Chamber and committees

I understand the point that is being made, but if that is right, why not simply provide that the sum will be increased by the level of inflation, so that it is tied not to crime inflation but to fiscal inflation? If the cabinet secretary is not minded to do that, under which circumstances could she envisage increasing the level of fiscal fines?

Finally, you said that there would be more people out on HDC—although not significantly more, to be fair. Logically, your 7 per cent failure rate will increase if more people are subject to the regime. Ultimately, it is for the SPS to consider breaches and whether or not to recall people. What research has been done on the SPS’s freedom to make a decision, given the context, which is that our prisons are full? Does that stay the SPS’s hand when deciding whether to recall people from HDC?

I would be grateful if you could do that.

I will speak to amendment 44 and then to amendments 45 and 46, relating to section 4, which starts on page 8 of the bill. Taken together, those amendments are aimed at ensuring that, although digital productions will be possible, all parties would have the right to view physical evidence and that physical evidence could be produced.

Amendment 44 would delete section 4(2) of the bill. The reason is that subsection (2) refers to section 68(2) of the Criminal Procedure (Scotland) Act 1995, which provides that the accused is entitled to see the physical productions in specific places, depending on in which court the trial diet is happening. Section 4(2) of the bill would change the default position, such that the accused would no longer be able to see the production physically if it were available in electronic form and the accused had had the opportunity to see it in electronic form. I do not quite understand that, because it feels as though it is a removal of rights for no discernible benefit. My amendment 44 would therefore remove section 4(2) from the bill, such that the default position would continue to apply and the accused would be able to see the physical production on request.

I turn to amendment 45. Section 4(4) of the bill provides that an image of physical evidence

“is ... to be treated for evidential purposes as if it were the physical evidence”.

Again, I am not sure that we should be putting handcuffs on the court and the processes that it follows. My amendment 45, therefore, would simply wind us back from the absolute, such that the image “may” be treated as if it were the physical evidence, if the court wants to do so—thus giving the court a more proactive discretion over whether that should be done, rather than accepting it as the default.

My amendment 46 builds on that principle to provide that, where the court has directed that the image of the evidence

“be treated ... as if it were the physical evidence”,

all parties and the judge may still request to see the physical item.

Once again, my authority for the amendments is the committee’s report, which, on page 20, says:

“At any point, up to and including during a trial, any party, including the judge, who wished to see the physical production should not be prevented by this Bill. We recommend that the Scottish Government strengthens these provisions on the face of the Bill to make it clearer that this would be the case.”

That was in line with the Faculty of Advocates, which, in its submission to the call for views, said:

“in some cases, the item may have certain distinctive physical characteristics which are less obvious in an image. This may be of particular importance in determining whether the item can be seen in CCTV footage. There may be limited occasions when this is the case. However, on such occasions the items themselves may provide decisive evidence to incriminate or exculpate an accused. It is important if the court is not satisfied by the use of an image in place of the physical evidence that it remains open to the court to otherwise direct that the original item be produced.”

That is what I have sought to capture in my first three amendments in this group.

Amendment 49 is slightly different, but it would also apply to section 4 on digital productions. The amendment was suggested to me by the Law Society of Scotland. I remind colleagues that I am a member of and am regulated by the Law Society. Amendment 49 simply says that, even though there is now a valid image of the physical evidence, the actual physical evidence

“may not be destroyed while proceedings are ongoing”.

That includes until after any appeal is completely finished.

Again, that is in line with the committee’s report, which says:

“it is not clear how long that object must be retained for beyond that point. The concern from some organisations was that, in the absence of any guidance to the contrary, the existence of a digital image might make it more likely that the original physical object would be disposed of. This clearly would be inappropriate if there was the chance that the object may be required in any future court proceedings.”

That was the reason for my lodging amendment 49.

Pauline McNeill’s amendment 48 is similar. It is very helpful, but it goes beyond what I am proposing. At this stage, I am not persuaded by amendment 48 and what it proposes in relation to the Scottish Criminal Cases Review Commission. We know that the SCCRC can accept a request to investigate at any time, potentially years after a conviction. Should amendment 48 be agreed to, presumably the original productions would always need to be retained—perhaps in perpetuity—which would undermine the point of the proposal.

I remain to be persuaded by Pauline McNeill’s remarks on amendment 48, but my starting position is that it might go too far and undermine the proposal.

I move amendment 44.

Forgive me, cabinet secretary, as I order my thoughts, but I heard that amendments 44 and 45 would not work because of the progress that is being made on digital evidence sharing capacity—DESC—which the committee heard about and was very positive about. On a legislative level, should the law be led by what is happening in practice, or should the law seek to lead, such that the practice follows?

I am worried that the cabinet secretary appears to be rejecting my amendment because of something that is happening in practice, whereas I am saying that best practice is what I am seeking to bring to the legislation. Is it not for practice to follow what the legislators have decided is the way forward?

I thank the cabinet secretary and colleagues for what they have said during the debate. I find myself persuaded by the cabinet secretary’s arguments for her amendments to section 4 and by her arguments on my amendments 44 and 45, particularly regarding the burden on courts of applications and the use of DESC. There is an interesting side question about technology-constraining legislation, but we will explore that at another time.

However, I will be moving amendment 46, because it is in line with the committee’s recommendations and, with respect, I did not hear strong arguments against it. I heard pretty persuasive arguments by Pauline McNeill for her amendments 47 and 93, which are largely similar to my amendment 46 but take it further.

I am not persuaded by the cabinet secretary’s argument on my amendment 49, because, to my mind, all that the amendment says is that evidence will not be destroyed until the appeal has been determined; it does not say that it should be kept for ever. If you will forgive me, that sounds like common sense. The Law Society of Scotland has told us that that is necessary and is a good idea. I remind the committee that I am a member of the Law Society. If it tells me that something is a good idea, I often listen to it. The cabinet secretary made a reasonable and important point that the provision might be financially burdensome, but it seems to me that someone’s liberty might be on the line here, and that is priceless. As I outlined in my opening comments, the Faculty of Advocates told us that physical items

“may provide decisive evidence to incriminate or exculpate an accused.”

That is why amendment 49 is so important.

I seek to withdraw amendment 44, but I look forward to the convener asking me the questions on my other amendments.

Amendment 44, by agreement, withdrawn.

Amendments 1 to 4 moved—[Angela Constance]—and agreed to.

Amendment 45 not moved.

Amendments 5 and 6 moved—[Angela Constance]—and agreed to.

Amendment 46 moved—[Liam Kerr].

My amendments 41 and 43 are both relevant to section 2, which deals with virtual attendance at court. When we look at what section 2 does, we need to ask whether, as drafted, it covers all necessary matters. On page 6 of the bill, proposed new section 303K of the Criminal Procedure (Scotland) Act 1995 addresses the ability to attend by electronic means. That section states that someone who is excused from a requirement to physically attend court must do so by electronic means

“in accordance with a direction issued by the court.”

Proposed new section 303K(3) sets out what that direction should include. My amendment 41 simply asks that one part of that direction is

“to set out the location of where the person is to appear by electronic means”.

That reflects concerns that were raised in the committee’s report, which said:

“We recommend that the Bill is amended to include an additional requirement for the court to issue a direction in relation to the appropriateness of the location from which an individual participates, to address the concerns highlighted in evidence.”

It is, of course, entirely at the court’s discretion to determine what and where that location might be, and it would naturally take into account all the facts of the case.

On a practical level, I presume that that would be done only after consultation with the person concerned on the appropriateness of the locations that were available to them.

I move to amendment 43. Virtual attendance will be a pretty new concept to us, so the question is whether it will work. I think that it will, but there is a much remarked-on dearth of data and outputs in this Parliament generally. I seek to remedy that in amendment 43, at least at this level, because I am seeking to insert a new section—after section 2—to require a report on how the virtual attendance is working. The report would cover various elements such as reliability and resourcing, and I would like it to be published no later than two years after section 2 comes into force.

Again, that is in line with concerns that witnesses raised with the committee about virtual appearances being dependent on proper resourcing and current issues with technology. I remind the committee that the sheriffs principal told us:

“We would observe that virtual hearings are heavily dependent on the adequate resourcing of technology and infrastructure.”

The Faculty of Advocates told us:

“These undoubted and important benefits do come at a cost to the justice system. Valuable court time is regularly lost due to delays in establishing remote links and reestablishing failed remote links.”

That is also in line with a letter that I have received from the chief executive of the Scottish Courts and Tribunals Service, which I can make available to anyone who requests it. I raised questions about the operation of virtual courts, and, in response, it was conceded that

“SCTS does receive feedback that live links are not always as effective as they could be.”

Therefore, my amendment 43 seeks to have a report on what is happening once the measure is brought in.

For completeness, I listened carefully to Pauline McNeill’s representations earlier on. If her amendment 34 goes through, I do not entirely understand how the costs and logistics might work. I will listen carefully to Pauline McNeill’s closing remarks, but, at this stage, I am not persuaded by amendment 34.

Similarly, I am not persuaded by Pauline McNeill’s amendment 37, as I worry about fettering the courts’ discretion and ability to manoeuvre. Again, I will listen carefully to her closing remarks.

The definition point is a good one and I propose to vote for it. I am looking back at our report and see that many witnesses expressed concern about widening the definition, so I understand why the amendments are being made. However, there were witnesses who said that they prefer the original definition as drafted and gave various reasons for that. What does the cabinet secretary say to them? Obviously, their view is not the preferred view.

What does the data show will be the impact of the reduction on rehabilitation? Arguably, if there is less time in prison, there is less time for prison rehabilitation to work and to prepare people for the outside. One would hope that the data is robust, but I ask the question because it could look like just another way to empty the prisons, with criminals serving ever-shorter sentences, at 15 per cent.