 Welcome to the eighth meeting of the criminal justice committee. We are being joined remotely today by Audre, Nicolle, Pauline McNeill, Fulton MacGregor and Jamie Greene is running late. The first item is consideration of an affirmative instrument, the draft legal aid and advice and assistance financial amendment regulations 2022. I welcome to the meeting Ash Denham, the minister for community safety, Denise Swanson, interim deputy director of civil law and legal system and Martin Brown of the legal directorate from the Scottish Government. I refer members to paper 1 and I initially invite the minister to speak to the draft legal aid and advice and assistance financial limit amendment regulations 2022. Thank you for the opportunity to speak about the legal aid and advice and assistance financial limit Scotland amendment regulations, which will support the coming into force of a negative instrument, the legal aid and advice and assistance, miscellaneous amendment Scotland regulations 2022. Legal aid legislation sets out prescribed limits of initial authorised expenditure. This is the amount of money that is available from the legal aid fund to cover the costs of fees and outlays before solicitor must seek approval from the Scottish legal aid board to incur any additional costs. Due to increases in legal aid fees, including those to be delivered by way of the negative instrument in front of you today, it is likely that without amendment to the current authorised expenditure limits that apply, it would frequently be exceeded by solicitors when they are providing advice and assistance to clients quite early in their instruction. The effect of that would be that solicitors would be required to seek the prior approval of the Scottish legal aid board to ensure the full payment available for the work that is being undertaken. To require such approval for payment that would otherwise be permitted in the table of fees would result in additional time, resource and bureaucracy both for legal aid providers and for the Scottish legal aid board. The regulations increase the initial limits in authorised expenditure in order to address that. Provision is also made to increase the maximum total fees per court session, allowable to duty solicitors representing accused persons in the sheriff or district courts, meaning that the so-called session limits that apply to duty sessions will allow for the same number of accused persons to be represented under a session, notwithstanding that the fee per case has increased. As stated, the regulations support the legal aid and advice and assistance regulations 2022, which will primarily deliver the second part of the Scottish Government commitment to uplift legal aid fees by way of an increase of 5 per cent in 2021 and a further 5 per cent in 2022. The regulations also provide for a new supplementary payment for a solicitor to claim when attending a holiday custody court sitting. Finally, the regulations address an anomaly that resulted from a decision in a case reported in early 2021 on the interpretation of schedule 4 of the civil legal aid Scotland fees regulations 1989, in particular how they should be applied to the fees of senior counsel. That gives the committee a brief overview of the regulations and their context, but we would be happy to answer any further questions that the committee might have. I will now invite questions from members, but I will quickly kick-off with one of my own if that is okay. We have received correspondence from the Law Society of Scotland, which you will have seen. What they say in response to this is that the regulations before us do nothing to address what they describe as a legal aid system at breaking point. What would your response be to that? The regulations in front of you are obviously the 5 per cent uplift that is included in one of them. That was a commitment that was made by the Government during Covid. Over the last five years, we have just run through what the Government has done. We did a 3 per cent uplift in 2019. We did the 5 per cent uplift in 2021, which I have referenced already. You have got the 5 per cent uplift for 2022 in front of you today. We have also put £1 million into funding for trainees, so that was 40 trainees because that was in response to the issues that the profession had raised with us about capacity, so that was an attempt to go some way towards helping to find a solution to that. We also invested £9 million into Covid resilience grants. I feel that, in general, the Scottish Government considers the profession to be a partner with us in access to justice, in running the court system and, because of the pandemic, addressing the backlog that we have, particularly in the criminal courts, we see them as a partner. That is an attempt by the Government to demonstrate how much we value the profession by continuing to uplift the fees. We are also in the process of working on packages of fee reforms, one of which we referenced in a letter to the committee that we are developing at the moment. The full package of fee reforms has gone to representatives of the profession—I think that it was last week—on Monday this week. They are able to have a look at them and decide what they think of those, and that represents a significant investment as well. All of these have been developed in concert with the profession, where we have been listening to the representative of the profession, adapting things, changing them in order to create packages of reforms that hopefully go some way to addressing the situation that we have at the moment. Approximately £0.5 billion was cut from the legal aid budgets up until 2019. Since 2019, there have been increases. The increase that has been proposed in the statutory instrument of 5 per cent is obviously below current inflation rates. Do you accept that it is an effect of cut? If inflation is in the region of 7 per cent and it is 5 per cent, surely you must accept that the value of the money that lawyers will be receiving is going down. It does not keep pace with inflation. Over the past few years, we have had a 3 per cent rise, the 5 per cent rise and the 5 per cent rise now, the additional money for Covid resilience funding as well. I do accept that there are professionals and practitioners working in the system who feel that rates should be raised. I totally accept that. That is obviously for them to put that case forward. We spend much of our time working with the representatives of the profession. That is the legal aid board. We work with the Law Society of Scotland and the Bar Associations. I have said right from the beginning that we have obviously put this fee rise. The one that you are considering today is a cross-aboard fee rise, but there are other ways of doing this as well. I think that some of the proposals that we have in the fee package that the profession is considering show that I am completely open to discussing these things with the profession. If we can find ways of addressing individual fee reforms that can get more money into the pockets of the practitioners, then I am completely willing to consider that. I have said that all along. The rates that lawyers are receiving are broadly similar as they were receiving in 2007. As I said, there have been increases since 2019. Do you think that that explains why so many lawyers are now saying that they will no longer do legal aid work? I think that there are lots of lawyers who are still doing legal aid work. That is an attempt to listen to what the profession is saying and to put a significant amount of Government funding into legal aid. We take it very seriously. I think that some of the reduction in expenditure on legal aid that you have referenced was in response to the economic downturn and savings packages that were made. Those were mainly around subsidiary fees, things like photocopium fees and so on. Many of the fee arrangements that were put in place were done so in response to discussions and negotiations and agreement with the law society at the time. For example, they agreed to take a cut in one fee so that we reduce the number of PDSOs that would be operating in the legal aid system. There are a range of reasons why fees that we have in place at the moment have been agreed. They agreed at the time. I can provide the committee with the read-out of the various fees and the negotiations on how we got to those fees. That is how we have got to where we have got to at the moment. I can have that information sent to the Justice Committee. That would be useful. Could you explain what PDSO is? Oh, sorry. It is the Public Defence Solicitor's Office. Our employees are solicitors by the Scottish Legal Aid Board. They participate in the duty schemes and the percentage of duty scheme time that is allocated to PDSO was agreed with the law society in profession at the time when PDSO was put in place. That is quite a historic agreement, but there are other things. One fee was reinstated and another fee was cut. There were a lot of agreements and discussions made with the law society at the time of those fees being put in place, but, as I said, I will have that set out for the committee and sent over. What you are saying conflicts strongly with the representations that lawyers and their representatives have made to us. If you could provide us with that information, we will put it to those organisations. What they are saying very clearly is that there has been massive cuts. We have only got to look at the rates, the hourly rates, et cetera, to see that as indeed the case, but we would be very grateful for any information that we are able to provide. A question from Pauline McNeill, who joins us remotely. Thank you, convener. Good morning, minister. The convener said at the beginning about the concerns from the profession about the increases, though they are very welcome, don't really meet the whole needs of the service. The minister will be aware that between 2010 and 2020, the number of people providing civil legal aid decreased by 16 per cent, and I met some of those firms, and they do express concern that they are losing lawyers from the profession. In the case of criminal firms, it fell by 25 per cent. In fact, that is what the committee has been hearing for some time. I put this question to virtually everyone, the Lord Advocate, anyone in the criminal justice system, because unless we keep lawyers who give those accused of crimes some choice and who represents them, we really need to make sure that we are not—we do all we can—to make sure that we have a healthy legal profession. I just wondered if the minister had concerns about those figures, about the number of lawyers who are losing from firms doing legal aid. I thank the member for that question. One of the instruments that you have in front of you today is the 5 per cent uplift in it, but it also has a new payment in it. It is a supplementary fee payment for holiday custody courts. This is a direct attempt by the Government to listen to solicitors who are telling us that they wanted that to be addressed. There are solicitors who are working in these holiday custody courts who were not getting an additional payment before, who, if the committee agrees to this instrument going through, will be getting additional money. We are constantly listening to the profession. As I have said, we will adjust fees where we think that that is going to have an impact. As you mentioned, we are talking about civil. The reforms package that we have developed that we have put in front of the profession on Monday, which the committee will have seen some correspondence regarding. There are solemn proposals in there and there are summary proposals in there. In the solemn proposals, that represents significant additional funding. It is a response to requests that the profession have made to us to bring in or to change some of the fee rates and so on, so we have done that. I will ask the minister to come in and explain a little bit more about that, but it is also to say that, in discussion, it was agreed that the civil side would be left at this point to a later date. It is just to give that information to the committee. It is not to say that we think that everything is fine in that front. We have a commitment to come back to that and look at that for fee reforms for the civil side as well. I would like the committee to think of that more as a starting point. We are starting here. We are continuing to consult with the profession about changes. We are putting money into the reform package that we have put on the table this week, which represents several million pounds of additional funding. Denise, would you like to add a little bit more on that? Yes. What we are looking at now are shorter-term improvements that can be made while the longer term issues around the substantial and significant fee uplifts that the profession has requests can be dealt with. That was an approach that we discussed with the profession in December and in January. Both the proposals that are with the profession just now reflect those discussions that we had in January. There is a longer term issue around the significant uplifts that have been requested by the Law Society, and those have to be dealt with as part of our spending review process, because they represent a package of around £57 million per annum. We need to work through ways in which that budget might be allocated to the legal aid fund. On the solicitors leaving the profession, it was something that you discussed with the president of the Law Society yesterday. We are not clear from the figures presented how much legal aid was done by those who have left the profession. We have a kind of projectory of those who provide legal aid. We have a small number of firms that do an awful lot of legal aid and a lot of firms that do a little bit. We are not sure if it is those that do a little bit that are leaving or those that are doing a good proportion of legal aid. That was something that the minister discussed with the president of the Law Society yesterday to see if we could start to get under some of those figures and unpick them in a little bit more detail. We have a question from Audrey Nicholl, who is also joining us remotely. Thanks very much, convener, and good morning, minister. You have possibly just answered the question that I was going to ask in your response to Pauline McNeill's question. You obviously have shared some helpful correspondence with the committee in which you outline some of the shorter term and longer term areas that you are looking at and measures that will be considered in terms of legal assistance. Obviously, we have the legal aid reform bill coming down the track as well. I suppose that my question was just to ask that, given that those potentially will be opportunities. From the previous response, it sounds as though there are opportunities to reconsider legal fees in that work. I am just interested to know why the 5 per cent increase has been brought forward now and whether that could have potentially been rolled up into some of the work that will be coming forward down the line. That was a commitment that was made by the Government in 2020 or early 2021, that we would commit in discussion with the profession—I think that it was around about Christmas time 2020—that the Government agreed to increase legal aid fees across the board measure. At that point, we committed to that at the 5 per cent over the two years. Last year was one and then the one that is in front of you today. That was a previous commitment that we are making good on now. Thank you. No other member of the committee—oh, sorry, but hasty. Jamie Greene would like to ask a question. I am sorry. Thank you, convener. I apologise for missing the opening comments, minister. The carpark is still quite busy in the mornings. I have had a few extra questions to ask you. You will obviously have seen correspondence from the lost society of the 23rd of February, where they indeed recognise the 5 per cent uplift, but they say that it is significantly below the rate of inflation. Obviously, that is an issue for small businesses particularly. The last paragraph of their letter to us is that they say that the legal aid system is at breaking point. I do not know how much of that is crying will for how much of that is true. What was your ascitation of that summary of the legal aid system? I do not know if you caught some of the earlier discussion. We have had quite an in-depth discussion about a number of those points already. What I have said is that I meet representatives of the profession on a regular basis. I met the chief executive of the Law Society yesterday, so we carry out regular meetings with them. I have to say to the committee that they are full and frank discussions. There are no holds barred and the profession is to talk to the Government and say what their perception of the issues are. I would say that, as a Government, we then have to assess the evidence and then we can make decisions on policy based on that. We have heard the profession and that is why we have given the uplifts that we have over the last few years. We know that the profession, among other businesses, were very impacted by the pandemic, so we sought to give them additional resilience funding for that. I accept that the profession feels very strongly about that. It is quite right to obviously strongly represent their profession and to try to get the best deal that they can. That is completely legitimate, obviously. My job is to look at this and to see among the procedures that the Government uses. We have talked about the spending review as being one way of deciding on priorities for the Government and how spending gets allocated across the board. My job in that is to try to find a way through this and to make fee reforms where we think that they are going to be of benefit. We have the instruments in front of you today that represent a significant investment. We had a bit of a discussion perhaps before you arrived about an additional funding package, which, hopefully, you have been able to see some details, which, again, is additional funding on top of the instruments that are in front of you today. I am listening to the profession. I am doing my utmost to respond to the concerns that they are raising. My officials are working with them on a weekly basis to respond to their concerns and to develop fee packages that respond to some of the concerns that the profession has raised, which is what I have been trying to work on over the last year. For instance, the holiday custody courts was an issue that was raised with us. It was something that I wanted to resolve so that practitioners who are working in those courts are getting an additional supplementary payment. That is one of the things that is in front of you today. I have said it before and I am happy to say it again. My door is open. I am willing to talk with and work with the profession on fee reforms. That is what we will continue to do. Thank you for that comprehensive answer. I guess the difference here is that, unlike other businesses that are affected in Covid, the inability of solicitors to undertake their duties or even survive as going concerns affects members of the public in a very different way to other types of commercial businesses. They also state in their correspondence, which we received yesterday. We have just had time to digest. There is a paragraph with key questions in it. Now, they are obviously posed to us, which we are supposed to pose to you, but I would at request maybe if you reviewed those key questions and responded to the committee so that we can forward that to the law society or indeed make it public. I get the impression that they are not confident that there is sufficient capacity in the defence bar to address the backlog of cases. That is quite a key point. It is irrespective of the argybargy over fees. Are there physically enough people in the system that, even if you increase capacity in SCTS, if the prosecution service was able to increase capacity but yet the inability to increase defence capacity at the same rate means that you will not get through the backlog at the rate that I am sure we all want to get through? Is that a concern to the Government? Obviously, capacity issues have been raised with us. We take that very seriously for the reasons that you have just suggested. We obviously put £1 million into the traineeship fund, which you will know that I have seen. That was an attempt to at least go some way towards addressing the sort of capacity issues that had been raised with us. It is something that we obviously are monitoring extremely carefully. That is something that I guess over the sort of more medium-term timeframe could potentially be addressed in the legal aid bill, which should be forthcoming during this session of Parliament. That is helpful. One final, if I have time. Sorry, I know that it is. This issue has cropped up a few times. We did take evidence on it during the early part of the committee's establishment. That was around the salaries. When we posed this question to the Lord Advocate, the response was very much that people take a bit of a pay cut when they go into public service from the private sector. I get the impression that the Law Society think otherwise. They believe that there is maybe a sense of poaching good-quality solicitors from the private sector into the Government or civil service or public bodies who require legal governance and legal assistance. Do you have any indications to where the truth lies or is it somewhere in the middle there? Are average salaries much higher in government agencies than they are in the private sector, for all the reasons that we have talked about and the issues that they have been facing financially? This is one of the issues where it is a bit like apples and oranges. We are not able perhaps to directly compare them, but I will maybe ask Denise if she can give a bit of detail on that in a moment. I would say that crown salaries are published online on the other side. Private companies are obviously free to set the rates that they want to. The short answer to the question is that we do not know. We have had discussions again with the Law Society and the Scottish Solicitor's Bar Association about collecting the evidence and data that will demonstrate some of those situations. Obviously, in private firms, it is a decision of partners on how much salary is paid to employees and that is quite often commercially sensitive information that some firms may not want to share. Those are some of the things that we have been trying to unpick with the Law Society and the Scottish Solicitor's Bar Association to say what kind of evidence could we develop to see where the disparity might be and why. It was also something that came up in the payment panel and a recommendation that was made in the payment panel report around building that evidence base and that database. That work on the payment panel research is on-going. It will be critical that we get the support of the profession in sharing information on salaries, terms and conditions, work-time balance, work-life balances and so on, so that we can try and properly ascertain what the disparity might be. I guess the answer is to improve retention and to stop people leaving the profession. Retention and recruitment were the problem. I think that we have a final question from Katie. I was just wanting to put one of the points on the level of income that has been put to us by the Law Society of Scotland to get your reaction. What they are saying is that even taking into account the recent uplifts and those introduced by the regulations, legal aid rates will be around 60 per cent lower in real terms than when the Scottish Parliament was created. It is quite obvious when you look at the hourly rates that they have not gone up by very much, but the Law Society of Scotland is saying that this is in the context of long-standing decline in overall legal aid expenditure, with the 2021-22 budget being £138 million in comparison with £160 million in 2010-11. Do you accept all that? I think that we need to consider the levels of legal aid provided. Most of the expenditure goes on solicitors' fees, but it depends on how many applications for legal aid are submitted and how many are offered or given. We have seen a decline in that time period of legal aid applications. Those are charted in the Scottish Legal Aid Board annual report. We are starting to see an increase on that. We have started to see an increase just before Covid, particularly around sexual offences cases. We are starting to see a build-up. It is not necessarily a straightforward correlation between legal aid expenditure and fees because it depends on how many cases. Case loads have reduced for the profession during that time period, but it is something that I can take away again and try to provide the Justice Committee with a more structured response to that point that has been made by the Law Society. Minister, you said that this has been a starting point. It would be quite reassuring. Can you confirm that negotiations and discussions will continue with legal professionals on this issue? Absolutely. If we go back to the reform package, it is not in front of you at the moment. This is additional reform. The Solon proposals that we have put forward, we have already discussed them in quite a lot of detail with the profession, so they are pretty much ready to go. I would be able to bring them forward to the Parliament really quite soon. The summary ones need a bit more development, so we are going to take a little bit more time to develop them. Again, that is something that absolutely could be progressed this year. Those ones are already in development. It is certainly a starting point. I think that there is a lot of reform needed to the fees. It is an on-going process, as I was saying before, but we are happy to consider any suggestions from the representatives of the profession on how fees could be changed, altered or whatever are going forward. We would consider that. Thank you very much. No other members of the committee have indicated that they have got any more questions or comments, so we will move straight to agenda item number two, which is the formal business in relation to the instrument. It is consideration of the motion for approval of the affirmative instrument and I invite the minister to move that motion, S6M-03003, at the Criminal Justice Committee recommends that the draft legal aid and advice and assistance financial amendment regulations 2022 be approved. Formally moved, convener. Do members of any other final comments? If not, are we all agreed? Agreed. I invite the committee to delegate to me the publication of a short factual report on our deliberations on the affirmative SSI that we have considered today. That completes consideration of the affirmative instrument. I thank the minister and her officials for attending. We will now move to a short suspension to give us time for the witnesses to depart, so thank you. I am moving to agenda item number three, which is subordinate legislation. It is consideration of two Scottish statutory instruments that are subject to the negative procedure and I refer the members to paper two. Do members have any comments or questions on the legal aid and advice and assistance miscellaneous amendment regulations 2022? Do members have any comments or questions on the Parole Board Scotland amendment regulations rules 2022? No members have indicated that they have any comments on the two negative SSIs, that being the case, are members content formally not to make any comments to the Parliament on these instruments? We will now have a short break to allow witnesses to join us online for the next agenda item. To agenda item number four, it is the coronavirus bill. It is to continue our scrutiny of the provisions in the coronavirus recovery and reform bill. I refer the members to papers three and four, and I am very pleased to welcome to today's meeting, albeit virtually, Vicky Bell, who is a member of the Criminal Law Committee of the Law Society of Scotland, and Stuart Murray, who is vice president of the Scottish Solicitors Bar Association. We very much appreciate the time you have taken to join us this morning, and I intend to allow an hour, up to an hour and 15 minutes for questions and answers. I would like to remind members and witnesses to try and keep questions and answers pretty succinct to fit as much in as possible, and also to ask members to indicate which witnesses you are directing your questions to. If any of our witnesses would like to speak, you can let us know that you want to come in by typing R in the chatroom for a request to speak. We will move now directly to questions, and I will perhaps open up with a fairly general question in respect of what is known as virtual trials or virtual proceedings, and it is really to ask both of you generally what you regard after two years now of this Covid experiment, which has become a bit of a reality. General pros and cons from your perspective, and I do not know who would like to come in first, but I will leave it up to you. Vicky, would you like to go first? Good morning, convener. Thank you for the opportunity to participate today. Yes, I will try to go first. Pros and cons of virtual proceedings. If I could part by saying that the criminal justice system and the partners involved in managing virtual proceedings as a result of the pandemic have been impressive and best efforts always the intention. Always with these things, particularly in going technology, it hasn't always worked. There have been delays caused due to technical difficulties, particularly as an example for remote jury trials. The link has been known not to always work, or witnesses giving evidence from a broad variety of technical difficulties that have resulted in delays. The system is used to dealing with delays, even with in-person witnesses, so we respond as and when difficulties occur, but just an observation that technical faults can create delay. I have not personally participated in a virtual summary trial. My peer, Stuart, has more experience. The only observation that I might offer is the need to be consistent across courts. There is a baseline for virtual trials and then a variation in practice, depending on which court. It is vital that offenders—or those who are accused of에게 pardon—are appropriately supported and have access to justice, but the same for complainers and witnesses. They would receive pastoral care from volunteers at the court who are a part of victim support. That would need to be considered if that were to become a long-term practice. Thank you for inviting me to give evidence today. I am wholly disappointed by the resulting systems that we are working with in relation to virtual courts and virtual trials. I have read—I will not name names, but I have read—a commentary by sheriffs, sheriffs principles and some politicians that has been a resounding success. I can say on behalf of the vast majority of the profession that it has been nothing but a resounding failure, unfortunately. I say that with the caveat that I think there perhaps where those among us—and I say us, I mean solicitors and defence agents—were opposed to the introduction of virtual courts in whatever process or procedure that it was from the beginning. Admittedly, some would never accept the introduction of a virtual court system, but others that I know well tried hard to accommodate the new systems. Of course, those systems have changed during the pandemic. They have changed in their structure and in the software that was used, but ultimately, even those that were pro-virtual courts have now taken the view that the majority of the time they are just entirely inappropriate. I think that the main reason for that is that the one thing that all courts should focus on is access to justice. Ministers involved in the justice profession should be focused on access to justice. Solicitors that appear as defence agents and fiscal that appear on behalf of the crime should all be focused on the phrase access to justice. The virtual system simply does not allow for that in a realistic and practical manner. It is interesting that it is referred to as a virtual court, because, ultimately, something that is virtually something is not the full thing. It is significantly detrimental for the majority of our clients, I think, certainly in the criminal arena. Perhaps in the civil arena there is more room for it and perhaps in both civil and criminal proceedings, there is room to utilise virtual courts or elements of the virtual court when it might assist with witnesses that are travelling a long distance in order to give evidence. Essentially, in the criminal realm, an accused person should be entitled to have their accuser in the same room as them. My view and the view of the profession is that it takes away some of the solemnity of the court process. Vicky's connection appears to have been lost, so we can focus our questions until she returns on you. You are in full flow, so that is perhaps a good thing. I would like to move on to Pauline McNeill, who is also joining us remotely. I want to ask Stuart Murray what you said in your evidence that we should consider access to justice on the issue of the virtual system. You said that there are accusers in the same room. Are there any elements of the process that would be appropriate for virtual proceedings? Witnesses, for example, would you take the same view for witnesses giving evidence virtually? Any part of the process? The Government has indicated that it is a role that they wish to go down, so I would welcome your comments on that. As I have said very briefly, the virtual system could be used for bringing certain witnesses into the court room, but there are so many different types of witnesses in criminal trials and in civil proofs that it is not possible to discuss witnesses per se. I think that, as I have already stated, the removal of witnesses is generally not always, of course not in the case of expert witnesses, one might say, but generally I think that there is a move away from the solemnity of proceedings. When I talk about the solemnity of proceedings, I am speaking about, of course, somebody level and solemn level trials, principally somebody, of course, but I think that being in a court, physically being in a court and even if it is not in the same room as the accused, perhaps giving evidence by way of a video link from another part of the building, it adds a degree of importance and reinforces the solemnity of those proceedings. Those are people's lives that we are dealing with, people's liberty on occasion that we are dealing with. It is important that those witnesses that come to court actually do come to court to give evidence, because only then, for most of them, not all, is it entrenched in them that this is a serious matter and not something to be taken lightly? I hope that answers your question. Convener, I just wanted to ask about the extension of time limits. Would that be okay? I think that we'll come on to that after we've just— I'll go. Yeah, but thank you. Thank you. Thank you. I'm finished. Thank you very much. Thank you. Next, we've got questions from Rona Mackay. Thank you, convener. It's a supplementary to the earlier question. I just wanted to address Stuart Murray's point when he talks about the solemnity of the proceedings. We've heard from women's aid victim support that it's very intimidating for victims and witnesses, and solemnity might seem that way to the legal professionals, but not to the people in court. I just wonder if you take that on board, that for certain victims, solemnity is not really what they're looking for. They're looking to be for a fair and a court hearing where they can express what's happened to them without being intimidated? Well, I think that that's a very interesting take on the process of coming to court with respect. Firstly, what I would say is that, of course, victims appear in court. Of course, there are individuals who are accused and have committed sometimes minor offences and sometimes frankly quite horrific offences, but the starting point that you've given me is that of victims not wishing solemnity, so it appears very much that you're discussing every complainer that comes to court as being a victim, and of course they are not because often accused persons are found not guilty or not proven acquitted in one way. We have to get away from this culture of discussing complainers as being victims. In your point, I suppose, to some extent well-made, you spoke about the stress, I suppose. I don't want to paraphrase you, but the stress of coming to court, but might take this chance to remind you that it is stressful for the accused person to come to court, and you must bear in mind the cornerstone of Scottish justice, which is that you are innocent until proven guilty. To speak about victims prior to their trial being concluded is, in my opinion, wholly inappropriate and absolutely forgetting about the solemnity that is required both for the complainer and for the accused, as well as witnesses who have given up their spare time to give evidence on those matters. The serious nature of those things can only be dealt with through a level of solemnity, which impacts on everybody in that courtroom. Thank you. I would like to add that witnesses are always witnesses. I am told that Vicky Bell's connection has been repaired and she is back with us. I will move on to Katie Clark, who has some questions. We have written to the Scottish Courts and Tribunal Service to ask for information about the extent to which virtual trials and other forms of criminal procedure have been taking place during the pandemic. As you know, the legislation is proposing that the default in all summary cases, which is many thousands of cases every year, should be virtual. Could you give us an indication of how many virtual cases you think have taken place? I appreciate that you will not have numbers, but anecdotally, what percentage of defence agents' case work would have been virtual during the pandemic and whether you are aware of any evidence as to what happened during those cases, including outcomes, whether people were found guilty, not guilty or not proven, and what kind of charges and sentences were involved in those cases. We can take an evidence-based approach in our decision making. I appreciate that you have not been researching those issues, but could you give us a feel for the level to which virtual trials have been taking place in summary cases, perhaps in different sheriffdoms or in relation to specific types of charges? I do not know if Vicky Bell has anything to say there. I know that she said that she had not dealt with any cases herself, which in itself is of great interest. I apologise for demonstrating the cons of remote participation. It was not deliberate. I do not have any sense of the information that you are requesting. I can offer if it would be helpful to invite the criminal law committee to consider the questions and respond in writing. I suspect that it would be willing to do that, but it would draw on data from other justice organisations to inform the response. Scottish Courts and Tribunals Service will have an oversight of how many virtual proceedings have occurred across criminal and civil proceedings. It has been used in civil proceedings and has been welcomed in civil proceedings as something that could become a more permanent feature of civil proceedings. Crown Office Procurator Fiscal Service would also have oversight, potentially. I can share from knowledge that all solemn proceedings have been remote. In part, jurors have been remote, but the courtroom itself accommodated the judge, prosecutor, defence, the person accused, and a combination of witnesses attending in person and witnesses participating remotely. In solemn proceedings, that would be in the sheriff court and the high court. A broad range of solemn offences, the maximum sentence for a solemn offence in the sheriff court is five years, and in the high court there is no maximum. As far as I understand from discussions in the criminal law committee, the members of that committee are made up of a combination of academics and practitioners who work in both prosecution and defence. The overall view, certainly in relation to solemn proceedings, is that there has been no obvious impact on the journey of a case in relation to the verdict or the resulting sentence. Vikki makes a very important distinction between a summary procedure and a solemn procedure. It is fair to say that the high court practice using or facilitating duties from cinemas seems to have worked relatively well, certainly as good a system as we could have hoped for in order to get the high court and sheriff and jury courts up and running again. Of course, those deal with the more serious offences in the criminal justice system, and it is vital that they take priority, I suppose. However, if you spoke to most criminal defence lawyers, and I would also say that most criminal defence advocates, although they accept that it works to a degree, it is again far from ideal. I think that I have yet to see a jury trial where at least one juror does not start to nod off during proceedings. That is because they are not in the court anymore, because they do not feel like a tangible experience for them. There are difficulties with the remote system even in the high court and the sheriff and jury courts. I think that, more broadly speaking, the percentage of summary virtual trials has been very low, and that is partly to do with a change in the technology, partly to do with, as I mentioned earlier, witnesses just not taking the matter particularly seriously. It is really hard to gauge, quite frankly, what the figures are, because for some considerable time, both in my time with the Scottish Solisters Bar Association and previously as the president of the Aberdeen Bar Association, and I should say that I know that my colleague who took over from me as president of Aberdeen Bar Association is having the same difficulties, is getting the data from the Scottish Courts and Tribunal Service to allow us to see what the figures are here. We just do not know, but that data has never been provided, and it is important that it is provided if it is to be realistically assessed. However, the perception on the ground with my colleagues at the coal face is that this is not something that should be pushed through as a default unless, of course, the accused person wishes to comply with the new procedure. I realise that I am going on a bit, but I appreciate that the focus through the Scottish Government has been to prioritise those matters of a domestic nature. However, there are other procedures that could equally benefit from virtual courts and perhaps benefit more from virtual courts such as minor road traffic matters, etc., but perhaps because it is easier to deal with witness-wise and perhaps because those cases very rarely lead to loss of liberty or loss of some right other than a driving licence, of course. Even matters of a domestic nature can be very serious, and so generally people wish to be able to have that within the confines of the court estate, the court building. It has been suggested by some defence agents that the balance between prosecution and defence has been impacted by virtual courts with less people being acquitted. Is that something that you are aware of having been said or something that you have seen in any way? I would say that personally it would be misleading of me to say that I had witnessed that personally. I am aware of the anecdotal evidence from others that take that view. Of course, there is no possible way of knowing because when a case is prepared for prosecution, we are given evidence effectively on paper other than, of course, a way of CCTV, etc. However, for a long time CCTV could not be utilised in a virtual trial. That was part of the reason that virtual trials, the content of them, had to be limited so much. We have really not been able to properly assess how a virtual trial runs in a sheriff court without a jury. It is just impossible to fully comment without the data from the SCTS. However, the reality is, as I keep saying, that why should an accused person be forced to deal with something virtually when, by the very nature of it being virtual, it is indicative of something less than the real thing. That is an experiment. Why should those people be subjected to an experiment for what can only be an attempt to save money and to move matters on? What is interesting, and it is not really connected to that, but what is interesting is that the crown—it is an important point—has yet to draw a line under anything because it has prioritised everything. When it comes to fixing a date for trial, it can only prioritise a few cases. Despite the huge backlog continuing to build and build, the crown takes no view on minor justice of the peace court matters, which will not impact hugely on society, but will continue to increase on the backlog. Thank you very much. We will move on to Collette Stevenson, followed by Fulton MacGregor. I want to touch upon the comment that you made at the beginning. That was that in terms of virtual hearings, there has been a resounding failure. I wanted to see whether you could expand on that, particularly where there has been remote attendance in terms of appearance of accused from police custody. I know that there has been concerns raised from the law society and they have highlighted concerns. I also argued that more detailed work is required here. I wonder whether you could touch on that and see what went wrong. It is a strong comment that you made in terms of a resounding failure. What could work better? I think that what you are talking about essentially here is virtual custody hearings where accused persons are appearing from a police station somewhere in the country. It is not always, in fact, in the same city or town in which there are court appearances. The very outset of virtual custody hearings has been a significant amount of time with Police Scotland and the chief inspectors who were heavily involved in the setting up of that process. What we found were a number of things. First of all, the technology was woefully inadequate. The idea was initially that virtual custody hearings would take place from a police station principally for those who were diagnosed with Covid, being Covid positive or had the suspicion of being Covid positive. That was, on one level, an appropriate thing to do because it prevented a Covid positive person from being brought into court and dealt with social distancing and social contact. Unfortunately, the technology rarely worked. Each court is different, so I can only speak about Aberdeen here, but we would try to speak to somebody in the cells perhaps in Kitty Brewster police station and we would not be able to connect to them. When we could connect to them, we could not hear them properly because the camera was in a different room through a glass panel from our client. The police then also decided that they would carry out a trial system whereby they would choose randomly people to go through the virtual custody system, but that led to huge concerns. Very often, it is only when an accused person sits in a cell block at a court with their lawyer, an experienced lawyer who has been dealing with people with multiple issues for many years that it is only then that it comes to light that an accused person might have mental health issues, might have drug problems that were not entirely patently obvious at first sight, might have difficulties because there were younger people with lack of experience of being in a court. Ultimately, many of our clients, speaking to us from the police station cell block, felt rightly or wrongly that their perception was that they were being dealt with by people who were hostile to their requirements. Only when those individuals were brought to the court to allow them to speak to us face-to-face were we able to put their mind at rest to some extent, not wholly all the time, but it allowed them to see that the person that they were speaking to was interested only in their needs, looking after their concerns and often multiple issues that they faced in their sometimes chaotic lives. For that to be dealt with in one place without having face-to-face contact with your lawyer was significantly worrying for a number of clients. I say this again, I think that there is a perception that all criminals accused are guilty and it is just not the case. People deserve to be able to have face-to-face contact with their lawyer and, especially if that is a duty lawyer and the accused person has never been in custody before. It is really important that their mind, to some extent, is put at rest and that they know that the person that they are face-to-face with is looking after their best interests. Okay, thank you. Could I maybe ask Vicky the same question in what her views are? Thank you minister. My understanding in relation to accused persons appearing virtually from a police station when in custody was brought about as a measure to prevent the spread of Covid by not moving people around from police stations to court cells up to courtrooms and so on. The reason for that was proportionate. Moving forward, however, to agree with Stuart following a rest. Engagement with a solicitor is the first supportive experience for the person who has been accused and is in police custody. It is an anxious time. They are often anxious to understand what comes next and lots of reassurance is required from the solicitor in that context. Although the solicitor is engaging with their client to understand what they are in police custody for in order to then understand what might come next, there is an element of pastoral care to that and creating that relationship in a remote way is challenging or the solicitor and for the person in police custody. Okay, thanks very much Vicky. I've got no further questions. Thank you very much. We'll just move on to Fulton Mackay, who has some questions on this subject and then we'll move on to another area of questioning. Thanks, convener, just for the record. I get Fulton Mackay all the time. Rona, you've called me Fulton Mackay once or twice as well. I thank the witnesses for coming. I hope the witnesses and convener don't mind them. I actually want to go back a wee bit. Stewart just like collected there. It's actually to my line of questioning that my colleague Rona Mackay was going on earlier and I'm sure you'll be used to the points that you've made being re-picked up on. So I do apologise for that. I really like your tenacity in terms of your work for people who are accused. Obviously, it would seem that you would be really good to have on as a lawyer for somebody. However, I also want to say on that same note that I do disagree with one of the comments that you made and that was about the accused should have the right to see their accuser. I can understand that from a general theoretical point of view, but some of the evidence that we've heard in here across the board on a number of occasions and through different evidence gathering sessions is that that can actually be a really, really traumatic experience in some of the most heinous crimes that have been reported. I gather that they are only alleged crimes at that stage and I do understand the complexities around that. However, for me, what has become clear is there's also an access to justice issue because we've talked a bit about access to justice for the accused if they're not getting a fair hearing and getting to have it in the old-fashioned pre-Covid way, if you like, which can include elements of virtue. However, if an alleged victim is so scared or traumatised that he or she can't give evidence to the best of their ability as well, then also you've got another anglophone aspect of justice here. I get that there's a balance on that. I just wanted to come back to you on that point and ask, do you not see any merit at all in continuing virtual hearings for certain types of offences, maybe domestic abuse offences, sexual offences, serious assault offences, those types of things? If not, do you not see some way that has some sort of hybrid format almost as that's what we're using now in the Parliament, for example? Is that some sort of hybrid format that could be brought into almost capturing both elements of making sure that the accused gets a fair hearing but making sure that witnesses who have perhaps experienced really, really traumatic things can actually get to give their evidence in the best way possible? Yeah, I mean, I think it's a very good point you make. Just to be very clear, what I recall saying, and I stand to be corrected, minister, but what I recall saying is that access to justice should be something that is spoken about in relation to everybody, so by the defence, by the crime, by the Scottish Government and the Glade Board, but also in respect of accused persons, complainers and witnesses. So access to justice covers everybody who comes into court, essentially, other than those work professionals. To answer your question very specifically, yes, I absolutely, absolutely think that there must be a process, a virtual, effectively process in place that allows complainers, and that is the word that we should be using, complainers, many of course who have gone through very traumatic experiences in the lead-up to the court process. There must be a process in place to allow them to give evidence in a way that negates as far as possible, and I say that because it's not always possible to negate all the concerns about coming to court, but of course there has always been that process in place. Your question, frankly, highlights, I think, with respect to you, the lack of understanding of what takes place in a court room. Prior to the pandemic and still during the pandemic, there are procedures in place that allow a witness to come to court, a complainer to come to court and give evidence by way of a video link from another part of that court. This is something that I very briefly touched on earlier on in my evidence. Please don't make the mistake that the pandemic has brought in new procedures. What it's done is to bring in procedures that don't work particularly well. There have always been procedures in place in court, perhaps not always, but for some significant years now there have been in place procedures in courts, both at a summary, solemn, sheriff and jury and high court level, where a witness can give evidence either by the use of screens in court or by video link from another place either in the court or in a building nearby the court. That applies to all vulnerable witnesses from complainers in serious sexual assaults to children who are giving evidence in, let's say, I wouldn't call them not serious, but more minor summary-level trials. That has always been the case. Of course we are in favour of that as a profession. It would be wholly inappropriate to put an extremely vulnerable witness through the process of literally coming face to face with their accused person, but that is not what this is about. That can proceed as always was. That was not impacted by the introduction of virtual trials, but it worked perfectly well before virtual trials were introduced. It feels that there's a fundamental lack of understanding of what's happening in a court building during the process of trial. I hear what you're saying, but I think that in defence of the whole committee, some of us have been members of this committee for the second time, but we're well aware of what was available pre-pandemic in terms of remote contributions. Some of us were involved in the vulnerable witnesses' Scotland bill, so I do accept that. I think that what we are hearing now is because of the pandemic, that complete virtual trials are now something that is possible. Even from what we've heard from witnesses in some of the most extreme cases, even just going into a building and okay, being in a different room and there being safeguards in place, but even just being in a different room in the same building as somebody who's accused, sometimes these crimes carry real emotional abuse as well and even being in that same building can impact. So I guess what my question was, I don't want to go back over it because I can feel the convener rise burning me here and I know that there's one time, but I guess what I was asking, you can maybe come back into it in a later answer, was that it's fully virtual and in some individuals in some cases not being anywhere near the building at all appropriate for some cases, but I will rather than go back to your self-sture at this point, I will pass back to the convener to decide what he wants to do. I just very quickly respond to that because it's been put to me, I think, at appropriate that I may be able to respond appropriately. Yes, I accept that, but I say again that there are many accused persons who find it extremely stressful to come to court and that's why earlier on I said that it may be that some accused persons feel that it's more appropriate for them to be able to deal with them out of a way of a virtual procedure. So it applies equally to both complainers and accused as I see it and only in a fair justice system can that be appropriate. It has to be appropriate in any fair justice system that the same rules apply to accused persons and to complainers. I want to put on the record my apology to Mr Fulton, Mr MacGregor. I don't do that and deliberately forget his name wrong. Before we move on to the next line of questioning, Fona Mackay says that she has a very brief question and I'd appreciate if we can keep the questions and answers as succinct as possible given the time that we have left. I'd like to ask Vicky this question, please. In last week's session, Scottish Women's Aid and Victim Support Scotland agreed that the default for domestic abuse cases should be virtual courts. I just wondered if I could have your opinion on that and if you agree that by the very nature of domestic abuse it's not a one-off alleged offence and that's why it's so urgent that these cases are dealt with and there isn't a huge backlog, as we know. If I could just have your opinion on that, please. I agree with that observation. It can be distressing for complainers and witnesses who can often be friends or relatives. Of course, if control is damaging both physically and emotionally, and on the day of the trial, the focus of the witnesses is to talk about the things that have happened and that, in itself, is a re-traumatising experience. On a practical level, coming to the courtroom using the same entrance door to the building—the court building, sorry, not the room—checking in at reception, going to the bathroom using public corridors, going for a coffee using public corridors, the chance of passing the person who is accused or any of their relatives who may be there to support them can add to the re-traumatisation and the distress and, overall, have an impact on how well a witness feels by the time they get into the witness box. There's a period of time in which they wait and experience that additional human contact that adds to the pressure. That's great. Thank you very much. Just moving on to the next area of discussion, which is around time limits in criminal cases. The first member to ask questions will be Jamie Greene, followed by Audrey Nichol, who is joining us remotely. Thank you, convener. Good morning to our guests. Other parts of the legislation that I'd like to discuss today are around the criminal procedure time limits, which arose as a result of the pandemic. You will, of course, be aware of the temporary extension of the time limits, particularly around pretrial in solemn cases. There was quite a substantial extension of the time limits that are normally imposed on cases. Time on remand until service of indictment was 80 days extended to 60. Time on remand until pretrial hearing was more than doubled. Time on remand until trial went from 140 days maximum up to 320. There were similar but not the same extensions in summary cases. I think that we all probably appreciate that that was to ensure that trials and cases did not time out in any way, so they gave the Crown sufficient opportunity to proceed as appropriate given the context of the pandemic. The bill seeks to make in many of those a feature of our justice system perhaps for the longer or indeed long term. Can I ask what your views are on those time limits and the extension thereof? Should we be looking favourably upon them? Should we not? Do you have a view on whether they serve their purpose and we should try where possible to revert to the status quo or at least pre-pandemic time limits? The criminal law committee has discussed the particular part of the bill at length and, collectively, we do not support those provisions for a number of reasons. We agree that swift action was necessary and proportionate when the first Covid legislation was imposed and extended time limits. That was necessary as a result of lockdown, social distancing and a period of time when no trials could proceed. Time limits had to be protected so that cases did not fall. It is necessary to continue consideration of the area due to the backlog, but perhaps in a more tailored manner. There will be cases that do not require additional time and there will be cases that require additional time. As an example, cases that require additional time could, for example, be a forensic evidence as awaited. The backlog and the pandemic has impacted forensic science laboratory labs, for example, so if they require to undertake forensic science analysis to inform evidence in the case, the case needs to wait for that evidence before it can proceed to court. The criminal law committee view is that it should be considered on a case-by-case basis. The additional matter that we discussed in this context is that, if a case is ready for court to be indicted or proceedings commenced, to consider the trauma-informed practice in relation to witnesses, complainers and accused, it can be challenging for people to wait indefinitely for a process to commence. The justice system often sees the end being when evidence is finished, when from a trauma-informed perspective evidence is finished, that tends to be the start of recovery for a complainer. If a complainer has a trial date to work towards, that can be more manageable and less challenging than just having a narrative that says that there is a backlog, it might be a year or two, but we really do not know whether the case is waiting in the queue, so to speak. The criminal law committee are firmly of the view that this should be consulted on in order for all of these factors to be considered and then reflected in whatever extension is made to the existing time limit provisions. I thank you for outlining your reasons as to why you disagree with those elements of the bill. I think that we have also just in context heard that this is against the backdrop of the backlog of cases. I wondered and I hope that I am incorrect in assuming that, because there is such a backlog, there is an inevitability about extending the time limits simply because so many cases will simply not reach the first, second, third stages of the proceedings without some form of extension and no one wants cases simply to fall off the edge of a cliff because they have reached technical time limits. That is not good for either the accused or the complainant, I presume. What is your view? What is the bars association's view? I think that it feels very much, minister, that there is an inevitability to this as you say. I think that, unfortunately, going back in time now, I think that there was an acceptance that there required to be an increase in the time limit because of the pandemic. I think that anybody that suggested otherwise would have been fairly childish about it. The reality is that, throughout the course of the pandemic, the defence bars have felt that every measure that has been taken by the Scottish Government or by the board, particularly by the Scottish Goals and Tribunals Service, has been two or three steps too late in the process. It has now reached a stage in which we have had clients on demand who are now getting so annoyed at us for their cases not proceeding to trial. Of course, that is beyond our control entirely. They are transferring to other firms in the vein, hoping that another firm will be able to fast something for them, but that is clearly not possible. It is for the crown to decide who gets brought to court for trial. In a roundabout way, it is costing the legal board more money because those matters are time-on-line generally. They will get paid again for going through disclosure of evidence that has already been disclosed to another firm. The reality is that those people are sitting on demand with no real access to jobs, no real access to coursework because they are not serving prisoners, very low time out with their cell every day, and they become increasingly understandably frustrated. At the very outset of what we were told is that the crime would prioritise certain matters. For example, a one-accused trial, rather than a multiple-accused trial, and probably something that included a level of domestic abuse. It would be clear that that is at the sheriff and jury level, not at the high court level. However, I have clients that have been sitting in the cells for two years now, and they qualify as that grouping of people that the crime said they would prioritise. They simply have not been prioritised. There is no rhyme or reason to who gets taken for trial and who does not, I think, would be a fair way of putting it. Therefore, there are people in there with very few convictions and not always analogous, I have to say, with the matter of their own remand for them. They are becoming increasingly frustrated, and it is bordering, I suppose, on article 5 issues, the right to liberty. There has to be something done about it. In many of those cases—this is the added difficulty—many of those cases, on an application for bail by the accused, it is really dependent on which judge or what sheriff is sitting on the bench on the day. Some people could be remanded for lengthy periods of time when a different judge might admit them to their liberty on bail. There is no continuity, there is no consistency. It is judge-led, basically. It is something that has to be redressed quickly. Thank you for that. The issue of remand is a much wider issue that I know the committee is looking at, and I think that everyone is acutely aware of. It is sad inevitability that some people may spend more time on remand than they ever would have done in their final sentence if proven guilty, but we can talk about that another day, Mr Murray, in the interests— That's exactly right, that is right. In the interests of time, I know that the convener has questions on this subject. My other question is on the next topic, so I'll save it. Okay, I think that we do have time, but I think that Audrey Nicol is joining us next. Thanks very much, convener. I just want to follow on from the line of questioning from Jamie Green. On the face of it, I am very concerned about the proposed extensions of time limits and the provisions in the bill on that, particularly in the context of remand, as Jamie Green has just highlighted. However, I would like to pick up on your previous point on virtual court proceedings. I think that we would be agreed that there is benefit from a virtual option in terms of expediting a not-at-the-expense of quality of court proceedings, if you like, but perhaps virtual proceedings have their place in helping to reduce the backlog and allow the processing of cases in a perhaps more timely manner. I'm just interested and I'll come to maybe Stuart first of all. On the one hand, you've expressed some concern about virtual court proceedings as an option, but would it be fair to say that, in the current circumstances that we are facing, post Covid, there is a legitimate option within the court process, particularly in the context of helping to avoid extended time scales for court proceedings to be undertaken and completed, thereby potentially avoiding the necessity for the time scales or time limits to be extended on a permanent basis? I'll come to you, Stuart, first of all. Yes, hi, Audrey, thank you. My view is that they are not a legitimate alternative to what I would refer to as a traditional court process. It's an interesting thing because, very often in court, more often than not, probably in most courts up and down the country, what we will find is that there are sort of inbuilt inherent delays, and it might appear that, in a trial, for example, you just call one witness that when it goes away, you bring another witness in, but, of course, this is the real world that we're speaking about, and it's not always like that, and there usually are delays of one type or another, and that might be to do with a witness having difficulty with someone looking after a child, it might be to do with a witness not feeling particularly well or running late using public transport, any of these issues and more. Of course, when you introduce a virtual system, what you do is you increase the propensity, the potential for something going wrong, and that is generally what we have found, that by introducing a virtual system you introduce another layer, another level of things that can go wrong on the day. So, whilst it may appear that it's something that can help to expedite the backlog, it's our view generally as a bar that that's not the case. At the risk of repeating myself again, I do think that it could be a useful tool in the box, and as I say, bringing witnesses from furth of the border can be costly and can be time consuming, can cause witnesses not to be able to be present because of public transport or delays or whether, and so I think that virtually there is a, potentially there is the possibility of using virtual trial systems for witnesses like that, furth of Scotland or taking them from abroad, or something of that ilk, but not in the day-to-day running of the court. That is not working, and I think that I can say on behalf of the entire bars in Scotland, it will not work. We have no faith in it. It is costing time and it is costing money, especially at what we hope that we are coming to the end of the pandemic, certainly in such a way that we can open cinemas again and open nightclubs again and allow people to travel. In those circumstances, we don't understand as a profession why we can't bring witnesses back into court, because it worked before. I don't know if Vicky wants to add anything in on that response. I'm just aware that colleagues are also wanting to ask some questions around time limits. Nothing of value, I suspect minister, but just an observation that I hear what Stewart has to say about respecting the traditional position in which trials proceeded, but I also accept that when dealing with a backlog, additional short-term and longer-term measures are required to have any measurable impact. I'll leave it there in hand back to the convener. I think that we have a couple more questions on the subject, first of all from Pauline McNeill, followed by Katie Clark. As Jamie Greene had indicated earlier, the time limits under the coronavirus bill extending time limits quite extraordinarily to 320 days following a 140-day period gives me cause for concern. I'd like to ask Stewart, you said in your evidence that the cases that are being called there's no rhyme or reason as to which cases are being given priority. That also gives me cause for concern. I wonder if you could give any guidance to me or members of the committee who are concerned about this, what could be the alternative way of going about this. At the moment, if we were to agree these timescale extensions, it would be automatic for every single case, so you can see how that's going to go. It might be your view that, if we didn't extend those time limits, there would be some discretion or is there an alternative way? On one view, the court system is going to be such a mess in terms of availability of courts and so on coming out of the pandemic. On another view of it, if we allow it to go on for another year or virtually a year, I agree that we might be verging on breaching of article 5 in some way. I would welcome the response on that, thank you. I think that we've now reached the point that there's a bottleneck in the system and to continue the extension of the time limits is simply going to cause that bottleneck to fill up even longer. It just seems like a fairly common sense approach to me. The extension to time limits was all taken because of the pandemic. I come from a family of doctors. I mean, I don't think in any way at all that I know anything about the pandemic, about how the pandemic should be dealt with, about how people should be treated. But without a doubt, I see common sense in things and it seems to me that the extension of the time limits is not something that complies with common sense at all. I want to be able to say that the pandemic is over and I can't say that, but, again, repeating myself, I can only go on what the Government is doing. The Government is allowing people back into night clubs. The Government is allowing people to travel. The Government is allowing people to meet and congregate in large groups. It seems to me, as a layman, that the pandemic, as we know it, hopefully is coming to a more manageable time. Why, therefore, can we not manage the Scottish court system in a more appropriate and pragmatic way? I am sorry if that is not filled with technical response, but I think that it is a common sense issue. Ultimately, we have people who are languishing in custody, and some of those people should not be there. As one of your colleagues has just pointed out, many of those people, even if they are convicted, will have been on remand for significantly longer than they may have had a sentence. I think that that is all I can say in the matter. Thank you very much. I think that Katie Clark is coming in now. Thank you. I will pick up on some of the points that Pauline was making. If I come to Vicky first, it is quite clear that we have a crisis. The word bottleneck has already been used. When we heard evidence from the Scottish Prison Service last week, they put the figure of the number of prisoners of remand within the system at 30 per cent, which is higher than the previous figure that we were given of 27 per cent, which was the last official figure that we were given. It is clear that the problem is one that we have to address. What are the alternatives? What are the ways that we could change the system to try to address this crisis? Have you got any suggestions, Vicky, from your own experiences? Thank you, minister. The criminal law committee has had a discussion about what could assist in alleviating the remand population. It is the criminal law committee's understanding that persons arriving on remand has decreased, but the length of remand has increased. It looks like the remand population is larger than we are used to, but it is due to the length of time of remand, not the number of remand, is our understanding. In that context, we have spoken about measures that would reduce the remand population. The first is electronic monitoring as a condition of bail. That might address offenders who might not otherwise be suitable for bail, but it would be if they agreed to electronic monitoring as a condition. We also spoke about the recent sentencing guidelines for young offenders—those under 25—and felt that they would have a positive impact on future remand decisions for that age group and the drive behind those sentencing guidelines to have a more trauma-informed response when dealing with young offenders. We spoke about the need not to have a blanket approach in extending time limits for those on remand and to have a more tailored consideration. Is there a reason why the case needs to wait? What is the reason and approach it in that way? Is there a reason that the case does not need to wait and puts it into court? That would be subject to views of victims groups, which are likely welcomed by complainers and witnesses, as I explained before. It can be emotionally challenging waiting for a date or more challenging than waiting when a date has been set for trial. It allows for coping strategies—as an example, I have eight months until the trial. Those are the strategies that I can deploy in that time to cope with the pressure of waiting versus I have no idea how long I need to wait. That is much more challenging to manage from a therapeutic wellbeing point of view. What I take from that is that you think that we need to review the current remand population and whether those individuals need to be where they are and whether there are alternatives in relation to that population. Yes, if that population has suitable alternatives available, depending on their circumstances, because every decision is that specific, it would alleviate the prolonged remand and also protect the public from risk. If you think that there is a need for a continued use of automatic time extensions, how long do you think that it would be legitimate for that to continue? One of the observations that the current law committee did have when we discussed those time limits and that we could not understand the reasoning for is that the increase in bail time limits, which we do not take issue with, is about 50 per cent, but the increase in remand time limits is much greater than that, and we could not really see any reasons or consideration as to why that was. Normally, a bail trial would commence within 12 months. The proposal is 18. Absolutely no difficulty with that, but the 140-day is increasing substantially more than that. So a focus on those in custody prior to trial? Yes. Yes, I understand. And Stuart, would you be able to pick up on that in terms of what alternatives could you suggest to the committee as to what we do in the here and now, given the crisis that we face? I would like to say, in not answering your question, that Vicky made a very appropriate and valid point, a really important point, about complainers having to wait for the process as well. My role is a defence agent, but I am also an officer of the court. All of my colleagues are officers of the court in the defence and the prosecution. Believe it or not, we do think about the complainers and the witnesses in those matters. I think that, to move things forward, the courts have to be directed to view secondary applications or further applications for bail in a different manner. At the moment, certainly, when an application is made for bail, it is not really a matter for the court to consider the length of time that person is going to be on remand for. They may be able to look at other matters such as lack of income to a family or something of that ilk, but ultimately, the length of time that they are on remand for is not a consideration for the court, and I would suggest that it perhaps should be a consideration for the court. Perhaps secondary applications or third applications for bail could be considered in a different manner. As Wiki says, whether that is being dealt with by way of curfeworders, for example, or restriction of liberty-type devices whereby they are kept within the confines of their own home or a suitable accommodation, those are things that would allow some of that population to be given their liberty. Again, I must come back to this. Those individuals are innocent or proven guilty. That is a fact. That is great. We are just about out of our scheduled time, but I think that we have maybe five or ten minutes more if the witnesses are happy to stay with us. The next area of questioning is the power around the early release of prisoners, and Rona Mackay and Jamie Greene have both indicated that they would like to ask questions on this. The bill seeks to give the Government powers to those similar to what was provided in 2020 to release groups of prisoners earlier than under the normal rules, and certain types of prisoners would be excluded from release. I wonder if I could have your opinion on that policy. There are some concerns, particularly from Victim Support Scotland and Scottish Women's Aid, about that happening. I accept that there should be certain groups of prisoners that are given early liberty. In saying that, I understand that there are certain groups of complainers, and victims, by the time that the accused has been convicted, will undoubtedly have significant concerns about that. For example, I use the word attacker, but for example the attacker being given an early date for liberation. I do not know quite how one gets away from that concern, for those legitimate concerns from those victims now, victims. There are of course civil procedures that can be employed and potentially put in place to offer some protection to people that have those concerns. However, that is a new procedure, another procedure that that victim has to go down in order to ensure his or her protection. I am not quite sure what the answer is to that. Currently, there are too many people in our jails. In HMP Grampian and Peterhead, for example, there have been no young offenders in HMP Grampian for years now. It has been an underfunded and understaffed facility, and that itself causes issues that impact on prisoners, impact on how they serve their time. It is a really complex question that I do not think that I have all the answers to, but I can see an argument from both sides. The first observation that the criminal law committee would offer is that, in relation to subsection 4, there are a list of categories of prisoners who would be considered not appropriate for early release. For example, we have thought that prisoners who have been assessed as posing a serious risk of harm should perhaps fall into that criteria. In subsection 3, there is reference to a governor of a prison, deciding that, if released, the person would pose an immediate risk of harm to an identified person, but the risk of serious harm is not as specific as that in that it is not an identified person. That is the first observation. In relation to continuing the provisions that would allow for early release, the criminal law committee is supportive of that notion, not on a permanent basis and on the condition that proper through-care plans are created prior to release, so that prisoners have the support that they need to reintegrate. I will keep this brief and probably request brief answers. My fundamental question is the power to release was granted to ministers by Parliament on the grounds of the public health emergency, in other words, for the safety and security of those within the prison environment. Is this a power that ministers should have? I am not talking about governors of individual institutions against the backdrop of what is already a debatable presumption against automatic early release of short-term prisoners anyway. Secondly, is this a power that, even if you agree that it should be one that ministers should hold within the confines of a health emergency, it should be one that is kept by ministers after the emergency, for example in the case of any future potential health pandemics, and for that reason alone? I will start with Stuart. I would request that you be relatively brief for that. I think that the second part of that question I think that it should be a power that ministers could have kept slightly further away than arms distance. I think that it is an important power to have in situations like the pandemic that we have been going through. Should ministers have it, I suppose that they have to have it in order to be able to do that. I do not think that it took very long to get the coronavirus act in, so I am not just quite sure that there is a need for it to be a permanent fixture. It is something that can be revisited as and when it is required. That is a helpful suggestion, perhaps something that, if ministers need the power, they can come back to Parliament and ask for it. I think that we have passed the coronavirus legislation a matter of days if I recall us sitting at the time. Vicky, do you have a view on that? I agree with Stuart, and it would allow for proper parliamentary scrutiny about the proportionality of early release provisions. Helpfully brief as well. My last and final question is that is there any concern that having the power may be used as a perhaps blunt tool to reduce our prison population numbers, a point that Stuart alluded to? In fact, it may be used inadvertently not for public health reasons, but simply to get the numbers down. There are other ways to get the numbers down, which we could have a wider discussion about, and I am sure that we will. Given that the high rate of re-offending among the last cohort of prisoners who were released under this emergency power for public health reasons, a substantial amount of them went on to re-offend within a short space of time after release. That has struck the bells of concern among many that we have taken evidence from already. Vicky, perhaps? Do you have any view on that? I am sorry, could you repeat again the question? I apologise, minister. Sure. The first time it was used, it was used under the premise of the public health emergency. Is there any concern or worry that having the power it could be used as a more blunt tool simply to reduce our budgeting prison population? If they could demonstrate a commitment to proper through-care planning around access to accommodation and benefits medical services, the criminal law committee would support, in the short term, the power but not on any permanent footing for the reasons that I have described around the lack of scrutiny. There may be one or two areas of questioning that we did not cover off this morning, just due to the time constraints that we might follow up in writing to the witnesses. Also, if the witnesses feel that they have any other points that they would like to make to the committee, they could also write to us, put that in writing to us. I would like to thank you both for taking the time to join us today and for giving us such frank and interesting evidence.