Chamber and committees

My only other remark on Ms McNeill’s amendment 53 is that I do not think that there would be any practical benefit from it, and I say that with respect.

Katy Clark’s amendment 1 seeks to put in place a requirement for the Scottish ministers to report to Parliament on the operation of section 1. I recognise that the enhanced role of justice social work carries resource implications as set out in the financial memorandum. We have been clear during stage 1 that the Scottish Government will continue to work with partners during implementation planning to review the resourcing requirements and timescales for commencement.

Members will be well aware that there are real challenges in relation to budgets, which is likely to continue. That means that difficult decisions will possibly need to be made. Phased implementation of legislation can be a way of flexibly managing the resource implication of any bill. It is also worth highlighting that Parliament—and, indeed, this committee—already has the power to carry out post-legislative scrutiny of any acts of Parliament.

I ask members to reject the amendments in the group.

Before I go through my speaking note and make the remarks that I need to put on the public record, I will respond to Pauline McNeill’s point about the committee’s post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018. I put on the record that I have obviously received the work that the committee has done in that regard, and I very much welcome it. I will seek to respond once I have had the opportunity to discuss the detail with our justice partners. However, my intention is to respond to the committee as much as I can prior to stage 3, because I think that that would be helpful. Pauline McNeill also asked why we are removing section 23D now. This is taking place in the broader context of our work with partners on remand issues.

I will now speak directly about Pauline McNeill’s amendment 65, which seeks to remove completely section 3 of the bill. As we know, section 3 repeals section 23D of the Criminal Procedure (Scotland) Act 1995. The amendment would mean that the current restriction on bail in section 23D would continue to apply alongside the newly proposed bail test that is set out in section 2 of the bill. I understand that the amendment has been lodged because of concerns that have been expressed that the repeal of section 23D could put victims of violent crime, domestic abuse and sexual offences at greater risk of harm. It is entirely right to ask questions about the impact of the repeal, and I want to address them directly.

First and foremost, I want to reassure all victims of crime and those who tirelessly represent their interests that I am clear that remand will continue to play an essential role in protecting victims and the wider public. The bill does not change that. Public safety and victim safety are at the heart of the new bail test. As I have said, there are, of course, occasions when remand is absolutely necessary in order to protect victims from harm, particularly in cases of sexual or domestic abuse. The new bail test will ensure that that can happen.

The bill proposes to repeal section 23D for one simple reason, which is to ensure that the same core bail test applies in all cases. In its place, the new bail test explicitly highlights for the first time the importance of ensuring the safety of victims from harm. The bill not only does that but defines safety from “harm” as safety from both “physical or psychological harm” in recognition of the harm that is caused by threatening or coercive behaviour, which is an insidious feature of domestic abuse. That means that, when the court considers that an accused person poses a risk to public safety, including the safety of the victim—the type of person to whom section 23 currently applies—remand can be used. In fact, the proposed changes to the new bail test emphasise that.

I note that, as Pauline McNeill mentioned, there is strong support for the simplification measure among those who use bail law. It has been said that repealing section 23D gives the court improved, rather than reduced, discretion to fully consider the facts and circumstances of each case, including the risk of harm that is posed to victims.

For all those reasons, I ask Pauline McNeill not to press amendment 65. If she does, I respectfully request that committee members vote against it.

I will speak to amendments 28 and 29 and then to other amendments in the group.

Although concerns have been expressed about resourcing the role of justice social work, the bill requires only that the courts give justice social work the opportunity to provide information relevant to the question of bail; it does not place a duty on justice social work to do so. We deliberately framed the provisions in that way to ensure that local authorities will always have the opportunity to provide information but that it will be for them to decide whether to do so in any individual case.

That is why I said that I was happy to discuss the matter further with Liam MacArthur ahead of stage 3. However, we must be very mindful of unintended consequence in that area, for the reasons that I have laid out.

It is also important to stress that the prosecutor, who acts independently in the public interest, is best placed to provide complainer safety information to the court, which would be presented as part of their submission on bail.

I will address some of the resource issues before I move on to the amendments in the group that were lodged by Collette Stevenson.

As I have already said to committee, I understand the concerns about the potential financial impacts of the bill. Those are laid out in the financial memorandum, but, to offer further reassurance to committee, I note that we have worked with Social Work Scotland, which is supportive of our approach in and around justice social work and bail. That also applies to the Convention of Scottish Local Authorities, the Scottish Courts and Tribunals Service and others. We engaged with those organisations as part of our work to establish the estimates in the financial memorandum. I stress that we will continue to work with those organisations on the implementation plans for the bill. As we all know, Parliament agrees to the Scottish budget annually.

Collette Stevenson’s amendments 52 and 54 would prescribe certain information relating to the complainer that justice social work must put before the court when taking up the opportunity to provide information that is relevant to the question of bail. I understand the intention behind the amendments. However, they would have very considerable resource implications, as justice social work is not usually involved in providing information to the court about complainers. There has been no consultation on creating such an expanded role for justice social work, and we have already heard concerns about resourcing.

That aside, it is unrealistic for justice social work to provide information of that kind in the timescales prescribed by the bail process, particularly in custody cases, because justice social work may not have any pre-existing relationship with the complainer. We also know from the experience of specialist domestic abuse advocacy services such as the advocacy, support, safety, information and services together—ASSIST—project that, in the wake of the trauma and confusion of an incident, complainers are not always physically or emotionally safe enough at that stage of the process to engage.

An amendment of the bill is not necessary to broaden the role of justice social work, because section 1 does not prescribe the type of information that justice social work must provide on the question of bail. Given those concerns, it is something that could be for consideration in the medium term, and I would be happy to discuss further what, if anything, could be planned for outwith the bill process.

Pauline McNeill’s amendment 53 seeks to provide that, where justice social work intends to provide information to the court on the question of bail, it must do so within timescales determined by the sheriff or judge. As I explained in relation to amendment 49, any delay in justice social work providing information would not change the timing of the bail decision.

There are a number of issues to clarify and put on the record, and I hope that colleagues will bear with me.

It is apparent that Ms Stevenson’s amendment, which is to be pressed not by her but by Mr Greene, would remove section 5 from the bill in its entirety. I make it clear to Ms Stevenson and others that section 5 is not about the existence of electronic monitoring of bail—that already exists. There are important debates and factors to consider further in relation to how the use of electronic monitoring of bail could be enhanced. It exists now in 21 local authority areas, and it is coupled with bail supervision, which exists in 30 areas. That is a separate matter, and we need to be clear about that.

All that we are seeking to do is give the court the option to acknowledge good behaviour by a person who is being electronically monitored. Although a restriction of liberty is not the same thing as a deprivation of liberty, it is nonetheless a restriction. If someone is sentenced, it would not be unreasonable for the court to have the option to take their behaviour into account or not to do so, as it sees fit.

Our approach has been consulted on; I take exception to the suggestion that we have sneaked it in.

In a moment, Mr Findlay.

For the record, before I make some more formal comments, I refer members back to the comments that I made when we debated the amendments in group 3. Remand remains an essential component and option to protect victims who are at risk of violence—including domestic violence—whether physical or coercive.

I will make more specific comments about resourcing issues in a wee while, but the heart of the matter here is whether justice social work has a relevant contribution to make or relevant information to pass on. The amendments that we are discussing now are about the practical impact of those contributions rather than about resourcing. Of course, when justice social work has a valuable contribution to make, it should be enabled and empowered to do so.

Consequently, amendments 28 and 29 are, in my view, unnecessary, although I can understand why they have been lodged. If a way can be found, ahead of stage 3, to reframe the ability of justice social work to provide the court with information, I will be happy to consider that. However, I think that the bill currently delivers what we want in this area.

Pauline McNeill’s amendment 49 seeks to remove the requirement for the court to provide an opportunity for justice social work to provide information that is relevant to the question of bail. It has been suggested that decisions on whether to admit an accused to bail could be delayed by section 1, but the approach in the bill will not result in unnecessary or longer periods of remand, because, under existing bail law that will continue to operate, the court has only until the end of the day after the accused person’s first appearance to make a formal bail decision.

Sorry, convener, it is a long time—five years—since I have done stage 2, and I was unsure whether I was permitted to intervene, being a guest of the committee and the person under scrutiny.

I want to give some clear reassurance to Pauline McNeill and Jamie Greene. Perhaps I did not mention it earlier because, for me, it is stating the obvious, but previous convictions are, of course, a consideration. People will come to a judgment—whether it is the justice social worker, the prosecutor or the court itself, which will be the final arbiter—on the significance and relevance of previous convictions. They are a fundamental part of any assessment of any alleged offender in any circumstance. I hope that that is helpful.

We are talking about a section of the bill as introduced. I am responding to endeavours to remove that entire section from the bill. Members are entitled to lodge any amendments that they wish, but I am entitled to put forward arguments to protect the overall integrity of the bill.

Section 5 is only a small part of the bill, but I will go through the reasons why I think that it has merit, notwithstanding the fact that there may be further scrutiny and debate and that other amendments may be lodged. Section 5 adds new section 210ZA to the Criminal Procedure (Scotland) Act 1995. It provides the court with discretion during sentencing to take into account a period that the accused person has spent on electronically monitored bail with a curfew condition, which is referred to as “qualifying bail”. Section 5 also sets out how that ought to be taken into account.

The system is based on a similar one in England and Wales. For example, a person might be on qualifying bail for a period of six months. If, on conviction, they were to receive a sentence of 18 months, new section 210ZA of the 1995 act would enable—but not mandate—the court to decide how much, if any, of the six-month period was relevant for sentencing purposes. That might be none, some or all of that period.

The court will make its assessment on the basis of the circumstances of each individual case. For example, if the person has not complied with the curfew, the court may decide that none of the six-month period is relevant, which would mean that the person would enter custody to serve their sentence with none of the time spent on qualifying bail being treated as time served. Equally, if a person has fully complied with the curfew, the court may decide that the whole of the six-month period spent on qualifying bail is relevant.

Once the court has decided what the relevant period is, the bill provides a formula for the court to apply. Importantly, the formula does not treat time spent on qualifying bail and time spent in custody as equivalents; they are not. Instead, the formula in the bill converts every two days of the relevant period spent on qualifying bail as meaning one day of the sentence served. The use of the formula will ensure that a consistent and fair approach is taken if the court considers that the time spent on qualifying bail should be accounted for at sentencing.

I indicated earlier—in relation to the amendments in and around justice social work, for example—my willingness to have further discussions, whether that is on legislation or non-legislative approaches.

I know that we have not yet got to these matters but, with regard to reporting, I am willing to ensure that we have the right reporting mechanisms that can give us some facts, in particular through the use of data to help our understanding. I hope to do that in a way that is comprehensive, and through a more collective approach, because—this is not meant disrespectfully—if it is done sporadically across various amendments from different parties, the result could be less than cohesive.

There is another factor to bear in mind, which gets to the core of Mr Greene’s concern. It is about risk, and how all the players—the prosecution, the defence and justice social work—take information and evaluate the risks, and come to a judgment about those risks, whether to victims or to the public more generally.

The bottom line is that risk is appropriately a matter for the court, because it will adjudicate on that when it makes its bail decision. Of course, it is also a matter for the individual players, whether those are justice social workers or the prosecution, who will provide information that is based on an understanding of risks or potential risks.

Those are matters of professional judgment, and they are quite difficult, if not near-impossible, to legislate for in the bill, but there are other ways in which we can tackle the issue—for example, through other aspects relating to the bill such as standard operating procedures, risk assessments or throughcare standards. It is not due to a lack of willingness on my part.

In conclusion, for the avoidance of doubt, I ask members not to press or move their amendments in this group. If they do so, I ask members to vote against them.