Chamber and committees

I reassure the cabinet secretary and Liam Kerr that I do not intend to press amendment 58 or move amendment 60. I just felt that we needed to flush out some of the issues. The Government and Liam Kerr have raised some of those issues, which is really helpful. The Government’s amendment 2 will achieve what I was trying to achieve, so I will be delighted to support it.

I am also pleased that the Government will support amendment 59, which states that the Lord President must set out the rationale for using the power. I welcome what the cabinet secretary said earlier about its use, because that is the important part to debate. The default will be physical attendance, but we need flexibility to allow vulnerable witnesses and people who are ill to attend the court virtually, and we know that that process works. All that I am ensuring is that we as legislators—we are not practitioners—close every possible gap.

The cabinet secretary was right to say that it is quite hard to consider who would test whether a connection was good enough. However, as I have said many times, I have sat through a custody court session in which the sheriff literally asked me to come to chambers and told me, “Look, this is what I have got to put up with. It is just an appalling quality.” That is where I am coming from.

I am reassured that the Scottish Courts and Tribunals Service has said that the technology is a work in progress, but we have to ensure as a Parliament that we reach a point at which it is satisfactory. It is capable of being so, but we need to ensure that it works regularly on that basis.

I intend to move amendment 59, but I will withdraw amendment 58, and I will not move amendment 60.

Amendment 58, by agreement, withdrawn.

Amendment 59 moved—[Pauline McNeill]—and agreed to.

Amendment 2 moved—[Angela Constance]—and agreed to.

Amendment 60 not moved.

After section 2

Amendment 1 moved—[Liam Kerr]—and agreed to.

Section 4—Digital productions

I have nothing further to add, other than to say that I seek to withdraw amendment 61.

Amendment 61, by agreement, withdrawn.

Amendments 62 and 63 not moved.

Amendment 3 moved—[Angela Constance]—and agreed to.

Section 7: National jurisdiction for custody cases in sheriff courts and JP courts

Yes, give me a minute. Amendment 2 will insert:

“including what requirements must be satisfied by the location from which the person is to appear”.

Before I allow the cabinet secretary to intervene, I will say that I am clear about the importance of virtual attendance. I will not move—

I thank the member for that helpful intervention, which touches on the crux of the matter. We want to ensure that, when people give evidence virtually, they do so in circumstances that are similar to the circumstances in which people give evidence in court. I imagine that, to give the oath virtually, they would do the same thing that they would do in court.

My reason for initially pursuing the attendance of a court official—amendment 58 now calls for an official “appointed by the court”—was to ensure that someone checks that no one is in the room with the person who is giving evidence virtually. I am sure that the cabinet secretary will speak to that, because there should be no one in the room who might influence someone who is giving evidence. I was not sure how that would be done in relation to evidence that is given virtually, although I am aware that Victim Support Scotland has excellent suites where people can give evidence by commission.

I suppose that my not being a practitioner means that I am unfamiliar with how that could be done to everyone’s satisfaction and in a way that meant that evidence that was given virtually would have the same level of solemnity as evidence that was given in court. We want evidence that is given by witnesses virtually to have the same value as evidence that is given by a witness in court—they might not want to give it otherwise. That is why I wanted to air the issue.

I move amendment 58.

It is helpful to clarify that, when such Government-funded suites or those of Victim Support Scotland are used, we already have in place satisfactory arrangements. However, given that the bill would give the Lord President a permanent power to allow virtual evidence to be given, I just wondered who would check—if people were not giving evidence in those suites—that no one else was in the room and that everything was as it should be. That was my motivation in lodging the amendment. I do not know whether the cabinet secretary can answer that, but it would be helpful to know that before we close the matter.

As members have heard, the bill deals with two distinct issues: criminal justice modernisation, and domestic homicide and suicide reviews. Like Liam Kerr, Scottish Labour is not in favour of putting two distinct issues together, because we might have disagreements, and, in some ways, we have been here before. However, we will support the bill tonight, because we believe in modernisation and because part 2 of the bill is really required and is an excellent piece of legislation.

Most of the focus has been on the modernisation aspects of the bill. As I have tried to demonstrate through my amendments, there is quite a lot for non-practitioners and legislators to understand about the status quo in courts versus the new arrangements. The principle that we are trying to pursue is to confirm what is already in use and to ensure that there is no loss of existing rights and no detriment to the interests of justice in the court system. Therefore, we were right to test those issues.

Much of the detail of the bill’s provisions is not in the bill but will be set out via regulations, so there is still a lot to put on trust. As was put to me by a lawyer, if the system works the way in which it is supposed to work, there is no reason why it will not all go well, but that does not always happen. I have no doubt about everyone’s best intentions, but we need to ensure that there is not institutional creep, which is something that I have had to tease out in certain areas. That is why I whole-heartedly welcomed small but important Government amendments that were agreed today.

I cited the example at stage 1 of a previous time when we agreed a time limit of 180 days for High Court trials, and look where we are now. There were delays in the High Court system well before Covid, because the law on time limits was not adhered to. That is my example of the fact that, sometimes, things can creep in that we did not intend, and that is why we must be vigilant.

The bill makes permanent the temporary provisions relating to virtual attendance in order to increase its use. Virtual attendance is a very important tool, supported by victims organisations and the legal sector. We know that, without it, some victims simply could not give their evidence. It allows cases to proceed in circumstances that, previously, would have prevented the case from going ahead. It is interesting that, at stage 1, the police witnesses demonstrated that there is more work to be done to ensure that it is an efficient process that reduces police time in court, as they were not as enthusiastic about that as I thought they might be. It is important to note that.

It is extremely important, from the point of view of victims, to note that virtual attendance should have the same value as attendance at the courtroom, not just because of the need to create solemnity and equality between the courtroom and virtual attendance, but because it is important to always ensure that the evidence that victims give virtually is taken as seriously as it would be if it were given physically in court. For that reason, there should be on-going research to ensure that that is the case.

The bill sets out that the Lord Justice General has the power to issue determinations to change the default position to virtual attendance for particular categories of cases, and my amendments, supported by the Government, set out that the Lord Justice General must provide reasons in making any determination. That is an important step, because, as we examine the reasons why virtual attendance is granted by the Lord President, it is important to see the rationale. I am glad that the Government has accepted that. The committee noted that it should be dealt with on a case-by-case basis rather than there being a class of trials for which virtual attendance can be used, so that is clear.

I am also broadly satisfied with the Government’s amendment on national jurisdiction, which is a matter that my colleague Katy Clark raised in her amendments. I agree with the Law Society of Scotland that local justice should still be preferred where possible and that changes should be made only to make the system smoother.

On the issue of digital productions, my intention was that I did not want parties to lose their existing rights in relation to physical items, and it can sometimes be important for the jury to see the physical item in court. However, on the basis of what we heard from the cabinet secretary today and at stage 2 , I am satisfied that that will not be denied and that there is a process for doing that.

In conclusion, it is important to welcome the national standards for review cases involving domestic abuse and homicide. It is an important part of the legislation. If we are to stop the alarming trend of violence against women and girls, we must do everything that we can to understand why it happens in the first place. Notwithstanding the fact that, as Liam Kerr said, there could have been more improvements if we had had more time to focus specifically on that aspect, I believe and welcome that the bill will enhance our knowledge and processes in the fight against violence against women and girls.

Oh, I thought it was the cabinet secretary who asked me to give way, but it was Audrey Nicoll—sorry. Let me just finish my point. I am fully supportive of virtual attendance but I just want to make sure that this important issue is raised, because I have witnessed cases in which there have been very poor connections to the point that we could not identify the accused. I know that that is in hand, but it is an important issue to raise at stage 3, even though it was not part of the conversation and debate prior to that.

I give way to the convener of the Criminal Justice Committee, Audrey Nicoll.

Amendment 61 says:

“Where an image of physical evidence is to be treated in criminal proceedings as if it were the physical evidence itself, either party in the proceedings may request that the physical item be produced in court.”

It also says:

“Where a request is made under subsection (1ZA) before or during the trial, the physical item must be produced in court.”

Amendment 62 says:

“Notwithstanding any direction made under this section, where either party in the proceedings requests for the physical evidence to be produced in court, the request must be granted.”

First, I will say what I am trying to achieve. At stages 1 and 2, there was quite a bit of debate about digital productions. I totally support the principle behind digital productions because, in many cases, there is no requirement to have a physical item in court. A lot of time, money and space could be saved, so I am in favour of digital productions.

However, before we close on the issue, I want to ensure that we retain the status quo to some degree. Under the status quo, there are cases—I do not know how many—in which producing the physical item in court for the jury to see could be really important. The way that the bill is structured does not prevent that. Parties would be required to say in advance that they wanted the item to be produced in court. If they did not do that within the time limit, they could go to the court and ask the judge whether the item could be submitted to the court.

Amendments 61 and 62 seek to ensure that either party can ask for the physical evidence to be produced. What the issue boils down to is that I do not want there to be a time bar, because we already operate on the principle that the item will be produced in court. There is a minor issue, which is that it is possible that the court could say no. You might think, “Why would the judge ever say no, you can’t have the item in court”?

I also had the chance to talk to the Law Society, members of the Faculty of Advocates and practitioners. They seem pretty satisfied; I suppose that they are just looking for an assurance that the Government will continue to discuss with them the guidance and how it will operate in practice.

At stage 2, the cabinet secretary said that

“there is an existing common-law right for the defence to examine any physical item whose condition is critical to the case against the accused, even when it will not be produced at trial.”—[Official Report, Criminal Justice Committee, 11 June 2025; c 26.]

I found that reassuring, but I thought that, in the interests of justice, we should tease out whether we have got that right. In the past, I have used the example of a case in which a replica gun was produced in evidence. I have not witnessed this myself, but, as those who have seen one will understand, it would be really important that the jury was able to see that a replica gun looks like a real gun, because that is obviously a criminal matter.

Therefore, there are clearly cases in which it would be beneficial for the jury to actually see the item and it is possible to produce the item. It would make sense to have some sort of tick-box exercise in advance of the trial that would serve as a prompt to ensure that, if the physical item is required, it can be produced. I do not intend to press my amendment, but I wanted to ensure that we properly examined the matter.

Here we are again with the same failed scheme to release prisoners early that we were asked to agree to in March this year, with the same flaws and the same risks—and there were, indeed, risks. Notwithstanding the professionalism of the staff and management in the Scottish Prison Service, the prison system is in meltdown, remand is still through the roof, there is a lack of progression internally in the prison system and there is now only one open prison. Victims will be deeply disappointed that we are here again. Will we be back here in another six months? That is a legitimate question for Opposition parties to ask.

I have two further questions. First, what discussions has the cabinet secretary had with the UK Government about the release of foreign criminals who may require to be deported on release? That might not be a simple matter, depending on the country that they are returning to.

Secondly, the cabinet secretary has said that there is increased capacity, and there will be, but the new HMP Glasgow will not be built until 2028—it is over budget and overdue. It will have 1,344 prisoners. What will the target operating capacity be? Will it be the same as it is now? If so, I am concerned that the prison population will be extremely large if we use the same modelling as we do in HMP Barlinnie just now, which has a capacity of 900 but a prison population of 1,300.

The First Minister has already addressed the question of what happened last night, when the global sumud flotilla was illegally intercepted by Israeli forces. There are four Scots in the flotilla: my friend Sid Khan, who was mentioned earlier, Margaret Pacetta, Jim Hickey and Yvonne Ridley. They were sailing in international waters and, when I heard from them at about 6 o’clock last night, were about to approach the 12-mile zone around Gaza, which is now recognised as Palestinian territory by the UK Government.

I am aware that Hamish Faulkner, the Parliamentary Under-Secretary of State for the Middle East, Afghanistan and Pakistan, has already contacted Israeli officials, and we are hopeful that we will see the safe return of those people pretty soon.

Does the First Minister agree that Israel is in breach of international law and had no right to be on board or to seize any of those boats in the first place? Does he agree that there is a great deal of courage among the 500 people across the world who took part in the flotilla, whose aim, apart from taking the aid, was to show Palestinians in Gaza that the world has not forgotten them and acknowledges how isolated they feel?