Chamber and committees

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.”

Scottish Labour voted for the Hate Crime and Public Order (Scotland) Bill in good faith, and we supported many of the amendments—especially the amendments that Adam Tomkins lodged to ensure that the bill as enacted would protect freedom of expression. We agree that we must have good, robust law on hate crime that is well understood by those who enforce it, but we also agree that there should be a high test for criminality.

Labour made it clear that a sex aggravator should have been included in the Hate Crime and Public Order (Scotland) Act 2021. Three years on, there is still no sign of the legislation that was promised within one year of that act being passed. In view of that, we call on the Scottish Government to reconsider and to bring in sex as an aggravator now.

I will—after I have made this point. The First Minister did not help to get the support of women who are trying to make sense of what has happened in the past few weeks when he refused to make the distinction between sex and gender in an interview on BBC Scotland this week.

I have been quite clear, as has Scottish Labour, that it was wrong not to include a sex aggravator in the 2021 act. What has been exposed over the past two or three weeks is that the Government should reconsider its position now that it knows that, although its proposed misogyny law will be a good law, it will be four years before it goes on to the statute book.

For Scottish Labour, the purpose of this afternoon’s debate is to test the Government’s ability to address some of the serious problems that have arisen over the past few weeks. The implementation of the 2021 act has been a shambles. In the first few weeks, there have been 8,000 reports of hate crimes, which has meant that officers have had to be brought back to do overtime shifts. The Scottish Police Federation has said that an extra 40 officers a day have been needed to deal with the responses to the legislation, not to mention the hapless hate monster campaign.

The Government will say that the situation will calm down in time, but the problem is that the public are already beginning to lose confidence in the legislation, which is why Scottish Labour is calling for urgent post-legislative scrutiny of the act to review the poor implementation and confused communication, and to address the significant issues that have arisen since 1 April.

The police are required to investigate all alleged offences, no matter how trivial or vexatious the reports are. Because of that requirement, Lord Hope, who used to be Scotland’s most senior judge, has commented that the act has placed an “extraordinary” burden on the police. The Government must address that important point. Fewer than 4 per cent of the 8,000 reports of hate crimes that were made in the first week went on to be assessed as actual crimes.

Michelle Thomson was right to raise the reporting of non-crime hate incidents, the policy on which was implemented following the Stephen Lawrence inquiry report. Following a successful legal challenge, that policy is no longer in place in England and Wales. I listened to what the Cabinet Secretary for Justice and Home Affairs said in response to Murdo Fraser yesterday, and I am still no clearer as to whether the non-crime hate incidents that are recorded by the police count in relation to disclosure certificates, for example. There must be a review of the recording of hate incident reporting. I know that that is not part of the legislation that we are discussing, but it has exposed the issue.

Why should anyone have on their record a matter that is deemed not to be criminal? Against the backdrop of the proportionate response to crime approach, that is a really important point. Michelle Thomson was quite right to ask whether the recording of non-crime hate incidents is truly compliant with the Human Rights Act 1998. Personally, I do not think that it can possibly be.

The Scottish Police Federation says that the biggest issue with the 2021 act is the amount of police time that is wasted and the irrationality of a situation in which the police now do not attend and deal with certain crimes. Police Scotland has been using overtime to cope with the online reporting, and that is not sustainable.

The cost of implementation of the ill-conceived 2021 act is already huge. It has been reported that nearly £500,000 has been spent on promoting the act, yet the majority of people are unclear as to how it differs from previous law. I dread to think how much the hate monster campaign has cost the taxpayer, but it has certainly cost the SNP credibility, and it needs to face up to that.

Ironically, the campaign was offensive; one point on which I agree with Russell Findlay is that it explicitly targeted young men aged between 18 and 30—particularly those from socially excluded communities—who, it said, were more likely to commit hate crime. Surely the Government must accept that, with all the good intentions, that is something that has gone horribly wrong.

I am happy to hear from the cabinet secretary on that point.

I quite agree with the member. The intention behind the act—and importantly, it was amended as such—was that people could express their views even if they were insulting or offensive. However, I wonder whether Stuart McMillan has given thought to what Murdo Fraser said. If there is a high bar for criminality, why are we experiencing issues with people being reported to the police for doing things that should not concern a police station?