 Fy enw i'r gweithio ar y 14 ymgyrchu ar y Cymru Cymru. Fy rwy'n ei wneud ymgyrch ar gyfer y dyfodol, ac ymgyrch ei ddweud yma i'r cystafell o'r ddweud i'r Custodyd ymgyrch yng Nghymru yn ystod yn y stêl. I would ask members to refer to their copy of the bill and to the marshaled list of amendments and groupings for this item. I welcome Angela Constance, Cabinet Secretary for Justice and Home Affairs, and our officials to the meeting. May I remind members that officials are here to assist the Cabinet Secretary during the stage 2 debate? They are not permitted to participate in the debate, and so for this reason members should not direct any questions to them. We'll now begin our consideration of amendments. Before we start, I want to draw members' attention to an additional preemption that is not noted in the groupings document. In the 10th group, which is release on licence of long-term prisoners, amendment 74 preempts amendment 10. That means that if amendment 74 is agreed to, I cannot call amendment 10. If we do not reach this group today, this will be included in the groupings document ahead of next week's meeting. We now move to section 1, decisions on bail relevant information. I call amendment 28, in the name of Katie Clark, grouped with amendments as shown in the groupings. Katie Clark, to move amendment 28 and speak to all the amendments in the group. I'm very grateful, convener. It might be helpful for me to say at the outset that I wouldn't be planning on pushing out of the amendments that I've put down in my name in this group to the vote today. They genuinely are an attempt to try to get a better understanding of the Government's thinking and how they understand that those provisions would operate as drafted. It's also worth saying that both Pauline McNeill and myself have had a number of meetings, particularly with lawyers, about those provisions and particularly with practitioners, mainly criminal defence agents. Some of what I'm saying is based on discussions that we've had in those meetings. I speak to amendment 28, which relates to the requirement that the sheriff for judge must give an officer of the court the opportunity to give information. That is an issue that the committee has discussed previously. When we initially had discussions, our understanding was that that would be a mandatory requirement. However, in the course of our deliberations, the advice that we were being given is that that would be simply a matter of the court having the opportunity for a social worker to give information and that that would not be a mandatory requirement. Obviously, the major concern that we had as a committee was the resource implications. The backdrop, of course, is that there are probably far less justice social workers available to the courts now than there would have been in previous decades. There are genuine issues about the ability of a sheriff or high court judge to have access to a social worker in the time frames. In custody courts, it's usually the sheriff court and there will be many dozens of cases going through a busy custody court, for example, on a Monday morning. In the solicitors meetings that we've had, I have to say that the view that we were given both by, I've got to say, sheriff's acting sheriffs, but also defence agents, was that their interpretation of the provision as drafted was that it would be a compulsory requirement that social work involvement take place at this very early stage. Obviously, there are practical implications in relation to that, so I thought that it was helpful to bring us to the committee in the form of an amendment to tease that out and to focus on the specific wording. I think that it is important to put on record that Scottish Labour obviously want a great deal of social work involvement in these cases and take the view that the more information available to the court at the earlier stage, the better and the more lightly that the court is able to make the correct decision in the interests of justice. If I speak to amendment 28, it removes the stipulation that the judge must get information from the local authority before determination, so this, if you like, is a more extreme version of the amendments that I've put down. Indeed, the consensus that came out of the meetings that we had with defence agents was that their view was that the provision was so onerous, it was so unworkable in the early stages of cases where somebody may be arrested one night and appear in court the next day for the level of information or for any information to be available. So, amendment 28 completely removes the provision that the judge must get that information. Amendment 29 is drafted in a slightly different way, and it simply changes the word must to me, so that just clarifies the point, if you like, that this is not a mandatory requirement, but gives the court the ability and makes clear, I suppose, from Parliament our view that actually this is something that would like to happen and that we'd see as advantageous. So, amendment 29 would be a weakened version in that it would mean that the judge only formally gives local authorities the chance to provide information and obviously would have that information where the court was requiring that and was asking for it. So, as I see, very serious concerns have been raised by lawyers about the practicality of these provisions given the level of social work support available to courts at this time, and given the budgetary position that is presented to us by the Scottish Government, it seems unlikely to us that we would be in a substantially different position when this piece of legislation came into force. My other amendment 1 relates to a different issue, and I presume that it would be helpful for me to speak to that at this point in today's discussions. This is a reporting requirement regarding criminal social work provision, and this would be a requirement that the Scottish Government report to the Scottish Parliament on the operation of these provisions, and this is clearly related to the resource implications that I've already referred to, and about the reality of whether it will be possible for social work reporting to be available at such an early stage of cases. So, I hope that that's helpful and it enables us to scrutinise these provisions at this stage. Thank you very much. I now call Pauline McNeill to speak to amendment 49 and other amendments in the group. Thank you, convener. Good morning. Similar to Katie Clark, I'd like to tease out the issues on the same subject in relation to what on the face of it seems a good provision, but we've heard some evidence that suggests that it does need further clarification. My amendment 49 simply removes the requirements similar to Katie Clark's must and says may provide, and I've provided an alternative to that in my other amendment, which just gives the sheriff the right to determine the period of time. I'd like to say why. Part 1 of the bill says that, before determining whether to admit or refuse to admit the person accused or charged to be a sheriff or judge must give an officer of a local authority an opportunity to provide orally or in writing information relevant to that determination. In the committee report, you'll see that Dr Hannah Graham, who gave evidence from the University of Stirling, she said rightly that there is acute time pressures at the point of bail and remand decision making. Already you can see that there is highly pressurised point in the court proceedings of which there now be a mandatory requirement. As Katie Clark has said, in principle it seems a good requirement because you would want all the information that would be available to the sheriff, and of course, currently, if the sheriff does want that information, you can request it. The first issue that the committee did raise concerns about was resourcing it. We've asked the previous cabinet secretary, and we've probably seen the official record, and the committee did ask for some clarification around the resourcing of that. More importantly, there is some confusion not as to why, but how. To quote the Lord President exactly, The objective nature of what is proposed is likely to make submissions to local sheriffs lengthier. Increase the time taken to determine the issue of bail result in some accused persons being detained unnecessarily. While inquiries are carried out, produce more errors, increase the opportunities for appeals and add to the heavy burden on the sheriffs and the staff who are tasked with the management of what can be extremely busy custody courts. I am sure that the committee could understand that when you read that, it gives you cause for concern on a number of fronts. It could potentially cause, under my mind, the whole principle of the bill if it was to result in unnecessarily long detentions in order to gain this information. I would also like to put on the record that, following that previous cabinet secretary, I had a meeting with the officials at the time who said that was a misunderstanding of the provision. The follow-up I received was that there was no suggestion that it should cause any further additional time. I am sure that the cabinet secretary can share my concerns. Why does the Lord President, on behalf of the judiciary, think that that in the first place? What went on between the Scottish Government officials and the judiciary, which you have presumed to discuss with them, how it was going to operate? I think that that needs to be fully clarified. The alternative is to make sure—what I want to make sure at stage 3 in voting for this bill is that we achieve the objectives to give this information before the court, but it does not result in lengthy delays and we are able to resource the required to have this mandatory provision. I call Liam McArthur to speak to amendment 50 and other amendments in the group. I feel as if I am rolling back the years. It is nice to be back in the Criminal Justice Committee having served for five years on the predecessor committee. One of the issues that exercised that committee was the issue around the size and the scale and the extent of their manned population in Scotland's prisons, the effect that that was having. I think that it was probably, if memory serves, the subject of our first inquiry at the start of the last session. I think that that is accepted as still an issue, so I very much welcome the broad thrust of this bill and what it is seeking to achieve, but as ever I think there are ways in which it can be improved. I think similarly I would very much welcome the move to involve criminal justice social work in informing the decisions that courts take in relation to sentencing in terms of bail. I would echo the concerns that we have already heard from Katie Clark and Pauline McNeill in relation to the resourcing of that. That is a service that is already under real pressure and I think they added responsibilities that have been placed upon them as well as the timescales in which we would hope they would be able to respond. I think at the moment give rise to very legitimate concerns. I know they were expressed by the Law Society of Scotland in their briefing for the recent debate at stage 1 that we had on this, but nevertheless I think the involvement, the input of criminal justice social work is exceptionally important and will improve the quality of the decisions that service and judges are able to take. That said, I think it can go further and that is really the purpose of my two amendments in this grouping of amendments 50 and 51. I am very grateful to Victim Support Scotland for their support in bringing these amendments forward. I think that the amendments are really aimed at augmenting what is already in the bill, ensuring that the decisions that are taken are as informed as possible. Criminal justice social work will undoubtedly bear the heaviest responsibility in that respect, but my amendment would allow for information relevant to public safety to be provided to the court by the complainer themselves or on their behalf by Victim Support organisations. I think that this would allow courts to make decisions in the best interests of public safety and victim safety while also respecting the rights of the accused. At this stage, I am interested in the views of Government on this additional provision. I think that it does not, in any way, delete what is there. What it does is broadens out the information that is available to the courts for the decisions that fall to them to make and therefore can only enhance what the bill overall is seeking to achieve. I look forward to the debate on that, but thank you very much indeed. Thank you very much. I now call Collette Stevenson to speak to amendment 52 and other amendments in the group. Thanks, convener, and good morning. I have had time to reflect on this and I have sought out further advice as well. I have decided that I am not going to move this amendment. However, I will be keeping an eye on it when we come to stage 3 in terms of development. Thank you. I apologise, Jamie Greene. Apologies, convener. I should have indicated earlier. Good morning, colleagues, and thank you for your contributions. It was just to say on the scraping thus far that those amendments that are moved, we would support them all if it is helpful to members. I know that you will have to make some decisions on that, except 28 and 29, which I appreciate Katie Clark's indicate. It may not move, but equally we were quite keen to understand what the cause and effect of those amendments were, but it has been made clear through Ms Clark's comments. I also would have supported amendment 52. The reason for that is that I try to submit a very similarly awarded amendment, but it was explained to me by the legislation team that a similar amendment had already been lodged, and therefore I was unable to. For that reason, as you can see in the papers, I added my support to amendment 52. I think the reason why, and given that Ms Stevenson has reflected on it and I think indicated she won't move it, the reason I wanted to submit a similar amendment is that I think it's quite relevant, quite pertinent. What it does, and I'm sure the cabinet secretary will have some commentary on it, is really around the issue of the safety of victims around decisions of bail. The amendment itself specifically provides for information submitted or obtained from victims to be included on the question of bail with specific regard to any vulnerabilities particular to that victim. Of course, bail decisions don't just affect the offender or the accused, I should say, but also the complaining as well. I think that Stevenson's amendment recognises that, indeed, I welcomed it. It is for that reason I will move the amendment when it comes to it. Thank you very much. Any other members wish to come in? Cabinet secretary. Good morning, thank you, convener. I will speak to amendments 28 and 29 and then to other amendments in the group. While resource concerns have been expressed about the role of justice social work, the bill requires only that the courts give justice social work the opportunity to provide information relevant to the question of bail. It does not place a duty on them to do so. We have deliberately framed the provisions in this way to ensure that local authorities will always have the opportunity to provide information but it will be a matter for them to decide whether to do so in any individual case. I am grateful to the cabinet secretary for taking intervention. Obviously there is not an obligation on justice social work or on local authorities to provide input on any individual case, but I think that the concern being raised is where there are funding restrictions. The decision about whether or not to make an intervention, make a contribution may be as informed as much by that whether there is a valuable contribution to make. I will address some of my comments more specifically to resource issues in a week while. The heart of the matter here is far more in relation to whether or not justice social work has a relevant contribution to make or relevant information to pass on. In terms of the amendments that we are discussing right now, it is much more about the practical impact of those rather than the resource. Of course, when they have a valuable contribution to make, they should of course be enabled and powered to do so. Consequently, amendments 20 and 29 are, in my view, unnecessary, though I can understand why they have been lodged. If there is a way ahead of stage 3 to reframe the ability of justice social work to provide the court with information, I am happy to consider that, but I think that the bill currently delivers what we want in this area. Moving on to amendment 49 from Pauline McNeill, the bill seeks to remove the requirement for the court to provide an opportunity for justice social work to provide information relevant to the question of the bill. There have been suggestions that decisions on whether to admit an accused to the bill could be delayed by section 1 of the bill. However, the approach in the bill will not result in unnecessary or longer periods of remand. That is because, under existing bill law, that will continue to operate. The court has only until the end of the day after the accused person's first appearance to make a formal bail decision. That is what was said to me after the stage 1 report, but I am still left wondering why does the Lord President seem to think otherwise? Why do you think the judiciary's interpretation is that it could add some time on? That is what I plead with the cabinet secretary about. I support the notion that the opportunity should be mandatory. However, the operation of it needs to be sorted out if the judiciary thinks it could result in lengthier. Perhaps it is the phrasing of the current bill. That is why I put the alternative in. In that case, for sheriffs, to determine how long you could speak to, how is that meant to operate? It is a smaller court and there is no local criminal justice social work available at the court. In Glasgow, they would be available, but they would be busy. How is it meant to operate? Or, if you cannot say now, is that something that you could discuss with us and I am not inclined to accept or to support the current wording unless we can clarify this. I would not really be putting this as strongly if you did not have the Lord President who seems to think otherwise to the Government's interpretation. Let me continue with the train of what I was previously saying and I will, I promise, explicitly address your points in relation to the Lord President because they are important. The court is required to decide on bail on the basis of the information put before it in that timeframe that I referenced earlier. Whether or not the justice social work has provided information equally, there is no risk that bail will be refused because the court is awaiting information from justice social work again under existing law and under the bill, awaiting information from any party reason to refuse bail. Amendment 49 would leave it to the discretion of the court whether to offer an opportunity to justice social work to provide information. There is a risk that this could mean valuable information is not provided in individual cases and in terms of the Lord President. So committee will be aware that the Lord President as a member referred to offered views and is helpful if I take each of them in turn. In terms of prescriptiveness we acknowledge that the new bail test is more prescriptive. This is because it adds two new specific public interest considerations where one or the other must be present in order for bail to be refused in the future and just for the record these are the interests of public safety including the safety of the complainer from harm and a remand being necessary to prevent a significant risk of prejudice to the interests of justice and this is a deliberate policy approach designed to focus the use of remands so yes it is more prescriptive but it is prescriptive with a purpose it is part of the policy goal of a more focused use of remands which hopefully over time can help reduce the risk in terms of time taken which the member specifically referenced yes we acknowledge some time may need to be added to some bail hearings this is to ensure that the courts have better information to make their decisions Moving on to amendments 50 and 51 in the name of Liam McArthur the court to seek views directly from the complainer or from victim support organisations on behalf of the complainer to inform the bail decision these are well intentioned however we have concerns about the practicalities due to the time scales within which bail decisions have to be made particularly in custody cases it is also necessary in my view and may have unintended consequences when the court is deciding whether to grant bail the prosecutor and the defence are also able to make submissions to the court on the question of bail in doing so the prosecutor can and should make the court aware of any safety concerns which the prosecutor thinks arise based on the particular facts and circumstances of the case this is particularly so under the new bail test which centres the consideration of public safety in bail decision making including safety of the complainer from harm convener we all agree that it is important that the complainer's voice is heard in the court process and I am happy to discuss this area further with Liam McArthur ahead of stage 3 however it is also important to be mindful of the sensitivities around communicating complainer's safety concerns to the court particularly in domestic abuse cases domestic abuse involves very complex dynamics where it can be important that information about concerns that may lead to a partner or an ex-partner being placed on remand is not attributed to information provided by the complainer so as not to compromise safety or make complainers fearful to engage yes of course I am keen to explore that further is the suggestion therefore that the reason that the amendment that Liam McArthur proposes technically problematic is that it means that information from the complainer relative to the decision making would be made public or would be spoken out loud in the remand court is a technical solution to that and that the judge could clearly have all the information relevant but doesn't necessarily need to share that with the public gallery or indeed any others in the room and secondly surely that information is quite important to the decision making process because the ability to understand whether there is a public safety issue is very much dependent on direct information from a victim or someone representing them in this case yes, convener and that's why I said that I was happy to discuss this matter further with Liam McArthur at stage 3 and that we do have to be very mindful of unintended consequences in this area for the reasons that I have laid out already I think it's also important to stress that the reason that the it's important that the prosecutor acts independently and the public interest is best placed to provide complainer safety information to the court presented as part of the prosecutor's submission on bail as well OK, I'll just address some of the resource issues for the record before I move on to the amendments that's laid by Collette Stevenson As I've already said to committee you understand concerns about the potential financial impacts of the bill they are of course laid out in the financial memorandum but just to give further reassurance to committee that we have worked with Social Work Scotland who are supportive of the approach that we're taking in and around just as social work in bail but also COSLA and the Scottish Courts and Tribunial Services as well as others and that was part of our work to address the financial memorandum but I would stress that we will continue to work with these organisations on the implementation plans for the bill and of course as we all know Parliament sets its budget on an annual basis I'm moving to amendments 52 and 54 in the name of Collette Stevenson these prescribe certain information relating to the complainer that justice social work must put before the court when taking up the opportunity to provide information relevant to the question of bail I do understand the intention behind the amendment however it would have very considerable resource implications as justice social work are not usually currently involved in providing information to the court about complainers there has been no consultation on creating such an expanded role for justice social work and we've already heard concerns about resourcing that aside it is unrealistic for justice social work to provide information of this kind within the timescales prescribed by the bail process particularly in custody cases as justice social work may not have any pre-existing relationship with the complainer we also know from the experience of specialist domestic abuse advocacy services like assist that in the wake of the trauma and confusion of an incident complainers are not always physically or emotionally safe at this stage of the process to engage an amendment on the face of the bill is also not necessary to broaden the role of justice social work because section 1 does not prescribe the type of information justice social work must provide on the question of bail and justice concerns this is something that could be for consideration in the medium term and I'd be happy to discuss further to see what if anything could be planned for outwith the bill process amendments 53 from Pauline McNeill seek to provide that we are just a social working tent to provide information to the court on the question of bail they must do so within timescales determined by the sheriff or judge for amendment 49 any delay in justice social work providing information will not change the timing of the bill decision and as such yes I'm just trying to understand and process everything you're saying to the committee because earlier you did accept that sometime may be needed so it's a mandatory requirement to give the opportunity to be taken up or not and sometime may be needed but what does that mean because that could mean well till a social work oh we want to give a report and I realise that can be orally as well as in writing do you not think that some consideration needs to be given to the formulation of this otherwise it's already some misunderstanding about the provision because you wouldn't want a situation where the accused is detained further while awaiting a decision on bail in the first place so for further clarity convener earlier in my remarks where I acknowledged that there may be depending on the nature of information provided some further some further time required at a bail hearing at the actual hearing but that is separate from the timescales and when a bail hearing must be heard so I hope that is helpful that you are saying that the hearing is on the day right, okay, thank you okay and a further remark in relation to ms McNeill's amendment 49 is I just don't think there would be any practical benefit from the amendment and I say that with respect amendment 1 from Kate Clark seems to put in place a requirement for the Scottish ministers to report to Parliament on the operation of section 1 I recognise that the enhanced role of justice social work carries resource implications as set out in the financial memorandum we have also been cleared during stage 1 that the Scottish Government will continue to work with partners during implementation planning to review the resources requirements and timescales for commencement members will be well aware that there are real challenges in relation to budgets and this is likely to continue and that means that difficult decisions will possibly need to be made and phased implementation of legislation can be a way of flexibly managing the resource implication of any bill it's also worth highlighting that Parliament and indeed this committee already has the power to carry out post legislative scrutiny on any acts of Parliament and I ask members to reject the amendments in this group thank you very much cabinet secretary so I'll call Katie Clark to wind up and press her with draw amendment 28 thank you I'm very grateful to the cabinet secretary for what she said and I think her intention is clear I don't plan to push any of these amendments to the vote so we'll be withdrawing them however I'm grateful that the cabinet secretary has said that she will look at whether there's a need to reframe the wording of the legislation given that we do seem to have different legal views on how this clause would be interpreted and I would be concerned that there's the possibility of appeals if there are different legal interpretations of the wording so it's very much technical issues that I'm raising rather than the principle which I think the cabinet secretary has made clear amendment 1 I put down because I am concerned about the resourcing implications whilst politically we are very supportive of more social work involvement and more information being available we also are very aware of the cuts to justice social work over recent decades and that in reality it's not going to be possible for justice social work to get involved in every case because it's not possible to put down an amendment that would enable this legislation to create the funding to ensure that there was adequate resourcing the amendment was framed in the way that it has to bring focus on the resource implications of course I'll take an intervention I find amendment 1 very helpful it's not a huge surprise that the Government have pushed back in my experience working on many bills any report requirements added by members are generally rejected by the Government nonetheless they do sometimes appear I do hope the member presses amendment 1 or at least attempts to bring it back at stage 3 it's not placing any onerous ask of the Government I would perhaps comment that the time skills are tight you know one year after legislation is just a little bit on the tight side but that could easily be amended at stage 3 to 2 or 3 years the rebuttal that postsledge scrutiny is the answer to that I don't buy because generally it takes a number of years and it's not always done and it's not always done well given that committees are extremely busy so this would require the Government to come back to Parliament with a report for the very reasons that Katie Clark rightly mentions and that's the very substantial worries that the financial memorandum have massively understated the costs to social work we've heard as a committee numerous pieces of evidence from social work under pressure and I think it would be a very welcome addition so I hope the member moves it I'm very grateful to Jamie Greene about what he said and I will reflect on what he said before the next stage it wouldn't be my intention to push the amendment to the vote on this occasion but I suspect it will be an issue that I would want to come back to at a later stage okay so do you can you just confirm your withdrawing I withdraw my amendments okay thanks for that the members indicated that they wish to withdraw the amendment does the committee have any objections to the amendment being withdrawn okay okay okay so I call amendment 49 in the name of Pauline McNeill already debated with amendment 28 Pauline McNeill to move or not move I'm going to come back to this at stage 3 when I've processed it I will not be moving to date okay I call amendment 50 in the name of Leanne McArthur already debated with amendment 28 Leanne McArthur to move or not move thanks Kevin I very much share Jamie Greene's view in relation to the ability to convey the information to the court in a way that doesn't compromise the victim safety or public safety but would inform the decision to comment the cabinet secretary made about engaging in further discussion happy to do that and on that basis I won't be moving the amendment thank you very much I call amendment 29 in the name of Katie Clark already debated with amendment 28 Katie Clark to move or not move not move I call amendment 51 in the name of Leanne McArthur already debated with amendment 28 Leanne McArthur to move or not move not move I call amendment 52 in the name of Collette Stevenson already debated with amendment 28 Collette Stevenson to move or not move not moved Jamie Greene I think you indicated earlier you were considering moving amendment 22 I do support that amendment so we'll move it instead the question is that amendment 52 be agreed to are we all agreed okay we are not agreed therefore we will move to a vote so can I ask all those in favour of the amendment to raise your hands all those against raise your hands there are no abstentions so there's an equality of votes therefore as convener I'll use my casting vote and I'll vote against the amendments so amendment 52 I call amendment 53 in the name of Pauline McNeill already debated with amendment 28 Pauline McNeill to move or not move I'm not moving but I'm hoping there will be some understanding between the Government and the judiciary on what cabinet secretary said today which is it would be expected that the whole process would be conducted within one year I will not be moving okay, thank you I call amendment 54 in the name of Colette Stevenson already debated with amendment 28 Colette Stevenson to move or not move not moved so the question is that section 1 be agreed to are we all agreed agreed, thank you so I call amendment 1 in the name of Katie Clark already debated with amendment 28 to move or not move not moved thank you so we now move on to section 2 entitlement to Bail and I call amendment 55 in the name of Katie Clark grouped with amendments as shown in the groupings and I draw members' attention to the procedural information relating to this group as set out in the groupings and I point out that if amendment 55 is agreed to I cannot call amendments 56, 57 31, 58 59 30, 60 61, 62 32 63 or 64 due to a preemption if amendment 2 is agreed to I cannot call amendments 33 64 again due to preemption and I call Katie Clark to move amendment 55 and speak to all the amendments in the group very grateful convener and my amendments in this group relating to the entitlement to Bail relate to three areas to the public safety test to the fear of flight and some amendments relating to the issues that have been raised by victim support Scotland in relation to these provisions at amendments 35 and 36 which are alternative approaches in relation to the issues that have been raised amendment 55 is a probing amendment it removes the new public safety test for Bail so that the law would revert to the current interest test as I indicated previously Pauline McNeill and myself have been involved in a number of meetings with agents, defence agents and other practitioners and indeed on occasion some sheriffs in relation to the drafting of this legislation and the view of many that we've met is that this would be the preferable approach in relation to this piece of legislation due to the uncertainty of how the new provisions would be interpreted by the court and the fear has been outlined on a number of occasions that the lack of certainty in relation to the definition of the public safety test is likely to lead to appeals and even if it is the case at the end of the day the outcomes would be the same as they are with the current Bail law that the uncertainty would not be in the interests of justice would not be in the interests of victims and indeed would cost the public purse in relation to the arguments being presented within the courts as to the interpretation of the legislation so as I say my lead amendment is the public safety test I am looking for the cabinet secretary today to perhaps outline why it is that the government is coming forward with this change to have an understanding of how they believe it will impact on Bail decisions in the courts particularly given that Lord Carlaway's submission to the Scottish government was that whilst this legislation had bureaucracy would put more onerous requirements on the court the outcomes would not be changed so I would be looking to the cabinet secretary to give an explanation as to the kinds of cases where she would expect that Bail would be allowed if this act were to be enforced where it would not be at the moment and similarly if there are situations where individuals would be remanded with this law where they currently are not so amendment 31 would enable the court to have the discretion to take into account conditions such as electronic monitoring or other specific conditions or requirements that they accused was subject to this is an issue that was discussed within the committee and the approach that the Scottish Government is putting forward is that where an individual has been subjected to electronic monitoring it would be compulsory for the court to take that into account and that for every day of electronic monitoring then that would be counted as one day in custody the approach that I've outlined at amendment 31 would enable the court to have the discretion to take into account any period on electronic monitoring or indeed any other specific conditions and whether the accused has complied with the conditions that they have been subject to that would mean that the court would have the discretion on occasions to reduce a sentence for example if the person had complied with the conditions of curfew or indeed had complied with electronic monitoring and there was evidence to suggest that but would not oblige the court to do that that would be a matter of discretion but similarly it would enable the court to increase a sentence if an individual had not been co-operative with the special conditions that had been placed on them so that could be that they hadn't been co-operative with electronic monitoring or indeed a curfew or another condition that had been presented by the court for example they'd made attempts to contact or approach the complainer and the reason obviously that I've put down this amendment is to enable the court to have a far broader range of responses and to take account the specific facts that are presented amendment 30 is also in this group it is a probing amendment and it comes about as a result of discussions in relation to the public safety test and as has been discussed by the committee previously and has been put forward by lawyers in their various representations there is a view that it would be helpful to have a definition of a public safety test I think one of the concerns I've had is that I have attempted to ask others to draft a public safety test or to give an indication of the factors that they believe should be on the face of the bill and I have to say that they have been reluctant to do so so this amendment is very much a probing amendment it's an indicative list of perhaps the types of factors that might be taken into account as I say it's a probing amendment it's not something that I would be planning on pushing today but I would be looking for the Government to give an indication as to whether these are the kinds of factors that they expect and would be taken into account by the courts when looking at what public safety would involve 63 is an amendment which requires consultation with victims groups in terms of the drafting of a public safety test so this amendment would require the Scottish Government to come back with detailed proposals in terms of how the public safety test would be interpreted by the courts in writing and would require the Scottish Government to consult with victims organisations and others in relation to how the courts would be expected to deal with these matters amendment 32 has been put down to try and get a better understanding of the Government's thinking the current provisions of bail are very clear that the court has the ability to refuse bail where it believes it is in the interests of justice and prejudicial to the interests of justice and section one of the ways that it could be prejudicial to the court process for someone to be allowed bail is if it means that they are going to be given the opportunity to intimidate witnesses or indeed complainers and it is unclear whether the Government is expecting that the courts would have a lower threshold when looking at these issues if this legislation were to pass so amendment 32 would have the effect of reintroducing the current law in relation to intimidation of witnesses and complainers and would put in the black letter of the law the provisions that would make it clear that the court had the responsibility and entitlement to remand someone where they believed there was a legitimate fear that there could be intimidation the further amendment it relates to fear of flight one of the issues that we focused on but didn't get debated to any great extent when we were discussing the bill as a committee was that one of the changes from current bail law to the provisions set out in the bill is that a public safety test would be very much focused on the risks to the public and the fear of flight and issues round about absconding primarily relate to the ability for the interests of justice to be served to ensure that the court process is enabled to its conclusion because the accused is available to attend in court and it would be useful to get an indication from the Government as to how many individuals they feel are currently remanded because of issues relating to fear of flight and individuals absconding and to get an understanding as to whether they believe that the bill as drafted would mean that less individuals who fall into that category would be remanded and what the implications would be to the justice system and the ability to obtain convictions if that were to happen. Amendment 33 is a similar provision. My understanding and the understanding of those that I have taken advice from is that the drafting of the bill would be the failure to appear in that particular case which would be the interpretation that the court would be obliged to take when considering whether bail should be available. Amendment 33 would enable the court to take in a wider course of action into account and where there is a history of the individual failing to appear in other cases of absconding either because of evidence of previous convictions or indeed other evidence that could be provided to the court then that information could be taken into account. Of course I'd be happy to take an intervention. With specific reference to amendment 33 we were trying to decipher the effect that might have so is the purpose of this that it's not just the diet relevant to that specific remand hearing that must be taken into account but it's any and all outstanding hearing so if someone for example if an accused is in front of a remand court but is also subject to another a number of other live cases which are going through the system and there is a history of of absconding for example in those cases that that may be taken into account on this case it sounds like it may open it up to quite a lot of work involved who would present that information to the judge or to the crown to deliver that information I mean I'm very sympathetic to the idea of it because I think one of the problems we and I'll come on to that in my own amendments is the this issue of the safeguard of being able to remand for repeat absconders it may be removed as a result of the new bill so I just wonder if you could clarify the effect that this amendment would have so amendment 2 would revert to the original wording on absconding set out in the 1995 act however amendment 33 which Jamie Greene refers to as he says would set out that when considering whether to review this bill the court can take into account any on-going or previous proceedings not just the accused's failure to appear which indeed is the current legal position that the court can take these matters and indeed does regularly take these matters into account so the court takes a view as to whether they believe that the accused will come back if they're given bail and they will appear for the next court case so that the mind standing of the provisions in the bill as presented to us today is that if the individual has failed to appear in previous diets of the case before the court on that occasion that would be a matter that could be taken into account however if the accused had failed to appear in other outstanding cases that hadn't yet reached their conclusion strictly the interpretation of the legislation would be that that couldn't be taken into account but also what often is the case that it will be clear from someone's schedule of previous convictions that there has been failure to appear on previous occasions in relating to other matters perhaps where the accused has already been convicted so the effect of section 33 would be to make it clear for the avoidance of doubt that it wouldn't just be what had happened in that particular case and in relation to that particular complaint that could be taken into account but other matters other information could be taken into account by the court which is how Scots law has worked up till now and therefore this is very much attempting to get a better understanding from the Scottish Government about how this bill would change law and whether it would make a significant difference it is an issue that I put to the Cabinet Secretary when he appeared before us and he said well of course if people didn't appear it would be remanded but we obviously can't just rely on what the Cabinet Secretary says to us the former Cabinet Secretary it's the strict interpretation of the legislation that the courts will be attempting to grapple with and therefore we need to make sure that they have the tools to ensure that they're able to take into account the circumstances that are presented to them in relation to amendment 34 that's a consequential amendment to amendment 33 as I indicated previously amendments 35 and 36 are amendments that I have worked with in relation to issues that have been raised by victim support Scotland they are alternative wordings alternative approaches in relation to 35 and to 36 I think are probably issues that we'd want to come back with at the next stage that 35 would ensure that the safety of the complainer has to be taken into account this amendment would have the effect of ensuring that the court must when granting bail state the reasons as to why it considers granting bail does not pose a risk to public safety the current wording of the bill before us would require an explanation when an individual is remanded so the presumption is that somebody does get bail and there doesn't need to be an explanation as to why somebody is granted bail but when a person is remanded the court would require to give reasons and to set those reasons out as I say this amendment has been put down as a result of discussions with victim support Scotland who are concerned that often victims do not understand why bail has been granted and this would enable if you like equality that it wouldn't just be where someone's remanded that reasons are given as where somebody receives bail and amendment 36 is an alternative I'm just about to finish if it would delete the section completely so that there would no longer be a requirement for reasons to be given and as I say this is also a proposal that I've worked with on victim support Scotland thanks very much I think we've slightly jumped ahead but it's fine we'll just come back and we'll just focus on this group that that's absolutely fine thank you for that and I now call Jamie Greene to speak to amendment 56 and other amendments in the group thank you, convener okay so I have four amendments in this group and I'll try and keep my comments to those it's a long group and we've heard a lot of explanation on others this series of amendments and indeed many of my amendments in this bill relate to one particular group of people and that's namely victims victims of crime and I guess my overarching goal with this series of amendments is to make sure that whilst I understand the cabinet secretary's approach but that the bill reflects and gives as much consideration for both the victim and the offender as possible and I think that comes very nicely to the back of the excellent debate we had yesterday where we are seeking constructively as a parliament to refocus our justice system on the needs and rights of victims rightly so and I think there is broad consensus on that but this group of amendments gets to the very heart of what part one of this bill is all about and that's the issue of changing the test around the bill this proposed legislation alters the bill test which is currently set out in the criminal procedure Scotland Act 1995 under the existing legislation the bill can be refused for a number of very valid reasons including for example if there is a substantial risk that a person might abscond for future diets or fail to appear at a diet or a court and we've heard a little bit about some of the circumstances where that has happened and is used already by judges and sheriffs furthermore someone could be remanded if there is a substantial risk that a further crime could be committed while someone is on bail and we all know the statistics around crimes that are committed whilst on bail or indeed that there might be a substantial risk that they might interfere with witnesses or obstruct the course of justice and these are all routinely used as reasons for refusing to grant bail and I think they are sensible measures which the judiciary have made good use of since those provisions came into force in 1995 I guess what the Government has challenged us to think about is on the assumption by remand population which is something that the committee has looked at in great detail is the conclusion that remand is currently used under the existing test either there is a case of overuse by sheriffs and judges or it is being wrongly applied and it's unclear from any of the notes that accompany this legislation which of those the Government believes to be the case there is no concrete evidence or stage 1 proceedings which went into a great amount of detail with a great amount of witnesses and oral and written evidence submitted to us there was no evidence of that indeed as a committee went to see hearings in practice and there was no evidence of it now I understand in summary cases remand is generally perceived to be a last resort and I very much got that impression of private discussions with judges then being private of course I can't refer to them however it was clear that it was very much a last resort indeed it was only used once in the 30 odd cases I think that we sat and watched of course those are summary cases and we would expect that to be the case in solemn cases the use of remand naturally will be higher as it will be in the high court and the reason for that is quite simple and that's the nature of the cases that are going through those courts they very much tend to be crimes which are a result of serious violent assault murder or attempted murder of a serious organised crime nature or indeed serious sexual assault for example and naturally they will inherit a higher remand figure but what the government has not done is make the case are over remanding people if the intent of the bill is to reduce the remand population the very clear way the government could do that is get through the backlog of cases now this parliament voted on legislation which exceeded the time limits on which someone can be held on remand we were all uncomfortable with that but we understood the reasons for it it was used during the Covid pandemic and it was extended and indeed some of us had nervousness about becoming a permanent feature of our justice system there are many people held on remand who perhaps should not be but is that a result of them wrongly being held on remand in the first place at remand hearing or the fact that they have been languishing in prison on remand waiting for their case to come to court I think it's the latter and we've seen evidence of that indeed we had evidence of that when we visited HNP Southin as a committee in its early instigation and met a number of young men who had been held on remand for far too long and that's an issue we all want to address and I'm sure we'll come together and do that but the question is this bill changes the bail test now my amendment in this is the shortest but probably the most important amendment I have today it changes the word and to the word or which seems quite minor but the effect of that is to ensure that this two-stage this two-step test which is the most controversial proposal from the government is removed effectively it removes conditions having a two-step test that the scenarios that have already been mentioned such as further offences that might be committed while someone is on bail being a primary consideration or where there's a genuine risk an offender will abscond or miss future diets that these are also crucial factors that are currently used routinely by shares and judges rightly in the situation I want to pay credit to Victim Support Scotland who have been mentioned a number of times already and some of my other amendments in this group have been as a result of working with them and should not be taken lightly they told us and I want to quote this to the cabinet secretary it will be a concern to the public in general and victims of crime specifically that the provisions relating to bail narrows the court's discretion to refuse bail that is no doubt with the intention of reducing the prison population the Scottish Police Federation gave evidence to us and equally said that these proposals would be as unwelcomed by communities plagued by repeat offenders as they will be to police officers who work tirelessly to keep these communities safe my amendment 56 broadens out the scenario where an individual can be refused bail because I don't think we should be forcing our courts into a situation where they believe an offender could be a risk but due to technical interpretation of the legislation we'll have to release them anyway in my view and Lord Carlyway is absolutely right in this it is the judiciary who knows best indeed I've heard for a number of months if not years from the government that they rely heavily on the independence of the judiciary and that meddling and interference with it is not a matter for ministers that's generally the response I get to most questions that I've asked historic cabinet secretaries for justice so if it truly believes that the judiciary is independent then let it remain so in my view amendment 58 gives the court some further discretion on the ability to demand some in custody if they think there is a substantial factor in justifying it and it is the justifying which they must do amendment 58 as worded replicates the wording of an existing provision in the 95 act actually and this is a provision which judges and shares have already used to good effect it adds extra flexibility it says insert due to any other substantial factor to the court to justify keeping the person in custody it's reasonable, it's proportionate and it certainly makes sense in that regard I also support amendments 2 and 33 based on the explanation that Katie Clark has provided I think the bill also must give and this is where there is room for improvement I hope the cabinet secretary is open to this to give judges and shares the discretion to use if the new test is applied the absolute power to take into account all relevant factors now I was slightly nervous about the language used by the cabinet secretary in group 1 who went a little bit more explicit than other cabinet secretaries in this regard by saying that the bail test is more focused and therefore may reduce use of demand I'm not entirely sure what more focused means in this regard is it more restrictive perhaps the answer to that is yes so what does the cabinet secretary mean by more focused and does the cabinet secretary believe that this will tie the hands of judges and if not why not amendment 61 and amendment 62 are discussed separately these were drafted in conjunction with Victim Support Scotland who I am very pleased and proud to work with to represent the voice, not in all cases in many cases of victims and amendment 61 aims to ensure that when a court is considering the matter of public safety that they must request that they prosecutor or a local authority provide information pertain to the consideration of public safety it's not an and it's an or my experience I think that the cabinet secretary rightly acknowledged in an earlier grouping is that there on the day often is the best place source of information I do also appreciate though that they are extremely busy you'll often find in these courts one advocate who has a large number of cases to get through and when being asked in real time to provide information often struggles due to the sheer volume of information made available that's particularly the case on a Monday morning where someone's been remanded into custody over the weekend and there's a huge pressure to get a huge amount of information together for a Monday morning court it's very possible that not all the information will be there on the day, on the morning and the Crown has to take judgment as to whether to oppose bail or not and I think it is that point that further intervention could better take place there could be improvements at that level as to whether the Crown simply does not oppose bail and in normally those circumstances it would be very odd or bizarre for the judge to remand someone if the Crown has not opposed bail but giving the Crown itself more information in advance of that point in the proceedings they may be minded to oppose bail in which case it would be up to the judge or the sheriff yes in one second as is rightly the case but the way to do that is to better inform the Crown agent the way to do that is not to restrict us by which the judges make the decision happy to give away very much I think it's a very important point that the committee examined that Jim Green refers to in fact I think members of the committee specifically put this matter to the Crown agent where we had previous evidence saying that procurator ffiscals in court where a case was marked to oppose bail they couldn't depart from that because of centralised marking system now I need to put on record that the Crown agent said that wasn't the case however we did hear this and of course when you hear it then you're wondering why there doesn't seem to be flexibility so I think I just wanted to amplify what Jim Green said is a really important consideration thank you absolutely I mean I think actually given the Crown agent the flexibility on the day to change their mind as the case may be notwithstanding what it says in the central mark if information came to light throughout the course of the meeting as many of us have tried to insert as further information relevant to the complainer or the victim that the Crown may indeed choose to oppose bail on the day and that they should have that power and flexibility really or not they have the confidence and experience to do such an entirely different matter as we know that's a whole other kettle of fish but equally they may choose not to oppose bail given further information that comes to light up until the point of the hearing itself now we know that they are rattling through cases at quite a speedy rate on the day there are many cases to get through so I'm not entirely convinced that everyone is in receipt of all the information that's needed I guess the point of these amendments 61 and 62 62 takes it a little a little bit further because it asks that the prosecutor must give the court an opinion as to the risk of something occurring so that the court can make consideration on what the impact of granting an offender bail would be essentially all of these are trying to strengthen the process so that victims rights are at the heart of that decision making and as drafted the bill does not do that and I hope the government will be open to that it's not just me asking for it it's not just the judiciary here with voice concerns but victims organisations themselves but it's all in the stage 1 report and the evidence we received so I'm happy to look at the amendments 61 and 62 if they are problematic on a technical level that's absolutely fine I'm willing to talk to the cabinet secretary about that but the other amendments that I pose in this group must give judges that flexibility it cannot be an and situation there's two-step new test does tie the hands of judges and it's up to the government to explain why it doesn't go to their own amendments in this group thank you very much so I now call Russell Finlay to speak to amendment 57 and other amendments in the group thanks very much so as you say I've got two amendments in this group 57 and 59 I would have probably had more but I think Katie Clark was quicker off the mark than I was with some of them I'd also like to thank Victim Support Scotland for their assistance in working with some of these I'd like to take it back initially to what this section is about and it's headed the determination of good reason for refusal of bail and essentially what the bill does is it narrows the grounds in which a sheriff can remand someone in custody and two of the criteria in which bail should be granted unless quote it's in the interests of public safety not to and of course we've heard evidence already about the lack of a legal definition of public safety some people have told us that it's problematic it will lead to all sorts of appeals others have said it won't really be much of a problem we don't really know another one is the significant risk of prejudice to the interests of justice now that is a more well known defined legal term but I think what Katie Clark's amendments my amendments and Jamie Greene's amendments do is be a bit more explicit and they broaden that out and my one taking them in turn 57 would give a sheriff the option of refusing bail if the individual in front of them was considered to be at risk of absconding there's an obvious benefit to the interests of justice in people not disappearing and causing chaos with cases and witnesses and disruption and cost and all the rest of it but I think it's important that it sets that out it says that in black and white I think we heard evidence from the Scottish Police Federation who warned that people facing certain charges where a secondary conviction could result in a much higher tariff might be more inclined to disappear ergo the need for 57 to be there in black and white the current office also supplied us with evidence suggesting that to limit it in the way it is limited would not be good for the efficient running of the court and potentially could cause disruption to victims and witnesses it's also just worth putting on record that the previous cabinet secretary admitted there were some legitimate concerns around this now 59 similar to 57 relates to the sheriff being able to take into account specifically past bail breaches and again if someone is reasonable to assume is in front of a sheriff and they've got a long track record of not for breaching bail including perhaps not turning up in court as they were supposed to do it stands to reason that that should be considered or allowed to be considered by a sheriff and it may be the cabinet secretary tell me that the interests of justice covers this I don't know it's partly probing but if it doesn't or if there's any doubt then I think it should be in there again there's the same issues with bail breaches as there are with absconding and that yes indeed one of the problems with both the definition of what is public safety and what would be prejudicing the interests of justice is that the lack of definition of it means that it can be interpreted differently so for example in my group of amendments I made the suggestion that this leads to a narrowing of the rule therefore fewer people will be remanded but is there a potential it could be the obverse that the lack of definition of public safety could be so wide that more people could be remanded which surely is entirely counter to the Government's ambitions I think we heard evidence to that effect but I can't recall from who but the lack of clarity could potentially cause a sheriff to err to be more cautious than the otherwise would be ergo the need for these amendments which lay out some of the serious issues that sheriffs should be considerate of something else Jamie Greene said that I think is worth repeating is we've had no evidence whatsoever that sheriffs are currently I think the phrase you used was over-ramanding that it's worth remembering that the default position as bail will be granted unless whatever the reasons might be so I think that's important and also there's the more fundamental issue of judicial independence I understand legislation anything relating to judicial decision making it's entirely the right and proper that Parliament does so but I think we have to be mindful that we're not overly restricting sheriffs to make good decisions going back specifically to the amendments 57 and 59 such considerations are routinely used just now as similar to Jamie Greene's amendments and if the Scottish Government's bill part of the emphasis is on a court having consideration of good information that can be seen by the involvement of criminal justice social work but the same rationale if the importance of the court being as fully informed as possible which I don't think anyone disagrees with the flipside of that is we shouldn't have sheriffs being therefore restricted potentially in how they can make decisions and in what grounds they can make decisions and therefore the more explicit the options they have the better so thank you any other members want to come in Polly McNeill Thank you very much I want to be in by saying that Jamie Greene in his opening section of the speech speaking to his amendment I think put the matter really well for me in the sense that when we first started to look at the question of Raman generally I'm questioning the cabinet secretary at the time about our concerns the response that we got was well we can deal with some of this in relation to the bill I know we're going to deal with section 23d in the next section so I won't really address that so the committee have taken some time to try and understand why the Raman population is as high as it is because it's of concern to everyone but I also agree with Jamie Greene in that when your further examination tends to suggest that it may not be anything to do with the provisions within the current led selection but maybe for other reasons however I'm sure we'll continue to examine that I'll take an intervention on that point Kate, thank you very much I'm sorry for that Yes, yes, yes, I am One of the things I forgot to mention but you've prompted my memory is the lack of data available to us throughout the process and that is a real issue I genuinely think that we should be making legislation which is driven by good data as should be the case and by that I mean relevant qualitative and quantitative data and the biggest problem we had was understanding what the prison population looked like were people there for too long were people there what types of crime profiles were people there for and if there was a pattern emerging for example the people who had committed quite low level crimes but had been remanded then I think there'd be very valid questions of the judiciary and their decision making on the current test but we didn't have any of that evidence presented to us and there certainly were no patterns emerging other than we know there are delays to eventual trials so is that actually that lack of positive information that states that the current rules do not work and are leading to high remand population is why we're so nervous about the change of the bill test it's not that we're opposing it for opposing its sake yeah and I think Jamie Keane puts that really well I think this is where we started out and this is where we are and now we're having to drill down into the detail of the new test so that we're satisfied which is one of the points I now want to address my own part in this so the new bill test on one view of it you could see if you take another point Jamie Keane made which is welcoming to the judges to some extent within the provisions, parameters of the law to make the right decisions and we set the parameters in law but the new bill test clearly states that in the interest of public safety including the safety of the complainer from harm so I felt well that does speak to some of the concerns of the victims organisations and then there's this other part which prevents significant risk of prejudice to the interests of justice and reading of that it's also to part-parts address the amendments from Russell Findlay's name where you're probing how prescriptive we need to be in relation to that and rightly so that seems to me could cover the concerns of organisations victims organisations depending on how you interpret that provision I'll just finish on this point it's a similar point to the earlier point I made in the previous group in that is again we have the judiciary asking for a definition of public safety which leads me to be a little bit concerned about what there's not a common understanding of what that provision is expected to do and I think the Government do need to be clear with us about that otherwise I think then I would feel the need to then be more prescriptive to ensure that these provisions are set out well and commonly understood by the people who are after all going to be making the decision thank you very much thank you very much any other members wish to come in thank you cabinet secretary thank you convener I will speak to amendment 55 and the other amendments in this group there are a wide range of amendments in this group seeking to do different things convener so it will take a little time to explain why the Government opposes the amendments and I hope you'll bear with me there are amendments which seek to expand the circumstances when remand can be used by the court some which would potentially significantly widen the basis upon which remand may be used even in terms of the current system let alone the proposed framework envisaged by the new bail test in section 2 of the bill it is of course the current system where this committee explicitly called for a reduction in the use of remand the relevant amendments run counter to the Government's policy to narrow the focus of the bail test so remand is kept as a last resort either when there is a risk to public safety including victim safety or a significant risk of prejudice to the interests of justice amendment 55 in the name of Katie Clark removes the new bail test proposed in the bill convener if we are committed to ensure that remand is a last resort reserved for those cases where it is really needed to protect the public and victim or to safeguard the interests of justice then it is important that members reject amendment 55 Jamie Greene's amendment 56 would seem to expand significantly the court's ability to remand an accused person under the current bail test it would have the effect it would have this effect as a result of separating the two requirements of the new bail test to make them alternative rather than cumulative the effect would seem to mean the court would remand an accused person where one or more of the grounds listed in section 23C1 of the criminal procedure Scotland Act 1995 are established or where there is a risk to public safety or a significant risk of prejudice to the interests of justice as set out in the new section 23B1A of the 1995 act so an accused person who poses no risk to public safety to the delivery of justice could therefore be remanded solely on the basis that at least one of the grounds in section 23C applies of course that's only on the assumption that this is a must remand it says that the court may determine that there is good reason for refusing bail only if it considers that one of the grounds in 23C1 apply or the new bail test which the Government has introduced via this legislation so the interpretation is an interesting one in my understanding of the changing of and to or is that we either are reverting back to the status quo in the 95 act or indeed we are simply affording the court the flexibility to make an and or decision and if replacing and or is the wrong way to go about that then the Government could suggest the better way to do it but effectively it's that the court may determine if it considers so there's no must about this there's no absolute that says that it weakens the current remand test or expands it in any way at all so actually what I've spell out convener is that my concern or the Government's and the Government's concern is that as a direct impact because of separating the two requirements of the new bail test making them alternative rather than cumulative to help if I could say it that our real concern is that that would expand significantly the court's ability to remand under the current bail test and that's where our nervousness is that actually it's not a step forward that it's a step back amendment 58 from Jamie Greene again also expands the use of remand by inserting a catch-all provision into the new bail test which enables the court to refuse bail where it considers it necessary due to any other substantial factor which appears to the court to justify keeping the person in custody and this amendment would give the court a broad discretion to refuse bail so long as one of the grounds in section 23c1 applies convener another amendment which seeks to expand the use of remand is amendment 59 from Russell Finlay it would expand the reasons for which the court may consider it necessary to refuse bail if you let me finish this paragraph I certainly will this amendment from Mr Finlay it would expand the reasons for which the court may consider it necessary to refuse bail to include because the court considers it likely the accused person will breach their bail conditions and the Government's view is this amendment is not necessary as the new bail test already ensures the court can consider the impact of such breaches of bail and I'll accept Mr Finlay's intervention yes thank you it's really just to make the point that intent is not to increase the use of remand I think that's what was said it's to give sheriffs as much information as they can and give them the flexibility to make the best decisions possible to protect the public I appreciate that Mr Finlay and of course the point that I'm earnestly trying to make that it's not necessary furthermore that the amendment would also have the effect of broadening the court's discretion to refuse bail it would allow the court to refuse bail where one of the grounds in section 23c apply and the court considers there is a risk that any bail condition would be breached whether or not there is a risk to public safety or to the delivery of justice of course thank you I do appreciate all these interventions but it's a good debate can I just ask what is the fundamental problem that the Government has with the court having additional options because for example in amendment 58 the wording of it is due to any other substantial factor which appears to the court to justify keeping the person custody and it's the justify bit that's the important bit because when a judge or sheriff makes a decision to man someone they must give valid and justified reason to equally that person has the right to appeal that decision so why does the government believe that courts should not have that power the case wasn't entirely made so at risk of stating the obvious to Mr Greene it's the job of parliament to make legislation and legislation either gives very wide powers or places some restrictions on powers and decision making powers of independent agents in this case for good reason in and around victim safety and public safety it is of course the job of judges to interpret law but we have to be making law on the basis that we all agree that while there's always a place for remand that overall that remand figures are too high and that while of course there are many contributing factors to that it's some of that legislative some of it's cultural some of it's about policy and practice we are of course engaged in the debate about resources but the purpose of this legislation is built on the acknowledgement that remand which is a very short term for time and custody is not always but largely ineffective doesn't reduce re-offending increases it and therefore increases the risks to victims and to community safety so I think we're all broadly agreed on that circle and what we're trying to achieve and I suppose if I was at risk of being less than diplomatic I would be concerned about some of the amendments while some are certainly well intentioned in about further scrutiny that some amendments in their effect would undermine the overall approach of government policy and the overall approach that I think we're all trying to achieve I have just I've just lost my place I'm speaking out right amendment 31 from Katie Clark again may seek to widen the use of remand by adjusting the new bail test however we do not think it does as the new bail test already covers the situation the amendment seems intended to address the court can refuse bail to an accused person on the basis that they pose a risk to public safety in addition current law requires the court must consider the extent to which the public interest could be safeguarded by the imposition of bail conditions if bail were granted which the bill does not change and this includes the use of electronic monitoring amendment 32 from Katie Clark relating to the intimidation of the complainers witnesses or others and the definition of prejudice to the interests of justice would not have any practical effect other than add to possible confusion to the bail test the risk that an accused may interfere with witnesses is already one of the listed grounds for refusing bail and the definition of prejudice to the interests of justice includes the course of justice being impeded or prejudiced as a result of giving of false or misleading evidence or the quality of evidence or its sufficiency in law being diminished and this of course would be the intended effect of witness or complainer intimidation amendment 57 from Russell Finlay I would state as unnecessary in seeking to amend the new bail test relating to an accused person absconding under the new bail test in determining whether there is a good reason for refusing bail the court must consider that one of the grounds in section 23 c1 of the 1995 act applies section 23 c1 already includes the ground any substantial risk that the person might have granted bail abscond the risk of an accused person absconding is also covered within the meaning of significant risk of prejudice to the interests of justice for the purpose of the court's determination as to whether this ground has been established to justify remand the bill provides the definition of prejudice to the interests of justice includes the accused person evading justice as the result of the proceedings being delayed or discontinued which of course would be the effect of a person absconding amendment 2 by Katie Clark removes the limitation on use of remand where the accused poses a risk of failing to appear at court under the bill the court can consider the failure to appear ground in summary proceedings only in two scenarios the first is the accused has failed to appear at a previous hearing of the case having been granted bail or being ordained to appear the second is the charge in respect of which the accused is appearing before the court as a failure to appear if neither of these situations arise this ground cannot be used to justify a refusal of the bill the restriction does not apply in solemn cases convener the restriction for summary cases in the bill and which amendment 2 would remove is a proportionate step in minimising the use of short periods or remand preconviction while ensuring the summary courts still retain the power to remand those considered to pose a risk to the delivery of justice amendments 33 and 34 make changes to section 2 3 of the bill it should amendment 2 not be agreed to amendment 33 and consequential amendment 34 are not necessary in replacing the reference to relevant diet contained in the bill while the effect is somewhat unclear the amendments seem to be based on a view that the definition of relevant diet does not cover all court hearings and which an accused may potentially fail to appear at however the definition does cover all court hearings and so these amendments again are not needed amendment 30 seeks to define the concept of public safety for the purposes of the new bail test I do not think that a definition is needed and I am of the view that to provide one carries with it significant risk this risk was acknowledged in the committee's report and discussed at stage 1 the words public safety have been part of bail law since 2007 and I'm not aware of any cases where the lack of a statutory definition has caused an issue the bill does not include a statutory definition of public safety with the policy intention that it is for the courts to continue to interpret and apply the term in the same way that they have up until now by giving the words their ordinary meaning it is common practice not to include statutory definitions in legislation where the ordinary meaning is intended to apply highlighting this risk of providing a definition I have concerns about the definition offered to paragraphs A to C specify examples of behaviour by the accused which may indicate a risk to public safety while these might be said to be broadly in line with our understanding of the term by listing things to be included in the meaning of public safety the term itself could end up being clearly by the reference to that list the reverse could also be true with a broader definition being applied than otherwise intended so a definition could create uncertainty for example in relation to the proposed definition it is unclear what amounts to being known to demonstrate aggressive, abusive or antisocial behaviour I set out in paragraph A as well as uncertainty about the terms used in paragraph B and C amendment 30 also widens the concept of public safety beyond its ordinary meaning to include more likelihood of re-offending with no actual link to public safety being needed amendment 60 and 64 insert a regulation making power requiring ministers to set out the meaning of public safety a statutory definition of public safety is not necessary nor without risk and that applies whether on the face of the bill or done through regulations amendment 63 requires the Scottish ministers to consult about the impact of the public safety test which forms part of the new bail test and to publish a report relating to the consultation I have lodged amendment 8 which we will come to in a later group Scottish ministers to publish a report on data relating to bail and remand this is in my view the appropriate approach to follow rather than focusing a report about the impact of an individual element of the bail test bail decisions are based on the individual facts and circumstances of each case and made independently by the court as such a precise measure of the impact of the public safety test would in my view be impossible to deliver lastly and with thanks to the forbearance of the committee for the group amendments 61 and 62 are from Jamie Greene amendment 61 requires the court to ask the prosecutor or an officer of the local authority to provide it with the information relating to public safety which was proposed in amendment 52 in the previous group I set out statutory provision in this area covered by amendment 52 and those same concerns apply here relating to the deliverability and appropriateness of such a significant expansion of the role of justice social work. Similarly I have set out in response to Liam McArthur's amendment 50 and 51 that the prosecutor is able to and routinely does make submissions to the court on the question of bail and as part of this the prosecutor can and should reflect any safety victim concerns the prosecutor considers are present for the court to be aware and as I said earlier in the previous group I'm open to further discussion with Mr McArthur and others. amendment 62 in the name of Jamie Greene seeks to require the prosecutor, the defence or justice social work to provide an opinion on risk in order that the court may consider public safety matters in accordance with the new bail test. The 1995 act, if amended as proposed by the bill will ensure that whether the prosecutor defence or justice social work gives the court opinion as to any risk of something occurring or any likelihood of something not occurring is a matter for the relevant party to decide. Yes. Okay, thank you for that. One of things I'm trying to get my head around here is that the bills clearly wants to offer the court as much information as possible and the way that it proposes to do that is by allowing criminal justice social work to be given a bigger role in providing information about the offender. All these amendments are trying to do the same but to give us the court as much information about the complainer or the victim. Yet every amendment that seeks to find a way to do that has been rejected by the government so my question is simply if there's a mechanism in the bill to allow more information from whatever source to be given about the offender situation how on earth do we get more information about the victim or the complainer to the court because there isn't a mechanism for doing so. I did indicate earlier in relation to the amendments in and around for example justice social work, a willingness to have further discussions whether that's in terms of legislation and non-legislative approaches as well. I know we've not quite got to these matters yet but in terms of reporting I do have a willingness to ensure that we have the right reporting mechanisms that indeed can give us some facts in particular around data and around usage and how that can help our understanding going forward but I hope to do that in a way that's comprehensive and more collective as opposed to this isn't meant disrespectfully because if it's done sporadically across amendments from various parties it can be less than cohesive. I suppose the other factor to bear in mind is that I think this does get to the core of Mr Greene's concern it's the bit about risk and it's about how whether it's the prosecution or justice social work or indeed how the defence evaluates information but it's for how all these players take information and evaluate the risks and come to a judgement about the risks whether that's to victims or to the public more generally and I suppose that the bottom line is that risk is appropriately a matter for the court because they're going to adjudicate it when they make their bail decisions and of course it's a matter for the individual players whether it's justice social work or the prosecution who in the provision of that information will of course be providing information that is based on an understanding of risks or potential risks and of course these are matters of professional judgement that are quite difficult to legislate for in the face of the bill but there are of course other ways in which we can tackle that I suppose in other aspects of the bill whether it's in and around standing operating procedures or risk assessments or through-care standards and such like so it's not a lack of willingness on my own part so just for the I would ask members not to press their amendments in this group but if they do I would ask members to press them so thank you thank you very much cabinet secretary so I'll now call Katie Clark to wind up and press or withdraw amendment 55 thank you it would not be my intention to press to the vote amendment 55 or any of the other amendments that have been put down in my name in this group the amendments have been put down in an attempt to clarify given that during the discussions on this bill it has been unclear which groups of accused would get bail after this bill where they're currently being remanded I think the cabinet secretary has been very clear that her intention is to reduce the bail population throughout the conduct of this bill we've been told that this is an attempt to reduce bail law what has been less clear is what that law would be refocused to and I think some of what the cabinet secretary has said has helped to clarify that in terms of what they are trying to achieve what still isn't clear is the groups that are currently being remanded who would get bail if this legislation passes it seems from what has been said that it is likely to fall into the category of those that broadly fall under risks to the prejudice to the interests of justice rather than public safety and I think that these amendments have attempted to explore that I don't think I am satisfied that we're absolutely clear that the way that this legislation has been drafted means that the law has changed would satisfy the range of responses that the courts need to ensure that we are able to get convictions safely and indeed that in for example cases where somebody perhaps is charged an offense that may be a serious offense but actually the nature of the offense probably means that there's not a risk to anybody else that if say for example the only risk was that they will just never appear in court again then the law as drafted before us today would put us in a better position than we are now so I think it's the fear of flight area in particular more about from the cabinet secretary over the coming period and to try and get an indication of the kinds of accused where it's envisaged bail would now be granted where those individuals are currently remanded so that we're able to scrutinise whether that genuinely is in the interests of justice so I'm grateful to what the cabinet secretary has said she's made it very clear about the population and I think the questions that the committee has to have is what categories of those currently being remanded would it be safe to allow the opportunity of bail and I look forward to further consideration of that however do not intend to push any of my amendments to the vote today very much so the members indicated that they wish to withdraw to the amendment being withdrawn no thank you very much so I now call amendment 56 in the name of Jamie Greene already debated with amendment 55 Jamie Greene to move or not move to move so the question is that amendment 56 be agreed to are we all agreed we're not agreed therefore we'll move to a vote and ask all those in favour of the amendment to raise your hands okay thank you and all those against raise your hands thank you there's no abstentions so we have an equality of votes therefore as convener I'll use my casting vote and vote against the amendments so the amendment is therefore not agreed so I call amendment 57 in the name of Russell Finlay already debated with amendment 55 Russell Finlay to move or not move not move thank you I call amendment 31 in the name of Katie Clark already debated with amendment 55 Katie Clark to move or not move not move I call amendment 58 in the name of Jamie Greene already debated with amendment 55 Jamie Greene to move or not move moved thank you so the question is that amendment 58 be agreed to are we all agreed okay we're not agreed so we will move to a vote so can I ask all those in favour of the amendment to please raise your hands 54 all those against raise your hands thank you there are no abstentions so we have Therefore, as convener, I'll use my casting vote and vote against the amendments. The amendment is therefore not agreed. I call amendment 59 in the name of Russell Findlay, already debated with amendment 55. Russell Findlay to move or not move? I call amendment 62, in the name of Jamie Greene, already debated with amendment 55. I call amendment 32, in the name of Katie Clark, already debated with amendment 55. Is it Katie Clark to move or not move? Not move. I call amendment 63, in the name of Katie Clark, already debated with amendment 55. Is it Katie Clark to move or not move? Not move. I call amendment 64, in the name of Katie Clark, already debated with amendment 55. Is it Katie Clark to move or not move? Not move. I call amendment 2, in the name of Katie Clark, already debated with amendment 55. is that section 2 be agreed to. Are we all agreed? Yes. Thank you very much. I think that at that point we will take a short break and if I can ask members and others to be back in the committee room by 11.40. Thank you very much. I move on to section 3, which is restriction on bail in solemn cases. I call amendment 65 in the name of Pauline McNeill in a group on its own. Pauline McNeill to move and speak to amendment 65. Amendment 65, leave out section 3, is a probing amendment because I would like some clarity on what it does and what its purpose is. Section 3, the bill seeks to repeal section 23D of the Criminal Procedure Scotland Act, which restricts the granting of bail in certain solemn cases. It 23D confines that bail is only granted in exceptional cases if the accused is being prosecuted under solemn procedure for a violent sexual domestic abuse offence or has a previous conviction under solemn procedure for any such offence or a drug trafficking offence and has a previous conviction under solemn procedure for such an offence. The provisions are quite clear. There is quite a bit of support for the removal of that, particularly by some of the legal profession, to quote the law society where they sit in. We have quoted this in the report, the stage 1 report, at a practical level of say a 45-year-old man is accused of a domestic violence offence and he had a conviction on indictment for domestic violence 20 years ago. The court would not be allowed in principle to grant bail unless the exceptional test was met, if on the other hand. The 45-year-old man had half a dozen convictions in the past three years, but all in summary complaint. Section 23D would not kit in. He went on to say that 23D is a pretty arbitrary one-size-fits-all kind of solution and Fred Macintosh, KC, on behalf of the faculty advocates, expressed similar views that it should be repealed because it is unnecessarily restrictive. I would also quote Sheriff David Mackie from the Howard League, who supported the removal of section 23D. As he felt the provisions in the bill would provide sheriffs and judges with the necessary discretion to address the concern of victims. My own reading on 23D is that I felt satisfied with the new bail test that that was the case. There was sufficiency in the provisions to allow the court to protect the safety of the complainer. I think that is the view of the committee's adviser. However, a number of victims' organisations you will be aware Cabinet Secretary have urged the retention of 23D because they are not satisfied with that. One thing that completely threw me, and it is why I thought I needed further clarity on why the Government brought it forward, is that when we did the post-legislative scrutiny of the Domestic Abuse Act, it was only then, after we closed the stage 1 report, that the committee became aware that the insertion of the domestic abuse clause in 23D only was inserted through legislation on 2018. Had I been aware of it, I would have questioned the Government at that point as to why they are seeking to repeal, albeit that there is a fuller section there, but repeal something that only went in in 2018. I was on the committee then, so I do not know the background to it. I believe that, on checking with Spice, it was a Government amendment. There is some explanation required at least before further consideration as to why you want to take something at four years later. What I am really interested in today, or before stage 3, is what has happened in that intervening period, that four-year period. I do not expect the cabinet secretary to tell the committee this today, but is there some concern about the operation of that provision, or has it just been swept up because the other aspect of 23D is something that you would want not to be necessarily restrictive for the court? I am open minded about it. I am not taking one view or the other, but we do not want to speak up for victims' organisations who do not think that the provisions are covered. That is the one that gave me cause for concern, and I would be really grateful for some clarity around that. I thank Pauline McNeill for this amendment. As she said, it was included in a number of proposals from victims' organisations. The rationale has been quite well explained, but it has some nervousness around it. There were two skills of thought when we took evidence on this, both made publicly and privately. It seemed to be the legal profession that was keen to see its removal. It obviously felt problematic. I wonder if the Government had discussion with either the Crown or solicitors and the judiciary around this, which I think may underline some rationale for its removal. Equally, its perception of it, and its interpretation of its potential removal, was quite worrying to a number of organisations who felt that it was a very valid safety net, particularly around those at risk of domestic abuse and sexual crime. Victim support Scotland when they got in touch with a number of members on this amendment seeking to remove section 3, which effectively abolishes section 23D, is their claim. It is important to put it on the record, because I quite like the comments that I get to address it, if their perception perhaps is an error, or at least to give the opportunity to alleviate the concern that they have. The very specific concern or their interpretation of this is that the proposal to 23D will allow Bill to be granted to convicted, repeat and serial perpetrators of domestic abuse and sexual offending against women, who present a particular danger to women's safety. Given women's experiences of abusers being given bail, including the lived experience of survivors given to the criminal justice committee, women need as much protection as the law can afford them. The safety of victims should be at the heart of any decision to release a person on bail, so the removal of this restriction and the reliance on the new all-encompassing bail test does very little to show victims of these types of crime that their safety is being protected under the law. Again, that is a quotation that I can give the official report, their words not mine. I do not want to put words in anyone's mouth or even take a personal view on it, but I do think that there is a case to be answered around 23D, and this group gives us the opportunity to have that debate. Before I go through a speaking note and put the remarks that I need to put on the public record, let me say bearing in mind that Pauline McNeill raised the issue of the committee's post-legislative scrutiny of the Domestic Abuse Act. Just to put in the record that I have obviously received the work that the committee has done in that regard, I very much welcome it, and we will seek to respond to it once we have had the opportunity to discuss the detail with our justice partners. It would be my intention to respond to the committee on that work as much as I can prior to stage 3, because I think that that would be helpful. On the removal of 23D, why now? Obviously, that has taken place in the broader context of the work that we have done with partners in and around the remand issues. I will now go on to speak directly about amendment 65 in the name of Pauline McNeill, which seeks to remove section 3 of the bill, which repeals section 23D of the Criminal Procedure Scotland Act 1995. That would mean that the current restriction on bail contained in section 23D would continue to apply alongside the newly proposed bail test that is set out in section 2 of the bill. I understand that the amendment has been lodged because of concerns that have been expressed by the repeal of section 23D that could put victims of violent crime, domestic abuse and sexual offences at greater harm of risk. It is right to ask questions, entirely right to ask questions about the impact of the repeal, and I want to address them directly today. First and foremost, I want to reassure all victims of crime and those who tirelessly represent their interests that I am clear. A remand will continue to play an essential role in protecting victims and the wider public, and the bill does not change that. That is because public safety and victim safety are at the very heart of the new bill test. Of course, occasions where remand is, as I said, absolutely necessary to protect victims from harm, particularly in cases of sexual or domestic abuse, the new bail test ensures that this can happen. The bill proposes to repeal section 23D for one simple reason so that, in all cases, the same core bail test applies. In its place, the new bail test explicitly highlights the importance of ensuring the safety of victims from harm for the very first time. Not only that, but the bill defines safety from harm as safety from both physical and psychological harm. That recognises the harm caused by threatening or coercive behaviour, which is an insidious feature of domestic abuse. That means that, where the court considers and accuses person poses a risk to the public safety, including the victim's safety, which is the type of person to whom section 23 currently applies, remand can be used. In fact, the proposed changes to the new bail test emphasise that. I note that there is strong support from those who use bail law for this simplification measure, as Pauline McNeill mentioned. It has been said that repealing section 23D gives the court improved, rather than reduced discretion, to fully consider the facts and circumstances of each case, including the risk of harm posed to victims. For all those reasons, convener, I would ask Pauline McNeill not to press amendments 65, but, if she does, respectfully request that committee members vote against him. I ask Pauline McNeill to wind up and press or withdraw amendment 65. I would like to add in my concluding remarks that an earlier exchange I had with Jamie Greene referred to 23D in so far as, when we first examined the remand figures, the then cabinet secretary specifically referred to 23D as one of the restrictive provisions in ferrying that that might have been one of the reasons why remand was high. In close examination, although we don't have the figures, it doesn't appear that 23D would be used in many cases, so I don't think that that's something I would be concerned about is increasing the remand population per se. I suppose the point about the, without preempting your response to our post-legit of scrutiny, it was just that I did wonder why it wasn't even drawn to our attention by anyone that the domestic abuse provision bearing in mind that it's an exceptional circumstances test where there has been a previous analogous conviction. Now you didn't address this in your remarks, I thought you might have, but so I'm assuming that it's there in the first place because if you've got previous analogous convictions so obviously that means that if it's a drug offence the previous conviction has to relate to that and not a summary offence. So therefore I was assuming that because you had a previous conviction does it make you more likely then to cause harm or abscond or whatever and that's why an exceptional test was built into the 95 act. So if we're going to remove it I mean it's just for further I think, since I'm probing this I think this is what the government need to come back with in my opinion is what would be the equivalence of the exceptional circumstances test. Now as I said in my opening remarks I am sympathetic to the law society's view that if someone had an analogous conviction 20 years previous I don't think that's necessarily an indication that you would have cause of a concern but if the previous conviction was say five years just to pick it up then you might be more concerned that they are more likely to offend first on bail. I will take an intervention here. Thank you Ms McNeill and this is echoed by the commentary that the victims organisations have and it's this concept of serial repeat offenders so there is a history there that may not be necessarily relevant to the specifics of the case in front of the court when a decision is having to be made about remand but it may be very well relevant and I guess what they're seeking is some comfort and security that that will still be a factor somehow and it's how that goes about either existing legislation or how the new act does that and it doesn't remove the judge's ability to look at a pattern of behaviour particularly I think domestic abuse being a very good example and say that because of that pattern perhaps with other parties or previous partners for example that therefore there may be a risk to the to the complainant in the case that's in front of on the day whether that's technically possible and legal to do so and be where there's a mechanism for that information to be made available to the judge when he's having to make that remand decision so I think it's a very valid concern that they have what I guess I'm not sure about is whether the statement that's just been given will give them any comfort we won't know till after today of course but yeah I think it's I mean it let's face it it's a complex area of law especially if the legislators are you know just getting our heads around something we are not practitioners so please intervene on me yes it's a long time it's five years since I've been on stage two and I was unsure whether I was permitted to intervene or not being being a guest of the committees and being the one under scrutiny it was just to try and give some really clear reassurance to Pauline McNeill and Jamie Greene that and perhaps I didn't mention it earlier because for me it's stating the obvious that previous convictions are of course matters of consideration people will come to a judgment whether it's the justice social worker or the prosecutor and the court itself will be the final arbiter on the significance and relevance of previous convictions but they are a fundamental part of any assessment of any alleged offender in any circumstance so I hope that's the point where we need to get to so that is helpful but so what is the equivalence of exceptional circumstances I think was suggesting is that the construction of the of the current test would mean that the equivalency would be that given the information before the sheriff would include previous convictions yeah that they would then have to use the other provisions instead in the interests of public safety including the safety of the complainer and it would be considered under those umbrellas if you like to prevent a significant risk of prejudice to the interests of justice yes that's yes yeah yeah I know I know you maybe that was obvious but it wasn't I yeah yeah I don't like to just take things for granted because you could see why in fact the committee sat through a case if you recall in the Glasgow High Court where the advocate was really had an uphill struggle if you remember trying to get over the hurdle of exceptional circumstances and what we could determine from the case if you remember was that there was a massive string of previous convictions and even we could see there was no chance in this case there would be bail granted however I think that's the kind of if I may politely suggest that certainly kind of reassurances for stage three that the committee and I imagine victims organizations would be looking for because I'm not interested in putting unnecessary restrictive provisions for sheriffs to make decisions and using some discretion but nor would I want to leave that gap if those organizations have made representations I still felt the provisions left a gap thank you very much okay so can I just confirm you wish to press or withdraw I seek to withdraw okay thanks for not so the members indicated that they wish to withdraw the amendments so does the committee have any objection to the amendment being withdrawn okay thank you very much so the question is that section 3 be agreed to are we all agreed thank you so we'll now move on to section 4 which is refusal of bail and I call amendment 7 in the name of the cabinet secretary grouped with amendments 35 66 and 36 cabinet secretary to move amendment 7 and speak to all amendments in the group convener I will now speak to amendment 7 in my name and the other amendments in this group amendment 7 seeks to address concerns highlighted by this committee about the potential additional burden placed on the courts by their recording requirements contained in section 4 of the bill while still ensuring that the core information required to monitor the use of remand by courts is recorded in particular the committee asked the Scottish Government to revisit the recording requirements in section 4 in order that they may be made less onerous this amendment responds to that request as such amendment 7 narrows the recording duty in the newly proposed section 24 2aab of the criminal procedure scotland act 1995 it does this by removing the requirements for the court when remanding an accused person in custody to enter in the records of proceedings one where it relies on the failure to appear ground in section 23 c1a of the 1995 act as the sole basis for remand the reasons why it considers this is necessary and two the reasons why it considers that electronic monitoring of bail is not appropriate or inadequate safeguard however the requirement of the court to verbally state those reasons where bail is refused remains unaltered the effect of the amendment is that courts would only be required to formally record in the court minutes the grounds on which it determines any accordance with the new bail test that there is good reason for refusing bail turning to amendment 66 in the name of rona macai i have been reflecting carefully on the evidence we have heard during stage one scrutiny special conditions of bail can help both with protecting the complainer from the risk of harm and with providing reassurance that any attempt by the accused to cause some harm would amount to a breach of bail and allow the police to take action this requirement was originally introduced in the 1995 act in respect of people accused of sexual offences and i am persuaded that there is good argument for extending it to cover those accused of domestic abuse and stalking which are both also offenses where perpetrators single out a specific victim by ensuring the court must justify any action not to put in place additional protective conditions in these cases this amendment will emphasise to the court the importance of appropriate special conditions of bail in cases of domestic abuse and stalking and improve the transparency of court decision making and i ask members to support miss macai's amendment amendment 35 is in the name of Katie Clark and makes changes to section 4 of the bill further amending section 24 of the 1995 act so that the court must state certain grounds and reasons for the granting of bail and have those grounds and reasons entered into the record of proceedings convener as i have just mentioned an expansion of the recording duty falling upon the courts as a result of section 4 directly contradicts the committee specific recommendations in this area where it asks government to revisit this section in order that it may reduce the recording duty not increase it amendment 35 would place an increase burden on the courts on a very large cross section of cases entering the system this may require further it changes by the Scottish courts on tribunal services and may increase the length of court hearings with potentially very little analytical value this is because there is an overarching legal presumption for bail which should only be refused where there is good reason for doing so as such an effect bail is the default position any requirement to provide reasons why bail has been granted could simply point to the legal requirement to do so namely there was no good reason not to the amendment also requires the court in any proceeding in which a person is accused of any offence to explain certain things including why the accused does not pose a risk to public or complainer safety this is an extremely broad requirement applying to all cases which enter the system and which will not all involve a public safety related offence nor an identifiable complainer more generally it is already a requirement under existing bail law that whenever the court grants or refuses bail it must state its reasons for doing so the bill does not change that as such the information listed in amendment 35 is information the court may already verbally state an open court under this duty convener during stage 1 the calls for improved data gathering were generally focused on gaining a better understanding of remand as such and for all the reasons I have outlined I would ask Katie Clark not to press amendment 35 the final amendment in this group is amendment 36 also in Katie Clark's name amendment 36 removes section 4 from the bill in its entirety with the effect that the duty contained in it for the court to state and record its reasons when bail is refused would not be introduced convener again this contradicts the committee's report in this area and so again I would ask Katie Clark not to press amendment 36 the policy intent behind section 4 is to help and prove understanding over time of the use of remand as well as emphasising the importance of only using remand as a last resort the availability of richer and more detailed data on the use of remand is something that was universally supported during stage 1 evidence sessions and my amendment 7 if agreed to would help address the concerns expressed by the committee about the potential burden that the recording duty as originally drafted would please on the courts and I move amendment 7 in my name thank you very much cabinet secretary so I now call Katie Clark to speak to amendment 35 and other amendments in the group very much convener and it may well be that the government amendment 7 will deal with the issues that I was attempting to raise in amendment 35 and 36 as I said previously amendment 35 was drafted working with victim support Scotland and indeed is also supported by scottish women's aid assist rape crisis scotland and other organisations and I think it would be helpful to put on record the reasoning behind both that and also amendment 36 which has been drafted following discussions with defence agents and I'd want to go back and have discussions with those organisations before next stage of proceedings in relation to amendment 35 as we know the bill places a duty on the court when bail is refused to state the grounds in which it has determined that there is good reason for refusing bail and these reasons are to be entered into the record of proceedings and I hear what the cabinet secretary says in relation to the amendment that she is moving but the concerns from victim support Scotland was an issue of equality and rights of information for victims because whilst they accepted that the bill is drafted would contribute to transparency and judicial decision making around bail and for that reason would be of benefit to victims of crime they believed that the provisions needed to go further so that written reasons on granting of bail were also provided to enable the victim to have an understanding of the court's thinking and what they said was that during consultation sessions that they held with Scottish women's aid women and workers from local women's aid groups highlighted the lack of information available to women explaining that the court's reasoning was a common and repeated issue that was a source of frustration and concern to women so they were arguing in further of this position that to ensure consistency and transparency in decision making and proceedings for participants and to assist in the enforcement of bail conditions and safety planning for victims the reasons for refusal must also be communicated in writing to the victim particularly women experiencing domestic abuse and indeed we will be looking at issues in relation to electronic monitoring later but they also felt that similar provisions were required in relation to electronic monitoring they pointed out there was precedent in the 1995 act for the court giving reasons around decisions being made on specific aspects of bail that would impact on a complainer and they refer in particular to section 24 to be of that act I very much welcome the amendment that the cabinet secretary has brought forward however I do think these points that are being made by Victim Support Scotland and other organisations about equality and similar information being available whether grail bail is granted or refused perhaps is something that I would want to reflect on further the alternative position that I put forward in amendment 36 again was very much one that came forward after discussion with Solister practitioners and indeed as I've said before indeed some practicing sheriffs that they felt that the onerous nature of the this provision at the added bureaucracy would take time but would lead to the same outcomes and therefore amendment 36 was put down to remove the provision completely for the reasons that the legal profession have set out on a number of occasions and indeed is referred to in Lord Carlaway's submission to the Scottish government however given what the cabinet secretary has said I obviously will reflect on the provision that she's putting forward that it would simply be a formal requirement however would want to look at issues around about equality also and whether this meets the needs of victims so I wouldn't be intending to push either amendment to the vote thank you very much I call Rona Mackay to speak to amendment 66 and other amendments in the group thank you convener yes amendment 66 does relate to 23d and just for the record I thought it was a very useful discussion we had around Pauline McNeill's amendment 65 and I do appreciate the cabinet secretary for taking time to respond to that so during evidence taking I was really concerned about the removal of 23d and we heard strong reassurances from legal profession et cetera that it would not open up risk to victims of domestic abuse and stalking but I felt something needed to be put on the face of the bill to strengthen those reassurances I was particularly struck by the evidence of victim support Scotland Scottish Women's Aid and Speak out survivors who highlighted to us all the critical role that bail conditions play in respect of what are uniquely pernicious crimes both in the practical sense to protect victim safety but also in the wider sense where the right special conditions of bail can really help a victim feel safer and more secure and I think the message sent out to victims is crucial and I kind of felt that was being lost with the removal of section 23d so you know hence the reason for for bringing this forward I think it's it's really important that we strengthen the role of bail conditions in both of the areas of domestic abuse and stalking and so presently when the court grants bail and standard conditions to a person accused of a sexual offence in both solemn or silent summary proceedings without imposing any further special conditions of bail it must explain why it didn't consider special conditions are necessary so my amendment 66 extends this existing duty of the court so that where the court grants bail and standard conditions to a person accused of an offence involving domestic abuse or an offence of stalking it must give reasons why no further special conditions of bail were imposed so by adding domestic abuse and stalking offences to existing requirements for sexual offences cases it will ensure that the court must justify any decision not to put in place additional protective conditions in cases where a victim would feel especially threatened by the risk of further offending by the accused and where special conditions of bail are of particular importance so as such I consider this amendment is vital it seeks to emphasise to the court the importance of the consideration of robust special conditions of bail in cases where the complainer may have particular reason to be concerned about the risk of further offending by the accused including domestic abuse or stalking it will and I think it will also serve to increase the transparency of a court decision making in this area which is we've heard from those representing victims interest during stage one evidence sessions is of the utmost important and indeed we've heard that as a committee many many times so for these reasons I'd like to move amendment 66. Thank you very much. Would any other members like to come in? Thank you very much. Now amendment 35 in Katie Clark's name which I've also supported requires the court to record the reasons it grants bail. What we are seeking is parity of treatment whereby the recording of reasons for refusal of bail are also provided I think crime victims are often a bit taken aback or confused when they find out that someone's been granted bail in their case and they don't have any means of being told this or learning the reasons why and if they'd be recorded it would be a much easier mechanism and understanding and give that equality with accused people as well. Section, sorry, amendment 36 in Katie Clark's name I understood I would remove section 4 entirely. I don't think we don't support that I think it would reduce transparency for victims who are already struggling with getting information from courts often. I think rather than get rid of this requirement we need to improve it and make it more robust and more open to both sides in any particular case. Now in terms of the cabinet secretary's amendment number seven I understand that would restrict the reasons it would require the court to record the grounds and reasons that a person is refused bail and I'd be seeking confirmation from the cabinet secretary about that. What we want to avoid is that certain decisions of refusing bail are watered down so it would be useful to know from the cabinet secretary to know exactly what will no longer be recorded under her amendment. That would be helpful to know. Thank you. Any other members like to come in, Jamie? Just briefly I'm going to thank my colleague for his comments. I'd like to first of all say to amendment 35 in Katie Clark's name. I think this is a very well drafted amendment and it's actually a very important one. I mean there is a suggestion that it will increase the workload load of the courts. We're all a little bit nervous about that. These are fast moving hearings but I think when it comes to this there is an absolute right, there is a gap here where victims are left in the dark as to why a certain decision was made so if we're going to make changes which the bill does whatever your views on those changes well let's make changes and let's make changes that improve the information that's given to victims so if bail is granted I think it's entirely reasonable and rational for a reason, a proper reason to be given with the specifics of why the court believes that the accused does not pose a risk to public safety which is the new test including the safety of the complainer which is important and why he thinks that they can be if relevant appropriately managed through the imposition of bail conditions and I guess by that what we're looking at is a scenario where the courts are saying fine we have a new enhanced test for bail but I believe that on the balance of the whole the risk can be managed through for example enhanced bail conditions and here's the reasons for that here's why I do not believe that this individual poses an immediate risk to the complainer and therefore can be released back into the community now at the moment the only presumably the only recourse available to somebody would be for the complainer to make representation to the crown to ask for an appeal there's no at the moment any mechanism for the complainer to request a reason as to why that decision was made other than what is verbally given in the court on the day and to do that you would have to be there and for many complainers that's not entirely appropriate we all know the problems around getting records of what is said in court and transcripts so that's a very elongated expensive process so really I find it unless the crown has been proactive of this information back to the complainer as to why it thinks bail was granted there's not any real mechanism for doing so I think I do understand I don't want to add workload to the clerks of the court or make the decision making process more difficult for judges and sheriffs but I think it's reasonable that if they're going to say why people are if we're going to enhance the process by which they must give reason why someone is remanded then we should absolutely do the same on the on the contra we should we must give complainants more information and better information this is one way of doing it by the member including this and it being accepted at this stage it can be tired of course by the government ahead of stage three but if equally the cabinet secretary says we'll take this away we'll work with members and we'll see what we can do I think that would be a good outcome also but I think we would need that commitment because otherwise certainly if the member doesn't push it someone else will okay thank you very much any other members like to come in no okay just very quickly sorry yeah um the cabinet secretary mentioned the potential costs of iti I just wonder what work has been done to quantify that because it does sound surmountable and it might help find a way forward as Jamie Greene suggests okay thank you I'm just about to bring the cabinet secretary back in so um you may want to pick that comment up okay thanks convener in terms of the information that should go to victims that both Katie Clark and Jamie Greene have mentioned that information should go to victims and it should go to victims via the crime office via the victims information and advice team and you know if there are concerns about that not happening you know people may have constituency cases for example or experiences from victim support organisations I am of course happy to hear that I suppose just in terms of my transparency with with committee there would still be a question whether whether there's whether the solution is legislative or whether it's one of policy organizational structures or or indeed resource so happy to have a broader discussion about that but I'm not going to um you know without really anything in or out any solution to any problem may not necessarily be legislative I'll have to give way to Ms Finlay. Yes thank you very much just to clarify my understanding would be that if there is a mechanism through the crown of the VIA to provide complainers with decisions about someone being bailed it would just be this entirely whether or not they've been bailed or remanded it wouldn't provide anything beyond that in terms of reasoning as far as I understand. My understanding and I am happy to go back and check this Mr Finlay is that particularly in terms of the debate we had a bit trauma informed approaches yesterday in terms of the justice informed skills framework that is to apply to all actors in the justice system is that the types of information we need to be given to victims needs to be needs to be meaningful and yes of course it needs to address the facts of the matter whether somebody has been you know remanded or or bail but I don't think it's unreasonable to expect people to be given some context about what was said in open court bearing in mind that it may not be appropriate or desirable for the complainer to be to be present in court but the route to do that in my view would be via the crown office happy to have further discussions in and around that and in terms of Mr Finlay's other point in relation to my amendment seven I did very clearly reiterate the reasons for refusal I can I'll just repeat them again for the record but I do apologize if people certainly recall hearing this again what I said earlier is that it does this by removing the requirements for the court when remanding an accused person of custody to enter in the record of proceedings one where it relies on the failure to appear ground in section 23 c1a of the 1995 act as a sole basis for remand the reasons why it considers this is necessary and to the reasons why it considers that electronic monitoring of bail is not appropriate or inadequate safeguard and yes thank you thank you very much so the question is that amendment seven be agreed to are we all agreed all agreed thank you I call amendment 35 in the name of Katie Clark already debated with amendment seven Katie Clark to move or not move I call amendment 66 in the name of Rona Mackay already debated with amendment seven Rona Mackay to move or not move move thank you so the question is that amendment 66 be agreed to are we all agreed yes thank you I call amendment 36 in the name of Katie Clark already debated with amendment seven Katie Clark to move or not move not moved thank you so the question is that section four be agreed to are we all agreed thank you thank you so we now move on to reports on bail and remand and I call amendment 37 in the name of Katie Clark grouped with amendment eight Katie Clark to move amendment 37 and speak to both amendments in the group thank you convener and I move my amendment again I will not be putting this amendment to the vote and I look forward to hearing the cabinet secretary's submission in relation to amendment eight which is also a reporting requirement my amendment relates to women prisoners it arises out of difficulties in obtaining information about the nature of the women that are held in custody in Scotland and in particular difficulty in obtaining data in relation to women that are being held on remand it arises both from concerns about the overall number of women in custody which I know are concerns which the cabinet secretary shares but also concern around the proportion of women in custody who are on remand and the last figure that the committee received was that 36 percent of women being held in custody in Scotland are currently on remand we know that Scotland has the largest numbers of people in prison as a proportion of the population in western europe and we also have by far the highest remand figures however we also have a higher proportion of our prisoner population who are women prisoners and also have the highest number again of women in prison in scotland so a high proportion of prisoners in custody in scotland are women than in other countries i think it's approximately four percent of the the prison population we also know from research and evidence that the courts tend to give more stringent sentences to women than men for the same offences this is is not a new feature it's not something that is the responsibility of any particular party or this particular government it is something that has been a feature of our custodial system for many generations and i think across the the political parties who represented in this parliament there's concern about why it is that we have such a high level of women in custody and whether we are dealing with women offenders in the best possible ways and have the the range of resources and mechanisms in place to more to deal with these challenges in the most effective way as i say i will not be pushing this amendment to the vote and i would be interested to hear from the cabinet secretary as to the type of information that it's readily able to provide to the parliament or where systems could be developed to provide information but the amendment as drafted would require ministers to publish a report on women who've been refused bail with information on the nature of the offences that women have been charged with and as i see that information is not currently available to this committee although equivalent information is available in relation to male offenders it also asks for information on whether women who've been refused bail have a history of offending whether those women are classified as being primary carers, their age, any specific common health issues both in relation to physical and mental health but also in relation to drug addiction it doesn't mention alcohol addiction but that obviously would be another area of concern and also information about the proportion of women who refuse bail who have subsequently sentenced to imprisonment and that obviously is the concern that women are on remand for a lengthy period in prison and then when they come to trial either they're found not guilty or the sentence that they receive is significantly less than the period that they have already been in custody. As i say it's not a definitive list it's just a range of suggestions and it may be that certain types of data are more readily able to be calculated by the the prison system and the the rest of the justice system than others but the intention of the amendment is to try to create a pathway so that more information is available about the nature of the women being held in custody so that policymakers and legislators are able to grapple with the challenges that we face to try and ensure that we address what I believe is a level of custody being used for women that isn't appropriate in a society such as that we live in so it's with that intention that the amendment has been put down and I'll listen very carefully to what the cabinet secretary says in relation to our own amendment. Thank you very much. Cabinet secretary to speak to amendment 8 and other amendments in the group. Okay thank you convener I will speak to amendment 37 firstly in the name of Katie Clark amendment 37 inserts a new section after section 4 of the bill this will impose an annual duty on the Scottish ministers to publish a report on women who have been refused bail a non-exhaust list of the information which the report must contain is set out in subsection 2a2g of the new section. I do very much recognise this is a well intentioned amendment and agree there is benefit in a requirement for the Scottish ministers to publish a report in relation to women on remand however I do have some concerns about the amendment as it is presently drafted some of the information covered by amendment 37 is already routinely published as part of the Scottish Government's official statistics release in particular the following data is already published the nature of the offences women refuse bail have been charged with the average age of women refuse bail the number of women who transition from the remand to the sentenced population conversely some of the data listed in amendment 7 would either be very difficult or in some instances impossible to produce and accordingly may impose onerous requirements on the Scottish courts and tribunal service and potentially the crown office and procurator fiscal service to compile the data sought as such I ask Katie Clark not to press amendment 37 and I will undertake to work with her to see whether we can return at stage 3 without a workable reporting requirement one which explores the characteristics of the remand population including by gender but which does not unduly place onerous burdens on the Scottish courts and tribunal service and others but would seek for it to be meaningful and informative and I am conscious also of the concerns that have already been expressed throughout stage one about the capacity demands on operational justice agencies but will seek to strike the right balance convener turning to amendment 8 in my name during stage one the committee's report express concern about a lack of information about the circumstances in which remand decisions are made this amendment responds to that concern by imposing a statutory duty on the Scottish ministers to publish a report on bail and remand the report will require to contain certain information which is to be broken down by year and is to cover the first three years during which the new bail test in section 2 of the bill is in operation the report must contain certain specified information in relation to both bail and remand decision making in relation to remand this includes information such as the average daily remand population and the number of individuals who entered the remand population by reference to firstly the offense in respect of which the individual was remanded in custody secondly the individual's gender thirdly the local authority area in which the individual lived immediately before being remanded in custody in relation to bail this includes information such as the number of bail orders made by reference to the offense or type of offense in respect of which the individual was granted bail and data related to bail related offenses and offenses committed while on bail amendment 8 sets out the full list of information that must be included in the report while importantly also enabling the Scottish ministers to include any other information that is considered appropriate and a trust that this will be welcomed by committee and I ask that members support amendment 8 in my name. Thank you very much. We've got a couple of members wishing to come in. I'll bring in Bruno Mackay. Thank you convener. I was really just to put my put on record my thanks to Katie Clark for bringing forward amendment 37 regarding data surrounding women on remand. It's a crucial issue and it's something that's very much needed and I'm so glad that she's opened up for discussion and very pleased with the cabinet secretary's willing to look into this and bring it back at stage 3 so I think it's very very worthwhile I agree with everything that Katie said. Thank you convener. I can also thank Katie Clark for her amendment. My understanding is she's not moving it but I'll let her explain that when the time comes but yes I think it's an issue that the committee has grappled with. I did want to comment on amendment 8 which came as a very welcome surprise when it appeared on the daily list it's not often the government's come forward with comprehensive reporting requirements in this fashion and it's a very welcome change of tack here but I think I did want to comment on a few things but I mean some of the state is already collected as far as my understanding although it's quite hard to get and indeed that we've been trying to do that for quite some time and often either through various reports or publications of statistics that come out through FOIs and Parliamentary questions it's teasing out that date is very tough. I mean I could make a controversial comment at the beginning saying that perhaps you know if we passed this amendment and did this first before we introduced the legislation we might have a better picture of the effect that legislation might have or whether it's even needed at all because it would give us some of the data that we've been crying out for throughout the stage 1 process and that includes for example in subsection 2d analysis of length of time that an individual spends within their manned population which may explain away some but surely not all of the anomalies in our manned population being so high and that's the sort of data that we would really have loved and that's no disrespect to spice because there's limitations to what data is collected. The point of interest though to me is the bail order's point and the relevant convictions off the back of that so there's clearly a cohort of people who go on to do two things after they've been given bail some of them breach those bail conditions whether they're simple or enhanced conditions but those who commit entirely unrelated offences lost on bail. Now in the limited data that I could unearth and I think I've raised this in committee before in the year 2020 to 2021 there were nearly 16,000 crimes committed by somebody on bail that's Scottish Government's own statistics 15,724 in that year that is one in four of crimes recorded in that year so it's a fairly substantial number which I think perhaps might explain some of the uneasiness that certainly some members had about the direction of travel of this because if the effect of the legislation is to yeah yeah she'll believe that. Thank you. Just as a point of information in the period 2010-11 to 2019-20 the number offences committed while on bail fell by 18% from 8,261 to 6,800. Okay I'm just checking my statistics. So that's over the period of 2010 to 2020? 2010-11 to 2019-20. Okay were there any reductions is of course welcome. I'm happy to find the provenance statistics that I've used for the benefit of the official report perhaps they conclude a link based on my briefing I suspect off the back of some published reports or and by the time I finish speaking someone's office will have texted me anyway. I think the point being was that there is clearly a problem there of people who do go on to commit for other offences. Within that number though were quite some quite serious offences in that particular calendar year there were seven homicides for example and a number of quite serious rates and domestic abuse incidents so I think that perhaps underlines the explanation of why there was nervousness about the potential for if you increase the cohort of people that are released on bail with that necessarily to increase in the number of offences committed by people on bail and indeed what we heard from victims organisations certainly over the last few months has been the real issue of people who are on bail and are also under enhanced bail conditions but continue to re-traumatise their victims through either direct and over breaches of bail conditions but also through other means even doing it in a way that is technically outside of a bail breach but in the eyes of the police they really struggle to to charge somebody and bring them back into custody and that can be a simple of standing at the end of the street so they're technically not on the street but they're still there and still still being a menace to the victim and we've heard a lot of anecdotal evidence about that so I'm hoping that's a live issue the government's looking at as well and I guess one final thing that's missing from this reporting requirement would be something that the government may be open to an amendment is that off the bottom reporting is helpful, data's helpful, data's useful but off the back of it what then happens as a result of it and I think maybe perhaps a future amendment for stage three would be something as simple as saying that as a result of the above information that the government would take any action as it considers appropriate to remedy any such so in other words if there clearly is a if after passing this legislation we do see an unfortunate pattern in which nobody wants to see that the government would be there would be a commitment or requirement to take action to remedy that wouldn't necessarily mean going back to stage one on the on the bill's proposals which would perhaps be helpful for the government rather than simply having to repeal major sections of it it's not what anyone wants to see but the clearly is nervousness that it may happen so I'll leave my comments to that thank you Just to also welcome amendment number eight, very pro transparency and quite comprehensive during the cabinet secretary's earlier comments she talked about the frustration the committee has felt with acquiring data and I think we all agree with that one but I can't help but I think it's important to make the observation at least that we've embarked on this whole exercise frustrated about the very lack of data that is now being built into the bill and it sort of seems to be a classic example of the proper the cat putting the cart before the horse we have all I think benefited hugely if we'd been able to access readily access similar data to what's now proposed in amendment number eight but thank you if no other members want to come in I call Katie Clark to wind up and press or withdraw amendment 37 thank you convener and on the basis of what has been said I won't be moving amendment 37 which I withdraw and I also warmly welcome amendment eight which has been brought forward by the Scottish government thanks very much the members indicated that they wish to withdraw the amendment does the committee have any objections to the amendment being withdrawn okay thank you very much so in that case we will move on to section five but if I can just advise members and cabinet secretary and our officials that will pause proceedings once we've completed this this grouping so this section five relates to time spent on electronically monitored bail and I call amendment 67 in the name of collect Stevenson in a group on its own collect Stevenson to move and speak to amendment 67 thanks convener in my initial amendsman I had put that I would like to assume the whole section actually withdrawn and haven't done a bit more groundwork on this and looked into it albeit I do have some serious concerns here in terms of especially in relation to public safety and victim safety as well for domestic abuse and sexual violence cases whereby the you know the bail release is electronic monitoring and that it's albeit it's a restriction of liberty but it is only a restriction of possibly nine hours or so and that leaves it wide open for victims of domestic abuse and sexual violence still to be open to coercive behaviour and harassment in that respect so I still have huge concerns over it and whilst I am I'm going to not going to press the amendment what I would like to do is seek more help from the cabinet secretary on this and that particularly these cases of violent crimes that there shouldn't be a bail of electronic monitoring and it should be commensurate with the crime particularly a violent crime as well so in that instance I'll not be moving the amendsman but I would like to seek further movement on that particular section of the bill she has to move it if she wants to repeat it and she will withdraw it later collect do you want to move the amendment at the moment no okay anybody else want to move the just for clarification jenny green thank you I wasn't sure which order whether we were speaking to the group first and then we get to the move and we're not moving it's just the normal way to do it but either way I'll be clear about up front I will move this amendment and it perhaps I can then use the opportunity to speak to the rationale behind that yeah that's fine thank you so thank you so again this was a when I saw this one in the the daily list I thought it was a very welcome do you mind if I close the window before I carry on because it's a very angry crowd outside I'm sure it's nothing to do with us thank you not sure which flag they're waving today but it's quite a protest so this I mean the effect of this is a very blunt approach to simply remove section five section five is time spent on electronically monitored bail now the effect of collect themes as a minimum simply be to take all this out I actually think that's the best approach I'm not sure what tinkering could be done on this it is a concept that's been added to this legislation which equates to something which I fundamentally disagree with and that is that somebody who spends time electronically monitored whilst on bail which I don't have a problem with the concept of that in its own right but this then relates to a court passing a sentence of imprisonment or detention the time that will be time that will be spent and therefore any qualifying time where someone was electronically monitored forming part of that sentence and I think this you know we added this to yesterday's debate pre-empting discussion today but it was an important point to make because this is a condition of bail and effectively it could be used by courts as a as an incentive to somebody to say look you know where we hither to would have placed you in custody we will grant you bail but we will do so with with enhanced monitoring which is the point of it and there are other types of monitoring and different ways to monitor people and some of them are incredibly useful both those are monitor people's geography and movement there are other technologies which monitor abstinence from substances alcohol and drugs and so on I think there's a very a very positive and constructive conversation that we can have around those but there is a fundamental issue in what section 5 does is say that if you spend time monitored that will be considered as a part of your sentence I think there's a fundamental issue with this and I think that's why victims organizations have been vocal in their opposition to this I think that Stephen's approach was the right one and that's just to take it out it doesn't have a place in this legislation I don't think it can be justified and I think the government will struggle to justify it and I don't think any amount of tinkering could fix that problem and the only the only tinkering you could do with this section is somebody to say that notwithstanding all of the above it's entirely in a second it's entirely up to the judge anyway but if that's the case then what's the point of putting it in if the judge is already going to make a sentence decision then it will use a range of factors available to the judge at the time when that decision is made putting on the face of this bill which is about bail not about sentencing if you want to do that then yeah and off to both in a second I just want to elaborate my point first there are other mechanisms for doing that there's a you know wherever your views are the sentencing council it exists there are other directions which can be given to judges around consideration for sentencing it doesn't lie within the parameters of what this bill is all about which part one presumably is changing to the bill test and we've had a fulsome conversation about that in part two around what happens when someone's released it's not about sentencing it never has been I don't know where this came from I think this idea is quite bonkers so I'm happy to have a proper chat with other members about it I'll take the themes in first thanks what you guys I touched upon that as well in terms of tinkering around it and one of the things that I have you know I mentioned before was to see about a more sophisticated electronic monitoring particularly given that violent crime the stats against that are almost like addiction is high up there particularly alcohol use at 62 percent so in terms of tinkering around it is to look at a more sophisticated use of it such as sobriety coughs as you've mentioned about geographic location as well so do you not see that there's scope to do that then rather than just removing and hence that's why you know I've withdrawn that amendment yes and I'll respond to that first for speak to Pauline McNeill if she wants to continue to devine I agree with everything you've just said that's on I'll put that on the record I think there is an enhanced role especially if you know if this bill inevitably passes then I think people out there will be looking for what is the quid pro quo here and that part of that maybe that the government will utilise lots of different tools that it's at its dispense and and equip our courts with as much as they can to improve outcomes for victims and those who are nervous about about offenders there actually is a conversation about that that's not what this section does though and the reason I think it has to be removed not fixed is that it has a very prime purpose this whole amendment is about sentencing and time spent on electronic monitoring in proportion to the final sentence that's given it goes as far as even dictating what that should be so yes I agree I would like to see perhaps some amendments from the government at the next stage that you talk about how electronic monitoring can be better used as part of remand and bail decisions but it will not fit anywhere in pages the bottom of pages three for the top page of page five of this bill the only way to do it is to remove this out and then put something back in you cannot change this to be to do meaningfully what you wanted to do miss Stevenson so I would suggest that we do take it out for that very reason because this is entirely about a different matter it's not about enhanced use of electronic monitoring miss mignol thank you very much for giving way so I'm very sympathetic to pretty much all the arguments especially when the other was a bit it did seem a little bit too far to start to prescribe how in which you know our judges would be I think the committee were particularly given that so I wonder if the member would would agree that perhaps it's the objective that needs to be defined here so if you if you're on remand so I'll start with this point which is it's a really important alternative I think collect Stevenson's unregarded argument and I support this view it's a really important alternative for courts to have supervised bail and so that in its own right is something that does I agree with the member requires a conversation but perhaps we need to sort out the principles then so if you spend time on remand then that is considered in sentencing because you have been detained in a prison and it's only right that that should be considered if it's the restriction on your liberty which there is with can be if you've got an electronic tag I guess that's the principle would contain within the provisions of the bill which we're examining as was there for my questions to to Jamie Greene is do you think it's necessary to sort out then which principle we're adhering to here because I'm slightly sympathetic to the viewpoint that some consideration should be given if the restriction on your movement is quite substantial for a long period of time on an electronic tag is an alternative to remand but everything else I gave us okay but the point is that someone who has been bailed has not been tried nor found guilty of any fence so the restriction is absolutely a by-product of the conditions around that bail it is not part of their sentence there is a big difference between that as you rightly say between someone who has been bailed and with any form of supervised or enhanced restrictions or parameters around what the bill is in other words the bill is conditional upon certain activities of certain restrictions and someone who has been remanded into custody a waiting trial now absolutely at the moment the law rightly takes that into account when it comes to sentencing you know the example of somebody who's been stuck in prison for a year and a half their case has been endlessly postponed and delayed and they get their day in court and the sentence that that is applied in the end having been found guilty of a crime is lesser than the time they'd already spent and absolutely they walk free from the from the court that day that's an entirely different matter my point about what section five of this does is it tries to conflate the two issues the conflation that the use of electronic monitoring could be helpful and useful as part of enhanced bail is the point with steams and makes I agree with the point that you make around uh people spent spending time on remanding custody that's a loss of liberty absolutely that should be taken consideration but my point is that this entire meant this entire section of the bill solely focuses on the issue of time being spent electronic motored as part of your sentence and therefore that's why I think it needs to come out and perhaps potentially be replaced and that's something you know we can work constructively on what the replacement might be but you cannot amend this in any meaningful or feasible way to come up with the solution I think we might all want and it might even surprisingly we might all agree on I'll end my comments there okay thank you very much and I'll bring in Russell Finlay yeah thank you I'll try not to go over the same ground as others have already done so but I think if the Scottish Government want to fundamentally change um sentencing whereby electronic monitoring on remand counts towards a discount on a future prison sentence that needs to be done as a standalone piece of work I think it shouldn't be sort of snuck in to this bill which is about bail on remand um it's a fundamental principle this is why jamie greens amendment in last night's Scottish Government justice debate preempted this by by raising it because it's such an important and fundamental issue and bail conditions are commonplace they might not be you know people might not welcome being subject to bail conditions but it's a readily understood factor of the justice system people are innocent until proven guilty however they may be subject to particular conditions depending on the outcome of the proceedings whereas sentencing is is a fundamentally different thing which is the point victim support scotland made very very strongly in representation to the committee now the previous cabinet secretary told the committee when we questioned him about this that um these bail conditions are a diminutio diminutio of rights and seem to be arguing that therefore that should be the direction of travel sentencing should reflect that limitation on people's rights but it needs to be properly explained and properly evidenced and I think it lacks that so thank you thank you very much and if no kitty clark we're getting the opportunity to make a short contribution um i won't be pushing collectings since amendment to the vote but if it was pushed to the vote i would support it i do think um that the proposal from the Scottish Government is too restrictive and too prohibitive and goes way beyond the general concept that there may be circumstances where the court may have the discretion to take into account periods spent on electronic monitoring and i will be touching on that on that in the amendment that we'll be debating next week which i had suggested to put as an alternative so as a deletion of section five with with an alternative where periods on electronic bail could be taken into account by the court and i think the fundamental point to make is that the electronic monitoring is not a sentence it is a bail restriction in circumstances where there is a risk that the accused poses a public safety threat or a threat to the victim so in the same way that a curfew or you know a condition that the accused doesn't approach a complainer is is a condition electronic monitoring is only used in situation where there's genuine risks and i think we've got to be really clear that that's the way that it's being used however if that restriction is so great i think there is an argument either compliance with the electronic monitoring or indeed failure to comply might be something that the court would take into account in sentencing and i believe those are the kind of considerations the courts already take into account whether someone has a tear to a curfew or to electronic monitoring or others bail conditions can be facts is that the court has the discretion to take into account and i think the problem with the the government's wording as is is the highly restrictive nature of the way that it's been drafted and no doubt we will continue that discussion next week but i do support the amendment as drafted by Colette Stevenson okay thank you very much cabinet secretary thanks very much convener there's a number of issues to to clarify and put put on the record and i hope colleagues will bear with me and it's apparent that miss Stevenson's amendment not pursued by her but but now by mr green would remove section 5 from the bill in its entirety and let me be clear to to miss Stevenson and others that this section is not about the existence of electronic monitoring of bail that already exists and there are there is of course important debates and factors to consider further about how the use of electronic monitoring bail you know could be enhanced it exists now in 21 local authority areas and is coupled you know with bail supervision which exists in 30 areas so that is a separate matter and we need to be clear about this so all that we are seeking to do here is give the court the option to enable the court to take into account whether they do or not to consider whether or not they want to acknowledge good behaviour whilst on electronic monitoring and it is based on the consideration that a restriction of liberty while is not the same as deprivation of liberty it is nonetheless a restriction that if someone is sentenced it would not be unreasonable for the court to have the option to take into account or not as the court sees fit and also to say that this you know our approach has been consulted on and I would take exception to the suggestion that we've sneaked it in somewhere but just in a moment mr finlay and just for the record before I go any more formalised comments can I refer colleagues back to the comments that I made when we were debating group three that remand remains an important and indeed essential component and option to protect victims who are at risk from violence whether that is physical violence or coercive violence and that includes domestic violence as well and of course we'll take mr finlay's comment yeah thank you just to seek a bit more detail on what consultation took place because my recollection from the evidence we took is that this was in a written submission from a belief in a group of academics who pointed to some kind of form of international standard but it was it wasn't even as if they were presenting it as something they were pushing hard or that was subject to a great deal of analysis other than a passing reference so it does seem to be a little bit thrown into the mix so I mean this is a we are talking about a section of the bill that was part of the bill as it was introduced and what I'm responding today is endeavors to remove an entire section of a bill introduced now members are entitled to bring forward any amendments that they wish but I'm also entitled to put forward the arguments to protect the overall integrity of the bill this is a small section of the bill but I'm going to go through the reasons why I think there's merit notwithstanding then we will be further scrutiny to be amendments coming forth but why there are merits to having section five of the the bill in the first place now. Section five adds new section 210za to the criminal procedure Scotland act 1995 this provides a court with discretion during sentencing to take into account a period an accused person has spent on electronically monitored bill with a curfew condition referred to as qualifying bail it also sets out how that ought to be taken into account it is based on how a similar system operates in england in wales so an example would be where a person is on qualifying bail for a period of say six months and upon conviction they receive a sentence of 18 months new section 210za of the 1995 act would enable not mandate the court to decide how much if any of the six month period is relevant for sentencing purposes it can be none of the period some of the period or all of the period the court will make its assessment based on the circumstances of each individual case where the person has for example not complied with the curfew then the court may decide none of the six month period is relevant that would mean the person enters custody to serve their sentence with none of their time spent on qualifying bail being treated as time served equally where the person has fully complied with the curfew the court may decide that all of the six month period spent on qualifying bail is relevant once the court decides what the relevant period is the bill provides a formula for the court to apply importantly the formula does not treat time spent on qualifying bail and time spent in custody as equivalents because they are not instead the formula in the bill converts every two days of the relevant period spent on a qualifying bail as meaning one day of time served of the sentence the use of this formula ensures a consistent and fair approach is taken if the court considers that time spent on qualifying bail should be accounted for at sentencing yes first of all so this was in the original bill but that doesn't mean it has to stay in it we have a new cabinet secretary and we have a new refocus on victims and all of this so I think there's an opportunity for the cabinet secretary to do the right thing on this section I'm I feel a certain uncomfortableness with the response I appreciate you've inherited this policy but it doesn't mean we have to live with it who was actually consulted in the formulation of this because as I said all we heard in stage one deliberations was we're two academics who said that they you know they'd heard of an idea of it somewhere else but we certainly took no evidence on it and certainly the judiciary didn't indicate they'd been consulted and this formula of two days on electronic monitoring means one day in prison where and after that come from so the formula is informed by practice in England and Wales in terms of the the the the bill so I can't comment on it's not for me to apine on what evidence committee heard at stage one but I think I'm well within my rights to point to that the government undertook a full public consultation and of course as we always do in bills we published our consultation responses if after today there are further issues indeed any member or indeed committee collectively would like me to provide I am more than happy to do so that is not a problem so convener if I can return to the example of just given applying the formula to this six month period would mean that at a maximum the person would enter custody being treated as having served three months of their 18 month sentence convener and while a person who is subject to electronically monitored bail with curfew conditions is not in the same position as someone in custody such a measure does represent a significant restriction of their liberty as I indicated earlier the bill therefore enables not mandates enables the court to take cognisance should they wish to do so of this in a proportionate way when a custodial sentence is imposed and this measure brings Scotland into line with similar arrangements in England and Wales and which I believe the committee supported in its stage one report and therefore with respect I would ask committee members to vote against it thank you very much indeed so just to be absolutely clear I'll come back to Collette Stevenson just to make any final comments that you wish to by way of winding up and to indicate if you're wishing to press or withdraw the amendment you know I really get no further comments and I'll not be pressing the amendment so the members indicated that they wish to withdraw the amendment so does the committee have any objections to the amendment being withdrawn thank you very much so the question is that amendment 67 be agreed to are we all agreed we are not agreed in which case we will move to a vote so can I ask all those in favour of the amendment to raise your hand thank you all those against raise your hand okay thank you so we have an equality of votes therefore as convener I'll use my casting vote and vote against the amendment so the amendment is therefore not agreed so at this point I would suggest that we pause stage 2 proceedings and we'll resume consideration of amendments to the rest of the bill at our next meeting which is on Wednesday the 17th of May so I thank the cabinet secretary for attending and I close this meeting thank you