Chamber and committees

Without stepping on the Crown Office’s toes, I simply point out that diversion from prosecution can be used only where there is an identifiable need relating to someone’s offending and where it is in the public interest. Drawing a correlation between diversion from prosecution and an increase in short-term sentences is probably a bit of a stretch. I think that you and I are probably in a different place in that respect, Ms Dowey.

However, I come back to the important and serious point that, if, as a nation, we get better at investigating, prosecuting and convicting the most serious offenders—the most serious domestic abusers and sexual offenders—that will pose questions about the purpose of prison. The purpose of prison, in my view, is to house those who pose the greatest risk to victims. We have always been clear about that. There will always be a need for prisons, but if we want our prisons to function effectively for those who pose the greatest risk, we need to take that long-term view.

I do not know whether Ms Dowey was in the chamber or participated when I gave my statement on the sentencing and penal policy commission, but I could not have made it clearer: if we, as a Parliament, want to move on from making decisions on emergency early release or changing the automatic release point for short-term prisoners, we will need to pursue more fundamental reforms that are based on evidence. If other countries can reform their prison systems without compromising public safety, why cannot Scotland? The longer-term work that I have talked about will, in my view, have to commence, but that will be for the next session of Parliament, and I hope that all of us can engage in it constructively.

11:00

Thank you, convener. I appreciate the opportunity to come before the committee this morning.

I hope that what has been made clear not only this morning, but in my previous statement on the regulations, is that our prison population remains a critical risk and that we must take further action. I have outlined the next steps that, in my view, must be taken to ensure that our prisons can continue to operate effectively and safely. We have a duty to protect the health, safety and wellbeing of staff and prisoners.

There are, of course, safeguards and exclusions in the programme. For example, there will be no change to the release dates for those who have been convicted of sexual offences or domestic abuse. The measure will apply only to short-term prisoners.

With each individual measure that we have taken, I have made it clear that there will always be further steps to take on this journey. We are at a juncture. We now have the sentencing and penal policy commission’s report, and, collectively, we will need to come to a view on it. I reiterate my earlier point: I know that we are all in campaigning mode, but we will have to find some common ground or consensus on that, as doing so is in the interests of the people we serve and, indeed, in the overall interests of our justice system.

I realise that this is a hard decision for people, but I point to experience elsewhere—in doing so, I do not for a minute abdicate our responsibilities here in Scotland. In fact, I would very much contend that taking no further action would itself be an abdication. Other countries have reformed their systems to good effect, and we have also seen the very difficult decisions that our colleagues in England and Wales have had to take in releasing more than 62,000 prisoners early.

I will leave my remarks there, convener, as I do not want to incur your wrath any more.

I move,

That the Criminal Justice Committee recommends that the Prisoners (Early Release) (Miscellaneous Amendment and Transitional Provisions) (Scotland) Regulations 2026 [draft] be approved.

:For the purposes of the act, where hate crime is targeted at people on the basis of their sex, yes.

:That is an interesting point that speaks to the comprehensive approach that is required to the implementation of, and preparation for the commencement of, the legislation if it is agreed to. It is important to point out that Police Scotland is a partner in the hate crime strategic partnership group, which provides an opportunity for engagement with other partners to explore the issues that you have identified.

:No, I do not agree. The definition of sex that has been used relates to section 12 of the 2021 act, which means that we are enabled to give a definition of sex only for the purpose of the characteristic of sex, which is quite focused.

I certainly hope that members will agree that the documentation makes it clear that sex is defined as biological sex, which is equivalent to sex at birth. That is the definition of the characteristic of sex that is used for the purposes of the act.

:That would still require significant work to be undertaken. Without rehearsing all the arguments that have played out in the chamber, significant work has been undertaken in a number of policy areas. Some of that work has been concluded and some of it is on-going. I do not think that it is simple or straightforward. In fact, I am convinced that it is not as simple or straightforward as the member suggests.

Do you have anything to add, Patrick?

:It is my strong view that I am not proposing any action that will reduce the rights of others.

:The crux of the question is about immigration enforcement. The UK has the responsibility for the removal and deportation of foreign national prisoners. What we are debating today, for our purposes, is the point at which the Scottish Prison Service can facilitate that in someone’s sentence. My understanding is that immigration enforcement take people to—[Interruption.] Actually, I will pass that to David Doris, because I want to make sure that I am on the right piste.

:The affirmative instrument makes the necessary changes to secondary legislation made under the Rehabilitation of Offenders Act 1974 to allow information about spent convictions and alternatives to prosecution to be shared with a domestic homicide and suicide review in Scotland.

The committee will be aware that the creation of a statutory footing for domestic homicide and suicide reviews was established by the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Act 2025, which gained royal assent last year. The provisions to bring domestic homicide and suicide review into effect will commence in full on 1 April this year. The reviews are designed not to apportion blame but to ensure that lessons can be learned following deaths where domestic abuse is known or suspected to have taken place, with the aim of better protecting victims in the future.

Sections 25 and 26 of the 2025 act place a duty on designated core participants in a review to co-operate with and provide information to a domestic homicide and suicide review and on others to provide information to a review in response to a notice requiring it. Sections 25(3) and 26(2) of the 2025 act, however, generally prevent a holder of information from being required to produce it to a review where it is not information that they could be compelled to produce in Scottish court proceedings. Sections 25(4) and 26(3) of the 2025 act specifically disapply that restriction when the material is covered by an exemption under the Rehabilitation of Offenders Act 1974. That was done to ensure that information about spent convictions and alternatives to prosecution could be obtained by a review when needed. These are the exemptions that will now be created by the affirmative SSI.

To fully understand the circumstances surrounding domestic abuse deaths, the review will need to be able to wholly understand a perpetrator’s relevant history, including when a conviction has been spent or an alternative to prosecution was offered. The reason for that is clear. Having access to all the relevant information about the background to a death will ensure that the review can provide meaningful and maximum learning and recommendations.

Importantly, in cases in which that information is sought, the review panels will not make any determinations about a person’s legal rights or liabilities. There will therefore be no direct impact on the person convicted should information on their spent convictions or alternatives to prosecution be disclosed to a review. If a case review report is published, section 28(2) of the 2025 act requires it to be anonymised first, including to prevent jigsaw identification.

As a further stopgap, each report will go through a process of quality assurance. Police Scotland and the Crown Office and Procurator Fiscal Service will form part of that process. Furthermore, prior to publication of a review report, a risk assessment will be undertaken and the Lord Advocate’s approval will be sought.

Collectively, these measures not only help to protect those who have died and their families, they also help to ensure that those with previous convictions are not identified. The SSI will therefore ensure that domestic homicide and suicide reviews in Scotland will be able to access all the information in order to make effective recommendations and, ultimately, to prevent future deaths from occurring. I commend the SSI to the committee.

:Before I go back to Jasmin—