 Felly, rwy'n gwybod am gyrfa i ei gael am Y Cymru, mae eich bwysig am y 24 oesgol yw 2017. Mae cydyboli wedi ond rydyn ni wedi gy wiping o Liam McArthur, a syl āch chi—a thatig yn cynnig i chi'n cyflin ar gyfer yn eich fforddnog ac gyda'r ti'n cymweithredu i'r amser, profit yn wych i hynny eich angen o'r 500. Rwy'n gydag i gyda'r Minister ffaluadau hynny? Felly, rydyn ni'n ddweud beth sydd eich angen i hynny i hynny i hynny i hynny i hynny? Felly, oes rhai i ddim yn byrwyd inhabiwr? Rhywgol i ddim yn bwysig am gweithio i ddim yn fwyafolio unrhyw bwysig, ond residents yn brifon o cymdeif Cond MILD-Gford, yn amddangos cyvellaeth i ddim yn bwysig i ddim yn bwysig, yn ddim yn bwysig, ond ond ond ond ond ond ond ond ond ond o uchig umdwysig, I will agree that they should be taken in private. I will move on to agenda item number five, which is feedback from the Justice Sub-Committee on Policing on its meeting of 22 June 2017. Following the verbal report, there will be an opportunity for brief comments or questions, and I refer members to paper four, which is a note by the clerk. I invite Mary Fee to provide that feedback. The Justice Sub-Committee on Policing met on 22 June 2017, when it took evidence from Her Majesty's chief inspector of constabulary in Scotland, Derek Penman, on his review of openness and transparency at the Scottish Police Authority. The sub-committee heard that HMICS had made 11 recommendations, including holding board and committee meetings in public and making papers publicly available in advance of meetings without any embargo. Derek Penman highlighted, among other things, issues with the chair, the chief executive and all board members on their understanding of on-board guidance, collective responsibility, supporting processes and relative rules. Following the evidence session, Andrew Flanagan sent a response to the sub-committee, and I would like to address a couple of points that he raised. Mr Penman told the sub-committee last week that staff associations do not think that the current level of engagement is sufficient and that they are looking for better ways to engage. In his response, Mr Flanagan said that stakeholder engagement was championed and endorsed on the policing 2026 work. I would like to say that, as the policing 2026 work prerates Mr Penman's report, it appears that the staff associations do not share Mr Flanagan's view and proper engagement is vital. The chief inspector's report concentrates on the roles, awareness and understanding of the chair, the chief executive and board members. Although there were some recommendations for improving executive structures, the report does not criticise the hardworking staff within the wider organisation. The key findings are focused on the senior management team who should focus on making the necessary changes to improve the reputation of the SPA and, in turn, the morale of its staff. The sub-committee will next meet on 14 September, and I am happy to take any questions. Do members have any questions or comments for Mary? No? Nothing? That being the case, we shall suspend briefly to allow the cabinet secretary to settle into his position. We move now to agenda item number 2, which is consideration of the affirmative instrument on the advice and assistance proceedings for recovery of documents, Scotland regulations 2017 draft. I welcome the cabinet secretary for justice and his officials, Denise Swanson, the head of access to the justice unit, Kevin Philpot, criminal justice division and Greg Walker, director of legal services with the Scottish Government. I refer members to paper 1, which is not by the clerk. I ask the cabinet secretary if he would like to make a short opening statement. My apologies for my slight late arrival this morning. Those regulations relate to the F versus Scottish ministers judgment that was issued in February 2016. That case concerned the rights of a complainer to receive legal aid when they were seeking to oppose release of their medical records in connection with a criminal case. It was an important judgment that has led to a significant change in approach in cases where an application is made to recover sensitive information in criminal proceedings. The judgment clarifies that any person whose article 8 convention rights, respect for private and family life, may be infringed by an order for recovery of medical records and other sensitive documents. It must have the application for recovery of those records intimated to them and must be given the opportunity to be heard in opposition to that application. Following the judgment on 1 March last year, when I was before the committee during scrutiny of the Abusive Behaviour and Sexual Harm Bill, I advised the committee that the court, having established that there is a right to be heard, interim provisions had been put in place to make legal aid available to allow a client to be represented where they were seeking to oppose release of medical or other sensitive documents. The regulations before you today regularise these interim provisions by amending the relevant statutory legal aid framework to make equivalent provision. Specifically, they make provision for assistance by way of representation to be available to a client where they are seeking to oppose recovery of their medical or other sensitive documents in connection with criminal proceedings. As with the interim provisions, this assistance will be available without a means test being applied. The regulations also make incidental amendments to advise and assistance to ensure that work is done on a consistent basis, as assistance by way of representation, namely at a criminal rate. Since the interim provisions have been in place, seven applications have been received for legal aid in connection with the potential use of sensitive records in criminal proceedings. Of those five applications have received legal aid and the two other applications have been given in principle agreement by the Scottish legal aid board for legal aid, with the checking of actual expenditure still to be undertaken. The commitment to put in place sustainable arrangements to protect the interests of individuals whose sensitive records and documents are requested in criminal court proceedings was set out in our programme for government 2016-17, and those regulations seek to deliver on that commitment. I thank the cabinet secretary for that statement. I particularly welcome the statutory instrument, not least because, over the past four years, on no fewer than six occasions, in three different pieces of legislation, the Victim and Witnesses Scotland Bill, the Criminal Justice Scotland Bill, the Abusive Behaviour and Sexual Harms Scotland Bill, I have lodged amendments regarding complainers having the right to oppose the release of their medical records, including psychological and psychiatric records. The cabinet secretary will be aware on the last occasion on 22 March 2016, at stage 3 of the Abusive Behaviour and Sexual Harms Scotland Bill, which followed Lord Ghanney's ruling in 2016. This was to the effect that in domestic abuse cases denying a complainer legal aid to oppose the use of her medical records was a country to the Victim and Witnesses Scotland Act. That was the essence of my amendment. The cabinet secretary will also recall that he again rejected my amendment about awareness raising of the ruling at that time, stating that, as I have indicated, the Scottish Government is happy to undertake the work to ensure that the awareness of Lord Ghanney's judgment is raised. I very much welcome the fact that there have been seven applications and that the spirit of registration has already been recognised, with five applications being approved and two under consideration. Can you provide some comfort in terms of outlining what has been done so far to raise awareness about Lord Ghanney's ruling and judgment? The interim arrangements have been put in place and that was intimated to the relevant parties that interim arrangements have been put in place. What we are planning to do is for my colleague Annabelle Ewing to write to the Law Society and other parties to make them aware of the new regulations that have been put in place, so that there is awareness that they are put in place. She will also be aware that Lord Ghanney's ruling, he didn't make any recommendation that it was a need for any rule changes or any new primary legislation to be put in place, but there was a process where the court would be required to intimate entitlement to an individual whose documents may be sought and that has been put in place and an understanding that is also being monitored by the Lord President's office. Okay, but nothing has happened to raise awareness specifically. We have already written to different stakeholders to make them aware of the interim arrangements that were put into place last year. What we will do is, and my colleague Annabelle Ewing will be doing, is again going out to the interested parties to make them aware that those arrangements are now in place and that new regulations have been put in place to make a permanent arrangement available for access to legal aid in these circumstances. That is a piece of work that my colleague Annabelle Ewing will take forward. Okay, thank you, John Finnie. Thank you, cabinet secretary. It really is a bit on that first to welcome the interim provisions that were put in place. I think that that was very positive. As part of the paper we've got here, I call the policy note, on the consultation there's the following phrase, rape crisis Scotland supported by Scottish Women's Aid raised concerns with reference to article 8 rights, the use of the effective participation test and the provision of appeals. It goes on to say that these issues were addressed through separate correspondence and do not affect the content of those regulations. The issues, were they addressed to the satisfaction of rape crisis Scotland and Scottish Women's Aid, cabinet secretary? I'm not aware of our responses being received, but if it would be helpful what I can do is I can also provide the committee with a copy of the letter that was sent out to Scottish Women's Aid. Denise, do you want to maybe comment this because you wrote to them about the matter? Yes, I wrote to them and as cabinet secretary suggests, we will send a copy of that letter to the committee. I've subsequently met with Sandy Brindley on another issue and this wasn't raised and we haven't had any response from rape crisis Scotland to that letter so from that point I'm assuming that there are no further issues that they wish to raise on this but we continue to engage with Sandy so we will confirm that with her. Okay, thank you very much. Are there any other questions or comments from members? That being the case, we now move to agenda item 3, which is formal consideration of the motion in relation to the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has no comment on it. The motion to be moved with the opportunity for formal debate if necessary is S5M-06068 that the Justice Committee recommends that the advice and assistance proceedings for recovery of documents, Scotland regulations 2017 be approved. Do you want to say anything further or merely move the motion? With. Thank you, cabinet secretary. Do any members have any comments? Nope. That being the case, I put the question that the motion 06068 in the name of Annabel Ewing is approved. Are we all agreed? We are all agreed. That concludes our consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the debate. Is the committee content to agree to delegate authority to me as convener to approve the draft of the report? Are we content with that? Thank you. I now suspend briefly, first of all, thank the officials who are here for attending, and suspend briefly to allow for a change of officials and for the cabinet secretary to return. Agenda item 4 is our closing evidence session on the Domestic Abuse Scotland Bill. I welcome back the cabinet secretary for justice and his officials, Phillip Lamont, Patrick Down, both members of the bill team, and Louise Miller from the directorate of legal services with the Scottish Government. I refer members to paper 2, which is note by the Clarke and paper 3, which is a private paper. Cabinet secretary, do you wish to make an opening statement? We are grateful to the committee for its scrutiny of this important bill. The bill aims to address a fundamental gap between the criminal law and or modern understanding of the true nature of domestic abuse in relationships between partners and ex-partners. The bill was informed by an extensive process of consultations and engagement with a wide range of key stakeholders. At the end of the committee's questions, I want to set out the Scottish Government's position on two specific matters that have been raised during scrutiny of the bill. First, we know that the committee has heard from some stakeholders who would like a separate parallel criminal offence of domestic abuse of a child to be created. That would be intended to create or to recognise that a child living in an environment where their caregiver is being abused is themselves a victim of abuse. This is clearly an important issue and I want to explain the Scottish Government's position on this matter. Where abuse is directed at a child, the criminal law already can be used as, for example, abuse can be charged using the offence of child cruelty or neglect at section 12 of the Children and Young Persons Scotland Act 1937. We are very aware of concerns that the existing offence may not adequately deal with the psychological abuse of a child. That is why the Minister for Child Care and Young Early Years announced to Parliament in March that this offence is being reviewed to consider whether it requires to be updated to reflect a modern understanding of what amounts to abuse of a child. However, it appears that what has been proposed in respect of this bill is different. Our understanding, based on evidence given to the committee, is that what seems to be proposed is that an accused person should be capable of being charged with two different offences in respect of a single course of abusive behaviour directed against their partner or ex-partner. One offence would be the offence, as contained in the bill, where their partner or ex-partner is a victim of a course of conduct of abusive behaviour. Our understanding is that the other separate offence would result in exactly the same conduct but would seek to criminalise the harm that occurs to the child of that partner or ex-partner through the abuse directed at the partner or ex-partner. We are absolutely clear that growing up in an environment in which domestic abuse is occurring harms children. However, we do not think that the way to address this is to create a mechanism where a person can be charged with two separate offences for the exact same course of behaviour. Instead, that is why we have included a statutory child agrivation in the bill. The agrivation is intended to capture the harm caused to a child by ensuring that the court formally takes account of this when making sentencing decisions in such cases and states how this was taken account of in determining sentence. That ensures that no separate offence is needed for a child to be regarded as a victim and for the impact on the child to be recognised. The other issue that I would like to comment on at the outset are the concerns expressed about the threshold when an offence has been committed. Views have been offered that the inclusion of distress within the definition of psychological harm contained within the offence risks setting the threshold for criminalisation too low. We are, of course, happy to consider views on this. However, we have included distress as part of a definition of psychological harm because we consider that merely referring to fear or alarm would mean that courses of conduct that should be criminal as a matter of policy are not included within the scope of the offence. Courts will interpret the word distress taking into account its dictionary definition. Distress is not synonymous with mere upset or annoyance, as some might consider it to be the case or might have suggested in earlier evidence. The concise Oxford dictionary definition in distress defines the stress as meaning extreme anxiety or suffering. You have heard from a number of stakeholders including the Crown Office and Scottish Women's Aid that behaviour giving rise to extreme anxiety or suffering should be included within the scope of the offence. Our position is that abusive behaviour that causes extreme anxiety or suffering ought to be covered by the offence and the threshold is set for the offence with that in mind. It is important to remember that the offence is only committed if all elements of the threefold test set out in the bill are met. I am always happy to discuss and consider alternative ways of achieving policy goals in both the areas that I have mentioned. That includes any specific suggestions that the committee makes in stage 1 report or state codes that I have suggested in improving the bill. Of course, I am happy to take any questions. I thank the cabinet secretary for that opening statement, in particular to have on record that the definition of distress will be as in the Oxford dictionary extreme anxiety or suffering is very much welcomed by all of the committee. You have referred cabinet secretary to the course of behaviour and how that would affect children. It does not have to be two separate occasions. I am presuming that the course of behaviour referred to as a safeguard for over-criminalisation provides for a course of behaviour involving behaviour on at least two occasions. Would that still be in the bill for any adult accused of this behaviour? If so, does it adequately capture the concept of a course of behaviour in relation to the two separate occasions where, for example, there is close proximity to each other? It is important to recognise that it is not just two instances that are random instances. It has to be a course of behaviour. It has to be at least two instances that are viewed as being a course of behaviour. For example, if an incident took place five years ago and then an incident took place recently, it would be for the courts to determine when that was presented to them and where they considered that to be a course of behaviour. It is important to recognise that the issue is not about just two instances, it is about a course of behaviour and it has to be at least two instances that could be considered to be a course of behaviour. That is helpful. Mary, followed by Mary, then voting. There are just a few areas that I would like to touch on today. In general, the evidence that we have received over the past while has been broadly in support of the legislation. Of course, some people would like to see it go further, but it has been identified that there is a gap that the legislation will fill. There are, as I said, a couple of areas that I would like to cover first of all. In some of the evidence that we heard from Scottish Women's Aid, one aspect that they mentioned, which is not included in this, is about the emergency barring orders. Is that something that you would consider as part of this? I am conscious that Scottish Women's Aid has raised this matter with the committee. It was not a matter that was raised in the course of the consultation exercise. As it stands at the present moment, we have the exclusion orders that can be utilised. For example, a victim of domestic abuse can seek an exclusion order for someone to be excluded from their home, but I am happy to engage with Scottish Women's Aid to consider whether there are further measures that need to be put in place to try to address any concerns that they have. For example, I know that exclusion orders have to be applied by the person who has directly experienced abuse. For example, the police could not apply for an exclusion order whether there is a need for us to look at whether that should be extended and who could apply for exclusion orders and who they could also apply to. For example, I am conscious that some may have raised the issue about children and whether they should, in certain circumstances, be applyable. Again, that is something that we are happy to look at and to give consideration to. I think that it is certainly something that is used in other countries. I think that there are other examples that we could be looking at. Another important point that they raised during their evidence was in terms of the training and the public education campaigns that will come out as a result of the bill. It was just how you envisaged that and planned that going forward. I think that the point that Marcia Scott had raised was that sometimes we can have the best legislation but it is putting everything else in place after that to make sure that what we are aiming to do with the legislation is actually achieved. In terms of the public education, especially in terms of the coercive and controlling behaviour, it is how you see what the programme for that would be when the bill goes through and any training that needs to be done as a result of that, too. Let me take those into two separate parts. One is publicity around any new legislation into the training requirement. As was set out in the financial memorandum, it goes alongside this. As is the case with any new piece of legislation that we bring in, there will be a requirement for a level of training for ffiscals, for the police and for others that may be working in this particular field. That will be taken into account as we move forward looking towards the introduction of the legislation should it be approved by Parliament. That is not an unusual thing that happens with any new piece of legislation. For example, the Abusive Behaviour and Sexual Harm Act that was introduced last year. We have already started introducing provisions in that. There has been training taken forward as a result of introducing that new piece of legislation. It is specifically about the issue of publicity associated with a piece of legislation. As a Government, when there is a new offence being brought in, we will always run a publicity campaign highlighting those matters. Very often that is carried out in partnership with other agencies or third sector organisations in particular, highlighting the new offence coming into force, the implications of the new offence and highlighting what it is intended to tackle. My view would be that there will be a publicity campaign. The nature and shape of that is something that will be developed following the passage of the bill, but to ensure that people are aware of the new provisions within the legislation should it be passed and the implications that it could have for individuals. I can give you an assurance that there will be a publicity campaign around that. The shape and nature of it is not something that we have given consideration to at this particular point. I think that it is vitally important, especially around the coercive and controlling behaviour. For some, it may not necessarily be the victim themselves that is able to identify the change in their own behaviour as a result of that, but particularly for other people surrounding that person, for them to be able to identify that behaviour as well. The last point that I would like to touch on is about non-harassment orders. We have heard quite a lot in the evidence around that. Again, many organisations would like to see the wording of the bill be a bit stronger on that in terms of a presumption in favour of imposing non-harassment orders. It was just to get your views on some of the evidence that we have heard. We have placed a requirement within the bill that the court is required to give consideration to whether a non-harassment order is required at the time of sentencing. We believe that that will ensure that the courts will have to consider the issue and also set out their decision on whether a non-harassment order is required or not as well. It places the obligation on the court and the sheriff or judge in particular to set that out in a way that is not there at the present moment. I am always content to look at where there are ways in which we can strengthen the legislation, but we feel that the policy intention of making sure that our sentences and our courts are considering these issues at the time of sentence, that the provision that we have put in the bill should effectively deliver that. Another point that was raised was in terms of the non-harassment orders in relation to children, and whether that should be looked at and included, given the fact that a non-harassment order could be in place for the victims of domestic abuse, but how that abuse can continue through the children if they are awarded contact with the children of the relationship. It was just to get your views on that evidence. We would be happy to consider that to see whether a way in which the issue that has been highlighted could be adequately addressed when it comes to children. That is an issue that we are already giving consideration to. Okay, thank you. We have Mary Fould by Fulton, then Rona. Thank you, convener, and good morning. One of the areas that I did want to cover was public education and training, and Mary Evans has covered most of it. I will ask the cabinet secretary. I do not know if you will remember a few years ago that there was a very successful television advertisement on domestic violence. It was quite hard-hitting. I think that that is a really good way to raise awareness of something that reaches far more people than you could probably ever do by written publicity. Would that be something that may be given consideration as you look to how you are going to publicise that? There is a whole variety of mediums in which it can be achieved. I am also conscious that social media now plays a big part in a way that has been around for six, seven years ago. We have not decided what the publicity campaign will be around the new legislation. We will give consideration to that. For example, some of the provisions that have come in through the abusive behaviour and sexual harm act I just froze campaign that we supported recently that was taken forward by Rape Crisis Scotland. That was a larger social media campaign and social media campaigns in the past that have targeted young people in particular because we know that we can use social media in a way in which to target particular age groups. There is a variety of things that are taken into account on looking at what the publicity campaign will be. Whether it will be a TV advert campaign or a radio advert campaign or social media, a combination of all of those are issues that will be taken into account at the time when we are looking at a publicity campaign. I am conscious that I am before the committee looking to conclude at stage 1 report and Parliament has still to decide on whether it is going to approve the legislation so I do not want to pre-empt the decision of Parliament in deciding whether it is going to approve this piece of legislation before telling you that we have already planned what the publicity campaign will be. I can give you an assurance that it is something that we will consider when we are in a position once we have the legislation in place. That is helpful. The bill is focused primarily or solely between partners or ex-partners. We have heard evidence that it should be wider to cover domestic abuse between other family members and I am thinking specifically of elder abuse. Is that something that you have sympathy with and do you understand why people might want that to be included in this bill and why do you not think it is useful to do it? The definition around this offence between partners and ex-partners is based on the long-standing definition that we have had about domestic abuse within our equally safe strategy. That was supported by the responses that we received to the consultation exercise. That is why it is rooted in our equally safe work and the definition that we have within that about gender-based violence and domestic violence in particular. As I said, it was supported by the responses that we received in the consultation exercise. There are other legal provisions available for issues around elder abuse and other forms of abuse that can take place within a family setting. I do not believe that this piece of legislation is appropriate in addressing any of those issues further. It should be said, though, that where there is for an elderly person where there is a partner or ex-partner is abusing them, then this offence can be applied in no circumstance if it meets the criteria that is set out within the offence. There are other pieces of legislation that address some of those issues. I am not aware of any particular issues around gaps in those legislation, a piece of legislation to deal with those matters in the way in which we are seeking to deal with modernising our approach to domestic abuse through this offence. Of course, if there are concerns about gaps in existing legislation in dealing with elder abuse or other forms of abuse on a wider family network, I am happy to consider that but I do not believe that this bill would be the appropriate place to address any gaps that they consider there may be. Of course, the reason it was raised was more and more elderly people are cared for at home by an adult child and the issue of controlling and coercive behaviour came into play. Older people being manipulated for financial gain and that was the reason that was brought forward. Are you content that that can be dealt with in other places? There are adult protection arrangements for dealing with those types of issues where someone is abusing their position in the way in which they are dealing with an individual. For example, if they do with their finances there is legislation to deal with that. There may be issues around and I suspect what this may be more about is about individuals identifying it and being aware that there is abuse of that nature taking place reporting it to allow it then to be investigated. That does not necessarily mean that there is a deficiency in the legislation. There is an issue about making sure that people are aware of those issues and that they are reporting them appropriately. For example, without digressing too much, convener, there are issues around elder abuse when it comes to financial issues. Part of the challenge can be the sharing of information between different agencies. Bank sharing information with social work, police sharing information with social work etc. and trying to coordinate a case. That is why adult protection arrangements are in place in order to manage those types of issues where it is reported. There is legislation in place and there are processes that social work have to deal with adult abuse matters, but I am not aware of any gaps in the legislation. That is not to say that it could not be improved but I do not believe that this bill is the right place to seek to do that. Fulton, followed by Rona, then Ben. Thanks to the cabinet secretary. You mentioned the aggravation to children in your opening statement. As we talked about last week in a question of some of the witnesses currently as it stands, if the police attend at a domestic incident whether they report or make a charge or whatever, there is an automatic referral to both social work and the children's reporter. That is a way to ensure the safety of the children in that process. There is also a lot to be consideration given to whether child protection procedures should be initiated. Would you support similar arrangements being made for this offence if the legislation is passed for similar procedures being put in place if there is police involvement? If there is police involvement and there are concerns about the child's welfare and what the child may have been exposed to, I would expect that process to be used, yes. In the review of the section 12 legislation you would support if there would be an automatic referral to the children's reporter as a result of police involvement. We would need to allow that review work to be made out to look at it. I, in principle, would not be opposed to it if that is the most appropriate way in which to deal with those issues. We have created aggravated within this legislation in the work that my colleague Mark McDonald is now going to take forward. If part of that highlights the need to create some form of automatic referral in other instances then I would be content to look at that at the time. At this stage, what we need to do is make sure that the aggravator has been used effectively with this legislation and should be passed by Parliament. The wider work that Mark McDonald is taking forward could help to inform how we can strengthen the existing arrangements for protecting children who may have experienced domestic abuse. OK, thanks for that. On a slightly different note, yesterday I met the Muntwans women aid team at my office just to speak about some of the work that they are involved in locally. Just like the national counterparts are very supportive of the legislation, we talked at length about that. What role do you think that those third party or third sector organisations and similar to women's aid will have in terms of the prosecutors building a case of a course of behaviour? Against the individual. What role do you see organisations having in that process? Women's aid organisations across the country do a fantastic job in helping to support victims of domestic abuse. Very often women will disclose information to them before they will disclose it to the police or to what they might see as an authority figure. They may be in contact with an organisation such as their local women's aid service over an extended period of time but not necessarily report matters to the police as well. I would imagine that it depends on the circumstances with individual cases. It may be about supporting the women to be confident enough to report the matter to the police in the first place to give them reassurance and support in going through that particular process. Helping to give them an understanding of what is involved once a matter has been reported to the police and how it will then be investigated and how it will be taken forward and to give them reassurance that they will be there with them during the course of that process. It could also be about women who may at that point report the matter to continue to work with them in supporting them and to offer them advice and assistance as well. I think that, particularly with this legislation, it will hopefully send out a signal that all forms of domestic abuse will not be tolerated. We know that there is a particular challenge around being able to prosecute coercive and controlling behaviour which can go on for an extended period of time. The person may not have been subject to physical abuse but they have been subject to psychological abuse and to be able to explain to women who come to them for advice and support that the type of psychological, coercive and controlling behaviour that they have experienced can now be taken before the courts and to explain to them how the legislation works in doing that. Helping in supporting them as victims and also helping to advise them and to give them information about how the legislation works and in particular to be able to inform them that the type of psychological abuse that they may have experienced can now effectively be prosecuted. They have an absolutely key role in helping to support victims of domestic abuse before and after once they have reported the matter to the police that has been taken forward by the procurator Fiscal. When I spoke to the manager of Muntlands Women's Aid yesterday she said exactly that that she is hoping that this legislation particularly will allow more women to come forward and there will be more need for their service. Do you think that as a final question you might not be able to answer Cabinet Secretary on arrangements for such organisations like Women's Aid locally depending on how much more work they might be taking on as a result of the legislation? Down to individual local authorities to determine how they wish to continue to fund women's aid projects within their own individual area. It is a Government over the last couple of over a number of years now we have put in record levels of funding on violence, whether it be through the work that we do with organisations such as Scottish Women's Aid or Rape Crisis Scotland. That has been a combination of funding that has come from Equally Safe work alongside the £20 million that we have been investing over the course of the last two and a half years through the justice portfolio in tackling gender-based violence. We all have a part to play and I have no doubt that local authorities will want to look upon those matters sympathetically given the importance of the role that women's aid projects play within their own individual local area and we will continue to look to see what we can do to support the work that they do at a national level as well. Rona Fonald by Ben Oliver, then John. Thank you, convener. Good morning Cabinet Secretary. We know that Scottish Women's Aid are very supportive of the bill that has been argued for the introduction of emergency barring orders whereby it is the perpetrator of domestic abuse that leaves the family home and not the victim. Is this something that you might consider? Just to respond to the point that was raised earlier about your colleague, that is an issue that we are engaging with Scottish Women's Aid on and we intend to write to Scottish Women's Aid just to obtain more details about how they believe that emergency barring orders could be more effective than what we have at the present moment or what we have at the present moment could be more effectively utilised. That is an area in which we are open to discussions with Scottish Women's Aid on and we will be contacting them shortly in order to pursue that further. That is fine, because I think that it is generally perceived that it is generally the women and children that would leave the family home if the perpetrator would remain there so that would be helpful if that was brought forward. Ben, followed by Oliver and John. Thank you, convener. Good morning, cabinet secretary. I wanted to refer back to section 1 within the bill around the definition of this new offence. It touched on the concept of distress within your opening remarks but I also wanted to pick up on the concept of inclusion within the bill. In relation to retinas lists, Ann Marie Hicks said on evidence to the committee that it is important to note that it is not recklessness in a way that you or I might regard it in our ordinary lives as a kind of carelessness. It is a criminal recklessness. It is a criminal disregard in which the person disregards the possible consequences. The courts are used to applying those tests as our prosecutors. When we deal with a lot of different types of nuanced behaviour, as we will do under the bill, it will be useful to have the concept of recklessness. We have seen that with the stalking offence, which includes other types of behaviour that were perhaps not traditionally criminal, recklessness has been a very important concept in that. However, we have also received some evidence expressing concerns about the inclusion of recklessness within section 1 to B. As part of the mental element of the offence, what do you believe would be lost if the offence was one of intent only and did not include recklessness? On your first point that you made, it is important to recognise that recklessness is distinct from carelessness or negligence. It is something that your courts are familiar with in applying the law. It is not unfamiliar territory to how our courts should interpret those issues. We think that having regard to the reckless nature of someone's actions is appropriate in this particular offence. In domestic abuse, when it comes to the psychological and coercive and controlling behaviour, it could be more difficult to demonstrate intent on those matters. That is why recklessness has been included within it. It will support the particular elements that we have around coercive and controlling behaviour and the psychological element of this offence to be more effectively prosecuted. The reason it is included in there is not specifically but with more of an intent to support us in tackling the psychological element of abuse that can be more difficult to demonstrate the intent of. Thank you, cabinet secretary, as well. Those who expressed concerns were concerned about a potential over-criminalisation and safeguards within that. Ann Marie Hicks specified the different elements that would ensure that there wasn't an over-criminalisation or miscarriage and justice around issues of the mens rea and the need for corroboration. I just wanted to be satisfied that there are enough safeguards within the definition to make sure that it is as tight as it needs to be. I believe that there are in terms of the threefold criteria that needs to be met before the offence can be engaged the nature of the way in which we have framed it. I believe that we have sought to achieve the balance. There is also the balance within the bill that can be utilised by an accused as well. I believe that the balance is right including in relation to the mens rea within the offence. It is worth keeping in mind that it is an offence where it is likely to have had an impact on an individual in considering issues about it's likely to have an impact because particularly when it comes to psychological abuse it could prove to be much more difficult to demonstrate beyond reasonable doubt that psychological abuse has actually taken place but we can see that a course of behaviour is likely to have resulted in psychological abuse of that person. That is why we have framed the legislation in such a way to give more of a focus on the effects that the abusive behaviour can have on the victim in order to make sure that we can capture in particular the type of psychological abuse that we are intending to focus on as part of the offence. Thank you for that clarity. I wonder if I could ask the cabinet secretary whether he thinks it's right to talk about distinguishable occasions within the context of this type of event particularly given what we know about the nature of it and just background information why the Scottish Government decided to pursue that approach talking about occasions in order to define the offence. The purpose behind it is to create the course of behaviour so it is to allow the course to interpret so for example it starts off with the abusive behaviour having to demonstrate that abusive behaviour has taken place and then the further criteria it comes from within the offence but the course of conduct needs to be one which is considered to be a course of conduct against something which is not unfamiliar to our court so for example it's used by stocking offence in considering the behaviour of an individual that may seem to be incidental in an isolated occasion that accumulatively over a period of time could be considered to be a course of conduct that causes concern for our individual so for example in the stocking offence it could be someone who did concerns about seeing them in the shop on one occasion and then every other time they go to the shop they find that that person is there again now in an individual case on one occasion people may think well that's okay but if it's happening on a regular basis that course of conduct then that's why we've sought to bring it together as a course of conduct which we know around psychological abuse in particular it tends to be the way that victims experience it so why was the decision taken to attach a number to that cos what I'm imagining perhaps is maybe one sustained occasion that maybe isn't possible to break it down into a number of different events it could be one sustained incident that continues over a long period of time I just wonder whether by saying that there has to be two occasions that that thing wouldn't then be interpreted by the court as a pattern of behaviour if for example if someone was subjected to some form of physical abuse on an occasion then that could still be prosecuted as well so that could still be pursued but the issue around the course of conduct that we've sought to achieve here is because we know that for many victims of domestic abuse it can be a course of conduct that takes place over a period of time sometimes it can involve physical violence but it can also involve psychological abuse so for example it's any restricting the times when someone can leave it could be requanum to bring back sheets for everything that they purchase when they're out limiting the time as to when they are around now that may not all happen in the course of one occasion but it could happen over the course of a period of time in some cases it could be weeks months or it could be years and it's for the courts to determine that course of conduct in viewing that as a form of abuse and to then come to determination on it so it's about trying to pick up individual instances on their own that may not be considered to be abusive but as a course of conduct alongside other factors then it would be considered to be abusive behaviour and that's why we've sought to frame it in such a way that there has to be two occasions so that that single one-off occasion is not captured and then it would be viewed where it was unintentional or where it was a one-off occasion it could still be prosecuted by other means but for this offence it has to be at least two occasions in order to establish that course of conduct so if a partner was to deny their partner of access to their bank account or to finance and that started on one date and continued for a year or a month or several weeks that wouldn't be captured by this offence or would you see that as being multiple incidents? That would be over a number of occasions that was taking place so it wouldn't be just on one occasion it would be over the course of a period of time so it would be a course of behaviour the other thing as well I think that it's reasonable to say that for many victims of these types of crimes it very often is in one form of abuse that they experience if they're being denied access to their bank account they're very often being denied access to a whole range of other matters and being treated in an unacceptable way as well so that would be one example of abusive behaviour but it would be a course of behaviour that was played out over a number of occasions That's helpful and I take your point regarding the multiple different types of incidents that occur You've talked at length about the three stage test in establishing the offence and you seem fairly satisfied that that's sufficient so I just wondered why the statutory defence of reasonable unless had been included The purpose behind that is to there may be the rare occasions where the reasonable unless can explain some of this behaviour and it's to make provision that on those occasions the statutory defence is available to them it will be for the courts to then determine whether it actually applies or not but it's to provide that safeguard that an accused can employ the statutory defence if they believe that they can explain that they act in a reasonable fashion at that particular point You don't think that the opportunity to do that would already exist in taking evidence when the courts considering a course of behaviour you think there is indeed a talk of it I'm very conscious that if we didn't have this provision people would say that there isn't a safeguard for an accused to be able to say that there was a reasonable reason as to why we acted in such a way I'm confident with the way in which we've framed the actual offence the way in which we've created the statutory defence that is available to an accused that we get the balance right it will of course be ultimately down to the courts to determine that when someone actually uses a statutory defence as to where they believe that it's appropriate and acceptable There's no concern from the Scottish Government whatsoever that the defence might be exploited by the accused in these type of cases particularly as another form of slowing things down or trying to intimidate or undermine the victim There's no evidence to suggest that it's the case and one of the provisions we've made within the legislation is to remove the ability of an accused to be able to break nos a victim in order to provide greater safeguards for victims It's also fair to say that our courts in terms of their performance in dealing with domestic abuse cases that they have by and large across the country met the 10-week target which they were set so these cases are being dealt with relatively quickly through our court but I'm not aware of any evidence that would suggest that by creating the statutory defence that we are going to slow down the process Of course I would imagine any accused who's in many cases accused will want to put forward their own defence anyway whether it's using the statutory defence it's in this or not which will be considered by the courts and determined by the courts Okay, thank you John, then Mary This issue's been touched on cabinet secretary if I might revisit it It's on the back of what are clearly raised expectations about what this can deliver I think this is going to be quite challenging for the courts to interpret You talked about the training that would go into this legislation where it to pass and we'll know that obviously the complainer will be informed by any information campaign will have the support of of some of the agencies Police Scotland are going to do training in any case of their specialist department Crown Office Procurator, Fiscal Service and their specialist unit there judicial training is always seemed to be a challenge can you guarantee that anyone deliberating on this will have specific training on these issues Well part of the induction process for someone coming in to become a sentencer is the domestic abuse is part of the induction program which they then go through The rules around the continued training of sentencers is a matter that is overseen by the Lord President through the judicial institute which is headed up by Alistair Duff They make available ongoing training for sentencers but it is down to individual sentencers in determining what elements of training they want to pick up on so not all of that training is face-to-face classroom type training a lot of it can be provided online any of a suite of online training provisions within their system but the ongoing training of sentencers is a matter for individual individuals themselves and is overseen by the Lord President I take no reassurance on that when the limitation of childhood abuse which we dealt with recently we were aware of a provision where discretion could be exercised to waive the time limit and it had only happened once in 40 years the judges are still seen as being very socially conservative I think there needs to be some form of compulsion associated with this or and the next questioner is going to come on to a roll out of domestic abuse course there is about having all the issues come together the criminal and the civil as well and have all the organisations come together there are still some very intemperate comments coming out of judges some wholly unacceptable last year about domestic issues well there's a couple of different issues in there one is I'm if you make it compulsory training on domestic abuse there are no doubt there will be others to say but there should also be compulsory training on XYZ as well so there is an element about from my point of view recognising the independence of the judiciary and they need to make sure that they have appropriate training available to them the institute provides that opportunity oversight is by the Lord President but I'm conscious that if we get into making it a requirement to be trained in a particular type of criminal offence in this particular offence there are others who would say but they also need other mandatory training on XYZ now I'm open to whether there is a need for further mandatory training at various points in a sentences career to refresh their training however I'm very conscious of the need to make sure that the Government isn't directing that but I suspect that the member and the committee may wish to explore that with the institute and also with the Lord President about where there should be a particular point when a refresh training has to take place for individual sentences but I'm conscious that if you start to specifically say that you must do mandatory training on X then there will be those who will say that they've also got to provide mandatory training on all of these other areas as well can I turn to the issue that you mentioned about domestic abuse courts now we have domestic abuse courts in a number of areas for example in the Highlands the way in which the Sheriff's principle tries to operate the domestic abuse court arrangements in Inverness is to try and cluster cases together is that at times there are insufficient number of cases coming to have a standalone domestic abuse court on an on-going basis so when I was recently in Inverness Cabinet Secretary, if I can interrupt though but the clustering is a domestic abuse court if you're doing it that way there's not this perception people have it's a building it is about the administrative arrangements to support the process you've jumped ahead to what I'm getting to what they would say is that that is a domestic abuse court taking place what they do is they cluster the cases together enough cases to have a domestic abuse court sitting on an on-going basis so that's what they try to do in some of the rural areas to try and help to bring these cases together and Sheriff's principles are very sensitive to trying to make sure that happens as and when they can make those arrangements but I do think that there is a line around government specifying the training for sentences and that's not to say that I don't recognise the point that you're making about the value of having sentences properly trained in considering issues around domestic abuse but I think the decisions on how that should be taken forward is a matter that should be looked at by the institute and also by the Lord President who's got responsibility for oversight of training of our sentences okay is there any plans in conjunction with that to roll out domestic abuse courts or the principle of clustering? Sheriff's principles are doing that just now in different parts of the country is it where they don't have a sufficient number of cases that present on an on-going basis is that they are seeking to cluster cases together so that they can have for a day or two day or three day period they can have a range of domestic abuse cases at another point in order to try and plan the services that are required around those particular cases so in that sense there are more domestic abuse cases taking place but in some areas they are just not taking place on an on-going basis because they don't have the volume of cases to justify sitting on an on-going basis and civil deliberations about these cases are part of the clustering are they or is that stand alone? The civil matter relating to it and how they manage those issues Okay, thank you very much Can I just ask you about contact cabinet secretary because we heard about two issues with contact while we were taking evidence and they are completely different one is where a child is used by a parent who is the abuser to continue coercive or controlling behaviour another is where a child is denied contact with a parent who has been abused and is no longer resident in the home and the disruption to the contact is used to continue the abuse Are you aware of these issues and do you feel that this bill adequately tackles those two issues? Well this bill is not intended to tackle these issues I think that's the first thing to recognise in the bill it was never intended to tackle these issues I'm aware of the concerns that have been raised about how the civil courts can process some of these issues around child contact and that's why we've begun the process of reviewing the carrier of legislation that deals with this which is part 1 of the Children's Scotland Act 1995 I understand we've recently officially written to key stakeholders such as women's age in order to obtain their views on this issue and we intend to have a public consultation on the review of section part 1 of the 1995 act which relates to our family justice modernisation strategy which is due to start early next year so it's an area we're aware of but this bill is not intended to address those issues but it's part of the family modernisation strategy we intend to have a consultation on looking at how we can address some of the issues of concern around this area That's very helpful, thank you Cabinet Secretary, you've touched on training for sentences but some of the written submissions all include some comments on early intervention and prevention of re-offending if I could turn to the prevention maybe first the professionals at the NSPCC expert forum were clear that perpetrator programmes and services are often working with people long after they invent endeavouring to address behaviours that become entrenched over many years meanwhile during last week's meeting witnesses from SACRO indicated that the provision of rehabilitation programmes for perpetrators of domestic abuse might be patchy Are you satisfied there is across the country sufficient provision of rehabilitation programmes for people convicted of domestic abuse? There's a range of programmes available whether it be someone who gets a community payback or on the programme that they can then be engaged in addressing their offending behaviour we also have the Caledonian programme which we operate in a number of areas we've provided some additional funding to the Caledonian programme to look at how we could potentially roll that out into other parts of the country and do that effectively which works with perpetrators over an extended period of time if I recall correctly for about two years it's an extensive research based approach to working with perpetrators of domestic abuse we have that in a number of areas at the present moment and we are looking to see whether that can be rolled out in other areas and we've already commissioned work in order to look at how we could achieve that and how that would be taken forward but there are other programmes which are available through those who if they receive a community payback order through criminal justice social work to address their offending behaviour so you're confident that these two things taken together should provide sufficient rehab programmes? Would we want to do more? Of course we would always want to do more Will people say that we should do more? I'm confident that we have a broad spread across the country what we need to do is to make sure that the programmes which are being operated are effective and that they have a good evidence base in their effectiveness to work with offenders and addressing their offending behaviour and the Caledonian programme which is built up over a number of years now and that's why we've commissioned a specific piece of work to look at how we can roll that out into other parts of the country and that piece of work, if I recall correctly, is due to report possibly later this year which will then inform how we can look at it being arranged look at it being rolled out across other parts of the country Okay, that's helpful Turning to the intervention again the NSPCC said that endeavouring to address behaviours that have become entrenched over many many years is important early intervention to address coercive controlling behaviour gender based violence with young people is critical and we would hugely welcome a commitment to funding appropriate prevention and early intervention programmes for young people with problematic behaviour in relation to gender based violence What is the Scottish Government doing to ensure that early intervention including voluntary programmes are available to help domestic abuse? The first thing I should say is that this bill is not intended to actually deal with this particular issue as such, it's about creating a new offence The equally safe strategy is the strategy which the Government has set out and how it will tackle gender based violence as a whole course of work that's taken forward that's led on by my colleague Angela Constance in setting out the types of programmes that are put in place to tackle gender based violence so it's about awareness programmes in tackling in making sure that people have respective relationships so for example from a justice specific perspective although it's not specific to equally safe strategy the stuff that we do around mentors in violence prevention is about making sure that young people have got respectful relationships that they are addressing behaviour that's inappropriate within their own school environment we now have that across most of the local authorities in Scotland where they have sought to participate in the programme but the strategy that tackles gender based violence is the equally safe strategy that sets out the range of work that's taken forward by Government and there is the implementation group that has a range of different stakeholders on the various strands of work that come from the strategy I think really this is a reason to a large extent from the Scottish Police Federation's written response where they said just as a general observation the fact that unlike other criminal other crime the policy approach domestic abuse is geared almost exclusively towards punishment of various variants with a diversionary and educational activities and with other crimes so they were simply asking with a long term strategy that seems to build on prosecutatory activity is likely to bring about the attitude and changes necessary to eradicate domestic abuse so I suppose they are looking just for some hint and cognisance within the bill that the two go hand in hand to eradicate this pretty vexing and horrific offence. I think we're confused on two different things here. There's an issue around prevention programmes and tackling gender-based violence that's what the equally safe strategy is about and it sets out a course of work that will be taken forward by Government working with other agencies to tackle gender-based violence. The other issue I think you're touching upon there is prosecution policy and the policy of prosecution of offences which is a different matter and that's a matter for the Lord Advocate to determine how cases which relate to domestic violence are then dealt with by prosecutors. Do they put it to the court or do they offer an alternative a diversion from prosecution and I'm conscious that there are some who have said that they believe that there are cases that are presently going to the courts that are dealt with by another means on domestic violence matters. However, the decision around that policy area would be a matter for the Lord Advocate to determine whether there was going to be any change in prosecution policies. I think that we're talking about two different issues here although they are related in some way. I'm curious. Are you suggesting that there should be a change in prosecution policy and that there should be cases that are presently being referred to the courts that you don't believe should be referred to the courts? No, I'm just picking up on their comments that if this was too rigidly applied almost like you weren't looking at any other option which might have been more effective in individual circumstances because this is all about the individual circumstances. That was quite clear from some of the evidence. An in-comment in one circumstance is exactly that. Harmless in another circumstance is really threatening and a classic example of coercive behaviour. It's just, I suppose, helpful to tease out that this is very welcome legislation but it should always be looked at within the context. Is there a better way to deal with this? Have we got the circumstances absolutely that absolutely take the box for what the kind of behaviour this is supposed to address and you've very rightly said it's a prosecutorial decision and for the judge at the end of the day to decide? There's absolutely no doubt that the way in which the police now deal with domestic abuse over the course of the last 20 years has changed dramatically. I can remember when I was in the Justice Committee in the first session of this Parliament taking evidence from the police and that's what nearly 17 to 18 years ago now where the police at that stage still considered some aspects around domestic abuses to be private matters. You've never seen that nowadays. There's also been an issue about how prosecutors have taken these cases before the courts and how prosecutors are taking more of these cases to the courts largely because more are actually being reported to them. There is a suggestion that some people have is that they should have more flexibility in how they determine which cases should go before the courts and which should actually have an alternative. If the committee are suggesting that if Parliament is to support this legislation that our prosecutors should reflect on their existing prosecutional policy in these matters that would be for a matter for the committee to suggest but in determining where it should be happened that would be a matter for the Lord Advocate and for the Lord Advocate to consider once any new piece of legislation was in place. The bill doesn't deal with that and I'm not aware of any plans at the present moment for prosecutors to change their policy to make abuse matters but it would be for the committee to reflect the evidence that it's received and where they believe that there is a need to reconsider the present prosecutorial arrangements for dealing with these cases and where there needs to be a change in that. At this stage I'm not aware of any plans for the Crown Office to do that. I suppose in the Crown Procurator of Fiscal Service you'll know the concern about just how rigidly or robust absolutely but just how rigidly so I think it was good to tease that out. Can I finally ask you that the Finance and Constitution Committee has provided us with a summary of the evidence submitted on the bill's financial memorandum. It indicates that a number of submissions highlighted that it is a relatively high level of uncertainty in terms of providing the exact estimates of the cost of introducing the proposed offence What reassurance therefore can the Cabinet Secretary provide that adequate resources will be made available to support the effect of implementation of the bill? As is always the case with any new offence that has been introduced it can be difficult to quantify the exact financial implications that it will actually have so what we've tried to do is to look at what we consider to be the most reasonable financial consequences which will come from the legislation. For example, we've used a central estimate of 6 per cent which is based on the impact that we know from example in England and Wales around the impact that the legislation has had there so that the financial memorandum goes from possibly 2 per cent up to 10 per cent so we've sought that 6 per cent to try and give us a broad figure of the financial implications relating to it but of course this is a piece of legislation which has approved by-partiment will be taken forward in stages our intention would be that the first elements of it would be introduced in 2018-19 and then the remaining elements of it would be introduced in the 1920 time frame and what we will do is we will look at refining that financial information and get closer to its implementation and to look at what financial support is necessary to make sure that the legislation has been effectively resourced and implemented. There are no other questions from members so that concludes the oral evidence station on the bill and the committee will consider the draft stage 1 report in September so can I thank the cabinet secretary very much and his officials for attending. We now move into private session our next meeting will be Tuesday 5 September 2017.