Chamber and committees

Throughout our justice system, we need to get better at giving the right information to victims at the right time. The issue that you raise is part of a much bigger discussion and, indeed, a much bigger body of work. The question pivots around the need to respect personal agency when it comes what information victims want to receive. I am sympathetic to the calls for the system to be more proactive, while respecting personal agency.

The issue with fiscal fines is that, given that they tend to be used in less serious cases—and I make it clear that there is no excuse for any offending—it might be difficult to identify the victim. From an operational point of view, I am not sure how that would be done. Those who operate the system might have more fruitful and practical ideas about that. As a point of principle, however, the justice system needs to find better ways to proactively inform victims.

I recognise and endorse the good work that the SCTS has led in tackling the backlog. The backlog has reduced by 52 per cent and, in fact, the Covid backlog is almost away. However, it is fair to talk about the increasing business for prosecutors and, therefore, the court system. I recognise that demand on solemn court capacity will increase.

I have been to the committee twice now to extend the temporary measures. We have always had a robust debate and there has been some reticence among members of the committee every time that I have come to extend those time limits. I have been clear, and the legislation has always been clear, that the remaining solemn time limits were going to come to an end.

Although there is scope to extend time limits on a case-by-case basis, and that has existed for a long time, I do not want court recovery to be jeopardised and I do not want our court system to be wrapped up in procedural hearings, as opposed to getting on with the business of trials. We are therefore looking closely at the notion of a savings provision, which was one of the suggestions. That would require a statutory instrument and, therefore, the approval or otherwise of the committee. It would ensure that the current temporary time limits would apply to cases that are already in the system prior to 1 December 2025. For new cases that come into the system after 30 November 2025, the pre-pandemic time limits would apply.

To me, that speaks of an orderly process of transition. I want to explore that possibility further with partners, but the view of committee members is also important in that regard.

I will address the national jurisdiction point first and then, if it will be useful to the member, Louise Miller can expand on any points of detail.

Perhaps I can distinguish, first of all, between summary and solemn cases. I am talking about national jurisdiction here, which, of course, can be either in person or virtual. Sometimes we assume that national jurisdiction equates to virtual custody cases, but it can happen in person, too. In summary cases, national jurisdiction applies to appearances from custody but ceases after the accused pleads not guilty. If the accused pleads not guilty, the case has to go on to further proceedings and to trial, so it is very clear when national jurisdiction stops.

There is also clarity on when national jurisdiction ceases in solemn cases. In such cases, it ceases after the accused is fully committed, so it is only used for appearances in relation to questions of bail, not broader appearances with regard to first diets or trial court.

Over to Louise.

No, I do not believe that that is a risk. That is partly because of the breadth and depth of the work undertaken by the task force, the members of which have included the Crown Office, Social Work Scotland, the Convention of Scottish Local Authorities, victim support organisations, Scottish Women’s Aid and academics. The issues have been well debated—notwithstanding the fact that it is also for this committee to debate and test them. I will not repeat what I said to the convener, to avoid the risk of incurring her wrath, but the purpose of the review is very different from the purpose of the previous legislation, which is to secure convictions.

I listened carefully to the comments that were made by, for example, Marsha Scott from Scottish Women’s Aid, and I have also seen the written representations that have been made to the committee. The point that we have to capture is that, although the term “child” is normally defined in statutes to mean a person below a certain age, that approach has not been adopted in the bill, because it is about relationship and connection, and the child could be an adult who is living independently.

We are all familiar with cases where children are harmed or murdered as part of a coercive control and domestic violence relationship but, for example, someone’s child can be an adult and can be living independently. Given the cases that have occurred in the past, across jurisdictions, if we get into defining children by age, we will have to define all sorts of other categories of people. Therefore, as things stand, my view is that we are trying to capture those who have been impacted, where there is a relationship between two people, and regardless of age. The phrase that we have used in the explanatory notes on the bill is:

“The nature of the relationship is what matters”.

The default position is that reports should be shared with families and loved ones. Nonetheless, consideration needs to be given to sensitive information about survivors who are living. Thought has been given to the need to respect people’s privacy. We live in a world of data protection and the general data protection regulation, but we want to be in a position in which information is shared with families who, in essence, are seeking answers. That is important to individual families, but the learning from such cases is also important to us as a nation.

With regard to what is published, we want to ensure that the learning and the findings are clear. There are always—rightly—sensitivities around information about individuals. Other matters need to be considered, too. I do not want to be in any way graphic, but we would not want to advertise in detail how someone took their life, for reasons that I am sure are obvious to Mr MacGregor. Under the auspices of the task force, there is a working group that is working through the issues of data and information sharing, confidentiality and transparency. That group is in regular engagement with the Information Commissioner’s Office.

The whole purpose of requiring ministers to report to Parliament every two years is to provide transparency on findings and to give visibility to learning or points of failure that need to be addressed on a systems-wide basis. It is hard to predict what the costs might be, because there are some lessons and recommendations that one could anticipate could be adopted by engaging in different ways of working, which might not incur costs. However, there might well be learning that has financial consequences, and it would be for Parliament and the Government, as well as for stakeholders, to pursue that in the normal fashion.

I hope that I am not being obtuse. Extra funding has not been ruled in or ruled out; whether that is required will depend on the findings. I certainly acknowledge that recommendations could be made that would mean that financial costs would be incurred.

It is a matter for my attention, and I am sure that MSPs would make sure of that if they had any doubt about it.

All that I am speaking to, Ms McNeill, is the fact that that reform is an on-going process. If we sat back and waited until every business case was completed, the legislation would be playing catch-up. Part 1 of the bill has come about because certain provisions in the emergency coronavirus legislation are coming to an end. Financially, we cannot afford to return to—heaven forfend—wet signatures, when, by and large, the court system communicates via electronic transmission. We do not want to return to those pre-Covid days, so we need to ensure that we are not turning the clock back and that the provisions in the bill will allow justice partners to proceed. I cannot give financial commitments in the absence of system-wide operational models or in the absence of a business case.

Earlier, I said that I endorsed the approach of the SCTS system in pausing the many and varied pilots, getting the learning and seeing how a systems-wide approach can be developed, particularly around virtual custodies. There will indeed be savings for the police in that. It is the right approach, and one that I support.

There will indeed need to be a retention and disposal policy—that is for sure. It will need to be developed. The Government will have an interest in that, but the policy will need to be informed and developed by the justice agencies with expertise in the area, and it will need to be done on a partnership basis.

As for safeguards, the bill gives the court the power to say that the evidence has to be physical, as opposed to a digital image, so that it can exercise that power when it is satisfied that such an approach would be appropriate. The bill also makes digital productions for solemn cases relevant in issues and objections. The use of digital evidence can be a preliminary issue; representatives can, with notice, raise objections, and the court can grant leave to raise a preliminary issue if it believes that cause has been shown. There are, therefore, some safeguards and powers that the court can exercise in particular circumstances, if it so wishes.