Agenda item 2 is the Criminal Justice (Scotland) Bill. Am I going too fast for you?
Just a tad.
I will slow down for you, Margaret, until you get your bearings again.
Bagha. Lesley Bagha.
Thank you. Lesley Bagha is the bill team leader. Aileen—oh, somebody should tell me how to say it—Bearhop?
Bearhop, yes.
There we go. Why can you not have Smith as your name? It is so much easier. Aileen Bearhop is head of the police powers team. Jim—Devoy?
Correct.
Gosh. Jim Devoy is policy officer, youth justice. Anne Hampson—you are a good person—is policy officer, victims and witnesses team.
Thank you, convener. A good new year to you, members and all. I welcome the opportunity to give evidence today on the bill’s provisions relating to arrest and custody, sentencing, appeals and other issues. In this opening statement I will focus on police powers and the rights of suspects.
Thank you, cabinet secretary.
Thank you.
It is nothing; I just felt in a good mood.
Thank you, convener. Happy new year.
No, I do not believe so. I understand and recognise where you are coming from. Many of the points that you make relate not to nomenclature or the statutory definitions of arrest or detention but to media profile. I am thinking of the example of a high-profile case in England a year or so ago—never mind the fact that, although I do not recall any prosecution against Nigella Lawson, every time I saw the television, I thought that she was on trial because that is how the media portrayed matters. That is for a separate debate and must be dealt with separately.
I understand what you are saying. From listening to the media in England, I myself have sometimes misapprehended what an arrest has meant when somebody has been taken in. I am thinking of the case that you mentioned. If the bill is enacted, are there ways in which we can tackle the public perception so that, if somebody is arrested, it is not presumed that they have done something?
Some of that might have to be for another day—dealing with the media certainly is—but the bill provides greater clarity. If we were to ask them, we would find that ordinary citizens in Scotland find it pretty hard to explain the difference between arrest and detention and why some people are arrested straight by the police and others are detained.
I subscribe in part to what Elaine Murray says. I agree that it is a matter for the media, but I do not think that they will be contained in that way. Might there be room at some point to consider giving accused parties in certain cases the anonymity that is provided to the principal witness?
That is a jurisprudential debate that we can have. The only caveat that I would add concerns the world of social media. Various high-profile footballers who have had court orders or anonymity south of the border have appeared on the front page of The Scotsman newspaper, albeit with some masking of their eyes, and anyone who had any passing knowledge of football knew who was being discussed.
Nevertheless, if one were to go in that direction, there would be a breach.
You are correct. Such protection applies at present to minors, unless the court were specifically to exclude that and allow for publication. At present, the young person’s name would not be published unless the court decided otherwise. These are matters on which we do not have a formal policy. We are happy to consider them and engage with the committee, the legal profession and, doubtless, the media and those involved in social media. You raise a legitimate and understandable point. As always, the devil is in the detail, especially in relation to social media.
Oh, this committee knows that. The issue just popped into my head and I thought that there may be an opportunity to give it some consideration. I think that there is some traction behind the issue now. In certain cases at the moment, notwithstanding the protections that the court allows, people—on both sides, including witnesses—are tried by the media and have to live with that. There are issues there to be examined.
Good morning, cabinet secretary. Happy new year to you.
Happy new year.
On 1 October, the committee took evidence from various police witnesses. John Gillies of Police Scotland told the committee that the change from detention to arrest on suspicion would result in considerable additional training and resource requirements. Regardless of what you said about modernising and streamlining the law on detention, the feeling that we got from the police was that, due to the additional burdens that the changes would put on Police Scotland, they did not think that the changes were justified. Would you comment on that?
I do not think that that is Police Scotland’s evidence. I have no doubt that John Gillies indicated that training would be required. We accept that and it will be factored into the timescales for the implementation of the legislation if it is passed by Parliament. Police Scotland supports the general thrust of the bill. Any change—whether to the 1980 act or in the 2014 legislation—requires officers to review and learn procedures. We have been through that with Cadder, when officers had to be given cards to read that referred to matters that they had perhaps not been taught about when they first passed through Tulliallan.
I put to you what Calum Steele from the Scottish Police Federation said, which was that the case for a change relating to detention and arrest had not been made. He went on to say:
I do not believe that will happen. What Lord Carloway is proposing, which is part of a general direction within Europe, will make things clearer. We are moving from the current position, in which an officer has to decide whether to arrest somebody or detain them under the 1980 act. The bill will make it clearer. The officer will simply arrest someone on suspicion—it has to be a reasonable suspicion. The situation will be clearer for officers, although I accept John Gillies’s point that officers will require to be given some training. I go back to the point first raised by Elaine Murray, on people’s understanding of detention and arrest. At present, detention and arrest blur into each other. We should head towards the situation in which—as correctly encapsulated by Europe—arrest should be at a point when there is suspicion, and detention should be the deprivation of someone’s liberty.
In that case, you will not agree with Assistant Chief Constable Graham of Police Scotland, who feared that the new definition could prevent a person from being arrested in order to stop a crime. Are you quite satisfied that arrest on suspicion fully covers that?
Yes.
So you see no need for the power of arrest to prevent a crime to be implicit in the bill.
The Association of Scottish Police Superintendents was correct to express its concerns on the matter but I make it quite clear that the common-law powers of arrest, other than that changed by the formal statutory arrest procedure, remain and will always be available. The power of arrest to prevent a crime and indeed to ensure public safety remains.
But your opening statement suggested that you were seeking to clarify the common law in statute. Surely this is an opportunity to make it clear that the power to arrest on the ground of prevention is within the powers available to the police.
In part 1 of the bill, we are making the common-law power of arrest a statutory power. Other common-law powers are not affected at all and will continue. Our concern about putting into the bill the power to arrest on the ground of prevention is all about what someone who has not committed a crime would be arrested for. The bill allows for someone who is committing a crime to be arrested.
What if someone with a brick in their hand is standing next to a car window?
I think that that would come under intent to commit a crime.
Under common law.
If the brick were sitting on the pavement and the person in question had not moved towards it, they would not have actually done anything.
What if they have the brick in their hand and are looking at the car window? That situation would not be covered by this power because they would not be committing an offence. They might just be holding a brick.
The point at which the person in question becomes someone who will commit a crime is an operational decision for the police. They would be in the act of committing a crime.
So someone standing with a brick in their hand looking at a car window would be committing an offence under the bill.
Yes.
I am just asking because surely it would be difficult to know. After all, the person could defend themselves by saying, “I’m a brickie,” or, “This is my car.” Could you explain the common-law provision that deals with such a situation?
It does not come under common-law provisions. It is an operational decision about the point at which a person is seen to be committing a crime.
Okey-dokey.
I believe that the Civic Government (Scotland) Act 1982 also contains powers to allow the police to pick up, say, a known housebreaker with housebreaking kit who is walking towards a building.
What is “housebreaking kit”? A T-shirt?
The police can also pick up someone who is in a building they should not be in and who looks as if they are about to commit a crime. Other powers are available.
I must apologise to Margaret Mitchell. I was just intrigued by the issue.
Perhaps I can tease this out a bit more. How does the new power to arrest on suspicion of committing a crime differ from arresting someone to prevent a crime from being committed?
I have just been handed a note—from the lawyers, I think—that says that there is a common-law offence of attempting to commit a crime and conspiracy. That will remain.
I think that we are getting into esoteric matters. If there is evidence to show that someone is conspiring to commit armed robbery, that person will be arrested. If someone is standing with a brick in their hand and it looks as though they are about to put it through a car window to take a handbag or whatever else might be lying around, they are clearly about to commit a crime.
Yes, it would be.
The difficulty arises when people are thinking about offending. Unless that can be proved, or there is a risk of a sexual offence and we can get a sexual offences prevention order, or the person is subject to an order for lifelong restriction, there are difficulties, which present huge challenges for all jurisdictions. What would the person be charged with if they were arrested—“We think that you are thinking of committing an offence”? They would say, “What offence?” We might know that the person has a propensity for doing evil things. That causes great problems, which is why we created the SOPO, for example. However, if someone is standing with a brick or has gone into a common close with a screwdriver in their back pocket, that can be dealt with and will be dealt with under the new statutory provisions.
Do you envisage that the police will need more training?
When any new legislation comes in, as happened post-Cadder, the police look to ensure that they can deal with it. What we are talking about will not happen in isolation; Lord Carloway has taken a position about matters from the point of first suspicion through to the ultimate appeal, so there will be a whole area in the legislation in relation to which the police will have to get trained up to deal with the changes.
Concern has been expressed about the provision whereby the person who is arrested must be taken to a police station as soon as is practicably possible. It has been suggested that the provision lacks flexibility. Will you comment on that?
That is to do with the interview. Apart from in exceptional circumstances, such as a kidnapping, in which access is denied—there will be very few such cases—a person who is arrested will be taken to a police station, where they will be advised by their letter of rights, which will be available in a variety of languages and scripts. Officers and senior officers will have to indicate whether the person is vulnerable because of their age, capacity and so on, and legal advice will be offered.
Lord Carloway recommended a less rigorous approach. He said that the arrested person should be taken to a police station only “when necessary”. Why has the Government gone further?
I think that your first point was about the provision that a person should be taken to a police station
Yes. I think that the implication is that every person who is arrested will have to be taken to a police station as soon as possible.
The wording is there simply in recognition of the fact that in some cases—for example, in rural areas—it might take longer to get the person to a station. As the minister said in his opening statement in the context of de-arrest, it is recognised that there will be cases in which the grounds for arrest no longer apply and the person should no longer be under arrest, so we will change the bill to ensure that the arrest can be stopped and the person can be released straight from the street without having first to be taken to a police station only to be sent home.
Lord Carloway said that a person should be taken to a police station only “when necessary”—never mind the de-arrest, which I think muddies the waters. I admit that I am not a great fan of the term “de-arrest”, which sounds a bit confused.
I think that the reason for requiring that a person be taken to a station is the recognition that people must be accorded their rights. Individuals must be given access to a solicitor and proper recording must be done, so that the right process is followed.
If that happens for every crime, will that not change dramatically how things work in practice?
If the police could charge persons on the streets, they would not have to go to a police station.
Many of the challenges that we have faced post Cadder have related to statements or admissions that were made at the scenes of road traffic accidents or other such scenes when the person had not been cautioned, and the person who admits that they were the driver could incriminate themselves. I think that there is good reason for people being taken as quickly as possible to a police station and for ensuring that when the police want to interview a person it is done at a police station at the point of arrest.
For the avoidance of doubt, convener—
I want to move on. I have a list of members who want to speak.
Are you saying that, under the bill, every person must be taken to the police station at some point?
That is not so if the officer decides that they can charge the person immediately—in which case the person can be charged and then released for appearance in court at a later date.
That process is for dealing with very minor matters. We know the challenges that police officers face, for example when they encounter somebody urinating in the street at night. That is unacceptable behaviour whether it is being done in their own close or wherever. It is downright offensive. Do we need to take officers off the streets to take such people back to the police station? We might if their behaviour became more unacceptable, but the officers might just be able to deal with the matter there and then. We must provide the flexibility to allow officers out on the streets to make that decision.
Thank you for that full explanation. I want to move on to supplementaries on this line of questioning.
You have covered most of what I was going to ask about in your most recent response, cabinet secretary.
We are happy to consider that, but the SHRC would have to spell out what it is suggesting. We have had discussions with it to ensure that, through the letter of rights, people will understand what is happening to them, what their rights are and what may happen thereafter. Other than that, the best thing that we can do in the circumstances is let people know that they have a right to additional advice, if they want it, through access to a lawyer either by telephone or in meetings, depending on the views and wishes of both the individual and the legal representative. I think that that is the best way of addressing the matter.
Good morning, cabinet secretary. You said that common-law and statutory powers of arrest have served us well—I think that that was the term that you used. You went on to say that the common-law powers remain. On the changes that have taken place, do you think that the 1980 detention legislation was an improvement on the previous legislation?
I do not think that I am able to comment on that. I did my evidence and procedures in 1977 and the detention act came in in 1980, so my life as a practising lawyer started with the 1980 act coming in. It was just kicking in when I was a law apprentice—I was the last of the jurisdiction of law apprentices before the move to law trainees. So, I had a historical training from Sheriff Stoddart on the common law from Sheriff Gordon’s textbook, but all my practising life we have had detention, so I do not think that I am best qualified to comment. What that shows, however, is that detention has not been with us forever. Regardless of whether people were arrested or detained, to some extent what mattered was that they were down the police station.
Of course, prior to 1980 people who were down the police station “helping police with their inquiries” had a very indeterminate status. The 1980 act formalised an arrangement, which I would have thought the legal profession welcomed.
“Helping police with their inquiries” was a euphemism that could have a variety of meanings, some of which were perfectly acceptable but some of which began to go to the margins of what would be viewed as acceptable. Greater clarity was provided.
I agree. Do you acknowledge that the purpose of the power of arrest would change if the bill goes through? What would the purpose of the power of arrest be?
I do not think that it would change, necessarily. Police officers detain people when they think that a crime has occurred, or is about to occur, and they have to intercede. There are, doubtless, instances—John Finnie has probably experienced this more than I have—when officers have had to decide whether to detain someone under the statutory powers or to arrest them under common law. The bill makes it clearer that officers will simply arrest on suspicion. The basis will not be flimsy, however. People will not be arrested because the officer does not like the cut of their jib or their gait. Something will have to have happened; there will have to be a clear reason.
Section 1(1) of the bill states:
No. I think that it will come down to good practice. We do not want officers to be off the street when they could instead deal with situations by issuing fixed penalty notices or in a variety of other ways. This is simply about allowing officers to use their discretion so that matters can be dealt with in other ways, such as giving information or issuing a fixed penalty notice. We want to keep that rolling.
I agree that discretion is the strongest power that any constable has.
We recognise the need to be clearer in law about what police officers are arresting for. The bill is clearer in that regard than the current position, in which some police use common-law powers of arrest because they are not entirely sure what the proper statutory power of arrest might be.
I acknowledge that I might be extremely rusty on this, but aspects such as someone having no fixed abode or their giving a name and address that are believed to be not correct do not seem to feature in the bill.
What about the catch-all phrase,
My question is this: if the common-law powers have served us well, why are they not reproduced in the bill?
We considered that the wording of that particular provision was sufficient for the purposes of arrest in Scotland.
So, just to clarify, will section 1(3) supersede the common-law powers? Are we in for one of those many legal debates?
There will be no common-law powers of arrest.
I am sorry, but I understood the cabinet secretary to say that those powers will remain.
There will be no common-law powers of arrest. In response to a question that came up earlier, we talked, in terms of prevention arrangements, about there being common-law powers regarding attempts to commit crimes.
Just to clarify, in talking about the difference with common-law powers, the ones that are remaining are not criminal common-law powers or offences. They are still there as statutory offences; it is just the common-law power of arrest that is being replaced by a statutory power in the bill.
So, if the bill is passed, the common-law power of arrest will cease. Is that correct?
Yes.
Okay. Thank you very much.
Good morning everyone and happy new year. I think that a number of my questions have already been answered.
Excellent. So this will be a short question.
I have supplementary questions. To go back to the first point about detention and arrest, which I thInk has had a very good airing, I just want to pose to the Cabinet Secretary for Justice—and perhaps to committee members, as well—a particular question. We are talking about people being innocent until proven guilty and the different terminology, but I just wonder whether you would agree that there is also a responsibility on the media and press. The convener mentioned the fact that we could perhaps look at some way of explaining it. Do you agree that the media also have a responsibility with regard to people being innocent until proven guilty when this law comes in?
Absolutely.
Can I just stop you, cabinet secretary? Can we have questions on the bill?
The question is on the bill.
No.
I am sorry, convener. The question is on the bill. It is about people being detained or arrested. We have discussed it.
I think that we have pretty well examined the role of the media and the fact that we cannot deal with the media in this bill.
I am sorry, convener, but—
I will let you go on.
Thank you very much, convener.
You are looking peeved.
I was third to come in for a question, but unfortunately I am now about sixth. I am not bothered about that. I just want clarification on a point.
Forgive me, but I think that you are bothered because you have mentioned it. Your colleagues came in for supplementaries. If you had asked for one, I would have allowed it.
I just want clarification on the point that I raised. Do you agree that the media have a role, and that they have a responsibility to people who are innocent until proven guilty?
Absolutely. As the convener said, that is a jurisprudential argument, but people are innocent until proven guilty, which should be reflected. Clearly, the courts have powers if matters are reported inaccurately; occasionally editors are summoned. In the main, we try to ensure that we get that balance right.
My next question may be a supplementary question. It is on what Margaret Mitchell said. Again, the first premise of any justice system is that people are innocent until proven guilty, and that obviously applies to where there is suspicion that a crime has been committed. In that regard, we talked about the housebreaking kit, for example. John Finnie and Graeme Pearson obviously have a lot more experience in such areas and I think that, by the looks on their faces, they will certainly come up with more issues. We have talked about suspicion of crime, cabinet secretary, and common law and the new law that will come in. Will the new law protect the police as well as suspects, and make it clearer for the police that they have a power of arrest?
The intention is that the bill will make it clear that the common-law power of arrest for offences will be repealed and replaced with a power of arrest on suspicion of having committed a crime. All other common-law powers will remain. An issue was raised by the ASPS, understandably, about the powers that officers would have if someone was about to jump off a bridge, for example. The powers will therefore remain for the police to protect people from harming themselves and others.
Thank you, convener.
Not at all. That was very graciously said, Sandra.
I turn to custody of suspects prior to their first appearance in court. You will recall that the Carloway report outlined concerns about the length of time for which some suspects are held in custody, particularly during bank holidays and long weekends. During our evidence sessions, a number of witnesses raised concerns about whether we could continue to comply with article 5 of the European convention on human rights if that continues. What practical measures are you putting in place to ensure that people are not held in police custody for unacceptably long periods?
We have, for example, courts that sit on Saturday when there are public holidays. We have a working group that is led by Police Scotland, and which also includes the Scottish Court Service and the Crown, to consider what can, should or might be done relating to what are called Saturday courts; I have never heard anyone suggest that there should be a Sunday court. That is being looked at because I am aware of the pressures on courts, and on those who do the detaining as well as those who are being detained. I am happy to keep the committee apprised as that progresses.
Are you comfortable that we do not need a stronger legislative framework within the bill to cover the concern?
It is more a matter of practice than of the legislative framework. We need to see whether the problem can be worked out without putting the specifics in the legislation. There is a general understanding that there are pressures on the system.
I accept what you say about not needing legislative change, but I am not sure that there is enough momentum in the system at the moment. Clearly, your responsibility is to ensure that the legislation complies with the ECHR. Do I have your assurance that you will take a keen interest in the issue?
Absolutely. I will meet the chief executive of the Scottish Court Service later this week; I am more than happy to take on board points that the committee might wish to make about the desirability of Saturday courts. I will also be happy to feed back to the committee.
I have one more question to ask, if I may, convener.
I think that we would require to consult. We have raised the minimum age of prosecution, which was always unacceptable and was not applied in practice, to 12, and we are aware of the calls for the minimum age of criminal responsibility to increase. We are happy to see what we can do within the lifetime of this session of Parliament, but I do not think that it would be practical to raise the age in the bill, especially given that consultation will have to take place and that there are disputes about what that age should be.
There was extensive consultation in the run-up to the bill. Would it have been sensible to take forward such consultation at the same time? What is behind your reluctance?
I do not think that we are in a position to do that at the moment. We must consult on the matter, and we are happy to work to have that dealt with within the lifetime of this session of Parliament.
Thank you.
I think that Elaine Murray has a supplementary question.
Yes. Does the bill achieve an appropriate balance by allowing 16 and 17-year-olds to consent to be interviewed by the police without a solicitor being present?
I think that we have struck the correct balance. Those under 16 clearly are protected—Lord Carloway is right about that—but we have recognised as a Parliament and we recognise as a Government that 16 and 17-year-olds in Scotland are in a different position. They still have to be protected, but they can marry, pay taxes or join the army. Clearly, they must have advice, which is why I think that we have the correct and appropriate balance. They would have to have the presence of a responsible adult—that would have to be taken on board—before they could renounce anything.
In the recent Victims and Witnesses (Scotland) Bill, we defined a child as a person up to the age of 18. We received evidence from witnesses, such as the Law Society of Scotland, who believed that somebody who is under 18 should not be able to waive that right.
We have had on-going debates about things such as the age at which people should have the right to vote in the referendum and the age at which people should be able to drive a car. We live in a world in which people can get married at 16, cannot drive a car until they are 17, cannot drink alcohol until they are 18, and cannot get a high-powered car until they are probably around 25 or 27, given the insurance issues.
Cabinet secretary, the Scottish Human Rights Commission raised two issues, the first of which relates to the information to be given to suspects. It seeks—and I hope that you support—a simplification and strengthening of the advice that is given to suspects. Will you consider that?
I think that we have done that. The letter of rights has been drafted and, as far as I am aware, the SHRC is happy and content with it. Part of the issue is then about how it is made available. As I recall off the top of my head, it comes in something like 34 different languages and in a variety of scripts. Everything that can be done is being done to make the information as readily available as possible, and to make it available in a manner and format that is understandable.
Are the levels of illiteracy among people who find themselves in custody being taken into account?
I can add to what the cabinet secretary said.
That is welcome. Could the committee be kept apprised of the progress of that work, please?
Absolutely.
Thank you. The second point is on access to legal advice and whether it is made clear to individuals that they have the right to face-to-face contact with a solicitor and not just the right to speak to them. I acknowledge that there are challenges regarding geography—they have been alluded to in relation to other matters—but can some regard be paid to that? The role of a solicitor is not simply to give advice; sometimes, it is to check on the conditions in which individuals are being held.
If I may, I will answer that question as well. We are trying to keep some flexibility in the bill. The normal default would be that the suspect has the right to choose, but we did not want to place too much in the bill to say that the contact has to be face to face because it might be that, in some circumstances, that is not appropriate. If the suspect is going to be—
In what circumstances would it be inappropriate for a suspect to be given advice in that way?
It may be that they speak to their solicitor and their solicitor does not think that it is necessary for them to come out. The suspect may not be being questioned.
Will you clarify whether discussions have taken place with the Law Society? It previously made representations on the circumstances that you have mentioned, where an accused changes their mind and a question arises about the reimbursement of fees to a lawyer who has travelled a distance only to find that the contact has been cancelled.
We have spoken to the Law Society about the bill. The legislation enables a suspect to change their mind. It may be that, initially, they do not want to take legal advice and that, having been informed of their rights, they say, “No, I want to waive my right to legal advice”, although that cannot happen in the case of certain categories such as vulnerable persons. However, even if they choose to waive their right to legal advice, the bill does not prevent them from changing their mind, saying, “I’ve now decided that I want to obtain legal advice”, and asking for their solicitor to be contacted.
Some of this is a matter of custom and practice for lawyers. When I practised and I got a call from an officer such as you, Mr Finnie, or Mr Pearson in the early hours of the morning, if it was a serious charge, the likelihood was that I would go down, but if it was a less serious charge or it involved somebody with past experience, I basically went back to my bed—
That is too much information.
What we find is that lawyers speak to their clients and give them advice over the phone. If they feel that it is appropriate for them to attend because of the nature of the charge or the nature of the client, they will attend. A lot of decisions to deal with matters by telephone come from lawyers themselves, who have no desire to go to the police station.
Absolutely, but if someone travels 30 miles to a police station and arrives there only to find that the accused or the suspect has changed their mind, will they be reimbursed?
That would be a matter for the Scottish Legal Aid Board. I do not know the particular rules or regulations there, but—
We are wandering off the bill here.
Are we?
Yes.
All right. I will be guided by you, convener.
Legal aid costs are not in the bill.
We have the duty agent scheme and the contact line that the Scottish Legal Aid Board has set up.
Okay.
Legal aid costs are not in the bill, John—they are covered in another bill. You are giving me a quizzical look, but I am telling you—that is the fact.
Yes, I do.
It had better be a supplementary question—I feel that I am being tested this morning.
I feel as though I am in court or on trial—
You are close.
But thank you very much convener—this is a supplementary question.
Yes. I am aware that there is also another EU directive about interpretation, but that might be separate from languages. We have not yet set up the group to do this, but the first thing to do is to identify the groups of people currently in custody who are most in need of information in other formats. One of our first tasks is to identify our priorities. Over the next few months, once the group is set up and we have identified where other formats may be appropriate, we will be more than happy to write to the committee to let you know about that.
That is close to the bill, but we are drifting a bit. An arrest is challengeable—all these processes are challengeable if the party does not understand the proceedings.
You are awfy tetchy this morning.
I am not tetchy. I am just trying to keep to the facts of the bill and not drift into other areas—interesting though they are.
It definitely relates to section 14 on investigative liberation.
I am happy to take on board any thoughts that the committee may have, although ultimately I think that these details have to be considered by the court. To some extent, it is about the ability to get the issue to court: if we are looking at the rights of the accused, there has to be some form of appeal and the appeal on the decision of the senior officer, albeit that it is not a formal legal appeal, would be to the court.
Is the 28-day period right? Police witnesses have suggested that they should be able to apply for a longer period.
The 28-day period is what Lord Carloway came back with. I think that, in the main, 28 days should be sufficient. There may be challenges on some aspects related to forensics or other issues, but as you said at the outset we have to balance that with the rights of the accused.
Do you think that the 28-day period will have significant resource implications? Some have suggested that the whole investigative liberation scenario will have a resource implication.
I cannot for the life of me see why it should. After all, no matter whether the person was remanded or detained, the police would probably be doing the same work anyway and making further inquiries either through technical means such as computers or forensics or through investigatory means and dogged police work. What investigative liberation does is provide greater flexibility for the person under suspicion.
I also have a short question about post-charge questioning.
Before you ask it, Mr Campbell, I would like to get the issue of investigative liberation straight in my head.
The person in question will have been told the general reason for their having been arrested.
What do you mean by “general reason”? How broad would that be?
It would be as it is now—[Interruption.]
I beg your pardon. Did you want to say something, Roderick?
I think that section 14(1) gives some indication, convener. It has to be “a relevant offence”.
Yes, and it also includes the phrase:
We have to be clear about the purpose of the criminal procedure that the police will be undertaking at that point, which will be to investigate a crime.
Yes, but what crime are we talking about? Will the person under the investigative liberation procedure—or indeed their lawyers—have any clear idea of what on earth they have been accused of?
The police will be clear about the complaint that they have received in relation to the offence that has been committed. The charge might change based on the investigation and the information that is gathered, but the police will be clear about the investigation that they are undertaking and the suspect will be clear about what the investigation relates to and what the alleged offence is.
What would happen if something else turned up that had nothing to do with what the person in question had originally been arrested on suspicion for? Could that form another investigation?
Yes. As happens at the moment, that would be a separate matter that would be dealt with separately.
The usual view of caution and charge is that it relates only to the reply that is given at the time. However, if someone is arrested or detained, cautioned and charged on breach of the peace and other matters come to light, the complaint or indictment served by the Crown can differ significantly from that to which the caution and charge relates. As I have said, the caution and charge relates only to the reply that is given at the time.
I understand that, but is investigative liberation like having a search warrant? Does it involve digging into material things, looking at people’s computers and cupboards or going into their factories or whatever?
It gives the police time to undertake their investigations and acknowledges that in a modern society such investigations can be rather more complex.
I understand all that, but will police officers and so on still have to apply for a search warrant?
Yes.
Absolutely.
But might the investigative liberation procedure supersede all that?
No.
No, it will not change the warrant procedure. However, it will avoid the accused being remanded or the police not having specific evidence in a world where, as Aileen Bearhop has made clear, we have access to computers, forensics and so on. It does not give them any right to go in and do anything that would otherwise require a warrant.
Thank you—that is clear now. The issue had concerned me.
Cabinet secretary, I seek clarification of the logistics of how investigative liberation would work. It would cover a 12-hour period but could be for an hour or half an hour at a time, and someone could be released but be officially under suspicion all that time. They could be brought in for two hours and released, and then brought in for another half an hour and released again over a 28-day period. Are you confident that the information technology system that is being developed by Police Scotland as we speak will be able to cope with that? The Scottish Police Federation has raised real concerns about that, and we have raised the issue in the Justice Sub-Committee on Policing. It seems to me that a very complicated set of recordings could be required.
I am confident that the IT system will be able to cope. In the main, people will be released for a period of time before they return, which will allow the police time to investigate. I think that you are mixing up investigative liberation with periods of detention. As we know, the computer system requires to be upgraded. That is a priority for Police Scotland and it will ensure that the system is fit for purpose to deal with both the current and future issues and challenges.
Roderick Campbell has a different question.
I have a short question on post-charge questioning. The Scottish Human Rights Commission takes the view that the bill should state that no adverse inference should be taken from silence. What is your view on that in the—we hope—relatively rare circumstances of post-charge questioning?
That seems to be the current position: more and more, interviews in the presence of a lawyer and under caution are dealt with by the simple response that, on the advice of their solicitor, the person has no comment to make. That may be the advice in the context of post-charge questioning just as in the context of judicial examinations, which were the previous way in which the matter would have been dealt with.
The position on post-charge questioning is very much the same as the position on pre-charge questioning, which takes place before somebody is officially accused, in that there is a right to silence and the person does not have to say anything.
That answers my question. Thank you.
I have a question on section 33, on the support for vulnerable people, particularly in relation to people who are suffering from a mental disorder, which is defined as having
We have had the definition for a considerable time. A mental disorder is defined as a “mental illness”, “personality disorder” or “learning disability”, and there is tried and tested practice according to which the police have been assessing the vulnerability of suspects, accused, victims and witnesses for many years. I tend to think that the term “mental disorder” is perfectly understandable. We are not asking police officers to act as psychiatrists; we are asking them simply to make an assessment of somebody’s ability. That has been routine custom and practice and has worked well.
You do not agree with the Law Society’s concerns that it might be difficult for a constable to assess whether somebody has such a condition.
No. Over the years, officers have shown their ability to make an appropriate assessment and, as I said, when they have doubts on aspects they go to a police surgeon.
Right. I am going to stop this section. I thank the other witnesses; the cabinet secretary is staying. We will suspend for two minutes to allow the officials to change places before we move on to the next sections.
We will press on, because we are dilly-dallying a bit today. We move on to parts 4, 5 and 6. In addition to the cabinet secretary I welcome to the meeting Elspeth MacDonald—I beg your pardon; I am not welcoming her at all, as I have done that already. Wait a minute. Where am I going? She is still here, but in addition—I will need to learn to read my script—I welcome Kathleen McInulty, policy officer, criminal justice bill team; Philip Lamont, head of the criminal law and licensing team; and Ann Thomson, head of the workforce sponsorship unit. I still have Lesley Bagha and, of course, Elspeth MacDonald. We have settled it now. Thank you.
Appeals.
Sentencing and appeals and so on. Right.
I have a question on delays in appeals. Why do the bill’s provisions concentrate on the initial stages—the late notice of appeal and so on—rather than the progress of appeals? I am sure that the cabinet secretary will remember the case of one of my constituents, Adam Carruthers, who was convicted of rape of a couple of people who were also my constituents. There was a series of appeals that dragged on and on. At that time, I had quite a lot of contact with one of the victims, who felt that the appeal process was an additional burden on her as she had to relive the crime. The bill does not seem to address that part of what is often a very traumatic—
Can I ask whether those proceedings are concluded?
Yes. The person has served his sentence and has been released, so we can discuss it.
You make a fair point, which is why the bill has to take cognisance of the rights of victims and those involved in the court process. On-going appeals, which there have to be as a consequence of the ECHR, which I think nobody challenges, have caused families significant pain and had a significant impact on them.
So the bill is not the place to deal with the latter aspect, because it is not a legislative issue.
Government and Parliament would always hesitate to get involved in case management and how proceedings run in court. Aspects of evidence and how long the case should run for should be dealt with by those who are, quite correctly, set up independently. That is why we passed the Judiciary and Courts (Scotland) Act 2010.
While we are on that topic, we had evidence from the Law Society that the exceptional circumstances test might be unduly restrictive. Are you able to comment on that?
I do not believe that it is. It is for the judiciary and the appeal court to interpret that, but I think there is common parlance of what is viewed as exceptional circumstances. The fact that someone just could not be bothered or had not quite made up their mind does not constitute exceptional circumstances. Ill health or clerical error could constitute exceptional circumstances. I think that the appeal court can work with the test and solicitors clearly understand that exceptional circumstances are beyond something that just did not fit in with someone’s schedule.
Is that not the case anyway just now? Is that not the way the court behaves anyway if there has just been sloppiness on the part of an agency?
Yes, which is why we decided not to go down the route of sanctions. It is a matter for the administration of the system by the courts or those in professional practice.
Section 71 talks about extending the maximum term for weapon offences from four to five years. At the committee’s meeting on 19 November witnesses were questioned on that topic, but they were unable to provide much guidance on whether there is a need for increased sentencing powers. What evidence do you have for the need for the extension?
We have made significant progress in tackling knife crime in Scotland. We have seen a 60 per cent reduction in the offence of handling an offensive weapon since this Government came to office, but there have been tragedies. Every member of the committee and probably every area of Scotland has been touched by such tragedies in some shape or form.
If section 71 is approved, what impact do you expect the availability of longer sentences to have in practice?
It will give greater discretion to a sentencing judge or sheriff. Our position has always been that the sentence is for the judiciary to decide, which is why we have never supported mandatory sentences. Indeed, as the average sentence in Scotland is over a year, why would we wish to impose a mandatory tariff that is less than that? The measure is simply about giving the judiciary discretion and recognising the significant harm that knife crime can cause. It will be for the judiciary to decide whether to impose that length of sentence. I think that they should have the right to impose such a sentence, but it will be for them to decide whether to do so, on the basis of clear facts and circumstances that merit that.
I have a tiny supplementary question. The bill does not seek to alter the maximum custodial sentence for summary offences. Will you explain your rationale for that?
It is for the Crown to decide whether a case should be a summary one or on indictment. A sheriff might feel that his sentencing powers are inappropriate. That is really a matter for the Crown and the judiciary. They will have to decide whether to proceed on summary complaint or under the solemn procedure.
It might be helpful to clarify that the current maximum for handling an offensive weapon when prosecuted at the summary court is 12 months, which is the maximum general sentencing power of the summary court. If we were to increase that, we would be going beyond the general maximum that has been provided for in other legislation. That is why we have not done that.
Do we have the figure for how many sentences of four years have been dished out?
It is very low. I think that the most recent statistics indicated that the maximum had been given in only one or two cases, although it is sometimes complicated because other offences are wrapped up together. Not very many people received the maximum but, as the cabinet secretary explained, we feel that the measure is about empowering judges by making an increased maximum available, perhaps for repeat offenders who have a track record of using knives and who once again are caught carrying them. It will be for judges to decide on the basis of the individual circumstances of the case.
Human trafficking is an issue on which things have been moving quite quickly in recent weeks and months. I welcome sections 83 and 84, and I have read the cabinet secretary’s letter to the convener dated 16 July 2013 but, for the record, will you outline the Government’s thinking in connection with human trafficking? What do you say to the critics who say that Scots law should have a definition of human trafficking?
A statutory people trafficking aggravation is the first stage. The Government has recognised that there is a problem. We are aware that people have been trafficked here and that Scots have been involved in carrying out trafficking and have been correctly sentenced in other jurisdictions, particularly in Northern Ireland. We are aware of the issue. We believe that the first necessary step is to bring in a general aggravation, because we are conscious that that will help to raise awareness and allow evidence to be led. I think that it will make it easier for us to deal appropriately with those who perpetrate human trafficking.
I am interested in section 82, “References by SCCRC”. You might recall a little tussle, which I lost—not for the first time—in the context of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which was emergency legislation on the back of Cadder. It was thought that there would be a flood of applications to the Scottish Criminal Cases Review Commission, so the 2010 act introduced, first, a gatekeeping role for the High Court, so that it could refuse referrals from the SCCRC. Secondly, the act provided that, even if an appeal was successful, the sentence might not be quashed if that was in the interests of justice. That is the background.
The proposals in the bill strike the correct balance. I am aware of your concerns and I think that we have retained what is necessary while taking on board your concerns. It is clear that the role of the SCCRC, which we in Scotland cherish, is to consider miscarriages of justice and seek review. It is important that the High Court should consider and take cognisance of whether there has been a miscarriage of justice and, at the end of the day, it is the High Court of Justiciary, sitting as the appeal court, that must decide whether something is in the interests of justice. The provisions are likely to be used or considered very sparingly.
I would have no problem with such an application, now that we have got rid of the double jeopardy rule. My concern is that, in any other appeal process, if the appeal is successful it is successful. However, if there is a successful appeal in a case that was referred by the SCCRC, which will already have applied an interests-of-justice test before referring the case, it will be treated differently from any other appeal, solely because it has come from the SCCRC. That is my problem. The principle should be the same as it is for every other appeal: if the appeal is successful, it is successful.
I see where you are coming from but, in the main, appeals that come from the SCCRC tend to be a lot more historic. Years will have passed and every other avenue will have been considered—there will probably have been a great deal of events over a long timescale. At the end of the day, the SCCRC must be protected and cherished for what it does in allowing reviews in such cases, but it is fundamental that in an appeal the High Court should remain the ultimate arbiter of not simply whether there has been a miscarriage of justice but whether action is in the interests of justice. The SCCRC makes the referral, but the ultimate decision should be made by the High Court.
May I clarify something? If an appeal goes through the normal appellate procedure rather than being referred by the SCCRC, is it the case that, even if the appeal is successful on its merits, the High Court can apply an interests-of-justice test and reject the appeal?
No. That is not the case.
The High Court can apply that extra test only if the reference was from the SCCRC.
That is right.
Well, that is my problem.
As the cabinet secretary explained, the approach reflects the fact that, since the commission was established in 1999, it has always had to apply the interests-of-justice test as part of its consideration. As the cabinet secretary said, that reflects the type of case that the commission often deals with and its special role. What Lord Carloway recommended—we agreed and put the provision in the bill—was that the commission should review cases and be the avenue by which cases can come back to court, and that it should consider the interests of justice in so doing, but that the High Court should apply the same tests. That is what is in the bill.
The test has already been applied, but the High Court applies it again.
Because of the type of cases that we are talking about.
We are just going to have to differ on this. It seems to me that when you say “type of cases” you are making two classes of appeal, which is completely unnecessary and was not the case before. The SCCRC’s sifting procedures are rigorous, as you know, and the commission has a good record at achieving success either on sentence alone or on conviction and sentence. The SCCRC’s sifting procedure is pretty tough.
Yes. Calum Steele, of the Scottish Police Federation, expressed concern about whether the police negotiating board’s remit will include the terms and conditions of all police officers. Can the cabinet secretary update us on the position?
Yes. We were waiting only to hear from the Scottish Chief Police Officers Staff Association, which has indicated that it is willing in that regard. We have never pushed on that; we have always taken the view that a willing volunteer is better than a reluctant conscript. We hoped that the SCPOSA would come forward, as it has done. All police officers, from the newest constable to the chief constable, will therefore be dealt with by the board.
If members have exhausted their questions—I see that we are exhausted—I thank the cabinet secretary very much.