Chamber and committees

Of course.

As a point of information, I note that, in the period 2010-11 to 2019-20, the number of offences that were committed by a person while on bail fell by 18 per cent, from 8,261 in the year to 6,800.

I appreciate that, Mr Findlay, but the point that I am earnestly trying to make is that it is not necessary.

Furthermore, the amendment would also have the effect of broadening the court’s discretion to refuse bail. It would allow the court to refuse bail where one of the grounds in section 23C of the 1995 act applied and the court considered that there was a risk that any bail condition would be breached, whether or not there was a risk to public safety or the delivery of justice.

I will speak to amendment 7 and the other amendments in the group. Amendment 7 seeks to address the concerns that the committee highlighted regarding the potential additional burden that might be placed on the courts by the recording requirements that are contained in section 4 while still ensuring that the core information that is required to monitor the use of remand by courts is recorded.

In particular, the committee asked the Scottish Government to revisit the recording requirements in section 4 in order that they be made less onerous. Amendment 7 responds to that request. As such, it narrows the recording duty in the newly proposed section 24(2AA)(b) of the Criminal Procedure (Scotland) Act 1995. It does so by removing the requirements for the court, when remanding an accused person in custody, to enter in the record of proceedings, first, where it relies on the failure-to-appear ground in section 23C(1)(a) of the 1995 act as the sole basis for remand and the reasons why it considers that that is necessary and, secondly, the reasons why it considers that electronic monitoring of bail is not appropriate or an adequate safeguard. However, the requirement on the court to verbally state those reasons when bail is refused remains unaltered.

The effect of the amendment is that courts would be required to formally record in the court minutes only

“the grounds on which it determines, in accordance with”

the new bail test,

“that there is good reason for refusing bail”.

Turning to amendment 66, in the name of Rona Mackay, I have reflected carefully on the evidence that was given during stage 1 scrutiny. Special conditions of bail can help both with protecting the complainer from the risk of harm and by providing reassurance that any attempt by the accused to cause them harm would amount to a breach of bail and would allow the police to take action. That requirement was originally introduced in the 1995 act in respect of people accused of sexual offences, and I am persuaded that there is a good argument for extending it to cover those who are accused of domestic abuse or stalking, which are also offences in which the perpetrator singles out a specific victim.

By ensuring that the court must justify any action not to put in place additional protective conditions in those cases, the amendment will emphasise to the court the importance of appropriate special conditions of bail in cases of domestic abuse and stalking, and it will improve the transparency of court decision making. I ask members to support Ms Mackay’s amendment.

Amendment 35, in the name of Katy Clark, seeks to make changes to section 4 of the bill by further amending section 24 of the 1995 act so that the court must state certain grounds and reasons for the granting of bail and have those grounds and reasons entered into the record of proceedings.

As I have mentioned, an expansion of the recording duty falling on the courts as a result of section 4 directly contradicts the committee’s specific recommendations in this area. It asked the Government to revisit that section in order to reduce, not increase, the recording duty.

Amendment 35 would place an increased burden on the courts in a very large cross-section of cases that enter the system. That might require further information technology changes by the Scottish Courts and Tribunals Service and might increase the length of court hearings, with potentially very little analytical value. That is because there is an overarching legal presumption for bail, which should be refused only when there is good reason for doing so. As such, bail is, in effect, the default position.

With any requirement to provide reasons why bail has been granted, one could simply point to the legal requirement to do so—namely, that there is no good reason not to grant bail. The amendment would also require the court,

“in any proceedings in which a person is accused of an offence”,

to explain certain things, including why

“the accused does not pose a risk to public”

or complainer safety. That is an extremely broad requirement that would apply to all cases that enter the system, not all of which would involve a public safety-related offence or an identifiable complainer.

More generally, it is already a requirement under existing bail law that, whenever the court grants or refuses bail, it must state its reasons for doing so. The bill does not change that. As such, the information that is listed in amendment 35 is information that the court may already verbally state in open court under that duty.

During stage 1, the calls for improved data gathering were generally focused on gaining a better understanding of remand. As such, and for all the reasons that I have outlined, I ask Katy Clark not to move amendment 35.

The final amendment in this group is amendment 36, also in the name of Katy Clark, which seeks to remove section 4 in its entirety, with the effect that the duty in that section on the court to state and record its reasons for refusing bail would not be introduced. Again, that contradicts what was said in the committee’s report, so I ask Katy Clark not to move amendment 36.

The policy intent behind section 4 is to help to improve, over time, understanding of the use of remand and to emphasise the importance of its being used only as a last resort. The availability of richer and more detailed data on the use of remand was universally supported during stage 1 evidence-taking sessions, and amendment 7 would, if agreed to, address concerns that were expressed by the committee about the potential burden that the recording duty, as originally drafted, would place on the courts.

I move amendment 7.

For further clarity, convener, earlier in my remarks I acknowledged that, depending on the nature of the information that is provided, some further time may be required at a bail hearing, but that is separate from the timescales for when a bail hearing must be heard. I hope that that is helpful.

The formula is informed by practice in England and Wales. It is not for me to opine on the evidence that the committee heard at stage 1. However, I am well within my rights to point to the fact that the Government undertook a full public consultation on the bill. As we always do, we published the responses to that consultation. If, after today, any member or, indeed, the committee collectively would like me to provide further information on any remaining issues, I will be more than happy to do so. That is not a problem.

To return to the example that I have just given, applying the formula to the six-month period would mean that, as a maximum, the person would enter custody being treated as having served three months of their 18-month sentence. Although a person who is subject to electronically monitored bail with curfew conditions is not in the same position as someone who is in custody, such a measure represents a significant restriction of their liberty, as I indicated earlier. Therefore, the bill enables—rather than mandates—the court to take cognisance of that, should it wish to do so, in a proportionate way when a custodial sentence is imposed. The measure brings Scotland into line with similar arrangements in England and Wales, which I believe that the committee supported in its stage 1 report.

Therefore, with respect, I ask committee members to vote against amendment 67.

Yes.

I am happy to go back and check that point, but my understanding—particularly after yesterday’s debate about the trauma-informed justice skills framework that is to apply to all actors in the justice system—is that we need to give victims meaningful information. Although the information needs to address the facts of the matter on whether someone has been remanded or bailed, I do not think that it is unreasonable to expect people to be given some context about what was said in open court, bearing in mind that it might not be appropriate or desirable for the complainer to be present in court. The route to provide that information would be via the Crown Office. I am happy to have further discussions on that point.

On Mr Findlay’s other point in relation to my amendment 7, I gave the reasons for refusal and will repeat them for the record—I apologise if people recall hearing them. Amendment 7 removes the requirements for the court, when remanding an accused person in custody, to enter in the record of proceedings, first, where it relies on the failure-to-appear ground in section 23C(1)(a) of the 1995 act as the sole basis for remand and the reasons why it considers that that is necessary and, secondly, the reasons why it considers that electronic monitoring of bail is not appropriate or an adequate safeguard.

Amendment 7 agreed to.

Amendment 35 not moved.

Amendment 66 moved—[Rona Mackay]—and agreed to.

Amendment 36 not moved.

Section 4, as amended, agreed to.

After section 4

Over 2010-11 to 2019-20.

I will speak to amendment 37, in the name of Katy Clark, first. Amendment 37 inserts a new section after section 4 that would impose an annual duty on Scottish ministers to publish a report on women who have been refused bail. A non-exhaustive list of the information that the report must contain is set out in subsection (2), from (a) to (g), of the proposed new section.

I recognise that the amendment is well intentioned, and I agree that there is benefit in a requirement for the Scottish ministers to publish a report in relation to women on remand. However, I have some concerns about the amendment as it is drafted.

Some of the information that is covered by amendment 37 is already routinely published as part of the Scottish Government’s official statistics release. In particular, the following data is already published: the nature of the offences that women who are refused bail have been charged with, the average age of women who are refused bail and the number of women who transition from the remand population to the sentenced population.

Conversely, some of the data that is listed in amendment 37 would be either difficult or, in some instances, impossible to produce. Accordingly, it may impose onerous requirements on the Scottish Courts and Tribunals Service and, potentially, the Crown Office and Procurator Fiscal Service, to compile the data that is sought.

As such, I ask Katy Clark not to press amendment 37, and I will undertake to work with her to see whether we can return at stage 3 with a workable reporting requirement that explores the characteristics of the remand population—including by gender—in a meaningful and informative way but that does not place unduly onerous burdens on the Scottish Courts and Tribunals Service and others. I am conscious of the concerns that have already been expressed throughout stage 1 about the capacity demands on operational justice agencies, but I will seek to strike the right balance.

I now turn to amendment 8, in my name. The committee’s stage 1 report expressed concern about a lack of information about the circumstances in which remand decisions are made. Amendment 8 responds to that concern by imposing a statutory duty on Scottish ministers to

“publish a report on bail and remand.”

The report will be required to contain certain information broken down by year and covering the first three years during which the new bail test under section 2 is in operation. The report must contain certain specified information in relation to bail and remand decision making. In relation to remand, that includes information such as

“the average daily remand population”

and

“the number of individuals who entered the remand population by reference to ...

(i) the offence (or type of offence) in respect of which the individual was remanded in custody,

(ii) the individual’s gender,

(iii) the local authority area in which the individual lived immediately before being remanded in custody”.

In relation to bail, that includes information such as

“the number of bail orders made by reference to the offence (or type of offence) in respect of which the individual was granted bail”

and data related to

“bail-related offences, and ... other offences ... committed while on bail”.

Amendment 8 sets out the full list of information that must be included in the report, as well as, importantly,

“any other information that the Scottish Ministers consider appropriate”.

I trust that that will be welcomed by the committee, and I ask members to support amendment 8, in my name.