Chamber and committees

It is about getting the balance right. Currently, the Criminal Justice Committee is working on two very big and important bills in tandem. Many committees are working on more than one bill at a time—that is the intensity of our workload.

Does the issue go back to our programme for government? In our programme for government, there is a commitment to get legislation through. Is that where the change should start?

You talk about sub-groups. In the previous session, I was on the Justice Committee and we had a Justice Sub-Committee on Policing, which I was also on. It is not possible to have that in this session, because we do not have enough people to populate a sub-committee, so we are dealing with everything in the one committee. It comes down to the legislative workload and the number of people who are available to be on the committees. All that being said, I think that we do a really good job at it.

I agree that we have fantastic support from the clerking teams and from SPICe. When I was first elected, in 2016, I had never sat on a committee before; I was something else in a previous life. One thing that amazed me right from the start was how good the support was that members got. We could go to any of the clerks at any time and ask them anything, and they would get right back to us. Honestly, I think that we have a great system for that here. It is really good across all the portfolios.

My last question is about the balance between referred work and proactive inquiry work. We would all love to do more proactive inquiry work and we should be doing it; it is just that we do not always have the time to do it. Some committees do some of that work and it is really useful, but there is more that could be done. However, the logistics often do not allow for that. Would the best plan be to build that into our work programme regardless? Do you have any thoughts on that, Professor Cairney?

I think that you have completely nailed it there. The idea of members having more of an up-front look at legislation and doing a bit more scrutiny beforehand might alleviate the situation, because we would not be coming to it new.

I understand what you are saying, and I totally agree with that. I am now a bit confused about whether you approve of the setting up of a sexual offences court and whether you recognise that it is to be set up because of the very specialist nature of the crime and the huge increase in such crime.

I understand your argument about the same judges being in different courts but, even for representation reasons, do you not agree that setting up a specialist court is our way of saying that something must be done about this? I am now unclear about whether you want the court.

Would the member acknowledge that Rape Crisis Scotland and women’s organisations were in favour of such trials and would he also acknowledge that this is an example of the Scottish Government listening to voices from across the board and, far from being a humiliating U-turn, shows the Government working with members?

I will repeat what I said last week. I understand your argument, but I do not think that anything different will happen unless the new court is set up, because it has not happened so far. Previously, the need to set up a specialist court for sexual offences was not recognised, but now we have an opportunity to do it. It would be a wasted opportunity if we do not do it—I do not think that there will be a change in how courts operate unless the new one is set up. However, as you said, perhaps that is a difference of opinion.

The Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill will be a huge step forward in bringing Scotland’s justice system up to date, which I believe is badly needed. As we have heard, part 1 of the bill makes changes in relation to criminal cases, mainly to internal processes, many of which were introduced during the Covid pandemic and are now felt to be beneficial enough to make permanent. Those include using electronic signatures for court documents, sending court documents electronically and attending criminal court hearings virtually. However, the committee heard concerns during evidence taking about the practicalities of virtual trials, such as location, solicitor-client engagement, technical reliability and resources.

I am pleased that the cabinet secretary’s response to our stage 1 report makes it clear that the default position is for in-person attendance, mirroring the approach of the temporary measures, and that the bill

“retains the Lord Justice General’s power to issue determinations to change the default mode of attendance to virtual attendance for certain types of hearings or in certain circumstances.”

Further, she confirms that

“the court must issue a direction which sets out how the person is to appear by electronic means before the court.”

I expect that more detail on that will be forthcoming. The cabinet secretary also states that each case will be considered on an individual basis, rather than there being

“a prescribed list of suitable locations from which evidence may be given”,

and that,

“Importantly, parties have the opportunity to be heard and may raise objections to the location proposed.”

Both the SCTS and the Crown Office and Procurator Fiscal Service provide guidance to witnesses giving evidence remotely, which seeks to ensure that the rules of evidence are complied with and that, when a witness gives evidence remotely, they do so untainted by outside influence.

It is important to remember that these provisions are separate from those that are already in place to support vulnerable witnesses, many of whom can give evidence remotely and have done so for some time through the legislative framework that provides for special measures.

I am fully supportive of virtual courts for a variety of reasons, but mainly because they give victims and witnesses a choice in where they can give their best evidence without fear and intimidation. That is particularly important for victims of sexual and domestic abuse, because it can minimise stress and greatly reduce trauma. The committee has heard heartbreaking testimony from rape and sexual violence victims about the trauma of having to appear in the same room as the accused. Virtual appearances would also free up professional witnesses, such as police officers, from having long waits to give evidence in person.

A national jurisdiction for first callings from custody, allowing the initial stage of some criminal cases to be taken in any sheriff court in Scotland, is being proposed. The committee debated the pros and cons of introducing such a system. The cabinet secretary notes:

“the national jurisdiction will never be able to be used for a trial: in a case where an individual pleads not guilty and the case goes to trial, it can apply only for initial appearances from custody and for subsequent procedural hearings.”

Part 2 of the bill is incredibly important, and the provisions in it are long overdue. It aims to create a process for reviewing deaths and suicides that relate to abusive behaviour in relationships. The committee heard moving and passionate evidence from Fiona Drouet, who was alluded to by our colleague Pam Gosal. Fiona is the mother of Emily Drouet, who tragically took her own life as a result of gender-based violence. Fiona’s tireless campaign has inspired the EmilyTest charity, and I applaud her determination to protect young women in the name of her beloved daughter.

The reviews under part 2 would look at what lessons can be learned in relation to a death to try to prevent similar things from happening again. An independent oversight committee and case review panels would manage the reviews. The provision, which exists in England and Wales but not in Scotland at the moment, is absolutely crucial.

However, the committee heard the view that the definition of domestic abuse in the bill diluted its meaning according to the definition in the Domestic Abuse (Scotland) Act 2018. To that end, the committee sought assurances that the bill would not do that, because domestic abuse is clearly defined in the 2018 act.

As the cabinet secretary articulates, the bill

“focuses on learning from deaths where there has, or appears to have been, domestically abusive behaviour by person A ... towards person B”,

and it

“takes a broader position in relation to children to ensure that more deaths are covered by the review model. We know that the impact of domestic abuse or the ‘ripple effect’, particularly where there is a death, is far reaching.”

She continues:

“We have committed to including other types of deaths within the model, including ‘so-called honour killings’ which are not captured under the 2018 Act”.

One death involving domestic abuse is one too many, and we must capture its terrible, far-reaching effects. However, ultimately, as my colleague Fulton MacGregor said, the change that we need to see will happen only when those who perpetrate domestic abuse—the majority of whom are men—change their actions and behaviour, and there is a culture change in society.

There is broad stakeholder support for the bill, and the Scottish Government has engaged extensively with key justice partners and third sector groups. Now is the time to modernise the justice sector and make it fit for the future. I urge the Parliament to agree to the general principles of the bill.

Can the cabinet secretary advise what technology there is on signs of life that has already been considered and assessed by the Scottish Prison Service?

I fully support amendment 233 and am glad that Karen Adam lodged it. Do you agree that the amendment could include Makaton and deafblind communicators?