The next item of business is stage 3 proceedings on the Criminal Justice (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. 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 on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group.
Section A1—Limitation on what enables search
We start with group 1. Amendment 5, in the name of the Cabinet Secretary for Justice, is grouped with amendments 7, 9, 13 to 15, 20, 23, 24, 28 and 31.
Amendments 5, 7, 9, 13 to 15, 20, 23, 24, 28 and 31 move part A1 from its place at the start of the bill to after section 56. That reflects the importance of part 1 of the bill and, in particular, the new single power of arrest in section 1.
Moving part A1 will also help to avoid any possible confusion that could arise if part 1 was renumbered. Section 1 contains the new power of arrest, which replaces the current power to detain suspects under section 14 of the Criminal Procedure (Scotland) Act 1995 and a mixture of common law and statutory powers to arrest people. If part A1 was not moved, section 1 would be renumbered as section 14. That would create scope for unnecessary confusion with the old power of detention under the 1995 act, which the bill will repeal.
The new arrest and custody regime that is set out in part 1 represents a very significant change in police powers. Every police officer in Scotland will receive extensive training before the bill comes into force. That will help to ensure a smooth transition to the new system. However, there is bound to be a period where police officers and others working in the criminal justice system will take time to get used to the new legislation. Moving part A1 to later in the bill will also reduce the possibility of confusion. It will ensure that the new single power of arrest will continue to be contained in section 1 of the bill.
I move amendment 5.
Amendment 5 agreed to.
Section B1—Cases involving removal of person
We move to group 2. Amendment 83, in the name of the cabinet secretary, is grouped with amendments 6 and 8.
Amendments were passed at stage 2 to implement the recommendations of the independent advisory group on stop and search, which was chaired by John Scott QC. The bill will introduce a new code of practice after a period of consultation. When that code of practice comes into effect, the current practice of non-statutory, or consensual, stop and search will end. From that point on, searches by the police of people not in police custody will be carried out only where there is a statutory authority or a warrant to do so.
I have been keen to build consensus on this important issue, and since stage 2 I have continued to engage with members of the Justice Committee. I thank members for the constructive way in which they have approached our discussions and I look forward to continuing that engagement as we consult on the draft code of practice.
To complement the provisions that were added at stage 2, I have lodged amendments to address two potential gaps in powers. Section B1 gives police the power to search a person before that person is transported under a statutory power or under warrant from one place to another. That search must be only for the purpose of making sure that the person does not have anything on them that could cause harm to that person or to any other person.
However, there are occasions on which a person may be transported voluntarily from one place to another. There is currently no statutory power to search such a person. Amendment 6 will therefore allow the police to search a person in very limited circumstances. Accordingly, as long as the person is to be or is being transported, and that transport is necessary with respect to that person’s care and protection, the police will have a limited power of search. The power of search is limited so that it can be used only for the purpose of making sure that the person does not have any item on them that could cause harm to themselves or to another. The power could be used, for example, in transporting a person with mental health issues from their home or from any other non-public place to a hospital.
Amendment 6 has been narrowly drafted to ensure that only those who are being genuinely transported for the purpose of ensuring their care can be searched, and even then only in circumstances to ensure their own safety and that of others.
Amendment 83 is a technical amendment. Amendment 8 addresses another potential gap in statutory search powers. Police officers are often involved in carrying out searches as a condition of entry to sports grounds and other premises or events. The bill as it stands would make that unlawful. Amendment 8 therefore allows the police to search people as a condition of entry at relevant premises and events. Again, that is limited, and it is only for the purposes of ensuring the health, safety or security of people there. That is subject to specific conditions so that the power to search is not too general.
The premises or event must be open to members of the public; entrance must be controlled by the occupier or organiser; the occupier or organiser must have imposed a condition of entry that the person consents to being searched; and the person must inform the constable that they consent to being searched.
I move amendment 83.
When I first read amendment 6, I was concerned that it seemed to be cast quite widely. I am therefore grateful for the cabinet secretary’s reassurances this afternoon. However, if someone is being voluntarily transported to hospital, they can surely voluntarily undergo a search. Amendment 6 could perhaps be more precise to make it absolutely clear that it relates to a very small set of specific circumstances.
On amendment 8, when I consulted experts at stage 2 there were mixed views as to whether an amendment would be required to provide for searches to be undertaken at the entrance to events and venues. I note that the equivalent provisions in the PACE—Police and Criminal Evidence Act 1984—codes in England and Wales are arguably tighter, specifying that an exception to the rules on consensual searches can be made where it
“applies to searches of persons entering sports grounds or other premises carried out with their consent given as a condition of entry”.
How often are the police currently involved in those activities? Would the cabinet secretary expect these powers to be used sparingly—for example, in the provision of the robust security that is required for high-profile events such as the Commonwealth games and the Ryder cup?
Does the cabinet secretary expect that the powers that are set out in amendment 8 would be used regularly at a local level—for example, for those who are entering pubs or nightclubs? After all, in Aberdeen we have seen the police undertake unannounced drugs tests at the doors of nightclubs against the wishes of some owners. Will that become the norm under amendment 8? We need assurances that the code of practice will set out when those powers should be used and that event organisers will always have the final say on whether the police turn up to conduct those searches.
Finally, will the use of searches at those events and venues be included in the figures that are reported by Police Scotland or the Scottish Police Authority so that the public can understand when those powers are being deployed and can be assured that they are being used responsibly?
15:15
It is admirable that the cabinet secretary is looking for consensus but I would like to hear a bit more about whether he feels that the powers and amendments will be sufficient to keep the public safe from harm.
I am particularly concerned about knife crime. During my early years as First Minister, there was an epidemic of knife crime in Scotland and far too many young people ended up as victims to that epidemic. Members might remember that it was a significant issue in the 2011 Scottish elections. As various people around the chamber tried in good faith to tackle that issue, they found themselves driven into more and more extreme positions on the penalties that might be proposed as a deterrent to knife crime. One of the turning points of the election was when the Labour policy was portrayed as wanting a long custodial sentence for anyone who was caught in the possession of any instrument whatsoever, even if it was a garden implement. I well remember that point in the election campaign.
My concern is that there is in my mind a strong correlation between the decline in knife crime in Scotland, and therefore the casualties and deaths resulting from knife crime, and the police’s use of stop and search powers.
In the report of the advisory group on stop and search, John Carnochan, a police officer who does nothing other than look for a range of ways to tackle the fundamental evils in society and who has elicited praise from all sides of the chamber on many occasions because of the various pioneering efforts that he has been engaged in, notes that non-statutory stop and search was appropriate for the time in which it was being deployed.
My question to the cabinet secretary follows. I would have liked to see the advisory group do far more analysis of the impact of stop and search on knife crime. Knife crime is mentioned three times in the advisory group’s report. In contrast, alcohol and drink is mentioned 16 times and it has an entire subsection to itself. I am concerned about the problems of underage drinking, drinking in society generally, and the various measures that have been brought forward to deal with that. I would love to see minimum pricing come in in this country to tackle that fundamental evil. However, I am really concerned to know whether stop and search powers have been effective in reducing knife crime and the number of deaths of young people in this country.
When the cabinet secretary is closing, I would like him to say whether he is absolutely satisfied that nothing in the change of powers will change the downward trajectory of knife crime in Scotland. We have seen much less use of stop and search in England in recent times and we are now seeing a rising level of knife crime in England and Wales. I want to be absolutely certain that everything that is being done is being done with that as the principal motivation.
Of course, members will be concerned about all sorts of other matters, but I am sure that no member will want to do anything other than make absolutely sure that the powers that will be available to the police will be the maximum necessary to ensure that knife crime continues to decline in Scotland. It is a great social evil, which consumed members’ attention so recently, and rightly so, because of the damage that it inflicted on communities and families across this country. We need the police to have the powers that will enable them to make certain that safety is uppermost.
My final point—
I must hurry you, Mr Salmond.
In that case, I will sit down.
I have a brief comment to lend the cabinet secretary my support for amendment 6. The amendment is a proportionate suggestion that will provide protection to the individual, to officers and to the wider public. Most important, it will be on a statutory footing and that is how I want to see all searches being undertaken.
At the beginning of Mr Salmond’s speech, I was a bit concerned to find myself agreeing with him. He managed to break the consensus after a while, so I got back to my normal position. I agree that it is important to be able to keep the public and police officers safe. Recently, we have seen some appalling incidents internationally, and there are circumstances in which powers have to be in place to keep the public safe. We will therefore support the Government on the matter.
First, I will deal with the points that Alison McInnes made. Amendment 6 is an attempt to address the matter in a proportionate way and protect the safety of the individual, police officers and members of the public, and it has been drafted in a specific way in order to fulfil that function. It will also be regulated by the code of practice that will be in operation, so there is an additional safeguard in how the provision will operate.
Alison McInnes also mentioned the matter that is covered by amendment 8. Part of the issue is that, as she identified, there are mixed views on the matter. We are making the statutory provision to ensure that there is absolute clarity in the area and that there can be no grey areas in the powers that the police have.
On how it will be included in the calculation of the detail that is held on stop and search, it should be kept in mind that the vast majority of searches at events and venues are conducted by people who are not police officers, such as event security officers. The aim is to ensure that, where the police are responsible for entrance to particular events, they have the power. As things stand, they would potentially not have the power in such circumstances.
Again, that area will be regulated by the code of practice when it is operated by the police, and we will look to see how it can be captured in the data that is to be taken forward overall in regulating stop and search.
I turn to the number of important points that Alex Salmond raised. I fully endorse his view about the need to ensure that the police have the necessary statutory powers to be able to undertake action that can help to reduce things such as knife crime. There is absolutely no doubt that, since 2006-07, there has been a dramatic reduction in the level of knife crime in Scotland overall. In particular, there has been a significant reduction in the west of Scotland, which has a correlation in that it has resulted in a significant reduction in the number of homicides.
Over the past few years, there has been a significant reduction in the amount of stop and search that Police Scotland has undertaken on a consensual, non-statutory basis. The statistics show that. There has been a significant drop-off over the past three years, and during that time knife crime has continued to decline. The key thing is to ensure that the police have the right statutory powers to intervene as and when they think it is appropriate to search someone, and to ensure that they are using the right type of intelligence for that purpose.
I am confident that, given the code of practice and the consideration that the advisory group gave to the matter, the police will have the necessary powers to allow them to continue that work, and to continue to ensure that we drive down knife crime and the problems that are associated with it.
I add that tackling knife crime goes much wider than stop and search. The no knives, better lives programme has been instrumental in our schools and local communities in changing attitudes around such crime, and the mentors in violence prevention programme has also been crucial in helping to change young people’s attitudes to carrying sharp weapons and other offensive weapons.
I am confident that the combination of different factors, through the statutory powers that the police will have and those additional measures, will allow us to continue to see a reduction in knife crime overall.
I accept that point, which is why I praised John Carnochan. However, one of the key aspects of reducing knife crime is preventing youngsters from carrying knives for protection because they believe that other youngsters will have them. Stop and search was extremely influential in giving people—almost—a guarantee that there would not be widespread carrying of knives because of the extensive use of stop and search. Perhaps the cabinet secretary will address that point.
I agree. A big part of the challenge in dealing with the issue around the stop and search provisions was tackling the issue of gang culture. That particularly pervaded parts of west central Scotland, where there was a culture that a person was part of a gang and it was expected that they should carry a weapon.
There is no doubt that some of the approaches that have been used around stop and search have assisted in helping to deal with that issue and reduce its incidence. However, the statutory powers that the police will have for searching people in those circumstances will allow them to continue to undertake that type of work on the basis of intelligence. The police will still have the scope to be able to do that, but they will do so on a statutory footing. Given the advisory group’s consideration of the issue and the fact that we have seen over the past three years a significant reduction in consensual, non-statutory stop and search being undertaken by the police, I am confident that we will continue to see a marked reduction in knife crime and in homicide in Scotland overall.
We want to ensure that the police have the necessary statutory powers to continue that work. I believe that the combination of the provisions that we are making for the police—the statutory powers and the code of practice, which will also be consulted on and which the Parliament will have an opportunity to consider—will allow us to ensure that the police continue to have the necessary powers.
Amendment 83 agreed to.
Amendments 6 and 7 moved—[Michael Matheson]—and agreed to.
After section B1
Amendment 8 moved—[Michael Matheson]—and agreed to.
Section C1—Duty to consider child’s best interests
Amendment 9 moved—[Michael Matheson]—and agreed to.
Before section D1
Before we move to group 3, I point out that we are very tight for time today.
Amendment 10, in the name of the cabinet secretary, is grouped with amendment 32.
At stage 2, an amendment was passed that would oblige the Scottish Police Authority to include stop and search data in its annual report. I agree that that information should be published, but I consider it more appropriate for there to be an obligation on Police Scotland to publish it than on the SPA. Amendment 10 will therefore impose a duty on Police Scotland to publish stop and search data annually, and amendment 32 will remove the provision that would place that duty on the SPA.
I move amendment 10.
As the cabinet secretary said, amendments 10 and 32 build on one of my successful stage 2 amendments. The bill as amended at stage 2 will require the SPA to provide an account of the use of stop and search in its annual report to Parliament. The cabinet secretary’s amendment 10 will break that link, and it will mean that the figures will not be reported directly to Parliament or even to the SPA; rather, the data will simply be published.
There have, of course, been numerous scandals surrounding data on stop and search—not least, the so-called consensual searches of under-12s. The national force told the BBC that more than 200 children had been searched in the six months after the instruction went out. Police chiefs subsequently revised that number down to 18, but then it went back up to 83, according to Her Majesty’s inspector of constabulary in Scotland.
The police reviewed and recategorised stop and search figures again and again, but still could not get them straight for either Parliament or the SPA, and that has caused police inspectors to declare that they have no confidence in the data. Given that record, does not the cabinet secretary think that there is merit in an accountability framework that encourages the SPA to scrutinise the figures before they are reported in turn to Parliament?
I have listened carefully to what Alison McInnes has had to say on this issue. I would, of course, expect the data that are published by Police Scotland to be fully considered before being placed in the public domain. However, it is appropriate that the body that is responsible for collating the data is the body that actually reports the information and makes it publicly available. There is absolutely no doubt that the SPA will want to scrutinise the information and might want to consider its accuracy, and I have no doubt that Parliament will also want to consider the information.
I am very conscious that if Police Scotland were to publish data that were then passed to the SPA, and the SPA subsequently changed the data, there would be members in here—as tends to be the case when it comes to debating issues around policing in Scotland—accusing the SPA of manipulating the data that Police Scotland had published. I therefore think that it is important that we ensure that the data that the police publish are as accurate as possible. I have no doubt that the SPA will want to scrutinise the data, and to to consider how accurate the information is and how it is used by the police to inform decisions that they make about future policy in such areas.
Amendment 10 agreed to.
Section D1—Provisions about possession of alcohol
We move to group 4. Amendment 11, in the name of Dr Elaine Murray, is grouped with amendments 12, 84, 1 and 2. I point out that if amendment 1 is agreed to, I cannot, because it would be pre-empted, call amendment 13, which has already been debated with group 1.
15:30
Queen’s counsel John Scott’s review of stop search by Police Scotland has largely been implemented by amendments at stage 2, as we have heard. However, Mr Scott felt that there needed to be further consultation on whether Police Scotland should have a statutory power to stop and search young people under 18 who may be in possession of alcohol. Therefore, the bill will enable Scottish ministers to make regulations to give police officers the statutory power to search under-18s for possession of alcohol if the consultation suggests that that would be desirable. The ability of ministers to make such regulations will lapse in two years if it is not used.
Some concern about the provision was expressed at stage 2: the Children and Young People’s Commissioner Scotland in particular was concerned that ministers were prejudging the consultation results and that any such regulations might inadvertently criminalise under-18s who are caught in possession of alcohol and result in inappropriately high numbers of under-18s being subjected to statutory stop and search. At stage 2, I suggested that a way around those concerns might be to make changes in the regulations on stop and search of under-18s for possession of alcohol subject to the super-affirmative procedure.
Amendments 11 and 12 have been drafted for me by the Government’s bill team, for which I thank the cabinet secretary. Amendment 11 specifies that, in addition to the public consultation, the chief constable, the Scottish Human Rights Commission and the Children and Young People’s Commissioner Scotland must receive a copy of proposed regulations, as should any other person whom the Government considers to be appropriate.
Amendment 12 requires that the Scottish Government, on laying any draft instrument before Parliament, must also make available its reasons for wanting to make regulations, as well as a summary of responses to the public consultation and the representations that have been made by the specified people to which a copy of the regulations were sent. That will ensure that Parliament is fully informed of any concerns about potential regulations on statutory stop and search for possession of alcohol before deciding whether to agree to them.
Alison McInnes’s amendment 84 is similar to my amendment. However, she does not specify that the Scottish Human Rights Commission and the Children and Young People’s Commissioner Scotland must receive a copy of the draft regulations. In that respect, my amendments are more robust. Her amendment would also require ministers to have regard to resolutions of Parliament and to committee reports made within 60 days of the instruments’ being laid. That is unnecessary, because ministers would be unable to pass the regulations without the recommendation of the Justice Committee—or appropriate committee—and Parliament’s agreement.
Amendment 1, in the name of Alison McInnes, would remove section D1, which will empower ministers to make regulations on stop and search of young people for the possession of alcohol. Therefore, if the consultation results were such that the police ought to have the power to stop and search young people and children for alcohol, primary legislation would be required to implement the consultation recommendations.
All the other recommendations of the Scott review are being implemented through legislation, so it seems to be sensible to provide in this bill the power to introduce regulations that might be suggested by further consultation.
Elaine Murray has made reference to the Scott review recommendations. Does she agree that it did not recommend that provision?
The Scott review did not recommend the provision, but it recommended consultation. Amendment 11 is a mechanism for taking forward the results of that consultation, if the results of the consultation come out in favour of stop and search for possession of alcohol.
I am afraid that we will not be supporting Alison McInnes’s amendments. Her amendment 2 is consequential on agreement to her amendment 1.
I move amendment 11.
I call Alison McInnes to speak to amendment 84 and the other amendments in the group.
As the cabinet secretary will be aware, although it is not an offence for children to be in possession of alcohol, officers have the power to confiscate it. Why, then, is the Government intent on paving the way for the creation of a search power in relation to an activity that is not illegal? That is a reckless and, to be frank, dangerous precedent for Parliament to set, and it risks a return to legitimising and normalising stop and search, which has been entirely discredited.
The case for creating search powers for alcohol has not yet been made. According to Dr Kath Murray, between June and August 2015, 90 per cent of underage alcohol detections resulted from statutory powers of search—powers that are available to the police. Just 7 per cent resulted from non-statutory searches.
John Scott QC’s review group did not request the provision. The majority of the group concluded that there is no gap. The Children and Young People’s Commissioner Scotland says that the approach is premature; Children 1st said that it could lead to the criminalisation of children.
Today, I am presenting members with two options. My preference is for members to back amendments 1 and 2, which would remove section D1 entirely. Secondary legislation should be used to establish comparatively minor details, but the creation of potentially sweeping police search powers is anything but minor, so it is no way to legislate for something so important. Despite the justice secretary’s assurances, every member should know that an order-making power leaves no real scope for proper parliamentary scrutiny and, as it stands, the creation of the new power of search for alcohol would be at the behest of just a few committee members.
Given our constituents’ experience of stop and search during the past two and a half years, members must surely recognise the need for both evidence and caution. The creation of new search powers must be the subject of in-depth consultation, keen democratic scrutiny and rigorous debate. That is why I ask members, if they do not back amendments 1 and 2, at least to support amendment 84, which would make the introduction of new search powers subject to the super-affirmative procedure.
If section D1 is unamended, there is a real risk that Parliament will allow our young people once again to be disproportionately targeted. They might once again be the subject of intrusive mass searches that contravene their human rights. If it is unamended, the section could allow the return by the back door of the discredited so-called consensual searches.
I am content to support amendments 11 and 12, which were lodged by Elaine Murray, and I thank her for lodging them. The amendments require that, as part of the existing requirement for consultation on any regulations allowing the search of children for alcohol, key stakeholders including the Commissioner for Children and Young People Scotland and the Scottish Human Rights Commission will be sent copies of draft regulations. In addition, they will require ministers, when laying such regulations in Parliament, to lay a statement that summarises the responses to the consultation and gives the reasons for making the regulations. Amendments 11 and 12 will ensure that the role of key stakeholders in the consultation process is enhanced, and that Parliament is fully informed of the consultation that we carry out, the responses that we receive and our reasons for laying the regulations. The regulations are, of course, already subject to affirmative procedure. I believe that the provisions in the amendments will further enhance their necessary parliamentary scrutiny.
Amendments 1 and 2, which were lodged by Alison McInnes, would delete section D1; that would remove the provisions that allow regulations to be laid. I cannot support those amendments. Section D1 does not pre-empt our consultation on whether there should be a power to search children for alcohol. I assure members that the purpose of the consultation will be to gather views on whether there is a need to legislate at all. We will also seek views on whether such a power would have any detrimental effects on children and/or their relationship with the police.
We will consult stakeholders, including John Scott QC and organisations that represent children’s interests, when we draft the consultation paper. If, after consultation, it was decided that such a power is necessary, I would wish to seek Parliament’s consent to introduce that power in a timely manner. The effect of amendments 1 and 2 would be that we would, if the consultation identified a gap in powers, have no legislative vehicle to address that. I therefore urge Alison McInnes not to move amendments 1 and 2.
Amendment 84, which was also lodged by Alison McInnes, overlaps Elaine Murray’s amendments 11 and 12 and duplicates several of their provisions. It also duplicates provisions that are already in the bill, regarding publication of proposed regulations. Amendment 84 could therefore result in unclear and potentially confusing legislation because of the way it overlaps with and duplicates existing provisions. In addition, it requires that a consultation on proposed regulations must last for 60 parliamentary sitting days, which would take to 100 the total number of sitting days that would be applicable to the regulations. That could result in a significant delay in our ability to act in abolishing consensual stop and search, should the consultation identify a gap in powers that needs to be filled before that can take place. I therefore urge Alison McInnes not to move amendment 84.
I will wind up very briefly on the issue of criminalising children. If it is considered after the consultation that regulations should be made, their purpose would not be to criminalise children. The criminals are the people who supply alcohol to children, not the children themselves.
My amendments provide the necessary degree of consultation and democratic accountability. I hope that Parliament will accept them.
Amendment 11 agreed to.
Amendment 12 moved—[Elaine Murray]—and agreed to.
Amendment 84 not moved.
Amendment 1 moved—[Alison McInnes].
I remind members that, if amendment 1 is agreed to, amendment 13 will be pre-empted.
The question is, that amendment 1 be agreed to. Are we all agreed?
Members: No.
There will be a division. I suspend the proceedings for five minutes to allow the division bell to be rung and members to return to the chamber.
15:41 Meeting suspended.
We move to the division on amendment 1.
For
Hume, Jim (South Scotland) (LD)
McInnes, Alison (North East Scotland) (LD)
Scott, Tavish (Shetland Islands) (LD)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pentland, John (Motherwell and Wishaw) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Cowdenbeath) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Finnie, John (Highlands and Islands) (Ind)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alison (Lothian) (Green)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 3, Against 103, Abstentions 4.
Amendment 1 disagreed to.
Amendment 13 moved—[Michael Matheson]—and agreed to.
Section E1—Matters as to effect of sections A1, B1 and D1
Amendment 2 not moved.
Amendment 14 moved—[Michael Matheson]—and agreed to.
Section F1—Meaning of constable etc
Amendment 15 moved—[Michael Matheson]—and agreed to.
Section G1—Contents of code of practice
That takes us to group 5. Amendment 16, in the name of the cabinet secretary, is grouped with amendments 17 to 19, 21, 22, 25 to 27, 29, 30 and 77.
This group comprises minor and technical amendments.
Amendments 16 to 19 are minor technical amendments to provisions that relate to the contents of the code of practice.
Amendments 21 and 22 are minor technical amendments to provisions that relate to reviews of the code of practice.
Amendments 25 and 26 make technical changes to the provision in the bill that adds the Police Investigations and Review Commissioner to the list of organisations that are to be consulted on the draft code of practice.
Amendment 27 is a minor amendment to provisions about consultation on the draft code of practice to allow consultation to begin as soon as possible.
Amendments 29 and 30 are minor technical amendments to the provisions that bring the code into effect.
Amendment 77 provides for technical reasons why the sections of the bill that relate to the code of practice will commence on the day after the bill receives royal assent.
I move amendment 16.
Amendment 16 agreed to.
Amendments 17 to 20 moved—[Michael Matheson]—and agreed to.
Section H1—Review of code of practice
Amendments 21 to 23 moved—[Michael Matheson]—and agreed to.
Section I1—Legal status of code of practice
Amendment 24 moved—[Michael Matheson]—and agreed to.
Section J1—Consultation on code of practice
Amendments 25 to 28 moved—[Michael Matheson]—and agreed to.
Section K1—Bringing code of practice into effect
Amendments 29 to 31 moved—[Michael Matheson]—and agreed to.
Section L1—Police powers of search: annual reporting
Amendment 32 moved—[Michael Matheson]—and agreed to.
Section 4—Arrested person to be taken to police station
We move to group 6. Amendment 33, in the name of the cabinet secretary, is grouped with amendments 34, 35, 37, 38, 53 and 79 to 81.
This group of amendments deals with the process by which the police can bring someone who is on bail back to court to have the person’s bail reviewed when the police suspect that they have broken or may break a bail condition.
Section 28 of the Criminal Procedure (Scotland) Act 1995 gives the police a power to arrest someone on suspicion that the person has broken or may break a bail condition. It also gives the police a power to continue the detention of someone whom they have arrested on some other basis if they come to suspect that the person has broken or may break a bail condition. In either case, section 28 of the 1995 act goes on to require the police to bring the person before a court for a bail review.
The Government’s intention now is that section 28 of the 1995 act should continue to operate as it presently does once the bill is passed and is in force. The approach that is being taken is slightly different from that which was set out in the bill as introduced. Therefore, amendment 79 removes the amendments that schedule 1 of the bill would have made to section 28 of the 1995 act, and amendments 80 and 81 put other amendments in their place.
Amendment 80 makes a series of amendments to the powers of arrest and detention under section 28 of the 1995 act to ensure consistency with the bill. New subsection (1ZA) will require officers who are not in uniform to produce identification when they arrest someone for breach of bail, just as section 2 of the bill will do in relation to arrests under section 1. New subsection (3A) of section 28 of the 1995 act will require a person who has been arrested for breach of bail to be released when they are no longer suspected of breaching bail, and proposed section 28(3B) of the 1995 act allows a person to be brought before a court for a bail review by television link.
Amendment 81 inserts a new section 28A into the 1995 act. That applies the protections in part 1 of the bill with modifications to people who have been arrested for breach of bail. It ensures the right to have intimation sent to a solicitor, and the protections in relation to child suspects will also apply to people who have been arrested for a breach of bail.
The other amendments in the group are minor changes to part 1 of the bill to explain its interaction with the section 28 process.
Amendment 33 would disapply the section 4 requirement to take an arrested person to a police station where the person was arrested for breach of bail but was then released under proposed section 28(3A) of the 1995 act because they were no longer suspected of breaching bail.
Amendments 34, 38, 35 and 37 are amendments to sections 7, 9, 11 and 12A of the bill to highlight the possibility of a suspect’s detention being continued under section 28(1A) of the 1995 act for the sake of bringing him before a court to have his bail reviewed.
Amendment 53 is a technical amendment to section 56 to recognise that section 28 of the 1995 act provides an alternative to section 18 of the bill as a statutory basis on which a person who has been arrested might be brought before a court.
I move amendment 33.
I am very happy to support the cabinet secretary’s amendments in group 6. Only last week in the Justice Committee, we heard a harrowing tale from someone about the effects of an offender who continually breached bail. What can the cabinet secretary do to ensure that, if we agree to the amendments, the courts will take breaches of bail more seriously?
It is, of course, important for the courts to be able to consider those matters at those particular times. One of the most important issues is that, when someone is in breach of bail, they are brought before the court quickly in order for it to come to a determination on the issues. However, I am sure that the member also respects the fact that it is a matter for the independent judiciary and sheriffs to determine what decisions they then make on the basis of the information that has been presented before them at a bail review hearing.
Amendment 33 agreed to.
Section 7—Authorisation for keeping in custody
Amendment 34 moved—[Michael Matheson]—and agreed to.
Section 11—12 hour limit: general rule
Amendment 35 moved—[Michael Matheson]—and agreed to.
Section 12A—Authorisation for keeping in custody beyond 12 hour limit
We move to group 7. Amendment 3, in the name of Alison McInnes, is grouped with amendments 36 and 4.
Amendment 36, in the cabinet secretary’s name, is a step in the right direction, but it does not go anywhere near far enough to protect children, nor does it make exceptions for other vulnerable people.
At stage 2, the cabinet secretary, presenting almost no evidence to the committee, extended the length of time for which someone could be kept in custody from 12 hours to 24 hours in certain circumstances. Amendments 3 and 4 in my name would ensure that children and vulnerable adults could not be held in custody for more than 12 hours.
When the committee took evidence at stage 1 it heard from the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission about the need for safeguards and the dangers of what at that stage was a 12-hour limit. I wrote to our witnesses after the cabinet secretary increased the limit to 24 hours and Tam Baillie replied, describing the change as excessive.
The Scottish Human Rights Commission told me that it is not aware of concrete evidence that a 24-hour detention period is necessary and described the lack of exemptions for vulnerable people as disappointing. Professor Alan Miller stressed that to comply with the European convention on human rights,
“justification must be on the basis of evidence, not anecdote.”
He said:
“The Commission is unaware of any evidence which suggested that prior to”
the introduction of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which quadrupled maximum detention periods,
“the police were systematically hampered in their efforts to investigate crime by the limits of the 6 hour detention period.”
If the Government opposes amendments 3 and 4 it will defy the Scottish Human Rights Commission and the children’s commissioner. It will also defy Lord Carloway’s recommendations, on which the bill is founded. It will deny the evidence; more important, it will deny the rights of children and vulnerable adults to be protected from heavy-handed police procedures.
I move amendment 3.
Amendments 3 and 4 would prevent any vulnerable adult or child suspect from being kept in custody for more than 12 hours. The Government is clear that the rights of such suspects must be protected and there are many measures in the bill to ensure that such people are not disadvantaged in the justice process.
However, setting a lower detention limit for children and vulnerable adults could prevent serious offences from being properly investigated and could place the public and vulnerable suspects at greater risk. Amendment 36, in my name, would instead increase the safeguards that must be in place before detention extensions can be granted for children.
It is vital that all offences can be properly investigated in the interests of justice, while protecting the rights of suspects. All constables will have a general duty to take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody. A test of necessity and proportionality must be satisfied whenever a sergeant makes an initial decision to keep a person in custody, an inspector carries out a six-hour custody review and an inspector decides whether to extend the detention limit from 12 to 24 hours. Those decision makers must be independent of the investigation.
The detention limit can be extended only if the investigation is being conducted diligently and expeditiously and relates to a serious, indictable offence. The safeguards will ensure that the initial 12-hour detention period and any 12-hour extension period cannot operate as blanket detention periods for any suspect.
More than 80 per cent of people are released within the first six hours. It has therefore been argued that the detention limit should be six hours, but Lord Carloway recognised that
“any timescales set must be sufficient to accommodate the effective investigation and prosecution of crime”,
and concluded:
“There is therefore little, if any, doubt that a six hour maximum is unrealistic in many ... cases.”
16:00It is necessary to hold some people beyond six hours. In a very small proportion of cases, it is also necessary to extend detention from 12 to 24 hours. Twenty-four hours is a low detention limit compared with many other jurisdictions, but I am satisfied that it is sufficient to ensure, for example, that vital interviews need not take place in the middle of the night and that police are able to examine certain crime scenes during daylight hours.
The bill recognises that children have needs that adults do not. It provides specific rights and support for children and creates an overarching duty on every constable to treat the need to safeguard and promote the wellbeing of the child as a primary consideration. That new duty ensures that the wellbeing of the child suspect will be a primary consideration in any decision to keep them in custody.
Police standard operating procedures further protect the rights of children and vulnerable adults who are in custody. They will be updated before the bill is implemented.
It is standard policy that children should be brought into custody at a police station only when it is unavoidable and that they should be kept in custody for as short a time as possible. Children are held past six hours only in a small number of cases.
Vulnerable adult suspects are also entitled to additional support to ensure that they can understand and communicate effectively with the police. The definition of “mental disorder” covers a very wide spectrum, but the vast majority of individuals with mental disorders are fit to remain in police custody and are fit to be interviewed. In urgent situations and after psychiatric assessment, there are mechanisms to remove an individual from police custody if it is necessary. The majority of vulnerable adult suspects will be released within six hours.
It is unfortunately the case that under-18s and vulnerable adults are sometimes suspected of very serious offences, including murder and rape. Police Scotland figures indicate that 27 children have been detained for murder and culpable homicide since June 2010. The interests of justice require that such offences should be fully investigated before it is decided whether to charge or release a suspect. There is nothing to suggest that serious offences that involve child or vulnerable adult suspects can be properly investigated in a shorter period than offences that involve other suspects.
A child suspect could be too exhausted, traumatised or drunk to be interviewed immediately. Some types of crime scene need to be examined during daylight hours, even if an initial arrest took place at night. Other people, such as an appropriate adult, may need to attend interviews. It may take time to assess what support is required for a suspect.
Alison McInnes’s amendments would mean that under-18s and vulnerable adult suspects in serious cases would have to be released after 12 hours, regardless of whether the offence had been fully investigated. Compressing such investigations into a shorter period would not be in the interests of justice, the victims or the suspects themselves.
An absolute 12-hour limit would create pressure to carry out interviews during the 12-hour period in circumstances that might not be wholly fair to the suspect, for example, late at night. That could place the suspect’s human rights at risk and lead to prosecutions failing in serious cases because evidence had been unfairly obtained.
We need to provide the right protections for children and vulnerable adults without jeopardising investigations that are necessary to protect the public. I believe that the bill already provides sufficient protection for vulnerable adult suspects.
I recognise the Children and Young People’s Commissioner’s views and his suggestion that the detention limit for under-18s should be 12 hours. Having considered the types of complex cases involved and the additional protections for under-18s, I am firmly of the view that the Scottish Government’s amendment 36 provides an appropriate balance. It will require at least a chief inspector to authorise custody extensions for under-18s. Occasionally, it will be necessary to extend custody periods for children, but I believe that that power needs very close scrutiny before it is used. Children’s organisations, including the Children and Young People’s Commissioner’s office, will have the opportunity to inform the guidance during the implementation of that provision.
I am afraid that I disagree with Alison McInnes that there was little evidence that a 24-hour detention period is necessary in some cases. We heard evidence from Police Scotland illustrating that, although that period is not required on many occasions, it is required occasionally. My colleague John Pentland submitted amendments at stage 2 that were similar to the Government’s amendment 36.
It is unfortunate that my colleague Graeme Pearson is not able to be here as he has commitments to a constituent. However, I discussed the issue with him, as he has 30-odd years’ experience in the police. He agreed with many of the points that the cabinet secretary has made. On occasion, a young person or vulnerable person might have to be kept in detention for more than 12 hours. The reference to a chief inspector deciding on whether that should happen when a person is under 18 is an appropriate safeguard, so we will support that.
I welcome the Scottish Government’s acceptance of something that it did not accept at stage 2, when it knocked back my amendment that would have introduced a requirement for supervisory oversight by someone unconnected with the case. That is to be welcomed.
That said, with regard to Elaine Murray’s comments, for many of the 30 years that Graeme Pearson spent in the police, he did not benefit from a six-hour detention period, let alone 12 hours of detention. We now have a 12-hour period, and I do not accept that that is proportionate for a child or vulnerable adult. Proportionality has been referred to a number of times, but the proposal is disproportionate. The cabinet secretary would be quite right to refer to two bodies that have been put in place to provide guidance to the Scottish Government—namely, the Scottish Human Rights Commission and the Children and Young People’s Commissioner. They are unequivocal on the issue. For those reasons, I will support my colleague Alison McInnes.
I echo Elaine Murray’s comments on the evidence that was put before the Justice Committee. We should remember that extensions beyond 12 hours are used in only a very small number of cases—at present, it is less than 0.5 per cent. The provisions are limited to serious offences.
We have moved beyond the position at stage 2 in respect of children. At stage 2, we talked about inspectors giving authorisation, but the Government now proposes that it should be chief inspectors. The chief inspector will have to satisfy themselves that the investigation is being conducted “diligently and expeditiously”, so it is not a blackguard’s charter.
In relation to children and vulnerable people generally, the bill is full of safeguards. Children have needs that adults do not, but the bill provides rights and support for children, underneath the overarching aim of safeguarding and promoting the wellbeing of the child. I simply do not accept the argument that there are no circumstances or serious cases in which a child should be detained beyond 12 hours. Those cases will, I hope, be few and far between, but the power should remain.
I support amendment 36, in the name of the cabinet secretary, which is proportionate and provides the necessary safeguards to protect children under the age of 18 in the rare circumstances in which they might be detained for in excess of 12 hours.
I remind members that, just a few years ago, the police managed with six hours of detention and that the fourfold increase is significant. It is pretty rich of the cabinet secretary to quote Lord Carloway, because he maintains that 12 hours is sufficient.
Members should also remember that the bill allows for investigative liberation, which seems to me to be a more appropriate way in which to deal with young people under difficult circumstances. I repeat that the Scottish Human Rights Commission and the Children and Young People’s Commissioner endorsed amendments 3 and 4. I am disappointed that the cabinet secretary has once again chosen to dismiss not only my arguments but their reasoned and principled pleas to protect children and vulnerable adults from intrusive and illiberal police custody procedures. He has once again chosen to reject a vital safeguard. I will press amendment 3.
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
Harvie, Patrick (Glasgow) (Green)
Hume, Jim (South Scotland) (LD)
Johnstone, Alison (Lothian) (Green)
McInnes, Alison (North East Scotland) (LD)
Wilson, John (Central Scotland) (Ind)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pentland, John (Motherwell and Wishaw) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rowley, Alex (Cowdenbeath) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 6, Against 103, Abstentions 0.
Amendment 3 disagreed to.
Amendments 36 and 37 moved—[Michael Matheson]—and agreed to.
Amendment 4 not moved.
Section 9—Custody review
Amendment 38 moved—[Michael Matheson]—and agreed to.
Section 14—Release on conditions
Group 8 is on investigative liberation: release on conditions. Amendment 39, in the name of Elaine Murray, is grouped with amendment 85.
Amendments 39 and 85 relate to the conditions that are imposed when a suspect is released while further investigation is carried out by the police. As introduced, the bill read as if those conditions related to how the further investigation was to be carried out rather than to the behaviour of the suspect during that period. At stage 2, I proposed amendments that would delete that reference and instead refer to the behaviour of the suspect on release—they could not, for example, obstruct the investigation or interfere with witnesses. The wording of my amendments was resisted by the Government, but the Government’s bill team has provided me with a form of words that implements my intention by including among the conditions that may be imposed on release not interfering with witnesses or evidence, for example.
The bill changes the point at which a person is described in Scots law as being arrested. Arrest will occur when the person is held by the police under investigation rather than when they are charged with an offence. That will bring Scots law into line with the law in the rest of the United Kingdom. I and other members of the Justice Committee had expressed concerns that the public and the media would not be aware of the changes, and that there would be a perception that, if someone was arrested, they had been charged. Of course, everyone is presumed innocent under the law until proved otherwise but, unfortunately, that does not stop some of the mud sticking.
At stage 2, I proposed an amendment that would have prohibited the police from releasing the names of persons who had been arrested but not charged, but it turns out that, because persons who are held by the police under investigation are now termed as having been arrested, the release of their names is now covered by the Contempt of Court Act 1981. Therefore, that amendment was unnecessary.
However, I also wanted to ensure that complainers and potential victims can be informed that the person who may have committed an offence against them has been released on investigative liberation. Amendment 85 would enable a police officer to disclose information relating to an alleged offence to persons against whom the alleged offence has been perpetrated or, in the case of a person who has been killed, to their family. Amendment 85 is a probing amendment, as such circumstances might already be covered. However, in light of the fact that an arrested person who has been released on investigative liberation is subject to the Contempt of Court Act 1981, I seek the cabinet secretary’s assurance that that would not prevent alleged victims from being informed that the person who may have committed an offence against them has been released on investigative liberation.
I move amendment 39.
I am happy to support Elaine Murray’s amendment 39. It is important that investigative liberation conditions are tailored to meet the needs of the particular investigation. Any condition should be both necessary and proportionate for the purposes of ensuring the proper conduct of that investigation.
Investigative liberation will be used when an offence is still under investigation and a person has not been and may never be officially accused. Therefore, it is particularly important to ensure that any condition that is imposed is necessary for the investigation and does not unduly impact on the individual’s private life. Elaine Murray’s amendment 39 preserves that important link to the needs of the investigation while also making it clear that investigative liberation conditions can be intended to prevent interference with witnesses or with evidence. I am grateful to her for lodging the amendment and I am happy to support it.
16:15Amendment 85 seeks to ensure the safety of alleged victims when a suspect is released on investigative liberation. I am sympathetic to the intention behind the amendment. Upholding the rights of alleged victims and ensuring their safety is crucial to ensuring a fair criminal justice system. That includes ensuring that, where they may be at risk, alleged victims are informed of a suspect’s release on investigative liberation and any relevant conditions.
Since stage 2, Scottish Government officials have met Police Scotland, the Crown Office, Scottish Women’s Aid and the advice, support, safety and information services together, or ASSIST, project in order to discuss the various aspects of victim notification that are required for undertakings and investigative liberation. The Crown Office and Police Scotland have provided reassurance that operational guidance will be produced regarding victim notification in those areas.
The Scottish Government has also set up an implementation group for part 1 of the bill. The group will include Police Scotland, the Crown Office, the Scottish Legal Aid Board and the Scottish Courts and Tribunals Service, with the first meeting due to take place on 16 December. The group will consider various aspects of the bill’s implementation, from staff training to updating guidance documents as a result of the bill. The Scottish Government also intends to invite other interested groups, including Scottish Women’s Aid, the ASSIST project, Barnardo’s Scotland, Children 1st and other stakeholders, to feed into the group with information and advice to assist the formulation of the guidance.
At stage 2, I was able to provide reassurance that Police Scotland would be updating its standard operating procedures to take account of the new provisions in the bill. The amendment that was agreed to at stage 2 that requires the Lord Advocate to produce a code of practice on investigative functions will also shape guidance in this area.
Consideration of how to adopt a consistent and proportionate approach to notification, bearing in mind existing arrangements that relate to the provision of information to alleged victims, will continue as part of the work to implement the provisions in the bill. I am content that amendment 85 is not required in order to ensure that appropriate information can be provided to those who may be at risk.
I ask Elaine Murray not to move amendment 85, but I am happy to support amendment 39.
I intend to press amendment 39. However, I am satisfied with the reassurances that we now have on the record with regard to the information that is provided to alleged victims, so I will not move amendment 85.
Amendment 39 agreed to.
After section 17
Amendment 85 not moved.
Section 20—Release on undertaking
Group 9 concerns the rank and independence of a constable required to take certain decisions. Amendment 40, in the name of the cabinet secretary, is grouped with amendments 41, 42 and 45 to 50.
Amendments 41, 42 and 45 to 50 will ensure that important decisions to withhold or delay rights must be made by a constable who is of the rank of sergeant or above and who is independent of the investigation.
Chapters 4 and 5 of part 1 confer crucial rights on suspects, including, among others, the right to have a solicitor present during interview, the right to have someone else informed that they are in custody and the right to a private consultation with a solicitor at any time. There are also key provisions about access to persons under 18 who are held in police custody. There will be exceptional circumstances in which those rights cannot be delivered or need to be delayed. The bill already sets very demanding tests before that can happen.
I said at stage 2 that I would also consider raising the rank of constable required to make those decisions. I consider that raising the rank to at least that of sergeant will ensure that those decisions are made by constables with suitable rank, knowledge and expertise in custody-related matters. It will also be consistent with the role of sergeants in making initial decisions to keep people in custody. It would usually be during that initial authorisation process that any requests would be made to delay notifying solicitors or named persons, to interview without a solicitor being present or to restrict access to a person under 18 years of age.
The custody sergeant who makes the initial custody authorisation will be independent not only of the investigation but of the local policing division. I therefore consider that they would generally be best placed to consider those other rights-based decisions. The amendments set the minimum rank for those decisions. It will be open to Police Scotland to make more tailored provision in its standard operating procedures and to require officers of higher rank to make decisions in particular circumstances.
The code of practice on investigative functions to be issued by the Lord Advocate could also be used to provide the police with guidance relating to the interviewing of suspects, including the rare circumstances in which it may be permissible to interview without a solicitor present.
Amendment 40 is a minor drafting amendment to allow undertaking conditions to be set by a constable who is more senior than a sergeant. Currently, section 20 allows that to be done only by a sergeant and not by a constable of a higher rank.
I move amendment 40.
Amendment 40 agreed to.
Section 24—Right to have solicitor present
Amendments 41 and 42 moved—[Michael Matheson]—and agreed to.
Section 25—Consent to interview without solicitor
Group 10 is on minor consequential and drafting amendments. Amendment 43, in the name of the cabinet secretary, is grouped with amendments 51, 54 to 64, 74 to 76, 78 and 82.
Amendment 43 and the amendments with which it is grouped are minor and technical in nature. I will run through them briefly.
Amendment 43 changes the word “in” to “by” in section 25 for consistency with section 33.
Amendment 51 aligns the wording used in section 52A to describe the consequences of breaches of the code of practice on investigative functions with the wording in section I1 used in relation to breaches of the code of practice on searches.
In both cases, a court or tribunal in civil or criminal proceedings will be required to take into account any breach of the code when determining any question arising in the proceedings to which the code is relevant. The wording used to explain that in section I1 was carefully considered by John Scott’s independent advisory group on stop and search, and it is appropriate to take the same approach in relation to the code of practice on investigations.
Amendment 54 removes section 64 from the bill. Its job has now been done by the Courts Reform (Scotland) Act 2014.
Amendment 55 substitutes the word “heading” for “cross-heading”.
Amendments 56 and 57 remove references to stipendiary magistrates. That office will be abolished on 1 April next year when the relevant provisions in the Courts Reform (Scotland) Act 2014 come into force.
Amendment 58 adjusts the way in which a solemn court is described, for consistency with the approach elsewhere.
Amendments 59 to 64 make changes in consequence of the Courts Reform (Scotland) Act 2014, in particular by replacing references to the High Court that should now be references to the new Sheriff Appeal Court.
Amendments 74 to 76 cure some grammatical and stylistic errors in section 86, which were inadvertently introduced by amendments at stage 2.
Amendments 78 and 82 fix some cross-references in consequence of the moving of some provisions at stage 2.
I move amendment 43.
Amendment 43 agreed to.
Section 26—Questioning following arrest
Group 11 is on questioning following arrest. Amendment 44, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 44 is a technical amendment to clarify the position of questioning following arrest in section 26.
Section 26(2) provides that, where a person who has not been officially accused is in police custody, a constable may put questions to them in relation to the offence for which they are in custody. There is currently a common-law rule that limits police powers to interview a suspect about the offence for which they have been arrested.
At present, suspects are questioned while detained under section 14 of the Criminal Procedure (Scotland) Act 1995—section 14 detention—and are only arrested at the point of charge. Section 26(2) is intended to make it clear that, once section 14 detention is abolished and replaced with arrest under section 1 of the bill, it will still be possible for the police to interview someone who has not yet been charged. There was never any intention that section 26(2) would limit the power of the police to question a suspect in other circumstances or about other offences while in police custody.
Amendment 44 is intended to make it absolutely clear that section 26(2) removes only the common-law rule about interviewing people who have been arrested and does not otherwise limit the ability of the police to interview people. The police are already under a duty to ensure that all interviews are carried out in accordance with the protections in the bill, meet the common-law test of fairness and are also compliant with human rights obligations. Those rules ensure that interviews will not be unnecessarily long or oppressive in nature.
I move amendment 44.
Amendment 44 agreed to.
Section 30—Right to have intimation sent to other person
Amendments 45 and 46 moved—[Michael Matheson]—and agreed to.
Section 32—Right of under 18s to have access to other person
Amendment 47 moved—[Michael Matheson]—and agreed to.
Section 32A—Social work involvement in relation to under 18s
Amendment 48 moved—[Michael Matheson]—and agreed to.
Section 36—Right to consultation with solicitor
Amendments 49 and 50 moved—[Michael Matheson]—and agreed to.
Section 52A—Code of practice about investigative functions
Amendment 51 moved—[Michael Matheson]—and agreed to.
Section 53A—Further provision about application of Part
Group 12 is on power to modify application of part 1. Amendment 52, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 52 is a technical amendment to a power added to the bill at stage 2. It will allow the provisions in part 1 to be disapplied or to be modified as they apply to persons who are arrested on a basis other than section 1 of the bill.
Section 1 creates a new single power for the police to arrest a person without a warrant on suspicion that the person has committed an offence. It will replace a mixture of common-law and specific statutory powers to arrest on suspicion of an offence without a warrant. The rest of part 1 of the bill goes on to set out the procedures and consequences when someone is arrested.
The police also have powers to arrest in other circumstances. They can, for instance, arrest people under the authority of a warrant, and they also have some statutory powers to arrest without a warrant that do not relate to suspected offences.
Most of the part 1 provisions apply to all arrests, not just to arrests under section 1. The power in section 53A, which was added to the bill at stage 2, allows ministers to tailor the application of part 1 to cases in which a person has been arrested for a reason that does not relate to an offence.
16:30The point is that some of what part 1 says may need to be adjusted to make the bill work properly in those contexts. In some cases, it may be more appropriate to disapply it altogether. For example, if a witness is arrested under a warrant so that he or she can be brought to court, it would not make sense to have section 4 of the bill apply so that, instead of being taken straight to court, he or she is taken to the police station.
Section 53A, as added at stage 2, would allow part 1 to be disapplied or modified only in relation to people who are arrested otherwise than in relation to an offence. That may be too narrow. Amendment 52 will widen the power to cover other arrests that may be related to an offence but in relation to which it would not be appropriate to have the full set of part 1 provisions apply without some modification. One example might be where the court issues an arrest warrant solely to allow the police to take samples from an accused.
The amendment creates the flexibility to cater for such arrests and to disapply part 1 arrest provisions or to apply them with modifications.
I move amendment 52.
Amendment 52 agreed to.
Section 56—Meaning of police custody
Amendment 53 moved—[Michael Matheson]—and agreed to.
After section 56
Group 13 is on the age of criminal responsibility. Amendment 86, in the name of Alison McInnes, is grouped with amendment 91.
My amendment 86 would raise the age of criminal responsibility from eight to 12. My amendment 91 specifies that that would occur only at least 18 months after royal assent. That would provide ministers with time to make any additional changes that the current advisory group, which was set up following my amendment at stage 2, recommends through secondary or even primary legislation.
Increasing the age of criminal responsibility to 12 would bring it into line with the age of criminal prosecution and would reflect the wealth of evidence that children should not come into contact with the justice system any earlier. To suggest that children as young as eight can be deemed responsible for their actions is completely out of touch with our understanding of their capacity and maturity.
Children can still receive convictions that require to be declared for decades or even for the rest of their lives. How is curtailing their life chances in that way getting it right for every child? The law must change and prevent that destructive response. Instead, we must address the source of children’s disturbing behaviour, whether that is trauma, neglect, maltreatment or abuse.
Scotland has the lowest age of criminal responsibility in Europe. Tam Baillie, the Children and Young People’s Commissioner, was right to say that criminalising children as young as eight has “long tarnished” our international reputation. It has also led to Scotland being reported to the United Nations.
The UN Committee on the Rights of the Child has stated that 12 is the “absolute minimum” that it expects. The Scottish Government told the UN committee that it would “do the right thing” and increase the age in the current session of Parliament. The fact that we are still trailing so far behind international best practice should shame and embarrass each one of us.
The fact that the Scottish National Party Government is picking and choosing which human rights to uphold sends a dreadful message, and the fact that it is not using the powers that it has at Holyrood to prevent violations of international law undermines its bid to block the UK Government’s attempt to abolish the Human Rights Act 1998.
The Scottish Parliament is not just free to do things better; it is bound by its founding documents to act in accordance with human rights legislation.
The cabinet secretary will no doubt seek to persuade Parliament to oppose my amendments, citing the group that he has set up. That is too timid, and I urge him to confirm today that it is inconceivable that he or his advisory group would suggest an age lower than 12 for criminal responsibility. If he does not want to support my amendments today, he needs to set out a clear legislative timetable for ending this national disgrace.
I move amendment 86.
I sympathise with my Justice Committee colleague’s arguments. She rightly refers to the expert group that is considering the matter and is due to report in 2016. To clarify, under the age of eight, there is no legal capacity to commit a crime. Between the ages of eight and 12, a person cannot be prosecuted in the criminal courts.
There is an issue to be addressed here, but the Justice Committee did not take any evidence on it and it is far too substantial to deal with by way of amendment. Following the review, I hope that the Government will take cognisance and perhaps consider coming more into line with what we expect of other European countries.
As the member knows, my casting vote was against the amendment at stage 2 because there was insufficient evidence to support it. If there is sufficient evidence, I will be content to support it another time.
The thing I cannot understand is why in Scotland we have not already done this. We do not prosecute children who are under the age of 12 so why do we continue to consider children who are between the ages of 8 and 11 to be criminally responsible? As Alison McInnes said, Scots law is lagging behind much other good international practice.
Christine Grahame rightly said that the matter was not in the bill but this has been an issue for years and there is plenty evidence out there. It is time that we acted on that evidence and all that we have heard over the years. I urge members to support Alison McInnes.
I rise to support Alison McInnes. We do not need sympathy; we need action. We are told that we do not have evidence but, of course, we do have evidence in the advice of the children’s commissioner and the position of the UN.
The bill can be the vehicle for bringing us into line with everyone else and the 18 months that amendment 91 would afford would certainly give an opportunity to address all the other issues that would arise.
I have every sympathy with Alison McInnes’s intention but I do not think that the bill is the right way to go about it. We heard evidence in the committee from Professor Leverick and Tam Baillie, the children’s commissioner, that the bill is not the right place to do it. I am grateful that the cabinet secretary has set up a working group. There are important issues still to be considered, such as the interrelation with children’s hearings. It is unfinished business and we need to get on with it.
We have just heard classic Christine Grahame there. As she did with the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill and court closures she shows great sympathy but will slavishly follow the whips when they tell her what to do.
I welcome the opportunity to make a statement about a change to the minimum age of criminal responsibility. I thank Alison McInnes for lodging amendment 86.
Alison McInnes’s amendment was closely debated at stage 2. I make it clear that we are open to future change to the minimum age of criminal responsibility. Scotland has a proud record of promoting children’s rights, and it was this Government that raised the minimum age of prosecution to 12 years.
I acknowledge that the headline minimum age of criminal responsibility is damaging our standing as well as impacting on the life chances of young children. Amendment 86, however, does not address the policy or legislative and procedural implications of change, or offer any additional safeguards that might be required to respond to serious sexual or violent behaviour.
The advisory group, which I committed to establishing at stage 2, is up and running. Intensive work, focusing on disclosure, risk management, police powers, children’s hearings and victims’ issues, is under way. The issues are complex and the group is working at pace. The group meets next week and I expect to get an update before Christmas.
I understand that there is a strong commitment from all partners to addressing the underlying issues and the implications that would arise from a change. The plan is to make recommendations for consultation in early 2016.
This is a priority area and senior representatives from organisations that are responsible for children and how they interact with Scotland’s justice system are fully engaged in the process. They include the Children and Young People’s Commissioner Scotland, Together—Scotland’s alliance for children’s rights, Police Scotland and Victim Support Scotland. The terms of reference for the group and details of the membership have been published.
The responsible view to take here is that no change should be made to the minimum age of criminal responsibility without the implications of any proposed approach being properly co-produced, consulted on and scrutinised. The Children and Young People’s Commissioner for Scotland, Tam Baillie, has provided to all MSPs a briefing that confirms that, although he supports the sentiment behind Alison McInnes’s amendments, they run the risk of pre-empting the findings of the expert group and should not be supported.
Our intention is to publish a consultation in early 2016, once the advisory group’s report has been completed. The group is expected to report to ministers shortly after its meeting on 11 February. A change of this nature should be undertaken with full parliamentary involvement and scrutiny throughout all stages of primary legislation. I would strongly resist the temptation to support any amendment in respect of a change to the minimum age of criminal responsibility without having allowed the advisory group to complete its work.
Are you really telling the Parliament that it is possible that you, as justice secretary, would come back to the chamber and suggest that the age should be nine, 10 or 11? Really?
Could members speak through the chair, please?
We have set up an independent advisory group to come back to us with key recommendations on what the age should be so that we can then take the matter forward. The member will recall that we were the Government that raised the prosecution age to 12 years. It is right that, having set up the independent advisory group, we allow it to complete its work and provide a report. A full public consultation can then be undertaken. I urge the Parliament to ensure that we take the matter forward in that way, and to reject the amendments.
The cabinet secretary said that Scotland has a proud record on human rights—well, it does not on this subject.
It is interesting that an approach that the cabinet secretary endorsed earlier—relating to a suspended introduction to do with stop and search for alcohol—is suddenly not appropriate here.
I am grateful for the support of other members in the chamber this afternoon and, indeed, of Aberlour Child Care Trust. I acknowledge the deliberations of the working group and its examination of the practicalities, but they should not prevent us from making good on the minister’s promises to the UN.
I want to get to the bottom of this, so I wonder whether Alison McInnes could outline for me what consultation on the proposal has taken place and how we can make it cohesive with the rest of Government policy. That would help me to make up my mind. [Laughter.]
Order, please.
I have lost count of the number of times that this Parliament has discussed the subject and taken evidence on it. The SNP’s timidity on this is astonishing. [Interruption.]
Order, please. Order!
The cabinet secretary’s rhetoric seeks to conceal the fact that the SNP has been in power for eight years now and two major criminal justice bills have come and gone. It could have introduced dedicated primary legislation at any time to end the systematic violations of internationally recognised human rights. It has not been devoid of chances; it has been devoid of political will. If it had not been for my amendment at stage 2, there would not even be an advisory group.
The Government is failing to meet the demands of the UN Human Rights Committee but, more important, it is failing some of Scotland’s most vulnerable children. This is the last chance to change that in the current session of Parliament, and that is why I press amendment 86 and challenge the Government to finally put its efforts into ending this national shame.
The question is, that amendment 86 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Ind)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wilson, John (Central Scotland) (Ind)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fergusson, Alex (Galloway and West Dumfries) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McGrigor, Jamie (Highlands and Islands) (Con)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 40, Against 75, Abstentions 0.
Amendment 86 disagreed to.
Section 64—Citation of jurors
Amendment 54 moved—[Michael Matheson]—and agreed to.
16:45Section 67—First diets
Amendment 55 moved—[Michael Matheson]—and agreed to.
Section 73—Sentencing under the 1993 Act
Amendments 56 to 58 moved—[Michael Matheson]—and agreed to.
Section 76—Extending certain time limits: summary
Amendments 59 to 61 moved—[Michael Matheson]—and agreed to.
Section 80—Advocation in summary proceedings
Amendment 62 moved—[Michael Matheson]—and agreed to.
Section 81—Finality of appeal proceedings
Amendment 63 moved—[Michael Matheson]—and agreed to.
After section 81
Amendment 64 moved—[Michael Matheson]—and agreed to.
Section 82A—Duty to undertake a child and family impact assessment
We move to group 14 amendments, on children affected by parental imprisonment Amendment 87, in the name of Mary Fee, is grouped with amendments 88 and 89.
I start by thanking the Justice Committee for supporting my original amendment at stage 2 of the bill process. I also thank the Cabinet Secretary for Justice, the Minister for Children and Young People and their officials for the very constructive dialogue that has enabled us to reach the stage that we are at today.
Evidence shows that children and young people affected by the imprisonment of a parent are particularly at risk of negative outcomes such as stigma, bullying, trauma and mental health problems. That issue has been raised previously in Parliament and addressing it has received cross-party support. There are an estimated 27,000 children in Scotland with a parent in prison, but an estimate is the best that we can do at the moment, as we have no way of systematically collecting or recording information about those children. Until we can accurately identify them and the impact on them of a parent being imprisoned, their needs will not be properly taken into account by local authorities and other public bodies, and they will continue to slip through the net.
Amendment 88, in my name, would place a duty on Scottish ministers to ensure that all individuals sent to custody are asked to provide information about dependent children. If children were identified during that process, information would be passed to the child’s named person. There would be a presumption that having a parent in prison was a potential wellbeing concern, and the named person would ensure that such children had a wellbeing assessment. That would lead to any necessary support being provided, as appropriate, under the provisions in the Children and Young People (Scotland) Act 2014.
Amendment 88 sets out proposed links between the child wellbeing provisions in the Children and Young People (Scotland) Act 2014 and the needs of children affected by parental imprisonment. The intention of amendment 88 is to ensure that Scottish ministers start to identify and collect data on the number of children affected by parental imprisonment. Again, that is one of the key issues that we need to address in order to provide appropriate support to such children.
Amendment 89 sets out the definitions that underpin amendment 88, including clarifying that “penal institution” means any prison—other than a military prison or police cell—any remand centre or any young offenders institution.
Amendment 87 would remove my previous amendment, which would be redundant.
Too often, the voices of children are lost in a justice system geared towards adult offenders; and too often, those children will end up in the justice system. Amendment 88 would make huge progress towards ensuring that those children are identified, their voices are heard and their needs are met. Scotland has the chance to be world leading in recognising and acknowledging the children affected by parental imprisonment—the silent victims of crime.
Through the cross-party group on families affected by imprisonment, of which I am the convener, we have sought to raise awareness of those children’s needs. We have had useful meetings with ministers, professionals and Scottish Prison Service representatives; we have also heard from affected families. That has all helped to build a cross-party consensus that we must do more to support these children; they cannot remain, as Barnardo’s Scotland puts it, the hidden victims of crime. My amendments are an important step on that journey. I would urge all members to support them.
I move amendment 87.
I rise in support of amendment 87. I congratulate Mary Fee on not just her thorough submission to the Justice Committee, which I am sure persuaded the cabinet secretary to change his mind about certain things, but her support for families affected by imprisonment. The member has made a huge inroad into that area. I also congratulate her on making strong the link between the Children and Young People (Scotland) Act 2014 and this bill. I know that, at one time, the Government was relying on that act. The member’s amendments would ensure that the link is embedded in the legislation. I have huge regard for her for doing that and I support her amendments.
I, too, commend Mary Fee for her work in this area. The Scottish Liberal Democrats welcome her amendments, which would encourage the identification of the 27,000 children who experience parental imprisonment in Scotland and, where necessary, the provision of co-ordinated support. Nonetheless, I would be grateful if the cabinet secretary could tell me whether the process would include an assessment of the impact of imprisonment on any dependent children, because it would be important that this does not simply become a box-ticking exercise. Would there be robust guidance? For example, would there be a code of practice for all the professionals involved? Would the framework also include training for staff in prisons?
I thank Mary Fee for bringing to light this very important subject at stage 2. I thank her again for her patience as we have worked to find a solution to ensure that children who may be affected by the imprisonment of their parent are appropriately supported.
The amendments in group 14 seek to remove the original amendment lodged at committee and to replace it with a version that we know would deliver improved outcomes for any child whose parent is sent to prison.
Amendments 88 and 89 complement the existing provisions on named persons in part 4 of the Children and Young People (Scotland) Act 2014. The amendments seek to ensure that, when a person is imprisoned, information that they disclose about any child they parent can be shared with the child’s named person service provider.
The amendments will ensure that information provided will include the fact that the child’s parent is in prison, and any other information that may be relevant to the named person’s functions. That in turn will ensure that any wellbeing needs of a child with a parent in prison are properly assessed and that the child’s named person has the opportunity to consider whether any advice, information, support or services are necessary to help to promote, support and safeguard their wellbeing. That is consistent with the named person’s role under the 2014 act.
The amendments set out clearly how and when information should be passed and where the responsibility for that lies. I hope that members agree that, by working together, we have found an appropriate way forward that is in the best interests of children, and I hope that they will support the amendments.
I invite Mary Fee to wind up and indicate whether she intends to press or withdraw her amendment.
I will be brief. I thank again the members of the Justice Committee who supported me at stage 2 and allowed me to progress my amendments to this stage: Alison McInnes, John Finnie, Margaret Mitchell and Margaret McDougall. In addition, it would be remiss of me not to acknowledge the tremendous work that Nicki Wray from Barnardo’s has done to progress us to this point. Without her tenacity we would not be here today.
I am grateful for the supportive comments of members across the chamber today. I am happy to continue the very constructive dialogue with the cabinet secretary and his ministerial team as we progress the provision in the amendments and work on the guidance and how we roll it out.
Amendment 87 agreed to.
After section 82B
Group 15 is on support for vulnerable persons: appropriate adult services. Amendment 65, in the name of the cabinet secretary, is grouped with amendments 66 to 73.
Section 33 places a duty on the police to request support for vulnerable suspects in police custody in order to enable such individuals to understand what is happening and to communicate effectively. In practice, that support is delivered by people who are known as appropriate adults, who are specifically recruited for their communication skills, expertise and experience of working in the field of mental health. They are often social workers or health professionals.
The bill does not identify where responsibility for providing appropriate adults lies. When the bill was introduced, it was considered that the appropriate adult system was working well and that a light-touch approach should be adopted. However, the Justice Committee and various stakeholders have raised concerns about that, and about the accessibility and consistency of service provision, the exact remit of appropriate adults, and the funding for the service.
As I said at stage 2, I am sympathetic to the various issues that have been raised, which warrant serious and careful consideration. It is vital that we protect the interests of vulnerable persons, and it is clear to me that we need a new model to afford that protection to those who require it, and that the model must be sustainable over the long term.
At stage 2, I undertook to set out our proposed approach to addressing those issues at stage 3. Over the past two months, significant work has been undertaken, and in that time I have met Alison McInnes, who has a particular interest in the area, to discuss the progress that we have made to date.
A high-level options paper was issued on 24 September to those with a key interest at a national and local level, including Police Scotland, local authorities, the Mental Welfare Commission for Scotland and Social Work Scotland, to inform the development of options for appropriate adult service provision. The paper sought views on viable options for a new model in relation to service delivery, training, support and guidance, inspection and oversight.
Constructive meetings have taken place with Police Scotland, the Mental Welfare Commission, the Care Inspectorate and the Convention of Scottish Local Authorities, and consensus is developing around the key delivery and oversight functions for any new model. However, it is clear that further work and engagement is required to ensure that any model that is put in place is truly effective and sustainable.
Our position on the provision of appropriate adult services in Scotland is very clear. We want to resolve the issues that have been raised and put in place a sustainable model, and we understand that that work must take place promptly. However, getting the model right is absolutely vital, and it simply has not been possible to resolve all of the issues by stage 3. In particular, further discussions are required to fully address how the developing model will work in practice, what body or bodies are best placed to deliver the service, and how much it will cost.
It is crucial that we work collaboratively with those who deliver and utilise appropriate adult services, such as COSLA and Police Scotland, and I am determined to seek consensus if significant changes are to be made. To that end, the amendments in this group are designed to provide the flexibility that is required to put in place a new model once that vital work is complete.
Amendments 65 to 73 insert a package of regulation-making powers that will enable the Scottish ministers to place a duty on a person or persons to ensure adequate provision of appropriate adults; to provide robust oversight of any service, including assessing quality and making recommendations; and to provide effective training for those who actually deliver the service. The amendments also allow the scope of appropriate adult services to be revisited in the future, should that be necessary.
17:00The regulation-making powers are broad, but I consider that that is necessary in order to provide the flexibility for us to act once a new model for appropriate adult services has been developed and agreed. Reflecting the significance of the proposed powers, a public consultation will be required before any regulations are made, and they will be subject to the affirmative procedure so that Parliament is given a proper opportunity to consider the proposed model.
The issues that have been raised in this area have not been straightforward, and I am grateful for the constructive input from Police Scotland, the Scottish appropriate adult network, the Convention of Scottish Local Authorities, local authorities, the Law Society of Scotland, the Justice Committee and many others throughout the bill process. I have listened carefully to the concerns that have been raised, and I believe that the amendments that are being proposed today will allow us to take the necessary steps to put in place a sustainable model for the long-term delivery of appropriate adult services in Scotland.
I move amendment 65.
I raised the matter in a probing amendment at stage 2, and I am grateful that the cabinet secretary has engaged with me on the issue and has sought to address the concerns that I raised.
Lord Bonomy’s post-corroboration safeguards review recommended that the bill be amended to identify a body or organisation with the responsibility for ensuring the adequate provision of persons with appropriate skills or qualifications to provide support for vulnerable people in custody. It is important that we identify who is responsible for providing those crucial services, and I am grateful that the cabinet secretary agrees. The amendments will pave the way for regulations.
Can the cabinet secretary confirm whether the groups that will be trained will include appropriate interpreters for people who are deaf or hard of hearing?
I am grateful for Alison McInnes’s comments.
On Dennis Robertson’s specific point, it is important that we ensure that the needs of all individuals are appropriately met. That will include supporting those who require help with communication issues with, for example, the provision of sign language.
Amendment 65 agreed to.
Amendments 66 to 73 moved—[Michael Matheson]—and agreed to.
Amendments 88 and 89 moved—[Mary Fee]—and agreed to.
Section 86—Live television links
Amendments 74 to 76 moved—[Michael Matheson]—and agreed to.
After section 86A
That brings us to group 16, which is on the recovery of documents in sexual offences cases: legal representation. Amendment 90, in the name of Margaret Mitchell, is the only amendment in the group.
I thank Alison McInnes for her support for amendment 90, which seeks to ensure that legal aid is made available to victims of serious sexual assault or rape when the defence seeks to recover their confidential psychiatric, psychological and/or medical records.
The background to the amendment is as follows. In Scotland, when access to documents such as those records is sought in cases of sexual offences and other crimes, a petition for recovery of the documents is lodged. The haver of the documents, which could be the national health service or a general practitioner, is notified. The complainer or third party to whom the documents relate is also notified.
It is important to stress that such records are confidential between the medical profession and the patient and that it is well established that all patients have a right to privacy in relation to their records under article 8 of the European convention on human rights. There is a hearing to determine the application and, if the complainer or the haver of the documents wishes to oppose the application for recovery of the confidential records, the next stage is to instruct legal representation to represent their interests before the court at the hearing. That recognises that complainers have a right to be heard.
Although it is competent to take that approach in Scotland, it is not the usual practice for the victim in a criminal case to be legally represented at such application hearings. Rape Crisis Scotland, Scottish Women’s Aid and other support groups for victims of sexual crime and domestic abuse state that the reason for that is the lack of legal aid. I ask members to compare that with the situation in England and Wales, where legal aid is available to complainers on the basis that, were it not, the complainant’s right to privacy under article 8 could be infringed.
In England and Wales, the right to be heard has developed through case law and can be found in the Crown Prosecution Service’s guidelines. In Scotland, the argument has been advanced that the Crown Office will take into account the complainer’s situation and look out for his or her interests. However, as Roddy Campbell stated in committee at stage 2, the Crown represents the public interest, not the complainer’s personal interest. That is an important point and is why it is essential that legal aid be made available in such cases to allow the complainer to be represented. It is surely totally unacceptable that rape victims in Scotland whose case proceeds to prosecution will not have their right to be heard through legal representation protected unless they have the means to provide for that, whereas their counterparts in England and Wales have such a right.
The amendment would not require a change in the law; it would enact what already happens in practice. Crucially, it would allow access to justice and ensure that complainers in rape and violent sexual assault cases could enforce the right that they already have under article 8 of the ECHR. If the cabinet secretary and the Parliament genuinely want to improve conviction rates in such vexing serious sexual assault and rape cases, they will support the amendment.
I move amendment 90.
I declare an interest as a member of the Faculty of Advocates.
Margaret Mitchell referred to my comments at stage 2. Her comments about the distinction between the public interest and the complainer’s personal interest are right. However, this is a matter of principle and something that we need to get right.
At stage 2, we rejected an amendment that dealt with sexual history—for want of a better term—in relation to section 275 of the 1995 act, and amendment 90 is a kind of reformulation of that. Amendment 90 is important. I understand that the cabinet secretary has moved on since the Bonomy report, in so far as one of the matters that are being investigated is the history of such applications in practice. That research could certainly influence our view. It is also important to remember that Lord Bonomy made no recommendation on independent legal representation, so the matter is still in the air.
There is one point that the amendment does not really deal with. Margaret Mitchell referred to rape cases. The proposed amendment is to section 301A of the 1995 act, which simply refers to cases in the sheriff court, be they solemn or summary. That would not include rape cases, which can be heard only in the High Court. Therefore, the Government should not be happy to support the amendment.
Finally, there is the important issue of where the money would come from for all this, particularly at a time of considerable challenge to the legal aid budget and other demands on public resources.
In the past, I have resisted similar amendments—to the Victims and Witnesses (Scotland) Bill and to the Criminal Justice (Scotland) Bill at stage 2. To be honest, when I read the previous amendments, I was never quite certain how things would work in practice and whether we were talking about legal representation in court. The situation would become quite difficult if there was a legal representative of the victim in court, plus the Crown representing the public interest and somebody representing the defence.
Amendment 90 is a lot clearer than the previous amendments were about how it would operate. It is more explicit and a lot tighter in the matters that it deals with. The Government has written to committee members about research on sections 274 and 275 of the 1995 act, but the amendment is specifically about access to medical records that ought to be confidential to a victim who has been a patient. I know that the amendment has a lot of support from victims groups and Justice Scotland, which probably has a fair handle on the legal issues that are involved.
I am therefore inclined to support the amendment. We need to make progress on how we support victims of such offences and on addressing how their privacy is infringed or can be infringed at times. Enabling them to have legal advice on what may and may not be released could well be beneficial. After considerable discussion with many people over the past few days, we are inclined to support the amendment.
I support Margaret Mitchell’s amendment 90 and commend her for the sterling work that she has done to promote the needs of victims in such cases. I welcome the fact that, since stage 2, the Government has taken a tiny step forward on applications under sections 274 and 275. I appreciate that move, but it is not to be confused with what amendment 90 seeks to do. The amendment focuses on a clear anomaly, which has been addressed in England and Wales.
Like Margaret Mitchell, I am keen to right the situation that prevails, whereby a complainer in a rape or serious sexual assault case often has no voice in opposing an application for the release of their medical records. I stress that that is a pre-trial process, as Elaine Murray has acknowledged. The release of those records is of huge concern to women, as it is often used against them in an attempt to discredit their testimony, and I have no doubt that it is an inhibiting factor in people’s reluctance to come forward in the first place.
Our medical records are the most sensitive of private data, so a victim has a clear and unequivocal right to be heard. That right is bestowed by article 8 of the ECHR, and there is a right to be heard before the determination is made on whether to release the records.
As Margaret Mitchell said, the approach is competent in Scotland, but it does not happen in practice. That is only because legal aid is not available.
In this instance, the Crown does not and could not represent the victim’s interests. The Crown Office and Procurator Fiscal Service balances responsibility for a number of interests at that point, including the public interest, the complainer’s interest and the accused’s interest in a fair trial. The complainer cannot instruct the Crown to make their case and prosecute it properly for them.
I am disappointed to have heard Roddy Campbell ask where the money will come from. This is a human rights issue. Yet again, the Government talks a good game on human rights but fails to take action.
There is an opportunity to give justice to those who currently cannot afford it. The proposal is a small step and is perfectly competent. The locus is there, and I urge the cabinet secretary to support Margaret Mitchell.
17:15
Like all other members, I very much agree with supporting complainers in sexual offences cases. I am grateful to Margaret Mitchell for giving us the opportunity to consider the best way of doing so.
At stage 2, Margaret Mitchell sought to introduce a requirement for complainers to have access to legal advice and representation in sexual offences cases. I could not agree to such a major innovation in our criminal law, which at the time appeared untested. My concern was shared by the majority of members of the Justice Committee and Margaret Mitchell’s amendment was not agreed to.
Amendment 90 would provide for legal representation at an earlier stage, when medical and similar documentation was being sought, but it would have the same effect of introducing a third party into the court’s proceedings. That is still a major change. The High Court recently described
“the absence of any right of a victim, or relative of a deceased victim, to participate directly in the criminal process”
as a
“central tenet of criminal proceedings”.
I would be very concerned about sweeping away a central tenet of criminal proceedings at stage 3 of a bill, given that no evidence on such a significant change was taken at stage 1—or through any public consultation.
During his review, Lord Bonomy considered independent legal representation for complainers. Having done so, he did not recommend the introduction of such an approach in his final report, which had the support of his entire reference group, including Rape Crisis Scotland.
I recognise the need for more information. I recently advised the Justice Committee that we will take forward a research project on the use of the provisions that permit character and history evidence to be led, in restricted circumstances, in sexual offences trials.
I make it entirely clear that amendment 90 would add significantly to the costs of the legal aid fund. I am not convinced that paying to have more lawyers involved is the right answer; instead, the Government is strongly committed to providing the support that is needed directly and sensitively to victims.
In March, the First Minister announced an unprecedented additional £20 million to deliver a comprehensive package of measures to tackle and eradicate violence against women and girls. That will enhance support for victims of domestic abuse and sexual violence.
The funding is being targeted to areas that need it most. We have allocated £2.4 million each year over three years to reducing waiting times for domestic abuse and sexual offences cases. That will reduce the stress and inconvenience that witnesses experience as they wait for their cases to be called.
That is all very welcome, but is the cabinet secretary saying that women’s article 8 rights are not important?
No—I am not saying that. I am emphasising that we are undertaking a range of work to support victims of the crimes that we are talking about.
In September, I announced £1.85 million of additional resource to support victims of sex crimes across Scotland. That money means that Rape Crisis Scotland, in partnership with Scottish Women’s Aid and the Highland centre, can develop services to enable victims in Orkney and Shetland to access the specialist support that they need, which is not currently available. It will also almost double the current funding for each rape crisis centre in Scotland until 2018 and provide a dedicated advocacy worker in West Lothian.
The funding will ensure consistent provision of specialist services across the country. It will ensure that support is provided to the brave individuals who report crimes to the police, as well as those who might be considering reporting or who have been through the court process. We have allocated funding to the Edinburgh domestic abuse court service, to ASSIST—the advice, support, safety and information services together project—to Medics against Violence and to the mentors in violence prevention programme, and we have contributed to the advertising campaign for Police Scotland’s disclosure scheme for domestic abuse.
Work has started on focused action plans to address the structural inequalities in our society that are both a cause and a consequence of violence against women. The Government is absolutely committed to that agenda. I hope that that reassures members that we will continue to support complainers and victims in the sensitive cases that we are talking about.
However, it is important that we accept that relevant evidence should be put before a court. Our current laws set out a clear process for that. The compatibility of those arrangements with the European convention on human rights was recently considered by the courts. As recently as 24 November, a High Court judgment confirmed:
“we do not agree that the absence of any formal mechanism to place the views of a complainer before the court creates any incompatibility with her convention rights.”
The potential denial of evidence to an accused has not been examined in that way. We would have to consider the rights of accused persons carefully before reducing access to evidence that might properly exculpate them. The courts undertake that consideration and they are best placed to do so. We must not lose sight of the fact that the courts already have an obligation to prevent malicious and irrelevant use of character or history evidence.
Before making significant changes, we want evidence of what actually happens in court. I recently wrote to the Justice Committee to confirm that an exercise to monitor applications to lead character or history evidence will begin in the new year. Following that exercise, the Government that is elected in May can consider what additional research might be needed. That could include examining whether and why documents that were recovered under section 301A of the 1995 act were used in those applications. I consider that approach to be a better way forward than rushing today into a substantial reform that might have many unintended potential consequences.
I give the warning that amendment 90 would not achieve its basic aims. Among the problems that need to be addressed is the fundamental one that it would not apply to rape cases. Section 301A refers to proceedings in the sheriff and justice of the peace courts, but rape cases must be indicted in the High Court, so the amendment would not affect those cases at all.
I understand and sympathise with Margaret Mitchell’s intentions. However, her amendment would represent a major departure that has not been fully considered and which could have unhelpful consequences, so I ask her not to press her amendment.
Well, there we have it—now it is laid completely bare, Presiding Officer. By providing legal aid for such victims to be heard, we have an opportunity today to address gender issues, which the First Minister has made an absolute priority. The First Minister, the cabinet secretary and the whole Parliament must know that such medical records are damaging in these cases, but they are depriving the affected individuals of the right to be legally represented in order to have their view heard—that is not happening at present.
The cabinet secretary talked about the rights of the accused, which are for the court to decide. However, if amendment 90 was agreed to, at least victims of serious sexual assault would have the right to be heard—a fundamental right under article 8 of the European convention on human rights and one that is available in England and Wales.
Opposing the amendment makes a complete sham of all the rhetoric that we have heard in the Parliament about the Scottish Government, the First Minister and the justice secretary wanting to protect the rights of those victims of serious sexual crimes. It is laid bare today that the reason for the Government’s opposition to the amendment is nothing to do with third-party rights or any fundamental change that would be insurmountable; its opposition is about money. The Government is not prepared to put in money to support such victims.
I press amendment 90.
The question is—[Interruption.] Order, please.
The question is, that amendment 90 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Buchanan, Cameron (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Dugdale, Kezia (Lothian) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hilton, Cara (Dunfermline) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Macintosh, Ken (Eastwood) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Marra, Jenny (North East Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Allard, Christian (North East Scotland) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
Abstentions
Finnie, John (Highlands and Islands) (Ind)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alison (Lothian) (Green)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 50, Against 61, Abstentions 4.
Amendment 90 disagreed to.
Section 90—Commencement
Amendment 77 moved—[Michael Matheson]—and agreed to.
Amendment 91 not moved.
Schedule A1—Breach of liberation condition
Amendment 78 moved—[Michael Matheson]—and agreed to.
Schedule 1—Modifications in connection with Part 1
Amendments 79 to 82 moved—[Michael Matheson]—and agreed to.
That ends consideration of amendments.
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