Criminal Justice Committee

Meeting date: Wednesday, March 9, 2022

Official Report 767KB pdf

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Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 1

Good morning, and welcome to the ninth meeting in 2022 of the Criminal Justice Committee. We have received apologies from Pauline McNeill and Collette Stevenson.

Our first item of business is an evidence session on the justice provisions in the Coronavirus (Recovery and Reform) (Scotland) Bill. I refer members to papers 1 and 2.

I am pleased to welcome our first panel of witnesses. Kenny Donnelly is procurator fiscal for policy and engagement at the Crown Office and Procurator Fiscal Service, and David Fraser is executive director of court operations at the Scottish Courts and Tribunals Service. It is nice to see you both. We appreciate the time that you are taking to join us.

We move directly to questions. We have around an hour and 15 minutes or so. I will start things off.

The written submissions that you have sent in advance to the committee have been helpful to our understanding of the perspectives of your respective organisations on the provisions of the bill, and of the next steps and opportunities to make some of the Covid provisions permanent. Before we get into other members’ questions, it might be helpful to have a general update. How are the courts and casework at the Crown Office beginning to adapt, now that restrictions are easing and we are beginning to move to a new normal?

Since I was last before the committee, we have stayed very much on track and have a high degree of confidence that, by 2026, we should be out of the woods, in terms of backlogs. The reduction in social distancing has certainly helped. In the court environment, we still have 1m social distancing. We are looking to decommission some of our remote jury sites, but that will depend very much on when we move to zero physical distancing and get jurors back into courts without face masks. Decommissioning will not include all the sites, because we still need some for the recovery programme in order to deal with backlogs.

We are on track, but we are not out of the woods yet. We absolutely need to continue with some of the provisions that are in the legislation.

It is a similar picture for the COPFS. The pandemic has obviously set back the criminal justice system, as it has most things in life. The case load has backed up, and everything at every stage in the process has slowed down. At one stage, the system stopped altogether and, as it has started back up, it has slowed down. As a result, there is at each stage in the process a build-up of work that needs to come through the system.

We are having to look at each of the stages in the process, from the initial receipt of cases and when they get marked, to when they first appear in court and are prepared for service of complaint or indictment, to getting them through court. The problem for us in doing that, which is to alleviate pressure and increase throughput of work, is that the volume of business has increased markedly, and all that business still requires to be worked on and managed. We must update victims, ensure that cases are in a fit state and so on. The sheer volume of work is delaying our ability to address the backlogs. It will be a long project to clear the entire pipeline—not just at the court end—of the backlog of work that has built up.

On David Fraser’s point on continuing to comply with 1m physical distancing, do you have an idea of when you can remove that requirement? That seems to be a stepping stone towards being able to function at more or less normal capacity.

We are—and, throughout the pandemic, have been—very much guided by Scottish Government guidance. We consistently review all the new guidance that comes out. The removal of face masks will be key, and zero social distancing will be the trigger point for us reopening and getting people, especially jurors, back into buildings. That will be what the new norm will look like after the pandemic.

We mention in our written submission that the remote jury centre model was innovative and was a fantastic opportunity for us to make at least some progress in disposal of solemn casework. However, it slows things down a little. With that model, there is a day at the start of each trial during which nothing is done other than remote empanelment of the jury; the trial does not really start until everybody turns up on day 2. Although we have made good progress in getting through some business by using the model, removing the requirement for that first day would, I hope, allow us to increase the output of cases at the court end of business.

It is helpful to understand that. We can sometimes miss the practical issues in the evidence that we receive.

I have a follow-up question, which is probably for David Fraser. In the letter that we received this week from the SCTS, which was helpful on the issue of virtual summary cause trials, you expressed an intention or desire to establish domestic abuse courts in each sheriffdom in Scotland. However, in the previous submission that you sent to the committee, you argued that use of virtual hearings should be dealt with by individual courts. I imagine that consideration of rural issues, city-based courts and so on would feed into that. Will you expand a little on the decision making or rationale behind how each sheriffdom might put in place virtual court arrangements?

The pilot project group that was led by Sheriff Principal Derek Pyle issued in January a report of which, I am sure, you will be aware. The advantages that I see in moving forward with that in the sheriffdom of Grampian, Highland and Islands is that a single court will be created, an element of specialism will start to be developed and the court will be under the leadership of the sheriff principal. There is still a little bit of work to be done on how, practically, it will be developed and implemented, but once the model is established in G, H and I, it will be up to the other sheriffs principal to consider what their individual sheriffdom needs are, based on the model that is developed. There might be some variation between sheriffdoms, but the key essence and principles of what we are trying to do will remain. Vulnerable witnesses will be supported at a site that is external to the court environment. That is important, given the other areas of work of a court—it is proven that it can be quite traumatic to enter the court environment.

I agree with what David Fraser said. The model is another option that allows us to manage the work better. The specialism point is a good one. The model also provides another opportunity for victims to give their evidence in cases without necessarily being in the same building as the accused. That is to be welcomed, if it is what victims want. It is an opportunity for us to do things in a different way that might allow some business to proceed in a way that is safer for victims and expedites the disposal of cases. I am very much in favour of that.

I have a final quick question before I hand over to Russell Findlay. Back in January—just a couple of months ago—we received an update from, I think, Eric McQueen that the backlog will probably last until about 2025. However, in some of the evidence that has been submitted recently, there has been reference to the year being 2026. Will you clarify that?

Yes—I am painfully aware of that. When Mr McQueen was here, those were the projections at the time. When I last appeared before the committee, I gave the most up-to-date information that I had. As I said, I anticipate that the backlog could last until 2026, but that will depend on what comes our way. It is quite safe to say that that is a realistic estimate.

Thank you for that helpful clarification. I will call Russell Findlay next. A number of members are interested in sticking with the issue of conducting court business by electronic means, so I will bring in Russell and then Rona Mackay.

The legislation allows fiscal fines to increase from a £300 limit to a £500 limit. What kind of offences would be brought into that upper limit?

I am sorry—I do not have the detail of the specific types of offence. In analysing the increase from £300 to £500, we looked at offence types and sentencing in that range in justice of the peace courts. I can get information for you on the specific offences, but I will need to go through the changes that have been made to guidance on a number of different fronts to give you an idea of that.

The majority of justice of the peace courts’ business is to do with road traffic offences, so we could not raise the fines within the scheme that operates there because road traffic is reserved, and because of the endorsement and disqualification aspects. It will therefore be other routine matters that go to the justice of the peace court—disorder, low-end violence, vandalism and so on. However, I do not have the details and I do not want to speculate. I can get you the details of the crime types, if that would help.

Sure—thank you.

The Deputy First Minister and Cabinet Secretary for Covid Recovery previously told Parliament that rejection of a fiscal fine was treated as a request by the alleged offender to be prosecuted for the offence, yet in July last year, data was released via a freedom of information request that showed that 30 per cent of those who rejected fiscal fines faced no further action. Has that become a bit of a safe bet for criminals or offenders, and a bit of a slap in the face for victims?

I am not aware of the FOI request, so I would need to enquire about that. That figure sounds too high, however. My understanding is that when fiscal fines are rejected, the normal course is for the case to be prosecuted and that very small numbers of them are discontinued. I would like to take that away and look at it, then communicate to the committee what the up-to-date figures are.

The data showed quite a steady level over two to three years of 30 per cent of such cases not being prosecuted.

Yes, I appreciate that. I will need to have a look at it. It is not something that I anticipated coming up this morning, so I have not looked into it. I will certainly do so and come back to the committee.

Also in respect of fiscal fines, cases of that nature would have ordinarily been heard in justice of the peace courts and would therefore be public. Do the public have any way of seeing what is happening with such cases?

No, they do not, really. The fiscal fine is an alternative to prosecution. It is a device that is used to make courts more efficient that allows people who do not dispute their cases to accept responsibility and have the matter disposed of at the earliest possible stage. However, that is done through private correspondence, not in a public forum. As far as I am aware, therefore, there is no public information that could be provided to individuals about what we have done. We would ordinarily advise the public that the case has been dealt with by way of an alternative to prosecution rather than give them the specific detail of the disposal.

Some of those cases can involve violence and fines of up to £500, so it is a significant level of offending. Is not there a slight risk of the principle of open justice not being adhered to?

10:15  

The fiscal fine is a tool that Parliament provided to us and is one that we properly use to make courts more efficient. The Lord Advocate lays down prosecution policy and the framework within which such fines should be issued. It is down to individual prosecutors’ professional judgment as to where and when it is appropriate to issue a fine.

Although the increase from £300 to £500 makes a fiscal fine significant and a greater penalty than would otherwise be the case, the number of cases that are impacted in that range is relatively small; I think that about 4 per cent of JP court disposals were within that range. The fiscal fines that have been issued are 3 per cent of the disposals in that range. We are pretty much matching the disposals that the court would issue, albeit in a different way from doing it in the open court.

If the public has no way of finding out what has happened with a disposal, are victims told?

My understanding is that we tell a victim that the case has been dealt with by an alternative to prosecution. It could be one of a number of things; we do not go into the detail of what the alternative to prosecution is.

I presume that victims who are told that might assume, or be led to believe, that the disposal was a fiscal fine, although they would not necessarily know whether it had been rejected and whether no further action was then taken. That level of detail would not be explained.

If the victim asked us whether the disposal of the case had been that there was no further action, they would be told that no further action had been taken, not that it had been disposed of by an alternative to prosecution. They might assume that the disposal was a fiscal fine, but alternatives to prosecution cover a range of options that are available to the prosecutor. As well as fiscal fines, there are warnings and fiscal work orders, for instance. Diversion from prosecution is another option that would be called an alternative to prosecution. The range of alternatives to prosecution covers a broad church of options that are available based on the prosecutor’s professional judgment.

I anticipated some questioning on conducting court business by electronic means, so I will bring in Rona Mackay.

I will ask a couple of questions about virtual trials, although my colleagues have more.

I thank you for your helpful letter, Mr Fraser. I have a few questions arising from it. On the Aberdeen domestic abuse pilots, you say that

“at the start of January 2022 a further 10 cases were scheduled for trial of which 2 have proceeded, one was deserted and 3 were converted to a physical trial.”

What were the reasons for converting those cases to physical trials?

One of my frustrations is that a case can be converted to a physical trial for any reason at all. The court does not even have to be advised of what the reason is.

Who makes the decision to convert?

The sheriff makes the decision, but there is, at the moment, no compulsitor for us to use virtual trials. It happens by the consent of all parties, so if an individual chooses not to take part in it, that is a good enough reason for it to be converted or not to go ahead—notwithstanding the fact that, initially, the case will have been through a process to establish that it is suitable for virtual trial. If, during that process, someone changes their mind, that is a good enough reason for it not to proceed as a virtual trial and the case will go back into the physical trials.

My arithmetic is not great but, of the further 10 cases,

“2 have proceeded, one was deserted and 3 were converted to a physical trial.”

That leaves four. What happened to them?

I will need to get back to you on that. I think that those cases will still be in the pipeline.

I just want to get a general understanding of how the process works. Did that pilot go according to plan, as it were? Was it successful?

We ran an initial pilot of virtual trials back in 2020. You will be aware that, at that time, there were no trials running at all. The pilot was seen as a vehicle for allowing us to at least get some trials running. We ran the two in Inverness and a further one in Aberdeen. In total, nine trials went ahead as part of that tranche.

The feedback that we got on that pilot from sheriffs, defence and participants was very positive. It achieved what we set out to achieve—we proved the concept. Last year, Sheriff Principal Pyle focused the use of virtual trials on domestic abuse cases. From my position, it is a viable alternative that provides flexibility and a lot of other advantages.

On your question about the other four cases, I do not have that information in front of me, but I will be happy to provide it if that would be helpful.

That would be useful—thank you.

I have just one more question; I know that other members have questions. It is about remote attendance by vulnerable witnesses in criminal cases. How does the system that is used now compare with what happened before the pandemic? We heard from Victim Support Scotland and Women’s Aid that witnesses find remote attendance a lot less intimidating, because it means that there is no face-to-face contact with alleged perpetrators, and that they are very much in favour of it. What are your thoughts on how the process has changed?

Sticking with what we did in Aberdeen, I note that we worked very closely with Victim Support Scotland to identify external sites so that we had the technological connections and they could be supported at the remote sites. Remote attendance was very much welcomed, as it removed vulnerable witnesses from the environment that we have talked about, in which they could potentially see the accused in the same building.

We have a number of sites dotted across the country that are remote from courts, where vulnerable witnesses have given evidence electronically for a number of years. We developed that concept into the virtual trial model. From what I have seen, it has been welcomed. Mr Donnelly might want to add to that.

I totally agree with David Fraser’s comments. A range of options were available for vulnerable witnesses to give their evidence. They were always consulted about that and the appropriate measures were explained and discussed. There were sometimes evidential challenges, but we would usually try to find a mechanism to allow the witness to give evidence in the best way for them.

An option was previously available for the vulnerable witness to give evidence by remote link using closed-circuit television. As David Fraser said, the virtual model has built on that and made it a much more mainstream and much more accessible and available option for victims. From feedback from victims groups, my understanding is that they are very much in favour of it. We must explore and take forward as best we can any system that supports victims and allows them to engage in the process and give evidence in the best and least traumatic way possible.

Do you see that continuing?

Absolutely. Beyond the bill, I think that we should be looking at it as a future way of delivering business for that crime type and perhaps others.

Thank you.

The bill suggests the use of virtual trials as a default. From what you have said and from the information that we have been able to gather, it sounds as though, up to now, only a very small number of cases have gone ahead. It is therefore difficult to take a view, given that those cases might be the ones that are most suitable for virtual trials and everybody is in agreement.

We are having to grapple with the issue of why the holding of a virtual trial should be the default even when that is not agreed to by all parties, which is my understanding of how the provisions in the bill would work. I presume that, at the end of the day, it would be the sheriff who would decide whether it was appropriate for a case to be virtual. That is quite a massive shift.

The purpose of the bill as it has been presented to us, and the reason that we have been given for why it is going through in a far more speedy process than would normally be the case in the Parliament, is to continue practices that have been taking place during the Covid pandemic. However, the evidence that we are getting is that, in reality, virtual trials have not been taking place in significant numbers, and they have not been the default. There have been only a small number of them. What evidence do we have that the model that is proposed in the bill has been tested?

There are probably two dimensions. On the virtual summary trial model, it is definitely my preference that we go down that route for domestic abuse cases as the default position. There will, of course, be exceptions in which cases may have to be held physically for specific reasons. However, that is quite independent from virtual appearances in general.

Since the pandemic started, we have introduced the remote appearance of witnesses outwith that type of case. In the High Court, professional witnesses—police officers and medical professionals—currently give evidence remotely, and my understanding is that we need the legislation for that to continue. That dimension has significant benefits. Traditionally, we would have pulled in consultants, or colleagues would have asked them to attend.

I am sorry to interrupt, but I think that you are straying into other issues to do with giving evidence remotely. What we are considering in the bill is a default position that there should be virtual trials for all domestic abuse cases, even where parties do not agree. I appreciate that that is your preference and that there may be reasons for that, but we have not really had that tested in many cases, have we?

We have not. On the reason why it has not been tested and has not taken over, I note that, as you said earlier, it has been warmly welcomed by the third sector and there has been support for going forward with it, but there has not been a volume of cases because there has been no compulsitor for cases to be done virtually. It has been done only where people have consented to it. That is one of the fundamental reasons why we have not had the volumes that we anticipated we would have when we started the process.

Would it not be more sensible to have a pilot with a significant tranche of cases being dealt with in that way and then to evaluate the outcome of that, rather than making a permanent shift to a position where virtual trials are a default, which would be a significant change in the Scottish legal system?

I am not sure that it is quite as unusual as you may be thinking. There are parallels with the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, which introduced the presumption for evidence by commissioner for certain categories of witnesses giving their evidence. The default is a parallel or comparable to the presumption that that legislation gave rise to. The presumption is rebuttable, as is the default. Parties would be allowed to make representations to the sheriff or the judge that the default should be departed from, in the same way that there is a provision in the 2019 act that allows parties to make representations to the court where they think that the presumption in favour of evidence by commissioner is not the right way for evidence to be given.

Ultimately, the court has an overriding interest in ensuring the fairness of the proceedings and the trial, and it will have the capacity to change the default or the presumption, depending on which piece of legislation we are looking at. Currently, that is all available by application. The default position would streamline processes and allow the court to proceed on a particular basis, but with the ability of parties to challenge that and the authority of the court to change it.

I well understand that the approach is quite different, but safeguards are in place and there are parallels to be drawn with existing legislation.

10:30  

I agree. I look at the issue from the perspective of the benefits for vulnerable witnesses, and I see entirely removing such witnesses from the court environment as a phenomenal benefit. As Mr Donnelly said, there are parallels with what we have done in the past in relation to presumptions.

The provisions do not mean that physical trials involving domestic abuse will not continue. I am sure that, in a number of cases, there would be specific reasons why it would be better that trials proceed on a physical basis. However, shifting to a presumption that such trials will be held virtually will remove some of the barriers, because there will be the option to opt out without having to go to court and have a detailed explanation of the specific reasons why the trial should be held in that way. We do not have that option at the moment.

I want to pick up on a point that you made in response to Rona Mackay’s questions. You said that there has been a lot of positive feedback on the Aberdeen virtual trials. However, last week, we took evidence from the Scottish Solicitors Bar Association, which has concerns about the option of virtual trials because they diminish the “solemnity of proceedings”. Do you accept that not everyone is in favour of the virtual trial option? Is work being done to allay some of the fears about it?

I absolutely accept that. It is a big change in relation to how we run the organisation and those who interact with it. As with all changes, people are at different stages on the change curve. On all our digital innovations, we continue to work with the Law Society of Scotland, which was a member of the virtual trial group that was led by Sheriff Principal Pyle, which made the recommendations.

I am deviating briefly, but let me make the point that we continue to engage with all the various bar associations in north Strathclyde on the virtual custody model as we roll it out. We are very involved with all those whom the changes affect, but I accept that there are differing levels of excitement about the process that we are going through.

My questions follow on quite well from those that Rona Mackay and Katy Clark asked, so I run the risk of repeating what has been said or of asking the witnesses to repeat themselves.

Like other members round the table, I was involved in the bill that became the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019, which has been mentioned. That was before the pandemic, when we had no idea about the existence of Covid. Scotland was very much on a route—rightly or wrongly; I believe that it was right—to ensure that vulnerable witnesses did not need to go into a court set-up, given the trauma that they could experience. The pandemic then came. As Katy Clark articulated, we all felt that there would be more such trials, so the statistics are perhaps a wee bit surprising, given the opportunities that the pandemic allowed for.

All that said, I note that the bill asks us to allow some of the provisions to continue in order to speed up the process of vulnerable witnesses being able to give their evidence out of court. Will the bill as drafted allow you to continue to take steps, which began with the 2019 act and other processes that were already in place, to ensure that vulnerable witnesses in the most difficult of cases do not need to appear in court?

The bill as drafted and the extensions are, from my perspective, essential for us to continue the work that we have started on. As you rightly say, it feeds back into the general direction that the justice system is going in of supporting vulnerable witnesses and complainers and providing for them the least traumatic environment that is possible. I support the continuation of what we have in place to allow us to continue the journey that we are on.

I agree. The journey is about providing support to victims and the opportunity for them to give their evidence in the least traumatic way and in a way that makes them feel engaged in the process at the same time. There are already a number of pieces of legislation on vulnerable witnesses that provide options or opportunities for that. The measures in the bill are just another tool in the box to allow the evolution and development of best practice to support vulnerable witnesses in their engagement with the criminal justice process. That is why we are in favour of the bill. It is another opportunity for us to better support victims in giving their evidence in the best possible way.

I am hearing good levels of support from both of you, but is the bill required? You have both identified that other processes are in place. Is the bill required to make the transition easier and give you more tools in order to get to the point where we want to be?

Under the previous legislation, evidence could be given remotely, but that was considered on an application-by-application basis. That has now been broadened so that, potentially, anyone can give their evidence virtually, as opposed to the very narrow group of individuals who could do so previously. We currently have the ability to go beyond that, and I hope that that will continue.

Earlier, I strayed into the point that the issue is not just about vulnerable witnesses and that it also relates to professional witnesses. Police officers and medical professionals can now give their evidence from their locations, which means that they do not have to spend time commuting to the court, waiting in the court and then potentially having the trial adjourned until a further date. That took valuable time out of their calendars, but they have got it back. Again, we have had positive feedback on that dimension, and we want to keep that approach permanently.

I agree. This morning, we have properly focused on vulnerable witnesses, but the bill is required for more than that. It also provides us with opportunities for other witnesses to give their evidence remotely, as David Fraser said. In the High Court, we are piloting an approach whereby all police and professional witnesses, as well as expert witnesses, can give their evidence remotely. In practice, that means that, for instance, a general practitioner in a remote area does not have to give up their practice and engage a locum, which can be hard to get and expensive. Instead, they can make a slot in their diary for the time when the court will accommodate them giving their evidence remotely.

The approach means that police officers can be in the office doing other work rather than sitting in a court waiting room. Expert witnesses, who often come from far and wide across the world and present us with logistical and timing issues in scheduling trials, can give their evidence from wherever they may be, subject to the control of the court.

The bill will allow the court system to work more efficiently, as well as supporting the delivery of public service in other ways.

Thank you. It was important to get on the record some practical examples of how the bill might impact.

If we work on the assumption that people are innocent until proven guilty, which is a cornerstone of the Scottish legal system, do they not deserve the right to a physical trial if they want one?

I do not think that any right is absolute. People are entitled to ask for a physical trial, and it is up to the court to determine whether it is in the interests of justice that they get it. People must be able to follow and understand the trial, to properly instruct their counsel or solicitor and to feel that they are engaged in the trial.

The option of doing the trials remotely is another tool that the court has but, as I said earlier, it is open to parties, if they disagree with any presumption, to challenge that and the court then has to make the decision in the interests of justice. It is the same with a range of things, such as the choice of solicitor or counsel and the choice of date; the court has to work in the broader interests of justice and of the public, rather than in the individual interest of the accused.

However, the issue that you raise is an important factor that the court has to take into account in assessing a decision on the appropriate way to proceed.

That implies that clearing the backlog is more important than the rights of an individual in Scottish law, and I would dispute that.

I do not think that that is what I said. The court has to determine what is in the interests of justice and, if the interests of justice are such that disposing of the case with the accused in a remote location is appropriate, fair and allows the accused to engage in the way that I described earlier, the court can make that decision but, if it decides that that is not the case, the court will determine that a physical hearing is required.

The big difference is that we are moving from a system of application where, if all parties agree to it, the trial can proceed as a virtual trial. From members’ lines of questioning, it sounds as though there has been a relatively low volume of cases, so it is difficult to see what effect the move to virtual trials has had on outcomes, which is the key point.

Katy Clark made the point that it might be prudent to perform a much wider pilot involving a larger volume of virtual trials to see what the outcome of that would be. The bill proposes to make virtual trials the default, which would mean that people would have to apply for a trial not to be virtual, which represents a complete reversal of the current situation. The key point is that what is proposed is not an extension of, but a big change from, what we are currently doing.

Our system is a very traditional one that has worked since the Victorian age without significant reforms to the process of how we do it. I accept that moving from the traditional physical court environment to a new, digital environment is a giant leap. Therefore, you are right that there are a lot of questions with regard to whether the digital or the physical environment influences or changes anything at all.

I can go only on what I have had feedback on, which has come primarily from the sheriffs who were involved in those trials. From their perspective, having done physical and virtual trials, they were satisfied that, whether people were physically in front of them or on the screen, there was no diminution or reduction in their ability to make their decisions. I take the point that, at the moment, it is, to a degree, uncharted territory. We must weigh up the benefits against the drawbacks of making the change.

Yes, there is a big difference. Most people would agree with the premise that the ability for witnesses not to be in the same room as the accused has been beneficial in many cases, such as the examples that you listed, including the protection of vulnerable witnesses, especially in domestic abuse cases. However, to be fair, that ability existed before the pandemic.

I want to follow up on a point that the convener made, which you picked up on. You said that, overall, the feedback—admittedly from sheriffs—had been positive, but you also mentioned defence. We have heard quite the opposite. I will quote a point that was made by a representative of the Scottish Solicitors Bar Association, which the convener raised earlier. They said:

“I can say—on behalf of the vast majority of the profession, I think—that the experience has ... been nothing but a resounding failure.”—[Official Report, Criminal Justice Committee, 2 March 2022; c 13.]

That is quite a stark comment to make to the Criminal Justice Committee. Do you simply disagree with that assertion or will you agree to disagree with it?

10:45  

No, I disagree with it entirely. I do not think that that is the case at all. We have had phenomenal success. I am not saying that the approach has not been without its teething issues or the odd technical issue, which you would get in any transition. Even our remote jury centres have lost the links on occasion, but that has always been down to factors outwith our control, such as broadband connections, and we have got them back up and running very quickly.

Some of the difficulties that the bar association has had in relation to the information technology can be down to where solicitors are connecting from. For virtual trials, we have always ensured that we have tested the broadband connection, because we found out early on that it really depends on where someone is coming into the court environment from—whether they are on a really good broadband network, a mobile phone or public wi-fi.

We understand why—depending on how someone comes into the environment—it can appear to them to be less than perfect. However, over time, our unit in the SCTS has narrowed down all the different issues that have caused difficulties or connection problems and resolved them. We have made significant progress in ensuring that we have a stable environment. Certainly in the court environment, we have ensured that connections work. Therefore, I absolutely disagree with the comment that you quoted.

That is interesting. I guess that the bar association’s concerns were not just technical. Although it mentioned technical issues in certain circumstances, the impression that I got was that the issue was more a point of principle—that is, the concept that the solemnity of the court is sacrosanct in the Scottish legal system. Mr Murray said:

“We are dealing with people’s lives and … their liberty.”—[Official Report, Criminal Justice Committee, 2 March 2022; c 14.]

The court environment seems to be a prudent place to deal with people’s liberty and serve justice.

I will ask the Crown Office about the numbers, because those are key to getting an idea of the impact. Mr Donnelly, if the bill is passed and we move to virtual trials by default, with exceptions on application, will that apply only to domestic abuse cases? Would you like it to apply only to those cases? Could all cases start in a virtual setting by default but, on the decision of the sheriff or the court, move to physical hearings case by case? What sort of numbers are we talking about with the backlog of cases that we have to get through? Is going to virtual trials by default an appropriate way of reducing the backlog, or are there other, better ways in which we could do that?

I am not able to give you numbers and would not wish to start guessing. I can certainly take the question away and, with the courts service, consider whether there is data that we can provide to you. However, I will not start picking figures out of the air.

A range of measures is available in the bill to support the reduction of the backlog. Conducting virtual trials by default will allow us a degree of flexibility to get through some of the business in a way that is beneficial for vulnerable victims and that allows specialism in domestic abuse and other types of case, particularly in more remote areas.

We will want to keep our options open as to whether the model is not only applicable to domestic abuse cases but might be beneficial in other areas of the business. I would not want to say that only one aspect of the criminal justice system would benefit from it. Domestic abuse is a crime type that we have identified as a good place to start because of its dynamics, the impact on victims of giving their evidence in a different way and the benefits of reducing the impact on victims of giving evidence.

Virtual trials are a tool that gives us a degree of flexibility in how we best manage the business. There is also a public health aspect of the approach continuing. Although we recognise that we are moving away from it being a public health requirement, reducing the footfall in public spaces is still a welcome benefit of that measure in the bill. We hope that, as we move forward, that need will continue to reduce, but it is another aspect of the bill that will allow the court to manage the volume of business and, therefore, the risks of the number of people who can be in a courtroom at any given time.

I appreciate that other members have questions, so I am happy to leave it there, convener.

Thank you. We will move on. I am sorry—did you want to come in, David?

If I may, I would like to provide some additional information in response to the question.

Of course.

In the summary cases that are still awaiting trial, there are roughly 26,000 non-domestic abuse cases and 6,000 domestic abuse cases. If the legislation was purely for domestic abuse, it would allow us—this was Ms Clark’s point—to have a little bit more opportunity to pilot the approach, notwithstanding the fact that it is legislation, because it would affect only 6,000 cases, as opposed to the 33,000 cases that we have. There is an element of containment if it is purely for domestic abuse cases.

Thank you.

On the civil side, my understanding is that almost all civil and tribunal business has been undertaken either online or by phone during the pandemic. Can you update members on whether that is likely to continue and, if so, for how long?

We managed to transfer the civil side to the digital environment much more quickly than the criminal side. We have no delays or backlogs on the civil side.

It is not really for me to say what will happen in the future. At the moment, the Scottish Civil Justice Council is looking at whether procedural hearings or evidence giving could be done digitally, what the breakdown would be and what would be appropriate.

The profession has welcomed the move to having procedural hearings and a lot of other hearings on the civil side digitally. I see that as a step forward, but it is not for the SCTS to set out what the future might look like. I know that the Lord President and the Lord Justice Clerk have views on how they would like to see it progress, and I think that it is a positive step in terms of what we have been able to do, but I am not able to give a specific answer about what lies ahead of us on that front.

That is helpful. We have a couple of other themes to cover, but first I will bring in Russell Findlay.

I have a small question about the SCTS’s submission, which talks about virtual trials helping to

“reduce the justice sector’s carbon footprint”.

Is that something that you have measured?

It is not. It is based purely on the fact that we do not have people coming to and from courts to give evidence. It has not been quantified in any way.

Mr Donnelly, in respect of multiple-accused solemn trials, many of those, as the written evidence says, relate to organised crime. Can you quantify the backlog in cases of that nature?

I do not have the figure with me, but I can get it for you. They are not all organised crime cases. Multiple-accused cases cover a range of business. We have made some progress with that. Initially, when we introduced the jury centre model, we were not able to do cases involving more than two or three accused. We now have a couple of facilities that enable us to do that, so we have started to address some of those cases. However, there are more of them in the stocks than we would like to be the case, because there was a period of time when we could not do any of them at all.

I think that that is a fair summary, although David Fraser may want to add something.

At the very start of the pandemic, we could only do cases involving a single accused or two accused. Most facilities can now handle cases involving up to five accused. We can do cases that involve up to nine accused, and I think that we had one involving 11 accused scheduled, but there was a guilty plea, so we did not have to do that one. We are able to deal with multiple-accused cases now, whereas, in the early stages, we were not.

So, roughly, up to nine is the kind of territory that we are talking about.

Yes, but we can go beyond that, using a two-court model. It is just that it impacts on the other business that we can get through when we have to do that.

I can certainly undertake to do an analysis of the case load at the moment and give you details of the multiple-accused cases and the general crime type, if that would assist.

Perhaps you could also quantify any disproportionate delays in respect of multiple-accused cases compared with single-accused cases. It seems likely that there would be such delays.

That would be quite a nuanced analysis. I will see what I can do.

No worries—thank you.

We will move swiftly on. Members have questions on time limits in criminal cases.

We understand the concept of increasing time limits so that cases do not time out. That is entirely appropriate and it would be difficult to argue against it. However, increasing time limits has a substantial impact on both parties—victims and accused, and, in particular, accused who are held on remand.

Other than not allowing cases to time out, what possible justification is there for extending case time limits? Is that the only suitable reason?

Without doing that, we would face using a mechanism whereby an extension application is made to the court, and it is up to the individual sheriff or judge to decide whether an extension is given. With the vast volume of cases that are in the system, having to do that would take away from resources. You might question how long it takes to do that but, if we are talking about thousands of cases, it has to be scheduled in, which means that we are not able to hold trials while the judiciary is dealing with it.

That is the biggest dimension from the SCTS’s perspective. The extended time limits will allow us to focus on dealing with the backlog and getting cases through the court, as opposed to dealing with an administrative procedure.

Is there a better way of doing it? It sounds to me as though the process of having to apply for extensions case by case is quite laborious and time consuming for the courts. A default extension would automatically mean that cases could take longer to come to pass. If the backlog is four years away from being cleared, that is beyond the statutory maximums, even after they have been extended. Many people have given evidence that they are concerned about the nature and length of the extensions; in some cases, people are being held on remand for up to a year, which might be much longer than their sentence might have been. The extension has serious implications, and international norms are being breached. Does anyone have a view on that?

That is probably one for Mr Donnelly.

I absolutely accept that it might take four years from an alleged offence taking place to the final disposal. There are delays once a case is into the court environment; we normally deal with High Court trials within six months, but it now takes 12 months, so there is a six-month extension in our part of the system. Mr Donnelly can speak about the pre-court situation.

I mentioned earlier—I cannot remember in response to whom—that there are pressures on the system all the way through, and there are backlogs all the way through the system. Everything is taking longer than was previously the case. For each case that comes in, it takes longer to ingather all the materials and get the scientific, forensic, telephony and cybercrime reports. All those aspects are working in a different environment and everything is coming in more slowly than would ordinarily be the case, so the whole process is slow.

In addition, there is the management of the increased workload. In our written evidence, we gave the example of the increase in the overall business of the High Court, which is in the region of 55 per cent. All that work is having to be processed.

Time limits are important, but it is important that we have the right tools to allow us to get through the backlog of work that has grown over the course of the pandemic. Without it, we would be preparing cases and perhaps indicting them in a completely unsatisfactory way. We would be at the mercy of the court to have cases individually called in and continued.

There would be challenges for defence preparation as well, but I cannot speak for defence agents—I am sure that they will speak for themselves.

The challenges in preparation are that we could be indicting cases that are not complete. Because of the time limits, the options are to make an application to court for time to prepare or to go into court with a half-prepared product in the hope that we get more time to finish the product. None of that is satisfactory.

11:00  

The real challenge in all this is that the courts are overwhelmed by business. An overwhelming amount of business has not yet reached them, and it will have to come through as we clear the backlogs at the different stages in the process. The danger of not having extended time periods is that the courts will become so busy in the administration of the process and justice, rather than in the delivery of the outcome of the justice process.

The evidence shows that, if we did not have the periods, we would end up having to ask the courts to get similar extensions of time. We would simply take up court, lawyer and clerk time, which would be better utilised in dealing with the disposal of business at trial.

How will you decide which cases to prioritise? For example, will cases in which a person is being held on remand versus cases in which a person is not being held on remand but is on licence or on bail be prioritised? Will gender-based sexual violence or domestic abuse cases be prioritised? Will cases of a more serious nature that you think require more immediate disposal be prioritised? The biggest point of view that we get from victims of crime is simply about the lack of communication and not knowing and understanding why cases have been delayed or repeatedly put off, sometimes for a number of years. That is a huge cause of concern for many victims.

David Fraser will be pleased to hear that I will buck the trend and go first this time.

Prioritisation is difficult. Obviously, priority is given to those who are on remand, because they have been deprived of their liberty. However, that has to be looked at in the context of a range of priorities. Every case in the High Court has a degree of priority, whether it is a sexual offending, homicide or road traffic fatality case. Not all the people involved will be on remand.

We mentioned in our written submission that, broadly speaking, 67 per cent of High Court business is to do with sexual offences—members will forgive me if I keep using High Court business as an example, but I worked in the High Court until a few weeks ago, so I am most familiar with that. The figure increases the further on we go in the process, because those cases are resolved less often by way of plea negotiation—they are the cases that tend to go to trial more often.

A quick analysis of our work in progress yesterday showed that only 13 per cent of the sexual offence cases are custody cases. The figure for homicide cases is over 50 per cent. The figure for major crimes—which are everything between homicide and sexual crime—is just over 30 per cent; actually, it might even be higher than that.

There is a real difficulty in trying to prioritise everything in a range of priorities. Once a person has been indicted in a case, the court is responsible for scheduling the degree of prioritisation, and there are a number of moving parts. The availability of counsel for the accused can be an issue if the counsel are particularly busy, and the court trying to fix a date that suits their needs can be an issue. The availability of witnesses can also be an issue. I mentioned earlier that the availability of expert witnesses can be a real challenge. There is a whole range of moving parts in trying to schedule business, but those whose liberty has been denied are at the top of the list of priorities.

Does Fulton MacGregor want to pick up on anything relating to time limits?

Yes—just briefly, convener.

I think that we are all a bit worried about the backlog and what it might mean. I hear that from you, and it was really good to hear at the start that you think that we are on track to have the backlog cleared.

I want to ask about other possible solutions or options that you might have in relation to minor offences. How would cases be identified and prioritised if prosecutions of such offences were no longer taken forward?

Given the time period, how will you take into account changes in people’s circumstances? I will give two examples. You have said that those on remand are a priority, but somebody could have already been on remand for longer than the maximum disposal. We would imagine that that would be taken into account.

There are also more minor situations in communities in which people are not remanded. Would there be scope to look at situations that have almost resolved themselves? We know that it happens quite a lot that the accused and the victim repair the situation themselves. Are such circumstances taken into account when you prioritise cases?

You have raised a number of issues, which I will try to deal with quickly.

You mentioned the prioritisation of lower-level crime. Earlier, we discussed fiscal fines. We try to deal with as much of that business as we can through alternatives to prosecution so that the system has capacity. Thereafter, prosecution policy is set by the Lord Advocate. Once that policy is set, we will look at cases on a case-by-case basis. It may sound like a cliché, but it is true that every case is looked at on the basis of its own facts and circumstances—the circumstances of the offence, the offender and the impact on victims. Decisions are then taken on the appropriate forum for the case.

Those policies were adjusted during the pandemic to allow us to make decisions that we hope will support recovery. Those will be kept under review. All cases are kept under review as they go. The dynamic of a case might change or the case might become too old.

Every time a prosecutor looks at a case, a range of options is open to them in determining whether it continues to be in the public interest to continue with that case. We do that innately with every case that we deal with. When we pick up a bundle of papers, the first thing that we think is, “Is it still in the public interest for this to continue?” A number of factors have to be weighed up; the age of the case is not the only consideration. We have to look at the impact on the victim, the seriousness of the offence and the offender’s situation.

When it comes to remand, as I think we said in our written submission, a fairly clear indication was given early in the pandemic of what the approach to bail should be. That is a decision for the court. If someone had been in custody for a period that exceeded the length of the sentence that they could be given, it would be open to them to apply to the court to have their bail reviewed. If a period equivalent to the maximum sentence for the crime that the person was charged with had already elapsed, the court would take that into account as a factor in considering whether it was appropriate to continue with remand. Each case is treated individually.

I hope that I picked up all the points that you raised, but I am not sure that I did—I might have missed one. I do not know whether David Fraser has anything to add from a court perspective.

No, I have nothing to add from a court perspective.

Thank you. You have addressed the issue that I was getting at, which was about the public interest in such cases. If people are spending significant periods of time on remand, their situation can change significantly, particularly in cases involving more minor offences.

There is probably more public interest in continuing with more serious cases, because they can involve psychological and emotional abuse, too. That is not the case in more minor cases. I had in mind the example of youth offending. A kid could have been 16 at the time of an offence. If the case has been going on for a long time, they might be 20, by which time they might have repaired some of the issues with their community. I will not labour the point.

It is not uncommon for agents who act on behalf of people in such situations to write to the Crown to ask it to reconsider the public interest in the case, to set out the change of circumstances and to ask the Crown to assess whether it is still in the public interest to continue with the case. That has been the case throughout my career, and it continues to be the case.

We instinctively carry out such assessments anyway, but we do not always have detailed information on the evolution of the offender’s situation. If and when an agent writes to us, we would certainly look at that and consider the question of viability and whether it was still in the public interest to continue with the case.

We will have to bring the session to a close. Members had one or two other questions that they wanted to ask, but time is against us.

I thank Kenny Donnelly and David Fraser for joining us. You have undertaken to provide a number of bits of follow-up information. That is helpful—we appreciate it.

We will take a short break to allow for a changeover of witnesses.

11:10 Meeting suspended.  

11:14 On resuming—  

Welcome back. Our next item of business is our final evidence session on the justice provisions in the Coronavirus (Recovery and Reform) (Scotland) Bill.

I am pleased to welcome to today’s meeting Keith Brown, the Cabinet Secretary for Justice and Veterans, who is attending in person along with Scottish Government officials Jeff Gibbons, from the criminal justice division, and Louise Miller, from the legal directorate. Officials attending online are Steven MacGregor, from the Cabinet, Parliament and governance division; Jennifer Stoddart, from the community justice division; and Jo-Anne Tinto, from the legal directorate. We very much appreciate the time that you are taking to join us this morning.

I intend to allow around an hour for questions and answers. As usual, I ask for those to be succinct. I invite the cabinet secretary to make some brief opening remarks.

11:15  

Thank you for the opportunity to provide an opening statement on the justice provisions in the bill. I thank all those who engaged in the 12-week consultation process, which has helped to inform the development of the bill, and those who have provided written and oral evidence to the committee.

The majority of the justice provisions detailed in the bill are being progressed on a longer extension basis. That is in the context of the justice recovery programme, the “Justice Vision and Priorities delivery report—key achievements and impact of Covid 19”, which was published last month, and against a background of the backlog of cases as a result of the pandemic.

During the pandemic, we have seen significant changes in how the justice system has operated and adapted to changes in working practices as it has responded to public health guidance. Public safety has been the paramount consideration throughout and consequently required a change in how we work. That consideration clearly remains, as does a recognition that public attitudes to travel and general day-to-day activities will have been shaped by people’s experiences of the pandemic.

I expect that much of what we will discuss will be firmly rooted in the “Recover, Renew, Transform” programme. The measures in the RRT programme have contributed to recovering a viable justice system, responding flexibly to meet the challenges that Covid-19 presents, while delivering a more effective and efficient justice system now and for the future. That is fundamental to protecting our rights and freedoms and to addressing inequality.

The justice system has responded to, and continues to respond to, the challenges presented by the pandemic and societal changes that we must adapt to. Many of the technological changes that have been introduced, such as virtual custody hearings, the operation of remote jury centres and the electronic transmission of documents, have proven to be a successful response to the new working environment.

As the committee has heard in its evidence sessions, for some, those changes are seen as temporary measures to address the problems that have been caused by the pandemic and ought to apply only in that context. However, others see an opportunity for transformation that could form part of a new justice system.

In common with the committee, I agree that it is essential that we fully evaluate the impact of the measures—operationally and on court users—before they could be considered a permanent feature. Also, there will be some changes that are only ever temporary and that the Scottish Government has no intention of making permanent. For example, the extended time limits are purely to address the impact of the pandemic on the criminal courts.

Equally, I can provide reassurance that powers that are no longer required will not continue to be used. The bill includes suggested annual milestones at which the provisions can be reassessed. The bill also includes powers for measures to be expired or suspended ahead of the annual milestones. The Government remains committed to expiring or suspending any existing provisions that are no longer necessary.

It is proposed that measures requiring to be extended beyond November 2023 could be extended by regulations, using the affirmative procedure, potentially through to November 2025. That would mean that appropriate parliamentary scrutiny could take place, and would place a clear onus on all justice organisations to evidence how the powers have been used and to make the case for their retention.

In addition, and in an effort to be open and transparent, the policy memorandum to the bill highlights areas where stage 2 amendments might be progressed, noting other areas of activity that might have an impact.

I have listened carefully to the evidence sessions over the past two weeks and, to some extent, the evidence that was heard this morning. It is clear that there are a range of views on how best to respond to the impact of the pandemic on the justice system and to the opportunities and challenges that that raises for us all, but there is no doubt that there is agreement on the impact that the pandemic has had on the justice system.

I take on board all the comments, and trust that, as we consider the provisions and their individual and collective impacts, we can respond and address points of concern carefully and directly as a Parliament. I am happy to take questions, convener.

Thank you very much for that information, cabinet secretary. We will move straight to questions. I will open with a question on the early release of prisoners. I know that we have a separate agenda item on risk assessment, but I want to focus on early release in the context of the Covid-19 pandemic.

In my area, the north-east, agencies collaborated very closely on early release. They worked well together, particularly on prisoner release from HMP Grampian. The risk assessment and other processes, especially for throughcare and victim contact, were informed and robust. That said, I know that there is some concern about that aspect of the early release process, albeit that I recognise that the last early releases took place back in 2020.

You said that powers that are no longer required in the criminal justice system will not be used, but do you have any more comments on early release itself? Could those provisions be improved or adapted? Are they required at all?

It is true that we are looking at only a temporary extension of that particular power for the purposes of the pandemic, but we are also consulting on whether the power of early release should be made permanent in separate legislation. In fact, the United Kingdom Government has the same power embedded in legislation for, it seems to me, contingency planning reasons.

I think that the same argument would apply in this case. If you have to do this in response to something unexpected, you might well not have all the time that you would like for consultation and forward thinking. The early release happened before my time as justice secretary, but I know that there were concerns about whether there was enough time for throughcare to be effective and, indeed, whether victim notification was as effective as it could have been. All that I would say is that we have learned lessons from that and will seek to apply them to any future early releases, even though we have none planned. Even taking our best guess with regard to the pandemic, I have to say that its impact on society does not seem to be anything like it was. For those reasons, this is a contingency power.

On a wider point, mass releases of prisoners have been a feature of systems across the world—I think of the states of Texas and Georgia, for example, and there are other countries, too—but we do not intend to use the measure for any other purpose. The state of California, for example, was told by its Supreme Court to release around a third of its prisoners more or less overnight, because the prisons were at 120 per cent capacity. We are not in that situation; we are simply looking for a temporary extension so that the power could be used if the pandemic were to justify such a move.

Another aspect of early release is public safety. Police Scotland has commented on that being a priority and I do not think that anyone would disagree with that. Does the process for assessing risk with regard to early release have public safety at its heart and, if so, will that continue?

Again, this was prior to my time in post, but that was evident in the criteria for release. The people in question had to be very close to their release date, for example, and there were certain categories of offender who were not to be included.

I know that attention has been drawn to the reconviction rate, although that is sometimes confused with readmission to custody, which can be a different thing. From memory, the reconviction rate is around 40 per cent. In any case, if we look at the categories of prisoners who were released, we will see that the situation was not at all unusual. For those on short sentences, you could be looking at a 50 per cent or sometimes 60 per cent reconviction rate.

There would, of course, be a public safety assessment. I am sure that I will be corrected if I am wrong, but I think that I am right in saying that the categories of prisoner for whom release was agreed took into account the risk to public safety and that that was agreed by all parties in the Parliament at the time. We would hope to try to achieve that again, if it turned out to be necessary.

Thank you very much. It will come as no surprise that we have a number of questions about conducting court business by electronic means.

I was going to ask the previous two witnesses this question, but I ran out of time. The Crown Office’s written submission says that 850 High Court cases on indictment have yet to be allocated a trial date, and we know that there are tens of thousands of summary cases in the same position. Has any consideration been given to clearing this backlog by opening the courts up at the weekend?

That was mentioned and discussed, as were all possible means by which we could reduce the backlog. It must be borne in mind that the whole system would need to be ready for that; it would not just be a case of having a courtroom or, if it were applicable, a remote jury centre available. We thought that the stress on the court system generally, given what was being asked of it, could not be sustained for seven days a week. I know that there have been Nightingale courts down south, but we thought that, given the pressures on the system—it might be worth hearing from the officials on some of those pressures—providing £50 million or so this year for 16 additional courts would be the most effective way of reducing the backlog. My officials might want to say more about that.

We have been looking at lots of different options to address the backlog. It is key to address the broader question about capacity in the system, resources and the impact on all partners. As the committee has heard during previous evidence sessions, there is mounting pressure in relation to managing the current workload before expanding it further. Those are some of the key issues that have been informing decision making.

Were the various stakeholders asked about working at weekends?

Some of that pre-dates my time as justice secretary. We have had a constant dialogue with all justice partners on the issue. The 16 additional courts involve court service staff, defence lawyers, prosecutorial staff, sheriffs and so on, so there has been a very big increase in their workload. We thought that providing those courts was the most effective way to tackle the backlog, and I still think that. Others might have different ideas, but we think that that is how to tackle the backlog. The decision was made following maximum consultation with justice partners. Such a radical step could not have been taken without discussion and consultation with, and the consent of, justice partners.

I will touch on a subject that you have already mentioned. Statistics show that, of the 348 people who were released early, 142 went on to reoffend and 40 per cent of them did so within six months of being released. Do you consider that to be acceptable? If such a step were to be taken again, would the same procedures apply, or has any work been done to attempt to address the risk to the public?

First, I do not consider any offence to be acceptable. That is probably true of everyone in the justice system. However, it is true to say that, as I mentioned, across different jurisdictions a level of reconviction—between 50 and 60 per cent—is associated particularly with people on short sentences. Jennifer Stoddart might want to come in on that. That is one reason why, in recent years, we have made the change to a presumption against—not a bar on—short sentences. Such sentences are very often ineffective. One of the principles and values that underlies the justice vision that we have just published is that community sentencing is often much more effective. There are lower reconviction rates among those who are given such sentences. We do not find the statistics that you mentioned to be acceptable. We want to drive the numbers down.

You quite rightly asked what we would do differently, having learned the lessons, in order to reduce reoffending. The community justice system needs to be better prepared, but it was, of course, not without its own impacts from the pandemic, whether they related to staff or the places where people needed to work. If providing more availability in that regard could reduce reconviction rates, that would be one lesson that I would want to learn. We want to ensure that the community justice system is able to rise to that challenge, were we again to release prisoners early—I underline that we have no current plans to do so.

It might be worth hearing from Jennifer Stoddart, because she was there when the decision was made last time.

I echo Mr Brown’s points. It was very short-term prisoners—those who were serving sentences of less than 18 months—who were released. When someone is in custody for such a short time, it is difficult to address the underlying causes of their offending. That does not excuse any reoffending that occurred after they were released, but it is certainly part of our wider consideration of how we can reduce the use of imprisonment, particularly short-term imprisonment.

11:30  

For any future use of the power, which is absolutely not planned and is not something that we would choose to do, we would work with our community justice partners to offer throughcare support to those individuals as they are released. That engagement took place during the use of the power the first time. The Scottish Prison Service engaged with local authorities, so that support could be offered to those individuals. However, as is the case with normal release for short-term prisoners, they do not have to take up that support.

I know that this is all theoretical, but can you just confirm that, if that were to happen, there is no mechanism to force early release prisoners to engage, and that engagement would just be on the basis of good will on their part?

It would depend on the cohort of prisoner that was included. Long-term prisoners were not included in this cohort but, if they had been, they would have been required to engage with social work, as they are in relation to normal processes around their release—that engagement is a statutory requirement.

If we were to use the power again to release short-term prisoners, although they would be offered throughcare either from the third sector or from the local authority, under the current legislation they are not required to engage with that throughcare.

We will stick with electronic court options. Russell, do you want to ask questions on that?

I am okay just now, thank you.

In that case, I will bring in Rona Mackay.

Good morning. Cabinet secretary, you will be aware that we have heard support for, and concerns about, the greater use of virtual options—there are mixed views on the subject. Some of those concerns are around the fact that it can prevent effective communication between legal representatives and their clients, impede the assessment of the credibility of witnesses and discriminate against people who do not have access to digital technology. What are your thoughts on that? Are those concerns being addressed?

I think that those issues are relevant, especially if we are looking to make the approach permanent, which might be possible through other legislative processes that are coming forward.

We are considering the issues. I read the evidence that was given to the committee by the Scottish Solicitors Bar Association and others, and I acknowledge some of the concerns that have been raised. I note that, a number of months ago, the Faculty of Advocates raised with us the issue of digital exclusion, which we are looking to address.

That said, on the other side of the argument, you might have heard Rhoda Grant talking yesterday about how beneficial the approach can be in domestic abuse cases and cases in rural areas.

As ever, there are arguments on both sides, and we want to take those into account, along with things that we learn from the pilot projects, before proceeding further.

It is possible that, given its powers, the judiciary could advance the approach in the meantime, through a practice note. However, for the reasons that you mention, I think that its preference would be to have legislation. There are a lot of things to work through in relation to the approach. On the surface, it seems appealing, but some people—especially those who are most closely involved in the process, such as defence representatives—have concerns that we want to address as best we can.

Do you see it as a problem that concerns are being expressed by one side of the legal profession as opposed to the other? We have heard quite opposing views. Is it possible to bridge the gap between the views of defence lawyers, with their traditional practices, and people in the court service who think that the approach gives them a useful tool to clear the backlog and address the needs of domestic abuse victims and vulnerable witnesses, which is very much favoured by third sector organisations?

I might ask Jeff Gibbons to come in on that but, as a layperson, I think that the gap could be bridged, although I am not saying that I have the answers now. Many of the qualms that legal representatives have raised have been about looking somebody in the eye and having that kind of presence. The Faculty of Advocates has said that things such as presence in the courtroom and being able to read somebody’s reactions and body language are extremely important. I will say this now without having the expertise, but there might well be digital solutions that will allow us to improve in that respect.

I hope that the gap could be bridged, given some of the benefits. We have heard about vulnerable witnesses, but there is also the issue of people having to travel a long way, as well as the issue that was raised yesterday about domestic abuse. There are potentially huge benefits, but we want to try to take the profession with us. You are absolutely right that, even between the Law Society and the bar associations, there are different points of view. It must be possible to reach agreement, but it will take some work to do that, and we will have to listen to people’s concerns.

I ask Jeff Gibbons whether he wants to come in.

In some ways, we have gone for a longer extension approach because we recognise that there are a variety of views. Sometimes, the views on similar issues are quite contrasting, and they get quite confused. We will bridge the gap by continuing to work with stakeholders to see what a virtual offer might look like that is acceptable to all and that addresses the resource issues and the positives. We will also have to address some of the anecdotal comments that people have made about the issues and quantify those to an extent. We need the evidence base to support us moving forward.

In the civil and criminal contexts, we will take an evidence-based approach to what virtual options might look like in a future justice system. We worked with stakeholders on the long extension approach and got their support for that, and we continue to discuss with them what a virtual justice system in Scotland might look like.

We have come very far in the space of two years; huge changes have had to be imposed because of Covid. It will probably take a bit longer to reach consensus so that the virtual approach can proceed. I hope that it can, because it is certainly beneficial to many people.

Some of the user disagreement has been about one particular report, but that is more about the mechanism to move forward. As you will be aware, the work from the virtual trials group, which was published after the bill was introduced, has had positivity, but a limited number of trials were involved, so the context of the evaluation is limited. That work is also uncosted, so we need to look at the resource issues, which goes back to the points that Mr Findlay made about how using resource in one area affects other areas.

It is about looking at what a future legislative option might be and future proofing it. Technology moves quickly, so we do not want to look at the issue just at this point in time. We want to consider what a virtual offering might look like and how legislation can adapt quickly to that, rather than having to revisit the issue. We are in agreement. I think that the issue is more about how we move forward and the timeframe.

I will bring in Jamie Greene. I know that you have questions on the issue of early release, but can we stick with electronic court options for the moment?

Thank you, convener. I would be happy to come back in later with other questions.

Cabinet secretary, you mentioned that you had read or listened to a number of our evidence sessions. As other members have alluded to, there is a difference of opinion on the success or otherwise of virtual trials. I want to clarify the difference between the Government’s proposals on the on-going ability for people to give evidence virtually—which I think has been found to be helpful and beneficial for witnesses and specialists, as well as for the most vulnerable in specific cases—and trials being done completely virtually. We have heard that very few such trials have been done, so we do not really know what effect they have.

I will pose the same question that I posed to the previous panel. Would it not be more prudent to conduct a much wider pilot of virtual trials before we embed in legislation any permanency to such trials?

Yes, although it has to be said that that pilot would have to be done by the judiciary—it cannot be done by the Government. The format of court business and how it is run are decisions for the judiciary, although we have encouraged that. We are lucky that both Sheriff Principal Pyle and the Lord President are keen for innovation to happen. Such a pilot would certainly require their consent and possibly their initiative. However, I agree with you that, if we want to have such trials, we need to have a stronger evidence base.

I have been asked why we have not included that in the bill. The reason is that virtual trials are not strictly speaking about Covid—there might be beneficial impacts with respect to Covid, but there are different purposes. I have seen the Parliament get quite annoyed about emergency or exceptional legislation that it does not consider to be directly related to the pandemic. If there is to be a more permanent change, it must be evidenced. We have to work through some of the differences and work with the judiciary. The Parliament can always decide for itself if it wants to make a fundamental change.

There could be more virtual trials under the direction of the Lord President and others, but, in answer to your question, we should have more of an evidence base before we move forward on the matter.

That is helpful. Just to clarify, you are saying that nothing in the Covid legislation that we are talking about today will mean a move to a virtual trial being the default position, which could then be excluded on application for a physical trial. At the moment, all parties must consent and if all parties do not consent, there will be a physical trial. Will the legislation change that in any way?

I might ask my officials to make sure that I am getting this right, but it could change without the legislation, and discussions are being held about how that might be achieved with the consent of different partners. The legislation that we are talking about will roll over what we have now. The default position is physical courts. Jeff Gibbons will correct me if I am wrong.

Sheriff Principal Pyle’s report was about whether to introduce into the legislation the presumption that we would underpin the practice note that has been supporting the pilot to date. Further consultation is needed because that would have a broader impact and, as I said earlier, we need to look at future proofing the legislation to some degree. The provisions in the bill will not change anything that was there previously, but we have an eye on the ask in Sheriff Principal Pyle’s report around a future change in legislation, and we would need to consult on that and bring forward an evidence base to support it.

On a technical level, therefore, the provisions are an extension of temporary powers. Is that extension time limited or permanent?

They are long extension provisions, and 2025 is the stop-gap point.

That is helpful. I am all for consultation, as the cabinet secretary knows.

Some of the other issues raised were about the practicalities. We have heard criticism of how some business has been conducted virtually or electronically. The main gripe from the defence sector seems to be about the inability to work one to one with an accused—the inability to sit with them in the same room and counsel them appropriately. Has that concern been taken on board? There seemed to be much disagreement among the members of the earlier panel about how much of a problem that is for solicitors or the bar, who seem to think that the whole thing is just an unmitigated disaster, according to the evidence that has been given to us. On the other hand, other witnesses seem to think that it has been an unmitigated success.

I do not know where the reality sits; it seems to be one witness’s word against another. Where does the Government think the reality sits?

Your starting point was to ask whether we are listening to those concerns and taking them seriously, and we are. That speaks to the point about improvement that I made to Rona Mackay, which was that we should listen and see whether we can achieve agreement.

However, you are absolutely right that, even among defence solicitors, we see the extremes of view that you mentioned. We are not just getting different views from witnesses from different organisations; different points of view are being expressed within, say, the Law Society or the bar associations. We want to listen to see whether we can help with that. If those are the concerns of the people on the front line who are trying to be as effective as possible for their clients, we have to listen and see whether there is a way of overcoming them. If business is all virtual, it is hard to see how we could do that, but there might be exceptions.

The Government is therefore willing to listen to possible remedies, and we have a lot of good people in Government who might be able to help us to find solutions in tandem with our justice partners.

11:45  

We are very aware of the differing views about the success or otherwise of the approach, although some of that is anecdotal and not supported by much evidence. Those concerns are clearly coming through, and the courts respond accordingly. We understand that they have addressed some of the concerns that have been raised—for example, through adjournments or whatever else is required.

We are not entirely sure about the level of the concerns, to be perfectly frank. That is part of the evidence base. Consideration of the extent to which those concerns came with the early introduction of virtual proceedings and the extent to which they continue is part of the on-going evaluation to make sure that, if people feel disengaged from the process, that is addressed and minimised.

On the flip side, we have had a really positive and evidenced response when we have engaged with disabilities groups, which see the digital adoption by the court service as something that has enabled their greater inclusion in the justice system. Many of them had been pushing for that for a number of years, and they were quite surprised that it finally came round because of Covid-19.

There are evidenced positives but, equally, we are well aware that there are on-going concerns. That is another reason to have an extension before we look to do anything permanent.

I will add something that might help Mr Greene in relation to that. The Government is not just listening and eager to act to see whether we can get agreement. If additional resources are required to help that process, given the impact that it has, particularly on defence lawyers, we will be willing to look at that as well. We are keen to do this for the reasons that Rona Mackay mentioned, but also, of course, because it will help us in addressing the backlog. We stand ready to support that if we can.

You have pre-empted my last question—thank you, cabinet secretary. On resource, which is linked to funding, are you satisfied that the Crown, the defence sector, all the stakeholders that are involved and the SCTS have sufficient people, places and money to clear the backlog by 2026? Given the evidence that we heard from the previous panel, it appears that there are significant pressures in processing all aspects of cases, from people being charged right through to court disposals. At every stage, there are new and additional pressures. What is your level of confidence that the backlog will be cleared in four years, which is already a long time?

It is worth saying at the start—Mr Greene will understand this, but others who are listening might not—that we are not saying that somebody who has a court case coming up now will have to wait four years for it to be addressed. However, the backlog itself will take four years, in some cases, to be addressed.

I have that confidence based on what the partners that you mentioned, including the Crown Office and the court service, tell me. They have given me the same dates that they have given the committee, and we have analysed them and explored them at some length. Within that, however, there is willingness on everybody’s part to look for other innovative ways in which we can address some of the issues that might stand in the way of a quicker throughput of cases.

Going back to Mr Findlay’s question, I note that we come up against some hard blocks that we will not be able to overcome. Given the number of people who are involved in the process and are delivering the service, there is only so much that we can do through all the different courts that we have mentioned.

I have that confidence given what I am told by justice partners and the discussions that we have had with them, but I fully expect that we will have to find further innovations along the way to make sure that we achieve it.

Good morning, cabinet secretary—it is still morning. A couple of months ago, or it might have been more than that, the committee met some vulnerable witnesses who had been through the court system, and we heard the harrowing experiences of witnesses and victims—in some cases, alleged victims—of some of the most harrowing offences, which you will know about. The committee committed to making sure that their experiences, although they were given to us privately, would be fed back when we got the opportunity to do so.

On that basis, I want to go back to an earlier part of our discussion when we talked about the evidence that we heard from defence lawyers last week about needing to see the accuser and interpret body language. We have heard that, if people who had experienced such offences presented as confident and capable, things went against them—or, at least, they felt that they did—and that the same happened if they broke down.

It is worth highlighting that context to indicate why I—and, I know, other members—support a move towards having more remote hearings and ensuring that as many vulnerable witnesses as possible do not have to be present in court. The previous evidence session was really good, as it confirmed that the court system would still have the power to have hearings in person if that was appropriate for all parties.

You probably answered the main part of my question in your opening statement and in your responses to my colleague Jamie Greene, but what I want to know is how much the proposed legislation is actually needed to let us move towards a more remote system that protects vulnerable witnesses, particularly in the most high-profile domestic abuse cases. Does the Parliament need to pass the bill to help us meet that objective?

The bill will not move things forward as far as virtual trials are concerned; those things will continue on the current basis and according to the default positions that have already been mentioned. However, as I have said, we will want to look at whether there would be other legislative vehicles for doing that, once we have carried out the consultations and the work with partners.

It is not for me to intrude on how defence representatives prepare very vulnerable witnesses, and I would not dismiss their view that they need to be able to talk directly to their clients. Indeed, I would think that those clients would want to have confidence in their legal representatives, and perhaps a personal meeting would be crucial in that respect. In any case, in the bill, we are seeking to extend the timeframe for doing what we currently do with virtual trials, and any further or permanent extension would come through other means after a due process of consultation. There is therefore no change in that respect, if that is what you are asking about.

Yes—thanks a lot. I have to say that the previous panel, who were from the Crown Office and Procurator Fiscal Service and the courts, indicated quite strong support for the bill. I do not want to step on Katy Clark’s toes here, as I am sure that she will go into this but, when I asked the previous panel about the progress that they had started to make, their answer seemed to be that there had not been as many virtual trials as we had expected throughout the pandemic, but that there was a clear desire to move in that direction. The previous two witnesses felt that the legislation was needed to allow us to do that. I suppose that I am just following up with you the question that I asked them, but I think that you have answered it.

I should add that, as I have said, we want to examine how we increase the evidence base. I think that Mr Greene asked about pilots and so on, but we would need the support of not just the Crown Office and the courts but the judiciary—and the Lord President in particular—in advance of our introducing any such legislation. If I may say, the Lord President is keen for innovation to happen, especially in relation to digital technology, and I am confident that he would be eager to help in that respect, but he would have to give permission for any further extension of the current basis for virtual trials or any pilot beyond what has been done already. However, you can see from Sheriff Principal Pyle’s report that there is an eagerness to examine this matter, and we would certainly be responsive to such a move.

I have just a short question. On your comment that this is a decision for the judiciary, can you confirm that if the Government felt that virtual trials at summary level were successful and wished the change to be made permanent you would come back with primary legislation?

Yes, and I think that I have said so already. That would not happen through the bill, which relates to the pandemic, but we are actively involved in that dialogue with the judiciary. There are two routes for doing it, one of which is a practice note from the judiciary. However, that would take things only so far, and I think that it is fair to say that the judiciary’s preference would be for primary legislation.

In the budget, the Scottish Courts and Tribunals Service received £10 million less than it requested. Is that consistent with dealing with the backlog with the urgency that is required?

We have had a number of discussions on that. It is probably true to say that different parties across Government and, perhaps, across society have received less than they might have hoped for, but that is the nature of the budget and the cuts that have been made to it. We have now had about 10 years of austerity, which, of course, has led to pressures building up that we have tried to respond to.

We worked closely with the courts service on the budget. I should point out that the Crown Office negotiates its budget separately with the finance secretary, so it is for that organisation to answer any such questions, but I am confident that the budget, despite our constrained means, will be more than sufficient for the service to do as it intends, not least in relation to the backlog.

I am watching the time, so we will now move to questions on time limits and then come back to the issue of early release. I call Jamie Greene.

Please give me a second, convener—I was expecting to ask questions on early release, but I will do it in that order.

I do not have a huge amount to ask about time limits, but I am sure that the cabinet secretary has already listened to some of the concerns that have been expressed on the issue. In the previous evidence session, I reiterated the need for limits to be extended to ensure that cases do not expire or time out in any way. No one wants that to happen. However, there is concern about the length of time and the possibility that, because of the backlog, the limits might be permanent rather than temporary. Why might you need a long-term power to extend time limits, given that the proposed limits go way beyond anything ever experienced in the Scottish legal system and, in some cases, beyond international norms, standards and laws?

That is one of the most serious powers that we are looking to extend. I have not come to that conclusion by myself—we have had strong representations from justice partners that the move is necessary to deal with the pandemic situation that we find ourselves in. Of course, the power contains certain safety valves. For example, anyone who is held on remand for longer than would normally be the case is able to challenge that, as can others.

We do not want to extend the power beyond what is absolutely necessary because, as I would acknowledge, the issue relates to fundamental questions of people’s right to liberty. We think that the move is absolutely necessary just now with regard to people on remand, but there are, of course, other time limits, some of which go in the other direction. For example, people can get longer if they are due to appear in court but cannot do so because they have contracted Covid. Given that, according to yesterday’s figures, 11,500 people in Scotland contracted Covid, that is not a theoretical possibility.

This is about ensuring that we make the justice system work and that people are safe. In summary, I would say that we recognise that these are substantial and profound powers that we do not want for any longer than is necessary, but we continue to believe, not least because of the representations that we have received from those in the justice system, that they are necessary. I realise that it would be for her to answer this, but the Lord Advocate, who is the person charged with guaranteeing people’s rights, believes that the move is necessary, too.

I do not know whether my officials have anything more to say about the issue.

As was highlighted in the previous evidence session, the measure is more about finding more time to spend on cases rather than on procedural matters. That is a key part of the approach. As the cabinet secretary has outlined, that is why the powers are not being made permanent—we are seeking to extend the powers for as long as they are required to deal with the backlog.

So you deem the power to be proportionate. When will it expire? Will it be in 2025, as set out in the sunset clause?

Yes. All of the provisions are based on that. The annual review will allow us, if you like, to stocktake, assess and evidence what has been delivered and to decide whether the powers are required from that point onwards.

It will not need the annual review. Even in advance of an annual milestone, it is possible for the Government to decide that the powers are no longer needed and, if the committee thinks that the situation has changed sufficiently, it can request that of the Government.

12:00  

On 21 March, most, if not all, Covid-related emergency measures will be relaxed in Scotland, so why do ministers need another two and a bit years of powers to extend time limits other than simply as a result of the backlog? The power is not necessarily directly related to health emergencies; it is simply a means to the end of clearing the backlog and ensuring that cases do not time out. That is a fair criticism.

I do not wholly agree with that. The backlog is a direct consequence of the pandemic. Therefore, we can legitimately try to address it through the powers. I have said before that virtual trials would have a beneficial impact on the backlog but that is not the principal reason for wanting to pursue them. The powers that we are discussing are being taken to address the Covid situation. That includes the backlog. It is legitimate to do that.

On early release, exactly how many people have been released earlier than the current statutory automatic early release? What was the nature of their term in prison? I refer to the average length of sentence and the types of offences for which they were in prison. If, as we heard from another witness, they tended to be people serving 18 months or less, I presume that they would have been released at nine months anyway, so how much of their sentences did they serve before they were released early?

That would vary from prisoner to prisoner but I will ask Jennifer Stoddart whether she can give those figures. I am sure that they have been reported to Parliament previously. I do not know whether she has them to hand.

We have used the power once—in May 2020—as you know. That released 348 prisoners. I can quickly go through who that did and did not cover if that is of use to you.

Perhaps, for the benefit of time, you could write to the committee in advance of our preparation of the stage 1 report and we can analyse the information. That would be helpful.

To go back to the previous answer on reoffending, I get the impression that there was an expectation that a cohort of the prisoners would reoffend anyway because of the length of their sentences and the fact that they had not been in prison long enough to be rehabilitated, for want of a better word. If you knew that there were such high rates of reoffending in that cohort of short-term prisoners, why were they released early, cabinet secretary?

I was not saying that we had an expectation that those people would reoffend. If you look at the incidence of reoffending, you will see that around 40 per cent of those prisoners went back to custody. However, that was not all for reoffending. As I mentioned, sometimes it was for reasons other than reoffending.

My point was that the average reoffending rate for those on short sentences is between 50 and 60 per cent. Therefore, although there was not an expectation that people would reoffend, the reoffending rate of 40 per cent is not surprising. In itself, that is an argument for more effective community justice disposals that allow us to deal with that reoffending. We know from the evidence that we have that such disposals reduce the likelihood of reoffending.

It might have been useful to have a reminder of the categories of prisoners who were released, how close they were to the end of their sentences and how long the sentences were. I think that the sentences were 18 months or less.

It is the case that people who have been released from prison sometimes reoffend. The incidence is higher when those people have been on short sentences. It is legitimate to say that the Prison Service has the time to deal with an offender if they are in prison over a greater period. When those people were sentenced, it would not have been expected that they would be released early. It happened because of the pandemic.

That does not answer the question. The question was: if you knew that there was such a high rate of reoffending, why on earth was it considered sensible to release those people even earlier than automatic early release, which is already debatable, at 50 per cent of their sentence?

If your question is, “Why did you release those prisoners?”, the answer is that we did that because of the pandemic. We deemed the consequences of not doing it to be unacceptable, from the point of view of the constraints that it would put on our prisons and prisoners because of Covid, and from the point of view of the public safety of prisoners, prison officers, prison staff and people who visit prisons. That is why we released them.

What about the public safety of the public, as opposed to the public safety of prisoners? Was that not taken into account?

Of course it was taken into account. That is why Parliament debated the measure and agreed to it—I think that it might have done so unanimously; I am not sure.

Covid has meant that Governments and others have had to balance harms. Parliament decided that releasing those prisoners was the better option to take.

Why do you need to have the power in future?

Because the same situation could arise again in relation to Covid. We think that that is justifiable only up to 2025, if we are talking about Covid.

Why we would want to have the power on a permanent basis is a separate question. The same question could be addressed to the UK Government. I would imagine that its response would be that it is not always possible to anticipate whether it might be required to deal with a public health emergency or for some other reason. Different answers could be given as to the need for that.

The reason why we want to have the power in the current circumstances is that we do not yet know what the route path of Covid or its variants will be.

We are just about there. Russell Findlay has a final question on this topic, after which we will cover fiscal fines.

I want to pick up on the issue of the reoffending of those prisoners who were released early. We know that the rate was about 40 per cent. I think that you said in answer to Jamie Greene that the regular reoffending rate is about 50 to 60 per cent, but Scottish Government figures from 2018-19 show that the reoffending rate within a year was just under 30 per cent. If that is correct, the reoffending rate for those prisoners who were released early is significantly higher than that.

Could you clarify where the 50 to 60 per cent figure comes from? Does it relate to a different cohort? Could you explain the discrepancies?

Part of the explanation for that might be that the 30 per cent figure applies to all releases from prison. I do not know the detail; I have not seen that. It might be useful to hear from Jennifer Stoddart about whether the 40, 50 and 60 per cent figures, and even the 30 per cent figure, are correct.

The 60 per cent figure—it is actually 61 per cent—applies to those prisoners who serve a sentence of three months or less. The 50 per cent figure—it is actually 53 per cent—applies to those who serve a sentence of three to six months.

To pick up on a point that Mr Findlay and Mr Greene made, public safety was a key consideration when we determined who would be released. That is why there are particular statutory exclusions in the bill, which are for more serious offences. Under the regulations, it was those prisoners who were serving a sentence of 18 months or less and those who were within 90 days of their release who could be released early.

The reason why a sentence of 18 months or less was selected as a criterion is that the longer a sentence a prisoner is serving, the more serious their offending is likely to have been. We also worked closely with victims organisations. As a result of their feedback, anyone who was convicted of a domestic abuse offence or aggravation under the Domestic Abuse (Scotland) Act 2018 or who was the subject of a non-harassment order was also excluded.

Public safety was a key consideration in determining who would be released. As the cabinet secretary said, early release was needed because, at the time, there was particular pressure in the prison system. There was a need to have capacity in the system to enable people to shield and to have single-cell capacity. The decision was not taken lightly. Careful consideration was given to public safety questions.

The Scottish Prison Service told us that none of the prisoners who were released early was tested for Covid and that that was done to protect the public from Covid. If the same situation were to arise again, would that change?

The prisoner release took place just before I took up office. One of the first things that I had to do on coming into office was to read voluminous tracts on public health and the framework that had to be applied to prisons.

I think that it is true to say that prisons will have learned from that. They have heard that question—it is not the first time that it has been asked—and I am sure that we would want to give the matter further thought. I think that, in some cases, there were good reasons for not testing prisoners, but each time we do something new, we want to learn from previous experience.

As members have no more questions, I thank all our witnesses for attending.

We will take a short break to allow for a changeover of witnesses.

12:09 Meeting suspended.  

12:14 On resuming—