Chamber and committees

Yes.

I am just trying to get my head round the changes that have been made. How would you describe them? Would you say that they are fairly minor or superficial? Do you think that there have been any substantive changes since we last discussed the matter?

I will start with a similar point to the one that Jamie Greene made. In some senses, the debate that we are having now is about the heart of part 1 of the bill. The basis of the discussion is that we have the bail test under the 1995 act, and the bill has a completely new bail test. I have to say from the outset that I do not envy the cabinet secretary in taking on the bill halfway through the process, but I say in all genuineness that I am trying to get to the bottom of the real purpose of the bill.

I noted down a phrase that the cabinet secretary used that I have not heard before. She talked about a

“new statutory limit on the use of remand”.

The Government has to be consistent so that people understand what the bill is attempting to do. For those who have not been involved in the scrutiny of the bill, I point out that it is a highly complex and technical piece of legislation. I do not pretend to understand it all, but I am trying to get clarity on the purpose of the new bail test. The reason why I mention that phrase that I had not heard before is that the committee, in its entirety, raised concerns about the extent of the use of remand and, every time we asked whether the purpose of the bill is to reduce the remand population, we could not really get a clear answer. The Government needs to be clear about whether or not that is the purpose of the test.

I will move on to the test itself—Jamie Greene made the same points that I am about to make. In the 13-page letter that I referred to earlier, the judiciary seemed to say that it has issues with the new test and is not convinced that it will make any real practical difference. That is a problem in legislation. The bill will introduce a new test, which the cabinet secretary has outlined very well, but it is unclear whether it will actually make any difference. Furthermore, it could be complex for people to understand.

In amendments 69 to 71, I am trying to do something similar to what I think Jamie Greene is attempting to do, by putting some prescription back in the test to get clarity. One of the first comments that was made to me about the bill was that the bail test does not have as a specific consideration whether someone has previously breached their bail. I know that it is not in Jamie Greene’s amendment 17, and that his amendment also introduces a slightly different test in that, where my amendment 71 references “substantial risk”, Jamie Greene talks about the “likelihood” of bail being breached. Those are important aspects.

Section 2 seeks to change the grounds on which a court may decide to refuse bail, and amendments 69 to 71 would allow consideration of the risk of breach of bail. The Scottish Government has said that the amendments are not necessary, and I accept that it has been said that, under the new test, the court will be able to consider whether there is substantial risk. However, my preference is to make it clear in the bill that, in fact, breach of bail is a ground for refusing bail.

The Law Society of Scotland said that a

“one-size-fits-all ... solution ... does not really assist the court to make proper judgments as to who could or could not be trusted with being admitted to bail”.—[Official Report, Criminal Justice Committee, 18 January 2023; c 19.]

It said that, although the Government is seeking to introduce a more focused use of remand, it must be careful that a recalcitrant offender is not continuously released on bail without any consideration of the rights of the general public.

The Scottish Government’s written response at stage 1 stated:

“The new bail test in the Bill is intended to refocus how imprisonment is used to ensure that, as much as possible, the use of custody for remand is a last resort”.

However, it is important to note that that is already the case under the 1995 act, where there is a presumption against the use of remand. Again, I am seeking clarity about the purpose of the bill.

The policy memorandum explains that the purpose of the provisions is

“to refocus the legal framework within which bail decisions are made by a criminal court, so that the use of custody is limited to those accused persons who pose a risk to public safety, which includes victim safety, or to when it is necessary to prevent a significant risk of prejudice to the interests of justice in a given case.”

Given the phrasing there, it is important that the language of the new test is quite different from that in the 1995 act and that we all understand exactly what the bill is intended to do.

It concerns me deeply that the provision in that part of the bill does not yet appear to have the full confidence of the legal profession and the judiciary. I admit that the letter was written some time ago, but we have not had an update since then, and I asked the question. It would be helpful at some point to have an update on whether any changes that have been made to the provision now have the confidence of the judiciary.

Thank you for that good news, Presiding Officer.

Amendment 75 seeks to insert a new section that will require the Scottish ministers to take all reasonable steps to ensure that victims are made aware of when an accused person is admitted to bail as distinct from being notified following their release from prison after serving a sentence. A report that was published by the Scottish Government in February looked into the experience of families who have fallen victim to domestic abuse, and female victims of domestic abuse told interviewers that the investigation, prosecution and sentencing for domestic abuse offences does not adequately reflect the sustained level of severity or impact of the abuse that is experienced. One woman told of her harrowing experience in the run up to the court case. She said:

“Eventually the police sergeant phoned me the following afternoon to tell me that he’d been released on bail, and he was released about an hour ago to two hours ago, and, if I’m in the house, make sure I get out, because he’ll be there any minute.”

In recent months, I have been meeting people—I think that we all have—who have lived experience of the criminal justice system as victim complainers. It is a common aspect of the experience of victims that they are not notified of release from remand at bail hearings or from custody so that they can take whatever steps they think are necessary to deal with that situation. I have heard of cases in which a perpetrator has been released on bail without the police informing the victim complainer of such a development, which left them feeling vulnerable and at risk.

This should also apply to bail appeals because people who are remanded to custody have the right to appeal that decision. Adding an amendment to ensure that a person against whom the offence is alleged to have been perpetrated is aware of the court’s decision would surely ensure the safety of the victims of crime.

Amendment 90 seeks to insert the wording:

“The Scottish Ministers must take all reasonable steps to ensure that a person entitled to receive information under subsection (1) is—

(a) aware of their right to the information, and

(b) given every opportunity to intimate whether they wish to receive the information.”

That is one of the issues that goes to the heart of the bill. It is about the rights of victims who come forward and have their day in court, but there is an omission in the bill in relation to the right of victims and complainers to be aware when someone has been granted bail, certainly in serious cases, as distinct from notification when they are released from prison.

I move amendment 75.

The debate on the group has been very useful. I will make a point in response to the cabinet secretary’s point about two different bail tests being provided. I have thought about that, but the provisions in amendment 73 are for serious solemn cases. We might not find it desirable, but we could have a separate test for more serious cases, so I am not persuaded by the cabinet secretary’s argument on that.

From the beginning, Jamie Greene has been very particular about his reasons for not keeping the provisions in section 3. I have been more divided on that point, because I feel that sheriffs and judges should be able to use their discretion if the test was overused. However, I am not really sure what practical difference it would make to take section 3 out. I still think that it is worth reporting on bail in certain solemn cases, although I might have drafted the amendment slightly differently if I had had more time.

On that basis, I press amendment 73.

Yes. I acknowledge that there are a lot of big issues—particularly in part 2 of the bill, which we are yet to come to—that relate to huge policy areas that we all have the best of intentions to change, and it is not outwith the scope of the bill for us to discuss doing that.

I plead with the cabinet secretary for the piece of work that she referred to. It is obviously not enough to have law, and I recognise that, even if you support the bill, the system needs to be fit for purpose, and that, if there is a notification scheme, victims will be notified. I also recognise that, although it might not be in every single case that a victim needs to know, they should know in serious cases about release at bail hearings and bail appeals. I think that there was an omission in relation to bail appeals. I would happily stand corrected, but there does not seem to be provision for notification where someone who has been remanded to custody is subsequently successful in their appeal. However, I raised the issue for that very reason.

There is no difference of opinion between any of the parties and the cabinet secretary on the importance of victim notification, so that is not the question here.

I acknowledge what the cabinet secretary said in relation to my amendments and how they might have been different, but I think that we would have taken the same approach either way.

It is important to recognise that what Russell Findlay and I are trying to achieve in this group of amendments is highlighting that the system is failing many victims. The cabinet secretary said that, in reality, people can contact the procurator fiscal’s office and ask these questions, but anyone who has ever tried to phone that office—even an MSP—knows how difficult it is to do that.

By the way, I have had this conversation with the Lord Advocate, who said that it is one of the things that she would like to change about the system. I once wrote to the Glasgow fiscal and asked whether there was any chance that they could call me, because there was absolutely no possible chance that I could get in touch with them because their phone system was totally inaccessible.

Will the cabinet secretary give way?

I thank the cabinet secretary for the thorough answer, and for the strong statement that the provision of medication is not optional and that there is a partnership arrangement on release. If I do not press my amendments, I hope that the cabinet secretary will not mind that I will hold her to that statement. As has been acknowledged, the Criminal Justice Committee felt strongly about the issue. When we make visits, we try to act on what we have heard. I know that other members feel strongly about the issue, too. On that basis, I seek to withdraw amendment 86, and I will not move the other amendments in the group.

Amendment 86, by agreement, withdrawn.

The Criminal Justice Committee pursued this issue following a visit to the Wise Group. One of the issues that was raised with the committee on that visit was throughcare for those who were leaving prison but did not always have access to the prescriptions that they needed. That can be vitally important. There are many reasons why people might falter or get into more trouble when they leave prison, and it is important to ensure that they have the necessary drugs. It was reported to us that, in many cases, that does not happen.

The committee entered into an exchange with the Scottish Prison Service. I think that we have made some progress, but it seemed to me that there was an opportunity to be more specific in legislation and that there should be a mandatory requirement.

Amendment 86 would insert:

“In section 2, in paragraph (e) of the definition of ‘relevant general services’, after ‘services’ insert ‘and prescription services’.”

Amendment 87 would insert in section 10:

“the provision of, and facilitation of access to, prescription drugs,”.

Amendment 88 would insert:

“Throughcare support: duty to report on access to prescription drugs ... The Scottish Ministers must, as soon as practicable after the end of the reporting period, prepare a report on the operation of section 34C during the reporting period ... The report must, in particular, include information on ... whether individuals falling within section 34B(7) have access to the prescription drugs that they require for their physical and mental health, and ... whether medical and prison services have sufficient resources to meet that demand.”

Those are the aims of those amendments.

I do not think that it is enough to have an exchange of warm words about what we would ideally want to see. Earlier in the debate, we talked about not releasing prisoners on Fridays. As far as I am concerned, setting up a system that gives prisoners the best chance of reconstructing their lives on release is an absolute necessity. They should not be leaving prison without their prescription drugs.

I will not press the amendment if the minister gives me anything in response that indicates that the Scottish Government takes a very strong view on the matter. However, I really think that it is not too much for us, as a Parliament, to ask that the Scottish Prison Service and the national health service ensure that prisoners who have served their sentence have, on release into the community, the prescription drugs that they need in order to live their lives.

I move amendment 86.