Chamber and committees

I want to return to the issue of the cross-border situation. I understand the point that you are, legally, responsible only for what happens in Scotland and not for what happens because of failings south of the border. However, there are cases—as I am sure that you are aware—in which young people have been accommodated well away from home, in bed and breakfasts with private security guards outside their door, in some pretty bad situations.

I know that it is your responsibility to ensure that everyone in Scotland has accommodation. However, has there been a rejection in principle of the idea that, if there were available beds, as long as the Government was able to guarantee that the last bed was available, they could and should be available to people from elsewhere in order—to go back to the convener’s point—to help with the financial sustainability of the entire system?

Would that not happen if we had people in the accommodation here in Scotland but there were still some beds available? I know that it is not easy to judge how the numbers fluctuate, but why would we not want to do that?

I understand the priority but I think that there is a big opportunity that might serve everyone’s interest, including the interest of financial sustainability.

My last question is about sections 12 to 14 of the bill, which deal mainly with children at court. One reason given for why more financial information is not available in the financial memorandum is the reluctance to cut across judicial discretion. I cannot say that I am convinced that a judge or sheriff might think twice about their decision because an indicative budget has been attached to that somewhere.

The imaginative response might be to say that anything agreed through discussions with the judiciary will give an indicative budget to be used only for that purpose. It might also be helpful for Parliament to look at potential costs, while also ensuring that the judiciary did not feel in any way fettered.

Thank you for the invitation to give evidence on the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2023. I will make a brief statement about the order and the issue of mutual legal assistance.

The order mirrors the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022, which, in this area of law, allows collaboration across the United Kingdom jurisdictions to support cross-border operations and co-operation. In an increasingly interconnected world, where crime operates without borders, it has never been more important to ensure robust international co-operation to promote justice and to help maintain public safety. The order will enhance our international judicial co-operation framework specifically in relation to mutual legal assistance. Before I explain its contents, it might be helpful for me to outline the context in which the order has been made.

Mutual legal assistance is the formal name for how states request and obtain assistance in other jurisdictions to investigate or prosecute criminal offences. The UK as a whole is a party to the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, which form an essential part of our fight against crime and our co-operation with other contracting parties in relation to criminal proceedings. MLA, as it is known, is an important tool in domestic criminal proceedings and against transnational and international crime.

The second additional protocol to the 1959 convention broadens the scope of available mutual legal assistance among contracting parties and includes specific provisions on requests for hearings by video or telephone conference, joint investigation teams and the temporary transfer of prisoners. As the member of the Council of Europe, the UK ratified that additional protocol in 2010.

In our domestic framework, mutual legal assistance is governed by the Crime (International Co-operation) Act 2003, which states that, for us to request and facilitate certain types of mutual legal assistance, the country must be designated as a “participating country”, as defined by section 51(2). The purpose of the draft order is to designate as participating countries Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland, Turkey, Armenia, Chile and Ukraine. All those countries have ratified the second additional protocol to the 1959 convention, and their designation will allow us to co-operate with them in relation to specific types of mutual legal assistance.

I should say that the order only establishes the ability to provide certain types of assistance to or seek them from the referenced countries; it does not create an obligation to do so. Incoming mutual legal assistance requests from a designated participating country are reviewed by the Crown Office in line with existing practices, including a human rights assessment provided by the Foreign, Commonwealth and Development Office.

I will now detail the specific effect of the provisions for which those countries are to be designated. First, designation for the purposes of section 31 and paragraph 15 of schedule 2 to the 2003 act enables us to assist in requests for a person within Scotland to give evidence by telephone in criminal proceedings before a court in a participating country, in circumstances where that witness gives their consent.

Designation for the purposes of sections 37 and 40 of the 2003 act enables the Crown Office, on request from a participating country, to obtain customer and account information to assist an investigation in the participating country. Designation for the purposes of sections 43 and 44 is a reciprocal provision that enables Scottish authorities to make requests for similar information to a participating country. Additionally, designation under section 45 provides that requests for assistance under sections 43 and 44 must be sent to the Lord Advocate for transmission, unless the request is urgent. Finally, sections 47 and 48 make reciprocal provisions for the temporary transfer of prisoners to or from a participating country to assist with an investigation, provided that the prisoner has given their assent to the transfer.

The draft order will help strengthen our own ability to investigate and prosecute criminality at home and abroad, as mutual legal assistance is a key tool in combating cross-border crime and ensuring justice for Scottish victims of crime. It is important that Scotland, as a good global citizen, plays its part in facilitating international justice co-operation to combat criminality. Being a good global citizen also entails standing with our friends to defend the rules-based order.

In that vein, I emphasise that the draft order deliberately does not designate Russia. Following the invasion of Ukraine, the Council of Europe expelled Russia, a decision unprecedented in the council’s 73-year history. Although Russia ratified the second additional protocol in 2019, the Russian President, Vladimir Putin, announced on 18 January that he had begun the legislative process of terminating Russia’s participation in 21 international agreements associated with the Council of Europe, with retrospective effect from 16 March 2022, the date of Russia’s formal exclusion from membership of the council. We understand that, as yet, nothing has been lodged formally and my officials are awaiting formal confirmation, but Russia’s unprovoked, premeditated and barbaric attack against Ukraine, a sovereign democratic state, removes any basis for the mutual trust and respect for international law that are essential for international judicial co-operation. We are therefore not seeking to designate Russia at present.

We remain committed to improving the provision of mutual legal assistance across borders, and the order will enhance the level of co-operation that we can offer to—and seek from—other countries. I hope that these remarks will be helpful to the committee and I am happy to try to answer any questions.

I will respond first, and then officials will give you the correct answer.

The purpose of the order is to designate the additional countries that I have mentioned. It is possible just now for us to ask each of those countries—or, indeed, any country—for that assistance, or for another country to ask us, without their being designated countries. We can co-operate on that basis already, but the order gives added weight to that, because all the countries that we have mentioned are now part of the rules-based international order. They are now involved in the protocols that we have, and the order gives more force to that.

I have not been involved in such cases—which, obviously, would go to the Lord Advocate—but, in effect, there would have to be quite good reasons for countries not to co-operate. I suppose that, without being added to the list of designated countries with reciprocal arrangements, a country could more easily dismiss such a request and not go along with that co-operation. Therefore, the order gives added weight to the protocols. Moreover, having just told Pauline McNeill that any level of crime might be covered, I should say that I think that there would have to be a different process in relation to international war crimes.

As for Ukrainian people who live here going back to Ukraine or Ukrainians coming here, we must bear in mind that, under the order, the arrangement between countries must be consensual. I am not aware of whether the domestic law in Ukraine is operating as normal—for obvious reasons—and I think that, in relation to war crimes, there would be a different process, which would be started internationally. That is my understanding, but officials might want to add to that.

That is what is specified in the order. Of course, it is quite possible for evidence to be given in other ways—via videoconference and so on—but the order specifies that evidence would be given by telephone, so that is where it will have an effect.

And the prisoner would have to consent to it, too.

I will ask officials to come in, but I am not aware of any area of crime that is not covered by the order. You, too, have highlighted the issue of customer accounts and information—and rightly so—which is obviously to do with the financial aspects of a potential crime. However, that sort of thing will rely on the witnesses’ co-operation. As I have said, though, I am not aware that the order precludes any crimes being looked at—and I see that Vivienne McColl has confirmed that.

We cannot tell other countries what crimes they might want to come to us about and ask for the help of the Lord Advocate and witnesses on. In that case, the answer is yes—any level of crime is possible.

The list of countries is exactly the same. Russia has been precluded by the UK Government, too. The issue is simply that we have a different jurisdiction. I am aware of no tangible differences between our instrument and the one for the rest of the UK.

I was trying to answer, but you would not allow me to answer. That was the point that I was trying to make. Can I try to answer now?