Chamber and committees

That will be a decision for legislators—that will be for you and me. I am not going to make a blanket determination on that.

I would be happy to engage directly with Scottish Women’s Aid on that, because I do not want that to be the perception or the reality. As Ms Chapman mentioned, in the on-going improvement work following the workshops that we undertook with partners, 10 areas have been identified in which more detailed work is needed, including training, data sharing, court processes and structured case management. Ms Chapman spoke about some of the work that needs to be developed.

Rather than make promises now that I cannot keep—other than to say that I will want to give a fair hearing to all of this—I will simply say that we will consider matters further over the summer. I have a meeting arranged with Mr Findlay, and I would also be happy to meet Ms Chapman, separately or together with Scottish Women’s Aid, over the summer, so that we can at least ensure that we look with a fresh pair of eyes at where we are, what the timescales are and what the journey ahead is.

I would consider best practice to be aligned to modernising our criminal justice system so that—in the example of DESC—evidence can be shared from crime scene to courtroom. That supports the overall efficiency and effectiveness of the justice system and is to the benefit of everybody who comes into contact with it. As a programme of work, DESC has benefited from £33 million of investment and has the support of our justice partners. I hope that you understand my reticence about rolling back on the use of DESC. It is right and proper that I, with respect, point out that amendment 44 would not permit the use of DESC to store digital evidence and share it in court, which is one of the main benefits of that significant programme of reform.

My comments on amendment 46 also apply to Ms McNeill’s amendment 93. The bill, and my amendment 5, which I will come on to, clearly set out the process by which parties can apply for a judicial direction to have a physical item produced. Amendment 93 would give parties an unqualified right to have items produced when they requested it, with no role for the court to decide whether that was necessary to avoid prejudicing the fairness of proceedings.

I take this opportunity to reassure Mr Kerr and Ms McNeill that there is an existing common-law right for the defence to examine any physical item whose condition is critical to the case against the accused, even when it will not be produced at trial. There is nothing in the bill that interferes with that right, which will continue to apply even when an image is used at trial. That right should be exercised promptly after the defence is made aware of the item through disclosure by the Crown and should inform any application to require the physical item to be produced in court instead of the proposed image.

At this point in time, I have no thoughts or plans in the immediate or short term to use the power, if Scottish ministers retain it. It is not a subordinate power that has been used very often. The committee should bear in mind that the upper level did not increase from 2007 until the coronavirus pandemic hit. I put on the record that I do not have any plans to use the power post this legislation, but it is important that it is future proof.

I have listened carefully to Mr Kerr and the position that he has put forward. I am, of course, aware that there has been a great deal of debate on the subject of the extended time limits that have been put in place to assist the criminal justice system to manage the backlog of cases that has built up as a result of the pandemic. There has been significant progress in addressing those backlogs, and it is for that reason that the only time limit extension provisions that remain in effect as of today are those that relate to solemn cases. Those provisions will expire later this year, on 30 November.

As I set out to members when the committee considered the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Saving Provisions) Regulations 2025 in April this year, justice agencies have not raised concerns with me about the transition back to pre-pandemic time limits, provided that appropriate saving provisions are put in place.

I understand that amendment 55 is focused on how prosecutors and courts manage the transition. However, I have concerns about how it is framed. I do not think that it would be appropriate for the Scottish ministers to report on the ability of the courts to comply with criminal procedure time limits. That is because, under the Judiciary and Courts (Scotland) Act 2008, which was supported by all parties in this Parliament, the Lord President, as head of the judiciary, is responsible for the management of court business. The role of prosecutors is relevant, too, and they are, of course, also operationally independent of the Scottish ministers. The proposed reporting requirement would, in effect, result in the Scottish ministers being asked to offer an opinion on how court business was being managed by the Crown Office and the judiciary, and I do not think that that would be appropriate.

I also think that it is important to highlight a number of other issues with amendment 55. The amendment would require information to be broken down by reference to the positions before and after the changes that were made by the Coronavirus (Recovery and Reform) (Scotland) Act 2022 came into effect. However, that act simply re-enacted changes to time limits that were first made in the Coronavirus (Scotland) Act 2020, which was passed in the early weeks of the pandemic. As such, the use of that reference point would, in effect, provide information about the extended time limits but not information on the pre-pandemic time limits.

Further, there is an issue in relation to the concept of a time limit being met. Both time limits can be extended on application to the court on a case-by-case basis. It is not clear whether it is intended that those would be considered to have been met, because there was a new, extended time limit, or not met, because the extension had to be applied.

The proposed reporting period of one year from the date on which provisions in the 2022 act cease to have effect is also too short. That is because, in the light of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Saving Provisions) Regulations 2025, cases that are subject to the time limits that were set by the Coronavirus legislation will continue to be in the system for a considerable time after the provisions themselves have expired. Indeed, there will still be cases subject to the pandemic-era time limits in the system for six months beyond the point at which the amendment would require the report to be published. Further, as the pre-pandemic time limit for commencement of a trial in which an accused is granted bail is 12 months, no cases would have breached that time limit at the point at which the report had to be published.

More generally, I am not persuaded that such a reporting requirement is the best way to monitor the transition back to pre-pandemic time limits. The Scottish Courts and Tribunals Service already publishes extensive information about court business on its website on a monthly basis, including the average time between pleading diets and evidence-led trials in sheriff court cases, solemn cases and High Court cases. That has informed the Scottish Government’s understanding of how the courts have been managing the backlog of cases that built up during the pandemic. Of course, if, for any reason, the committee or any MSP wanted to garner more specific information, it would be open to them to request additional information from any justice agency.

For the reasons that I have outlined, I ask Mr Kerr not to press amendment 55. If he does, I ask the committee to vote against it.

I know that Mr Kerr and some of his colleagues have a very keen interest in fiscal fines. The matter was debated every time the coronavirus legislation rules were extended during the annual debates that we had at that time. I repeat that the introduction of a higher level of fiscal fines increases the number of cases and does not increase the number of offences that are encompassed. It is, in my view, appropriate that ministers have that power to make such subordinate legislation. It is subject to the affirmative process, so it must be fully democratic and transparent.

On the matter of the increases being linked to inflation, that is an action for Mr Kerr to pursue. I am focused on pursuing other actions right now, and making further changes to fiscal fines is not at the top of my list.

On amendment 58, in general terms, I note that the increased level of fiscal fines has been available to prosecutors since 2020, and the Parliament has had a number of opportunities to scrutinise and test the available evidence in support of their continued use. That included during the passage of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 and subsequent annual extensions, each of which required ministers to carry out a review and consultation before publishing a statement of reasons for extension. I am not persuaded that a further review of those embedded measures is needed.

On the specifics of amendment 58, the report would have to include an assessment of the number of fiscal fines that had been issued. That data is already published in the annual criminal proceedings data, as well as in statistics that are published by the Crown Office. I also understand that the Lord Advocate has regularly written to the committee on the use of the higher levels of fines and has offered to continue doing so.

The report would also have to cover the impact of the higher sum on reoffending levels and on victims. However, it would not be possible to produce anything robust on either of those aspects. There are many variables that will impact reoffending and victim experience, and it would not be possible to isolate and narrate the impact of a higher level of fiscal fines. The numbers that are issued are also too small to allow robust conclusions to be drawn.

Further, although I agree that it is always important to consider the impact on victims, I refer to the correspondence that the committee received from Victim Support Scotland in February, in which its chief executive said:

“victims have frequently told us that delays in the justice system can be a distressing and frustrating experience. VSS is satisfied with the notion that court time will not be tied up in prosecuting crimes that can be disposed of with a fiscal fine. Furthermore, we see a benefit for witnesses who will not have to attend court to give evidence if the offer for a fine is accepted.”

Finally, the report would have to cover the impact of the new level of fines on the courts. It is unclear how that could be assessed other than by looking at the numbers that had been issued and accepted, or deemed to be accepted, and noting that those were all cases that did not take up court time. As I mentioned, that information is already available.

For those reasons, I cannot support amendment 58.

No.

We are aiming for April next year.

My officials can correct me if I am wrong, but I think that it is the Criminal Procedure (Scotland) Act 1995 that sets out the procedures for financial penalties and the level of payment. The maximum level for a restitution order is £10,000, as is the maximum level for a fine. That is an established procedure for the courts.

It is also my understanding that the courts have the option of imposing a fine, a restitution order or another penalty and, if they wish, they can use a combination of penalties. I do not have the figures in front of me, but courts sometimes impose fines plus compensation orders. I do not know how common that is, but it is my understanding that the courts can use a combination of disposals.

The restitution order gives courts an additional option. They are under an obligation to consider the impact on the offender and their ability to pay. We are not changing how any of that operates, and such orders already exist. Where the court imposes a combination of compensation orders, fines and restitution orders, a hierarchy of payments is applied. When offenders do not have the means to pay the total amount, priority is given to payment of compensation orders and, thereafter, restitution orders. I hope that that helps.