 Good morning and I welcome everyone to the 8th meeting of the Justice Committee in 2016 and I can ask everyone to switch off mobile phones and other electronic devices as they interview with broadcasting, even when they are put in silent. No apologies have been received. I turn to item 1, Police Scotland. It is the first item today and it is an evidence session of Police Scotland's internal communications and on its policies and procedures in relation to the protection of staff who report wrongdoing of moral practice within the organisation. That is the topic. That is the subject for today. The session is intended to build on the committee's recent evidence gathering on the interception of communications while moving the debate on to relating matters of public interest concerning the work of Police Scotland. I welcome the meeting for the very first time and possibly the last time in this session. No, you are covering for the subcommittee in policing. It is a penultimate appearance of Chief Constable Philip Gormley and of Manningham, chair of the SPA. You have been here before and John Foley, the SPA's chief executive, you have been under long-term service with us, I think, seeing you many times. When questions are asked by a member directly to you, your microphone will come on automatically. Otherwise, if you indicate to me that you wish to respond, I will call you and your light will come on, so do not bother pressing anything. Straight to questions, please. I have a question followed by Margaret. I just wanted to have some clarification. I cannot understand why, for the life of me, we have not got a whistle-blowing policy, but instead we have decided to write it differently than other organisations, which are really specified by whistle-blowing policies that should be about whistle-blowing and not being about disclosure, for example. I am happy to do that. Thank you. We have a range of what is called standard operating procedures and, in preparation for this, clearly I have had a look at them. I can list them. They all deal with support to staff in a range of circumstances, including when they are raising issues of concern or conscience, and they are all fit for purpose. The list is standard operating procedures around attendance management, business interests, complaints about the police, a disciplinary standing operating procedure, equality diversity and dignity, equality impact assessment, gifts, gratuities, hospitality and sponsorship, grievances, notifiable associations, police service of Scotland conduct regulations, stress management, suspension from duty, transgender people in employment and trauma risk management. We have a range of SOPs that touch on or support staff officers who have issues in terms of their own personal position or issues of cause and concern. What I have done in terms of looking at this is think through, while those in themselves are perfectly respectable and fit for purpose in the large part, do they add up in totality to a position where we are developing a culture that enables staff to step forward with confidence? What I have asked in commission is a review that looks at and understands the culture within the service and the key issues and dilemmas faced by staff and looks outside of our organisation at best practice, whether that is international in the business world, law enforcement or third sector. What I have found particularly in the national crime agency, and I think that there are clear parallels here, is that we are asking staff to operate in an increasingly complex environment. Some of the threats that they are now being asked to deal with take them into slightly different spaces, particularly around privacy and issues of conscience and concern. What I want is, in fairly quick time, to understand whether there is some learning that we can incorporate into our approach. There are other police services, and the most obvious ones to look at would probably be the Metropolitan Police in London, because there is a similarity of scale and complexity. Police services in Northern Ireland are working in a very complicated environment. Post-snowdom, there are issues around, as we ask staff to work in difficult and sensitive environments, how do they ventilate their views, how do they make us aware. The final piece for me is that there must be some learning, for instance, from the health service. If you look at the issues that they have confronted around staff being able to make known their views, their concerns around policy practice procedures, then I think that we can probably look at that. Where I want to get to is not just a list of what are very sensible standard operating procedures, but does it add up to an approach that develops a culture where staff are prepared to come forward and feel supported and confident in doing so? Where does that lead us to? I will wait to see what comes back, but I want us to be best in class around developing that culture. I do not rule out developing an ethics committee within the organisation, ethics councillors. There are other approaches elsewhere, whereas we move into this more complicated world. I think that it is not simply about distinct SOPs that deal with specific issues. They are part of it. What is that overarching culture in the organisation? Does it add up to the environment where staff have that ability to speak up with confidence? What can we learn from elsewhere? One thing we could have learned from elsewhere is, first of all, to answer the question, and second of all, maybe to answer the question about whistleblowing. In all your answer, and thanks very much for your comprehensive answer, I did not hear the word whistleblowing. I do not understand why an organisation will want to encourage whistleblowing. I am not using the word whistleblowing in its language. I am very happy to use the word whistleblowing. There are some issues around that as a term. Some people take exception to that as a description. I think that the real issue here for me is about how do we enable staff who have issues of conscience or concern around law, practice or procedure to raise those in the organisation? As the chief council, I want to understand that. I want to know whether there are unintended consequences of approaches that we are taking around issues. There may be issues around how performance management is implemented at a middle or more junior level of management. If staff feel under pressure or are not clear about what is being expected of them or have issues, I want to hear about it. What I am saying is that I am commissioning a comprehensive piece of work to look outside of the organisation and how do we support staff who want to raise issues of concern, whistleblowing or use of anacular? What do we then do with that information? How do we develop our service? How do we develop the sort of internal culture that is about continuous improvement? There are some really good pieces of practice in Police Scotland. We have been recognised by Stonewall as the top 100 employees in terms of our responses to people with transgender, transsexual gay issues. There are some really good pieces of work within our organisation. What I want us to be is best in class. All of those policy SOPs that I have outlined provide elements of support. My question to the organisation and therefore myself is, do they add up in totalities of the sort of position that we need to adopt? I want to look externally around what is the best possible to use your phrase whistleblowing policy, but it is not just about the policy. It is about how we then use the information coming back from staff, how we hear their voice, how we reflect on the ethical dilemmas and the legal challenges that they are confronting to make sure that we provide the best possible service we can to the public. Everybody does the SPA. It is about encouraging whistleblowing and we heard from the chief constable talking about what is happening afterwards once people have made their commitment to be whistleblower. Other SPAs have got any views on how the policy should concentrate on encouraging whistleblowing. I think that the authority conducted an internal audit of whistleblowing policies in the first half of 2015. I think that there were three issues that came out of that that I think need to be further looked at. One is the policy itself. Within the police service it is referred to as integrity matters. To all intents and purposes, the audit found that this is a whistleblowing policy by any other name. There has been some resistance from Police Scotland in terms of using that phrase, whistleblowing, and the chief constable can comment on that. To all intents and purposes, if you put whistleblowing at the top and you read it, you would see that it was a normal policy that you would see in most walks of life. One is that it is more narrowly drawn into professional standards and criminal acts than you would normally expect in a more general whistleblowing policy. The second thing is that there were some issues about how it has been communicated and rolled out and the usage of it as a policy. I think that it could be better embedded. In fact, we saw in the staff survey issues about internal communication with staff, and I think that that could be improved on. As a small example, there are many posters. If you walk into any police office, you will see the integrity matters posters up on the wall, so it is encouraging people to do it, but they do not have the phone number or it is a simple thing that should not happen. The third area where there is a weakness is that it does not actually deal with complaints or whistleblowing that might arise as a result of the work of professional standards or the counter-corruption unit. It is unclear whether it is not specified as to whether you have a complaint against the people who would conduct the investigations. How do you report that? The only alternative to going through the channels that are specified is to go to your staff association or to crime stoppers. Potentially, the SPA should have an identifiable role in that in terms of complaints of that nature or whistleblowing of that nature. That is the policy, but can you tell us the number of disclosures that have occurred since the inception of Police Scotland? I do not have that information. I am not sure that I can answer that specific question about the total number since Police Scotland, but I can say in response to the points that were made by the chair around integrity matters that were introduced in March last year and superseded a position called safe call, as I understand it. There have been 133 referrals into integrity matters from members of staff. What are the referrals for integrity matters? What are they about? I do not have precise examples, but the broad sense of them, there were 29 around issues around potential criminality and 104 more general ones. All of whistleblowing type or general comments? I have not reviewed all 133 of them, as I am sure you would understand, but they are issues that staff have felt that they wanted to bring to the attention of the organisation, say 104 of our general concerns or non-criminal concerns and 29 of our criminal. Some of those referrals have led to misconduct proceedings and some have led to reports going to the crown. Is there a broad mixture in there of serious and not so serious issues? Have you got some feedback on how the people who have done whistleblowing have been protected after being made with disclosure? I have no direct evidence of that. What I clearly have is a relationship with the unions and the police staff associations. There have been no concerns brought to my notice in the past two months in terms of the issues around how people have felt supported, but that is the broader point that I am making at the start. We have got some good initiatives, some good SOPs, integrity matters and the others that I went through with you. As we go forward, I need to understand how we have got the best possible position in the organisation to support staff to enable them to come forward. There are a range of routes through that. There are line managers, integrity matters, staff associations and unions. There is third party reporting. Part of the issue around integrity matters is building on some of the issues that the chairman has made in terms of dealing with the totality of concerns. I need to reassure myself that we are in that position. Can we introduce a third party element to it so that that may or may not involve the police authority or a third party who staff, if they really are in a position where they do not trust the organisation to the extent that they really do not feel that they can connect with the organisation around these matters that they do connect elsewhere? We are able to respond to those issues. That is the organisation that I want to lead where staff feel engaged, supported and confident. It is fair to the individuals and the individuals about whom issues are being raised or systems and processes in which we are not potentially getting it right. I will let somebody else come in and you can come back to him because you have had quite a whack. The introduction of third parties is interesting because many of us on the committee and no doubt members will have in their inbox messages from officers who feel that if they open their mouth they are victimised. They either have opened their mouth to think that they are alleging that they are victimised or they will not do it because they think that they will get victimised within the organisation. I am sure that you will be aware of that. How far down the road is this idea of a third party to make people feel secure? After you say something, you might not get promoted, things will happen in the office, you will get moved, things like that. It is subtle and not so subtle. I agree, and it is difficult to deal with anecdotes around that. There will be staff who feel like that and other individuals who clearly have issues because they are potentially being managed in a way that they do not think is appropriate, but we may do so. There is a broad range within that. I am sorry, but could you repeat the third party question? It was back to your third party, but that is something external from the police who have listed a whole list of things. I suspect that there will be officers out there who say, so be it, but I am not going to say anything because I have seen what happens to somebody else and whether it is true or not, it is there. I am sure that we have had this in our inboxes, other members of the committee have had, such as briefings and stories from serving officers who are not happy and will not say anything because they feel that there will be some comeback for them. Either they will get promoted or, in fact, they will find themselves at the end of some complaint aimed at them. That can happen in our big organisation. I am asking about your third party, which is an interesting thing that you are looking at. I mean what I am saying is that that is an area that I want to look at. What I am saying is that, in the eight weeks that I have been here, I have seen some good practice, I have seen some areas where I think that we need to reassure ourselves that we are in the best possible position as an organisation. We should aspire, and I do, to be the leading police service in the UK. That involves making sure that staff are confident and feel supported. Whether it is a reality or their perception, if members of staff are feeling like that with justification, then there is a real issue. I recognise that, which is why I have said what I have said. I am not trying to present that this organisation is in the perfect place. I have worked in—this is the sixth police force or law enforcement agency that I have worked in—some of whom have gone through enormous amounts of upheaval and change. That does cause issues for staff, but we need to make sure that we develop the best possible response, and that is what I am hoping to do. Margaret Sirwitz? It is still an issue of whistleblowing. To tease out the unease with the term, because it is a term that resonates with the public and they tend to think that it ensures transparency in an organisation. My understanding is that it is sometimes referred to as making a disclosure of blowing the whistle and that to be uncovered by whistleblowing law, a worker who makes a disclosure or whistleblows must believe two things. One, that they are acting in the public interest, and secondly, that the worker must reasonably believe that the disclosure tends to show past, present, or likely future wrongdoing. Then there are various categories. If we were to establish that as the grounds for the term whistleblowing, could we accept that we are quite happy with the term and it can be used? I would not want to overstate this at all. All I am aware of is that there are a range of views around the term whistleblowing. It does not offend me, but some people would say that it has some pejorative context around it. The real issue is that staff who feel that way are able to exercise their voice to be heard, to feel safe, to feel secure and to be confident that the organisation, when it is appropriate, will act on that. That is what I want to be in a position to do. If I could now turn to the SPA Audit and Risk Committee and the SPA's review— Before you get to that, are you going back to whistleblowing? Is that what that was about? Is it still on that? Is it still on that? It is whistleblowing because I took a particular interest in this in 2014, having had a complaint from an officer during the Commonwealth Games, who was very reluctant to express his concerns. At that time, I wrote to the cabinet secretary and got some very useful information. It was the former cabinet secretary. I was somewhat surprised that we are now saying that we did not really have a policy in whistleblowing when he told me that it has been in place. I think that safe call limited was mentioned today. He was certainly of the opinion that that was a function or a process in place where police officers could raise their concerns. That was followed up with an FOI from my office. I can tell you today—I am surprised that it has not come out in the SPA's review—that, in 2013, there were 15 referrals to Police Scotland through that. It is run in the north-east of England, but the ones referring to Police Scotland, that affected Police Scotland, in 2015, were 15 referrals. 12 of those cases were concluded. In 2014, there were 18 referrals, with 10 cases concluded. It rather begs the question if we are now looking at 133, that is a good news story. I would rather like to know why the SPA had not gone back in its review and done something as elementary as looking at the data saying, where are we now and where will we progress to? Mr Foley looks as if he wants to respond to that. Yes, indeed, your figures are correct. At that time, Police Scotland did operate the system that was known as safe call, which was whistleblowing effectively. The numbers were low, as you suggest, and the reason for the review of safe call and the implementation of integrity matters was to improve the opportunities that people had to make referrals through integrity matters, so to encourage people to make more contact over issues that presented themselves in Police Scotland. That is what happened. The integrity matters papers were presented and discussed at the SPA board and certainly at the Audit and Risk Committee, which has been at Audit and Risk Committee on a number of occasions. Most recently, as of January of this year, Police Scotland took away some actions to review some elements of it and then come back again to Audit and Risk. The point that I am making is that I have the figures here. You have been asked for them just a few minutes ago and you seemed unable to produce them. I did not have the exact figures with me, but the numbers when you say them are broadly in line with my recollection of what the numbers were. It would have been helpful if, in replying to that answer, you had said, I do not have them with me, but I certainly do have them. This is an important point. Yes, but you need to reprimand them, though. I think that the point is made. I think that the point is made, but you have made a good point. If we are getting a good analysis of where Police Scotland is falling down and where it is improving, it is important that we come to the committee with that information for the committee to make those decisions. I also want to ask how decisions and policy that affect personal operation policing are communicated to staff. This is on operational policy. Yes, but I want to go back. I have a couple of people who want to go in and whistle blowing. Before you, I have Gil, then I have Rod, and then we will move on to communications. Thank you very much. A couple of my colleagues have asked most of the question that I wanted to ask in the first place. I would suggest to the panel that we all know what whistle blowing means, and it would be a good idea in your review. I very much welcome that. It is a good idea that we use the term because everybody in public life knows exactly what it means, and then we can refer to it in that way. On the question that Margaret Mitchell asked, I wonder if you have those figures that you could, maybe not at the present time, if you could provide those figures that would give us a good steer, put some flesh in the bones to know what we are talking about. At the same time, it is always good to know if progress has been made. I am sure that you do not have those figures at this time, but I wonder if there are any historical figures in relation to what happened in the previous model of the eight boards that we had in place. If you had those figures so that we could compare, is things getting better, or is it just the same as before? We will provide the figures that we have got so that there are exact numbers for the record. On the question that is going back beyond the creation of Police Scotland, in any data that we have been looking at, it has been challenging in terms of getting numbers from the original eight legacy forces. We will attempt to do that and see if there is some trend information that we can get. However, as I say, that has proved challenging on previous occasions. I think that it is encouraging that we are seeing a greater number of referrals. I have to say, though, that, out of a workforce of 22,000, I am not sure that 130 necessarily reflects success. I think that we should be seeing and encouraging more response through the whistleblowing lines, rather than if we get to a situation in which we have a large number that is perhaps not worthy of pursuing, because they are the wrong ones. Sometimes you find that, for example, whistleblowing lines can be used for HR grievances, rather than necessarily for what they are intended for. However, we should be seeing a higher number of disclosures through that and then being able to work that through and monitoring the trends. As I say, it is encouraging that it has gone up. However, I am still rather cautious that 130 out of that size of a workforce is what we should be seeing. What would be useful in writing to the committee would be to tell us the breakdown. I have taken on 29 that are related to criminality, but the others were of, you said, age general nature. It is quite useful in knowing what the grievances are that are referred if you could do that. Obviously, it would be anonymised, but the data would be useful. I think that the committee would appreciate that. I am looking around for some support, but then I am not getting any. Yes, I am. That is good. Rodi Cymru. My point is just a small point of detail, too. Police Scotland accepted 1 April 2013. From what I have heard and presumed that a safe call was still going on, it would be useful to know when a safe call ended and integrity in that is started. Have you heard that this morning in the answer that? Again, on the briefing that I have been given, the previous system safe call was replaced by integrity matters, which is effectively the whistleblowing policy and process on 2 March 2015. Just under a year, and as has already been alluded to, since that point, 133 in total, 29 in some form of criminality and 104 in more general. Absolutely, I would be prepared to provide a more detailed breakdown of the sorts of issues that are being raised, because those are the sorts of issues that I am interested in. This is about organisational learning and development and us understanding what is concerning officers, how they are making their voices heard and how we respond when appropriate. I would like to ask Mr Gormley about how decisions on policy, which affect operational policing, are communicated to staff? Certainly. I have got a flow chart that I can take people through, forgive me. I would say that a lot of it would depend on the complexity of the issue. If there is a major legislative change that required the whole of the workforce to be reskilled or retrained, and there are examples of that, then it clearly is a very different process from a more discreet changing guidance where we have a much more limited impact on staff. There is a broad range from a very discreet change of policy or procedure around perhaps a very technical element of policing through to a very generic requirement to retrain officers in a fundamental change in the legal process. In essence, we will be notified of a proposal around either updated legislation or guidance. That would then be considered by the Strategic Leadership Board, which is myself and senior chief officers. We would then identify an individual who would respond to that, and it would normally be relevant to their portfolio responsibilities. As we presently sit here, if it was fundamentally going to affect officers in local policing, that would go to Rose Fitzpatrick. If it was in the crime area, it would go to Ian and Livingston. What they would be responsible for then is identifying what are the organisational implications. Who do we need to engage with internally and externally to understand the impact of that? If we were going to change our response investigatively or in a procedural way, it might have knock-on implications for other agencies and stakeholders. That could be the crown, it could be victim support, it could be the third sector. There are a range of people that we would need to understand what is the impact of our proposed response to that change in guidance. I have been involved historically around a lot of mental health issues, where we develop training guidance for staff in terms of how to respond to people in crisis. We are not mental health professionals, but there are mental health professionals, again, both third sector and statutory, helping us to develop procedure and policy and responses to people in crisis. From that, we will then develop guidance and training material. I go back to the point that it depends on how many people that would affect, and it also would depend on the type of change. If it was a very narrow group of individuals, that could probably have been done on face-to-face briefings. If it is a fairly transactional piece of legislation that does not require a fundamental response, there are approaches around e-learning and distance learning that may or may not be appropriate. We can set up intranet, mini sites and other officers to train themselves around this, but a lot of it depends on what the issue is. The issue is then of forced memoranda, standard operating procedures and internal guidance. Let's take the big issue. We will go back to the issue of armed police and the issue of stopping search, which was raised. Instructions were then given out to officers about how to behave in those circumstances, what to do and what not to do, but some of them still did it because apparently the communications did not get through. We are not just talking about small things, but really big issues that were causing Police Scotland a lot of trouble. That is the question that we are really asking about, because one of the issues that we had from the representatives of the officers was that there is so much that comes through in e-mails such as a plethora of information that is lost in amongst all this, serious important bits of communication. How are you addressing that? Because busy officers do not have time to read every e-mail that comes through from HQ. No, I do not expect some of those issues to be dealt with by e-mail from headquarters genuinely. I think that we need to recognise where we have come from and where we need to get to. The amount of work required in the first three years of the early stages of Police Scotland to bring together an enormous range of approaches, policy, procedure, practice— We have lived that with Police Scotland for the past three years, so I am just getting at those are the big issues about communication that my colleagues are asking about Margaret. If I could give an example, it was Police Scotland's crime and justice division policy to issue on-the-spot warnings for the possession of cannabis rather than reporting to the Crown and Procurator Biscule Service. Obviously, that was before you were in the police, but when I visited local commanders, it was clear that they were aware of the policy and, worse still, they were just embarking on an operation to crack down on drugs. I am not, for one moment, challenging that as a description of what happened. I simply do not know, but that is not where we need to be. One of the issues that is significant for us going forward is understanding how national policy decisions impact locally. As I have gone around the country talking to staff and officers and local authority civic leaders, that is one of the issues not specifically around trainants coming out but around us being able to hear local views about the impact of national decisions. Can I stop you there? That was a decision by Police Scotland's criminal justice division. When I queried it with some of the senior management, they said that the real motivation for that was the Crown and Procurator Biscule Service was just so overwhelmed that it was faster to do that. I genuinely cannot comment on that. I am happy to go on. The point that I was perhaps clumsily making was in response to the convener's issue around communication and national decisions around things like stop-search, arming of officers and how they are deployed. Our ability to understand how that lands locally has impact on some very diverse communities because what people would regard as normal and acceptable in Glasgow and Edinburgh will be different in the Highlands and Islands. That has been made very clear to me. That is my point. It was a national decision in terms of the arming of officers in Scotland. Where is the arming? It was a being in public places. There was a big stushy, which I am sure that you are aware of. Police Scotland said that this had been remedied. Everybody knew where they were, but they did not. That is a big issue that should have been something that all officers were aware of, including the issues of stop-and-search, the so-called voluntary stop-and-search. However, we still had it happening, despite a couple of colleagues here having a good go at it for a very long time. It is to do with communication, so we are back to this. I think that we are probably violently agreeing. It is nothing to do with local issues such as whether it is happening in the gas market. I think that the broader point around communications is—and the point that I am attempting to make not very well—is that for us to understand how, when we make local decisions around national functions, we understand how that will affect local communities who have a very different demand from policing. The culture, practice and relevance of the policing approach in Glasgow will be very different from Highlands and Islands. Let me stop you there. I perfectly understand the difference between a rami in the gas market and a rami in a wee village and what people would expect made in the gas market at 2 o'clock on a Sunday morning after the various clubs. That is not what we are talking about. We are talking about going back to the issue of armed police being in the supermarket or whatever out in public and also stopping search. That issue of the policy and the way that it was used would—wherever you were—was to be sorted. There is nothing about tweaking it for different areas, and that did not get through to officers—certain officers on the beat. That is the bit about communicating. We understand that stuff about different policing cultures in different areas. Are those the issues about communicating? Is that sorted now? A big decision like that is sorted so that we do not have it happening again. I will be foolish to sit here and give a 100 per cent guarantee because in organisational life with 23,000 to 3,000 people and the complexity of what we deal with, will we make mistakes in the future? I suspect that we probably will. Is our ambition to make sure that when we are introducing new pieces of legislation or significant changes of working practice that we have a thought-through process that ensures that we identify a lead for this, we identify the right means of communication, we ensure that staff have the right guidance and training and understand what they are going to do. Yes, we do have a policy and process in relation to that. I hope that the examples that we have given have been helpful. I know that you will go back and look at them and see where communication can be improved. Some of the problems that have happened for Police Scotland, frankly, were of their own making. I have to say that it is historic now that you are there, but they were of their own making. That is what we are asking to be addressed. So that does not happen again. I have now got a lien, please. Welcome to the new chief constable. Maybe he wishes he did not take the job by now. I am very pleased that I did. I want to look a little bit around— We are running out of time. I know that the HMSEIS is conducting an inquiry into the breach of the acquisition and disclosure of communications data code of practice, but we have been told that that was due to an oversight that meant that the changes in the code did not get to the single point of contact in the counter-corruption unit. Have you been appraised as to why that is and are you confident that there are procedures in place now to make sure that this type of thing does not either, in specific to this particular type of information or, indeed, other important decisions that this type of oversight will not happen again? Yes, I am. I mean, I have been briefed on the circumstances around that breach. You have clearly heard evidence from ACC Uniclison and, before him, DCC Richardson, where we accept absolutely that mistakes and oversights were made. In terms of that specific set of issues, there is an action plan. We have responded to the recommendations emanating from the learning in that. I am confident around that set of issues that we are in a place where that will not be repeated. The HMICS will report back, I think, in the spring. Is their timeline clearly will reflect very carefully on those recommendations, and I will take those forward. We were advised that one officer did actually raise some concerns about the application, but somehow their concerns were not taken forward. Again, can we be confident that in the future that if an officer does raise concerns about a particular issue, the channels of communication are such that their concerns are taken seriously? My ambition is exactly that. Clearly, we have got two processes in train at the moment. One is the HMICS review, which will look at the circumstances of this case and come back with some observations and recommendations, which we, as an organisation, will clearly take seriously and act on. We have an IPT, an investigator in powers tribunal, which clearly is a quasi-judicial process. Again, there will be some judgments out of the back of that. At the end of that, I do not rule anything in or anything out in terms of what we then subsequently need to do as an organisation. There are actions that have been taken, a robust action plan that has been commented on favourably by IOCO in terms of our response to that set of circumstances. We have then got a broader review by the HMICS into the counter-corruption unit and the circumstances that led to this apparent breakdown of communication, stroke, misinterpretation, stroke and stakes. We have an IPT, which will come to a conclusion. At the end of that, there will be lessons to be learned maybe on an individual and on an organisational basis. You have my absolute commitment that we will respond to that. Yes, because we were, as conveners, reminding and we were advised that it had been reckless, so obviously we wouldn't want to see… That's the determination by the IPT. Was it just a mistake that was reckless? I am not disputing for one moment what IOCO said, not for one moment. Obviously this is something that I would imagine a future justice committee will not survive much longer, but I am sure that a future justice committee will be interested in returning to some of those issues once the reports have been published. You may be aware, I don't know whether the Scottish Police Federation has contacted you directly, but it has raised with the committee concerns about aspects of the counter-corruption unit. In particular, we are aware of members being ordered or invited to interviews that have a status that appears to sit outside criminal procedure or misconduct investigation. Has SPF raised any of those concerns directly, either with yourself as chief consul or with the SPA? Yes, the SPF has raised those concerns with us and it is a focal point of the HMICS investigation and review. Just to clarify in terms of your earlier question, HMICS is looking at the broader aspects of counter-corruption rather than the issues that IOCO raised, because that is IOCO's role in terms of that. There is a linkage between the two in terms of the overall operation of the unit and how those things may come up. There may be lessons to be learned around the IOCO issues that come out of the HMICS report, but their work is more focused on the issues that the SPF has raised with us. That is interesting, because we get the impression that there is a stand-alone policing unit that is developing its own particular culture. Obviously, I know that you will not be able to comment fully until the end of the year. Until we see the report, the field work is on-going at the moment, and until we see that report, we cannot really comment on what it is going to do. No, but you are not doing nothing while you are waiting for the report, surely. The report is important, but you are obviously a hope that Police Scotland and the SPU are doing something just now. I think that I will leave back the CCU to comment on the actions that are taking place just now. The review from the HMICS is critically important to us understanding whether those perceptions and observations of the federation have a basis. I am not saying whether they do or they don't, but I need to understand where the HMICS sees the issue. The federation has not directly raised that matter with me yet. I am sure that it will subsequent to this committee meeting. You are not really just waiting for this report, then you will do something. I am just trying to understand. There are a range of issues that have been raised— I know that there are. I am just trying to help the committee to forgive me. The range of issues that have been raised by IOCO by a broader view about the proportionality of how counter-corruption units nationally and locally operate will give us the basis to understand what is actually going on. I will respond to that review. This is what is happening. They are looking at the culture and the practice and the approach of the counter-corruption unit. If that independent review raises issues that support the description, we will act. Once you get this review, what is your time line—aspirational time line, if you like—in terms of the actions that you are going to take thereafter? It depends on what the recommendations are, very clearly. If they deliver this in the spring, I have no reason to suggest that they will not, but there could be a range of recommendations from—it needs to be a fundamental rethink in terms of the approach to actually this is in reasonable shape and between those two parameters is a life-theaded decision. If it required a fundamental shift in our approach or our response to these issues, that will take longer. It is very difficult until we see the recommendations to understand what the response needs to look like, but I will move as quickly as I can. Will you involve the various professional bodies in this as well, engage with them once this review is published, the likes of the SPF and so on? I need to understand what it is very difficult to speculate on. Absolutely, but in principle you will be engaging with— My in-principle position is always to engage with staff associations and the unions. That is my rebuttable presumption because that is good in leadership and that is good management. Those issues around communication, if we do not have federation, staff associations and other representative bodies helping us to shape and make the right decisions, they are unlikely to be the best decisions that could be made. Subject to the view that there may be some technical issues here that are outwith of the federation per view, what I would want is the federation, staff associations and the unions to have confidence in our response. That is the position that I want to get to, and that will involve consulting with them. I recollect that the SPF did not have the view that the counter-corruption unit was—I will put it in common—a lawn to itself. It operated to a limb and nobody really knew what it was doing. That did not put it in the bond terms. I do not agree with that characterisation. No, but it was that position. Mr Flandigan, what is the role of the SPA in all this when this report comes out? What is your remit? Do you have one here? Yes. It is the SPA that has commissioned the HMICS to do the review and the report will come to us. We will have a position to work on the recommendations coming with an action plan on Police Scotland to address the recommendations within an appropriate timescale. We have a central role in terms of the outcome of this review. Sir, is somebody else coming in on this? You finished? John Ewing is on this subject. Is this you? You are down on my list. You are. Off you go. The floor is yours. Okay. Thank you. Good morning, gentlemen. Firstly, well done on the review, chief constable. I think that that is welcome, that the systems are being looked at. It is a question, first and foremost, for the police authority. We know that the new systems changed in the second of March, and your reports were published in June 2015. Presumably, that was a report about the previous system. Kerali, have you missed a full answer to that one since I was not there at the time? No, that was actually a report on the current system at that point in time. The processes had changed on the second of March, and they were carrying out the review post that, so it was on the new system. There can't have been much time to gain an understanding with the experience of the new system in that turnaround, Mr Ford. Well, some of it was in relation to the actual operation of the new system, and some of it was a review of the documentation that had been produced as well. So, the new documentation came into effect on the second of March also, so there was a review carried out in relation to that. Okay, okay. Right. In relation to that, the report concluded that increased effectiveness of Police Scotland's SPA whistleblowing process within the wider CCU unit should be significant for increasing awareness for officers and staff. Key to the progress of whistleblowing or officers having confidence is the role of the CCU, as far as the authority is concerned. Yes. Okay, okay. I wonder in relation to that, chief constable. People might be surprised, and I know that you are inheriting a situation that when you are the gentleman who acts prior to your appointment, who isn't also the disciplinary authority, is aware of the serious accusations made by the Scottish Police Federation that you will await the outcome of a third party's report before acting. Do you know if Mr Richardson initiated anything on the basis of the comments made by the Federation that the CCU had scant regard for roles of fairness or proportionality, which, after all, they are supposed to be custodians of ensuring? I don't specifically know the answer to that question. What I would say is that in terms of what I think the question you're asking me is, and forgive me if I'm getting this wrong, is we need to review and understand whether there is anything in these allegations that is a strong word. I don't mean it in that sense in the issues that the Federation are raising with us. The way to do that is to get an independent review of the operation of the counter-corruption unit, and that is what the HMI-CS is doing, and that is what I need to understand as a response to it. That is the appropriate body to provide us with the information to understand whether we need to amend our approach and in what way. I am commending the role of an independent body, but you don't see any, if you like, line management issues connected with that pending the publication of a report, which, after all, might mean that malpractice has continued for several months prior to the publication of the report? I've seen no evidence or information to suggest to me that there's malpractice occurring. I will take a view when I get the report in terms of whether there are any line management issues. So did Police Scotland have a say in the terms of reference of the inspectorate report into this? We were asked to… The answer to that is yes. In my first week here, I was provided with a copy of the terms of reference by Mr Penman, and I had no comment to make. They looked for purpose from my point of view. Mr Flanagan, is it unlikely that authority will revisit the situation? My colleague Elaine Murray talked about, again, a high-profile instance where an officer expressed concerns about a senior officer expressed concerns. That was known to chief officers in Police Scotland. Police authority wouldn't be visiting that again prior to the publication of the report. If there was a specific complaint raised with us, then yes, we would, but at this stage I'm not aware of one. See, the challenge for elected representatives is that we do have contact, regular contact with police officers who are constituents. They know, quite appropriately in many instances, that action is taken on fairly flimsy evidence. If any report allegations are complained to me are reasonably inferred as the terms, a report must go to the fiscal. However, here we have very high-profile public hearing, if you like, where those serious accusations are made and we have to understand that we have just to wait several months before. The people who the public might look to, namely, the authority and the chief officer act on them. If there is a specific allegation that the federation on behalf of a member wants to make to me, then I will act on it, of course I will. I will take a view about whether it's appropriate, depending on what the nature of the complaint is and who is being complained about, as to whether that is appropriately investigated by our professional standards department, the CCU, Perk or an external third party. There are a range of responses to that. As I said here, I have not had that formal complaint from the federation or in terms of a specific set of allegations. If they had those concerns then I would ask them to come to me and raise them with me. The more general issue, which, as described by other members of the committee of an organisation within an organisation that is setting its own rules, I have seen nothing to support that broad characterisation. That is the issue that the HMICS will take a view on in terms of the operating context and the way in which the CCU discharged its duty. However, if the federation or members of the federation have specific complaints to make against officers of any rank in any part of the organisation, they need to make them to me and I will deal with it. In relation to the CCU, do you think that long term the appropriate recipients of complaints from officers puts the role, for instance, connected with HR or the professional standards department? In organisational life, there are a range of issues from people who are unhappy or do not understand what they are being asked to do, individual issues around grievance, so tensions between line managers and staff, which do not fall into conduct or discipline matters. It depends where on that spectrum of organisational issues you are. There is just good line management, there are grievance issues, there is then whistleblowing, which is more about concerns, not about an individual's treatment but a practice or a custom or a response that is regarded to be not in the public interest by the person raising that through to conduct, in terms of professional standards, through to high end corruption. Let's be clear, there is not a police service in the UK that does not need to have a very robust response to corruption. It is a live issue in every law enforcement agency, but what we need is a proportionate response. We should not be launching CCU investigations against inappropriate pieces of behaviour any more than we should attempt to be dealing with serious corruption through a informal line management conversation. It is about understanding what is the nature of the complaint, what is the position of the complainant in terms of their potential vulnerability in the organisation and what they need to supportively wrap around them as they go through a process, be it grievance, a conduct matter or a corruption allegation. I want to ask you a question in a slightly rambling way. I think that it is absolutely determined by the nature of the allegation. I think that people would understand that clear procedures would apply in criminal matters and in misconduct matters. I think that the issue is matters out with that. Will you confirm that a police officer who has the subject of the attention of the CCU can only be a witness, a suspect and an accused? They cannot have any other status. I suppose that that sounds instinctively right. A witness, a suspect, an accused or a complainant, might be the complainant. I am sorry, I am just trying to be just true. Yes, indeed. Yes, indeed. Indeed, indeed. Okay, thank you very much indeed. I will follow up on this business of cases referred to the Crown. Because, again, it may be anecdotal but certainly passing through my inbox, the cases where officers have been reported to the Crown and they have waited a considerable period of time to know whether or not they are going to be prosecuted. I would like to know the figures for that, because at the end of the day, how long have they been suspended in no-man's land? He or she is suspended in no-man's land. There is a cloud hanging over them. They are given paper jobs to do or something at work. I would like to know the length of time and how many proceed to criminal prosecution, because there is a whiff sometimes. I know no more than that. This is simply recounting what I am told, a whiff that is being used in a vengeful way sometimes, but somebody's face does not fit. It might then be referred to the Crown and life is well apart and everything like that. Nothing happens at the end of all that. I just put that to you, because you are probably aware of all this already. I would like to know the statistics and how long it takes for the Crown to decide whether to prosecute or not. Let's take those 29 cases. How many prosecutions then follow? I am very happy to provide that to the committee. I do not have those figures with me, but I share your concern around the impact on officers and on the public purse and on the service that we should provide to the public of having officers either restricted or suspended for very long periods. I have seen that throughout my career how damaging that can be for officers. Ultimately, some of whom have not been found to have committed the offences that they have been accused of. There is a range of issues here. I will happily get the figures for you in terms of that. That underlying thing may not always be the case, but sometimes it may be the case that it is a form of revenge. I would be very concerned about that. That is a very serious matter. It is indeed. I will take that seriously. There is a broad issue around public confidence in terms of how effectively the police deal with its own when complaints are made. I have seen that from the other perspective as well, where there is a complete absence—not a complete—a lack of confidence in the public that when allegations of misbehaviour either internally or externally by police officers have made that they are not robustly and appropriately dealt with. There is a balance here to be struck between public confidence and treating staff fairly. I absolutely appreciate the balance and perception. Margaret, you have come in because you have not been in yet. Do you want to come in? Thank you, convener. I was really on the general communication within the police. In the staff survey, which we had the report of in September last year, particular issues were raised around internal engagement, including heavy reliance on cascading information by email and through the internet, where personal methods such as through the line management or team shift briefings were preferred. What has been done to address that then? Has things changed in September? Things are in the process of changing and I recognise the issues coming out of the staff survey. Since that survey was delivered to us—I take no responsibility for this, this is those that went before—there have been 43 chief officers led to staff engagement exercises to understand what are the issues that sit underneath the staff survey. That has been a significant effort on behalf of the organisation to follow up and really understand what sits beneath those high-level headlines. Again, just as part of my personal learning as I embed myself in Police Scotland, I have done seven personal staff engagements. I have just wanted to understand how it feels from your point of view what it is that we need to do. I have found that staff are hugely motivated, passionate and delivering brilliant service day and night for the people of Scotland. It is an enormously humbling to see the quality of staff that we have and I join in this organisation. They are doing fantastic work. In terms of what that adds up to, there are four broad themes that come out of those workshops, firstly, improving leadership, and that is across the whole of the organisation. On some levels, it is probably understandable when you bring in that number of organisations together at that speed, with that level of grit required that there may be an over-alliance on email. I think that we are now at the position where we need to understand what is good leadership and that is about listening and talking to people and recognising where information is best provided through email. Transactually, that will have to be the way in a national organisation where the visibility of senior leaders will always be a challenge. However, we need to support leadership at every level in the organisation so that our leaders are confident. We provide them with the sorts of information that they need in order to brief their staff and that we also have a conduit back so that we can understand and hear what they are saying. There is a second issue around engaging and valuing each other. For me, that touches on our approach to performance. How do we spot people doing things right? What are our reward and recognition processes? How do we celebrate great work? What are the sorts of things that we say are important to enable staff to deliver on their vocation and professional judgment? The third piece is around our voice, which is about them being heard. It goes back to where we started. At its most serious end, it is about them being able to, with confidence, escalate issues that are causing them concern around conscience or conduct. More importantly, it is about how we make sure that they are part of designing the service. I have seen staff who are massively committed. As we go on the next stage of the evolution of police Scotland, it is landed. We now need to transform it. We now need to understand within the limits of what we can do in a 23,000-person organisation to really understand how staff can… Because they know the answers to the problems, particularly in local communities. I will not from sterling. The other fourth element is what they have described as exciting experience, which is a brilliant job to be in. It provides enormous opportunities to make the difference to people's lives in the community when it matters. It is about enabling them to deliver on that set of excitement. We are now at the process where we have gone through 43 workshops. I have done some triangulation personally since I have been here. We have got four broiled areas of work. We keep coming back to action plans, but we are going to develop approaches around all of those areas that I think will move Police Scotland on in terms of the staff survey. It is about just being a bit humane, having a degree of humility about being prepared to listen and recognise that you might not have got it completely right, enabling staff to be prepared to make mistakes within parameters, encouraging them to innovate and deliver locally in a way that makes the best sense to them and their people. That is the organisation that we need to move from. One from which is heavily reliant on compliance through to one where the ambition is around discretionary effort, where people know the values of the organisation and are able to respond and deliver. So, would you say that there has been a reduction in the number of emails that are sent to officers? I do not know. Gavino, I would not dream of trying to bamboozle you. I am too old and a whoree to do that. The simple answer is that I do not know in terms of the numbers. There is a preference for the one to answer. I do not have a preference for email. The preference for briefings. Well, yes, there is. Absolutely. One of the things that we are doing is strengthening our internal communications department, because actually we need to provide staff, supervisors, leaders with good briefing material. Actually, there should be a set of core messages or issues, but on a monthly basis we are able to distill out and say to an accessible plain English. These are the issues that your individual guys and girls need to know about. And actually we need to hear back from you what those issues are. We need to embark on the issue. It is very easy for me to come in and do this, but the visibility of the chief officer team, how we develop an on-going programme of staff engagement whereby we are not responding on the back of an unhelpful or difficult survey, it becomes how we lead the organisation in terms of our own visibility. We are a relatively small chief officer team in a 23,000 person organisation. There is a responsibility for everybody who steps forward into a leadership role from sergeant through. The higher up you are, the bigger the responsibility, but we need to move away from a transactional email-driven organisation, if that is where we are, to one where what I have just described in the attempt to bamboozle you convener is where I would wish us to be. It was just delicious. It was delicious. We will admit it. After all that, you get so many views. I admire the way that the ball was crossed and how you headed at home. I will never forget that one, Margaret. That has been down in history. I am afraid that I can only take one more question. I am sorry, but I have another member. I did tell you about this. This is the one and only chance of the members to ask questions, and we have a stage 2 straight after this. The cabinet secretary is waiting. Thank you. I just wanted to follow through briefly. It is brief, from the staff survey following some of the questions that Margaret has put. Obviously, we have heard a lot about the steps you have been taking to try and improve internal communication. In the staff survey, under the heading commitment, 33% of all responders indicated an intention to leave for a whole variety of reasons. Although, to be fair, it was suggested when asked the factors that were adversely affecting the commitment to the organisation, 49% said changes to pensions, but it might care to remind me about when the next staff survey will be undertaken. Is it your view at the present time after two months in the job that morale is much better now than it was in September? I would be a very brave chief counsel who sat here two months in and said that everything is fixed and my round is great. All that I can give you is some anecdotes in the way you provided to me. As I have gone out and spoken to the staff, I do not necessarily see the workforce reflected in that survey. I see passionate, committed individuals who want to make a difference. In terms of the repetition, I will deal with the specific of the question. When we set out the first survey, we said that we would repeat it in two years' time, but that we would take a temperature check within 12 months. A temperature check is a more focused, narrow testing of opinions around the key issues that came out of the first one. That would take place through the late summer of this year. That is intended in terms of our actions. You need to have completed some of the actions early enough so that, when this temperature check comes back, you are beginning to see some reaction to the things that you have done. I apologise to Mr Finlay for warning that the session was very important. There are no points of order in committee. I suspend now for three minutes. I move on to item 2, the Abuse of Behaviour and Sexual Harms Scotland Bill. I am going to try to get through all the amendments today. I welcome Michael Matheson, cabinet secretary of justice and his officials to the meeting. Of course, I do not need to tell you that they are in a supporting capacity and cannot speak during proceedings. They know that and you know that. I now move on and I am moving straight to the amendments. I call amendment 69, a bigger pardon, in the name of Margaret Mitchell, in a group on its own. Margaret, to move and speak to your amendment. This is an amendment lodged on behalf of the Law Society of Scotland. It restricts the test for domestic abuse aggregation to intent, rather than intent or recklessness to cause a partner or ex-partner to suffer physical or psychological harm. It is lodged as a probing amendment to generate further discussion about the inclusion of recklessness. In its submission to the justice committee, prior to stage 1, the Law Society expressed concern about the inclusion of the aggregation provision, which it stated would, in practice, be difficult to prove because of the requirement to establish intention or recklessness. That, in turn, it thought would serve to risk having the perverse effect of limiting the application of domestic abuse aggregation, which is supposed to help to ensure that such acts are treated by the courts with the seriousness that they deserve. Furthermore, it was established during stage 1 scrutiny that there is no requirement for a past passion of abusive behaviour to be set out in the charge. In other words, it would apply to a first offence. Although I believe that the intent test is robust and objective, I have some concerns that the adoption of the recklessness test for a first offence, as opposed to a second or subsequent offences where a passion of behaviour is established is potentially more subjective. I am less concerned about the technicalities of the amendment, which I think might be faulty. I readily accept that the point in raising and moving amendment is purely to generate some more discussion around the issue and to hear the cabinet secretary's comments on the issue, particularly on the first offence and recklessness issue. You have moved it, Margaret. I think that you did, in the middle of all that, but I will make it clear. Any other members wish to speak on this? I am opposed to the amendment. It would provide abusers with a defence that said that I did not mean to do it. I listened to what the law society had to say in their evidence test, but I am afraid that I do not accept that. It would be dangerous to remove the recklessness part, because it would provide that degree of defence to perpetrators. I concur with the views that Elaine McLean has already expressed about the wideness of it. Just looking back at the law society's evidence, it seems to be instinctively of the view that domestic abuse cases are given a lot of special attention in the courts at the present time and that adding an aggravation would somehow be a step too far. I am not really sure, in many respects, that I understand the law society's position beyond that, but I would be grateful for a further comment from the cabinet secretary on the issue of recklessness. Amendment 69 relates to the domestic abuse aggravator in section 1 of the bill. The bill currently provides that. Where an offence is committed against an offender's partner or ex-partner, it is sufficient to prove that the accused was reckless as to whether, in committing the offence, they would cause their partner or ex-partner physical or psychological harm in order for the aggravator to operate. Amendment 69 would, in fact, restrict the circumstances in which the aggravator would operate so that it was only offences that involved abuse of a person's partner or ex-partner where it is proven that the accused intended in committing the offence to cause their partner or ex-partner to suffer physical or psychological harm. We have taken the approach that we have in the bill because we consider that where, for example, a person commits a sexual offence against their partner or ex-partner or causes or assaults them, it should not be open to them to argue that the aggravation should not apply because it was not their intent to cause their partner physical or psychological harm. We consider and appropriate that in circumstances where it is a foreseeable consequence of someone's actions that their partner or ex-partner was going to suffer physical or psychological harm, that aggravation should operate. That would mean recklessness should be included. We do not consider that it should be open to offenders to argue that the aggravation should not apply because, though they were reckless as to whether, in committing an offence against their partner, they might cause them physical or psychological harm, it cannot be proven that that was their intention in committing the offence. For that reason, we would invite members to oppose amendment 69. The Proving Amendment has not really been addressed in the cabinet secretary's comments, and it is something that I would at least ask him to consider at stage 3. Is this issue of recklessness when it is a first offence, a second offence or a pattern established? I have absolutely no difficulty with that, but I think that it is worth teasing out with the intention of trying to make the legislation as robust as possible and giving the best protection to those people who suffer from domestic abuse. I will not be moving it. No, you have moved it, so are you seeking leave to withdrawal? I am. You have agreed with that. Are you a life out there? Yes? Yes, good, good. The questions at section 1 will be agreed to, or are we all agreed? I call amendment 70 in the name of Margaret MacDougall group with amendments 72 to 82. Margaret MacDougall pleads to move amendment 70 and speak to the other amendments in the group. I move the amendments. Just the one amendment, amendment 70. You cannot move them all. Right. You just move amendment 70. I move amendment 70. Excellent. The aim of my amendments today is to expand the disclosure section within the bill. The bill before us only covers the disclosure of photographs and film. My amendment, supported by Scottish Women's Aid, seeks to broaden that to include photograph or film of an intimate situation, sound recordings containing intimate content or an intimate written communication. That is the purpose of amendment 73. In my view, if we only cover the disclosure of a photograph or a film, a loophole is present within the bill. When it comes to sharing screenshots of intimate text-based conversations or the sharing of intimate content in the form of text or sound on the internet or social media. As Scottish Women's Aid stated, by specifying photographs and films, this excludes the sharing of private and intimate written and audio communications. The exposure of the threat of sharing these has the same outcome. It is designed to humiliate and control the victim. Sometimes text and images can be sent at the same time. Would we criminalise the image but not the abusive and threatening text? For example, the sharing of an intimate image on Facebook without consent would under the bill be a prosecutable offence. However, if someone was to share an intimate conversation or a screenshot of an intimate conversation, that would not be covered. I would argue that the sharing of this type of content could have the same effect as sharing intimate images without consent. That could cause just as much fear, alarm or distress to the victim and arguably would be designed to do so. Amendment 70 is a technical amendment that updates the bill to reflect expanding the definition. In effect, amendment 70 removes a disclosure or threats to disclose a photograph or film that shows or appears to show another person be in an intimate situation and replaces it with a reference to an item mentioned in subsection 1A amendment 73. That involves another person in a way mentioned in that subsection. Amendment 72, 74, 75, 76, 77, 78 and 79 are all technical amendments that replace references to photograph and film throughout the bill to item. What we mean by item is defined in amendment 73. Amendment 80 is a further technical amendment that adds a reference to the new subsection 1A, which was created by amendment 73. Amendment 81 is again a technical amendment that adds further reference to the new subsection 1A that was created in amendment 73. Finally, amendment 82 clarifies what we mean by intimate in terms of conversation, messages or communications. It needs to include references to an act that is considered sexual or content that takes as a whole to be of a sexual nature. Further to that, the content must not have been expected to be distributed or that there was an understanding that would have been kept private. Those amendments are supported by women's aid, Scotland and victim support. Police Scotland also gave evidence to the committee in support of including written and audio communication of that type. They said that the offence should take cognisance of all forms of communication and distribution. While I understand that the sending of abusive messages is a criminal offence, the same does not always apply to the sharing of intimate material. Those amendments ensure that the sharing of intimate material without permission is covered under one bill. That cuts down on repetition and leads to a more streamlined and easier system. It also means that all offences are dealt with in the same manner. Currently, under the Communications Act 2003, section 127, it is not an appropriate offence for dealing with this behaviour, as firstly it sets a very high threshold of the content of the message or other matter being grossly offensive or of an indecent obscene or menacing character. Unlike the proposed offence in the Abusive Behaviour and Sexual Harm Bill, the offence under section 127 of the 2003 act can only be tried under summary procedure, not solemn, which limits the overall custodial and financial penalties, since the proposals allow for offences under this section to be tried under either summary or solemn procedure. Further, the maximum term of imprisonment under the summary procedure in section 127 is limited to six months, as opposed to the 12 months in this bill, meaning that women or men who are abused by having private written and audio communications shared without their consent would have a lesser protection and perpetrators might well tailor their behaviour to accommodate this gap in the law. With the advances in technology making it easier to distribute information with or without consent, it is vital that the law keeps up to ensure those who wish to cause harm are dealt with appropriately and consistently by the justice system. I ask the committee and the Cabinet Secretary to support my amendments. I have changed my position in this matter. The section of the will, the intention of it, is very clear. Margaret talked about those with criminal intent tailoring their conduct. I think whether the term displacement might be more appropriate here too. I am concerned that it is not future proof, if you like. I think that the support of women's aid is important. I think that the comments of the police are also important. For all of these reasons, I support the expansion of this particular disclosure section and all these other amendments to go with it. I recognise that there are differences of opinion from various groups about whether it should be extended. I take on board the point that is being made about section 127 of the 2003 act, but it still provides a punishment. We all should bear in mind section 38 of the Criminal Justice and Licensing Scotland Act 2010, which criminalises behaviour that causes fear and alarm, although it does not extend as far as distress, as Professor Chalmers said. We have alternative ways of dealing with these issues, which we should not forget. I am still on the side of the academics, on the side of Professor McGlynn, who would not recommend that the law covers text. We put a big section in our report about unintended consequences, and I think that those issues are still relevant. I, for the moment, would oppose this amendment. I would not say very much because I do not have much voice. I would suggest that we proceed cautiously on this one, and I agree with what Roddy said. I do not support the group of amendments. I get inflicted with that personally. The cabinet secretary is smiling in agreement with that comment, which is not a good thing to do. Amendment 70A and 72A would expand the scope of the intimate images offence at section 2 to cover intimate sound recordings and written communications. As I said in the Scottish Government's response to the committee's stage 1 report, we took a decision to restrict the offence to the sharing of intimate images as almost all the cases that we are aware of have involved the sharing of images. Unfortunately, we are all too aware that there are far too many websites set up specifically to enable people to post intimate photographs or films of their partners or ex-partners. I am not aware of similar websites where people post voice messages or emails written by or to their partner or ex-partner. The sharing of images that may enable a complete stranger to identify the victim is, in our view, a betrayal of trust and a breach of privacy, which is especially likely to cause distress. That is, of course, part of the justification for the new offence. It is worth remembering that it will remain possible for prosecutors to use existing laws in relation to the sharing of written and recorded material by using, for example, the Communications Act 2003 offence or the offences of threatening or abusive behaviour in appropriate cases. The committee's stage 1 report noted that a majority of the committee supported restricting the scope of the offence to photographs and films and that the committee was mindful of the risk of unintended consequences if the bill takes too wide an approach in this area. With regard to the question of unintended consequences, I note that those amendments apply not only to intimate recordings written or spoken by the victim but also those directed to or left for the victim. Consequently, one perverse effect of this is that a person could face criminal liability for publishing or disclosing a communication that they themselves had written or a voicemail message that they had left. More generally, while it is hard to envisage circumstances in which someone would have legitimate reason to share intimate photographs or films of their partner or ex-partner with a third party without their consent, it is easier to imagine circumstances in which they might wish to share a written message or voicemail message with a friend. They may, for example, be confused or even fearful as a result of what they might consider to be the disturbing sexual content of a message sent to them and wish to seek advice about what to do about it. They could be criminal liable if those amendments were agreed. It may be helpful if I give the committee an example of how that could apply. It is our understanding of Magamudugl's amendments and how they would operate in a way in which they could criminalise in the following situation. Two thirteen-year-olds exchanged messages about a celebrity. In the course of those exchanges, one of the teenagers indicates that they fancy the celebrity and would like to have sexual relations with them. The other teenager decides to share the text with other people in their class at school. In that situation, a communication has taken place which a reasonable person would consider to be sexual in nature and a reasonable person would expect to be kept private. The person sharing that text has committed a criminal offence if it can be shown that they were reckless as to whether the sharing of the message would cause the other person fear, alarm or distress. That is most probably embarrassing and distressing for the person whose message has been shared. Our view is that the person who has shared the message should not be committing a criminal offence. It is our understanding that Magamudugl's amendments would criminalise such behaviour. As we said in our response to the committee stage 1 report, we are happy to monitor this issue as the offence is implemented to assess whether there is a need to reconsider the scope of the offence in the future. However, we consider that the scope of the offence contained in the bill takes the right approach. Therefore, we would ask members not to support amendments 70 and 72 to 82 in the name of Magamudugl. I understand that the above amendment might introduce unintended consequences, but you have to show criminal intent to break the law and then be charged with a crime. However, the way that the bill would be written and outlined that it would be still in line with the aims of the bill should still be included because of those reasons. You gave the example of two 13-year-olds. When Tam Bailey, the Children's Commissioner, gave us evidence, he said that young people should not be exempt from the bill. Young people are taken into account and go to the children's panel. That would be dealt with under that legal aspect. If the minister is not inclined to accept my amendments today, would he be happy to work with me to ensure that the expanded definition in some form is present within the bill? If that aspect is not in the bill, it leaves the system open for abuse as too many loopholes exist in two-circum-vent, photograph and film. If the communications act 2003 offence exists and has been used without any issue of unintended consequences, then the Scottish offence is perfectly capable of being defined in similar terms to make the lack of suitable penalties under the 2003 act. The first thing that I should say is that recklessness is not the same as intent. It is a less onerous test in those matters. I am always willing to discuss matters with members, but I have set out the potential unintended consequences of going down the route of expanding this offence any wider. I am not minded to do so, but I am more than happy to discuss that matter with the member if she chooses to do so prior to stage 3. That does not give a commitment to us looking at extending the scope of the offence. The question is that amendment 70 be agreed to. Are we all agreed? We are not agreed. There will be a division. Those in favour, please show. Those against, please show. That is three in favour and six against. That amendment is not agreed to. I call amendment 71 the name of Margaret Mitchell in a group on its own. Margaret Mitchell, you move and speak to your amendment. Section 2 of the bill creates a new offence of disclosing or threatening to disclose an intimate photograph or film. Section 2 1 provides that a person commits an offence if, among other situations, the person intends to cause fear, alarm or distress in doing so or is reckless as to causing fear, alarm or distress. Again, that is lodged on behalf of the Lost Society of Scotland and is, again, a probing amendment that would limit the offence to being proved where A intended to cause fear, alarm or distress to be as opposed to having been reckless as to whether B would suffer fear, alarm or distress as a result of the disclosure or threatening to disclose an intimate photograph or film. During stage 1 evidence, both the faculty of advocates and the Lost Society expressed concern about the inclusion of recklessness within the mensria of this particular offence. The faculty provided the example of a person who comes home to find his flatmate to sleep on the sofa wearing only his boxer shorts and takes a picture of his flatmate finding it amusing. He had no intent to cause fear, alarm or distress but was reckless in doing so. The faculty pointed out that, if he shows that picture to someone else, he is guilty of an offence and the bill provides no defence to that scenario. Similarly, the Lost Society suggested that recklessness is too wide and there should be intention to cause harm or humiliation rather than recklessness. I welcome the cabinet secretary's comments, especially in view of the comments that he has just made to Margaret MacDougall about the unintended consequences of including an intimate voice recording or written communication. I move amendment 71 in my name. Elaine Ewing. I oppose amendment 69 for many of the reasons that I opposed amendment 69. Equally, as I said at the stage 1 debate, I have no sympathy for that flatmate that goes in and takes a picture of his boxer shorts and posts it around the world. That is completely unacceptable. I could not see why that is any sort of event. We are moving. Boxer shorts are featuring highly in today's conversation. I hope that we are not going to have other. I know that we are going to have more of this. Rodd, please, and then Gil. Thank you, convener. Perhaps I should refer to my register of interests. You are boxing shorts for a moment. Yes, I beg your pardon. I am silly of you. Too much information, convener. I refer to my register of interests as a member of the Faculty of Advocates. Obviously, I will take a contrary view to the view of Mr Mee and I just wanted to remind people of the comments of Catherine Dara of the Crown Office in terms of the impact on the victim, really being the important test that people do not see themselves as victims unless something has happened to them. In that situation, it is hard to see that they would see themselves as a victim. Thank you very much. I apologise for my frivolity. I must take my pills. Gil. What happens to the victim here rather than who perpetrates it that I am in clear side of? Thank you very much, cabinet secretary. Amendment 71 relates to the intimate images offence in section 2 of the bill. The bill currently provides that, where a person discloses or threatens to disclose an intimate image of another person, it is sufficient that they are reckless as to whether they would cause the person featured in the image fear, alarm or distress for the offence to be committed. Amendment 71 would restrict the circumstances in which the offence could be committed to where it is proven that the accused intended to cause the person featured in the image to suffer fear, alarm or distress. We have taken the approach that we have in the bill because we consider that it should not be open to the accused to escape criminal liability because, though they might have been well aware that the disclosure of an intimate image would cause the person appearing in it to suffer fear, alarm or distress, that was not their intention. They instead disclosed the image for, say, financial gain, or for a joke, or to show off to their friends. We consider it appropriate that the offence is committed in circumstances where it is a foreseeable consequence of someone's decision to disclose or threaten to disclose an intimate image that they would cause the person appearing in the image to suffer fear, alarm or distress. That is what the bill provides by having recklessness as well as intent as the means via of the offence. We do not consider that it should be open to offenders to argue that they are not guilty of the offence because, though they were reckless as to whether, in disclosing an intimate image, they might cause the person to suffer fear, alarm or distress, it cannot be proven that that was their intention. I invite members to oppose amendment 71. Clearly, a balance has to be struck. I think that today's discussion has been useful in highlighting the issue and teasing out the intention behind the inclusion of recklessness here, in terms of not only the impact on the victim, but it also sends out a powerful warning to individuals posting images that they must always stop and think about the potential consequences of doing so, whether they are untended or otherwise. With that in mind, convener, I seek leave to withdraw. The committee has agreed. I will call amendment 72 in the name of Mark. Would we have a ready debate with amendment 72? Do you move or not, Margaret? You are moving it. The question is that amendment 72 be agreed to. Are we agreed? We are not agreed. There will be a division. Those in favour, please show. Those against, please show. That's 3, 4, 6 against. Amendment 72 be agreed to. I call amendment 73 in the name of Mark. Would we have a ready debate with amendment 77? Move or not, move. My question is that amendment 73 be agreed to. Are we all agreed? We are not agreed. There will be a division. Those in favour, please show. Those against, please show. 3, 4, 6 against. Amendment 74 in the name of Mark. Would we have a ready debate with amendment 70? Move or not, move. The question is amendment 74, be agreed to, are we all agreed? We are not agreed. Those in favour, please show. Those against, please show. That's three in favour, six against. I just remind members that these are technical amendments and the member may wish to consider however, but I just leave it at that. I've said their technical amendments, it's up to the member to move with the amendments. Of course it's competent, but it's up to the member to consider. Call amendment 75, the name of the market we do, already raised amendment 70, move or not move. emphasis on amendment 75 on those that are against the show. That is three in favour of six against. The amendment does not agree to amendment 76. In the aim of mark, we do go and creative debate with amendment 70. Move or not move. The question is amendment 76. We agree to it. Are we agreed? No. We are not agreed. Could you just say, because I know we are already going to the same route, Felly, 1. 4 argy fortunateHold, 2. 5 argy fortunateHold, 3. 4. 6 argy fortunateHold,om Against, has not agreed to call amendment 77, the name of Mark M thểchol, ready-made amendment 77 move or not move. The questions amendment 77 agreed to, chapter ? Given that what is called amendment 77 internally is Su Enterprise, is not七, many of these amendments went to The question is that amendment 78 be agreed to or we are agreed we are not agreed those in favour please show there is a division if you are going to be in favour you can show it. Three in favour those against please show that's three, four, six against that amendment that is not agreed called amendment 79 they weren't with who already debated, market move or not A wnaeth gweithio, â mae Gwneud? Ac mae'n gwaith? A weithio? A weithio? A weithio? A weithio? A weithio? A weithio? A weithio? three in favour, six against that amendment has not agreed to. Coll amendment 4, in the name of Elaine Murray and a group on its own. Elaine Murray, please to move and speak to that amendment. Thank you, convener. One of my colleagues was contacted on behalf of Professors Claire McGlynn and Erica Rackley, professors of law at Durham University and the University of Birmingham, in connection with the bill to which he had already submitted written evidence. They welcomed the proposal to introduce a new offence criminalising the disclosure of an intimate photograph of film, not only to do such actions constitute a fundamental breach of privacy, dignity and sexual autonomy and a serious form of harassment and abuse, but also a form of cultural harm impacting not only on the individuals involved but also on society as a whole. However, the professors also consider that the bill, as it stands, does not make appropriate provision for the distribution of private sexual images non-consensually taken in a public place, including but not limited to images of so-called upskirting. As currently drafted and in response to concerns to exclude images of streakers or naked ramblers, distribution of such images as a criminal offence is excluded. While recognising that the taking of such images is prohibited under the Sexual Offences Scotland Act 2009, there is no provision to prevent their distribution and, of course, the images may be distributed by another individual. The bill should cover the distribution of so-called upskirt or down-blouse images and related images. Those images often end up on websites dedicated to the sharing of non-consensually taken private sexual photographs and or pornographic websites. Those businesses, I understand, are a big business. One such site was exposed by the mail on Sunday in May 2015 and was said to be receiving 70,000 views a day and valued at £138 million. The professor's recommendation is that the omission could be easily rectified by means of a defence of voluntary disclosure. That would prevent the criminalisation of images where the subject has voluntarily disclosed themselves as in the case of a streaker. In addition, the Sexual Offences Scotland Act 2009, in section 94B, provides that an offence is committed where A records an image beneath B's clothing of B's genital or buttocks, whether exposed or covered by underwear. In circumstances where the buttocks' genitals or underwear would not otherwise be visible. However, the bill also includes breasts. In addition to upskirting, there are also down-blowsing websites where pictures of women's breasts are exposed. In order to cover the distribution of intimate photographs taken without consent in a public place and to include the wider definition of an intimate situation, I consider that the bill should be amended. It is a small amendment that would help to include it. If the wording suggested by the legislation team and modified by Professor Rackley could be improved, I would be happy to work with the Government on the amendments at stage 3. However, I do hope that I can have an agreement of the committee on the need for such an amendment. I apologise again for having to discuss such and slavery practices in public and I move the amendment in my name. Thank you very much. Any other members wishing to speak? Roddy, please. I understand where Elaine is coming from, but my instinct is that if we were going to deal with this issue, it would be by a further amendment to the virus and offence under the sexual offences 2009 act. There speaks an advocate for us in referring us to another legislation, which is useful Cabinet Secretary. A convener, amendment 4 relates to one of the defences to the intimate images offence. The defences section 25 of the bill currently operates so that where the image or film shared was taken in a public place, where members of the public were present, there is a defence that means that the accused will not be convicted. This is to avoid the situation where, say, someone shares without consent a film or image of someone streaking at a sporting event and a criminal complaint is made to the police. In that situation, we do not think that a criminal offence should have been committed. What amendment 4 seeks to do is to restrict the defence to circumstances where the person in the film or image consented to being in that intimate situation. The effect of amendment 4 would be that the public place defence is only available where the subject of the film or photograph consented to being in an intimate situation in a public place. That could be, for example, a person who deliberately chooses to streak at a sporting event or a person at a naturalist resort. The defence would not be available where a person distributes an image showing, for example, a subject of a photograph or film that has been stripped against their will or sexually assaulted in a public place. We understand and sympathise with what would appear to lie behind amendment 4. We note that the defence would continue to apply where, for example, someone takes a photograph of a naked protester in a public place but where someone had not consented to being in an intimate situation, for example because they had been forcibly undressed in a public place, a person distributing the photograph or film could not avoid convictions simply because it was taken in a public place. However, we think that the exact wording of the amendment does not quite achieve what we consider to be the intended effect. In particular, we think that someone who is exposed in a public place cannot be said to always have consented to be in an intimate situation as that implies someone else is always involved in their being in an intimate situation. Instead, we think that it would be more accurate to say that, on that occasion, they choose to be in an intimate situation. We do not think that the amendment is worded correctly at present. The member has said that the amendment is intended to ensure that so-called upskirting or downblouse photographs taken in public places are covered by the offence. However, it is not clear to us that the amendment achieves this, as it is not clear that people photographed in such situations are in an intimate situation, as defined at section 31 of the bill. In such cases, the person taking the photograph or film has operated equipment in such a way as to record an image of a person's genitals, buttocks or breasts in circumstances where they would not otherwise be visible. Therefore, it is not clear that there was any exposure on the part of the person being recorded, either consensual or otherwise. For that reason, in response to the stage 1 report, I said that, if the distribution of voyeuristic upskirting images were to be made in offence, that would be best achieved by building on the voyeurism offence contained within the Sexual Offences Scotland Act 2019. In addition, we would welcome time to fully consider the impact of restricting the defence to make sure that there are no unintended consequences that would allow perpetrators to evade justice. In light of that, I would be happy to work with Elaine Murray ahead of stage 3 to see if a workable amendment can be developed to address issues that she has highlighted and, on that basis, ask the member not to move amendment 4. She has moved it, so she has got to sign whether she is going to press or withdraw. Can you wind up first, please? I want to take more time in winding up. I am pleased that the cabinet secretary has indicated his willingness to try to find a solution to that issue, which I think is important and serious in the idea that young women, or indeed young men, or men of any age, can be intruded upon in this way. A money made out of putting material on websites is abhorrent. I will withdraw the amendment and look forward to working with the cabinet secretary. We have agreed that amendment is withdrawn. The question is that section 2 be agreed to and are we all agreed. Amendment 8-1, in the name of Martin, we do go already to amendment 7. Margaret, move or not, move. The question is amended. Amendment 8-1, be agreed to and are we all agreed. Those in favour, please show. It is a bit informal in here at times, cabinet secretary. Those in favour, please show. Right. Those against, please show. That is 3 in favour. Amendment 6, in the name of Martin, we do go already to amendment 7. Margaret, move or not, move. The question is amended. Amendment 82, in the name of Martin, be agreed to and are we all agreed. We are not agreed. There will be a division. Those in favour, please show. Those against, please show. Thank you very much. That is 3 in favour. Amendment 6, in the name of Martin, is not agreed to. The question is that section 3 be agreed to and are we all agreed. Question section 4 be agreed to and are we all agreed. Amendment 5, in the name of the cabinet secretary, group with amendments 6 and 7. Cabinet secretary, please move amendment 5 and speak to the other amendments in the group. Amendment 5, 6 and 7 are minor amendments to ensure that schedule 1 to the bill does what it intends to do and to ensure that the wording is consistent. Schedule 1 makes provision in relation to e-commerce directive, which requires the liability of information society providers in respect of section 2 intimate images offences to be limited in certain ways. Amendment 5 and 6 adjust the wording of the provisions at paragraph 2 and 3 of the schedule, which set out exceptions to the offences for internet service providers where they are catching or hosting information. To ensure consistency with paragraph 1 of the schedule, which sets out the exceptions for internet providers acting as mere conduits, amendment 5 and 6 adjust the wording of the paragraphs to refer to the circumstances in which a service provider is not capable of being guilty of an offence. Amendment 7 concerns the exception to the offence for internet service providers which are hosting information on their servers on the basis that they have no actual knowledge of illegal activity on their server. The amendment is to ensure that the exceptions apply in the right circumstances. The exceptions should apply if the service provider has no actual knowledge that an offence was committed under section 2 of the bill. The amendment also has the effect of simplifying the drafting in paragraph 2, 3, and I move amendment 5. Thank you very much, cabinet secretary. Any other members wish to speak? I take it. Cabinet secretary. You don't need to wind up. The question is amendment 5. Do you agree to, are we all agreed? Call amendment 6. The name of the cabinet secretary. Are we all agreed? Amendment 5 minister to move formally. Moved. Question is amendment 6. Do you agree to, are we all agreed? No, I agree to. Call amendment 7. The cabinet secretary. Are you ready to debate? Your cabinet secretary. Do you agree to, are we all agreed? 68. Alison Lee, who is pleased to move amendment 67 and speak to amendment 67 in the group. Thank you very much, convener. I hope that the amendments are uncontroversial. My amendment 67 introduces a requirement for the Scottish ministers to carry out a public information and education campaign in connection with the new offence set out in section 2 of the bill. Members might know that in England and Wales where a similar offence has been introduced, the Minister of Justice is already running the revenge porn, be ond mae'n gweithio'r campaign, ac mae'n gweithio'r Facebook campaign page, a Twitter hashtag, a Revengeporn helpline to support victims and other promotional material. With modern technology becoming more part of our lives, it is something that we need to replicate to ensure that as many people as possible are aware of the new offence, not just potential victims but also potential perpetrators, because the idea is to reduce the instances covered by the new offence. In the written submission, zero tolerance outlined why a public awareness campaign is important. Similarly, my amendment 68 seeks to amend the current guidance on relationships, sexual health and parenthood education in schools for the same aims that I have already discussed. Barnardo's and the national organisation for the treatment of abusers have called for this too. I do hope that the committee is able to support my amendments. Margaret Mitchell, please. I am supportive of the amendments. I think that an important part of what might be achieved by this bill is getting the message out there about the sort of behaviour being unacceptable. I also think that it is important that in education in schools around sexual health and relationships, the message is given out about consent and about respect. I think that those are very fundamental parts of what we used to call sex education in a broader sense now. It is important that the bill is accompanied by that education, not of the general public and particularly of the school. I am sympathetic, but I beg your pardon. I just wanted to say very briefly that I fully understand where Alison's amendment is coming from. Obviously, there is a clear need to raise public awareness of this issue and to look at issues in terms of education and sexual health. My query is whether we need to put this in the legislation or whether we can rely on the Government's general commitment to raise awareness of this issue. Obviously, I will be keen to hear from you. You took the words out of my mouth. I am coming in now anyway, because I just want to. I am very sympathetic, but I do not think that it is appropriate to put this in legislation. Government should publicise changes in the law by ways, particularly when creating something that was not an offence before. My only objection is that I do not think that it is appropriate in primary legislation. I am worried that I want to share about telling youngsters that this website exists and that the Riversport website should not get any advertisement from anybody, so I am a little worried about that. Amendment 67 places a duty on Scottish ministers to carry out public information and education campaigns when intimate images offence is commenced. I can confirm to committee that the Scottish Government will take appropriate steps to promote public awareness of section 2 and it is coming into force. As it is our intent to ensure that public awareness is raised prior to the implementation of the offence, amendment 67 is unnecessary to achieve what Alison McInnes is seeking. In addition, this type of issue is not something that normally would be included as a requirement in legislation. The statute book would become a bit crowded if we had a provision about publicity in relation to every new offence or policy that was put into law. Finally, we consider amendment 67 focuses entirely on the method of seeking to raise awareness, i.e., a requirement for a publicity and education campaign, rather than on requiring to raise awareness, which we presume would be Alison McInnes' intent. We therefore consider that amendment 67 is technically deficient in its wording. On the basis of the commitment that I have made to the member, I would ask her to withdraw amendment 67. Amendment 68 places a duty on Scottish ministers to update guidance on relationship, sexual health and parenthood education in schools to provide guidance on how issues relating to the intimate images offence are to be covered in such education. It might be helpful if I explain to the committee that relationship, sexual health and parenthood education is a recognised subject within the health and wellbeing section of curriculum for excellence. In December 2014, the Scottish Government published guidance for schools in relationship, sexual health and parenthood education. That guidance notes that education must take account of developments in online communications and ensure that children are informed of the law in Scotland on communications involving sexual content. That includes, for example, offences concerning indecent communication in the sexual offences Scotland Act 2009 and offences concerning the possession and distribution of indecent images of children. When the intimate images offence comes into force, it will become part of the law of Scotland and, as such, the existing guidance already sets out what relationships sexual health and parenthood education will cover the intimate images offence. I can understand why the amendment has been lodged on the basis of the explanation that I have given and the commitment that I have given to the work that we will undertake in order to publicise the new offence. I would invite the member to withdraw amendment 68, as it is unnecessary, in order to achieve the policy aim. I am grateful for the cabinet secretary's reassurances that he has just given. I am happy to accept those. I am particularly heartened that he is talking about moving to a public campaign in advance of legislation and coming into force. I have not forbid that the amendment has been found deficient, so I will withdraw amendment 67. We wish to withdraw it, so the committee agreed. Thank you very much. Call of amendment 68. The name of Alison Cain has already been agreed to amendment 67. Move or not move? Not move. The questions of section 5 have been agreed to. Are we all agreed? A call of amendment 1 in the name of Margaret Mitchell group with amendment 2. Margaret is pleased to move that amendment and speak to both amendments in the group. Thank you convener. Amendment 1 removed section 6 of the bill, which sets a precedent by introducing statutory jury directions. Amendment 2 is consequential. The section 6 statutory duty direction applies in a trial on indictment for a sexual offence where the evidence has been led that the complainer did not tell or delayed in telling anyone about the offence and or, did not report or delayed in reporting the offence to an investigating agency, for instance, the police and or where evidence is led, suggesting that the sexual activity took place without physical resistance by the complainer. Then a question is asked or a statement is made with a beauty listing or drawing attention to the evidence of that nature. The Scottish Government has insisted that the introduction of statutory jury directions would be sufficiently flexible for judges to give appropriate decisions. In reality, it strikes down one of the central tenants of Scots law, namely the independence of the judiciary and the separation of powers. Others have described it as a worrying example of constitutional creep. Those concerns are shared by the legal profession and the law society states that the move represents a major departure from existing practice where the distinct rules of a judge and jury are clear. Lord Carlaway argues that the bill sets a precedent. If Parliament dictates what should be said to juries by a judge in this area, other people will no doubt seek to extend that to other areas and will wish other directions to be given, and that is where we get into the constitutional divide. Both the Law Society and the Faculty of Advocates have argued that the Scottish Government has not made a sufficiently strong evidential case that, in the circumstances, directions have been tailored for juries equipped for the wrong reasons. The dangerous precedent is being set despite the fact that, as I said in the stage 1 debate, the issues that the statutory jury directions seek to address can be adequately dealt with by way and by use of expert witnesses. The only reason expert witnesses are not being used relates to cost implications, a fact acknowledged by both Catherine Dyer, the CEO of the Crown and Procurator Fiscal Service and Lord Carlaway as the then Lord Justice Clarke. Furthermore, given that the Scottish Government is in the process of undertaking jury research, there is a strong case for waiting for the results of that research. That would provide important evidence about how juries reach decisions and whether those misconceptions exist. I ask the Scottish Government to think again about interfering with judicial independence and urge it to remove those provisions from the bill and move the amendment in my name. I am going to come in now because I formally support this amendment, which shows that we are very flexible in this committee. My concern is a serious concern because I fully support the arguments put by Margaret Mitchell, indeed by Lord Carlaway and Sheriff Lidl. It is a serious matter of legislators telling a judge what directions he must, with a little exception, give to a jury. To me, it crosses a line. We have a very clear division between legislators and those who implement the law, and that is important to maintain. Lord Carlaway and Sheriff Lidl have made the point that this is a constitutional issue here. When my colleague John Finnie was asking about whether this came into practice, what the position made, he said, we are all members of a democracy and we respect Parliament's legislative function. We do not get upset in the way that he suggested. Parliament wants to tell judges to give the jury the direction that they are proposing and the bill will give them. However, he goes on to say, we have stated that it is traditionally the role of the judge, rather than Parliament, to decide on jury directions. That is the way it has been in the division of constitutional responsibilities, but that takes us only so far. In any jurisdiction in the Commonwealth, it is very rare for a Parliament to dictate to judges what they should say in jury directions, although it has been done in a couple of jurisdictions. If you want us to say something specific in jury directions, we will do so. However, we are just saying that what is proposed is not necessarily the best way of doing that. Now, there is a heavy-weight opinion here from the Lord President. From Sheriff Lidl, it says again—if I go back, sorry to Lord Carlaway, I should raise by Margaret Mitchell—it sets a precedent. If Parliament dictates what should be said to juries by a judge in this area, other people will no doubt seek to extend that to other areas and will wish other directions to be given, and that is where we get into the constitutional divide. It is a line being crossed in my view that must not be crossed. The same point is made by Sheriff Lidl. There are other issues about the practicalities and how effective it will be. At the end of the day, it will be ineffective anyway if it goes through. I know that there is not a majority on this committee in favour of Margaret Mitchell's position or mine, but that does not matter a quick to me. What matters to me is that we are crossing this very important constitutional line in telling a judge in statute what must be said to a jury, something that has not been done before, and again, in the thin end of the wedge argument, you do it once, you may be doing it again, somebody will use it as a precedent. For that reason, I fully support that. Of course, the other amendment that is simply in the long title is consequential to this amendment. I will call the other members Elaine, then Christian and Rodd, please. Thank you, convener. I don't agree with my friends on either side on this issue. We know that the public has misconceptions about the way in which rape victims behave after rape, and they often have misconceptions about the degree of physical resistance, or the speed at which somebody would report the fact that they have been raped. Duries are made up on members of the public, and members of duries may also have misconceptions about the reactions of people who have been raped. We know that it is difficult for rape cases to come to court because of a whole number of reasons around corroboration. I will not go into that debate again, but there are a number of reasons why it is difficult for rape victims to get their cases into court. We know that, for example, 15 per cent—the highest percentage—of not-proven-vict verdicts are given on rape cases. I think that it is necessary for this type of activity for the judge to be able to put right any misconceptions that a jury may have, which could prevent a victim of rape from getting the justice that they deserve. I hear that there is an argument about other areas, but there is a specific instance in which judges must give judicial directions in order to extend that to any other area that would have to be in legislation. Therefore, I do not see that it is suddenly going to creep into all sorts of other parts of legislation that would have to be introduced by a specific primary legislation for that to happen. I am afraid that I am going to oppose both amendments 1 and 2. Question. Not for the first time, convener, I would agree with Elin Moray, because the area is area around sexual offences, and sexual offences which cover, unfortunately, where the victim is more likely to be of a specific gender. I think Elin Moray talked about misconception. The notes that we get, the supplementary notes that we got from the attached to this bill, talk about a certain ill-funded preconception held by the member of the public. That is very important to see. It is ill-funded preconception. As far as we have got the ill-funded preconception held by the member of the public, it should be in legislation. I do agree that it should be in legislation in the judicial directions, because it has to be done in a non-adversary manner, making sure that we have a way to rebalance what society are thinking today. If, in the future, society hasn't got this ill-funded preconception, I would be happy to have it removed from legislation, but as far as we are, where we are just now, three directions are the answer. Thank you, convener. I unfortunately take a different view to the view of Margaret Mitchell and yourself on this matter. I accept that this particular part of the bill does not meet with the favour of what I might describe as the legal establishment. The key points to remember is that these directions will only be given where there is an issue in the case either in relation to delay or the absence of physical resistance. There is also a safeguard position where the judge feels that no reasonable jury could rely on the evidence, then no direction will need to be given. Yes, it sets a precedent. Yes, we don't have jury research, but because of the difficulties of the contempt of court act, that's just a fact which we're obviously addressing in the future in relation to the jury research that Lord Bonamy is undertaking. But I think it's well established from other things that the juries have preconceptions. This is a matter that has been flagged up for a while, and I think that we need to back the bullet and pass the bill with this part of the bill in it. The term tradition has been used a few times, and the tradition that we have in Scots law is a very fine tradition of an embarrassingly low level of convictions for heinous crimes. I place great stow in the rights of accused, and I don't doubt that defence will tailor its comments to reflect any charge to the jury from the judges. If Lord Callaway said that that's not the best way of doing it, then there's been plenty of opportunities for the judiciary to come forward with suggestions of better ways of improving the situation there, and for those reasons I will be not supporting mangos amendment. Yes, my experience with mainly women's groups in particular with crisis would suggest to me that some people in juries have preconceived ideas about how somebody would present and how they would handle themselves. They expect them not to become, so there is a prejudice there in the first place, and I think that it's good for the courts and good for the system that simple explanations are made. I don't think that judges should try in any way to influence people's mind on the case, and there is evidence available that suggests that quite a substantial number in a jury has expectations about when people report, if they delay reporting, then in that case they say that it didn't take place, when in fact that's not the case, because there's some complex reasons why people don't present, and it could be a family reason, and quite often people are raped by those that they know, and that might have a consequence in itself because it might be a friend of the husband or the wife that was participating in that, and the consequences for the whole family including the husband and the wife and the children is a consideration, and rather than maybe doing the right thing and being brave, and it is a brave person that presents in the Scottish Court with regards to rape, it's a horrendous experience for them and they need to relive, so that's a consequence in itself where someone has been raped and they may reflect for a good number of years actually before, and it might be, if I could say this, it might well be the case that a second rape takes place and they hear that the person that raped them in a case, and it might be that that causes them to have the courage to put themselves through the mill and report something that happened, so for all those reasons it is a very complex area, but I see it's good law that explanation and education is given if we know that people have preconceived ideas, which is a prejudice. Thank you. Nobody else, so to the cabinet secretary. Amendment 1 and 2 would remove the provision contained in the bill relating to the introduction of statutory jury directions. This issue has been extensively debated during the stage 1 process and I'm pleased that a majority of the committee supported jury directions during the stage 1 report. Members do not need to be reminded that we have included those provisions in the bill to deal with an important underlying issue, namely, as Elaine Murray highlighted, some members of the public and some members of a jury will hold preconceived and outbound attitudes as to how sexual offences are committed and how someone, subject to a sexual offence, will likely react when an offence is taking place and afterwards. Some people think that anyone carrying out a sexual offence will almost always require to use physical force. In addition, some people think that someone will always offer physical resistance when an offence is being committed and that someone will always make an immediate report to the police after an offence has been committed. When jurors hold those views and where any of those scenarios has taken place, it is unfortunate that they can allow those unenlyting views to affect how they consider the evidence in a case. There is clear research that shows that people react in many different ways when a sexual offence is taking place and in the aftermath of an offence taking place. There is no one-standard type of reaction that should be expected and this body of research shows that it is perfectly normal for a person not to offer physical resistance to a sexual offence being committed or not to report the offence for a period of time. We are clear that jurors must consider the evidence that they have heard in the case. The intent behind jury directions is simple. We want the focus of the jury to be on the evidence laid before them. Any preconceived and ill-founded attitudes that may be held should not play a part in the decision of the jury. Members are aware that there is discretion built into the provisions for the judge as to whether a jury direction is needed. If no issues are raised at the trial relating to a delay in the reporting of a sexual offence, the jury direction is not required. Even when an issue relating to delay may have been heard in evidence, the judge does not have to give the direction if they consider that no reasonable jury would think that the issue of delay was material to whether the offence had been committed. The judge has a similar discretion in relation to jury directions on lack of physical force or physical restraint. We consider that the jury directions provision contained in the bill are the right approach, with jury judicial discretion and flexibility built into them. Therefore, the Scottish Government does not support amendment 1 and 2 in the name of Margaret Mitchell. I am itching to sum up, but it is not for me to sum up. I will save that for stage 3 if we get this at stage 3 because there is lots of material there to attack in my view. Margaret Mitchell, you get the opportunity. Thank you, convener. This is not as Roddie Campbell seems to suggest a legal establishment opposing progress. The concerns expressed by the so-called legal establishment have been expressed because this amendment interferes with two important principles in our democracy in Scotland. The first is the separation of powers, and that is a fundamental constitutional principle. The second is the independence of the judiciary, a central tenon of Scots law. One in which, if the amendment starts to interfere with, a precedent is set in one area of the law, then it is fair game to argue that the same precedent and the same jury direction should apply to other areas of the law. In effect, once the genie is out of the bottle, it is impossible to put it back. It has been argued by the cabinet secretary somewhat disingenuously that this is the only way to tackle the misconceptions from juries about the evidence-led in sexual offence cases. No-one is arguing that they do not and have not existed and do not affect conviction rates. The important point is that there is another very effective way to address this. That was confirmed by Lord Carlawy, who said that the only barrier to using the effect of remedy is cost. Cost considerations should not take precedent over interfering with the independence of the judiciary or fundamental constitutional principles. For those reasons, I press the amendment in my name. Thank you very much. The question is amendment 1. Are we all agreed? Those in favour, please show. Those against, please show. There are no abstentions. Those two in favour and eight against that amendment is not agreed to. I beg your pardon. I am adding people to the committee. If I make it worse than it is, it was only seven against, not eight. I go on to amendment 3 in the name of Margaret Mitchell, on a group in its own Margaret, pleased to move and speak to amendment 3. I intend it and to the cabinet secretary, I think that it's useful to know. I'm going to go to amendment 18 and finish, conclude at section 9 today. I think that that's a fair whack at it. We'll not get through it all today. Margaret Mitchell, amendment 3 provides that where an application is made to recover psychiatric, psychological or medical records of the complainer in sexual offences cases listed under section 288C of the Criminal Procedure Scotland Act 1995. The complainer must be notified of a right to seek legal advice and to appoint a legal representative and must also be given the opportunity to seek such advice and appoint such a representative. Where the complainer appoints a legal representative, that representative must be given the opportunity to submit written evidence and represent the complainer at any hearing in relation to the application. The fees incurred by the legal representative would be borne by the Scottish legal aid fund under regulations made by Scottish ministers. As members will know, this is the third bill in which I sought to address the issue of medical records including psychiatric records being released in sexual offence cases where the complainer had had the opportunity would object to those releases. However, what is notably different on this occasion is that this amendment follows the recent decision in the judicial review petition of WFRC's Scottish ministers and intervener's rape crisis Scotland from February this year, which found that in denying a complainer, in this case a domestic abuse victim, the right to oppose the release of her medical records was a breach of her article 8 right to privacy under the European Convention of Human Rights. The Scottish ministers defending their position refused to make legal aid available, arguing that the victim had no right to be heard or represented in front of the sheriff on that application. Lord Glenny, on hearing the petition, held that the Scottish ministers' decision to refuse legal aid was based on an error of law and contrary to the duty imposed on them in terms of the victims and witnesses Scotland Act 2014, which states in section 1 that a victim or witness should be able to participate effectively in the investigation and proceedings. He went on to say that the complainer is entitled to have her ECHR rights protected effectively. Furthermore, I have taken on in the drafting comments raised by the cabinet secretary at stage 3 of the Criminal Justice Scotland Bill. The amendment applies not only to applications in the sheriff court but it also includes similar applications in the High Court for orders granting commission and diligence for recovery of documents and orders for the production of documents. The use of these medical records is often used to discredit a victim's testimony. It should therefore be for the court to determine whether there is a merit in having the documents released. However, the point is that, without the complainer, there to object only one side of the argument is held. Therefore, I believe that there is no reason why the amendment should not be passed as it merely seeks to ensure the findings of the judicial review decision are included in the statute. I move the amendment in my name. I have to congratulate Margaret Mitchell on her tenacity in bringing this issue forward, because she has brought it to stage 3. I thought that it was even more mobile than that. I do not know whether she has managed to wear me down. I think that some of the issues that I had concerns with previously seemed to be in the addressing role. However, I think that this is probably the right place, the right bill for this provision to be included in it. It seems to be an appropriate bill. In the past, I had some concerns about how what appeared to have three different lawyers in court representing different people and also that at one point it seemed to be the case that all complainers would get legal aid, whereas I notice now that the Scottish ministers would make provision for fees. Obviously, there could be some sort of scale, as there would be with accused in terms of their ability to get legal aid. I have considerable sympathy for the amendment now, particularly in light of the case to which Margaret Mitchell referred, and the fact that somebody's human rights might not have been respected because they had been unable to get the provision. I am inclined to support it on this occasion. As Elaine said, Margaret Mitchell's tenacity is well known, and I have supported it in the past. I think that we have been vindicated by the recent judicial review on that. Clearly, the Government has been wrong in law in its interpretation of the situation in relation to the petitions for recoveries of documents. It is quite clear that, in those circumstances, the Crown represents the public interest and not the victim's right at that point. The Crown represents the victim's right as one of a number of competing interests, the right to a fair trial and the other victims, etc., and, indeed, public policy. There is no doubt that there is an anomaly here that needs to be addressed. It does not need legislation to address it. The cabinet secretary could amend legal aid regulations to do so. I urge him to tell us today that he is looking at that, because I think that there has been a misunderstanding in law, and we need to move forward on this. It is a really important issue. Margaret Mitchell referred to the decision of Lord Gennie in the court session in WVS, sorry, WVS, which is an ongoing case. I should be careful what I say about that in that respect, but there are obviously two important points in that case. One is that he clearly found that, procedurally, in the light of article 8, the lady concerned should have been given notice of the application for the witness summons. Having established that, he then went on to consider the issue of legal aid. As Margaret has suggested, he says that convention jurisprudence indicates that the complainer is entitled to have her rights protected effectively. The key question is, how can they be protected effectively unless she is able to have appropriate representation? There are issues that are raised, which might obviously cause a substantial increase in the cost to the legal aid fund for the issues that the cabinet secretary can help us on. I concur with a lot of what Elaine Murray said. Second time today, it is somewhere where I will have changed my position. I think that that is a very interesting ruling, and I am grateful that members are highlighting it. It brings us into the same realm when we are in with fatal accident inquiries and where the public interest in the individual's interests can sometimes conflict. I do not share Rod's view that there will be substantial costs associated with that. There is certainly the potential for substantial injury to individuals if the abuse that can associate itself with this mere request for this information is not allowed to go on challenge. I will support Margaret. Thank you, convener. Members will recall that, as Margaret Mitchell has alluded to, that some amendments have been proposed in the past. I want to start now, as I started then, by sympathising very strongly with the intention behind those amendments. The day after the amendment was lodged, the court issued its judgment in the judicial review by WF. The case dealt with representation from a complainer. I am coming on to that. The case dealt with representation from a complainer seeking to restrict access to her medical records in connection with a criminal case. I must remind the committee that the criminal proceedings that are concerned have not been concluded. The Scottish Government is not appealing this decision. It is an important judgment and clarifies a number of issues that will lead to significant changes in procedure in cases where an application is made to recover sensitive information. The principles confirmed by this judgment apply in all applications of sensitive information, not just in cases of sexual offences. Lord Glennie applies his decision to any person whose adequate rights may be infringed by an order for recovery of medical records or other sensitive documents. The article 8 right is to privacy. The rights that he finds extend, therefore, not only to psychiatric, psychological or medical records but to other sensitive information and also to persons other than a complainer. I have informed agents acting for WF of my determination granting their application for legal aid. I recognise that it was important to deal with this matter first to allow the associated criminal trial to proceed without further disruption. Changes to the legal aid system require to be made in respect of the cases of this nature and plans are being developed to deliver the necessary changes. Meantime, I have put in place interim arrangements that will allow the Scottish legal aid board to provide legal aid in future similar cases. Importantly, a means test will not be applied in this interim arrangement. Legal aid in the form of assistance by way of representation will be available in appropriate circumstances for individuals whose sensitive records are being sought. Lord Glennie has confirmed that a right to intimation and a right to be heard together with where appropriate, a right to representation already exists. That means that there is no need for Margaret Mitchell's amendment. As the amendment is set out in terms of sexual offences, it would introduce unnecessary confusion. What is relevant is the sensitivity of the records in issue, not the particular categorisation of the offence. I note that amendment 8 does not provide for intimation of the application directly to the person whose records are being sought. The judgment has confirmed that a complainer or witness ought to have intimation of the application whether or not they decide to appoint a legal representative. The judgment also confirms that the courts have the power now to protect those rights. For the future, Lord Glennie's recommendation recommends that rules of court are made to cover such applications. There is good reason for that. Rules are inherently more flexible. They are thus a more appropriate mechanism for dealing with the arrangements for asserting those rights. This is the approach that has been taken, as Lord Glennie points out, in civil cases in Scotland and in England and Wales. The challenge for those who are members of the criminal rules committee in developing the rules includes the preservation of the fundamental principle that complainers have no right to appear in criminal trials. Lord Glennie outlines several ways in which the rules that he considers desirable could operate, and not all of those involve an appearance of the complainer in every relevant hearing. There is an additional challenge in that, at present, we do not have data showing what the potential demand may be. In those circumstances, we think that the inherent flexibility of rules of court compared to primary legislation is what is now required. The Government has always made clear that we would wish to invest in support for victims. Members will be aware that I have previously outlined a monitoring exercise that we are undertaking for applications to lead character or history evidence. That is currently under way. The information that this and any necessary follow-up provides, together with developing experience, will, from developing experience, inform the development of the rules that Lord Glennie is seeking. In summary, the aims of the amendment lodged by Margaret Mitchell are already achieved and do not need to be legislated for. It is the case that the position today is that a court will require to ensure that the rights of complainers and others whose sensitive records are sought will be protected through a right to be intimated that sensitive records are being sought and a right to be heard will be given as consideration is given to whether the sensitive records will be disclosed. Scottish ministers have directed the Scottish legal aid board to provide legal aid in the form of assistance by way of representation to afford effective representation to those who seek to protect their sensitive information. We will work to ensure that a permanent solution is put in place that will meet the requirements of Lord Glennie's judgment. Therefore, I ask Margaret Mitchell to withdraw her amendment. I am greatly encouraged by the comments from the cabinet secretary. He has said quite a lot there, which I think needs to be looked at in some detail to ensure that this group of people who I have argued for consistently over many years now are not going to be disadvantaged. There is not going to be a time lapse that disadvantages them if this amendment was passed as opposed to what the Government is suggesting. It does not seem to be the case, but I am happy to withdraw this stage and hopefully work with the cabinet secretary to ensure that we have the provision crisis is in favour of and which we know has been such a barrier to getting a fair trial and invoking article 8 for people who are medical or psychological. Psychiatric records have been sought not for any justifiable reason but merely to discredit them in court. With that, I seek permission to withdraw. I think that you have done very well, Margaret. I think that we are not allowed to clap, but I know how you feel. It is petty, but it is a little. I do not know that I could have let you clap, you know why not. It is very unusual, but we are quite an unusual committee at times. We have been sitting in very long time today. Margaret, do you leave to withdraw? Is that agreed? Thank you very much. I call amendment 8, the name of the cabinet secretary, group amendments 9, 10 and 18. Amendment 8 to 10 and 18 addresses the points raised by Professor James Chalmers in his evidence to the committee during stage 1 about sections 7 and 8 of the bill concerning the extension of extra-territorial jurisdiction of Scottish courts to sexual offences against children committed in the other jurisdictions of the United Kingdom. The concern was that the bill, as introduced, defined habitual residents of Scotland to include persons who had become habitually resident after committing the offent, the criminal act, which are the focus of those provisions. As a result, dual criminality requirements for non-habitual residents of Scotland would not apply in relation to persons who become habitually resident of Scotland at some point after the criminal act. Professor Chalmers argued that the provisions that I drafted had retrospective effect, because simply by moving to Scotland a person could become criminally liable for an act that was not a crime in the place where they did it at the time when they did it. As I said in my evidence to the committee, this is a largely theoretical concern as the law concerning sexual offences against children in the different jurisdictions of the United Kingdom is very similar, and it is hard to envisage acts that are criminal in Scotland that would be lawful in England, Wales or Northern Ireland or vice versa. However, we consider that it is appropriate to remedy the issue through our amendment. Amendment 8 and 10 adjusts the definition of habitual residents of Scotland, which are to be inserted in section 54 and 54A of the sexual offences Scotland act 2009, so that they include only persons who were habitually resident in Scotland at the time that they committed and constituted the list offence under Scots law. As such, a person can be held criminally liable for an act that was an offence under Scots law, but not under the law of the jurisdiction within the UK where the act took place, or where it was intended to take place, only if they were habitually resident in Scotland at the time that they did so. Professor Chalmers also noted that the existing provisions concerning extra-territorial jurisdiction at section 54 and 55 of the sexual offences Scotland act 2009 has the same problem, so that amendments 9 and 18 address that. It is worth noting that a slightly different approach has been taken with amendment 18 in that a person who was not a UK national or resident at the time that they committed the offence in a country outside the UK may be liable to be prosecuted for that offence if they subsequently take up UK residency or become a UK national if the act in question also constituted an offence under the law in force in the country where the act took place at the time that it took place. We have provided for the amendment in this way to ensure that a person cannot take up UK residency or become a UK citizen and, by doing so, evade prosecution for a sexual offence against a child in another country. I move amendment 8. I very much welcome the cabinet secretary's comments. Those points were made by Anne academic and I think for the record the points in relation to sections 54 and 55 of the sexual offences 2009 were highlighted by Gerard Mayer of the University of Edinburgh rather than Professor Chalmers. We had two academics making points and that really helped us with our evidence session on the 17th of November. I am really pleased that the cabinet secretary has taken note of it. You do not wish to wind up, cabinet secretary. Questions amendment 8, we agree to, are we all agreed? Call of amendment 9, cabinet secretary, a ready debate with amendment 8, cabinet secretary to move formally. Questions amendment 9, we agree to, are we all agreed? Questions amendment 10, we agree to, are we all agreed? Call of amendment 10, in the name of the cabinet secretary, a ready debate with amendment 8, cabinet secretary to move formally. Questions amendment 10, we agree to, are we all agreed? Call of amendment 11, in the name of the cabinet secretary, a group with amendments 12 to 17. Cabinet secretary, please to move amendment 11 and speak to the other amendments in the group. Amendment 11 and 17 are intended to enable a prosecution to be brought in Scotland for a listed sexual offence against a child in a case where it is known that the act took place in the UK but the jurisdiction in which it took place is not known. Committee members will be aware of a case highlighted to you during the stage 1 evidence session in which it was alleged that a child was abused in a van travelling on the M74 between Culliland and Friess and the abuser could not be prosecuted because it was not possible to have established whether the offence had been committed in England or in Scotland. While such cases will be very rare, discussions with Crown Office indicate that there has been at least one other case of this kind. We consider that it is also possible that a historic child sexual abuse case could arise where the victim lived as a child both in Scotland and in other parts of the UK, possibly even several other parts of the UK and may not be able to say with certainty whether the abuse occurred in Scotland or another part of the UK. Amendment 11 and 17 provide that an indictment or complaint in which a listed offence is charged does not need information from which country in the UK in which the act took place can be determined. However, if the indictment does not identify the country in which the act took place, certain extra limitations apply to prosecution of the offence in Scotland. Those are, firstly, that prosecution is not competent if the person charged with the offence has been or is being prosecuted for the act constituting the offence elsewhere in the UK, and secondly, that the head of public prosecution in any jurisdiction in which the offence may have been committed must be consulted before the prosecution is initiated. Provision is also made for the unlikely situation in which, as part of a course of conduct, also involving offences alleged to have been committed by the accused person in Scotland, the prosecution wished to liable a listed offence which may have been committed in England, Wales or Northern Ireland but which is not alleged was committed in Scotland. In those circumstances, both heads of public prosecutions must be consulted and the person must also be charged with a listed offence alleged to have been committed in Scotland. Amendment 12 and 13 are minor amendments concerning the requirement that must be satisfied before a prosecution can be brought in respect of a listed offence. When taking together the effects of amendment 12 and 13 is to remove the condition that an act be a criminal offence in the UK jurisdiction where it took place to trigger the need to satisfy the requirements, including the Crown Office obligation to consult with the prosecution service in the other jurisdictions ahead of a Scottish prosecution. There is a higher degree of uniformity across the UK's jurisdiction in relation to sexual offences against children and we think that it is appropriate simply to require prosecutors in Scotland to consult with their counterparts in other parts of the UK whenever they are contemplating prosecuting an act that has occurred in other UK jurisdictions. Amendment 14 deals with circumstances where the prosecutor always allows a complaint or indictment to fall and serves a new complaint in respect of the same conduct. It provides that the consultation with the local prosecutor must take place before the particular prosecution that is being taken forward. Amendment 15 ensures that the existing provisions in the bill intended to prevent people being prosecuted more than once in the UK in relation to the same act does not prevent a prosecution in Scotland where a prosecution in another jurisdiction is withdrawn specifically to allow the Scottish prosecution to go ahead. Amendment 16 is intended to provide greater clarity as to when a prosecution can be said to have been initiated. Amendment 11. Thank you very much. No member has indicated the wish to speak. Cabinet Secretary, I take you don't want to wind up. The question is that amendment 11 be agreed to. Are we all agreed? Call on amendments 12, 13, 14, 15, 16 and 17, all in the name of the cabinet secretary in all previous debate and invite the cabinet secretary to move on block. Does any member object to a single question for amendments 12 to 17? No member has objected. You need to be quick. The question is that amendments 12 to 17 are agreed. Are we all agreed? And last but not the question is that section 8 be agreed to. Are we all agreed? Call on amendment 18, the name of the cabinet secretary. Already debated with amendment 8. Cabinet secretary to move formally. Moved. The question is that amendment 18 be agreed to. Are we all agreed? The question is that section 9 be agreed to. Are we all agreed? That concludes consideration of stage 2 for today. Just a little bit to do next week. Can I thank the cabinet secretary's officials for attending and for the fortitude of the committee, but we're not finished. I'll suspend just for a minute to allow witnesses to leave and we move on to the next item. We'll move on to item 3, public petitions. This is for continuation petition PE137 omigrahe conviction. Last week we agreed to consider this following late receipt of Lord Advocate's latest response to the petition. Members will now have a chance to consider this response along with further material provided by the petitioners. Additional background information relating to our previous consideration was also provided with your papers as requested together with extra papers. I know that you like lots of papers, which came in late yesterday from Lord Advocate's office, so much of it attached, I believe, was previously within your ken. Can I have your views on what you'd like to do with this petition? I'm looking around. Leave it open, is that all? Is there anything else you want to say about it? I would like to say something if nobody else will. It's simply that we want more information on operation sandwood, timescale for it, I think that it would be appropriate to ask that. John? I'm lost to know why we're not in receipt of specific responses to the questions that have been asked, legitimately posed. Indeed, some of the information, for instance, that the Crown agent asked a senior prosecutor who has no private involvement in the Lockerbie investigation and an associate prosecution to access a conduit for senior investigating officer to ensure that access to any material that the Crown has and the police service of Scotland consider it necessary for full and thorough consideration allegations. Is that one of the same person that we're talking about in those papers? It would be very helpful to know the identity of the individuals involved, if not specifically who they are, who appointed them. Basically, everything comes back to these questions legitimately asked, and I cannot see why, rather than have papers delivered to this committee at the 11th hour and appreciating the swift turnaround that was required from last week, we just can't get simple responses to the very unambiguous questions that have been posed. Questions, therefore, are those as contained in the annex to our paper 3? Page 4 and 5. The bullet pointed questions. That's a private paper, isn't it? So this is in public, so I don't need to go through them. Are you agreeable to that? We've learned about these questions for a little while. On 5 January, we didn't raise that issue. I'm asking if you're raising it now. I'm trying to get a consensus. Take no further action before disillusion without closing it. Leave it for a future committee to decide on further action. Can I pitch in here that I would quite like to know who the independent council is that's been appointed? We've not found out that. I wanted to add what we said at the last meeting, but it's a both process and it shouldn't be about individuals, so I'm quite happy to leave it open but not doing any further action. What an astonishing position for elected politicians to find themselves in that a member of the public, one of your constituents, could pose legitimate questions about process and what you've said is we'll pass it on till the end of May. That's not a tenable position at all. Gentleman, through the chair. Before getting attacked, can I repeat exactly what I said? It should be about process and we agreed about that and not about individuals. We made it very clear at the last meeting is what we said we would do. I would repeat it, it should be about process and not individuals, therefore we should leave it open and leave it at that. Do you want to know what timescale there is for the investigation on the progress of Operation Sandwood? I'm happy that you refreshed your question, but I will leave it on that. Do you wish to do that? I'm happy to leave it on that. You're happy with that, that we find the progress of it? No, I'm happy to leave it open. Not to do that. I don't agree with you, but could I have some other voices? There are one or two things that is in fairness to ask, which is what's the progress of Operation Sandwood? It's fair enough. Who's been appointed as independent Crown Council? I've never found that out. It's not, it can't be a secret. Then we'll continue the petition. That's fair enough, those are markers. You don't agree. I made my point very, very clear. I made your point. Anybody else want to say anything, please? Elaine. Given that the committee will only set for another two sessions after this, I'm not really so sure how much more that this committee can achieve as opposed to the next committee of the Parliament. Even if we did ask these questions, what are we going to do with them? Well, they're there. The answers will be there for the next committee, that's all I'm saying. The answers would be there. Elaine Allison. Disillusion is neither here nor there. I think we pursue something with the same figure that we would pursue if we had a year to go. If at the end of the day we bump up against a buffer, then that's what happens, but I think it's incumbent on us to continue to pursue the issues that have exercised us for so long. Which are? Which is what you want to pursue? Yes, which are the points that John and yourself have made about this. These are the bullet points here, pursuing those. You want to do that now. I have to get some kind of agreement from the committee about this. A consensus for you. If it's kind of what's happening to Operation Sandwood and who's the independent Crown Council, in the spirit of compromise of those two points, but I'm not sure that I want to say, we want to go through the whole bullet points that have been on the table. I'm looking at you to see. I'm a bit exasperated. We spent two hours going into the minutia of legislation quite rightly, so very detailed ideas, concepts and the relationships with us and other legislation. Here is a simple process and I absolutely agree with my colleagues. It is a big process, it's not about individuals. I've spent a lot of time trying to understand the process, I don't understand the process. I just thought colleagues in the Justice Committee would want to understand the process. I'm suggesting that rather than reinvent the wheel, a very simple way to do it would be to secure very simple answers to the very simple eight questions that have been posed about the whole process. I really am at a loss to know what the issue is about that. Is there any, you've compromised a little in that we want to know who the independent council is. I think it's a relevant question to ask who appointed the independent council. This is a huge problem, isn't it, for the Crown to some extent investigating the Crown, and that is a process matter question. It's a very unusual circumstance to be in this particular issue. Do we want to ask who appointed independent council? Just ask, and who is that independent council? I think that's a fair enough thing. There shouldn't be any to hide there. Can we ask some of them? I'm trying to get somewhere, John, for everybody. I don't think that the identity of the individuals is necessarily pertinent, to be honest. You don't need to know the identity. We need to understand the process that has been followed. Who appointed independent council? Can you settle for that? I know you have. I'm asking you to try and get consensus around the tables. I want something in the committee to come to. I'm not asking you to agree absolutely everything, but if we all stick in black and white, we're not going to move forward. I don't know what we can do then. Each time we agree about the process, there is a question coming in to identify somebody. No, I've left that. No, bear with me, Christian. I've said all we want to know is, all right, what was the process for appointing independent council? Shall we rephrase it? I don't know what other members think about that, but as far as there is no individual, you know, there is a place for the justice committee, there is a place for the campaign, justice for immigration campaign. You know, if I wanted to be on the justice immigration campaign, I would be on the justice immigration campaign. This is the justice committee. It's not to do with that. I mean, we went through this last week, Christian. It's to do with, let's imagine it was some other petition that had come to us. We're in a process of a very strange situation where somebody is to be appointed to look at the actings of the Crown Office. And that's—I've never been there before and I don't know how you do it. And it's a process that—is the Crown Office never to be investigated by anybody? You know, who holds the Crown Office to account? That's the kind of questions we're asking. I'm looking for you, John. Is that not what you're looking for? Well, entirely. And I mean, I absolutely sense my colleagues' discomfort. And if it helps them, rip the name off the top of the paper and say, if this is Joe Bloggs, how do we answer the process? I mean, many times we've asked particular, you know, when some cases are not pursued, how does the Crown Office, you know, what do—why do they not pursue certain cases? We've raised that before, but this time we're looking at the Crown itself, Margaret. It is an issue about the Crown Office. I've raised—I've written an article on it who watches and who decides Crown Office. It's not a new issue, convener, but we've been with this profession many years way back. I would probably have closed it at an earlier stage. I haven't deviated from my opinion on what I've stated today. I think now is the time to, without closing it, leave it for a fresh— Can I just say then, because I can't get a consensus, I'm not going to get it. Can we perhaps just agree that we find out the progress of Operation Sandwood, and then we continue to open it? That's all I can get today. It's up to individual members to pursue other issues themselves, if they wish, at the time being. I have to get a consensus from committee. Would you agree to that? Right, so would you agree to that, Margaret? The interest of consensus? You're always good at that, Margaret. Beside you, a round of applause today. Never let that forget. You've superseded, Margaret, one liner that absolutely took the feet from under—called the feet from under the Jeep Gunstable. So if we can at least do that, John, it may not be all you want, but let's just do that. I'm going to do that. We keep the petition open, thank you very much. I now move on to item 4 on the agenda. It's consideration of three negative instruments. I'll try to fly through these. The Police Service of Scotland's Senior Officers Performance Regulation creates a process for managing the performance of senior police officers, where their performance is found to be unsatisfactory. The DPLR committee agreed to draw this instrument to the tensions as it contained wealth. Surprise some drafting errors. The Scottish Government has undertaken to lay an amending instrument to correct these errors as soon as it's reasonably practical. Do you have any comments on relation to that particular instrument? Are members content to make no recommendations? I beg your part, John. You know, I would strongly welcome this legislation. I think it could be very timely. You've got that on the record, and we're not making any recommendations. The second negative instrument under consideration is the Civic Government Scotland Act 1982, metal dealers and itinerant metal dealers verification of naming address regulations 2016. It stimulates particular means that can be used by a metal dealer, itinerant metal dealer, for the purpose of verifying a person's naming address in relation to any metal acquired or disposed of by a sailor exchange. Another important little, you know, these are very important, these little instruments. The DPLR committee did not draw the instrument to the tensions of the parliament on any grounds within its remit. Do you have any comments? Thank you very much, we agree. No more, no more thieving of metal. Let's protect network wealth. What did you say, Mr Paterson? I hope that that wasn't written before you came in. Here are members content to be no recommendation relation to this instrument. Before we descend into real frivolity, the third final negative instrument under consideration is the restriction of liberty order Scotland amendment regulations. It specifies that certain devices may be used for the purposes of remotely monitoring a prisoner's compliance with a condition specifying by virtue of section 40 brackets, two brackets of the criminal justice Scotland act 2003. Again, the DPLR committee did not draw the instrument to the tensions of the parliament on any grounds within its remit. Do you have any comments in relation to this instrument? Thank you very much, we are very content to make no recommendations. That concludes our consideration award in the legislation today. The next meeting will take place. You needn't move yet. Class is not dismissed. Don't pack your satchels. Eighth of March, when we will continue to take evidence in relation to the Family Law Scotland Act 2006, consider subordinate legislation, look at a draft of the committee's legacy report and we will conclude our amendments on the Abusive Behaviour and Sexual Harms Scotland Bill and I now close the meeting.