 Mae nhw'n diwrnwys ydych chi'n gilyddol aeth am y swyddfawr ar gyfer 67 ac mae'n dwybedwch i'n gilyddol i eivw. Y dyfod wedi'u varu. Ond wrth i ni i'n dwybedwch yn gwneud rhaid i wneud i ddoch yn gwybodaeth. Mae'n dwybedwch i ddoch yn gwybodaeth. Gweinidog, Neil Bibby. Thank you, Mr Bibby. Your vote will be recorded. The result of the vote on amendment 67 in the name of Pauline McNeill is... Yes, 46, no, 66. There were no abstentions. The amendment is therefore not agreed. I call amendment 15 in the name of Maggie Chapman. Already debated with amendment 67. Maggie Chapman to move or not move? Moved, Presiding Officer. The question is that amendment 15 be agreed to. Are we all agreed? Yes. We are all agreed. I call amendment 16 in the name of Maggie Chapman. Already debated with amendment 67. Maggie Chapman to move or not move. Moved. Thank you. The question is that amendment 16 be agreed to. Are we all agreed? Yes. We are not all agreed. There will be a division and members should cast their vote now. The vote is now closed. Point of order, Graham Day. Pause is my device. We didn't work. I would have voted yes. Thank you, Mr Day. Your vote will be recorded. Point of order, Rachael Hamilton. Presiding Officer, my app didn't work. I would have voted no. Thank you, Ms Hamilton. Your vote will be recorded. Thank you. The result of the vote on amendment number 16 in the name of Maggie Chapman is yes, 67, no, 47. There were no abstentions. The amendment is therefore agreed. I call amendment 68 in the name of Katie Clark. Already debated with amendment 67. Katie Clark to move or not move. I press amendment 68, which is the support of organisations such as COSLY to the vote, the provision of justice social work and the cuts to justice social work budgets. Thank you, Ms Clark. We agree. We agree. Thank you, Ms Clark. We don't agree. I therefore urge members to support the amendment. We just need the moving of the amendment. The question is rather that amendment 68 be agreed to. Are we all agreed? Yes. We are not all agreed. There will be a division, and members should cast their vote now. The vote is now closed. Point of order, Jamie Hepburn. I can't tell whether the vote went through. I would have voted no. Thank you, Mr Hepburn. Your vote was recorded. Point of order, Colin Smyth. The vote is voted yes. Thank you, Mr Smyth. Your vote will be recorded. The result of the vote on amendment number 68 in the name of Katie Clark is yes, 51, no, 63. There were no abstentions, and the amendment is therefore not agreed. We now move to group 2, entitlement to bail. I draw members' attention to the procedural information relating to this group as set out in the groupings. I point out that if amendment number 22 is agreed to, I cannot call amendments 69, 70 or 71 due to a preemption. I call amendment 17, in the name of Jamie Greene. Grouped with amendments as shown in the groupings, Jamie Greene to move amendment 17 and to speak to all amendments in the group. Amendments 22 and 23 in this group are largely consequentials in relation to the primary amendment, which is amendment 17. I apologise to members that this contribution is really the main one of today, from my point of view, because it relates to the bail test, which is the core of part 1 of this bill. I think whether we like it or not, and whatever your views on Governments using primary legislation to restrict parameters around the independent decision making of the judiciary, the effect of this section of the bill is one that has caused the most debate and, I think, consternation. I think I'd go as far as saying that it has attracted perhaps unusually widespread criticism from both the judiciary itself and at the other end of the spectrum those who represent victims and their rights. As currently drafted, it essentially limits the scope of a court's ability to refuse an individual bail. At the moment, judges as per the 1995 act have a list of criteria which they use to determine whether someone should be remanded or granted bail. This bill, proposed by the Government, changes all of that. The new bail test requires that bail must be granted only if both of the following tests are met. The first that the court deems that at least one of the criteria set out in section 23c of the original act, including, for example, things like the likelihood of absconding, risk of committing further offences, if granted bail, risk of interfering with witnesses, or otherwise obstruct the court of justice, sensible things that you would expect judges to consider. Secondly, now that the court must be satisfied that the accused should be refused bail in the interests of public safety or to prevent significant risks of prejudice to the interests of justice, it is no longer an or scenario. It is now an and scenario, and that is an important difference, the so-called two-stage test that we have been referring to throughout this scrutiny process. Here is the problem with that. There are questions posed by the judiciary itself as to the properness of such a move by a Government. There is a fundamental question here where ministers who, in my view, frequently rest on the laurels of the so-called independence of the judiciary when posed questions about such matters are very quick and keen to legislate on the other that will narrow those decisions. There are a range of views as to the efficacy of this change in its entirety. Some stakeholders seem to hint that judges will just ignore it altogether, doing what they always do, making the sort of decisions that they think is right, and that they always make anyway. In fact, Lord Carlyway stated that this bill, and I quote, introduces an unnecessary, cumbersome and artificial process without changing outcomes in bail decision making. That is extremely strong criticism from the highest judge in the land about changes to the bail test, and I think that that should be ignored at our peril. There was also a huge amount of debate about what constitutes the second test, this new test, the public safety test. Some argued that it was too narrow, that it would effectively bind the hands of judges and severely limit their use of remand, even where it may be appropriate to do so. There were quite substantive arguments about how, or even whether, to define the issue of public safety, and what effect will this actually have in practice on remand decisions and remand numbers. So what is the compromise here? Well, so far from the Government, the answer is that there has been none. Yet the committee's stage 1 report said that the factors that judges need to take into account would be preferable on the face of the bill. At stage 2, I proposed a simple amendment that changed the and in this test process to the or, thereby allowing judges more scope to remand individuals who they believe pose a risk to the complainer or other individuals. That was rejected by the Government, notably on a four-four split and on the casting hand of the convener. The Parliament has split, the judiciary has split and victims' organisations are split on this issue. That's why I brought it back today at stage 3. Amendment 17 in my name replaces the and, again, of that two-stage process, but instead inserts five conditions of reasons through which a judge could remand someone, in addition to the so-called public safety test, at least one of the following criteria must also be met. One, the person is likely to breach bill conditions. Two, the person is likely to commit further offences lost on bail. Three, the person is likely to abscond from court. Four, the person is likely to interfere with witnesses or obstruct the course of justice. And five, the court feels there is any other substantial factor that justifies keeping the person in custody. The fundamental question that the Government was either unable to or unwilling to answer throughout this process is what is driving the remand population in our prisons in the first place. Now, it must be a number of any of the following factors. Is it a result of the overuse or the wrong use of the bail test, the existing bail test, by sheriff or judges? It's a key question, but we saw no evidence of that. Is it perhaps due to the huge backlog in our courts, which is driving up the remand population, where many people are lingering in prison for months or, in some cases, years whilst their trials are delayed consistently? And we do have evidence for that, because Audit Scotland recently revealed that our backlog for solemn cases will not be cleared until at least March 2026, that's some three years away. Someone held on remand will be waiting their trial, and therefore their remand numbers will be higher. And the other question, I think, which is right to pose, is do we have a comparatively high remand population relative to the types of crimes those people are being remanded for? What do I mean by that? What is the proportion of people remanded, for example, for serious assault, attempted murder, sexual assaults, rape and other serious organised criminal offences, for example? And my point is this, is it the profile of crime which has changed, which has resulted in the inevitable action of a judge having or feeling that they have to remand someone? Now, the Justice Committee struggled with these questions to get below the skin of this issue. And as far as I can see, remand is already the option of last resort by sheriffs and judges. And that is perhaps why 8% of custody hearings in summary cases result in remand. 40% of solemn cases result in remand, largely due to the seriousness of those. If the system is not broken, I ask why change the bail test. And that's not just a question from these benches, it's a question that the judiciary itself is asking the Government to which the Government has not replied. I'm happy to give way. Pauline McNeill. I appreciate the member giving way because it's certainly on this point. And since you mentioned the Lord President's, I think, 13-page letter. Would the member agree that we put this very question to both Cabinet Secretaries about this not appearing to have the confidence of the judiciary who, as you say, indicated this may make no practical difference to the outcomes? And I wonder if you'd agree that the Pkittie didn't really get an answer to what was a 13-page full of substantial questions. Jamie Greene. No, we didn't. And, disappointingly, neither did they come and give evidence to us. And I would really have liked to have heard from judges and sheriffs in front of the committee at stage 1, as we gathered our stage 1 report. But nonetheless, they did produce an unusual 13-page letter which we can't ignore. And it's not often that the most senior judge in Scotland would criticise a change through the law like this in such a way. And the Government really has not replied. They either disagree with Lord Carlyway, which is fine. There's nothing wrong with the Cabinet Secretary and the Government having a different policy direction. But they weren't forthcoming with an answer to that. I don't think we should ignore those concerns because Pauline McNeill is absolutely right. The problem here is what effect will the bail test change have on the remand population? The answer is we do not know. It could go a number of ways. It could stay the same because judges will still use their own judgment and the bail test will make no difference in which case the policy objective has failed at the first hurdle and therefore is unnecessary. The other option being that more people are released into the community, which hitherto would have been remanded in custody. That may present a problem. That's perhaps why victims organisations have a problem with it. And the opposite is that the definition of public safety could be so wide-ranging that it could be used in any scenario to remand someone's custody. And therefore more people may end up remanded. We've heard all scenarios. The Government seems to not know what the outcome might be, nor has it done any modelling on that. And that's my concern. And that's why I'm seeking to insert the original bail test back into this legislation so that we are clear about the parameters that judges can use. The public safety test is so vague and so weak and so misunderstood. The original five condition test is clear and it has been used by judges. On my view, fairly. The Government, I'm not sure, trusts judges on this matter. I perhaps have more faith in them. And I urge members to support my own amendments in this group. Turning very briefly to other amendments in this important group. Amendment 18, in the name of the cabinet secretary, I do support it, because it changes the wording of the public safety test some way to consider the protection of the complainer from the risk of harm. It seems to be a technical change from stage 2, which is welcome. Amendment 69 and 70 from Pauline McNeill also add into the bail test the ability for judges to refuse bail on the basis that the person has previously, for example, breached their bail conditions. Because this is not in the existing test set out in the Criminal Procedure Act 95. Amendment 71, it should be said, also adds into the existing bail test a provision that allows bail to be refused if the court considers that there is a substantial risk that if any person might, if granted, bail might breach bail conditions. And amendment 70 does something similar. Now, the reason these are important is that we do know there is a, and I will talk about this in a different group, a high volume of prisoners who do breach bail conditions. And there are many, though, of those who are released on bail, who are repetitive bail breaches. And the effect that that has on victims, particularly those domestic abuse victims, I think is quite horrific. And we've had first that evidence of that. There are other minutes in this group that I won't speak to, but I'm keen to hear what the cabinet secretary has to say in response to the many criticisms that I've laid out in this group that I propose. Thank you, Mr Greene. I now call the cabinet secretary to speak to amendment 18 and other amendments in the group. Cabinet secretary. Thank you, Presiding Officer. I will speak to all amendments in this group. Amendment 72, in the name of Katie Clark, removes the proposed new bail test from the bill in its entirety. A similar amendment was lodged by Ms Clark at stage 2 and was, of course, debated at the criminal justice committee. And I cannot support this amendment. Part 1 of the bill does not change the general entitlements to bail under section 23b of the Criminal Procedure Scotland Act 1995. Under the new bail test, as is the case now, bail is to be granted to an accused person unless the court determines that there is good reason for refusing bail and that determination continues to involve a two-part test. The first part of the test remains the same. The court may only determine there is good reason for refusing bail, where at least one of the grounds in section 23c1 of the 1995 act applies. What the bill does, however, is narrow the second part of the test to provide that bail may be refused only if the court considers it necessary for one or two specific public interest reasons. The first is that it is necessary in the interests of public and victim safety. The second is that it is necessary to prevent a significant risk of prejudice to the interests of justice. So if an accused person does not present a threat to public and victim safety or to the delivery of justice, then bail should be the default. This new statutory limit on the use of remand is a direct response to calls made by the criminal justice committee and others to take action to reduce the number of people being held on remand. If Katie Clark's amendment 72 is agreed to, then the potential benefit of the new bail test in reducing the use of remand would be lost. I asked members to vote against it. Amendments 17, 22 and 23 from Jamie Greene would expand the circumstances when remand can be used by the court, not only under the framework envisaged by the new bail test in section 2 of the bill but even in terms of the current system. It is, of course, the job of Parliament to set legal parameters. The Scottish Government is seeking to do so in this instance via primary legislation. Mr Greene and others are also seeking to do so via their amendments. But these amendments laid by Mr Greene would represent a significant change in the operation of bail law and there has been no consultation undertaken on the specific changes that he proposes. Amendments 17 is the main amendment with amendments 22 and 23 largely being consequential. A similar amendment by Jamie Greene was lodged, debated and defeated at stage 2. Amendments 17 separates the two requirements of the new bail test to make them alternative rather than cumulative. That would mean that the court could demand an accused person either where one or more of the grounds listed in Jamie Greene's amendment 17 are established or where there is a risk to public safety or a significant risk to prejudice to the interests of justice. The current bail test and the new bail test are two-part tests. By removing the need to satisfy both parts of the test that change has potential to massively expand the court's ability to remand to massively expand the legal parameters. It would mean an accused person who poses no risk to public safety or who poses no risk to the delivery of justice could be remandied solely on the basis that at least one of the grounds listed in amendment 17 applies. This includes the ground any other substantial factor that appears to the court to justify keeping the person in custody. That would give the court an extremely broad discretion to refuse bail for any reason that the court determined met the criteria of being a substantial factor, of course. That precisely is the point of the amendment. It is to give the courts that discretion. The factors that are listed in my amendment I think are reasonable grounds. The problem is that if someone is someone who does and has evidence of breaching bail conditions who has previously been released on bail and committed further offences and there is evidence of such somebody who has absconded repeatedly or failed to attend at a court diet and meet all of those criteria but do not meet the new secondary test the judge will be forced to again release that person on bail. So where is the discretion in that? Where is the fairness of that? All I'm trying to do is reinsert back into the system that the judges on the day are the best people to make that decision. It's not ministers here today. I welcome to the point about embedding the important principles in terms of the interests of justice victim and public safety in a few moments. But the fundamental point is that Mr Greene here today at stage three is proposing to massively expand the courts ability to remand. And that that is a proposition that he has not consulted on. Whereas he may disagree with the Government's proposal to narrowly to narrow the statutory limits on remand. But we have at least consulted thoroughly and debated this matter thoroughly at stage one at two and now at stage three. And the other factor Presiding Officer with reference to Mr Greene's amendment 17 is that it also removes from the new bail test the requirement for at least one of the grounds specified in section 23C1 of the Criminal Procedure Scotland Act 1995 to apply to apply in order to justify refusal of bail and replace it with a new set of grounds. And while the replacement of grounds in amendment 17 are broadly similar to the grounds in section 23C1 a different threshold is set up for when each of the grounds apply moving from substantial risk to likely exactly what the intent is in changing the threshold from substantial risk to likely is not immediately clear if there had been scrutiny earlier of this change in wording it could have been considered. But I would contend Presiding Officer at stage three of an important bill is not the time to adjust a part of the bail law which has not been fully considered. Amendment 22 is largely consequential but it's not insignificant. And this is because while section 23C1 of the 1995 act has largely been replicated in Mr Greene's amendment 17 section 23C2 has not been. So repealing section 23C would mean that the court would no longer be required to have regard to important factors set out in section 23C2 when making the bail decision including the nature and level of seriousness of the offences before the court and the character and the antecedence of the accused person including in particular their previous convictions. So exactly why the court should not have regard to these long-standing factors is unclear and in my view unwise. So Presiding Officer I asked members to vote against amendments 17, 22 and 23. Amendments 69, 70 and 71 by Pauline McNeill make changes to section 23C1 of the Criminal Procedure Scotland Act 1995. The effect of the amendments 69, 70 and 71 is to add two new grounds to the list in section 23C1 so that the court may cite one of those grounds as part of a determination to refuse bail. The two new grounds would be where the person has previously breached bail conditions or where there is any substantial risk that the person might if granted bail, breach bail conditions. Presiding Officer while these are well-intentioned these amendments are not necessary and I will explain why. Firstly, breach of bail conditions is a separate criminal offence in its own right and any substantial risk that an accused person might if released on bail, breach bail conditions is already covered by the existing ground for refusal of bail set out in section 23C1B. Amendment 70 is therefore not necessary and is already covered by existing bail law which the bill does not change. Secondly, when considering the grounds upon which bail may be refused existing section 23C2 already instructs the court to have regard to all material considerations which include whether the person was subject to a bail order when the offences are alleged to have been committed and the character and the antecedence of the person including the nature of any previous convictions. This means that the court is already required to have regard to whether a person has previously breached any conditions of bail when deciding if there is good reason to refuse bail in a given case and so amendment 71 is not necessary as such I asked Pauline McNeill not to press amendments 69, 70 and 71 and if she does I asked members to vote against them. Katie Clark's amendment 74 removes section 4 from the bill in its entirety with the effect that the duties contained in it for the court to state certain reasons for its decision on bail and record its reasons when bail is refused would not be introduced. Again an identical amendment was extensively debated by the criminal justice committee at stage 2 though it was not pressed to a vote. This may be a consequential change to 72 however section 4 has its own specific policy reasoning. The removal of section 4 would directly contradict the committee's stage 1 report recommendation that more information is collected about the reasons why remand is used. The importance of collecting more detailed data on the use of remand is something that was universally supported by those giving evidence to committee at stage 1. While I understand concerns where expressed at stage 1 about the potential burden that the reporting duty was originally drafted would place on the courts the bill was amended at stage 2 to reduce the amount of information the courts required to record and focus it more clearly on only the reasons why the court decided to remand the accused. It is this key set of information that we consider will be most useful in the coming years to understand the reasons why remand is imposed. I therefore ask Ms Clark not to press amendment 74 but if she does then I ask chamber to vote against it. Finally Presiding Officer amendment 18 in my name is a minor and technical amendment to the new bail test being introduced by section 2 to A of the bill. It revises the limit of the new bill test that deals with public and victim safety so that the court may refuse bail if it considers it necessary to do so in the interests of public safety including the protection of the complainer from risk of harm. That is a slight change from the original wording of this provision which provided that the court may refuse bail if it considers it necessary to do so in the interests of public safety including the safety of the complainer from harm. This minor revision does not change how this aspect of the bill test operates but simply reflects that it is more natural to talk about protecting the complainer from a risk of harm and for that reason I ask the chamber to support amendment 18. Thank you cabinet secretary. I call Pauline McNeill to speak to amendment 69 and other amendments in the group. Miss McNeill. Thank you, Presiding Officer. I want to start with a similar point to the points that Jamie Green made which is in some senses this debate is quite at much the heart of part one of the bill this discussion we're having now because the basis of it is we had a bail test under the 95 act this is a completely new bail test. Now I have to say from the outset I mean I don't envy the cabinet secretary's job taking this bill on I mean that halfway through but I'm going to say this you know genuine this trying to get to the bottom of what the real purpose of the legislation is. Now I noted down a phrase that the cabinet secretary used I've not heard before where she says the new statutory limit a new statutory limit on the use of remand now at the government it's going to have to be consistent for people to understand what this bill is attempting to do now I will say from the outset for those who've not been involved in this question it is a highly complex bill and a highly technical piece of legislation I don't pretend to understand all why I'm trying to get is some clarity of purpose and some clarity on the new bill test I say that I haven't heard that phrase before because the committee in its entirety had raised concerns about the use of the extent of remand and every time we asked is the purpose of the bill to reduce the remand population we couldn't really get a clear answer so I think the government needs to be clear is this the purpose of this test or is it not now the test itself and Jamie Greene made these points in the letter 13 page letter I referred to earlier what the judiciary seem to be saying is that they've got some issues with the new test and they're not convinced that it'll make any real practical difference and I think that's a problem in legislation if you're taking on a new test to which the cabinet secretary has outlined very well but it's unclear if it's actually going to make any difference but furthermore it could be complex for people to understand now what I'm proposing to do in amendment 69, 79, 71 as Jamie Greene's attempting to do I think in one basis is I put some prescription back in so get some clarity and one of the comments that was first made to me about it is that a bail test it does not specifically mention that someone who previously had breached their bail wouldn't be included as a specific test now I know it's not in Jamie Greene's amendment and Jamie Greene's amendment also makes a slightly different test on my wireref and substantial risk Jamie Greene talks about the likelihood of and these are important aspects of it as well section 2 of the bill seeks to change the grounds upon which a court may decide to refuse bail and amend 69, 79, 71 allows the consideration of the risk of breach of bail now the Scottish Government might think these amendments that have said that they're not necessary and that I would accept that that what's being said that the court can already consider under the new test if there's substantial risk my preference is just to make that clear on the face of the bill that in fact that breach of bail should clearly be a ground for revusing bail the law society said that a one-size-fits-all solution doesn't assist the court making proper judgments as to who could not be trusted with being admitted to bail and while the Government is seeking to introduce a more focused use to remind we must be careful that recalcitrant offenders are not continuously raised on bail without any consideration of the rights of the general public and the written response is stage one the Scottish Government stated a new bail test in the bills intended to refocus how imprisonment is used to ensure as much as possible the use of custody for a man is the last resort but I think it's important to note that that is already the case under the 95 act there is a presumption against the use of a man so it again is seeking some clarity about what the purpose of the bill is as the policy memorandum explains the purpose of the provisions in the policy memorandum it says to refocus the legal framework within which bail decisions are made by a criminal court so that the use of custody is limited to those who accuse persons who pose a risk to public safety which includes victim safety or to when it's necessary to prevent a significant risk of prejudice to the interests of justice in a given case so it's really important that given the phrasing the language of the new test is quite different from the 95 act that's all we all understood exactly what the bill is intended to do I conclude with this presiding officer it concerns me deeply that the this provision in this part of the bill doesn't yet appear to have the full confidence of the legal profession and the judiciary I do admit the letter was written some time ago but we haven't had an update since then and I did ask this question it would be helpful at some point to have some update and whether or not that any changes that had been made to this now have the confidence of the judiciary and in that I move and speak to my amendments thank you Ms McNeill I now call Katie Clark to speak to amendments 72 and other amendments in the group Ms Clark thank you presiding officer I move amendments 72 and 74 in my name which have the effect of removing sections 2 and 4 from the bill this essentially would maintain the current bail test which in the vast majority of cases includes a presumption that the court will grant bail the approach that I'm taking is similar but slightly different to that proposed by Jamie Greene Scotland of course has the highest numbers of people in prison in Europe and the highest remand rate the figures provided to the criminal justice committee are that almost 30% of the male population are on remand and that on the women's estate 37% of women are remand prisoners it has to be said that this is not because Scotland is a more violent country than comparable countries our contention is that these high remand rates are not due to the law or indeed the bail test that we're discussing but due to a lack of robust alternatives to custody being available to the courts it's clear that in addition decisions of this parliament to extend time limits relating to criminal cases and perhaps culture may be other reasons the impact of the pandemic clearly has put up the numbers of people being held on remand but this is a historic issue with Scotland having extremely high remand figures the criminal justice committee first discussed this bill at our away table last august and since then it has to be said we have taken extensive evidence on this bill but we have been unable to find evidence as to how changing the current bail test from the public interest test to a public safety test will reduce the numbers of people being remanded the current test has been in place for many decades and is settled law what the Scottish Government is proposing is likely to make submissions to local sheriffs lengthier to increase the time taken to determine the issue of bail result in the same accused being detained unnecessarily while inquiries are carried out produce more eros and increase the opportunity for appeals as well as adding to the heavy burden on sheriffs and therefore make the task who are tasked with the management of what can be extremely busy custody courts more difficult those are not my words but the words of Lord Carlyway Scotland's senior judge in his submission to the Scottish Government on behalf of judges Polly McNeill and myself have spoken to dozens of practicing lawyers about this proposed new bail test and it seems clear to us that what the Scottish Government is proposing does not have the support of victims organisations it clearly doesn't seem to have the support of the judges and from the discussions that we've had and the evidence that we've taken doesn't seem to have support in the legal profession as I say both Polly McNeill and Jamie Greene have already referred to the submission that I've just referred to which said very clearly that the proposed new bail test introduces an unnecessary cumbersome and artificial process but it was difficult to see how the proposed new structure would make any practical difference to outcomes so I think when we're scrutinising this bill we need to look at whether the law will make it easier for the courts to make decisions and make the law more certain and it's far from clear to see how the Scottish Government believe that changing the bail test in this way proposed will either reduce the remand population or indeed make it clearer to the courts what this Parliament intends we believe that the focus instead should be on developing more robust forms of supervised bail and electronic monitoring amendment 74 as the cabinet secretary has said is a consequential amendment to 72 it removes section 4 of the bill however it has to be said that during the evidence that we heard on the bill on the criminal justice committee section 4 was opposed by victims organisations as it fails to provide complainers with an explanation of why bail is granted and it also has to be said as we've heard already that many parts of the legal profession are opposed to the proposals as outlined in section 4 we believe that section 4 is unnecessarily onerous and will extend the length of hearings and on those basis I urge the chamber to support my amendments Thank you Ms Clark and I call on Jamie Greene to wind up press a withdrawal amendment 17 Mr Greene Thank you Deputy Presiding Officer I can thank all members for their contributions I know it's been a long group but it is an important one as Pauline McNeill said it gets to the heart of what the bill is trying to do and what the justice committee has spent many many months trying to unearth I have just a number of brief comments in response to the cabinet secretary and other members the first is that which is still entirely unclear even at the end of the stage 3 debate on the section of the bill what the government's real intention is the government has not been up front at any stage in proceedings and has given ample opportunity today to be clear to the chamber who have to vote on these amendments is it simply the government's intention that making this change to the bill test will result in a reduction in the number of people being remanded into custody because clearly that's what lies at the heart of it if that is the policy intention then say so there's no point hiding behind modernisation and change for change say the government clearly has not listened to any of the criticisms made not by politicians here today or at stage 2 but by those out there who reflected and reacted to the publication of the bill the Lord President in addition to the yeah in one second because I want to pose a question to the cabinet secretary as well the Lord President said the following of the change and he said that again this is another quote of the official record it is difficult to see how the proposed new structure will make any practical differences in outcomes I stopped the quote there I will carry on in a second surely that's the whole point of what the government is trying to do to make a practical difference to outcomes but he doesn't seem to think so I go on the overarching test that bails to be granted unless there's a good reason to refuse it remains the same the problem there is that that's a view that's also shared by the Crown so it's not just the judiciary it's not just judges it's not just defence advocates and solicitors but the Crown prosecution service itself gave evidence to the committee and here's what they said different sheriff courts or indeed different sheriffs within the same court might take a different view on what public safety encompasses the issue for me is that sheriffs could broaden the definition of public safety for other crimes in some jurisdictions but not in others that would lead to inconsistency confusion and ultimately inefficiency inconsistency confusion inefficiency unnecessary cumbersome and artificial they are all the words of the judiciary and the Crown why are they all so wrong and the government all so right I give way cabinet secretary Presiding Officer I think it's very important that members don't claim to represent the entire legal profession and can I say that the government has been absolutely transparent even although I have come relatively late into this process in the three of the reasons for this part of the bill it has been welcomed that we are seeking to simplify bail legislation that has been welcomed by the legal profession and you know would Mr Greene perhaps also agree that embedding the focus on public safety including victim safety and the interests and justice in all cases is imperatively important and yes we are seeking to place statutory limits on the use of remand in the full knowledge in which we've all I think may well be in danger of agreeing that there are many factors which will reduce the remand population and that we do need to be looking at all the solutions but it is disingenuous to come to this Parliament complain about that our high remand population and then seek not to take every opportunity that could at least play a part Jamie Greene I mean we've been really clear about how you deal with remand population get through the backlog and get through it more quickly that will reduce remand population massively massively cabinet secretary and you have the power to do that apologies through the chair those I'm not paraphrasing anyone and anything I've said this afternoon I'm quoting directly words from the Lord President Lord Carlyway I'm quoting directly from the Crown Office and prosecution service gave evidence I'm quoting directly from Kate Wallace of Victon support Scotland no one has been misrepresented they've been quoted and has a massive difference to our cabinet secretary I've asked cabinet secretary to reflect on that as well and it's victims really that lie at the heart of this and I think the last word on this should go to Victon support Scotland who have grave concerns about this new test that the Government's introducing it will be a concern to the public and to victims of crime that provisions relating to the bail narrows the court's discretion to refuse bail the cabinet secretary's just reinforced that message and that is no doubt with the intention of reducing the prison population Kate Wallace went on to say the logic tells us is that more people will be put at risk there will be more victims of crime and more lives will be ruined they again they are no one's been misrepresented no one's been misquoted no one's been paraphrased it's black and white in the stage one report cabinet secretary if you won't listen to us if you won't listen to the politicians listen to victims Can I confirm your pressing the amendment, Mr Greep? I press Thank you, the question is that amendment 17 be agreed to are we all agreed? No We are not agreed there will be a vote and members should cast their votes now and the vote is closed Point of order, Rachel Hamilton Point of order, Rachel Hamilton Mr, I voted yes my app was working Thank you, Miss Hamilton now make sure that is recorded and the result of the vote on amendment number 17 in the name of Jamie Greene is yes, 47 no, 67 there were no abstentions the amendment is therefore not agreed I call amendment 18 in the name of the cabinet secretary already debated with amendment 17 cabinet secretary move or not move moved Thank you the question is that amendment 18 be agreed to are we all agreed? Yes We are agreed the question is that amendment 19 in the name of Jamie Greene already debated with amendment 67 Jamie Greene to move or not move not moved the amendment is not moved I call amendment 20 in the name of Jamie Greene already debated with amendment 67 Jamie Greene to move or not move moved question is that amendment 20 be agreed to are we all agreed? No Parliament is not agreed there will be a vote and members should cast their votes now and the vote is closed Point of order, Finlay Carson Thank you, Presiding Officer I was unable to connect how I voted yes Thank you, Mr Carson I'll make sure that is recorded and the result of the vote on amendment number 20 in the name of Jamie Greene is yes, 47 no, 67 there were no abstentions the amendment is therefore not agreed I call amendment 21 in the name of Maggie Chapman already debated with amendment 67 Maggie Chapman to move or not move moved Thank you the question is that amendment 21 be agreed to are we all agreed? Yes Are we all agreed? That is agreed I call amendment 22 in the name of Jamie Greene already debated with amendment 17 Jamie Greene to move or not move not moved that is not moved the question is that I call amendment 69 in the name of Pauline McNeill already debated with amendment 17 Pauline McNeill to move or not move Yes, I'm moving sorry the question is that amendment 69 be agreed to are we all agreed? Yes Parliaments not agreed there will be a division and members should vote now and the vote is closed point of order I would have voted no but it wouldn't connect to the system thank you thank you Mr Gibson I'll make sure that's recorded the result of the vote on amendment number 69 in the name of Pauline McNeill is yes, 50 no, 63 there were no abstentions that amendment is therefore not agreed I call amendment 17 in the name of Pauline McNeill already debated with amendment 17 Pauline McNeill to move or not move move let's move the question is that amendment 70 be agreed to are we all agreed? no Parliaments not agreed there'll be a vote and members should cast the votes now the vote is now closed point of order Neil Bibby couldn't connect Presiding Officer I've voted yes thank you so Bibby I'll make sure that is recorded point of order Paul MacLennan my vote didn't connect either I would have voted no thank you Mr MacLennan I'll make sure that is recorded point of order David Torrance I couldn't connect I would have voted no point of order David Torrance could you repeat that please I couldn't connect I would have voted no thank you Mr Torrance I'll make sure that is recorded point of order Alexander Stewart next I would have voted yes thank you Mr Stewart I'll make sure that is recorded the result of the vote on amendment number 70 in the name of Pauline McNeill is yes 49 no 64 there were no abstentions the amendment is therefore not agreed call amendment 71 in the name of Pauline McNeill already debated with amendment 17 Pauline McNeill to move or not move question is that amendment 71 be agreed are we all agreed parliament's not agreed there'll be a division member should cast a vote now and the vote is closed point of order Kenneth Gibson I'm afraid I couldn't connect to the system I would have voted no thank you Mr Gibson I'll make sure that is recorded and the result of the vote on amendment number 71 in the name of Pauline McNeill is yes 50 no 64 there were no abstentions the amendment is therefore not agreed I call amendment 72 in the name of Katie Clark already debated with amendment 17 Katie Clark to move or not move moved the question is that amendment 72 be agreed to are we all agreed parliament's not agreed there'll be a division and member should cast a vote now and the vote is now closed point of order Craig Hoy I'm sorry Deputy President officer my app froze I would have voted yes thank you Mr Hoy I'll make sure that's recorded point of order point of order Keith Brown I would have voted no thank you Mr Brown I'll make sure that is recorded point of order Jamie Greene would have voted yes thank you Mr Greene I'll make sure that's recorded point of order Richard Leonard my app wouldn't connect I would have voted yes perhaps repeat that with the microphone on sorry my app didn't connect I would have voted yes thank you Mr Leonard I'll make sure that is recorded the result of the vote on amendment number 72 in the name of Katie Clark is yes 47 no 67 there were no abstentions the amendment is therefore not agreed we now move to group 3 restriction on bail in certain solemn cases I call amendment 73 in the name of Pauline McNeill grouped with other amendments as shown in the groupings Pauline McNeill to move amendment 73 and speak to all amendments in the group thank you Presiding Officer and moving amendment 73 in my name report on bail in certain solemn cases this concerns a debate we had at stage 2 in relation to provision the bill referred to as section 23d this is a similar amendment to the one that Jamie Greene will speak to I moved a similar one at stage 2 I want to go through the rationale for it amendment 73 would remove section 3 would also add a requirement for the Scottish Minister to carry out a review of bail restrictions in solemn cases within 12 months of royal assent considering what the effects has been of removing section 23d so the bill is introduced sought to repeal this section of the criminal procedure act 1995 which restricts the granting of bail in certain solemn cases section 23d provides that bail is only to be granted in exceptional cases if the accused is being prosecuted under solemn procedure so that's more serious cases for a violent sexual or domestic abuse offence and has a previous convicted under solemn procedure for any such offence or drug trafficking also included in that provision so the repeal of section 23d the courts would simply instead apply the general rules that we've been discussing the new bail test or the old bail test when it will happen in the end of the bill but victims organisations I believe that the removal of 23d presents a serious risk to the safety of people and victims of gender-based abuse in particular and for them retaining 23d is a vital part of Scotland's commitment to eradicating violence against women and girls the proposed grounds for refusing bail are not sufficient on their own and protecting people affected by crime and are an inadequate alternative to the additional safe carburetin contained within section 23d of the criminal procedure Scotland act the faculty of advocates of the CMU indeed Sheriff Mackie has been speaking for the hard league supported the removal of 23d to allow the schedule so you can see that opinion is split on this so on one hand victims think that there's one thing on the other hand many practitioners are quite happy to repeal it I should say in conclusion about this particular section provision in 23d it has a bit of a history because it was discovered during the passage of in fact the scrutiny of the Domestic Abuse Act that provision 31ca in that where there's been previous convictions for domestic abuse that was only inserted in 2018 where all the other things are referred to were previously contained in it my initially resolved the view that I did feel the court should have discretion as one witness said well if you had an offence 20 years previously it does tie the hands of the sheriff because it needs to apply this particular provision but on the balance I felt that that provision probably should be removed and I'm certainly concerned that there is a difference of opinion about leaving it in or taking it out so we don't really know what the inclusion of one of the things that puzzled me is having put this provision in on domestic abuse into 23d why the Government takes something out we only put in four years ago so I'm suggesting that the way to approach it is if we take that provision then it should be reported on and in fact arguably we should report on it anyway because of this division and of opinion as to what it actually does so keeping it in taking it out I think we need some clarity about what impact it actually has so that presiding officer I move thank you is mcneil and now called Jamie Greene to speak to amendment one and other amendments in the group Mr Greene thank you presiding officer I'll speak long enough for folk to have a cup of tea not rushing back on this one it's an important group of amendments I'm glad that Pauline McNeill was able to open it and I'll talk first about the other amendments in this group I'm supportive of all the amendments in this group for the following reasons 73 in the name of Pauline McNeill I think comes closest to mine and as such has my support she adds an additional review into the restrictions on bail and solemn cases however my only concern is that such reporting would not go far enough and that's why I will talk about mine in my proposal in a second I also support amendments to the name of the cabinet secretary 63 and 36 particularly are welcome we seek to add a reporting requirement on the reasons for granting bail in certain solemn cases I think that's a good step forward however I don't think they go far enough which leads me to my amendment amendment number one it's amendment number one in name and in nature because for me it's the most important amendment that I will bring to the chamber today for me it is very much my red line in this bill Presiding Officer it's not just my red line it's also the red line of many organisations and many victims that I've spoken to over the past well nine or so months as we've been scrutinising this bill and I think even people sympathise to many of the elements of the bill whether you have sympathised with the Government's intention around changes to the bill test or even part two of the bill which seeks to improve the through care of people and offenders after release and there are aspects to that which I too have sympathy the one piece of this bill which people have struggled with on a technical level but also on a moral level and actually would struggle to support this bill at all would be the rejection of amendment number one if my amendment I think is to be rejected then I think this whole piece of legislation will fly in the face of every victim's organisation who gave evidence to the justice committee and who work frequently not just with the justice committee but they work with the Government themselves on a wide range of proposals people that we rely on time after time we quote them in the chamber we quote them in committee the government quotes them opposition members quote them they're over quoted to an extent but their voices are useful as they are imperative my amendment is a simple one and it's simple because it needs to be simple it removes section three from the bill in its entirety and the reason for that approach is because section three of the bill removes section 23d from existing law let's be clear about what section 23d does effectively it states that a person should only be granted bail under solemn proceedings if there are exceptional circumstances justifying bail which means that someone charged with a violent sexual or domestic abuse offence must only be granted bail in exceptional circumstances now as Pauline McNeill said this was not always a feature of our legal system but it was rightly put into law to highlight the acute impact of violence against women and girls and how seriously the matter should be treated I agree with the current law and I'm not the only one section three which seeks to remove 23d from the current law is a controversial move by the government I have to say there are two schools of thought members of the judiciary who practice law and who look after normally defendants I have to say and those who have suffered domestic abuse, assault, rape and other serious crimes and it's them who I will be listening to in this debate and it is for them that I'm seeking to amend the bill Scottish Women's Aid who I haven't mentioned yet in today's debate have very serious concerns about the removal of 23d and the three quotes I will give to the chamber I would really appreciate the cabinet secretary to reflect and respond to in her comments Scottish Women's Aid tell us that far from adding acting as a protection to victims the proposal on the bill would effectively allow Bell to be granted to convicted repeat and serial abusers of domestic abuse including those who have perpetrated sexual assaults against women and to present a particular danger to women's safety women need as much protection as the law can afford them end quote rape crisis Scotland gave us commentary they have significant concerns about the removal of what they see as an important safeguard these were echoed by other organisations Victim Support Scotland and Speak Out Survivors who are a wonderful organisation who support victims of such abuse and they said we have concerns about repealing section 323d because it was specifically intended to address violence against women and girls we had plenty of other evidence to that elk and a number of individuals who also submitted evidence to us of that nature as well I know how strongly they therefore feel about it in my view if and I think we have to be very careful with a section of the bill if we choose not to remove section 3 of the bill and we do remove section 23d it will have implications in the decision making of judges in these types of cases and I think that's something that is a grave responsibility on us today when voting and I would ask the Government to reflect on that because what I don't want starting off sir is if a result of voting against my amendment we don't remove section 3 and section 23d is removed and that safeguard is removed safeguard perceived or otherwise is removed then God forbid anything happens if a judge under any other circumstances prior to this bill would hither to remand someone into custody because of section 23d but can no longer do so what if that offender walks free from the courtroom and commits another horrific crime of domestic abuse or assault as warned by the victims organisations ahead of today's debate in my view that would be an unforgivable outcome in one which we would need to look at those victims in the eye and justify our decisions today I'm comfortable with my decision making today my decision making days bringing forward an amendment which safeguards and keeps that vital safeguard in our current law thank you thank you I call cabinet secretary to speak to amendment 27 and other amendments in the group cabinet secretary thank you Poseidon officer there are two amendments in this group that seek to retain the operation of the presumption in favour of remand contained in section 23d of the criminal procedure Scotland act 1995 amendment 1 from Jamie Greene and amendment 73 from Pauling McNeill in addition amendment 73 would require a review of the operation of the restrictions on bail in solemn cases by the Scottish ministers Poseidon officer the policy content of the bill was first consulted upon in 2021 this was a full open public consultation where anyone with an interest could offer views included within the consultation was a proposal to move towards one core bail test with public safety and victim safety at its heart from the consultation this bill was developed and introduced into parliament more than a year ago for effective scrutiny to take place over the last 12 months and this involved numerous evidence sessions through the autumn by the committee full stage 1 scrutiny and detailed stage 2 amendment sessions so I would therefore with respect dispute the need for further review of the operation of this aspect of bail law envisaged by amendment 73 but I welcome on to later talking about other reporting requirements that the government will come forward with Poseidon officer it seems to me that that the key question parliament is faced with in this group is whether to move to a single new bail test a new bail test which has embedded within it public safety and victim safety and these are exactly the issues that will arise in section 23D cases where the court can use its expert judgment in assessing when remand should be imposed if either amendment 1 or amendment 73 were agreed it would mean that the current statutory restriction on bail contained in section 23D would apply alongside the new bail test set out in section 2 of the bill so in effect there would be two bail tests the new bail test would operate for most cases while the section 23D test would operate for certain solemn cases and it is of course important to remember that bail can be granted under 23D in exceptional circumstances so Presiding Officer I am very much aware through the process of scrutiny that concerns have been expressed about the removal of the statutory restriction on bail in these cases it is important to note that these concerns have tended overall to focus less on a concern about the repeal of that the repeal of section 23D would lead to a change in bail decisions in these cases but instead more on the perception that bail law is being weakened and just for the record Presiding Officer I consider matters of perception to be of fundamental importance particularly in terms of trust and confidence and again I'll come back to that in a moment but we know that the issues are in and around perceptions that this is because most people especially from the legal sector do accept that there will be no significant change given the new bail test has protected the complainer from the risk of harm and public safety at its heart however I'm aware from my own direct discussions with victim support organisations including Victim Support Scotland and Scottish Women's Aid that they would prefer the continuation of the statutory restriction on bail for this category of cases so Presiding Officer I do acknowledge that these perceptions matter if the law is to be credible it should command support from those who are affected by its operation and that is why I have lodged amendments that will help us understand more and give reassurances on how the new bail test is being used in the future for cases that previously would have been subject to 23D Amendments 27, 30, 31, 32, 33 and 35 in my name extend the report and requirement in section 5A of the bill which relates to part 1 of the bill on bail and remand amendment 27 will require information to be included on the number of bail orders made in respect of individuals accused of certain serious offences and where those individuals have a previous analogous conviction When the bill seeking to move with the bill seeking to move to a single new bail test for all cases requiring information to be reported on cases that previously would have been subject to the restriction on bail in section 23D will help assess the operation of the new bail test for these cases amendments 32, 33 and 35 are consequential to amendment 27 and simply define the type of offences which the specific reporting requirement covers section 5A also contains a general power for the Scottish ministers to include in the report other appropriate information over and above that which is specifically listed amendment 30 adds to this to make clear that such information can in particular include information on the repeal of section 23D of the 1995 act as provided for in section 3 of the bill where the report includes such information amendment 31 requires the Scottish ministers to consult with certain groups when preparing the report this includes consultation with persons who are providing support services to victims overall these amendments strengthen the reporting requirements so that information will be available on how the new bail test operates for types of cases that previously would have been covered by section 23D of the 1995 act Presiding Officer throughout the scrutiny process there was strong support for the repeal section 23D from many including the judiciary the support was based on the law being simplified so that one core bail test can be used for all cases and crucially of course public safety and the risk of harm to the victim is embedded in the new bail test this is an essential element of the new bail test which will continue to allow court to remand those who pose a risk to public or victim safety and the new bail test caters explicitly for exactly the type of cases section 23 currently covers that is where an accused person is charged with a serious sexual violent or domestic abuse offence and has similar previous convictions exactly the type of case where public and victim safety will be of critical importance and exactly the type of case in which the new bail test provides for the court to refuse bail yes I appreciate the cabinet secretary taking my intervention two points on that I think the cabinet secretary used the words that there is strong support for the removal of 23D I don't think that's the case I think support was certainly coming from some quarters but not all in fact it was quite split and I sat through all those evidence sessions I know that to be the case so I'd ask the government to reflect on that first of all the second point though is around the new bail test the single new bail test is the cabinet secretary confident and can give confidence to the many organisations who did voice concerns that many of them I raised but there are others that she is comfortable that the new bail test will cover every scenario that 23D did previously and that no one no one at all would be released where a judge felt under the whole system he would have preferred to have remanded that person given the risk to your victim or their families and is that comfort will that be followed up that in as a result of any reporting that takes place as a result of these amendments that the government if it transpires that it's not working and that people are committing further offences whilst on remand would the government then consider changing the law further perhaps with the inclusion of 23D in future legislation cabinet secretary side officer I of course always acknowledge that there is a range of views and at the end of the day it's the job of government in Parliament to balance views sometimes particularly where there are competing views and views that are particularly strong and I would have hoped that members of the Justice Committee would have now heard me often enough that I am very much a believer that policy should be led by the evidence and you know there has to be a purpose to gather an information and it's not just to gather information to put it on a shelf it is of course to vindicate and verify that system is working and that if it's not it is of course beholden on us all to address that I hope I've helped Parliament today and Mr Greene by putting on record why I think why it's the view of the government that having an embedded public safety victim safety test in all cases would cover those 23D cases but it's also my view that I think having one core bail test is preferable to having two tests and that could of course lead to confusion and will not in my view assist with the administration of justice Presiding Officer while not the main reason why the Scottish Government is opposing amendments 1 and 73 that there is also a real risk of confusion under the law as the new bail test was designed to operate as a single test of bail so retaining a second test to operate alongside it without having made the necessary adjustments to bail law could lead to legal uncertainty and it is for that reason that I ask members to support amendments 27, 30, 31, 32, 33 and 35 and reject amendments 1 and 73 amendment 36 in my name introduces a new section into the bill it places a new requirement on the court to state and record its reasons when a decision is made to grant a bail in certain solemn cases and I know that this has the support of victim support organisations the relevant cases will be those cases that are currently subject to a restriction on bail under section 23d as members have debated extensively throughout the scrutiny process there are conflicting views as I've acknowledged on the repeal of section 23d with strong support or with support from repeal from many quarters such as the judiciary and the legal sector whereas there is clearly opposition from others including victims group If Parliament approves the repeal of section 23d the recording of reasons for a bail in these cases will support the reporting requirement under section 5a of the bill by collecting information over the length of the reporting period for inclusion in the report to be published such information on those granted bail will help assess the operation of the new bail test in an area of the bill that has been contested and hopefully demonstrates that we are building in scrutiny from the start and greater transparency Finally, amendment 63 is a minor consequential amendment providing for the commencement of the new section being added by amendment 36 on the day after a royal assent I would ask members to support amendments 36 and 63 Thank you, and I call Pauline McNeill to wind up press or withdrawal amendment 73 Ms McNeill Thank you, Presiding Officer I think I was a very useful debate One response I would like to make to the cabinet secretary in relation to it would provide two different bail tests I mean, I thought about that but this provision is for solemn, serious cases I don't really see why I wouldn't necessarily you might not find it desirable but you could have a separate test for more serious cases so I'm not persuaded by that I said from the very outset that I mean, Jamie Greene is always from the beginning I mean very, very particular about reasons for not keeping that in the provisions I have been more divided on it because I did feel if there was an overuse of that and share us our judges should be able to use the discretion I was persuaded by that but I'm also persuaded that I'm not really sure what real practical difference it would make to take it out but for that reason I still think it's something it's worth reporting on albeit had a more time to do it I might have done it slightly differently on that basis I'm going to move it Thank you, Ms McNeill The question is that amendment 73 be agreed Are we all agreed? Parliament's not agreed there'll be a division and members should cast their votes now and the vote is now closed Point of order Shirley-Anne Somerville My app wouldn't connect and I would have voted no Thank you, I'll make sure that is recorded The result of the vote on amendment number 73 in the name of Pauline McNeill is yes 46 no 65 there were no abstentions the amendment is therefore not agreed I call amendment number one in the name of Jamie Greene already debated with amendment 73 Jamie Greene to move or not move moved question is that amendment one be agreed to Are we all agreed? Parliament's not agreed there'll be a division and members should cast their votes now and the vote is now closed Point of order Neil Bibby I'm not connected with the vote yes Mr Bibby, could we have that again? My app didn't connect her with the vote yes I'll make sure that is recorded Point of order Alexander Stewart Not connecting with the voted yes Deputy Presiding Officer Thank you, I'll make sure that is recorded The result of the vote on amendment number one in the name of Jamie Greene is yes 45 no 65 there were no abstentions the amendment is therefore not agreed I call amendment 23 in the name of Jamie Greene already debated with amendment 17 Jamie Greene to move or not move so it's 23 a year yeah not moved not moved We now move to group four bail decisions statement and recording of reasons I call amendment five in the name of Russell Finlay group with amendment six Russell Finlay to move amendment five and speak to both amendments in the group Mr Finlay Thank you I move amendment five which with number six are the only two amendments in this group as drafted the bill requires a court to record bail determinations when it refuses bail this is one sided and in my opinion does not consider the interests of victims or the wider public I believe our occurring theme in the justice system is that of transparency or rather a lack of transparency too often victims are left in the dark and left to fend for themselves and they might well ask in the new bill why criminals especially those with a history of violent or sexual offending are granted bail so amendments five and six will require a court to record the reasons for granting bail so to recap the bill as drafted will give accused criminals the right to know why they're remanded so I can see no good reason why a victim should not be entitled to know why they are bailed and amendment five will fix this oversight amendment six would extend this transparency by making the right universal to everyone journalists are the eyes and ears of the public and due to commercial difficulties of the news media fewer journalists are able to attend court cases and consequently the public are increasingly deprived of information or left reliant on PR from public bodies who are primarily concerned with pushing their own agendas justice must be seen to be done so members can vote for amendment six to ensure the public are entitled to know why bail has been granted but if this is unsuccessful at least amendment five would give that basic right to victims and I would urge members to support both my amendments in this group thank you I come as a finlay I now call cabinet secretary Presiding Officer amendment five in the name of Russell Finlay would require the court to state the grounds for granting of bail and have those grounds entered into the records of proceedings section four of the bill as introduced originally required the court to state and record the grounds and reasons relating to decisions to impose remand at stage two the Scottish Government responded to a committee stage one report recommendation by reducing the recording burden falling on the courts through section four of the bill amendment five would significantly increase the burden well beyond what the bill required even on introduction let alone after the duty to record reasons was narrowed at stage two this is because the vast majority of decisions in relation to bail result in bail being granted so amendment five would place an increase burden on the courts and a very large cross section of cases entering the system this may require further I.T. changes by the Scottish Courts and Tribunials Service as this is not information they are currently required to record as well as add time to thousands and thousands of bail hearings a year it should be noted there is an overarching legal presumption in favour of bail which should only be refused where there are good reasons for doing so as in such as such an effect bail is the default position as I explained at stage two when a similar amendment was debated any requirements to provide reasons why bail has been granted could simply point to the legal requirement to do so and the absence of any good reason not to also it should be noted that is already a requirement under existing bail law that whenever the court grants or refuses bail it must state its reasons for doing so therefore the grounds for granting bail is information the court will already state an open court under this duty and for these reasons I would ask members not to support amendment 5 amendment 6 would require the court to publish any grounds that require to be recorded under section 4 of the bill Presiding Officer the information that is to be recorded is intended to be used to help develop a better understanding of why remand is used in Scotland it is intended that this information will be anonymised and data will be available through statistical publications however it is not likely to be published by the court as amendment 6 requires and instead would likely be done via Scottish Government statistics Presiding Officer it may be that Mr Finlay considers the publication of information would be to assist individual victims to understand decisions made in cases specific to them however publishing case specific information would raise potential data protection issues and given the late stage at which this is being proposed we have not had the benefit of the information commissioner's office input on the implications of this proposal it is also through the crown that victims can and do receive information about the court's decision on bail rather than publishing case specific information on the basis of this explanation and the fact that information that is recorded will be available through statistical publications in the future I would ask members to oppose amendment 6 Thank you All right Russell Finlay to wind up and press a lift from amendment 5 Mr Finlay Yeah thank you very much The cabinet secretary talks about reducing the burden on courts and if I understand it it still remains that remand decisions will be recorded according to bill despite the changes that were made at stage 2 It seems entirely reasonable and proportionate to therefore record the reasons for bail being granted This is about equality between the rights of victims and complainers and I believe they should have the same right to information as has been given to the accused I also do not accept the cabinet secretary's explanation about possible data protection issues That sounds a little bit weak to say the least What goes on in courts the decisions made by courts ought to be a matter of clear public record and it would be no great hardship for the courts to make available to a member of the public or to a member of the media to seek the details of why I bail the decision has been reached but I will give way, yes Cabinet Secretary I wonder if Mr Finlay can advise the chamber that when he was drafting and doing his research and thinking with regards to these amendments if he made an approach to the information commissioner's office because I would like to assure him that data protection and the rule of law is not something that I have conjured up and I also wonder if Mr Finlay would acknowledge that the Crown have a responsibility to be informing victims and victims can and do receive information via that route Russell Finlay I mean I didn't use the phrase conjuring up what I suggested was that the suggestion of GDPR or data protection didn't seem particularly fully explained by the cabinet secretary I think that the courts are well used to journalists and indeed members of the public having the in theory at least the right of access the right to access this information and this principle these amendments just extend that and formalise that right in quite an important area so thank you thank you Mr Finlay the question is that amendment 5 be agreed to are we all agreed yes sir Parliament is not agreed there will be a division and members should cast their votes now and the vote is closed and the result of the vote on amendment number 5 in the name of Russell Finlay is yes 28 no 83 there were no abstentions the amendment is therefore not agreed I call amendment 6 in the name of Russell Finlay already debated with amendment 5 Russell Finlay to move or not move not moved not moved I call amendment 74 in the name of Katie Clark already debated with amendment 17 Katie Clark to move or not moved moved the question is that amendment 74 be agreed to are we all agreed Parliament is not agreed there will be a division and members should cast their votes now and the vote is now closed and the result of the vote on amendment number 74 in the name of Katie Clark is yes 19 no 91 there were no abstentions the amendment is therefore not agreed we move to group 5 provision of information about date of release from custody just to advise the chamber that the attention would be to get through this group after which there will be a short comfort break particularly for the participants in the in the debate with that I call amendment 75 in the name of Pauline McNeill grouped with amendments 5, 85 and 9 9, 89 and 90 Pauline McNeill to move amendment 75 and speak to all the amendments in the group thank you for that good news amendment 75 inserts a new section which will require the Scottish ministers to take all reasonable steps to ensure that victims are made aware but when an accused person is admitted to bail as distinct from notification following release from prison after serving a sentence a report published by the Scottish Government in February looked into the experience of families who have fallen victim to domestic abuse and female victims of domestic abuse told interviewers that the investigation prosecution and sentencing for domestic abuse offences did not adequately reflect the sustained level of severity to our impact of abuse experience and one woman told of a harrowing experience to learn up to the court case she said that the police sergeant phoned me the following afternoon to tell me that my abuser had been released on bail and that he was released about an hour to two hours ago and if I'm in the house make sure I get out because he'll be there any minute Over recent months I've been meeting with people I think we all have who have lived the experience of the criminal justice system as victim complainers and it is a very common aspect of victims experiences that they're not notified of the release from either remand or in bail hearings and custody so that they can ensure that they can take whatever steps necessary to deal with that situation I've heard of cases where a perpetrator has been released on bail without police informing the victim complain of such a development which is less than feeling vulnerable and at risk this should also apply to bail appeals because people who were remanded to custody have the right to appeal that decision and so that would apply to that as well so adding an amendment to ensure that a person again from the offences alleged to have been perpetrated is aware of the court's decision to grant bail would surely ensure the safety of victims of crime so amendment 90 Scottish ministers must take all reasonable steps to ensure that a person takes to receive information under subsection 1 and is aware of the right to the information and given every opportunity to intimate that they wish to receive that information so again I think it's one of the issues that goes to the heart of the bill that's the right of victims who come forward and will obviously have their day in court but prior to that I think there possibly may be a omission in the bill in relation to the right of victims and to complainers to be aware where someone has been granted bail certainly in serious cases as distinct from notification from those who are released from prison thank you very much thank you Russell Finlay to speak to amendment 9 and other amendments in the group I believe it's amendment 8 no sorry did you say 9 sorry yes it's number 9 Mr Finlay right apologies apologies yeah okay so I've got two amendments in this group 9 and 89 just by my dodgy notes now as in group 4 those relate to transparency and while researching those amendments I made a bit of a surprising discovery it turns out that section 16 of the Criminal Justice Scotland Act 2003 already gives crime victims the right to know when the person who committed a crime against them is released from prison and this goes back to cabinet secretary's earlier comments about information being made available to victims from the Crown but I would I would bet with some confidence that most victims would have no idea of this entitlement and I strongly suspect that they're rarely told about this so this this bill I believe presents an opportunity to put victims rights front and centre and indeed to extend them so section 16 of the 2003 law only allows victims to know about a perpetrator's release if they're serving 18 months or more so amendment 89 would give all victims the right to know no matter how long the sentence so why should anyone who suffered from a serious crime resulting in a prison sentence be kept in the dark so for clarity amendment 89 would give victims the right to know no matter how long or short the sentence that brings me back to my opening comments about transparency and indeed the earlier comments from group 4 about the importance of journalists to the justice system amendment 9 would create a simple database which records prisoner release dates when someone is sentenced the public rightly expects to know details of the sentence so surely it follows that people are also entitled to know how much time is actually served the right to know is even more pertinent given the confusion about what prison sentences mean in reality yes there is the victim notification scheme but it's been acknowledged that that is not doing the job it should be doing and yes there has been some chinks in the opaque armour of the parole board but accessing basic information can be complex it can be confusing and it can be conditional a culture of secrecy around the justice system remains and far too often the sentence which is stated by a judge and which ends up in the headlines has no bearing on the eventual reality of time served the public are entitled to the truth and a public record of the duration of prison sentences is so basic so fundamental I find it odd that it's not already a matter of public record I think these amendments represent an opportunity for a long overdue reform of the Scottish criminal justice system and in that same spirit I also support Pauline McNeill's amendments 75 and 90 thank you thank you and I call the cabinet secretary thank you Presiding Officer the amendments in this group seek to place duties on the Scottish ministers to provide information on bail and release and make changes to the victim notification scheme or the VNS amendments 75 by Pauline McNeill seeks to amend the criminal procedure Scotland Act 1995 by inserting a new section 33a which would require the Scottish ministers to take all reasonable steps to ensure that victims are made aware when an accused person is admitted to bail While that is very well intentioned I would like to set out Presiding Officer why I'm asking Ms McNeill not to press amendments 75 today Presiding Officer it is the duty of the Crown Office and Procurator Fiscal Service to take all reasonable steps to ensure that victims are made aware when an accused person is admitted to bail either proactively or in cases with no identified sensitivities upon request from the victim it is of course the Crown Office that will have access to information and not Scottish ministers When marking a case the Crown Office have advised that prosecutors must refer certain cases to the victim information and advice team In the normal course of events a victim information advice referral it would be instructed when a case is being marked but a referral can happen at any point during the lifetime of a case should the requirement for a VIA involvement become apparent at a later stage Certain categories of a case must be referred to VIA such as any solemn case with identifiable victims hate crime victims domestic abuse victims and sexual offence victims There is also general discretion for a legal member of staff to refer any case to VIA where they consider a victim would benefit from that service The criteria for a VIA referral is therefore extremely broad where a case has VIA involvement this will mean the victim named in the charge and any witnesses listed in any relevant bail order would be notified by telephone followed up in writing that an accused person has been released on bail and if any additional bail conditions are imposed this would usually happen within 24 hours of the case calling in court For any non-VIA cases where the victim or witness has not been assessed as requiring VIA involvement the victim or witness may contact the Crown Office and Procurator Fiscal Service inquiry point team or the local procurator fiscal office directly to ask about the bail status of the accused and any relevant bail conditions this can be done at any time Brian Whittle I'm very grateful to the Cabinet Secretary and I do recognise the system that she's describing there but I have a constituent who was allegedly raped the member that her alleged perpetrator was then arrested and taken and held in custody and then given bail and she only found out when she walked into him in the supermarket Now I do accept that the rules state that she should have been she should have been told however in reality that's not happening in many many cases so how can we in this chamber then make sure that that doesn't happen again if we don't promote Pauline McNeill's amendment Cabinet Secretary Presiding Officer I very much appreciate the information that Mr Whittle has shared on behalf of his constituent in chamber today it's clearly unacceptable I suppose that the point that I'm making to to to Ms McNeill is that the endeavours the purpose of her amendment actually in effect already exists that perhaps in more detail in law but of course the member points to issues of practice and the events that he describes are of course unacceptable and I'm quite sure that he will be pursuing that vigorously on behalf of his constituent and if he wishes to keep me informed I would be more than happy to to receive any further information or communication from him Presiding Officer just just in summary to Ms McNeill's amendment 75 given the approach that I've described taken by the Crown Office it should be taken by the Crown Office through the operation of the victim information and advice service and the fact that any victim not covered by VIE can ask the Crown for this information at any time I would ask Ms McNeill not to press amendment 75 if she does I would ask members to vote against it Presiding Officer amendment 9 and the name of Russell Finlay would place a requirement on the Scottish ministers to publish a database containing information about the release date or the expected release date of everyone in custody I cannot support this amendment as I have significant concerns that this amendment would place ministers in potential breach of data protection requirements and the European convention on human rights this amendment potentially interferes with a prisoner's article 8 rights the right to a private life and more seriously potentially their article 2 and 3 rights the right to life and the prohibition on inhumane or degrading treatment yes Russell Finlay can we have Mr Finlay's microphone please I'm just curious if the cabinet secretary could perhaps expand on the specific issues of GDPR or data protection that she refers to cabinet secretary well I'm sure I don't need to give Mr Finlay a lecture on GDPR or the importance of the European convention on human rights but it may be more useful to Mr Finlay are indeed chamber if I give a practical example of how his proposition detailed in amendment 9 could put people at risk say for example there was a woman in the female estate who was at significant risk of further abuse from her partner or ex-partner if ministers were to publish her release date it would make that information freely available to the person who intends to harm her who could simply wait outside the establishment she was held in on her published release date and the Scottish ministers would have provided him with that information and to be frank Presiding Officer this is not a risk that I am willing to take and while I appreciate that the motivation behind this amendment is not to cause harm in the way that I have described but it is a possible outcome and if Mr Finlay's amendment is intended to ensure that victims have more information about the prisoner's release date then the victim notification scheme provides that route and we are of course extending access to information about prisoner's release to victim support organisations under section 11 of this bill it is for those reasons that I asked Mr Finlay not to move amendment 9 and if he does I would strongly recommend members vote against it Turning to amendment 89 also in the name of Russell Finlay this amendment would amend the victim notification scheme for victims of prisoners serving sentences of 18 months or more by removing this threshold of 18 months this means that the remit of this scheme would be extended so that every victim where the perpetrator had received a sentence of imprisonment would be eligible regardless of the sentence length of the perpetrator however there is already a branch of the victim notification scheme for victims of prisoners serving sentences of less than 18 months which was brought in by the victims rights Scotland regulations 2015 those regulations inserted section 27a into the victims in witnesses Scotland Act 2014 which has been enforced since 2015 section 11 of the bill builds on this by adding new section 27b into the 2004 act to give victim support organisations the right to information about the release of these prisoners too the information provided to victims under two branches of the VNS differs slightly as it is appropriate for more detailed information to be available for longer sentences which are usually imposed for more serious offences however information in relation to prisoner release and where applicable licence conditions imposed for the purpose of protecting the victim are shared under both branches of the scheme and in terms of the review that's just been undertaken into the victims notification scheme Mr Finlay might be interested in recommendation 15 which makes comments on some potential improvements in and around information around short-term prisoners and their release Given that this amendment would result in two simultaneously but different schemes applying to prisoners serve in less than 18 months it's not clear how these two schemes would operate or interact with each other and the amendment seems likely to bring a significant degree of chaos to the process and I am concerned about the impact that this could have on victims it's crucial that they can be certain about their entitlement to information unfortunately this amendment simply won't do that and I'm sure that chamber will agree that we cannot legislate in a way that will undermine victims rights rather than enhancing them furthermore such a substantial change to the VNS process requires proper scrutiny including consideration of the views of victims rather than being brought in at stage 3 of this bill this is also as I've said a matter of the independent review of the victim notification scheme and the recommendations contained in its report to consider I do not think it's appropriate to pre-empt any changes to the VNS at this stage given the need to collaborate with partners and victims organisations on the VNS review recommendations and the possibility of changes to the scheme in the future the Scottish Government is working with these partners as a matter of priority to develop a response to the report which we will publish as soon as we can I understand the appetite to make changes to the victim notification scheme but I would ask Mr Finlay not to move amendment 89 and to engage with the work yes Russell Finlay Yeah, just to be completely clear I think that the cabinet secretary is suggesting that the review of VNS and the general direction of travel is that this information relating to amendment 89 will be forthcoming is that indeed the case? Cabinet secretary Presiding Officer the Government is still to formally respond to the independent review on the victim notification scheme what I am doing is I am pointing to the importance of not cutting through that work but I do think that the findings of that independent review will be of interest to Mr Finlay and furthermore what I have also pointed out to Mr Finlay Presiding Officer is that there is already a scheme for those victims where the perpetrator is serving less than 18 months in existence and of course the purpose of the VNS review is to improve that further so I do Presiding Officer understand the appetite to make changes to the VNS but I would ask Mr Finlay not to move amendment 89 and to engage with the work coming out of the VNS review at the appropriate time Turning now to amendment 90 in the name of Pauline McNeill this amendment would place a requirement on the Scottish ministers to ensure that all victims eligible to receive information under the VNS are made aware of their rights to receive information and given every opportunity to intimate whether they want to receive the information Currently it is the Crown Office and Procurator Fiscal Service who bring the VNS to the attention of eligible victims after sentencing Requiring the Scottish ministers to be involved in this process would be a significant change requiring detailed scrutiny and collaboration with partners particularly in relation to data sharing I also notice that this amendment only seeks to make changes to the VNS for victims of prisoner serving 18 months or more and there is no comparable amendment in relation to the scheme for those serving under 18 months As with amendment 89 I think the amendment potentially cuts across the recommendations of the VNS review and as such I don't think it's appropriate to be included in the bill at this late stage without the chance to give it the scrutiny that it requires and as such I would ask Pauline McNeill not to move amendment 70 and to await the forthcoming work coming out of the VNS review Thank you and I call Pauline McNeill to wind up and to press or withdraw amendment 75 Thank you Presiding Officer and winding up on the amendment and the scrutiny there is no difference of opinion between any of the parties and the cabinet secretary on the importance of victim notification so that's not the question here I totally acknowledge what the cabinet secretary said in relation to my amendments and how might otherwise being amended differently but I think we would have taken the same approach to it I think it's important to recognise that what Russell Findlay and myself are trying to achieve in this group is to really highlight that it's the system itself which is failing many many victims Now cabinet secretary said yeah in reality yes you can contact Proketer Fiscal Service you can ask these questions but anyone who's ever tried to phone the Fiscal Service Eve's and MSP knows how difficult it is and by the way I've had this conversation with the Lord Advocate who sits on the things that she'd like to change about the system I once wrote to the Glasgow Fiscal and said is there any chance you could call me because it's absolutely no possible chance I can get in touch with you because your phone system is totally inaccessible I'll take her Russell Findlay Wonder if the member shares my frustration that as we examined this bill at stages 1 and 2 we didn't have the same level of detailed response that is now being provided by the cabinet secretary at stage 3 when it's too late in the day to meaningfully address what we're trying to do Yes, I acknowledge that there's a lot of big issues particularly in part 2 that we have to come on to that are huge policy areas and all of which we all have the best of intentions to change this bill it's not out with the scope of this bill to discuss it What I would plead with the cabinet secretary for this piece of work that's referred to it's obviously not enough just to have law and I recognise even if you supported it it's the system itself and needs it needs to be fit for purpose we need to know that if you have a notification scheme victims will be notified and I also do recognise that it may not be in every single case that a victim needs to know but in serious cases of bail and where their bail appears I did think there was on-no-mission relation to bail appeals because I would probably stand corrected but doesn't seem to be provision for notification where someone who's been remanded to custody and subsequently is successful in their appeal so whether or not they should be notified However, I raised it for that very reason to make Yes, I'm happy to take care of it I'm grateful to Ms McNeill pardon me, Presiding Officer really just to point to that some of the recommendations in the VNS review are making some very interesting points around automatic referrals as well which might be of interest Colleen McNeill Yes, absolutely as I think we are all interested in making administration of this much much better than it already is and I think the Parliament is at one however I'm still proposing to move my amendment Thank you very much Thank you The question is that amendment 75 be agreed to Are we all agreed? The Parliament is not agreed therefore we move to vote and members should cast their votes now The vote is closed Mr Balfour I am pleased to confirm that your vote has indeed been recorded The result of the vote on amendment number 75 in the name of Pauline McNeill is yes 50 No 63 There were no abstentions The amendment is therefore not agreed As announced previously we will move to a comfort break just now for 10 minutes or so so back around 10 to but the division bell will ring to advise that we're about to recommend