 Hello and welcome to the second meeting of the Criminal Justice Committee in 2023. We've got no apologies this morning, and our first item of business is a�oral evidence session on the bail and release from custody Scotland Bill. We've got three panels joining us this morning. Our first panel is Stuart Munro, convener of the Criminal Law Committee of the Law Society of Scotland, and Stuart is hopefully joining us online. Mr Fred Macintosh, KC, Faculty of Advocates, and Ms Joanne McMillan, committee member of the Glasgow Bar Association. So, a very warm welcome to you all. I refer members to papers 1 to 3. I intend to allow up to 75 minutes for this session. As time is tight, I would ask for succinct questions and responses. On that note, I'll move straight to questions, if I may, and just ask our panel a very general opening question this morning. I'm going to refer to section 1 of the bill, which relates to input from justice social work to inform bail decisions. I'm interested in your views on whether courts are currently provided with sufficient information when taking decisions on bail and remand. I'll come to a very general opening up question. I'll come to Fred Macintosh first, then I'll bring in Joanne and then we'll come to Stuart. Joanne is probably better placed to answer the question in detail because solicitors appearing for clients on remand are the people who are dealing with the cases. I think there is a lack of material. I'm old enough to remember that in the early 2000s, almost every person who appeared from custody had a bail supervision report. It was almost standard, not in almost every court, but quite a lot of the courts. It meant that sheriffs were provided with information about alternative addresses about supervision in a way that I don't get the impression that they are now through our bail appeal practice, but it's a good idea to provide more information. Ultimately, I'd defer to Stuart and Joanne as people who are dealing with this on the front line. Thank you, Joanne. I'll just bring the news straight in. Yes, thank you very much. Good morning, everyone. I noticed that a lot of you were at Glasgow Sheriff Court on Monday to have the pleasure of the custody court on a Monday afternoon. As you all saw, it's a very busy court. I've been a solicitor in Glasgow coming up now for, I think I'm now 11 years qualified, having practiced in Glasgow in a legal aid firm throughout that time. I'm now a member of the Glasgow Bar Association. We're all actively involved in terms of being in court on a day that I'm there every day. I usually have a custody most days, and I'm pretty familiar with the processes that are in place. I think that it's fair to say that the bail supervision is something that's pretty new for members back in the day when there were these provisions put in place. However, that seemed to not really take effect. At the start of my career, I don't really have much recollection of dealing with bail supervision when I first started off appearing. However, there definitely has been now a move towards far more use of the bail supervision, and the social workers, the bail officers who go to see the accused person when they're in custody and prepare a report, both in relation to electronic monitoring, and they assess them and check out addresses and suitability for being placed on electronic monitoring. Over and above that is bail to check out their suitability for supervision. That involves meeting the social workers on a regular basis. It's probably similar to being put on a community payback order pre-conviction. It's that same kind of work that's involved, dealing with them, checking in with them, making sure that they're staying out of trouble and making sure that they're complying. Overall, the GBA is very supportive of the bail supervision scheme. It's something that, often when a client is on the cusp of being remandied in custody, that can be the thing that encourages the sheriff to grant bail and perhaps gives the sheriff a bit of comfort in knowing that an accused person isn't simply just going back into the community with no support and that they're going to be getting support from the social work department. It's quite effective from the point of view of, I had a case recently where I had a female who'd gone into the 218 project. I don't know if any of you are familiar with that. The 218 project in Glasgow is a third sector organisation that deals with women and women's issues. It deals with people who get addiction. As part of the bail supervision, there have been recent cases in the one that I've had that the accused was bailed to the 218 project. In addition to the supervised bail report, the social workers were also involved along myself in the 218 of having the client assessed for the 218 project, which meant that she went there on a residential basis and that she was given treatment in various different things within that forum, which is a really positive thing. The bail supervision not only just deals with the social workers, but they bring together other agencies like the 218 project to try and provide a greater level of support for those that are very vulnerable and those that are very close to going to custody and providing alternatives as well. There definitely are pros to it. There are some difficulties in terms of the administration of it. Often, as you saw on Monday, it can be a very busy court. A lot of the time, the Crown do take a considerable minute of time to mark cases. On Monday, for example, it seemed to go quite smoothly. That's not always the case. You can find yourself sometimes—I had a case just before Christmas for a young 21-year-old vulnerable boy. He never had his papers marked until after five o'clock, and he never appeared in court until half past five. By that point, the social workers are away. The social workers don't assess them for supervised bail until they know from the Crown that their bail is going to be opposed. We then ended up in a situation where a vulnerable 21-year-old is remandied in custody overnight for the bail assessment to be done. There definitely are practical issues in terms of dealing with it. A couple of suggestions that colleagues have had, and I think that the Sheriff's Association I have picked up, would potentially be for perhaps an earlier stage, even in the day, for the social workers to start their assessment or even in a situation where the Crown might have the benefit of the bail supervision report prior to coming to a decision on bail, might help to inform their decision, and they might not then oppose bail. If the Crown were to have that information and have the benefit of the bail supervision report, they might come back and instead of saying, right, we're going to oppose bail, say, well, actually we would be content if bail was to be granted with supervision attached to it, and that would take away then the process of having to have the case—well, the case would still require to call, but then there wouldn't have to be this time taken of going back and forth arguing over whether or not bail should be granted. So there definitely is value, but sorry. Yeah, but this is really, really helpful and interesting and certainly fits with what we witnessed and what we observed on Monday in terms of the use of supervised bail. I'm just going to bring in Stuart Munro if I may, just to keep things moving a wee bit, but what I'm also interested in that is the information that is provided to the court from criminal justice, social work and potentially others, and we'll maybe come on to that later, that is informing bail decision making and in relation to that a decision around the potential for supervised bail. So can I maybe bring in Stuart Munro and just maybe ask for your views on the provision of information to the court in order to inform decision making around bail, Stuart? Yes, good morning, thank you. I am appearing today in my capacity as convener of the criminal law committee and the law society obviously represents solicitors from around the country, but I am, like Joanna Glasgow's solicitor, I spent the best part of 20 years going down to the custody court in Glasgow, not done it so much in the last few years, but I absolutely echo what Joanna particular has said about the crucial nature of social work input into bail decisions. The courts are very often dealing with incredibly vulnerable people, vulnerable complainers, vulnerable witnesses, but also vulnerable accused, very many of whom have got complex social problems, whether it's addiction or mental health difficulties. Inevitably, only very limited information about any of that is likely to be available in the very short time that the court has to process those individuals through what can often be a very busy custody court. I don't know how busy the court was when the committee were there the other day, but back in the day that were bank holiday custody courts in Glasgow that would exceed 200 people going through and they all had to be processed in the course of an afternoon. The social work input is absolutely critical. Fred is absolutely right, there used to be a very well utilised scheme of bail information. I remember back in the late 90s going into the bail information room where social workers were available to carry out urgent inquiries, make phone calls, search records, that kind of thing, in order to provide information to the court that would then impact upon bail decisions. We, as the Law Society, have had a look at this, the question of the extent to which such information is available around the country when there was the recent change to the availability of electronic monitoring as a condition of bail. The committee will remember that that was reinstated not so long ago. The experience frankly varied considerably around the country. Some courts were able to resource it, other courts simply weren't, and it all came down to ultimately local authority resourcing. The position was that in certain courts, following the reintroduction of electronic monitoring as a condition of bail, it was possible for an assessment to be carried out from day one, in other courts it simply wasn't. That highlights the problem that ultimately we can all agree that the information is critical. The information will assist the court in making the right decisions in the interests of everybody, including public safety. However, if the resources aren't there, if they don't have personnel in the courts able to deal in the way that Joanne says, very often late in the day after a late marking of a case or a late arrival of an accused person from a police station, then that information is simply not going to be available. As I said, we are often dealing with incredibly difficult, vulnerable, often mentally those with mental health difficulties, those with addiction difficulties and without the information that comes from social work, it's very difficult to expect judges to make the right decisions. Thanks very much. That's extremely helpful and I think we'll open up some supplementary questions. I'm going to open it up now and I think Fulton you want to come in and then I'll bring in Jamie. Convener, I'll just clarify. It wasn't necessarily a supplementary. I've just put my hand up to see how it went down. Is that all right? It is in this area though, so it is following on. Can I just check with A. Stephen here so I don't need to do it three times? I was going to declare interest to my, refer to my members' interests. I won't do that once. I doesn't need to reach panel. So I do that. So thanks very much. It's on the discussion that we're having here just now about the Bail Supervision and certainly when we were at the court the other day, Joanna, you're absolutely right. We've seen it in action. It was really good to see and we've seen that the Bail Supervision assessments had been done a number of times, but of course not all of the times, but we don't know whether they were required. Does the panel think that the purpose of this bill is really to ensure that perhaps going back to the old days is to have the panelist referred to the Bail Supervision assessments are done for every case? You know, whether that's a thorough assessment with somebody with complex needs or simply a one-page assessment saying that this person doesn't need Bail Supervision, that still an assessment should be done for everybody? Yes. In terms of whether it's for everybody, I think there are some circumstances where it's probably not needed. So for example, if you've got a client who is appearing and isn't asking for Bail, they're remandied in custody for something else and they come down and appear in order to initiate the process. I appreciate that you were in the summary court but in the petition court what would normally happen is that they would come down to answer the case, then they would either move for Bail or not move for Bail and then that kick starts the petition process. So there might be some circumstances where clients are not wanting to ask for Bail, i.e. you're already in custody. So it would be a waste of resources, I think, if it was to be in every single case. So perhaps if it's somewhere along the lines of seeing where the accused is moving for Bail and seeking Bail, so is that the social worker are not carrying out reports for people that are not asking for Bail in the first place so that those reports are unnecessary and that might try and restrict the amount of reports that are required. I should have clarified that, that's what I mean. It's when Bail has been sought that a report is always required, whether it's obvious or not that maybe Bail Supervision isn't suitable that the social worker still requires to meet the person and at least say that to the court. Yes, I think the case that I had on Monday when it called in court, I could tell that the Crown were opposing Bail, the person had no previous convictions, I knew the sheriff was more than likely going to grant Bail and that it wasn't necessary for Bail Supervision to be done so I suppose I made a conscious decision as a professional not to have that assessment done, addressed it with the sheriff and indicated that you know if she was considering remanding the accused, which I didn't think was likely, then I would arrange for the supervision assessment to be done. Again, there's perhaps situations like that as well where you kind of know that it's very unlikely and that it's not necessary for supervised Bail, but I suppose the majority of cases I would say that it's necessary for young people, absolutely essential for young individuals to have supervised Bail assessments done and I think there definitely should be some sort of, if they're not going to do it in every case, then there should be a distinction, particularly for young people, that it be mandatory for young people. Fred, would you like to come in? Yes, I'm never sure whether I press the button or not, but... That's fine. Yes, so it's worth saying that the world has moved on in two important ways since the 2000s when this sort of existed before. The first is there's a much greater use of undertakings where the police charge someone and then release them on an undertaking to attend on a later date or even now on police Bail and that means that people will be out there in the community having been charged for weeks in some cases and recently it's been much longer than that and then they turn up at court to receive the marking decision of the prosecutor. Now most of the time Bail isn't opposed, but you always get that terrible story of, well I turned up and suddenly having been out in the community, hopefully behaving oneself, you turn up and caught on your date and the fiscal opposes Bail at that point. Now to lawyers that's not necessarily as mad as it sounds, but it happens and so even people who are on undertakings may need Bail supervision reports, perhaps only when the fiscal opposes Bail and the other thing is that fiscal is no longer have the discretion that they used to have. So in the old days, and I'm looking at Stuart at this point, a fiscal that marking would happen locally in the court, often by a more experienced deputy and then the deputy in court would also have some discretion about what to do on the day about Bail and the impression I get and I'm sure you can ask the Crown Agent if they give evidence when they, there's the fiscal's now are much more bound by the marking decision and that means that you can't really negotiate in a sense once a Bail supervision reports in because the marking decision's already been made. So it's probably not as clean as it used to be and it will probably involve some form of local policy negotiated between the court and the fiscal's and the social workers and defendations so that people know when to ask and how to ask because it isn't the old days where there was fewer cases and fiscal's could change their minds and they don't seem to have that autonomy anymore. Can I just bring in Stuart? I think that Stuart, when we would like to come in. Thank you, convener. Just go back to Mr McGregor's question. I think there's a danger in overthinking this. The Bail supervision would ordinarily focus their resources on the cases that were going to be most problematic. There is very often in the modern day much better sharing of information between the various partners in the justice community. Certainly in Glasgow, as a member of the Glasgow Bar Association, I will get an email maybe at 10 o'clock in the morning in advance of the custody court starting in the afternoon saying, here are the people that are going through the custody court this afternoon. Here's an update on what the fiscal has decided in respect of those cases that have been looked at so far and there's regular updates on that. A solicitor, before they even go to court, before they even go and see their client, might know what the crown's attitude to bail is. The crown's attitude isn't necessarily the be-all and end-all of things but that gives a step for a hint to the social work to know which cases are perhaps going to require the most resources. On the other side of the coin, there might be information—you may have a case where bail isn't opposed—where there is nonetheless helpful information that the social work department could provide that might assist and might assist the defence and might assist the court in making decisions as to further procedure. Fred is absolutely right. We have a more dynamic system. Many more people are released on undertakings. The question of bail arises in the undertaking setting as well. I just think that the reality of the cut and thrust of both the custody court and the undertaking court is very often that the position isn't clear until pretty late in the day. We do our best to try and anticipate what's going to happen but there can always be changes at the end. The key thing is that the resources that are available for bail supervision are focused on the cases that are most likely to be in dispute. Thanks for that. When we've seen it at Glasgow, it seems that there is a good connection between the courts and the criminal justice social work team. However, we have also heard that it might not be the same everywhere across the country. That is why I referred the committee to my register of interests, because I have worked in that area previously. My second question was about how that could be implemented. Obviously, the criminal justice social work teams that do the criminal justice social work reports for sentencing and the community payback orders when people are sentenced are separate generally, certainly in Glasgow and where I worked previously in Lanarkshire, are separate to the community justice teams. The bail supervision teams are a separate entity. I don't quite know the numbers in Glasgow, but they're usually pretty small. I'm not sure, I think. It's maybe two folk. How do you see something like this working? I know it's probably not for this panel to answer completely, but do you see it working that it would be specific bail supervision teams rather than the rest of the community justice team? People aren't sentenced yet, it's a very important distinction. In carrying out the work of bail supervision as well as the assessments, there's quite a lot of work. Where do you see that going in terms of resources if that is going to work? In terms of Glasgow Sheriff Court in particular, we have a specific bail officers within the court. There's probably about four or five of them, some work part-time, some work full-time. In addition to that, we also have the social work department, which is upstairs, which has a handful of social workers up there who deal with perhaps if you get children that are in or need secure screenings or that sort of side of things. There are quite a number of them there. If you were rolling out across the country, you would really need people within the court building to be able to go and see these custodies as opposed to simply just coming in later on in the day. I think you would then be in a situation where it probably wouldn't be happening. If they're in the building, the solicitors know they're there, the clerks know they're there, we're able to go in and speak to them and have a relationship with them. I think it makes the whole process overall work better. For example, in the case I had with the girls in the 218, the social worker is in regular contact with me, so if I bump into her, she'll give me an update as to how she's getting on, if there's any issues, she'll be able to contact me. There definitely is very much a proactive work in relationship between the defence, between the court and between the bail officers. I think the only issue is that they're pretty stretched in terms of their resources, and I think that Stuart dealt with that at the outset in terms of the issue. It's going to be something that will be an expensive exercise in order to roll it out across the country if it's not happening in the out-of-town courts, but it's definitely something that is worthwhile. I suppose that that's the point that I'm making in a dash game at the other two panels, if they generally agree with that. If there's going to be more supervised bail, that means there's going to be more supervision. If that and sheriffs are expecting, we could see that even on Monday. If sheriffs are expecting and supervised bail isn't blessed, there's almost a package of support around that person, so that involves regular meetings. I can't quite remember exactly what the protocol was, but I think it's every second day or something like that that social worker needs to meet with the individual. It will be different, it could vary, but in terms of that, that's a lot of work as well as preparing the bail supervision reports. I think that that's the point that I'm trying to make, if we're going to do it, it's going to take investment. I'm just wondering if Fred and Stuart have anything to comment on what John said. Briefly, two things worth saying. Obviously, if there is more supervised bail, you might expect there to be less remand. There's obviously a saving there for SPS, but there's more cost to local authorities than that. It has to be taken account of. The other thing is that cases are taking longer to run than they did 20 years ago. If you're on supervised bail for 18 months, which is not an unusual period for a non-domestic sexual priority case in Sun and Sheriff courts, that's seeing your supervisor officer weekly for 18 months. That's a lot of money. If you're going to save money in one place, it has to be replaced to speed things up and move things in others. Stuart, do you want to come in? Yeah, just a couple of things. In terms of, I think that the discussion is kind of moving slightly off from where it started. Supervised bail, I appreciate we've been referring to bail supervision officers, and that probably doesn't help any confusion. I think that the team that Joanne was talking about in Glasgow Sheriff's Court offer assistance to the court in making decisions about bail full stop, and so their input might lead to people being granted bail in standard conditions, but it might also lead to people being granted bail subject conditions as supervision. Fred Wright about the backlogs in the system, albeit the backlogs certainly in the summary side are not nearly as profound as they are on the solemn side. Somebody could be in supervised bail for a period, and if they comply well with it, maybe they don't need to be supervised anymore, and that kind of flexibility is built into the system. Fundamentally, in terms of the cost of resourcing, Fred alluded to it. It's far cheaper, frankly, for somebody to be supervised on a bail order than to be held in remand. In the cases where it's the right way forward, far less social damage caused the interruption to that person's life, their family relationships, their employment, for example, of being held in remand, can be ameliorated by them being held in supervised bail. I completely appreciate that that comes out of different budgets, comes out of the SPS if they're on remand the local authority if it's supervised bail, but there certainly is a social benefit in focusing resources in that direction. I agree with any of that. I'm going to move straight on to Jamie. We've got a number of members wanting to come in. We've spent a bit of time talking about input from social work and other stakeholders in relation to informing bail decisions by sheriffs. I don't think that any of that is unwelcome, but there are other parts of the bill that deserve further scrutiny. In particular, I would like to focus on the parts of the bill that deal with the grounds for refusing bail and the removal of bail restrictions. It sounds to me like from the discussion that we've had that many of the issues that currently exist in the system are practical issues around the provision of information and the knock-on effect that that would have on resources, either criminal justice or local authorities. I want to ask about the legislation itself. It doesn't strike me as obvious that you need legislation to fix what are clearly practical issues in the system. You don't need statutory primary legislation to fix those issues. Those could be fixed, as it is. I'm guessing that I'm asking why we need a bill to reduce the manned population. The Government clearly thinks that there are too many people on remand, and that's the whole point of the bill. Is the remand population too high? Does the bill appropriately deal with any perception that there is a high remand population? That's quite a general question first, and I'll come on to a specific one after. The first thing to remember is that the remand population in Scotland is not that big, but it's not that dissimilar from the remand population in England and Wales. There's recently been a report in the House of Commons equivalent of this committee about the English problems, which I'm bare reading. The reason the remand population might be said to be too large is because everyone who is remanded is not necessarily receiving a custodial sentence. To take a good example, which is raised by a number of groups in their responses to the original consultation of domestic violence, domestic violence requires a rapid response from the justice system as a whole, and there was a day when trials happened quickly and, as Stuart noted, the backlog was reducing. If you need to remand someone because of the nature of the alleged offending and domestic violence, then you want to resolve the matter quickly, and then maybe remand is not so terrible, but if it's going to drag or if the remand is less justified, then you're spending money and causing disruption for no good reason, and the reason I think you need to bill primarily is section 23d. My reason I'm here is I spent 10 years doing bail appeals, so the people who appeal their bail decisions every morning 10, 12 cases, and it is, I think, the case that there are people—I think they're the judges and the sheriff's note this—who are remanded who probably wouldn't have been on the old system because they had a conviction for which they were sentenced to imprisonment on indictment when they were much younger and they sort of changed, and they did something completely different to that allegation, or their qualifying conviction was a bit odd and therefore they got a custodial disposal when normally you get prison for that, and those people, it always seemed rather unjust, were having to meet an exceptionality test. I'm not convinced there are people out there who really shouldn't have been—who were appropriately remanded by 23d who was fully justified. There seems to be a small number of people who've suffered an injustice, and for all the times as a bail appeal lawyer, you criticise sheriffs. They generally do a good job, and I think the discretion is important, and so getting 23d is essential. Get rid of that, and it seems to be quite a consensus. The other change is about the rest of the 23d and C particularly in the bill. It all depends on what ministers really intend, and what you intend as a Parliament. I wouldn't necessarily agree with everything that the sheriffs and the judges have said about the idea of the public safety test, but if it's intended to be a change, then it should be more overt. But if it's not intended to be a change of the test, it's all very pointless, because the previous change in 2007 just rewrote the law, and I was very heavily involved in bails then, and the test didn't change, apart from 23d, but we had a new bunch of sections, and so it all slightly depends on what the purpose is. If the purpose is to make it harder to repose bail, which the act reads as if it is, then all fine and good, and if that's what people want to do, then that will be the effect. But if the imperpus is just to rewrite it in a new, elegant way, that might not necessarily be essential. I've not really heard one way or the other what the ministers' plan is. That may be me being a little cruel, but 23d is essential, and that requires a bill, and that's a good thing, and it's worth doing. Okay, and your comments are on the record. Those are questions that we can ask the Government when they appear before the language. I'll come back to you in a second, because I want to move to the law side first. In your written submission, your response to that question is rather brief, and it's quite non-committal. I get the impression that the law side doesn't really have a view on changes to the Grounds Refusing Bill. You just state the obvious in the sense that judges give careful consideration to these matters, the judge each case on a case-by-case merit basis. We all know that already, but you haven't actually made any commentary on those proposed changes. I wonder if you could share a view if you have one now. The position of a law society is really aligned to that of faculty, which I think that Fred has explained pretty well there. I think that it is a few observations. Sundernauibley, the case that Scotland, in common with England, sends people to remand more than many other jurisdictions do. That is, I suppose, a political choice in the final analysis, and it's for parliamentarians to decide whether or not that's a good thing or a bad thing. From our perspective, the only observation that we would make is that it's important to consider all the implications of a decision to remand somebody in custody. There are cases where clearly there is no alternative but to do that, but it is important to remember that not everybody who is accused of a crime is guilty of a crime. It's important to remember that not just the making of an accusation but the remanding somebody in custody, the depriving them of their liberty when they have not been convicted of a crime, can have major implications and not just for that individual. They can lose their job, they can lose their reputation, they can lose their later ability to travel or to participate in particular activities, but they can also lose family relationships, they can also—there can be huge implications for children, for partners and so on. All of those are important considerations that they always have been, but there are undoubtedly cases where people are remanded in custody where other alternatives could have been made available. As to the question of whether or not there is a need for legislation, absolutely, we agree that 23D is an unhelpful provision and its removal would be of benefit and would allow better decisions to be made by the courts without the exceptionality test that Fred refers to. The terms of the bill in respect of clause 2, again, I can't really do anything more than echo what Fred says, it kind of depends what it means. The senators were very concerned about the original approach that was taken in the consultation paper about whether or not there was a conscious decision to remove one of the legs upon which Bill might be refused and the implications that that might have, for example in persistent non-offenders, non-attenders to court hearings. That appears to have been dealt with in the bill that has now been presented. However, the question is whether the phrasing of the clause will make a practical difference to the way in which individual sheriffs decide on bail applications. At the moment, I don't think that that's entirely clear. Obviously, it may be that if Fred or one of his colleagues takes a decision to appeal and there is clarity that comes from the appeal court as to what is specifically meant by the provision, there may be a change in practice. I'm not entirely convinced that there will be. If there is a genuine desire on the part of Parliament to reduce the numbers of people going on to remand in the Scottish criminal justice system, then it would help if that were a little more explicit. Thank you very much for that and I'll join just as I come to you. I get the impression from what's been said that it's not necessarily the wrong people being held on remand for the wrong reasons. It's simply that there are too many people on remand because the trials are taking too long to come to fruition, which therefore will have an inherent knock-on effect of having more people physically on remand and that dealing with the backlog and getting those trials to get those diets to pass more quickly would, by default, bring down those numbers quite quickly and that's something maybe we should consider. I just wonder if you had any reason what's already been said. I think ultimately I would echo what Stuart and Fred have already said. I definitely do think that there is great benefit to the provision of 23D no longer being in place. I think that that does cause issues and I think that the sheriff is not able to exercise her full discretion because they are restricted in relation to that. In a situation where Parliament has explicitly said that someone should not be getting bail in those circumstances unless it's exceptional, it makes it quite difficult for a sheriff to overrule that in those circumstances. You could be finding yourself in a situation where someone is walking in on a bail undertaking where they've been on police bail for a period of time. They've got an old conviction on indictment, say, for drugs and they're appearing in relation to a new matter. They could have been out on bail for six months on police undertaking with no issues. They've turned up for court and the Crown will be opposing bail on the basis that they're subject to the provisions of 23D. There are definitely issues that arise of 23D and I definitely agree with Fred and Stuart in terms of the issue regarding that. On the overall amendments to the legislation, on the public safety issue, I think that my concern is where is it defined, what is the definition of this going to be, is it going to be a situation where ultimately sheriffs are just applying the same test that's already in place and considering the same factors that are in place and if that's the case then what would be the purpose or whether or not this is actually a conscious decision of the Government and of Parliament to look at something and have something more revolutionary in order to try and deal with the number of people that are on remands or whether it's just, as Fred says, another way of dressing it up in a different way but it has the same outcome. That would be the concern that we would find ourselves in a situation where how do we define this? Where is it defined? Is it a case of, for example, a house breaking? Is that considered a public safety issue because it's not a crime of violence, for example, but is that something that would fall into the provisions of that? So I suppose these are the kind of unanswered questions which I don't think the legislation really addresses and ultimately it may well be it's going to be a matter for the court to address if a legislation is put into place and then the court will have to make a decision by way of appeals, but it does create a bit of uncertainty in terms of looking at it overall, I think. You sit in the court day in day out and you see dozens, hundreds, if not thousands of these cases. Do you ever get the impression that it seems to me that remand is used quite sparingly and only in the most stream of circumstances where the judge feels it appropriate? Just because the Crown imposes Bill doesn't necessarily mean that remand is the outcome. Do you feel that it's necessary for legislation to intervene and alter the outcomes of what is already happening and in answering that? That's no disservice to the sheriff so the decision making, but is it appropriate to narrow those parameters? I think again I would just echo what Fred had said in relation to that point of the outset, it's going to depend upon what is the intention in this legislation, what is the aim of it. I think a major factor at this stage in terms of the reason for the number of people on remand are two issues. One is the Crowns approach to bail in cases, particularly summary cases, and that's something that the sheriff association picked up on in their response to the consultation as well. I think that that was at 3.2 of their report. They had raised that as an issue as well, so we're in a situation where we're split into two levels of crime. We have petition level crime, which is a more serious and summary level crime, which is up to a maximum of 12 months in the jail. We have legislation in place that says that people shouldn't be getting sentences of under 12 months. We have legislation in place that says that young people should not be going to prison, that there should be alternatives put into place. Time and time again, when I appear in court, I appear in relation to a case, you've got a 17-18-year-old boy who's got a bit of a record, been in a bit of trouble, appearing on somebody's complaint, the Crown Opposed Bail. You're in that situation given the Crown's approach to the bail, that you're automatically then in this dispute as to whether or not there is going to be bail granted. It may well be that something more has to happen in terms of the Crown's approach, so that we're not in a situation where every single case is bail opposed. For example, a colleague of mine had a case recently where a young person 18 weeks before Christmas appears in the custody court for a summary matter, the sheriff admits him to bail despite Crown opposition. The Crown then appealed it, so you're then in a situation where not only the sheriff has decided he's to get bail, but the Crown then appealed it and he's then kept in custody. A young, vulnerable individual, the whole mechanism, all the legislation that's been put into place is to avoid these young, vulnerable kids going to jail, and he still ends up in jail, despite the fact that it's a positive decision by the sheriff. It's only then when it then goes to Crown office when they consider the bail appeal that eventually someone withdraws the appeal and he's released, but he's then been released from custody, he's not got anyone there to pick him up, and then you're in that vicious cycle. I don't necessarily know in terms of what you're saying about the legislation, I think that there are other things that could be done as well in terms of the Crown policy to be looked at in terms of these bail decisions, and it might reduce the number of people on remand if they're having a more pragmatic approach, particularly in relation to summary cases. Yeah, thank you. Unfortunately, we can only deal with what the bill does. We can't fix the other issues. They could be fixed externally. Yeah, exactly. Okay, thank you. I'm going to bring in Russell, followed by Pauline McNeill. Thank you very much. Again, there's a lot to cover, so if you can ask for succinct questions and answers, that would be appreciated. Thank you and good morning. I've got two questions. We've kind of largely or slightly touched on some elements of it already. The first one relates to part one of the bill and the grounds in which bail can be refused, being narrowed to two particular criteria, one being the significant risk of prejudice, the interests of justice, and the other being that of risk to public safety. We've heard off the record from prosecutors some concerns about the lack of a legal definition of public safety and a fear that, if that is not properly defined in the bill, it will cause some problems in interpretation, that will end up clogging up the appeal court. I suppose what I'm asking is, should there be a definition and what might that look like? I think the problem is quite succinctly expressed by the judges in their previous response. I remember that these are the senators and these are not the people who will interpret this legislation. Since the 2007 act, we've had the Courts Act 2015, which transferred the appeal court responsibilities for summary appeals, including all bail appeals by sheriffs, to the sheriff appeal court. They are hardworking and diligent bunch of people, but they're not high court judges. The old system, the bail appeals were decided by high court judge, and therefore they would happily spend the rest of their day writing on things. If you read the faculty response to C reference case called Smith against M, I would encourage the Clout to make it available to you. It's from Lord Justice Clout Wheatley from the 70s. On that day, he was in fact due bail appeals. They happened in his chambers, there might have been five of them. I have no idea what he had planned for the rest of his day, but he spent the rest of the day writing that judgment. It's the standard core decision on bail. It is virtually impossible, and I think this is because of time pressure, to get a similar written judgment out of the sheriff appeal court because they have other business. They're straight on to being the sheriff appeal court, and it's that difference of status means that you won't get an interpretation very quickly in a written form that we can all use. I mean, the practitioners will rapidly work out, the word will get round, but it won't be in a published form of what public safety means. I think public safety should have quite a broad definition, personally. I don't think that Smith against M is particularly wrong, except possibly one element that relates to the idea that it's sufficient that there's going to be a long sentence, so we'll walk you up now, which I always feel a little bit bad about. I don't think that's quite right, given the presumption of innocence. But the problem is not so much the definition, it's what it sits into. It's this context of the whole system. Ultimately, is there going to be a systemic attempt to re-educate everybody, to change their approach, and to ensure that the system moves in a different way, perhaps a more Scandinavian way, on summary justice? If there is, will that include things that have been talked about on and off for years, such as use of bail hostels? Will it include reminder texts? Will it include legal aid being granted faster? Will it include there being more criminal defencillisters who are under 50? All the issues that put the system under stress, because it's more than just a definition, but I think that the definition of Smith against M is a perfectly respectable definition. If you want to change it, the ministers really need to explain what they want to change. Personally, I have views, but I don't think that the faculty does about how you would change it. It's a conscious political decision for the ministers to say, we want less people locked up. If that's going to mean the serial non-attenders aren't remanded, then what are we going to do about them not turning up? I think the judges explain that quite well. In Smith versus M, there is a massive definition. It's basically full discretion to judges, please don't get involved, we're making the decision. That's very contemporaneous of the time. Presumably the bill seeks to narrow that. Presumably, but it doesn't say that. The ministers probably should explain. Not least of which, the Lord Advocate should explain it well, because that's part of the same operation in some senses. I hope that's helpful. We can do without the courts having to interpret legislation from this place, we've got enough on that already, I think. Would either of you care to address that particular point? I think that has been very well explained, but I've got something else I can move on to, if you prefer. I would echo what you just said. Right, okay, thank you. Stuart, do you just want to come in quickly? Yeah, I'm happy to agree with Fred in everything he said. Imperpetuity. That's not an open-ended commitment. The other element, which has been referred to already, is section 23d. Now, my understanding of that is that it's section 23d of the Criminal Procedure of Scotland Act 1995, and it's a presumption against bail for certain types of offenses, including violent sexual, domestic abuse at the summary level or drugs trafficking in solemn, if there's a previous conviction to that effect. That may be overly simplified, but that's more or less it. All the speakers today are for the abolition of 23d, but we've heard last week from victims groups who are of the view that it should be retained. I wonder if their views in any way cause you to rethink that, or if indeed it is to be abolished whether it could or should be replaced by something else to give those protections to those victims. I'm happy to suggest on that. I think that the reasons that victims groups are suggesting it are entirely valid. It's an anxiety that's very legitimate and I wouldn't wish to in any way suggest that there's not a legitimate concern, but the way that I would suggest that you ensure that domestic violence, particularly at offenders, are kept away from their complainers slash victims is, I think, by the way that the cases are prosecuted, the alacrity with which it's done, the level of commitment which it's done, and that means it's a whole system response, so it's obviously bail supervision. If they're on bail, it's rapid disclosure by the Crown, early availability of dates, good liaison with the witnesses so they know when to come to court and don't fail to turn up, which often causes problems, even if the reason isn't particularly related to the case. Also, the fact that, of course, it's worth remembering that a lot of the solicitors are currently not doing some of the cases, whether a court appointed lawyers. I'm sure you can ask them about their reasonings, but it does mean that these matters are going slower because you need a solicitor in a domestic case because the accused can't quite properly cross them in their own complainer, so you need a whole systems response. I do wonder whether the whole systems response might be more effective than 23D, which is more of a sticking plaster. Probably the people who are most dangerous and the one that the victims' group are worried about will be reminded anyway, and that's going to change. This is a much more overarching question, a final question, if that's okay. It's about resources. The national care service is a work in progress, we're told. The minister told us that it will be at least 2024 before we know whether the criminal justice social worker is part of that. If the bail is to be radically changed, whatever the outcome is, it's almost certain that it's going to put greater pressure on criminal justice social work. I know that you can't speak for that sector, but can you see how they could possibly cope with the likely increase in work? That's probably one for Joan and Stuart, I guess. Yes, certainly. In terms of Glasgow, they definitely are very much stretched, they often are quite harassed. They're not the most helpful people you can deal with. They're very pleasant, very polite, they want to do their job to their utmost, but they are limited in terms of resources. They're also supervising the bail as well as doing the assessments as well, so you can be in a situation where the 60 custodies in a Monday and they're having to try and get through them. Often the cases aren't marked until after lunchtime, so often they're not able to see them in the morning, and then all of a sudden they get a flurry of requests when the bail position is finally known, and then there's a big queue to get into the cells, and all of those things add and make our life more difficult. I definitely do think that it has an impact upon the resources, and I think there would have to be something done if there was going to be a momentous change, which there may be benefit to, but there would have to be an injection of money somewhere in order to address it. I wonder if you could maybe come back, Mr Finlay, just on the previous point that you were making regarding 23D. As Fred says, of course victims groups have a legitimate reason to be concerned about this. Of course they will be anxious about what that might mean for bail decisions in the courts, but I think that the concerns might be, to an extent, misplaced. When 3D is an arbitrary provision, it basically says, broadly speaking, that the court can't grant bail where somebody is accused of a particular category of offence and they have a previous conviction for that offence on indictment. What that means at a practical level is that if you have a 45-year-old man accused of a domestic violence offence, and he had a conviction on indictment for domestic violence 20 years ago, the court would not be allowed in principle to grant bail unless the exceptionality tests were made. If, on the other hand, a 45-year-old man had half a dozen previous convictions within the last three years but all on summary complained, 23D wouldn't kick in. It's a pretty arbitrary one-size-fits-all kind of solution that doesn't really assist the court in making proper judgments as to who could or could not be trusted with being admitted to bail and let back out into the community. As Fred says again, the whole system response is the absolute key to this. There are examples, which I'm sure the committee are aware of, of the domestic violence court in Glasgow, the evidence and procedure review pilot that's taken place in Dundee, Hamilton and Paisley, where the idea is to basically try and transform the means by which summary justice is dealt with in domestic violence cases. Instead of accepting a situation where somebody can go to the custody court today and have a trial in six months' time, let's try to accelerate that procedure dramatically by tackling all of the things that get in the way—core backlogs, delays in disclosure, delays in legal aid and so on. Let's try to focus the whole process in much, much more quickly by making appropriate investment in changes. In order that, if you have people being convicted of domestic violence offences, the courts can be much more proactive and engaged in trying to fix the root of the problem rather than getting somebody six months later by which time various things have moved on. That, to my mind, is the way in which those things are solved. That is the way in which victims and complainers and witnesses can be given reassurance that the system is working effectively. However, it is more than just making decisions around the issue of bail. For the evidence so far, it has really helped me a lot to understand some key points. It has been really focused. One of them that strikes me is that it is not joined up. There is an issue about resources. For the record, when the committee had questioned the remand figures last year, which is certainly a concern for this committee, which we raised with ministers, the response that we got was that this bill would go some way to reducing the remand population. I have always understood, although I am sure that you are correct in saying that we will not care from the bill, but I have always understood what we are attempting to do. Those issues of clarity should be raised by yourselves and others about what is a public safety test. We need to get into the detail of the bill. In fact, it was one of the issues that occurred when we were at the court on Monday. We had always theft cases or house baking cases. Would they be public safety tests? I think that that is really, really helpful to hear. A couple of questions to you, Joanne. First of all, because you were saying that 12-month sentencing, the young people and the approach of the Crown, and I think that Fred, you had also said that the Crown does not seem to have any discretion any longer. I wondered if you thought that the centralised marking system had anything to do with it, because I have had concerns about it because marking is no longer done locally. As you know, it can end up anywhere. I think that there is a real disconnect between fiscals who mark cases who do not know Glasgow, which I represent, for example. I wondered if you thought that that might be one of the reasons. In terms of the marking hub, the difficulty that we face, and I think that Fred has touched upon this, is that somebody is sitting in the house somewhere and marking a case or sitting in this hub. I am not quite sure where the hub ever is, but they always refer to it. They are sitting in this place and they are making a decision on the basis of the paperwork that is in front of them. They do not have the benefit of the bail supervision report. They do not have the benefit of having spoken to the defence agent if there is an explanation behind it. They set out the bail position. They set out whether bail should be appealed if the share of grants bail, and then it is passed to a young fiscal in court who literally just stands up and reads off the reasons for it and has no discretion whatsoever to make a decision. You are then in a situation where you might have the most exceptional set of circumstances. Explain that to the fiscal. They might be thinking, totally get where you are coming from, but they are saying, my hands are tied, someone more senior than me has marked this or somebody else has marked this and I cannot overrule them. It has taken away, at the local level, people being able to make decisions and being able to make decisions in order to expedite matters. I do think that. I think that the committee noted that when the sheriff asked the fiscal in relation to one of the cases, whether or not the Crown, so that the witness had failed to appear several occasions, and the sheriff asked the Crown where they prepared for the trial in the first place, it was obviously a determining factor on the sheriff's mind, and I think that the fiscal said, well, there's no notes here to tell me one way or the other, so they're just left with the issue in the notes in front of them, so that's helpful. There was a recent decision at the sheriff's appeal court, which I won't name because I don't want to name the appellant, he doesn't really deserve it, but I'll send a copy to your clerk, which is a case that I was involved in, but it's an interesting discussion from the sheriff's appeal court of delays in a quite anxious case, and you might find it of interest. I can agree with what Joanna said that there is a problem with Crown preparation, and they are overworked too, let's not forget that. I'll send that case to your clerk, and you might find it of interest as a sort of what can go very, very wrong example. I'd rather suspect if the Crown agent or one of his senior colleagues were present, he would be saying, look, we are trying to enable our fiscals in court to exercise a degree of discretion. The difficulty is that that very often just doesn't percolate down. Maybe you don't know the answer to this, but my understanding is that fiscals have an individual commission when they're appointed, which is meant to give them the discretion as a fiscal on behalf of the Lord Advocate. Is that your understanding? I'm not sure on that, but I do know that if you speak directly to a fiscal in relation to a case and you say, look, this is the circumstances surrounding this, this person's never been in trouble before, you know, this is the exceptional circumstances, this is a medical report confirming the all the difficulties they've got, would you take a view, would you not proceed with it, and they're very much of the view, you know there's a policy, we can't make a decision in relation to that. So for example, the other day I had a client who was remandied in custody for a serious solemn matter, he had a justice in the peace case and the Crown Hand brought him down. We were on numerous trial diets and I said to the fiscal look, would someone take a view in relation to this, he's already remandied in custody for something else, he's not been brought within numerous trial diets here. The witnesses weren't present, no, I've been told to make another motion to adjourn it. So we're in this churn and it's this, I'll go and speak to my boss, then they come back and they say no, I'm making a motion to adjourn it. Instead of somebody who's qualified, been able to make a decision in the court and say, do you know something, is this really in the public interest for this to continue, it's been prosecuted at justice at the peace level which is fairly low level in terms of the prosecutions, the person has got other issues and is not at liberty, is it really in the interest for this to continue and to continue to create a churn in the backlog that there is there, and I think that that churn in that backlog has a massive impact upon the overall running of the court, the length of time people are remandied in custody, the fact that the solemn stuff can't be dealt with because the courts and the fiscal are tied up with dealing with the less serious stuff that's been adjourned and adjourned and adjourned over and over and over again. So I definitely think all of that has a knock-on impact and I think that the fiscal said a bit more discretion that might make things a bit easier. I just have one quick question about the case that you mentioned, John, about the 21-year-old. I just wanted to understand, you said, that social work finished at 5.30. Did that mean that that person was a disadvantage? Yes. Right, and is there any to your knowledge, obviously, need to ask social work what's going on there, but any idea of why the court's running till seven and the seems that almost potentially a human rights issue there because if you are taking it to in the afternoon and you get the benefit of social work, you're taking it 5.30 and that is a clear omission of the system. I definitely think that it's down to resources, it's not down to the individuals, you know, they're doing their best in difficult circumstances and they work really hard and I don't take that away from them in the slightest, it's the system. They need to, for example, they need to be there until the last custody is dealt with, so if that means that their shift doesn't start till two o'clock in the afternoon so that they're able to stay later, then that may need to be the case, but they shouldn't be expected to come in first thing in the morning and stay all day if they're not getting paid and they're not getting the overtime and they're not getting the resources for that, I'm not suggesting that, but I definitely do think that your client is at a disadvantage and often it is the younger people, the young vulnerable kids, the ones that need these sort of additional supports that are the cases that are later on in the day that do take a bit of time for the crown to mark, particularly if they're petitions and they are more serious issues. We're just into the last 15 minutes or so, a couple of members still wanting to come in, so I'll bring in Rona and then Katie. Thank you, convener. Good morning. I've got two questions to ask. The first one actually goes back to 23D and my colleagues' earlier questions. I'm going to be very frank with you. I don't think that your explanation of the removal of 23D, which you unanimously agreed on, will reassure women's organisations or victims. I understand what you're saying about the whole system approach, but that's fine if it works, and it's a big if. I can't quite grasp why I mean, are you saying that you want to have the ability to release a domestic abuser? Why would that ever be correct? That's what I can't really understand, and so I'm possibly just not understanding your reasons for wanting to, why not keep the exceptions to reassure victims and organisations? I'm not sure of your reasons for that. That's my first question. I think the first thing to remember is that 23D applies to all categories of cases, and so that means, as a matter of definition, from the point of view of the sheriff, they are not releasing a domestic abuser. They're releasing someone accused of being a domestic abuser. Now, I appreciate that, on the law of averages, they may well be guilty. With that remembered, because I think it has to be important, we have to remember 23D applies in a wide other group of circumstances. The next thing to remember is that these are often being prosecuted to summary level, and so if they're prosecuted at summary level, unless there's a bail aggravation, in which case they're going to get remanded anyway, because there's a bail aggravation and they've got previous convictions of domestic abuse, so they're going to get remanded anyway, then they're looking at a maximum 12-month sentence, and we're, of course, trying to discourage those, and there are very well-resourced intelligent programmes for people convicted of domestic abuse that are community-based. So, if we're going to be remanding people, we're not remanding them as a sort of prepayment on punishment, we're remanding them purely to protect the public, and the question of whether the public needs to, largely the person who's accused them, needs to be protected is the sort of decision that sheriffs are very good at making already, and so in the case of a summary case where, in the example that Stuart gave, a 45-year-old with three or four previous convictions for domestic abuse in recent years, I'd say they're almost certain to be remanded, but the person who, at 45, has a previous conviction for violence committee when they were 19 on indictment, perhaps a sort of thuggish behaviour, and now they're in their 40s, nothing's happened in between, 23d applies to them, and I would suggest that if someone's accused on a summary complaint of domestic abuse at the age of 45, with one previous conviction for when they were 19 and nothing in between, that's a good work record, they wouldn't necessarily get remanded were it not for 23d, and so if 23d is arbitrary, that's something we should rather avoid in the law, and there was a time when we had a whole systems approach to domestic abuse prosecutions, when it started in a big way in the early 2567 period, the minister's advocate and the police were very keen on pushing these through quickly, and the quicker it goes, I would suggest, the less chances are that the wheels will come off fail, and so my suggestion is that yes, it will create an anxiety, but we should try and reassure people rather than have an arbitrary rule in our system, because we got rid of the arbitrary rule, for example, that murder was never available, because arbitrary rules are a bad idea, and so that's my answer, I'm not sure it's going to satisfy you there. I mean I'm just taking it back to very simplistic, I mean I understand what you're saying, but taking it back to perception and a very simplistic level, that's not how victims of domestic abuse will see it, or women's organisations, because it still does give the perception that it's going to be easier for alleged perpetrators to be out on bail. I think it's worth the members of the committee remembering what happened, why 23D came in the first place. The press reports are still online, there was a distressing incident in Livingston, which you can find out about, where someone had been released on bail, and they then committed a serious crime, and I can't actually remember which crime it was, but it was very serious and had a sexual nature. The then First Minister, Jack McConnell, stepped up and insisted that this law be changed, and the whole of the current bail regime, the 23s, were changed on the back of that. Now it could be the case, and it's a matter for the committee, not for the faculty, that these hard cases do make bad law, and that that was perhaps, in retrospect, a knee jerk reaction by the legislature and the government, but ultimately you've got to make a balancing act as a committee and as a parliament, and I think we're always saying that probably in most cases, almost all cases, the decisions that you're worried about would have been made anyway without 23D. So the individual risk would be taken into consideration just as much as public risk. That shows a very reactive on domestic abuse, because this is the old statistic. I can never remember how many times people are supposed to have carried out the act of domestic abuse before someone reports it, but that is academically well respected, if not relevant in individual cases. So judges are very alive to the fact that this probably didn't come out of the blue, shall we say. So if people have previous allegations or they previously breached bail or failed to comply with court orders or driven out insurance and done things that show they didn't really care, sheriffs are pretty firm. So I would hope that it will be managed by applying the rest of the system. Of course, if you change the rest of the system, that's a different point, but 23D is probably unnecessary over reaction. I'm constantly at one other question, rather than ask everybody to respond to that. It's estimated that at any one time, 30 per cent of the female population is on remand. That's a huge number. 54 per cent of them lose their tenancies, 61 per cent have children and huge knock-on effects for families. You talked about a case where the woman went to the 218 project, which is very successful. Why does that not happen more often in your opinion? Is it a lack of resources? I think that it's probably a combination of lack of resources. It can sometimes be quite difficult to get clients motivated in order to go into those places, but there are great benefits to it, fantastic benefits. Are all sheriffs aware of those issues? I'm not sure about outside of Glasgow, because the 218 is a Glasgow programme. It took a bit of work to get it done. I was phoning the 218 speaking to social workers. It was continued overnight. There were all sorts of things that were done so that there was support put into place, lengthy reports prepared, all that sort of stuff. Does it go down to individual solicitors like yourself, who actually know about those things and will proactively look for them, or some that just say that this is a system, this is what happens? You'll be remanded. The majority of solicitors probably do it because of the nature of the job that we do. We do what to help people. We don't get paid to do any of these extra things. I could quite easily just have gone in and said, these are our position for bail, but I went to speak to the 218, went to speak to social workers, spoke to the client, did all of that. It's because, I think, inherently as a profession, we do want the best for our clients. We want to see them rehabilitated. We want to see them improve their circumstances. But there would be less women and remand if more people were able to go to these? Absolutely. If that was rolled out across the country in every court, in every sheriffdom, there would be organisations in place that, in essence, people are bailed to, and it's given a more caring and nurturing environment, as opposed to locking them up in Cortland Vale and putting them in with hold of serious offenders. We know of the highest rates of mental health and addiction problems in domestic abuse. I'll bring in Katie and then Collette. I've got two questions, if that's okay, convener. The first is on the public safety test that's in the legislation. As we know, it's simply not defined, which could cause a great deal of problem. Have you given any thought to how that test could be defined? If we were to keep it in the bill, how could we define it? It may be that I'm putting on the spot too much now, so we'd be quite happy to hear from you afterwards in writing. Shall I take Fred first, maybe, on that one? I don't think that the faculty has a view on how it should be defined. I think that the comment that's probably the most powerful is that of the Lord Justice General in his response. Ultimately, if the current test is Smith against M, and I set out there and it hasn't changed despite the change in 2007, it's probably incumbent on the Scottish ministers to explain what they're trying to change. I can see an advantage if you want to reduce numbers in removing the consideration of how long the sentence will be as a factor. Beyond that, it's quite difficult because it's quite a holistic process, but certain policies will reduce numbers. In 23D, to take the previous comment, we'll reduce numbers of both female and male prisoners on remand because it applies to both them. Beyond not taking into account the length of likely sentence, nothing immediately springs to mind. I'd be interested to know what the ministers say if you asked them. Thank you for that. I don't know, Joanna, if you've got any thoughts on that. I would just simply agree with Fred in relation to that. I don't know if the Law Society would like to come in on that, might be something to consider after today or whether you've got any initial thoughts. No, no, no. Likewise, I think that the Lord Justice General put it well in the senatorial response. If the concept of public safety is to mean the protection of public from any offending behaviour, the outcome regarding remanding custody may be a little different from it present. If, on the other hand, it's to be understood as referring to safety in the ordinary sense, like freedom from injury, danger or risk, then many offenders who appear in the summary courts charge with things like theft and who pose a substantial risk of continuing to offend while awaiting trial will be required to be released in bail. I think that it's for ministers or for Parliament to determine what they want the provision to mean. It's then for the lawyers to try and implement that. I think that the problem is that we might end up in the same place, but it might be a lot of appeals before we end up in that place. It's been getting to exactly where we are already. My second question is about virtual custodies, which is an issue that we've been discussing over an extended period of time and is something where the Scottish Government may come forward with firm proposals on a later date. Particularly given what Joanna has said and has expressed so clearly in terms of the importance of discussions, of speaking to all the parties, the police, the social workers, the procreate or fiscal, the value in face-to-face discussion and talking, in what circumstances do you think virtual custodies would work? I'll start with Joanne because she has been talking about some of this. I think that they should really be the exception, virtual custodies. The virtual custodies, I was never a fan, although I don't think that many practitioners were a great fan of them, but the difficulty is that it takes the human aspect out of your job. We're dealing with, as Stewart said at the beginning, vulnerable individuals about mental health difficulties. Often we are the only professional person in their lives that they trust. To have a two-minute phone call when you can't see them, often upset, you can't reassure them, the social workers then can't go and see them, they get a kind of vibe from their presentation and see how they are. If all of that is done over the phone, it totally takes away the human aspect to it, and I think that it would be detrimental. There are benefits for virtual custodies. There are situations where people are brought up to answer warrants from all places down south. You can wait until eight o'clock at night for them to appear when they eventually appear and bail is okay, so it could be something that quite easily could have been logged on to the police station down south for them to be able to appear remotely and for that to be dealt with. There are exceptions, and I do think that there is the benefit for certainly cross-border things where it's not contentious or it's fairly straightforward, and we're not having to expand the resources in terms of having the cost involved with the police holding them and bringing them up and all the things that are involved in that. But for the run-of-the-mill custodies, the majority of folk who are vulnerable, I'm not a fan of the virtual custodies. When somebody is already in custody for something else so that there's no possibility that they would be getting released anyway, that would be for an example of an exception perhaps. They wouldn't be in the police station, I don't think, though, if they were already in custody for something else. They're usually brought directly down from the prison to the court in order to deal with that. There may be set circumstances where it's not a custody appearance, it's just a regular appearance in court. They might be full commits or done by video link, so that's when they first appear, they then appear for full commit a week later, and that's done by video link. So there are some benefits to those side of things, but overall, I think, for first appearance, it's very important in the prison. I appreciate that we're running out of time, but I don't know if Stuart has anything that you'd feel able to add to that. I just wanted to say, Ms Clark, if I may, that I think that virtual custodies are a complex issue that really require a bit of time for representations and consideration to be given. There are a whole range of aspects that come into this. One is the reality of the experience for people who are accused of being taken from a police station where they're in a cell on their own and put into very often very poor accommodation in the back of a court, where they may be sharing with similarly other people and held there for hours and hours with very limited access to anybody. I think that the question of whether you can do that virtually really comes down to what virtual custodies in practice mean. I completely agree with Joan that the idea that you can do that over a phone call is nonsensical. There are technologies available, very high-quality video conferencing, that can minimise the limitations that come from having a consultation with somebody with a screen in the way, but for virtual custodies to work and they may have a place, it would require the right technology, the right resources, very careful planning and implementation and an ability to ensure that we can still engage with folk like the Bail Supervision people and the Crown and so on. Fundamentally, you have to make sure that the accused person is able to effectively participate and able to effectively communicate with those they need to communicate with, including their solicitor. That's a very difficult thing to achieve. I don't think that it's impossible and the Law Society doesn't think that it's necessarily impossible, but it's just very difficult. The virtual custody tests that we have had so far haven't come close. I don't know if the faculty of advocates... Stuart just said it makes perfect sense. You're here in a room, there's a reason you're here, it's the same I suspect, but you can do it remotely, just requires lots of thought. Okay, thank you. And I'm finally going to bring in Collette. I've just got one question that's relating to the reasons for refusing Bail, so the bills looking to actually expand the current requirements for a court to state the reasons why they're refusing Bail, and I'm just going to record that as well. Do you think that that's going to be helpful? I'll bring in Stuart first. Thank you, Mr Stevenson. Yes, I think it absolutely is, and ultimately, if a court is taking away somebody's liberty with all of the implications that it has, it doesn't seem too much to expect that there will be some careful reasoning recorded for that. I don't think that there's any practical difficulty why that can be captured in writing as well as given orally. So yes, I think it would be helpful. I don't know if Fred or John. I slightly differ to Stuart and Fred, actually. In terms of... If you repeat it in court and the sheriff refuses Bail, the sheriff will address the client directly and say, these are the reasons why I'm running you in custody. In terms of them providing a written explanation, I personally am a view that it's not necessary unless you put in a appeal. If I was then to mark a Bail appeal, they would then provide a report. I think that at that point it would be helpful for written reasons, but I think that the sheriff is under a bit of pressure. There's pressure on workloads, and I think that it would probably be an unnecessary step for the sheriff to write written reasons for every decision when the decision is potentially not going to be challenged further. Okay, that's interesting. Thank you. Okay, thanks very much indeed. Just for the record, we have the Crown coming in next week to give evidence, so obviously some of our discussion today has referenced that organisation, so it would be interesting to hear some of their commentary. Before we do, I'm just going to bring the session to a close, but before we do so, we haven't really had a chance to cover part two of the Bill, and obviously we've now got our second panel of witnesses who have joined us in the committee room this morning and may be interested. I would like to ask you, before we finish, just about any specific views that you have on part two of the Bill around release from prison, particularly perhaps around the issues of Friday releases, the power to release early, and also the key issue of release planning. So I'll just do it in reverse order, I'll bring in Stuart, and then I'll come to Joanne and finish with Fred. Thank you convener. The law society agrees with very much of what is set out in the Bill. Really it's the same position at the other end as with the Bill's supervision. Decisions about remanding custody have to be made on as informed a basis as they possibly can be, and equally letting somebody out of the prison environment should be done in a way that is made with as much planning and care as possibly can be achieved. I think that the families outside submission was particularly interesting in that respect. Ultimately there is nothing worse than a vulnerable person who has been disconnected from society for a period of time, being toughed out of a prison, goes back, doesn't have anywhere to stay, doesn't have any way of accessing services. All that that is likely to achieve is that that person's rehabilitation is put at risk and there's a risk of further offending and the cycle begins again. I think it really is important and there's a huge social benefit in planning taking place, and the objectives of the Bill in that respect are to be commended. Thank you Stuart. Joanne? Yeah, in terms of the release Not Enough Friday, I think that's a great idea. I think for people that get out of prison when they've got no accommodation, they need to get prescriptions, often they're on methadone or other substitutes, and if they're getting out late in the day and there is nothing available to them, nobody's working over the weekend, then it's just it's only a matter of time before the phone goes in their back in custody. So I definitely think that there is value for the Thursday or early release in terms of Not Enough Friday. In terms of the issue with regards reintegration licence in particular, my colleague Lorna, she specialises in parole matters and deals with a lot of parole cases. Discussing it with her and ultimately there is already in place the HDC which allows an individual to be released on reintegration licence 180 days prior to their parole fines date. However, the difficulty in practice seems to be that the starting of the parole process in terms of them getting their door saved from the prison and a hearing been fixed, that's not happening until at least sort of eight to 10 weeks prior to the parole qualifying date. By which point it then needs to go to the parole board, they then need to make a decision on it. So the parole board are making a decision right up into the last minute and it can be a matter of a couple of weeks or so before the parole qualifying date that the parole board are making the decision or even after the parole qualifying date that they're making the decision. So if this was to be put in practice and if this was to be encouraged that there would be this reintegration licence prior to release on parole, then I think things would have to change overall in terms of how it operates to ensure that we're in a situation where they are given the opportunity and that the parole decisions are not being made right in the last minute. So is that there is a benefit and there is an opportunity to utilise it. And again it comes down to resources, it comes down to the coursework in the prison, there are considerable backlogs already in relation to them doing the coursework in the prisons and that's a major issue as well so really that needs to be addressed as well if all these things are then going to come in together and work into play in the model way that it should. So I think there are other bigger issues that require to be addressed if all of these things are going to work. Thanks John, Fred finally. I would agree what John Stewart has said, I would end with a little plea. The Prisoners and Criminal Proceedings Scotland act 1993 is an extremely badly drafted piece of legislation. It is said by those who practice in the field that if you think you understand the 1993 act you don't understand the 1993 act. There's a wee plea in paragraph 15 of the faculty response. Can you please rename the sections so they actually describe what they do? Because they're not clear and if I as someone who litigates in the inner house or challenging the parole board find it hard to remember what sections do because they didn't even describe what they do within them, how on earth is a family member trying to understand the law that's going to apply to their family member or a victim trying to understand the law going to understand it and if there's anything you can do just to make this part of this act a little more user-friendly you'll be doing a great task. On that note of a plea from our colleagues, I thank you all. That's been a very interesting session. Thank you for your attendance and on that note we'll just have a very short suspension just to allow our witnesses to leave. Thank you. Welcome back members. Our second panel today consists of former Sheriff David Mackie of Howard League Scotland, Professor Nancy Laux, Chief Executive Officer at Families Outside and Ms Wendy Sinclair-Geeben, HM Chief Inspector of Prisons. I welcome you all and as with our first panel I'm just going to move straight to questions and I intend to allow around about 68 minutes for this panel. I wonder if I can start off just with a general opening question and I'm going to come straight to part two in relation to release from prison, release from custody. I'll maybe come to yourself Wendy first of all and then Professor Laux and then David. With the aim of supporting the successful reintegration of prisoners back into the community, the bill includes provisions on release planning and standards of through care support. Do you feel the proposals are helpful and would you like to see any changes within the provisions? Wendy, over to you. I think the proposals are helpful. I've long been of the opinion that discharge planning, if you like, should be following a healthcare model in the sense that the minute you go into hospital is when you start the discharge planning. You may be in hospital for a long time but managing the discharge starts day one and therefore having the bill as backup to look at discharge planning has considerable benefits I think to actually change behaviours about how we manage discharge planning in Scotland. I have some doubts about whether the efficacy of even earlier release would be effective so I think that needs to be operationalised before I could comment further on that. That aspect of the bill, but just the fact that the bill actually looks at it for the first time, really appreciated and welcomed. Thank you, Wendy. I agree that the bill is very helpful in this regard and it does spell out some of the considerations that need to be taken in preparation for release. I agree completely with Wendy about the need to plan for release from day one. One of the previous witnesses spoke about access to courses that are required for release and one of the questions that we have at the families outside is about the necessity sometimes for people to move from their local prison to prisons that are further away, which can damage family contact at a time when they need it most. Whether there's an option to look at other opportunities such as parapetetic services where the courses travel around to the different prisons rather than requiring people to move and the cost that's involved to families in trying to maintain contact when someone is in a prison much further away. I do think that there are some additions to the bill that could be made. Broadly, both in this part and in the previous section as well, I think that there could be more recognition of the impact on families at the point of remand and at release. It needs to be more inclusion of support, involvement and consideration of families in the bill. I also think that there could be more reference to the role of the third sector in providing these types of services because they do provide a huge amount of input throughout remand and sentence and certainly on release and that isn't really included or specified. I think that that would be very useful. I agree with everything that's been said and I agree strongly that any three-care provisions should be strengthened and in a sense replaced. They were there before and the notion that the Scottish Prison Service would have responsibilities following then transferring into local authorities is a very constructive approach. We shouldn't lose sight of the importance of third sector organisations in this area, especially organisations that can offer close mentoring support, because it's that sort of close support in the first hours and nights days that matters most. In the current economic climate, I know that the funding of those organisations, some of whom are very small, is an issue and some of them are facing existential problems because of funding. I don't have the answer. I'm really just raising the importance of third sector organisations in this work in helping people to reintegrate back into the community. We recently visited a third sector organisation that supports individuals at the point of leaving prison. What came across for me very strongly was timing and the value that they seemed to express in the likes of third sector organisations being able to almost insert themselves into prison prior to an individual walking out of the gates. I found that very powerful in catching somebody before they walk out of the prison and are potentially lost to services or difficult to engage with. I'd be interested in your views on that because, for me, that makes complete sense. I would like to explore your views on that a little bit more, so I'll maybe come to Nancy first. The reason that that is absolutely critical is because building those relationships and establishing some sort of trust prior to release is essential for people to engage after release. One thing that I would like to see is recognition that some of these, some people who are going into prison may already be working with third sector organisations and may already have key workers, for example, but that gets lost as soon as they enter prison. The third sector organisations may suddenly just not have someone turning up for appointments, for example, and not know why, because they're not told that the person is in prison, so it's making sure that it can ideally maintain that relationship or continue that relationship where it already exists and making use of that type of provision as well. I think that we can certainly act more creatively on that. The through-care support officers that the prison service had in existence until just a couple of years ago was actually very highly valued because, again, they were in prison and establishing those relationships from the beginning. It was also very enlightening and rewarding for the staff, the prison staff, to see that and to see a different side of the challenges that people face when they're released from prison. I think that was a real loss when that service was suspended. There are a number of ways of going about this, but having that support prior to release and then continuing into the community is absolutely essential. I can't say how strongly enough I support that. The reality is that I think that it needs a combined effort. The through-care support officers for building relationships with the prison staff is excellent. They cannot replace and must be seen as an adjunct to community support. At the end of the day, what's important is that that person leaves prison and another victim is informed. That's the most important part. The victims need to know that, while they're in prison, the issues that cause them to commit the crime in the first place or to tangle with the police in the first place are being addressed. Therefore, if support is what is needed to find housing, reduce their legal commitments, sort out their debt, sort out their health problems, addiction problems, that prevents the next victim, that is something that we should be doing and I think that it's something that victims should accept. I agree with everything that's been said, but I would add that I think that thinking about the exit from prison and the through-care arrangements at the point of exit is too late and I think that the planning, the thinking about leaving prison should start pretty much as soon as the sentence is imposed. In court, I have said to people I've sentenced before they've left the dock that they might be feeling pretty shell-shocked at the moment and pretty down, but I would like them to turn their mind to their leaving prison in however many months it might be. The concept of peer mentoring especially by life-experienced mentors is one that I would support very strongly and that's the sort of third sector organisation I had in mind with my previous answer. If you take the concept of mentoring to its logical conclusion, the mentor should meet the person as they leave the dock and accompany them through their journey throughout prison, planning their time in prison, making best use of it, but also preparing them for their exit. Otherwise, I think that I have nothing to add to what's already been said by the other witnesses. I'm sure that there will be some more questions on that particular topic to follow. I'm going to bring in Collette and then Russell Collette. I wanted to touch upon release on licence for long-term prisoners as well. One of the stats that actually came up in touching upon progression, and as you know, Wendy has been an independent prison monitor. Some of the biggest cases that you get are the biggest issues is progression through a long-term sentence. One of the stark stats that came out was that the open prison has only been utilised at 52 per cent or something at the moment, but the bill in itself is looking at removing that home detention curfew, with a view to reintegration licence, with a new system of a temporary release as well, but again, the open prison does that not, in terms of a temporary release, does that not bode well there as well? If I can bring in Wendy and then Nancy and then David. I think that there's two things for me. One is that we're ignoring 25 per cent of the prison population, which is remand. That is a significant concern for me, because while they're on remand, we aren't tackling any of the criminogenic factors or very few of the criminogenic factors that actually led them to commit the crime or potentially link the crime in the first place. That doesn't affect progression. The two top complaints to us or requests for an IPM are around progression, which is the prisoner journey, so from when they're convicted what happens to them. There are various hoops that they have to jump through and various assessments that go on before they can reach the open estate or release, depending on the length of sentence. The progression system hasn't worked, isn't working and still isn't working post Covid and requires significant effort to make it work. You have people waiting significant periods of time to be able to progress to the next stage, even though they've been cleared for the next stage. To give the SPS its due, there's been a 25 per cent increase in the number of people going to the open estate, so work is progressing. However, the open estate is still very much underutilised and is a fantastic resource for testing people in the community before they're finally released. For me, I agree with you that getting the prisoner journey right, getting them through the system so that they can be tested, so that they can be properly assessed to make sure that their risk is reduced on release, is vital and currently that's not working efficiently. I don't get the impression that you're going to get a lot of disagreement on this panel, just to say I would echo what Wendy has said but also reiterate the role of families in all of this. We know that people who maintain positive relationships with their families, the risk of reoffending is reduced up to six times. A lot of that is for very logical reasons. People are more likely to have a place to live when they get out, they're more likely to have social support, financial support, links to employment and so on. It's recognising the role of families throughout this progress through remand and sentence and release because it's the family's journey as well and certainly that's something that families tend to be absent from quite a lot and particularly if you're looking at something like parole and licence conditions, they're not included in that conversation yet. If someone is restricted to where they can live or where they can work, that's going to have an impact on the family as well. I'm very keen for that to be recognised and included and supported so that families are able to take part along the way. Some of that might be families where they've been the victims of the offence and are very worried about what happens on release so it's recognising that as well and being able to factor that into the planning. Okay, thank you. David, do you want to come in? Yes, very briefly because there's nothing I can usefully add to what my fellow witnesses have said and they have greater expertise in this area than I do. The one point I would emphasise is really picking up on what the chief inspector said that in relation to progression there is a huge emphasis on prisoners achieving results in the existing scheme and I would encourage the notion that there might be other ways of being found of measuring their preparedness for return to the community than to focus on the courses that currently are required to be completed before progression takes place. Can I just comment back in on the courses themselves in terms of rehabilitation so that reduces be offended as well when they do come back out into the community? Do you think that the current courses that are available, we know that it is hard for them to progress through to get on to those courses but the courses themselves, do you think that they actually work in terms of reassuring victims and the community and also should there be an overlap when they do go through and to reintegration that those courses continue as well? It's interesting that there's a considerable body of research into this and that there is shown that the risk is reduced, the likelihood of re-offending is reduced by doing the accredited offending behaviour courses. There are also a whole pile of courses under what else works, things like the sycamore tree, restorative justice run by the chaplaincy. They haven't been researched and accredited in the same way but the accredited offending behaviour courses definitely have a positive impact and therefore need to be considered. Like David, I firmly believe that there are other things as well that need to be considered. Whether you've sorted out the family relationship, whether you've sorted out accommodation, whether you've sorted out the addiction issues, whether you've sorted out the outstanding warrants, whether you've sorted out the behaviours that have gone on before, those need to be looked at in addition to the offending behaviour programmes. The reliance on offending behaviour programmes, when there is a waiting list for them, simply builds frustration. Thanks, Wendy. David, do you want to comment on that? No, nothing I can use for that. I think that it is worth reiterating what Wendy said and that the offending behaviour courses are very useful but they focus on the behaviour of the individual. They don't focus on the context that they go back out to. So when we have a situation where there are long standing issues such as mental ill health, substance abuse, lack of housing, lack of employment, all of those things, there are structural features and the fact that the stigma of a prison sentence having a prison record isn't going to help people resettle on release. It's recognising that these are broader factors that we have to recognise and address in support. To mention about providing support for people who are on remand, one of the issues at the moment is that they don't have access to offending behaviour courses, but they have not been convicted. It makes perfect sense, but they could access support for housing, for mental health, for substance abuse, whether they are found guilty or not. We are also conscious that, in the report that families outside recently did on the financial impact of imprisonment, that people aren't accessing benefits when they come out from prison. It can take weeks, months, sometimes up to a year actually at their benefits reinstated and that doesn't set them up well at all in terms of being able to resist re-offending. I'm going to bring in Russell forward by Rona Mackay. Thank you and good morning. I was struck, David, by your written submission on page 25, you say that this is, in quoting, an opportunity to challenge the entrenched practices of some members of the judiciary who appear to accept the Crown's opposition to bail applications too readily and, on page 24, you say that, if the bill is not acted, we would suggest that significant cultural change, particularly among some parts of the Crown's judiciary, will be required for those changes to even take effect. You're a former sheriff, so you've come to this with that perspective. Can you perhaps even expand a bit on those cultural blockages or issues that exist, whether, indeed, the direction of travel is perhaps less prevalent than there used to be? I don't want to surmise or put words in your mouth. I do need to preface my answer by explaining that I am retired from being a full-time sheriff, but I do still sit on a part-time basis as a retired sheriff and have been helping out with a lot of the backlog that develops over Covid. I won't be sitting here until after April, but, nonetheless, I'm still a sitting sheriff. Secondly, I'm not here representing the judiciary in any way at all. My primary purpose here is, as the chair of Hardleague Scotland, but, of course, I bring with me my personal experience as a sheriff working in this field. Anything that I say is entirely my own view. The last thing that I say is that I'm a typical sheriff. I'm not sure if there's such a thing, but I might not be a representative of all sheriffs, but I hope of a growing number. I think that these observations in the Hardleague response really relate to the practice around the opposition to bail by the Crown and decisions on bail by sheriffs. It is this perception that, at the marking stage, decisions to oppose bail are made on an almost routine basis. Most often, in my personal experience—I don't have statistics to back this up—but in my personal experience, the most common ground for opposing bail is a likelihood of further offending and, in support of that, a schedule of previous convictions is presented. One would be forgiven for forming the impression that a decision to oppose bail is made simply because of the existence of a schedule of previous convictions. I think that it is an often fallacious assumption that the existence of previous convictions suggests a risk of further offending. If that forms the basis of opposition to bail, the position that the sheriff is in is that they are very often having to make this important decision on liberty with very incomplete information. That might be the only official information that they are given. They are then reliant upon submissions from the accused person's solicitor in opposition. We may come to another question, but I cannot emphasise strongly enough the importance of the sheriff having information. Whether it takes the form of a formal risk assessment to my mind is of less importance than simply having information about the circumstances of the accused person. Very often, when one looks behind the schedule of previous convictions, one finds that the person in this world, which is not divided conveniently into those who commit offences and their victims, may themselves have a very traumatic background and may have been the victim of offending, but they may already be on a community payback order. They may have just got their first house in five years, and that is going to be their anchor for progression back into the community. Those sorts of factors do not emerge unless somebody tells the sheriff. Very often, in the court, I had the privilege of serving for 15 years in Allawa. I had the benefit of a supervised bail scheme and a social worker in court who could have a 10-minute interview with the accused person and provide a page and a half of information that was invaluable with that sort of background. Sometimes they were able to recognise that the person might know them very well because there are frequent offenders who come before the court many times. They might know that last week there was an updated criminal justice social work report prepared for that person, and that would be drawn down and made available to me in court. It does not really take too much to open up access to significant important information that would assist the sheriff in making decisions. However, in a busy custody court, it takes a degree of resilience for a sheriff to keep saying no to the crown. In the absence of additional information, in the absence of good advocacy, it is to say no to the crown when an apparently unassailable case is being advanced that this person is liable to commit further offences. So far as a cultural change is concerned, that is really an order in the direction of the importance of everybody involved in the criminal justice system, but especially decision makers like sheriffs, to be trauma aware to realise that the vast majority of people who appear in front of them are there as a consequence of their life circumstances and not so much because they are bad people, that the problem that has brought them there may not be addressed, may not be solved by custody. In fact, recognising that custody may make the matter worse, or taking the trouble to learn from people like the witnesses you heard from yesterday, Professor McNeill, Hannah Graham, Leslie McCara, Cyrus Tata in Glasgow, there may be some colleagues of mine who don't know who these people are, but if we don't engage with criminologists and learn as we go, then we're not going to be sufficiently informed to make these important decisions. Decisions that might be right in law and unassailable on appeal but wrong for the person. Thank you. I don't know if either of you would like to come in on that, but I've got another question if you don't. Victim support Scotland told us that they believe it's inevitable that more people who get bail, more offences will be committed. We know one in eight crimes that are committed by those who are on bail and that 23 per cent of bail orders were breached, so it seems logical that the more people are bailed, the more crime will be, the more work there will be for the police and perhaps the busy of the courts will become there far without fixing the bigger issue of support and investing in criminal justice social work and stop re-offending this act, this bill might fuel bail, fuel crime and make things worse. Do you have any view on that? I'd be happy to take that up. I completely disagree with that. I think it's the wrong approach. I think our starting point should be what is prison for, what is custody for and the bill is pointing us in the right direction for the protection of public safety. How many people are in prison is more of a socio-political choice that we as a society make. The question touches on the risk appetite of our community. I once met a Finnish judge who was in prison at the time at the rate of something like 42 per 100,000. We were at that time about 150. We've come down to 135 or thereabouts now. I said to him, are we really that much more or less law-abiding in Scotland than you are in Finland? Are we bad or people in Scotland than you are in Finland? He said, no, I don't think so. I said, how come you can keep the prison population so low? He said, it's a decision that we've made. His answer was, it's quite hard on the rest of us, but that's what we've decided to do. Decades ago, we as a society made a decision in relation to mental health to do away with large residential institutions and move to care in the community. That was a risk that society was prepared to take at that time, a risk that society was prepared to tolerate. The same issue arises in relation to offending. I repeat that the vast majority of people who are in this cohort fall into that category. They have experienced trauma, they might have been victims of crime, they might have experienced adverse childhood experiences. I'm sure that I don't need to tell people on this particular committee that the significance of that, having two or more of those experiences, is likely to lead people into the criminal justice system. It's just to recognise that the solution does not lie in prison and the prison might make the matter worse. The way to reduce crime and reduce offending to address the needs of the people who are committing the offences is to address those needs. A good example is in relation to drug treatment and testing orders. It's a very graphic example of how that works. The obvious proposition being that if someone is committing crime in order to acquire funds to feed their habit, then if you address the habit, you will address the crime. That same principle can apply beyond just the realm of drug addiction. That takes you into the whole realm of community justice, community-based disposals and the extent to which services can be provided to support people away from an offending lifestyle. It's too simplistic to suggest that if there are more people who are not being remanded in custody, there's going to be more crime. I disagree because I can't quote it and I can't direct you to it but I listen to people like Professor McNeill and Hannah Graham and so forth. We know from then that even a short period in custody, and perhaps particularly a short period in custody, can be so disruptive and damaging that it increases the likelihood of offending on-exit. I think that the proposition that supports the suggestion that you've made is fallacious for that reason. If I may add to that just quickly. You mentioned at the end of your question about the need to increase support and so on from social work and I would agree that that answers a lot of that question. At the moment, there's a tendency to use bail as a waiting period, I suppose, prior to the trial but also a period of supervision without the support that's required to address the issues that are causing the offence in the first place. At the moment, throughout Scotland, the availability of that support is very patchy. It's recognising whether that's due to cuts in local authority funding, whether it's due to cuts in third sector funding or whatever issues there might be, is the fact that that support is not consistently available throughout the country. I think that goes back to the earlier question as well in relation to decisions for judges to use remand or bail because they need to know what's available in their community and if that support is not there, then the confidence in using those non-custodial options will be reduced as well. I'm also recognising that when someone decides to remand rather than bail someone, that impacts the family as well and the family hasn't committed an offence, but they are punished and that that longer-term impact on the family is something that also needs to be taken into account. I've just got a number of members coming in and we'll just come back. I'm going to bring in Rona and then Pauline. I've got three questions, one for each of you. Nancy, if I could start with you. You mentioned earlier your organisation's excellent report and very detailed report on the cost to families of imprisonment and release. If there was a key message from that, we don't have time to delve into it obviously. If there's a key message, what would it be from you? I think it's just making sure that we recognise what that impact is and we're going to try to reduce that impact. The expense for families particularly at remand and release can cost up to half their income, just trying to maintain contact, whether it's again trying to make sure that people are at least, well ideally where they're not put in prison in the first place, but if they are put in prison that that is placed in some place that's accessible, that the families can travel to and that the travel costs are supported and recognising the families are not guilty and again making sure, I mentioned this earlier, that people have access to benefits from the point of release rather than having to wait. Do you think they're getting enough information about that? It's having the information, it's having that practice recognised and firmly in place because at the moment it is not prevented in the legislation for this to happen but it just doesn't happen in practice so it's something that's absolutely critical because that burden is falling on families to support people on release. David, can I ask you your view on the removal of section 23D and whether women's organisations and victims are right to be concerned about this? I presume you heard the earlier session where it was unanimously agreed that it should be removed. I still can't really get my head round that but maybe you can give me your view. Yes, I support the removal of it. The fundamental principles around which decisions on bail are made aren't changed and the provisions in the bill provide sheriffs and judges with all the discretion that they need to address the concerns of victims. Victims' concerns are uppermost in decisions on bail and the recognition of a risk of harm to complainers. I would quite like to have seen the expression intimate partners somewhere in this bill as a recognition of that particular concern and the public are, in my view, adequately addressed. Again, when one turns to the actual process of a decision being made, more important than the terms of the legislation is the information that's available to the person making the decision and the accuracy of that information. The concerns of a victim in a situation of domestic abuse or domestic violence would be more important than the precise terms of the legislation. There was an appeal decision not long after section 23D was introduced that made that point that the principles, even in relation to 23D, were no different from the principles applying to decisions on bail generally. Section 23D placed an emphasis on serious offences and repeat serious offences. Without diminishing the extent of the concerns of those especially relating to domestic violence, I personally think that those concerns are misplaced and that there can still be trust that good decisions can be made as long as the best information is made available and the best advocacy is available to those making the decisions. I suppose from a non-legal point of view in my mind is why remove them anyway, what's the point, because that doesn't send out a very good message to non-legal. If I was having a conversation with somebody and said why did they take those out, I'm not entirely sure I could convince them why from what I've heard this morning. The QC that was here referred to a case in Livingston in the introduction of 23D, which was in 2005. We now know that it was a horrific case of someone being released, I don't know if you remember it, and they went on to kill a little 11-year-old boy and then he hanged himself, but that was a case where he had got bail and it was so shocking obviously that the then First Minister decided that we needed to do something about it. I'm unclear in my own mind about why they're being removed. I can't comment in that case, especially if whether the presence or otherwise of section 23D had a bearing on the decision to release the person on bail. In cases like that, one would need to know what the allegation was on which the matter of bail was being decided. It probably wasn't any allegation of attempted murder and I think it might have been a much lesser offence. I understand that. I don't have an entrenched view on this. I think what I'm saying is that I have no concerns about section 23D being removed. Why it's being removed, I do think it makes a huge difference to be honest, because the corollary of the answer I've given is just that, but it doesn't really make a huge difference and that may be that there's a recognition now that section 23D has become somewhat redundant. That's really sharing in itself. Wendy, if I could come on to you. The number of women in remand is shockingly high, I mean really short, I don't need to tell you that, and the disruption to families that fall us from that is evident. Why do you think so many women are remanded for low-level offences, and why are they there in the first place? You heard the previous session, but the solicitor had dealt with a case where the person was directed to the 218 project in Glasgow, which was hugely successful. My question is, if that happened more often, surely more women would not be remanded? I wish I could give you the answer, I really wish I could give you the answer, and in fact David is probably more qualified to answer than I am, but I thought a lot about this. Out of the seven people under the age of 18, why are they all on remand when we've got secure care sitting there with all the expertise in the staffing that could start to tackle the issues of why they're on remand, and why so many women, and I've come up with a fact that it's just too complex for me, and certainly out with my level of expertise, I can only give a personal answer looking at the research and the academia that I've looked at before. A combination of sheriffs not having a good collection of alternatives, which is really important, and a menu, if you like, supported bail being one of them. It's whether it's a backlog in Covid and greater offending has occurred in the middle, a lack of joined up thinking, a lack of informed decision making, whether there are sufficient diversions to not allow them to get to court in the first place, whether it's a risk averse approach, whether I really don't know, but I look at the figures, and I think those two figures, 70 per cent of women currently are on remand, and all seven of people, or six or however many there are at the moment, are all on remand. It needs a question, and it needs to be answered. David, do you like to comment briefly on that? Yes, I can't answer your question. I don't know why these decisions are being made. As of last night, the overall remand population has crept up to 29.25 per cent, if my arithmetic is correct, and in the female estate, 38.68 per cent as of last night. I know that you can't take one day's figures and build on it, but there seems to be a creeping trend when our report was prepared that you have in front of you from Hardleague Scotland. Those figures were 27 and I think 35. Anyway, the question in relation to women may not be unique to women. I think that the decisions on bail are probably made in the same way, but there's an exaggerated remand population in relation to women, and I am at a loss to understand how that can be. I shake my head and dismay that so many women are being remanded in custody, especially when we know that 70 per cent of them will not receive a custodial sentence for the offence even if they are found guilty, because those people are innocent until found guilty. In a sense, that comes back to comments that I made earlier about the appetite for risk. We have a presumption against custodial sentences under 12 months, which, as you probably know, is the custodial limit for summary offences. It's in the summary criminal court that the vast majority of the cases that are most disruptive to society occur. I think that it's a mistake to call them the less serious cases, but the domestic abuse, public disorder, violence, lesser drug offences—those sorts of things, vandalism that can be disruptive to society and the ones that perhaps impact most on individuals in society occur at that level. I am proud of the fact that we as a nation have made a statement that custody is no longer the default sentence for people who have committed offences at this level. The corollary of that must be that we want to put in place the supports that people need to help them to move away from offending lifestyle and to address their needs to achieve that. In the particular world of bail, though, and the immediacy of that decision that has to take place in the space of 24 hours usually of somebody being arrested and a decision being made, the unsung heroes in all of this are the criminal justice social workers. If we are serious about providing sheriffs and decision makers with additional information, then these are the people who will do it. In those areas where there exists a supervised bail scheme, there are measures available for sheriffs to receive reports from social workers, and I have explained what happened in my court in Allawa. It was invaluable. However, I respectfully agree with the comments by Professor Macari yesterday that if we are taking this principle seriously to its logical conclusion, we ought to elevate our thinking to the formation of a custody and bail unit of criminal justice social workers whose task is both to prepare reports and to address the immediate issues of housing and mental health assessments in cases in which there might be a question of a hospital rather than a custody order being made and really creating a resource that will address the needs of those who are arrested. That sounds like a council perfection, but there is no harm in setting our sights high in achieving that because in a perfect world that is what we would have. I wonder if I can maybe just intervene at that point where I think we're enjoying and finding significant value in your very comprehensive questions. I'm just mindful of time and I've still got four members wanting to come in. I hate cutting you off, but I need that sometimes. I'm done. I think that what I said earlier about the patching provision in terms of support for people on bail is actually exacerbated, particularly when it's we're talking about women in the justice system. It's not cost effective for local authorities to have one or two places on supervised bail set aside for women, so what it means is that they don't fund them at all and that means those options aren't available. So what we need to have is women don't fit the local authority approach. It needs to be more collaborative in terms of making sure that they have the support that they need, not people in other parts of Scotland can't really refer to 218, for example, and there's not that type of facility available readily in other parts of the country. So I think we really need to think how we manage the situation of women separately. So what we end up with is people who need desperate amounts of support and they end up being remanagined in custody for their own safety, which is not how we're supposed to be using prison. Just on the point about under 18s that you were covering all fairly early on, it's just worth noting that the committee's next bill will be the Children's Care and Justice Bill, and this has a presumption in it to send under 18s to secure care and not prisons. So, obviously, we'll be looking more closely at this issue down the line. Thank you very much. Good morning. I have two questions. One to David and one to Wendy. Can I begin, David, by just thanking the Howard League for the work that they've done in highlighting not just the reman population, which first do my attention to this horrendous issue for Scotland, but also the conditions of which prisoners have been held in remand in particular. I think that this committee at one, in terms of—we've also discussed it with the Chief Inspectorate—it's a situation that we all want to get out of. So I wanted to thank you for that. My question relates to—in your submission, David, you say that you would like to see there will also include provisions for discretion where it's unlikely to result in a custodial sentence. I just wondered if you could say more about that. I imagine not all cases you could know whether there's likely to be custodial sentences or not, but anything you could tell the committee about how that would operate would be helpful. Yes, well, this comes back to the point that I've already made, that we have a presumption against custody under 12 months, and there's a certain logic that if somebody is not going to receive a custodial sentence for the offence that they've committed, and if they're assuming that they're found guilty of it, then there's no justification for their being remandered in custody. It's as simple as that. If the logic of that presumption were applied at this stage of decisions being made on bail, then one would imagine that a remand would become the exception rather than the norm. It's as simple as that. My second question is to you, Wendy. It might be another question that you can answer, but the committee was interested in this after visiting Glasgow Sheriff Court on Monday. The profile of remand prisoners is obviously looking at the distinction between summary cases and petition cases. On Glasgow Sheriff Court on Monday, with the summary court, most of the mobile supervision cases that we saw are the 13 cases. It looked like the trend for the day. I believe that those figures are available, and I wonder if you would agree. Do you think that it's quite important for us to analyse the remand profile, if you like, to try to understand? It's still a bit mystifying as to why David mentioned earlier that we're at 29.9 per cent, because looking at summary justice at one day in Glasgow Sheriff Court, the sheriff was very particular about applying that principle of only remanding where there was no other way that the sheriff could go in terms of bail supervision, etc. Could you comment on that, or give us any information? Oh, it's a difficult one. I think that the gathering of data and statistics to inform why it's happening is really important. Why is bail being refused? Why are people on remand would actually really help? Although some statistics are gathered, by no means enough and by no means publicly available, we can draw some analysis and conclusions, that concept of informed decision is so important. You'll see in the NPM submission that we say that we would like the sheriff that social services must provide a report. That's one of the things that we're really important about. Before that, the possibility of informed decision making absolutely relies on evidence in order to take that informed decision. If we don't have the evidence of what brought people to tangle with the police in the first place, why are they on remand? Why is bail being refused? It's very difficult to change a culture to away from remanding. I was more thinking about looking at the profile of remand prisoners. Let's say today what would it look like in terms of categories of offences. What would be the balance between petition and summary? Imagine that it's more petition cases. What would be the high court cases and crimes of theft, dishonesty? Are you aware that that information is available? Justice Analystical Services has a great deal of that information. I know that the last time I looked at it, what threw me was the number of cases or the high percentage of cases going to the high court that were legacy sex offending. That really made my eyes open. You'll find that very interesting. I'm going to bring in Jamie Greene and then Katie Jamie. One of the problems with legislating to change the parameters around the grounds in which bail can be permitted or refused is its quite an all-encompassing approach. I don't know if it necessarily accounts for the nuances that courts are. It applies to summary and solemn cases. It doesn't differentiate between domestic or non-domestic cases nor does it take into account the nuances of specialist courts that deal with sexual abuse, drugs, youth or female courts, for example. It takes a one-size-fits-all approach to those changes. My worry about that—I wonder if you might comment—is that the right approach should there be a more nuanced approach in legislating when we make changes to refusing grounds for bail as the bill currently proposes to do? It's not quite an open question, so I'll maybe do it in some specific scenarios. I'm not sure that that's something that I would be qualified to answer. I'd be happy to comment in general. I think that there is an issue that we need to look at in terms of the levels of legal aid that are provided. I'm aware that I'm referring to Holly McNeill's question about what happens after people are remanded into custody. In fact, there's a backlog because the solicitors aren't available to take up their cases. They're not solicitors' lawyers taking on legal aid work because it's not worth their while. You have people who are lacking representation and are not able to proceed with their cases on that basis. However, I'll leave it there. I know that there are much greater experts to my work. I can't absolutely comment on what you're talking about. I think that there's a real need for the bill to be operationalised. It hasn't been defined as yet, but anecdotally, what we're finding when we're going into prisons is that people A say telling us whether or not it's true—I don't know—and we haven't done the research and evidence to back it up, is that they are pleading guilty because it will be a shorter time in order to be in prison. Secondly, they cannot get legal representation. It's interesting that two organisations are getting the same anecdotal feedback. Those are problems that the bill doesn't address or fix, one being the backlog or the amount of time that people have been held on remand waiting trial, which we know is an issue, or the suspicion that the defence lawyers may be saying just plead guilty, that the sentence will be lesser than the amount of time that you may spend on remand, so you're still in the same environment, but you just have fewer rights and options have opened to you. That is worrying, actually. Mr Mackay, I wonder if you could go back to the original question around the issue. You'll know you sit in court that they deal with different cohorts of people in different ways, but the bill doesn't do that. I think that the answer to the question is helped by understanding how the question of bail is actually dealt with in legislation. There's no attempt in legislation to establish a detailed list of regulations that address or attempt to address every possible scenario. The approach starts with the European Convention on Human Rights, which says that everybody is entitled to bail. That's the starting point. Every person accused of an offence is entitled to bail, full stop. What our legislation does is to then address the exception. If there are reasons justifying the withholding of freedom, then these are they. What the bill is doing is resetting the bar, effectively restating the principles that decision makers, judges and sheriffs take into account when they're deciding bail. The way nuances in individual cases are addressed is through the information that's available to the decision maker. Rather than being concerned about creating legislation that endeavours to address every circumstance, the judges and sheriffs are provided with a wide discretion in addressing those issues. How that discretion is used is the important point. That relies so heavily upon how well informed the decision maker is in general terms with what might be called judicial knowledge. I think that in these days judicial knowledge includes trauma awareness and that sort of thing. But most importantly, having access to risk assessments in the most serious cases, in solemn cases, might involve allegations of murder, rape and so forth. But without becoming too preoccupied about the availability of risk assessments, which make a particular demand on resources and time in what is a very time critical situation, just information about the background of the accused person, the victim or victims of their families. I'm going to mention here, I hope not out of turn, that I share the disappointment of families outside that there's no specific reference to children and the requirement for courts to have regard to the interests of children affected by decisions on bail in this bill. I appreciate work time and time. From what I saw at the Sheriff's Court in Glasgow on Monday, those are factors that sheriffs do consider. If it's a young person, a female accused, someone that's been declared as having mental health or addiction complications, someone who has a full-time job, for example, that was clearly a factor in some of the cases, and the mention of children or being the carer for somebody in there. So, those are already factors. Why do we need to pick that into the legislation? I absolutely agree. Sheriffs do take account of that. They suckered whatever information they can take and have regard to these circumstances. However, in terms of the statutory basis on which decisions are made and the perception of society and the world on how we approach those questions, I think that the recognition of the rights of children should be given prominence, because, to be perfectly honest, some sheriffs are more aware of that than others. Sheriffs and judges are having to begin to grapple with the true impact or the true implications of the convention because if a person with childcare responsibilities who is a primary carer of a child is sentenced to prison, the interests of that child go from being a primary consideration under the convention to the paramount consideration. Judges may have to start thinking in terms of not only recognising that there's a child affected by the decision, but actually ensuring that the interests of that child are then taken care of. For that reason, I think that there's merit in considering a specific reference to the rights of children in the bill. I apologise that it's not my nature to interject, but I want to get through my questions. I was going to pose a scenario and it fits in nicely with the mention of children. If, over the course of a weekend, an adult male beats up his wife or partner or child and appears in custody on a Monday morning, that's a reasonable scenario that happens, unfortunately. Would it be your view that the default position would be that that person would be released on bail, or in those scenarios where there's clearly an act of domestic violence and assault has taken place on any member of the household, that person rightly should be held on demand? What would your default position be, as a sitting sheriff? There is no default position. The starting point is that person is no different from any other accused person that they are entitled to bail, unless there are reasons not to grant bail. Then, when we consider the particular circumstances of the case, it's impossible to give any general answer, because so much depends on the circumstances. For example, if there were special conditions that would realistically have a prospect of keeping them apart and keeping the alleged complainer victim safe, that might be considered. It's very common in cases like that for conditions to be put in place prohibiting the accused person from having contact with the alleged victim from approaching her. There might be conditions excluding them from an area or even a whole town. There was a famous case years ago where somebody was excluded from the whole country. There are a range of possibilities there, but if the information made available to the court made it clear that even the existence of bail conditions, if there's a strong history of repeated offences of violence involving this couple, then it may well be that the only solution is to remain that person in custody. From my answer, you will see that so much depends on the particular circumstances of each individual case, but I think that it would be dangerous to have what you described as a default position when an allegation of that arises that the person accused should be reminded in custody. You mustn't forget that a common occurrence in cases like that is that, when all the turmoil settles down, the alleged victim starts making requests for her partner to be released because she relies on him for support, for childcare, for income, and they have a family. Therefore, those very complex challenges can arise a week or two later. My final question is one specific issue. If the changes that are in the bill come to fruition and the public safety consideration is the primary consideration for whether bail is granted or otherwise, what powers does the sheriff have to deal with the issue of repeating non-appearances, because that has been specifically raised with us? There is a concern that people who simply fail to appear at future diets sometimes custody is the only way to ensure their presence at the trial, for example. If the sheriff has nothing up their sleeve to make sure that that person appears, having considerably breached on a number of occasions historic appearances, they do not have that ability. How do we deal with that? The sheriff still has that power, but it has been modified in the bill. In some cases, I think that the proposed section appears to endeavor to address that very point, that somebody can be remanded in custody for a failure to appear at court, but only if they have previous convictions for failing to appear at court, either in respect of bail or for actual court hearings. The point that we made in the Howard League Scotland response was to put some kind of time limit on how old those previous conventions might be, because somebody might appear in court with a conviction that might be several years old that would fit that criteria and would justify a remand in custody. My basic answer to your question is that the sheriff still has that power and there is the wider provision about interfering with the courts of justice, but in relation to some cases there is that power and in solemn cases it is not watered down at all. That is how that has been addressed. It seems to be an endeavour to avoid unnecessary remands in custody of people who are otherwise not a risk to society. Perhaps there is more about keeping in touch with people, how we keep in touch with them, how we keep tabs on them, how we get them to court, proceed them to come to court for a cohort or a very vulnerable and penalty. I will bring in finally Katie and then Fulton and then we will have to bring the panel to a close. In the last session we heard some evidence in relation to the central marking of cases and the decisions that the Crown makes as to whether to oppose bail or not. In particular there was a suggestion that there needed to be more discretion from procreate ffiscals that they should be given more ability to use their discretion in the courts rather than having to go up a managerial chain and impose, if you like, central policy. We will be meeting with and hearing evidence from the Crown next week and I would be interested in any thoughts in terms of changes you think there needs to be in relation to practices or, indeed, process or policy in terms of crown decisions and whether you have any thoughts on that. Maybe that you do not have an opinion and it is something that you feel you do not have expertise in. I do not know enough about what the Crown practices and procedures are to say what they should or should not be doing. What I can say is though that there is value in having a regular deputy in court who takes ownership of the case and understands the approach of the court to questions of bail. That was something that I benefited from in practice in my small court in Allawa. We usually had deputes who were there for years at a time and a certain common understanding emerged us to the sort of information the sheriff would want and the particular considerations that the sheriff would take into account in deciding bail. It is a difficult question because the Crown is dealing with a large volume of cases and they have to be marked and some view on bail has to be taken. Questions of defence of decision making and such like arise, but I am not in a position to comment beyond that. The other question that I had again and it may be that you feel that this is not something that you would be able to add to, but we have heard about the importance of information being provided to the sheriff and to the court. In the last session again we were told that if you go back to the 1990s, the early 2000s, there was better provision of social workers in the courts. That is quite anecdotal in that there may be great geographical differences in terms of the level of provision. I just wondered whether you are able to point us to any evidence or work that has been done in terms of the availability of that support in the court. It is a resource issue rather than a legal issue, but I just wondered if you have any experience in relation to that. I agree that resourcing is a huge issue in relation to social work in particular. I know that the court-based social workers are not available in many courts. There are other ways of gathering that information depending on what time of day the information is requested, whether you can request a stand-down report, for example. There are also creative ways of working around that. For example, the prisoner form trust has just introduced child impact assessments, which are assessments that social workers can inform the courts but are done by a person that the child chooses. Whether that is a teacher, whether that is a health professional, whether that is a school dinner lady in one case, that information is still available and social work has very much welcomed that approach in terms of being able to provide that information without necessarily requiring additional resource from social workers who are very overstretched. My final question is in relation to the public safety test, whether you support that fact. Inclusion in the bill—I think that you have spoken about that a little bit already—is a helpful addition to the bill, whether you think that it will make no difference whatsoever, but it may create uncertainty and, as we have heard, it might lead to appeals as we try to clarify what it means. However, if there is going to be provision—I know that yourself, David Mackay, have already made some suggestions in terms of additional provisions that could be put in the legislation that might be of assistance—but if there is going to be a test of that nature, how we could define it, if you have any suggestions in relation to that? I hesitate to try and offer a definition. I think that, first of all, public safety is already in the existing legislation as part of the definition of public interest, and the bill seeks to restrict it to public safety. I think that I would echo comments that have been made in the response by the judiciary and others that it would be helpful to have a definition of what public safety means. In one sense, I am not ducking the question. I think that I would need to reflect on what I think the definition should be, but in a sense—I am probably inappropriate for me as a sheriff to attempt to do that—in a sense, that is the very question that policy makers on behalf of the community would do for us. What is meant by public safety? At the moment, if that is the expression that is left, what may happen is that different sheriffs and judges will apply their own interpretation to that. It is a very wide scope for interpretation and we may then have a process of clarity emerging only through appeal decisions. There would be benefit in an attempt being made to offer some definition for the benefit of judges and for consistency in the bill's decisions. I had three questions that I had because my colleague Katie Clark actually picked up on the question that I was going to ask to yourself, David. That was about the crown processes that we heard about from both yourself and the previous panel. For today, it is suffice to say that both of you have given us some information that we can take into next week's session, so that has been very helpful. Nancy, in relation to the question that I had for yourself is about the input of criminal justice social work, which the bill proposes. You have talked a wee bit about that. We did hear from previous panels, not today's previous panel, but I think that it was last week. That perhaps how this process could involve the third sector, more organisations like yourself but also others that are working in the community. Do you have any idea how that might happen? Would you welcome approaches from criminal justice social workers to talk to you about seeking advice and guidance on how families might be impacted by decisions? Absolutely. That is something that we already do, to some extent, where social workers are aware of us and have that communication. The role of criminal justice social work is very much focused on the person who is accused or convicted of the offence, whereas our focus is on support for the family and what that means for them. There really are parallel priorities in that sense. The social workers, particularly for longer sentences, are required to visit the family, but in the family's experience it is often in relation to what the person in prison needs as opposed to what the family themselves needs. We need to look more at what that means for families where families might need protection, where families might need additional support, particularly families that are struggling financially. Again, the financial impact report that I mentioned, where families who are simply not eating at the moment, because they cannot afford to, because they are pouring in money to the person in prison or trying to maintain that contact. There are a number of ways. We often have conversations with children and family social workers in relation to the appropriateness of contact and the child's right to contact under article 9 of the UN Convention, but whether that is safe and appropriate and how we can support that. There is a lot that we can do, as well as for support and supervision on release, where criminal justice social work might be seeing someone 45 minutes every fortnight. There is a role for the family to provide that more day-to-day support, not just as a tool but in recognition for the support that they might need to support someone coming out of prison. If the suggestions that have been put forward by the bill are realised, it will increase the opportunity for that joint effort at that stage, which is the stage before a decision is made in the bill. It is very useful that the bill provides those opportunities, but it does not state explicitly how that might work. I think that there is certainly a role for third sector organisations and for families to be recognised in what that needs to include and have them involved as a part and parcel of the process, rather than as an exception and at the discretion of the social work team. It is trying to make sure that it is a given, rather than an exception. In Wendy, if I may, it is more of a general or a philosophical question, if you like. We have heard quite a lot of evidence, including in the previous panel and in the last week when we had the academics. Something that I think is generally shared by committee, and I think that you have hinted at it yourself before, that if we are going to invest more in the community—this is one example of that at the bail stage—ultimately there might be a saving in prisons now. Nobody is expecting that to be overnight. There would need to be a long period where both are funded at a similar level of community justice perhaps more than something that we will ask the cabinet secretary about. However, in time, we should see that change and that would be the hope and the desire. How do you think that the prison services and yourself in your own role would feel about that? Is that something that you support, or would you be resistant to that change, if that makes sense? I have repeatedly talked about my concerns with overcrowding in our current prison estate. I do not think that I have been anything other than robust in that one. I think that every single person who works in the prison service and the whole of my organisation would applaud a reduction in the numbers. Unfortunately, it is a binary qualification yet, and I take your point. The reality is that if we can get the prison numbers down, the existing prison staff can do so much more in terms of reassessing what they need to do, providing purposeful activity and reducing the risk of that person leaving the prison, and therefore benefiting the community. In the longer term, if we could reduce the prison numbers to the extent that other European nations have, such as Holland and Portugal, I would be absolutely delighted as a taxpayer. However, if funding is to be able to go into the community to either divert from prosecution to prevent the problems that are happening in the first place or finding alternatives to prison that are more effective, I think that there is not one single person in the justice system who would not be delighted. I am going to have to bring this panel to a close. I am sure that we could continue for much longer, but it may extend my thanks to the panel this morning. It has been a really invaluable session. We will have a short suspension until our witnesses to leave and have a very quick comfort break. Our final panel today consists of one witness. Unfortunately, Chief Superintendent Gordon MacReady has submitted his apologies. We have with us Chief Inspector Nick Clasper of Policy and Partnerships within the Criminal Justice Services division of Police Scotland. You are on your own, Chief Inspector, this morning, but a warm welcome to you. We have about 45 minutes for this session. We may have to cut it a little bit due to the previous panel's overrunning, but we will see how we go. I will start by asking a very general question. It is just in relation to the information that the police include in police reports that inform the fiscal and the court on information around decision making on bail. Clearly, Police Scotland officers have a role in informing that process. It might be helpful if you were able to set out the type of information that is included in police reports around, in particular, bail and whether you officers recommend that bail be sought or otherwise. Over to you. The standard prosecution report is the means by which police officers will present the information to the Crown with regard to the individual. In particular, there are two sections in which police officers will complete in the prosecution report in respect of the individual and their circumstances, the first of the antecedents, which relate to the background of the individual, family circumstances, employment, earnings, benefits, etc. The second part of the report is specifically about bail, and it asks a number of bail questions around about offending previous convictions, whether they have previously offended on bail, and it also asks for the officer to provide a view on whether or not they support a release on bail or not, and whether they believe that any special conditions would be appropriate for the case that is being submitted. One of the issues that we have been looking closely at is the voice of victims, complainers and witnesses. To what extent do you include information from and I will just have to confine that to victims in your police report? We do, certainly. When it comes to specific examples such as domestic abuse, we specifically give the Crown information on the victim's view as to bail any conditions that they feel might be appropriate, so that is covered also as part of the standard prosecution report. Okay, fat, thanks very much. I am sure that there will be probably some more questions around that particular issue, so I am going to hand over to Russell Finlay. The Scottish Police Federation has submitted some written evidence, and it takes the view that it is not entirely sure what problem needs to be fixed there already of the view that its members see people being bailed almost as a matter of routine in respect of police bail, and those that are kept in custody pretty much the majority of them are granted bail by court. Do you think that there is a slight disconnect between the reality of what is happening on the ground and what we are hearing about from some other witnesses that too many people are indeed being remanded? Obviously, the question around remand is one for the sheriff and the judicial decision maker. Officers will present all the available information with respect to the background of the vigil to try to fully inform and allow the sheriff to make an appropriate decision when it comes to bail. We have recently been working closely with Justice Colleagues in Social Work Scotland to enhance an information sharing agreement to ensure that Justice Social Work has access to court custody lists in the morning in order that they can advance triage those who they believe may be bail opposed, and that will allow them to get an earlier start on preparing information to allow the sheriff to have that to hand when the decision is made. Another issue that the SPF has raised, and they are not, as far as I am aware, giving evidence in person, but it is in response to the release of people from prison. They say that Police Scotland is already struggling, and I will quote, with the management of high-risk offenders and cannot safely manage this within current resourcing arrangements. Do you agree with that interpretation that, right now, Police Scotland cannot manage high-risk offenders in the community? What is your answer to that? What happens next if, indeed, this bill comes to pass? Police Scotland has robust processes in place to manage offenders when they come into the community, be it from release from prison or release from court on bail. We have a number of approaches where we can examine the potential risk that individual poses in specific safeguards around about enhanced checks. I would draw the committee's attention to our approach to domestic violence, where we specifically go and visit offenders released on bail to remind them of their responsibilities. Undoubtedly, if there were to be an increase in the number of persons on bail, that would undoubtedly create further demand on resources for Police Scotland, and we would need to consider how best to manage that risk going forward. I think that it's twofold, isn't it? It's the managing of people who may be bailed, but also the early release of prisoners that might need some form of monitoring as part of their condition of release. In respect of that element, that cohort, is it the case that Police Scotland cannot safely manage this within current resourcing arrangements, as the Federation states? I don't believe that that would be the case. At the moment, Police Scotland managed those individuals who come into the community effectively and efficiently. We obviously looked to identify methods of mitigating that risk and how best to support those individuals reintegrating into the community. Ultimately, the aim is to ensure that their successful reintegration prevents further offending on the reins of the community from that point. I just wanted to pick up following on from the last line of conversation around the duties on the Police Scotland or enhanced responsibilities, which result from an increased volume of people on bail. We also know, as was mentioned in the last session, how up-to-date the figures are perhaps something that the parliamentary research team could help us with. The last time I checked, one in eight crimes were committed by someone on bail. I don't know in terms of volume how many crimes that is, but it's a fair amount. Obviously, the Police or the front line to deal with reported crime are the responsible for not just the handling of the reporting of it. We can talk about one-on-one calls to the cows to come home, but that's another matter for another day. However, you essentially have to turn up or deal with the initial report and perhaps even the potential arrest and custody of somebody over the weekend, for example. Is there an inevitability that if the bail population, if you like, to turn the phrase on its head from remand population increases, the number of offences committed by people on bail will also increase, or would that be a wrong assertion? I don't think I'm qualified to make that assumption. However, the empirical data does show that there is about a 17 to 19 per cent offending rate for individuals who are on bail. If you follow that empirical data, it may be the case. However, that does not necessarily correlate with what effect further measures around mitigation may have on bail compliance. It would be difficult to say one way or the other whether that would be an actual outcome. Let's imagine that it did. For all intents and purposes, you have to scenario plan, because, presumably, that has a knock-on effect on you and your resource and your ability to deal with that. If there is an increase, would that require additional resource or funding? Would you be under your current—I know that police have a heavy workload, as it is—dealing with a whole wide range of emergency situations that other agencies perhaps all will be dealing with? We have taken evidence—that is a matter of public record already—to that effect. Would that put any increased pressure on the police if they were dealing with that 17 to 19 per cent of re-offending whilst on bail if the numbers increase? What would you say to front-line officers who perhaps are concerned, and maybe they have elisted those concerns through the Federation rather than directly to the committee? If they do have concerns about potential increases in workload due to changes in bail conditions or the rules around which bail is granted, what would you say to alleviate your officers' concerns? Obviously, if there was an increase in demand, that would increase workloads. Without any increase in resourcing, that would have to be met through existing staffing. The position would be that, if there was to be an increase in demand on front-line police, we would look for an increase in resourcing to match that. One of the issues that was pulled out in the financial memoranda was the fact that it was an unknown at the moment and, therefore, we were unable to quantify what that would potentially look like without some form of indication as to how many extra individuals might be on bail and any correlated increase in offending or bail offences to go with it. The chief constable obviously stated publicly that he is currently reviewing the Police Scotland structure and focusing on public protection as a priority. I would say that one of those public protection around domestic offending, sexual offending and bail associated with that would obviously be something that would be looked at. That is entirely the answer. I expected you to say that, and I think that it is entirely appropriate that, if your workload has increased, the Government must rise to the occasion on that respect. On another issue around the monitoring of people—for example, if there is a political decision to have fewer people held on remand and more people subsequently may be given bail, that is the premise of the legislation after all. On the other hand, there is an increase or additional conditions or monitoring that goes around that either electronic monitoring or other forms of restriction of liberty. What role do you think the police would play in any or all of this, or none at all, if it is purely just down to just the social workers or other agencies to make that role? Or do you think that the police would have quite an active role in ensuring that those who are out on bail, who may, by up to 20 per cent, be that cohort of people who may re-offend the boss on bail, what duty do you have to ensure that public protection is paramount? Obviously, our duty around about risk to the public and assessing that risk for an individual who is on bail is part of our existing processes. Where it is assessed that individual poses a higher risk, we can put additional measures in place. I have already referred to the further visits of the domestic offenders to ensure that they are aware and remain compliant when it comes to their bail conditions. Can I clarify? You mentioned electronic monitoring there. Were you looking for the police involvement around electronic monitoring? Only if you think that you would be involved. Yes, we are. My team has been very closely involved with partners on the implementation of electronic monitoring to the organisation. Generally, Police Scotland will deal with any report of a breach of electronic monitoring in the same way as we would deal with a report from a member of the public that bail had been breached or so on. Therefore, the demand in relation to electronic monitoring is something that we have previously raised or the chief superintendent raised at the SPA. One of the good things about electronic monitoring is that it obviously provides that constant consistent insurance that bail is being adhered to, whereas previously, for example, for a curfew, it would be dependent on officers attending at the address knocking on the door. However, what that also means is that we are now aware of every single time that a person is not within an address, and we now also deal with that as a breacher bail and investigate it and report accordingly. That is really interesting. I guess that if things were more people-based or manual, there is a sort of mystery shopping element that you turn up at the address, and if they are not where they should be, you take appropriate action, but now you do know. In real time, I suppose, of every breach that is occurring and have a duty to respond to that, are you able to? Is it physically possible for you to turn up to every address and every person who is tagged and deal with that situation if there is somewhere that they should not be or is it something that you just have to compile reports and let it accumulate? At the moment, our system is set up so that the breach of bail is reported directly into the control centres and they carry out a risk assessment around the breach. However, they are tasked out to response officers to go and deal with in a similar way that if somebody phoned into the police to say that they have seen their neighbour who the name was on curfew, we would also deal with that in exactly the same way. It is about the route of reporting as opposed to the fact that it is electronically monitoring. Interesting. I am keen to let others come in if they want. I will only have one question at the end if we have time around serious organising. I was wanting to go back, if you like, to the beginning of the process in terms of bail, because we have heard of the importance of sufficient information being provided to the court in relation to bail decisions. We have also heard that, often, the social work provision that we would ideally want there to be in place just does not exist there. I wonder how that interfaces with your work. Obviously, the police are not social workers, but presumably you have to go some way down that path to be able to ensure that there is sufficient information. If you could comment on that in terms of not just the resource implications but to what extent you are able to go down that path to ensure that there is a holistic understanding of the situation when the court is making a decision. At the moment when somebody appears in court and the crime needs further information, they can often try to make contact with the reporting officer to try to get further information around that individual. That may or may not be possible depending on shift patterns. However, it falls back to the initial point from the convener about the sufficiency of information within the standard prosecution report to ensure that that broad and balanced decision is made by the sheriff. We do work with the Crown in respect of regularly reviewing the information that they require within the report. Again, that is an area where, if it is felt that there is not sufficient information being provided to the crime, they would advise us and we would then look at whether or how we would provide further information for them. To use an example, it was pointed out to us that the interests of children need to be a top priority. To what extent would you get involved in getting sufficient information about that, or would you feel that you would have to refer to other agencies? When it comes, for example, if we are looking at domestic abuse, there is a requirement within the format of the domestic abuse report to look at children within the household. For example, it is an aggravator if there is a child present during a domestic abuse crime. That is something that we would look to and would include in the standard prosecution report. As regards any views of children, that is not something that we would look at at the moment. However, I am aware, and having listened to the panel earlier, that the convention may change that as we move forward. However, that will obviously be something that will be done in conjunction with the crime. Can I maybe just come back in Chief Inspector and move the line of questions on to the plans around release from custody? You will be aware that sections 9 and 10 of the bill relate to release planning and through-care support for prisoners. I know already that Police Scotland has close relationships with the Scottish Prison Service around a range of issues, but particularly that point of release for an individual. With the aim of supporting successful integration for individuals back into the community, as I say, sections 9 and 10 include those provisions. Those sections also make reference to Police Scotland. What, in practice, would you expect the sort of police input around that to involve going forward that perhaps is not already in place already? I think that the point specifically that Jamie referenced is the impact on police resources. Should that become or should practice around that change? Police Scotland, as you have alluded to, has good working relationships with our community justice partners and around about release planning. We will be involved in the discussions, particularly in respect of community risk and any risk that may pose on release for the community or the individual themselves being released into that community. We are certainly content that that is something that we do at the moment. If there is an increase in demand in that respect, then again, as a reference to Mr Greene, any increase in demand may necessitate a consideration of increased resource where you are transferring risk from one part of the criminal justice system into the other. There may be a necessity for a rebalancing of funds, all that risk, and it would certainly be worthy of consideration. Again, I refer back to the financial memo. That is very much an unknown quantity, so we were unable to give a precise indication of what that impact may be. That is interesting. Remaining on the release point, if you like, we have heard earlier on evidence around the importance or the value of, for example, third sector and other organisations starting their through-care support before an individual is released. Do you have any observations on whether there is a role prior to release, a pre-release role, if you like, for Police Scotland, again that perhaps is not in place already and that would fit within the provisions of the bill? I think that Police Scotland would obviously become involved in the latter stages. Ultimately, prior to any planning, the vast majority of that would sit with other bodies other than ourselves. We obviously would be and are happy to join in and be involved in those discussions around the plans for moving forward. However, I do not have any further comment on that, I am afraid. I think that Jamie Ewing wants to come back in and then we will probably bring the session to a close. Just a few other things that popped into my mind. How do you think that we are going to be able to quantify that rebalancing is the word that you used. As you say, if we are shifting the balance of risk from one element of the criminal justice system to another, in this case, to the police, and the financial memorandum is suitably vague in its analysis of that, other than just the volume of people that may shift from remand to release on bail, what piece of work needs to be done ahead of the bill progressing through this committee or through the Parliament to give you satisfaction that policy shift and rebalance will be matched by financial rebalancing? One of the challenges that we highlighted in the original consultation was about the uncertainty as to what is a public safety test and how that would then impact on the existing provisions and the existing situation. I have watched the earlier sessions and obviously significant discussions around section 23D. Our position was that we were concerned that, without some form of definition as to what public safety is, that any domination of rights or protections for victims and or witnesses and also elements of removing the judicial discretion around that. In regards to what work needs to be done, perhaps there is scope for trying to understand what exactly the changes that are proposed will mean in respect of the increase in numbers that will be admitted to bail. Unfortunately, I do not think that that is an easy piece of work. I am listening to the previous panel and the sheriff who is there. I think that he has quite artfully articulated the challenges that the judiciary has in trying to work out who should and should not be admitted to bail. Another parallel question is one around those changes. Clearly, one of the considerations that sheriffs give is serious consideration of a risk of interference with witnesses or victims if someone is granted bail. If there are any changes to that, there is a mixed opinion on that or people who think that that ground for refusal has been diminished and others who believe that it will exist and is protected in the new legislation. I am not quite sure that I know the answer to that. However, if there is any risk that that is either taken away or diminished in any way, what concerns might you have or the police might have that those accused of serious crimes do not necessarily pose any immediate public safety risk, but nonetheless possess quite a significant risk of interference or prejudice to justice? That was the concern that we picked up during the consultation, that without any degree of clarity as to what a public safety test would mean around the protection of witnesses and victims. We also raised a concern about, for example, witnesses to organised crime who were not covered in the initial consultation without a better understanding of how that would impact. We would remain concerned over the changes moving forward. I am finally filled with nothing that you want to come in with. Is that correct? Yes, thank you, convener. I have just a couple of quick questions for the panel. Thank you very much, for your names. I think that it has been the shortest panel so far anyway, so thank you very much for that. One of the concerns that we heard was that it is in terms of non-appearance at court and the seriousness of that, but at the same time trying to balance that against whether those individuals should really be remandied just because they are not attending at court and that every other factor does not suggest that they need to be remandied. We have heard that in a couple of panels, including I think both of today's panels, or at least one of them, and we have heard it previously. I wondered if that is an area that maybe the police would have some sort of role in. I do not know what it would be. I would not be anything to do with the bill, I do not think, but maybe a policy of the police to explain the seriousness of attending court. I know that you do that anyway, but perhaps look at it in another way, because if the bill is going to have the effect of people who are not going to receive remand based on just not appearing at court, it is a very broad question. What role do you think the police might be able to have in that to ensure that people are attending court and not putting themselves in a position where they have not appeared five times or whatever the case might be, when all more can even be more than that? The issue of non-appearance at court also places a demand on the police in so far as where an individual does not appear in general terms, there is a warrant issued for their arrest which requires police inquiry, apprehension and presentation before the court. With regard to the actual notification to individuals about court dates, court appearances, the police are not always privy to all of those dates, so it may not be an appropriate role for us. However, during the constitution, we raised the initial concern that there was no mention of the administration of justice. I have been working closely with colleagues in Social Work Scotland, the Community Justice Scotland, for the past 18 months. I am aware that the use of bail supervision or some form of support during bail to assist individuals to remember when to go to court. For example, those who may have addiction issues, mental health issues or live chaotic lifestyles, that might be an opportunity to prevent them from appearing in the first place and then pulling them back into arrest, custody and a presentation at court again. Okay, thank you very much if there are no more questions. That's been a nice neat panel just to end our morning. Thank you very much Chief Inspector, we appreciate your time and that concludes the public part of our agenda and we'll now move into private session. Thank you very much.