Chamber and committees

Bearing in mind the scope of the work that I described, I think that that is a possibility. However, I want some of that work to come to fruition before I make a commitment now—in June—in relation to proceedings that are still a few months away. I have sought to demonstrate to Ms Chapman and other members that extensive work is on-going in this area.

I will say more about the timelines. The research on integrated domestic abuse courts is being undertaken now. The project initiation document has been finalised, and our intention is to complete and publish the research in early 2026. As I have said, the policy paper for the Scottish Civil Justice Council on court rules will be ready by the beginning of September, prior to or as we embark on stage 3 of the Victims, Witnesses, and Justice Reform (Scotland) Bill. Obviously, it is not for me to place timescales on the Scottish Civil Justice Council.

As I have said, I am seeking advice on regulations under section 102 of the Courts Reform (Scotland) Act 2014 with a view to giving powers to the civil courts to make orders in relation to a person who has behaved in a vexatious manner. I will be writing to the Lord President—as I said, I have to consult him—later this month.

The following amendments seek to strengthen what is to be included within case review reports and to include a dispute resolution mechanism within the model.

Amendment 27 makes a change to require a case report, where the case is about partners or ex-partners, to include an analysis of the social connections of the victim and perpetrator in the lead up to the death. That analysis should include the strength of those connections—whether they were strong or perhaps fractured or strained—and any changes in those relationships prior to the death. Such connections would include friends, family, work colleagues and relevant others. The change reinforces the importance of safeguarding those who experience domestic abuse, and it will help to identify risk factors that have not previously been considered. Recent research on domestic homicide cases has identified the absence of such a requirement. Without it being included, potential risk factors could be missed. This provision will ensure that that analysis is a feature within case review reports.

The purpose of amendment 28 is to broaden the scope of section 22 in order to include the recording of instances of good practice. Currently, there is provision in the bill requiring case review reports to include discussion of where there are lessons to be learned from missed opportunities in order to safeguard those who are affected by abusive domestic behaviour and to promote the wellbeing of victims of abusive domestic behaviour. The change will ensure that lessons can also be learned and shared from identifying and outlining good practice. In addition to helping to reduce any defensiveness on the part of agencies participating in a review, requiring good practice to also be reported will strengthen the review process. The amendment will demonstrate a focus on openness to learning, rather than on blame, and emphasise that there are positives that are important to learn from, too.

It would be possible, under the bill as introduced, for the report to include the things that are mentioned in both amendments, as the bill is not exhaustive in relation to what a report must include. However, those issues are felt to be sufficiently important that steps should be taken in primary legislation to ensure that they are considered in every instance.

Amendment 29 addresses a potential slight gap in the bill in the event where a dispute between the review oversight committee and a chair of a case review panel cannot be resolved. That would most likely be in cases where the panel chair has submitted a case review report to the oversight committee and the chair does not agree with a direction made by the committee to resubmit that report with changes. I anticipate that, in such an event, the committee and the panel chair will usually be fully capable of resolving any disputes through dialogue, and it is unlikely that a mechanism will be needed. However, in the event that that cannot be achieved, there is currently no process to resolve such matters. The amendment will therefore ensure that a mechanism is in place if needed. The risks of not having a dispute resolution mechanism available include delay in signing off and publishing a case review report, which would obviously negatively impact on bereaved families.

A further risk is that, where there is no route to resolve disputes about changes to reports, that could lead to case review chairs stepping down. That would also be problematic for bereaved families, as a panel chair might well be undertaking more than one review at the same time. A rapport with bereaved family members would need to then be established by a new chair.

To prevent such risks, amendment 29 introduces a regulation-making power, which would be subject to the affirmative procedure under amendments 31 and 32, to enable disputes to be resolved. The resolution could either be provided by the Scottish ministers directly or through the Scottish ministers appointing an appropriate person.

As I mentioned, it is anticipated that, if there are disputes between the oversight committee and panel review chairs, those will normally be able to be resolved through discussion, which the amendment also accounts for. However, I believe that it is necessary to ensure that the bill includes a mechanism to facilitate the resolution of such disputes, should that be required.

I move amendment 27.

Amendment 27 agreed to.

Amendment 28 moved—[Angela Constance]—and agreed to.

Amendments 87 and 88 not moved.

Amendment 29 moved—[Angela Constance]—and agreed to.

Amendment 89 not moved.

Section 22, as amended, agreed to.

Section 23 agreed to.

Section 24—Periodic reports

Amendment 90 not moved.

Section 24 agreed to.

Section 25—Guidance by the Scottish Ministers

Amendment 30 moved—[Angela Constance]—and agreed to.

Section 25, as amended, agreed to.

Section 26—Regulation-making powers

In every circumstance in which remote evidence is used, it is delivered in a way that is consistent with the solemnity and integrity of court proceedings. As the Crown Office set out in its evidence,

“Professional witnesses are sent additional information on what is expected of them”

if they are cited to attend a trial virtually.

The Scottish Courts and Tribunals Service, the Crown Office, the Faculty of Advocates and the Law Society of Scotland have also agreed a witness protocol that sets rules that must be complied with by all witnesses who are giving evidence remotely—I have already referred to that. The protocol includes the rule that, while a witness is giving evidence, no one else can be in the same room or be able to overhear what has been said, unless the court gives express permission.

Moreover, when hearing remote evidence, the court has all its normal powers to regulate proceedings, either of its own accord or in response to an objection raised by parties. As such, if there were concern that the integrity of proceedings had been compromised, because the witness was not complying with the rules, the court would be able to address that appropriately.

Ms McNeill has previously probed the lack of a requirement in the bill for a witness to attend a Scottish Courts and Tribunals Service site or other approved place to give remote evidence. Again, I refer to the evidence of the Crown Office, which was supportive of the flexibility that could be afforded to police and professional witnesses and which highlighted that the framework of special measures to support vulnerable witnesses to give their evidence remains in place.

I would also point out that, in its stage 2 evidence, Victim Support Scotland highlighted its opposition to the amendment. Witnesses can, and continue to, give evidence remotely using SCTS remote sites and other purpose-built facilities. Therefore, I do not share Ms McNeill’s concerns and, with respect, ask her not to press or move her amendments.

My officials have engaged with justice agencies on amendments 41 and 42. On amendment 41, committee members will note the briefing from Victim Support Scotland, which cautions against such an approach and opposes that amendment.

There are a number of concerns about amendment 41. Again, as noted by Victim Support Scotland, there might be significant confidentiality and security concerns for some witnesses in having their addresses made available. There are also concerns that, when the direction is made—which is often far in advance of the trial—prosecutors might not know the location that remote evidence will be taken at, if it is subject to, say, witnesses’ working arrangements. As such, extra time and procedure will routinely be required to vary directions when, closer to the trial date, the location changes. A further concern is that being restrictive about location would limit the witness’s ability to be responsive to any pressures arising, where such matters might lead them to work from a location that is not their usual place of work.

On amendment 42, it is not clear how those requirements could be enforced, other than by the court reacting if there were real difficulties with the evidence being given. As the court would already be able to respond to that appropriately, I would be wary of placing an additional onerous and potentially impracticable obligation on the Scottish Courts and Tribunals Service.

The bill already provides, at subsection 3 of proposed new section 303K of the Criminal Procedure (Scotland) Act 1995, that the court must set out in its direction that enables a person to attend virtually how they ought to do that. In practice, that is achieved by providing them with information on how to use the Webex platform. The guidance is publicly available and, as I have mentioned, I can send it on.

As with in-person attendance, issues with individual cases will no doubt crop up from time to time. However, I am satisfied that over the past five years of the operation of those provisions, partners have refined the process and have no concerns about implementation when it comes to remote evidence. As with any aspect of operational practice, they will continue to keep matters under review. I acknowledge that things have not been as smooth with virtual custodies, and they are being paused to allow the development of an improved model that better meets the needs of all users.

As for Mr Kerr’s amendment 43, I do not think that it would be possible, as currently drafted, to deliver the required report. Information on technical issues is not collected and reported on in a systemic way, and to require that in relation to everything that might be considered a technical issue would be resource intensive.

However, if the report were to focus on improving understanding of how virtual attendance is delivering greater efficiency and effectiveness, and if it were more closely linked to existing data collection processes, we might be able to explore that further. If Mr Kerr’s concerns relate to virtual custodies, that will be addressed by the work that is being led by Malcolm Graham of the Scottish Courts and Tribunals Service. I am of course happy to engage further with Mr Kerr on that in advance of stage 3.

To conclude, I ask Mr Kerr and Ms McNeill not to move or press their amendments in this group.

I will try to address most of those points as I proceed. If I do not, Ms McNeill will, I am sure, intervene on me again.

I turn to Mr Kerr’s amendments 49 and 47, and Ms McNeill’s amendments 47 and 48, which set out new requirements for the retention of physical productions. The bill has always been about using digital transformation to protect the rights of victims, witnesses and the accused, while supporting justice partners in modernising their operational practices, including those around retention.

As I have mentioned, common law already gives the defence the right to examine any physical item whose condition is critical to the case against the accused, and our provisions do not interfere with that right. Prosecutors have always been able to determine which productions need to be retained and for how long. There are obviously fundamentally different factors to take into account in relation to, for example, marijuana plants in drug offences, personal items belonging to victims and witnesses, and alleged murder weapons. The bill will not alter the nature of those operational decisions.

We sought feedback from justice partners about how these amendments would impact them. During stage 1, they had already expressed to the committee their concerns about retaining physical productions for lengthy periods, and they have confirmed that the amendments would be financially devastating. It is already common practice for some evidence to be returned to people prior to the conclusion of a trial, and these amendments would prevent that—for example, when a vehicle is involved in an accident and a photograph is taken of the damage, the vehicle would still need to be retained. Similarly, at present, when evidence is the property of victims or witnesses, the items tend to be returned with a label or image used in their place during proceedings. If the amendments are agreed to, the victims’ property would not be returned until a considerable time after the case had concluded.

In the case of the reference in amendment 48 to the Scottish Criminal Cases Review Commission, it is difficult to see how the items could ever be returned. That is clearly inappropriate for personal items; we already know about the distress that even limited retention can cause in relation to the retention of mobile phones, for example.

The amendments would also have the strange effect that, in cases in which images of physical production are used, the physical evidence would need to be retained for much longer than if the physical evidence itself had been produced.

Overall, the amendments would have a significant resource implication for justice partners, who would have to store the items for longer—perhaps indefinitely—and they represent a regressive approach to retention that, when applied to personal items, would have distressing implications for many victims. I therefore ask Mr Kerr not to press amendment 44 and Ms McNeill not to move her amendments.

I turn to my amendments. During stage 1, the committee heard a range of views on the use of digital productions and the need to protect the rights of all parties during a trial, while ensuring that the benefits of using digital productions are fully realised. Only last week, there was a news story about how more than 30,000 prosecutions in England and Wales collapsed between October 2020 and September 2024 because of lost, damaged or missing evidence. It is only right that, in Scotland, we use technology to support justice partners managing large quantities of evidence, many of which are not required to be produced for trial. I have therefore lodged amendments that provide more certainty on the use of digital evidence.

Amendment 5 provides detail on the process by which parties can apply to the court for a direction that images are not to be used in place of physical evidence. It sets out a timescale for making an application and requires the court, when considering an application, to assess whether the use of an image in place of the physical evidence would prejudice the fairness of proceedings. In summary cases, the amendment will allow parties 28 days after being given access to the images of physical productions to object and seek a direction from the court requiring the use of the physical production. In solemn cases, the same time limit applies from either service of the indictment or the defence lodging a list of productions.

In addition, the amendment will enable the court to consider any application to object to the use of images that is made after those deadlines have passed, when the party can demonstrate that they made the application as soon as reasonably practicable.

Amendments 1 to 4 will make consequential adjustments to the bill to allow the timescales provided by amendment 5 to have effect and to enable an application to be dealt with at the first diet in solemn proceedings.

Amendment 6 clarifies that, where the bill refers to images of physical evidence, it means both moving and still images. Ultimately, our ambition for the provisions is to promote the use of modern technology, including DESC; support greater efficiency across the criminal justice system; and enhance the way that evidence is led in order to create improvements in the court experience.

During stage 1, Victim Support Scotland provided a powerful example of where physical evidence being passed around in court in a sexual offences case can have a traumatising impact on victims and how that could be addressed through the use of digital productions. That represents just one of the many ways in which the use of digital productions and the digital evidence sharing capability can be transformative for victims, witnesses and the accused.

I am confident that that approach balances the rights of the parties and provides greater certainty about the use of productions, while supporting the desire of partners to move towards greater digitisation. I therefore ask that members support amendments 1 to 6 in my name.

I understand Ms Dowey’s intentions, but I cannot support amendments 56 and 57, for several reasons.

Prior to the Coronavirus (Scotland) Act 2020, the transmission of legal documents took place by having the hard-copy document physically couriered between parties or organisations, or by personal service on individuals. Since the provisions relating to electronic transmission were introduced in 2020, they have become firmly embedded in Scotland’s justice system, thereby modernising many justice processes and making them more efficient and cost effective.

Ms Dowey’s amendments would make it a legal requirement to provide hard copies on request, which might not be possible in every circumstance. In particular, amendment 56 does not specify who would be entitled to make such a request or who would be required to respond to it, which might impact on existing rules and policies about public access to case papers held by the courts or by the parties.

I am concerned that amendment 57 might impact on existing rules about how non-electronic service of documents works. The Criminal Procedure (Scotland) Act 1995 contains detailed rules about how non-electronic service of different types of document on different recipients is to be carried out; methods range from postal service to personal service by an officer of law, such as a constable, sheriff officer or prison officer. None of those is dependent on a request being made, and the methods generally involve delivering a document directly to a recipient rather than making it available. It is unclear how amendment 57 is intended to interact with those rules, and the consequences would need to be properly considered.

The bill already permits individuals to receive documents in hard copy. The provisions simply offer an additional option to those who wish to, and are able to, use electronic means.

Although I cannot support the amendments in their current form, I would be happy to work with Ms Dowey in advance of stage 3 to explore whether any provision is required to achieve her intentions, while ensuring that no disruption is caused to operational practices that have been in place for five years or, in some situations, longer. The Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service have indicated that they would be happy to be involved in that.

On that basis, I ask Ms Dowey not to press amendment 56 or to move amendment 57.

As members will be aware from the policy memorandum, there are clear statutory exclusions. Members will be familiar with what they are. That means that there is a cohort of people who are not considered for HDC. There are also other statutory criteria, all of which have to be met. Sentences must be three months or more. People must have served at least a proportion of their sentence—that is one of the things that we are proposing to change. People can be on HDC only for a minimum of 14 days and for a maximum period. The criteria around sentence length, eligibility, proportion of sentence served, and minimum and maximum period all have to be met.

The reality is that if, for example, someone was sentenced to one year, the change to the automatic early release point for some short-term prisoners will mean that they are released after 144 days, rather than after 180 days, which would have been the case before the changes. Due to the changes in relation to the short-term population, the potential time spent in HDC has reduced from 90 days to 54 days.

We want to realign the HDC process with the short-term prisoner 40 per cent programme. It does not mean that every prisoner who is eligible for home detention curfew will be eligible for the maximum time, because it depends on the length of their sentence, how long they have spent on remand, how long the assessment process takes, and how long it takes to gather information, particularly from the community. Of course, people must pass the assessments as well.

The bill provides for virtual attendance in criminal proceedings by making permanent the legislative underpinning that has been in place since 2020. The framework for virtual attendance is, admittedly, somewhat complex, which is inevitable given that it must account for the complexity and range of scenarios that arise day to day in the criminal justice system.

I am afraid that the amendments in this group would unpick that framework and shift the balance away from individual decision making case by case to an approach in which there is less flexibility and a greater role for blanket determinations and decision making, and powers of veto. I appreciate that that might not have been Ms McNeill’s intention, but I am sure that she and the committee will understand that I have to respond to the effect of the amendments according to their terms and the operational impact that they would have.

The amendments would erode—and, in some cases, eliminate—the ability of our courts to consider the full range of facts and circumstances of the cases that they hear in making decisions on virtual attendance. I therefore cannot support any of the amendments in the group.

Under the bill, the default position is that people attend court in person. In individual cases, the court can opt to disapply that default and direct individuals to attend court by virtual means, after taking into account what is in the interests of justice and any representations that are received from the parties. The exception to that would be proceedings in which the only party is a public official, such as police officers or prosecutors seeking warrants or court orders, where the default position is virtual attendance. Again, the court can disapply that default case by case and require physical attendance.

The bill gives the Lord Justice General the power to issue determinations to disapply the default for physical attendance in certain types of cases and in certain circumstances. Currently, there is an important limitation on that power: the Lord Justice General cannot issue determinations in relation to trials or for hearings at which the only party is a public official.

Amendments 33, 35 and 40 would remove that limitation and expand the scope of the Lord Justice General’s power to make determinations to any form of criminal proceedings. That would give the Lord Justice General the power to effectively set virtual attendance as the default for criminal trials, should he choose to do so. That would be a substantial expansion of the power and a significant departure from the current approach. I do not believe that the committee heard any evidence at stage 1 that would support such a change, nor did it make such a recommendation in its report.

In addition, I have not heard any support for the amendments that relate to guidance that is issued by the Lord Justice General. Amendment 37 would require courts to “comply with” such guidance rather than “have regard to” it. Amendment 39 would require that the guidance must set out when virtual attendance must “always apply” and when it must “never apply”.

Again, those amendments represent a departure from recognising that the courts will need to consider cases and circumstances on an individual basis in order to balance all relevant interests. After taking into account such information, it should ultimately be for a court to decide how individuals should appear before it at trial.

Amendments 36 and 38 would further erode the court’s flexibility. Amendment 36 would, in some circumstances, create further procedure overall. When there had been a change in circumstances between the pre-trial hearing and the trial, with the result that a witness required to give evidence remotely, amendment 36 would mean that an additional hearing would have to be convened to allow parties to be heard on the matter. The existing drafting is more efficient, as it gives the court the ability to make a direction, which the other party could object to at trial if they so desired.

In relation to amendment 38, I do not agree that it is appropriate for complainers or the accused to be able to unilaterally veto the virtual attendance of another person, such as a police witness or a forensic scientist. Such matters are properly decisions for the court, which will balance the interests of those involved. The bill requires the court to hear representations from the parties and to consider whether such a direction would prejudice fairness or otherwise be contrary to the interests of justice.

Taken together, the amendments in this group would lead to a more prescriptive framework that would restrict the court’s ability to be agile and responsive, and to take into account individual circumstances and make informed decisions, when determining how individuals appear at court. For that reason, I cannot support any of the amendments in this group.

As Ms McNeill and colleagues will recall, the virtual custody court provisions have been paused until the issues have been fully resolved.

The committee will recall that my initial position was that the purpose of the review is different from that of the prosecution of domestic abuse. They are clearly different. One is about holding perpetrators to account and one is about learning for the purposes of prevention. However, I have reflected on the committee’s view as expressed in your stage 1 report. If things change in future, there is the enabling power in section 10. It has been a matter of fine judgment, but the overall view of the committee and others was that we need to anchor domestic abuse in our gold-standard definitions.

Amendment 15 makes a consequential adjustment to the concept of a connected death of a young person. A connected death is when a young person is killed in an attack on another primary victim. The amendment provides that, when the primary victim has survived, the connected death is reviewable only if the primary victim’s death would have been reviewable. If that would not have been the case because there was no context of partner domestic abuse, the connected death would also be outwith scope.

Amendment 17 adjusts the sift criteria in line with the changes in scope, so that the review oversight committee is tasked with considering whether and to what extent there is any link between partner domestic abuse and the death. It will also sift out cases that have some history of domestic abuse but that is not linked in any way to the death of the victim. That will involve an exercise of judgment based on all the facts and circumstances, so it is not possible for the initial notification stage.

Amendment 18 is a minor technical amendment to correct the terminology used in section 16(3)(a), to match the rest of the section.

I move amendment 14.

Amendment 14 agreed to

Amendment 15 moved—[Angela Constance]—and agreed to.

Amendment 61 not moved.

Section 9, as amended, agreed to

After section 9

Amendment 62 not moved.

Section 10—Power to modify matters in relation to reviews

Amendments 63 to 66 not moved.

Amendment 16 moved—[Angela Constance]—and agreed to.

Section 10, as amended, agreed to.

After section 10

Amendment 67 not moved.

Section 11—Review oversight committee

Amendment 68 not moved.

Section 11 agreed to.

Section 12—Case review panels

Amendment 69 not moved.

Section 12 agreed to.

Section 13 agreed to.

Schedule agreed to.

Section 14—Notification of deaths

Amendment 70 not moved.

Section 14 agreed to.

Section 15 agreed to.

Section 16—Determination as to whether to hold a review

Amendments 71 to 73 not moved.

Amendments 17 and 18 moved—[Angela Constance]—and agreed to.

Amendments 74 and 75 not moved.

Section 16, as amended, agreed to.

After section 16

Amendment 19 moved—[Angela Constance]—and agreed to.

Section 17—Carrying out of review

Amendment 76 not moved.

It is important to emphasise that, when the physical production of evidence is critical to a case, we would, of course, expect the Crown to protect its position in relation to producing the physical item. I note that Ms McNeill does not think that there should be any deadline to parties being able to object to an image being produced as opposed to a physical object. I reiterate my point that applications could be made after that point if it can be demonstrated that the application was made as soon as was practicable.

My final point—I appreciate Ms McNeill’s indulgence—is that my broad concern about her amendments and Mr Kerr’s amendments is that they would not protect the status quo, because they would move us backwards. I appreciate that members will have views about any proposed changes and how we move forward, but the amendments would not protect the status quo and would make things worse for victims and justice partners.

Amendment 50 would remove an existing power of the Scottish ministers to increase the maximum level of fiscal fines by subordinate legislation. Fiscal fines are an important tool that is available to prosecutors to use in appropriate circumstances as a proportionate response to lower-level offending. For those penalties to be effective, they need to be set at an appropriate level to address the range of circumstances for which they might be used. Modification of the maximum level is therefore required from time to time to ensure that they continue to be effective and to allow court and other resources to be focused on more serious cases.

The maximum level was set at £300 in 2007 and it remained there until the Coronavirus (Scotland) Act 2020 was put in place. As well as reducing the burden on the courts during the pandemic period, the increase enabled inflation to be taken into account. Requiring primary legislation to change the maximum level of fiscal fines would not represent an efficient use of parliamentary time. It would unacceptably restrict responsiveness to inflationary pressures, lead to inefficiencies in the justice system and fundamentally reduce the effectiveness of fiscal fines.

I emphasise that the power has existed since 2007. All that the bill will do is to update the power to make any changes more accessible to those who look at the statute book by ensuring that changes are made in the act. I therefore cannot support amendment 50.