Chamber and committees

At the risk of stating the obvious, I say to Mr Greene that it is Parliament’s job to make legislation, and legislation either gives very wide powers or places some restrictions on the decision-making powers of independent agents—in this case, for good reasons of victim and public safety. It is, of course, the job of judges to interpret law, but we have to make this law on the basis of our all agreeing that, although there is always a place for remand, remand figures are too high overall.

There are many factors contributing to that situation, some legislative, some cultural and some relating to policy and practice—indeed, we have been engaging in the debate about resources—but the bill is built on the acknowledgement that remand, which should be a very short time in custody, is largely, though not always, ineffective; does not reduce but actually increases reoffending; and, as a result, increases the risks to victims and community safety.

We all broadly agree on that and on what we are trying to achieve. At the risk of being less than diplomatic, my concern about some of the amendments, although well intentioned and about further scrutiny, is that their effect would undermine the overall approach of the Government’s policy and what we are trying to achieve.

Amendment 31, in the name of Katy Clark, may seek to widen the use of remand by adjusting the new bail test. However, we do not think that it does, as the new bail test already covers the situation that the amendment seems intended to address. The court can refuse bail to an accused person on the basis that they pose a risk to public safety. In addition, the current law requires that the court must consider the extent to which the public interest could be safeguarded by the imposition of bail conditions in the event that bail were to be granted. The bill does not change that. That includes the use of electronic monitoring.

Katy Clark’s amendment 32, which relates to the intimidation of complainers, witnesses or others and the definition of the phrase

“prejudice to the interests of justice”,

would not have any practical effect, other than add to possible confusion on the bail test. The risk that an accused may interfere with witnesses is already one of the listed grounds for refusing bail. The definition of

“prejudice to the interests of justice”

under proposed new section 23B(9) of the 1995 act includes

“the course of justice ... being impeded or prejudiced as a result of ... the giving of false or misleading evidence, or the quality of evidence, or its sufficiency in law, being diminished.”

Of course, that would be the intended effect of witness or complainer intimidation.

Amendment 57, in the name of Russell Findlay, which seeks to amend the new bail test in relation to an accused person absconding, is unnecessary. Under the new bail test, in determining whether there is a good reason for refusing bail, the court must consider that at least one of the grounds in section 23C(1) of the 1995 act applies. Section 23C(1) already includes the grounds of there being any substantial risk that the person might abscond if granted bail. The risk of an accused person absconding is also covered within the meaning of

“significant risk of prejudice to the interests of justice”,

for the purposes of the courts’ determination as to whether that ground has been established in order to justify remand. The bill provides that the definition of

“prejudice to the interests of justice”

includes

“the accused person evading justice as the result of the proceedings being delayed or discontinued”,

which, of course, would be the effect of a person absconding.

Katy Clark’s amendment 2 would remove the limitation on the use of remand where the accused poses a risk of failing to appear in court. Under the bill, in summary proceedings, the court can consider the failure-to-appear ground in only two scenarios. The first is if the accused has failed to appear at a previous hearing of the case, having been granted bail or ordained to appear. The second scenario is that the charge in respect of which the accused is appearing before the court is a failure-to-appear offence. If neither of those situations arises, the ground cannot be used to justify a refusal of bail.

Those restrictions do not apply in solemn cases. The restriction for summary cases in the bill, which amendment 2 would remove, is a proportionate step in minimising the use of short periods on remand pre-conviction, while ensuring that summary courts retain the power to remand those who are considered to pose a risk to the delivery of justice.

Amendments 33 and the consequential amendment 34 would make changes to section 2(3), should amendment 2 not be agreed to. The amendments, which would replace the reference to “relevant diet” in the bill, are not necessary. Although their effect is somewhat unclear, the amendments seem to be based on a view that the definition of “relevant diet” does not cover all court hearings at which an accused may potentially fail to appear. However, the definition covers all court hearings, so the amendments are not needed.

Amendment 30 seeks to define the concept of public safety for the purposes of the new bail test. I do not think that a definition is needed and I am of the view that providing one would carry significant risk, as was acknowledged in the committee’s report and discussed at stage 1.

The words “public safety” have been part of bail law since 2007, and I am not aware of any cases in which the lack of a statutory definition has caused an issue. The bill does not include a statutory definition of public safety, and it is the policy intention of the bill that it is for the courts to continue to interpret and apply the term in the same way as they have been doing until now, by giving the words their ordinary meaning. It is common practice not to include statutory definitions in legislation when the ordinary meaning is intended to apply.

I have highlighted the risk of providing a definition; I have concerns about the definition that is offered, too. Paragraphs (a) to (c) in amendment 30 specify examples of behaviour by the accused that might indicate a risk to public safety. Although those examples might be said to be broadly in line with our understanding of the term, by listing things to be included in the meaning of public safety, the term itself could end up being construed too narrowly by the reference to that list. The reverse could also be true, with a broader definition being applied than is otherwise intended.

A definition could create uncertainty. For example, in relation to the proposed definition, it is unclear what amounts to being

“known to demonstrate aggressive, abusive or antisocial behaviour”,

as set out in paragraph (a). There is uncertainty, too, about the terms that are used in paragraphs (b) and (c). Amendment 30 also widens the concept of public safety beyond its ordinary meaning to include mere “likelihood to re-offend”, with no link to public safety being needed.

Amendments 60 and 64 would insert a regulation-making power that would require ministers to

“set out ... the meaning of ... ‘public safety’”.

A statutory definition of public safety is not necessary and is not without risk, whether it is provided in the bill or done through regulations.

Amendment 63 would require the Scottish ministers to

“consult ... about the impact of the public safety test”—

which forms part of the new bail test—and to publish a report relating to that consultation.

I have lodged amendment 8, to which we will come later, which will require the Scottish ministers to publish a report on data relating to bail and remand. That is, in my view, the appropriate approach to follow instead of focusing a report on the impact of an individual element of the bail test. Bail decisions are based on the individual facts and circumstances of each case and are made independently by the court; as such, a precise measure of the impact of the public safety test would be impossible to deliver.

Lastly—with thanks to the committee for its forbearance—I come to Jamie Greene’s amendments 61 and 62. Amendment 61 would require the court to ask

“the prosecutor or officer of the local authority to provide the information”

relating to public safety that was proposed in amendment 52. In our consideration of the previous group, I set out concerns about statutory provisions in the area that amendment 52 covers; the same concerns apply here, which relate to the deliverability of, and appropriateness for, such a significant expansion of the role of justice social work.

Similarly, I set out in response to Liam McArthur’s amendments 50 and 51 that the prosecutor can, and routinely does, make submissions to the court on the question of bail. As part of that, the prosecutor can, and should, reflect any victim safety concerns that the prosecutor considers are present, for the court to be aware of. As I said on the previous group, I am open to further discussion with Mr McArthur and others.

Amendment 62, in the name of Jamie Greene, seeks to require the prosecutor, the defence or justice social work to provide an opinion on risk in order that the court may consider public safety matters in accordance with the new bail test.

The 1995 act, if it is amended as the bill proposes, will ensure that it is for the relevant party—the prosecutor, the defence or justice social work—to decide whether to give the court an opinion as to any risk of something occurring, or any likelihood of something not occurring.

Katy Clark and Jamie Greene mentioned the information that should go to victims. Information should, indeed, go to victims, and that should happen via the Crown Office and the victim information and advice team. If concerns exist about that not happening—members might have constituency cases, for example, or might have heard experiences from victim support organisations—I am happy to hear them.

Let me be transparent with the committee and say that there remains a question as to whether the solution can be found through legislation or through policy, organisational structures or, indeed, resources. I am happy to have a broader discussion about that point, but—without ruling anything in or out—the solution to the problem might not necessarily be legislation.

I have spelled out my real concern—and, indeed, the Government’s concern—that a direct impact of separating the two requirements of the new bail test and making them alternative rather than cumulative—it would help if I could say the word—would be a significant expansion of the court’s ability to remand under the current bail test. That is where our nervousness arises—that this is not a step forward but a step back.

Amendment 58, in the name of Jamie Greene, also seeks to expand the use of remand by inserting a catch-all provision into the new bail test to enable the court to refuse bail where it considers that necessary

“due to any other substantial factor which appears to the court to justify keeping the person in custody.”

The amendment would give the court a broad discretion to refuse bail, as long as one of the grounds in section 23C(1) of the 1995 act applied.

Another amendment that seeks to expand the use of remand is amendment 59, in the name of Russell Findlay. It would expand the reasons for which the court may consider it necessary to refuse bail—

Yes.

I will pick up on a few points in and around community justice services. We invest in community justice services to the tune of £134 million. Of that, £123 million is ring fenced for local authority criminal justice social work services, and some of that—around £3 million—is ring fenced again in relation to bail assessment and bail supervision.

I acknowledge that prison is expensive and that secure care is even more expensive. If we use either secure care or prison inappropriately, it is a very expensive way of making matters worse. We invest in community justice services not because they are cheaper but because the evidence tells us that we should be investing in them. I will not deny that there is pressure on the public pound. Many of the challenges that local government is experiencing are the same as those that the Scottish Government is experiencing across the board.

I will never demur from the importance of investment. However, while acknowledging the challenges, I point to the fact that the local government settlement went up in real terms while there was a real-terms reduction to the Scottish Government block grant. Nonetheless, I recognise the pressures that mean that we need to work even harder in relation to those shifts in culture, policy and practice that are first and foremost based on the evidence. I assure Katy Clark that investment in community justice services will continue.

I point to the statistics that I quoted to Ms McNeill earlier. We are seeing the number of prosecutions of children and young people decrease, the number of custodial sentences for young people decrease and the number of referrals to the reporter on offence grounds decrease. That would indicate that we must be doing something right around supporting young people, reducing reoffending and focusing on the best disposals for them and indeed for the community.

There are always competing demands around shifting resource from acute care to community services. For example, even if we reduce a prison’s population, we still need to keep that establishment up and running.

Historically, the ring fencing of funding for criminal justice social work has not always been popular, but it is there for good reasons. It came about more than 20 years ago because criminal justice services were not getting their fair share of resource. Because it is quite a small service in comparison with, say, children and families or community care services, it had been sidelined. I will certainly want to protect the position of community justice services as well as community justice social work services.

I will do that in general terms. In the old days, what we called community service was a kind of fine on the person’s time. These days, community service sits within the broader panoply of community payback orders, within which there can indeed be requirements for rehabilitation measures to be in place. We have arrangements in and around electronic tagging and monitoring. There are also arrangements around sex offenders registration and multi-agency public protection arrangements, or MAPPA. In some instances, courts can ask for report-backs in order to review a situation.

A range of disposals and approaches are available to the court, and some of those rehabilitative measures can be intensive, whether they involve one-to-one work or group work.

It is important to consider the financial stability of the secure sector. We know, for example, that it needs to be at 90 per cent capacity—that is its financial stability vector, if you like. The system has capacity for Scotland just now, but there is reliance on cross-border transfers. That is why we have started to fund beds, and there are plans for us to increase the funding of beds so that we can ensure that children who are resident in Scotland can be cared for in secure if that is required.

I do not mean to sound dispassionate in any way, but the important issue here relates to what the evidence tells us about what will work to rehabilitate people who have come into conflict with the law and to improve community safety. I am of the view that members of the judiciary and members of the public are well able to engage in that debate based on the facts.

Particularly when we are dealing with sensitive and emotive issues—and there is, of course, great public interest in this issue—it is important that we have the courage to talk about what the evidence tells us and what will work in rehabilitating young people or other offenders and how that will improve community safety. It is important that the bill sits in the context of a wider refocusing of justice policy.

The bill as it stands places a duty on the principal reporter. Just now, the reporter has some discretionary powers, but the bill will put a duty on him or her. Where the reporter has sufficient information and contact details for the victim—I appreciate that that is not always the case—they can contact that person and advise them of their right to receive information, and ask whether they wish to do so. The type of information that the victim will be entitled to receive if they so wish is notification that a hearing is taking place and of the outcome of the hearing.

I will just check with my officials, and the lawyer, that I have articulated accurately, for Mr Findlay’s interest, how the bill currently stands.