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.

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.

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 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.

The Flamingo Land development clearly resonates across the country as a national concern, and the Scottish Government only just seems to have realised that. Like other members, I have had many emails objecting to the proposed huge theme park. There is widespread public dismay at the prospect of a theme park on the shores of one of Scotland’s national treasures and in an area of great beauty and a national park that the Parliament fought for.

The application is no ordinary one, and it is a pretence to suggest otherwise. Whether people are for or against it, it is clear that it will restrict full access to activities for people who visit Loch Lomond for the day. As Ross Greer said, the scale of the project is the most important consideration, against the backdrop of something that the country loves. That is the primary reason why the Government should have paid more attention to the issue—there is a lot to lose. According to a poll of Radio Times readers, Loch Lomond is the sixth-greatest natural wonder in Britain—and I can see that Jackie Baillie agrees with that.

It is questionable whether the proposal should have been given the go-ahead by the Scottish Government’s reporter after the plans were unanimously rejected by the national park board and opposed by the Scottish Environment Protection Agency, the National Trust for Scotland, the Woodland Trust and members of the local community. That the proposal met the planning criteria in the first place is questionable. Stuart Pearce, the director of place for the Loch Lomond and the Trossachs National Park Authority said that it created an “unacceptable risk” of flooding of the River Leven. Why was that ignored? More than 178,000 people signed a petition against the project. Of course, under planning law, those people have no right of appeal.

The scale of the objections should have told the reporter how controversial the development is. The objections also demonstrate that the decision needs to be properly justified, rather than, as has happened, leaving it open to question whether it is in fact a commercial one and not a planning one.

A single person was, perfectly lawfully, able to overturn all those objections from respected organisations, and in particular the national park board, as well as a large public petition. That begs a question about planning law. I think that it would have been perfectly competent to have a planning inquiry instead of a single decision maker, and that would have been more transparent. A public inquiry would have told us what the primary considerations were in coming to any conclusion. Now that the Government has called in the application, it has an opportunity to make the final decision more transparent and to show the public that it has listened to all the voices that have objected to what is, in my opinion, a dreadful proposal.

I had a look at Flamingo Land in North Yorkshire. Last year, a survey found that people thought that it was quite a disappointing theme park. If people turn up on the day, a family ticket for two adults and two children is £224. This is just my guess, but I suggest that, if the proposal gets the go-ahead, because the theme park will be in Loch Lomond and the Trossachs national park, the charge will be more than £224. Some reviews of the North Yorkshire park on Tripadvisor from May this year read quite grimly. Many people say that the park is overpriced and in need of upgrading—of course, it is a bit older—and, apparently, the animals look “tired” and “bored”. That made me laugh a bit.

There is a lot to think about. It might be appropriate for the development to be placed somewhere else rather than next to a national treasure.

It is clear that most people reject such a theme park being developed on the shores of Scotland’s best-known and most iconic loch. I realise that the issue is not only whether a majority is for or against the development. If the Government grants consent after bringing it in, it must show the public that it has fairly and transparently looked at the criteria for the application, which I look forward to reading.

The position is far from clear. There are reports in the press that there is widespread confusion and unease among staff about how suspects who identify as transgender are recorded in official systems. Many staff say that they have to record someone and, indeed, search them based on how they present, even if that is at the moment of arrest. It appears that there is no official guidance, so staff are left to navigate sensitive and legally significant decisions without clear guidance.

A whistleblower said that that is

“putting officers and staff in a situation where they are having to do things where no one knows where this decision is coming from, and there is not an actual policy. People are just feeling kind of coerced into doing it.”

Given the press reports, is the cabinet secretary concerned about the apparent lack of clarity that is being experienced by officers on the front line about how to record the sex and gender of suspected serious sexual offenders?

To ask the Scottish Government what its response is to reports of claims by a whistleblower at Police Scotland that officers are being “coerced” into logging individuals in line with their gender identity, even in serious sexual assault cases. (S6T-02583)