Chamber and committees

Just before we move on, I note that, on the use of the Moorov doctrine, which is in the section on “Long-term actions”, the table says:

“sheriffs and judges should ensure that juries understand the consequences of applying the doctrine”.

I do not recall who was in my group, but a lack of understanding about that was a big issue. It is my understanding that the Moorov doctrine is used more commonly for good reason: to try to get convictions. The Crown Office said that it did not agree with our recommendation. However, that does not square with what is in the table about sheriffs and judges. It is not for the Crown Office to say whether sheriffs and judges should explain the doctrine.

I accept the Crown Office’s point that it would be undesirable for prosecutors to discuss hypothetical situations—I am okay with what it has said in that regard. However, there needs to be separation in relation to the role of sheriffs and judges.

I am absolutely clear in my mind that it is a good thing to explain to juries the implications of applying the doctrine so that juries are clear about that, and I am totally fine with that not being explained by the Crown Office. However, those are two separate points and they should be in two separate boxes, otherwise there will be confusion on that very important issue.

Can I clarify something? Death in custody is covered on page 24. There is a statement about the cabinet secretary accepting all the recommendations on 2 February and providing an update by the summer of 2022. I have nothing to say about that, other than to highlight the importance of that statement.

If I recall correctly, accepting all the recommendations means that deaths in custody would be dealt with more quickly and that, regardless of whether there was a police investigation, immediate access would be provided to all the relevant information. I am very surprised that neither Police Scotland nor the Crown Office has said anything about that. That would mean that two things would be running in parallel. Let us look at recent cases in which there might have been criminal behaviour, such as the Allan Marshall case. If there had been “unfettered access” to the prison and the staff to find out what happened, would that have sat well with the current arrangements, which is that we wait to see whether there is a fatal accident inquiry or a police prosecution?

I am in favour of the recommendations, but I was expecting clarification to be provided on whether those two processes can sit alongside each other. Given the number of deaths that we have had in custody, that is quite an important issue.

This is a short debate on the substantial set of papers put before us, so I think that we are probably all holding back a wee bit in terms of prioritising. I am not going to give all my thoughts—I just want to put that on the record.

I note Jamie Greene’s comments with regard to the Crown Office and Procurator Fiscal Service’s submission, and I want to raise a more general point just to find out what other members’ experiences have been. I do not feel that we are getting the data that we need from the Crown Office to support our examination of some of the issues that we are being asked to look at, and I do not feel that there has been transparency. A point that has come through loud and clear in relation to delays is that the Crown Office will be deciding which cases it is going to prioritise, and a big concern for me is the lack of transparency around that. I cannot disconnect the vision from the fact that we are coming through a pandemic that will cause the delays to continue.

For future reference, I would like—with anyone else who might be like-minded—to approach the Crown Office and ask for a little more information, now that we are, hopefully, coming out of the pandemic and beginning to tackle court delays. I do not think that it is unreasonable for us on behalf of our constituents and the people whose work we are trying to scrutinise—those in the Crown Office and the justice department—to get some insight into concerns that we will have over the next two years about the prioritisation of cases.

I will say no more than that, but I do not want to leave the matter there. Given that we are in public session, I put it on the record that I want to come back to the matter, because I am pretty certain that the committee will have concerns as things move forward and we try to get through these horrendously long delays. The Crown Office will, of course, want to protect its right to make its own decisions—and rightly so; I am not attempting to interfere with that—but I do not think it unreasonable for us as politicians and legislators to ask for a little bit more co-operation from the Crown Office and Procurator Fiscal Service to let us do our jobs.

Stop me if I am coming at the wrong bit, convener, but I wanted to mention specialist courts.

I want to raise a few issues, convener.

First, with regard to the submissions and the issue of violence against women and girls, it is really quite important that we draw our analysis not just from the statistics—after all, everybody is on the same page in acknowledging the seriousness of the issue. I have already discussed these matters with Keith Brown and Ash Denham and there is no particular disagreement. However, a view has to be taken on where we are, as a society, with the issue. It is now 2022, and violence against women and girls is arguably worse.

I know that Rona Mackay is convener of the cross-party group on the issue, so she is more of an expert than I am, but the work that I have done leaves me deeply concerned about the sexual harassment and so on that girls are facing in schools in 2022. The figures are astonishing. What I would like to see in the vision is a recognition of how severe the situation is and, as a result, an important connection being made between the justice portfolio and some other portfolios. Obviously, the justice portfolio cannot cover all the work that needs to be done to correct all of this, particularly with regard to young boys, young people and men. Having listened to all the debates on the matter and the comments made by many members, I do not think that there is any disagreement; I would just like to see some recognition of the seriousness of the situation.

Secondly, on the vision, if you like, for legal aid, I recognise the progress that the Government has made, but what the committee has been hearing loud and clear, and what members have been seeing in their mailboxes, is that there is concern about a deficiency or gap with regard to representation by defence lawyers. A recent case that was highlighted involved a young man awaiting trial, who was sent back to the cells because he could not get a defence lawyer. The policy is perhaps a costly one, but, in my view, we need something in the vision that means that we do not have to wait until 2023 for the situation to be addressed.

A key issue that seems to be missing is the fact that some children, such as William Lindsay Brown, were sent to Polmont prison because no secure accommodation was available. There is crossover with the issue of deaths in custody in that case. I presume that that will be covered in the bill.

I have a point of clarification, following on from what Jamie Greene has said. I am not suggesting that I would vote against the instrument. In fact, I do not think that we can, theoretically, as we are discussing a legal requirement. Would it make any difference whether we voted for or against the instrument? Do you see what I am saying? It feels as though our hands are tied. Even if I was inclined to vote against the instrument—so that we could establish the timeline and so that I knew exactly what I was voting for, as a legislator—I feel that there is a legal requirement on us. The note before us does not say that, however. It would be helpful to get that—

Members might be aware that there was recently some press coverage on the changes to the police pension. I have already written to the chief constable about the matter. I believe that he is concerned about the exodus of police officers, which is totally understandable, because the changes—which I understand are legally necessary—encourage them to go. We are going to lose hundreds of police officers who have reached the age of 50.

Although I think that I am correct in saying that, according to the policy note, there is no additional cost to the public purse, it would be remiss of us not to note that the SSI relates to something that is of deep concern to running our police service. It is understandable that police officers will take retirement, but there will be a huge skills deficit in Police Scotland. I suggest that, at a future point, we might want to think about how the committee addresses that with the Government and Police Scotland.

I have strong feelings about the PDSO, based on past experience. I am not against it in principle, but successive Governments have tinkered with it. I would prefer to see something that deals with both the PDSO and the issue of legal aid rates. I think that, as a nation, we want to have a criminal justice system that serves the interests of the accused. We should not lower the quality of representation just because we have reached a point where we have a problem that has been building up over a number of years.

It is important that the Government recognises that point, regardless of any progress or on-going discussions. I would like the Government to say, as part of its vision, that it believes that that principle is important. I think that the Government has said that, but it is important, whichever path we take to resolve the issue—which might involve the provision of more public funding—that the principle should continue to apply. What kind of justice system would it be if an accused person did not have the best quality of representation or a choice of representation, or if they had deficient representation?

First, I have a quick supplementary question on the data.

You will have heard that the committee is keen to pursue the issue of the data. The culture change that you talked about relates to the general public, but some people are behaving antisocially and using fireworks as weapons. Therefore, I hope that you agree that we need to scrutinise whether we are using existing powers to act against those who will clearly not be applying for licences, given their antisocial behaviour.

I will ask Elinor Findlay about the example of Pollokshields. I have been involved with the Pollokshields community because I am a Glasgow regional MSP. No action was taken in Pollokshields, which is also the evidence that we had from the industry. I have tried to get to the bottom of the matter with the Crown Office, but I have failed to do so.

Pollokshields is one of the communities in which this is an issue—fireworks are being thrown at members of the emergency services, and they are being used dangerously. A serious question for the Crown Office is why are there no prosecutions? If we cannot see the information, or if it does not exist, or if prosecutions are not happening, there is a danger that we might miss the target. Elinor, are you aware that there have been no prosecutions in Pollokshields, and could you pursue the matter? I certainly will do so, but it would help if you could also ask about it. If the evidence that you gave to Jamie Greene is correct and the matter is being taken seriously, that question needs to be answered. Do you agree?