 I welcome to the third meeting of the criminal justice committee in 2023. There are no apologies this morning. Before we start our meeting today, I want to pay tribute on behalf of the committee to the firefighters who were tackling the blaze in Edinburgh earlier this week at the former Jenner store. I just want to wish all of those who have been injured and their families a speedy recovery. Our thoughts are with them at their families and the staff of the Scottish Fire and Rescue Service. Our first item of business today is an oral evidence session on the bail and release from custody Scotland bill. We've got two panels with us this morning. Our first panel is Mr John Watt from the Parole Board for Scotland, Mr Mark McSherry from the Risk Management Authority and Jim Kerr interim deputy chief executive with the Scottish Prison Service. Welcome to you all. I refer members to papers 1 and 2. I intend to allow up to 60 minutes for this session. As time is tight, I'm going to go straight to questions. If, as ever, I can ask for questions and responses to be fairly succinct. I'd like to, first of all, come to yourself, Mark, in relation to the release from prison, prison part of the bill, part 2 of the bill. In respect of certain higher tariff offenders, we know that risk assessment and risk management is already well established and in place through, for example, map arrangements. I'm just wanting to ask for your views on how the provisions within the bill may impact on existing risk management and risk assessment arrangements that are already in place. So, over to you. Thank you for inviting us to the committee today. In terms of the long-term population, we work quite closely with our colleagues in the Scottish Prison Service in relation to how the integrated case management process and risk management process have developed over the years. We have a particular interest in certain aspects of the provisions, particularly in relation to the release plan. As you may know, for the order for lifelong restriction, there is a requirement that any individual who is subject to that sentence must have an approved risk management plan, which must comply with our standards and guidelines for risk management. From our perspective, there is an opportunity to look at some of the areas within risk management and prison to consider how we can streamline, particularly in relation to ensuring one of your previous witnesses referenced one plan for one individual about how we reinforce having a single plan for any individual who has been considered for release. From our perspective, we believe that that should be the risk management plan for those who pose a risk of serious harm, but the bill offers an opportunity to consider the application of other planning arrangements that might deal with other longer-term prisoners, as well as some of the short-term cohort as well. Thanks very much for that. In follow-up to that, there is the potential for there to be perhaps a significant resource implication around that. What are your views in relation to how that resource requirement might be and what consideration the Scottish Government should be giving to how that is put in place? Obviously, our colleagues can speak to the resource requirement for Scottish Prison Service, as well as prison-based social work. I think that our view would be considering the resources that are required for that bill. That might be the opportunity for us to consider other areas of efficiency within the prison system. I mentioned risk management planning. An individual can be subject to a number of different plans within the prison, up to seven different plans. I think that there are opportunities there to look at how we ensure not just that there is a single plan, but also the aspects of risk assessment that are duplicated within prison could be streamlined in order that the decision makers within the risk management teams have clear and meaningful information that describes the pattern, nature, seriousness, likelihood and where there is a risk of serious harm, the imminence of that behaviour. Will you bring in, Jim, just to follow up on any points that you would like to make just around the existing risk assessment and risk management processes that are already in place and what implications the bill may have on those? Thank you very much, convener, and likewise for the opportunity to provide evidence this morning. Mark Ruskell expressed the point that the intention that sits within the bill will not sit in isolation. There are standing arrangements in place in terms of progression through the prison system for people sentenced to long-term imprisonment. One of the things that we will have to do is revise our risk management team guidelines and consider the application of the process that would be conducive with ensuring that there is an amalgam between standing arrangements and the intention within the bill. In terms of detailed resource implications in that regard, I do not think that we are at that stage yet in terms of developing the operational protocols that would have to be in place to ensure that a suitable response was available. John, from your perspective, would you use anything that you would like to add on that? Nothing I would like to add on that, but I have some separate observations to make after saying thank you for inviting me. From the board's point of view, the significant clause in the bill relates to release on temporary licence. That can happen in two circumstances, one with the board's recommended release on parole licence or what it hasn't. Where the power lies with Scottish ministers to direct temporary release, we see no problems with this bill, no implications for us other than that we will have to provide some advice to the ministers. We are happy to do that. It is not a new principle and the board is well placed because of its expertise to do that. We do see problems, mind you, in relation to the other temporary release, and that is where the board recommends release on parole licence and then recommends release on temporary licence in the interim. When the board recommends release on parole licence, that decision is made. It will usually be made about six weeks before the parole qualifying date. That is the halfway point in the sentence when the release would take place. Having made the decision, the board cannot review it. There is no provision for the board to revoke that decision or look at it again at the moment. If the board were to make a temporary release decision also, and if, for example, the prisoner were to misbehave in the community sufficiently badly, the board recommended revocation of that temporary licence and recall to custody, Scottish ministers would normally do that. I have never come across a situation where they do not. When they do that, they are obliged to refer the case back to the board to consider a real release on parole licence. If the board were to consider a real release on parole licence and decide not to recommend release on parole licence, there are then two live decisions of the board extent, one the original one to recommend release and one the new one not to recommend release. That happens because the board cannot revisit its original decision. There is no power to do it, no statutory power to do it and nothing in the bill which would allow us to do that. Our suggestion would be that this bill should include a provision which allows the board to revisit a recommendation to release on parole licence where there are changes in material circumstances between the recommendation and the release date. Otherwise, we will have this major problem with two live decisions. It is less significant after the parole qualifying date because if the board declines to recommend release, it fixes a review period of say 12 months and it will look at the case again 12 months down the line. Assume for a minute that it recommends release on parole licence when it comes to the review and that takes place on a Wednesday before a long weekend. There are sensible provisions in this bill which would delay release to the following Tuesday. If, in the interim, there was a prisoner who was still in prison, had not been released yet, who misbehaved sufficiently badly, that SPS thought it relevant to report to the board, the board can do nothing about it. That was a serious piece of misbehaviour and assault or drugs or introducing drugs into the prison, misuse of a phone, that sort of thing. There is no way in which the board can revisit the release decision, even though it really should. That is a second example of the need for some provision in this bill to allow the board to revoke its decision where there have been material changes in the interim. At the moment, there is nothing to allow for that. Those are my major concerns. Otherwise, I have nothing to say about the provisions. They should all work well. No enormous resource implications for the board. I think that we can weave it into our day-to-day work. There may be some minor requirements, but nothing major. Those are the two big issues that I see and they impact on public safety. I know that members will probably come back to you with some more questions on that. I am just going to open it up to members now. Jamie, do you like to come in? I am happy to come back in later with some substantive questions, but I thought that timing-wise it might follow on nicely. Good morning. I heard every word you said, but I struggled to follow the flowchart of it in my head because it was a verbal flowchart. I wonder if you might help the committee by illustrating that, perhaps in writing to us, because I hear where you are coming from and I am trying to follow the flowchart of where you make decisions and where decisions are cut off times and so on. I will do that if that is what the committee wants. I would really appreciate that. I am sure that other members would as well. If you have spotted a gap in the proposed legislation and we can help to fill that gap in, I am sure that the committee would be willing to do so in some way or other. That is very useful and very helpful for feedback. I think that I wanted to ask a wider question to the parole board about that. I know that you say that the ministers already have the power to effectively overrule decisions that you make or to decide that a prisoner may be released. There is a perception certainly that this bill goes a little bit further than that. For example, measures that arose during the Covid pandemic, for example, where decisions were made at ministerial level to release prisoners, there was an explanation provided and an understanding around that, whether you agreed to it or not, so another matter. However, that bakes it into the system in terms of the new rules. I just wanted what your wider views were around that issue and whether you felt felt it appropriate or whether you were comfortable with it or not. If I may, are you talking about what I might describe as administrative release during a period of emergency? I am understanding and I am willing to be correct by our wise adviser that the provisions in this bill are nothing to do with the emergency legislation of pandemics. I think that there is some provision in relation to that. The wider point is that are those decisions best made by parole boards or by governors of prisons in the SPS or by ministers in St Andrew's House? There are a number of questions in there. I suppose that my first position would have to be that the board applies the law and the Government drafts a bill in accordance with its policies and sets them before Parliament. If Parliament makes the decisions, the board will apply the law. In relation to temporary release from custody, I have no problem with that at all because Scottish ministers do that on a regular basis for indeterminate sentence prisoners. They will release them into the community so that they can be tested in the community and they can gather evidence that they can present to a future board. Or evidence can be gathered to present to a future board hopefully to justify release, but very often not to do that. I have no problem with that temporary release provision. The board, in its response to the consultation—if I remember rightly, it might have been an earlier consultation—suggested that decisions on early release could confidently be taken by the board. They need to be changed in the law, of course, and that there might be some benefit in having an independent judicial body make that judgment deep, politicising it, if you like. The board also suggested, perhaps, that it might be involved in temporary release decisions in relation to, for example, first grant of temporary release, which is a requirement on Scottish ministers to approve Scottish Prison Service application. I will be corrected here to release a prisoner on home leave, for example. Being the chair of the board, I can see benefits in a judicial body making these decisions. It happens in other parts of the world—maybe some research can be carried out into that. It is a policy decision. You can have my personal view, which is that the board is well placed to make all of these decisions, because that is its business making risk assessments and decisions on release. Equally, Scottish ministers have a body of expertise also. It is a political decision. To that extent, as a judicial appointee, I would say that those are my views, but I will leave it to the politicians to come up with an answer on that. Is not that the inherent problem, though, is that when you leave open to politics and whatever one's politics, there is that risk that the judiciary and the executive should be arms-length apart and that politicians shouldn't be interfering in those decisions, or, indeed, to overruling decisions or to have any interference in those decisions to ensure the sanctity of that independence of the board? Politicians cannot interfere with the board. The board is an independent judicial body. It is a court for parole purposes, and nobody can interfere with this except the Supreme Court or the court of session. Our decisions cannot be overridden by a politician, subject to one minor exception, which is probably a reasonable one, and that is where Scottish ministers consider that it would be unlawful to follow a recommendation of the board. For example, if we said that we recommend release of this prison or two weeks before the parole qualifying date, it would be unlawful for the Scottish ministers to comply with that recommendation, that's a minor thing. It never happens. But politicians cannot interfere with the decisions of the court. I'll come back later, like other members. Thank you, Jamie Greene. Rowna, I think that you'd like to come in. It was really just very much in the same line of questioning as Jamie Greene. It was about a wee bit of clarification. It's quite difficult to follow. I mean, thank you for the explanation, but trying to get your head around how the process actually works is quite difficult. So are you saying at the moment that the board has the ability to basically change its mind to revoke a decision on temporary release? Are you saying that if the bill comes into place, you won't have that? The situation is this. The explanatory notes, if you read them explicitly, that if the board wishes to recommend revocation of a licence, it has to use provisions that have been in existence for many, many, many years. The board does not revoke the licence. The board makes a recommendation to Scottish ministers that the licence should be revoked in the prisoner recall to custody. I've never come across a situation where that has not been complied with. There's an argument that in the absence of unlawfulness, it's a binding recommendation, which is a nonsense, but there you go. That's the way it works. The board recommends that Scottish ministers revoke and recall. What happens then, though, is that Scottish ministers are obliged to refer the case back to the board—the prisoner is back in jail—so it can make a decision on whether or not the prisoner ought to be re-released. That will depend on a whole range of factors. I tried to keep the explanation simple and I've reduced it substantially, but it's a complex area of law. I forgot when your question was now. I'm trying to establish what difference the bill will make to the current process for that. The difference the bill will make is that it allows the board to direct temporary release on certain conditions if it recommends release on parole licence. It doesn't have that power just now. Right. Are you in agreement with that? Yes, I'm content that that's a reasonable proposal, because it allows for much better integration into the community if a prisoner can talk to social worker, addiction support, GP or whatever in the community before we get to the point of actual release on parole licence. However, the same problem arises, as I tried to explain earlier. If that prisoner doesn't take advantage of that, if we have to recall and revoke licence, the decision to release can't be reviewed, and that's where the nonsense comes in. It's a good provision subject to the ability of the board to be able to recall its decision on parole release. If we can't do that, we've got substantial problems and public safety could well be in danger because of it. To finish up, what's the average length of time of temporary release? Well, it's likely to be around about the six-week mark. We reckon that we'll consider release decisions about six weeks before the halfway point of the sentence, the pro-qualifying date, and that means that six weeks will elaps between the decision being made and the release date. That's not a long time to release somebody on temporary licence, but it's worthwhile because it allows the prisoner to hit the ground running when it comes to the actual release on parole licence. Sometimes there's a much shorter period in which case the board might say, well, we're prepared to recommend release on parole licence, but we don't see any point in also directing release on temporary licence, so the prisoner would just be released when the time came. Subject again to my comment about material changes in the interim. As long as there's a gap between the decision and the release, things can go wrong around my experience, probably well. The information that you get from the Scottish Prison Service, this bill doesn't change any of that. Is that interaction going to be the same? The interaction will be broadly the same. I suspect that social inquiry reports might change slightly. I don't see any huge problem with that though. Fundamentally it will be the same. It'll all be aimed at risk. Okay, thank you, convener. That's very much. Pauline, I think we'd like to come in. Thank you very much. Good morning, everyone. My first question was to you, Mark, just about. The committee has heard a lot about the provisions that would allow sheriffs to demand less people and there's a discussion around whether or not we need a definition of public safety. There's various viewpoints in that. I'm just not giving you a chance to talk about that, given that you are the body, which I presume is the expert on risk management of offenders. We put it more succinctly. We know that public safety is already a factor considered by the courts when deciding who should be billed and who should be remanded. Do you think that the bill gives it a more central role in decision making and also do you think that there is a need to define more clearly what public safety is? Some sheriffs are saying, well, we're already doing that because we will make these decisions in the public interest and we will consider harm to communities. An example of a housebreaker could be that there's not any physical harm but there'll be harm to a community. Some sheriffs are saying, well, we already make those decisions. On the other hand, we've got some of the judiciary saying, well, we want the Government to define what they mean by public safety, otherwise we don't know what Parliament intends here. Speak to any of that would be really helpful. I should qualify my input by saying, I never use the term expert when I refer to myself because my dad would always disabuse me of that, so I'll qualify any inputs I have. What would say in terms of the public safety test? We welcome the public safety test, we believe that there is precedent and that we can work during the passage of the bill to address some of the questions that are arising, so if you look at currently within the system for the higher end in terms of the order for lifelong restriction part of Cymru Justice Scotland Act, requires that when a judge is considering the issuing of a risk assessment order, they must consider the risk criteria. We find that risk criteria and we're happy to send that on to committee. It defines what public safety means in the terms of pervasive serious offending at that high level, but outwith that there are other areas where we currently operate outwith lot legislations, so within MAPA there are very clear definitions of what we mean by public safety. Myself and John have had many a debate on this over the years, but one of the definitions is the risk of serious harm test, which is applied within MAPA, and again I can send on the definition of what that means, but that's the gateway for someone being considered for entry into MAPA level 2 and MAPA level 3, and that was reinforced when MAPA was extended a few years ago to consider other offenders who pose a risk of serious harm. We are well used to doing that, and John will have a view, because within release provisions there is also the consideration of the protest and the various aspects of that that relate to public safety. I think it could be improved in considering some of those definitions. It's not without the will of the agencies that we would be able to provide some more clarity, which would address some of the concerns of the judiciary, which I can understand. Does that mean that you do, you don't think there's a need for a definition in the bill, or is it guidance perhaps might be more appropriate? I think it is perhaps guidance, I mean within the legislation obviously there's a test there in relation to harm. Our general business focuses on those who pose a risk of serious harm and being able to undertake a scrutiny level of assessment that will allow someone to make a decision on the basis of that assessment. I think that there are other guidance such as the MAPA guidance, contains those definitions, as does our standards and guidelines for risk management, and that replicates other jurisdictions. That's really helpful. My second question was to you, Jim. We've had a chance to exchange with the SPS before about the remand figures and so on, so this is really where this bill started, as I understand it, because the committee raised questions. I just really wanted to give a chance to talk about your general sense of why we're here in terms of, presumably, you see the figures and the profile of the remand population regularly to focus it more clearly. I mean, I'm assuming that, so we went to the custody court in Glasgow, it's only a snapshot, but you could see in somebody cases there's a lot of use of bill supervision, so you can make an assumption that most of the remand population are on solemn proceedings. I suppose to what extent looking at those figures, which last week, I think, was 29 per cent, and I know that that changes, so that looks high. Is there a sense within the SPS that a crisis is? What is the profile of the remand figures? What is your sense of why we're here would be really helpful for me? Good morning, thanks very much for that question, so I had a look at the figures this morning before I came in, as you'd probably expect, so this morning we unlocked a population that had just over 1,900 people held in remand, so in terms of overall population today it's just over 26 per cent. For women in custody it's around 36 per cent, and for young people it's even higher than that. There are various reasons, obviously, and there's a whole spectrum of issues in terms of why people are held in remand, and of course that's a decision for the course in terms of who we have. I also would add that it's fair to say that our experience over the last two or three years has disproportionately affected the number of people held in remand in Scotland. Having said that, if you look back over the historical trends in terms of our use of remand as a justice disposal, there has been an upward trend in terms of the numbers, and just as an indicator in 2019 we've peaked at 1,600 people or thereabouts held on remand. Again, notwithstanding Covid and the experience, the average time that we see someone held in remand is a very short period of time, I think, from memory. It's around 30 days or thereabouts. Now that provides an insufficiency for us if we applied a case management ideology, which incidentally we don't at the moment, for people who are held in remand to get to use a cross definition underneath the rug in terms of what are the kind of aggravating factors that, whilst may not be related to offending behaviour, because people, as committee will be aware, are accused, they're not guilty of any offence, but if someone's homeless or has a substance misuse issue or has difficulties in terms of employability or education, these are all things that, if we had time with people, we can help them to make choices that will improve their prospects, but 30 days is an insufficiency of time. The reverse side of that is that the harm that imprisonment can cause, the separation from pro-social citizenship that results as a consequence of imprisonment, the kind of detachment from what people would actually convey as personal identity, being a father, being a mother, being employed, being a tenant, all of these things are severed as a consequence of even a 30-day period of imprisonment, so it is a difficult position for us. I can't comment on individual cases in terms of whether or not it was appropriate to send an individual a prison on your mind, but I think it's right that, as a nation, we reflect or reduce in that disposal. We don't compare favourably with other nations, I would have to say. We do, but it would seem to use it much more, so either there is an inherent issue in terms of us as a nation and are you saying that as a disposal being sufficient or there may be a better way to do things. I hope that that gives you a good point. That is really helpful. I think that what the committee would find helpful is just to pour over understanding the profile. I know what you said from 2016 forward. It does seem to be an upward trend. I think that it's really important for us to understand who is being remarked, who you have in the person at the stage, to try to understand what's going on as well as how the legislation would apply. Are we able to get that data? I'm happy to provide a written provision at a later date. I can put that in the course after this morning, if that would be helpful. Is that going to look like when you look at it that there's quite a high percentage then of those prisoners on remand who will be in solemn proceedings, or is that too general? I don't have that figure in front of me, but I'd be happy to provide the committee with that detail. Thank you very much. Would it be possible, in terms of geographical, to see if there's a trend appearing in certain areas or regions? That would be really helpful as well, if that's possible. We can provide that in two ways. It's an issue at the moment in terms of the percentage of people who hold remand that's affected just about every prison in our estate. So we can provide the committee with details relative to where people are held, but also in terms of their own postcode what community within Scotland they actually come face. I can ensure that that detail is held within the written provision that I provide. The other thing that I should have said when I was answering the first question is it's an interesting point to be aware of. I know I'm not the first person that's provided evidence to say that, but we still face a situation where the majority of people that are held on remand do not go on to serve a custodial sentence of imprisonment, so I think that that's worth noting that remains the case. Can you provide percentages there, then? Are numbers in relation to that, then? So I will look at that data profile and provide it as part of that in submission. Okay, that is really helpful, thank you. I think that Katie Clark wants to come in and vote in, but can I just pick up on release from remand and an issue that's certainly been flagged to me recently, and that's where release from remand is unexpected. Potentially there is little or no provision in place for that person when they literally walk out of the prison gate. That's got implications for them, which we've been highlighting this morning. I'm just interested on your thoughts on the, again, looking back at the provisions of the bill, what needs to be put in place, where that happens, where it is unexpected. So in an ideal scenario, there are many people that we hold on remand for a number of months, and actually I think the bill's intention, i.e. that we would look to develop a structure that would be reflective of a case management model for those people, so not just the immediate assessment, and I have to say as well that in the majority of cases for the very short period that we look after people on remand, it's health and welfare issues that you're dealing with in terms of immediate presentation. However, if we have someone long enough, we can dig a bit deeper and actually provide support, access to services, direction towards services in the community post-curs today. So that would be the ideal scenario. As you described, unfortunately, there are many circumstances whereby release from remand is unpredictable, and at very short, if any, notice at all. I suppose the systems outcome in terms of what we're looking for is that in those circumstances, wherever possible, we create a wrap-around service that provides a plan, or at least an indication of a plan for that person in terms of where they might go next to access services post-present. How easy or how practical do you see that realistically as being, in terms of that being put in place as perhaps as part of the provisions of the bill? So for us in terms of our operating model, in the parts of our estate where we hold people in remand, the application of a case management model would be a change to our operating model. There would be resource implications therein, but in terms of the intention and the ability, it's something that we would welcome, it's something that we would propose to do. I'm not sure as a single organisation we are best placed to actually say how we would go over the challenge in terms of that lack of predictability. Actually, in a lot of circumstances, the lack of predictability is a consequence of the actions of the individual themselves. Yeah, I think it's a systems requirement. I think it might be part of the issue that we would want to consider at the operational protocol consideration, so we get into the detail of how we would work in practice. I think it's an issue for system consideration rather than as a single organisation. Okay, thanks very much. Okay, Katie, I'll bring you in. Yes, it was just on the data point and as a committee I think we would find more data really helpful. It's something that we've struggled to obtain. I just wondered whether it's also possible to get data by share of court, because I think whether there's different practices in different courts would be interesting. Historically, that was definitely the case, but I don't know whether that remains the case now. Also, any data on offence, you know, both whether it's summary and solemn, and any further data on offence, I appreciate you may not be able to provide everything that we're asking for, but the more detail on either of those would also be appreciated. Okay, I shall try. Sorry. Ah, sorry, I beg your pardon, I was distracted for a moment. Okay, apologies. Full turn, I think you were looking to come in and then I'll bring in Russell. Apologies. Sorry, are you welcome? Miss, I wasn't going to ask the question, I was just asking, explaining the level of data that we've really struggled with the data. I think it's a temporary moment, if confusion just came over the whole committee. I've thrown everybody. I don't like you, not me. Sorry. That's fulfilled. So I was going to ask about the part of the bill that gives the powers to social work, and I was thinking, given each of your position in the criminal justice system, what am I asked about that? I think, Jim, when you were talking there, that's the area that I'd like to go on, because you were talking about, and it's something that we've heard before, that most people who get remand don't go on to serve a custodial sentence. I think that is a hugely important point. Do you think that there's any part of the system where... It's hard to say, because obviously somebody's got to defend himself in their innocent or proven guilty, but is there any part of the system do you think where that could be elaborated on and an assessment could be done of the likelihood of a custodial sentence? And where I'm thinking it might be is around the social work input that this bill provides for at the start, so social work is providing the assessments around bail. Is there something there, do you, to the panel, think that it could possibly be also as part of that assessment about the future likelihood of custody should the person be found guilty, or am I making this too confusing? We have worked with just the social work in the past to look at the bail assessment guidelines, and we would recognise that there are aspects, like some of your previous witnesses have referred to us. There are aspects of risk assessment undertaken as part of that process, but it's not a risk assessment, so it does not follow the process of identifying the risk factor, reducing an evidence-based tool, analysing them to different degrees, acknowledging the limitations and the time and the resources available at that point, and then evaluating against criteria. We do have experience of doing that in the past, and I think that some of the conversations that we have had with officials is about how do we develop the risk assessment process, not just for those within just the social work, but also considerations. I heard some of the evidence last week in terms of the assessment that the police undertake, as well as hearing from the Crown later on after ourselves. I think that there are opportunities to look at those three processes to consider how best do we put information across to those making decisions that then considers the pattern, nature, seriousness and likelihood of offending, and also the recommendation against criteria. There is experience, you'll know, but I should declare a previous interest. I used to be a very long-heard social worker many, many moons ago, and within social work there is a triage system of assessment in place just now, so at the court report stage social workers undertake what's called an initial assessment and scan for risk, which uses a screening version of a risk tool when someone goes on to supervision. They then undertake a more intensive level of assessment and where there are indicators that the individual may pose a risk of serious harm, they undertake an in-depth formulation. So what we're really talking about at the bail assessment stage is almost the triage within that triage, and I think that that's our area of interest about what is a defensible decision making process that could be undertaken and what training would be required to support the different professionals? So I suppose what I was trying to say is that I understand that about the risk assessments of previous background myself there, and I think those risk assessments are generally well recognised by the committee, the risk of offending, and that is clearly what this is about, but I'm wondering, given that the purpose of this bill is to try and tackle the issues of remand, which we've heard quite eloquently put by Jim, actually, and we've heard from other people, I wonder, could the risk assessment also include the risk of custody and the risk of remand poses to the person? I'm trying to find ways to, because this is all about giving the sheriff more information, isn't it? That's clearly what this part of the bill is about, it's about giving the sheriff more information to make decisions, to try and give them more leeway to steer away from remand. So I'm wondering in my own understanding as there isn't any specific risk assessments on those areas, the risk of future offending is crucial and key and that wouldn't be changed. So I wonder what you might think about that yourself and the other panels. I may be speaking at a turn here, but I spent 35 years as a procurator fiscal before I took this job up. What frustrated me was the binary choice between Baylor custody. There was no way of finding a proportionate restriction on liberty that is proportionate to the risk posed by the prisoner. I'm prepared to bet that there are people in jail who don't actually need to be there, but they're there for the want of an alternative. I don't know what that proportionate restriction on liberty might be, but it may be some kind of halfway house, it may be some kind of detention in the community, it may be some kind of curfew in the community, it may be some kind of oversight in the community, it may be GPS, it may be remote monitoring of computers. I hold those things that you could proportionately restrict risk with that keeping somebody in prison. It's a bit like hospitals, is it not? Hospitals are full of people that should be out in the community, but there's no way for them in the community so the hospitals are full. I suspect prisons have got too many people in because there's no real alternative. Along those lines, proportionate restriction of liberty, it would be expensive and it would require a lot of work in the community, which is probably what's never happened. It's the same for parole. When it comes to parole, it's basically a binary choice. You're too risky to be in the community with the resources available there just now, so you have to be in prison. And very often I don't want to do that, but it's difficult to find some halfway house where you can create a plan which reduces the level of the risk and therefore makes it manageable, if you see what I mean. Now, as I say, I might be speaking at a turn because it's, what, 12 years almost now since I spent many, many, many, many, many, many happy afternoons in the Summary Criminal Court in Glasgow in the good old days when it really was a Summary Criminal Court. So that's my view for what it's worth. There are different views, but I do get frustrated by two things and, oddly enough, as MacNeill's observation about statutory tests for release on bail also apply to release on parole license because there is no statutory test for release of a term in sentence prisoner. One was devised many, many years ago and we still apply it. And the board in the past has suggested it might be a good idea to have a range of statutory tests because then the courts, the higher courts in appealing, for example, a refusal of bail can develop those tests in such a way they become well understood. So, for example, the test for release of a life prisoner is that the board can direct the release of a life prisoner where it's satisfied that it's no longer necessary for the protection of the public that the prisoner remain in jail. And that's been looked at by the courts over the years and what that actually means is there's got to be a substantial risk of serious offending and that is offending which is so serious that that risk outweighs the hardship of keeping a prisoner in jail. So that's a well recognised and well hashed out test. I'm not conscious and I've been out the game for a long time that bail rules have been looked at in that kind of way and have been devised in such a way that the courts can revise and refine them. Quantum value, it's for what it's worth. I've got a command for just two very brief points. Also, I see hopefully some of the questions that I know the committee have been considering in terms of evidence. So there is evidence that is available that I think would be useful to the committee and we can certainly send that on. So in one respect, we've looked at the assessments of the long-term prison population back in 2018. We evaluated over 5,000 assessments that had been undertaken on that population and we'd be able to provide you with information in relation to what that means in terms of the profile. But some of the headlines we've found that would be that of those five assessments that follow that process of getting into more depth as concern rises around I think it was 609 were indicated as potentially posing a risk of serious harm of the 5,000. I mean, you look at that overall cohort, I think there was a number of individuals, he's just trying to look with these glasses over 588 were considered low risk and a similar 2% were considered very low risk. So I think there are opportunities going back to my earlier point to use that evidence to consider currently the regime we've had some initial discussions with the Scottish Prison Service is based on sentence length rather than necessarily the risk profile. And I think we should be using this evidence to inform what is the best level of intervention for those in custody. But similarly, if you look at the court reports, the agent will keep that very brief as well. We have looked to that initial analysis and scanned for a risk that I spoke about earlier on. The outcome of that is that the professional will consider while not the individual has minimum, medium or a high intensity intervention levels of the I think it was 35,000 assessments we looked at 33% of them concluded that the individuals who had appeared in court required minimal intervention. So I think forward to use some of that information to consider what is the risk profile of the bail population look like. We'd certainly be really interested in looking at how do you develop that decision making model based on that evidence. Okay, thank you very much. Anybody else like to come in? I think, Russell, you are welcome to come in. Thank you. Yes, good morning everyone. Now, I think it's worth again on the record that we've been asked not to ask certain questions about a particular case that's been reported on today. And the reason we've been asked to do so is because we're here to discuss the bail and release bill which is what I will therefore ask about. Now, so far we've heard from 21 witnesses and I would say the vast majority of those believe that there is a fundamental problem around this issue, not all, however. But if you look at the statistics around crimes that are committed while people are on bail, people in the general public might wonder what we're trying to fix given that, for example, in the past five years there have been 49 rape convictions of those in bail, 54 homicide convictions, 962 attempted murders, etc. And I suppose the question is, it's a pretty overarching broad question, but between the three of you, do you have a view as to whether this bill is even necessary and whether, in fact, keeping the public safe is being done adequately under the current model? That bash. So, from our perspective, we believe that this is an improvement. However, we also think that, as mentioned earlier on, risk has to be central to the considerations throughout this process and there are significant limitations based on the resources available at certain stages for us to be able to consider full and depth risk assessment. Our view would be that we need to develop defensible decision making models based on some of those contextual differences, but I think in our original submission to the original consultation we did indicate similar to the model that exists in the community. Ultimately, if there are indicators that an individual poses a risk of serious harm, we have confidence in the models that have been developed both in the community and in the prison that look at the scrutiny of that risk and that goes into real and depth consideration of what are the function of risk factors in relation to episodes of offending, looking at offend cycles, considering contingency planning and from that perspective we work day in, day out with agencies looking at the public protection arrangements and I think it's quite interesting a number of other jurisdictions are looking to emulate elements of those public protection arrangements which we would be keen to also be part of. Police Scotland, sorry, the Scottish Police Federation and Victim Support Scotland essentially say that the more that people are bailed, the more they will offend already a significant proportion of crimes are committed by people on bail. So if there aren't the resources put into managing these people somehow is that not the inevitable consequence that there's going to be more crime and more victims if more people are bailed? I think I would need a bit more detail and it's not really my place to come to a conclusion on that. What it would say though is this article 5 of the European Convention on Human Rights protects the right to liberty and security and if liberty and security are to be taken away that's got to be done in a way which is lawful, necessary and proportionate in an individual case and in each individual case. So it's necessary rather than look at the big picture and say people on bail commit crimes so we'll just keep them locked up. It's necessary to look at each individual case and decide not so much on lawfulness but necessity and proportionality and that will be linked directly to risk assessments and assessment of just how risky an individual would be if they're released into the community. Now you can't just say people won't be released because they might offend. That would be unlawful that would be a breach of article 5, frankly. So you'd have to have that in assessing proportionality in individual cases. So in each individual case you make the assessment based on the individual circumstances of the individual involved. That's what the court has to do. Indeed, but that applies now. There's no one suggesting otherwise. No one's suggesting people are just getting locked up willy nilly because of some vague idea that they might offend. It's each case from what we've seen as based upon a pretty robust process. I don't know if you would disagree with that. I wouldn't disagree. I suppose what I'm saying is that there can be a lawful release on bail but you can never eliminate risk entirely. You just can't do it. And there will be people who offend on bail usually a relatively minor. Sometimes it will be serious but you just can't avoid that. I don't think. One of the witnesses last week gave a fascinating insight. I was at the chat from Howard League Scotland and he used the phrase risk appetite. He was talking about the comparison with another country, Finland, where at some point they decided that they would stop reminding so many people and imprisoning so many people and that's radically changed the proportion of people that are in prison. And I think what he meant by risk appetite is trying to persuade the public that this direction of travel is the right one. Do you think the public are agreeable to that? And if not, how can you go about convincing them of these statistics? And this kind of approach is the right one. I'm not sure any of us. I'll speak for myself though as qualified to answer that question or even that it might be an appropriate one in terms of, it's for the convener of course, an appropriate one in terms of what it is that we're looking at today. And that's the bill. The broad or more general questions I suppose have to be debated and answers have to be given. I may have personal views. I'm not minded to share personal views here today. I suppose I'm just trying to get a sense of, I mean, there's a huge amount of detail. We've got 21 witnesses so far, many more to come and lots of talking in future. But I think it's just quite helpful to understand that there is a direction of travel in the criminal justice committee community and it's just trying to understand that. And if you want to come in, you can. But I've got a specific question about prison, if anyone else. Can you just make one offer? I mean, from our perspective, there is evidence in relation to how public protection works. There is also the exceptional cases where that does not, I mean, significant case reviews are undertaken ourselves and other agencies collectively review that. And we've got a lot of experience of developing subsequent work that then is looking to develop that confidence, not just in practitioners, but also in the public. So we have trained over a thousand police officers, just the social workers, and how to assess and manage the risk of serious harm. I think it is important that we do use evidence within that. And again, there is evidence, I think, that some of the discussions on the committee have focused on the broad categorisations of offences. So I know that there has been the discussion about sexual offending and we do quite a lot of work in relation to that broad spectrum of behaviour. And again, we could share that with the committee if that's useful in terms of the relatively low risk of reconviction for those who commit sexual offences, but also in particular subgroups. And I know part of the remand population is those who commit online offending. We're currently piloting an assessment framework, which is about giving the courts confidence and being able to identify those who go on to commit a risk of serious harm. Thank you. I mean, the Scottish Police Federation said that the police got under struggling with the management of high-risk offenders and cannot safely manage this within current resourcing arrangements. Police Scotland disagreed with that. You are on the front line at the sharp end. You deal with these cases. Who's right or what's the real picture? So if you look at multi-agency public protection arrangements and how they've evolved over the 12 years, we've taken quite a different path from other jurisdictions who introduced it similarly. And I think there's a lot to be considered the way the category I mentioned earlier on when the risk of serious harm category was introduced a few years ago, a lot of caring attention was spent on defining what was meant by that population. It partly relates to the definition I referred to earlier on, but it also reinforces the risk level of that individual. And there's very clear criteria for that. So if you look at MAPA in Scotland, these are not exact figures, but I think you have around 30 individuals who have been brought in as part of that category compared with nearly 6,000 registered sex offenders, which is based on index offence. So, from our perspective, I think risk is key in the consideration of that risk and not just the offence type. Just quickly in response to something John Watt said earlier. I've got, we're just coming up to time and I've got Jamie and Rona wanting to come in. Is it? And we'll come back to you if you've got time. Sure. If you don't mind. Jamie and then Rona. Thank you. Just to Mr Watt. You said one of the frustrations you felt, as a fiscal, was that binary choice of remand or release. But is it not the case that actually there is a middle ground and that's where a sheriff can release someone either with enhanced conditions or supervised bail, which seems to be a more popular option these days? Yes. Is that the middle ground? That's a kind of a middle ground. I suppose it's the effectiveness of that middle ground and how it becomes institutionalised. I'm not sure if it's available everywhere. It's effectively available everywhere. I just don't know any more about that. But I still think that my fundamental position is that it needs to be a proportionate response to the risk and the restriction of liberty has to be proportionate to it. That could well be the middle ground. I read something about Sheriff Crow recently, lamenting that he couldn't do, he wasn't able to sentence people to drug treatment and testing orders because in a particular part of the community they weren't available any more. And I suppose the consistent availability across the country would be the only issue that I would raise. But yes, there may well be halfway houses, there may well be middle ground, whether it's enough to justify or to allow for a substantial reduction in the remand population. I just don't know any more. I'm prepared to defer to sheriffs and current fiscals who understand the problems that exist today. Unfortunately, they're very unwilling to come on the record and share those views with us, which is unfortunate, because they're obviously at the front line, but certainly we went to see some custody courts in action. And the very much impression, personally, other members have their own thoughts is that remand was very much the last resort in those scenarios and that sheriffs do explore all options, which doesn't therefore tally up with the why we have 26 per cent of our prison population or remand prisoners. Is it that too many people are being sent to prison on remand or that the appropriate amount of people are being sent to prison on remand because of that public safety test, which is already taking place, but the cases are taking far too long to come to fruition. Therefore, the population is burgeoning and the problem is, as other members have said, we just don't have the right data to be able to work that out. And that's unfortunate when we're looking at a bill that's going to change the rules around Bill. That's a comment, perhaps, on that question. I was going to say, there's no question mark at the end of that, but yes, I mean, these are all legitimate questions. I don't know where the answers come from. I think they would come from somebody who's got a big pot on money. The other final thing I wanted to ask is that the Government obviously is doing this with an ambition to reduce the amount of people that are remanded and not given bail in those many scenarios. And the financial memorandum seems to back that up with some estimations around reductions of people that will be held on remand. Obviously, that would be beneficial for the SPS if fewer people come into the system. However, there's also a skill of thought amongst the judiciary that this really isn't going to make a huge difference to the sort of decision-making they make already and that they feel that they are already making the appropriate decisions by, you know, the removal of liberties is a very serious decision made by justice partners and that whilst politicians are free to tinker with the rules accordingly, they will still go about their business as is. I'm really unsure as to what the potential outcome of this might be. Have you given any thought because clearly we'll have a large implication on the prison population and its numbers thereof and that's directed directly at SPS? Thank you very much for that question. I suppose that the short answer to that is time will tell in terms of, I think, the intention of the legislation in its current format is to do just that, is to make sure that the right information is available to the right organisations at the right time that will provide improved decision-making Romand is an appropriate disposal for some people, there is no doubt about that or question whether or not under the current circumstances there is a right disposal for everyone that we currently own in custody. And I think that our reading of the legislation in its current format is that the intention of the bill is to actually probe that and question that. But time will tell in terms of whether or not it does result in less people than Romand or not. Are you scenario planning a reduction in the prison population in the way the Government is? Not going in that detail yet in terms of what the impact may be. Thank you. And I'm finally going to bring in Rona. I know some other members are wanting to come in, but time is against us, so Rona. Okay, I'll just be brief. Thank you, convener. Just to ask, I think, Mr McSherry, then Mr Watt about your views on the removal of section 23D, particularly in relation to domestic abuse offenders and sexual abuse offenders. What are your views on that? Again, as we reiterated in our submission to the original consultation, we believe that that is welcome. And that's on the basis of the need for risk to be the principal consideration rather than offence type. So our view would be in removing the categories which are very broad. What needs to be replaced within that is the in-depth understanding of the risk that an individual poses rather than just the in-depth offence. And the reason we also say that is that you may remember some of the work that was required in relation to home detention curfew. And we found the risk assessment process that we developed for that. One of the significant limitations within that were some of the statutory exemptions which I heard from your witness last week in terms of why they were brought in in relation to the 23D provisions in our view would be that yes, we need to consider the risk of sexual offending and intimate partner violence but that needs to be based on a risk assessment rather than the index offence being the preclusion from that. So our view would be the risk of sexual violence and also intimate partner violence needs to be assessed. Can you understand the concerns of victims and women's organisations about that given the sort of I think specific nature of let's say domestic abuse offences where it's directed at one person and there has been a pattern of behaviour is it fair then to put it in the same kind of one size of its all category as other offences? I can completely understand some of those concerns I should declare many years ago I used to manage services delivering programmes to men who are convicted of intimate partner violence and also providing support services to women and children so I know the sector and I know all of those colleagues very very well. I think my point would be that it is about the pattern nature, seriousness and likelihood of those behaviours that we need to understand so that we then do develop a proportionate response that does adequately protect victims but also ensures that we're addressing the specific risk that has been identified and I think sometimes when we use the broad offence categories sexual offending as another example it doesn't allow us to understand the very specifics of the risk that a different individual might pose within that broad spectrum so our view is that that is the level of understanding that is required. Okay, thank you. Mr Watt, do you have any views? No, I couldn't have put it better myself. Right, thank you. That's fine, thank you. Thank you very much indeed. Okay, sadly I'm going to have to bring this session to a close. Thank you very much indeed panel members. Apologise for my earlier lapsing concentration that's highly unprofessional. I'll blame it on a late night in chamber last night. And obviously if members have any follow-up questions we will write to our witnesses. So on that note, thank you again and we'll have a short suspension till our witnesses to leave. Thank you. Okay, thank you very much again members. So our second panel today consists of Mr Kenny Donnelly from the Crown Office and Procurator Fiscal Service and David Fraser, Executive Director of Court Operations with the Scottish Courts and Tribunals Service. So a warm welcome to you both. I'm going to just move straight to questions and I'm intending to allow around about 75 minutes for this panel. So I'll maybe come to you first, David, in relation to the issue of grounds for refusing bail. And this is something that I think your submission or Crown Office submission looks at in some detail. And obviously it's been suggested that the concept of public safety should be defined in the bail and release bill. But I'm interested in whether or not you think this would be helpful to have a definition and also what should it cover, what elements should it include. Thank you very much, convener. I think that that is a question for Mr Donnelly rather than myself. Or now let's pass that to you if that's okay. Okay. So the submission makes, I think, clear that the term public safety would benefit in the Crown's view from definition. The reasoning behind that is really to provide clarity as to what the parliamentary intention is for the courts to apply that legislation in an appropriate way. The court are familiar with legislation and having to interpret legislation but in the absence of clarity in the legislation it can lead to confusion and consistency and take some time and inefficiency and ultimately perhaps wrong decisions until such time as the court properly has time to consider and issue written judgments and precedence as they're called as to how that is to be interpreted and applied. So you could have different sheriff courts and we need different sheriffs within the same court taking a different view as to what public safety encompasses. I think there's also a risk for for the Parliament and for the Government that if too wide a definition of public safety is taken then it could undermine the policy intention of the bill. Equally, if too narrow intention is taken as other consequences in terms of the protection of public safety and the protection of and the confidence in the criminal justice system. So it's for those reasons which we think it would be helpful to clarify what exactly is encompassed within public safety. As for what the definition should be I'm afraid that's a matter for Parliament I think it should cover some of the anomalies around crime type so I think again we use in our submission and I think in other submissions the example of theft by housebreaking. I can see where some would think that theft by housebreaking is not an issue of public safety but anyone who's ever had their house broken into or have met anyone who's had their house broken into will know the impact that crime has and how it impacts on the feeling of safety of the individual whose house has been broken into. So that's a one example is a fairly stark example that there are others around public safety that would require a degree of clarity to enable the courts to properly apply it and to consistently apply it across the country. Okay, thanks. I'll leave it at that. I think other members will be interested in probing a little bit more around the specific issue of public safety. So on that note I'll just move on and I'll bring in Kate Clark first. If I just pick up on some of the issues that you've been raising and if I can just say that I did find the suggestions you made in your written submissions really helpful in terms of the definition of complainer but also definitions in relation to withholding of evidence. So that's something that the committee would want to consider and obviously try and get others views on it as well. But in terms of the definition of public safety it's been referred to us that it would be helpful to refer to intimate partner in some place in the legislation. Do you think that is a helpful suggestion and would that be something that might be placed within a wider definition of public safety? So intimate partner in the sense of a domestic violence offence well again you would hope that the court will interpret public safety as including crimes of violence and including domestic violence and domestic abuse offences. But it would do no harm to have that level of clarity. I suppose it depends on what level of granularity the definition is going to get into as to whether it makes those specific references. But that's part of the reason why we think the definition is helpful because there is a lack of clarity about the extent to which public safety will go. Although from my own point of view I would have thought that that would be something that would be considered a public safety issue albeit that is is one member of the public but again it is open to that confusion and lack of clarity. In terms of the public safety test I can understand why you perhaps personally don't want to come forward with a suggestion. Do you think that your organisation that's something that your organisation would be well equipped to look at or where do you think those suggestions should come from and if you feel that your organisation's not the place are you happy to look at perhaps a number of definitions to think through what the consequences of those might be in the courts because it's quite easy for legislators to come up with words but actually the predicting how that's going to be looked at and interpreted in the courts is a different thing and it's I think is important that we get the wording right that it has the effect that Parliament intends. I'm not trying to be difficult and the same is not for me I'm a public prosecutor and so it's not for me to make the law or to tell the Parliament what the law should be and to apply the law and so that's why it's not for us but we're certainly willing to assist with input and you know if the Government of Parliament wished to to come up with a definition we could certainly provide some feedback on that as to the practical implications of that and whether in fact there are there are other aspects of it as we've highlighted in the submission here whether there are aspects of it which remain unclear and which would benefit from further clarity so happy to help with that going forward but it's not for us to particularly drive that as a proposal and on that I mean I presume David Tracy you wouldn't particularly would you have a view in terms of the definition is that something that would be something that you'd you'd have want to comment publicly on or and the short answer is no I think it's it's I mean the Scottish Courts and Tribunals service are there as you know to support the judiciary I think the judiciary you have provided a written submission so I wouldn't want to say anything and on behalf of the judiciary I've got no power to do so yeah we've seen the submission of bed to the Scottish Government yeah thank you thank you I'm going to bring in Pauline followed by Russell thank you good morning okay I'll start by saying as much as I've read the bill and the policy memorandum and all the evidence I'm still trying to get my hair down because we're not practitioners what is quite technical legislation and amending the 95 act which is already quite technical in itself so I say that first of all I suppose to follow in from Katie Cartsline with questioning so we've heard does in your own submission there's issues around whether we should define public safety test or not now I've not taken a view on that I just wanted to put an alternative view to you call me in as you wish I now feel I'd like to ask more people this question because so I can sort it out my head and it's this so others are saying it's incorrect to state that public safety in terms of the proposed section 23b b1e b1 will serve as a soul gatekeeper which is the which is the matter in question I suppose provision in some of the procedure to which the proposed section 23c18 would apply some say it's more correct to state that in such cases these sections so namely 23b1e b1e and 2 would serve as a separate and distinct grounds for refusing bail and so someone this is the review that it's maybe not necessary to therefore define what is meant by public safety now my reading what I'm really asking is is in another way to read that the gift so as is being said by previous witnesses it's for politicians of the government to frame the policy and the policy is to give more discretion to sheriffs not to remand so that you can agree or disagree but that's what it's designed to do and so we're asked to consider a number of substantial matters one is whether public safety should requires to be defined or not or whether it should be left to the courts to define or not or whether Parliament should say right we want to give more guidance to the courts and there's always that balance to be struck I'm not asking for a really technical answer on this but is there another reading of this or could be a men the bill what I do understand about all of that is if it's a soul gatekeeper if public safety is the only requirement and there isn't another way another place to go in the bill to say actually in the so the cases that you raise Mr Johnley the house breaking and just kinds of dishonest is the obvious one too easy to understand where is the harm because they're not violent criminals but to communities might say well quite nice if we had some rest might from a house breaker for some time so could under the current framing of the bill share of say okay we'll take a wider view of what that test is I mean anything you want to say don't need to answer the questions it would be helpful to me thank you so it's quite wide-ranging but I take the point I think that the issue for me is that that we could have as you say sheriffs broadening that definition of public safety for other crimes in some jurisdictions and not in other jurisdictions and what that leads to as I say is inconsistency confusion and ultimately inefficiency because we're going to have people having to appeal or the courts then taking up an interpretation and issuing judgments that to clarify what the position should be and all of that and the way all people will be getting either not getting bail or getting bail because of a different interpretation of the law so the interpretation that you've put on it that's open to the court the court that is the court often will interpret legislation but that has to do so within within the rule of law and within the parliamentary intention and the problem for this is the parliamentary intention for my point of view isn't clear and it's the clarity of the intention and the policy intention around such as housebreaking but other offending which makes it difficult I think there's also an issue which we haven't touched on yet but just in relation to the proposed section 23 C1A which removes from the summary court the ability to oppose bail for those who simply have a record of not attending or who those information won't attend because it only allows that to happen in relation to any failure to appear on that particular set of proceedings in that case so again one of the issues with that is the efficiency of the court but it's also about public confidence and the impact of excellent witnesses because there's a risk and we can see no more than a risk that that provision will result in more people not turning up for dianse and as a result victims of witnesses having to be countermanded as witnesses and resided to attend on another date and that's not good for the efficient running of the court service it's also not good for the victims of witnesses in terms of impact it has on them Thank you, that's really helpful I just want one other question it's in relation to a question I put to the last week's panel in so we heard that well the evidence we heard was procreator fiscals like the custody court we attended which again was like the court service for letting us sit in on that was really helpful but it's the evidence we heard was that fiscals don't seem these days to have the discretion to take a different view from the way the case was marked up so procreator fiscals who have served previous to that might have said well they would have more discretion and I asked the question do you think it's because of the centralisation of marking within Crown Office that has led to a more rigid approach I really would be keen for you to comment on that because it seems to me and you correct me if I'm wrong but a procreator fiscal is a highly trained lawyer with an individual commission to make decisions on behalf of the Lord Advocate why shouldn't a procreator fiscal if they hear in the court reasons to change the way the case is marked why can't they use their discretion thanks The short answer is that procreator fiscals refuse to have that discretion but they must use it wisely and use it within the framework of the law and within the framework of departmental prosecution policy there's nothing which would prevent my deput fiscal in court on hearing representations from departing from the instruction which was given by the marking deput however you'll have seen how busy that court is you'll have seen how busy the deput in court is they're dealing with every single case in that court that they do not have time to consider the fine detail of every single case and so whilst they might have empathy to the points being raised by the defence they have to look at the whole picture and they don't have time to look at the whole picture often that decision having been made by someone who's had the time to consider and mark the case and to formulate the bail instruction albeit in ignorance of the position that the defence may want to put forward at that point it's very difficult to review that properly within the time constraints of that busy court separately we've got quite a number of young and experienced deputes at the moment and it takes a while to build the confidence to actually change a colleague's instruction in particular when that's perhaps a more experienced colleague and so there's sometimes an unwillingness to use that discretion and it could be comfortable to say I can't do that I have to say as well none of that is determinative in this process because the information which the defence solicitor wishes to put to the fiscal with a view to changing the position in relation to opposition to bail will be made to the sheriff who ultimately is a decision maker on bail so whilst the Crown will put forward the arguments which the marking deputy will have constructed when marking the case for opposition to bail the sheriff then deals from the defence solicitor who will make these very points which would be in favour of bail being granted being appropriate and you would like to think that the sheriff properly considering those will make the right decision in balancing the interests of justice and the interests of the accused thank you so I'm assuming what you said there's no policy decision that fiscal can't depart from the way that the case is marked thank you and do you think then then do we mean me to look at how the this is resourced then because if we're sending young inexperienced fiscal in and I take your point what rightly so is up for the sheriff but we do not be helpful to the court if the fiscal who's in the court is in a different position than the one who's marking the case and is hearing all the facts and circumstances and note absolutely what you're saying about it's been a concern of mine I have to say for over a decade the pressure which fiscal are under experienced or otherwise in a custody court but we do not help the court a bit more if in some okay minor number of cases that the crown could say we'll actually haven't heard all this okay the sheriff makes a final decision but we're not going to oppose bail sure thank you for those comments and I'm sure your concern extends to those that are under pressure in committee rooms but the the issue is that we're all young ones we'll have to learn our trade and we'll have to gain the experience and we learn from from our peers and we learn from those more experienced than us and part of that is when you get in the structure from a senior colleague you know that they've got that seniority you know that they've got the experience and that's where as I say it's a matter of time confidence and experience before you would start to question and or change a decision from a senior colleague the you mentioned a position about central marketing and sorry I forgot to come to that that isn't a material factor in any of this I have to say for all my years 30 plus years prosecuting whenever you're in a custody court you do not have the you don't mark the cases yourself ordinarily because you're usually doing in court doing something else well so other people are marking them whether that's in one of our centralised marketing hubs or in the local office across the road somebody marking the cases isn't the person who's going to be in the court that's that's just a logistical issue and it's also just a a practical issue that custody's are coming in and you couldn't have one person marking them all apart from anything else and certainly in the mid-air courts so that process of getting a case and having instructions from a colleague has been the case and will always have to be the case because of the nature of the way that the system operates as for changing or resourcing of the system sure you know we're always willing to accept greater resource but you know the court the only way to give that fiscal more time would be to have more courts so you know you would be talking about having a court limit of number of custody's and again the efficiency of that and the cost of that because that means more judges also means the defence listeners who are often in more than one case having to be in more than one place at different times and when we look at some of the other provisions of the bill where we were talking about social work input and there's other key personnel that increasing the number of sites would increase the resource requirement and make it quite impractical I think thank you thank you very much thanks very much okay, can I bring in Russell Findlay thank you thank you David for facilitating our visit to Glasgow Sheriff Court the other week I found it really enlightening and the care and attention that was put into the bill decisions was pretty robust I thought and consistent with what I've seen over the years the sheriff gave everything due consideration the fiscal did a very hard job with a lot of cases to deal with very competently and I suppose what I'm asking is most of the people we've heard from so far say there's far too many people on demand ergo you should be bailed more often and the responsibility for that ultimately lies with the judge but the Crown play a huge role in that with their input there was some written evidence from Howard League Scotland which suggests that and I quote significant cultural change particularly among some parts of the Crown and judiciary will be required to fundamentally change things with this bill coming in if it does and I suppose what I'm asking is is that fair comment that criticism of the Crown and is it about cultural changes or is it about really about resources like just about everything else so I don't accept that proposition I don't think that there is a cultural change needed you know I'm as I said earlier I'm a public prosecutor and I operate within the constraints of the law and within the constraints of prosecution policy said by the Lord Advocate the law on bail is fairly clear whatever you may think of it and obviously the Parliament intends to change it but there's a framework that's put in place by the 1995 act which sets out the basis upon which bail should be could be refused but with the presumption that bail should be granted unless there's good reason not to so all of that's clear and the prosecutor will only oppose bail where there appears to be good reason to do so within the legal framework that exists that's not a cultural issue that's about the framework and so I've seen for example I think someone referenced the Crown relying on section 23d too often well section 23d is a matter of fact you know it specifies that if someone has the qualifying conviction then there have to be exceptional circumstances for them to give bail unless the prosecutor brings that to the attention of the court the court will not know but the accused has the relevant qualifying convictions so there's an issue about the court that the prosecutor informing the court to allow the court to make the appropriate decision whether to grant or refuse bail but the court ultimately is responsible for making the decision in every case the court requires to consider bail and I think the sheriff's association made this clear in their own written submissions to the Scottish Parliament the Scottish Government you know in one of the early paragraphs that they can refuse bail irrespective of the Crown's position although rarely do and I think again that's a recognition by the judiciary of the professionalism of the fiscal that will bring matters to the attention where a decision requires to be made but they also make it clear that it is not uncommon for the accused the Crown to oppose bail and for it to be granted nonetheless that's not the end of it because there's in an appeal process and in the appeal process again that both the Crown and the defence can appeal the numbers of appeals are relatively low I don't have the statistics but I'm sure they can be made available and the number that are successful are lower still so there's not an evidence base to support that that there's a culture issue the issue is about whether the framework's here or not and you mentioned earlier the question about risk appetite this is what the framework has to reflect the risk appetite of Government and the Parliament as to what the basis for opposing bail will be to allow us as practitioners within the court to apply the law within that framework and for the decisions to be made subject to that framework What one thing the bill suggests is that criminal justice social work will have a much more earlier and more active role in informing the Crown and the court about a particular case is that would that be helpful as far as the Crown is concerned? Yes but there are practical challenges around it in relation to resourcing and in relation to timing I think I may be being overly technical and pedantic but the the bill suggests that the criminal justice social worker must be offered the opportunity to comment in any case in which the court is considering bail and of course the court considers bail in every custody an undertaking case so there are going to have to be some practical arrangements put around when and in fact a criminal justice social work have a meaningful input because in many cases bail isn't opposed and there won't be any need for criminal justice social work intervention but in many cases the ability of criminal justice social work to provide alternative proposals such as supervised bail which was mentioned earlier those assessments are invariably helpful and allows the court at least in making this decision to have an informed decision of the full range of options that are open Okay so I mean that the legislation effectively formalises the existing system whereby criminal justice social work can and do feed into decision making That would be my view is that it's not it's not mandatory and I think I think there was a reference in the last evidence session to the consistency of provision across the country so you know the availability of social work again is dependent on resourcing locally availability of the different options of support supervised bail electronically monitoring bail that is in relative infancy but still not available in every local authority area and so whilst it's been it's early days are relatively positive so far as an initiative as an alternative the fact that it's not consistently available is not helpful Okay thank you and as a crown of a view on the suggestion the bill wants written decisions for bail reasons not particularly you know at the moment the court when granting or refusing bail the sheriff will state the reasons and in the event that there's an appeal the sheriff requires to do a written report and the appeal's usually happened within two three days so that there's a written record in the cases where the decisions challenged fairly soon thereafter I don't feel strongly about whether or not having a note in the record of the decision would be helpful I just wonder if it might slow down the process on the day that's part potentially the case because obviously those reasons would have to be recorded in the minute of the court for signing off so it would be a administrative challenge maybe one for David to answer rather myself because it would be his staffs that would have to do them anything thank you yes we do we do think that it will create a potential for these courts to run longer if they there has to be a manual recording the other thing it would affect us we'd be potentially we'd have to make changes to our cop two system so there would be a cost incurred not just in the time it takes the courts to run but actually in getting our system adapted so it could record this okay thank you just thanks Russell just picking up on an earlier point that Russell that alluded to and you picked it up as well was around the kind of practical challenges of the proposed wider role of criminal justice social work I'd be interested from your perspective David on what those challenges might be for yourselves from Scottish Courts perspective and it's limited in what I can talk about because as I said we support the judiciary so I'm not here to speak on behalf of the judiciary from an operational perspective if we are to introduce a system where these social work reports were required in every case at the moment they are at the the request of the person who's going to be the judge's sheriff they will ask for these reports if we move to a position where this should happen in every occasion and it's not again for me to comment on this but there would be a significant resource implication for social work in order to do that it also creates the potential that these reports might not be available when they're required in the court which again could create an element of churn where we have to wait for these reports to be available so cases could be adjourned and recalled if it's in relation to individuals who are being held in custody it may be that they might have to be held and for an additional period of time which is I think as he goes against the intention of what we're trying to do here or what is intended in terms of this policy which is actually have to have less people on remand That's helpful Can I just ask a very very practical question that came up during our visit to Glasgow Sheriff Court last week Is there an order in terms of a court list so for example a custody court list is there an order to that list or is it literally quite random Well I'm grateful you got the opportunity to come and see how a custody court's run because they can be very challenging and you'll have seen all the people running about and you'll have seen all the different players taking place The clock of court's roll is a very very difficult one When the court starts off yes we will have the list of all the people that will be appearing that day but the running order will change almost instantly depending on where we are with papers being marked which listers have seen their clients which listers are ready to go and I don't know if you noticed but you saw solicitors coming in and out to queue right this case is ready so sometimes it's like being a flight controller in that clock of court and you'll saw there was two actual members of staff one co-ordinating one actually running the court An observation if I may because I know a lot of the committee were actually at that and you touched on it earlier in terms of opposition crowns position in terms of opposition to bail and from my memory I think there were three cases where bail was opposed and one of the cases individual was remanded and the other two cases the sheriff actually made a decision to release those individuals so again from my perspective it's what we have at the moment I think actually works very well in terms of and I don't know if that's the impression that you got there I have actually matched it to determine the amount of people who are actually on remand a waiting trial in our various system and I'm happy to share that with the committee it would be useful just in summary I mean for our summary cases it's only 1% who were remand on the sheriff in jury it's 12% and high court is 27% but again I've got detailed figures and the committee would find that helpful I can get those to you Thank you and I think we would definitely find that extremely useful so thank you for that offer Okay I'm going to bring in Fulton followed by Jamie Fudd Thanks community I'm just picking up on that last point David you made there do you think that this bill then obviously we've seen a court session which was really really useful as others have said I want to thank you for that where bail was mostly granted all but one occasion but do you think this bill is actually targeting those other courts saying what you said the figures where I think did you say 13% and 25% is that do you think that's where this bill's more going rather than perhaps what we seen last week I can only talk personally because I have to I clearly am here as a member of Scottish Courts and Tribunals Service from an operational perspective the summary courts is the one that the committee saw and the figures that I have here is in relation to the amount of cases that are awaiting trial and whether individuals are at bail or they're remanded in terms of that and at that time we had 23,745 trials in the summary waiting time and only 222 of those were actually remanded which equates to the 1% if you look at the solemn and the share of injury the remand is 278 individuals in terms of share of injury and in the High Court it is 172 so those are the individuals who when you look at the volume of cases that are going through the court and you look at the volume of trials that are outstanding what I or my take on it is actually there is quite a low amount already who are on remand compared to the amount that are in the system so it would be difficult to see how you could actually reduce that further but again it's not something I can comment on because it is a matter for the judiciary to take into account as my colleague has said in terms of reasoning for why individuals will be remanded and individuals will be retained so what I was going to ask about the aim about what can you do want to consider I'm just going to clarify so the court that you would have seen on in Glasgow would the summary custody court so it's only the summary cases so when David referred to sheriff and jury in high court cases those begin by the way of something called a petition which we refer to at times as solemn business and in Glasgow there's a separate custody court for the petitions so you won't have seen those because those take place in private it's in a courtroom but the public are excluded from that when in those first appearances so that obviously that they're the most serious cases and not surprisingly perhaps that the remand figures are higher as you become more solemn in terms of the gravity of offending yeah well thank you thank you thanks to that clarity I was going to ask and my colleagues they're also in order have already picked up on it so I'll keep it quite brief but it was around the section 1 the justice social work input so you've already talked to me bit about that in the resource implications but presumably if the bill has a desired effect there will be more sheriffs taking up the option of supervised bail or other disposals so I'm just wondering again I know you can't obviously speak for the social work department either but I question a line of question that I have been asking wet diseases do you see how that can be managed if there's going to be more bail supervision what sort of resources do you think might be required to to manage that it's difficult for me to see the difference it would make to what currently happens again I mean when we went to that custody court Monday bail supervision reports were requested on a number of occasions so that already happens under the current system the resourcing would be for criminal justice social work and others to provide the level of support that is required the impact on the court is fewer cases on demand and you know there's a risk obviously with that that when people aren't on demand that there may be failures to attend or failures to comply with with the requirements of the order and that can give rise to further charges but it's difficult to quantify that but the big resource challenge for social workers having input at that stage in the proceedings in every case and to increase the alternatives to bail is for resourcing for the communities not really something that I think either if I'm sorry for the local authorities I don't think it's something either David or I could comment on further than that I accept that and I just thought I'd do getting the thoughts on the record that's fine sorry one final observation to just picking up on that is there's very much a time constraint in terms of the summary courts because individuals have to appear in court the next lawful day which is usually the next day barring weekends so there is then a time pressure from when the individuals are available from social workers available in order to get all of that prepared for the court the next day so it is as my colleague says I mean it's not really one for us to but we both I think recognise that this would be a significant question which social work would have to look into and investigate okay thanks very much Jamie thank you good morning I'm going to address my first question to the crown and I appreciate that the diplomatic answer I could foresee will be that those are decisions for governments and parliaments to make but the crown has submitted quite a detail paper outlining a number of concerns so I think it's appropriate that I do ask do you have an overarching fuel this is primarily around part one of the proposed legislation part two is a separate matter that the current 95 act is indeed fit for purpose and doesn't need to be altered so again part diplomatically isn't really for me you know I think the framework that the parliament imposes is what we work to so you'll be aware as a committee that the 95 act was amended in this regard in 2007 a couple of significant amendments that imposed the section 23d presumptions it also introduced the fact that the sheriff had to consider bail or could refuse bail irrespective of the crown's position and that was in response to public and political concern at that time arising from cases where offences were committed by people on bail and in some cases it was relatively serious and in some it was it came to light that bail wasn't refused because partially because the crown hadn't opposed it and those under the old law the court couldn't refuse bail unless the crown opposed it so that was that was what brought about these changes and we adjust to that change as we would adjust to any change that comes about from the current bill it's a question really for others to assess what the appetite for risk is in relation to what the potential consequences of that might be so in so far as the policy intentions to have a few people remanded in custody if the framework supports that then it would deliver the policy objective of the bill but it does give rise to more people in the community on bail and a risk of that and I think Mr Finlay mentioned it in the last evidence session you know there are already people on bail committing offences in the community there may be further offences by people on bail in the community it's only a risk I can't say that will definitely happen but that's certainly a current experience so that's a balancing exercise for the legislature in framing the legal framework within which we operate as prosecutors and whether it will be successful or not only time will tell us because again all of it will require interpretation a lot of it depends on and how the public respond and by that I mean those who who come into contact with government justice system and whether their behaviours will be adjusted as a result of some of the provisions most in relation to positive change if they're given the opportunity for supervised electronic monitor to bail rather than remand and actually adjusting their behaviour for in a positive way or alternatively the more negative potential impact as I mentioned of further offending and there's also the potential impact of further inefficiency with the failures of peer bias for the reason I gave earlier about the the section 1e amendment I'll perhaps reframe the question and it's relevant to both witnesses in this panel and that if the intention of the government is to reduce remand population presumably there are three ways that can be achieved one is the narrowing of the rules for refusing bill which would affect decisions made by the judiciary but alongside there are two other important ones one is the fact that the remand population as we've heard is quite high because of the backlog of cases and the time spent on remand that's one option but the second is that middle one which was briefly touched on earlier and that's whether or not the Crown opposes bail in the first place because that is the principal driver of where where there is a debate over whether bail is granted or otherwise so could there be changes made around clearing the backlog and concurrently around a shift culture or procedural or otherwise around decisions that the fiscal's make around opposing bail and the third and final option being therefore having to narrow discretion of judges and showers which seems to be the the last resort or do we need to do it the other way around narrow the grounds first and then everything else will follow Rosh where to start so there are a number of issues in there you're right insofar as the remand population my understanding of the data is that in fact over the last two or so years fewer people have been remanded and custody by the court than was the case pre-pandemic and so the remand population is increasing because people are spending longer on remand because of the backlog and the inability to get through the business so the bill will narrow the door or the intention of the bill is to narrow the door and to decrease the input but there's still a problem at the output stage in terms of the steps that we're trying to take and we are taking positively to try and target the backlog custody cases as part of that are prioritised but then in particular in the most serious course there are so many priority cases that compete as well as other factors which impact on scheduling and prioritisation so the policy intention of reducing the backlog requires I think that action at both ends if that's what the intention of Parliament and Government is and that's as I say it's a political decision I'm not sure that I can comment much beyond that I don't accept, as I said earlier I don't accept this proposition that the fiscal's attitude to bail is determinative I think it does a disservice to the professionalism and the skills of our judiciary and in fact of our defence listers who advocate in favour of the accused to suggest that the fiscal opposing bail is the factor which determines whether or not bail is granted it may be the factor which in practice brings the matter to the attention of the court to make an informed decision as opposed to accepting parties position that bail is not opposed and accepting that as a professional judgment on the part of the Crown but it's a matter for the Crown I think in appropriate cases where there are good grounds and good reasons to consider that bail may be opposed may be refused to make those grounds available to the court and for the court to make the decision and that will be the case irrespective of what the legislative framework is the legislative framework will just shape the basis upon which we will oppose bail or the number of cases on which we oppose bail will shape it because there will be certain instances where it will not be open to us to oppose bail anymore but the decision will still ultimately be rested with the court You have expressed some reservations about the proposals in writing if perhaps less diplomatic in writing than in person but those are notable Aside from the issue of public safety is the issue of prejudicing the whole justice process and that includes those who I think you use the words of a number of co-hort of offenders who use the system to evade justice by non-appearance for example Is there any concern that by shifting the balance to the sole principle of public safety being the primary ground for granting or refusing bail that there is an inability for sheriffs to remand people where there is a concern or significant risk that person will simply not appear in court at a future date and we saw that in person where those dates are set and normally quite quickly after the custody hearing I noticed as well but we do know there is court but we simply won't attend so is that inability to remand those people for that reason specifically a real problem So that's one of the concerns that we did raise in our written evidence that with the amendment to section 23c in relation to summary cases and only summary cases the history of not attending can't be relied on by the court as a reason to refuse bail that they may not attend at future diets so I was trying to find one copy of the acting of the correct reference but it's it will only allow section 23c the proposed amendments to add a subsection 1 capital A and that makes it clear that in summary proceedings the court can only take account of the grounds in section 1a which is the likelihood of absconding or failing to appear where the question persons previously failed to appear at a relevant diet and the relevant diets in relation to the current proceedings so that again from a custody court for trector there hadn't been any relevant diets and separately if they're actually charged with failing to appear we can we had the court can refuse bail in those instances so it does remove from the court a cohort of cases where the Crown would oppose bail on a history of someone who does a lengthy history of not attending that that will no longer be open to either the Crown to oppose it for the court to refuse bail in summary cases only I hasn't had that that's the way that the bill is framed at the moment and that as I said earlier I think in response to a question from Ms Clab but the difficulty with that is that the impact on the system because if they don't turn up the diets have to be readjusted witnesses have to have to be countermanded and sometimes if they don't turn up and it's the trial diet they've actually attended and then have to be sent away to come back another day and there's a public confidence issue in the court when people and in the injustice system I should say that if people are known not to attend and they're still allowed out and don't attend again can undermine people's confidence in their own willingness to attend court to do their public duty giving evidence and and that's obviously undesirable but that's where the bill is at the moment yeah thank you and Mr Fraser just one question for you and that's you talked earlier about some data that you had access you've probably heard us complain considerably about the lack of data available to us in this issue but that that pyramid of people from summary cases where very few seem to be remanded unless it's quite a grave offence or that the sheriff feels that the immediate need to remand someone down to those more serious cases at the high court or solemn level where there clearly is a marked increase in the amount of people who are being remanded is that due to the nature of the shift in the types of offences that are coming through the courts or is it simply as some people believe that too many people are being remanded for the wrong reasons and that's a philosophical debate but it seems to me that where the volume is coming from is those serious cases where it may be the right thing to do to remand those people for not just public safety but a whole wide range of reasons and I can give my personal observation having been involved in things that have within the Scottish courts and tribunals and service and there has been a bit of work done which led to the LDC's review into how we manage sexual offence cases and that was privately driven by the increase in volume in that nature and type of crime again I'm strained perhaps in territory I shouldn't be on to but you would assume that the more serious offending then those are the individuals that would be coming through the currently the high court and those would be there for a longer period of time the summary cases that we talked about I mean there is the 40 days and the Scottish courts have prioritised those so if you are remanded pending a trial in a summary mark which was the 222 individuals those trials would take place within the 40 days so notwithstanding we are still working through the backlog of cases this is actually a separate issue because they are not being held longer than that statutory time limit and that continues it is the solemn which I think you've picked up on Mr Greene which is potentially people may be there remanded for a longer period of time so is it the numbers that are there or the duration that people are spending and that's not data that I have but I can understand you there's just making that correlation between you know that this clearly disagreement of schools of thought that we are remanding to many people whilst not necessarily analysing the data around who's being remanded and for what reason and I think that's an important piece of work that's yet to be done which would help inform our view whether too many people are being remanded or not well I'm certainly happy to share with the committee the information I have in relation to cases that are pending trial and the status of individuals at that and it also goes into the I can give you the the various offences which they are there for that would be helpful which I will share with the committee thank you thank you thank you thank you thank you and I would we would happily accept any data that you can provide it's an issue that has emerged and has been the focus of probably some more questions from committee members so that would be very helpful collect bring you in and then I'll bring in Rona thanks convener and good morning is that a kind of following on from jamies and I think it was a comment that was actually made on the day that we were at the sheriff court and I think it was from sheriff jone care and that more more so within solemn cases rather than summary that the accused don't even apply for bail they automatically go on remand obviously depending on what the case is is there stats or any data to suggest that there's a shift change in that at all or or any data at all on that I'm aware of from SDGs perspective I'm not sure is this data in relation to those who don't apply for bail yes I'm not sure that that's recorded I think bail just be recorded has haven't been refused but there are a number of factors which might give rise to that position on the part of the accused in relation to is generally in relation to other personal circumstances or other cases um so there may well be you know sort of they may well know that they're about to be remanded or sentenced on something else and so starting starting the clock ticking on their their custody period at that time is still open to the court to grant bail notwithstanding the the lack of motion although in solemn cases that's that's unusual perhaps in less so in the summary cases but you know the the solemn cases yes if somebody doesn't ask for bail that's generally the determinative and as I say that the there will generally be something something behind that that gives rise to it and as I say often because another sentence has been served or some other thing on its pending but I'm not sure how you would get data specifically on it I'm not as I say I'm don't think it's recorded separately in the court system it's not in the court system there yeah can you understand but why where we're trying to drill down in time analyse that that kind of information for the very reasons that the bill is coming forward in terms of demand figures are are so high as well I don't know if this was raised with the law society I can't remember from the transcript that I looked at but the law society might be the best people to ask for that to ask for the reasons why people wouldn't move for bail that might give you an idea they'll they'll have a better idea of what I do because I'm sitting on the opposite side of the table and don't have access to the accused and his his reasoning for his decision so it may be worth if that's an important point I ask the law society to be able to give examples at least of the type of reasons why that might be the case okay no thanks the other thing I just wanted to ask is and it's quite a wide ranging question in terms of overarching one but based on in your submissions as well and looking at the actual bill itself from each of the sections is there rather than obviously you know critical analysis of it is there anything that you would suggest that we do going forward in terms of amendments coming through the bill no but thanks for the invitation as I say that's part of the part that's for the government it's not for the prosecutor to frame the law you know we've highlighted what we think are the practical consequences and difficulties of the bill as it's currently phrased in the submissions which is I think so appropriate and right in terms of prompting this consideration by the committee and by the parliament as a whole but as for what the framework should be that's not a matter for us I'm afraid okay thanks for your answer David do you want to comment I think I will equally decline from an operational perspective I can talk about and it would have an impact in terms of of the Scottish Court Service and our courts and how we run and the impact in terms of that and as I say I think there is a submission from the judiciary so I will I will leave it at that okay thank you okay no further question it's worth a try yeah I know at Rona thanks thanks convener Kenny can I come to you first please at the risk of repeating myself 23d if you have your views please so genuinely neutral as a prosecutor neutral because the law is the law many of the factors particularly around violent crime will still be captured by the definition of public safety subject to that being clarified but as far as section 23d would allow the court to to take account of previous convictions for public safety then previous convictions for domestic violence for sexual violence and for just more general violence would presumably fall within the way that the much stance interpreted by the court and so would still allow the court to take that into account the I suppose the argument in favour of removal is that it gives the court more discretion by removing that presumption that veil should be refused unless there's exceptional circumstances but it's it's not something that that I would express a view on one way or another it will come down to the interpretation of public safety and the application the one area again and again drug dealing is the other factor that's called capture by 23d and again subject to clarification of what public safety amounts to you would like to think that there's a public safety element to those you know supply of drugs so do you do you think it's going to make a lot of difference the removal of the exceptions? It's very hard to tell I've seen and been involved in cases where anecdotally where and I think there's been some evidence before the committee about references to cases where the previous conviction was many many years ago or was such that the disposal was was very low which would indicate that the court perhaps didn't take a serious a view of it as might otherwise been the case and whether that's a proportionate response to use that as a basis to give a presumption against the granted veil I can see those arguments but it's not a matter for us to comment on a particular the legal framework and the risk of the legal framework is for you and is for me to operate within that but I see the argument and I can see it would still be within the discretion of the court to take account of those previous convictions but what this does is give the court greater discretion to grant veil without having to require exceptional circumstances which and again go back to even that phrase itself when I talk about the confusion and inconsistency caused by the lack of definition when section 23 D came in at first there were a lot of just different interpretations by the court as to what exceptional circumstances were and it took some time before we got definitive guidance from the court as to what that would be and it's stabilised at that point so on but in the meantime you had an efficiency and inconsistency okay thank you for that just one other question for for you the proportionally a very high number of women on remand and a previous witness had said that perhaps he thought that in some cases sheriffs were doing that because there was not really any alternative that they didn't really know what to do with you do you think that's the case and what would you can ask what you think your what is your opinion on the high number of women on remand is it because there's no through care or not nowhere else to I genuinely don't know it's a statistic that over the years has been presented to me and it doesn't always reflect my experience of being in a court and so it always comes as a slight surprise because I'm still a wee bit old fashioned but generally my impression is that more males are remanded than females but I suppose it's the proportions but even proportionally I find based on just my experience is quite hard to reconcile but there's not a question that the Crown or indeed the court are taking a different approach and you know it's a mystery it is and I'm sorry I just can't reconcile it and you know we're increasingly aware and increasingly do as someone of the questions earlier about the fact that we do get input from criminal justice social work and that's particularly so in vulnerable groups if they're in the cells they're prioritised you know so if you get children and often women and particularly if they're women with children you know that they'll get caring responsibilities for and so there is more often than not some input from social work that would provide different options for the sheriff but so it's difficult to as I say that's why I find it difficult to reconcile the experience in practice with the data which I'm not questioning the data it just sits uncomfortable with my personal experience and I cannot I cannot provide a reason for it sorry thank you thank you David if I could just come on to you when we were at Glasgow in that very interesting visit we learned that there are different courts being set up there's a women's court which is about to come into play and I wonder if you could maybe expand on that a youth court and a drugs court and I'm wondering are these trial courts if the youth court and the drugs court have already been running how's it going and what's the scene for the women's court okay what I will do if you don't mind is that I will I will write to specifically all those points all those points yeah and the the new court that's being being set up is in relation to trials we have got a number of specialist courts that have been running in Glasgow but I'm more than happy to give you an update that would be helpful in terms of how is it all of the courts or the women's court that you're particularly interested in well those are the three that we we heard mentioned and I just didn't know whether this was a trial period or is this set to run or it's been it's been set up it will be evaluated but I'm happy to I'm happy to get you all right that would be good that would be good that would be good and I'll give you an update of where we are with each of these courts and what the invention is that would be excellent thank you thank you thanks, convener okay thank you we're just actually on time but I'm going to ask Russell to be very quick and then Jamie wants to clarify a point so he's promised me he's going to be even quicker so Russell over to you I will be quick so if this bill leads to more bail there's probably going to be an increased reliance on supervised bail which includes I believe an electronic monitoring we've heard evidence from some people that that whatever time is spent subject to electronic monitoring should be have a bearing in the sentence that's ultimately given if there is one um so I suppose the question is do the crown have confidence in supervised bail electronic monitoring as things stand and if so does that apply Scotland wide or is it a bit of a kind of patchwork quilt and secondly do you does the crown of any view on the suggestion that time spent subject to bail supervision should be a factor in the subsequent sentencing okay so just to be clear the supervised bail and electronic monitoring bail are not always one and the same thing so you can have supervised bail with electronic monitoring or supervised bail on its own but generally speaking it's more about the court's confidence in that because the court obviously has to impose that as an alternative to custody it's only going to impose that where it's thinking that remand might be the only alternative and generally speaking the reports that we get suggest that that's a reasonably effective as I've heard there's there's some levels of non-compliance I haven't got data for that but it would be the court service I think we'd have maybe had data on that David but sorry but we you know someone could could look for that so yes the electronic monitoring still in its relative infancy is a as a project and it's not consistently available so I think I mentioned this point earlier the last update I had on that there were still quite a number of local authorities that didn't have the resource of facility to support electronic monitoring bail which means that in certain courts it's not available similarly supervised bail with local authority budgets it's again I would need to get someone to confirm whether it's available on every share of court but I'm not not sure that it is or that it's available to the same level I'm seeing that come up in an earlier question I may have been in fact John Watts session when he talked about drug treatment testing or there's not currently been available thinking error because of resourcing issues and such like so so there are resourcing issues for local authorities around the support of those schemes I mean I think I speak further on here that the more data we have the better in terms of what is available just now how it works how it doesn't work you know so okay thank you so we can try and find that out and I'll write to the committee okay thank you and Jamie Finlay thank you the financial memorandum associated with the bill contains commentary that the Government believes that this will have no upfront or one-off costs to either the Crown or SCTS however earlier you stated that there would be some procedural or technical changes needed to be made within the system to accommodate any changes that the bill would implement so first of all do you agree with the Government's assertion that this will come at no cost to your organisations and if you disagree would you go away and do any associated analysis or work on what changes would need to be required and the potential costs of doing so start with Fesidies thank you I do think there would be cost involved and I'm quite happy to go away and have a look at those and again when I write to the committee include those thank you There are no immediately obviously calculable costs for the Crown because we will still get cases in them and we'll still consider them and still present them to the court for the court to make the decisions that the potential costs are in any increased number of diets per case if there's further failures to attend and such likes which is all speculative and difficult to predict equally if the course are to run longer then we're obviously going to have to look at the resource impact that has so for instance when we talk about both the need for social work input to be factored into the timing of the court and for the written reasons to be factored into the court then we may run into a situation where we're looking at additional costs in terms of overtime and such likes for staff who are managing the courts but there's nothing particularly that I would say that's apparent we'll obviously keep that under review and if there's something that I've missed that my team are shouting at their computer screens at the moment then I'll write in and let the convener know but it's not obvious that there's an easily calculable answer to that yeah but you will know the cost for example of non-attendance and repeat try to repeat diets coming back to the same place or additional deputes or for example I mean these things have costs I'm sure so sure yeah and we can look at that and you know and certainly you know each case you know that request by John but it was an average of three witnesses in some any case so you know the cost of those or the impact on them will depend on the stage at which the the non-attendance is whether they're in attendance or not and such like so I'll take that away and see if there's something that I can reasonably provide I don't want you know it's it won't be too speculative about it but equally I'll try and assist as best I can thank you thank you very much grief that brings our session to a close thank you very much indeed for your attendance and obviously we'll look forward to receiving some of your follow-up submissions so on that note that completes our public agenda for this morning and we'll now move into private session thank you