The next item of business is a debate on motion S4M-15087, in the name of Michael Matheson, on the Criminal Justice (Scotland) Bill.
On a point of order, Presiding Officer. Given that the consideration of amendments has finished a lot sooner than expected, I wonder whether there is a possibility of bringing forward decision time to liberate members so that they can carry out their other duties thereafter.
Thank you. That matter is being considered and members will be advised in due course.
Members who wish to speak in the debate should press their request-to-speak buttons now.
17:27
I am delighted to open the stage 3 debate on the Criminal Justice (Scotland) Bill. As members are aware, the bill has had a unique passage through Parliament since it was introduced in June 2013. It was quite rightly subject to thorough scrutiny by the Justice Committee at stage 1. The committee undertook detailed and challenging evidence sessions and it is clear that its hard work has greatly helped to shape the content of the bill that is before us today. I extend my thanks to the clerks and all members of the committee, past and present, for their thoughtful examination of these important reforms. In addition, I thank the clerks and members of the Finance Committee and the Delegated Powers and Law Reform Committee for their knowledge and expertise in examining the relevant effects and provisions of the bill for those interests. I also pass on my thanks to my predecessor, Kenny MacAskill, whose passion and belief in bringing forward these significant reforms is to be commended.
The current content of the bill also owes a great deal to the work of four independent review groups. First, I thank Lord Carloway for his review of criminal law and practice. Many of the provisions in the bill have been developed from his recommendations. In particular, there are the reforms to modernise arrest and custody procedures.
It would be remiss of me not to mention the one important recommendation that we are no longer taking forward in the bill: the corroboration reforms. As I previously advised the Parliament, given the substantial and important nature of Lord Bonomy’s recommendations, the Scottish Government accepted that it was not appropriate for the reform to continue at this time. That was one of the key areas in which the Justice Committee significantly influenced the proposed legislation.
Although I realise that the Government has been criticised over how it handled the reform, I believe that our actions show that we listened to the committee and the evidence of the stakeholders at stage 1. That led to the decision to take forward Lord Bonomy’s post-corroboration additional safeguards review and, ultimately, to the postponing of the bill until that review reported.
As a member of the Justice Committee, I think that the abolition of the absolute requirement for corroboration had a place in the bill and I am sorry that it has not been taken forward. However, I look forward to the proposal returning in the next parliamentary session.
I recognise Christian Allard’s particular interest in the matter. It is not the first time that he has expressed concern about the removal of the corroboration provisions from the bill. However, I will set out the Government’s intention, which I hope will give him some confidence in our continued commitment in that area.
I again thank Lord Bonomy. We are continuing to consider his recommendations alongside other relevant reforms. The bill already includes a number of his recommendations: it places the prosecutorial test on a statutory footing and it requires codes of conduct to be issued to the police on the interviewing and identification of suspects. My initial view was that the latter provisions would be better considered as part of the wider consideration of Lord Bonomy’s review, but I have been persuaded in the interim that the addition of that requirement to the bill is helpful, and I thank Alison McInnes for lodging her amendment on that at stage 2.
Before I move on, I wish to make some further comments on the reform of corroboration. Although it was not possible to build a general consensus for the abolition of the corroboration rule at this time, I still consider that concerns about that rule—and, in particular, the very detrimental effect that it can have on people when the crime is committed in private—remain. On this day, we should not forget about the victims who have been affected by that legal requirement.
I am sure that the cabinet secretary would accept that most crimes are committed in private and that it would be impossible to select certain categories of crime in which one could abolish corroboration.
I am not disputing that point; I recognise the point that the member makes.
I understand that many members who opposed the reform of corroboration did not do so out of a lack of concern for such individuals. Indeed, as a Parliament we have shown that we are often united in standing up for the most vulnerable in society and leading the way on key issues. I hope that the work that we undertake in considering the Bonomy recommendations and other reforms will enable a future Parliament to consider and, I hope, find consensus for such an important change in our law.
The third review that led to a number of provisions in the bill was Sheriff Principal Bowen’s review of sheriff and jury procedure. The provisions in the bill that have been developed from his review will make improvements to the effective management of such cases, so I extend my thanks to Sheriff Principal Bowen for his work in that important area.
Finally, there was the most recent review of the use of stop and search. John Scott QC and his advisory group worked tirelessly to produce a thorough and balanced report. I again pass on my gratitude to John Scott and all the members of his group for their hard work, as it has enabled us to include detailed provisions in the bill.
I realise that I have been talking about the past and the extensive work that has brought us to this point, but it is equally important that we look to the future and the real and positive changes that the bill can bring about. The stop and search reforms complement the provisions that were already in part 1 of the bill. Part 1 clarifies powers of arrest by creating a new single power to arrest someone on suspicion of having committed an offence. It replaces a complicated mixture of common-law and statutory powers of arrest. The reforms bring greater clarity to the process of arresting and holding suspects in custody while ensuring that the police have the necessary powers to carry out their role in investigating and detecting crime.
I am always proud to pay tribute to the hard work of our police officers who are committed to protecting our communities and our country on a daily basis. The new legal framework will support them in continuing to do their job as effectively as possible. The bill also enhances the rights of suspects to legal advice. It is only fair that those individuals who are brought into police custody are fully informed about their legal rights, and all suspects will now have a right of access to a lawyer, regardless of whether they are to be interviewed. We will also shortly bring forward regulations to seek to remove legal aid contributions for police station advice.
However, it is clear that some people in police custody require even more protection to ensure that they are fairly and appropriately treated according to their needs. That is why the bill, building on the Carloway recommendations, includes specific provisions for vulnerable adult and child suspects. The bill includes, for example, the vital safeguard that where a person who is aged 16 or over is assessed as vulnerable owing to a mental disorder, they cannot be interviewed without a solicitor being present. The bill will also ensure that appropriate adult support is sought by the police to facilitate effective communication with such individuals. The bill strikes an appropriate balance in introducing additional protections for children while recognising the greater level of self-determination of 16 and 17-year-olds.
I want to recognise Mary Fee’s work on highlighting the important issue of children who are affected by parental imprisonment. Although the Government was unable to support her previous amendment at stage 2, we understood the positive intentions behind the proposed change. Our concerns were more specifically about how workable the exact amendment might be in practice. Since stage 2, we have given the matter serious consideration and I am delighted that we were able to support the revised provisions that Mary Fee brought forward today. I consider the change to be a constructive and positive step.
Part 2 and onwards contain a number of equally important and modernising reforms that should greatly benefit our justice system. I mentioned earlier that reforms in the bill take forward recommendations from Lord Carloway and Sheriff Principal Bowen to enhance efficiency for appeal procedures and sheriff court solemn cases. I consider that those reforms will have a positive effect on our court practices and procedures.
There are many other important reforms in the bill. Members will be aware of specific and devastating cases in which Scots have lost their lives because of knife crimes. Much progress has been made in recent years, with offences of handling offensive weapons down 67 per cent since 2006-07. However, we must continue to do all that we can to discourage individuals from carrying offensive weapons. That includes ensuring that our courts have sufficient powers to deal with individuals who continue to carry such weapons in public, despite being aware of the terrible consequences. I am pleased that Parliament supports our policy, expressed in the bill, to increase the maximum custodial term for carrying such offensive weapons, including knives, from four to five years.
If we are to continue to have a justice system to be proud of, we must ensure that our justice sector partners are not prevented from using the most appropriate technology. The provisions in the bill will assist in that aim, first by opening the door to the greater use of television links in our courts, including for people appearing from police custody, and secondly by giving our courts the power to make rules on the greater use of technology in criminal procedure.
The bill represents a significant step forward in ensuring that our criminal justice system continues to be modern and efficient and strikes the right balance.
I move,
That the Parliament agrees that the Criminal Justice (Scotland) Bill be passed.
17:38
As we have heard, the bill was introduced almost two and a half years ago, in June 2013. It has gone through a number of transformations in that period. It was brought to Parliament to implement many of the recommendations of Lord Carloway’s review of Scottish criminal law and practice, which was set up in 2010, following the Cadder case. As members know, after the Cadder case, emergency legislation had to be introduced in the form of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.
Lord Carloway’s review group made 76 recommendations, including recommendations on a new system of arrest and detention, avoiding unnecessarily long periods of detention and liberation subject to conditions while the police carry out further investigation. Recommendations were also made regarding suspects’ right to legal advice, the nature of police questioning and safeguards for children under 18 and vulnerable adults. Most controversially, the bill as drafted would have ended the requirement for corroboration in Scots law. That was accompanied by proposed changes in jury composition and jury majority. I think that some of that will be revisited with Michael McMahon’s bill—the Criminal Verdicts (Scotland) Bill—when it comes before the Justice Committee shortly.
The proposal to end the corroboration requirement caused many of us much deliberation in weighing up the potential benefits to victims of one-on-one crimes such as rape and domestic abuse, as more cases would be likely to be prosecuted, with other concerns, such as whether successful prosecution was any more likely, and the possibility of miscarriages of justice for individuals accused of other crimes on only one piece of evidence.
The bill was suspended after stage 1, which it narrowly passed, for Lord Bonomy to undertake a review of additional safeguards required if and when the requirement for corroboration was removed. While the current cabinet secretary understands the concerns that many of us had, I am afraid that his predecessor castigated us roundly for them at the end of the stage 1 debate. Although the present Cabinet Secretary for Justice probably disappointed some on his own side, he was correct to remove the parts of the bill relating to the removal of the requirement for corroboration to enable the remainder of the bill to continue its passage through Parliament.
The original bill contained other proposals that have since been taken forward by alternative means. Sections 83 and 84 of the original bill created two statutory aggravations relating to people trafficking. However, the issue of human trafficking was addressed through a much more robust, stand-alone human trafficking bill, the Human Trafficking and Exploitation (Scotland) Bill, which was based on a member’s bill proposed by my colleague Jenny Marra.
The original bill did not contain measures to change the terms of release of long-term prisoners, but the intention had been to introduce those as stage 2 amendments. When the bill’s progress was suspended after stage 1, the proposals were progressed through the Prisoners (Control of Release) (Scotland) Bill, which turned out to be much more controversial than had been expected. It is fortunate that the measures were not introduced as amendments at stage 2 and were subject to full scrutiny at stage 1 of the subsequent bill. That was an advantage of suspending the passage of the bill.
Despite those deletions, many of Lord Carloway’s recommendations remain in the bill as we considered it during its final stage today. On first consideration, committee members had concerns about the change in the use of the term “arrest” from what we were used to in Scotland, complex as that might have been. Instead of meaning that a suspect is charged with an offence, it means that a suspect will be arrested when they are questioned on suspicion by the police in connection with the offence.
We had concerns that the general public and the media would not be aware of the change in the use of the term and that persons who had been arrested would be assumed to have been charged. Although, in our legal system, everyone is innocent until proved guilty, some suspicion is unfortunately commonly still attached to individuals who have been arrested, as that term is commonly understood. It will be necessary to educate both the public and the media on what the change in use of the term means. In England and Wales where the term “arrest” has been used, I am afraid that I have often assumed that the person has been charged.
I was at my mother-in-law’s home one Christmas when there had been a terrible murder down south and an individual was arrested for questioning. The assumption seemed to be that the poor guy had been charged. He turned out to be innocent and was not charged; someone else had done it. In changing the use of the term “arrest”, we need to ensure that everybody understands what the term “arrest” means, so that suspicions are not cast on people who have not done anything.
Many concerns have been expressed recently about stop and search, and it is to be welcomed that most of the recommendations from John Scott’s review have been included in the bill.
At stage 2, Mary Fee was successful in introducing an amendment to ensure that a child and family impact assessment will be undertaken when a person is remanded in custody or imprisoned. That assessment will determine the likely impact of detention or imprisonment on dependent children and identify any support and assistance necessary for their wellbeing. The amendment is extremely welcome.
Committee convener Christine Grahame also introduced a stage 2 amendment, which has survived in the final form of the bill. She was concerned about changes that were brought about in the emergency legislation in 2010 that related to the relative powers of the Scottish Criminal Cases Review Commission and the High Court and which enabled the High Court to overrule decisions of the SCCRC and not accept cases referred to it.
A requirement on the Lord Advocate to publish the prosecutorial test—a statement on the general criteria that a prosecutor requires to be satisfied in order to proceed with criminal proceedings—was originally proposed as a safeguard if the requirement for corroboration was abolished. Despite the latter being dropped from the bill, the prosecutorial test was introduced nevertheless and I believe that it will provide a welcome understanding regarding how decisions to take a criminal case to court are made.
Lord Carloway also proposed that anyone under the age of 18 should be considered to be a child for the purposes of arrest, detention and questioning. That would accord with much of the legislation that we have recently passed. At stage 2, I lodged a number of amendments that would have introduced parity for anyone below the age of 18; some parts of the bill treat 16 and 17-year-olds differently from younger children, which is probably right. Children 1st was concerned about the fact that we had not changed every reference to 16-year-olds to 18-year-olds. Having heard the reasons for that, given the other legislation that has been passed, Children 1st, like me, is content that some things have to be introduced more gradually. The general intention to treat people aged under 18 as children has been accepted; indeed, it applies in much of the bill.
Children 1st was also concerned about the use of the term “wellbeing” of a child in the bill, which it considers to be less well understood than the more-often-used phrase “best interests”. However, I believe that it was less concerned on learning that there will be training for police officers and other professionals around the Children and Young People (Scotland) Act 2014 and this bill, to which it has offered to contribute.
The bill has travelled a long and rocky road and Scottish Labour members have expressed concerns about it and suggested improvements to it. Most of our concerns have been addressed and some of our suggestions have made it through to the bill’s final form, which we are very happy about. Unlike at stage 1, we will support the bill tonight.
17:46
This stage 3 debate on the Criminal Justice (Scotland) Bill presents the final opportunity to thank the many witnesses and stakeholders whose contributions have helped to shape the bill and to pay tribute to the work that the Justice Committee clerks have undertaken, together with members of the committee and the convener, at the various stages of the bill.
The bill before us this evening has taken over two years to reach its conclusion, having been introduced to the Parliament in the summer of 2013. It sought to implement recommendations from two expert reviews: Sheriff Principal Bowen’s review on sheriff and jury procedure and Lord Carloway’s review on criminal law and practice.
Since then, some of the original provisions relating to automatic early release and corroboration have been removed. It is fair to say that the debate on corroboration dominated the stage 1 proceedings and ultimately resulted in the postponement of the legislative process until the Bonomy review reported many months later. Although that delay was welcome, it undoubtedly came at the expense of effective scrutiny of the bill, given the huge time lapse between stage 1, stage 2 and today’s stage 3 proceedings.
However, among a number of reasonable and sensible provisions in the bill are changes to solemn procedure, the statutory requirement for out-of-court discussion between the prosecution and the defence and the increase in the maximum custodial sentence for handling offensive weapons from four to five years. The bill also allows for greater use of live television links between prisons and the courts and includes provisions to mitigate delays in progressing appeals. Those are practical provisions that have received cross-party support from the outset.
However, at stage 1, the Justice Committee expressed concern about the change in terminology to use the term “arrested” to describe suspects who are taken into custody for questioning but who are not charged, which risks unfairly stigmatising people who may simply be assisting the police with their inquiries. The terms “detained”, “arrested” and “charged” are well understood by the public, who, as the Justice Committee’s convener pointed out at stage 2, know that being detained is different from being arrested, even if they do not fully understand the procedural and legal distinctions between the two.
Furthermore, in its submission to the Justice Committee on the 2016-17 budget, Police Scotland highlighted the cost implications of the bill for the forthcoming year.
I am glad that the cabinet secretary has listened to some of the concerns that have been expressed, but I remain unconvinced about some of the proposals.
I turn to the subsequent additions to the bill at stage 2, in particular the provisions relating to stop and search, which have codified what became a controversial tactic employed by Police Scotland. Together with the associated public consultation, that will help to restore the public’s confidence in Scotland’s policing. It is only right to acknowledge Alison McInnes’s considerable efforts to put those changes on a statutory footing.
Mary Fee’s amendment at stage 2 was withdrawn and lodged again today to make reference to the named person. For the avoidance of doubt, the Conservatives, although we voted for that amendment, remain opposed to the universal application of the named person policy. However, we recognise that, if the named person policy goes ahead, it should be targeted at vulnerable children such as the children of people in custody or in prison. The amendment has the potential to make a significant difference to the unacceptably high number of children of prisoners who go on to offend and I congratulate Mary Fee on lodging it.
However, I rather fear that the bill will be remembered for all the wrong reasons: not just for the debacle over corroboration, but most decidedly for the opportunity that has been missed today to provide legal aid for a complainer in cases of serious sexual assault in Scotland to ensure that they are able to oppose an application for the release of their psychiatric, psychological and medical records. That amendment would have represented a small but hugely significant step for victims in sexual offence cases. The amendment would have addressed many injustices. It would have put victims in Scotland on an equal footing with victims in England and Wales; it would have addressed the age-long issue of medical records being misused to discredit victims; and it would have upheld those courageous individuals’ basic human right to privacy under article 8 of the European convention on human rights. The victims of rape and sexual assault bravely subject themselves to what is often a traumatic process and it is a travesty that an opportunity to help them to see justice served has been lost.
The Scottish Conservatives recognise that the bill has not had an easy passage and that it has posed a lot of difficulties for the Scottish Government. We voted against it at stage 1, but the subsequent changes and concessions that have been made since then—notwithstanding my huge disappointment and dismay at the failure of the legal representation and legal aid amendment—mean that my party will support the bill at decision time.
17:53
The final words of the introductory music to the Scandinavian crime noir, “The Bridge”, which is currently showing on BBC Four, are:
“everything goes back to the beginning.”
If we go back to the beginning of this process, we find a bill that sought to build on the Carloway report. Part 1 of the bill tackles the somewhat confusing statutory issues of detention and arrest, and Lord Carloway sought to create a modern approach to powers of arrest that initially confused the members of the Justice Committee. However, we finally got to grips with it, and that part of the bill now contains important provisions for suspects to have a right to legal advice at police stations. Rather importantly, it will also provide for the removal of legal aid contributions for that advice.
We touched earlier on issues relating to the length of time for which suspects can be held for questioning. We have indeed gone further than Lord Carloway recommended in his report. In our committee there were differing views, but in my view the position that we have now agreed strikes a reasonable balance. I say to Alison McInnes that I hope that the use of the powers to extend beyond 12 hours interrogation in the investigation of crimes involving children will indeed be very limited. Investigative liberation was recommended by Lord Carloway. It is a somewhat ungainly term for a new system of continuing an investigation. I suspect that it will quickly come to be used and the 28-day maximum period seems to be a reasonable balance.
Issues in relation to child and other vulnerable suspects occupied the committee for quite some time. There were understandable concerns about a proper balance between the right to investigate crime and the rights of children and vulnerable people. Whatever else, we must hope that the safeguards that are provided by the legislation are properly adhered to. While child impact assessments were a controversial amendment at stage 2, I am glad to hear that discussions between the Government, Mary Fee and children’s organisations have borne fruit and we were able to agree the amendments earlier this afternoon.
No discussion of the bill would be complete without referring to the C-word: corroboration. Lord Carloway’s initial recommendation to abolish the requirement for corroboration was and remains controversial. It evoked strong emotions from the committee members, in the chamber and throughout civic Scotland. The problem remains as to how to create a system that balances the rights of the accused with the victim’s rights and access to justice. That conundrum will remain for the new parliamentary session and we await the results of the further work that was carried out following Lord Bonomy’s recommendations. In particular, what will the results of jury research reveal? Will it impact on the views on jury majorities, for example? We are, however, embarking on the publication of a prosecutorial test and a code of practice in connection with the identification and interviewing of suspects.
The current cabinet secretary responded quickly to concerns about consensual stop and search. We were perhaps slow to follow the example of our southern neighbours in putting these matters on a formal basis, but they operate it in a slightly different culture. I am also mindful of the former First Minister’s earlier comments about knife crime. I do not quite understand the current position with regard to section 60 of the Criminal Justice and Public Order Act 1994, under which, when there is a reasonable belief that persons are carrying dangerous instruments or offensive weapons, the police can organise a search. That is to be covered by the code of practice; we await that with interest.
We also debated provisions for children’s possession of alcohol and consensual searching. Now that the Parliament has voted on that, we need to move on and accept the cabinet secretary’s assurances. We should also remember that the bill contains recommendations on sheriff and jury cases from Sheriff Bowen. They might be dry but they are nevertheless important.
You should draw to a close please.
I will leave the question of the Scottish Criminal Cases Review Commission and the interests of justice to my colleague Christine Grahame.
This important bill modernises Scotland’s criminal justice system, but it is certainly not the final word on the subject.
17:57
I am delighted to be able to take part in the stage 3 debate on the Criminal Justice (Scotland) Bill. I reiterate my thanks to Barnardo’s Scotland for its support and encouragement on the amendments that I lodged at stage 2, for bringing them through to today and seeing them passed at stage 3. I particularly thank Nicki Wray for her tireless work in progressing this important issue. I also offer my gratitude to the Scottish Government for working with me ahead of today’s debate to bring about what will be a substantial change for the children of imprisoned parents.
It will come as no surprise to members that I intend to focus my speech on the children and families who are affected by imprisonment. The amendments in my name that we agreed are a turning point for children and families who are affected by imprisonment in Scotland.
Children are often the forgotten victims of crime. Many witness the arrest and, in some cases, the crime that leads to the arrest. The children of prisoners face stigma, poorer educational outcomes, mental health problems and behavioural problems. Research shows that children who have a parent in prison are more likely than their peers to become incarcerated as adults. With the right support, we can prevent today’s children becoming the prisoners of the future.
The Scottish Government has a number of initiatives to reduce reoffending. In my view, my amendments are a step towards preventing offending.
I mentioned the stigma that is attached to imprisonment, and the Children and Young People’s Commissioner, Tam Baillie, in supporting what I seek to achieve through the amendments that we have agreed to, also referenced that. Research in the “Not Seen, Not Heard, Not Guilty” report by the commissioner shows that many children of prisoners find it difficult to ask for help.
Ahead of today’s stage 3 debate, I visited Perth prison, where I met a number of fathers who have been working with a parenting programme that is run in the prison by the thrive project. Funded by the Scottish Government, it is an excellent programme that needs to be rolled out across Scotland’s prison estate. The project, which is run by Barnardo’s and Enable, aims to identify families that are in need of support, create greater engagement with them and respond to the needs of both the adults and the children. The fathers spoke of the positive benefits that they see from the parenting programme, the positive effect that it can have on their children and the importance of the bonds that they want to have with their children when they are released.
One father spoke about how he never thought of his children when he was offending and said that he did not understand the impact that it could have on them until he was sentenced and the children started to visit. The father, who is working with the thrive project and the parenting programme, told me how hard it is for him to watch his young daughter cry as she leaves the visiting room, and he said that he never wants that to happen to him or his child again once he is released.
I am grateful to the fathers that I met for being so open and honest in the short time that I spent with them. Promoting positive family relationships is essential in criminal justice. It is a route out of prison and a tool to reduce reoffending, and it can help to tackle the inequality that we see in society.
Once the Criminal Justice (Scotland) Bill has been passed, I will be happy to work with the Scottish Government further to ensure that my amendments do what they are designed to do. We will soon know how many children in Scotland have a parent in prison, and with that information we can get it right for every child. I look forward to the day when children are no longer the forgotten victims of crime.
18:02
The Criminal Justice (Scotland) Bill is a wide-ranging and substantial bill. We need only to read its purposes to determine that. As others have said, it has had a long and tortuous journey. It was introduced to the Parliament in 2013 and, following the stage 1 debate in 2014, the Government narrowly won a majority to proceed, including on abolition of the requirement for corroboration.
I have long opposed that abolition, not because I wish the accused to be let off with a sexual assault or a rape or those who are accused of those crimes in particular to escape conviction, but to ensure that victims, with the requirement for corroboration, have enhanced prospects of a successful prosecution and conviction. It is not about people having their day in court; it is about people having their day in court and the accused being convicted and sentenced.
I note that we may return to the subject—perhaps in the next session of Parliament, depending on who is in government—and I hope that, at that time, we will take in a comprehensive review of other issues, such as the size of the jury, the jury majority and the three verdicts that are currently available, in the High Court in particular.
The second issue on which I was in disagreement with the Government is not the stuff of headlines, but it is of considerable relevance to the Scottish justice system. It is the role of the Scottish Criminal Cases Review Commission, which colleagues throughout the chamber have mentioned today.
Following the decision in the case of Cadder v Her Majesty’s Advocate in 2010, the Scottish Government introduced by way of emergency legislation the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. All three stages took place on one day, which is not a good way to legislate. The act reduced the power of the Scottish Criminal Cases Review Commission and increased the power of the High Court sitting as the court of appeal when the SCCRC referred cases to it.
Let me explain. Before the 2010 act, a referral from the SCCRC had to be accepted by the High Court, and if the appeal was successful, it had to grant the appeal. The 2010 act changed all that and made two radical changes. First, although the SCCRC will always have considered the interests of justice and whether there might have been a miscarriage of justice, the 2010 act endowed the High Court with the power to reject a referral, even before it heard any evidence, if in its view the referral was not in the interest of justice. Secondly, even if a referral passed that second test, the High Court still had the power, notwithstanding a successful appeal, not to grant the referral if it considered that it was not in the interests of justice.
Therefore, the High Court had a gatekeeping role over its own appellate procedures, and the 2010 act created two categories of appeal: those coming straight from the High Court to the appeal court, if successful, were successful, but if they came from the SCCRC, they might be successful but then not permitted or allowed. It is simply wrong to have two categories of appeal.
At stage 2, I moved an amendment successfully, by a majority against the Government, to take us back to pre-2010 rules and I am delighted that the Government has accepted the reasons behind that amendment. I think that order has been restored.
Therefore, I am personally delighted by what has happened regarding corroboration and the role of the SCCRC. It is a pity that Mr Findlay is not present in the chamber to hear that, as he boorishly accused me of somewhat falling to the Government’s whip. I put this quite simply for him: put that in your pipe and smoke it, Mr Findlay.
18:06
What a difference a couple of years makes. No other Government bill has taken this long to get through Parliament and no bill has undergone such a dramatic and crucial transformation.
At the stage 1 debate, the then Cabinet Secretary for Justice won the vote but lost the plot, attacking opponents of abolishing corroboration as a unionist cabal intent on
“selling out the victims of crime.”—[Official Report, 27 February 2014; c 28376.]
More worrying than that was that the justice secretary revealed his contempt for this Parliament by recklessly promoting what he knew by then to be seriously defective legislation. We know that he knew that, because he had belatedly and hurriedly appointed a 17-strong panel of distinguished minds who were expected to patch things up after the bill was passed. The newly appointed dean of the Faculty of Advocates described that approach as asking MSPs “to buy a pig in a poke.”
Let us not forget that 64 MSPs in this chamber, including the current Cabinet Secretary for Justice and the current First Minister, were happy to do just that. I think that that was a low point for this chamber and the Parliament because, whatever members’ views about corroboration, it became a matter of how Parliament legislates. As a business manager, I believed that our Parliament’s credibility was at stake.
In the absence of any willingness to remove the offending section of the bill, I took a different tack and urged the Government to put the whole bill on ice. Thankfully, at the 11th hour, the Government agreed to my request to suspend the bill, allowing time for Lord Bonomy’s corroboration review. His report not only vindicated that approach; his findings exposed the willingness of ministers to jeopardise the integrity of Scotland’s justice system on the basis of scant evidence and blithe assurances to this chamber.
As I said, what a difference two years makes: there is now cross-party support for the bill. Perhaps there is a wider lesson here for us on how our unicameral legislature operates, as more time between stage 1 and stage 2 for reflection and mature discussion can radically improve the quality of legislation. There is now a great deal to welcome in the bill. It will help to ensure that arrest and custody procedures are fairer, more transparent and compliant with the European convention on human rights. My successful stage 2 amendment means the introduction of codes of practice governing how the police identify suspects and conduct interviews, which is akin to the Police and Criminal Evidence Act 1984—PACE—codes that have existed in England and Wales for decades.
For months, ministers told Willie Rennie and me that they were comfortable with so-called consensual stop and search. I am therefore, of course, delighted that the Scottish Liberal Democrats’ campaign for its abolition will conclude today and that that discredited, intrusive and, frankly, illegal tactic will cease. It is a tactic that has damaged the relations between the police and the communities and young people they targeted; and it is a tactic that was dogged by scandal and deployed hundreds of thousands of times a year without justification.
I hope that the whole chamber will join me in thanking those who offered expert opinion and thoughtful, evidenced interventions on the issue, not least John Scott and Dr Kath Murray. However, it remains galling that the Scottish National Party Government’s reaction to Dr Murray’s landmark stop and search findings was to engineer a delay in their publication in an effort to pre-empt and discredit her research.
It is similarly worrying that the Parliament has paved the way for the creation of a search power for something that is not illegal—the possession of alcohol. Elsewhere in the bill, ministers have failed to protect children by permitting their being held in custody for 24 hours and shelving plans—for a third time—to raise the age of criminal responsibility. This Government speaks a lot about human rights, but its actions are timid.
Speaking of unfinished business, what next for corroboration? Irrespective the future of corroboration, Parliament must continually strive to improve reporting and conviction rates, particularly for sexual offences and other crimes that occur behind closed doors. Therefore, I am disappointed that the Government did not support amendment 90 in Margaret Mitchell’s name. The cabinet secretary is obstinate on the matter, but I can only conclude that he has been ill advised. There is no doubt that an individual has a locus on the narrow point, and the amendment was not about banning access to any medical records but merely about giving victims a voice at the time when those records are sought.
Lord Bonomy provides a starting point on measures that are worth while regardless of the future for corroboration. As I said, it is disappointing that we have not taken the opportunity to allow people to be represented in court.
Could you draw to a close, please?
Nevertheless, the Scottish Liberal Democrats will support the bill at decision time. We are proud to have been pivotal to the bill’s success by ensuring that the law better protects us all from miscarriages of justice and illegal police intrusions and that the integrity of our justice system remains intact.
Thank you. I ask that our next two members keep to their four minutes, please. I call Alex Salmond.
18:11
I welcome the opportunity to contribute, not least to defend Kenny MacAskill, who was a fine justice secretary. I say not just to Alison McInnes but to the whole chamber that the impact of the Salduz and Cadder rulings has brought into serious examination the issue of corroboration and whether it can be sustained, particularly in the matter of sexual offences. Of course, it is a subject to which this Parliament will have to return. To believe, as Alison McInnes seems to, that there is outstanding wisdom on the matter is entirely wrong. The issue will have to occupy this Parliament again. I am just commenting on the certainty with which Alison McInnes put forward her remarks.
I congratulate the current Cabinet Secretary for Justice. Even over a two-year period, it is no inconsiderable achievement to bring a criminal justice bill to a point of almost success, as he has done.
I hesitated to intrude into this reunion of the Justice Committee by making a speech, but I want to return to the subject of knife crime, not least because I want to make a point about John Carnochan, who I respect enormously. He is not an opponent but a supporter of moving stop and search from a non-statutory to a statutory basis. However, he has pointed out that non-statutory stop and search played a considerable role in the diminution and breaking of the knife culture, which had infected many parts of our communities in many areas of Scotland. It is to that issue that I want to devote some examination.
Alison McInnes said that the stop and search statistics were a scandal. The statistic keeping on stop and search was perhaps mistaken, unfortunate and inadequate, but it was not the scandal. The scandal was the level of knife crime, which resulted in the tragedies and deaths of young people. The achievement—what we should take pride in—through a range of initiatives, many of which John Carnochan was connected with, should be understood.
We have seen a situation where the total figures on the handling of an offensive weapon have reduced from 10,110 in 2006-07 to 3,795 in 2013-14. That is a spectacular reduction—not an elimination—of knife crime and other offensive weapons offences. That huge reduction is a massive achievement. People such as John Carnochan, his colleague Karyn McCluskey, and others from the Scottish violence reduction unit, as well as those from the no knives, better lives campaign—indeed, from the whole range of initiatives—deserve our thanks and congratulation. A part of that achievement was the stop and search tactic employed by the Scottish police service.
We should remember that, in England, over the past few years, there has been a substantial decline in stop and search statistics, both under section 1 of the Police and Criminal Evidence Act 1984 and section 60 of the Criminal Justice and Public Order Act 1994. However, in the past year, there has been a rise—of no less than 13 per cent—in the key statistic of knife crime. We should be extremely careful in dismissing whether there might not be a connection between those two changes.
We would make a fatal bargain if, in pursuit of finding an absolute certainty of how we conduct our operations, we did not acknowledge that our primary duty is to make absolutely sure, whatever else we do as far as the relevant part of the bill is concerned, that the decline in knife crime and therefore the decline in fatality and tragedy as a result of that crime is not in any way impeded. I am certain that this justice secretary will have that uppermost in his mind as he pursues the new statutory base for the policy.
I remind members that they should not turn their backs to the chair.
18:15
Section 1 of the bill is about the power of a constable and section 2 is about exercise of that power, which has been a key part of what we have discussed in the course of looking at the bill.
If I noted him correctly, the cabinet secretary talked about the complicated mixture of statutory and common law that the bill will address. One power that I fear may have been lost of those that surround stop and search is the power of discretion—indeed, there is a suggestion that discretion is not being exercised at all.
Some additional powers are being given. I was happy to support amendments 6 and 8 on transport of individuals and sports grounds respectively. I supported them because they were proportionate and have put searches on a statutory basis. I am very pleased that a code of practice will be put in place, and I am happy that the Police Investigations and Review Commissioner will be included in the list of people who will be consulted on that. That is important, because PIRC is one of the organisations that deal with complaints that arise from misuse of the powers. I hope that there will not be any such complaints.
Members have referred to the work of John Scott QC and his committee. The cabinet secretary described his report as “thorough and balanced”; I concur with that view. I also concur with my colleague Alison McInnes’s comments on Kath Murray’s excellent work. When I met Mr Scott, I was aware of the tensions that remain in the police service regarding uncertainty among junior officers. Those officers have used so-called—I still struggle with the term—consensual non-statutory stop and search. Lots of members have commented on the powers that constables have; they have common-law powers and statutory powers, but I was not aware that they have non-statutory consensual powers. That is the challenge. I acknowledge what Alex Salmond said, but there have always been common-law search powers. We should recognise that having everything on a more formal basis is perhaps the way ahead.
When I met Mr Scott, we talked about human rights. I am delighted that, as a result of an amendment that I lodged when we considered the bill that introduced the single police service, human rights is now part of the police oath. Mr Scott said—I think that he said it in his report; I hope that I quote him correctly—that police officers are the front-line defenders of the public’s human rights. That is important; the police should defend human rights with pride. It is also very important that the police recognise the power that they have to impact on individuals’ rights.
We have talked in the debate about the rights of children and young people. I share the disappointment that the advice of the Scottish Human Rights Commission and the Children and Young People’s Commissioner Scotland has not been taken on board.
I welcome some of the changes that have been made, particularly on supervisory oversight and the important decisions that are made about individuals’ liberty. Police Scotland will, of course, have its standard operating procedures, which I hope will accurately reflect the intent of the bill. The change regarding access to a lawyer is a very important development.
There is a lot to be said, but in the few minutes that I have left I want to quote the policy objectives, which say that the bill contains the
“next stage of essential reforms to the Scottish criminal justice system to enhance efficiency and bring the appropriate balance to the justice system so that rights are protected whilst ensuring effective access to justice for victims of crime.”
If we get individuals’ rights and victims’ rights correct, we will be doing no bad.
I am afraid that members have gone slightly over the time that has been allocated for the debate, so I would appreciate it if closing speakers could keep to their time or use slightly less.
18:19
The bill has indeed—to quote the justice secretary—“had a unique passage”. One point that is worth making at the outset is that, despite a number of controversies, huge swathes of the bill—large parts of the 100 or so sections—have gone through the process without any real change or controversy, and with all parties signing up to them at the first available opportunity.
The sections through which solemn procedure will be improved by facilitation of better preparation of sheriff and jury cases are to be welcomed. Also welcome are the sentencing aspects that have been touched on—in particular, the increase in the maximum sentence for carrying a knife or offensive weapon, and the provisions covering people who offend while on early release—and the appeals section, which addresses delays in determining a number of types of appeal. Those are large parts of the bill that have gone through the process fairly easily, so I am glad to see them go through today.
The biggest controversy—the subject that dominated stage 1—was the section that would have removed the general requirement for corroboration. It was certainly wrong at the time, but criticism of the Government can be levelled mostly because of the fact that, at that time, the Government appeared to be unwilling to listen to expert evidence and to opposition parties. The demeanour of a number of members of the Government and the governing party towards those who opposed them was deeply unwise. I therefore commend the current justice secretary for his very different approach and for, ultimately, deciding to delete that section at stage 2.
The proposal was probably a genuine attempt to address a weakness in the law, but the Justice Committee received weighty submissions that suggested that removing the requirement for corroboration would not increase the number of safe convictions, so it would not solve the problem that the Government wanted it to solve. At the same time, there were credible fears that its removal could lead to an increase in the number of miscarriages of justice. It would not have solved the problem that it was intended to solve and it could have created a new problem.
If the Government decides to reconsider the matter, it ought to be careful, because the complexities of removing the requirement for corroboration are enormous. The Bonomy review made it clear that if we were to do that—it had to assume that it was going to happen—we would need to make at least four changes in respect of suspect interviews, at least three changes in respect of the evidence of identification, three changes in respect of the code of practice, two changes to the prosecutorial test and four changes to the way in which juries operate. Probably most important—even though the review was told to assume that corroboration would no longer exist—is that it made the firm recommendation that the requirement for corroboration should be retained in relation to hearsay evidence and confession evidence.
In my final minute, I return to Margaret Mitchell’s amendment 90. Parliament and the Government ultimately rejected the amendment, as is their right, but the Government expressed some sympathy for it. There is a loophole whereby legal aid is not available to complainers who want to oppose applications to access their medical records. I say to the cabinet secretary—who will, I presume, close for the Government—that the Government has expressed sympathy for amendment 90 even though it rejected it. What, therefore, does the Government intend to do to right that injustice? Groups all around the country will be disappointed that the amendment was not agreed to, but they will be extremely keen to hear what the Government intends to do. Perhaps they will hear that in early course.
18:23
I assume that decision time will be brought forward. That is pleasing because after two or more years of considering the bill, I think that I might be running out of things to say about it. I will, however, do my best to fill the time.
I closed the stage 1 debate for Labour in February 2014, when my colleagues and I were told that we were selling out our principles and, indeed, that we had sold our souls. I am glad that today’s debate has been much more constructive, even when there has not been agreement.
One issue that has concerned members is the need to improve access to justice for victims of one-on-one crimes—in particular, crimes of sexual and domestic abuse. Much of the consideration of the requirement for corroboration concerned that issue. Today, Margaret Mitchell and Alison McInnes argued passionately in favour of introducing the right to legal representation for victims of sexual abuse when application is made to access their medical records. I know that both Justice Scotland and representatives of women’s organisations were supportive of the proposal, but the amendment was not agreed to. Nevertheless, I have recently become aware that the right is available to rape victims in England and Wales, so I think that we need to address the matter here.
I am pleased that the Government is doing research on sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 but, as I said in the recent debate on violence against women and girls, I hope that Parliament will, in the next session, return to gender-based violence with more comprehensive legislation.
Similarly, I am in favour of increasing the age of criminal responsibility from eight to 12 and hope that, in the next session of Parliament, that measure will be in a bill from its start so that it cannot just be glossed over.
Much as I respect our children’s commissioner, Tam Baillie, I am not able to agree with him on the powers in the bill to introduce stop and search of under 18s for alcohol. Those powers may not be used if the consultation suggests that they should not be. Even if they are used, the people who will be criminalised are the people over 18 who supply alcohol to young people. I hope that the children’s commissioner’s concerns will be discounted. It might be that the consultation will come out against stop and search in those circumstances, so we need to wait to see what will happen on that.
Mary Fee lodged important amendments on children and families who are affected by imprisonment, on which she is to be congratulated. As she said, children are often the forgotten victims of crime. She told us about how the stigma and related problems that young people can have result in it being more likely that they will become involved in the justice system themselves and perpetuate the cycle. I was interested in what she said about Perth prison and the thrive parenting programme for male offenders. It was also interesting to hear about the impact of a parent’s imprisonment on children and how it affects the offender. I can think of little that might be more valuable in the prevention of reoffending than making a parent aware of the effect that their offending has on their child.
Christine Grahame expressed the concerns that many of us had when it came to abolition of the requirement for corroboration and how and whether that issue will come back to us. That issue will not go away and extensive consultation on it will be required in the future.
I congratulate Christine Grahame on noticing the issues with the emergency legislation on the Cadder case. The High Court used to have to accept cases that the Scottish Criminal Cases Review Commission referred to it, but changes made through emergency legislation meant that the High Court might not accept successful cases. It is important that that situation has now been reversed.
Alison McInnes also referred to the corroboration debate and reminded us that the majority of the committee members had asked for the section on corroboration to be removed. She made an important point that lessons need to be learned from the passage of the bill. The way in which it has been improved through its extended passage perhaps provides us with some lessons that we could learn for future legislation.
Alex Salmond also referred to corroboration, but made an important point about knife crime, John Carnochan and the role of the violence reduction unit. Before any of us become too sanctimonious about it, we need to remember that it was my good friend Cathy Jamieson who implemented some of the measures that have been mentioned. They have resulted in a reduction in knife crime, so it is a question of not throwing the baby out with the bath water when good work has been done. We have been concerned about many of the effects of the increased use of stop and search, but that does not mean to say that stop and search never has a role or has no value.
It is important that John Finnie reminded us that there always were common-law powers of stop and search. Sometimes, there is great value in people who have police experience being members of Parliament, because they can remind us of such factors; I am grateful to him for doing that.
I thank the clerks and the witnesses for all their hard work with the committee at all stages of the bill over the extended period—two and a half years—that it has been going through Parliament.
18:29
I listened with interest to all the comments that were made and views that were expressed during the debate. I am conscious that a number of members who spoke have been involved with the process from its beginnings back in June 2013. The bill has probably been in the parliamentary process for the longest period of any bill in the Parliament’s history.
I will pick up on a few issues that members have raised. As she did at stage 2, Elaine Murray raised the important issue of the reporting on those who may be on investigative liberation, how that will be presented and how it can be portrayed. I recognise the concerns and anxieties that she expressed about how that might be presented as if someone had been arrested and charged. Someone who was on investigative liberation might not be or would never be charged with an offence. There is a piece of work to be done on education and promoting understanding of the difference that the bill will create among those in the media and in stakeholder groups that have an interest in the matter.
With the good will of the Parliament in passing the bill, the implementation group that has been established will be responsible for looking at specific media and press matters and at how the media and the press can help to promote understanding of the bill’s provisions. I expect the implementation group to consider what I recognise is an important issue that Elaine Murray has raised.
I turn briefly to the issue that Margaret Mitchell raised in her amendment 90, which was on legal representation for those in the court process and related to personal and detailed information. On several occasions, she has referred to provision in England and Wales that is not available in Scotland. I presume that she was referring to a particular High Court judgment on such an issue in England and Wales. That judgment was in a case that was brought by a complainer who sought legal aid to take action to prevent the disclosure of her confidential counselling records. Although the High Court correctly found in her favour, that was only on the extent to which her rights to exceptional public funding had not been properly considered by the director of legal aid casework.
The Legal Aid (Scotland) Act 1986 allows exceptional cases to be provided for in the same way as applied in the case that I presume that the member was referring to, which appears to be the only one on record in England and Wales in which a judgment was made in favour of the complainer. However, there is no requirement in either jurisdiction that makes legal aid provision necessary. The difference in Scotland is that we have not had a judgment on that. In England and Wales, there was a judgment, which said that the case had not been properly considered. That is different, but that is not to say that there is provision in England and Wales that is not available in Scotland.
Exceptional cases can be considered in Scotland in exactly the same way as in England and Wales. For accuracy, it is important that we do not get ourselves locked into the idea that there is a provision somewhere else in the United Kingdom that is being denied in Scotland, when the legal case that I referred to is clearly not as Margaret Mitchell presented it.
On the important issue of the imprisonment of parents, which Mary Fee raised, we have been able to get to a point of agreement in a constructive way. One of the main challenges for us as a country is putting the right provisions in place to support children who might be affected by their parents being imprisoned, but we as a country also have to face up to the fact that we have the second-highest prison population level per head in western Europe, which includes the rate for females. That is because we as a country have failed to implement much more progressive and effective means of achieving desistance from committing offences.
If we are serious about the matter, we should not be closing stable doors once the horse has bolted; we must have a serious debate and dialogue about how we can use our prison system so that, while those who have to go to prison go there for public safety and punishment, we are also serious about and committed to taking forward policies that assist us in dealing with those who can be more effectively dealt with by alternative means.
If we get that right, we will do more for children in Scotland than an amendment to the bill would do—I mean no disrespect when I say that. We will demonstrate that we are big enough to be progressive in our penal policy rather than continue with a model that has remained largely unchanged in almost 200 years.
Let me turn to the issue that has also—[Interruption.] My microphone appears to be off. I do not know whether that is an indication that you want me to stop speaking, Presiding Officer.
I promise you that I did not touch the switch for your microphone.
Okay—I believe you, of course.
Alex Salmond raised the issue of tackling the knife culture. There is no doubt that there has been a massive reduction in knife crime in Scotland since 2006-07. In parts of west central Scotland, there have been massive reductions of more than 50 per cent in that period. A huge amount of that has come about through policing, engagement programmes such as the no knives, better lives programme, and the violence reduction unit—the tremendous work of John Carnochan and Karyn McCluskey has changed perceptions and communities.
The report of the advisory group on stop and search quotes John Carnochan as saying:
“I believe now is the time to Police our communities a little differently. When the medication works and the patient’s condition is stabilised or even improves we don’t usually increase the dosage; that would be a waste of time, energy and resource and it often makes the patient worse. Now is the time for all agencies, including the Police, to engage with the communities, particularly the young people in our poorest areas in a positive way to help prevent violence. It was these young people who received by far the largest dose of the stop search medicine. It is them who have shown most improvement on this course of treatment. They now need help to stay healthy and violence free. Good community policing can help that happen.”
John Carnochan got that right.
Our provisions on stop and search will not prevent the police from stopping individuals whom they think might be carrying offensive weapons in order to search those people. The police will still be able to target the approach; the only thing that is ending is the non-statutory provision for that. I want knife crime to continue to decrease in this country, as I am sure that all members do. I am confident that we will achieve that.
When I came into post, I was conscious that it would be challenging to get a consensus in the Parliament on the bill. I hope that all members agree that the bill is balanced and effective in addressing the need for improvement in our criminal justice system and that it will help to deliver a modernised approach to various elements of the system. I call on all members to take the opportunity to support this important bill and continue the modernisation of our criminal justice system.