Chamber and committees

That makes sense. Does the bill extend the Lord Advocate’s discretion to go beyond that?

To be fair, you will see that we are all still using paper here. There is a certain insurance policy in our having paper in front of us.

I do not want to get into any more complexity here but, based on what you have said, Paul Smith, would it make sense for the committee to separate out the issues in relation to virtual attendance from the issue of national jurisdiction? You are marrying the issues up in what you have said about the only way in which a national jurisdiction could work. However, given what you have said, it would make sense for the committee to scrutinise the full extent of the powers that are being asked for under the national jurisdiction provisions and to look separately at the rules around virtual attendance. Would that be your view?

Is there a middle ground? Is there something other than a practice note?

Good morning. I wonder if witnesses could help me to understand some of the technical subsections. There is a lot more to the provisions than I first appreciated.

First, am I right in saying that what we have been discussing is the possibility of virtual attendance? The default position is that someone is expected to attend, but it is a matter of allowing for virtual attendance. Is that right?

My reading of it is that there is a separate proposal for national jurisdiction, which gives me a wee bit of cause for concern. The way that you have been answering the committee’s questions suggests that, if the bill were passed and we had national jurisdiction for custody matters, for example, it would be as if it were assumed that, by dint of the provision, they would be dealt with virtually. However, that is not the case in the bill, as it removes the geographical limitations. Is that right?

Except that the law will not say that.

Witnesses might not be able to help me with this now, but you might be able to clarify it at a further date. I am reading through the bill’s explanatory notes in relation to proposed new section 5B(5) of the Criminal Procedure (Scotland) Act 1995. The subsection would provide the

“sheriff court that has heard the initial calling of case with continuing jurisdiction over the proceedings (and that sheriff court can be presided over by a sheriff of any sheriffdom)”,

so sheriffs could also go into the sheriffdom.

The explanatory notes continue:

“Subsection (6) confirms that this continuing jurisdiction can continue until the conclusion of the proceedings, unless the proceedings come to an early end”.

I can see that there is some sense in that, so far—where there is a guilty plea and for simple matters, that would give some flexibility. However, I am unclear about what it means in relation to petition cases, because of the way in which the explanatory notes are written, although I might need to read until the end. It says:

“proceedings on indictment that follow from proceedings on petition are to be treated as the same proceedings”

and that

“Subsection (7) means that a court which began dealing with a case at the petition stage can continue dealing with it”.

I am not sure whether that is different. It goes on:

“In practice, because jurisdiction under subsection (5) ends with an accused being fully committed for trial ... subsection (7) is likely to be relevant only where an accused makes an early guilty plea”.

I do not know whether you can help me with this, but, unless I have misunderstood the situation, I think that there is cause for concern. We are trying to get some flexibility in the process through virtual attendance with rules and national jurisdiction, for good, commonsense reasons. However, in petition cases, I do not know what that actually means.

We can only guess what is meant by something being in “the interests of justice” here. We do not know whether it means someone being able to give evidence in their own home. Supposing that the proposed measures allow for that, I would have thought—and what you are saying is—that there will then be an imperative to develop systems, notwithstanding the points that you make in your written submission about a person who may struggle with technology. Would you accept that it is not just a question of that, and that it is also about the quality of the evidence? I suppose that those two things marry up.

I found your submission really helpful. It is a bugbear for a lot of politicians that, although we like to see modernisation and change for the better, and digital platforms give that, we do not want to throw away the opportunities for people to do things in the way that they prefer—for example, being able to phone rather than having to email, or being able to see a hard copy. Some people will have that preference. To me, that is what your submission speaks to, and I found it really helpful.

Yes, that is what I thought.

Between us, we have raised several areas where the approach needs to be refined. Given what I have suggested about the fact that the Lord Advocate has much greater discretion with regard to the issue of national jurisdiction and what you have described in relation to petition cases, it seems to me that the bill wants to go beyond the commonsense initial procedures to give the court system a bit more freedom to decide where substantial trials would take place. Does it concern you that there is a bit more behind some of this modernisation than just a desire to make things practical?