Chamber and committees

I sincerely thank my colleagues on the Criminal Justice Committee and the committee clerks for what is an excellent report. The convener outlined its contents earlier. It is clear that we need transformative change in our justice system for victims and complainers when it comes to rape and sexual offences. I, too, welcome the fact that we were able to engage so closely with the victims who put themselves forward to speak to the committee.

Scottish Labour supports the Government’s aims and the view that it is time for change, but we believe that it needs to have a comprehensive plan to look separately at each reform in the bill. We believe that there is too much substantial reform for one bill.

We also believe that a lot can be achieved without legislation. In fact, some of that change is already beginning to happen. Examples are the giving of evidence by commission, which the cabinet secretary mentioned, and the tightened application of section 275 of the Criminal Procedure (Scotland) Act 1995 for rape trials. As we heard, the Lord Advocate has made a huge difference in ensuring that victims get more access to their lawyers, and the judge is now required to charge the jury specifically on the question of rape myths. I give all credit to all those who have been involved in that.

I will take an intervention from Christine Grahame.

That is one of the things that the Government has responded to—it will put the specified criteria into the bill. That is what I was trying to speak to, because I still have issues with that. For example, the Government has said that one of the criteria will be how single-judge trials are perceived by those people who are part of the trial process. As you can see, that is very difficult to measure.

I will make a final point on juryless trials: the fact that the Government has now said that it does not intend to bring that measure forward until 2028 is of serious concern to Scottish Labour because, if the Government thinks that there is a benefit to having juryless trials, it should really introduce them in the current parliamentary session.

We support the removal of the not proven verdict, because we believe that it has had its day, but a serious issue remains with how we balance the system to ensure that it remains fair. I think that the Government is coming from the right place in that regard, but suggesting that a jury majority would remain at a simple majority of one in order to convict is wrong. The Government’s problem is that there is no consensus now on what that majority would be. One of the Government’s assertions—rightly so—is that Scotland is the only jurisdiction with a not proven verdict, but we would be the only jurisdiction with a majority of eight out of 12 members.

I know that I need to wind up, Presiding Officer, but, with regard to the specialist courts, Scottish Labour has suggested that we could resolve the issue of rights of audience—which is a serious issue, especially for the accused—and get the balance right by the High Court and the sheriff court having a specific division for that. As things stand, we cannot support the proposals in the bill.

We think that there is too much reform in one bill. We need to examine at stage 2 which of the reforms can really make a difference. The Government has a lot of work to do to convince us. We will be abstaining this evening and, if we cannot resolve those issues at stage 2, we will vote against the bill. It is up to the Government to show that it can resolve some of the outstanding issues.

Given that the Government has responded with the criteria for what would constitute success for the juryless trial pilot, does the member accept that, if the Government thought that the trial was successful, that would indicate that we would not have juries for rape cases in the future?

No, I do not. In case the member has misunderstood my point, the Government has said throughout that it is not specifically aiming to increase conviction rates, but it is unclear how the success of the pilot’s outcomes will be measured. That is a particularly important point.

I come to the question of low conviction rates. Simon Brown, from the Scottish Solicitors Bar Association, pointed out to the committee:

“If we drill down to basics, the pilot is a response to a perception that the conviction rate for rape trials is too low. Therefore, by any objective test, the pilot can be a success only if it increases conviction rates. If it does not increase conviction rates, what is the point of it?”—[Official Report, Criminal Justice Committee, 6 February 2024; c 4.]

Clearly, we must have fair and balanced outcomes. I agree with the Government that it would be dangerous to set out to reform a criminal justice system specifically to increase conviction rates. I support Rona Mackay’s assertion that the conviction rate is too low. However, a lot of evidence suggests that supporting victims in court to tell their full story will lead to better-quality evidence and more convictions. Nobody can tell me that that can be overturned.

I acknowledge that, but I hope that the cabinet secretary agrees that some progress has been made, in that judges are now expected, in every case, to talk about rape myths. I credit Rape Crisis Scotland and other organisations for making that happen.

However, from listening to victims, it is clear that we need to break down the barriers that prevent them from telling their story in court, and to allow more access to advocate deputes. We heard from victims that they feel like bystanders at their own trial, and we absolutely must fix that. We support the embedding of trauma-informed practices, which is included in the bill, although, as the committee has said, the scope of trauma-informed practice should be extended to all practitioners, including the defence.

A whole-system approach needs to be taken in order to make the system better for victims. We talked about a single point of contact. From the pleadings of victims to the Criminal Justice Committee, it is clear to me that they want to have a single point of contact, communication with the Crown, communication with the advocate deputes in their case and an understanding of what is going on in the trial that concerns them. We can do that without legislation.

Delay is one of the biggest reasons why victims are exercised about how the criminal justice system treats them. I point out, as I have many times, that even laws that are passed by the Parliament to prevent delay, which specify that there should be a criminal trial within 140 days, are excessively exceeded, as they have been for several years.

We also support anonymity for rape victims.

However, most of the other changes that are proposed in the bill are still problematic, and I will go through them in some detail.

Scottish Labour opposes the use of juryless trials as set out in the bill. It is concerning that the proposal is described as a “pilot”. Sheila Webster of the Law Society of Scotland made the point that

“It is not truly a pilot. We are talking about live cases here. People’s lives will be permanently affected, and at the end of the pilot we might decide that it was not a very good idea.”—[Official Report, Criminal Justice Committee, 24 January 2024; c 62.]

A key issue is that of what would constitute success. I acknowledge that the Government has said that it will put that in the bill, but we have been told that although it is not designing a system specifically to increase conviction rates, it will still assess outcomes—which, we assume, will include conviction rates.

In relation to the pilot, Professor James Chalmers told the Criminal Justice Committee that

“it would be surprising if conviction rates did not factor in the decision whether to go forward with the reform”—[Official Report, Criminal Justice Committee, 24 January 2024; c 24.]

and, despite the Government’s claims, legal professionals have voiced their concerns that conviction rates are likely to be used as a marker of success.

To ask the First Minister whether he will provide an update on what discussions the Scottish Government has had with the Lord Advocate regarding the exoneration of Scottish sub-postmasters and mistresses whose convictions were based on evidence from the Post Office’s Horizon computer system. (S6F-03033)

When I was first asked to host—jointly with Audrey Nicoll, Maggie Chapman and Liam McArthur—the drop-in on the 68 is too late campaign, my reaction was that 68 is too late for everyone, but it is certainly too late for prison officers. I also put on record that although I did not manage to get to the WASPI—Women Against State Pension Inequality—demonstration today, I, in common with everyone else in the chamber, endorse the WASPI women’s continued fight for justice.

When we think of the risks that prison officers manage on a day-to-day basis and the incredible physical courage and patience that they must display, it is clear to me that, in the main, 68 is far too old an age for a prison officer to be able to deal with physical challenges of such a nature. Most prisons and custodial institutions are inherently violent places, but the skill and professionalism shown by prison officers are what limit the frequency and severity of incidents.

In his 2011 review of public sector pensions, Lord Hutton of Furness produced a list of uniformed services that he proposed to protect from the rise in the state pension age to 68. He insisted that, historically, the pension age had been lower for the armed forces, the police and firefighters to reflect the unique nature of their work and that, therefore,

“a pension age of 60 is appropriate.”

Prison officers are clearly a uniformed service, but they were unfairly left off that list. If a prison officer fails their annual physical test, they will generally be allowed to retire, but that means that they will not get their full pension. That is hardly fair when police officers and firefighters are able to retire almost a decade earlier.

Unlike most public sector workers, prison officers cannot go on strike. Given that they are prohibited from taking any form of industrial action, we need to make sure that the Government is not taking advantage of that restriction and underrewarding prison officers.

I also note that the Prison Service Pay Review Body has continued to raise concern about the pension age, arguing that 68 is

“far too old to cope with the physical and mental demands of being an operational frontline prison officer”.

The retention rate of newly recruited prison officers is very low. Violence, or the threat of violence, is always there. The fact that it is a difficult and unpredictable job should be acknowledged through the retirement age.

At the start of the year, the head of the Scottish Prison Service, Teresa Medhurst, said that Scotland’s jails were “too full” and that they were reaching a “tipping point”. Overcrowding creates all sorts of pressures inside jails. Andy Hodge, the governor of Perth prison, has pointed out:

“The pressure of population is forcing us to put more people into one room. That’s a real stretch. Two adult men into a room where you’ve got one TV, one kettle, tensions start to build, people start to fall out. Violence amongst the residents starts to go up.”

Prison officers have to deal with the fallout of those increasing pressures and tensions. That is on top of their having to deal with violence directed at them by inmates.

Another pressure that prison officers have to deal with is the increasing number of prisoners suffering from acute mental health problems. There are high levels of self-harm, suicide and drug deaths in our prisons; all are clearly challenging to deal with, and our prison officers are tasked with dealing with such incidents on a daily basis.

The Prison Officers Association is extremely concerned about the impact of prolonged exposure to such an environment on front-line staff, especially those who are required to continue working until they are 68. It has pointed out that relying on prison officers to work until they are 68 results in high levels of sickness and absence rates across the service. Prison officers are critical to the rehabilitation of prisoners, and it is not in the interests of prisons as a whole for members of the prison workforce to feel that they are being unfairly treated compared with workers in other sectors.

Prison officers are on the front line of the criminal justice system and do a difficult and dangerous job. I do not believe that a retirement age of 68 is either appropriate for prison officers or in the public interest, and I ask the Scottish Government to have discussions with the United Kingdom Government about how we can ensure fairness for prison officers.

We now know from recent coverage in the press that people at the top of the Post Office lied all the way about Horizon—and that goes down to our Crown Office. However, the Crown Office accepted an interim report by the accountancy firm Second Sight as corroboration that the Horizon system was okay, despite the fact that the director of the firm said that the report revealed “system flaws” with Horizon. As the First Minister knows, the onus has so far been on postmasters themselves to appeal their convictions, and I am sure that we agree that that is wholly unacceptable.

I wonder whether the First Minister agreed with Kevin Drummond KC that the Lord Advocate could present a petition to the court of criminal appeal to inform the court that the convictions had been found on flawed evidence and could invite the court to overturn the convictions. We all want the quickest route to justice, and that might be a quicker route. Does the First Minister agree that the miscarriages of justice could be dealt with quicker in Scotland, where those miscarriages of justice took place, and that our Crown Office should be responsible for the actions that it took?

I welcome that last point, but that is what I thought that the cabinet secretary would say. The Government has to take responsibility. As the Government, it has presided over the implementation of a very important act—we supported it on that—and it needs to take responsibility for the way in which the act has been implemented. It is not right to blame Police Scotland for a campaign that has gone horribly wrong.

The act has merit—that is where I agree with the cabinet secretary. Prosecutors can attach prejudice aggravators to crimes such as assault and threatening or abusive behaviour, and if the aggravator is proved, it can be taken into account in sentencing. However, as I argued strongly at the time, sex is a characteristic that matters when it comes to understanding levels of violence—Lord Bracadale described the omission of sex as a lost opportunity. I fully support the work of Helena Kennedy on misogyny but, understandably, women did not want to wait for the results of a working group, and they were proven to be right on that. Women are regularly the targets of offending behaviour that is based on hostility towards their sex.

Two weeks on from the act’s implementation, the public are none the wiser. The Scottish Government must take responsibility for the mess. I ask it to set out how it intends to address the questions of the roll-out and implementation of the act, to restore confidence by taking major steps if it thinks that public confidence can be restored, and to take the best elements of the law forward.

I move amendment S6M-12550.4, to leave out from “believes” to end and insert:

“recognises that the Hate Crime and Public Order (Scotland) Act 2021 was intended to improve protections for individuals and communities from hate, but has been let down by the chaotic implementation of it by the Scottish National Party administration; acknowledges the Scottish Government’s failure to properly communicate the changes in the legislation, or to give adequate training to Police Scotland; requests that the Criminal Justice Committee carry out an urgent review into the operation of the Act, specifically the new provisions, and calls on the Scottish Government to urgently address the flaws in its implementation of the Act, to use its powers under section 12 of the Act to add the characteristic of sex as an aggravator and protected characteristic under the Act, and to review the recording of hate incident reporting to make sure that it is compliant with human rights law and prevents the recording of vexatious complaints.”