Justice Committee

Meeting date: Tuesday, November 19, 2013

Official Report 617KB pdf

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Criminal Justice (Scotland) Bill: Stage 1

Let us get back into harness, team. I welcome to the meeting today’s first panel of witnesses on the Criminal Justice (Scotland) Bill. Murray Macara, Queen’s counsel, is from the Law Society of Scotland; James Wolffe QC is vice-dean of the Faculty of Advocates; Michael Walker is a senior policy officer of the Scottish Criminal Cases Review Commission; and Fraser Gibson is the head of the appeals unit in the Crown Office and Procurator Fiscal Service.

11:00

I would like to take questions from members in segments, as that will help the panel and help the clerks to draft the stage 1 report. We will start with questions on sentencing for weapons offences, then move on to sentencing of offenders on early release, then on to appeals and finally to the SCCRC. Can I have questions on sentencing for weapons offences?

I will kick off with a very basic question. Does the panel think that the courts need increased sentencing powers to deal with offences involving the possession of knives and other offensive weapons?

Panel members can self-nominate to answer questions; the microphone will come on and I will call you. Michael Walker is first, please.

No. I defer to Murray Macara on this issue. I am here principally to speak to the issues involving the SCCRC.

I beg your pardon. Who wants to answer this question, then? Murray Macara does.

First, I thank you, convener, for the opportunity to give evidence. In answer to—

I hope that you keep that spirit in mind as we get to the end of the evidence session.

I might as well get the compliments out early.

You must have heard that I do not do flattery. On you go.

The Law Society has no particularly strong views about sentencing. It is not very long since the maximum sentence for carrying a knife or a bladed instrument was increased to four years. I do not know, but I suspect that that maximum sentence has not been imposed terribly often.

Having read the consultation document that accompanied the material that I was supplied with, I can readily understand the public’s concern about the prevalence of knife crime and the Parliament’s desire to address the scourge of knife crime.

I, too, thank you very much for the invitation, convener.

Sentencing is clearly a matter for Scottish Government policy, rather than for the Crown Office and Procurator Fiscal Service. I note from the policy memorandum that the Scottish Government has outlined its policy on knife crime offences and, of course, as the Lord Advocate has often said, we are committed to tackling the scourge of knife crime in Scotland.

This question is for Mr Gibson in particular. Are you able to say how many offences attract sentences close to the current maximum of four years?

I am not, I am afraid. I do not think that we necessarily hold statistics on that at the moment.

I am given to understand that the figure might be that just one out of 805 offenders was given a sentence of four years and that 95 received a sentence of less than two years. In view of that, will the bill’s proposal to increase the maximum sentence from four to five years, which sounds good and as if it would be more of a deterrent, make a huge difference? If not, what would?

I do not know whether anyone on the panel wishes to address that or feels able to do so.

I do not know whether increasing the maximum sentence from four to five years will make much of a difference. I have no reason to doubt the statistics that Mrs Mitchell has quoted. However, I suspect that the answer lies in culture rather than penalty. Somehow, in some areas of Scotland, the culture of certain people carrying knives needs to be changed. I would think that deterrent sentences can address that culture only so far.

If the statistics are right that only one out of 805 offenders was given a sentence of four years, surely the maximum deterrent has not been tested sufficiently to justify bumping it up to five years.

Perhaps one point to bear in mind is that anybody who pleads guilty to a crime will get a discount in sentence. Certainly, in cases with guilty pleas we would not expect to see the maximum four-year sentence imposed, even if the judge was discounting that. The actual sentences that have been imposed might not give the full picture.

Is there a more general point then that we really need the statistics and evidence before us in order to judge how sentences are working and how effective the bill’s proposals might be?

I do not know whether that is a matter for the Crown Office, but it might be a matter for Mr Macara.

The material that I have been supplied with—in other words, the policy memorandum—contains a lot of information about the progress that has been made in recent years but I suspect that more research is needed.

Just to clarify for the record, what type of cases relating to possession of a knife or offensive weapon would attract the maximum sentence?

The record of the accused would determine the imposition of the maximum sentence. Undoubtedly, someone sentenced to four years’ imprisonment—which, indeed, has been imposed on one occasion—must have a significant record for either carrying knives or violence.

In your experience, have any first-time offences attracted the maximum sentence? What kinds of offensive weapons or knives would a person have to be carrying in that case?

It is inconceivable that a first offender would attract the maximum sentence.

So a person wandering about Princes Street with, say, a machine gun would not in theory get the maximum sentence.

We are talking about knives here, though.

We are talking about knives and offensive weapons.

Someone with a machine gun would be prosecuted under different legislation.

Glad to hear it.

Elaine Murray will ask about the sentencing of offenders on early release.

Section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 allows a court to order that a person who has committed an offence during a period of early release from a custodial sentence be returned to custody to serve part or all of the period of the whole sentence still outstanding at the point when the new offence was committed. Although sections 72 and 73 alter that in some respects, the policy memorandum suggests that those changes

“do not substantively change the overall powers of our courts in this area”.

Do you agree that the proposed changes will have a minimal effect on the courts?

That is certainly my view.

I agree. In my experience, courts are alert to the fact that the man who is about to be sentenced has been released early and they will generally take into account the provisions in section 16 of the 1993 act. I do not think that this change to oblige the court to take the matter into account will make a significant difference.

We are whizzing on here. With regard to the appeals procedure, do you share concerns raised in the Carloway report about delays in progressing appeals in the current procedure? Surely that cannot be in the interests of justice either for the person appealing or for the Crown, which might itself be making an appeal.

There have been a number of cases in the recent past—not, I hope, so much nowadays—in which appeals have taken an excessive length of time to come to a conclusion.

What do you mean by an excessive length of time? Are we talking about years?

Indeed. An example of that is the recent European Court of Human Rights decision on the William Beggs case, as a result of which Mr Beggs was awarded a sum of money because of the considerable number of years that his appeal had taken.

I am afraid that I do not know that case. How many years are we talking about?

I do not have the details with me, but I think that it might have been as many as five or six.

I can also tell the committee that an SCCRC referral appeal that was heard on Friday has taken six years to reach the preliminary hearing stage. We are not even talking about a final decision in that case.

Do these cases involve people in custody?

Yes.

Do people remain in custody all that time while they wait for their appeal to be heard?

Generally, yes.

Are they ever released pending the appeal?

They are entitled to apply for interim liberation. Obviously, the court assesses the risk that the person in question poses before reaching any decision.

What causes these delays? Six years seems an extraordinary length of time.

The European court opinion on Beggs contains a detailed analysis of the cause for the delay in that case.

Crumbs—I missed that. Can you give me the bullet points?

I can certainly make that available to the committee. In some cases the delay has been down to appellants seeking to add new grounds of appeal over the years as the appeal goes on, or seeking to recover other documents, which has spun out the legal process to the extent that it takes a number of years. I can think of another commission referral—Graham Gordon—that took a number of years to come to a conclusion.

It is not always the fault of the court or the process. Sometimes the appellant changes solicitors or legal teams and, each time they do that, the new team comes to the case anew. As Fraser Gibson said, appellants sometimes add additional grounds and the case can seem to spin out of control before it eventually comes to an end.

What do the proposals in the bill do to remedy that? Do they go far enough? Should something else be done to accelerate appeals within reason, given that those other issues will remain?

I belatedly add my thanks to the committee for allowing me to appear today.

No one could justify delay in the disposal of criminal appeals. In Scotland, we are proud of the expedition with which we deal with first instance business in the criminal courts and we should collectively be striving to achieve the same in the appeal court.

The committee should perhaps appreciate that the proposals in the bill, particularly in sections 76 and 77, are specifically focused on the question of late notes of appeal and late grounds of appeal and the like. They do not deal directly with the subsequent progress of appeals. That is very much left to the courts’ case management responsibilities and that is firmly within the province of the court.

The specific proposals to deal with late notes of appeal and late grounds of appeal allow the court to permit those to be lodged in what is described as “exceptional circumstances” and the court must then have regard to certain things in deciding whether the circumstances are exceptional.

Wearing my other hat as a council member of Justice Scotland, I draw the committee’s attention to the observations of that body in its written evidence to the committee. It makes the point that, on the face of it, the provisions in sections 76 and 77 would restrict access to the appeal court. The court already has a discretionary power to refuse to receive late notes of appeal and grounds of appeal. One would imagine that the court might be relied on to allow such documents to come in only when that is properly justified. Justice Scotland expresses the concern that narrowing access to the appeal court at the stage of an appeal being taken would restrict access to justice by restricting access to a process that puts right miscarriages of justice. It is ultimately tied to the consideration that the committee will have to give to the role of the SCCRC. If appeals are knocked out at that stage, they might simply go to the SCCRC and be considered at a later stage.

I do not want to introduce a note of complacency but, until now, the questions have focused on the issue of delay and one or two examples have been given of exceptional delay. However, those are exceptional cases. I appreciate that Lord Carloway is concerned about the possibility of delay in the appeals process, but some appeals are processed expeditiously; I am thinking particularly of appeals against sentences that come up within two months or so.

We have a system that is capable of delivering appeals to conclusion very quickly. What must be remembered are the causes of delay. Michael Walker’s example of a six-year delay was in an SCCRC referral. Inevitably, a commission referral takes longer than conventional appeals because anyone who is successful in obtaining a commission referral must have exhausted the conventional appeal process before going to the commission.

11:15

Fresh evidence and defective representation appeals inevitably take longer than other appeals. For example, defective representation appeals invariably involve a change of solicitor. Therefore, there are reasons for delay. My concern is that introducing an excessively rigid system could bring about miscarriages of justice. In the wider picture, it may not necessarily be—I will trot out a phrase that we will no doubt use later—in the interests of justice that an appellant with a good appeal should be denied the opportunity to appeal simply because of an excessively rigid and fixed timetable.

Generally, you are not happy.

Generally not happy.

That is fine. Other members will probe why that is the case.

My question is perhaps a bit off script but, given that we are talking about delays, I wonder whether the panel will comment on the circumstances of someone who is convicted, serves a period in custody and then, some years on, seeks avenues of redress, which may be limited, only to find that the Crown no longer retains some or all of the documentation.

That matter is not related to the bill.

That is why I gave a preamble and hesitated about asking the question.

I am sweeping your question to the side, but you have made your point.

Okey-dokey.

We move on to Roderick Campbell. I hope that there is no preamble to your question.

No, I will stick to the bill.

You will stick to the point—good.

Sections 79 and 80 modify procedures on the bill of advocation. Is the Scottish Government right to preserve bills of advocation and suspension or should it follow the Carloway line and abolish them?

I am happy to answer that. Bills of suspension and advocation are extraordinary creatures that are, to some extent, a historical artefact, but it is difficult to define exactly all the circumstances that they cover and to put in place a statutory mechanism that would provide a mode of redress for all the circumstances that they cover. That is my understanding of why they have been retained and, albeit to the extent that a statutory alternative can be put in place, the legislation seeks to do that. For example, in seeking to suspend a search warrant in a case that has never gone to trial, it is particularly difficult to find a non-common law mode of redress. There are other odd circumstances a bit like that, so retaining bills of suspension and advocation allows a mechanism to appeal those decisions when abolishing them might remove a right of appeal that exists.

How often are they used? Does anyone have statistics on that?

We will have some figures; I will try to make them available. Bills of suspension are common.

Yes, the bill of suspension will be used if, at summary level, the conduct of the judges is being attacked because that is the remedy—that is the mode of appeal if that is the issue in the case.

Does nobody else wish to comment?

Nobody is indicating that they wish to respond; I will not force anyone to do so.

Roderick Campbell has just covered the issue that I was going to ask about.

I draw members’ attention to my entry in the register of interests and the fact that I am a council member of Justice Scotland.

I take what was said about restricting access to justice, but is there not a balance to be had in a little bit of flexibility? Will the panel therefore comment on the Carloway report’s recommendations that were not taken up, such as the High Court’s power to impose sanctions with the aim of enforcing time limits and procedural orders and, in particular, the power to order particular steps to be taken, such as not making funds available from the public purse?

The panel cannot comment on that.

Without being too prescriptive in relation to the recommendations, I know that the Crown is quite supportive of doing whatever it can to increase efficiency and effectiveness.

Perhaps the Crown does not want fines or conditions imposed on it. It might be the Crown at fault. I am not saying that the Crown is at fault—I am just saying that it might be.

I am not sure that it is appropriate for me to comment on that, convener.

Nobody has any comments?

Are there any practical things that the court could do to focus agents on both sides on increasing efficiency? You cannot tell me that no delays can be avoided. There must be delays that could be avoided in the appeal procedure. Should the court perhaps have some means of penalising parties, so to speak?

It is perhaps fair to say, lest the committee comes away with the impression that delays are commonplace in appeals these days, that the court has made substantial progress over the past few years in dealing with delays. It has done that primarily by dealing with business efficiently, by appointing an administrative judge for appeals and by being strict about applying time limits on cases and allowing additional grounds of appeal to be lodged late. That is why sentence appeals are now dealt with expeditiously and solemn conviction appeals are dealt with much more quickly than they were a few years ago.

The court has made some progress in that direction, for which it is only fair to give it credit. That is not to say that other improvements could not be made, but I do not think that it is the Crown Office’s place to say exactly what they should be.

I concur with that observation. Mr Gibson has a much closer and more intimate knowledge of the appeal court than I do, but it would be wrong to give the impression that nothing has been done or is being done by the court in the exercise of its case management powers.

The court can do a great deal by being rigorous in the application of time limits, by exercising discretion carefully and by insisting on explanations that are satisfactory before steps are allowed to be taken out of time. Ultimately, the court needs to bear in mind its responsibilities not only to administer justice but to secure that justice is done within a reasonable time.

The steps that the court is able to take are perhaps not steps that are susceptible to legislation because they depend on the court exercising the powers that are available to it in the course of a case, with a view to securing the effective administration of justice. I concur with Mr Gibson that a great deal of the work can be done through the court’s administration powers.

Can I put it another way, convener?

I do not know, but you can try.

Do you feel that the Carloway recommendations on the court being able to impose sanctions, which would enforce time limits and procedural rules and perhaps help efficiency, are unnecessary? By and large, there is not a problem—that is coming over loud and clear—and I do not think that anything ever works perfectly, so has the Carloway report highlighted unfairly that that proposal should be considered?

Perhaps I can offer this comment—our difficulty with that particular proposal is that lawyers who are involved in the representation of their clients could be penalised for steps being done out of time in circumstances in which that was not their fault.

If one thinks of a change of agency, for example, a new agent may take the view that it is their professional responsibility to seek to advance a new ground of appeal even though it is very late. The agent may take the view that that is the right thing to do in the interests of their client. It would be unfair, one might think, if such a lawyer were to be penalised simply because their application was being made late.

The recommendation is that the court can impose measures; it is not that it must impose them. There would therefore be an element of discretion to cover the situation that you outlined. However, where there was no justification the sanction would be there to send the very strong message that there is no excuse for a delay in particular situations.

One would then have a satellite set of inquiries into precisely how a particular state of affairs came about. The Scottish Government has perhaps wisely taken the view that it does not wish to pursue that particular proposal.

So, the Carloway review obviously failed to take that into account when it made its recommendation.

In many of these issues, we are dealing with matters upon which different views may reasonably be taken by different people.

Much could be said on both sides.

I will pick up on those points about different views from different people, penalties and so on. When a case is moved to another lawyer, the original lawyer may feel penalised if they are not able to bring forward the appeal. Is it the client or the lawyer who would feel penalised if he was not able to make the appeal? If an appeal was made, would that be on the basis of new evidence? What would be the relevant aspects?

You suggest that appeals that take six years to be heard are the exception. I note your comments about people having different opinions. What are the criteria for appeals if a case goes on for six years, particularly bearing in mind situations that involve changing lawyers or a lawyer finding a new piece of evidence? I would like to hear your opinion on that, and on exactly what constitutes a late appeal. Is it the lawyer or the client who is penalised?

The basic ground of appeal is that of a miscarriage of justice. There are a variety of different ways in which a miscarriage of justice might be said to have occurred. There could be a variety of circumstances in which a particular issue arises outwith the normal time limit. Ultimately, if an appeal is not allowed to proceed or if a particular ground of appeal is excluded, it is the client—the accused, or the convicted individual—who is losing the right of appeal or the opportunity to appeal.

If a ground upon which one could reasonably conclude that there had been a miscarriage of justice is knocked out of the ordinary appeal process, the person has the remedy, in our system, of going to the Scottish Criminal Cases Review Commission. The commission then has to exercise its judgment as to whether the appeal should be referred back to the appeal court. Ultimately, if a potentially good appeal is excluded from the system, it goes without saying that it is the convicted individual who does not have the opportunity to ventilate that ground in the appeal court who is losing out.

In this respect, we are talking about appeals against conviction, rather than appeals against sentence. The problem is that we cannot generalise about appeals against conviction. There are straightforward appeals in which the sole point might concern there being insufficient evidence to allow the jury to convict. There might have been a misdirection by the trial judge. Such appeals can and do take place very swiftly.

The problem often arises because the appellant thinks that he has fresh evidence or that his existing solicitor or previous solicitor and counsel misrepresented him. Invariably, those issues require investigation and that is where delay creeps in. Often, what an appellant thinks is a good argument for an appeal with regard to, say, defective representation or fresh evidence does not, in fact, fit within the fairly narrow framework that the courts apply in such appeals. However, nevertheless, to satisfy the client, those matters require to be investigated.

That might be an aspect of the case that the appeal court is reluctant to acknowledge, but the client’s wishes have to be followed to an extent in investigating whether the previous solicitor did not represent the accused to an appropriate standard.

11:30

That was the point. Thank you very much for being so concise and clarifying it for me. If the appellant is not happy with the representation, he can appoint another lawyer to appeal the case.

Invariably, that leads to delay and the system must be able to accommodate that delay. That is simply what I am saying.

Thank you. That has clarified it for me.

This area is quite technical for us and I will ask a couple of questions to get at some of your issues. Do I take it that you are not happy with the phrase “exceptional circumstances” popping up throughout section 76 and into section 77? Would you be happy if the bill just said

“the High Court may make a direction only if it is satisfied that doing so is justified”

period and left it to the court to take a view on whether it is justified, rather than introducing a test of exceptional circumstances? You have talked about process and ensuring that cases are managed more efficiently. Would you prefer that the words “exceptional circumstances” were simply not in those sections?

I would like it toned down.

What does that mean? Does it mean that we should take out “exceptional circumstances” or that we should put in other words?

We should put in another phrase, such as “unless it is satisfied in the interests of justice”.

It already says:

“only if it is satisfied that doing so is justified”.

Instead of “justified”, do you want words such as “in the interests of justice”? I am not asking you to amend on the hoof, but do you want something like that?

Something like that. Everything in law is about setting barriers or thresholds. No doubt the parliamentary draftsmen who were responsible for section 77 were entrusted with the task of ensuring that the threshold was set high in that provision. Our argument is that the bar should not be set quite so high.

That applies in section 76 as well.

Indeed.

So something along the lines of “unless it is in the interests of justice” would be acceptable.

I move on to section 78, “Certain lateness not excusable”. That seems to me pretty draconian. There is no flexibility at all for the bench on written intimation of intention to appeal or the lodging of a note of appeal.

It seems to me that that provision simply seeks to prevent people from circumventing the earlier provisions. There is a general power of dispensation in section 300A of the Criminal Procedure (Scotland) Act 1995 and section 78 simply says that it is not possible to use that general power of dispensation to get round the conditions in relation to the sections on solemn and summary appeal.

So you are happy. I see happy faces, so that section is okay. I am trying to get to the issues with that fairly technical procedure.

Rod, do you want to come in?

No, convener. I intended to ask a question on section 78, so you have stolen my thunder.

Heavens. You have lots of thunder to come, though.

We are not happy with section 78, because—

You are not happy? I thought that you were all smiling at me.

I am personally not particularly happy with section 78. Some imaginative lawyer will try to advance an argument as to what might constitute “exceptional circumstances” under sections 76 and 77. As Fraser Gibson explained, the purpose of inserting section 78 is to demonstrate what does not amount to an exceptional circumstance: a failure to lodge a note of appeal in accordance with the appropriate time limit.

If we remove the words “exceptional circumstances”, what impact does that have on section 78?

I would think that it has an impact on section 78.

I am not sure that it does. All it means is that you would try to use section 300A. All that section 78 is doing is saying that you cannot use section 300A to circumvent the other provision, whether that involves exceptional circumstances or something else. Whether or not the test should be about exceptional circumstances would depend on the terms of the relevant section laying down the time limit for summary or solemn appeals. The Crown’s position is that a high test is justified for a late appeal. There should be some reason beyond the ordinary—whether it is classified as exceptional or something else—when someone is seeking to appeal late.

Mr Finnie raised a point about papers being destroyed. That just illustrates why if someone wants to seek remedies, they should do so quickly. No system can operate by perpetually revisiting old cases; it simply has to move on and litigate the current cases, otherwise it will cease to function. There is an onus on people, if they wish to exercise their right to justice, to do it quickly.

It seems to me that, as it is phrased, the exceptional circumstances test, although it contains the word “exceptional”, has an element of flexibility. The phrase “exceptional circumstances” is used, but the bill goes on to list the things that the court has to look at in reaching a decision, and part of that is the proposed grounds of appeal, which obviously brings into consideration the merits of the grounds of appeal, the length of time that has elapsed—in other words, how late someone is applying—and the reasons that have been given for their applying late. When you look at the reasons, you can see that the proposal allows the court to perform quite a careful balancing act, weighing how much merit it sees in an appeal against the reasons why it is so late, and to arrive at an accommodation that serves the interests of justice. That is how the court approaches such appeals at the moment—balancing the reasons for lateness against how good the grounds of appeal are before coming to a decision. I would be surprised if the court would substantially depart from that under the new test.

How long do you keep papers for?

It depends on the type of case, and it also depends on whether an appeal is marked on time, but we clearly cannot keep everything forever. It is not just a question of papers. Witnesses’ memories dim; witnesses die; some forensic evidence degrades. Nothing can exist in perpetuity.

I ruled out John Finnie’s question about losing papers, and I jumped on him when he was trying to ask what would happen if the papers were not there. However, if somebody is lodging an appeal and one of the exceptional circumstances is that the papers were not available, that ties in with his question. I am just curious to know how long they are kept. Solicitors have to keep certain papers for quite a long time. How long do you keep papers for?

It depends on the type of case.

A solemn case.

You asked about “papers”; it depends on the type of papers. Productions, for example, even in a murder case, may belong to a witness. If no appeal is lodged, that witness is entitled to get those things back. They might belong to an accused person, so the Crown does not have a right to hold on to productions or labels in perpetuity, even though in the most serious solemn cases the Crown papers should be retained for a long period of time. It depends what you mean by “papers”. It is not necessarily the same thing as evidence.

I hear that. We shall come to the SCCRC in a minute. There may be fresh evidence or it may be felt that there has been a miscarriage of justice, so the court might need the papers some considerable time after conviction.

That is the point that I am trying to make about why people should seek remedies quickly.

I have to let John Finnie in now. I apologise.

If there were clarity about a document retention policy, which should apply across the public sector so that the citizen can know how long documents are retained for, there would be no dubiety about why, of a group of documents of similar status, some could be found but others could not, and it would be clear that there was nothing untoward about that.

No system is perfect, no matter how you try to make it so. It simply would not be feasible to hold on to everything in perpetuity. An appellant knows, or should know, the time limits for lodging an appeal. They are there for a reason.

I previously tried to establish whether there was a document retention policy. Is there one?

There is one. I do not have the exact detail of it to hand, but I can make that available to you.

You have some homework now.

We will move on to the SCCRC, which is a hobby-horse of mine. During the progress of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill in 2010 as emergency legislation, I tried to delete the entire section that changed the way in which the SCCRC operated and made referrals to the High Court. I do not know whether you are aware of that, Mr Walker.

I was not aware of that.

It would be helpful to me and other committee members if you could remind us of the process that applied before the 2010 act, including the criteria that the SCCRC applied before a referral and how the High Court had to respond.

Of course, convener. The commission has a dual test. It must ask itself whether there may have been a miscarriage of justice and, as the second part of the test, whether it is in the interests of justice to refer the case to the High Court. What the emergency legislation in 2010 did was to give the appeal court—the High Court—for the first time the power to reject a reference by the commission where the court took the view that it was not in the interests of justice for the reference or the appeal to proceed to a full appeal hearing.

You are right. The commission’s position in 2010—and it remains its position—was that there should be no veto of a commission reference by the appeal court in the interests of justice at either stage of the appeal process. The current position is that, as I have just said, the court has the ability shortly after the reference is made to knock out the commission referral. The proposal in the bill is to move that to the end of the appeal process.

I will give you a couple of statistics that I think support the commission’s position. In the 14-year period since the commission’s inception in 1999, 67 per cent of the referrals that the commission has made to the appeal court have been successful. I think that it is fair to say that the commission has a high strike rate and does not—

Does that figure refer to referrals on sentence and conviction?

Sorry. I should have said that it refers to conviction and sentence. The total number of successful referrals is split almost 50:50 between conviction and sentence.

The point that I was going to make is that that statistic shows in blunt terms that the commission does not clog up the appeal court with spurious referrals. The 67 per cent statistic compares very favourably with that for normal appeals, where the success rate is under 1 per cent.

I will give one other statistic. Since the emergency legislation that gave the appeal court the power came into force, the commission has made 21 referrals to that court, of which the first 20 proceeded to a full appeal. That statistic shows that it is reasonable to infer that the commission does not use its interests of justice test unreasonably.

What happened to the expression “finality and certainty” in relation to the SCCRC? It still lurks, does it not?

“Finality and certainty” is in the emergency legislation. When the commission applies its interests of justice test, it has to have regard to finality and certainty.

Did you do that before the emergency legislation?

We did, convener. It was always part of the commission’s remit to do that. The legislation simply put it in statute. What is the definition of “finality and certainty”? That is a difficult question to answer. It would bring in the idea, which Fraser Gibson alluded to, that the proceedings have to come to an end at some point, so the age of the conviction is important. That is a factor that the commission would take into account in deciding whether it is in the interests of justice to refer the case.

Against that, however, a balance has to be struck, because the whole point of the commission’s function and its ethos is to allow recourse to someone who has had an appeal and, perhaps many years later, feels that they have suffered a miscarriage of justice and comes to the commission. If the commission takes the view that there may have been a miscarriage of justice in the case, the simple fact that it is old, even with our having regard to finality and certainty, is not a determinative reason not to refer the case.

I do not know whether you have the figures on this, but how many cases in which people have considered that there may have been a miscarriage of justice have you not referred in the interests of finality and certainty and the interests of justice? How often has the test been applied and, as it were, prevented a referral?

11:45

I do not have the second figure to hand. On your first point, the key statistic is that the commission rejects approximately 90 per cent of the applications that it receives, so only a very small number of cases are referred to the appeal court. Of that number—

Is the commission refusing those applications on the basis that, in its view, there is no possibility that there has been a miscarriage of justice?

Yes.

I am trying to tease out how far the other test applies.

I was going to come on to that. It is not common for the commission, where it has concluded that there may have been a miscarriage of justice, to conclude that it is not in the interests of justice to refer the case. I do not have the exact figures on that, but I can certainly get them for you.

That would be useful—thank you.

I can give you a couple of examples of where the commission takes that view. Sometimes an applicant asks the commission to review a particular offence, and the commission looks at the case and decides that there may have been a miscarriage of justice. However, if the person has been convicted of numerous offences in the same indictment or complaint, we may take the view that it is not in the interests of justice to refer the case because that would make no difference to the applicant’s sentence.

I will give a more topical example. There have been occasions following the Cadder judgment on which the commission has taken the view that a piece of evidence is inadmissible and that there may have been a miscarriage of justice in a technical sense but has gone on to say that the inadmissible evidence in question was not disputed at trial so it is therefore not in the interests of justice to refer the case.

Yes, I see.

We use that power—albeit sparingly, perhaps. In every case for which we are considering referral we will always take into account the interests of justice. To come back to my original point, we do not feel that the commission, following on from the Sutherland committee, should have its functions and remit—as the Lord Justice-General made clear in a recent case—simply duplicated by the appeal court. As the bill proposes, the appeal court should take its own view on whether it is in the interests of justice to knock out a case.

So your position—as I understand it—is simply that you are glad that the gatekeeping role is gone, but that, if there has been a miscarriage of justice, the appeal should be allowed.

I am saying that, in the vast majority of cases—

By the High Court.

It should not be for the High Court to decide whether it is in the interests of justice. The role was given to the commission, and if the commission decides that it is in the interests of justice—

Absolutely—you are pushing at an open door with me in that regard, Mr Walker.

Okay—I will say no more about it.

I have not changed my position since the emergency legislation was introduced. Does anyone else want to ask the SCCRC any questions?

Yes. I would like to clarify something, Mr Walker. It is my understanding that one of the reasons for the inclusion of the gatekeeping role in the emergency legislation was that it was feared that there would be a lot of applications post-Cadder. That situation has not materialised, as Lord Carloway has said.

Right—it has absolutely not materialised. We received numerous Cadder applications, the bulk of which we rejected. Of those cases that we referred to the appeal court, which numbered fewer than a handful, all were successful. The opening of the floodgates that was predicted did not happen.

What do you think of Lord Carloway’s argument that, if a case is referred by the SCCRC and we take away the gatekeeping of the High Court and the appeal court, but during the course of the appeal—this is very suppositional—the appellant confesses to another offence, it would not be in the interests of justice to allow such an appeal to be granted?

That is an interesting argument to consider, and we have thought about it before. If the commission reached the view that there may have been a miscarriage of justice in a particular case—by applying some of the tests that James Wolffe pointed out—and then uncovered new information or evidence, or if the applicant confessed to that particular crime, we would perhaps not consider a referral to be in the interests of justice, albeit that we believed that there may have been a miscarriage of justice.

From what I understand, you are saying with regard to Lord Carloway’s example that somehow the confession may be made post the commission’s referral—

Yes.

That has never happened, and I do not foresee it ever happening.

I thought that there would just be another trial.

The applicant could certainly be retried.

The argument was that it would therefore not be in the interests of justice. I think that Mr Gibson wants to say something.

I think that something similar has happened in England. After the Criminal Cases Review Commission, which is the English equivalent of the SCCRC, referred a case, further forensic work was carried out and DNA evidence was uncovered years later that implicated the appellant in the murder. It was quite a famous case, but I cannot remember the name of it.

Was it the Hanratty case?

Possibly.

I do not see that as an argument for retaining the interests of justice test.

But it might have been what Lord Carloway had in mind.

I do not think that it would be the same case. Would it not involve a separate crime? Of course, it could be the same case if there were a confession.

The Crown Office supports the retention of an interests of justice test for the court for two reasons. First, it future proofs the system against things like the Cadder case happening again and, secondly, it guards against the possibility of error.

As Michael Walker has said, all the Cadder cases that the commission has referred and which have gone to argument before the appeal court have been successful. What that demonstrates is that in change-of-law cases one has to be careful about finality and certainty. After all, if a case is referred in which the essential corroborating admission is no longer available after the Cadder decision, because that admission was given without the benefit of legal advice, it is inevitable that the referral and appeal will succeed because, by the time we get to the appeal, there will be insufficient evidence. If the court did not have this power, it would not be able to do anything with a case referred in error in terms of the finality and certainty test except quash the conviction. Everyone accepts that the SCCRC does a very valuable job, performs a very valuable function and does an extremely difficult job, but anyone is capable of making an error. Of course, the appeal court recently rejected a referral in the case of Francis Carberry.

As I understand it, the Carberry decision is still being litigated; Mr Carberry’s solicitors have sought special leave to go to the Supreme Court. As a result, I am not sure whether it is appropriate to discuss that case.

The important point is that, when you look at the commission’s track record, you just will not see all these mistakes that Fraser Gibson has suggested might or might not happen. In fact, our track record shows precisely the opposite. As for Mr Gibson’s very specific and technical point about sufficiency of evidence in the Cadder cases, I have already said that, in many of those cases, the commission applied its own interests of justice test and did not refer the cases to the appeal court. It is not that there has been a change of law, evidence has become inadmissible and the commission has simply referred every case to the appeal court—quite the reverse. The commission looked at all those cases and, in many instances, rejected them. They did not even reach the appeal court. I come back to my point that, in my view, that should be the function of the commission, not the appeal court.

So you are the gatekeepers.

I think so. The establishment of the commission followed the recommendations of the Sutherland committee, which made it quite clear that this particular role should not be given to the appeal court. That is why the commission exists.

How is it equitable that only SCCRC appeals have an interests of justice test and other forms of appeal do not?

The rationale, I guess, is that they are special. For a start, they emerge with time. Some cases arise many years late and in many of those cases a retrial will not be possible. Ultimately, the commission has to consider whether it is in the interests of justice to refer them; that is not a requirement for any timeous appeal, as long as it can be argued that the appellant can raise it and that it can get past sift and be heard by the appeal court.

The Law Society of Scotland’s position is that the commission’s approach is an appropriate one. Since the commission was established in 1999, it has established a strong reputation and has great credibility. It sets about its tasks very conscientiously. From 1999 to 2013, it has applied all the appropriate tests: it has looked at whether there has been a miscarriage of justice; it has applied the broad test of the interests of justice; and it has looked at issues of finality and certainty. Our argument is that the commission should be trusted to continue doing that and that the High Court, as the appeal court, should concern itself simply with whether it has been established that there has been a miscarriage of justice.

That is also the position of the faculty. Lord Carloway said in his review:

“The case for maintaining a gatekeeping role for the High Court would have greater force if there were a perception that the SCCRC had a significant track record of frivolous or inappropriate references and it were thought that some further measure was required to bring greater discipline to their activities. The Review is content to note that there has been no suggestion from any source, nor is there any other reason to suppose, that this is the case. Indeed, it seems to be widely accepted that, despite the occasional lapse, the SCCRC has been a conspicuous success in discharging its duties conscientiously and responsibly.”

I would echo those thoughts.

Quelle surprise!

I wonder whether I can say something else. I know that we are not considering corroboration today—

Oh please—do not mention the C-word!

That is a treat yet to come for this committee. It must be a matter of concern to the commission that corroboration is likely to be abolished or may be abolished, because that could lead to the floodgates opening in terms of the number of applications going to the commission. You can imagine that an individual who was convicted on the basis of a single source of evidence might well be quite aggrieved about that and might well want to pursue whatever remedies are open to them—the only remedy that might be open is an application to the commission. I suspect that if corroboration goes, the commission’s work will increase significantly.

I already thought that that issue would be coming down the track. Roderick Campbell and Alison McInnes want to ask questions. I will take Alison first.

Convener, I am not having a good morning.

It is allowed. I often have mornings like that.

I was going to discuss section 82, but I think that we have had a very clear exposition of the points of view on it already.

Okay. I call Roderick Campbell.

What do panel members think public opinion would be in circumstances where the court took a view that there was a miscarriage of justice but did not think it was in the interests of justice to allow the appeal? I know that it would depend on the case, but are there any general thoughts on that?

I think that the public would have some difficulty coming to terms with the court at the end of the process finding that there had been a miscarriage of justice but saying, for another reason, that it was not in the interests of justice to allow the appeal. The role of the commission is to try to increase public confidence in curing miscarriages of justice. Will the public have less belief in its role if, at the end of the process, the appeal court simply stamps its foot and refuses to allow the appeal?

I am not going to go into the merits or otherwise of corroboration, but do you think that abolishing it might result in a heavier workload for the SCCRC? Are you building that into your projections?

I am not entirely sure whether we have thought that far ahead. We are entering the realms of a certain amount of guesswork. We have a very close relationship with our colleagues in the English commission. Given that they do not have corroboration, we have asked for statistics about the number of cases that they have. The picture is not clear. They generally deal with a proportionally similar number of cases and referrals to the SCCRC, but in England there are other safeguards—principally, the provision that in a jury case there must be a 10 to 2 majority, which we do not have. You cannot make a like-for-like comparison because it is difficult to find empirical data.

Do you think that there would be an immediate impact on your workload?

We are in the realms of guesswork, but yes, possibly.

We have exhausted our questions for you. I thank the panel very much for attending. We will get to corroboration at some point. I will suspend the meeting for a couple of minutes while we change panels, but members should stay put.

11:59 Meeting suspended.

12:01 On resuming—

I welcome our second panel of witnesses. Alison Di Rollo is head of the national sexual crimes unit in the Crown Office and Procurator Fiscal Service and Bronagh Andrew is assistant operations manager of the trafficking awareness-raising alliance project at Community Safety Glasgow. Thank you for waiting. We will go straight to questions from members.

Good afternoon. It is nice to see you here. My question is on a procedural matter. The bill will create two statutory aggravations relating to people trafficking, and provisions in relation to aggravating factors in general, where it is proven that someone committed an offence in circumstances in which one of the statutory aggravations is also established. How might the proposed statutory aggravations be used in practice? What difference will they make?

It probably falls to me to answer that. Aggravation will provide another element in the toolkit for prosecutors on receipt from the police of a case that could be about wide-ranging criminal activity of a sexual nature, of a financial nature or whatever.

Where it is not possible to find sufficient credible and reliable evidence to libel a substantive trafficking offence in section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 or section 22 of the Criminal Justice (Scotland) Act 2003, the aggravation will enable us to lead evidence and to put to the court and the sentencer a context or background of trafficking that would aggravate the offence and so lead to a more extensive sentence. It will also allow the courts and criminal justice system to record more accurately human trafficking activity in this country.

I am pleased to be able to sit here today in a position where, to use that horrible phrase, the direction of travel—

I agree—it is a horrible phrase.

The phrase is ghastly, but it makes the point that we have made progress in awareness, detection, prosecution and conviction of offenders who are involved in trafficking. We will—one hopes—continue to do that. The proposed aggravation will give us increased flexibility and increased powers to bring evidence to the court to shine a light on that activity so that statistics are more robust and accused persons who are convicted of such heinous crimes are sentenced to longer periods of imprisonment.

I agree with Alison Di Rollo that the aggravation will be another tool in our arsenal in the fight against human trafficking. Many of the women whom we support are extremely traumatised and have little information about the human traffickers, so it can be difficult for investigations to progress. We support the statutory aggravation offence for trafficking women.

I might be straying into another area—I seek your advice on that—but we have seen the recent revelations about young girls apparently being brought up to Scotland for genital mutilation. The bill includes aggravated offences. I am not suggesting that the bill should be rewritten, but do you think that aspects of the bill might pertain to that practice? It has been suggested that young women from England, Wales and other places are being brought up to Scotland for genital mutilation. Could that be considered in the context of the bill?

I do not think that the bill needs to be strengthened or expanded in that regard; rather, I think that that is a good example of the kind of context in which it could be used.

I will stress something that Baroness Kennedy mentioned in the Equality and Human Rights Commission’s report, which is that the aggravation will give us an opportunity to prosecute sexual offences in a wider context because genital mutilation crosses borders between child abuse, sexual abuse and physical abuse. If we had uncorroborated or evidentially weak information that a child had been trafficked in order to be mutilated, I am content that the provisions of the bill would allow us to factor that into preparation of our case and the evidence that we would lead in support of it, because the mutilation aspect is a discrete criminal offence in this country.

I am anxious to get back to my desk, because I am dealing with a trafficking case that involves extremely serious sexual offences. It might be the right decision to prosecute for the extremely serious sexual offences, which include rape—an offence that attracts life imprisonment—along with either the accompanying substantive trafficking offences, if we can prove them, or with the aggravation that the rapes in question have been committed against a background of trafficking. Your point about female genital mutilation is highly pertinent. The case that I am dealing with strengthens my conviction that the aggravation provision is a helpful one.

I take the opportunity to make a clear statement that I hope will be of assistance to the committee: it will always be in the public interest to bring a substantive trafficking charge, either under section 4 of the 2004 act for exploitation, or under section 22 of the 2003 act for prostitution, where there is sufficient credible and reliable evidence, and we will do so. I make that statement to clarify that the aggravation will not be used as an easy option or a shortcut.

I am looking at the bill’s definition of “people trafficking offence”, which refers to other legislation. I do not have a clear understanding of that definition, which has been extended. One tends to think of it as applying to sexual exploitation or exploitation at work, but I did not think about it in the context of the issue that Sandra White raised. What is the definition of “people trafficking offence” in law? I see that it is an offence under section 22 of the 2003 act.

Section 22 of the 2003 act is the provision that deals with trafficking in relation to prostitution. There are two key elements to it. That is interesting, because if we fall down on either of them, we will not be able to prosecute under that charge and we may fall back on the aggravation. The first essential element is to prove that the accused has arranged or facilitated

“the arrival in the United Kingdom ... or travel there”.

That is the trafficking bit. We need to prove that they have been complicit in moving the person around.

The additional element, as far as section 22 of the 2003 act is concerned, is that we need to prove that the trafficking is for that person to “exercise control over prostitution”. That means that they have exercised

“control, direction or influence over the prostitute’s movements in a way which shows that the person is aiding, abetting or compelling the prostitution.”

It is about controlling, influencing and moving people around.

That can be contrasted with the provisions of section 4 of the 2004 act, on trafficking people for exploitation. Again, the essential element is the trafficking element, which is the facilitation of the arrival in the country of people, or moving them around. That could refer to taxis going from the west end of Glasgow to the south side; we take a very broad-brush approach to that aspect.

The committee will be aware that exploitation could be about slavery or forced labour, or offences under the Human Tissue Act 2004 involving body parts, organs and so on. With regard to forced labour, section 4 of the 2004 act would require us to prove that the complainer was

“subjected to force, threats or deception designed to induce”

them to provide the services.

From what you have just said, what my colleague referred to—female genital mutilation—does not come under the heading of people trafficking.

No. That is a discrete offence in its own right.

Yes, I know, but it does not come under the bill’s provisions on people trafficking.

No.

I think that we have been endeavouring to see whether we could make a link and bring female general mutilation under the bill as being associated with trafficking. Am I making sense? People trafficking is defined in the bill, but female genital mutilation was introduced as something that might be regarded as an aggravated offence under the bill. Can that be done for female genital mutilation, given that the bill is to do with people trafficking?

Yes, because what is in the bill does not refer to section 4 of the 2004 act or to section 22 of the 2003 act. That is my reading of it.

The bill defines people trafficking.

Yes.

So, it does. I cannot see how the aggravated offence—what my colleague referred to—cannot be extended. Am I misunderstanding it?

With respect, convener, you are, because we can apply the aggravation to rape, identity fraud, theft and drugs offences. Any offence, such as rape, could be aggravated.

What section are you talking about?

It is section 83(2), which states that

“An offence is aggravated by a connection with people trafficking activity”.

So that could mean any offence.

Yes.

I do not agree, but I must not debate it with you. I will have to think that one through, because I think that I am thinking differently. I will let others in now.

My question is for Ms Di Rollo. If I noted it correctly, you talked about awareness, detection and prosecution. I note that you are the head of the national sexual crimes unit, and I know that tremendous work has been done by TARA and the Crown Office and Procurator Fiscal Service. With regard to awareness, I wonder whether the association of trafficking with the sex industry is a challenge. I represent the Highlands and Islands, and I am aware of two instances relating to forced labour and drugs cultivation. I do not think that there is sufficient awareness out there. What is being done to increase awareness that trafficking is not simply an urban prostitution-related issue but a much broader one?

12:15

Police Scotland, through its national unit, is doing a good deal of work to raise awareness and to encourage reporting—in particular of cases outwith the sex industry, such as you referred to. For example, in respect of youngsters going round in vans on charity collections, or cannabis farms being found in private housing estates, people are generally becoming more aware of the possible connection with trafficking.

Beyond that, as we have heard in a recent conference and in evidence to the committee, it has been recognised that raising awareness is a wider societal issue. I must confess that, as a prosecutor, I sit at the end of the food chain, if you like, and take cases that are reported to us from the police. We help and play a role in securing convictions and gaining publicity for those convictions, so that people are aware that such crimes are happening on their doorsteps.

Perhaps I can help. Last month, the UK human trafficking centre published statistics for 2012 on use of the national referral mechanism. The statistics show a definite increase in individuals being identified about whom there are concerns that they have been trafficked for labour exploitation. As you know, our colleagues in Migrant Help are funded by the Government to support victims about whom there are concerns that they have been trafficked for labour or domestic servitude. It is unfortunate that the organisation is unable to attend today. I am aware that it is getting busier. The message on trafficking is getting out there.

The Scottish Government has convened a sub-group of the anti-trafficking progress group to look specifically at awareness raising and training. The sub-group is very keen to ensure that there is a wider awareness of the different types of exploitation from which human traffickers profit.

Does the legislation go far enough? Are there other elements that could have been picked up on?

That is quite a difficult question. In our written submission, we raised concerns that there is in Scots law no definition of human trafficking. Colleagues work to the Council of Europe definition, which has three key elements. Those cover the act of exploitation, including the recruitment, the means, the deception, the coercion and the abuse of a position of vulnerability; the intention to exploit; and the exploitation itself. It would be helpful to have an agreed shared definition that is legally binding.

Following the bill’s introduction, two consultations are taking place on legislating specifically for human trafficking. The UK Government is gathering evidence on the need for a modern slavery act and, in the Scottish Parliament, Jenny Marra MSP has issued a consultation on her proposed human trafficking bill for Scotland. Both look at pulling together the disparate legislation and seek to agree a shared definition of human trafficking in domestic legislation.

Clearly, Scots law is distinct. What liaison, if any, is there with other authorities? Human trafficking recognises no boundaries. There were issues in the north of Ireland; there will be issues with the border with England. Is there cross-border co-operation?

Absolutely. We refer a lot to “operation factor”, which involved extremely close co-operation with the Police Service of Northern Ireland. We also have regular dialogue with the Crown Prosecution Service; we recently spoke to it about the possibility of identifying expert evidence to lead prosecutions in Scotland in the way that one might use expert evidence from drugs officers on how that industry operates. We are looking at that and we have very close co-operation, as is increasingly the case across Europe. Indeed, the case to which I return after this session has very much an international dimension, with on-going dialogue through Interpol.

To return to the previous point on the absence of a common definition on human trafficking, while accepting that there are various jurisdictions, surely to have a Europe-wide—for argument’s sake—definition would be of benefit?

That is a matter for the legislature and others. I am content to work with whatever legislative provisions are deemed to be appropriate. I work contentedly with the current legislation. I am not suggesting that a common definition would not be a good idea, but that is more for others.

The lack of a definition is not problematic in your dealings with other jurisdictions.

It is not, either technically or legally, given the definitions that we are working to.

We must move on because I am mindful of the need to finish by 12.30 pm. I call Roderick Campbell to be followed by Elaine Murray.

Ms Di Rollo mentioned that we should not think of aggravations as being a soft option that could be used in preference to section 22 of the 2003 act and section 4 of the 2004 act. I believe that I am right in thinking that there have been only a handful of convictions for people-trafficking offences but are more such cases coming through the system?

Yes.

Are there substantially more offences?

There are materially more. I think that between 2007 and 2012 only two people were convicted of trafficking offences in Scotland; that number has increased to seven. I am aware of the increase because, as lead prosecutor, I see all the cases; they come through my unit of specialist prosecutors. At the moment, there are seven cases pending. We have secured additional convictions and there are in train more cases covering domestic servitude, trafficking for prostitution and forced labour. On John Finnie’s point, the cases are not focused entirely on prostitution; we are getting cases across the board.

Thank you. That was helpful.

Do you have a question, Elaine?

I had a question about the need for further legislation, but it has pretty much been answered. I presume that even if there were further legislation the aggravated offences would be useful in prosecutions.

Yes.

Perhaps I did not make myself clear enough earlier; Bronagh Andrew’s response about the European definition of trafficking clarified the matter for me. Trafficking is all about making people move against their will and without their permission.

I will go back to the controversial question of how we might use the aggravation provision; I think that Alison Di Rollo mentioned body parts. Trafficking is about moving people against their will; if you move young women across Britain and up to Scotland because, for example, you think that it is easier to perform genital mutilation, surely that will produce body parts, so classing those as two separate aggravations would help to convict anyone who was involved in such activity. Can you clarify whether that is the case?

That would depend on the circumstances. I think that I see the point that you are making; if a child was brought to Scotland to be subjected to the offence of genital mutilation, it might or might not be possible to establish a trafficking background. On the convener’s point, to bring a child to Scotland for that purpose on an isolated basis rather than on an organised or commercial basis would not necessarily be a trafficking offence.

Yes, I think that that is right.

As far as I am concerned, the fact that a child had been brought from her home country to a strange foreign country to be subjected to female genital mutilation would, in and of itself, be an aggravation and we would seek to lead evidence of that. However, it very much depends on the people responsible and their wider activities whether an aggravation or some other substantive offence could be proved.

I am mindful that we must not get into a big debate about the subject, but my point, which referred to the two definitions that you mentioned and the references to the other pieces of legislation, was about someone being brought into the country not just against their will but against their will for a specific purpose, which did not include the issue that was raised by my colleague. I am concerned that you are being trammelled by the definitions. The point is that the people in question were brought into the country not just against their will but for the purposes of exploitation, whether that meant menial work, slavery or sexual exploitation. However, genital mutilation is not covered and I wonder whether, in view of the definitions, that offence would be difficult to prosecute as an aggravation under the bill.

If that aggravation was not present, it would not be appropriate to prosecute it.

I appreciate that but I am talking about the specific purposes. I think that I will need to read the material again and give it a bit more what I would call thunking.

We can be confident that we have created a discrete offence in relation to female genital mutilation; we also have discrete offences for trafficking and we will now—God willing—have the additional tool of evidential aggravation, where the evidence supports it. We still need evidence to prove the aggravation.

Perhaps not corroboration, but we are not going to mention that word today.

I thank the witnesses very much for their evidence and patience and the committee for their questions.

I say to members before they put away their papers that there are other items on the agenda; however, as we have only five minutes left, I suggest that we take items 3, 4 and 5 next week. We do not have time to consider them tomorrow because we have two panels of witnesses. [Interruption.] Apparently we have three panels. Is that not good? Buy one, get one free. With members’ leave, we will take items 3, 4 and 5 on today’s agenda next week.

Members indicated agreement.

Tomorrow we take evidence on the Criminal Justice (Scotland) Bill from the Lord President and the Lord Advocate, and on prison visiting committees. I know that you cannot wait. We start at 9.30 am and there will be no bacon rolls.

Meeting closed at 12:25.