Chamber and committees

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.

What I said is that amendments 8 and 10 make it clear that the default will be for national jurisdiction to end following initial custody hearings. National jurisdiction will continue until the conclusion of a case only in very specific circumstances. The amendments recognise that, in solemn proceedings, not all accused people will be fully committed. Full committal is not a compulsory step if, for example, the accused has been bailed.

Amendment 8 sets out the changes for sheriff court proceedings, both summary and solemn, and amendment 10 replicates the changes for proceedings in the justice of the peace court.

Amendments 9 and 11 respond to concerns that Katy Clark raised with me about how national jurisdiction applies to an accused who appears following an earlier failure to appear in principal proceedings and who is due to be sentenced in respect of those principal proceedings. My amendments provide that, in those circumstances, the national jurisdiction court can pass a sentence or otherwise dispose of the principal proceedings only when there has not been an evidence-led trial or, if there has been an evidence-led trial, only in circumstances in which it is considered to be in the interests of justice to do so. An example of that might include circumstances in which the accused changed their plea to guilty early on in the trial, with the result that very limited evidence was heard.

Amendment 9 covers proceedings in the sheriff courts and amendment 11 covers those in the justice of the peace courts.

Although I have lodged amendments that clarify the end point for national jurisdiction, as well as adding some limitations to sentencing under national jurisdiction, justice partners have warned of the risks of introducing additional complexity by making disproportionate changes to a system that is well understood by justice partners and practitioners.

I ask members to support my amendments, which respond to the committee’s recommendation at stage 1 and provide clarity on the end point of national jurisdiction, while preserving the progress that has been made in making better use of resources, as well as protecting the rights of the accused.

With regard to research, home detention curfew has been with us for a long time—for decades now—and it is rooted in the Prisoners and Criminal Proceedings (Scotland) Act 1993. As a concept for the justice agencies to work with and assess, therefore, it is well established. It runs in parallel with the victim notification scheme, in which I know the committee has taken a great interest; there are improvements to that scheme in the Victims, Witnesses, and Justice Reform (Scotland) Bill.

On whether there has been any research on the specific change, the answer is no, but the change is being made to align ourselves with the position that we took before changes were made to the short-term prisoner automatic release scheme. Before the Prisoners (Early Release) (Scotland) Bill was passed by the Parliament at the end of last year, on any given day, we had around 150 people on home detention curfew. Because of those changes, and particularly the changes to the transition period, in which people were released in three tranches, the numbers reduced to between 70 and 80, but they have slowly increased since then.

Essentially, the order is a realignment to optimise HDC so that it is at the level that it was prior to the changes to the point of automatic early release for some short-term prisoners.

For the record, I assure Mr Kerr that we are still incarcerating people for shoplifting offences. Of course, people will have their own views on whether that is a positive or a negative thing.

My amendments in this group will provide for the expansion of domestic homicide and suicide reviews in certain defined circumstances. At present, the bill will enable reviews that can learn lessons from the death and the circumstances that led up to it, but not beyond it. The amendments will allow a review to consider the aftermath of a death in circumstances in which the victim and perpetrator were partners or ex-partners and where, at the time of the death, either of them had a child who was a young person or an adult at risk. That will also apply if there was a young person who was not their child living in their household at the time of the death.

The amendments will enable a greater understanding of what happens to such bereaved persons following a death, whether their views are sought on decisions that impact them and whether those views are considered by professionals in making their decisions.

Amendment 19 will make provision to allow the remit for the reviews to be expanded beyond the point of death while setting out the persons to whom the expansion applies and the parameters of what can be examined within an expanded review. The amendment also sets out that the consent of the Lord Advocate will be required before the remit of a review can be expanded. That is to ensure that any live criminal investigation or proceedings are not jeopardised.

Amendments 12 and 13 will make consequential changes to section 9, which describes what a domestic homicide and suicide review is. That simply reflects the fact that, under amendment 19, in some cases, a review will now be expanded beyond the point of death.

Amendment 21 will make consequential changes to section 17 to require that the terms of reference of a review reflect any expansion of the remit. The amendment will also allow the review remit to be adjusted later to cover any cases in which it is appropriate to revisit the initial decision on whether to expand the review remit. That will allow for flexibility. However, it continues to be the case that the Lord Advocate’s consent will be required for any extension, so the same safeguards will apply as to any initial decision on whether to expand the remit of a review.

The expansion of the reviews to consider relevant bereaved persons following a domestic homicide or suicide is in line with the United Nations Convention on the Rights of the Child—specifically, article 12, which states that children and young people have the human right to have opinions and for those opinions to be heard and taken seriously. By expanding the review model in such circumstances, domestic homicide and suicide reviews will help to learn from the aftermaths of such deaths to improve practice, implement change and better safeguard children, young people and supported adults.

I move amendment 12.

Amendment 12 agreed to.

Amendment 13 moved—[Angela Constance]—and agreed to.