient. Of all the cases that are to be considered in the pilot, those cases will probably be the ones that have even more added conditions. I may be misunderstanding or missing something, but I cannot understand what the loophole would be if the High Court had to take that decision.
If I may, I will stop you there—that is absolutely correct. The issue is almost the opposite. The provision is intended to improve public safety because, in some cases, there are no grounds for sheriffs to remand a person to custody, particularly in murder cases. The measures will make sheriffs consider an electronic tag. They will also have to provide justification for not doing so. That goes in the opposite direction to other provisions. It is a good provision that will improve public safety.
For murder and rape?
No, we have moved away from murder and rape. For everything else, where a sheriff has remanded a person to custody, that person has to go through a procedure to apply to the court to ask whether they would be allowed out into the community if they were tagged. That is what we are being asked to consider. We are being asked to consider pilots in three sheriff courts and in the High Court. I am not clear about one aspect. I do not know whether it is the loophole that Bruce McFee talked about.
Yes.
So in Glasgow, Stirling and Kilmarnock, if there was an appeal to the High Court on a refusal of bail, the High Court would have to implement that provision. If the court were to refuse bail, the accused could make an application and the court could consider whether an electronic tag would allow the accused out into the community. That would not apply to Paisley sheriff court, for instance.
No.
It might be useful to clarify that. If someone is appealing from a court that is not part of the pilot scheme, the High Court could not say "Yes, we will grant you bail but there will be a monitoring device attached to you".
Not under section 24A(1).
However, section 24A(2) does not require the request.
No, the distinction is that without the pilot, the High Court would be duty bound to consider all options when considering whether to remand a person to custody. On application by the accused, the High Court is duty bound to consider a tag. That is the provision that the High Court will be expected to adopt at courts where a pilot is running. Other than that, the High Court would consider it in any case, as would any sheriff; when a court is deciding whether to remand anyone to custody, it is supposed to consider all the options. Section 24A will allow the accused to go to the court and ask whether the court would reconsider its decision if the accused person was tagged.
So under section 24A(1), if an appeal comes from someone who appeared at a sheriff court that had that facility, the High Court could consider imposing that condition, but if the accused was referred from Paisley or another court that does not have that facility, the High Court could not grant an accused bail subject to the attachment of a monitoring device.
Yes—there would be consequences if we did not do it that way. We do not want sheriff courts in pilot areas to have more powers than the appeal court but—equally—we do not want this to be another way of just extending the pilot throughout the country.
I am happier with that. The crucial words in section 24A of the 1995 act are
I think that the convener has resolved the problem. The confusion was about whether the measure would be another way for people outwith the pilot areas to apply to the High Court to seek that additional measure. The minister has reassured us that that is not the case; in fact, he said that the High Court has to hear cases where appeals are made and in the past, it might have overturned the previous decision and released someone. However, in the pilot areas there is an added safeguard in that the court could offer the monitoring arrangement. The situation is therefore more secure than it would otherwise have been, so we should stop there or we will end up going round in circles. Members' queries have been answered.
Can I just have something else clarified? My query is answered in the case of section 24A(1). However, under section 24A(2), if someone has been charged with murder or rape and has had a bail application turned down by a court that is not part of the pilot, and if they appeal to the High Court in Glasgow, can the High Court then grant bail with the monitoring device?
Such people are already out on bail. The provision is for situations such as a murder case, for example, that might come before any court and in which there is no justification for remanding the accused.
If a person is out on bail, they will not be appealing. If the application for bail has been turned down and an appeal is made to the High Court, could the High Court grant bail with a monitoring device to someone from a court that was not part of the pilot?
In cases of rape and murder, the answer is yes. We are talking only about that purpose. Again, electronic monitoring is the additional condition. To repeat the point that I made earlier, it is only for those cases. The issue is not that the court must consider monitoring but that it must consider bail in the first instance.
I accept that, but just to clear the matter up entirely, I have one final question. I accept what the minister said about the circumstances that he described. However, when deciding whether an individual should be granted bail and released into the community, could one of the considerations that the appeal court makes be that the individual be subject to safeguards on the ground of public safely? If so, could the safeguard be monitoring?
It would not be for me to tell or advise a court about how it should come to a conclusion in making a decision to grant bail. The two issues are separate; consideration of bail must happen before any consideration of electronic monitoring. It is therefore unlikely that a court will grant bail simply because electronic monitoring is available. The court is required first to give consideration to the main issue, which is whether bail should be granted.
Do you want to sum up?
No. If technical issues need to be clarified, we will write to the committee on—[Interruption.]
I am sorry—I should have switched off my mobile phone.
I am against the motion. As I said, I am unhappy about the extension of the pilot to four courts; it should be sufficient for the pilot to be run only at Glasgow sheriff court. I am not persuaded by what the minister has said.
Okay. The question is, that motion S2M-2292 be agreed to. Are we agreed?
No.
There will be a division.
For
The result of the division is: For 4, Against 1, Abstentions 1.
Motion agreed to.
That the Justice 1 Committee recommends that the draft Remote Monitoring Requirements (Prescribed Courts) (Scotland) Regulations 2005 be approved.
Does any member have a point that they wish to emphasise in the report?
I will not apologise for continuing to ask the question, because it was useful in clarifying the situation in some cases. However, there is still a doubt. I heard the phrases, "should not be" and "would not normally be" used in relation to those who have been accused of rape or murder and denied bail by a court that is not part of the pilot system, but who can get bail granted at the High Court if they have a monitoring device attached. That is perfectly understandable. The minister could not answer the question whether in assessing an individual's suitability for bail the High Court could take into account a belief that the person could be released safely into the community if they had a monitoring device attached. The note from the clerk is clear that a monitoring order is not intended as a means of allowing bail to be granted when it would not otherwise have been granted. However, the message came across that such orders might be used in those circumstances. I understand how they might be used and I want to find out—no answer has been forthcoming—what mechanisms will be in place to ensure that they are not used in that way, and to evaluate and monitor their use. That did not come across.
It did to me, because all murder and rape cases are already dealt with at the High Court. I presume that when judges consider whether to grant bail in a murder case, they have to take into account what you outlined. It took a while for us to have that point explained and you are right that it was worth probing the matter further. We are talking about appeals against a decision to grant bail, which are heard in the High Court, rather than bail in murder cases that start there. The judge is already duty bound to consider whether to release a person into the community, with or without a tag. The provisions will force a court to consider the orders when bail has been refused. That will not apply to every High Court case; it will apply only to cases in the courts in the pilot where there has been an appeal to the High Court against refusal to grant bail.
The appeals situation concerned me.
Even with regard to the High Court, a lot has been made of the provision increasing public safety. It is clear from section 24A(2) that the timing of the pilot and the additional bail condition will make it more likely that bail will be granted than would otherwise have been the case. Our note says that a person could be released when they would "otherwise have been remanded." I have real concerns about that.
Are you referring to section 24A(2)?
Yes. Our note states:
I do not read the provisions in the way that Margaret Mitchell does. The minister said clearly that a court would consider the tagging arrangement only where bail was being offered. He did not say that it would be taken into account in considering whether to grant bail. The situation is the reverse of what Margaret Mitchell is suggesting. The orders are an added protection, rather than an alternative that will make the granting of bail happen.
You might hope that they will be an added protection, but—
You cannot prove to me that they will not be.
I want members to tell me what they would like the report to cover that they have not already discussed. What we have discussed already will obviously go into the report. Have any points not been covered that members feel strongly should go in our report to Parliament?
The key message that I took from the discussion was that the minister, quite properly, was unable to give us a guarantee about how judges will behave. I would be most alarmed if he were able to give us such a guarantee, given the independence of the judiciary.
Okay. Time is moving on and I can see that—
I will be brief.
Yes—I will let you in, in a minute.
That will be with a draft report before us.
Can I clarify something? I listened carefully to what Stewart Stevenson said. If I paraphrase him correctly, he described a two-stage process in which it will be decided, first, whether bail is appropriate and, secondly, whether the monitoring condition is to be imposed. However, that description is entirely at odds with paragraph 2 of the briefing paper, which says:
I do not think that Bruce McFee and I differ at all on that; that is, indeed, the policy objective. However, it is not what will happen during the pilot. I believe that that is the key distinction that I extracted from the minister. The policy objective is, after a successful pilot and its extension to the rest of Scotland, to deliver the benefit to which Bruce McFee referred. However, the pilot is a different thing, which will seek to keep the basis on which bail is granted the same as it is at present, but will add to appropriate cases—in which bail is the decision of a court—the additional monitoring control to improve public safety and to assess whether people who are tagged behave more stringently in relation to bail conditions in the four courts for which the pilot is proposed, compared with the courts for which it is not proposed. If the pilot shows that those who are tagged behave better and conform to bail conditions better, we will move to a position in which, after the pilot, the policy objective of extending the number of people who are granted bail because of the existence of tagging will be implemented.
I do not disagree with Stewart Stevenson's summary that the policy intent is to reduce the number of people remanded to custody. However, the minister clearly said that public safety will be part of the consideration of that. I am not endorsing that policy—I have made that clear previously—but I am willing to consider the pilot to see whether there is any benefit in a tagging system. I am certainly satisfied, given the clarification on the High Court, for the four courts to carry out the pilot, with the proviso that a parliamentary committee, whether this one or a future justice committee, should see the findings of the pilot.
Members indicated agreement.
Should we e-mail the clerk or the convener? I presume that you will sign off the report.
I will sign the report off, subject to members' comments.