Chamber and committees

I put the question to you in order to understand the process. From what you are saying, it is quite robust, which has given me some satisfaction.

I have no further questions, convener.

Good morning. I totally accept the necessity for the Government to move ahead. I want to probe as much as I can into the detail of how the instrument will operate. Under article 8 of the European convention on human rights, there is a right to privacy and family life, especially for prisoners who are not involved in drugs. That is where I am going with this. Although Families Outside supports the statutory instrument, it has expressed a number of concerns and says that there is a concern that families might opt not to send correspondence, which could interfere with family relationships.

Teresa Medhurst has said that staff are not allowed to read letters. How do you propose to prevent that and ensure that families who are just keeping in touch with their loved ones in prison and are not involved in drugs have confidence in the system?

Thank you for that, but I do not want it to get to the stage where people have to complain. Is there a safeguard within the operating process that you can tell the committee about? The measures have been in place for only four weeks. What does the Prison Service have in place by way of a safeguard so that Families Outside and anyone else can be reassured? You said that you will “monitor” the situation, but what does that mean? Are you just going to wait until a complaint is made?

Today’s meeting is the first opportunity that the committee has had to drill down on the matter. I do not think that any of us is opposed to the instrument that we are considering, but we have a responsibility to raise such questions to make sure that, as the cabinet secretary said, the balance is right. I would like to know specifically what safeguard there is in the process.

Does that mean that the prisoner is present when a test is carried out?

I imagine that one of the key issues with prerecorded evidence—forgive me if I have not understood the process—concerns the cross-examination of the complainer in court. How is that done? I imagine that the lawyer for the person who is standing trial would want to put questions to the complainer. Is that done beforehand or in court? It would be helpful to know that.

Would you be concerned about that? It is certainly a concern that I have, and I would like to hear any answers that you have in that regard.

Thank you.

There has been a suggestion that a single point of contact for complainers might reduce the scope for complaints about communication—I think that Lady Dorrian said that in her report. Is that practical? What would be the relationship between that point of contact and Victim Support Scotland?

I have listened to the evidence, and I will not go through all the testimony again, but I understand that there have been a lot of communication failures. A single point of contact could be a way of solving that. Do you think that it is practical to bring that in, and who would do it? I thought that Victim Support Scotland already did that, but maybe it does not have the capacity to contact the police and the Crown. A complainer cannot just pick up the phone and ask the fiscal what is going on; they probably would not even know where to find the number. Somebody has to do that for them. I just wonder who you think should do it and whether it would be practical.

Those are helpful answers. It is clear that, if we want to pursue the issue, there is quite a bit of work to be done to strengthen the right to be heard, on which I agree with the Lord Advocate. The question is how we can make that happen through legislation. Also, I note what the Lord Advocate said about women being “turned away” by the legal profession, so there is a lot to be done in that respect.

I have one remaining question, given the shortage of time. If we legislated and created the right for the complainer to be fully represented at a preliminary trial where sexual history evidence is asked for, albeit that there are issues with the timescale, I take it that the Crown would have no objection to dealing with what is in effect a third party representing the complainer? Mr Harvie, as the Crown Agent, would you be happy to deal with a third party on this matter?

I am interested in the line of questioning that Colette Stevenson started regarding independent legal representation, and in the Lord Advocate’s answer. It is a critical area for the committee to consider.

I note that the Lord Advocate said that there is already a right to be heard on a section 274 and 275 application where the application relates to medical records. Should that right apply more widely than medical records? I would have thought that, if an application is made to use evidence of sexual history at a preliminary diet, the complainer should have an interest in the whole application, not just medical records.

Thank you very much.