 Good morning and welcome to the justice committee's 31st meeting of 2017. Can I extend a particular welcome to George Adam, who is the latest new member of the justice committee, although he is no stranger as George has appeared before, as a substitute at committee meeting and as such has already made his general declaration of interest? We have apologies from Ben Macpherson and I am very pleased to welcome Stuart Stevenson back to the committee who is attending as a substitute this morning. Agenda item 1 is the decision on taking item 5, which is consideration of our forward work programme in private. Are we all agreed? Agree. Agenda item 2 is our evidence session on the civil litigation expenses and group proceedings Scotland bill. I refer members to paper 1, which is not by the Clark and paper 2, which is a spiced paper. The committee will be taking evidence on two bills today, so I am afraid that time is tight. Nonetheless, I very much welcome our witnesses for the first evidence session, which is Sheriff, Principal James Taylor, author of the independent report that preceded this bill, and Elaine Samuel, honorary fellow, the University of Edinburgh, who is the supporting chair of Principal Taylor's review group. We now move straight to questions, starting with Liam Kerr. I declare an interest in that I am a practicing solicitor and a member of the Law Society of England, Wales and the Law Society of Scotland. The Scottish Government has stated that the primary objective of the bill is to address access to justice. How far do you think that the recommendations that you made in the report went towards tackling the issue of access to justice? There are two main elements that are for consideration today, which in my submission to you improve access to justice. The first is the facility to make damages-based agreements available to solicitors as opposed to the present fashion, which is for solicitors to form their own claims management company where two hats and offer damages-based agreements through their second hat. The other provision is in relation to qualified one-way cost shifting. Insofar as damages-based agreements are concerned, I would be surprised if there was a material increase in cases being either brought to the court or complaints being made to the CRU. The reason I say that is because we do not need to predict what damages-based agreements will do to the legal landscape in Scotland. They are here, they are alive and they are kicking. In order to make sure that I had not fallen too far behind current affairs in my four and a half years of fallow, I did make inquiry of one firm of solicitors that has its own affiliated claims management company, just to ascertain the volumes that they are doing. In the last three years, they have signed up 17,600 new damages-based agreements. The five-year figure is 23,800, and so I have seen the transcripts of your earlier evidence hearings, and I have seen the increase in registrations with CRU and so on. That will almost certainly be the explanation for that. DBAs are out there and the benefit of them is being enjoyed by the public just now. What I should say is that in that same three-year period, 14,000 cases were settled. That is because damages-based agreements do much, much more than give access to the courts. What they do is give access to negotiation. Thank you. We will come back to a few of those matters. Just briefly, is there a danger in your view that when we talk about access to justice, there is a danger of conflating access to justice with access to the courts, which is a different concept? Ultimately, the ultimate arbiter of justice is the court. Is not the case that we talk in general terms about access to justice when what we are meaning is access to the court, not to the right result? If we equate justice with the result that people seek, which might be a myriad of different things— Access to justice is to enable members of the public to know what their legal rights are and to be able to exercise their legal rights. That may require recourse to the courts more often than not. It does not require recourse to the courts, as most disputes are resolved by way of negotiation. If a member of the public is not properly advised as to how to go about the negotiating process, or perhaps worse, does not even know of their legal right, then that is a denial of justice. I am in there in terms of access to justice. If the legislation is flawed and some of the provisions are disadvantaged in fact by the pursuer, then is not Liam Kerr's question quite valid? We have had access to court, but at the end of the day, justice does not seem to be done. If the legislation is flawed, then one has to put the legislation right. I am not sure what point you are seeking to make. Probably as we continue our lines of questioning, there will be certain provisions that perhaps you recommended that are not in the bill, which at the very least would have been an improvement perhaps on the legislation. Therefore, by that definition, access to justice was not achieved the way it possibly could have been. I would always be happy for any of my recommendations to be implemented. The Justice Committee has heard previously that a great deal of your report was based on DWP data, which showed that between 2008 and 2011 the claims registered in Scotland rose by 7 per cent compared to 23 per cent in England and Wales. The report concludes from this that there is an issue with access to justice. The same data shows that between 2011 and 2016, the number of compensation claims in Scotland increased by just over 16 per cent, and in England and Wales it appears to have decreased by four and a half per cent. Does this data affect or change your view of the recommendations that you made in 2013? Given that data, are those conclusions and recommendations on the lack of access to justice still valid? It does not change my conclusions at all. I was aware of the figures. What I sought to explain earlier, perhaps rather inelegantly, was that one has seen an increase in the number of claims, but that is almost certainly because damages-based agreements have, in the past five years, become a very common way of funding a party who is seeking to exercise its legal rights. Was it 16 per cent the figure that you gave? That is probably. I cannot say that because I have not done an analysis, but it would not surprise me at all if that came about because of the popularity of damages-based agreements, as evidenced by the figures that I gave from one firm. 17,600 claims in three years is a lot of damages-based agreements to enter into. What advantages do you see in the damages-based agreements that justify overturning the traditional prohibition on their use by lawyers? It would be legitimate to say that if damages-based agreements are as popular as I have just indicated, they are. Why do we need all this? The reason why we need all this is because at the present moment they are completely unregulated. They are being offered by claims management companies, and as we know, claims management companies are at the present unregulated. My report makes a recommendation that damages-based agreements should be permitted to be entered into only by regulated bodies. I would like to see something like that in the bill. The lack of regulation has two major impacts. Firstly, the percentage that the solicitor or claims management company can take is unlimited. The present rate, I understand, can be anywhere between 15 and 20 per cent of all damages, past loss and future loss. I know of one firm that uses a taper, which is what I recommend should be deployed when it falls down to 2.5 per cent at the upper levels. The other mischief that requires to be addressed—I am pleased to say that the bill addresses it—is that there is no clarity at the present moment on what no win, no fee actually means. Different offers of DBAs use different definitions of what no win, no fee means. For example, who is going to pay for the medical reports, who is going to pay for the court dues, who is going to pay for the expert who will inevitably be required. What I wanted was a level playing field where the solicitor had to pick up all of these costs save only for any after the event insurance premium. That means that a member of the public can go to two or three providers and get directly comparable quotes, because the last thing that I would like to see is a go compare for claims management companies. If we can just probe a little bit further into these damage-based agreements, Rona. Yes, good morning. As you mentioned, future loss, just briefly there. I wonder if you could explain the reasoning behind your recommendation not to predict damages from future loss, from inclusion in the success of e-calculation in most cases. Do you think that lack of protection for compensation for future loss will leave the pursuers worse off if they pursue the action under a damages-based agreement? At the present moment, the damages that are being deducted or rather the success fee that is being deducted from future loss is between 15 per cent to 25 per cent. Indeed, I heard yesterday that one firm is charging 33 per cent in a third per cent. The public, notwithstanding what might at least appear to me to be rather generous terms to solicitors, is still entering into those agreements. They enter into those agreements because they are simple, they understand them and they know precisely what the outcome is going to be. I included future loss in the calculation of the success fee because to do otherwise provides an inbuilt incentive to the solicitor to delay the proceedings. The longer you wait to get to your decision, the greater the past loss will be, the smaller the future loss will be. We don't need incentives for delay. Further, when cases proceed to court, it is usually the tricky cases that are involved. It is very often the future loss, which is the sticking point and which prevents a settlement occurring. It is at that point that the solicitor and the lawyer, because councillor is usually involved in court at this level, is when they start to earn their corn. Therefore, I think that they are entitled to be rewarded for that. The vast majority of claims settle and they usually settle on a lump sum because it is a broad brush approach that is taken to the negotiation. There is no definition of past loss and future loss. If a case settles at the door of the court, you can bet your bottom dollar that there is no consideration of past and future loss, it is just the lump sum that the insurer is prepared to pay and the pursuer is prepared to accept to get rid of the claim. One firm of solicitors, when I was going around during my consultation period, told me of the problem if there are multiple pursuers where you have a family perhaps injured in a road accident and the insurer of the car at fault or the driver of the car at fault. It simply says, here is a large sum, divvy it up between yourselves. As the solicitor told me, it is hard enough to divvy that up between the individual members of the family. It would be even harder if we had to start working out not just what each member was entitled to but what the future and past loss was. That is looking at it from the point of view of the solicitor. Few judges, if any, would claim that their awards for future loss are accurate to 2.5 per cent. Furthermore, few care plans are implemented to the letter, and it is the care plan upon which the future loss is predicated. The care plan ends up not being followed for a whole raft of reasons, social reasons, the family circumstances change, they have to move house and sometimes one has medical improvements, which make life much simpler for the particular handicap which is being rewarded in the future. The 2.5 per cent is not going to make a material difference to the manner in which a pursuer is cared for post accident. One ends up with a balance. It is a loss of 2.5 per cent, but it provides an access to justice. 97.5 per cent of something is better than 100 per cent of nothing. The evidence that we have is where I started. Damages-based agreements are popular with the public, even though they might end up paying 20.25 per cent of their future loss to their solicitor. I know that the position in England and Wales is different. Lord Justice Jackson in his report recommended that future loss should not be included in the success fee. Lord Justice Jackson had second thoughts on that. In one of the lectures that he gave post his publication of his report, he said the following. Ring-fencing damages in respect of future loss was out of deference to the vociferous submissions of the personal injuries bar, the association of personal injury lawyers and others. It was not as a result of the application of principle, but he had the pursuers' solicitors lobby wanting future loss excluded. They changed their mind and subsequently wrote to him and sent to him what he described to me as forceful submissions that a deduction should be made. I met Lord Justice Jackson. What he and I said remains in confidence, but it would be a surprise to me if there would have been the same regime in England and Wales had it not been for the attempts by Apple and Pibah to persuade Lord Justice Jackson that future loss should be excluded. He has explicitly said that I deferred to them. Thank you for that full answer. I will clarify briefly with you if you can. The second part of my question is that you do not think that pursuers will be worse off if they pursue action. Under what I recommend, there will be a lot better off, because they will not be suffering 20 to 25 per cent deductions, they will be suffering 2.5 per cent deductions. Can I clarify that? Is it just for awards over 500,000 that that would apply and anything under that, given that it may not happen very often but perhaps it does, wouldn't it be protected in that way? My proposal was that in the first 100,000 the deduction was 20 per cent. Between 100 and 400,000 it was 10 per cent and above 500,000 it was 2.5 per cent. I think that we may look at some of the regulations that the Government is proposing, because I do not think that that is on the face of the bill. No, and rightly so, I think that that is properly placed in secondary legislation. Can I just another question that maybe Ms Samuel would want to contribute? It is about the cost. Who should bear the cost of the independent actuary? Your review recommends that the pursuers' solicitors should pay for the actuary and do you think that they should be able to claim this cost as a judicial expense when the case is won? If so, why? It is not for the cost of the pursuer. It is not a cost that should be charged to the pursuer. It is a cost that should be charged paid for by the solicitor. Whether it then becomes a legitimate part of a judicial account, I really don't know. It's some years since I've become involved in the principles of what's recoverable and what is not recoverable, so I'm afraid that I can't help you there. Can I say this in relation to the actuary and its genesis? I went about and spoke to a considerable number of both pursuers and defenders firms. One pursuer firm told me that, very often, there was great pressure brought to bear upon a pursuer to accept a lump sum when a periodical payment would be far more advantageous. The pressure comes from family members. They see the opportunity for a large pot of money. It has to be said that some of the pursuers also see the attraction in having a large pot of money available to them. Out of that discussion, the solicitors told me that, in those circumstances, they send the client to an actuary. They want the actuary to give independent advice. I hope that the pursuer should accept a periodical payment, but it also had the advantage of protecting the pursuer from subsequent criticism. The idea was not dreamt up by me. It came from the profession. Something in said in one of the earlier sessions, I think by Mr Stevenson when he said that I could add up a few sums and call myself an actuary. I have to confess that, at the time of drafting the report, I thought that an actuary was a protected term. It is not. It will therefore have to be reflected in the bill. A definition will have to be put in that an actuary will require a chartered actuary or a faculty and institute of actuaries. Ms Samu, do you have a view on actuaries? No? Okay, fair enough. Leanne Kerr supplementary. Going back to Rona Mackay's question about future loss, if I may, it has been suggested to this committee that not protecting future loss could lead to an overall award inflation. As courts and negotiators ensure that the pursuer gets the full amount to which they have been judged to be entitled. How do you respond to that? I think that there is absolutely zero chance of there being damages inflation as a consequence of these proposals. The reason I say that is that the judiciary doesn't go about with its head in the sand. I'm pleased to say that who are the Beatles is a bit of the past. The judiciary knows that the litigations coming before them are being funded by damages-based agreements. There's a case back in 2011, the case of Powell, where they said that claims management companies performed a useful function and damages-based agreements were a good thing. They know that a percentage of the damages is presently going to solicitors and we have not had any inflation of claims to date. I don't think that damages-based agreements are going to result in a significant rise in claims. We've seen that rise because there has been this popularity in DBAs over the past half a dozen years or so. Thank you very much, convener. There is a definition of an actuary, by the way. It's someone who found accountancy too exciting, but that probably won't do for the purposes required. Let me turn to the bill at section 8, the restriction on pursuers liability for expenses and personal injury claim. I've raised previously, and I'll just lay out a modest scenario, that a guy in his Rolls Royce steps out of his car and is run down and severely injured by a cyclist. The cyclist is somebody who's at or has completed paying off his mortgage but has a limited income, so he's asset rich and income poor. Therefore, it may well be worth pursuing for a damages claim. In this case, the pursuer is fundamentally likely to be the more wealthy of them. Should in those circumstances the pursuer have the option of knowing that they will always be the defender who is having to pick up the legal costs of the pursuer, because, as is currently drafted, section 2 really doesn't address this. Subsection 2 of 8 doesn't address this. The assumption being that the defender is a big insurance company and the pursuer is the wee person, but there are cases surely where that will not actually be the case. The answer, Mr Stevenson, is that if the defender is a man of straw, the pursuer will not be raising proceedings because there is no point in obtaining a court order, a court award, which one then cannot enforce. Do you forgive me, though? I am positing that the defender, while perhaps of modest income in the modern world where the purchase of a house 30 years ago might have been quite affordable for that person and is now perhaps in Edinburgh worth something of the order of £250,000 to £300,000, they are a bit removed from being a man of straw and may well be worth pursuing. However, the effects on that person are disproportionate to the benefit that somebody who is an extremely wealthy person who might be doing the pursuing would gain. I wonder whether the bill should be adapted to constrain the availability of the qualified one-way cost-shifting more than it currently does. The difficulty in constraining it, as you suggest, is that it then removes the certainty that providing the pursuer behaves himself provides. The problem at the present moment is that although rarely do successful defenders in personal injury cases recover their expenses, the solicitor advising the pursuer has got to act responsibly and said, I cannot give you a guarantee that you will not be faced with a large adverse award of expenses, which will probably bankrupt you. In those circumstances, the pursuer not surprisingly backs off. I saw an example, which I think was given by faculty, to restrict the circumstances in which qualified one-way cost-shifting would apply to those parties who can be found liable to make an interim award of damages. Those who are insured, those who have a public body, and there is a third element that escapes me just now. The difficulty with that is that you could end up with parties not bothering to insure themselves when they ought to be insuring themselves. You could end up with parties taking on a much higher excess in order to pay a much lower premium and therefore effectively making themselves insured. You could find parties who have policies and therefore coax would apply, but have breached the terms of their policy with their insurers, the obligation for fidelity, for example. As a consequence, one-way cost-shifting is not available in circumstances in which it should be available. The example that you posits is one that I cannot say is impossible, but it is de minimis. What we can do is look to England and Wales to find out what has happened there. In England and Wales, the statutory rules of court are the same as what is proposed here. We have heard of no difficulties in England and Wales with qualified one-way cost-shifting being operated as it is proposed to be operated here. We have spent a lot of time trying to find out what problems there might be in England and Wales as a consequence. Multiple Google searches have not come up with any answers. Surprisingly, when I read the evidence from the insurance lobby given to you back in September, I did not see any red flags being waived at that time. Thank you, convener. I really just had a few questions. First of all, in relation to the tests in the bill that relate to the loss of coax protection, there are three situations laid out where coax would be lost, and that is fraudulent representation among others. We have had a split in the evidence that was received where pursuers think that the tests are too strict and then defenders think that they do not go far enough and that they will not prevent any spurious claims. It was really to get your thoughts on that. In particular, the test lays out in the bill in relation to fraud. What your views are on that and if you think that the bill implements what you recommended in your report? I do not think that the bill implements what I recommended in my report. If we take clause 8.4 and A that makes a fraudulent representation in connection with the proceedings, my preference would be for the wording to be has acted fraudulently in connection with the proceedings. Fraudulent representation involves word of mouth. Fraud can take place through actions. The other suggestion that was made to you that if one stayed with fraudulent representation, one should at least define it, is frankly nonsense. The law of Scotland has known what fraud is for many years. It was decided back in the 19th century that fraud is a machination or contrivance to deceive by words or acts. That came from Bell's principles. The suggestion that one could enumerate the circumstances in which fraud would be said to have taken place is just a non-starter. I had to look out some really old legal textbooks, but the 11th edition of Glogan Henderson said that it is impossible to enumerate the various words or acts that the law will regard as fraudulent. I have dealt with not just the wording but also the nonsense that you have heard from others. I am in line with the pursuers lobby for 84A, but I am in line with them in their criticism of 84B because I do not think that that goes high enough. Wednessbury and reasonableness is what I recommended. I think that the formula that Mr De Rolo suggested to you came very close to being what I would choose to have there. I tweaked his formula ever so slightly, and I would suggest that, as an alternative, it should read, if, in the opinion of the court, the pursuers' decision to raise proceedings or their subsequent conduct is so manifestly unreasonable that it would be just and equitable to make an award of expenses against the pursuer. I would raise the bar there. I think that C is okay that that is dealing with an abusive process. There is another set of circumstances that my report recommended should merit qualified one-way cost-shifting not applying, and that is in the event that a case is summarily dismissed to use an English expression that is struck out. Much has been said here, and rightly so, about the potential for there being frivolous claims brought. In my opinion, there are two reasons why frivolous claims will not be brought. One is that you will have to persuade a solicitor to pick up his time, the fees, and also the outlays, without the little prospect of recovery. Secondly, if the action that is raised is of no merit, there is a facility in the court introduced about five years ago following the civil court's review whereby a defender can say to the court that this action has no merit, strike it out, and in those circumstances the benefit of qualified one-way cost-shifting is lost and should be lost. I would have another element put in there of D. Finally, in the session that you had with the insurance lobby, it was said by one of their number that even though the pursuer didn't beat a tender, qualified one-way cost-shifting continued to apply, well, not in my world it doesn't, not in the report that I've made. I accept entirely the bill team's rationale that dealing with tenders and their nuances should be in secondary legislation because you don't want to start fiddling with the common law in an act of Parliament. However, I think that I'm persuaded that if qualified one-way cost-shifting should not be available and it should be specified as not being available in the event that the pursuer has failed to beat a tender. Thank you very much. I actually touched on a few of the other questions that I had there, in particular the test in relation to unreasonable behaviour as well. In terms of what you said about spurious claims, that certainly echoed with the evidence that we heard from solicitors who said that they just wouldn't take on the case if they didn't think that it was going to get anywhere anyway. I did a little exercise just to see the sort of outlays that the solicitors are going to have to pay. At the present moment, according to the Scottish Court Service website, to raise an action there has to be an outlay of £214. Every time there is a motion, each party has to pay £54, just to enrol the motion. Then you have to pay £77 per half hour for the proceedings. Those payments have to come out of the solicitor's pocket in a damages-based agreement. That is before you start looking at the costs of the medical reports and the expert reports, all of which will be in the hundreds, if not the thousands. That is a pretty strong deterrent for frivolous claims, taken with the knowledge that the defender can come into court and move some summary dismissal or striking out as more vernacular. Thank you for that, that's really helpful. I just wanted to clarify, you touched on tenders there as well, and it was just a bit about that process. Do you think that that is something that should be more clearly defined within the bill? No, I don't think that they should deal with what I propose in regard to tenders in the bill, because that's getting into more technical detail. I think that's properly in an act of sedent, but I think that one line that Cox flies off in the event—what would it be? A person conducts civil proceedings in an appropriate manner unless the person fails to beat a pursuer's tender. I hesitate to draft on the hoof, but something like that. If I could just go back to the Wettonsbury test, as it stands, would it be your position that the legislation might catch a weak case as opposed to the test in Wettonsbury, which was the reasonable person test, so unreasonable? Yes. The wording that you suggested would meet that test, that Wettonsbury, unreasonable, refers to the decision that so unreasonable, no and reasonable person could have reached it? Yes, I think so. Moving on now to Liam McArthur. Thank you very much, convener. Good morning, chef principal. Turning back to an issue that you raised in your initial response to Liam Kerr in relation to claims management companies. I suppose that one of the red flags that has been raised in relation to the situation south of the border in relation to Cox, which will not be certainly at the outset in place in Scotland, is the regulation to claims management companies. The Government, both the bill team and the evidence to us, acknowledged that issue. We have since had correspondence suggesting that the Government may look to piggyback on the financial guidance and claims bill at a UK level. What are your thoughts about the advisability of implementing the provisions in relation to Cox in the absence of that regulation, either through the UK bill or through separate legislation flowing from the review that is currently on-going? I can understand why the regulation of claims management companies might be dealt with other than here. I would be content for present purposes when we are talking about damages-based agreements simply to have some provision that only a regulated body can enter into a damages-based agreement. That would mean that claims management companies, until such time as they became regulated, would not be allowed to enter into damages-based agreements. My recommendation is that claims management companies fall to be regulated. It is an essential element of the report. It seems to be the hint that Scottish Government officials were giving us when they were setting out the objectives of the bill. However, to your mind, it would be sufficient to have, for the time being, a reference to regulated organisations or bodies, and that will manifest itself, either through the changes to the UK legislation or whatever emerges from the Government's… It would be a holding element. It would not be allowed to enter into damages-based agreements and take 20 to 30 per cent from all laws. I think that most claims management companies will disappear in Scotland because the vast majority of claims management companies in Scotland are simply fictions, because they are firms of solicitors who set up their own tame claims management company. The ownership of the firm of solicitors is the same as the ownership of the claims management company. That is helpful. Thank you. That is helpful. Mary, sorry, Maurice. Thank you. Chef, in principle, the defender representatives have argued that the provisions on the cocks and damages-based agreements will tip the balance too far to wars and scrupulous pursuers unless other controls are introduced, such as fixed expenses or more extensive pro-action protocols. Do you agree with those concerns? Pre-action protocols undoubtedly assist in weeding out cases capable of settlement before they get to court. I confess that I am not completely up to speed on what pre-action protocols exist, but as a generality they are worthwhile. I think that they operate just now under mandatory in all cases up to a value of £25,000. If it is working at that, you might think of extending it to cases of £50,000 or £100,000. I would have thought that that is the role of the Civil Justice Council to be monitoring those aspects and deciding at what level the mandatory pre-action protocol should kick in and the sort of actions that should be covered by it. Fixed fees are a bit of an unknown quantity. I dipped my toe in the water of fixed fees by suggesting that, in what was then to be a new simplified procedure, it should be fixed fees. I would like to have seen that in operation before I ventured an opinion on whether it worked and should be rolled further out. However, as a general concept, I like the idea of fixed fees. They operate it very successfully at one of the patent courts in London. It is in my report somewhere. The key watch words in the report were one of them was predictability, and fixed fees bring about a predictability. I like the idea of fixed fees. I am not sure that I necessarily tie it in with qualified one-way cost shifting. In fact, I recommend that there should be budgeting of litigations. I appreciate that it has nothing to do with you, but perhaps it gives you the tenor of where I go. In commercial actions, at the outset, each party should set out what they believe the cost of this action will be. They get the court to approve it, and the court might say, I do not like that, I do not like that. They are held to that for the future, and that provides predictability. To me, it is unacceptable, in this day and age, for a client to say to a lawyer, how much will this litigation cost me? He replies, I have not a clue how long is a piece of string. It is just not acceptable, and there are ways around it. The cold calling aspect of claims management companies, although most of them will disappear, is still that element. Do you have any comments on that? Cold calling is a big mischief of claims management companies. If you go back to Jackson and several sources, the Conservative peer, Lord Young of Grafham, carried out an examination of claims management companies. The legal services board in England carried out an examination of claims management companies, and, save for cold calling, they thought that they served a useful role in the process. However, my report recommends that case management companies, or anybody for that matter, should not be permitted to cold call. Once you have a regulator in, that helps. I recommend that there is a professional duty on a solicitor to satisfy himself that, before a case is referred to him by a claims management company, it has not been obtained by means of cold calling. That will require the law society to firm up their professional guidance provisions so that, if a solicitor accepts a case or does not make reasonable inquiry as to whether it was obtained by cold calling, it will be professional misconduct. I suggest further that only regulated bodies should be entitled to charge a referral fee, because then, if you look at it that way, what incentive is there going to be for somebody to acquire a piece of business by cold calling if the regulator is going to come down on top of them? That would certainly avoid any problems if the law society decided not to implement that. They have not committed to doing that to inquiring if the referral came as a result of cold calling, but if it is only regulated bodies. However, I do understand that the same bill, as you are praying in aid in Westminster in relation to regulation of claims management companies, is going to legislate for a ban on cold calling. So, one way or another, hopefully, it is all going to be caught. We hope so. It is the bane of all our lives, is it not? Yes, it certainly is. Mary. Thank you, convener, and good morning, Sheriff Principal Taylor. I wanted to ask you about third party litigation funding, because you will know that there is an emerging market in England for investors to fund claims for a share of compensation. The bill before us would make it possible for third party funders to be found liable for expenses. The Government has said that it is their intention only to catch commercial third party funders, but we have heard in evidence from, particularly, trade unions that there is concern that trade unions could be caught up in this. I wonder if you could clarify for us who specifically the recommendation on liability for third party funding is meant to catch. It is intended that it is only the venture capitalist coming in to fund a commercial action that could find itself liable for the adverse costs in litigation. The trade union should not be caught and neither should the solicitor who provides a damages-based agreement be caught. My understanding from having a chat to one of the bill team yesterday is that there will be further definition provided to bring about what I think you and I would both choose. Your recommendation was that there should be a voluntary code of practice for third party funders. As there is in England and Wales. Yes, as there is. There is no provision for that in the bill, but is your understanding now that something will be coming forward? It is simply changing one of the definitions in the existing legislation that would make it clear that trade unions and solicitors ending into damages-based agreements would not be caught. I do not think that it is going as far as you are suggesting and a requirement that there should be a code of conduct. If there is clarity in the bill, that would certainly be helpful for trade unions. Section 10 of the bill includes requirements on transparency of funding arrangements. Can you confirm if you intended those to apply to all parties to civil court action, not just third party funders? Your recommendation was that all parties to civil litigation should be required to disclose to others involved how the court action is being funded. That would include trade unions or all funders. I think that there should be a disclosure of how the action is being funded. Could I perhaps ask you about the definition that you provided as a professional funder, which seems to me quite nicely caught it. A funder motivated by a desire to make a profit that effectively purchases a stake in the outcome of the litigation. That is in the definition section. Would that serve the purpose if that definition was replacing the one in the bill? One second, I will look at it. It is paragraph 57, chapter 11. Third, I am in the glossary at the beginning, Roman 14. The funding of litigation by a party who has no pre-existing interest in the litigation, usually on the basis that, one, the funder will be paid out of the proceeds of any amount that is recovered as a consequence of the litigation, often expresses a percentage that is recovered, and two, the funder is not entitled to payment should the claim fail. No, I do not think that that helps us particularly. Could you give me the number? It is chapter 11, paragraph 57 of your review. It seemed a nice and neat catch. It would be a bit embarrassing if I had to go back in it now, wouldn't it? A professional funder who finances part of a percentage. A funder motivated by a desire to make a profit who effectively purchases a stake in the outcome of litigation. Second sentence in paragraph 57. I think that that meets the point, does it not? Yes, I think so. I think that it is excellent. Okay. Liam Kerr supplementary. Thank you convener, just briefly if I may. I would like to take you right back to the start and the basis of this whole process. In paragraph 43 of chapter 8 of the report, you talk about individuals being put off from pursuing legitimate claims for fear of an award of expenses against them. Do you have any idea as to how many of those pursuers exist? Is there any evidence that it is the fear of an award against them that is putting them off? And just something that sprung to mind, if the claim is legitimate to use the specific word there, why would the individual have an award of cost made against them? And shouldn't the solicitor be saying, you're okay on this? Go forward. Well, there is no doubt in my mind from my time in private practice that the fear of an adverse award of costs inhibits people from exercising their legal rights. I can speak to that personally. I've had a claim valued at 30,000. My prospects of success were probably about 80 per cent. I settled my action at 10,000. One third of what it was worth, and I did it entirely on the basis that I thought I had before the event and students, I didn't. That's my fault. The thought of an award of expenses well into six figures, which is what it would have taken to litigate the £30,000 claim, simply wasn't in my or my family's interest, so it has deterred me from litigating. It certainly deterred a lot of my clients from litigating, so I have absolutely no doubt that it is a deterrence. That deals with part of your question. What was the other part, I'm sorry? The second one was just something that bounced to my mind. You talk about in the particular paragraph pursuing legitimate claims, but if a claim is legitimate, why would there be an award of costs against the pursuer? You think that it's legitimate at the outset. The pursuer comes in to see you in your office and he gives you one set of facts. He may be perfectly honest in his assessment of the facts, but some witnesses are not just that very good at remembering what happened two or three weeks ago, particularly if there has been some trauma. In fact, there's been quite a lot of research carried out into the effect of trauma on memory. The solicitor may be told that this is a pretty strong case and take it on. The assessment of its prospects of success must be kept under continuous monitoring because they change all the time. It starts off as good but can easily turn to very poor. The damages-based agreements into which solicitors enter make provision for them to be able to back out. If it reaches the stage where the case is no longer a viable case, have I answered your point? With very great respect, Sheriff Principal, I'm not sure that that does answer the point. What you said is that individuals are put off, so they themselves make a decision from pursuing a legitimate claim. When they present to you, they believe that it's a legitimate claim, but they are now being put off because the solicitor says, I've heard your side of the tales and it seems legitimate on the facts as you've presented them, but this is what it's going to cost. At that stage— No, it's not usually at that stage that it happens. At which stage are they put off? Well, it's when you realise that negotiation is not going to produce a result and therefore you're going to have to go into court because an adverse award of costs, the clock only starts ticking when you get into court. In the circumstances that you have put forward, of course the solicitor would write to whoever the alleged wrongdoer was and hopefully a negotiation would then ensue by which time one gets a fairer idea of how the land lies from both sides. Rarely is there a monopoly of right on one party, and it is at the point when you have to go into court because the negotiation has proved unfruitful. Then you've got to say, well, if you lose, you've got the risk of a severe adverse award of expenses, which could, in many cases, bankrupt the individual. I perhaps ask you about two of your recommendations, which are not on the face of the bill, but you made the one that was the additional fee, the extra mountain judicial expenses that a judge can award where the case has been particularly complex or time consuming. I think that you suggested that the additional fee should be continued to be decided by the judge at the end of the case, but I recommend that it should be limited to 100 per cent uplift of the judicial expense amount. Should that be on the face of the bill or should it be regulated in some other way? That is probably best dealt with by secondary legislation. However, it should be something that is built into the decision. I would also suggest that, when a judge is asked to make a decision with regard to an additional fee, there are a series of factors that have to be taken into account the complexity of the case. I can't remember them all off, there's about half a dozen. I would suggest that the provision should now be expanded to require the judge to consider the extent by which the pursuer's solicitor is being remunerated by way of a success fee. That's helpful. The other one was the role of the solicitor, again not on the face of the bill, but maybe something that should most certainly be looked at, where you recommended that solicitors should be required to discuss all potential funding options with the client and that that should include things like legal aid or an existing insurance policy and that they should write to the client with the recommendation and the reasons for that. Lord Justice Jackson recommended that, before a damages-based agreement was entered into, the solicitor about to enter into the agreement had to refer the client to an independent solicitor to make sure that all the pros and cons had been properly explained. I thought that that was just a bit of overkill and a bit of too much administration. That is the watered-down version, if you like, of what Jackson recommended. It is important that, firstly, to realise that damages-based agreements are not removing any other funding mechanism from the legal landscape. It is an additional one, but it might not be best suited for the particular pursuer. It has just occurred to me about qualified one-way cost-shifting. What I should have tried to work into one of my answers is that we already have qualified one-way cost-shifting in Scotland. It has been in operation for decades and involves the legal aid fund because a legally aided pursuer who loses an action and therefore would have the potential for an adverse award of expenses that does not have an adverse award of expenses made against them. In very exceptional circumstances, the successful unassisted party can obtain payment of expenses out of the legal aid fund, but I am sure that all around the table we will appreciate that it will be in very, very limited circumstances that such applies. We do not really need to wonder how qualified one-way cost-shifting is going to work. We already know how it works, albeit in a very limited environment in Scotland. I am sure that we will provide huge reassurance to people who are a bit worried about this legislation, but we all agree from the committee today that your evidence session has been immensely helpful to us. I thank both you and Ms Almy for attending committee today. With that, I suspend briefly to allow for a change of witnesses and a comfort rate of five minutes. Agenda item 3 is the stage 2 evidence session on the Domestic Abuse Scotland Bill. I refer members to paper 6, which is the note by the clerk in papers 7 and 8, which are spice papers. I begin by welcoming Gillian Modsley, Executive Policy Executive Law Society of Scotland. I particularly thank you for standing in at the last moment for Gracia Robertson, who had to attend court. I thank Detective Superintendent Gordon McCready, Public Protection Police Scotland, Dr Marsher Scott, Chief Executive Scotland's Women's Aid and Professor Mandy Burton, School of Law University of Leicester. I thank the witnesses for providing your written submissions, which were, as always, really helpful for the committee. I now move to questions starting with John Finnie. Thank you, convener. Good morning, panel, and thanks for your submission. I want to talk about the current powers and, probably initially for yourself, Detective Superintendent, and about investigation and then maybe prosecution, and then just one other point before moving on to others. Can I ask about the position, please, where police officers are investigating allegations of domestic abuse? In what circumstances the alleged abusers might, A, be detained in custody until a first appearance or B, be released on undertakings with conditions which exclude them from the victim's home? Currently, where there is a sufficiency of evidence when officers have conducted thorough inquiries, there are primarily two options available. The first is to charge and to keep somebody in custody, where there is a risk assessment undertaken and there is a sufficiency of risk with quite strict criteria laid out in the joint protocol with Crown Office Procurate Fiscal Service, and informed by Lord Advocate's guidelines, they will be kept in custody. Currently, about four out of five of persons with sufficiency of evidence are kept in custody to appear at court. By affording somebody to an appearance at court, that allows the court to impose bail conditions, which then leads to our enforcement of same-bail conditions, and affords a victim some protection and space to breathe. The second option really is undertaking. Where the risk assessment is carried out and there is a belief that the risk to the victim is on the lower side of the scale, and where certain criteria are met, we can release an accused person on undertaking to appear at court approximately 14 days after charge, so there is some due diligence and speed associated with that. That also affords us the opportunity to impose police bail conditions. Again, those are equally impactful as the court bail conditions. It is a criminal offence to breach those conditions, and it can prohibit or exclude a person making contact. In that respect, where there is a sufficiency of evidence, we currently have powers to act. Can I clarify, in respect of each of those occasions where you mentioned risk assessment, is this a generic risk assessment or is it specific to the circumstances whereby those individuals come to the police attention? There is a domestic abuse risk assessment within Police Scotland that is known as the domestic abuse questions or the DAC. It is based on academic research. It ties into many of our partner agency's risk assessment models, and it informs us the risk that the victim may face. It takes account of circumstances in which we know that there may be an escalation. For instance, we know that pregnancy or recent childbirth is usually a good indicator that a person may be of increased risk. We know that strangulation is a method that is clearly used to show an intent of harm towards a person. There are other academically informed questions that form that domestic abuse risk assessment. I do not know if the other panel members want to comment on that particular aspect. Hi John. I think I will just add to what Detective Superintendent McCreedy has said, which is that there are absolutely measures and I think fairly robustly undertaken in Scotland when police are involved, but I think it is really important to point out that Istanbul Convention article 52 requirements for EBOs, as well as some of the surrounding information in the document on emergency barring orders and situations of domestic violence, point out that EBOs should not be restricted to cases of high risk. I would say that, as an organisation that works with victims routinely, that our confidence in that instrument is definitely framed by the fact that it is only a risk assessment. It is based on academic evidence that has to do with predicting women's murders, which is a really very horrific event, but quite a small percentage of the harm that is done to women and children in the context of domestic abuse. It is a useful tool, but it is not a panacea for assessing or preventing risk. I think the key point that Istanbul makes that I would really like to emphasise here is that EBOs need to be seen as a tool that would help prevent harm as well as to be used in the context when a crime has already been committed. I think the police's hands are somewhat tied by having to be focused on whether a crime has been committed, whereas an EBO can be used in a wider area of events. I think that there are going to be more detailed questions further on about that particular aspect. If I can move it to the next stage, then... If you don't mind, John Rona and then Stuart. Yes, hi, good morning. Just to ask the question of bail and risk assessment, I know that this might be hard for you to answer, but in your experience, how successful are those risk assessments? Do most of the time, does it work out? It is very difficult to say that we know that it can prevent escalation. In some cases, ultimately, when there is a risk assessment, there will always be an element of risk. It is not an exact science. It is not an exact science. We can mitigate risk, and that is probably one of the most important things that we do with a victim of domestic abuse. It is about victim safety planning, putting in place some trigger to protect them and prevent them from coming to further harm, but there will always be a degree of risk. Just trying to get an idea of what the scale of your success rate with that is. We carry out domestic abuse bail checks. When a perpetrator has been released from police custody, we will visit the victim within 24 hours. We will sign posting to appropriate services. We will ensure that some support mechanisms are in place, and, importantly, where possible, we will carry out a check of the premises to make sure that a perpetrator is not present. We know that 3 per cent of those visits convert to a crime being detected, so in 97 per cent of the cases that we could suggest in the first 24 hours, that bail condition is operating effectively. I just wanted to ask a week purely for the detective superintendent about police bail. We are looking at domestic abuse here. I take it that when a police bail with conditions that is designed to protect the victim, that the victim will be told of what those bail conditions are. Yes. It is explicitly clear that the victim must be informed about the bail conditions primarily so that they know that if a perpetrator is seen out with their premises, they know that that is in breach of bail. It affords them a sense of comfort and security that we hope to allow them to plan for getting appropriate support or taking whichever steps they feel necessary to move forward in their own particular circumstance. Is that a general thing that the police would do where there are bail conditions to protect an individual out with the domestic abuse but other similar circumstances? I just asked that because I have an experience of an example where it was only when it went to court many months later that the fiscal told the victim that it became apparent that bail conditions had been in place. Via, which is part of the procreate of fiscal service, victim information and advice, where a person appears at court, notify of bail conditions, the police are particularly crucial in domestic abuse but ideally any person who is protected by bail conditions should know. That is right, thank you. You are probably allowed to supplementaries that have pre-emptied some of what you were going to ask, but if you carry on. We move to the situation in which the decision has been taken to prosecute someone. What circumstances might they be remanded in custody after appearing? Perhaps we are not talking about the first appearance in that case or released in bail with conditions excluding them from the victim's home. What are the factors surrounding that, please? The first thing to say is that, obviously, the police will report a case to the procurator fiscal and the procurator with, for instance, the person in custody, the perpetrator in custody. The fiscal has to make an assessment of the information that has been supplied to ensure that a crime known to the law of Scotland plus sufficient evidence to proceed with a complaint or petition, depending whether it is solemn or summary. At that stage, the case will call in court, be it petition or summary, in front of a sheriff. The Crown will look at the factors to decide whether to oppose bail or not. The question of bail will be a matter for the sheriff. That is the outline of the procedure with regard to, if you like, the hearing. At the time when bail is being considered, you ask specifically what sort of factors would apply. There are standard conditions of bail that include not to approach and to fear with witnesses to turn up at court in specific dates, etc. There are about five or six standard conditions that are imposed in every situation that someone will be granted bail from a court case. However, if someone is going to be granted bail in a domestic abuse case, I would normally have expected to see a requirement for additional or what you might call special conditions. Those special conditions will vary, but they will normally comprise not to approach or contact person A, the victim. It may well be not to enter a particular street or attend a particular locus, so those conditions will be spelled out in full and invariably, if bail is being granted, the sheriff will ensure that all the bail conditions have been spelled out and also explain the special or additional conditions as well. The reason why I say that is because this question of approach or contact can be misunderstood by people. Contact means contact by any means, including social media, texting and things like that. The person will not be granted bail unless they accept those specific conditions. That is with regard to where they are being granted. Clearly, if bail is being opposed, it may be opposed for a number of reasons. His record, the number of times there has been a failure to turn up at court, the seriousness of the offence, the likelihood of reoffending, there will be a number of factors put forward to support opposition to bail. Clearly, from the defence perspective or the perpetrator, there may be points put forward why bail should be granted. Ultimately, it is for the sheriff or the judge to decide whether bail will be granted. Obviously, if bail is refused, he will be remanded in custody pending trial. There are time limits clearly for summary trials. Petition time limit is obviously in solemn as well. However, if he is granted bail and the crown are opposed to that, they may well seek to lodge an appeal and he will be kept in custody until that hearing can be heard by the sheriff appeal court. Does that cover some of the information that you are looking for? That was a really comprehensive description of what it says on the tin, but what women and children tell us routinely is that there is a bit of a postcode lottery in Scotland around whether you are going to get special bail conditions and the robustness of response when they are breached. I think that, like with EBOs, we do not think that any criminal justice intervention is going to fix an entire problem, but I think that what we are advocating for is multiple tools in the toolkit. Certainly, the problem with the understanding that there is only risk when the victim and perpetrator are cohabitating is very much something that we see regularly. If they are not living in the same house or flat, then often people assume that risk is diminished and are much less likely to be robust about either special bail conditions or breaches, but in fact, as I am sure you all know, the highest amount of risk of murder of women and children is when they are not living together or when she is seeking to leave the relationship. So it is really, really important that we have emergency mechanism to protect the women and children in their own home. I think that one of the conditions would be to look at where are their legal and police gaps at the moment, and this might fill one of them. In relation to bail conditions, the other issue as well, the threshold for making bail conditions might actually require that there is a history of violence between the parties, whereas with emergency bar orders, the idea is that you could have such an order even when there is not a history of violence. The threshold for bail conditions can be higher than for an emergency barring order. The existence of children as a result of the relationship, does that in any way complicate the decision making that we have discussed? I would certainly say—you all have heard me talk quite a bit about the influence of keeping children safe on women's decision making, and the need to see children as victims of domestic abuse. Certainly what we would recommend is that any barring order would need to cover the children and that the barring order would need to be seen as part of a suite of protection orders that would allow children to both cover their domestic environment but also them in school settings or those kinds of settings. We know that some EBOs in Europe do not cover children— With the existing arrangements—I am setting aside what we will come on to, but with the existing arrangements, does the fact that there are children alter judicial decisions perhaps or police decisions? I think that there is quite a bit of evidence that courts are reluctant to interfere in custody and visitation arrangements, and so it might be less likely to impose sanctions in which perpetrators no longer have access to their children, but we think that with a temporary order the balance of rights in this situation should come down on the side of safety. If I can speak on behalf of the police, the police are very mindful of the safety of children, but equally, where a child is not a direct victim in the crime, we know that there is a debate about access to children, and we have to be mindful of that. We have seen some conflicting opinions on that in the past, but where there is an immediate concern for the safety of the child, the police will impose bail conditions that reflect that if it is available to them as a result of a suficiency of evidence. I echo the point about bail conditions. Clearly the bail conditions that the additional ones that can be imposed can specifically state the names of children as well. The general bail conditions would also be not to interfere with witnesses, because I think that you have a situation where quite often in domestic abuse it may well be the children that have witnessed and may well be effectively requiring to give evidence. Thank you very much. It was about the emergency barring orders and the covening children that Dr Scott touched on. It was just to find out about examples from other countries where that is the case and how that seems to be operating. I do not know if Professor Burton had any information on that. Austria is one of the countries in Europe that has had emergency barring orders for the longest. They have had them since 1997. Originally when they were introduced they only applied to the adult victim and the place where she lived. More recently they have extended them to places where the children go to, so childcare centres, kindergartens, to specifically acknowledge that it is not just where the adult victim lives and goes that needs to be covered, but also where the children go and where the carer is going to collect the children etc. There are models in Europe where orders cover both the adult victim and the child victims of abuse. I just wanted a bit of brief clarification from DS McReady on the point that you made about protecting children and the importance of protecting children. How would you determine the level of risk from a child? If a child had not been directly subjected to some sort of violence, would you carry out a risk assessment? How would you determine the level of risk for a child? There is a professional judgment, which police officers undertake. There is also quite a significant concern review. Every domestic abuse incident that the police attend, there will be a report submitted about the circumstances that will be reviewed by professionals to assess the level of risk. If there is any immediacy around that risk, the police will act at the time to mitigate the risk as best as possible, but each of those incidents in which we attend are subject to subsequent scrutiny to consider the wider circumstances of the case. If there is not an immediate risk to a child, can you give us any idea of the time frame that it would take to review and make a further determination? I would expect that to be the next day. I am following on from John Finnie's line of questioning. I suppose that I know the answer to this, but I will ask the question anyway. In terms of the powers that are currently available to the police and the criminal courts, could those realistically be amended in order to plug some of the gaps that have been identified? We look to England and Wales, as we often do, and they have domestic violence prevention notices, which are implemented by a superintendent or above, followed by domestic violence prevention order. From Police Scotland's position, we welcome that discussion. We have some concerns about that specific piece of legislation in as much as whilst a victim's safety is critical, it does impose a significant financial burden on the services in England and Wales, talking in the region of £1,000 per order. It is a very short time frame for which a superintendent can authorise 48 hours in the first instance for the domestic violence protection notice, and that places some burden. If we were to go down a route seeking to fill the gap through legislation, we would recommend that it be considered from a financial impact, not just the process of going through courts if that was the route taken, but the administrative burden because we would need an increased problem in legal services. From that, I take it that a variant of a barring order is to your mind essential to plug an existing gap, albeit that you have some concerns about the way that that would apply, the duration, the threshold and the costs that would be incurred. I think that, as I have outlined, where we have a sufficiency of evidence that we currently have powers, where there is no sufficiency of evidence, do the police find themselves working with third sector organisations to ensure the safety of the victim to mitigate risk, and on a very small number of occasions, in our mind, that might displace a victim from their home address. Whether or not there is a need to legislate is a matter for the committee. I think that it is worthy of note that there would be an administrative burden upon the police. However, the police may not be the only competent authority that the committee may decide to authorise and to seek an ABO if that was the way that they were minded. Just to add quickly for me, our concerns are that all the existing mechanisms depend on women to carry the burden or the victims to carry the burden of establishing whatever the mechanism is for protection. Sometimes there is a financial cost to them, and we have libraries of evidence that the existing provisions are not used for a variety of reasons. I think that trying to fix something that is not working in the first place is possibly not the best route forward. What we are looking for is a mechanism that would be significantly different in the sense that women would be offered the opportunity to say yay or nay, but they would not be responsible for making it happen in the context of an emergency situation, which the other existing provisions do. Just on that point, you have argued for having a suite of measures. Professor Burton, you talked about the lower threshold that allows ABOs to apply in circumstances that do not in relation to the powers at the moment. However, there have been examples of the way that ABOs have been operated where the victim does not have a great deal of control about the way in which the ABOs are applied, which would, to some extent, counter what you are saying in relation to the advantage of ABOs being that it takes some of the pressure off the women or the victim in that instance. We come down on the side of asking women's permission. That is because there is a fair amount of evidence—I think that Professor Burton can probably give you the citations for this—that women are the best predictor of further harm. They are not good at predicting their own murder, but they are short of that. For perpetrators who are not likely to abide by the law, investing in a measure that requires them to do so, in some victims' minds, A, a waste, and B, makes other people think they are safe when they know they are not. We think that it is an important mechanism that needs to be in place. I am also very mindful that there is a broad discussion about the ABOs that exist across Europe. Some require women's consent and some do not. Many do not require victims' consent and leave it to the police to consult victims but have their views as non-binding because there may be some instances where the competent authority takes the view that it is in the interests of the victim for an order to be made, even though it is not what they express their view to be. However, there is a great difficulty with enforcement of emergency barring orders if they are made without the victims' consent. In order to enforce an order, you will normally need evidence of a breach, and you will not get evidence of a breach unless the victim comes forward to do that, unless you have some other proactive way of monitoring compliance—for example, electronic tagging—of the perpetrator. In practice, although many European countries do not require the consent of the victim for the making of an order, in reality, to enforce it, the co-operation of the victim is required. Although that is not inconsistent with the bill as a whole, where, in a sense, it is recognised that simply waiting for a complaint from the victim before acting is the necessary trigger, in some instances, the victim will almost be the last to acknowledge that there is a problem that needs to be addressed. In that respect, those shortcomings of the EBO are not inconsistent with other aspects of the bill. The EBO has the significant advantage in that it does not rely on the victim having the resources, either financial or other resources, to seek protection on their own behalf. Of course, there are resource implications. The resource issue shifts around the system and shifts to the police, who then have the administrative burden of doing it. However, the victim does not have to have the financial or other resources to get the protection. As well as answering that, you might be addressed to the other concern that the EBOs might potentially be abused. Is that a risk that you recognise? If so, what would those risks be? If we take it one step back, I endorse what the detective superintendent McReady said. If there is a gap, it is clearly a matter for the committee to decide how to address that. There could be a gap where there is insufficiency of evidence. That is all that I would say. I highlight that the criminal justice is about to change with the provisions that are coming into force in January, which will give the police additional powers of investigative liberation, which the detective sergeant has spoken about. I am not sure what the implications of that and what could seem to be quite a complex landscape to deal with the question of domestic abuse. Coming to where the committee minded to make some kind of an order, the one thing that we want to stress is a determination of whether it goes down a criminal or a civil route. If you like, probably looking at it from the point of view of its immediacy, the concern that we had was over the period of time before there could be judicial or independent review of any measure or power that came into force. If the power came into force that somebody perpetrator was prevented from going back, how soon would that be subject to an independent review by a judge, by a court measure? The one thing that we were going to put in to suggest was a possibility. You have on call sheriffs dealing with warrant applications over weekends and over periods. Whether there was a court process that could be devised in situations where there is insufficient evidence to proceed or there was an imminency of risk, that is one thing that I would put forward. Related to that, it is a question of technology clearly coming and what might be available for online procedures. That was one thing that we want to say about the possibility of how to administer them. I do not know what the risk of them being abused. Clearly, we have problems with bail conditions at the moment. Even when they are imposed, I have certainly been aware of circumstances in which the person has been allowed back in breach of bail conditions. That is really all that I could say for myself. If there is some further information, I am obviously happy to supply it, but I am not sure that we would be in the best position to give information about what the likely abuse is, other than we are aware that people potentially changed their mind and that people are back together again before the police can even go and tell about the bail conditions. However, Detective Superintendent might be in the best position to comment on that. In terms of people abusing conditions, we have to acknowledge that domestic abuses are complex circumstances that involve controlling behaviours. Although many lay members of the public would be accepted that they might not understand those complexities, we see it as something that happens regularly within the service and for which we look to the third sector to support victims over the longer period to inform them about their rights, about the fact that they are subject to domestic abuse and support them in changing their mindset if they are in fact a victim. It is more about the misuse of EBOs rather than the abuse of the terms either of bail conditions or of EBOs. The point in terms of a quote oversight of EBOs is that the 48 hours are seen as a reasonable length of time given the threshold or should we be looking at something that is higher, significantly higher or longer than that? From a police perspective, we recognise already that domestic abuse takes at least 20 per cent of our operational policing time, so it is a significant commitment that we are attending a domestic incident every nine minutes. The new bill is likely to increase the powers available to the police and the offences that are available for charge, so that additional burden is likely to increase. I think that if we do, if the committee is minded to legislate for this, we would ask that any administrative burden is as light as possible and I acknowledge the suggestion about the use of an on-call sheriff, which is not dissimilar to what we would do for urgent warrant applications. However, I guess that that is for the committee to consider. The evidence says that 48 hours is not enough. England and Wales is one of the shortest duration police issued orders, most between a week and one month. Is that in situations where the police are making the initial decision? Yes, when police are making the order. The pilot study of emergency borrowing orders in England and Wales suggested that the reason why the longer orders were not being applied for was that the police found it too bureaucratic and the time constraints were too limited. So, it was recommended for England and Wales that the period of the police issued order was extended to four to seven days because 48 hours is not enough. In terms of your question about where they are abused, as far as I know, and I did a little check with our academic expert here, we have no evidence of significant or systematic abuse of EBOs. So, I think it's really important for us to put that to the side. I would also like to just point out that I think it's really important that we think of this as something that constraints perpetrators are accused behavior and abandon this notion that somehow victims are held responsible for allowing or not allowing perpetrators back in. I think that the complexity of the decision about safety of women and children and their responses to perpetrators is very often not visible on the surface, but if you look at the qualitative evidence around how women make those decisions about whether to take them back or not, they are very often based on an assessment that the rest of the community will not protect them. I was a bit concerned with your constant use of the word burden, Detective Superintendent. I know that there's a very robust approach taken by Police Scotland in relation to domestic violence and its change considerably over the years. I wonder if there were better powers that were able to control offenders if that would reduce the likelihood of repetition, clearly as part of a wider education programme. Would you see a benefit connected with that? Whether or not orders would limit repeat or recidivism has been a matter of limited scrutiny in England and Wales and possibly beyond in Europe. However, I'm probably not the best to comment on that. In respect to your comments about burden, you're absolutely right. Just for clarity, we are talking about administrative and financial. Police Scotland absolutely welcomes the discussion on victim safety and we already work closely with partner organisations to make or reduce the harm caused by domestic abuse. However, a preventative approach will ultimately reduce the financial and administrative burden that you describe in the future. That would fall under secondary prevention because, in all likelihood, we know that an offence is either escalating or has been committed. Ideally, we would, as a community, want to focus on primary prevention, but as a service, when we become involved, we need the necessary powers to protect the public. At the current time, where there's a sufficiency of evidence, we have powers, we believe. We recognise that, with the position where there is an insufficiency, we have no power to exclude a person from their home. Before I go on to my main question, I just wanted to pick up on points that Mary and Mary mentioned earlier. To get a bit of clarity from DS McCready, when a child is involved and there's a charge of domestic violence against a perpetrator, is it your understanding that the children are referred to social work and the children's reporter as the direct cause of that? Is it a matter, of course? Reports will be submitted and will be shared with appropriate services, including social work, where children are present. The children's reporter is a usual standard to refer an instance straight to the reporter. I would have to check the current process in fairness, and I can come back to you on that. Okay, thanks. My own understanding is that that is the case, but I just thought that it was useful to get on record. On my main question, convener, did the panel think that the introduction of EBOs might, in any way, remove the focus of prosecution of domestic abuse or the pursuit of prosecuting those offences? That can be a quick answer, if you want. That's the thing, I know it. I think that from a police perspective, we are committed to enforcement and trying to reduce the harm caused by domestic abuse. We have a tiered structure set within local policing, with an escalation to divisionally-based domestic abuse investigation units, and the top tier of our response to the domestic abuse task force, which we commonly describe as dealing with the worst of the worst. We are committed to enforcement. That has been outlined since the inception of Police Scotland, and I, for one, do not see that changing. I'll just add that I suppose our caveat around our general obvious, as you can tell, support for EBOs is that we think it's really important that we learn from the not very positive experience of many of our services down in England and Wales in terms of the current response, because the feedback that we're getting is that their experience of it is that police and other actors in the community see the presence of a protection order as, well now, the job's done, and I think, as you're alluding to, might in fact dilute the robustness of the criminal justice response, so we would be very clear that we would not see the presence of this kind of a protection order as intended to, in any way, inhibit gathering of evidence, putting cases to the Crown Office, or prosecution. In fact, if we have another mechanism for allowing other actors in the community to come around and help provide a plan in safety, the evidence that is then gathered in an appropriate context, I think, is more helpful to a prosecution case, and I think there's some evidence around this in the research that you did. Yes, I think it's very clear that emergency borrowing orders are meant to be a supplement rather than a replacement for the criminal law, but there is concern that they might be used as a replacement rather than a supplement. If we look at the experience in Germany, which has various different models being a federal state, there is some suggestion that, with the introduction of emergency borrowing orders, that the criminal justice response became less robust and that cases weren't built so strongly to take through the criminal law, so I think it is something that has to be monitored when emergency borrowing orders are introduced to make sure that they're being used as a supplement rather than a replacement. And there isn't that much evidence yet from England and Wales because obviously when the evaluation was carried out, it was only for a short duration, so we don't really know whether they are being used as a replacement rather than a supplement, but it's certainly a concern ought to be taken into account. I think the point to stress here is that if a crime has been committed, however that crime is defined in the new domestic abuse bill or whatever, and there is sufficient evidence, the criminal justice system will proceed on the basis as it does at the moment where there are safeguards in respect of bail conditions that can be applied. I think where your emergency borrowing orders come in is where that position cannot be achieved, there has not been sufficient evidence, either sufficient evidence by corroboration or there has not been sufficient to constitute a crime and that's the role that I think that is a gap that we're talking about today where emergency borrowing orders would be a root or some similar measure. All I would say in relation to that is remember there are other civil remedies or civil measures existing at the moment that obviously have been alluded to how effective they are or not. You've got interdict and you've got the non-harassment orders which obviously exist in parallel to the criminal law system and doesn't diminish the prosecutions that take place for domestic abuse at the moment. Just a final question, convener. Do the panel have any thoughts on how EBOs might be used in other situations where a person has not been investigated or prosecuted for domestic abuse? I don't think that I've got the whole thing. Have you got any ideas how an EBO might be used in another situation where a person has not been prosecuted for domestic abuse? A situation where perhaps, I suppose it's the reverse of the question that we had the last thing there, it's a situation where there might not be a suficiency of evidence to prosecute but there might be a suficiency to bring forward an EBO. So the person hasn't been taken forward for prosecution, domestic abuse but maybe the various agencies that are around WMZ, social work, etc. There's a level of concern here and perhaps through a multi-agency plan. I think that's kind of the blame I'm asking about. I think that it's one of the compelling reasons to think about doing EBOs is that, again, coming back to my response to the first question, which is if they're done in the context of risk, not just commission of a crime, then in fact they may serve as a deterrent and particularly if we can have them of sufficient length so that a safety network can be put in place and for those accused or perpetrators who will abide by the law, it may well be a deterrent of some strength and at the moment we're reliant on a crime being committed and suficiency of evidence so I do think that it's certainly a broader and more preventative mechanism. And it may be a more effective way of getting victims to engage with other support services particularly if part of the process of making an emergency borrowing order is that there is a referral to other support agencies that the victim otherwise wouldn't have contacted on their behalf. I take it from what we've heard that you basically would support the inclusion of EBOs within the existing civil court orders. Can I take your comments on that? If there's perceived to be a gap, then emergency borrowing orders in some shape or form, I would come back to stressing that whatever sanction, whether it's civil or criminal, would obviously be a matter for the committee to think about. My slight concern would be on the complexity and the interaction with other and forthcoming changes in the legislative process, which you, as a committee, are fully aware of. That's one. The other aspect that I would obviously address is to draw your attention to article 57 of the convention, which relates to the provision obviously of legal representation and advice, which would be required in respect of both parties. I think that that would be my comments. From a police perspective, as I've intimated, we welcome the discussion. I have some slight concerns about the pace given that there is no recognised model that would naturally fit in with Scots law and that would be subject to some lengthy discussion. I think that it would be very important to get that right in the first instance. I have some concern about the pace at which that may need to progress to be involved or included in the domestic abuse bill. I'll say that I am a fan of getting it right the first time, but I also know that Scottish Women's Aid and our allies in the domestic abuse world have been calling for something along these measures for more than five years. I am very concerned that our window of opportunity with the bill will close and that we'll be spending another five years debating exactly how to get this right. I am aware and I agree with the detective superintendent that there is some really strong evidence around there about how we might get it wrong and we must pay attention to that evidence. I think that this is an opportunity that women and children would urge you to take. From an academic perspective, I am purely looking at it from the research evidence from other countries. Obviously, there is no one model that we can transport to any other jurisdiction, but I think that there is enough evidence from research in other European countries, including research from England and Wales, as well, that they are effective—they can be effective. If you get the process around it right, there is a useful supplement to existing criminal justice and civil justice response. Thank you very much. I want to pick up on Marcia Scott's point, because I think that everybody around the table recognises that we have got an opportunity here and we want to take more evidence on that, because we think that it is such a vital issue that we should be considering. It was just really to touch on to Professor Burton's point, because I understand that you talked about that there is not one transferable model that we can just pick up and implement here. I read your submission with great interest, because I think that it was really interesting to see how they can work in other countries. If we decide to take this forward as a committee, we will have to look at what sort of model we would want to see and where we go next. And even though one may not be automatically transferable, is there one that you think that we should aspire to aim for in Scotland or any one model in particular? Just be interested to get your thoughts on that. I do not think that there is one model. I think that you can pick elements from different models and learn lessons in that way. For example, about what the duration of the order should be, what the level of authority for making an order should be, what the time length of the order should be. There is not one country that gets all elements of it right, although often Austria has held up as a particularly good example. The duration of their orders is two weeks and can be extended up to four weeks if the victim is applying for a longer order under the civil law and interdict in Scotland, for example. A key feature in Austria as well is that there is funding for referral to support services, which enables the victim to get the support that they need to apply for the longer term protection. We should not see emergency barring orders as a complete solution. The victim may still need an additional help to navigate the civil justice system or the criminal justice system. The level of authorisation should not be set too high, although we have to give some acknowledgement to perpetrators' rights and interests. The overriding feature with emergency barring orders is protection of the victims, including children who are victims of domestic violence. The right to life and the right to be free from inhuman integrating treatment are more important or superior to the right to property. It is only a temporary interference with property rights that is taking place here. Although there is no one model, we can look at the issues that are arising from the way that the orders operate in other countries and address those points if we are looking to take forward such a provision in Scotland. Absolutely. One of the benefits of looking at it now, at least in Scotland, is that we have other models that we can look at and see what the best operating elements of those are. I have a little list of critical features, many of which I have touched on already, but I guess I would just add that we do like the Austrian model. We think it needs to be at least of two weeks, and part of that is just research that we are aware of in terms of how long it takes for a victim to take up services and then for those services to respond appropriately in order for everybody in the system to have a better sense of what the next steps should look like. This has not been mentioned yet and it is absolutely critical that there be no discrimination in the eligibility for this order, so it should not be based on immigration status. We are very well aware that the victims without secure immigration status are here on a spousal visa or all of the possible permutations of their migration status are even more in need of protection than other victims, so that is really critical from our perspective. Again, we think that it needs to be a very clear commitment and systematic referral to support services, women's aid services, obviously. The one that I am thinking of, we know that if that happens within 24 hours, it increases the likelihood of take up of service enormously, and I had a personal experience of this in Westlothian when we put in an opt-out rather than an opt-ins arrangement with police. Our take up of services went from 40-something percent to 90 percent, and we have lots of evidence in other places that that is a really critical element. I think we want to make sure that it is free for the victim, and our obvious lessons from England and Wales are and free for the police. We can put in a disincentive to our closest partners in making helping women and children find safety by taking it out of their budgets, and we think that the breach needs to be criminal. In Austria, the breach is not criminal, so that is perhaps the only weakness of the Austrian model, but it is a 500 euro fine for breach. In England and Wales, the breach of a domestic violence prevention order is not a criminal offence, although the evaluation of the orders suggested that consideration should be given to criminalising the breach. There are potential disadvantages of criminalising breaches of civil orders, but consideration needs to be given to the potential strength of criminalising breaches in that it would make stronger enforcement. Just to follow on from that, how do the penalties vary across the different countries in terms of some of the lower penalties compared to some of the other sanctions that can be put in place? In some countries, for example, Austria is a fine. In England and Wales, a fine can be contempt of court, which can lead to up to two years imprisonment, but in some countries it is a criminal offence, which can lead to immediate imprisonment. Just one final point that I wanted to touch on was that DSMTDU raised in a previous answer to a question. Professor Burton was in your evidence as well about the EBOs and their effectiveness at reducing repeat victimisation. I am right in saying that it is only the home office that you have been able to get some of the figures on that from. To hear some more about that. Unfortunately, there is a very limited evidence base here. None of the countries in Europe have evaluated the effect of emergency barring orders on long-term recidivism. The pilot study in England and Wales was the only one to look at recidivism and the impact of emergency barring orders. Obviously, there were methodological difficulties in trying to find out whether emergency barring orders reduced repeat victimisation. The measure that they used was repeat call-outs to the police after an emergency barring order was made comparing it to situations where there were no emergency barring orders. What they found in the 19-month follow-up period was that in situations where an emergency barring order was made, there was a reduced number of repeat calls to the police for domestic violence, particularly where, leading up to the barring order being made, there were three or more calls to the police. What they called chronic cases, where the police were called three or more times prior to the making of the emergency barring order, seemed to have the most effect in terms of reducing repeat calls to the police. We have to be careful when we are using repeat calls to the police as a measure of recidivism because it may actually be that the victims have been put off calling the police again because they were not happy with the response that is being made. In England and Wales, they did talk to some victims about how they felt about the emergency barring orders and they were mainly supportive of the emergency barring orders. That led to the researchers to conclude that victims were not being put off calling the police again because they were unhappy that a barring order had been made. The evidence base is not great, I must say, but what evidence there is suggests that maybe emergency barring orders may have some effect at least in a short period after up to 80 months on repeat violence. I think that it is important to think beyond recidivism and think about prevention of homelessness. Many of you are aware that we did a piece of work with a team of community researchers in Fife. The ensuing report, which is called Change Justice Fairness, pointed out that currently in Scotland what happens very often is that in order for women to be assured that they are safe and for the system to respond to their needs, they have to declare themselves homeless. One of the reasons for that is this gap and the failure of having a mechanism that allows systems to coalesce around a family in their own home. Hence, 40% of the women in the survey that was done in the research in Fife had been made homeless more than once. There are other costs in the system that will reduce, as a result of this, where the overwhelming amount of harm that is reduced in avoiding homelessness of women and children in the context of domestic abuse makes it a huge argument and delivers a fabulous payback in other parts of the system, not to the police necessarily. When you talked about extending the duration of the barring order to four to seven days, Dr Scott, you then talked about two weeks as the optimum. I am struck that there is a balance almost between the longer the duration, perhaps the higher the threshold. Is there a risk if we were to go to two weeks, for example, that the disruption that that would cause may put off the application of barring orders and that, therefore, much as we would like to give as much time as possible, maybe closer to the four to seven days, we would ensure that it is applied as rigorously as we would want it to apply? I think that the problem that you have identified, which is very real, is the capacity of the system to understand domestic abuse. If there is reluctance to use an EBO because of a threshold of risk, I think that that is a training indicator, rather than a reason not to have a longer time available in order for the services and the victims to become confident that they can be safe. I think that you might well, in fact, find some evidence that there is reluctance on the part of the system, but I think that those are about a long history of privileging rights of property over the human rights of safety. Was there a reason you opted for four to seven days, as opposed to two weeks? I did not opt for four to seven days. That was the recommendation of the researchers that carried out the Home Office-funded evaluation, that consideration be given to extending the orders, the domestic violence prevention notice to four to seven days, because what they found was that fewer orders were being applied for than anticipated. They asked the police why, and they said that the bureaucratic burden was putting them off. They did not have sufficient time to get together a case to go for a longer domestic violence prevention order, so that came out of that particular Home Office report, a recommendation of four to seven days. I think that, in my evidence to the committee, I said the duration of the order consideration to be given to making it at least one week. That seems to be, to me, a reasonable length of time to interfere with the perpetrator's rights before the matter is considered by a judicial authority. Is that a view that you chaired? Just to clarify, what we are talking about here is that the domestic violence protection notice issued by police, by a superintendent or above, is for 48 hours. If I have interpreted correctly the suggestion that that extension by police without judicial review could be extended up to four to seven days, and thereafter it would still be subject to court order up to the order of 20 days, is my understanding. It is still effectively four weeks. I wonder if the panel has a view on what tests should be met before an EBO is imposed. Does that bring us back to the original question of risk assessment? Is there a danger of the threshold being set too high or too low? I come back to a policing perspective about the risk assessment, which we started this evidence session, the domestic abuse questions. That is the order in which appears to be applied in England and Wales, albeit that they have a different terminology for the risk assessment. It is, in essence, the same model. It appears to apply—I will defer to academia—but it appears to apply any heightened risk as being one of the necessities or the tests of the requirement. I would suggest that, if the committee is agreeable, it is a fair and transparent process. There does have to be professional judgment, because we know as a service and part of our training that the recognition that victims, by the nature of what they are reporting, can minimise behaviours, so that they would score very lowly on the risk assessment, but, in effect, that gut instinct of an officer or another partner is suggesting that there is a heightened risk. We can escalate it, even though it may not meet the threshold. Can you give an example of what a heightened risk would be? The scoring of each question carries a score. As the total up, 14 or above would start to indicate heightened risk, for which we would refer to a multiagency risk assessment. However, if somebody scores three, perhaps they are not engaging with us. They are not telling us the truth, but we can see other forms of evidence or other accounts from neighbours to say that that is a current every week, and that they have seen the person with injuries. We can apply professional judgment, which overrides the score, and that is done by partners. That is a risk assessment around the victim's perception, but, yes, the police will take into account the whole circumstances of the report that they are dealing with. I think that it's important that the threshold for making the order isn't set too high. If one of the reasons for having an emergency barring order is to plug gaps left by the criminal law, then it would be counterproductive to make the threshold for making the emergency barring order too high. In England and Wales, it is not necessary for there to be actual violence used in order for the order to be made, so the officer has to have a reasonable belief that violence has been used or threatened and that an order is necessary in order to protect the victim from a threat of further violence or actual violence. In other European countries, they do vary enormously in terms of the level of violence that has to be used or threatened in order for the order to be made. In some countries, there has to be actual violence used before an order can be made, but in many countries psychological or emotional abuse is sufficient and a threat of violence is sufficient for the making of the order. I think that that's where the evidence is that it's more effective in plugging gaps in the existing criminal law. Would children being present, would that raise the height and the risk of children being present? Whenever children are present, they are the indirect victims, if not the direct victims of domestic abuse, so that should come into the assessment if violence is being threatened towards the adult victim of domestic abuse. It's quite likely that the children will witness that they're also being harmed. I want to have a look at who should be covered by an EBO and how widespread that EBO should be. We've already covered quite a number of the areas that I wanted to question, so I wanted to pose a scenario to the panel and I'd be keen to hear the panel's views. If you have a woman who's a victim of domestic abuse and she's deemed to be a significant risk and she has children who are at a significant risk, an EBO is issued and there is a set pattern of behaviour that that woman and those children have over say the course of a week when an emergency barding or emergency barding order in theory could operate. Should the schools that the children attend, the clubs that the children attend, the family visits that the women does, all of which would be known to the perpetrator, should all of that be included in the emergency barring order, because you could argue if they don't or they are not included in the emergency barring order, you are further victimising the victim of a crime. I think we've made our position clear that we think that any of the customary spaces that the women or children are likely to be involved in should be covered and that it's not about the place, it's about the protection around them in their daily lives. I understand that there are complexities of enforcing that but I do think at the end of the day we need to keep our eyes on the prize of safety rather than it's not associated with the property, it's associated with the autonomy and personal safety of the family. Professor Bartlenord. Historically we used to have this debate around bail conditions and the phrase was coined where she works, rests and plays and I think the same is applicable to emergency barring orders, it's where the primary victim and the children work, rests and plays that needs to be covered. That's helpful, thank you. Dias McReady? I think that every case would be considered in its own merits and the applicant, if the committee feels necessary to legislate, would have to in my opinion offer justification for which this would be under consideration. I think that it would be scrutinised by the authorising authority whether it be initially as a senior police officer or a judicial review, the justification for inclusion or exclusion would be considered at that stage but it should definitely be involved in guidance. I'm just a bit concerned at the use of the word justification, it's almost implying that the victim has to make some kind of case for going about her or our children's daily lives. No, I find that in my opinion the justification comes from the police applying to prohibit some of these movements or exclude them from certain areas. In some cases it may not be in the benefit of the children, it would depend entirely on the circumstances. I come back to the point that I made at the outset, this is about victim safety and that is our focus equally alongside our partners but I think that it would be considered on a case-by-case basis would be our position as opposed to an assumption that in every instance all orders are inclusive to exclude a person from school or other premises. Sorry to be so pedantic but when you say not in the interests of the children are you saying that the police could in theory make a decision that it would be in the best interests of a child not to go somewhere? No, I guess what I'm trying to say is that we wouldn't want to take a carte blanche approach to this. We would not want to say that in every instance, in every EBO, those will be the factors that we will exclude or include in the EBO. I think that everyone should be considered on its merits. Okay, thank you. Ms Moddly? Yes, you referred to a particular scenario and I would just go back to what I said earlier that the kind of risk that you're talking about would normally be covered by the not-to-contact in approach so I would support what Dr Scott said about it being about the kind of person rather than the place because that obviously covers school, granny or wherever it may be so that would maybe address your point the contact and I see that as the echo of the words in the Istanbul convention of article 52 which it talks about or contacting the victim or person at risk so if you include children in that category I think that would cover your situation. It's almost that kind of belt and breezes approach. I mean the only other points that I would pick up and I completely endorse what was said earlier about if you're minded to do an emergency barring order then there would be a need to look at various aspects and I come back to the only point that really I'd be making that if this was say the police to impose I would stress again that look at the nature of if you like the offending conduct against the provisions of exclusion from the house and that's why I come back to echo the comments I made about judicial independent review at the soonest opportunity being proportionate in the sense of equality of arms and also all the implications for both sides to be heard so I would want if you were minded to be clear about what the appeal and the process was to have that review mechanism which I think is a safety and fairness that you would expect inherent in the Scottish system and that's all I would say with regard to any period that perhaps this would apply for. Okay, that's helpful and just finally very briefly, Ms Maudhly, in an earlier answer to a question you said the electronic communication should be included as a form of contact and I would just be interested whether the rest of the panel members would agree with that. Yes, so the joint protocol with Crown Office, Procreate of Fiscal Service and Police Scotland clearly indicates domestic abuse can occur anywhere including online so it would be supportive. Thank you. Support services has already been covered to an extent but I wonder are there any drawbacks from integrating the support services into the system of EBOs and if there aren't any drawbacks and there are benefits should there be automatic referrals for victims? I know that you did quite a lot on this Professor Barton. Yes, I think the drawback is that the services have sufficient funding to meet the need because if you make referral by the police mandatory on the making of an emergency borrowing order that's likely to increase the demand for support services so they'll be trying to meet that out of their existing budgets. In other jurisdictions the legislation includes provision for funded intervention centres so for example in the Netherlands the Czech Republic in Austria they all have funded intervention centres to make automatic referral work so there is that issue the only potential drawback is that there won't be enough money there for the support service to respond effectively to the demand that's created but in Germany where the model is that referral to support services is discretionary rather than mandatory what they found was that even though it was discretionary if the police made the referral the victim was more likely to update the services so there is you know pretty reliable evidence that the most effective way to implement borrowing orders is if there's referral to support services and it's a multi agency response. Are there any differing views everyone can agreement with that? Well there are no further questions so can I thank the witnesses very much for this very useful and helpful evidence session and with that we move straight now to our next item which is agenda item number four justice sub-committee on policing and feedback from the committee's sub-committee meeting of 26 of October 2017. I refer members to paper nine which is not by the clerk and invite Mary Fee to provide feedback. Thank you convener the justice sub-committee on policing met on the 26 of October 2017 when it held around table evidence session on police Scotland's engagement with black and minority ethnic BME communities. This was the sub-committees first consideration of this issue and was very informative. We heard about many of the challenges facing the BME communities and the police service and I won't cover them all today as we don't have time but in summary more work needs to be done on building trust on the police service finding ways to engage with all parts of the BME communities to increase an understanding and awareness of the issues they face and not just their representatives on providing on-going diversity training for police officers in particular new recruits so that they can interact positively with BME communities and finally on the negative impact on relationships due to the role of Police Scotland in Home Office Dawn Raids on houses and business premises to apprehend people suspected of being in Scotland illegally. The sub-committee heard of the challenges that all public bodies face to employ and retain a diverse workforce and we were therefore pleased to hear about the work of Police Scotland's positive action team to increase the number of minority ethnic entrants to the police workforce and look forward to seeing the evaluation of this initiative in due course. The sub-committee is exploring how to take forward the suggestion from the Scottish Refugee Council that there should be a review of how Police Scotland and the Crown Office are working with the migrant community in Scotland. The next meeting of the sub-committee is scheduled for Thursday 9 November when it will take evidence on the Police Service's budget planning for the next financial year and I'm happy to answer any questions. Do members have any questions or comments from me? Liam? I had another point that I wanted to raise before we go into private session, if that's possible. Yes, certainly. It was just from the meeting of the Scottish Youth Parliament last Friday and Saturday, Morris Scorri and myself met with the members of the Justice Committee of the Scottish Youth Parliament, which is a very useful session. There was a lot of discussion about the issues that they are prioritising alongside the issues that we've been working on, the legislation that we've been scrutinising, and a number of ideas emerged from that. There was an encouragement for MSYPs to contact their MSPs and develop their relationship that way. The convener is a constituent of owners, and obviously there's a link there, but we were suggesting possibly periodic meetings between the convener and vice-convener of that committee and this committee. It might be something that we look at, certainly in terms of sharing our work programme with them, so they're cited on what we're looking to do over the next four to six months. In terms of requests for evidence, again, I made the offer, hopefully not prematurely, that we would ensure that they were cited on the requests for evidence that we're putting out. There may be other ideas that colleagues have, but as a bare minimum for trying to enhance the way in which we work alongside the Scottish Youth Parliament. Latitude in that, but really it should be something that we discuss under our work programme, and as members all know, this committee more than most is under huge pressure for scrutinising bills. Three currently on the go, a fourth on the way. There are real concerns about our ability to do that. However, it sounds very interesting, suggesting one that we'll explore further when we now move into private session. Our next meeting will be on Tuesday, 27 November 2017, when our main business will be further consideration of the offensive behaviour at football. I suspend now to allow the public gallery to clear if we have a public gallery.