Chamber and committees

There is nothing soft about our justice system. The Scottish crime and justice survey is an important flagship survey. It gives us good information and the longer-term trajectories speak to falling rates of youth crime and Scotland being safer. However, you are quite right to point to the fact that the proportion of violent crime where the perpetrator is a child has increased to 31 per cent of incidents. That is what I meant earlier when I said that there is newer information in the shorter term that gives cause for concern. We need to acknowledge that it is not acceptable and that it must be addressed.

You ask what has gone wrong. I think that it is the change in the behaviour of some young people due to the challenges that I spoke about earlier. I know that people do not always appreciate this, but it was ably articulated at the round-table discussion chaired by the First Minister and me that lockdown during Covid has had an impact on young people’s behaviour. Youth work leaders, people at the forefront of violence prevention and, of course, teachers in our schools will all narrate that as a reason. We have spoken at length about the online harms that are exposing our children to outside influences, and that is an issue. Related to that is the influence of what is called toxic masculinity on some of our young men. Those are three important drivers of the recent changes.

As for what is gonnae work, there is value in and a place for youth work. I am a huge advocate for youth work, which is supported via the cashback for communities programme, for example. We often think of punishment, and there is a place for that, but, to change behaviour, young people need reliable and trusted relationships. We absolutely must continue with prevention work and must not be swayed into thinking that we need to put all our eggs into the punishment basket. We must continue to commit to the long-term preventative work, because we are seeing long-term improvements as a result. However, there is no doubt that we need to be acutely aware of and address the recent changes in the behaviour of some young people.

There is nothing soft about our justice system. The Scottish crime and justice survey is an important flagship survey. It gives us good information and the longer-term trajectories speak to falling rates of youth crime and Scotland being safer. However, you are quite right to point to the fact that the proportion of violent crime where the perpetrator is a child has increased to 31 per cent of incidents. That is what I meant earlier when I said that there is newer information in the shorter term that gives cause for concern. We need to acknowledge that it is not acceptable and that it must be addressed.

You ask what has gone wrong. I think that it is the change in the behaviour of some young people due to the challenges that I spoke about earlier. I know that people do not always appreciate this, but it was ably articulated at the round-table discussion chaired by the First Minister and me that lockdown during Covid has had an impact on young people’s behaviour. Youth work leaders, people at the forefront of violence prevention and, of course, teachers in our schools will all narrate that as a reason. We have spoken at length about the online harms that are exposing our children to outside influences, and that is an issue. Related to that is the influence of what is called toxic masculinity on some of our young men. Those are three important drivers of the recent changes.

As for what will work, there is value in and a place for youth work. I am a huge advocate for youth work, which is supported via the cashback for communities programme, for example. We often think of punishment, and there is a place for that, but, to change behaviour, young people need reliable and trusted relationships. We absolutely must continue with prevention work and must not be swayed into thinking that we need to put all our eggs into the punishment basket. We must continue to commit to the long-term preventative work, because we are seeing long-term improvements as a result. However, there is no doubt that we need to be acutely aware of and address the recent changes in the behaviour of some young people.

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.

Good morning. I thank the Parliament clerks, the Delegated Powers and Law Reform Committee and the Criminal Justice Committee for agreeing to accommodate the scrutiny of the SSI within the minimum SSI laying period of 40 days.

I hope that the committee and the wider Parliament will support the proposals, which will allow us to complete the SSI process before Parliament rises for the summer recess. That will provide the Scottish Prison Service and justice social work staff with as much time as possible to make preparations before the proposed changes come into force on 20 October.

As members will be aware, the changes that are set out in the SSI relate to a commitment that was made in the programme for government for 2024-25. They are part of our on-going efforts to achieve an effective balance between the use of custody and the use of community alternatives, and they will support our efforts to achieve a sustainable population across our prisons.

Home detention curfew is a long-standing part of the prison system that is consistently deployed as a method of easing the transition from prison sentence back to the community. Home detention curfew provides a structured way to manage that transition, placing the individual under clear licence conditions and a nightly curfew, while allowing them to readjust to life in the community and engage with any support that they need.

The foundation of home detention curfew is the individualised risk assessment that is conducted by the Scottish Prison Service, with evidence provided by community-based justice social work staff before any individual is permitted release on home detention curfew. I assure members that the proposals in the SSI will not alter any of the risk assessment aspects of the HDC process.

The SSI proposes to allow home detention curfew to be granted from an earlier point in a prisoner’s custodial sentence, from the current point of 25 per cent of their sentence served in custody to 15 per cent. That change will help to realign the home detention curfew process with the new automatic release point for eligible short-sentence prisoners at 40 per cent. It will enable individuals to spend a similar proportion of their sentence on HDC to what they would previously have done. The SSI includes a further proposed change to increase the maximum permitted period that an individual can be granted home detention curfew, from 180 days to 210 days. That change will affect only a minority of prisoners, whose sentence length and other circumstances make it possible for them to be granted a longer period of HDC.

All eligible individuals will continue to have to pass the risk assessment and community assessment process before they are granted home detention curfew. HDC will continue to be based around the same risk assessment of each eligible individual. It is therefore not expected that those changes in time criteria will produce a significant increase in the number of individuals being granted HDC. Instead, it will facilitate suitable individuals to be granted more time on HDC than they currently can be, following the change in the automatic release point. That is likely to result in more individuals being in home detention curfew at any one time. However, the number of prisoners who will access home detention curfew in the future will continue to be shaped by the number of eligible individuals in the prison population at any one time and by how many of them pass the risk and community assessments.

Overall, the proposed changes are relatively straightforward. They are intended to enable individuals who are eligible and have been assessed as suitable to be granted more of the days on home detention curfew that they are eligible for. On that basis, I encourage members to indicate their support for the SSI. As always, I am happy to answer members’ questions.

On your first point, the successful completion rate for home detention curfew, from the latest figures available, is 93 per cent, which means that there is a 7 per cent recall rate.

On your point about how rehabilitative opportunities can be supported if people are in custody for a very short time, the reality is that, although someone currently becomes eligible at the 25 per cent point in their sentence—that is one of the eligibility criteria; we are advocating that we change that—that does not mean that they will be released at that point, because they cannot be released until the risk assessment process is complete.

That process is significant—it would start with screening for eligibility. It is important to say that application is voluntary; prisoners cannot be made to go out on home detention curfew, and not every prisoner wants to be released on that scheme, which speaks to the restrictive nature of it—it is a licence tag curfew.

Once an application for home detention curfew has been submitted, the prisoner has to undergo a full risk assessment. I can talk you through that if need be—there are practice standards for that. If the assessment is positive, the prison will contact justice social work, which will look at suitability of address and speak to other individuals at the address. Information from social work and police is important.

To get to the nub of your question, a person cannot be released if they are not eligible and have not passed the risk assessment process.

I put on record two things with regard to what Ms McNeill has said about people giving evidence at home—forgive me if I am repeating myself, convener. I appreciate that she was articulating evidence that was given by others, but, according to our justice partners, giving evidence from home is not the norm. Indeed, it has been described to me as vanishingly rare. Where legislation on that already exists, it existed prior to the bill and, indeed, prior to the Covid legislation. To summarise, the existing legislation says that it remains under the control of the court whether evidence can be given from home. I am happy to write to the committee to lay that out further.

The point that I was trying to make about Mr Kerr’s amendment 43—which I think resonates with the point that Ms McNeill made—is not that I would close the door on it but that I want reporting conditions that are more meaningful and more rounded. The report should give us information that means something when it comes to scrutiny but also when it comes to delivering greater efficiency and effectiveness. Having data is important, but that is a broader aim. I think that, sometimes, we go on a quest to gather more and more data, as opposed to looking at how existing data can be better joined up and how different data can speak to each other.

The requirement for virtual attendance was a clear focus of the committee throughout stage 1. However, it should be acknowledged that forms of virtual attendance have been practiced in our courts for decades. Vulnerable witnesses have routinely given evidence remotely; pre-pandemic, it was possible for an accused person to be sentenced via videolink from prison.

There are a number of benefits to allowing more witnesses to give evidence remotely. It reduces travel time and costs and reduces disruption for witnesses, making our justice system more accessible and responsive to the needs of all its users. Ms McNeill’s amendment 34 would therefore be a step in the wrong direction. A requirement for a court official to be in attendance with any person attending a trial virtually is wholly unworkable in practice and would place an unsustainable burden on court officers, leading to unquantifiable but significant costs.

The use of virtual attendance for police and professional witnesses giving evidence in high court cases is currently the norm. It allows police, and doctors in the national health service, to be removed from their front-line duties for less time. In his submission in January, Malcolm Graham of the Scottish Courts and Tribunals Service confirmed that

“Since January 2022 more than 952 police officers and more than 371 expert witnesses have provided evidence remotely to the High Court of Justiciary.”

The amendments in this group address points that were raised by the Crown Office and the committee during stage 1 proceedings and address the request for reassurance that nothing contained in the bill will undermine the commonly understood definition of domestic abuse in Scotland.

Amendment 14 provides that the deaths of children who are killed by a parent where there was not domestic abuse, or where it was not believed that there was domestic abuse, will not be included in the domestic homicide and suicide review model. It does that by requiring there to have been, or to appear to have been, domestic abuse between the perpetrator and a current or former partner before the death can be a reviewable death.

That ensures that abusive behaviour is out of scope of a domestic homicide and suicide review if it is not anchored in domestic abuse between partners or ex-partners. I would clarify that that does not create or leave a gap in respect of deaths of minors, because cases that are, for instance, purely child abuse-related would continue to be reviewed, as they currently are, through existing child protection learning reviews.

With similar reasoning, amendment 14 also provides that a suicide will be reviewable only if it is thought to have been contributed to by abuse by the partner or ex-partner of the deceased. That means that children who are bereaved by domestic homicide or suicide who then die by suicide, or children who die by suicide where their parent was experiencing domestic abuse, would not be included in the review model. Where the child is a minor, such deaths would continue to sit within the remit of child protection learning reviews, although those can be brought into the scope of the review in future through the enabling power in section 10.

As you would expect, our contact with the court service is on-going, particularly in relation to our understanding in more detail the sorts of operational aspects that politicians and civil servants are not involved with daily.

On the information that is provided to witnesses, I remind members that the bill already provides that, when a witness gives evidence remotely, a direction will set out how the witness will attend and will provide for the witness to use electronic means to enable them to be seen and heard by all parties, including the judge and, where applicable, the jury. Information is also sent out about how to join the platform, which is Webex. The guidance looks quite clear to me, although I am not the most electronically able person.

We can ensure that the committee receives a copy of the guidance that is sent to people on the witness protocol, if that would be helpful. Before they sign into Webex, there are certain things that witnesses must make sure of. I will not read it all out, unless the convener wants me to, but I will send a copy of the guidance to members, if that will be helpful.

Amendment 7 will allow the time, date and location, as displayed on the footage captured by a body-worn video camera issued by Police Scotland, to be treated as sufficient evidence of those matters without police officers or staff needing to attend court to give evidence on them. There are safeguards in place for the accused, who will be able to object, within seven days, to the recording being treated in such a manner if they believe that the footage does not, in fact, accurately display the time, date or location of the events recorded.

Amendment 7 will put in place an evidential rule that allows for some non-controversial aspects of body-worn video evidence to be accepted by the court. That will reduce the need to routinely cite police officers to speak to those aspects, and it will benefit victims and witnesses by allowing cases to be brought to court sooner. That is in line with the current practice and legislation for fixed camera video footage, such as that taken on closed-circuit television, which is contained in section 283 of the Criminal Procedure (Scotland) Act 1995.

Amendment 7 provides that the Scottish ministers may, by regulations, enable other organisations such as the British Transport Police and the Scottish Prison Service to be added in the future to allow recordings from their body-worn cameras to be covered by the provision. That will ensure that primary legislation will not be necessary in order for other organisations to benefit from the bill.

I move amendment 7.