Chamber and committees

I am grateful for the opportunity to make a short contribution.

I will not be pressing Collette Stevenson’s amendment to the vote, but if it is pressed to the vote, I will support it. I think that the proposal from the Scottish Government is too restrictive and too prohibitive, and it goes way beyond the general concept that there might be circumstances in which the court has the discretion to take into account periods spent on electronic monitoring. I will touch on that point in relation to the amendment that we will debate next week, which I lodged as an alternative. That would involve the deletion of section 5 and the insertion of an alternative, whereby periods on electronic bail could be taken into account by the court.

The fundamental point is that electronic monitoring is not a sentence; it is a bail restriction in circumstances in which there is a risk that the accused poses a public safety threat or a threat to the victim. In the same way that a curfew or a condition that the accused must not approach the complainer is used, electronic monitoring is used only in situations where there are genuine risks. We must be really clear about the fact that that is the way in which it is used.

However, if that restriction is so great, there is an argument that compliance with electronic monitoring, or failure to comply, might be something that the court would take into account in sentencing. I believe that the courts already take into account such considerations. Whether someone has adhered to a curfew, electronic monitoring or other bail conditions can be facts that the court has the discretion to take into account. The problem with the Government’s wording is the highly restrictive way in which the provision has been drafted. We will undoubtedly continue that discussion next week, but I support Collette Stevenson’s amendment 67.

My amendments in the group, which is on entitlement to bail, relate to three areas: the public safety test; the fear of flight; and, in amendments 35 and 36, alternative approaches to address issues that Victim Support Scotland raised on these provisions.

Amendment 55, which is a probing amendment, seeks to remove the new public safety test for bail so that the law reverts to the current public interest test. As I have indicated, Pauline McNeill and I have been involved in a number of meetings with defence agents and other practitioners—including, on occasion, sheriffs—in relation to the drafting of the bill, and the view of many whom we have met is that what I have proposed is the preferred approach due to uncertainty around how the new provisions will be interpreted by the court.

On a number of occasions, fear has been expressed that the lack of certainty in relation to the definition of the public safety test is likely to lead to appeals. Even if, at the end of the day, the outcomes are the same as they are under current bail law, such uncertainty is not in the interests of justice or of victims, and, indeed, the arguments that will have to be presented in the courts over interpretation of the legislation will come at a cost to the public purse.

My lead amendment would remove the public safety test. I am looking for the cabinet secretary to outline why the Government is proposing the change so that we can get an understanding of how it believes that it will impact on bail decisions in the courts, particularly given that Lord Carloway’s submission to the Scottish Government was that, although the measure would add bureaucracy and place more onerous requirements on the courts, outcomes would not be changed. I am looking for the cabinet secretary to give an explanation of the kinds of cases in which she expects that, if the bill were to be enforced, bail would be allowed where it would not be allowed at the moment and, similarly, situations in which individuals would be remanded under the measure when they are currently not.

Amendment 31 would enable the court to have discretion to take into account electronic monitoring or other specific conditions or requirements to which the accused was subject. That issue was discussed in the committee. The approach that the Scottish Government proposes is that, where an individual has been subjected to electronic monitoring, it will be compulsory for the court to take that into account, and every two days of electronic monitoring will be counted as one day in custody.

The approach that I outline in amendment 31 would enable the court to have discretion to take into account any period of electronic monitoring or, indeed, any other specific conditions and whether the accused has complied with the conditions to which they have been subject. That would mean that the court would have the discretion on occasion to reduce a sentence—for example, if there was evidence to suggest that the person had complied with the conditions of curfew or electronic monitoring—but it would not be obliged to do that. Similarly, it would enable the court to increase the sentence if an individual had not co-operated with the special conditions that were placed on them. It could be that they had not co-operated with electronic monitoring, a curfew or another condition that the court had presented—for example, if they had made attempts to contact or approach the complainer. The reason why I have lodged the amendment is to enable the court to have a far broader range of responses and to take account of specific facts that are presented.

Amendment 30, which is also in the group, is a probing amendment that came about as a result of discussions about the public safety test. As the committee has discussed and as lawyers have stated in their various representations, there is a view that it would be helpful to have a definition of the test. One of my concerns is that I have attempted to ask others to draft a public safety test or to give an indication of the factors that they believe should be on the face of the bill but they have been reluctant to do so. Amendment 30 therefore provides an indicative list of the types of factors that might be taken into account. As I said, it is a probing amendment and I do not plan to push it to a vote today, but I am looking for the Government to give an indication as to whether those are the kinds of factors that it expects the courts will take into account when considering what public safety will involve.

Amendment 63 would require consultation with victims groups about the drafting of the public safety test. It would require the Scottish Government to come back in writing with detailed proposals for how the courts will interpret the public safety test and to consult victims organisations and others on how the courts will be expected to deal with such matters.

I lodged amendment 32 to get a better understanding of the Government’s thinking. The current bail provisions are clear that the court is able to refuse bail if it believes that that will be in the interests of justice and that granting bail would be prejudicial to the interests of justice. One reason why granting someone bail could be prejudicial to the court process is that they would be given the opportunity to intimidate witnesses or complainers. If the bill were to be passed, it is unclear whether the Government would expect the courts to have a lower threshold when considering such issues. Amendment 32 would reintroduce the current law in relation to the intimidation of witnesses and complainers. It would make it clear in black-letter law that the court is entitled to remand someone if there is a legitimate fear that there could be intimidation.

One of my other amendments relates to the fear of flight. We have focused on that issue, but, when the committee discussed the bill, we did not consider to any great extent that the bill’s provisions change the current bail law in that the public safety test will very much focus on the risks to the public. Issues around the fear of flight and absconding relate primarily to the ability for the interests of justice to be served, with the court process being able to proceed to its conclusion because the accused is available to attend court.

It would be useful for the Government to indicate how many individuals are currently remanded because of issues relating to the fear of flight and individuals absconding. It would be useful to understand whether the Government believes that the bill as drafted will result in fewer individuals who fall into that category being remanded. What would the implications be for the justice system and the ability to obtain convictions if that were to happen?

Amendment 33 contains a similar provision. My understanding and the understanding of those from whom I have taken advice is that, under the bill’s drafting, the court would be obliged to consider the failure to appear in a particular case when considering whether to grant bail. Amendment 33 would enable the court to take into account a wider course of action. If an individual had a history of failing to appear or of absconding—there might be evidence from previous convictions, or other evidence could be provided to the court—such information could be taken into account.

I definitely support the amendment.

I move, amendment S6M-08865.2, to insert at end:

“; further notes recent reports of poor experiences of victims within the justice system, including long waits for court cases to be heard and the re-traumatising effect of the legal process for victims of domestic abuse and rape; invites the Scottish Government to explore the potential benefits of expanding the independent legal representation available to victims, particularly in cases of rape; understands that reform of the justice system will only be successful if the current pressures on the justice system are addressed, and expresses its belief that further reforms must be developed and implemented cooperatively with those who work in the criminal justice sector in order to bring about effective and practical change for victims and witnesses.”

I am pleased to open the debate on behalf of Scottish Labour and to speak to the amendment in Pauline McNeill’s name.

I thank everyone who has contributed to the framework, which is a substantial document. We very much hope that it assists with work across the criminal justice sector to address the multiple ways that the justice system exacerbates the experience of trauma for many victims and witnesses. We also hope that it helps to address the impact of experience of the justice system, which is often described by victims as “retraumatising”.

The framework outlines in detail the impact that psychological trauma can have and the need for a person-centred approach. We support the Scottish Government in work to drive a better understanding of the impact of trauma across the system, but we must recognise that our current criminal justice system deals with those issues very poorly, unfortunately.

The trauma that witnesses experience has been known and discussed for decades. The Scottish Labour Party is currently carrying out our own consultation on ending violence and sexual harassment against women, and Pauline McNeill and I are undertaking meetings throughout the country. The emotional and physical risks and difficulties that victims face pre-trial, during trial and at sentencing are raised again and again.

When the Criminal Justice Committee met rape survivors, we heard harrowing testimony. Rape survivors described extremely poor experiences of the criminal justice system, which they felt let them down. Complainers said that giving evidence and their wider experience of the criminal justice system could be as traumatising as the crime itself. The terms “retraumatising” and “second violation” are repeatedly used.

We do not underestimate the scale of the challenge of changing practice in the justice system, because to deliver the necessary change there needs to be greater awareness of the need for trauma-informed practice, and many aspects of the justice system need to be fundamentally changed. The current legal process is not organised around the needs of victims. We need to consider how we can improve the experience of victims and witnesses and ensure outcomes that deliver in the interests of justice.

We are concerned that the new framework cannot be implemented unless the serious challenges that the criminal justice system currently faces are addressed. We have the highest remand rates in western Europe, crowded prisons, extensive court backlogs, a rise in recorded sexual offences, a shortage of criminal justice social workers and a crisis in legal aid. We know that, during the pandemic, the High Court backlogs disproportionately affected women and children, with sexual crimes amounting to more than two thirds of cases waiting to be heard. Our amendment highlights the retraumatising effect of the court process and the impact of court backlogs and delays on victims.

The Victims, Witnesses, and Justice Reform (Scotland) Bill, which the cabinet secretary spoke about, allows for complainers in rape cases to have legal representation when the defence wishes to lead evidence in limited circumstances. We support that, but our amendment invites the Scottish Government to explore further the benefits of expanding the legal advice and representation that are available to victims—in particular, in rape cases.

In recent decades, many other countries with adversarial court systems have introduced greater legal advice for victims and enhanced rights to representation for them in the courts. That seems to have significantly improved the experience of victims in those justice systems. We believe that in order to inform the debate we need to look at what is happening elsewhere.

It is worth saying that Scotland is lagging behind much of Europe on victims’ rights. For example, in Denmark, victims are entitled to state-funded legal advice at the reporting stage, and before and during trial. In Spain, female victims of gender violence have the right to free legal advice, regardless of their resources. In Norway, victims have the right to legal advice before trial and during trial, to the conclusion of the case. For example, a rape victim is entitled to see a lawyer to get legal advice for two hours before they report a rape allegation and they then receive legal representation to the conclusion of the case. Given all the evidence from rape victims about their experience of the justice system, we believe that there is a case for looking at how we can expand the legal support that is available to rape victims in particular, so we ask that the Scottish Government look at what more could be done.

Scottish Labour supports trauma-informed practices for victims and witnesses, but we recognise that that will mean fundamental changes in practice and culture.

The legal profession is threatening to boycott aspects of the Victims, Witnesses, and Justice Reform (Scotland) Bill that relate to single-judge rape trials. The cabinet secretary is correct to say that we need partnership and resolve. A great deal more work needs to be done to ensure that reforms can be implemented effectively.

We look forward to hearing contributions to the debate. As a party, we are open to discussing any ideas that will deliver for witnesses and victims.

I am happy to move the amendment in Pauline McNeill’s name.

Theme 3 is about new policies. Quite a number of new policies were suggested under themes 1 and 2. I was going to read them out, but there are far too many of them, so I will not do that. As the deputy convener said, many of the policy levers lie at Westminster but, at the same time, the Scottish Parliament and the Scottish Government have substantial powers not only over areas that are their responsibility but over the ability to mitigate.

To develop some of the themes that have already been raised, what new policies do we need to prioritise to tackle the specific issues that have been identified in relation to lone parents? Are there any that would probably not cost significant amounts of money and might be easier to prioritise in the current situation? What permanent changes do we need to make, particularly given the fact that the Scottish Parliament has extensive responsibility for social security? We have to develop our social security system in Scotland differently. How would you develop some of the themes that have been raised?

I will go to Kirsty McKechnie first, if she is comfortable with that.

That could be developed in many ways, although it would take some time. That is very interesting. I think that Martin Canavan wants to come in.

Yes—that was my understanding, Presiding Officer.

I hear what the minister says, but I understand that 14 fire stations in Scotland do not have running water. Does she agree that that is unacceptable and needs to be addressed urgently?

The Scottish Government has a goal of ensuring that robust community justice interventions are available across Scotland, but the community justice budget is facing real-terms cuts over the next year. Given that the Scottish Government’s stated intention is to increase use of community justice, will the First Minister look at that again?