Chamber and committees

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?

As you said, cabinet secretary, whether to impose restitution orders is a matter for the courts to decide. We have heard that there have been 103 such orders and that in a given case the court can impose either a fine or a restitution order. From what I have read, it seems that the amount of any restitution order should be broadly the same as that of any fine that the court might have imposed. Does that mean that the courts have complete freedom to decide which of those options they want to apply? Is there guidance on when a restitution order should be used, or are there any criteria for that?

I had not appreciated that a restitution order could be imposed as well as a fine. I have not looked recently at the repayment figures for fines. I know that, in the past, there have been problems with collecting fines—I do not know whether that is still the case. I would think that someone’s ability to pay might be a consideration. If a court imposes a fine and is thinking about making a restitution order, presumably it would use some kind of self-imposed criteria to decide whether the offender could afford that, otherwise we would not get the return on it.

You said in your submission that provision depends on what prison someone ends up in. Do specific prisons not provide recovery programmes, or is it random? Are there specific prisons that you could point to and say, “If you get moved to that prison, you will not get a programme of recovery”?

Is it down to governors?