Chamber and committees

Apologies, convener—I have quite a long speaking note for this group of amendments.

I will first speak to amendments 44 to 46, which were lodged by Mr Kerr, and amendment 93, which was lodged by Pauline McNeill.

Amendment 44 would not be compatible with the roll-out of the digital evidence sharing capability—DESC—system. Where electronic evidence is stored on DESC, as opposed to on a tape or disc, there will be nothing that can be physically lodged and the list of productions will simply note that the item in question is a digital production. Given that the amendment would require the lodging of a physical item, it would not permit the use of DESC to store digital evidence and share it in court.

Amendment 45 would have the effect of making the use of physical productions the continued default. That would also significantly inhibit the roll-out of DESC and require substantial amounts of court time and resource to be taken up with applications to allow images to be used.

Amendment 46 is unnecessary and would serve no practical purpose. The ability for both the defence and the prosecution to apply for a judicial direction where they consider the image to be insufficient already provides a mechanism to deal with those issues clearly and promptly.

We are in the unusual yet fortunate position that many of the provisions in the bill mirror those that have been in force for more than five years, since the emergency legislation that was passed in the early weeks of the pandemic.

Throughout that time, we have engaged with justice partners to identify how the provisions have been working in practice, and the committee has heard evidence on that, through the stage 1 process and, in previous years, when considering extension of the temporary framework.

Stakeholders and justice partners have consistently told us that national jurisdiction provides flexibility to allow custody hearings to be managed quickly and efficiently, ensuring that the accused does not have to be transferred from one court to another for what are often short hearings. When the accused is subject to a number of outstanding warrants, national jurisdiction hearings can also facilitate bringing them together for pleas and sentencing, thereby minimising churn in court business.

I turn to Sharon Dowey’s amendment 59. Prosecutors take decisions that are based on the public interest. They are bound by the “Prosecution Code” and guidance that is issued by the Lord Advocate. It is not necessary to require them to consider the facts and circumstances of the case, as that is a fundamental part of their approach.

It would not be appropriate for them to make decisions that are based on cost and expense incurred by others. National custody jurisdiction does not include trials, so the requirement to consider the travelling time and expenses of witnesses is not relevant. In any event, it is unclear how prosecutors would know that type of information at the stage of marking a custody. They might not even know the identity of the accused’s lawyer at that point. Amendment 59 would introduce unnecessary and onerous obligations on prosecutors and, therefore, I cannot support it.

The other amendments in this group seek to adjust the end point of national jurisdiction. Ms McNeill’s amendments 51 and 53 would provide for the continuation of national jurisdiction—beyond the initial custody appearance—to be subject to the accused’s agreement. I am not persuaded of the merits of an approach in which matters of the court’s jurisdiction would be subject to a veto by the accused.

Ms McNeill’s amendment 52 would replace the provision in the bill that ends national jurisdiction in solemn proceedings on full committal, with a provision that would end it after bail has been granted. Although that might be intended to provide a clear end point before a trial, the effect would actually be to extend the court’s national jurisdiction in solemn custody cases, when the accused has been fully committed and not released on bail. That is contrary to the approach of the past five years and the committee’s stage 1 recommendations. Therefore, I cannot support any of Ms McNeill’s amendments.

I have lodged my own amendments, which I urge the committee to support. I believe that they address what I see as the intention behind Ms McNeill’s amendment 52.

My amendments 8 and 10 make it clear that the default will be for national jurisdiction to end following initial custody hearings, and only in specific circumstances will national jurisdiction continue until the conclusion of a case. The amendments provide that national jurisdiction in solemn proceedings will come to an end at the point at which the accused is fully committed. They also recognise that not all accused will be fully committed, as that is not a compulsory step when the accused has been bailed. As such, my amendments further provide that, when there is no full committal, national jurisdiction can continue only when an accused pleads guilty before the first diet. The amendments also make it clear that first diets, and any subsequent solemn proceedings, cannot be heard under national jurisdiction.

If someone is recalled from HDC, that would have to be proportionate in relation to the breach of licence. The decision would be framed by whether someone has breached their licence and the circumstances around that. Although optimising the use of home detention curfew assists with the management of a very large prison population, it is also a reintegration tool. It is certainly not a silver bullet for our large prison population. I reassure Mr Kerr that the operational decisions that the SPS makes are based on an assessment of risk, its partnership work with communities and the information that it has about whether someone has breached their licence or not. Those are the things that determine when a decision has to be made about whether someone is recalled. If it is helpful, I could ask the Prison Service to provide more information to the committee on that point.

The Scottish Government recognises the issues that Ms Chapman seeks to address in her amendment. There is—entirely understandably—a growing focus on domestic abuse in civil cases and, as Ms Chapman’s amendment mentions, in particular in family cases relating to matters such as child contact and residence. The civil-criminal interface on domestic abuse is of specific concern, given that there could be a criminal case on domestic abuse and parallel civil proceedings on child contact in which the domestic abuse is raised.

The Scottish Government has a programme of work to consider and tackle the problems in this area. I outlined the work that we are doing or plan to do when I responded on 12 March this year, during stage 2 of the Victims, Witnesses, and Justice Reform (Scotland) Bill, to an amendment that had been lodged by Russell Findlay. I will briefly run through again what we are doing.

First, we have on-going work that is using improvement methodology to consider the criminal-civil interface in relation to domestic abuse. That included two workshops last year with justice agencies and with the voluntary sector, and we are considering possible changes to take forward.

Secondly, as I said on 12 March this year, the Scottish Government will carry out further research on integrated domestic abuse courts, which can look at both civil and criminal aspects of domestic abuse. Such courts operate in some other jurisdictions. Our work on that research has started, and we will publish our findings.

Thirdly, I also said on 12 March that the Scottish Government would prepare a policy paper on proposed civil court rules, which will go to the Scottish Civil Justice Council. Rules are made by the courts rather than by Government, but we can and do put forward proposals. That paper will propose changes to court rules on the information regarding domestic abuse and sexual assault that is provided to civil courts. A draft of that policy paper will be ready by the start of stage 3 of the Victims, Witnesses, and Justice Reform (Scotland) Bill.

Finally, we intend to consider whether the Scottish ministers should make regulations to confer on the courts a power to make an order in relation to a person who has behaved in a vexatious manner in civil proceedings. That reflects the suggestion that has been made to us that some people may raise repeated court cases in order to continue their domestic abuse. Before making any such regulations, the Scottish ministers must consult the Lord President, which I intend to do.

As I said, although I am not entirely certain that they are matters for the bill before us, I nonetheless very much recognise the concerns that have been raised by Ms Chapman. Given that the Scottish Government already has a number of pieces of work under way in this area, I ask Ms Chapman not to press amendment 54.

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.