Chamber and committees

I agree with the cabinet secretary that the principle of providing the maximum amount of information to the court is very important, but I do not think that the Government addressed the question of the inequality of resources across the country. In fact, I argue that it is a meaningless mandatory requirement to provide an opportunity, and in some courts that is just not possible.

Although the cabinet secretary said that resources can be considered, what she said in relation to Katy Clark’s amendment seems to leave that question totally unanswered. If no social work is available in some courts, the opportunity will simply not be taken up, and that creates inequality, so it becomes a bit meaningless, and it makes more sense to change the “must” requirement in legislative terms.

With that, I will be supporting amendment 20, in the name of Jamie Greene, but not amendment 19, because there was not enough technical information. There is quite a lot to be considered around how this will be done before the court. I will support amendment 15, in the name of Maggie Chapman, but not amendments 16 or 21.

Amendment 73 is on report on bail in certain solemn cases. It concerns a debate that we had at stage 2 in relation to a provision in the bill referring to section 23D of the Criminal Procedure (Scotland) Act 1995.

Amendment 73 is a similar amendment to amendment 1, which Jamie Greene will speak to. I moved a similar amendment at stage 2 and I will now go through the rationale for the amendment. Amendment 73 would remove section 3. It would also add a requirement for Scottish ministers to carry out, within 12 months of royal assent, a review of bail restrictions in solemn cases in order to consider what the effect has been of removing section 23D of the 1995 act.

Section 3 of the bill seeks to repeal section 23D of the 1995 act, which restricts the granting of bail in certain solemn cases. Section 23D provides that bail is to be granted only in exceptional cases if the accused is being prosecuted under solemn procedure—which is used in more serious cases—for a violent, sexual or domestic abuse offence and has a previous conviction under solemn procedure for any such offence, or a drug trafficking offence, which is also included within the provision.

With the repeal of section 23D, the courts would instead simply apply the general rules that we have been discussing—the new bail test or the old bail test, depending on what happens at the end of stage 3—but victims’ organisations believe that removal of section 23D from the 1995 act presents a serious risk to the safety of people, and the victims of gender-based abuse in particular. For them, retention of section 23D is a vital part of Scotland’s commitment to eradicating violence against women and girls.

The proposed grounds for refusing bail are not sufficient on their own in relation to protecting people who are affected by crime, and are an inadequate alternative to the additional safeguard that is contained in section 23D of the Criminal Procedure (Scotland) Act 1995. The Faculty of Advocates is of the same view as Sheriff Mackie, who, when speaking for the Howard League, supported removal of section 23D to allow discretion, so we can see that opinion is split on the issue. On one hand, victims think that it does one thing, and on the other hand, many practitioners are quite happy to repeal it.

I should say that the provision in section 23D of the 1995 act has a bit of a history, because it was discovered that the reference in subsection (3A)(c) to previous convictions for domestic abuse was only inserted into the 1995 act by the Domestic Abuse (Scotland) Act 2018, whereas all the other offences that I have referred to were previously mentioned in it.

Initially, my view was that the court should have discretion. As one witness said, if someone had been convicted of an offence 20 years previously, that would tie the hands of the sheriff, because they would need to apply that particular provision. However, on balance, I feel that that provision should probably be removed. I am certainly concerned that there is a difference of opinion about leaving it in or taking it out. One of the things that puzzles me is why the Government, having put the provision on domestic abuse into section 23D, would take something out that was only put in four years ago.

My suggestion is that, if we take that provision out, that should be reported on. We should, arguably, report on it anyway because of the difference in opinion about what it actually does. We need some clarity about what the impact of keeping it in or taking it out would actually have.

I move amendment 73.

The cabinet secretary has mentioned existing provisions, but we are still finding that there are gaps in the delivery of the service. I acknowledge that simply passing the amendment might not necessarily fix that issue, but we cannot simply rely on provisions from 2016 legislation that have been shown to not happen in every case. I am just wondering what more can be done here.

I appreciate the member giving way on that point in particular, given that he mentioned the Lord President’s 13-page letter. With regard to the change not having the confidence of the judiciary, would he acknowledge that we put to both cabinet secretaries the very question that, as he says, the judiciary highlighted, as to whether the proposed changes may make no “practical difference” to outcomes? Would he agree that the committee did not really get an answer to a 13-page letter that was full of substantial questions?

The focus of the bill is to limit custody to those who pose a risk to public safety or to when it is necessary to prevent significant risk of prejudice. There are clearly benefits to reducing the damaging effects of short-term detention. Section 1 requires the court to give criminal justice social work the opportunity to provide information to the court when making decisions about bail.

Under the current language in the bill, that opportunity is mandatory. Although I think that the intention is good, I raised concerns at stage 2 about the inconsistencies in the provision of justice social work in courts across the country. In Glasgow, we are well served, but other parts of Scotland are not. Therefore, the opportunity will not be equal across the country.

Amendment 67 would replace the requirement that the court “must” request information from justice social work, and it would make that discretionary by inserting that the court “may” request that information. In a written submission to the Government, the Senators of the College of Justice stated:

“there will be many occasions on which such input is plainly irrelevant and the imposition of a statutory requirement to seek a report in such circumstances would seem inappropriate. For example, if an accused person is charged with a serious offence of violence and has a significant record of similar offending there is, on the face of it, very little prospect of that person being granted bail. In such cases it is difficult to see any purpose in requiring the court to seek a report with the attendant delay and demands upon the resources of the social work department.”

David Fraser of the Scottish Courts and Tribunals Service also noted that, if justice social work reports were required in every case, that would create the potential for reports not being available when they were required in court.

I would like the Parliament to note that, in my exchange with the Cabinet Secretary for Justice and Home Affairs at stage 2, she clearly and helpfully set out that there is no intention behind the provision to delay any proceedings of the court in that manner, although some people had thought that that was the case. It just seems to me that it would make more sense to say that there “may” be an opportunity, rather than that there “must” be one, because the opportunity does not have to be taken up in every single case.

My amendment 67 would remove the statutory requirement to seek a report and, instead, allow the court a degree of discretion, depending on the context of the case and the history of the alleged offender.

I move amendment 67.

Yes, absolutely. I think that we are all interested in making the administration of this much better than it is and I think that the Parliament is at one on that. However, I am still proposing to move my amendment.

I press amendment 75.

Disastrous implementation.

I thank my colleague Katy Clark for her choice of the subject of the debate, and for her excellent speech. The topic is critically important to justice policy, and I am glad that we are discussing women’s offending and the treatment of women prisoners in Scotland’s criminal justice system.

As many of my colleagues have noted, Scotland has one of the largest female prison populations in northern Europe—as has been the case since 2010—yet women make up only 4 per cent of the prison population. A recent review of evidence found that women are less likely to receive a custodial sentence than men and that, when they are sent to prison, their sentences are usually shorter.

Sadly, it has taken us almost 20 years, or more, following various reports criticising the current system for women, to finally recognise the unique characteristics and needs of women in custody, and the fact that many should not be in a prison, as another facility would be more appropriate.

As Rona Mackay mentioned, the Criminal Justice Committee recently had the opportunity to visit HMP Stirling. I, too, was very impressed by the set-up and by the work that the Scottish Prison Service has done there. The site has no high security fences. To all intents and purposes, it is a prison, but it is completely different from Cornton Vale prison.

Women are a vulnerable group. Jamie Greene spoke to that. Often, they have been subjected to domestic violence, coercive control and sexual abuse, including rape. Women in prison have significantly greater rates of poor mental health than women in the general population or male prisoners. One of the top issues for women prisoners is unresolved trauma. We also deal with prisoners who have huge learning difficulties. The characteristics of the female population are an important factor.

In 2021, the Mental Welfare Commission for Scotland published a report on women with mental ill health in prison in Scotland, noting serious concerns about the segregation of women for extended periods and the conditions in which women were held. A significant concern was women’s access to medication and the recording of that. The commission noted that there were gaps in the dispensing of medications for physical and mental health in individual cases, amounting to significant gaps in treatment. The Scottish Prison Service indicates that many women should be in a mental health facility rather than in prison, because of the powers that are needed to deal with those issues.

Women in prison have higher lifetime instances of trauma, including repeated physical and sexual victimisation, than either male prisoners or women in the general population. A study conducted by researchers at the University of Glasgow found shocking evidence that around three quarters of women in prison suffer from a self-reported significant head injury, and that 40 per cent also have an associated disability.

Prison disrupts women’s lives and has long-term effects on the lives of their children. Although precise figures are hard to obtain, it is estimated that approximately 65 per cent of women in prison in Scotland are mothers. Shockingly, only 5 per cent of children stay in their own homes once their mother has been imprisoned. The effect of women’s imprisonment on families, especially young children, can be utterly devastating. As women are much more likely than men to be the primary carer, the impact of a mother’s imprisonment on children is more pronounced, ranging from their having to move home and school, to their having poor academic performance, increased risk of mental health problems, and involvement in the criminal justice system.

We know that women’s offending is different and we need to recognise that women are in prison for fairly minor offences, such as theft, fraud and minor drug-related offences. Only a small minority of women are convicted of violent offences, and a large majority of them have been victims of violence themselves. It is important to highlight that when we develop prison policy.

The introduction of community custody units, such as the Bella centre in Dundee and the Lilias centre in Maryhill, is welcome and long overdue. They are an incredible development and are part and parcel of a redesigned system. One thing that I thought when I visited them was that the overall numbers need to be revisited. Previously, we would imprison 400 women, so we need to make sure that those alternatives to custody exist and that those units are used in the way in which they are meant to be used. A recent report said that at least one of the units was half empty after six months. We must make sure that we use that resource and use it well.

We know that there is a systemic level of violence against women and girls. When women offend, we must make sure that they are housed in an appropriate setting and that they get the opportunity to rebuild their lives. I commend the Scottish Government on making significant progress in creating a new setting for women who offend, and I look forward to the other speeches this afternoon.

To ask the Scottish Government what its position is on whether there are any gaps in Scots law in relation to tackling image-based sexual abuse. (S6O-02338)

Does the cabinet secretary take a view on whether adopting a consent-based cyberflashing law might be beneficial here? At the very least, would she be prepared to discuss the matter with me?