Chamber and committees

I am not sure that I can be more articulate on that point than many of your witnesses have been. You have heard from the Law Society of Scotland, the Faculty of Advocates and even Sheriff Mackie and others who do not believe that that was a good measure. They were not entirely certain why that section was introduced in 2007, and I think that I am right in saying that they believed that, to some extent, it fettered the court when it was trying to make a judgment. You are right, however, to put your finger on that being a potential concern.

Public safety will be at the heart of that test. Although it will be for the courts to decide, virtually anybody who was refused bail under section 23D would likely be refused bail under the new test. That will bring more consistency and specifically includes the concept of victim safety, which is important to your point about victims of domestic abuse being a factor when making a determination on a person’s entitlement to bail. It goes further in saying that any assessment of the risks should include physical and psychological harm to the victim.

Removing section 23D of the Criminal Procedure (Scotland) Act 1995 does not remove the protection for victims as a new bail test will be applied in every case, and repeal does not mean that those accused of serious offences who pose a risk to public safety will be admitted to bail under the new test. That is because the offences that section 23D covers—sexual offences, domestic abuse offences and violent offences—all relate to public safety, which includes complainer safety. As such, I think that accused persons who are remanded under section 23D at present would, in many cases, also be remanded under the proposed new bail test. That bail test also has essential considerations to justify remand on public safety grounds where relevant. That will help to keep the complainer safe from harm.

As I said, although this is not directly related to the categories that you referred to, the test goes further in terms of people who might prejudice the process through the intimidation of witnesses, complainers or even potential juries.

I hope that that reassures the member. We are working with different groups to ensure that that reassurance is provided.

We always listen to local authorities. Interestingly—I think that I am right in saying this—the COSLA spokesperson with whom we primarily carry out such discussions is also from South Lanarkshire Council. Of course we listen to local authorities. It will often be the case that we have different views, but we have to evidence those views.

Things should also be seen in the light of the increased investment that has already been made. This year, we have done something that is important but not always easy to achieve. We do not want, at the same time as we encourage some authorities to get off the ground services that they are not providing, to be punishing authorities that are providing those services. We have to help them to improve their services as well. We did that effectively with a split of, I think, £11.8 million and £3.2 million for different purposes.

We have therefore funded those things already—we are not going from a standing start—but we will, of course, continue to have discussions with COSLA and Social Work Scotland. That is part of the general process of finding out what the exact resource requirements will be. I do not think that this committee, or any other committee of the Parliament, gets through many evidence sessions in which the issue of resource does not come up, and matters are often contested. However, we will try to reach an agreement with COSLA in that regard.

No. We are careful not to make any projections about a reduction in the remand population as a result of the bill, but what might underlie that point is that, if you see a reduction in the prison population, resourcing will be made slightly easier for the Prison Service. Perhaps the council’s point is that successful implementation of the bill might lead to savings that might help it get further resources. It is a reasonable observation for the council to make, but, no, we are not looking to cut the prison budget to fund any of this.

Obviously, it is easier for me to talk about the time when I have had responsibility in this area, but I do not think that it is a short-term increase or that the concern is just a recent one. I have mentioned 2018. I could read out the quotes from various members—

If I am getting this right, I think that, if somebody is released on temporary licence and they breach that licence, they can be recalled for that reason. If they commit an offence, that is a breach of their licence conditions. It is the same if someone is paroled: they are paroled on licence and, if they breach their parole requirements, they can be subject to a recall at that stage. That power is there in law. I am not sure that it has to be exercised by either the Parole Board or the Prison Service; it is a consequence of them breaching their licence.

Given that we are talking about a point of law, perhaps Jennifer wants to add to that.

To return to the first question that was asked about the issue, it is not an effect of the bill.

The point that I have tried to make is that the public will know exactly what the legislators have done and what discretions have been afforded to the Crown. Things would be less transparent if they were the result of a back-room discussion between us. We, as legislators, have stuck to our legitimate role of providing the framework, and the Crown sticks to its role and independently comes to its own conclusions while having regard to what the legislators have put in place. The approach is more transparent. People will know where the influence is. That is why we have chosen that route.

I cannot talk to the interpretation that whichever academic you were referring to put on this. I acknowledge, though—I said this in the chamber recently—that risk is a part of the justice system. It is part of every justice system that I know of. I am happy for anybody to point to me a justice system—whether it is parole boards, courts or other parts of the system—that does not have to balance risks on a regular basis.

I acknowledge the risks that are there, but we are trying to minimise those risks. To go back to an earlier answer that I gave, you can argue that, by reducing the numbers of people who are on remand and do not necessarily need to be on remand, you are also reducing risk. There is an element of the bill that helps to reduce risk. Of course, the part that we have not really got on to so much—part 2—is also designed to substantially reduce risk. The package of proposals that we are making is designed to reduce risk. We are not asking the public to trade risks or to accept a higher level of risk. We are trying to minimise risks.

You started with quotes as if there was a dichotomy between different groups of witnesses. I have a number of quotes from Victim Support Scotland that are supportive. Kate Wallace said:

“It seems to us that one of the main purposes of the bill is that it will potentially strengthen the approach to public, complainer and victim safety.”

She also said:

“Given the size of the remand population”.—[Official Report, Criminal Justice Committee, 11 January 2023; c 9, 12.]

You also mentioned the police. I cannot put my hand on them just now, but there are also supportive quotes from the police about what we are doing. It is probably never going to be the case that we will get everyone to agree—that is not going to happen—or that people who do agree with it will agree with every part of it or people who disagree will disagree with every part of it. I accept that, but in the end, the purpose of Government is to show leadership, so we are putting this forward.

At this point, however, it is important to reiterate the point that I made before. Jamie Greene, I think, said in the chamber that we have to wrestle or wrangle with this issue—it might have been Pauline McNeill; forgive me if I am wrong. That is what we are doing. We are not saying that we have a monopoly on wisdom. If people have better ideas on how to do what everybody here says that they want to do, which is to reduce remand, please come forward and say, “This is the way to do it”, and we are happy to look at that.

I will come back to Jennifer Stoddart, but you are absolutely right, convener. The problem of unexpected release, say, straight from the dock, which can happen for a number of reasons, has been raised. We are wrestling with that and with how the agencies can gather round to meet the different demand made in that circumstance. It most frequently happens to somebody who may have been on remand for only a short time.

Jennifer Stoddart might want to put some detail around that.

I think that what Philip Lamont said was that, if part of the case against a person is related to non-appearance, it can be taken into account at summary level. However, we will write with clarification on that.