I am broadly content with what the cabinet secretary has said. I put on record the fact that, when working on my amendments, I had asked for drafting that would provide clarity on how the power of the Lord Justice General could be used in relation to hearings and trials. When I read the bill, the explanatory notes and the policy memorandum, I could not see the distinction clearly set out that I think that the cabinet secretary has said is there, and I am content with that. That is what I had asked to be drafted, but I accept that what was produced is not quite what I had intended.

As I hope that the cabinet secretary will acknowledge, the committee’s biggest concern was the one that legal representatives had raised in relation to some of the practicalities—as opposed to the principle—of virtual attendance at custody courts, which is why the provisions have been paused.

I would like to come back to that issue at stage 3, as I would not want us to simply let go of it and to pass the bill while the matter is on-going and unresolved. We are talking about granting powers. Once those powers have been granted, there will no coming back from that, if we get it wrong.

On that basis, I seek to withdraw amendment 33.

Amendment 33, by agreement, withdrawn.

I do not have experience of that—I have only seen instances in which people have given evidence in Victim Support Scotland’s headquarters, which, as I said, are very impressive. Who checks when someone is giving evidence from whatever location? I presume that those giving evidence still have to take the oath and so on, and I think that we all agree that there should not be anyone else in the room who might interfere. Who checks that? Is there a way of doing that?

I totally acknowledge that it might not be practical for a court official to do that—I concede that to Liam Kerr and to you, cabinet secretary—but surely there should be some checks and balances. If people are not giving evidence from Victim Support Scotland’s lovely, well-established offices, who will check that the conditions in that location are the same as they would be if they were giving evidence in court? It just my lack of understanding that makes me ask.

I agree with the convener. I am content with the status quo—whatever that is. However, the bill says that the other items that I am talking about could be digitally produced. If the defence or the Crown, for whatever reason, does not apply for the item to be produced in court, it will not be produced, which would be contrary to the interests of justice. I accept that this is a huge area, but I wonder whether there should be a bit more detail in the bill to prevent that from happening. My amendment says that there should be no deadline. Why should there be a deadline at any point before the trial in relation to producing a weapon in court if it is practical—it might not be—and in the interest of justice to do so?

I am not sure that I agree with your final point. I am trying to make the point that, if the default will be the digital production of evidence, that cannot be done at the expense of the interests of justice. Although I acknowledge that what we are talking about could happen in court, the court could say, “We’re not allowing it.”

I wonder whether this is human rights proof. Let us say that the evidence is a murder weapon and the court says, “No, we will not allow the physical production”—for whatever reason—which it is entitled to do under the legislation. How can that be fair if the Crown or the defence thinks that such evidence is important for its case? It has to answer to the court, but these things happen all the time. That is why I want to explore the issue, and Liam Kerr’s amendments are probably a bit more comprehensive than mine.

Paul Smith of the Edinburgh Bar Association said:

“At the moment, if someone is charged with possession of a knife, that knife needs to be retained and physically produced in court. Section 4(4) will allow the police to take a photograph of the knife and that photograph to become the evidence, so they will not need to produce the knife. That might lead to the original knife being lost or destroyed and not available for the defence to inspect. My concern is that, if the police know that a photograph is as good as the real thing, they will take a photograph and dispose of the real thing, and thereafter it will be lost.”—[Official Report, Criminal Justice Committee, 22 January 2025; c 27.]

It would be helpful to tidy up some of these concerns before stage 3. Although the convener outlined lots of benefits to the bill, I would be deeply concerned if all eyes were to be on getting everything digitised because that is much more efficient. If we lose some of the things that we already have, that will be contrary to the interests of justice.

It is useful to know that there is a common-law provision to allow parties to examine the item. I will speak to what I and Liam Kerr are driving at. If you think that it is in the interests of justice for the jury to see the weapon—if it is a weapon—it should surely be an unqualified right. There is a difference between examining something and it going before the court.

My amendment 51 would ensure that national jurisdiction can be used only for the initial custody hearing and, beyond that, only with the agreement of the defence. Following that, jurisdiction should remain linked to the locus of the offence. Simon Brown from the Scottish Solicitors Bar Association said that:

“The issue is the plummeting number of defence solicitors available to deal with this work, and the concomitant difficulties that places on being able to deal with cases outwith one’s normal practice area. If we were in a situation where I had a Sheriff and Jury accused out on bail for a case, and I assume that it would be prosecuted at Kilmarnock, I would be faced with considerable logistical difficulties were that matter to be indicted in, say for example, Greenock.”

My amendment 52 would ensure that national jurisdiction would end at the point of liberation on bail. Further to that, Simon Brown also said, when I asked him, that:

“The issue is, though, that those fully committed for trial and therefore remanded in custody are only a relatively minor percentage of solemn cases. The vast majority of solemn proceedings commence with the case against the accused being continued for further examination and the accused liberated on bail. We would require a similar undertaking that national jurisdiction would end at the point of liberation on bail to make the system workable.”

I welcome the cabinet secretary’s amendments 8 and 10, which provide the clarity that I was seeking at stage 1 about how far national jurisdiction would be allowable in relation to various proceedings. In simple terms, I think that that would not be the trial, but could be proceedings before that.

Although I am sure that I do not need to mention it again, you have heard from Sharon Dowey and from me about the crisis that we are experiencing in terms of the loss of criminal defence lawyers. That was mentioned in the press again this week. The Government does not seem to have taken that into account when legislating for national jurisdiction. We have to hope that everyone will be sensible about it and that we will not have lawyers or victims going up and down the country. It is less about victims, because the provisions relate to procedural hearings, but it will cause practical difficulties for defence lawyers and accused persons, particularly as people are leaving the criminal bar.

It is sensible to have national jurisdiction for custody hearings. My reading of the bill is that the default will be virtual appearances for custodies, which makes sense—you can see the efficiency in that. However, we must remember that national jurisdiction is about not just virtual but physical appearances. I am concerned about the practical impact on solicitors’ ability to conduct their business if they have to be in different sheriff courts for different things.

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?