 Welcome to the Justice Committee's 16th meeting of 2018. I have apologies from convener Margaret Mitchell and Jenny Gilruth, and I welcome Stuart Stevenson, who is substituting today for Jenny. Agenda item 1 is our fourth evidence session on the Management of Offenders Scotland Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. So, good morning. I'd like to welcome our first panel, who is David Strang, Her Majesty's Chief Inspector, Her Majesty's Inspector of Prisons for Scotland, Chief Superintendent Gary McEwen, Divisional Commander, Criminal Justice Services Division Police Scotland, Ruth Ingalls, Director of Development and Innovation, Scottish Courts and Tribunals Service, and Roddie Flynn, Legal Secretary to the Lord President. I'd like to thank those who have provided written evidence. It's very useful. We can move straight to questions now. I'll start with Daniel. Thank you, convener, and good morning to the panel. In broad terms, and I'm going to be asking about electronic tagging, in terms of the bill that it set out, it's broadly to do two things, first of all, to update for new technologies, and secondly, as part of the context of trying to keep people out of prison, whereby ordinarily someone might not be able to be released that the tagging can perhaps provide the security that is required. However, there's been some concern stated by some, including the Howard League, that it could lead to simply a situation where people who would otherwise be allowed non-custodial sentences or released may just simply be up-tariffed. I'm just wondering what the panel's thoughts were on that and how we prevent a situation where simply we tag people who otherwise would be out of prison. When we start with David Strang. Shall I begin? Thank you very much indeed. I think I'd want to begin by just commenting on the very high levels of imprisonment we have in Scotland, in my view, disproportionate and unnecessarily high. We're the second highest per head of population in the whole of Europe, outdone only by England and Wales. My own view is that we imprison too many people, particularly for short sentences. Prison is absolutely necessary for those who have committed serious crimes and who pose a serious threat to the public. The purpose of the criminal justice system is to reduce crime, to keep people safe, to reduce the number of victims. I think that our use of short-term imprisonment contributes to increasing crime. It makes us as a society in Scotland less safe, not more safe, by locking people up for short periods. I gave evidence before you in January on the use of remand that about a fifth of people in prison in Scotland today are unconvicted or untried. To answer your question, I welcome the use of electronic monitoring where it will reduce the use of imprisonment. I am particularly thinking about remand, which I would support, but also encouraging early release back into the community and as a disposal from the court. That would be seen as an effective response to the crime of any behaviour people should be dealt with by the court. The use of electronic monitoring as an add-on to community payback or just part of it, I think, is a useful means, as long as it is an alternative to someone being custody. Behind your question is a suggestion that courts might just add it on as a way of ensuring that someone stays out of trouble. I think that there is a risk that the Howard League of Scotland is right that there is a potential risk that it could, if it widens too far, people who otherwise would not have been caught and returned to custody might be. I think that the implementation of this is important. People are supported to have supervision in the community. It is not just the tag alone, but it is the support that they might need, particularly if they have addictions, problems with mental health and so on, that they will need support in the community to keep them out of the criminal justice system. I would be interested if the other members of the panel reflect those comments. I do not disagree at all with anything that has just been commented upon. I think that serious high-risk offenders and criminals should, if the court decide, be kept in custody and should serve a term of imprisonment. However, those who are on remand or the lower-level offences have a significant and massive disruption to family employment housing and all those others who are associated by taking that individual for a short period of remand. I think that it is important to note that this is electronic monitoring and it is not controlled. It is not a catch-all. It will not prevent re-offending. It will just monitor somebody's behaviour more likely in a retrospective fashion. I think that electronic monitoring is definitely a tactic and an innovative practice that we should be considering, but it should definitely suit the needs of the offender and there should be wraparound with other measures in place to support that individual. It cannot just be used as an isolation that has to be used with other tactics that we have with partners. I would like to start by thanking the committee for inviting SCTS to give evidence today. By way of introduction, if I could also just say that I am appearing on behalf of SCTS in its role of providing efficient and effective administration to the courts and my views do not reflect the views of the judiciary and my comments will very much be confined to considering the operational impact on the courts and not delving into matters of policy. I am not sure that there is anything that I could use to add in response to that question. Perhaps if I could just go back to David Strang. In your written submission, you highlight some concerns around consistency. I was just wondering if you could explain what those concerns are and perhaps maybe set out some of your thoughts about how that consistency could be improved. I presume that that would in turn relate a little bit to my initial question about ensuring that it is used to help people to get out of prison as opposed to tagging people who would already be out. My comments in relation to consistency is about the support that is available for people across Scotland in different local authority areas. I am thinking about bail supervision and clearly different courts will tend to use community payback orders in different ways so that the support that is available is not necessarily consistent in every local authority and for every court. That was what my comments were in relation to the support that is available for people in the community across Scotland. Can I put that point to the courts and tribunal service? One of the things that we have heard a number of times on this but also in terms of remand is that we have variation between different areas really based on what sheriffs are aware of as being available and what is open to them. What steps can be taken to ensure that that full information is there and that that legislation would be used as effectively as possible if it is passed? I suppose that, in terms of ensuring consistency and availability, it might amount to additional training in terms of staff training and judicial training. That is where I could see that that would impact on the court service and that in turn would require additional funding. Do you think that funding is contained within what has been set out in particular in the financial memorandum? Do you think that there are adequate levels of funding for that? In terms of what is currently in the bill, we did contribute to the financial memorandum. We assumed a 50 per cent increase in the number of relevant orders with an associated increase in breaches and miscellaneous applications. The costs of that were estimated in the region of £800,000 per annum for the sheriff courts and in the region of £9,500 for JP courts. There are very few orders made in the High Court. The financial memorandum is structured around what the bill provisions contain at the moment, and it reflects a fair estimate of the costs. If I could just ask one final question to Gary McEwen. You said in your first response that this is very much about monitoring rather than preventing behaviours, but by the same token you could see a situation where if this is successful and is being used, it could lead to an increase in your workload because you are having to respond to the behaviours that are flagged up for people who are out of prison and who might have otherwise been inside. What operational changes do you foresee that impacting on you and the police more widely in terms of having to follow up on on electronically monitored prisoners? We do think that there will be some additional back office support required to update the various PNC and CHS systems, but it is not going to be significant. You are talking penny numbers of staff, maybe one or two additional members of staff, depending on the throughput. Whether electronic monitoring is considered for bails, we would estimate that that would again have a greater increase in the back office workload, because there are many thousands of bails across the country. If that was considered, that would require some administration. However, the reality around those that they are after breach monitoring is that we do not have a power of arrest for the current restriction of liberty orders or the home detention curfuse. That goes back to the court, who then, if they choose to do so or if there has been a breach reported to them, there is a warrant issued. That is where the impact would be on police officers, because the officers across the country would then embark upon arresting those individuals in want and presenting them back to the court. That would have an impact, but that is if individuals breached those retrospective curfus in order. Have you done any sort of assessment into what impact that might have in terms of response officers? We haven't, no. Mr Flynn, would you like to comment on anything that you have heard? No, nothing further, so far. The Government has indicated that monitoring requirements would be appropriate to circumstances. It also talks about a response framework to ensure consistency of approach. Are you able to comment on what judgment it was helpful to hear your comment about what happens at the moment? Would you imagine the police to be involved in putting together some framework yourself, Mr Strang, perhaps Ms Ingalls? I would certainly be interested in getting involved in the discussion, but the vast majority of that is more for the prisons and the courts. It is them that, for the home detention curfus, it is the prison service that issue those curfus. The police really are the latter end of it should individuals breach them when their reports have been submitted and once issued. The reality is that it is more for the prisons and the courts. For social work that will be supervising in the community, Gary McEwen mentioned about thousands of bail decisions and they are, but I wouldn't anticipate that those people will be eligible or be envisaged for electronic. This is about people who otherwise would have been remanded in custody. The numbers won't be massive. I hope that it will be a small number who otherwise would have been in custody, but with the introduction of electronic monitoring we will be able to remain in the community and it will impact more on social work and support agencies in the community. Ms Ingalls, would you have a comment in particular when you were talked about the figures that are put together, if you considered a gender aspect of that? We have had representations about the disproportionate impact that electronic monitoring could have on women, particularly with regard to childcare responsibilities and what that would mean for the children that are effectively confined to the house to. In terms of that particular aspect of data that you are talking about and the impact on women, that is not something that I have data on. I am also not sure that that is something that SCTS could provide data on. The way that our case management systems are set up, they are set up on the basis of operational needs as opposed to doing any research or statistical analysis, so there are limitations to what we could provide in terms of data on that. In relation to the development of the response framework, your service has been involved in the development of that? I have no detail about the response framework. My question is from Mr Strang, and it is about the statistics. Of course, they may not be your statistics, so it may be that you cannot answer. You said that Scotland has the second highest number of people in prison, and England and Wales is the highest, but a fifth of them are on remand. In looking at the figures in other parts of Europe, do they include remand prisoners? That is the first part of the question. Conscious of the fact that in other jurisdictions remand prisoners can quite often be held separately in things like bail hostels, which are restrictions on liberty but not prison. Are the figures as comparable as your answer to us would suggest? There are international standards for comparisons across the globe. As you would understand, there are potentially different counting mechanisms, but it is accepted this figure of prison population per 100,000 of the population. It is not absolute numbers, it is comparisons with the size of the population. The European average is about 100 per 100,000. You mentioned Scandinavian countries. They imprison about 60, 70. Scotland is about 130. England is about 140. There may be minor definitions. One of the issues can be psychiatric patients and whether people are held in a secure hospital setting or in a prison environment. There will be some potential variations at the margins, but in terms of the broad scope that we imprison on average, 50 per cent more of our population than the European average is an accurate figure. If all the remand prisoners were not to be held in prison but instead released on some form of tagging, we would be down to my quicker arithmetic stage 105. Yes, but there is absolutely no suggestion that no one will be held on remand. I am not arguing that every prisoner on remand, if someone is charged with a very serious offence, they absolutely need to be locked up from the day of arrest through the court if they are convicted and kept in custody for a long time. It is important not to think that I am arguing that all people on remand in prison should be held on electronic monitoring not at all. I am talking about a certain proportion of those who could be better supported in the community with support and with tagging. It can be ensured that they turn up at court. Quite a lot of people, including women, as Mr Finnie was asking about, are remanded to ensure that the court case can go ahead. I understand that. I think that there is a smaller number than the 100 per cent of people on remand. If I may, I was merely seeking to explore the limitations. In other words, to get down to the European average requires a lot more than simply dealing with remand prisoners. I just wanted to put on the record that I was not coming from the point of view that you might have thought I was. For me it is also about prison sentences and I am a big supporter of the presumption against short sentences. I was just following, I think, it was Mr Shangwos talking about the additional workload pressures applied to social work departments as a result of the electronic monitoring. I do not think that there will be a social work department in the country that is not already experiencing severe workload issues. I was just wondering whether it may not be for this panel, it may be more for the minister and others to determine, but in your view is there a risk inherent within this that we may be applying yet further pressure to an already burdened service that will make the success of electronic monitoring more difficult to achieve? I do not have a view on resourcing of social work services, but taking a long view, if we accept that this is likely to lead to fewer people being imprisoned, a reduction in crime overall, then in the longer term this is the right thing to do and will reduce the impact on police courts, prisons and criminal justice social work. Turning to the issue of expanding the issue to cover alcohol and drug testing as well, I was just wondering whether the panel's views on the primary motives and benefits around this is about more flexibility for the courts to deal with those who come before them, a greater reassurance to the public, or in terms of alcohol and drug monitoring about supporting efforts towards the assistance on the part of people who have addiction issues. I am just wondering whether there is a primary motive behind this or it is a blend of a range of different benefits? For me there is a parallel with the drug treatment and testing orders which are always seen by the courts as part of the criminal justice system, but if you speak to people who are on the detail they find the discipline of that supervision and support and appearing before the sheriff is helpful in trying to manage addictions. As you know, the levels of addiction of people going through our courts are very high. More than 50 per cent of people in prisons say that they were drunk at the time of committing their offence, so we know that addictions, whether they are drug or alcohol, there is a huge correlation with offending and people's lifestyle and so on. I think that we can take encouragement from the fact that DTTOs, which is a disposal of the court, is seen as supportive. I think that for me to answer your question that the potential for electronic monitoring for alcohol is about adding some additional supervision and support for people who are trying to change their ways as they would need to be—it could only be a voluntary disposal—and it seems to me that it is not about catching people out and more punishment, but it is about having information that can be helpful in terms of supporting them so that you are more likely to get a better outcome in the long run. Is there a balance here in terms of ensuring that the measures that we are applying do not become so intrusive that they create other issues in terms of, for example, the data and what not that we have on individuals as a consequence of the way in which that data is stored and shared? I understand that, but there is nothing in our criminal justice system more intrusive than sending someone to prison. They are taken from their home if they have a job, they lose that, break relationships with families and they are incarcerated in a prison for however long. That is the highest level of intrusion that the criminal justice system has. You are right to raise data and information issues as potentially intrusive, but as an alternative to being incarcerated in prison it is a much lower level of intrusion. Those issues will need to be looked at clearly, but I do not think that it is a barrier to using electronic monitoring in this way as an alternative to custody. To mirror what has just been said, alcohol and drugs are a significant causation factor to a lot of crime that happens out in the communities of Scotland. If that is an alternative and an additional wraparound to monitoring individuals who have a propensity to commit crime or have committed crime with influence of alcohol or drugs, a monitoring system could very well be advantageous. It could address their needs and protect the public in a retrospective fashion. As an alternative to them being in prison for short-term sentences, I think that that is certainly a viable option. Are there concerns that in terms of GPS availability that this is a disposal that is going to be available in some parts of the country, but not necessarily all parts of the country? Is that something that we should be concerned about or is the expectation that technology will allow us to apply those measures across the entire country in remote and rural areas? I am not sure about that level of detail. I hear the discussions around GPS not being great in some areas of Scotland and being better in urban and rural. It is worthy of further discussion. I suppose that it is partly the technological issue and partly the issue of geography as well. Presumably, there is consideration to be given that where somebody is being electronically monitored, it is a management of a risk issue. For example, if you are in an island setting, such as the ones that I represent, there might be concerns among your colleagues, Mr McEwen, that monitoring is going on in somewhere where there is not a police presence and therefore the ability to respond to issues is something that is more challenging to achieve. That is something that will be a factor in terms of the decisions that are taken about the use of it. I think that it would be interesting to see the technological advancements. It will not be missed on you that it is monitoring, so it is not controlling, it is retrospective. If somebody does not adhere to the curfew bail, we are not aware of that in real time. That becomes a par many hours if not longer later, whatever the company is that reports that matter. The question for me is what is the individual doing during that period of time that he or she is breaching whatever the curfew or the conditions are. It is not real time control, it is monitoring, but it is retrospective. Unless there are technological advancements there, it would bring that to the fore quicker, which I think would be really important. On the issue of data protection that we touched on briefly before, there are provisions within the bill granting ministers powers to set that by regulation. Is it the panel's view that that is sufficient? We have a range of different parties that would be involved in the process around electronic monitoring. We may require to share that data, which is going to be a mix of public, possibly voluntary and indeed private companies operating in this area. Does that give rise to any particular concerns on your view? Certainly not of any of the information that I have read. No, I think that we need to share that information as widely as possible within the remits of the legislation. I am comfortable that that is certainly, if not being done, certainly being covered and discussed. Is your question about ministers being able to make regulations for data protection rather than it coming to the Parliament for legislation? It is a combination of both. Clearly, the concerns that would be addressed around data protection and the way that information is shared is taken up in the bill within guidance that is to follow. There is an on-going debate about the level of scrutiny that there is of that process. The question is, do we need something more explicit on the face of the bill about how that would be handled, or are you comfortable that that process will arrive at a solution that will address the concerns that inevitably arise around the way in which data is shared? I think that the latter is sensible to have the ability to introduce procedures and protocols for data sharing and storage and so on. As we know, the electronic world is changing very rapidly. I do not think that you would want to come back to Parliament to legislate every time there is some new app or new way of sharing information, so I think that is sufficient. I think that you are right that there is an issue about what happens to this data. The companies that are responsible for electronic monitoring, particularly with GPS and alcohol monitoring, will have a huge amount of data that is captured. It is important that there is sufficient oversight and scrutiny of what happens to that data. You do not think that that would require, even though I take absolutely the point that you make about the way in which technology change and the issues that may arise from that are going to evolve over time, but there is not more of a need to set out broader principles that, when we would imagine, would adhere for some time to come in terms of the way in which that data is used and shared? That is not to my view. Can I ask Ruth Ingalls, please? Does the court service have protocols and are you planning and changing your protocols with regard to data sharing, given the new regulations? Can I just ask you which regulations you mean? The new regulations are coming into force on Friday. Are you changing your practice in any way, the GDPR regulations? Oh, the GDPR, right, sorry. Yes, the courts are responding to the GDPR and implementing various practices in order to ensure that the court service is following the new regime. I am not in a position to provide much detail on that, but I can certainly write to the committee if that would be helpful or if there are any particular aspects of it that you have concerns about. It was just a general view as to what you were having to do regarding that, so if you could just update us, that would be great. Supplementary from Stuart Stevenson. I just thought it was useful to put on the record a little bit, since we've talked about GPs. GPs actually works better in rural areas than it does in urban areas, because to get a two-dimensional fix, you need to see three satellites, and in urban areas, buildings will obscure the view of satellites, whereas in rural areas they do not, albeit that most of the GPs-enabled equipment also has supplementary fixing using mobile phones, and they have devices that enable them to interpolate between adjacent GPS captures. Basically, it actually works better in rural areas than urban, and it's just important that we don't get away with the idea that it's otherwise. Liam Kerr I'm going to ask witnesses about resourcing. Before I do, Mr Strang, can I just ask you, Stuart Stevenson, in another one of his very interesting interventions earlier on, was asking about the stats, and you said that the stats on prison numbers were broadly comparable across Europe. Within those stats, the number of remand prisoners is included. You said earlier that we're running at about 20 per cent of the prison population is on remand. Do you have any idea of whether those levels are equivalent in the other European jurisdictions? For example, are there significantly less people on remand throughout the rest of Europe in those stats? The answer to your question is that I don't have those statistics. Beck College at London University, the international prison centre, put out the statistics on, and they do comparable, not just across Europe but across the globe. That is all available there, but I personally sitting here do not know what the comparable remand rates are in other countries. Moving on to the general resources, the electronic monitoring could or will be a pretty significant change in terms of how we do things, and there will be a call on the resources that will be required to do that. That might include the actual equipment, the training of staff to do that, the way that the courts operate, for example, the social work departments that Liam McArthur looked at earlier. Do any of the witnesses have any views on whether the whole area has been appropriately costed and if sufficient resources will be made available? Mr McEwen, can I throw that to you? As I mentioned earlier, we have looked at what we anticipate will be the back office support requirements, but it is not significant the bit that we have yet to fully understand is the impact at the tail end of the pipeline where those individuals that breach the electronic monitoring and reports going into the sheriffs, to the NSU warrants, etc. Will that increase as a consequence of that? We are not sure, and we need to do some more evaluations to try to understand that, but it is very difficult, because those individuals currently are in the prison or would have normally previously been put in prison. If they are now coming out on electronic monitoring, what is the likelihood of them breaching that is the finger in their stuff, to be honest with you? My answer is about a long-term costing. One prison place for a year costs £35,000, roughly. If you are reducing the number of people who are occupying prison beds, then there is clearly an economic benefit. I am sure that the Scottish Prison Service would like me to say this, so it does not free it up immediately, not saying that one person or few other can handle £35,000 a year. In terms of us as a society, it is much more expensive to keep someone in prison than to supervise them on electronic monitoring. I suppose that there needs to be a spend to save, because if you are investing in community supervision that is successful and reduces the number of people in prison, then that frees up. There needs to be a resource shift in my mind. This is a much broader issue, but we need a resource shift from spending on prisons and custody into community disposals and community support. It is a longer-term solution. In terms of resources, as I mentioned earlier, we have contributed to the financial memorandum. I mentioned the figures of the costs being approximately £800,000 per annum for the share of court and £9,500 in the GP courts. I did not mention the additional new intimation duty, which scheduled one of the bill places on the clerk of court. That will have resource implications for SCTS. Again, we indicated in the financial memorandum that taking into account the anticipated increase in the number of community disposals that will be made in consequence of the bill and estimating that 20 per cent of relevant community disposals relate to persons who are already subject to an existing order, there will be additional staff time costs of around £232,000 per annum. In terms of your question of whether it has been sufficiently costed, the disposals that are currently listed in clause 3 of the bill have been sufficiently costed from our perspective. However, if the list of disposals is extended by way of regulation-making powers, if and when that happens, those will need to be costed by SCTS as well. If the list of disposals is extended to include things like electronic monitoring as an alternative to remand or an alternative to fines, those will have significant resource implications for SCTS. We would need to have time to cost those and to ensure that they enable funding that is available for it. However, that may well come further down the line when and if the regulation-making powers are exercised by ministers. Would it be fair to say then that it is not possible to say at this stage that this is how much this change is going to cost the country? Specifically, Mr MacArthur's point earlier about the social work departments, that exercise has not been done? I can only comment on SCTS in terms of what is in the bill at the moment in clause 3, which lists the disposals that are available. I feel that that has been costed for SCTS. However, if ministers choose to exercise their enabling powers further down the line and add to the list of disposals bringing in things like electronic monitoring as an alternative to remand or an alternative to fines, then the details of that have not been costed. We provided estimates in our response to the consultation on that. Looking at electronic monitoring as an alternative to fines, we were coming in with figures of £2.2 million per annum. You can see that there could potentially be a big impact on SCTS, so we need to be involved fully in the costing of those further down the line. Let's just say that there are fairly significant costs, and I do accept what Mr Dac says about your almost front-loading that cost for a payback later. But where is that resource going to come from? Do any of you have any idea? Specifically, Mr Strang, is there any suggestion that it could come from the prison service? It's not for me to comment on resourcing. My job as Chief Inspector of Prisons is to inspect prisons and report on the conditions and the treatment of people in prison. I just see it as a bigger challenge that we need to shift more resourcing into prevention and support and less on imprisonment and the punishment end. As with any funding decision, it's a political decision about priorities. Politicians have to decide about health, education and justice. I'm advocating that more investment in electronic monitoring and supervision in the community will, in the long run, produce better outcomes for society, lower crime rates and will save money in the long run because we will be incarcerating fewer people. It makes sense for me, both in the short and the longer term. Does anyone else have any comments on where that resource would come from? For example, in the court service, you've laid out some fairly clear costs. Have you any idea where that money is going to come from? We have laid out the costs, and if we are required to implement that policy, we would hope that the funding would be made available for that. We received evidence highlighting the importance of decisions about electronic monitoring having been made on professional assessment of support needs and risks to others. Does the panel have regarding certain types of offending, such as domestic abuse, give rise to particular difficulties with this type of monitoring in particular? Do I have a concern that I have? It's going to be more problematic with domestic abuse. In fact, they're in the community, they're around, they're monitored. I'm talking about the guilty party, should we say? Domestic abuse is not my absolute area of expertise, but I think that it goes back to the original points. The serious and violent offenders should be kept in prison, and there is no doubt about that in my mind. Those who commit other offences that are less serious, then we perhaps need to have a different and more innovative approach to that. Electronic monitoring seems to be one viable option, but it really has to be around a wraparound. Some of the bill talks about sex offenders and introducing electronic monitoring in relation to suppos in sexual harm prevention orders. I think that this is now another viable technique to be considered, but it can't be done in isolation. It has to be done with other measures of control that the suppos in the harm prevention orders have at their disposal. It's one additional tool within the tactic that we consider. I understand the concerns of victims of domestic abuse. There's a comfort in knowing that they're accused as in custody. The electronic monitoring provides greater ability to supervise people in the community. There can be exclusion zones set up, so it can be a way of protecting a victim of domestic abuse. Obviously, for a time limit only, it wouldn't go on forever. By someone remaining in the community, it may be if they have a job, they can carry on working, they can still see their children and so on. It can be tailored to support the individual circumstances of each case, I think. There are positives to it, then. Many other comments? As that's more about a policy, I don't think that SCTS would have any comment to make on that question. That's a fling. I agree. Okay, thank you. Mr McEwen, in terms of domestic abuse victims, do you think that the police are going to have a role to respond immediately in cases of breaches and, you know, would that put a strain on your staff resources? It may do. I actually think that that's the vital element to the electronic monitoring, as there is no real-time ability, as it stands, to report that breach there, which, arguably to me, is the most important aspect of it. If somebody is breaching their curfew or their DTTO or a geographic boundary, the question for me is why are they doing that at that time and we should be getting alerted, or somebody should be immediately alerted and there should be some proactive response to that, to try and trace that individual and understand why he or she has breached it. My knowledge of this is currently that. That does not happen, but I'm not sure about in the future if that's part of the technology, but it should be. John Finnie. I wasn't expecting you to come to me, but can I follow up on that particular issue, Mr McEwen, because it would seem to me that, on that issue of domestic abuse, that an important factor, as always, would be the risk assessment? Is it your understanding that Police Scotland would be involved in any risk assessment associated with the decision taken to allow someone to be the subject of electronic monitoring? It would seem that, if they are, there's a potential to say that, given the circumstances of the conviction and pass-conduct, that might be inappropriate, particularly in domestic abuse cases. I would not anticipate that we would be part of the risk assessment. I don't anticipate that. My understanding of how this works is that somebody goes to court and they are convicted of an offence and or of bails introduced, but we report the circumstances to Crown and to the courts, and it would be for the sheriff to make that decision around the risk assessment and the prisons, whether it be other aspects around the home curfew, whether it is legitimate and proportionate and right to impose the electronic monitoring. We are at the far end of that and the response. Can I clarify? There would be an offer for criminal justice social work around that decision to inform the court. Is there liaison at that point perhaps? I appreciate that it's not your area of work at the moment, but do you understand there to be liaison between criminal justice social work and the police service at that point? There will be criminal justice social work reports and we submit a police report and then Crown and the courts and the sheriff would, I guess, assimilate all that, comprehend it and then make their decision. Can I ask further about compliance and enforcement? Is it envisaged, perhaps for your selfless angles, that this is or Mr Flynn did, what categories would be exempt from consideration from this? If someone had previously breached court undertakings, would that, by default, mean that they were unsuitable for this? I'm not entirely sure of the answer to that question, but I could write to the committee about that. Mr Flynn, do you have a view on that? I suspect that it's a matter for the decision of the individual judge. Having regard to what, Mr Flynn, my number of factors I want to take into account, the seriousness of any breach would be an obvious one, whether it was a repeated breach, but an obvious one. The advantage is, nevertheless, continuing with whatever regime that was trying to help this guy. It feels like a judge-led decision. We've covered quite a lot on electronic monitoring and the first 16 sections of the bill cover the subject, but the one thing that it doesn't cover is the use of electronic monitoring for people who are on bail, who are going to be on remand. Should it? Yes, that is my view. I was disappointed that it wasn't more about use for people on remand awaiting trial, and I think that there is scope and benefit for extending it to include people who would be otherwise in custody on remand. Perhaps, chief superintendent, it strikes me looking at the bill in the 16 sections there are, that the section on infringements that applies to offenders might have to be cast rather differently for people who are on bail. Is that a reasonable proposition that I put forward in saying that? You would have to expand a wee bit more. Well, I don't have an idea is really what it boils down to, because clearly the infringements bit, for example, if someone's on parole talks about recall, and clearly if someone's on bail you can't talk in terms of recall because they've not been convicted of any offence at this stage. Clearly the constructs around infringements would need to be different, and I just wondered if there was a view in the panel. It may be there isn't a view and it may be that others, in particular perhaps the Government Minister, of course, has to be asked that question rather than yourselves, and if that's the case we can move rapidly on. The element that's missing from me currently is about the power of arrest, and it's back to that sort of proactive response so that the police don't have a power of arrest should any individual breach in real time their curfews. If we come across an individual that has breached a curfew and we are aware they've breached a curfew, we cannot arrest that individual at that time at three o'clock in the morning, we have no power of arrest to do that. The report then has to be submitted to the respective sheriff who then issues a warrant so that individual is left to go on their way, so I think the power of arrest is something that should be considered. So this looks like you're talking about section 13, subsection 3. No offences committed by reason of breaching the disposal and then it refers back to subsection 1, which is basically describing it. So even in relation to offenders there is a gap in what's in front of us in the bill that would equally apply in the case of Bill. Yes. Yes, right. I don't think I have any more to say on that subject. Thank you. Just very briefly, a supplementary from Liam McArthur. Yeah, is the issue not more fundamental in that the name of the bill is about the management of offenders' bill and therefore it would not be competent to deal with electronic monitoring of those on bail as they are not deemed to be offenders. That was certainly the view that we had from some of our witnesses in an earlier evidence session. I see Mr Flynn nodding his head. I would just say that that sounds like a kind of technical legal... His technical legal issues tend to get in the way, I've found. Would that be the view of SCTS? I suppose that we would simply be making the point that, yes, this is about the terminology used and the word offender. I think that because some of the orders to which electronic monitoring can be added are actually civil in nature as well, such as the SOPO and the sexual harm prevention order, that that is something that the Government will have to look at. Also, if regulations are made by ministers to extend the availability of electronic monitoring to pretrial situations, then, yes, it would not be appropriate to refer to the individual as an offender. At that point, they are not an offender. It seems that it is an issue that will have to be considered. Would it be the view of the tribunal service that it wouldn't be competent in the context of a bill that is entitled the management of offenders' bill? I don't have a view on the competence or otherwise. I think that we are simply making the point that the wording perhaps needs to be looked at. I know that I saw the written submissions to the committee and others were saying that offender was an unhelpful word and just suggesting that there should be a different title. I don't know how easy or difficult it is to change the title of a bill, but if that is a consequence of including bail, then that would need to be done. Briefly, Liam Kerr. Briefly, can I just put a question to the SCTS? In your evidence before the committee, you talked about a 2005-06 pilot scheme involving electronic monitoring as a condition of bail. I think that the Scottish Government concluded that it was not helpful. Are you able just to share any more details on that? Why was it not helpful? What went wrong, if I can put it that way? In terms of the pilot scheme, which happened in 2005-06, I understand that it was carried out in about four courts throughout Scotland and that, on the back of the pilots, there was a kind of evaluation report. My very general understanding of that is that, whilst it seemed to work, there were limitations to it. Those limitations were referred to when the provisions that enabled a pilot to take place were repealed by the Criminal Justice and Licensing Scotland Act. Those points were made that it was not used very often and that it had a high cost attached to it and that it placed a huge burden on enforcement agencies. I think that our evidence was simply making the point that, as those types of pilots were run a decade ago and on the face of it looks like they were deemed not to have worked, we made the point that we were struggling to understand the rationale for now, for now doing it. We were simply making the point without any kind of judgment on it. No, it is useful. The committee will need to be cognisant of that going forward in some form. It is just to make the observation that the short title can be amended by an amendment section 50, which is the short title. The difficulty lies with the long title, I think, because the long title attempts to capture the general principles of the bill and the presidio officer is often quite reluctant to allow that to be tampered with significantly, but it has happened. Can we move on now to disclosure of convictions and the first question, I think, from Liam. Thank you, convener. Moving on to disclosure of convictions, just as a general principle, the policy memorandum makes clear that the aim of the bill is to balance the right of an offender not to have to disclose a previous criminal past against the protection of the public. Do any of the witnesses have any views on whether the bill has drafted or achieves that balance? Mr Strang. I am not sure that I see it as balancing to different needs, as if what was good for the person who was convicted and for the victim are necessarily opposed, because I think it is good for everybody if rehabilitation works. Someone who has been offended and been convicted, if they manage to, if you want to use that term I use about, be rehabilitated and then live a constructive life that does not include committing offences, then that is in the interests of potential future victims who are no longer victims, it is in the interests of the previous victim if this person does not re-offend. So I welcome provision in that I think it makes it helpful for people to change the course of their life to get a job, to be rehabilitated. So I do not see that it is, by somehow giving an advantage to the offender, you are diminishing the rights and benefits to the victim. So I think it is where it works and someone gets a job and makes a constructive future for the life, then that is of benefit to them, to potential victims, previous victims and to society as a whole. Thank you. Does anyone else have a comment on that? In which case, I will bring you back Mr Strang, if I may. We heard last week, or this committee heard last week, about the predictive value of convictions and almost a diminishing predictive value over time. So do you get a sense or are you comfortable that the disclosure periods proposed take sufficient account of the predictive value of convictions? The proposals only affect short sentences, so longer sentences are not affected. You are right that a previous conviction is not a good predictor of future behaviour, particularly after time has gone, I think, in submission to your committee that it talks about seven to ten years, that someone who has not been convicted of an offence for seven to ten years is no more likely. I mean, these are broad statistics rather than individual cases, but it is no more likely to offend than someone who has no previous conviction. So it is an inexact science. Of course, the problem with your question is that you are extrapolating from individual cases to the broad population. You can talk about percentage chance of reconviction for a population, but that does not mean for that individual that they are 50 per cent likely to re-offend or not, so you have to look at each individual case on its merits. To answer your question, I think that it is satisfactory that the changes that are proposed. Do you not then highlight one of the problems with using a blanket disclosure period to say that this is an appropriate disclosure period when, as you rightly pointed out, individuals behave in individual ways? Is a blanket disclosure period the right method then, or is there something else? I mean, I think you need to have consistent rules. I think the principle is helpful that people can put their past behind them and make a fresh start. You have to arbitrarily draw the line somewhere, I think, for less serious offences that are reflected in less serious sentences, that it makes sense that the disclosure period is less than for a long sentence for a serious crime. I would not criticise the principle of having a disclosure period. If we start from a place that says that the disclosure period is based on sentence alone, which I accept your point that the offence creates a disclosure period, should the disclosure period be based on more than just sentence then, explicitly more than just sentence, for example the severity of the offence? It becomes a different issue than disclosure of conviction. There are other ways in which people with particular offences are banned from working with vulnerable children and so on, so I think that you are asking a different question from what is proposed in the bill. I think that what is in the bill, in my view, is a step in the right direction. Do you feel that the bill does enough in terms of changing attitudes to the employment people's convictions and do you believe that something more might be done separately from the bill in terms of changing recruitment practices by companies and employers? I would like you to legislate to remove the stigma that people have against people who have been in prison. You are absolutely right that, of course, people's attitudes are much more important. It is interesting that people leaving prison who are successful in getting jobs are often employed by either a previous employer who knows them and knows that they are a decent worker. I have offended and gone to prison and they welcomed them back or else they are employed by a brother, uncle or a cousin. It is an unintended but very real barrier to rehabilitation, the fact that someone has a criminal conviction and a prison sentence behind them, irrespective of disclosure issues. I think that it is perfectly understandable that if you are an employer and you have two people that are suitable, it is a natural instinct to say that I will take the one who has not been in prison because they are likely to be a better worker and more honest. Your question is absolutely right that there are lots of judgmental attitudes, there is stigma associated. That is why it is so difficult for people to get out of a life of crime. A particular short sentence is going round and round the system because it is really hard to get a job unless, as I say, you have someone who can give you that leg up into employment. That is the experience of a lot of people in prison. Would you say that people like Sir John Timson and Gregson and Virgin, for example, trains, have actually managed to cross that barrier and employing and taking people on? Very successfully, in fact. That is an example that we can quote. Yes, they have. I think that it is more down south than in Scotland particularly. Those are good examples where they have set a moral lead and said that we will give people who have served a prison sentence a second chance. I do not have any views on that latter point. The crux of it, from my perspective, is the rules of the disclosure need to be clear. Any incidents that have been involved in the years in which people have failed to disclose convictions when they should have been a lot of the time is because of a misunderstanding of what the rules for disclosure are. They need to be crystal clear for everybody to abide by them. I agree with the principle that, if somebody is convicted of a more serious offence, there should be a longer time before those convictions become unspent and go for a less serious offence. I agree with the principles behind that. Are written evidence only covered part 1 of the bill? We do not have any comments to make on part 2. I just wanted to come back on what the chief superintendent has said. Looking at the bill, particularly at section 5, but not only at section 5, the same phrase is used in two different places. When a requirement with licence conditions is the heading, it says that, at subsection 5, the Scottish ministers must explain to the offender the purpose mentioned in other words what the conditions are and warn the offender the consequence of failing to fulfil the obligations. I wonder whether part of the problem is that people in a confusing situation that is novel to them, absorb and understand what they are being told and whether there should also be an obligation to check that what is being said is understood, because it strikes me that quite a lot of people will find it very challenging to understand really what it means for them. Is that a fair observation on your experience of dealing with offenders who are in breach? Is there genuine scope for imagining there is confusion that we might do a little bit more about at the point conditions of food influence? I think so. My experience of this is many years ago as part of disclosure Scotland. What I found was that people that failed to disclose the right information at times, if we picked up on them, it was through a lack of understanding. Some may have done it intentionally, but it was a confusion and lack of understanding. Some of those individuals struggled to understand some of the requirements that are placed upon them, and any help that we could provide them to do so would be advantageous. I think that we are staying with you for the next question. Indeed, we are. Ben, sorry, a good one. Thank you, convener. Just a small question that has not been fully covered in the answers on this point. Mr McEwan, I know that in your submission you said that many people who committed crimes in their youth never re-offend. That is an important point. One of the aspects that the bill is currently drafted seeks to address. Do you feel that it addresses people committing crimes in their youth being able to move on effectively as the drafting is currently, or is there anything that could enhance that in your view? I think that people can offend at any time during their lifespan, but they might only offend once and never re-offend again. For me, the principle of the bill is that, rather than remanding those individuals, it is to look at other ways to manage them so that they perhaps do not lose their job, they perhaps do still get to see their kids and perhaps do not lose their house. It is to try and balance the needs of the victim and the risk to the victim while giving some offenders that are committing the isolated offence or the lower level offence a second chance prior to remanding them. Friday is the day when the general data protection regulations come into force. However, my question relates to the status quo, as well as what changes might be made, in that disclosure sculpin might not reveal that there is a spent conviction, but Peruzio of the Newspaper's archives would quite readily, in many cases, do so. Have you any views on whether the GDPR creates a general right to be forgotten in relation to published information, or is that something that is beyond the scope of the panel's understanding? Beyond my scope, I would not attempt to answer that one. Right. No, I do not have views on that subject. I can do suspected that. That is a very final brief question from me. It is about the higher level disclosure checks. The bill does not make any changes to those. I just wondered what your thoughts were on that. Are you in agreement with that? Yes, I think so. Those are likely to be people who are at a higher risk, and therefore I think that that is appropriate. Thank you very much. That brings us to the end of this session. That was very useful. Thank you very much indeed. We will have a brief comfort break now to allow the witnesses to leave and for our second panel to take their places. The meeting, please, and welcome our second panel, who is John Watt, chair and Colin Spivey, chief executive of the Parole Board for Scotland. Can I thank the Parole Board for your written evidence? It was very useful. So can we move straight to questions, please? Thank you very much. I am really glad to have you in front of us today, because I think that we have had some questions about the Parole Board, so it is good to have some representatives here to answer some of those. It was really just to start off by getting, if you could tell us a bit about how the Parole Board operates at present and what the changes that are proposed in the bill will mean. How the Parole Board operates at the moment? I know, I just didn't see one to start off. Essentially. Or even just in the context of the changes that are proposed in terms of the bill? The board at the minute operates in terms of the 1993 act, which lacks detail about what the board ought to do, how it should do it, in relation to some of the tests, what they should be and nothing in relation to governance. Now, we have had to pretty much invent a governance system, which is not ideal, and we rely on a lot of case law, mostly English, in relation to tests to be applied for some releases and just how those tests, what those tests actually mean. So a lot of clarity is absent from the current legislation. What we hope the new legislation will give us is reinforcement of independence. The Warboys case went into that in some detail and other cases have also. The boards are court and it needs that independence and it needs to be reinforced in my view. I think that the public and prisoners need to understand what tests are to be applied in relation to each type of release so that they understand what's happening. The public ought to, more widely than the media certainly should, and in relation to some coverage, it's apparent that there are wide misunderstandings. The membership prescriptions are at present unhelpful because they create all sorts of difficulties for us. Now, there should be some questions about that, reading the previous transcripts, so I'll maybe leave that to one side for the moment. But what the new provisions will give us is more certainty, better understanding of the reflection of what we do, because much of the changes reflect what we actually do and of key importance for us is that it will reinforce our position as a court. That's widely misunderstood. The authorities say it clearly enough, but the public out there don't read case reports. We are a court and need to be treated as a court, and I think that those changes will bring us a long way towards that. I agree with what you have said about public understanding, because sometimes I think that that's the benefit of doing sessions like this and doing the scrutiny that we do is that we actually get to hear a bit more about the general workings of the parole board itself and again what the proposed changes will mean. You talked a bit about the governance and how you've really just had to arrange that yourself and that was a bit that it highlighted in your evidence too, where you suggested that the bill should set out arrangements for governance through a management board, which would be distinct to the parole board, so I'd just be interested to hear. Is that currently the way it operates at present and you would just like to see that outlined? Yes, the way it works at the moment is that the name parole board has caused all sorts of problems in the past. The board's been treated like a management board, not deliberately, but just through attention or lack of understanding. The word board in the title creates problems. We have what we call a management group. I didn't want to call it a board because then would have a board of a board and it becomes unduly complicated. We don't have non-exec members yet. The way that this works is that in the past all the membership, when there were 30 odd at the time, constituted the management board, which is clearly unworkable. We consulted with our legal advisers and came up with a model that set up a parole board management group, which is essentially a management board and made it clear in a new memorandum of understanding with Scottish ministers that this is what we would do and that members at large would have no management functions, they would have purely judicial functions. That is essentially how we did it. We took what we thought was best practice and set up the best that we could. I anticipate that, in future, it would simply be formalised as a management group with our requirement for some non-execs from outside the board. You would like to see that laid out in the... I would like to see it set out in statute along with appropriate wording about the board's independence, so that we have the independence and we have a way of governing that independent status. You can't really have one without the other, I don't think. The evidence that we received from the Sheriff's Association had noted a concern that the bill doesn't propose to reconstitute the parole board for Scotland as a statutory tribunal within the ambit of the Scottish courts and tribunal service. I just wonder what your views on that were and if that was something that you would have preferred to have seen. I don't necessarily prefer to see it, and I think that it was the Senator rather than the Sheriff's who said that. Was it not the response from the Senators of the College of Justice? Well, this is from the Sheriff's Association. Whoever it was, this was discussed, I suppose, 2013-14, when the tribunals were being restructured. At that time, I rather thought that we would be absorbed into the Scottish courts tribunal service, but it was made very clear very early on that that wasn't going to happen. It wasn't going to happen, I think, primarily because the SCTS didn't have the capacity to take on any more tribunals and that the parole board was so far down the list that nothing would happen in the foreseeable future. My understanding at that time was that we're also concerned about compatibility, and there were some in SCTS who were concerned that the judicial body that decided on release from prison would be in the same organisation as judicial bodies who put those prisoners in there in the first place. I wasn't quite sure what the reason was, but on the basis that it was so far into the distance, it was unlikely to be my problem—I just put it to one side. It has changed since then. We thought, maybe, towards the end of last year, that door might be opening slightly. I think that the Scottish Government had some discussions with SCTS and the Lord President's office, but it was made clear that that wasn't going to happen. I don't know what the position is just now. As far as we are concerned, it's not on the horizon, so it's not a realistic prospect. To that extent, I've put it to one side. In principle, I can't really see a problem. In practice, though, I think that we'd have to understand a lot more about the circumstances in which we absorbed, how the absorption would take place, what would it mean for the board, and I really haven't applied my mind to that. The answer is, in principle, that I see some merit in that proposal, but it doesn't seem to be a realistic prospect at the moment. I have one final question. It was just in terms of some of the evidence that we'd heard in previous evidence sessions. It was to get your view on imposing a six-month time limit on a prisoner making representations about recall from the lease on a home detention curfew. I think that we'd heard in previous evidence concern about that six-month limit being in place, but I suppose that it was just to get an idea from yourself. Do you foresee that being an issue if that is imposed? Is that something that prisoners on equal tend to do quite a lot anyway, or does it take quite a long time for them to get around to do? It's not really an issue. If I may say from reading some of the previous transcripts, there's a misunderstanding about home detention curfew. Home detention curfew can only happen after the parole board has made a decision that a prisoner can be released on parole licence. A determinate prisoner can be released on parole licence. That decision may take place, say, eight or ten weeks before the actual parole qualifying date. In the period between the decision and the parole qualifying date, SPS can release a prisoner at home detention curfew. That will end on the parole qualifying date, because you'll be out on parole by that time or she. It's only in that window that HDC operates. You could almost close the window at the parole qualifying date, because it isn't relevant any more. The six-month limit was a bit of a compromise, I think. I might have argued for a shorter period, but six months is kind of academic by that time. The reason for all of this originally, as I understand it, was that SPS rules prevented anybody who'd been recalled from an HDC getting HDC in the future, any time in the future. So, an HDC recalled in this sentence would count against a prisoner in a sentence imposed three, four, five, six years down the line. So they'd be refused HDC then, and the only way they can deal with that was to seek to appeal the original decision to recall them on HDC. And we've got some figures that show that those appeals were taken up to nine years after the event, and that was only because they hadn't appealed at the time not understanding the consequences then. That rule's gone now, as I understand it. So it's no longer really significant. Six months, in my view, creates no problem given the current position. It may even be too generous. Okay. Thank you very much for clarifying that. Okay. Thank you. Thank you. Yeah. We've also heard that evidence that there should be a single test for decisions on the release of prisoners. What's your view on that? Our view has varied over time. We found it difficult to formulate a single test. There should be tests. Can I say first of all, departing from the question slightly, every release ought to have a test to be applied to it, a statutory test, and not every release does have a statutory test. We've thought about this and taken some legal advice, and we consider that there is a single test that may be applied, and that is the test that presently applies for life cases. The parole board will not give a direction for release unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That sets out in a single test what we have to look at, protection of the public against the interests of the prisoner, not to be confined. We think that a single test would be best, would be useful. That failing, and that would be the single test that we would propose, is that failing that there should be a test for each release? I'd like to follow up on two points that you've raised. First of all, can I just ask about the point of independence? I think that it's an interesting point. Is that to your mind important because, as a matter of principle, is it one of status or is it one of safeguarding against some future administration or some combination? Can you explain a little bit more? It's a matter of principle. If we accept that the board is a court, then it has to be able to demonstrate its independence. It's not so much that it's independent. I don't think that anybody thinks that the board is not independent. It's the appearance of independence. The public out there have to have confidence that the board is independent from what it sees and what it knows. If it doesn't see or read or know what provisions are in place for that independence, there is at least a risk that we don't have the appearance of independence. I think that some responses mentioned that appearance of independence if I remember correctly. It's certainly reinforced in War Boys. It's really only stating for posterity the position as it is at the minute and as it ought to be recorded for the future. It's a matter of principle and protection. If that answers your question. It does. Thank you very much. That's useful. I would also like to ask you about the test and go into that in a little bit more detail. I think that both in your written submission and you've just raised the case of War Boys. To my mind, the reason that was so controversial, the reason there was an outcry is because fundamentally I think the public didn't understand why or how that decision was made and I think that a test would help. Now you've laid out one parameter of tests. Can I ask you if you think that is sufficient just because I think there are other parameters that I think the public would probably expect to see? So yes, public safety is one, but there's also I think the risk of re-offending and could I also suggest also that whether or not the individual has actually reformed and is remorseful for the crime? Are those elements that could be added to such a test? No, you wouldn't add that to a test because it would then become completely unmanagable, I think. These are factors taken into account by the board in making a decision, of course, and that test, which I read out, has been examined by courts over the years and has been expanded and been explained, so the sort of things that the board would take into account would be previous offending, would be conduct in prison, would be recommendations from social workers, would be the extent to which the offender is addressed as offending behaviour through programmes. These are all issues that would be taken into account by the board and I see no reason why that ought not to be published somewhere as part of the board's bread and butter work, but not necessarily in the test. Those would be how the test would be applied. For example, no longer necessary protection of the public and you may ask from what? It's the protection of the public from the risk of harm and then you may say, well, how do you define risk and how do you define harm? The courts have done this over the years, so risk is loosely defined as contingent possibility. Protection is protection from harm. The courts have been notoriously slow to define what that means, but it's generally accepted that it has to be a risk of harm, physical harm and sexual offending. If the case merited it, you could move into things like psychological harm. It's a philosophical discussion that you could have pretty much all day, but those are factors to be taken into account in applying the test. If the board didn't take sufficient factors into account, for example in warboys, where warboys, the dossier omitted certain key documents and the board failed to take account of the importance of outstanding charges, then the court can intervene and say that you must take that decision again because you were wrong when you declined to take account of outstanding charges. The board in Scotland does that as part of our guidance that nothing is unavailable as evidence. Everything bearing on risk can be considered. The only question is what weight you apply to it. The answer to the question is that it should appear somewhere that the public should know about it. Possibly it could go on the board's website, for example within the course of devising all our guidance. That will be published on the website in due course, and that kind of thing will be in there. That's a very interesting suggestion. Would you like to see that as a requirement perhaps in the bill that the board publishes? Is it the factors and how it applies them, even if it is in an illustrative way rather than in a prescriptive manner? We are going to do it, so I don't really mind one way or the other. I think that it would be better if it was perhaps in the rules rather than in primary legislation. You are saying that the factors might be subject to secondary legislation? The factors would not be because you cannot legislate what factors the board will take into account. Every case is different. There is a whole range of factors. All I can say is that there is no factor that would be omitted in advance. We cannot say in advance what we will or will not consider. It would be difficult to express it. My preference would be to leave it to the board to publish. If Scottish Government or Parliament thought that there was a pressing need for more detail to be in the public domain, it might have legislated at that point. There are a whole dose of issues around transparency and allowing people in to see proceedings in process. That is probably a better way of allowing the public to understand what it is that we do and how we do it. Indeed, in our previous evidence session, Douglas Thomson, who I believe is a previous member of, made the suggestion that minutes, albeit in a redacted form, could be and perhaps should be published as a means of achieving that transparency. Do you think that that is a suggestion? We were thinking about this, along with how we can involve victims more prior to war boys. I got to a point where we are now revising our decision minutes so that they can be more easily redacted with a view to publishing them on the website. Douglas Thomson said two things in a quick succession. One was public hearings and then redacted minutes, but you cannot have both. Redacted minutes absolutely have no problem with that at all. I think that it would be a good thing and we are part way down that line already. You are making the suggestion that there should be some sort of test on the face of the bill, albeit perhaps provided for in detail by secretary legislation. Do you think that there is sufficient evidence in terms of the consultation that the Scottish Government undertook in order to formulate such a test? Obviously, it would require demonstration that there is public support for the test. There has to be a formulation of a test. The courts have hesitated to define the test too closely. I would counsel against defining the test too closely. Either in primary or secondary legislation. I think that what I was suggesting was that it should be left to the board to publish its guidance and then the courts somewhere down the line would say, in that particular case, your guidance was wrong when it was not applied properly or you omitted some consideration for the test. If the courts have been slow to try and define the test more closely and they have been, it needs to be open to deal with a wide range of circumstances that the board deals with. I would hesitate very much at defining it more closely and leaving it to the courts to evolve the test, which they have done already. We have an evolution of the test, mostly in England and Wales, but applies in Scotland also. It should be a simple test left to the courts to interpret it. The consultation took place on parole reform last year, although that did not go into the detail of what the test may be. There was an overwhelming response in favour of there being clear tests and possibly a single test as well. There is an appetite out there for this to be done. We have tested which we apply at the moment, derived from cases north and south of the border. For a determinate prisoner, our working test is whether that person's risk can be safely managed in the community. If they were separate tests, that could be adapted quite simply, because we have been doing it for decades, I suppose, having developed it over those decades, and the courts have not until now been happy enough with it that nobody has quibbled it. I do not think that it is good to have a court-derived test like that where it is possible to set it out clearly, even though it is based on that kind of development of the law in a piece of legislation. That is very helpful. Thank you very much. I was just going to pick up because Daniel Brott brought up the subject of independence and developed that a little if I may. In the written evidence that you have provided to the committee at section 14, you draw our attention to section 3 of the Tribunals Scotland Act 2014, which I must say that I am grateful for you bringing to my attention because it places a duty on me and the rest of us. The following persons must uphold the independence and members of the Scottish Tribunals and D is members of the Scottish Parliament. In other words, we actually have a legal duty. I do not know if I have to uphold it by some positive action every single day or whether it really means that I must avoid doing something that would be in conflict with upholding it. I am not certain about that. We have talked about the courts evolving the test in the discussion that we have just been having. If we were, as you are recommending to us, to adopt for the parole board section 3 of tribunals, etc., one of the people on there is the Lord Advocate who is responsible for the court system. So, if the courts are then evolving the test that you apply, is that not in turn? Am I just being too devious here? You are being too devious and, if I may, the Lord Advocate is not responsible for the court system. That is true, of course. He is responsible for the public prosecution. The Lord President has to be free to enter fear, has he not? I think that it is perhaps too devious. What it really means is that no one should take any steps to undermine the independence or appearance of independence. That would be where I would go. Is it not quite unusual to legislate a specific, anybody else who has the implication immediately becomes, when you create a list, that anyone who is not in the list can interfere with your independence to your heart's content? For example, the police service is not on the list? Well, the police can't interfere because they have no authority to interfere. It really is designed to deal, I think, with those who might be in a position to take steps in their official capacities to undermine the appearance of independence of the parole board. You could well see how politicians would be in that position, for example, especially in Parliament. Yes, although it goes on in the second subsection of section 3, to the First Minister a lot, I forget, Scottish ministers must not seek to influence particular decisions, but I, as a humble backbencher, can do so to my heart's content. I'm not quite sure why the distinction is made. As the chair of the board, I could have regard to what you say, but perhaps place little weight on it and let's face it. If you've got something to say and it bears on risk, you'd be happy to take into account the judicial capacity and you'd be entitled to argue that the board is not working and needs wholesale restructuring and that it doesn't have the appearance of independence as a backbencher. Of course you're free to say that. I think that I've exhausted that one. Okay, thank you. Liam McArthur, supplementary. Following that up a bit, I mean, obviously you've said in your written submission that you don't see the bill necessarily going far enough in underscoring that perception of independence rather than the practice of independence. Where in the bill could we, as a committee, perhaps go further in delivering that outcome? That's more about draftsmanship and principle, isn't it? I think that we need that to the parliamentary draftsmanship. I'm sure that we've got a very clever people that help with the craftsmanship stuff here. I might have to come back to you on that one, but that's not something I thought about. Why independence and governance? Presently, clause 44 talks about the continued independence of action, it's called, not entirely sure what that means. Continued independence would have been fine. I imagine what it says here under clause 44. One, the parole board is to continue to act as an independent tribunal when exercising decision making functions. That wouldn't be in there. I don't know what I'd have to come back to you on that, but with some mature thought on it. Is that all right? Very helpful. Can you be in on that? Okay, thank you. Liam Kerr. So I'm interested in understanding the parole board a little better, because I don't. So I'm just going to fire some questions, if you don't mind, just on procedure and things like that. My understanding from reading the evidence is that the parole board, or it's a tribunal, in effect, isn't it? It's a, yes, a tribunal. It's a non-departmental tribunal body, isn't it? Yeah, tribunal and DPB. So there are two to three people who will make a decision. So those two to three are selected from 30 odd. There are 40 odd now. There are now 40. So how are those two to three selected? How many times does the parole board sit? And how many times does any given individual sit in any given year? Now, the number of days members sit varies on the availability they can give, subject to the rule that it has to be 20 days or more. Practically, what happens is that there's a scheduler who works for Colin here, and roughly three months in advance, she will ask members for their availability, and they will give their availability for, say, July. I've just done that. Armed with that availability, and the number of cases it has to be dealt with, she will then allocate cases to groups of three, and that's how it works, basically. I understand. If there are not enough members, she will ask for more. If there are not enough cases, then some members won't get selected to work in that month. But members give their availability, and they're very good at that, I have to say. And they do give a good spread of availability. That's how it works. I am responsible overall for that. The groupings of members tend to be at random. We would never keep any member from another member. I haven't up till now. Maybe I should never say never, but it's my responsibility. Ultimately, I devolve that to the chief executive if he, in turn, devolves it to the scheduler and it then becomes an administrative process. There are tribunals sitting roughly two, three a day, some by a live-linked TV, some in prisons, each of them involving three members chaired by a legal member. On two days of the week, Tuesdays and Thursdays, there are groups of three members chaired by a legal member who deal with paper cases. There are about two and a half thousand cases a year, and perhaps 800 or so are dealt with at tribunals face to face. The rest are dealt with on paper by groups of individuals, groups of members who sit on Tuesdays and Thursdays when the work is split equally between them. On Mondays, Wednesdays and Fridays, it gets kind of complicated. We have smaller groups of two who sit to consider cases of urgency. So, for example, where a report has been received that an offender in the community has breached a licence condition or can no longer be safely manageable, the supervising officer will submit a report, and that will go to either a two-some on a Monday, Wednesday or Friday, or a three-some on a Tuesday or Thursday, every day of the week, so that we can deal with them quickly. Those cases are given a priority because they carry with them an increased level of risk to the public. That is the kind of setup of how we disperse members, and the cases are just allocated. On those Tuesdays and Thursdays, you might be lucky to have, I do not know, 12 or 15 cases and you might have 20 or 25. The work has to be done, and members just soak it up on a swings and roundabouts basis. And what training is given to the lay members? I appreciate that there is one very significantly trained legal member, but the lay members, if I am allowed to call them that, so what training is given to the 22 general members? General members get a two-week introductory training course and we will just finish that. It covers risk assessment in detail, of course. It covers legal issues, it covers diversity, it covers practical issues like how to use an IT and things like that. It involves in-depth discussion on tribunals and casework meetings, the paper meetings are called casework meetings. We have created, I suppose, six or eight dummy cases, and we go through these in significant detail. While we go through them, we will discuss all the key issues. There is on-going training also, so that is two weeks of introductory training. They shadow other members while tribunals and casework meetings are live, so that they can see how that works. And then we have a training group, which gathers views from members and from me as to what training might be required in the course of the year. We have got three set-piece training days throughout the year on key developments. The next one is likely to be the fallout from War Boys, I would have thought. So do you have any view on whether the proposals will impact on the member's ability to dispose of cases? No concerns. A couple of final questions, if I may. What is the re-offending rate for a paroled prisoner? I am not sure that we have figures for that. We had manually gathered figures, and we moved to an electronic system. As you might guess, we lost some number crunching ability. It used to be something in the order of, and this is only a few years ago, 6 per cent of prisoners—I gave this to a warning provisor—something like 6 per cent of offenders who were released on parole licence—that is by decision of the board—were ultimately recalled, because they were no longer safely manageable in the community, and predictably something like 16 per cent of those released on non-parol licence, which is by operation of law, were recalled. Is it difficult? One of the difficulties with this is that, once somebody has gone past the end of their parole period, it is not something that we would have necessarily information on in terms of their re-offending. That information will be held elsewhere in the system. I am just understood the question. I thought that you were talking about re-offending while on licence. That was the question that I was going to come on to. My question was re-offending while on licence, but re-offending would be a much broader issue. The Scottish Government might have some statistical information, but we tend not to. If only because it is kind of unhelpful. If you take a decision based on the facts and circumstances of an individual case, that is fine. That is what we should be doing. However, looking at re-offending figures, so much can change between that decision and the re-offending, but it is hard to link them, too. The answer to your question is that we do not have the statistics. I do not know who would. I will find out. I am not sure that they would be helpful to the board anyway, maybe to you. I just sought confirmation that you said that 6 per cent of people on parole are recalled. That was my general recollection. Whatever the number is, the question, which I wanted to get confirmation, that it is perfectly possible to be recalled without an offence, I mean being committed. Do you want me to expand on that? I recall sitting in Sochden with six murderers in a prison and one of them was very aggrieved that they had been recalled from their life for all because they had been present while another murder was committed. I understood that, but they did not. You are absolutely correct. The basis for the decision is always risk, the risk if I am not the public. We have heard some concern about the fact that the requirement for a psychiatrist on the board has been removed. Can I have your views on that, please? We do not see a benefit necessarily in having a psychiatrist on the board. I think that there was some supplementary written information given underlining some of the reasons for that. We had an recruitment round, including recruitment of psychiatrists 2016, and we had two applicants. There are not many psychiatrists out there who seem to be interested. We appointed one. That one psychiatrist gives availability, and the scheduler tries to match that psychiatrist with cases that take place in secure hospitals. However, it is not always the case that the psychiatrist is available at the time that the case needs to be dealt with. I think that the board is that board members are perfectly capable of examining medical witnesses, cross-examining them if need be, and extracting their relevant information, requesting more if necessary. It is extracting evidence that the presence of a psychiatrist is not always necessarily helpful. If I can give you a parallel, in criminal procedure, of when an accused person defends a case on the basis that he was insane at the time of the crime, there is no suggestion, for example, that the jury cannot decide the case and should have a psychiatrist on it, or that the judge ought to be a psychiatrist, or that a psychiatrist ought to be asking the questions. It is all lay people who ask the questions. I would be very disappointed if a tribunal of the board could not obtain the right kind of information by a doctor, and if they could not, they would be looking for somebody else. It is the evidence, in how you extract the evidence, that is important rather than the identity of the questions that it seems to me. Sometimes it is better if non-medical people ask the questions. It is a bit like getting an IT expert to do your guidance material for a piece of electronic guidance. It should be a complete idiot that does that. It seems to me that there is merit in exploring the evidence of a medical witness through lawyers and those who have decades of experience in the criminal justice system. It is also the case that we have mental health professionals on the board and senior mental health professionals on the board. There are six of them that allow a better spread of availability for cases in secure hospitals. We also have cases that involve complex psychological reports, but there has never been a suggestion that there should be a mandatory psychologist on the board. The reason for that is that members are capable of exploring that evidence effectively. Thank you, that is helpful. Unless anyone has any other questions, that brings us to the end of the session. Is there anything that you would like to say just a final statement on your views on the bill and what direction it is going in? I do not think so except to say that we see it very important that this legislation passes to provide us with a more structured framework within which to operate without it. We will continue to swim upstream at times trying to pick the best route without any kind of framework within which to operate. It seems to me that, while the board is probably capable of doing it, we will continue to operate in a kind of isolation, and that context will not be available to the public and to practitioners who have to interact with the board. I think that War Boys, as you may have pointed out, convener, is a classic example of misunderstanding feeling some very destructive media comment. Much of it is ill-informed. That concludes today's meeting. Our next meeting will be on Tuesday 5 June, when we will continue our evidence-taking on the management of offenders' bill. We will also have an informal visit to Glasgow next week on 29 May.