Meeting of the Parliament

Meeting date: Thursday, January 16, 2020

Official Report 1012KB pdf

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Portfolio Question Time

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Justice and the Law Officers

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Prisoner Accommodation (Gender Recognition Certificates)

To ask the Scottish Government whether acquiring a gender recognition certificate gives a prisoner any new legal rights regarding the decisions that are made by the Scottish Prison Service about their accommodation. (S5O-04001)

Acquiring a gender recognition certificate does not and will not give a prisoner any new legal rights regarding the decisions that are made by the Scottish Prison Service about their accommodation.

Decisions as to the most appropriate location to accommodate transgender people are made on an individualised basis after careful consideration of all relevant factors, including risk. Such decisions seek to protect the wellbeing and rights of the individual and the welfare and rights of others around them, including staff and inmates, in order to achieve an outcome that balances risk and promotes the safety of all.

No changes are planned to that part of the process as a consequence of the proposed reforms on how a person can obtain a gender recognition certificate.

The justice secretary might be aware of serious concerns among some people who have direct front-line experience of working with women prisoners about the implications of the proposals for changes in the gender recognition certificate process. Does he agree that women prisoners are among the most vulnerable women in our society? What reassurances can he give that a full assessment will be carried out of the impact of any changes to the rules on prisoner accommodation on women prisoners and their wellbeing? Is he willing to meet women who have direct experience of working with female prisoners, who will be able to underline the seriousness of the concerns, ahead of final decisions being made on the Scottish Government’s proposals?

These are, of course, sensitive matters. I appreciate that the debate is a live one, so we should stick to the facts.

I hope that I can reassure Johann Lamont and anybody else who has concerns—women on the front line and others—that proposed reforms to obtaining gender recognition certificates would not make a material difference to the existing process, because they do not give any additional rights in relation to the decisions that are made on transgender prisoners.

I again reassure Johann Lamont that a decision about where to accommodate a transgender prisoner is made based on the balance of risk and safety for inmates. A decision on a transgender woman wanting to move to a female prison involves consideration of the welfare of the female prisoners in that prison. Consequently, some such moves have been refused by the Scottish Prison Service because they would have caused risk to the physical or psychological wellbeing of female inmates.

This year, the SPS is reviewing the process and protocols that are in place for such situations. I have told the SPS that it should consult MSPs on the matter: Johann Lamont is welcome to contribute to that consultation.

I call Kenny Gibson. You will have to be brief, because that was a long answer.

I have been advised by a recently retired governor that there is at least one female prison in which anatomically male prisoners and female prisoners are expected to shower together. Can the cabinet secretary advise me whether that is the case? If it is, what will be done to remedy the situation?

I do not know the answer to that question, although it is the case that transgender women are in the female prison estate. As I said, some requests by transgender women to transfer to female prisons have been refused because of the risk that would be posed to women in them.

Of course, prisons have in place processes to protect women. I would be surprised if the situation is as Kenneth Gibson has suggested, but I will look into his concerns. As things stand, processes exist to ensure that we protect vulnerable women in the prison estate. That will not change, regardless of the gender reforms that the Government chooses to bring forward.

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Women’s Community Integration Unit (Highlands and Islands)

To ask the Scottish Government what plans it has for a new women’s community integration unit in the Highlands and Islands. (S5O-04002)

In June 2015, the Scottish Government announced ambitious plans for the future of the female custodial estate. Those plans include a new 80-place national facility to be built at Cornton Vale, and up to five new community-based custodial units, each accommodating around 20 women at locations across Scotland. The Scottish Prison Service is working towards opening the new national facility and the first two CCUs in Glasgow and Dundee by the end of 2021.

The custodial arrangements for women from the Highlands and Islands will remain as they are. Decisions on the next phase of CCUs will be dependent on the risk profile and community locations of the women in custody, as well as on the lessons that are learned in bringing the first phase of CCUs into operation and how that impacts on the design and operation of the remaining CCUs.

I thank the cabinet secretary for his answer.

In 2019, 24 women from the Highlands and Islands and Moray were in custody, serving their sentences in HMP Grampian or Cornton Vale. As the cabinet secretary knows, distance from families affects relationships at home and behaviour within the prison environment. Will the cabinet secretary consider a community integration unit for the Highlands and Islands for women who are on short sentences, remand and community integration, or who are nearing the end of their sentences?

David Stewart is aware that the reason why a specific facility for women no longer exists in HMP Inverness is low numbers. It is not possible or justifiable to provide a meaningful regime for women there. However, he makes the important point that the other locations of the community custody units have not been decided. I suggest to David Stewart that he make representations to the Scottish Prison Service. If he thinks that there is justification for a community custody unit in the Highlands and Islands, he is free to put that case.

In 2018, it was reported that the Dundee women’s unit would open in late 2020. However, Audit Scotland reports suggest that it will not open until 2021 or 2022. Is the cabinet secretary in a position to give further certainty?

I will reflect carefully on what Audit Scotland has said. Liam Kerr is aware that there have been challenges in the market, particularly in the construction market. Therefore, we will reflect carefully. When I have an update on timescales, I will make sure that Liam Kerr knows about it.

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Prisoners (Early Release and Breach of Licence)

To ask the Scottish Government how many prisoners were released early in 2018-19, who had previously been released early and recalled to prison for breach of licence. (S5O-04003)

The Parole Board for Scotland confirmed that, in 2018-19, of 441 individual prisoners who were considered at an immediate re-release hearing, 29 were recommended for release following recall. That equates to 7 per cent. In addition, of 313 individual prisoners considered at a first or subsequent review following recall, 23 were released. That also equates to around 7 per cent.

A freedom of information response that the Scottish Conservatives received from the Scottish Prison Service shows that 41 offenders were recalled to prison for breaking the terms of their release, but were then re-released on home detention curfew. In the light of that, and given the clear risk to the public as well as the need to maintain confidence in the system, what steps will the Scottish Government take to understand that issue?

There has been a significant amount of thought about and review of the home detention curfew aspect of electronic monitoring. Donald Cameron knows that, because his party rightly raised the issue in the wake of the tragic death of Craig McClelland.

There were two inspectorate reports, and Parliament debated and agreed changes to the home detention curfew. The home detention curfew is more stringent than it ever has been. We have gone from 300 prisoners being released to—this week—30 prisoners being released on home detention curfew. We have to be aware of the error terror, as it has been described, that exists about the regime. Nonetheless, we have a more stringent regime on home detention curfew.

I will continue to reflect on what more we can do to give the public confidence, but people can have absolute confidence that, on the back of two independent inspectorate reviews and because of the changes that we have made to home detention curfew, we have a more robust system in place.

On home detention curfew, why was there a significant breach of parliamentary rules? When the order was laid, Parliament was given only three days’ notice and not 28 days. Parliamentary protocol was therefore treated with absolute contempt.

I was about to call James Kelly again. I do not know why I was going to do that. I call the cabinet secretary.

I am not offended in the slightest by that comparison, Presiding Officer.

I really disagree with the premise of the question and how James Kelly asked it. I will, of course, appear in front of the Justice Committee to explain exactly why that was done, but any objective observation of the figures shows that, towards the end of the year, there was a spike in people requiring electronic monitoring. Much of that is, of course, outwith my control. I do not determine who has electronic monitoring: it is decided by a range of operators independent of the Government.

I could have chosen to wait until we came back from the Christmas recess before I laid the order, but that would have created a potential risk. Some people might have been released on electronic monitoring by court order, but there might not have been enough stock, or it might have been that the stock could not have been used because the Scottish statutory instrument had had to wait until after the festive recess. I chose to lay the instrument before the Christmas recess. That is not ducking and diving in respect of parliamentary scrutiny.

I will appear at the Justice Committee next Tuesday. No doubt James Kelly will be at that meeting and will ask me questions on the subject. Not only that, but 40 days of parliamentary scrutiny will still be available, in which Parliament will be able, if it so wishes, to choose to annul the instrument.

I completely reject the premise of James Kelly’s question. If I had taken the route that he has suggested, we might well have been unable to use electronic tags, in which case he would have been the first to demand that I come before the Justice Committee to explain how on earth we had got ourselves into that situation.

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Court Buildings (Crime)

To ask the Scottish Government what action it is taking to reduce crime in and around court buildings. (S5O-04004)

Decisions on how to allocate police resources are a matter for the chief constable, but Police Scotland continues to work with partners to ensure that there is appropriate provision to keep the public safe. More than 100 full-time officers are deployed across the Scottish court estate, and in the event of incidents occurring outwith court premises, resources are deployed according to how the call is prioritised. The number of officers who are deployed at court buildings is kept under review, and where intelligence suggests that there may be potential for unrest, such as during high-profile cases, action will be taken to ensure that appropriate resources are deployed.

The Scottish Courts and Tribunals Service works closely with Police Scotland to assess any risks and take appropriate measures. Police Scotland has recently taken the step of formalising the function of police officers within court buildings and it has signed a formal memorandum of understanding to that effect with the Scottish Courts and Tribunals Service.

I thank the cabinet secretary for that response, but figures that have been released by the police in response to a freedom of information request show that, in just the previous financial year, police attended nearly 400 incidents at sheriff or justice of the peace courts, including 30 in Aberdeen and seven at Peterhead. Over a quarter of those incidents resulted in a crime being reported.

Presiding Officer, if we cannot keep people safe when they are attending court, how can the public have confidence in the justice system?

I do not think that you are asking me that question. I call the cabinet secretary.

People can have confidence because we have one of the lowest crime rates in 40 years. Violent crime has fallen by 46 per cent over the past decade, and they can have confidence in that. They can also have confidence because we have more than 1,000 additional officers on the street compared with the number that we inherited, which is in stark contrast with the position in the rest of the UK.

Police Scotland will, of course, attend incidents that take place where that is appropriate. Last year, 200 items were seized from people who were trying to make their way into city-centre court rooms, but I note that that number was down from 1,000 the year before. The number of knives that were seized at courts went down from 80 to 35 last year. The formalising of the relationship between Police Scotland and the Scottish Courts and Tribunals Service is clearly paying dividends.

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Sexual Offences Guidelines

To ask the Scottish Government what progress the Scottish Sentencing Council is making with the development of multiple guidelines on sexual offences. (S5O-04005)

The Scottish Sentencing Council is an independent advisory body. I spoke yesterday with Lady Dorrian, in a very constructive and productive meeting. She advised me of a range of scoping and preparatory work that had been carried out on the guidelines, including stakeholder engagement, data gathering, court observation and a review of available evidence.

The council commissioned a national survey on public perceptions of sentencing, which was published on 2 September 2019. A sexual offences working group committee has been established, which will lead on the development of the guidelines, including recommendations to the council as to their scope, content and approach.

It is a complex and sensitive area, which requires careful consideration, an evidence-based approach, and appropriate levels of research and consultation. It is vital that the guidelines be fit for purpose.

Sentencing is dependent on the definition of the offence. I thank the cabinet secretary for his recent letter, following my question on violence during consensual sex. In that letter, the cabinet secretary confirms that the police and the court do not provide information on cases involving violence during what began as consensual sexual activity. Will he explore whether there is a way to extract such data, where the defence of consent is used in such cases, and will he consider commissioning research into the level of violence in consensual sex in Scotland?

I thank Claire Baker for raising that issue. I reiterate what I said to her previously, and also what I said in the letter, that it is my understanding that “consent” can never be a justification for assault, let alone for murder.

She has asked me to consider a couple of things in terms of the data available, and whether we can extract it. I will speak to stakeholders about that.

She has also asked me to reflect carefully on whether we could commission research, and I promise her that I will take that away: I will speak to my officials and to stakeholders to see whether we can do that. There is already quite a programme of research, as things stand, but nonetheless I will give Claire Baker’s requests careful consideration and let her know the outcome of those considerations.

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Inverness Justice Centre (Access and Communication Provisions)

To ask the Scottish Government what access and communication provisions will be made in the new justice centre in Inverness for people from remote rural communities. (S5O-04006)

Although the Inverness justice centre will not replace local courts in the Highlands and Islands, it will allow people from rural communities to access specialist court services for children and vulnerable witnesses, and will enable a wide range of justice and third sector support organisations to enhance their support to rural communities through improved facilities and access to digital technology.

The flexible use of space throughout the centre, and the wide access to digital technology and videolinks, will help those organisations communicate with and support those people in remote rural communities who already use their services, and will hopefully encourage others to access services.

The justice centre will also incorporate a dedicated evidence and hearing suite, supporting the legislative presumption that children in high court cases, and through time all children and adult vulnerable witnesses in all serious criminal cases, will no longer attend a criminal trial.

I welcome that news.

It can be particularly difficult for my constituents who live in remote rural locations to access justice, particularly for those who have additional access needs. Does the cabinet secretary agree with me that technology and innovative thinking must be applied to ensure that the new justice centre fully serves the needs of all those in the north?

Yes, I agree with Gail Ross; she has an exemplary record in raising such matters concerning not only her constituents but rural communities more widely. I can give her an absolute reassurance that technology is central to the working of the justice centre. The flexible use of space, and wide access to digital technology and videolinks, really help organisations communicate with and support people in remote and rural areas. The evidence and hearing suite, with its own discrete entrance, which is really important, will provide a specially designed child-friendly hearing room, allowing for a trauma-informed approach when prerecording evidence. If Gail Ross or any other member requires further information in that regard, I would be more than happy to provide more detail in writing.

We know the importance of family contact, and the particular difficulties faced by people living in the islands. Last year, Families Outside gave the Justice Committee evidence that overcrowding in prisons is making it very difficult to facilitate video visits, but that other models of facilitating that sort of contact have been successfully trialled, elsewhere in the United Kingdom and internationally. Will the cabinet secretary undertake to discuss with the Scottish Prison Service and the third sector ways in which video visits can be facilitated for not just those from the islands, but other rural areas too?

Cabinet secretary, if you would be brief, it would help us to get the other members in.

In short, I agree with Liam McArthur, and I will take those conversations forward with the SPS. I have tremendous respect for Families Outside. I recognise the issue that Liam McArthur raises, and if there is any way in which we can help with family contact, which helps with rehabilitation, I will be more than happy to explore that further.

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Parole (No-body Murder Cases)

To ask the Scottish Government whether it will consider specific measures for parole in no-body murder cases. (S5O-04007)

I recognise how traumatic any murder must be for the families that are involved, but that must be particularly the case when the body has not been disclosed.

In relation to Gordon MacDonald’s question, I intend to bring forward changes that will explicitly state that, for the very first time, the Parole Board for Scotland may take into account when determining release the failure of an individual to disclose the location of a victim’s body.

I thank the cabinet secretary for his answer and for the discussions and meetings that he has held with me and my constituents about how to address the issue.

Will the cabinet secretary outline what further measures the Scottish Government has in place to ensure that the families of murder victims receive the support and protection that they need?

I thank Gordon MacDonald for his campaigning on the issue, along with families from his constituency who have suffered the most severe of losses. In meetings with those families, I have often been struck when those who are involved in cases in which the body has not been located have told me that they are retraumatised day in, day out and that they have no sense of closure.

Therefore, I am pleased that, as I said, the changes will mean that, for the first time, it will be explicitly stated that the Parole Board may take into account the non-disclosure of a body.

On other available support for such families, we have helped to fund a support service for families bereaved by crime, which is led by Victim Support Scotland. I am more than happy to write to Gordon MacDonald with more details about other support. Of course, families that have already been bereaved by crime can access that service, so I encourage any MSP who has such a family in their constituency or region to make use of that service, if appropriate.

We have to move along quickly. I will take question 8, but it all has to be brief.

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Police Scotland (Digital, Data and Information and Communications Technology Strategy)

To ask the Scottish Government what progress is being made with the Police Scotland digital, data and ICT strategy. (S5O-04008)

The delivery of police ICT projects is a matter for the Scottish Police Authority and the chief constable. Police Scotland continues to make good progress on a number of ICT projects that are key to delivering on its DDICT strategy and which support the transformation of the service.

The introduction of mobile devices to front-line police officers is one of those projects. It is scheduled for completion by 31 March 2020. The project has received an overwhelmingly positive response, with some officers suggesting that it is the most positive piece of enabling technology in the past decade.

Last year, Police Scotland confirmed to the Justice Committee that the Scottish National Party Government had underfunded its digital strategy, with the result that crucial equipment is not being rolled out quickly enough.

With considerable extra funding coming to the Scottish budget, thanks to the Barnett consequentials from United Kingdom Government investment, will the SNP now properly fund the strategy and finally move our police into the 21st century?

I would love Alexander Burnett to write to me after portfolio question time and tell me the exact details and amounts of consequentials that are coming to Scotland. He will forgive me if I have a healthy degree of scepticism about the amounts of money and consequentials that are being bandied about by the UK Government.

This financial year, we increased Police Scotland’s capital budget by 52 per cent. Of course I hear the calls to examine and explore whether the capital budget should be increased further, and I will give serious consideration to making that case to the Cabinet Secretary for Finance, Economy and Fair Work. I am sure that when Alexander Burnett’s party sits down with the finance secretary in budget negotiations, they will bring the issue along as part of the negotiation.

I note that, as well as what the Scottish Government can provide in finances, it would be very helpful if the UK Government gave back the £125 million that it stole from Police Scotland in VAT.