Chamber and committees

Amendment 47 would ensure that any change to, or increase in, the use of digital productions in court will not have an impact on the current arrangements for the storage of physical evidence. Amendment 48 would ensure that the physical evidence of the case cannot be destroyed while the case against the accused is on-going, right up until appeal or review by the Scottish Criminal Cases Review Commission.

I thank the convener for allowing amendment 93 as a manuscript amendment; it is one of the amendments that got lost in the midst of all the emails. The amendment would ensure that, before a trial begins, either the prosecution or the defence can request to view the physical item, and they can request that it is produced in court. That is similar to the amendments from the cabinet secretary and Liam Kerr.

It is important that we establish the principle of what the modernisation of this part of the system does. Where does it benefit the court administration and the interests of justice?

With regard to the production of physical evidence, there are a lot of cases in which one would think that it does not matter whether the evidence is produced digitally, but, in some cases, it does. For example, in a murder case in which a weapon is used, I would have thought that it is really important that the jury sees that.

I turn to the cabinet secretary’s amendment 5. Although I think that it is helpful, it seems not to be founded on the principle that it must be in the interests of justice for either party, whether it is the Crown or the defence, to be able to say, even if they have missed the deadline, that they wish the evidence to be produced in court. I am not comfortable with there being a deadline, so that we say, “If you’ve missed the 28 days, you cannot have that produced in court”. There is a best-evidence rule—that is the principle in our system; we need the best-quality evidence. I am concerned, therefore, that the bill might throw away important principles.

Generally speaking, I am interested in the status quo. I confess that I am not au fait with all the principles of the status quo around the retention of evidence, but I note that there will be benefits to the smooth running of the court system. It is important to separate the issues of retention of evidence—how long it is kept for and what form it is kept in—and the production of evidence. We are dealing with two different things there.

If there was a digital image of a bag of heroin, and you were confident that everybody knew what that looked like, you would not worry too much. However, you might not be confident about that, and it is important to ensure that there is the full ability for that evidence to be produced in court.

Amendments 34 and 42 seek to prescribe whether a location would be deemed a suitable location for remote attendance by specifying that the location must have a court official in attendance and an adequate speed of connection. I have previously mentioned my experience in relation to the connection issue, which is one that was raised by all the witnesses.

An issue that I am sure that the Government will address is that of ensuring that there is equality in people’s ability to attend virtually. For example, Age Scotland told us that older people might struggle with getting online. There are issues affecting certain groups of people that must be considered.

It might well be that the cabinet secretary is content that the bill sets out clear criteria for how evidence should be given and where it should be given, as previously mentioned. On the taking of evidence by commissioner, that measure has been a great success. I have seen the facilities for myself, and I thought that that would be the standard.

When I was discussing the issue with the legislation team, I wanted to prescribe some things that would make sense. Maybe they are the wrong things, but I would not be content just to say that people could give evidence in any circumstances and anywhere. It is a court of law, and giving evidence virtually must have some requirements. I would have thought that everyone would be content with the fact that the location should have an equivalency to a courtroom. That is all that I am trying to achieve with these amendments.

I move amendment 34.

It could be a mix.

The policy note says that the financial impacts are

“anticipated to be unchanged as a result of the implementation of restitution orders.”

Is that possibly why there have been only 103 restitution orders?

I will follow up on what you talked about, Tracey, which has also been a running theme. We have all these documents and strategies and lots of things that we are doing really well but the prison regime is completely overcrowded—we are not unusual in that in Scotland, because England has the same problem. That overcrowding is stressing out the staff who run the services and is impacting on prisoners, most of whom, according to the survey, do not even get out of their cells for more than an hour a day and some of whom are doubling up—I do not know what that looks like, but that is the regime in which we are operating—so it is not easy. You said to Sharon Dowey that there is no consistency there.

It is shocking that a prisoner who has opted to go on a programme and is in recovery could be transferred to another prison, when everybody wants that recovery, including the community and the individual. That begs the question that I will ask Tracey first: instead of all the endless documents, is it time that prisoners had a categoric right to continue their rehabilitation or recovery? I am sure that other members feel the same. I get many letters from prisoners about the waiting list for rehabilitation. They cannot get on the list and they say, “I want to do things to get into recovery.” Is it time to take a different approach?

Cabinet secretary, I just want to check that I have understood what you said about what the courts can do. I agree that there should be more encouragement to use the orders, but the Scottish Government policy note says:

“We anticipate that in a given situation the level of financial penalty imposed by the courts is likely to be the same regardless of whether it is a restitution order or another financial penalty such as a fine. The financial impact on the offender and their family, and any resulting impacts, are therefore anticipated to be unchanged as a result of the implementation of restitution orders.”

My reading of that is that, if a court were considering applying a restitution order, that would not necessarily be in addition to a fine, so that would not be a barrier. However, I thought that you said that it can impose both. Did you mean that if it does impose both, the financial penalty should not be higher than it would have been had the court applied only a fine?

If I understand our papers correctly, the anticipated result of the order should be such that the financial impact on the offender would not be greater than it would have been, albeit that a mix is being used. I will just read from the policy note again:

“The financial impact on the offender and their family, and any resulting impacts, are therefore anticipated to be unchanged”.

Does that mean that, even though the courts could impose a fine and a restitution order or a compensation order, there are not three separate figures? In other words, there is potential for the overall amount to be three times as much as it would have been if only a fine been imposed. If that is right, are you saying that the overall amount of the three figures should not be higher? If the courts could do that, and the overall cost to the offender would be higher, that would impact on the ability to collect the fine.

Any information that any of the panel could provide on that would be helpful. We need to know where the system is not working for the purposes of the report.

I will ask about remand prisoners. Around a quarter of prisoners are on remand. Does that need to change? The committee understands the subtle and important difference in how remand prisoners are treated, because they are innocent until proven guilty and they are waiting on a trial. Many of them will be on drugs—although they were not on drugs when they went into prison—and some will not be. There is a combination. Do we need to change anything in relation to how remand prisoners get access to drug treatment?

A mother has written to me because, if her son is released—he might still be remanded but he may be bailed—she knows that there will be a vicious cycle. There is very little chance, or far less chance, of getting a person into recovery because of all those things. I appreciate you giving that example.