Chamber and committees

That is helpful.

Everyone seems to be content that the Government should have emergency powers. However, I make a plea for clarity and for it to be easy to read the provisions and know what the power is about. It is about risk to life and, ordinarily, there will be regulations—it is about future proofing.

I do not know what the cabinet secretary’s position is on amendment 90, but, as I said, I am sympathetic to it. My only concern is that I do not know whether it is proportionate to say that, in every case, the period should be 180 days. It is important that we get section 8 right, so I make a plea that the Government give consideration to that if amendment 90 is agreed to.

On a point that Jamie Greene made, in the scenarios that we are talking about, I do not see why the bill cannot include a requirement to notify victims. That would be in line with a principle that we all believe in, but it seems to be missing from the bill.

That is helpful. You are saying that the hearing is on the day.

Maybe that was obvious, but I do not like to take things for granted.

Members might recall that the committee sat through a case at the High Court in Glasgow in which the advocate had an uphill struggle to get over the hurdle of exceptional circumstances. There was a massive string of previous convictions and even we could see that there was no chance that bail would be granted in that case.

I politely suggest that the committee and, I imagine, victims organisations are looking for that kind of reassurance for stage 3. I am not interested in introducing unnecessarily restrictive provisions for sheriffs making decisions, allowing them to use some discretion, but nor would I want to leave a gap if the organisations that have made representations to us still felt that the provisions left one.

Amendment 65, by agreement, withdrawn.

Section 3 agreed to.

Section 4—Refusal of bail: duty to state and record reasons

I am very sympathetic to all the arguments that have been made, especially with regard to the section seeming to go a little bit too far in starting to prescribe things with regard to judges. Indeed, I think that the committee was particularly in agreement on that.

Does the member agree that, in that case, it is the objective that perhaps needs to be defined? As far as remand is concerned—Collette Stevenson is on record as arguing this, and I support this view, too—supervised bail is a really important alternative for courts. I agree with the member that there needs to be a conversation about that, but we perhaps need to sort out the principles first. For example, if someone spends time on remand, it is only right that that time be considered in the sentence, because they have been detained in a prison. If we are talking about someone with a restriction on their liberty, which can be the case for people who have an electronic tag, I guess that that is the principle behind the provisions of the bill that we are examining.

Therefore, my question for Jamie Greene is whether it is necessary for us to sort out which principle we are adhering to here. I am slightly sympathetic to the viewpoint that consideration be given to cases in which people who have an electronic tag as an alternative to remand have quite a substantial restriction on their movements for a long period. I agree with everything else.

I was trying to intervene, too.

Jamie Greene referred to a very important point that the committee examined. In fact, members of the committee specifically put that matter to the Crown Office.

We heard evidence previously that, if a case is marked to oppose bail, the procurator fiscal who is in court cannot depart from that because of the centralised marking system. I need to put on record that the Crown Office said that that is not the case. However, that is what we had heard, and, when we did, we wondered why there does not seem to be flexibility. I wanted to amplify what Jamie Greene said, because it is important to consider that.

Will the member give way?

Similarly to Katy Clark, I would like to tease out the issues on the subject. On the face of it, the provision seems good, but we have heard evidence that suggests that further clarification is needed. As Katy Clark said, amendment 49 would simply remove the requirement on the court and would mean that the information “may” be provided. I have provided an alternative to that in amendment 53, which would give the sheriff the right to determine a period of time for the information to be provided.

I would like to say why I have lodged the amendments. The provision in section 1 states:

“Before determining whether to admit or refuse to admit the person accused or charged to bail, the sheriff or judge must also give an officer of a local authority an opportunity to provide (orally or in writing) information relevant to that determination.”

Our committee report refers to the evidence from Dr Hannah Graham of the University of Stirling, who rightly said:

“There are acute time pressures at the point of bail and remand decision making.”—[Official Report, Criminal Justice Committee, 11 January 2023; c 25.]

We can see that there is already a highly pressurised point in court proceedings, but there will now be this mandatory requirement. As Katy Clark said, in principle, the requirement seems good, because we would want all the information to be available to the sheriff. Of course, currently, if the sheriff wants that information, they can request it. The first issue that the committee raised concerns about was the resourcing of the provision. I realise that we have a new cabinet secretary, but the current cabinet secretary has probably seen the Official Report of the meeting at which the committee asked for clarification on resourcing.

More importantly, there is some confusion not as to why, but as to how. I will quote the Lord President:

“The prescriptive nature of what is proposed is likely to make submissions to the local sheriffs lengthier, increase the time taken to determine the issue of bail, result in some accused persons being detained unnecessarily while inquiries are carried out, produce more errors, increase the opportunities for appeals and add to the heavy burden on the sheriffs and the staff who are tasked with the management of what can be extremely busy custody courts.”

I am sure that the cabinet secretary can understand that that gives cause for concern on a number of fronts. The provision could potentially undermine the principle of the bill, if it was to result in unnecessarily long detentions in order to gain the information as described in the bill.

I put on the record that I had a meeting with the previous cabinet secretary’s officials, who said that those concerns were a misunderstanding of the provision. The follow-up that I received indicated that there was no suggestion that it should be cause for additional time to be taken to determine bail. However, I am sure that the cabinet secretary will share my concerns. Why did the Lord President, on behalf of the judiciary, think that? What went on between Scottish Government officials and the judiciary? I presume that they discussed how the provision was going to operate. That needs to be clarified.

At stage 3, when I come to vote on the bill, I want to make sure that we have achieved the objective of providing relevant information to the courts but that that does not result in lengthy delays and, if it is a mandatory provision, that we are able to resource it.

Let us face it: it is a complex area of law, especially for us legislators to get our heads round when we are not practitioners. [Interruption.] Yes, cabinet secretary, please intervene on me.

In relation to my earlier exchange with Jamie Greene, I note that, when we first examined the remand figures, the then cabinet secretary—I think—specifically referred to section 23D as one of the restrictive provisions and implied that that might have been one of the reasons why the remand figures were high. On close examination, although we do not have the figures, it does not appear that section 23D is used in many cases, so I am not concerned that it is increasing the remand population per se.

I do not want to pre-empt the cabinet secretary’s response to our post-legislative scrutiny, but I wonder why the point about the domestic abuse provision was not even drawn to our attention by anyone, bearing in mind that the exceptional circumstances test relates to when there has been a previous analogous conviction. I thought that the cabinet secretary might address that in her remarks, but she did not. We are talking about people with analogous convictions—that means that, if the offence relates to drugs, the previous conviction must relate to that and not to a summary offence. I assumed that the fact that someone had a previous conviction made it more likely that they would cause harm or abscond and that that was why an exceptional circumstances test was built into the 1995 act. I am probing the issue, and the Government needs to set out what the equivalent of the exceptional circumstances test is.

As I said in my opening remarks, I am sympathetic to the Law Society’s view in that the fact that someone has an analogous conviction from 20 years ago does not necessarily indicate that there is cause for concern. However, if the previous conviction was, say, five years ago, there might be more concern in that it might be more likely that the person will offend while on bail.