The next item of business is stage 3 proceedings on the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament bill 52A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division of stage 3. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on a group of amendments should press their request-to-speak buttons or enter “RTS” in the chat as soon as possible after the group has been called.
Members should now refer to the marshalled list of amendments.
Section 2—Virtual attendance at court
Group 1 is on virtual attendance. Amendment 58, in the name of Pauline McNeill, is grouped with amendments 59, 2, 60 and 1.
I will speak to amendments 58, 59, 2 and 60 on virtual attendance. Amendment 58 would insert:
“(a) an official appointed by the court will be in attendance with the person who is to attend by electronic means,
(b) it is satisfied that the electronic means is of sufficient speed and quality to enable the person to both see and hear all of the other parties, the judge and (where applicable) the jury and any witness who is giving evidence”.
At stage 2, the cabinet secretary said that having a court official in attendance
“would place an unsustainable burden on court officers”—[Official Report, Criminal Justice Committee, 11 June 2025; c 17.]
and would come with an unsustainable and “unquantifiable” cost. Therefore, I revised my amendment to say
“an official appointed by the court”.
Witnesses raised the point that giving evidence virtually should be equivalent to giving evidence in a courtroom. At stage 1, the sheriffs principal told us that
“virtual hearings are heavily dependent on the adequate resourcing of technology and infrastructure.”
The Faculty of Advocates told the Criminal Justice Committee that
“These undoubted and important benefits do come at a cost to the justice system... Valuable court time is regularly lost due to delays in establishing remote links and re-establishing failed remote links.”
I also welcome amendment 2, in the name of the cabinet secretary, which relates to—
Will the member give way?
Yes, give me a minute. Amendment 2 will insert:
“including what requirements must be satisfied by the location from which the person is to appear”.
Before I allow the cabinet secretary to intervene, I will say that I am clear about the importance of virtual attendance. I will not move—
[Made a request to intervene.]
Oh, I thought it was the cabinet secretary who asked me to give way, but it was Audrey Nicoll—sorry. Let me just finish my point. I am fully supportive of virtual attendance but I just want to make sure that this important issue is raised, because I have witnessed cases in which there have been very poor connections to the point that we could not identify the accused. I know that that is in hand, but it is an important issue to raise at stage 3, even though it was not part of the conversation and debate prior to that.
I give way to the convener of the Criminal Justice Committee, Audrey Nicoll.
I note the rest of Pauline McNeill’s speech following my request to intervene. I will simply point out that, with regard to amendment 58, I was not clear under what circumstances the court would require an official to be present at a virtual hearing—that is, with a witness or an accused. I am aware that, as the member says, a significant amount of work was done by the Scottish Government on that particular point following stage 2. I hope that some of that has been clarified.
I thank the member for that helpful intervention, which touches on the crux of the matter. We want to ensure that, when people give evidence virtually, they do so in circumstances that are similar to the circumstances in which people give evidence in court. I imagine that, to give the oath virtually, they would do the same thing that they would do in court.
My reason for initially pursuing the attendance of a court official—amendment 58 now calls for an official “appointed by the court”—was to ensure that someone checks that no one is in the room with the person who is giving evidence virtually. I am sure that the cabinet secretary will speak to that, because there should be no one in the room who might influence someone who is giving evidence. I was not sure how that would be done in relation to evidence that is given virtually, although I am aware that Victim Support Scotland has excellent suites where people can give evidence by commission.
I suppose that my not being a practitioner means that I am unfamiliar with how that could be done to everyone’s satisfaction and in a way that meant that evidence that was given virtually would have the same level of solemnity as evidence that was given in court. We want evidence that is given by witnesses virtually to have the same value as evidence that is given by a witness in court—they might not want to give it otherwise. That is why I wanted to air the issue.
I move amendment 58.
I start with Ms McNeill’s amendment 59, which, I am pleased to say, I can support. It appropriately addresses any concerns about how the Lord Justice General exercises their determination-making power to disapply requirements for physical attendance. It is right that the rationale for those determinations is readily available and understood.
Although I understand why Ms McNeill has raised the issues at stage 2 and stage 3 that she referenced in her amendments 58 and 60, I cannot support them, as they would be a backward step and would place unnecessary burdens on the court.
The bill provides for virtual attendance in criminal proceedings by making permanent the legislative underpinning that has been in place since 2020. The provision has been used by courts to allow hundreds of police officers and other professional witnesses to give evidence remotely, instead of having to travel across the country to attend court in person, sometimes over several days. The time and resource that have been saved underscore the importance of that provision.
Members will know that remote attendance was not a new concept brought in by the emergency coronavirus legislation in 2020, as forms of virtual attendance at court had been commonplace for decades.
Ms McNeill’s amendment 58 would require an official appointed by the court to be in attendance with every person attending a trial virtually, and it is wholly unworkable in practice.
Does the cabinet secretary envisage limiting remote evidence, in effect, to professional witnesses and police officers, where there is an assurance that there will not be interference in the evidence, if it is given remotely?
Right now, virtual attendance is mostly used by professional witnesses—police officers, doctors and so on—and it is quite often done from their place of work, by which I mean the place where they work every day in a professional environment.
In terms of vulnerable witnesses, where there is the opportunity either to have special measures or to give evidence remotely, there are evidence-by-commissioner suites, in which the Government has invested money, and a court official is present at those facilities. Ms McNeill mentioned the great facilities that Victim Support Scotland has in Edinburgh, and for children, we have the bairns’ hoose.
As I said, Ms McNeill’s amendment 58 would require an official appointed by the court to be in attendance with every person attending a trial virtually. My concern is that that would be unworkable.
It is helpful to clarify that, when such Government-funded suites or those of Victim Support Scotland are used, we already have in place satisfactory arrangements. However, given that the bill would give the Lord President a permanent power to allow virtual evidence to be given, I just wondered who would check—if people were not giving evidence in those suites—that no one else was in the room and that everything was as it should be. That was my motivation in lodging the amendment. I do not know whether the cabinet secretary can answer that, but it would be helpful to know that before we close the matter.
14:30
I am not aware of a requirement to have someone on site with professional witnesses such as doctors, police officers and other experts. I would have the utmost confidence in police officers being able to give evidence to courts remotely. The Scottish Courts and Tribunals Service’s evidence-by-commissioner suites are overseen by the court service.
It is worth reminding members that the default mode of attendance is physical. There has only ever been one determination issued by the Lord Justice General, in September 2022, specifying types of hearings in which the default mode of attendance is virtual. Those are preliminary hearings, which tend to be quite short; sentencing hearings in which the person is detained; full-committal hearings in sheriff courts, when the person is detained; and bail appeal hearings. A determination was also issued that people who were suspected of having Covid would be advised to self-isolate and to attend virtually. Overall, virtual attendance has been determined for shorter, more procedural hearings.
The default position is that people attend court in person, in particular for hearings in which evidence is being led and for trials. In those cases, the expectation is that people attend court in person unless the person is a vulnerable witness and has had opportunities to give pre-recorded evidence.
Going back to the specifics of amendment 58, it would, in my view, place an unsustainable burden on the courts to require them to appoint those officials. The significant costs and demands on resources that that would bring would mean that virtual attendance would become essentially impracticable, and we would lose all the benefits that it currently provides.
As I said at stage 2 when an almost identical amendment was debated, virtual attendance provisions have been very effectively used to allow police and professional witnesses to give evidence remotely in High Court cases, often from their workplaces. It would be wholly inappropriate to require officials who are appointed by the court to attend at those locations with such witnesses.
On the amendment’s requirement for the court to be
“satisfied that the electronic means”
of virtual attendance
“is of sufficient speed and quality”,
it is not clear how the court could be meaningfully satisfied in each case, given the volume of witnesses attending from different locations. It would be entirely impractical and problematic to place an obligation on the court to be satisfied as to the minimum technical requirements before the witness can give evidence remotely.
In addition, these amendments are not future proofed, which means that, as technology expands and improves in the years to come, courts would still be required to check on the speed and quality of internet connections.
Ms McNeill’s amendment 60 relates to information contained within the court’s direction that sets out how a person is to attend proceedings virtually. The amendment would require individual directions, in every single case, to contain technical specifications that are, on the whole, outwith the general expertise and role of sheriffs and High Court judges. I am sure that court users and, indeed, MSPs would not expect judges to routinely spend their time setting out minimum broadband speeds in open court.
Therefore I do not support amendments 58 and 60, which would do nothing to improve the practice of virtual attendance or the experience of court users. However, to provide reassurance, I point out that the bill already provides that, if a direction is being given on virtual attendance, it must require the witnesses to use means that enable all the other parties, the judge and, where applicable, the jury, to see and hear the witness. It is not necessary to place an additional burden for technical specifications over and above that.
In addition, my amendment 2 will require a court, when issuing a direction detailing how a person is to attend virtually, to set out
“what requirements must be satisfied by the location from which the person is to appear”.
The purpose of the amendment is to enable the court to set parameters around what makes a location suitable for virtual attendance. That would guarantee that the provision can continue to afford flexibility to police and professional witnesses while ensuring that remote evidence continues to be delivered in a way that is consistent with the solemnity and integrity of court proceedings.
Amendment 2 would enable a court to issue standard requirements in every direction—for instance, those could state that a person must attend in a private place with minimal distractions, using a stable internet connection. I believe that that approach better meets the concerns of members than requiring rigidity in locations or technical requirements.
I am pleased to have been able to work with Liam Kerr on amendment 1, which relates to reporting on the use of virtual attendance in court proceedings. The report will provide important evidence on the effectiveness of the provision in delivering benefits to all users in the justice system.
I ask members to support amendments 1, 2 and 59 and to oppose amendments 58 and 60.
At stage 2, I lodged an amendment that would have required the Scottish Government to publish a report on the use of virtual attendance in court proceedings. Although the provisions for virtual attendance have been in place for years, there is a dearth of data about their operation. Publishing such a report could allow stakeholders to better understand the extent to which virtual attendance is delivering greater efficiency and effectiveness. At stage 2, I conceded during the debate that the amendment that I had lodged was not quite right as drafted, so I did not press it.
Amendment 1 is the new and improved request for such a report. I put it on record early that I am grateful to the Government for working with me on what has now become a handout amendment. If agreed to, amendment 1 would place a requirement on the Scottish ministers to undertake a review of the way in which the virtual attendance provisions in new sections 303G to 303M of the Criminal Procedure (Scotland) Act 1995, as inserted by section 2 of the bill, operate over the two years after section 2 comes into force.
When undertaking that review, Scottish ministers will be required to consult stakeholders such as the chief constable, the Law Society of Scotland—I remind members that I am a current member of the society and a practising solicitor—and the Faculty of Advocates. That is to say that the views of those who will use the provision the most will be considered and included as part of the review. The amendment requires that,
“as soon as reasonably practicable”
after the review has been completed, Scottish ministers must prepare a report on the review, publish it and lay a copy before the Scottish Parliament. The amendment is a positive step that will assist all stakeholders, so I will be pleased to move it.
As for the other amendments in the group, I find myself persuaded by Pauline McNeill’s amendment 59 and the cabinet secretary’s amendment 2. Both are useful, and the Scottish Conservatives will vote for them. However, I am unpersuaded by Pauline McNeill’s amendments 58 and 60.
I have significant concerns, which I shall describe later, about the burden—particularly the financial burden—that we as a Parliament are placing on what is an already stretched justice system. The cabinet secretary’s concerns about amendments 58 and 60 are well founded; thus, if they are pressed, I will not vote for them.
I reassure the cabinet secretary and Liam Kerr that I do not intend to press amendment 58 or move amendment 60. I just felt that we needed to flush out some of the issues. The Government and Liam Kerr have raised some of those issues, which is really helpful. The Government’s amendment 2 will achieve what I was trying to achieve, so I will be delighted to support it.
I am also pleased that the Government will support amendment 59, which states that the Lord President must set out the rationale for using the power. I welcome what the cabinet secretary said earlier about its use, because that is the important part to debate. The default will be physical attendance, but we need flexibility to allow vulnerable witnesses and people who are ill to attend the court virtually, and we know that that process works. All that I am ensuring is that we as legislators—we are not practitioners—close every possible gap.
The cabinet secretary was right to say that it is quite hard to consider who would test whether a connection was good enough. However, as I have said many times, I have sat through a custody court session in which the sheriff literally asked me to come to chambers and told me, “Look, this is what I have got to put up with. It is just an appalling quality.” That is where I am coming from.
I am reassured that the Scottish Courts and Tribunals Service has said that the technology is a work in progress, but we have to ensure as a Parliament that we reach a point at which it is satisfactory. It is capable of being so, but we need to ensure that it works regularly on that basis.
I intend to move amendment 59, but I will withdraw amendment 58, and I will not move amendment 60.
Amendment 58, by agreement, withdrawn.
Amendment 59 moved—[Pauline McNeill]—and agreed to.
Amendment 2 moved—[Angela Constance]—and agreed to.
Amendment 60 not moved.
After section 2
Amendment 1 moved—[Liam Kerr]—and agreed to.
Section 4—Digital productions
Group 2 is on digital productions. Amendment 61, in the name of Pauline McNeill, is grouped with amendments 62, 63 and 3.
Amendment 61 says:
“Where an image of physical evidence is to be treated in criminal proceedings as if it were the physical evidence itself, either party in the proceedings may request that the physical item be produced in court.”
It also says:
“Where a request is made under subsection (1ZA) before or during the trial, the physical item must be produced in court.”
Amendment 62 says:
“Notwithstanding any direction made under this section, where either party in the proceedings requests for the physical evidence to be produced in court, the request must be granted.”
First, I will say what I am trying to achieve. At stages 1 and 2, there was quite a bit of debate about digital productions. I totally support the principle behind digital productions because, in many cases, there is no requirement to have a physical item in court. A lot of time, money and space could be saved, so I am in favour of digital productions.
However, before we close on the issue, I want to ensure that we retain the status quo to some degree. Under the status quo, there are cases—I do not know how many—in which producing the physical item in court for the jury to see could be really important. The way that the bill is structured does not prevent that. Parties would be required to say in advance that they wanted the item to be produced in court. If they did not do that within the time limit, they could go to the court and ask the judge whether the item could be submitted to the court.
Amendments 61 and 62 seek to ensure that either party can ask for the physical evidence to be produced. What the issue boils down to is that I do not want there to be a time bar, because we already operate on the principle that the item will be produced in court. There is a minor issue, which is that it is possible that the court could say no. You might think, “Why would the judge ever say no, you can’t have the item in court”?
I also had the chance to talk to the Law Society, members of the Faculty of Advocates and practitioners. They seem pretty satisfied; I suppose that they are just looking for an assurance that the Government will continue to discuss with them the guidance and how it will operate in practice.
14:45At stage 2, the cabinet secretary said that
“there is an existing common-law right for the defence to examine any physical item whose condition is critical to the case against the accused, even when it will not be produced at trial.”—[Official Report, Criminal Justice Committee, 11 June 2025; c 26.]
I found that reassuring, but I thought that, in the interests of justice, we should tease out whether we have got that right. In the past, I have used the example of a case in which a replica gun was produced in evidence. I have not witnessed this myself, but, as those who have seen one will understand, it would be really important that the jury was able to see that a replica gun looks like a real gun, because that is obviously a criminal matter.
Therefore, there are clearly cases in which it would be beneficial for the jury to actually see the item and it is possible to produce the item. It would make sense to have some sort of tick-box exercise in advance of the trial that would serve as a prompt to ensure that, if the physical item is required, it can be produced. I do not intend to press my amendment, but I wanted to ensure that we properly examined the matter.
I hear what the member is saying; I simply want to point out the significant implications that the proposed provision would have for Police Scotland. The member might recall that Police Scotland communicated that to the committee some time ago. However, given that it has a significant role in the management of productions once they have been taken possession of, I simply want to flag the significant burden that her amendment would place on Police Scotland.
The provision in question relates to the retention of evidence. Again, my motivation was to maintain the status quo. I am not trying to put any more responsibility or burden on the police to retain any evidence that they do not already retain. Given that we are not practitioners, we must examine the matter and ensure that there will be no loss to the justice process as a result of destroying or not storing evidence. In some cases, the justice process is long.
I assure Audrey Nicoll and Police Scotland that I do not intend to move amendment 63, but we should be absolutely clear, before we pass the bill, about the important difference between producing an item and storing it, and that there will be no loss to the interests of justice as a result of passing the bill.
I move amendment 61.
I call the cabinet secretary to speak to amendment 3 and the other amendments in the group.
The bill aims to increase the use of modern technology in our courts through a number of measures, including permitting the use of images in lieu of physical productions. As we have heard, such practices are already happening. However, not only would such opportunities for modernisation be lost if Ms McNeill’s amendments were agreed to, but their effect would represent a step backwards in how evidence is retained—although I note Ms McNeill’s remarks about her intentions, and I acknowledge that it is important that each and every matter is discussed and debated to members’ satisfaction.
On the specifics, Ms McNeill’s amendment 61 would undo stage 2 amendments that were unanimously agreed to by the committee and which set out the process and timescale by which parties can apply to the court for a direction providing that an image cannot be used in place of physical evidence. That process gives the court the power to determine whether using the image in lieu of physical evidence would prejudice the fairness of the proceedings. Amendment 61 seeks to replace that process with an oversimplified mechanism that would give parties an unqualified right to have items produced when they request it, with no role for the court in deciding whether that was necessary to avoid prejudicing the fairness of the proceedings.
Amendment 62 would mean that the court would be required to grant every request for physical evidence to be produced at any point before or during the trial, thereby removing any judicial discretion to consider what is fair. Compelling the court to grant every request in every circumstance would, ultimately, favour the use of physical productions instead of images. If the party leading the evidence is concerned that the other party could unilaterally require a physical item to be produced without any court consideration, they might simply choose not to use images in lieu of productions to begin with. The use of physical productions would therefore remain the default.
Amendments 61 and 62 would therefore defeat the purpose of the bill, which is to support the greater use of digital productions. The bill already ensures that parties can request for physical productions to be used, and such productions will have to be produced when the court issues a direction.
Ms McNeill’s amendment 63 is similar to amendments that were lodged at stage 2, and I will reiterate the points that I made then. Prosecutors have always been able to determine which productions need to be retained and for how long. Fundamentally different factors need to be taken into account in relation to, for example, marijuana plants in drug offences, personal items belonging to victims and witnesses, and alleged murder weapons. The bill will not alter the nature of those operational decisions. However, my major concern with amendment 63 is that, when images are used, physical evidence would need to be retained for much longer than if it had been used as the production itself.
It is already common practice for some evidence to be returned or destroyed prior to the conclusion of a trial, and if amendment 63 was agreed to, that could no longer happen, which would be unworkable and expensive for justice partners, who would have to store items for longer. The amendment also represents a regressive approach to retention that is not necessary and would be to the detriment of victims, their families and witnesses.
For example, when a vehicle is involved in an accident and a photograph is taken of the damage for use at trial, amendment 63 would mean the vehicle would need to be retained. Under Ms McNeill’s proposals, hazardous substances that, at the moment, can be destroyed would also need to be retained, even when no objection has been made to the use of images.
When evidence is the property of victims or witnesses, the items can be returned and a label or image can be used in their place during proceedings. If amendment 63 was agreed to, the victim’s property would not be returned until a considerable time after the trial had concluded. That could include personal items that are of value in sentiment and cost, or items that a victim has to do without for more time than is necessary. Such distress could just be avoided. More harrowingly, victims’ remains would also need to be kept and not returned to families.
In her role as head of prosecutions, the Lord Advocate is uniquely placed to comment on the implications of the proposal for her staff and the wider system. The Lord Advocate shared her views in recent correspondence with me, which she has allowed me to quote from. She wrote:
“any amendment which required the retention of physical productions to the stage of appeal would be catastrophic in terms of resourcing impact across the system ... Further, it would have the potential to lead to significant unintended consequences in relation to the return of property to its owner. In particular, I am concerned about the potential for an accused to manipulate the system to perpetuate control over a victim’s property. In the context of domestic abuse and sexual offending, property can include intimate images and recordings where retention may be deeply distressing to victims.”
Police Scotland has also written to the convener of the Criminal Justice Committee to highlight the impact that amendment 63 would have on operations and the significant issues that it would create for its estate and its capacity to store physical evidence.
At stage 2, however, I recognised that members of the Criminal Justice Committee expressed a desire for the bill to be clear about the impact of the provision on the use and retention of physical evidence. My amendment 3 responds to that. It will require the Lord Advocate to prepare and publish guidance setting out factors that prosecutors will take into account when deciding whether to use images in place of physical evidence and the approach of prosecutors to the physical evidence itself when such images are used.
Amendment 3 has the support of Police Scotland, which manages a large quantity of physical productions. It will continue to work with the Crown Office and Procurator Fiscal Service to agree operational approaches to the retention of physical evidence.
I urge Parliament to support my amendment and to oppose those of Ms McNeill.
I invite Pauline McNeill to wind up and to press or withdraw amendment 61.
I have nothing further to add, other than to say that I seek to withdraw amendment 61.
Amendment 61, by agreement, withdrawn.
Amendments 62 and 63 not moved.
Amendment 3 moved—[Angela Constance]—and agreed to.
Section 7: National jurisdiction for custody cases in sheriff courts and JP courts
Group 3 is on national jurisdiction. Amendment 4, in the name of the cabinet secretary, is grouped with amendments 5 to 8, 64 and 65.
I will start with my own amendments in this group. The Criminal Justice Committee has given careful scrutiny to the provisions of the bill concerning national custody jurisdiction. The committee’s views were instrumental in further refinement through stage 2 amendments to make the end point of national jurisdiction clearer in the bill, underlining that trials cannot be heard under national jurisdiction.
Following stage 2, justice partners raised a further issue around the capacity of the provisions to support the courts’ resilience when dealing with time-critical solemn custody appearances in emergency situations, as prompted by the experience of the courts during the disruption caused by storm Éowyn.
When an accused person has first appeared on petition from custody and, after being committed for further examination, has been remanded in custody by the court, the rules require that the accused must again appear in court within eight days for what is commonly known as the full committal hearing. It is at that hearing that the court can be asked to authorise the accused’s continued remand while prosecutors take the necessary time to prepare and serve an indictment on which the accused may ultimately face trial.
Under existing provisions, if the accused’s first appearance was heard by the court in the sheriffdom in which the offence is alleged to have occurred, the accused must also appear at that court for their full committal hearing. Alternatively, if the accused’s first appearance was in a court sitting with national jurisdiction, the accused’s full committal can be heard either under national jurisdiction or by the local court.
During storm Éowyn, several courts were closed because of red weather warnings. When making arrangements to have essential business dealt with by courts that remained open, justice partners were limited in how they could use the national jurisdiction provisions where the initial appearance on petition was not also heard under national jurisdiction. There was therefore a constraint on the ability of courts outwith red weather warning areas to assist with time-critical custody appearances at courts within red weather warning areas.
I have therefore lodged amendments 4 to 8, which seek to address the issue by outlining a very narrow set of circumstances where an accused who is committed for further examination under local jurisdiction can have their next hearing take place under national jurisdiction. Those circumstances are where the court that heard the initial appearance is closed because of an emergency or special circumstances, such as adverse weather events like Storm Éowyn. I stress that the provision is restricted to proceedings on petition, so it will not allow hearings on indictment, such as first diets or trial hearings, to take place at a court with national jurisdiction.
I do not support Katy Clark’s amendments 64 and 65, because they are unnecessary. The proposals in the bill on national jurisdiction have been consulted on and scrutinised by the Parliament, not just through the bill but through the passage of the temporary coronavirus legislation and subsequent extension regulations.
15:00Sheriffs have not raised any issues regarding access to sufficient information in allowing national jurisdiction to operate effectively over the past five years in which it has been operating. If background or other reports are required by the sheriff in order to deal with a case, the sheriff will request those. Alternatively, if, for whatever reason, the sheriff feels that it is required, they can return the case to the local court for whatever further proceedings or consideration they deem necessary.
I also have a concern about the references in the amendments to the sheriff requesting information from the court where the accused resides. That court would not necessarily be the local court that would have jurisdiction over any complaint or indictment—jurisdiction follows the locus of the offence, not the residence of the accused—so the information would not be available. As such, if the information sought by the sheriff concerned the accused’s previous offending or was about whether there was a particular problem in a localised area, the amendments would not be guaranteed to assist, as the local court where the offending was alleged to have occurred might not be in the sheriffdom where the accused lives.
However, to come back to where I started, I note that all that information is already available to sheriffs through material that they have or existing avenues that they can access. Therefore, the addition of the provisions would only add unnecessary confusion to an established process that is working in practice.
The purpose of national jurisdiction, which has been working well for five years, is to ensure that custody hearings can be dealt with swiftly. I strengthened provision at stage 2 to address concerns over the ability of courts sitting with national jurisdiction to sentence in summary cases following an accused’s failure to appear after trial.
National jurisdiction does not undermine the principle of local justice, which is an important part of our justice system. It enhances the existing framework for dealing with custody hearings, and it remains the case that national jurisdiction cannot extend to trial hearings. I ask members to support my amendments, which provide a proportionate solution to a practical issue raised by justice agencies, and to reject other amendments in the group, which are unnecessary.
I move amendment 4.
I call Katy Clark to speak to amendment 64 and other amendments in the group.
I will speak to my amendments 64 and 65. The bill will allow national jurisdiction in custody cases. It will allow individuals to appear from custody away from their local area and the part of the country where the alleged offence took place. During stages 1 and 2, concerns were raised about the loss of the judge’s local knowledge of a community or an accused. Those issues were raised by the Law Society of Scotland and the criminal justice committee of the Sheriffs and Summary Sheriffs Association, although I note that the cabinet secretary has indicated today that those issues have not been raised during the time that the emergency legislation has been in place.
My amendments would encourage communication with the local court in national jurisdiction cases. I do not intend to move the amendments and press them to a vote, but I have noted carefully what the cabinet secretary has said. I hope that, in the operation of the legislation, maximum communication will be encouraged to ensure that the interests of justice are served.
Amendment 4 agreed to.
Amendments 5 to 8 moved—[Angela Constance]—and agreed to.
Amendments 64 and 65 not moved.
After section 8
That takes us to group 4, on amendment of indictment. Amendment 9, in the name of the cabinet secretary, is the only amendment in the group.
Part 1 of the bill seeks to modernise and enhance practice and procedure in the criminal courts to ensure that we have a justice system that is more efficient and is responsive to current demands.
Amendment 9 builds on that purpose and introduces a new mechanism to allow prosecutors, in certain circumstances, to seek to amend indictments to add additional charges against the accused. In correspondence to the Criminal Justice Committee last week, I set out in some detail the rationale behind amendment 9 and why it would bring important benefits to victims, witnesses and the accused.
Currently, once an indictment has been served, prosecutors cannot add substantive new charges to that indictment, other than those relating to the accused’s breach of bail or failure to appear at court.
However, there are other circumstances in which prosecutors might want to add further charges to an indictment after it has been served. For example, a complainer will sometimes, at a later date, disclose further offending by the accused. We know that, in abuse cases, disclosures can be staggered and delayed and that it can take complainers some time to be able to disclose the full extent of the abuse that they have suffered. Another circumstance is when additional complainers come forward after an indictment has been served. That can sometimes be triggered by awareness or publicity following the accused’s first appearance on the indictment, because court proceedings on the petition prior to that stage are held in private and cannot be reported in any detail.
When such circumstances arise, prosecutors currently have two options for how to proceed. First, they could seek to desert the current indictment and serve a fresh indictment that includes new charges on the accused. That would result in the trial diet fixed for the original indictment being lost and might also require an extension of the relevant time bars. That option can cause disruption, uncertainty and delay for victims, witnesses and the accused, who may be on remand.
The second option is to allow the existing indictment to proceed to trial and conclude without disruption, then to separately indict the accused for a second trial on the additional charge. Where Moorov, the doctrine of mutual corroboration, is relied upon, that might mean that one or more of the complainers from the first trial will have to give evidence again, the second time as a docket witness. That second trial could be a considerable time after the first and, in some circumstances, the accused might be remanded for longer. As a result, victims, witnesses and the accused would have to endure two trials, and many more months of involvement in criminal justice processes, before matters are finally concluded.
Both options would result in significant duplication of resources and effort, as well as causing considerable distress and disruption for those involved.
My amendment 9 will provide prosecutors with a third option by introducing a new procedure to allow them to amend the existing indictment by adding new charges. That will allow all the allegations against an accused to be tried together and would preserve any trial diet that has been fixed, avoiding delay for everyone involved, as long as certain conditions are met.
The first condition is that that the new charges must relate to conduct that was not known, and could not reasonably have been known, by the prosecutor at time of service of the indictment. That important safeguard ensures that the mechanism will be used only in specific circumstances and will not undermine the existing time limits that apply to prosecutors in preparing their case after an accused appears on petition.
The second condition is that the application is to be made as soon as reasonably practicable after the prosecutor becomes aware of the conduct and at least two months before the date fixed for any trial diet. That will ensure that sufficient notice is provided to the accused and is central to ensuring that, where possible, trial diets are preserved.
Amendment 9 seems eminently sensible, but concerns have been raised about a potential impact on disclosure—specifically whether, if the duty to disclose applies only from the point at which the amendment to the indictment is allowed, the defence’s ability to challenge that amendment might be curtailed, as well as the preparation time for the trial being limited. How does the cabinet secretary respond to that challenge?
I share the view that it is imperative to ensure that all parties, including the defence, have enough time to prepare. The purpose of the new provision is to preserve trial diets where possible, which can be done only if all parties have sufficient time to prepare. That is why we require applications to be made, ordinarily, at least two months before a trial. We have also included a further safeguard in allowing the court to grant the accused an adjournment, if that is needed.
I will not repeat my earlier remarks about the two conditions that have to be met before an application by the prosecution can be granted, but their purpose is to protect an accused’s interests, including by ensuring that prosecutors act as swiftly as possible so that the defence can prepare effectively. The practical effect of the conditions is that the prosecutor will have to satisfy the court that they are met in each application, and any information that is given in support of their application or requested by the court in that regard will be available to the defence, which will be able to request further information, should that be required, in order to consider their position on the application.
I appreciate that that was a long answer in response to a question on disclosure.
No other member has asked to speak. Do you have anything to add by way of winding up?
Just a wee bit, Presiding Officer, if you will bear with me. I will pick up where I left off.
I recognise that circumstances may arise after the two-month deadline, which is why provision is made that the court may consider, on special cause shown, an application that is made after that point.
Amendment 9 further provides that, unless the application is consented to by the accused, parties will have an opportunity to make representations on it. If the court considers that the conditions are fulfilled, it must grant the application, unless it considers that there is just cause not to do so.
It is important to state that amendment 9 does not give the Crown any new ability to prosecute accused persons for offences for which it could otherwise not do so. It is about modernising the way in which the Crown is able to bring about prosecutions, through streamlining procedure and ensuring a more trauma-informed approach. It will reduce churn in the court system by preserving the trial diet and avoiding delays.
I am grateful to justice partners who have been involved in the development of amendment 9. We have engaged widely, including with the Crown Office, the Scottish Courts and Tribunals Service, the Law Society of Scotland, the Faculty of Advocates, the Scottish Solicitors Bar Association and, of course, victim support organisations. I am pleased that the amendment has broad support. I urge the Parliament to take the opportunity that the bill provides us with to advance what is a new, trauma-informed solution to an existing issue, and to support my amendment.
I move amendment 9.
Thank you, cabinet secretary. I apologise for cutting you off.
Amendment 9 agreed to.
Section 11—Review oversight committee
Group 5 is on part 2 reviews: bodies involved with reviews. Amendment 10, in the name of the cabinet secretary, is grouped with amendments 11, 12, 22, 23, 25, 26, 28, 30 to 33, 36, 37, 52 and 54 to 57.
The amendments in this and the following groups relate to part 2 of the bill, covering domestic homicide and suicide reviews. Amendments 10 to 12 make changes to section 11(3), which lists those who can nominate individuals to be a member of the review oversight committee. They are reflective of our continued engagement to ensure that we have the correct representation on the review oversight committee for domestic homicide and suicide reviews.
15:15Amendment 10 adds the Risk Management Authority to the list of nominating bodies, reflecting feedback from the testing of the review model. Stakeholders said that the Risk Management Authority should be included, as its focus is to reduce the risk of serious harm posed by violent and sexual offending.
Amendment 12 will remove the Scottish Social Services Council as a nominating body because we agree that it is not the right organisation to represent social work on the committee. Its regulatory focus is on social work workforce standards, rather than on supporting and improving social work policy and practice.
To ensure that no gap is created in relation to social work representation, amendment 11 adds Social Work Scotland to the list of nominating bodies. That will ensure that there is a more appropriate social work representative on the oversight committee, given Social Work Scotland’s focus on supporting and improving the social work workforce, policy and practice. The inclusion has been endorsed by the Convention of Scottish Local Authorities and I consider that the amendment will strengthen the committee’s ability to translate learning from reviews into improvement in social work service—something that I am sure that we can all agree on and welcome.
Amendments 30 and 31 add the Risk Management Authority and Social Work Scotland to the list in section 20(5) to extend the duty to co-operate to them. That ensures consistency and the effective operation of the review model.
As Social Work Scotland is not a public authority, further amendments are necessary. Amendments 22, 23, 25, 26, 28, 32, 33, 36 and 37 make necessary changes in recognition of the addition of Social Work Scotland. Section 20 needs to be broadened beyond applying to public authorities. The term “designated core participant” is being used to convey that the organisations to which the duty applies are all key to the successful conduct of reviews.
Amendments 54 and 55 will add the Risk Management Authority and the Scottish Social Services Council to the list in paragraph 3(1) of the schedule so that an individual may not be appointed to hold a relevant office under the review model if the individual is or, within the year preceding the date on which the appointment is to take effect, has been a member, employee or appointee of those bodies.
That approach will ensure that those taking up the role of the review oversight committee chair, deputy chair or a case review panel chair are independent—a key point raised by stakeholders in the work to develop the review model. The approach is consistent with that for the other bodies that are covered by that provision.
Similarly, amendment 56 relates to the addition of Social Work Scotland to paragraph 3 of the schedule, but in that case it is about a person having been a director rather than a member, which reflects the structure of Social Work Scotland.
The amendments follow further engagement on the criteria for appointment to an office related to the review process. They are there fundamentally to ensure that there remains no conflict of interest.
Amendments 57 and 52 introduce an enabling power that will enable the Scottish ministers to modify the criteria, where necessary and evidenced, for disqualification from appointment to a position related to the domestic homicide and suicide review model.
That power is aligned with and will complement the existing powers to vary lists of persons in sections 11(5) and 20(6). It will, for example, allow an organisation to be added to the list in the schedule to reflect that organisation also being added to the list in section 11(3) and therefore avoid a potential conflict of interests. It will also allow changes to be made if, for example, Social Work Scotland, which is a non-statutory body, changes its name.
Any regulations would be made using the negative procedure, which is in line with the powers mentioned above. The Delegated Powers and Law Reform Committee indicated that it was content with that approach at stage 2 in relation to the existing comparable powers.
I move amendment 10.
No other member has asked to speak. Do you wish to add anything else, cabinet secretary?
No, thank you.
Amendment 10 agreed to.
Amendments 11 and 12 moved—[Angela Constance]—and agreed to.
Section 14—Notification of deaths
Group 6 is entitled, “Part 2 reviews: sift decisions (reasons and reconsiderations)”. Amendment 13, in the name of the cabinet secretary, is grouped with amendments 17, 18 and 46.
My amendments 18 and 13 will ensure that, in circumstances where new information is made available, the review oversight committee may reconsider a death where it had previously determined that a review would not be undertaken. Ministers would be able to do likewise where they had been asked by the committee to take the original decision. The benefits of the amendments are that they will introduce flexibility to the review process and the ability to ensure that cases can be reconsidered where further relevant information emerges after an initial decision not to hold a review. That will ensure that we put victims and their families at the very core of the review model.
The same process that is detailed in section 16 in relation to the initial determination as to whether to hold a review will apply. That means that the review oversight committee will be able to seek the Scottish ministers’ advice if necessary, and the Scottish ministers will retain the power to step in and overturn a decision not to carry out a review.
In recognition of the need for transparency, ministerial oversight and ensuring that families are kept informed, amendment 17 will strengthen the documentation of decisions not to proceed to review. We have listened and learned from the process that operates in Northern Ireland. Having a clear audit trail that adequately captures the reasons for decision making is clearly important and right. It will allow for further learning in relation to any issues or gaps in training, and it could also inform enhancements to the statutory guidance.
In the same vein of transparency, amendment 46 will expand the current requirement for a periodic report to detail reasons for the sift outcome under section 16(1)(b). The amendment will ensure that the report also covers the reasons for a determination under section 16(1)(a) that the committee is satisfied that a death is not reviewable. That will apply to both initial decisions and reconsiderations.
I thank the cabinet secretary for taking my intervention. I apologise—I was waiting for an opportune moment to break her flow.
Can the cabinet secretary confirm exactly what the process is for ensuring that families are kept appropriately informed of whether a review will happen? That is, appropriately, not set out clearly in the amendments, but we all understand that it is really important to keep families up to date.
I very much endorse the view that keeping families who are affected informed needs to be at the very heart of practice whether the decision is that a review will proceed or that it will not. It is important that that is covered in the statutory guidance that will be required to underpin practice and process. My officials have already begun those pivotal discussions with organisations that represent victims and families.
I move amendment 13.
No other member is looking to participate. Do you wish to add anything, cabinet secretary?
No, thank you.
Amendment 13 agreed to.
Group 7 is entitled “Part 2 reviews: the Police Investigations and Review Commissioner as a notifying body”. Amendment 14, in the name of the cabinet secretary, is grouped with amendments 15, 16, 19 to 21, 29, 48 and 53.
My amendment 14 adds the Police Investigations and Review Commissioner—the PIRC—as a notifying body under section 14(5) of the bill. This will require the PIRC to notify the review oversight committee of any death of which it is aware and believes to be reviewable.
This is an important addition that responds to a direct request from the PIRC that it be included, and it also recognises the unique nature of some of the cases that the PIRC and staff deal with, which fall outside traditional notification routes.
Since the PIRC does not currently share details of those cases with Scottish ministers or the directing policing body during investigations, including the PIRC within the bill is necessary in order to ensure a clear and direct route for the deaths to be notified.
This addition is also supported by Police Scotland, which has stated that the addition will help to strengthen the review model.
The inclusion of the PIRC will trigger the need for changes elsewhere in the bill, so amendments 19 to 21, 29, 48 and 53 ensure consistency across the bill and acknowledge the PIRC’s new role as a notifying body.
These amendments require the PIRC to be a party to the protocol under section 19 and subject to the duty to co-operate under section 20. The PIRC office will also be added to the list in paragraph 3 of the schedule, so that current and recent former commissioners and employees will not be able to apply for relevant offices under the bill, thereby avoiding conflicts of interest and helping to ensure independence within the review process. Various other minor consequential adjustments are also made.
Finally, amendments 15 and 16 make changes to section 15(4) to provide that, if one notifying body revokes its notification of a death as being reviewable but another has not done so, the review process under section 16 still proceeds. That will ensure that we can account for the possibility of differing views among notifying bodies and disapply in those circumstances the current requirement that any revocation of a notification halts further consideration of the death.
I move amendment 14.
Amendment 14 agreed to.
Section 15—Review of notification
Amendments 15 and 16 moved—[Angela Constance]—and agreed to.
Section 16—Determination as to whether to hold a review
Amendment 17 moved—[Angela Constance]—and agreed to.
After section 16A
Amendment 18 moved—[Angela Constance]—and agreed to.
Section 19—Protocol in relation to interaction with criminal investigations etc
Amendments 19 to 21 moved—[Angela Constance]—and agreed to.
Section 20—Duty on public authorities to co-operate
Amendments 22 and 23 moved—[Angela Constance]—and agreed to.
Group 8 is entitled: “Part 2 reviews: obtaining information about spent convictions”. Amendment 24, in the name of the cabinet secretary, is grouped with amendments 27, 34 and 35.
Following stage 2 of the bill, the Scottish Courts and Tribunals Service highlighted a barrier in relation to the sharing of information for review purposes. The issue related to review panels not being able to access information about spent convictions and alternatives to prosecution, which might be pertinent in relation to individuals involved in the abuse that led to a reviewable death.
Access to that information is important if we are to fully understand the circumstances surrounding such deaths. The case review panel needs to be able to establish the whole relevant history, which might sometimes go back many years. The absence of that information would diminish the ability to learn from the full circumstances and apply the lessons going forward. Importantly, a case review panel is not determining anybody’s legal rights and liabilities, so there is no direct impact on the person convicted from that information being disclosed to a review.
Amendments 24, 27, 34 and 35 will operate in conjunction with secondary legislation that will be introduced—specifically, an affirmative order under the Rehabilitation of Offenders Act 1974. Together, these amendments will enable this information about spent convictions to be obtained under section 20, through the duty to co-operate provisions, and section 21, relating to the provision of information, notwithstanding the fact that it would not be admissible in evidence in court.
I move amendment 24.
15:30Amendment 24 agreed to.
Amendments 25 to 33 moved—[Angela Constance]—and agreed to.
Section 21—Provision of information
Amendments 34 to 37 moved—[Angela Constance]—and agreed to.
Section 22—Reports on case reviews
Group 9 is entitled “Part 2 reviews: case review reports (sharing and anonymisation)”. Amendment 38, in the name of the cabinet secretary, is grouped with amendments 39 to 45 and 51.
My amendments in this group deal with two matters that relate to case review reports. First, as part of the review process, it is important that we are able to share reports with relevant bodies in confidence, where relevant and appropriate. To ensure that that is deliverable, amendment 38 will allow the chair of the review oversight committee and the chair of a case review panel to share draft review reports—in confidence and in accordance with the protocol that will be established under section 19—with
“any person ... whom the chair in question considers it appropriate”
in order to check the accuracy of such reports prior to finalisation. The material can be redacted or anonymised
“as the person considers appropriate”
and an extract from a report can be shared where that is all that is needed.
At the same time as sharing the draft reports, the chair in question must
“provide a copy”
of the material that is shared
“to the Scottish Ministers for information”.
Amendment 38 will ensure the accuracy of reports, which is essential, and it will allow for any necessary changes to be made in advance of finalisation.
Amendment 42 will enable the chair of the review oversight committee and the Scottish ministers to share approved review reports, or parts of them, with persons whom they deem to be appropriate. That is important in order to ensure that lessons are shared appropriately even if there are good reasons why the report cannot be published. If the review report includes unpublished material, sharing must follow the protocol that will be established under section 19, with options to redact or anonymise content. Recipients will have to keep such material confidential and not share it further. Any such sharing would therefore be done in a controlled and purposeful manner and could be done only in order to support learning that is aimed at safeguarding those who are affected by abusive domestic behaviour or promoting the wellbeing of victims.
Amendment 42 will strengthen the learning and accountability framework while ensuring adherence to the established protocol and protecting the privacy of those who are involved.
Secondly, in relation to the matter of anonymisation in published reports, amendments 40 and 41 are designed to strengthen the current safeguards. At present, the bill will prohibit the identification of any “living individual” in a published report unless they have consented to being identified. Following discussions with the Information Commissioner’s Office and experts in the information governance delivery group as part of the domestic homicide and suicide review task force, it has become evident that relying on consent as a lawful basis for identifying individuals in published reports is problematic.
My amendments will remove the possibility of giving consent to being identified. They will also modify the duty to prevent identification to one of taking “all reasonable steps to” prevent identification, and they will extend protections to living and deceased individuals.
In addition, amendment 41 will more specifically attach the anonymity requirement to those who need it. That is being done because a blanket approach to anonymity will no longer work now that the exception for consent is being removed. A blanket approach would prevent, for example, panel members from being able to identify themselves as the authors in the report that they produce, or the citation of a published author whose work has informed understandings of domestic abuse.
The amendments will ensure that review reports support learning and accountability without compromising privacy, safety or ethical standards. They also respond to concerns raised by the committee in its stage 1 report and reflect the evolving understanding of information governance in sensitive contexts.
In relation to deceased individuals, although data protection legislation applies only to the data of living individuals, there are strong ethical and practical reasons to treat the information of deceased persons in published reports with the same level of care as we treat the information of the living. That is why deceased individuals have been added under amendment 41.
In the light of these changes, amendment 40 will replace the current absolute duty in section 22(9) with a duty to take all reasonable measures to ensure that a person for whom anonymity is needed is not identifiable. The change acknowledges the unpredictable nature of indirect identification and aims to achieve a balance between transparency and privacy.
Finally, the remaining amendments in this group are technical. They adjust the structure of the bill, splitting section 22 into two, in recognition of the extra material that is being added to it.
I move amendment 38.
Amendment 38 agreed to.
Amendments 39 to 43 moved—[Angela Constance]—and agreed to.
Section 23—Requirement to respond to report recommendations
Amendment 44 moved—[Angela Constance]—and agreed to.
Section 24—Periodic reports
Amendments 45 and 46 moved—[Angela Constance]—and agreed to.
Group 10 is entitled “Part 2 reviews: periodic reports”. Amendment 47, in the name of the cabinet secretary, is grouped with amendment 49.
Amendment 49 will place a requirement on the Scottish ministers to consult with the chair of the review oversight committee, the deputy chair, the case review panel chairs and such other persons as ministers consider appropriate in the preparation of periodic reports. That will ensure that the periodic reports reflect the views of those operating the review model, and it is a response to the views of the domestic homicide and suicide review task force and stakeholders, who want to ensure the independence of the process.
Amendment 47 will broaden the information that is required to be included as part of the reporting requirements, so that the periodic reports will be guaranteed to include the number of notices that the Lord Advocate gives under section 18, which is about pausing, discontinuing or resuming a review, and any reasons that are given under section 18(3) in connection with those notices. That will provide further transparency about how the review process is operating.
I move amendment 47.
Amendment 47 agreed to.
Amendments 48 and 49 moved—[Angela Constance]—and agreed to.
Section 25—Guidance by the Scottish Ministers
Group 11 is entitled “Part 2 reviews: guidance”. Amendment 50, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 50 is a technical amendment that will ensure that the review oversight committee and any case review panel chairs who are appointed as part of the review infrastructure provide the Scottish ministers with
“such assistance as they reasonably request”
in the preparation of guidance on the functions of the review oversight committee and case review panels. That will ensure that the expertise and knowledge of the members of the review oversight committee and of case review panel chairs will inform the development and amendment of guidance, ensuring that it is always of the highest standard.
I move amendment 50.
[Made a request to intervene.]
I invite Elena Whitham to make a contribution.
I was just going to intervene on the cabinet secretary to ask whether it could be made clear in the statutory guidance that victims organisations such as Scottish Women’s Aid and others will be represented in the panels and on the committee.
I offer my apologies to Ms Whitham for not catching her intervention request on the screen in front of me.
I reassure her that my officials continue to meet Scottish Women’s Aid and did so most recently on 26 September. That meeting was around that very point—the importance of statutory guidance and ensuring that, at all times, we have the right people around the table to do the review, so that we get the right learning. I can give her that guarantee.
Amendment 50 agreed to.
Section 26—Regulation-making powers
Amendments 51 and 52 moved—[Angela Constance]—and agreed to.
Schedule—Domestic homicide and suicide reviews: public appointments
Amendments 53 to 57 moved—[Angela Constance]—and agreed to.
That concludes stage 3 consideration of amendments.
As members will be aware, the Presiding Officer is required under standing orders to decide whether or not, in her view, any provision of a bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. In the Presiding Officer’s view, no provision of the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.
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