Chamber and committees

Can I answer the question?

We have discussed the issue previously, and Pauline McNeill will know that officials were on that call. Although I am happy to come back to her with a fuller response in due course, I will lay out some of the measures that we have taken in response to the immediate pressures of the pandemic, which may give her some comfort.

We have established a resilience fund worth up to £9 million, and have recently provided another £1 million to support legal traineeships. I acknowledge the concerns that some in the legal profession have raised with regard to the resilience fund. We remain absolutely committed to engaging with the profession and are exploring, as a matter of urgency, options for the effective distribution of unallocated funds. Part of the issue was about having the facts and the data to support a more rapid disbursement of those funds, and we are trying to work through that with partners.

We are clear that our ambition to recover the operation of the justice system also presents an opportunity to reinvigorate system-level improvements and take forward our manifesto commitments to deliver a faster, fairer and more effective justice system for Scotland.

Our manifesto commitments aim to ensure that victims’ rights are at the heart of Scotland’s criminal justice system; to secure provision of support for children and young people; and to develop restorative justice services, key to which will be the appointment of a victims commissioner to provide an independent voice for victims. The investment of £250,000 over three years to fund a trauma specialist at NHS Education for Scotland will help to drive forward development of a trauma-informed and trauma-responsive workforce in justice services.

We will also introduce changes to ensure lifelong anonymity for complainers in sexual crimes, thereby further increasing the confidence of victims to report crimes of such a serious nature. We will engage with key stakeholders, including victims organisations, to give serious consideration to the full set of recommendations from Lady Dorrian’s review to deliver a justice system in which survivors of sexual crimes can have confidence. It is worth pointing out that many of those provisions and recommendations interlock with one another, so it is best if they are considered at the same time.

We have an unashamedly bold aspiration to create our own bairn’s hoose in Scotland. We believe that every child victim or witness has the right to consistent and holistic support that enables them to tell their stories, access specialist services and recover from their experiences.

We have committed to consult on the removal of the not proven verdict. It is plain to me that there are differing views among the parties in the chamber, and it is right that we have a proper consultation and discussion. In common with my previous comments, the not proven verdict and what we eventually do with it will be dependent on, and have implications for, other parts of the justice system. For that reason, consideration of the matter is best taken forward in the same way. We recognise that a strong case has been made for the abolition of the verdict, but there are complex issues. Although many in the chamber today support the move, it is right that we consider those issues carefully.

Throughout the next period of renewal for our justice system, we will continue to commit to engage with the legal profession and victim support organisations on the reform of the legal aid system. That will be taken forward by my colleague, the Minister for Community Safety, who will be taking a similarly collaborative approach to expanding the availability of mediation and arbitration and to the regulation of legal services.

At the direction of the outgoing Lord Advocate, the Crown Office has significantly reformed the arrangements for the investigation of deaths, and it has applied significant additional resources to that work. Those reforms have resulted in reductions in the duration of death investigations, and it is expected that they will continue to do so. In my view, their full benefit needs to be allowed to work its way through the system. The current Lord Advocate has welcomed engagement with justice spokespeople on the issue, and I look forward to future engagement with his successor. I am sure that whoever is appointed will engage with members across the chamber.

Ensuring that people and communities across Scotland are safe and resilient is vital and will play a key role in supporting our recovery and renewal from the pandemic. Throughout the pandemic, we have continued to invest money recovered from convicted individuals to support people, families and communities.

That is what the courts service and the figures say that the date will be. Yesterday, I made the point that it should be down to us all to see whether we can truncate that period and clear the backlog more quickly by taking some of the measures that I mentioned. That is the scale of the challenge that is faced by not only Scotland, but other jurisdictions; if we work together to reduce it, we will all benefit.

I have already mentioned the communications campaigns that Police Scotland have run, and they will continue to run.

To address some of the points that Pauline McNeill has raised, she may be aware of some of the proposed provisions in the UK Government’s draft Online Safety Bill that will seek to address some of those issues. There are sanctions of 10 per cent of turnover, and there is the blocking of sites for firms that fail to protect users. The UK will reserve the power for senior managers to be held liable. There are also new regulations that apply to any company in the world that hosts user-generated content online that is accessible by people in the UK or enables them to privately or publicly interact with others online. That goes back to the point that Pauline McNeill made.

We are very supportive of that approach. The NSPCC, which may have prompted Pauline McNeill’s question through an article in The Herald, has also raised the issue and is very clear that the UK Government should proceed with the bill and deliver on its promise. We will encourage it to do just that.

I am more than happy to give that commitment to Pauline McNeill. In the meantime, as I have said, we will continue to ensure that the police have the resources that they want to support their independence in relation to the issue, increase the communications campaign about the danger to young people, which Pauline McNeill and I have mentioned, and encourage the UK Government to progress the Online Safety Bill, which it has committed to providing.

We continue to tackle child sexual abuse and exploitation by building on the work that has been delivered over the past four years through the “National Action Plan to Prevent and Tackle Child Sexual Exploitation”.

Additional funding was made available to Police Scotland for enhanced enforcement activity in direct response to the increase in reporting of online child sexual abuse during the Covid-19 pandemic. The Scottish Government continues to support Police Scotland’s response, ensuring that hundreds of children have been safeguarded by police enforcement.

We are also collaborating with third sector and operational partners to engage the public and raise awareness about the dangers of online abuse, including running successful communications campaigns earlier this year that connected with hundreds of thousands of Scots.

Pauline McNeill will know that the regulation of the internet and online service providers remains a reserved matter, but we continue to work closely with the United Kingdom Government and Ofcom in developing proposals to introduce better safety measures online. That includes close liaison with the UK Government on the forthcoming online safety legislation.

Finally, Pauline McNeill will know that operational decisions in relation to specific offences are for the chief constable.

Jamie Greene will know about a number of the actions that have already been taken by my predecessor in the Scottish Government, such as the £50 million of funding to help to deal with the backlog, and the unusual citing of additional cases that are being taken through the system just now.

Jamie Greene is right that there is a significant court backlog, as there is in every developed country in the world. However, to go back to the point that he first raised about the Scottish Law Commission’s report, he is right to say that there is a need to reform different areas together—the Scottish Law Commission has taken a number of different aspects of the justice system and put them together—because if we uproot just one part of it, we could cause unintended consequences elsewhere. Therefore, it was important that the commission did a comprehensive review. The review is now subject to consultation, and it is important that everybody who is interested has the chance to make their views heard. Of course, we want to carry out the consultation in such a way that, as we make progress with the backlog, we do so in as fair a way as possible, taking into account the much better appreciation that there is in the justice system these days of gender-based violence against women and girls.

I am not sure that that was a question; rather, it was a statement on an issue that, in the SNP’s manifesto, we committed to look at. It is linked to other potential reforms of the justice system, some of which Russell Findlay might well support, and it is important that it be taken forward in a considered way, and that time is taken to get it right. I understand entirely and do not disagree with Russell Findlay’s point that women, in particular, have been badly served by the not proven verdict.

As I said, it is important that the matter is taken forward in a considered way. To that end, I repeat my invitation to all members—whether that is the justice spokesperson for the Scottish Conservatives, Russell Findlay or any other member who wants to contribute to the process. I am more than willing to listen to their points.

The purpose of the report is for us to be able to look at what comes back from the Scottish Law Commission not just in its interim report but in its final one, after it has had submissions and consultation responses, including from anybody in the Parliament who wants to respond.

There is an acknowledgement that some of the defences for homicide and murder need to be updated—there is no doubt about that. I take into account, understand and accept some of the points that Jamie Greene makes about gender-based violence and about some of the language and notions that are used in the law in relation to it.

Some confusion exists about whether the rough sex defence is a defence that relates to a crime that has been committed or whether it can be used not in mitigation but to reduce the charge—by ensuring that a murder charge is not made out, if you like. It can also be used subsequent to a finding of guilt to inform sentencing.

It is important that we have clarity on that point, which is one of the things that the report is seeking. I hope that that will be welcomed not only by Jamie Greene but by everybody else who is interested.

I agree with the general principles of what Pauline McNeill says. She mentioned different issues, including consent and provocation, which can be applied in different ways. She is absolutely right that consent to sex cannot be used as a defence. If somebody has harmed another person in that way, citing the person’s consent, using the old principle of volenti—that they volunteered to have such harm done to them—is no defence. We have to ensure that the reforms that we make to the legal process reflect that.

There is no question but that such a defence has been used by some people in the past, but the courts have exercised fairness when using their powers to decide whether that is acceptable. I hope, and expect, that the thrust of the report, not only in relation to the area that we are discussing, but throughout, will lead to an updating of the legal process in many important respects. I hope that that will be supported by the Labour Party.