 Maenai amdogart. Welcome to the ninth meeting of the criminal justice committee. We've received apologies this morning for Pauline McNeill souaw and Collette Stevenson. Our first item of business is an evidence session on the justice provisions in the coronavirus recovery and reform bill. I refer members to papers 1 and 2. I'm pleased to welcome to today's meeting our first panel Mr Kenny Donnelly, Procurator Fiscal Policy and Engagement of the Crown Office and Procurator Fiscal Service, and Mr David Fraser, Executive Director of Court Operations at the Scottish Courts and Tribunals Service. Nice to see you both. We appreciate the time that you are taking to join us this morning. We will now move directly to questions that we have to about an hour and 15 minutes or so. I wonder if I can maybe just start things off by asking you a general question about the provisions of the bill. In your written submissions that have both been sent in to the committee, they have been very helpful in our understanding of the perspectives of both your respective organisations in terms of the provisions of the bill but also in terms of next steps and opportunities to make some of the Covid provisions permanent. It might just be helpful before we go into questions from members to ask maybe for a general update on how the courts and casework in the case of Crown Office is beginning to adapt now that restrictions are easing and that we are hopefully beginning to return to our new normal. I will maybe come to you first, David, and then bring in Kenny after that. Okay, thank you very much, good morning. We are still very much on track, I would say, from when I last was before the committee that we have a high degree of confidence that by 2026 we should be out of the woods in terms of backlogs. The reduction in social distancing has certainly helped within the court environment. We still have one meter of social distancing. We were looking to decommission some of our remote jury sites, but that will very much depend on when we actually move to zero physical distancing and get jurors back into the courts without face masks. That does not include all of them because we still need some in terms of the recovery programme in order to deal with the backlogs. I think that we are on track, we are not out of the woods yet and I think that some of the provisions that are within the legislation that I would see is that we absolutely need to continue. Thanks very much, and I will bring in Kenny now. It is a similar picture. Obviously, the pandemic has set the criminal justice system back. As it has most things in life, the caseload has backed up everything in every stage in the process has slowed down. At one stage it has stopped altogether and then as it has picked back up it has slowed down. The result of that is that at each stage in the process there is a build-up of work that needs to come through the system. We are having to look at each of the stages in the process from the initial receipt of cases and get them marred when they first appear in court, preparing them for service of complaint and indictment and thereafter once they are in the court get them through the court. The problem for us in doing that and trying to alleviate the pressure and to increase the throughput of work is that the volume of business has increased so markedly and all of that business still requires to be worked on, still requires to be managed, still requires work to be done, updating victims, making sure that the cases are in a fit state, et cetera. That the sheer volume of work is actually delaying our ability to address the backlogs and so it's a long project to clear not just at the court end but to clear the entire pipe of the backlog of work that's built up. Thanks very much and just picking upon the point that you made David in relation to your still obviously complying with one meter physical distancing, have you got an idea of when you may be able to remove that that seems to be quite a sort of stepping stone back towards being able to function at more or less normal capacity? We are and have been throughout the pandemic very much guided by the Scottish Government in terms of the guidance so I mean we review consistently in terms of all the new guidance that comes out so when we get to the position I think where the removal of face masks I think will be key and there is zero social distancing that becomes the trigger point for us in terms of actually reopening getting people back into the buildings, jurors and almost what the new norm is going to look like post pandemic. I don't know if you want to come in on that at all Kenny. It would certainly help obviously I think we mentioned in our written submission that the remote jury centres model was innovative it was it was a fantastic opportunity for us to at least make some progress with disposal of the solemn case work but it does slow things down a little so there's a day at the start of each of those trials where nothing is done other than the remote impanelment of the jury so the trial doesn't really start until everyone turns up on day two so whilst we've made some good progress in getting through some of the business through that model removing that requirement of that day would allow us to hopefully increase the output of cases at the at the core end of the business. Thanks very much that's helpful I mean these practical issues are probably sometimes points that we miss can miss a little bit in terms of the kind of input and evidence that we're taking so it's helpful to understand that. I wonder if I can ask a follow-up question and again probably David it's one for you and in the letter that we received just this week from yourselves which was very helpful in terms of the virtual summary cause trials and I know that in the letter you expressed us of intention or a desire going forward to establish domestic abuse courts in hopefully each sheriffdom in Scotland but I think in the previous submission that you'd sent in you argue that the use of virtual hearings is perhaps one that should be dealt with by individual courts so for example I would imagine things like consideration of rural issues city-based courts and so on would feed into that so I'm just really wondering if you can maybe expand a little bit on some of the decision making or the rationale behind how each sheriffdom might put a virtual court arrangements in place? Certainly I mean the advantage I see and the project group led by Sheriff Principal filed issued the report in January which I'm sure you'll be aware of. The advantage I see in moving forward in GH&I is you create the single court you have an element of specialism that starts to be developed it is under the leadership of the sheriff principal and as that model is established and there is still a little bit of work in terms of actually how that will practically be developed and implemented but once established in GH&I then it would be up to the other sheriff principals then to look at what their individual needs within their sheriffdom are based on the model it's developed so there may be a little bit of variances between but the key essence and the principles of what we're trying to do would remain and as much as the vulnerable witnesses would be sported at a site external to the court environment which I think is important given the other areas of work where it's actually proven that it can be quite traumatic to enter a court environment. I agree with what David said there I think it's another option which allows us to better manage the work the specialism point is a good one separately it's another opportunity for victims to give their evidence in these cases without necessarily being in the same building as their accuser and again I think that has to be welcomed where that's what the victim wants and so it's another opportunity for us to do things in a different way which may allow some business to proceed in a way that's safer for the victim and actually expedites the disposal of the case so I'm very much in favour of that. Yeah indeed thanks for that. Just a final quick question before I hand over to Russell just to clarify a point back in January 2022 so just a couple of months ago we received an update that the backlog would probably last till about 2025 I think Eric McQueen updated on that but I think I know recently and perhaps in some of the evidence that's been submitted there's been referenced at being 2026 I just wondered if you can clarify that. Yes I'm painfully aware of that I think when Mr McQueen was here that was our projections based at that time when I last appeared before you I gave the most recent and up-to-date information I had and as I say I mean it is 2026 that I anticipate potentially and it does depend in terms of what comes our way and I think you know it is quite safe to say that that's a realistic estimate in terms. Okay but thanks very much for that that's helpful clarification. Okay I'm just going to hand straight on to Russell Finlay we've got a number of members are interested just in sticking with the issue around court business by electronic means so I'll bring in Russell and then I'll bring in Rona Mackay after that. Thank you very much I was going to ask specifically about the issue of fiscal fines the legislation allowed these to be go from 300 pound limit to 500 pound limit could you maybe just tell me what kind of offence offences would have therefore been brought into that upper limit? So I'm sorry I don't have the detail of the specific offence types but what we what we sought to do in analyzing the increase from 300 to 500 pounds was looking at sentencing in the justice of the peace court from that in that range and looked at the offence types I can get some information for you on the specific offences it would mean me to go through the changes in guidance that's come through in a number of different fronts so I can give you an idea of that but the majority of the business in the justice of peace court is road traffic and so we couldn't do it for that because it's a reserved matter within the scheme which requires to be operated there because of the endorseation and disqualification aspects of it so it will be the other routine matters that go to the justice of the peace court disorder violence low end violence vandalism and such like but I don't have the detail of that I don't want to speculate I can get details of the crime times for you if that would help sure thank you now the deputy first minister previously told parliament that rejection of fiscal fine was treated as a request by the alleged offender to be prosecuted for the offence yet in july last year data was released via foi showing that 30% of those who rejected fiscal fines faced no further action is that the case this has become a bit of a safe bet for criminals or offenders and a bit of a slap in the face for for victims I'm not particularly aware of the foi request I would need to to make some query about that and that sounds too high the my understanding is that when fiscal fines are rejected the the normal course would be for them to be prosecuted my understanding is it's very very small numbers that are discontinued but I'd like to take that away and look at it and I'll certainly communicate to the committee what the up-to-date figures are this data was over two or three years and it was showed quite a steady 30% level whereby stuff was not then prosecuted yeah I'd appreciate that I need to have a look at it it's not something that I anticipated this morning coming up so I've not looked into that but I will certainly look at it and come back to you now also in respect to fiscal fines these cases would meant in many cases of this nature would ordinarily been an injustice of peace court would have been there for public do the public of any means of seeing what's happening with these particular cases um not really that these are alternatives to prosecution they're a device which are used to to make the court more efficient it's allowing those who don't dispute their their cases to accept their responsibility at the earliest possible stage and have the matter disposed of but it's done in a private correspondence basis it's not done in a public forum so as far as I'm aware there's no public information that could provide to individuals that you know that that's what we've done we would ordinarily advise the public that the case has been dealt with by way of an alternative to prosecution rather than the specific detail given some of these cases can involve violence and involve fines of up to 500 pounds it's a significant level of offending is there not a slight risk about open justice not being adhered to well it's a tool which the parliament's provided to us and I think a tool that we properly use to make the the court more efficient the Lord Advocate lays down prosecution policy as to what the framework should be within which these these fines should be issued and it's then down to individual judgment and professional judgment of prosecutors as to where and when it's appropriate to issue the fine whilst the increase from three to 500 pounds does make it significant a greater penalty than would otherwise be the case the number of cases that are impacted in that range is relatively small I think it's was four percent of jp court disposals were within that range the fiscal fines have been issued are within three percent of the disposals within that range so we're we're we're matching pretty much the disposals which the court would be granting albeit in a different way from from doing in the open court and the final question on that is if the public have no means of finding out what has happened with the disposal are victims told so again my understanding is that we would tell victim that the case has been dealt with by an alternative to prosecution so the alternative to prosecution can be a number of things but we wouldn't go into the detail of what the alternative to prosecution was I'm sorry I did say a last question but this is the last question but presumably then if a victim was told that he might assume or be led to believe that means a fiscal fine well I wouldn't necessarily know if it was rejected and then no further action is taken that level of detail wouldn't be explained so if a victim asked us if a case had been a disposable case had been no further action they would be told there was no further action taken not that it had been disposed of by an alternative they may not assume or they may assume that it's a fiscal fine but alternative to prosecution can cover a range of options that are available to the prosecutor so as well as fiscal fine there are warnings there are fiscal work orders and such like so there are other options diversion from prosecution is another option which would be coined an alternative to prosecution so there's a broad church of options available to the professional judgment of the prosecutor which would cover I'd be covered in the range of alternatives thank you okay looks very much okay I think we'll maybe just I'll hand over to Rona we were anticipating some questioning around court business by electronic means but and so I'll just bring you in at this point and then I will bring in Fulton McGregor after that thanks thank you convener good morning panel yes a couple of questions I know some my colleagues have further questions on the virtual trials but Mr Fraser just if I could come to you thank you for your letter and the helpful letter there's just a few questions I have arising from that and it's where you say at the start of January this year a further 10 it's about the sorry at Beggyparn it's the Aberdeen domestic abuse pilots so at the start of January 2022 a further 10 cases were scheduled for trial of which two proceeded one was deserted and three were converted to a physical trial so I'm just wondering what the reasons would be for converting them to a physical trial um that's one of the the frustrations um that that I have um they can be converted to a physical trial um for any reason it's all that the they don't even have to give a you know advise a quote of what that reason is and sorry who takes that decision the um sheriff will take the decision um but there is no compulsor at the moment um for us to use virtual trials at all it is by the consent of all parties so if individual um chooses not to take part in it then that is like enough reason for it to be converted or not to go ahead notwithstanding initially they will have been a process that will have gone through to say yes this case is suitable for virtual trial yes um it will be set down in terms of that but for some reason during the course of the process someone may have changed their mind um and that's a good enough reason for it not to proceed and it then goes back into the physical trials okay and just I mean my arithmetic's not great but um I'm just of the further 10 cases um two proceeded one was deserted and then three converted physical trial that leaves like four left what what would happen to them um I will need to come back to you on that one it will still be in the pipeline I think you know it's just a general thing about how how that how that works um and yeah I mean was that did that trial go um according to plan us at where was it would you say it was successful the the virtual trials that we've we've run and we we ran an initial pilot way back in 2020 and back in that time um you'll be aware there were no trials running at all so this was seen as a vehicle in order to get us at least getting trials running we ran the twin mrs we ran a further in Aberdeen there was a further there was there was nine in total in terms of that tranche that went ahead the feedback we got was very positive from sheriffs defence and those actually taking part in in terms of it it achieved what we set out to achieve we proved the concept we then moved in I think as I said last year and sherpawn's profile then focused it on domestic abuse cases um so I mean it it is from my position that it is it's viable um it is an alternative it gives us flexibility there's a lot of advantages come with it on your point of the four cases I don't have that before me but I'm quite happy to provide that if it would be helpful that would be useful thank you thank you and just one further question on on that for me is say I know I know others have questions um it's regard to vulnerable witnesses and if you could maybe explain and I'm not sure mr donleaf it's yourself or Mr Reiser that would do this um in relation to the remote attendance by vulnerable witnesses in criminal cases how does it compare to what was happening before the pandemic um we've heard from victim support and from women said that witnesses can find it a lot less intimidating and they're very much in favour of it um because it means there's no face-to-face contact often with perpetrate alleged perpetrator um so I just wonder if we could have your thoughts on how um it's it's it's the process has changed for vulnerable witnesses I'm quite happy to I'm sticking with what we did in Aberdeen I mean we worked very closely with victim support um to identify external sites so that we had the technological connections um and they were supported at the remote sites um and it was very much welcomed in terms of of removing them from the environment we've talked about already where they potentially could see the accuser within the same building um before that I mean we have had and we have a number of sites dotted across the country that are remote from courts where vulnerable witnesses have given evidence electronically for a number of years now um so I mean it it was a concept which we then developed into the virtual trial model um and from what I've I've seen it it has been welcomed Mr Donnelly may want to add I totally agree with with David's comments the uh there were a range of options available for vulnerable witnesses to give their evidence in different ways um they were always consulted about that and the appropriate um measures um explained and discussed there were sometimes evidential challenges around some of that but we would usually try and find a mechanism to allow the witness to give the evidence the the best way for them one of the ranges one of the range of options previously available was for the vulnerable witness to give their evidence uh by a remote link from CCTV um but as David says the the virtual model has tried to build on that to make it a much more mainstream and more much more accessible and available option for victims it's certainly my my understanding from feedback from victims groups is that they are very much in favour of it um and anything which which supports victims and allows them to engage in the process and to give their evidence in the best way possible for them and the the least traumatic way for them is something I think we have to explore as best we can and take forward. So this is something you see continuing? Absolutely it's something that I think that beyond the legislation something we should be looking at as a a future way of delivering business for for that kind type and perhaps others. Thank you. Okay thanks very much and Katie I think are you wanting to come in on this particular line of question? If that's possible I mean the legislation um that we're considering is suggesting that this would be a default um now from what you've said and from what we've been able to gather it sounds like a very small number of cases have actually gone ahead up till now so it's really difficult to take any view given perhaps these might be the kind of cases that are most suitable for virtual cases if everybody's in agreement so suppose the the issues that we're having to grapple with are why it would be a default where they could go ahead where there isn't the agreement of all parties which is my understanding of how the legislation would work so I presume it would be the sheriff at the end of the day that would decide whether it was appropriate for a case to be virtual so that's quite a massive shift if you like the purpose of this legislation as it's been presented to us and the reason that we've been given as to why it's going through in a far more speedy process than would normally be the case in this Parliament is that this is to continue with practices which have been taking place during Covid but the evidence that we're getting is that in reality actually virtual trials haven't been taking place in significant numbers they haven't been the default there's been a small number so I suppose really what I'm asking is what evidence have we got that this model that's being proposed in this legislation has actually been tested there's probably two dimensions on the virtual summary trial model it is most definitely my preference that that you know we go down that route for domestic abuse cases as the default position of course there will be exceptions where for specific reasons cases may have to be held physically and that's quite independent from virtual appearance generally because what we have done since the pandemic is introduced the remote appearance of witnesses out with that type of cases and at the moment in the high court we have professional witnesses and police officers and medical professionals that will give evidence remotely and my understanding is we need that legislation for that to continue and that dimension has significant benefits traditionally we would have pulled consultants in or colleagues would have asked them to attend sorry I could I mean I think you're straying into other issues to do with evidence been given remotely and what we're considering in this legislation is the default position for all domestic abuse cases should be a virtual trial even where parties do not agree I appreciate it's your preference there may be reasons for that what I'm saying to you is that we haven't really had that tested in many cases have we we haven't but the reason that it hasn't been tested and it hasn't taken over and your comments earlier that that was warmly welcomed by the third sector in support in terms of going forward with that but there have not been the volume of cases because there's been no compulsor for these cases to be done virtually it has only been where people have consented to it and that's one of the fundamental reasons I would suggest that that we haven't had the volumes that we when we started this process we anticipated we would have so wouldn't you think it would be more sensible to have a pilot with a significant tranche of cases being dealt with this in this way and then evaluate what the outcome of that would be rather than making this permanent shift to a default position of virtual which is a significant change in the Scottish legal system I'm not sure it's quite so so unusual as you may be thinking I'm thinking of parallels with the vulnerable witnesses act from 2019 which introduced the presumption for evidence by commissioner for certain categories of witness giving their evidence so the default is I think a parallel or comparable to the presumption that that legislation gave rise to the presumption is rebuttable as is the default it would allow parties to to make representations to the sheriff or to the judge that the default should be departed from in the same way that there is a provision in the 2019 act which allows parties where they think that the the presumption in favour of evidence by commissioners not the right way to give evidence to make representations to the court and ultimately the courts got that overriding interest in ensuring the fairness of the proceedings the fairness of the trial and will be will have the capacity to to change the default of the presumption depending on which piece of legislation we're looking at at the moment this is all available by application and so the default position would streamline processes and allow the court to to proceed on a particular basis but with the ability for parties to challenge that and the authority of the court to change it so I well understand it's it's quite different there are there are safeguards in place and there are parallels to be drawn with existing legislation and it's I looked it from the perspective of the benefits for the vulnerable witness witnesses and removing them from the court environment entirely which I see as a phenomenal benefit and as Mr Donnelly says I mean it there are parallels with what we've done in the past in terms of presumptions and it doesn't mean that physical trials and domestic abuse would not continue there would be specific reasons I am sure in a number of cases where it is better that they proceed on a physical basis but we're making the shift to the presumption that they would be virtual and it removes some of the barriers and the options to opt out for because because the option is there if you like and without actually coming to the court and having a detailed explanation of that actually this is the specific reasons why it can be which we don't have at the moment. Thank you. Before I hand over to Fulton MacGregor I'm just wanting to pick up on a point that you made in response to Rona's some of Rona's questions David if I may. You said that there had been a lot of positive feedback in relation to the Aberdeen virtual trials but we've taken evidence from the Bar Association in fact that was just last week and they spoke about their concerns about virtual trials as an option and because it and I quote diminished the solemnity of proceedings so I'm just really wondering if you I suppose accept that not everybody is in favour of the virtual trial option and if there is work on going to maybe kind of allay some of the fears around this option. I absolutely accept. I mean this is a big change in terms of how we run the organisation and those that interact with the organisation and like all changes you go on the change curve and different people are at different stages of that. We continue to work in terms of all the sort of digital innovations that we're doing with the Law Society and in fact the Law Society were a member of the virtual trial group that made the recommendations and their share principle pile so we do continue to work with all the different Bar Associations in North Strathclyde and I'm deviating briefly but let me make the point is that we're engaging with them as well in terms of the virtual custody model as we roll that out as well so we are very much involved with all of those that the changes affect but I do accept that there are differing levels of excitement shall I say about the you know the process we're going through. Okay I'll now hand over to Fulton McGregor and then I'll bring in Jamie Greene after that. Thanks a lot, convener. My line of questioning just now anyway is actually following on quite well from Rona and Katie so I do run the risk of repeating myself or asking yourselves to repeat yourself. I mean I was involved in the vulnerable witnesses bill which has been mentioned as were other members around the table and I think at that point and that was pre-pandemic we didn't have any idea that Covid even existed. I think Scotland was very much on a route to rightly or wrongly I believe rightly incidentally for the record but rightly or wrongly we were on a route to making sure that vulnerable witnesses didn't need to go into a court setup given the trauma that could be experienced by them and then the pandemic came and I think as Katie Clark has kind of articulated I think we all sort of felt that you know these would have been done more and perhaps actually the stats are a wee bit surprising if you like given the opportunity that the pandemic you know allowed for. All that said I think what this legislation is asking is asking us if we can allow some of that to continue in order to perhaps speed up the process of vulnerable witnesses being able to give the evidence out of court so I guess my question is do you feel that the legislation as drafted will allow you to do that will allow you to make steps started by the vulnerable witnesses act in other processes that were already in place and allow us to get to a situation where vulnerable witnesses in the most difficult of cases are not appear in the court and I'm happy either or not. For my perspective yes I mean the legislation as it's currently drafted in the extensions are from my perspective essential for us to continue the work that we are have started out on and it does as you quite rightly say feedback to the general direction which I think we are going as a justice system in supporting and making the environment as least traumatic as we possibly can for vulnerable witnesses and complainers so I would very much support the continuation of what we currently have in place to allow us to continue the journey we're doing. Yeah I agree with that I think that the journey is about providing support and opportunity for victims to give their evidence in the least traumatic way and in a way that makes them feel engaged in the process at the same time and there are a number of vulnerable witnesses pieces of legislation already that provide options and opportunities for that and I think this is just another another tool in the box to allow that evolution and that development of best practice to support vulnerable witnesses in their engagement with the criminal justice process so that's why we're in favour of it at this stage it's another opportunity to allow us to to better support victims and given their evidence in the best possible way. So I guess the question from a legislation point of view I'm hearing quite you know good levels of support from both of you but do you feel that the legislation is required in order to you know obviously there is other processes in you if you both identified that but the the legislation is required to make this transition easier and and give you more tools in order to get to that that point. I mean your rhythm here. I should be direct. Not at all. Yes from my perspective I mean we did have under the previous legislation prior to this the ability to have remote evidence given remotely but that was on an application by application basis. What we do have is now is that has been broadened to anyone potentially being able to give their evidence virtually as opposed to the very narrow group of individuals that were able to do it. So in terms of what we currently have and what I hope will continue is the ability to go beyond that and I did strain to earlier it is not just in relation to the vulnerable witnesses it's in relation to the professional witnesses as well. A number of police officers now and medical professionals are able to give their evidence from their own locations which means that they're not spending time commuting to the court waiting in the court for the potentially a trial to be adjourned to a further date and it's viable time out of their calendars which they've got back in and again I mean the feedback that we have on that dimension is very very positive and I think it's one we would want to keep on a permanent basis. I think we've properly focused to debate this morning on vulnerable witnesses but the legislation is required for more than that it provides us opportunities for as David has said other witnesses to give their evidence remotely so looking at it at the moment we're piloting it in the high court we're all police and professional witnesses and expert witnesses can give their evidence remotely so what that practice means is that for instance a GP doesn't have to give up their practice if they're living in a remote area and look and engage low incomes which can be hard to get expensive they can make a slot in their diary when the court will accommodate them given their evidence remotely means police officers can be at the office doing other other work rather than sitting in a court waiting room expert witnesses who are often far and wide across the world and present us with logistical and timing difficulties in terms of scheduling for trials can give their evidence from wherever they may be subject to the control of the court so the legislation will allow the court system to work more efficiently as well as providing support to delivery of public service in other ways thanks for that I think it was really important to hear on the records and practical examples of how the legislation might impact in practice okay thank you i'm just hand straight on to jamie thank you first of all if we work on the assumption that people are innocent until proven guilty as a cornerstone of the Scottish legal system don't you think they deserve the right to physical trial if they want one I don't I don't think that any right is absolute so they're entitled to ask for that it's up to the court to determine whether it's in the interests of justice that they get that and to ensure that they're able to follow and understand the trial to probably instruct council or sluster and to feel that they're engaged and in the trial so that the option of doing the trials remotely is another tool which the court has but again as I said earlier it's open to parties if they disagree with with any presumption to challenge that and the court then has to make the decision on the interests of justice it's the same with a range of of of things which we could talk about the choice of sluster or council the choice of date etc that you know the court has to work with the broader interests of justice and the interests of public rather than the individual interests of the accused but that's obviously an important fact of the court has to take in dick so in assesing a decision on what's up that sort of implies that clearing the backlog is more important than the rights of an individual in Scottish law I would dispute that I didn't don't think that that's what I said I think what the court's got to do is to determine what's in the interests of justice and if the interests of justice are such that disposing of the case with the accused in a remote location is appropriate fair and allows the accused to engage in the way that I've described earlier than the court can make that decision but the court decides that that's not the case then of course the court would determine that physical hearing was required. The big difference is that we're moving from a system of application based where if all parties agree to the trial can proceed as virtual and it sounds from lines of question they've been a very relatively low volume of cases so it's quite difficult to see what effect that move to virtual has had on outcomes which is the key point point that Katie Clark made is wouldn't it not be prudent to perform a much wider pilot of trials and volume so you can see the outcome of that because this bill proposes to move the default to virtual and then it would be application based not to be virtual which is a complete reverse of the current situation this isn't an extension of what we're currently doing this is a big change in what we're currently doing and that's perhaps the key point if I can add it's we you know our system is a very traditional system and it has worked since I think the Victorian age without major you know significant reforms in terms of the process of how we do it this is a giant leap and I accept that in terms of moving from the traditional physical quote environment into a new digital environment so you're quite right there are a lot of questions in terms of actually what does the digital environment and the physical environment and does that influence or change anything at all I can only go on what I have had feedback on from primarily the sheriffs that were involved in this from their perspective that from their you know having done the physical environment and done the virtual they were satisfied that there was no diminuciation in terms of sure it's the right word but there was no reduction in terms of what they were able to make their decisions on whether they were physically in front of them or whether they were on the screen and I think but I do take the you know the point that it is uncharted territory at the moment and to a certain degree but I suppose you have to weigh up what are the benefits against what are the the drawbacks of making this this change yeah there is a big difference though and I think most people would agree with the premise that virtual witnesses have been beneficial in many cases for the examples you listed protecting vulnerable witnesses especially domestic abuse cases um and that ability to not be in the same room as they accused has has been of benefit but that existed before the pandemic to be fair um I want to follow up on a point that the convener made uh and you picked up on where you said the feedback had been overall positive admittedly from sheriffs you also mentioned defense so we've heard quite the opposite and I want to quote the specific point that the convener raised earlier of from the scottish solicitors bar association um who said I can say on behalf of the vast majority of the profession I think the experience has been nothing but a resounding failure that's quite stark comment to make to the criminal justice committee um you'd simply just disagree with that assertion or will you agree to disagree with them no I would absolutely disagree with that entirely I don't think that that's the case at all um I think there is a phenomenal amount of success that we have had I'm not saying that it has not been without its teething issues or you know the odd technical issue which you would get in any transition um and what I would say is I mean even our remote jury centres have it on occasion we have lost the links and it has always been down to factors out with our control in relation to the sort of you know the broadband connections but we have got them back up and running very very quickly um and any transition has that I know that that some of the difficulties perhaps that the the bar association um have had in relation to the it can be down to um there where they are connecting from for the virtual trials we have always ensured that we have tested the broadband connection because we found this out quite early it really is dependent on where you are coming into the code environment from it is really is dependent whether you are on a really good broadband network or whether you're on a mobile phone or whether you're on a public wi-fi and you know we are understanding the reasons why from some perspective depending how they are they are coming into the environment how it can appear to be actually um less than than perfect um but the the work that our our unit has done within the scts has actually narrowed down all the different issues over time in terms of well what is it is causing the difficulty or the connection um and resolve them um and I would say that that you know um we have made significant progress in terms of making sure that what we have got is a stable environment um and then certainly in the court environment we have made those connections um to ensure that they are they're working so I would I would absolutely disagree with that okay that's interesting I guess their concerns weren't just technical although they did mention technical issues in certain circumstances the issue was more a point of principle I think is the impression that I got and that's this concept that the solemnity of a court is sacrosanct in the Scottish legal system and the court I think that was given by Mr Murray was that we're dealing with people's lives and their liberty in many cases in which case the court environment seems to be a prudent place to deal with people's liberty liberty and serve justice but I might ask the crown if I may just on the numbers here because I think it's quite key to get an idea of if this legislation does pass and we move to virtual by default on an application exception basis will that apply only to domestic cases would you like to see only apply to those types of cases or could we see all cases by default start in a virtual setting but then on a share for a court case by case basis move to to physical hearings what sort of numbers are we talking about here in terms of the backlog uh how many cases we might have to get through uh and and you know is this an appropriate way of simply reducing the backlog or are there other and better ways we could use to reduce the backlog do you think I I'm not able to give you numbers I I wouldn't wish to start guessing in that I can I can certainly go take that away in between ourselves and the court service we could look at whether there's data that we could provide to you but I'm I'm don't going to start picking things out there I'm sorry I think it's it's there are a range of measures that are available in the legislation to support the reduction of the backlog this is one which allows us a degree of flexibility to get through some of the business to get through it in a way which is beneficial for vulnerable victims which in a way which allows specialism particularly in more remote areas for for domestic abuse and other types of cases and I think we would want to keep our options open as to whether that's a model which is not just applicable for domestic abuse cases but which we may also see benefits for in other areas of the business so I wouldn't want to say that it's one only one aspect of the criminal justice system which would benefit from that I think it's something where that's a a crime type which we've identified as a as a good place to start because of the dynamics of that type of crime and the the the impact on victims of giving their evidence in a different way and the benefits of reducing that but it's it's a tool which gives us a degree of flexibility about how we best manage the business there's also a public health aspect of it continuing worst we recognise that that we're moving away from that reducing the footfall within public spaces I think is still a welcome benefit of this piece of legislation as we move forward that that need hopefully will continue to reduce but it's it's another it's another aspect of this piece of legislation which allows the court to manage the volume of business and therefore the risks of the number of people that can be in a courtroom at any given time appreciate this are the questions so I'll have it okay that's very much bring in sorry did you want to come in do you have a question in the in the summary cases that we still have a waiting trial it's it's roughly about 26,000 cases that are non domestic abuse and 6,000 cases that are domestic abuse and I think in terms of the question you raised that that if the legislation was purely for domestic abuse it would allow us which was clerks point us to actually have a little bit more in terms of being able to pilot if you like notwithstanding it is legislation because it is only dealing with 6,000 as opposed to the 33,000 cases that we have so there is an element of containment if it is purely for domestic abuse cases okay thanks very much if I wonder if I can just come in very quickly with a question probably for yourself David just more in relation to the civil side of cases my understanding is that almost all civil and tribunal business has been undertaken either online or by phone obviously during the pandemic and I just wondered if you could maybe update members on whether this is likely to continue how long for etc yes we were we managed to get on the civil side the transfer to the digital environment much more quickly than we were on the criminal side and I think I've said I mean we have no delays or backlogs in terms of the civil side it is not really a matter for me in terms of where the future I think is for the civil council at the moment who are looking at whether procedural or evidence giving and what the breakdown would be and what would be appropriate I think what I can say is is that the move to having procedural hearings digitally and I mean a lot of of the other hearings digitally I think the profession have welcomed on the civil side and I do I do see it as a steps forward but it is it's not for SCTS I think to to set out what that future may look like I know that the Lord President and Lord Justice Clarke have views in terms of how they would like to see it progress and I think it is a positive step in terms of what we've been able to do but I'm sorry I'm not able to specifically answer what lies ahead of us on that front yeah no that that's helpful okay I'll bring in Russell Finlay I think we'll just we've got a couple of other sort of themes it would like to cover off it's just a small point that relates the written evidence from SCTS it talks about virtual trials helping reduce the justice sectors carbon footprint is that something you've measured it isn't and it's based purely on the fact that we haven't got people coming to and from courts and giving evidence without that that so that it hasn't been quantified in any way okay and finally Mr Dorley in respect of multiple accused solemn trials many of these as the evidence written evidence says really to organised crime can you quantify the backlog in that respect in cases of that nature I don't have it with me but I can get that for you that they're not all organized crime cases so that you know there's multiple accused cases in a range of of the business we have made some progress with that that initially when we introduced the jury centre model we weren't able to do I think it was more than two or three accused cases we've now got a couple of facilities that are able us to do that so we have started to address some of those cases but obviously there are more of them in the stocks than we would like to be the case just because there was a period of time when we couldn't do any of them at all I think that's fair David let's you think otherwise but um at the very start of the pandemic I mean it was a single order or two accused I think that we could do we have vintage facilities that most facilities is up to five we can do up to nine I think we had an 11 accused scheduled but it pled so we didn't have to use that so we we are able to deal with multi accused now where in the early stages we weren't it's up to nine is the rough kind of territory but we can I mean using a two court model we can go beyond that it just impacts of course then the other business that we're getting through when we have to do that thank you take to do an analysis of the caseload at the moment and give you details of the multiple accused cases and the the general crime type if that would assist perhaps and also I suppose just the disproportionate delays in respect of them which seems likely if that could be quantified compared to single accused that's quite a new order analysis but I'll see what I can do no worries thank you okay we'll just move swiftly on I think some members have got some questions around time limits in criminal cases so I'll maybe hand back to Jamie and then I'll bring in Fulton I think so we understand the concept of increasing the time limits so that cases don't time out and I think that's entirely appropriate it's difficult to argue against that but obviously increasing those have a substantial impact on both parties the victims themselves and of course those who are accused particularly those who are accused and held on remand can I ask other than not allowing the cases to time out what possible justification is there for extending the time limits of cases or is that the only reason the only suitable reason from the court's perspective without that we would be facing there is a mechanism where an application can be made to the court and it will be up to the individual as a sheriff or judge to make decisions whether or not that happens what that would mean is for the vastment volume of cases that are within the system it would take away from resources in order to deal with that and you might think well how long to do that but if you're talking about thousands that will have to be scheduled in which means we're not able to actually do trials while the judiciary are doing that and that would probably be the biggest dimension from STS's perspective is it allows us to focus on actually dealing with the backlog and dealing with getting cases through the court as opposed to dealing with an administrative procedure so is there a better way of doing this then I mean it sounds to me like the process of having to apply for individual case by case extensions is quite laborious and time consuming for the courts therefore just a default extension automatically means that cases can just take longer to come to pass we're talking here though if the backlog is about four years away for some now that's even beyond the the statutory maximum is even after they've been extended and many people have given evidence that they're concerned about the nature and the length of the extensions in some cases up to a year for example being held on remand in some cases people may be held on remand for much longer than their sentence ever might have been their serious implications and international norms which are being breached as a result of this extension does it does anyone have a view on that that's probably one for Mr Donnelly what I would say though in terms of the delays is and I absolutely accept it from commission or you know alleged offence taking place to final disposal is up you know is four years once you're into the court environment I mean we normally will have dealt with High Court trials within six months and it now takes 12 months so that there's a six-month extension within our part of the system feeling um but in relation to pre-court okay so I think I mentioned earlier when I was that kind of member in response to him but that there are pressures on the system all the way through the system and there are backlogs of work all the way through the system and everything has taken longer to do than was previously the case so um each case is coming in it takes longer to gather all the materials it takes longer to get the scientific and forensic telephony cyber crime reports all of that is working in a different environment and everything is coming in slower than would ordinarily be the case and so the whole process is slow in addition there's the management of the increased workload so again I think that the evidence gave the example that the High Court the overall business of the High Court the increase was I think something in the region of 67 but no sorry that's an exaggeration 55 percent so all that work is having to be processed what we're saying about the time limits yes they're important but it's important that we have the right tools to allow us to get through this backlog of work that's that's growing over the course of the pandemic without it we would be having to prepare cases and perhaps indict them in a way which was incomplete and unsatisfactory and so you're then at the mercy of the court to try and have the cases individually called in and continued and I think that the challenges for defence preparation as well but I can't speak for the defence I'm sure they'll speak for themselves but certainly the challenges in preparation you could be indicting cases that are not complete but because the time limits are there your option is actually an application to the court for more time to prepare or you go into court with a half prepared product in the hope that you get more time to finish the product so none of that satisfactory the real challenge on all of this is that the court is overwhelmed with business there's an overwhelming amount of business that hasn't yet reached the court there's going to be having to come through as we clear out the backlogs at the different stages in the process and the danger of not having the extended time periods from my point of view is that the court then becomes so busy in the administration of the process and the justice rather than the delivery of the outcome of the justice process so that that I'm not convinced and again I think the evidence would show that if we didn't have the periods we would end up having to ask the court and getting similar extensions of time it would just be that we would be taking up court time, lawyer time, clerk time which would be better utilised actually dealing with the disposal of business at trial how are you going to decide what cases to prioritise so for example cases where there's someone who's being held on the man versus someone who isn't who's on license or on bail is it cases of gender, bisexual violence or domestic abuse is it cases that are that are more of serious nature that you think require more immediate disposal the biggest point of feedback we often get from victims of crime is simply the lack of communication and the not knowing and not understanding why cases have been delayed or are being put off repeatedly in this case for a number of years and that's a huge cause of concern for many victims okay so I'll go first this time David you'll be pleased to know Buck the trend the prioritisation is a difficult one priority is given to those who are on remand obviously because their liberty has been deprived but you have to look at that in the context of a range of priorities and you know so if you've got looking at the high court every case in the high court has a degree of priority whether it's sexual offending a homicide a road traffic fatality you know and not all of them will be on remand and again the percentage of well I think we mentioned in our submission that broadly speaking the the high court business you'll forgive me if I keep using that as an example it's where I worked up until a bit a few weeks ago so it's where I'm most familiar with but 67% of the business roughly is sexual offences that increases the further on you go in the process because there are cases which resolve less often by way of plea negotiation so they're the ones which tend to more often go to trial only a quick analysis of our work in progress yesterday of the sexual offence cases only 13% of them are custody cases whereas if you compare that to homicides it's over 50% similarly with major crimes which is everything between homicide and sexual crime it's over 30% so in fact I'm saying it's over 30% it might even be higher than that but it's so that there's a real difficulty in trying to prioritise everything in a range of priorities and so the court once we've indicted the case is of course responsible for for scheduling and for for that degree of prioritisation there are a whole number of moving parts you know that the availability of counsel for the accused can be an issue if they're particularly busy and the court trying to fix a date that suits their needs the availability of witnesses I mentioned earlier the availability of expert witnesses can be a real challenge so there's a whole range of moving parts and trying to schedule the business but but certainly top of the list of priorities is those of whose liberty has been denied thank you thank you Walter are you wanting to pick up on anything for time limits so just just briefly convener I mean I think we're all a bit worried I mean I can hear that yourself about about the backlog and what it might mean it's really good to hear it at the start that you do feel we're on we're on track to to have that cleared I wanted to ask about other possible solutions that you might have or options and that's around you know the prosecution of minor offenses wonder if you can talk about that and how they would be identified and prioritised if you were to to look at those you know no longer been taken forward and I guess just that add on to that question convener just to just add it all together how will you take an account given the time period change in people's circumstances and the two examples I'd give is obviously the remand when you said that's a priority but you know you could be looking at a case where somebody could have already been in remand for longer than maybe the maximum disposal they could get so that is obviously something that you know you'd imagine would be taking into account and also in situations that are more minor within the community where they're not remandied perhaps you know would there be scope to look at situations that have almost resolved themselves where you know the the accused and the victim have actually you know as we know happens quite a lot of actually you know repaired the situation himself and that there's been situations around that are these are these things that are taken into account when you're looking at you know prioritising what cases to look at okay so there's a number of issues on there I'll try and deal with them quickly so the when you mentioned the prioritisation of lower level crime the lower level crime obviously if we're looking at it from the point of view of the discussion earlier on about fiscal fines we try and deal with as much of that business by alternatives to prosecution as we can to remove that from the system so that the system's got capacity thereafter prosecution policies set by the Lord Advocate and we obviously once that policy set we'll look at cases in our case by case basis it may sound like a cliche but it's true that every case is looked at in its own facts and circumstances looked at in the circumstances of the offends, the offender, the impact on victims and obviously decisions are then made about the appropriate forum for the case those policies were adjusted at the point of the pandemic to allow us to make decisions which hopefully support recovery they'll be kept under review all cases are kept under review as they go so if the dynamic of a case is changed or if it becomes too old if you know there are a range of options open to a prosecutor every time they look at a case to determine whether or not it continues to be in the public interest to continue with that case and that's something that we we do innately in every case that we deal with when you pick up a bunch of papers the first thing you think of is is it still in the public interest for this to continue but you have to obviously weigh up a number of factors in that it's not just about the age of the case you'll have to look at the impact on the victim the seriousness of the offence and also the offender's situation in terms of remand for those who are on remand again the court I think we referenced in our written submission the court gave a fairly clear indication early in the pandemic that the approach to what the approach to bail should be that's a decision of the court if someone was in custody for a period which would exceed the length of their sentence then it would be open to them to apply to the court to have their their bail reviewed and obviously that would be a factor that the court would have to take into account and looking at that as if there was a maximum sentence for the crime charge in that period has already elapsed or the period that would be served then it's a factor the court would take into account considering whether or not it was appropriate to continue remand so each case is individual I hope I've picked up all the points there I'm not sure if I did I might be missed one but I don't know if there's anyone to add to that David from the point of view of the court but not from the perspective thank you no thanks for that and I think you know the question I was getting at which which which you've answered was about the public interest in those cases is because if you're talking about significant periods of time there can be significant changes to to the situations particularly in more minor situations I think the I think the most serious cases you know there's probably still more public interest there because they can be open to psychological and emotional abuse as well but more minor situations you know the one I had in my head was sort of youth offending for example I mean a kid could be 16 and if it's going on quite a long time they might be 20 they might have repaired you know some of the issues with their community and stuff that so I'll not I'll not labour the point it's not uncommon for agents on behalf of of people in that situation to write to the crown and ask the crown to reconsider the public interest in the case and set out the change of circumstances and to assess whether the public interest is still there that's that's been the case all of my career and continues to be the case and as I say it's something that we we instinctively do anyway and you know but we don't always have the detail of the information of what the evolution of the offenders situation is and so if you know if and when the agent will write as we would certainly look at that and consider the viability of the ongoing public interest in the case thank you okay thanks very much okay I think we're going to have to bring the session to a close I know there were one or two other questions but time is against us so many thanks Kenny and David for for joining us today obviously if there's anything I think there are a number of bits of follow-up that you have undertaken to to do for us which is very helpful and appreciated so big thank you for for attending and we'll just take a short break while we allow a change over of witnesses thank you very much welcome back our next item of business this morning is our final evidence session on the justice provisions in the coronavirus recovery and reform bill and I'm very pleased to welcome to today's meeting Keith Brown cabinet secretary for justice and veterans Jeff Gibbons from the criminal justice division and Louise Miller from the legal directorate and officials attending online are Stephen McGregor cabinet parliament and governance division Jennifer Stoddart community justice division and Joanne Tinto legal directorate of the Scottish government so we very much appreciate the time that you're taking to join us this morning so I intend to allow around an hour for questions and answers and as usual I would ask for them to be succinct and I'd like to invite the cabinet secretary to make some brief opening remarks cabinet secretary thank you convener and thanks for the opportunity to provide an opening statement on the justice provisions contained within the coronavirus recovery and reform Scotland bill and also to thank all those who engaged in the 12 week consultation process which of course helped them from the development of the bill and those who provided written and oral evidence to the committee the vast majority of the justice provisions detailed within the bill are being progressed on a longer extension basis this is in the context of the justice recovery programme the vision for justice published last month and against the background of the backlog of cases as a result of the pandemic over the course of the pandemic we have seen significant changes in how the justice system has operated and adapted to changes in working practices as it's responded to public health guidance public safety has been the paramount consideration throughout and consequently required a change in how we work that consideration clearly remains as does a recognition that public attitudes to travel and general day-to-day activities will have been shaped by people's experiences of the pandemic much of what we will discuss today I expect will be firmly rooted within the justice recovery new transform programme and the measures in that programme of work have contributed to recovering a viable justice system responding flexibly to meet the challenges which Covid-19 presents whilst delivering a more effective and efficient justice system now and for the future and this is fundamental to protecting our rights and freedoms and to addressing inequality the justice system has and it continues to respond to the challenges presented by the pandemic and societal changes that we must adapt to many of the technological changes introduced such as virtual custody hearings the operation of remote jury centres and the electronic transmission of documents have proven to be a successful response to the new working environment as the committee has heard in its evidence sessions for some of these changes are seen as temporary measures to address the problems caused by the pandemic and not only to apply in that context others however see an opportunity for transformational change that could form part of a new justice system for Scotland in common with the committee I agree it's essential that we fully evaluate the impact of these measures operationally and on court users before they could be considered a permanent feature also there will be some changes that are only ever temporary and that Scottish Government have no intention of making permanent for example the extended time limits are purely to address the impact of the pandemic on the criminal courts equally I can provide reassurance that powers which are no longer required will not continue to be used that's why the bill includes suggested annual milestones through which these provisions can be reassessed regularly powers are in the bill for measures to be expired or suspended ahead of these annual milestones and the government remains committed to expiring or suspending any existing provisions that are no longer necessary it's proposed that measures requiring to be extended beyond November 2023 can be extended by regulations using the draft affirmative procedure through potentially to November 2025 and that means appropriate parliamentary scrutiny can take place and places a clear onus on all justice organisations to evidence how the powers have been used and to make the case for their retention in addition and in an effort to be open and transparent the policy memorandum also highlights areas where potential stage 2 amendments may be progressed noting other areas of activity which may have an impact I've listened carefully to the evidence sessions over the last two weeks and to some extent this morning it's clear there are a range of views on how best to respond to the impact of the pandemic on the justice system and the opportunities and challenges raised for all of us but there's no doubt there is agreement on the impact that has been had on the justice system by the pandemic and I take all the comments on board and trust as we consider the provisions and their individual and collective impacts that we can respond and address points of concern carefully and directly as a parliament and happy to take questions. Thank you very much cabinet secretary for that update so as you say we'll just open or move straight on to questions and if I may I would like to ask an opening question and it's around early release of prisoners and now I know that we will be looking at a separate agenda item on risk assessment later on but I'd like to focus on early release in the context of the Covid pandemic and the provisions within the bill. I'm aware that in my own area in the northeast for example early release was something that saw very close collaboration across agencies who worked well together as I saw it particularly in the context of prisoner release from HMP Grampian and the risk assessment and other processes were informed and robust particularly around issues also such as through care and victim contact but I know there are some concerns about that particular aspect of the early release process that was undertaken and albeit I recognise that the last early release was back in 2020 so I'm interested obviously you've mentioned that the powers that are no longer required within the criminal justice system will not be used but I just wondered if you have any more comment around the issues of early release and whether or not you feel that those provisions would require or could be improved or adapted and whether actually they would be required at all. I think it's true to say that we are only looking at a temporary extension to that power for the purposes of the pandemic but it's also true to say we are consulting on that becoming a permanent power through separate legislation and it is the feature of UK government they have that power embedded in legislation it seems to me for reasons to do with I suppose contingency planning but the same kind of argument would apply in relation to this I think convener that if you're having to do it as a response to something which has hit unexpectedly perhaps you don't have all the time that you'd like to take to do as much in terms of consultation and forward thinking as you would like and I know there were certain issues before that my time is just a secretary obviously but there were concerns whether through care had enough time to be effective also victims whether notification was as effective as it could be. All I would say is that we would we will have learned lessons from that and seek to apply them to any future release although we have no earlier releases planned and even if we can take our best guess at the pandemic just now it doesn't seem to be anything like what it was previously in terms of its impact on society so this is a contingency power for those reasons at just maybe just to say one word widely mass releases of prisoners are a feature of systems across the across the world's Texas, Georgia, different countries as well and we don't intend to use it for anything other than for example in California the state was told by the supreme court to have release around a third of its prisoners more or less overnight because of 120 capacity we're not in that situation what we're looking for is a temporary extension to this power if the pandemic was to justify us doing that. I suppose just another point around the aspect of early release is that of public safety and I know that Police Scotland they have made some commentary around that being a priority which I don't think anybody would would disagree with so again it was just to ask if the process for assessing risk in the context of early release has public safety at its heart and that will continue. Yes I think that that was evident again it predates my time but it was evident in the criteria that was set for those that were to be released you know had to be very close to the release date there were certain categories of offenders that were not to be included in that as well. Attention has been drawn to the reconviction rate which is sometimes confused with those who are readmitted to the custody which can be a different thing I thought which I think was around from memory about 40 percent but in relation to the categories of prisoners that were released that was not at all unusual for short sentences you're looking at 50 and sometimes 60 percent of reconvictions but yes of course there would be assessment done on public safety and I think I'm right in saying I'm sure you'll be corrected if I'm wrong that the categories of prisoners which were agreed to be released took into account the risk to public safety and was agreed I think by all parties in the Parliament at that time and we would hope to try and achieve that again if it was necessary to do so. Thanks very much. Okay I will hand straight over to Russell Finlay we've got a number of questions it'll be of no surprise around court business by electrolyte means so Russell over to you. Hi there the first question was something I was going to ask the previous two witnesses but ran out of time now the written evidence we saw from the Crown Office is there's 850 high court cases on indictment that have yet to be allocated a a trial date yet and we know there's tens of thousands of summary cases was any consideration given to clear this backlog by working weekends opening the courts up at weekends? Well the changes that we have made and yes that that was mentioned discussed and so on as we're all possible means by which we could reduce the backlog but it has to be more on the mind I think that the whole system has to be ready to do that and it's not just to have a courtroom available or a remote jury centre if that was applicable available and we thought that the stress on the court system generally and what was being asked of them was could not be sustained if that was to be done on a seven-day week basis and I know it has been done you've had 90 gay courses in courts rather down south but we thought given the pressures on the system and it might be worth hearing from officials just to some of those pressures that what we've done in terms of putting the money in the around £50 million this year into the additional courts 16 additional courts was the most effective way to do that but I don't know if officials want to say more about that. Yeah just to add broadly we've been looking at lots of different options to address the backlog but they brought a question around capacity within the system resource and the impact on all the partners is one of the key issues to address and as you've heard from some previous evidence sessions clearly there's mounting pressure and some of those in terms of managing the workloads that is before expanding it further so those are some of the key issues that have been informing some of that decision making. So were the various stakeholders asked about working weekends? But again some of that predates my time as just a secretary but we've had a constant dialogue with all the justice partners in relation to this and I think if you think about the 16 additional courts that's court service staff, that's defence lawyers, that's prosecutorial staff, sheriffs and so on that's a very big increase in their workload so again we thought that was the most effective way to do it and actually I still do think that's a more effective way to do it. Obviously others might have different ideas about it but we think that was the way to do it and it was done on the basis of maximum consultation with justice partners. You can't really do something as radical as that as we have done without having the consent and discussion in consultation with justice partners. Okay thank you and just touching on a subject that you've already mentioned in respect of re-offending the statistics are of the 348 that were released earlier, 142 went on to re-offend just 40 per cent within six months. First of all do you consider that to be acceptable and if this were to happen again would the same procedures apply or has that has any work been done to attempt to improve the risk to the public? Well I think first of all no I don't consider any offence acceptable I think that's probably true of everyone in the justice system but I think it's also true to say as I mentioned already that there's a level of reconviction which is associated with especially short sentences and again Jennifer Stogart might want to come in on this which is true across different jurisdictions 50-60 per cent which is one reason why we have of course in recent years seen the change to presumption against short sentences not a baron but presumption against them because it's ineffective very often it's also one of the principles and values that underlies the justice vision which we've just published that we think community sentencing very often is much more effective it has lower conviction rates so no we don't find it acceptable we do want to try and drive those down and if anything I suppose you quite rightly ask what would we do now that would show having learned lessons from that that might reduce it then I think the community justice side of things has to be better prepared it was not of course without its own impacts from the pandemic whether it was staff or the places that they had to work in but if you could have more availability in relation to that so that we were tapping into that reduction in reconvictions that would be one lesson I would want to learn so making sure the community justice system is able to rise to that challenge where we to have that further early release of prisoners were just underlined once again we have no current plans to have that release but I wonder if it would be worth hearing from Jennifer because she would have been there at the time and this was decided last time. Thank you cabinet secretary just to echo the points that Mr Brown made when these were very short term prisoners that were included in the release so those serving less than 18 months and it is very difficult when someone is in custody for such a short time to address underlying causes of their offending that's not to excuse any reoffending that occurred after they were released but certainly this is part of our wider consideration of how we can reduce the use of imprisonment particularly short term imprisonment so for any future use of this power which is absolutely not planned and would not be something that we would choose to do we would be working with our community justice partners to offer through care support to these individuals as they are released and those that engagement did take place during the use of this power the first time the prison service engaged with local authorities so that support could be offered to these individuals but as happens in normal release for short term prisoners they do not have to take up that support it's just very very quickly just and it's all theoretical but if that were to happen there is no mechanism to force early release prisoners to engage it would just be on the basis of goodwill in their part is that correct it would depend on the cohort of prisoner which was included so long term prisoners if they were to be included and they were not included in this cohort but if long term prisoners were to be included then they would be required to engage with social work as they would in normal processes they release as a statutory requirement there are no plans to if we were to use this again for short term prisoners the legislation as it stands does not allow the requirement for those individuals to engage with services short term prisoners at the moment under current legislation are not required to engage with through care although they are offered either from the third sector or from local authority thank you thank you okay thank you very much we'll stick with electronic court options rusola do you want to ask pick up some questions on that or okay just now okay thank you very much in that case i'll maybe bring in rona mkai and then jaymy green thanks convener and good morning cabinet secretary yeah you'll be aware that we've heard support and from for the greater use of virtual options we've also heard concerns so mixed views so the concerns that we've heard is that it can perfect effective communication between legal representatives and our clients it can impede the assessment of the credibility of witnesses and discriminate against people who don't have access to digital technology i just wondered what your thoughts were on that and you know if it was being addressed yes i think especially if we were to look to doing this permanently which may be possible through other legislative processes which are coming forward we are looking at this and i heard the or read rather the evidence that was given to the committee by the bar association and so on and some of the concerns they had raised i mean also the faculty have raised the issue about digital digital exclusion which we are doing think that was raised with us a number of months ago which we're looking to address however on the other side as recently yesterday you would have heard i think it was rhoda granite saying about how beneficial it can be in cases of a domestic abuse and also in rural areas so there are as ever arguments on both sides we would want to take those things into account learning from the pilots before proceeding further it is possible of course that the judiciary given their powers could advance with us in the meantime to some extent with a practice note i think the preference would be to have legislation for the reasons that you mentioned there's a lot of things to work through in relation to this it seems on the surface very appealing but especially those most closely involved in the process defence representatives and others they do have some concerns we'd want to try to address those as best we could do see that as being a problem you know that the concerns from one side illegal profession as opposed to the other because we've heard quite you know quite opposing views and i'm just wondering if that if that could ever really be bridged you know that the gap because of this traditional practices of let's just say defense defense lawyers and you know the court service who are thinking it's a good it's a good tool to have you know that an option to have to clear the backlog and also as you say for domestic abuse victims and vulnerable witnesses and we know that that is very much favoured by the third sector organisations so i would be ask jeff to come in this but i think as a lay person i think it could be bridged i'm not saying i have the answers to that just now but i mean a lot of the qualms which have been raised by legal representatives have been about you know looking somebody in the eye and that kind of presence and the faculty said it's the presence in the courtroom being able to read somebody's reactions body language and things that are extremely important and i think there may well be i'll say this just now without having the expertise and maybe digital solution system that to improve on some of that and i would hope that it could be bridged because i think some of the benefits we've heard about vulnerable witnesses obviously but people have to travel a long way the issue that was raised yesterday about domestic abuse potentially huge benefits but we'd want to try and take the profession with us and you're absolutely right to say that even i think within and between the law society and bar associations there are different points of view so i think it must be possible to to reach a potential agreement but it'll take some work to do that and listen to people's concerns i don't know if jeff wants to come in on that yeah i think that in some ways evidence why we've gone for a longer extension approach because we recognise there's a there's there's a variety of views sometimes they they're quite contrasting over similar issues and they get quite confused so i think we will bridge the gap in terms of which we continue to work with stakeholders to see what a virtual offer might look like that's acceptable to all that that addresses the resource issues that the the positives is and address addresses some of the anecdotal comments that people make about some of the issues that have been raised to quantify those to some extent as well because because because we need it we need the evidence base to support moving forward so both in the civil and in a criminal context very much an evidence-based approach to how virtual might look in a future justice system but we are we worked with the stakeholders on a longer extension approach and got their support for that and again we continue to discuss with them what a what a virtual justice system has got that might look like going forward i mean i just think we've come very far in the space of two years with the huge changes that have had to be imposed because of of covid and it probably will take a bit longer to actually reach consensus for that to go forward but i hope it can because it's it's certainly beneficial to a lot of people i think if i think some of the user and the screen is been around one particular report but that's more about how you the mechanism to move that forward so as you be aware that the work from the virtual child group published after the the legislation was was introduced um it's it's got positivity but there was a limited number of uh childs involved so these sort of context of evaluations quite limited um it was also uncosted so we need to look at what the resource issues are but being picking up points that mr finley made earlier about how that resource in one area affects other areas as well so um it's very much looking at um what what a future legislative option might be but also future proofing that because technology moves so quickly we don't want to look at it just at this point in time but what's a virtue offering going forward might look like and how can the legislation adapt quickly to that going forward rather than having to keep revisits as well so so we are in agreement i think it's more about how we move it forward than the kind of timing frame i think is around that okay thank you thanks okay thanks very much um i'll bring in jame agree now i know you've got some questions um just going back to the issue around early release but if we'll maybe stick with the electronic uh court options for the moment and then i will bring in philton thank you convener i'll be happy to come back in later on other questions cabinet secretary you mentioned that you read and listened to a number of the evidence sessions we've had as other members have alluded to there is a difference of opinion on the success or otherwise of virtual trials i think i just want to clarify the difference between the government's proposals around the on-going ability for people to give evidence virtually which i think we've found to be helpful beneficial for witnesses specialists and of course those most vulnerable in specific cases versus complete phil trials of which we've also heard there have been very few so we don't really know what effect they have the question i posed to the previous panel which i'll pose again is would it not be more prudent to conduct a much wider pilot of virtual trials before we embed in legislation any permanency to search trials yes and i think it has to be said that's got to be done by the judiciary it can't be done by the government the government the judiciary um decide on on court business its format and how it's run um although we've encouraged that and i think we are lucky in both sheriff principal pile and the lord president are very keen to see innovation happen so that i think would require certainly their consent and possibly their initiative to do that however i think your point is right if you want to do this you have to have a stronger evidence base and i've been asked why have we not included that in this bill well it is not strictly speaking about covid that's not what this and what may be a beneficial impact but it's about different purposes so i have seen parliament get quite annoyed about things which they don't consider are directly related to the pandemic in terms of emergency or exceptional legislation so i think if this is a more permanent change then it's got to be evidenced we have to try and work through some of the differences and we would have to work with the judiciary of course parliament can always decide itself if it was to change something fundamentally but in relation to a pilot and of course there is the potential to have more virtual trials just now under the direction of the lord president and others so yes if that was answered i think we should have more of an evidence space before we move forward on this yeah that's really helpful so just to clarify then nothing in the covid legislation that we're talking about today will move to a default of virtual trials that can then be excluded on an application basis for physical whereas at the moment all parties have to consent and if all parties do not consent then there will be a physical trial will this legislation change that in any way well first of all it could change in one of two ways maybe i'll get the officials to make sure that i'm getting this right but it could change without the legislation so that that's and there are discussions continuous to how that might be achieved with the consent of different partners so it could change without the legislation but this legislation is rolling over what we currently have so the default position is physical courts but please correct me if i'm getting that wrong no i think i think the point around the the report from sheriff principal pile was about a presumption that they folk should be introduced into the legislation to underpin the practice note that's been supported in the pilot to date i think that's that's the point that's something that we feel needs further consultation because it has a border impact and as i said earlier we need to look at future proofing at some degree so the ability that the legislation is in the covid in this bill does not change anything that was there before but we have an eye on the the ask within that report about a future change of legislation but we would need to consult on that and come forward about the the evidence base to support that okay so on a technical level this is an extension of temporary powers are these time limited or is this a permanent extension no these are longer extension provisions until 2025 as the stock cap point okay that's actually very helpful i'm all for consultation as the cabinet secretary knows some of the other issues that were raised are around some of the practicalities of it we've heard some criticism of the way in which some virtual and electronic means of conduct in businesses have taken place the main gripe from the defense sector seems to be that inability to work on a one-to-one basis with an accused the ability to sit with them in the same room and counsel appropriately is that a concern that's been taken on board because there seem to be much disagreement in the last panel is to the scale of how much this is a problem to solicitors or the bar who seem to think that the whole thing is just an unmitigated disaster according to the evidence given to us but on the other hand it's an unmitigated success according to other panelists so you know i don't know where we sit in terms of the reality of this it seems to be just one word against another in terms of the context but where does the government think we sit here well i think your starting point was um are we listening to that and taking that seriously and yes we are i think it goes to the point we're trying to improve it and my response to rona wakai which was we should listen to this and see if there's a way we can try and achieve agreement although you're absolutely right to say even within defense solicitors there are the extremes of views that you've mentioned um not just being different panelists that you've heard from different organizations but even within uh the law society or the bar associations there are very different points of view um again maybe jeff can add to this but yes we want to listen to that is there a way that we can help with that i think that's if that's felt by people on the front line trying to be as effective as it can be for the clients and we have to listen to it and is there a way that we can overcome that it's hard to see if you're all virtual how you can do that but there may be exceptions to that i suppose um so we are the government sits willing to listen to possible remedies and of course we've got a lot of very good people in government perhaps they can help us find solutions in tandem with the justice partners that we have um we're very aware of the different views around success or otherwise um and some of that is anecdotal and not really supported by much evidence um some of that um it's clearly coming through and the court responds to those accordingly we understand they've they've addressed some of those concerns when they've been raised whether it's an adjournment or whatever it's required to address when they are we're not entirely sure the the level to be perfectly frank and that's part of the evidence place the extent to which those were concerns that came with the early introduction of virtual whether there's something that continues so that's something that is part of that ongoing evaluation about making sure that where people feel disengaged with the process that that's been addressed and minimized um i think it's also worth adding that on the flip side where we where we do have had positive really positive and evidenced response is is is where we've we've engaged with disabilities groups where they see the digital adoption by the court services as something that's that's enabled their greater inclusion in the justice system and in some in fact many of which have been pushing for that for a number of years and we're quite surprised that it finally came around for this this reason alone so there has been there's evidence positives but equally we're well aware that there are still on-going concerns so that's another reason to do longer extension clearly before you look to do anything permanent okay this may be just that one thing which might help mr green to listen to this i think the government is not just um listening in eager to act to see if you can try and get agreement if this if this is something that would require additional resources you know to help that process um given the impact it has particularly on defence lawyers and we would be willing to look at that as well we are we are keen to do this for the reasons that ronald mckay mentioned but also because of the help it will give us of course in addressing the backlog so we stand ready to support that if you can preempted my last question thank you cabinet secretary um on resource and i guess that is linked into funding as well are you satisfied that the crown defense sector all the stakeholders involved the scts have sufficient people place and money to clear the backlog by 2026 because given the last evidence session we just had it sounds like there are significant pressures in processing all aspects of a case from someone being charged right through to a court disposal every stage of it there are new and additional pressures so what's your level of confidence that that backlog will be cleared in four years which already is admittedly a long time yeah and i think it's worth seeing at the start i know mr green will understand this but perhaps others listening might not that we're not saying that somebody who has a court case coming up now will have to wait four years for that to be addressed but the backlog itself will take four years in some cases to be addressed yes i do have that confidence and it's based on what those partners that you mentioned whether it's crown office or the court service tell me they've given me these dates as they've given to the committee as well and we've obviously analyzed and explored them at some length i think that does include though a willingness of everybody to look for other innovative ways in which we can address some of the issues that maybe stand in the way of having a quicker throughput of cases and you come up against some hard blocks which you'll not be able to overcome going back to mr family's question the number of people involved in this process is only so much you can do in terms of the people that are there delivering a service through all the different courts that we've mentioned so yes i have that confidence from what i'm told from justice partners and the discussions we've had with them but i fully expect that we're going to have to find further innovations along the way to make sure that we achieve it thank you very much okay i'll bring in Fulton McGregor now and i think that's in Brussels that you wanted to come in after that thanks convener and it's still good morning to cabinet secretary and the panel before i ask my question a couple of months ago it might have been longer this committee met with some vulnerable witnesses who'd been through the the court systems and we heard their harrowing experience of our witnesses and victims in some cases alleged victims of some of the most harrowing offenses as you know about and one of the things that this committee committed to do as members was to make sure that their experiences are low given to his private labour were fed back when we got the opportunity to do so so on the basis of that i'm going back to an earlier part of the discussion when we're talking about some of the evidence we heard from defence lawyers last week about needing to see the accuser and needing to interpret body language some of the stuff that we heard actually said that you know for people who had experienced these offenses if they went in and they presented as confident incapable it went against them or they felt it went against them if they went in and it all sort of broke down for them then that would also potentially go against him so i think it's worthwhile you know highlighting that context and probably gives an indication of why i personally and i know other members of the same support of a move to it is more remote and not needing to be present in the court for as many vulnerable witnesses as possible and the last evidence session i think was a really good one because i think there's still power there for the court system to be able to have hearings in person if that's appropriate for all parties so based on that you've actually probably already answered in your opening statement and to my colleague Jamie Greene there the main thrust on my question but i suppose what i want to know is the legislation that's been proposed to us just now how much is that needed in order to allow us to move to that more remote system that allows us to protect vulnerable witnesses particularly in the most high profile cases of domestic abuse etc as we've already heard do you feel that you know the parliament needs to pass this legislation to help us to move to that objective i think if we're still talking about the virtual trials and this this won't move things forward it'll continue the basis on which we currently are able to do that with the default positions which have been mentioned already but separately as i've mentioned we would want to look at whether other legislative vehicles would allow us to do that once we have the the consultations and the work with partners and just to go back to your point so say if you have a very vulnerable witness first of all it's not for me to intrude on how a defence representative appears a witness obviously but it's i'm not dismissing what they say when they say they need to have that experience of talking directly to their client but similarly for the client they would want to have draw certain confidence from their their legal representative and maybe a personal meeting is is crucial to that but just to say that that's what we are seeking to do today is to extend the time frame within which we can do what we currently do within virtual trials and any further or permanent extension of that would come through other means after a due process of consultation so there's no real change to if that's if that was the question you're asking. The last panel was in before you have heard quite a quite strong support for the legislation from the 32 agencies from both the crown prosecution service and the courts and the question that i put to them was that they feel that you know the progress that they'd started to make and i think you know as i'm sure Katie Clark will go into i'm not trying not to step on her toes you know perhaps you know there wasn't as many virtual trials as we'd expected through the pandemic but there's a clear desire to still move in that direction and certainly the two witnesses that we heard felt that they feel that the legislation is needed in order to allow us to continue to move in that direction so i guess that but it was a follow-up question to the others but i think you have answered it well. Just to add though that of course and i've said what we want to try and examine the means by which you can get that increased evidence based and i think it was Mr Greene that asked about pilots and so on as well as the crown office and the court service we would have to have the judiciary lord president in particular in advance of any legislation being supported of that he has a very if i do say so i keen interest in seeing innovation happen especially in relation to digital technology and some content would have his eagerness to help with that but it would be he would have to permit further either extension of the current basis of the trials or any pilot that might take place beyond what's been done already but you can see that in the report from sheriff principal file as well there's an eagerness there to examine that and we will certainly be responsive to that. A short question really picking up on the comment that it's for the judiciary to decide could you just really confirm that if the government felt that virtual trials at summary level were successful that you would come back with primary legislation if you wish that to be a permanent change? Yeah i think i said that already it wouldn't be through this process which was for the pandemic but yes of course if we and we're actively involved in that dialogue just now with the judiciary as well there are two routes one is a practice note from the judiciary and but that would only take it so far i think it's fair to say the preference of the judiciary would be for primary legislation. The last budget the Scottish Court and Tribunal Service received 10 million pounds less than they requested is that consistent with the urgency that the backlog requires? Yes we had a number of discussions i think it's probably true that a number of different parties across government and perhaps even across society received less than they would have hoped for from the budget that's the nature of the budget and the fact the cut in the budget which we've had we've now had about 10 years of austerity but there are still and that builds up pressures over time of course it does which we've tried to respond to but no we worked very closely with the court service on the budget and the Crown Office separately negotiate their budget with the finance secretary as well so that's for them to answer in relation to that but i'm confident given the budget and the constrained means which we have is the one sufficient to allow the court service to do what they intend to do not least in relation to the backlog okay thank you okay thanks very much we'll just now just watching the time we'll just now move on to some questioning around time limits and then we'll move on to we'll come back to early release so hand back to Jamie Greene okay thank you i will get in that order then give me a second i was expecting to be asking questions about early release don't have to at all i haven't got a huge amount to ask about time limits other than i'm sure the cabinet secretary has already listened to some of the concerns that have been raised about it i think i re-iterated in the last session the need for extending time limits to ensure that cases don't expire time out in any way no one no one wants to see that but there is a there has been concerns raised about the length of time and the possibility that these may maybe a permanent feature rather than a temporary one because of the nature of the backlog do you have any views on why you may need a long-term power to extend the time limits given that the limits proposed go way beyond anything ever experienced in the Scottish legal system and in some cases beyond international norms standards or even laws i think first of all i think this is one of the most serious powers that we're looking to extend and i wouldn't have just come to that conclusion myself we've had very strong representations from justice partners that this is necessary just now for the situation out to find ourselves in relation to the pandemic and of course it has certain safety valves around anybody held for longer than normally would be the case on demand has the ability to challenge that as do others so no we would not want to extend this beyond it being absolutely necessary it's these are fundamental questions about people's right to liberty i acknowledge that so we think it's absolutely necessary just now i mean that's in reference to people on one but various other time limits some of which of course go the other way so allowing people longer if they are say due to appear in court but can't because of contracted covid and i think yesterday we saw a live than a half thousand people in scotland contracted covid so it's not a theoretical possibility so it is about trying to make sure that we can make the justice system work and that we can ensure people's safety so i suppose in summary i would say that we recognise these are very substantial profound powers and we wouldn't want to have them for any longer than is necessary but we continue to believe not least based on the representations that we've received from those in the justice system that they are necessary and not least i would say and it would be for her to answer from the lord advocate who is obviously the person that is charged with guaranteeing people's rights but she believes this is also necessary i don't know if any officials want to say any more about that i think is the as the previous evidence session said it's more about providing more time to spend on cases than on procedural matters and that's a key part of this and as Kevin said he outlined they're not there for a permanent basis it's a longer extension for as long as they're required around around the backlog so you deem it a proportionate power to request when will this power expire is that also in the sunset clause of 2025 yes yes though based around that so that annual review gives us that that's that if you like stock type pointed to assess and evidence back what that's delivered and why they may be required on that point or not i'll need the annual review even in advance of an annual milestone it's possible for the government to and for the committee to request if you think the situation is changed sufficiently to request that those of the government that those those powers are no longer held yeah i guess the general commentary is that in on the 21st of march virtually most if not all covid related emergency measures will be relaxed in scotland therefore why ministers need another two and a bit years of powers to extend time limits other than simply as a result of the backlog so therefore it's not necessarily direct health emergency related power to hold it's one that's simply a means to an end to clear the backlog and share cases don't time out which i think is a fair criticism i'm not sure i do you wholly agree with that i think the backlog is a direct consequence of the pandemic and it's there for something that we can legitimately try to address through these powers i've said before that in relation to virtual courts we would have a beneficial impact obviously in the backlog but it's not principally for that reason that you want to pursue them but i think in relation to this these powers are taken to address the covid situation and that includes the backlog and i think it's legitimate to do that okay thank you for that on the early release issue i'm pleased to be able to come back and ask a question thank you governor so how many people exactly were have been released earlier than the current statutory automatic area release details and what was the nature of their term in prison length of sentence average for example what type of offences would they have been in prison for if as we heard from one of the other panel members they tended to be people serving 18 months or less then presumably they would have been early released at nine months anyway so how much did they actually serve over their sentence before they were released that's perhaps the second part of my question well that would obviously vary from prisoner to prisoner but i would ask jennifer she's able to give the figures that have been mentioned they were i'm sure they've been reported to parliament previously but i don't know if you've got them to hand jennifer thank you so we've used this power once as you know in may 2020 and that released 348 prisoners um i can quickly go through who that didn't didn't cover if that is of use to you perhaps with the benefit of time we could write to the committee in advance of our preparation of the stage one report that we can analyse that that's helpful thank you um and going back to the answer previously given around reoffending i get the impression that from from anyone that there was an expectation that a cohort of them would reoffend anyway due to the nature of the length of their sentence or the fact that they had not been in prison long enough to be rehabilitated for want of a better word um in that case knowing there were such high rates of reoffending in that cohort of short term prisoners why would they have been released early that's the cabinet secretary first i don't say we had an expectation but i'm saying if you look now at the incidence of reoffending i think it turned out to be around 40 of those prisoners and that wasn't all reoffending that was people going back to custody and as i mentioned sometimes that'll be for reasons other than reoffending um the point i made was that if you take the short sentences the average reoffending can be between 50 and 60 percent um so the fact there was 40 percent um it's not an expectation that people reoffend but it's perhaps not surprising that level of reoffending and i think that in itself is an argument for more effective community justice disposals which allow us to deal with that because we know from the evidence that we have that reduces the likelihood of reoffending and it maybe would have been useful to have had the reminder of the categories of prisoners who were released how close they were to the end of their sentence how long the sentence was i think it's 18 months or less sentence but yes it is the case that people who've been released from prison sometimes reoffend and that's a higher incidence when it's people in short sentences and it's a legitimate point to see if prison service has the time to deal with somebody who has offended over a greater period the prison service would not have been expecting when these people were sentenced they were going to have to have an early release that happened because of the pandemic that doesn't answer the question the question is knowing there is such a high rate of reoffending why on earth would it have been a sensible decision to release these people even earlier than the automatic early release which are already debatable is at 50% of their sentence well if the question is why the due releases prisoners then we did that because of the pandemic and the consequences of not doing it we deemed to be unacceptable in terms of the constraints on our prisons because of covid the constraints on prisoners because of covid and the public safety of prisoners prison officers prison staff and people visiting prisons that's that's why we did this what about what about the public safety of the public rather than the public safety of the prisoners is that not taken into account of course that's why parliament debated it and I think agreed it I think it may have been unanimously I'm not sure but that's I think it's true to say if if what the member says you're balancing as covid has made governments and others do you're balancing harms and that's what parliament decided that was a better option to take so why do you need the power moving forward because the same situation could arise again in relation to covid and we think that's only really justifiable up to 2025 if we're talking about covid and it's a separate question about why you don't have that power on a permanent basis which obviously could be addressed to the UK government as well I'd imagine their response would be you can't always anticipate whether it's a public health emergency or some other reason so I'd imagine it'd be different answers in relation to that but the reason that we want it for this purpose is because we don't yet know the route path of covid or its variants thank you give me very much we're just about there I think I'll bring in Russell Finlay to ask some final question a question to pick up on this topic and then we'll cover all fiscal fines it's just picking up on the reoffending of those who were released early we know it's about 40 percent I think you said in your answer to Jamie Greene that the regular reoffending rates about 50 to 60 percent but the Scottish government figures from 2018-2019 show that reoffending rate within a year to be just under 30 percent so if indeed that's correct the reoffending rate for those released earlier is significantly higher I'm just wondering if you can clarify what where the 50-60 percent might have come from if that relates to a different cohort or or just explain those discrepancies yeah I might be asked Jennifer to come in but I don't know whether part of the explanation for the difference between 30 percent is whether that includes all releases from because I don't know the detail of it I haven't seen that but it might be useful to hear from Jennifer whether I'm getting the 40 50 60 and even the 30 percent whether those are correct yeah of course so the 60 percent is those prisoner serving three months or less the 61 percent the 50 53 percent is those who serve three to six months and just to pick up quickly on a point that both yourself and Mr Greene have made public safety was a key consideration when we determined who would be released so that was why we there are particular statutory exclusions on the face of the bill which are for more serious offences and within the regulations it was those serving 18 months or less and those who are within 90 days of their release and the reason that 18 months or less was selected is obviously the longer sentences you are serving the more serious your offending is likely to be and we also worked closely with the victims organisations and as a result of their feedback those individuals serving either as an aggravation or as an offence under the domestic abuse act anyone who was convicted of a domestic abuse offence or had a non harassment order was also excluded the public safety was a key consideration and determining who would be released and also as the cabinet secretary said the reason this was needed was because at the time there was particular pressure within the prison system and there were real there was a need to have that capacity within the system to enable people to shield and to have single cell capacity so it was not a decision that was taken lightly and there was really careful consideration around public safety considerations. Thank you and finally in respect of early release the prison service told us that none of the prisoners released earlier were tested for Covid and this was done to protect the public from Covid if it were to happen again would that change? I think the prison release happened I think just before I'd taken up office and one of the first things I had to do on coming into office was to read through the luminous tracks about public health and the framework which had to be applied to prisons so I think it's true to say that prisons will have learnt from that and they've heard that question and it's not the first time it's been asked so I'm sure we'll want to give that some further thought but I think there were good reasons in some cases for not testing prisoners but of course you want to learn each time you do something from previous experience. Thank you. Thank you very much. I don't think there are any more questions so in that case I'll just bring this part of the meeting to a close and thank you very much indeed to all our witnesses for attending and we'll just take a very short break in order to change over our witnesses. Thank you very much and welcome back everybody. The next agenda item is consideration of evidence on a negative instrument. The prisons and young offenders institutions corona virus Scotland amendment rules of 2022 and I welcome to the meeting Keith Brown, cabinet secretary for justice and veterans and Jamie McQueen from the Scottish Government legal directorate and officials attending online today. We've just got Alistair Pardy director of operations of the Scottish Prison Service and I refer members to papers 3 and 4 and I'd like to invite the cabinet secretary to make some brief opening remarks. Thank you convener. I will take if I can just a wee bit of time just to lay out some of the provisions here just that might make it easier for questions. The prisons prisons and young offenders institutions corona virus Scotland amendment rules 2022 SSI extends the application of certain modifications made to the prison rules in response to the pandemic by the prisons and young offenders institutions Scotland amendment rules 2020 for a further six months to the 30th of September 2022. When I appeared before the committee in September about these powers I spoke of the need to ensure that the prison service was able to take all the necessary measures as we approached another winter during this pandemic. Of course neither committee members nor I could have predicted the rapid emergence of the Omicron variant only a few months later. That's left no doubt that it remains the case that the government must ensure that the prison service can deploy precautionary and protective measures as necessary in response to this on-going and unpredictable pandemic. It's therefore essential to extend the flexibility afforded by the previous rule amendments in order to ensure that we can keep those living, visiting and working in our prisons safe. I didn't remind the committee that prisons are complex settings with a significant number of vulnerable people. While the current rule amendments have been enforced, the Omicron variant has brought peaks of around 150 cases to the prison estate in January and staff absence rates of 9 per cent. We continue to see Covid cases across the prison estate and as at Friday, the 4th of March last week, there were 126 positive cases among 11 prisons. Consistent with the current SSI enforced, the powers being extended to the 30th of September are the powers that allow governors to suspend or restrict if necessary and proportionate, in-person visits, purposeful activity and recreation in response to local outbreaks, the powers that provide for extended timescales in relation to the isolation of large groups of individuals, so governors and local NHS partners have the means to comply with Public Health Scotland and Scottish Government advice. This includes isolation of those who are symptomatic or who have been in close contact with a person who is symptomatic, those who are identified as close contacts of a person who is symptomatic or those who are new admissions where that may prevent a Covid-19 risk. The ability for governors to extend a period of prisoners on home leave for up to 14 days from the normal seven days where prisoners advise they or that someone in their home has coronavirus or has developed symptoms of coronavirus. In advance of laying the SSI members will be aware that the prison service wrote to stakeholders to seek views on the extension of those powers and those responses have been published on the SPS website. I am aware that stakeholders and members have concerns regarding the impact on human rights and that there have been recent calls for transparency in the reporting of why and how frequently the powers are being used in the estate. As I reiterated in September, those powers are being and will only be used as precautionary measures and as a proportionate and necessary response to localised outbreaks in the prison estate. Decisions on their use will remain subject to multiagency decision making and public health advice and remain subject to independent scrutiny by HM chief inspector of prisons for Scotland. Despite the vulnerability of those in prison to the highly transmissible Omicron, the powers have not impacted on the vast majority of the prison population since October and the prison services providing as full a regime as possible. The inspector of prisons in her summary report of the Covid pandemic and emergency liaison visit report published in January has commented on the proportionate way in which restrictions have been applied. She says that the overwhelming impression was of a calm and orderly atmosphere in prisons and regimes that were restricted but safe. It was also clear that prisons were working hard to provide more opportunities and reduce restrictions wherever possible. I am aware that Theresa Methurst wrote to the committee last week with a collation of high-level information on the use of the current powers since October 2021 to February 2022 and I am sure that members found that helpful. It set out the proportionate use of the powers in seven prisons for a variety of reasons in response to local outbreaks. Ms Methurst has helpfully committed to the provision of further high-level updates to the committee on use of the powers as requested. Lastly, with regard to human rights, I should make clear that Governors are already under a legal duty to act compatibly with human rights in the discharge of their functions and they can only use those powers where it is necessary and proportionate to do so. It is the SPS position that these amendments have a positive impact on protecting human rights. In terms of articles 2 and 3, the rule changes are designed to help SPS to prevent and reduce the risks of the virus spreading within the estate and without the availability of those measures, the article 3 rights of the prison population could be engaged. SPS also recognised the potential to engage the article 8 rights of prisoners when utilised. However, it is their view that the powers can and are being applied in a proportionate way to have the least impact possible among prisoners' article 8 rights and, thus, they do not breach those rights. To conclude, the draft instrument provides for precautionary powers essential to the Scottish Prison Services continuing response to all unknown eventualities of this pandemic, whether nationally or locally. The emergence of this winter's new variant to show me cannot be complacent given the vulnerability of the prison setting to coronavirus I would just say that in relation to the assurances given that this is being applied in the proportionate way, I think the effect of this and other measures is demonstrated by the much lower levels of Covid instance than certainly many of us feared at the start of the pandemic. I'm happy to answer any questions, convener. Thanks very much, cabinet secretary. That's very helpful. I think what we'll do is we'll go round the room, but I'll kick off questions, if I may, just with a general opening question around the justification for the six-month extension. Given the removal of restrictions in most other areas and the fact that things are opening up, that is in the context of, we know that there are still cases and you mentioned earlier on the numbers that we've been seeing just in the last week or so. The pandemic is very much still with us, but I'm just wondering if the proposal to extend the provision is slightly out of sync with what is happening in other areas and whether or not this reflects the Scottish Government's current guidance around coronavirus and restrictions? I'll start to come on this as well, but it's certainly true to say that I think I mentioned in the previous evidence session that we applied additional guidance beyond the Scottish Government guidance through Public Health Scotland and others, a huge number of different provisions of guidance. That was done in recognition of the particular circumstances that prisons are. There are by necessity confined spaces. Again, if I remember back to the pandemic, not that I was in government at the time, but I think everybody was very fearful of what might happen in prisons because of that. They will have their own necessity for taking action, which might not be always completely aligned with the general population, which is able to take other measures. That's the general rationale for it. I have a follow-up question about the actual process of assessment of where a governor or the decision-making that a governor and others makes. We know that the decisions around imposing that provision are very much public health-based, but I'm just interested in the actual process and how it is informed. Can there be some of the detail of that risk assessment process? I would say that it is best to hear from Alasdor who will be familiar with that process within the SPS. However, there are some things that come back to government, so some restrictions that might be applied if they seek to extend them will come back to government for approval for that. However, as to the internal processes, perhaps the final succulents? The instances in which the precautionary measures are applied for short-term measures always come through our incident management teams and our public health colleagues will advise us on that. The decision-making point starts there between the local multi-agency team, the governor, and the risk assessment that is made to try to put a stop or put a firebreak in towards the outbreak. That will then look at what is required within the local outbreak and the establishment, and there will be certain measures that will be proposed by our public health colleagues to stem that flow and the outbreak. That starts the decision-making. The governor will then look at that, look at the risks, look at the proportionate impact that it would have. Can it be localised to one area? Can it be contained to a wing? Can it be contained to certain specific areas and then make that dynamic risk assessment based on public health advice? He will then touch base in with himself and the prison's directorate and talk through what the potential restrictions could be and the likely timescales that they will take effect from. The decision that will be made thereby by the governor is also tuned into our national coronavirus response group to have active information and up-to-date evidence from across the country and public health colleagues about the likely impact that they could have on their establishment. Based on that, they will make their decision. We will then keep it actively under review between the governor and centrally SPS for how long that could last and with our public health colleagues. It is stopped as soon as the proportionality is not required. We stop it. That is very helpful. I will hand over to Russell and we will work our way round the room. The inspector of prisons has raised a concern about a lack of communication from the SPS in respect of the use of those powers and the lack of an ability to properly, externally monitor the decision-making and the implications of what happens. Is that something that can be improved upon? I suppose that that is a question, first and foremost, from Mr Purdy. I say first of all that I read out the testimony from the inspector, which was extremely positive about the prison services applying those regulations. Of course, it should be the case that she should have the information that she requires but I do not answer what you want to add to that. Thank you, cabinet secretary. We have regular updates with our Her Majesty's inspector following any outbreak and we are always open to learning as you would be because throughout the pandemic lessons learned has been something that we have tried to integrate into all our practices so we minimise the impact on our population. We have open meetings monthly with Her Majesty's inspector team and they have regular inspections day to day by their independent prison monitors. We are open to learning in any way that we could improve on that. I have not got any specific questions that have not already been addressed by the cabinet secretary. I mean, it is sort of a thought, if you like, rather than a question. It is not obviously not ideal to win a situation when we are looking to extend these things but I think that we are all in the same boat here and we are living in really difficult times and I think that, as you have already highlighted at the start, the pandemic is still with us in certain areas where people are living closer together, such as prisons. We still need to err inside a caution so I have got no specific questions. Thanks very much. Jamie, would you like to come in? Yes, thank you. Just some fact-checking questions. First, what is the current prison population in Scotland? I know that it changes on a day-by-day basis but the light of snapshot. Either as a number or percentage, what percentage of those inmates currently have Covid? We know the figures for wider society. Do we know the figures for the prison population? I think that I mentioned the figures at least from the 4th of March in an open statement but you can check back and confirm that. I will take my stab at the prison population and let's figure out so that there are 7,502 or three but I am happy to be corrected on that. I think if I can just check my statement I will tell you exactly what the numbers that are currently have Covid unless you have that right to hand. I don't know, it's not a rhetoric question, I don't know the answer, I'm sorry I missed it. No, sorry I meant Alison if you had it right to hand but I have it here, I read it out earlier on. I do, Government Secretary, if it's helpful. It's actually increased from the briefing that you had, it was 126, it's now 159 today, yesterday, so it's actually increased this week again. You're absolutely right, the population sits has sat just roughly 7,500 and just over for the last month. Okay, I may be continued then with Mr Purdy, he's got all the facts, I've been apologised to the Government Secretary for not jotting it down but I'm glad to get an updated number. How do you think that compares relative to wider society? Are you finding that you're able to contain cases more easily in a prison environment or is it simply more difficult due to the nature of the state? What effect has any relaxation on some of the restrictions that were needed during the temporary Covid measures such as visitation or people being out on licence or temporary release? What effect has any relaxation had on the relativity of the case rate versus the population to say for example when restrictions were in place? Are we seeing a marked proportionate increase in the positivity rate as a result of relaxation or not? Maybe just Mr Greene, just for some context as well through the Public Health Scotland, the prison's advice is actually a stepped up approach from what the community restrictions would be. We've kept in many of the restrictions and measures because of the high-risk nature of the environment. For example, distancing, isolation, hygiene and testing have been of a higher standard or proportion than the population. We have maintained that and that's been an attempt to try and restrict the transient population from community back into custody as well because that is a key risk area for us as well. We've maintained many of those procedures in an attempt to do that and we continue to do that. To answer your question, it still poses significant risk because of that transient population through the criminal justice system, back into community and back into prisons. We have seen it in line with the community in terms of the variants, in terms of the peaks and the troughs. We have been largely in line with the public omicron and the previous Kent variant and the variant before that, back to March 2020. That's very helpful and your analysis of the differences is helpful as well. I guess my other question is more a wider one to the cabinet secretary and that's that if we, as a society, are to use the first learning to live with Covid in the sense that, as you said, there were 11,000 cases. At the same time, we are also heading a path of moving away from restrictions to the point where we hope that life is as back to normal as it can be, but Covid will still be around. That doesn't seem to be the case in the prison environment where they are maintaining higher levels of restrictions relative to wider society. So, I guess the question is why is that a proportionate use of temporary powers if it is no longer a temporary emergency and simply a long-term pandemic or indeed endemic situation that we're living with in society? I think for the, I think really straightforward reason that there are boundaries, literally boundaries, which apply to the prison state which don't apply to wider society. I think it's true to say that no society caught up with the pandemic would have had their public estate, whether schools, hospitals, prisons, as they would like it to be for a pandemic in terms of ventilation and so on as well, and that will be no less true of the prison service, some of the prison despite the substantial modernisation that's taken place over the last 15 or 20 years is still, some of it is still Victorian. So that's a constraint that they cannot get passed in the same way the society can do at the wider society. We can all do things, change the behaviours, change where we go in a way that prisoners and prison officers cannot do, so that's why they have a higher level and the consequences of one person getting it can be a much faster transmission within an enclosed environment such as a prison. So that's the main, I don't know if you want to add to that, also that's the main constraint that I see, and that's why we had right through the pandemic a different standard as Alan Sir said that we require prisons to meet and I have to say I think it's been really successful, and also just if I can, whilst Alan Sir's on to acknowledge the work and the pressures that the prison service have been under during all this as well. I can't say, all I would add to that is it's the balance of the four harams as we know that we'll be trying to do to try and provide people with that meaningful regime and activity and try to address offending behaviour whilst allowing people to be free as possible, but within a constricted environment we will realise that households are much bigger than they are in the community and the spread is significant. So it's balancing the harms as well and making sure that safety of everybody, as the cabinet secretary has said, who lives, works or visits the prisons is our paramount front of your mind. Thank you, and just one last one is will there be any improvement in the transparency around the frequency or impact of powers as they're used on a case-by-case basis given that they are used in different ways and different establishments? One of the HMIP and other stakeholders who've written to his expressed concern around was the issue of clarity and transparency over how and when the powers were used and therefore moving forward if there remain features and powers that remain if that will be improved for the benefit particularly of the families of those who are in prison. I think that's an entirely reasonable request. I think it's maybe a bit distinct from what Mr Finlay raised in terms of the inspector. It's not having the information that she was looking for. For my point of view, I'm happy to see that that does happen. I think obviously when lockdowns happened very unexpectedly that was probably more difficult to achieve but there should be no reason now for not having the maximum possible transparency given the fact that it's prisoners, but their rights are being if you like affected by this. So I think that transparency is legitimate and certainly I'll do what I can and I'm sure the SPS will as well to meet sure we have that. Thank you. Thank you cabinet secretary. You spoke about the human rights considerations and I presume in particular you'd be thinking about article three and whether these requirements amount to inhumane integrating treatment. Could you perhaps outline what you feel you could do in your role to make sure that there is proportionate action taken by the Scottish Prison Service and Governors in particular and how more resources could be put in both in terms of the transparency issues that Jamie Greene was talking about because the Scottish Prison Service did speak about systems issues but also so that there is an awareness in prisons of the importance of these human rights considerations? I believe that they are. They figure in the minds including individual prison officers, not just Governors, about the rights that prisoners have but you've mentioned some of the assurances that we have around that so you have the inspector who's able to challenge where she believes that prisoners rights are not being observed. Jamie Greene has asked for the assurance around transparency, making sure that when it's done it's logged, people know when it's done and why it's been done and when it finishes and the reasons why it's finished and beyond that I think it's also true to say that we can and I'm sure Alice I could do it more effectively than I could although it's Jamie that's the expert on the interplay between different rights. There's a different things which the Prison Service has tried to mitigate the impact of that so in cell telephony for example has been a big boon to prisoners not without its issues of course but so I think that shows that there has been a recognition that these are extraordinary measures which are taking which do impact on prisoners rights and we've tried to make sure that's been mitigated but there are any number I think of checks on that and if we can increase that by responding to what Jamie Greene said in terms of transparency then we should do that. I think those are the reassurances that I would give. It might be worth hearing from Jamie who's the expert on the interplay like yourself and sure on the rights affected. Yeah well I think one of the things that it is well to add is that the Scottish Government does have guidance that's produced with Public Health Scotland and SPS as well around sort of the management of Covid in prisons as well and in terms of the article 3 there's a all of the human rights aspects of this. There are tensions between them obviously in terms of the prisoners access to meaningful activities or purposeful activities rather and also protecting them from the virus sort of ripping through the prisons in a kind of less controlled way anyway and so those balances are always have to be in the mind of the decision maker including Governors because they are bound to act compatibly with the European Convention on Human Rights. Can I ask the cabinet secretary what his understanding is how in terms of how the prisons differentiate between different types of prisoners so for example during Covid children in prison have been subject to the same measures to combat various infections as adults. What's his understanding in terms of how the prisons balance those rights and look at individuals and particularly individuals who may be more vulnerable? I think before going to the specific example you raised about children under 18s in general terms you'll know and I know the committee has visited prisons so you'll know this first hand especially from having been to Salkton prison that there is a big balancing act to be done not just between vulnerable prisoners of different kinds but also between sometimes competing series of nice crime groups as well so the prison service is very good at doing that it's not without its tensions and its problems of course so they've done that and that will include looking after the rights the safety and the health of vulnerable prisoners. In relation to under 18s of course we've got a much much smaller number of those now I think we're down to about 14 from perhaps 200 plus in 2006 but they still are and they are put in prison by the courts that's who decides that they go there rather than to another alternative provision and it's my understanding perhaps as best to hear from Alistair is that they as you said will have the same restrictions although they are based employment which is not currently full in fact far from it so maybe that provides some more latitude but maybe it's good to hear from Alistair on that. Thanks cabinet secretary yeah they are there's a very small cohort of we're held employment and the capacity employment helps us to allow to manage a virus outbreak there more effectively so we don't have to impose restrictions or precautionary measures as we would in other establishments but we do because the committee will know that the virus does not discriminate it's actually it has gone through our whole population and it has impacted on the young people in our custody employment simply because the fact that they are open most of the time we have had an outbreak and that then spreads to the at the time there was 16 or 17 of them it spread to them all but the capacity we have in employment allows us to manage that outbreak more effectively and hopefully the high level information that Mr E's message provided to the committee in her letter of the third of March will kind of outline that employment has not been a one of the establishments or the young people that have had significant impact from the virus but we're always alert to putting the same protective measures in for the young people as any other classification of prisoners across the estate. Thank you and we've been given information as to how the powers have been used since October 2021 and as the cabinet secretary knows the buck stops with him and I just wanted to ask to what extent is he advised of steps that have been taken on a regular basis so he's able to give that political oversight so if that he had concerns in terms of how the legislation was being implemented he was able to take action or express those concerns yes a very regular update which we get which goes down to individual prison level which gives at least during the if you like the worst of the pandemic the level of increases in individual prisons the movement between wings when the wings got to be isolated it also talks the updates I get talk about new prisoners coming in it gives some background on where they think the Covid might have started if it's somebody new coming in it gives details on the level of prisoners who have been vaccinated either ones twice or three times and also it gives levels in terms of testing also gives levels in terms of testing for prison staff as well so pretty detailed and regular accounts I can't think of a time if I have lots of questions to ask and it features into other systems which the government is in place generally for the management of the pandemic but I can't think of any apart from asking for more information if I had to intervene to if you like impose a political kind of steer on it sure but when these powers are used you aren't informed that they have been used in a particular establishment well whether it's the case in every single one every single power know that if there's a movement safe for example for a wing to have been closed down or people to be isolated in that way or whether there's been things like a move to double shifting which means there's more purposeful activity that can take place I'm advised of those things yet thank you thanks very much before I move on to Rhona I'll bring Rhona in just as our final questions can I just pick up on the you're speaking there about self isolation in some of the measures that are required to respond to that I'm aware that Scottish prison service statistics from the eighth of this month a couple of days ago said that there's around about 1140 prisoners self isolating at the moment which in the context of the overall prison population seems quite a high number I'm just wondering if that presents additional challenges in terms of the day to day running of prisons I don't know if that's maybe something that Mr Prowdy might pick up yeah probably Alasers best place but just to say about that number which also will be able to confirm or otherwise of course that includes quite a high level of remand prisoners for reasons that we're all aware of and also the moving in and out of prison so the prison service is more susceptible but it's not at all immune from the wider increase that we've seen certainly over the last week or so but Alasers would have more detail on that yeah thanks cabinet secretary yeah govina that number is correct in terms of those isolating and that simply is a result of the households being larger and it's precautionary measures for to make sure that anybody who has a close contact anybody symptomatic or asymptomatic and they are as isolated for a shorter period as possible so that we can keep the households safe it is it does cause problems as well because it clearly restricts someone's individual activity within the prison on that day or for a number of days until we can make sure that they're safe and that the virus has been cleared or as or the areas as safe as it can be so it does cause operational difficulties in terms of that number our public health guidance for prisons as I mentioned before places are again a burden on us in terms of our isolation different from the community as it is just now simply because it's a high risk residential area and that's to really protect the article three that we talked about earlier to people's health, safety and human treatment so we do have high isolation numbers just now that fact thanks very much that's very helpful Mr Perdie I'll just bring in Rona just to ask some final questions thanks thanks my question is very much in the same line as Katie and the cabinet secretary has answered most it's about purposeful activity and exercise and the briefing we got from Theresa Medhurst shows the very different the differences between the prison estate and you know and reading the notes it seems to be mainly staff related and staff absences that are a major factor in this so I wonder if Mr Perdie could maybe just confirm that to go on the record and also to ask was there ever any thought given to perhaps sort of drafting in retired prison officers to cover temporarily in situations so that the you know more activity could be given yeah thank you and yeah as and you will see from the the outline high level that it has been acute numbers of staff who were off at peak times specifically during the the Omicron as well we have transferred staff from other establishments who are not experiencing outbreaks to other establishments the risk in that is that we may well be exporting the virus from one establishment back into the family home or into the community so we have done that on several occasions and we continue to use that as one of our kind of contingency plans to keep establishments functioning so we don't have to take the precautionary measures and set aside purposeful activity or indeed visits that we know that are so important to the rehabilitative program for for our people and our custody in families thank you that's fine thank you very much okay thank you very much everybody and that brings this part of the meeting to a close again thank you to the witnesses for attending and we'll just have a very short break to allow for a change over of officials thank you very much thank you very much everybody so our final item of business this morning is consideration of the service and case management system used by social work and prison staff to assess risk management in the justice system and thank you to the cabinet secretary for justice and veterans for remaining for this agenda item and I also welcome to the meeting Cat Dallrymple deputy director community justice of the Scottish government and I refer members to paper five so in light of the time available I'd like to move straight on to questions and I want to just ask members if they would like to indicate if they'd like to ask a question I'll take Russell first and then Jamie thank you very much now cabinet secretary understand that one of your responsibilities is to consider first grant temporary release applications for those serving life sentences it's a two-prong question and the first part is how many of these have you had to consider in your tenure and the second part is how many of these were based on the incorrect risk assessment due to this problem I should say I think I'd mentioned in response a similar question during the statement last week I would I hope to be able to give a reassured response to Mr Finlay and I should say I have not granted any first grant of temporary release however it's also true to say that for a number of years now that function has been carried out by the minister and the justice hopeful so in this case by the minister for community safety and having carried out a reconciliation of the sps system with the identified affected cases eight cases where first grant of temporary release have been granted were found these have all been looked at again and I'm able to confirm there are no immediate or concerning public protection risks highlighted although these eight cases will be further reviewed by the risk review group which I mentioned last week in a statement to provide further assurance thank you another question of this okay yep now presumably some prisoners will believe that they may have suffered a detriment by being kept in prison longer than the risk assessment might have suggested they should are you anticipating any form of legal challenge from prisoners given how litigious they can sometimes be but if there was to be a legal challenge it'd be for others to take that decision but I think the important thing from my point of view and from the justice portfolio's point of view is to make sure that we can identify that if that has been the case and that's why I've mentioned previously about the risk review process that we're carrying out it's quite a plenty detailed and technical process there are different layers to it but it would be very thorough process I don't know whether it's possible to hear from Katas to how else that's going to be carried out but we as I should also mention it may well come up I mentioned last week we had 265 I think cases where we that were open we were concerned and we've now been able to check just as of today or certainly yesterday every single one of those cases and not one is giving us rise for any issues in terms of public protection but on the process for other cases where somebody might feel that they've been wrongly assessed from my understanding and from the different layers of checks which are carried out that's unlikely to be the case but maybe a good idea to hear from Katas. Thank you if I could start around the first grant of temporary release I think there was a briefing paper that was provided to members yesterday which provides significant detail that's okay significant detail around the approach that's taken to those types of decisions and and hopefully that briefing paper will explain to members that in making that decision to apply for that first grant of temporary release it's a holistic decision from the whole risk management team and it considers a wide range of factors and available assessments and it does include the outcome of an LSCMI but it gives an indication across that whole risk management approach around the manageability of that risk within the community. So as the cabinet secretary has indicated there were 285 live cases that were identified in relation to the risk score and level issue and these have all now been checked in the last two were confirmed this morning so social workers have been absolutely amazing in terms of coming back and checking all these cases and they're confident in those cases that there's no live immediate or concerning public protection risk. In terms of the wider assurance in relation to the first grant of temporary release cases and those cases will be looked at because they're part of the 1317 cases that have been passed on to the risk review group that's going to be chaired by the risk management authority that group met for the first time yesterday and are agreeing in terms of reference there are a number of different organisations met on that group 11 I think different types of organisations right across the justice sector and they will assess any wider impact in any of these cases and if you think about the numbers I mean it's 1% of the you know about 1% of the numbers in the whole system and that is a good sample exercise in terms of that 1317 and if there is any impact assessed in terms of of their consideration of those cases then that I suspect will inform any future lessons in any future work that would need to be undertaken. Thank you I want to hold the questions I'm sure everyone else will say. Okay thank you I'll bring in Jamie Greene and then I'll bring in Fulton MacGregor. Thank you and can I thank the government for the briefing albeit 18 pages trying to digest overnight wasn't easy given the technicalities of this is a very technical problem but I just want to just get my head around the bigger picture we didn't really have a lot of time in the statement last week due to chamber pressures but this is a great setting to do so. Is 1317 the absolute maximum amount of cases that any IT glitches that have led to a wrong risk assessment have happened? Is that the absolute maximum or is it the case that there could be more but you simply need to do some more work to find out how many more and how far back the problem goes? So let me enter this. We've been lasing with a lasing with our IT provider on the second issue that the cabinet secretary highlighted so we know in the first issue that those cases are the ones that are affected and we've provided a high level of assurance around those open cases. Initial advice from the IT provider has confirmed the second alcohol and drugs issue and they've indicated that that's likely to have an overlap with the initial issue so there's still work on going. It suggests that there's a very small number of cases that will be affected as that error appears to retain information following revisiting of that score. So in order to address that we are working with the risk review group and professionals in the system to identify what additional level of assurance we are able to provide on the existing cases within the system. Now that needs to be a really balanced and proportionate approach because there is no suggestion that you know there's a significant number of these cases affected by that issue. We know we've got a high level of assurance already on these cases that are identified as having been confirmed and affected so we are working with the professionals to work out what is the best way to provide that level of assurance with the existing cases in the system and we're taking advice from the professional experts in terms of the risk management authority in terms of what that will look like but I should say that in terms of ongoing case management of individuals within a community there are a number of different points where a social worker will provide assurance around that LSTMI assessment so on the fact that there is now a known issue within the system that has been identified we have been told by all the professionals at any point when a decision is coming up about that individual. So a court decision you know preparing a parole dossier and a decision in the prison service around progression they will obviously assure the LSTMI assessment that that individual that they are confident in that LSTMI assessment because we know that whilst it you know no decision is based on that assessment alone it is part of that more holistic approach and then sorry. Sorry I appreciate this technical answer to a simple question but I haven't heard the answer yet is the problem so are you saying that sorry I'm getting a lot of feedback thank you. So sorry just to be absolutely clear the 1317 cases of which 1032 are closed cases and a couple of hundred are open cases there is the potential that there may be other cases affected by the and the second question that linked to the first is if this goes back prior to the IT centralisation project which the cabinet secretary said may have brought the issue to light in the first place then that would surely mean that for a number of years the system was getting it wrong so what a work has been done to identify how many other cases may have been incorrectly risk identified what do you think the scale of that might be are we talking tens hundreds thousands how many prisons have been released in the last 10 years I suspect it's a substantial amount so does the government know how many people may have been wrongly risk assessed prior to release not just current cases but those going right back 10 years. The answer to that is at this stage there is no suggestion that there are a significant number of cases affected what requires to be done is an end to end assurance process of that system going through every different functionality part and I don't want to get too technical and understand but it is technical risk assessment is technical and the 18 page briefing paper probably demonstrates that but the LSEMI there's the first part of the LSEMI which is a kind of screening tool and that she's predominantly for court social work reports and that doesn't have a risk score that's necessarily calculated that's a kind of eight question predominantly six of those are yes no questions and there are a significant number of those on the system and that we know from the identified issue extremely unlikely to be affected we can't see how they could be affected at this stage and thereafter once an individual is being managed and on a community payback order they're likely to go on to the more detailed LSEMI assessment and that is where the risk score is is is tallied up and comes out with a risk level and that's only part of that detailed assessment so there is there is that part then there is the secondary part of that which is considered structured professional judgment that is applied in relation to a number of different questions about that individuals criminogenic needs and about their pattern of offending about all their the wider information so that's the professional judgment that is applied within that secondary aspect of the risk assessment so that's not just a score and a level and then obviously there's a third part of the LSEMI which if if considered necessary by that professional they go on to do a risk of serious harm assessment so it's kind of three different stages and what we need to do is assure every single part of that stage through the IT and we'll be user led in that as well in terms of that ongoing review of those types of cases but that being said I think I'll need to check the fish report I think the language you used is that there's an expectation that it won't be a large number of cases but you don't know I think is the answer we don't know if there if 1300 is the absolute number that have been affected or if there are more if we if we start delving back into historic archives and looking at on a case by case basis which is a tremendous amount of work by the way of people who have been previously released where this system has incorrectly scored them when will we know exactly when will that piece of work be finished so that we have a much bigger picture of it so if I could be clear that there are two pieces of work that need to be on-going the first is the piece of work under those the 1317 cases from the risk review group and that will inform any future assurance that is required there are a number of different outcomes from that group they could assess given the holistic nature of risk assessment and the fact that lscmi is one small part of that or not small sorry one part of that then that's likely to inform any future assurances in terms of other old cases within the system if they assess on that and they are confident that there has been no impact then it may be that that provides a high level of assurance but that we will take our advice from that in terms of the experts and that's not something for me to sit here and and say would be appropriate because I'm not an expert in risk management and we need to make sure that we take proper advice on that and then we've got the wider review of open cases within the system and that is very much working with the IT provider and the professionals and the risk management authority to identify what will provide that level of assurance and public confidence in those existing cases I suspect it's not likely that every single case will be reviewed because there are automatic built-in review points as an individual is being managed so there are obviously when a decision point is up you would expect a professional to have a look at the LSCMI and make sure that it's assured and accurate and thereafter as I understand it from from the professional social workers that I've spoken to individuals are ordinarily reviewed on a three-monthly basis so within three months I would like to think that a lot of these individuals on these open cases would have had a case reviewed. Just to find the connection to the cabinet secretary if any of those people who are the language being used as live public protection issues or known public protection issues but can ask cabinet secretary are you confident that no one has been released earlier than they shouldn't have been under normal circumstances and if anyone has been released earlier than they normally would have been were it not for the IT glitch that any of those people did at any point in the past pose a public protection issue or went on to re-offend or end up back in the system out with what would be normal re-offending rights which we talked about earlier so I guess we're looking for a little bit more comfort that those who were released did not go on to re-offend inadvertently. I think on the one hand given what Katz said about the further processes that we have to go through it's right to wait for those processes before being absolutely definitive but I think two things if it's comfort that's being sought one is if you go through 285 cases and not one single one gives you cause for public protection concerns and the views of the experts that have looked at that's that's a good sign a good indicator of where we're at but it's not definitive and I'm not trying to pretend that it is and the other thing to say given some of the publicity that flowed from last week is LSCMI I think this was it may have been in the briefing I can't remember we've been other briefing that I've seen is almost like a general triaging tool whereas over and above that if somebody is a sexual offender or at high risk because of violence of causing pollution there are separate tools which deal with that that's not just LSCMI may be involved but it won't be the end there'll be other things which deal with that which I think should provide reassurance but can I just add a couple of points please can be because I know there wasn't time to take the opening statement but I sought within that to address some of the questions which members quite rightly asked of me last week so Paul McNeill had asked about and I think Jamie Greene made mention of it as well the technical nature of the update and I would hope that people will see both from the briefing that's been provided and from what Cat said how technical this is although I did specifically ask for the briefing for members to be as in plain language as possible because it is quite sometimes difficult to understand the different aspects of it I should say I also had a question from Stephen Kerr but I was asked when it first came to light and I said the 24th of January apparently the first person to see it was an individual in SPS on the 13th of January I may have said that as well but certainly I mentioned to Stephen Kerr the 24th the 24th is when Government officials became involved and started running tests in parallel with the system and I was advised as I said last week on the Friday previously and it came to parliament and I'll just say that in relation to being quick with that there was a case down south where they wiped 400,000 prisoners I think those prisoners were offenders records and there was no statement made to parliament down there until after the event I was very keen to make sure that we didn't do that and we came as soon as possible but one consequence of that just to get back to Jamie Greene's question is we don't all have all the answer we are working this through just now we're providing as much assurance as we can I think it's pretty substantial assurance given the 285 live cases which we have that have not produced any cause for public concern but I just wanted to make sure that the questions there's probably one or two others that were asked last week we have tried to deal with if not in the briefing I would have dealt with them in the opening statement and hopefully that's given some of the assurance as well. Much apologies I was just very very aware of the time hence going straight into questions but I'm sure that members are certainly very well to come back and answer further questions. Is that you Jamie? I'm keen to let... I think we'll just move on thanks. Katie I'll hand over to you. Just picking up on the point about other systems have you been able to work out yet exactly what the profile of the kind of cases we're talking about and in particular some of the more serious offences for example how many sexual offenders are involved and in terms of the huge workloads that's involved in reviewing the case how have you prioritised and have you been able to prioritise some of the cases that would cause the public most concern and perhaps if you could maybe outline in a lay person's language the approach that you've taken? Can I come in first on that because you raised a similar question last week and say I would have addressed that in the statement I think what's here should provide some reassurance so you'd asked about the kind of offences involved particularly around sexual offences and I was grateful for you raising that issue but the LSEMI is not an offence based system and doesn't record a type of offence. I've tried to explain it's a kind of generic system a kind of tri eye system which may seem strange but it's entirely consistent with the risk assessment approach and as we set out in the briefing paper it's a general tool that looks at general factors including potential offending but part of the judgment applied relates to the different part of the assessment to come into your question that looks at the nature of offending and provides structured consideration around nature. I know we've said this a number of times it's important to get across there are different elements to every risk assessment that takes place that element of the system does not have a score for example individuals convicted of a sexual offence will have bespoke risk assessments carried out likely focusing not just on general offending but on risk of harm which are particular to that type of offending so there are other processes which cover that and I think what we've done so far is to concentrate or you've asked about priority the 285 live cases so that's the priority we've taken so far and then moving on. That's why I asked about other systems whether you were able to use other systems that you have to pick out certain types of cases that perhaps may be of the greatest concern and whether that has been incorporated into the work that's currently ongoing so that perhaps some of the most serious offenders or the types of offences that would be likely to be the ones that people might be most concerned about with the cases that were looked at first. Are you able to do that with the systems that you have available to you? I would make an assumption that the professionals within the system know the type of offending from the individuals that they are managing and that's why we're working with the professionals to identify what level of assurance and what type of review we do in terms of any other open cases within the system so we will work with the professionals and the risk management authority to identify what those priorities should be and one of the messages that's been coming out from our social work colleagues is that they do want clarity in terms of what it is that we're asking them to do so we will make sure that we provide such clarity. So is it the case there for the serious sexual offenders or individuals that have been involved in serious violence would be the kinds of cases that professionals would be asked to look at first? It certainly could be but I think that the point that the cabinet secretary made is that looking at an index offence does not necessarily help you to understand the risk of an individual. You could have somebody on a relatively low tariff offence that creates a greater risk and you could have the reverse I've spent previous to coming to government 20 years as a procreator fiscal and I remember one case that I prosecuted on indictment that on the face of it if he'd looked at the index offence could have looked you know as if there were five breaches of the peace but it was clearly of a very sinister nature that case in itself ended up being referred to the High Court for a detailed risk assessment from you know risk management accredited assessors for an order of lifelong restriction to be considered in that case so it demonstrates that the index offence is not necessarily linked but in terms of public concern I understand that and that assurance level that we can feed in where the professionals tell us that that should be prioritised and we can feed that in. So you're asking professionals to look at their current and former case loads and to take a judgment as to any individuals that they may have concerns about and those cases would be prioritised? Well certainly we're working with the professionals we haven't asked them as yet because we're working with them to identify what the parameters are to make sure that we provide clarity on that. So you haven't actually asked professionals to do that yet? We had a meeting with them on Monday to try and work out what the parameters of this review should be and then we take advice from the risk management authority to make sure that they're content with what it is that we're proposing to do. So the concern was first brought to attention on the 13th of February although I appreciate that the full extent of the problem might not have been apparent at that point but as yet we've not actually got to the point where cases are being looked at by those who deal with this work is that the case? The priority has been on the 285 and that's what the professionals have been doing since we've identified the cases to them. They have been providing that assurance and the last two cases were reviewed overnight and the confirmation was provided this morning. The priority was the 285 live cases which have now been completed. That's the priority we set for those involved. I should say it's the 13th of January for Scane to Light, 24th of January for the test done by government and then leading up to 25th of February but just to go back to the previous point again about the types of offences that 285 would have been subject to the LSEMI which is why we've looked at those 25 but if they were for those that were sexual offences or high risk violent they would have been subject to a different tool which manages them in terms of that high risk as well so that's also their reassurance and what Cat's now talking about is how we go further and go back in time with these to make sure we're satisfied with the rest of the system as well. Cabinet Secretary, on the cases that have been looked at have you asked for a breakdown on the kinds of offences that are involved in that cohort? Did you ask for that information? I like Cat coming but a priority was to make sure there was no issue of public protection in relation to that and sometimes as has been mentioned already the index case for which somebody's first convicted doesn't give you the full information middle if you want to add to that. I appreciate that point that somebody may be a very dangerous individual but they may not actually have been convicted of any serious offences but many of that cohort would have had convictions and did you ask for that information? I don't recall that that information was asked for in the initial reassurance as soon as the issue was identified and it was the priority was checking that there were no concerning or immediate public protection risks. Thank you very much. I'm just watching the clock there. I just think it's probably very, very quickly, Jamie. Apologies, I didn't realise you were waiting to come in. If someone has been released, they've basically been released, there's no recall to prison for example, that's the first technical question. Is there anyone who's currently due for error release given that it is an automatic process for some sentences rather than an assessment based release who will be eligible for early release but may have been incorrectly risk assessed and if so will there be a moratorium on their release, automatic air release, if there is a potential that they have been wrongly risk assessed by the IT system? I think that what you're talking about is the release from prison and that short-term prisoners and long-term prisoners. If we start with long-term prisoners over four years, they're only released from a parole board decision and that's contained within the briefing pack. In short-term prisoners under four years, they'll be released at the statutory point of their release and I think it was highlighted this morning in terms of the statutory provisions around what they're obliged to take in terms of that through-care support. So they'll be released anyway even if they've been wrongly assessed, is that the crux of my question? Just due to the nature of the policy? The release date will be set as part of their sentencing in the first place. In relation to longer-term prisoners it'll be a decision for the parole board and they will have all the different experts there to provide that assessment at that time. I should say maybe it provides further reassurance to say that everybody's been made aware of this now so all assessments currently being done have been looked at in light of this and in any event it will be overtaken very quickly by the three-month assessment which prisoners and that's or not just prisoners but offenders in that situation will be subject to so even if we had discovered something this process is starting to bite whereby this is taking to account with future assessments that have been done if you follow me so the original court sentence handed down by the court in relation to a short-term prisoner and cap will correct me if I'm wrong as a former fiscal is set by the court so that we don't have the ability to change that. Apologies again for not bringing you in and then I'll bring in Rona. No thanks convener and apologies as well because I wasn't sure whether when I indicated earlier you took it as I wasn't wanting in or I was so it was also awful my fault. Obviously I would be really keen to come in and draw members' attention to my register of interest as before I became an MSP in 2016 this is exactly what I done for my work so the LSCMI is a system I'm very very well aware of doing several, I was going to say a week but more likely several a day and I was on the initial training in 2012 and the system changed as well so and I think that it's a very very good system for what it's worth as well but I wonder so I might be able to ask some helpful questions in terms of the LSCMI to the cabinet secretary you know I know you spoke a wee bit about this but would you accept that it's not just the LSCMI that's used and that there's a whole range of risk assessment tools so it's not as if you know perhaps to put members' minds at ease you know you wouldn't just do an LSCMI and say oh computer says yes so that means that that means this you know is that is that a point that has been made to you when you've been speaking to people? Yeah and I think last week during the statement I read out the different categories of professionals that look at this and as you'll know better than any of us Mr McGregor there's a whole list of experts you know that look at this as well as the tool that's mentioned and just to say that going back to Katie Clark's point you know have we asked for a breakdown in terms of the offences no we could do that and we'll look into that but the simple fact is the individuals the social workers and others know exactly what the offences are they're the ones that prefer apply the professional judgment and I think that's probably the most valuable part of the system is the professional judgment of social workers and others that look at these things with other experts to help them so it's a point I've made it a number of times it seems to be lost sometimes but Tim it's very important to realise how this is a part of the system and when you go into the other side of sexual and high risk offending there are other tools which are used for that in addition to LSCMI. Yeah and building on from then is in terms of the cases the cases that you have identified and have been working through have all of them that have been subject to the professional override that you were talking about in the chamber last week and I'll come back to be a bit about that but have they all been cases where the risk has been lowered from what the LSCMI said or not is that information you've got? Sorry could you just so in terms of the clinical override is that what you're asking and so I think the what we were able to confirm in those cases is that the risk level has changed in both directions and clinical override had already been applied in a number of those cases but not all of them. Yeah so that was actually the point I was hoping to make that you know to you know if the cabinet secretary wants to comment on the fact that the clinical override which I felt last week in terms of some of the questions that you can understand why that would be the case you know that it's about it's been about that the override bringing a risk down to what the LSCMI says but actually it's as likely if not more likely that you know if the LSCMI is indicating a low risk but actually professional judgment indicates higher risk that you know is a higher risk because actually put in and is that a point that I think I gave the example last week in relation to the issue that we have with the alcohol assessment whereby it seemed more likely that what was being done is somebody progressing away from alcohol addiction that may not have been captured below the lower score that we've been justified might not have been captured was example I'd given but the professional lower override and I'm saying this as a layperson I'm sure cat will correct me has now been applied again to 285 cases that's what's now happened the experts involved have looked at this and come back and say there's no public protection issues on the 285 that they've looked at and those are live cases what we now have to do as has been urged by others is to go back and look at previous cases before but it's a pretty new indicator about the level if 285 out of 285 come back and we have no issues but that's what we now have to do we accept that that's the interest of public issues on the literature of the lscmi tool is that that professional judgment and that override and facility is available when you look at the literature around all the different risk assessment tools that are available I thank you for that and in terms of the the override function which I think which I agree with you as a very important part of it does the cabinet secretary and officials accept as well that when those are used or utilised if you like it's actually quite a reverse process so I wouldn't I think I would take the opportunity to to say that you know I wouldn't I wouldn't want anybody thinking it be an individual social worker another worker sitting somewhere doing an override and then you know that that would be it it needs to go to several levels of management in most cases and then the higher management are going at a higher level of experience as well and also you'll have seen from seen the forums a complete you know a narrative around the justification of that decision in either direction so you know would the cabinet secretary take the opportunity to join me in terms of offering that reassurance? I think I was aware of some of that but not aware as you are of the detail of that and it does provide further reassurance it's not the case that as you say something takes from one computer system and that drives the whole process the professional judgment shouldn't be kind of rushed past it's a really important if not the most important part but as you're saying it's not just that professional that seems to be then checked again by others as well to make sure there's nothing that should be questioned and listened to it so it is a very robust system obviously we regret of course the two issues that we've had with the IT system and we have to learn from that and we will learn from that there'll be an ongoing process of going back with the providers to make sure that we try and cover this in future and make the risk assessment system as robust as we possibly can it is robust it has been these two issues with the IT system I've given us the concerns which we've addressed and come back to Parliament with but we want to have the most robust system possible and it's also probably worth saying that one feature of the Scottish justice system which has more people on demand and more people in prison than many other systems is we're not or we are rather or we could be accused of being risk averse given that so but we have to have the proper system in there and we should both be accountable for anything that hasn't worked as it should and make sure that we get remitted as quickly as possible and that's what we're now trying to do. In just one more very very brief question I hope I've been able to use my experience and this area to ask some helpful questions to the cabinet secretary that would maybe be able to reassure people out there but on the other side of that I'd also like to ask problem almost challenging question in that respect then in terms of the override or the professional judgment question it has obviously been an area where even way back to the training that has had question marks obviously over it in terms of people's feeling confident and that's why it's got that level of management experience in that around it but given what's happened it's very likely and I've been spoken to previous colleagues that people's confidence will have been impacted by this what steps are the government likely to take to support people in the profession to bounce back from this and to feel confident and not end up having more work as they try and make these decisions. I mean is it funding, is there resource issues there as well? There obviously will be a confidence issue now moving forward. With that latter point of funding I did briefly touch on last weekend we have made it clear that we're willing to of course respond to any requests for financial support which derive from needing more resources and more people to look at this but on the question about rebuilding the confidence I mean I think there's a number of levels so that one is the IT system itself so that would be IT people that we've now engaged with and will engage with others to make sure that that is right and as it should be and beyond that is I think as a number of members have raised the issue about going back in time to previous now closed cases and making sure that it operated as it should have done despite these IT issues in the past and those two things I think should help to provide that conference. We're also taking the opportunity to see if we can look for further improvements in the system as well as you should do at any point but this seems the right point to make sure that we do that as well. I don't really have a question because so many questions but just a very brief comment. Having listened to the evidence this morning having read the briefing note I feel very reassured and I feel my initial instinct that this is largely these decisions are based on a whole series of professionals and it's not so much about a computer. That's what I felt from the start and you've confirmed that so I'm quite reassured. I think just in the spirit of timekeeping we'll bring things to a close. I apologise once again for my sloppy convenership this morning for getting to take you in and not allowing you cabinet secretary to make your statement. You are of course welcome to make any additional final comments at the moment or share information with the committee in due course and on that note I suppose I would just on behalf of the committee just ask for a reassurance that the on-going review process that we've spoken at length about today is something that perhaps the committee will be kept updated on. Happy to give that assurance. It's a long-going process as you say convener so it may be worth more than one update as we go through the process but we'll make sure the committee are informed. My thanks again to cabinet secretary and yourself, Ms Doddampoll, for adopting this part of the meeting to a close and we'll now move into private session.