Chamber and committees

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.

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)

I hope that the cabinet secretary agrees that, in relation to sexual offences, it is critical that the offender is recorded on the basis of their sex, because to do otherwise would distort the statistics. In September 2024, the chief constable stated that offenders in rape and other sexual offence cases would be recorded on the basis of biological sex—so, we are happy. However, in a letter to me and in press reports, Police Scotland has since indicated that there is “no set policy” on how to record the sex and gender of individuals. I stand by what I said when I quoted that press report. It must be true, because there is clear confusion—that is why I wrote to Police Scotland.

Police Scotland is undertaking a review of sex and gender data. Surely the cabinet secretary must have a discussion now with Police Scotland about how it is recording the sex of perpetrators of sexual crimes. There must be clarity for police officers on the front line. Does she agree that it is critical that the Government gives proper guidance to all public services?

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?