Chamber and committees

I thank my colleague for his comments. Amendment 35, in Katy Clark’s name, is well drafted and important. There is a suggestion that it would increase the workload of the courts, and we are all a bit nervous about that. These are fast-moving hearings. However, there is a gap here, because victims are left in the dark as to why certain decisions are made. If we are going to make changes, which the bill does—whatever our views are on those changes—let us make changes that improve the information that is given to victims.

If bail is granted, it is entirely reasonable and rational for the appropriate reasons to be given. The court should set out the specifics of why it believes that the accused does not pose a risk to public safety—that is the new test, and it includes the safety of the complainer, which is important—and why it thinks, if relevant, that the accused can be appropriately managed through the imposition of bail conditions. We are looking at a scenario in which the courts say, “We have a new enhanced bail test but, on balance, we believe that the risk can be managed through, for example, enhanced bail conditions, and here are the reasons why we do not believe that this individual poses an immediate risk to the complainer and can therefore be released back into the community.”

At the moment, the only recourse available would be for the complainer to make representations to the Crown and ask for an appeal. There is no mechanism for the complainer to request that a reason be given for a decision, other than what has been said verbally in the court on the day, and to hear that, you would have to be there, which, for many complainers, would not be entirely appropriate. We all know the problems with getting records and transcripts of what has been said in court—it is a prolonged and expensive process.

Unless the Crown has been proactive in providing information to the complainer about why it thinks bail was granted, there is no real mechanism for getting that information. I do not want to add to the workload of the court clerks or to make the decision-making process more difficult for judges and sheriffs. However, if we are going to enhance the process by which reasons must be given for remanding someone, we should do the same for the contrary situation—we must give complainants more and better information when bail is granted. Accepting amendment 35 is one way of doing that, and things could be tidied up by the Government ahead of stage 3.

Equally, it would be a good outcome if the cabinet secretary said that she will take the matter away and work with members to see what can be done, but we need that commitment. Otherwise, if Katy Clark does not push this issue, someone else will.

We have been trying to decipher the effect that amendment 33 might have. Is its purpose that the court must take into account not only the diet that is relevant to the specific remand hearing but any and all outstanding hearings? For example, if an accused was in front of a remand court but was also the subject of a number of other live cases that were going through the system, and, if the accused had a history of absconding in relation to those cases, would that be taken into account in relation to the other case? It sounds as though quite a lot of work would be involved. Who would present or deliver that information to the judge or the Crown?

I am sympathetic to the idea, because one of the problems with the bill—I will come on to this in talking about my amendments in the group—is that it might remove the safeguard of being able to use remand for repeat absconders. However, will Katy Clark clarify the effect that amendment 33 would have?

I thank Pauline McNeill for lodging amendment 65. As she said, the amendment was one of a number of proposals from victims organisations, and I think that the rationale has been quite well explained. Those organisations have some nervousness about the matter.

When we took evidence on the proposal, there were two schools of thought, which were expressed publicly and in private. It seems that the legal profession is keen to see the removal of section 23D of the 1995 act, which it feels is problematic. I wonder whether the Government had discussions with the Crown, solicitors and the judiciary on the issue, as such discussions might underlie the rationale for removing section 23D. Equally, the perception of a number of organisations was that its potential removal is worrying—they feel that section 23D is a valid safety net, particularly for those who are at risk of domestic abuse and sexual crime.

Victim Support Scotland got in touch with a number of members, seeking to remove section 3, which will abolish section 23D. It is important that I put that organisation’s claims on the record because I would like the cabinet secretary to address them. Victim Support Scotland’s perception might be an error, but I want to give the cabinet secretary at least the opportunity to alleviate its concerns. Its interpretation is that the proposal to remove section 23D would

“allow bail to be granted to convicted repeat and serial perpetrators of domestic abuse and sexual offending against women and who present a particular danger to women’s safety.”

It went on:

“Given women’s experiences of abusers being given bail, including the lived experience of survivors given in evidence to the Criminal Justice Committee, women need as much protection as the law can afford them. The safety of victims should be at the heart of any decision to release a person on bail, so the removal of this restriction and reliance on the new all-encompassing bail test does little to show victims of these types of crime that their safety is being protected under the law”.

Those are Victim Support Scotland’s words, not mine. I do not want to put words into anyone’s mouth or even take a personal view on the issue, but there is a case to be answered around the removal of section 23D, and amendment 65 gives us the opportunity to have that debate.

I support it, so I will move it.

Amendment 52 moved—[Jamie Greene.]

The Crown agent should be given flexibility to change their mind on the day—notwithstanding what it says in the centrally marked papers—if further information that is relevant to the complainer or the victim comes to light during proceedings, and many of us have tried to insert that into the bill through amendments. The Crown might choose to oppose bail on the day, and it should have that power and flexibility. Whether or not the agent has the confidence and experience to do so is an entirely different matter; as we know, that is a whole other kettle of fish. Equally, the Crown might choose not to oppose bail, given further information that comes to light up until the point of the hearing. We know that they rattle through cases speedily on the day—there are many cases to get through—so I am not entirely convinced that everyone is in receipt of all the information that is needed.

Amendment 62 takes it a little bit further, because it says that the prosecutor

“must give the court opinion as to any risk of something occurring”

so that the court can make a consideration on what the impact of granting an offender bail would be.

In essence, all my amendments seek to strengthen the process so that victims’ rights are at the heart of decision making. As drafted, the bill does not do that. I hope that the Government will be open to that, because I am not the only one asking for it. It is not only the judiciary that has voiced concerns; victims organisations have as well. They are on the record as saying that—it is all in the stage 1 report and in the evidence that the committee received.

I am happy to look at amendments 61 and 62 if they are problematic on a technical level. That is absolutely fine, and I am willing to talk to the cabinet secretary about that. However, my other amendments in the group would give judges the flexibility that they need; it cannot be an “and” situation. The new two-step test will tie the hands of judges. It is up to the Government to explain why it does not.

I will let other members speak to their amendments in the group.

The point is echoed by the commentary from victims organisations. With serial or repeat offenders, there is a history. It might not necessarily be relevant to the case that is in front of the court when a decision has to be made about remand, but it might well be. I guess that the victims organisations seek some comfort and security that that will still be a factor somehow.

The question is how existing legislation or the bill provides for that and how we ensure that it does not remove the judge’s ability to consider a pattern of behaviour—domestic abuse is a good example—and say that, because of that pattern, perhaps with other parties or previous partners, there might be a risk to the complainer in the case that is in front of them on the day. Is it technically possible and legal to do that? Is there a mechanism for that information to be made available to the judge when he has to make the remand decision?

The victims organisations have a valid concern. I am not sure whether the statement that has just been given will give them any comfort. We will not know until after the meeting, of course.

The point is that someone who has been bailed has been neither tried nor found guilty of any offence. Therefore, any restriction is a by-product of the bail conditions; it is not part of their sentence.

As you have rightly said, there is a big difference between someone who has been bailed with some form of supervised or enhanced restrictions or parameters around the bail—in other words, the bail is conditional on certain activities or restrictions—and someone who has been remanded into custody and is awaiting trial. At the moment, the law takes the latter into account in sentencing—and rightly so. Somebody could have been stuck in prison for a year and a half because their case has been endlessly postponed and delayed. When they get their day in court—and if they are found guilty of the crime—the sentence might well be less than the time that they had already spent in custody, and they will walk free from court that day.

However, that is an entirely different matter. My point is that section 5 tries to conflate two issues: the idea that electronic monitoring could be useful in enhanced bail, which is the point that Ms Stevenson has made and which I agree with, and the issue that Pauline McNeill has highlighted of the time that people spend in custody on remand and the loss of liberty in that respect, which should absolutely be taken into consideration, too. However, the sole focus on this entire section is the time spent on electronic monitoring as part of a person’s sentence.

That is why I think that the section needs to come out—and perhaps be replaced, which is something that we can work constructively on. The section cannot be amended in any meaningful or feasible way that provides a solution that we might all want and that we might, surprisingly, agree on.

I will end my comments there.

Will the cabinet secretary give way?

Yes.

Yes, in one second.

Giving the Crown more information in advance of that point in the proceedings would mean that it would be up to the judge or the sheriff, as is rightly the case. The way to do that is to better inform the Crown agent; the way to do it is not to restrict the parameters by which judges make such decisions.