Chamber and committees

I understand the point that Donald Cameron is making about increasing crime. Does he recognise that we have perhaps the lowest level of crime since we started recording crime? On homicide in particular—and I mean generally, not with regard to people who have been on bail—we have the lowest number of homicides on record.

Daniel Johnson is absolutely right, and I have made that point a number of times, including to the committee. Why is it higher in Scotland? What is going on that gives us those much higher figures? The bill seeks to address that. I will come on to explaining that more fully.

I entirely agree with the member. Why does Scotland send so many more people to remand than do other jurisdictions? What is the reason for that? The levels in other parts of the United Kingdom are approaching ours in Scotland, but that is a relatively recent development.

At the heart of the bail reforms lies an absolute commitment to public safety and victim safety. The bail proposals will enhance the role of justice social work so that it has more opportunity to inform the courts on bail decision making. That will make consistent the good practice that is already happening. It will also help the courts to have the right information at the right time.

It has been suggested that the enhanced role of justice social work could result in people being remanded for longer than they would be at present, but that is not the case. I will be clear on that. First, the bill does not change the timescale under which a bail decision must be made, which is a period of around 24 hours from the time that the person is first brought before the court.

Secondly, under the bill, the court is not required to have information from justice social work in order to make the initial bail decision. As now, if no information is available from justice social work, the court will simply make its bail decision on the basis of information that it has from the Crown Office and Procurator Fiscal Service and the defence.

Thirdly, beyond the existing 24-hour window for a bail decision to be made, the court cannot choose to refuse bail and remand a person in custody simply because justice social work has indicated that it needs more time to provide the information. That is because there is an overarching legal presumption for bail, which the bill does not change. Therefore, unless there is already a good reason to refuse bail—in which case, a person would be remanded anyway under the current system—the person must be admitted to bail and allowed to stay in the community. The seriousness of the decision to use remand is emphasised by requiring the court to record the grounds on which bail is refused.

The bill is supported by continued investment in community justice, including alternatives to remand. In 2023-24, we will invest a total of £134 million in community justice services.

The bail aspects of the bill seek to answer important questions about the appropriate use of remand in a modern and progressive Scotland, now and in the future. Part 2 of the bill is focused on improving support for people who leave prison.

We know that many people who are in contact with the justice system have already experienced severe and multiple disadvantages, including homelessness, substance misuse and mental ill health. That is especially true of the prison population. Often, imprisonment compounds such issues, which is why holistic, well-planned support for release is so important.

Part 2 of the bill aims to do that in a number of ways. The bill ends scheduled releases from prison on a Friday or the day before a public holiday. That responds to calls from the Drug Deaths Taskforce, and from other experts, that the day on which people are released matters.

As several witnesses to the committee made clear, planning for an individual’s release from prison should start from the point of entry. The proposed pre-release planning duty in the bill is based on that principle. It will require wider public services to engage in pre-release planning at an earlier point, with the aim that people leave prison with a package of support, not a list of appointments.

The bill also establishes a new duty on Scottish ministers to publish statutory minimum standards for throughcare support for remanded or sentenced prisoners. We know that good practice exists, and I have seen the difference that throughcare support can make; however, it is not consistent, and the bill seeks to address that. Additionally, access to structured and monitored temporary release can support an individual’s reintegration and reduce their risk of reoffending. That is why we are introducing a new temporary release licence for certain long-term prisoners, with an emphasis on risk assessment and robust community monitoring and support.

The bill also introduces a wider emergency prisoner release power, with built-in safeguards to protect the security of prisons and the safety of prisoners and staff. I would hope never to use that power, but the pandemic has taught us, as it has other Administrations, not to be complacent on that score. That brings us into line with jurisdictions including England and Wales.

As I have made clear, the bill has victim safety at its heart. The new bail test explicitly not only recognises the safety of victims for the first time but defines “safety” as safety from both physical and psychological harm. That recognises our much better understanding of the harm that is caused by threatening or coercive behaviour. Additionally, victims will now be able to nominate a victim support organisation to receive information regarding the release of a prisoner. That VSO will be able to work with them or on their behalf in that regard.

I have said this right the way through the process so far, and I will say it to members again: I would genuinely welcome all constructive challenge and suggestions to make the bill more effective. Most of us took part in a debate some 18 months or so ago when we discussed and agreed that the remand levels were too high in Scotland and that something has to be done. If others have suggestions as to what can be done, I am more than willing to listen to them, as I have been.

At this stage, in addition to what I have laid out, all that we are doing is setting out the general principles of the bill. I would hope that we would get support at least for the general principles that follow on from that consensus that we previously had on remand being too high. In providing that challenge, I ask everyone else to consider whether they have an alternative proposal to address the use of remand, to safeguard victims or to improve support for people leaving prison. If they do, I am more than willing to listen and to take on board those comments.

The provisions in the bill are underpinned by a commitment to public protection and victim safety, with a focus on reducing crime, reoffending and future victimisation. That is what will make Scotland a safer place.

I move,

That the Parliament agrees to the general principles of the Bail and Release from Custody (Scotland) Bill.

The member mentioned a number of witnesses during his speech, many of whom had different points of view from other witnesses, even within the judiciary. Different views were indeed brought forward, but what we heard from Mr Findlay was a point-by-point attack on every part of the bill; there is no way that we will arrive at any consensus or have any reasonable discussion in relation to it.

Russell Findlay rose—

It is impossible to predict future decisions of the court, but I go back to the purpose of the bill, which is to refocus the use of remand.

I highlight something that was said at the Criminal Justice Committee; I think that Katy Clark would have been there. It might have been Jamie Greene—I am sorry if I am wrong on that; it can be proven correct or otherwise by referring to the Official Report—who said that around 66 per cent of cases had to have remand for public safety or other reasons. If that is true—it is a relatively reasonable observation to make—it means that a third of cases do not have to have remand.

Of course it is not possible to predict future decisions of the independent court system, so I am not able to make such a prediction. I simply say that the reasons for introducing the bill are about refocusing the use of remand.

I also remind members of the deleterious effects of remand. Someone may not be guilty of the offence with which they have been charged, and there will be an impact on their family, their job prospects and their community. It is also worth bearing in mind that it costs nearly £40,000 a year to keep somebody in the prison service. Daniel Johnson and others made points about the fact that there are other disposals available. I understand that the judiciary has to have faith in those disposals, and we have—and we will—put more money into that. However, it is surely a better process—

Katy Clark rose—

I can only repeat what I said to the member before: the Government’s intention is that remand should be used where it is most appropriate and should not be used where it is not appropriate. Members from all parties have given examples in which they believe that remand would be inappropriate. We are trying to reduce the number of cases in which that happens.

On the point about flight risk—or, in other cases, the potential victimisation of witnesses or victims—we have to ensure that we protect people from that. Beyond that, we have to consider things that might have an impact on the judicial system, such as the intimidation of juries. Those are situations in which remand should legitimately be applied.

On the definition of public safety, I am happy to listen to any issues that people have in that regard. However, I have looked into the matter in some detail, and there does not seem to be a great deal of doubt—to go back to Carol Mochan’s point—around what people think is meant by the words “public” and “safety”. I am not sure where the doubt creeps in. Some of the people, such as lawyers and others, who are involved in the process seem quite keen on, or certainly seem comforted by, the idea that the term “public safety” will cover the cases in question. One may want to move to prescribing that in law, but that can often have unintended consequences, which I am sure that members would not want to see.

I see that Katy Clark wants to intervene again—I am happy for her to do so.

I will help Paul O’Kane, if I can. In 2021, 70 people aged 20 or under suffered a drug death. [Keith Brown has corrected this contribution. See end of report.] As the member said, each of those deaths was a tragedy both for the individual and the family concerned. That figure represents a reduction by 10 from the previous year, but it is still far too high. There has also been a recent decline in deaths of people aged 25 and under. As I say, however, any deaths in that age group are a real concern for everybody, including the Government.

We agree on data streams with the relevant professionals, because the Government could be criticised, quite rightly, for being too close to formulating the criteria under which data is collected. However, I am happy to pass the member’s request on to the relevant minister, Angela Constance, and to make sure that a response comes back to him with more detail.

I thank Jamie Greene for his contribution so far. On the point that he rightly made about laws having to be workable and enforceable, I can say at this early stage, before we lock horns—as we inevitably will, further down the road—that Baroness Kennedy, the Minister for Equalities and Older People and I were very aware of that. The idea of our passing legislation that is never used because it is not practicable, or is overused, was a big concern for Baroness Kennedy. That would have a detrimental effect, and we are very alive to it. Subject to consultation, the provisions that we have proposed so far seek to address those competing pressures.

Audrey Nicoll rightly asks what steps we have taken. We have established the victim-centred approach fund, invested £48 million over 2022 to 2025 and awarded more than £917,000 from the victim surcharge fund to provide practical help and support.

Furthermore, as was announced yesterday, the forthcoming criminal justice reform bill will introduce new rights to independent legal representation in sexual offence cases, alongside providing anonymity for victims and abolishing the not proven verdict. The bill will also be informed by recent consultation on improving victims’ experiences, including proposals for a victims commissioner.

That will indicate to Audrey Nicoll the breadth of measures that we are taking in that area.

Will the member take an intervention?