Felly, ddïdd i'r prosesiwn y Pwyllwr Fifeigol i'r Fifeigol yn 2023. We have apologies this morning from Pauline McNeill and Katie Clark. Before I begin, I want to pay tribute to Firefighter Barry Martin, who has sadly died following the tragic fire at the Jenner store in Edinburgh. O boedd gyrfaenais gw술ionidol, rydyn ni'n ffordd o'r Llywodraeth Cymru, rwy'n gobeithio'r gyflym monts a bwysigio'r Visum Llywodraeth, rydyn ni'n gweithio'r amser maes cyfleoedd yn y Sgoltaeth, ond rydym ni'n gweithio i gyflymu yn ei gwir�llteill. Yn dweud ymlaen i'r tynnu ar gyfer busnes ydi a'i eu bwysigol i'rattiwchi ar arnyn ac yn y bheiddiol i ymddangol i'r variants olywodraeth Cymru, rydym ni'n gweithio ar gweithio'r the cabinet secretary for justice and veterans, and his officials. He is joining us online. I welcome Jennifer Studdart, community justice division, Philip Lamont, criminal justice division, Lindsay MacIe of the criminal justice division, Ruth Swanson of the legal directorate, and Jamie McQueen, the legal director at all, with the Scottish Government. I refer members to papers 1 and 2, and I intend to allow up to around 90 minutes for this session. I would like to now invite the cabinet secretary to make a short opening statement and then we'll move to questions. Thank you very much, convener. I can just echo your remarks in relation to Barry, the firefighter, who has sadly died. It was recorded at Cabinet, the Cabinet's condolences to the family. I think that the First Minister has written to the family and the Minister for Community Safety, who has responsibility for the fire service, has also written to the fire service expressing the Government's condolences. Just demonstrates how much we rely on people in these very difficult circumstances. The provisions within this bill seek to reduce crime and re-offending, and that's the best way to keep victims and our wider community safe in our view. The bill does that by focusing on two critical parts of the justice system, the point at which bail and a manned decisions are first made by the court and then released from prison. Reducing the use of a manned is an explicit call that all members of this committee have made in the action plan that you've agreed and sent to the Scottish Government. Also, if we think back to the debate that we had in the Parliament last year, I think that all parties made that demand to see a reduction in the numbers of people held on remand. That call for action, which echoes the calls of many others, is responded to in this bill and recognises the damaging impact of remand. Remand removes people from their homes, their families, their jobs and their communities. On a member at that stage, he could well be innocent of the crime with which they're charged. We have to remember that there are people who have not been convicted of the crime they've been accused of, but rather only accused of an offence. From a victim's safety perspective, Professor Fergus McNeill described it as follows, imprisonment, whether it's for remand or in particular short sentences, is not a magic box that removes or eliminates risk and keeps us safe. Imprismant is actually more likely to serve as an incubator of risk, so it stores up problems of harm that might come later. Obviously, those downsides can be incurred, even if the person, as I say, turns out to have been innocent of the crime of which they're charged. The challenge that we all face is if the proposals in this bill are not your chosen proposals to reduce remand, then what are those proposals? What lies at the heart of the bail reforms in this bill is an absolute commitment to individual decision making by the court, aligned to public safety, including victim safety, and the recognition remand should, as much as possible, be a last resort. Those ambitions of protecting public safety and using remand as a last resort can coexist. Indeed, in the evidence that you've already heard from Professor McNeill and others, they complement one another. Remand will continue to be needed, and the new bail test explicitly recognises that. There are occasions where remand is necessary to protect public safety and victim safety, and again the new bail test allows for this. There are occasions where remand is necessary to protect the integrity of the criminal court process to ensure that justice can be delivered, and again the bail test proposed allows for this. Those two examples are situations in which remand can and should be used as a last resort. For people who do not pose a risk to public and victim safety or who do not threaten delivery of justice in a case, there has to be a better way to support them in their communities, including supporting them to turn up at court for their trial. This bill and a new bail test is one of the ways that the Government is responding to that call for action, but it should be viewed as part of a wider programme of work already under way, and that work includes increased investment in bail assessment and bail supervision services, the introduction and roll-out of electronically monitored bail, and action to reduce the court backlogs, which have reduced by at least 13,000 since last January. The bill proposes a more prescriptive bail test that's mentioned by some of your witnesses during your sessions, and I'd say that up front it is more prescriptive, but it's prescriptive with a purpose, namely to ensure that remand is used only as a last resort, so where public and victim safety requires remand or where delivery of justice in a case requires remand, the bail test allows the court to use remand. I know that the committee has also heard a range of views about the proposed removal of section 23d, and I have listened to some of those sessions and read the transcripts from those. Section 23d is the current restriction on bail for certain accused persons, and the bill proposes to remove section 23d for one simple reason, so that in all cases the same core bail test with public safety at its heart applies. You'll have heard there has been support from those who use bail law for this simplification measure, although I can also understand why some concerns have been expressed, and no doubt that issue will be discussed this morning. The words public safety have been part of bail law since 2007. There was wholehearted support for that step at the time, including I know she's not here today but Pauline McNeill, I think, and nobody indicated at that time the need for a statutory definition. I'm not aware of any cases where the lack of a statutory definition has caused an issue. That's the context of the debate I know members have been having, so if I can just explain a little bit the Government's approach. The bill does not include a statutory definition of public safety, but there is a definition, and that is the ordinary meaning of the words. In legislation where the ordinary meaning of words is meant to apply, it's common practice not to include statutory definitions. For the word safety, the Oxford English section of the meaning is the state of being protected from or guarded against hurt of injury, freedom from danger. Therefore, offences, the nature of which pose a risk to safety, would be those that would threaten to cause hurt, injury or which present a danger. The word public has been held in case law as meaning either the public in general or a section of the public as the context requires. The ordinary meaning definitions reflect the policy intention of the meaning of the phrase public safety in the bill. As such, we have to ask the question what benefit is to be gained by adding a statutory definition. It is also worth pointing out that including a statutory definition is not without its own risks. There may be unintended consequences if the definition is limited unnecessarily. However, I would say to the committee that, as with all aspects of the bill, I very much welcome the committee's views in this area in the stage 1 report. If the committee does take the view that a statutory definition would be beneficial, I would be interested in the committee's thoughts on what a statutory definition should include and whether, specifically, it needs to be different to the ordinary meaning of the word public safety. Turning now to part 2, release from prison, ensuring that those leaving custody have their basic needs met on release is critical for a safe transition back into the community. It reduces the risk of re-offending and, surely, that is what we are all trying to achieve. It results in less crime against something that we all want to see, fewer victims and it also provides for safer communities. That is why the bill includes reforms to improve pre-release planning and through-care support provided to individuals on release from prison, recognising that a range of universal services have a role to play. I am sure that we can agree that all agree that those principles are important. Lastly, I just touch briefly on resources, in particular the role of justice social work, which I know has been a focus of your deliberation so far. The provisions in this bill recognise the critical role that justice social work plays in supporting people and keeping our communities safe. We recognise that the enhanced role of justice social workers in the bill carries resource implications and they were set out in the financial memorandum informed by engagement with Social Work Scotland and COSLA. I do not have to tell anyone here. I hope that the financial landscape is extremely challenging and that we will need to continue to make difficult choices. Despite those challenges, we have continued to protect the community justice budget such that, in 2023-24, the Scottish Government intends to invest a total of £134 million in community justice services and that includes £123 million to local authorities. We will continue to engage with Social Work Scotland and COSLA on the future resources and requirements of the bill. Cabinet Secretary, I know that some of the issues, in particular that last point that you made regarding resourcing, will certainly be the subject of members' questions. Can I just ask, in the spirit of a smooth session, if you would like to bring in an official, if you let us know who that is so that we can press a right button and bring them in quickly? I will now move on to questions. If I may, I would quite like to ask an initial question touching on the issue of why make changes to, in particular, the law on bail at all. That is something that has come up during our evidence sessions. Aren't there other options that could be considered that would still meet the objective of reducing the remand population? I note that, in the policy memorandum, it refers to the criminal justice committee's own report, Judge Dawn Progress, in which we called for a reduction in the overall numbers held on remand and that alternative approaches were considered. However, it was the judiciary that set out that meaningful change in how custody is used would require specific legislative reform, which is also included in the policy memorandum. I note also that the Scottish Government consultation on the bill indicated that, just under two thirds of respondents agreed that judges should only refuse bail where there are public safety grounds for doing so. If we are seeking to reduce the remand population, can you outline a bit more about how the status of bail that is placed on somebody can be changed or improved so that it is more effective as a community-based option or measure, both in terms of supporting the person that is subject of that bail status but also the wider public and particularly victims? Many respondents did point to the need for legislation. I cannot remember which one, but one of your academic contributors was very clear on that. I think that another member of the judiciary, who is also speaking for the Howard League, also mentioned the need for that in this area. How would it improve things? Your point, if I am correct convener, is about how can people have more faith in the bail supervision side of it. First of all, if we can get it right in terms of those who are given bail such that there is public confidence around the fact that the interests and victims of others and others and by others you could mean juries where there might be a threat of jury tampering or intimidation of witnesses and so on. If we can get that right, then of course it must mean that the ability to be more effective in terms of bail management starts off in the right premise. Beyond that, bail supervision, I think, there has been the case. There has not been, if you like, the shrivel or judicial confidence across the country. That has been there in the past, so we have given more money over the course of the last year to improving that. I think that we have 30 now local authorities providing that with the other two scheduled to come on stream. In addition to that, where the bench may consider electronic monitoring and want to have confidence in that, we are now up to 21 of the local authorities providing that with intention that gets rolled out across the board. Of course, there are technological and yet untapped existing potential for that to go further, and much more nuanced use of electronic monitoring as well, whether confined to a particular location or whether to ensure or monitor whether a person is taking drugs or alcohol, which could exacerbate things. I think that those are the ways in which we, by providing the resource for that, can help matters. Going back to the, if you like, the input, who is on bail, having the provisions that we do, proposing here for just as social work reports, I think, gives us a better basis not just to the court to decide whether to grant bail but also to those who will be undertaking the bail supervision. What are the points of concern here? What has to be leaked after? I think that those things together will make for a more effective bail supervision and will give more confidence to the bench in taking those decisions as well. I know that members will probably ask some more questions about the resourcing side of things. I would like to follow up with a practical question around the broader role of criminal justice social work that is outlined in the bill in terms of how it informs court decision making. So far, we have received a lot of evidence from witnesses that indicates support for this proposal. However, in terms of the practical implications, in particular the resourcing and the time issue that can come into play around that. For example, the judiciary articulated a concern about, I quote, the unnecessary detention of individuals while information is gathered. So I am assuming from that the potential for somebody to be remanded, albeit for perhaps one day, while information is gathered. This could be a particular challenge in rural areas, for example. I am just wondering if you can outline a wee bit more about how that might be addressed. I think that there is no question as many of your witnesses have said that there is going to be a demand, resource demands, especially in justice social work. The ambitions of the bill have to be made by that resource provision being in place. I think that it will take time to make sure that that happens in advance of the bill being commenced. It has to be the case that we must minimise any delay that there would be. That is the intention there. Of course, it is the responsibility of the Government to make sure, along with others, to make sure that those things are in place. However, I say that there was a delay in a case in which the justice social work report then came in where it would not have come in previously and that allowed somebody to get bail. If you are talking about that delay, however, it would be hours, possibly a day, compared to the number of days or weeks, months, even, that somebody might be on remand, there is a substantial benefit there to be had. I think that what we have said is that we recognise that if we put more money in this year, I have given you some of the figures already. This year, I think that an extra £15 million split into two chunks, £11.8 million and £3.2 million, for those specific purposes, to increase the bail supervision capacity that we have. That is the way that we would intend to meet it, but we are not at all denying that this is going to present a resource demand. Thank you. I think that there will be similar questions to cover that in due course. Collette, you would like to come in, followed by Fulton Collette? It is just picking up on the resources element of it. One of the things that Professor Fergus McNeill mentioned was the justice social work presence within each of the sheriffdoms. We have taken evidence to suggest that they are not always present, so there is lack of uniformity across each of the sheriff courts. I was just wondering if, in terms of resources, is that something that you are looking at within that bill and how you would tackle that? Yes, we are obliged to, in any event, in terms of the financial memorandum that will accompany the bill. In addition to what I have just said, we have provided £53 million in the current year to try to reduce backlog and to make other provisions that will impact in this area to try to make it more a more effective service to the courts should they wish to do it. However, the fact is that the current provision does not require the level of justice—just to state the obvious and make the point that you have made—it does not require the level of activity or presence from justice social work, as will be required by the bill. Necessarily, justice social work is going to have to be present to a much greater extent. It is going to have to step up to do these things to make reports as quickly as it is able to do. On the one hand, justice social work is going to have to step up, and on the other hand, the Government is going to have to find the resources to make sure that they are able to do that. I think that that is recognised. I have mentioned the figures currently that we put in. I have mentioned, of course, the fact that the bill will have to be accompanied by the financial provisions as well, so we understand that challenge. On recording the reasons for refusing bail, do you have concerns that the parties in the case are not aware of why bail has been refused and the resource element of that? What is that really intended purpose? Is it to ensure that we can carry out research on bail and remand going forward? If you could elaborate on that, that would be great. I think that that is one of the really interesting parts of the bill, because, as you have hinted at in your last point, what you will get from this is a scene of really rich information that others can use, which is the statement by the Court of Work Why bail was not granted. I think that that will lead over time to greater refinement of these decisions as well. I think that some of the academic witnesses that you have had have said this as well. They think that it will be a really rich source of information, where very limited information currently exists, so I think that that is perhaps a main benefit. I know that it is another process for the Court to go through, but I think that it will be extremely productive. I wonder if I am trying to get the right official. If Philip Lamont wants to comment on that, yes, he is putting his hand up. I have got the right person. Thank you, cabinet secretary. The only thing that I would add is that, in terms of the resources, it will impact on Scottish courts and tribunal service, because they will have to adjust their IT systems so that that information can be recorded. We think that that will be manageable through a phased implementation. As the cabinet secretary said, the aim of it is to increase our collective understanding of the Scottish Government, Parliament and others into why remand is used, because one of the main challenges that we had—I think that the committee has had an understanding of how remand is used—is the dirt of actual data as to when remand is used. There have been some one-off research pieces done in recent years, but that will over a period of time develop a rich source of information, and that is the aim of it. Okay, thank you, and we'll bring in Fulton, and then Russell. Yeah, thanks, convener, and it's very much in the same area as Collette Stevenson, good morning to the cabinet secretary and the team. It is about the resourcing of the criminal justice social work to do this. I mean, you've actually answered the first part of my question, cabinet secretary, in the response to Collette, as I said. How do you see it working? Will the Government give any direction or guidance to local authorities or potentially in the future of the national care service about how the team could be developed? Obviously, just now you've got—well, every area has got a community justice team which deals with the community payback orders, etc. Most areas have some sort of court team, which is usually pretty small, with maybe Glasgow being a somewhat exception.  How can we ensure that the court teams get this resourcing? Is that effectively how you see it working? Well, I think that, as Philip just said, there will be that demand, you're right, in relation to just the social work services to step up here. However, there's also demand in the court service, as has been described. In relation to the justice social work and the relatively uneven provision across the country, I've mentioned how already we're taking steps to improve that, and we've seen improvements over the course of the last year, and that's by providing additional resource. What we're doing is, as part of the bill, being involved in discussions with local authorities and with Social Work Scotland. It will be for local authorities, as ever, to decide how to deploy the resources that they have, but at the bottom of that is going to be that statutory requirement for these services, for the court to have these services, so we're going to have to meet that. The task for us now is to make sure that we build on the additional resources that we've already provided to make sure that justice social work has the resources to do that right across the country. That is the challenge. We currently invest a total of £134 million in community justice services. That includes £123 million to local authorities, and we've made a specific investment this year of £3.2 million to support bail assessment and supervision services. That's having an impact, as I've said, with more local authorities. I can't remember where we started from in the beginning of the year, but it's now a service available in 30 authorities. That gearing up has already started, and we know that it's got further to go, and we have to provide the resources for that. However, that will be detailed in the financial memorandum, and it will be as a result of the discussions that we have with COSLA and Social Work Scotland. In my personal experience, I think that that could work with, for a better word, a beefed-up COSLA teams across the country. You could almost get a mirror image of what happens in the community justice teams with community payback orders with bail supervision, which could be really beneficial right across the whole system. We've also heard quite a lot of evidence, as you'll know from witnesses, quite supportive of the aims and principles of the bill. Our own adviser to the committee believes that the bill is a good way to bring about the policy memorandum, so it is all very positive, but a lot of it, if anybody's coming back to us, is going to be about resourcing, not just to Government-given those resources, but also in those communities. I wanted to ask you about the bail supervision aspect of it. Do you see when that bill was implemented, those bail supervision teams being much more robust, much more work being able to do, being able to be done with individuals and therefore courts having a lot more faith in it? That's the two sides of it that you rightly identify. On the one hand, we need to get proper bail supervision services in place. One factor that underlies our concern is that we didn't have that level of consistency across the countries and measures and the resources that put into making sure that that happens over the course of the last year. That is the one side of it. You want to have effective bail supervision, but the other side, the critical side for some of the intentions behind this bill is to make sure that the courts have that confidence. You will see that. I'm not sure I saw any evidence that the committee had, but I'm happy to acknowledge the fact that there's a variability in the confidence that different sheriffs will have, depending on where they are in the country, at least to how effective bail supervision is. If they are confident that bail supervision is there, then that's got to lead to a more proactive approach from the courts saying that we know that this is a real alternative and that we know it's a safe alternative, so that's the route that we're going to go down. Can I maybe just move things on? I'll come back to you Fulton. I'll bring in Russell and then I'll bring in Gona. Thank you, convener. I just want to begin by also echoing your words about the firefighter, Barry Martin and the tragic loss of life. In terms of resources, we've heard from your ministerial colleague, Kevin Stewart, that the national care service, we won't know until late 2024 whether criminal justice social worker will be part of that. Do you have a view on whether it should or it shouldn't, and do you have a view on what impact I might have on respect of this bill? I don't think that I'll have an impact on this bill as it's going through you, given the timescale that you've already mentioned. I do understand the arguments, many arguments, for and against, but one of the crucial ones for inclusion is the fact that Social Work Scotland believes that the entire profession, being under the one umbrella, is very important. However, I do think that there's a difference. I know that this is probably not helpful to give both sides of the argument, and there are quite a lot of different arguments on both sides. However, the other side of it is that there's a different nature to social work from other aspects of social work, in terms of court-ordered and various other aspects of what they do, as compared to other social workers. It seems to me, in that context, that the right thing to do is to build up a body of evidence, which is what we're currently involved in doing, to support whatever decision is finally made on that. I was keen at the earlier stages when we were discussing in Government and National Care Service that we did do that first. We're doing it with a purpose behind it to see how effective we can make it if it is to become part of the NCS. However, we are willing to listen to if that body of evidence comes back and says, no, that's not the most effective way to do it. I think that that's the right way to do it. Does any decision you're taking, based on the best evidence possible, I think that there's another aspect to your question, which I've forgotten. Thank you. Going back to the financial elements, we've got some additional written evidence from South Lanarkshire Council, which suggests that, by their calculation, the additional burden on the injustice of social workers would come in at £700,000 a year. However, they actually think that's an underestimate, because that's based on quite dated figures from the Scottish Courts and Tribunals Service. Given that, it's just one of 32 local authorities, and you can only imagine that this financial burden could be quite significant across Scotland, is the financial memorandum, as it stands, realistic or in light of those concerns? Does that need revisiting? I think that we'd always listened to local authorities, but, interestingly, I think that the causallist spokesperson with whom we carry out these discussions primarily is also from South Lanarkshire Council, I think, I'm right in saying. Of course, we listen with local authorities, and it will often be the case that we'll have different views on it, but we have to evidence those views, so I think that it should also be seen in the light of the increased investment, which has already taken place up to this point. I think that one of the things that was done this year, which I think is really important and not always easy to achieve, is that you, at the same time, was trying to encourage some authorities who were not providing the services at all to get off the ground to provide those services. You don't want to punish those that are currently providing the services, so you will have to help them improve their services. I think that we did that very effectively with a split of, I think, from memory £11.8 million and £3.2 million for different purposes. We have funded these things already, we're not starting from a standing start, but of course we'll continue to have discussions with both COSLA and Social Work Scotland, and this is part of the general process of trying to find exactly what the resource requirements are. I don't think that this committee, nor any other committee department, gets through many evidence sessions where the issue of resources does not come up and it's often contested, but we will try to reach an agreement with COSLA in relation to this. South-South Alhansford Council will make an interesting suggestion that, given the additional burden on them and their social work department, funding should be transferred from Scottish Prison Service to local authorities. I don't know if they mean that the prison service would pay for the services that the council would provide or whether a Government would be required to reduce Scottish Prison Service funding, which I'm sure Theresa May has met her still of strong views on and divert it to local authorities. Do you have any thoughts on that idea? Is that something that you might support or explore? No, but I think that what might be underlying the point there is that if it's the case and we're very careful not to make any projections based on this bill about the reduction in the remand population, but if you see a reduction in the prison population that obviously makes resourcing slightly easier if you like for the prison service, so maybe the point is that a successful implementation of this bill might lead to savings, which might help them to get further resources that way and some reasonable observation for them to make, but no, we're not looking to cut the prison budget to fund any of this. I would like to ask you, as I've asked practically all the witnesses, about section 23D and you spoke about it in your opening statement. I was having difficulty understanding the support given for the removal of that, and after a session with the adviser this morning, I'm much clearer in my mind about that. He described 23D currently as a kind of red flag, you know, just to sort of mark out, but he also said that, you know, if Bill was refused in section 23B and C, then it was almost redundant in section 23D. Given that, I put it to him that obviously the message going out is perception to domestic abuse victims in particular in women's organisations, possibly not a good message. You spoke about one safety test being applied and, you know, with the removal of that. I'm just going to ask you if, you know, one safety test applies to the very unique nature of domestic abuse, where it's individual risk and not necessarily public risk, and so it's just to reflect the concerns that stand around this. Yeah, and I'm not sure I could be any more articulate in this point than many of your witnesses have heard from the Law Society, the Faculty of Advocates, even Sheriff Mackie and others who don't believe that this was a good measure. They weren't entirely certain why it was introduced in 2007, and they believed, I think, I'm writing saying, that it did to some extent fetter the court as well when it was trying to make a judgment, but I think you're right to put your finger on the potential concern there, but I think public safety, just to say, is going to be at the heart of it. It will be, I think, the case, although it's obviously for the courts that decide that virtually anybody that was refused bail under 23D is likely to be refused bail under the new test, but it does bring more consistency, so it specifically includes the concept of victim safety, which is important to the point that you're making about victims of domestic abuse, as a factor when making a determination on the person's entitlement to bail. It goes further in saying that any assessment of the risk should be physical and psychological harm to the victim. Section 3 does remove that part of the 95 act. It doesn't remove the protection for victims as a new bail test will be applied in every case, and repeal does not mean that those accused of serious offences who pose a risk to public safety will now be admitted to bail under the new test. That's because the type of offences that 23D covers sexual offences, domestic abuse offences, violent offences are all offences, the nature of which relate to public safety, and that includes complainer safety. So, as such accused persons are mandated under 23D, a present might in future, I think, in many, many cases, also be remanded under the proposed new bail test, and that also has essential considerations to justify remand on public safety grounds where relevant. I think that that will help to keep the complainer safe from harm, and of course, as I've said, not directly related to the categories that you've referred to, but it goes further in terms of people that might prejudice the process, intimidation of witnesses or complainers or even potential juries as well. I think that I would hope that reassure, and we're working with different groups to make sure that reassurance is provided. That's important. I think it's just getting the message of reassurance out there, because at first glance, the perception is that, oh, that's the red flag removed, the safety net's gone, but it's not that, really, when you drill into it, so that's helpful. Thank you very much. Okay, thank you. I'm going to bring in Jamie in a moment, but I wonder if I can maybe just come in with a question around sentencing, where a person was on bail but subject to a curfew condition. I'm just interested in how you would respond to the argument that time spent on bail, subject to a curfew condition, should not be a substitute for time spent in prison as part of a custodial sentence? The other side of this, the other side from the points that Rona Mackay has rightly made, is the rights argument for everybody under the system, and whether we like it or not, everybody has rights and they're underpinned by the European Convention and other legislation, and this Parliament and its legislation is obliged to follow them. First of all, it's important to say that, on remand generally, you are fundamentally affecting somebody's right, you're locking them up just to stay at the obvious point when they've not yet been convicted of a crime, and that's why we think it should only be done in the circumstances that you've mentioned. But also, if you're putting somebody on bail that's subject to, for example, electronic monitoring, you are curtailing their rights, you have impacted on their rights in a number of ways, the freedom of movement and so on, and being monitored by the state, so I think we need to recognise that, and I think leaving the courts with a discretion to recognise that, I think, is important, and it's done in other jurisdictions as well, so I would be supportive of that being taken into account. Okay, thanks very much. I'm going to bring in Jamie Greene. Thank you. Good morning, cabinet secretary. I'd like to just ask a few perhaps more philosophical questions about the nature of the proposed legislation. Obviously, it comes in two parts, the first dealing with the issue around bail and the parameters around the court's decisions, and the second around release and custody. You said in your opening statement that the intention of the bill is twofold to reduce crime and re-offending. I wondered if you could explain to the committee which part of part one of the bill around narrowing the conditions for bail and remand will reduce crime and re-offending. The quote that I read out at the start by Professor McNeill was quite useful in this philosophical discussion where he said that the idea that remanding somebody reduces or eliminates the risk, I forget the exact quote that he used, I do think, and he said, there is an increased risk. Sometimes if you imprison somebody, especially in situations where they've then found to be innocent of the crime against which they're charged, then I think you increase risk by doing that. Somebody's then put into the prison system and I know that we would all agree sometimes currently because of the pandemic for longer periods and we'd otherwise like to see sometimes for months. I do think you are increasing risk through that process and with that increased risk I think there's, it's not recidivism in that case because they haven't committed an offence, but I think the likelihood is, bear in mind that these days the prison population in Scotland is much more violent and sexual offenders, a far greater proportion since the presumption against short sentences has passed. So if that's who people are then being incarcerated with, even when they're innocent, I think there's bound to be a risk attached to that. I think that's what Professor McNeill was saying, so I think that's where the increased, that's one area at least, where the increased risk would come in. But isn't that by its, what you've just said isn't that by its very nature vindication that judges and sheriffs are sending people to prison on remand because of the nature of the types of offences that they're in front of the courts for. So, I mean, there is the sort of perception I think, or at least the Government are stating that we do have a high remand population as you know the committee, committee previously, criticised the Government for that. But is that because too many people are being sent to remand in the first place or they're spending too long on remand because those are two very different things and they're dealt with very differently. This bill seems to address the latter by implying that too many people are being sent to prison on remand rather than addressing perhaps what is the real issue which is the fact that there are not too many people being sent to prison on remand but they're just there for too long. Yeah, I think the length of time on remand as I've just conceded has been exacerbated by the pandemic. It's true of, I think, every jurisdiction. But the concerns about the high levels of remand in Scotland predated the pandemic, this has been a long, I think this committee's predecessor 2018, they've reported at that time, said exactly that. But it's been said many times. And we still have, compared to England and Wales, we've a higher remand population other than Wales is growing very, very fast and we now have a higher prison population in England than we have in Scotland the first time, I think, in many years. They've seen a huge increase, although a huge increase of 50-year high in terms of their remand population, although still not as high as in Scotland in terms of remand. So we are sending more people to remand and we are trying to deal with that. But we're also dealing with the other point which you rightly make about how long people are spent on remand. I think I mentioned that the reduction in terms of the backlog, although I conceded it's mainly in the summery side rather than the solemn side, is now over 13,000, which is a fantastic achievement over the course of the last year, down from 44,000 odds down to 30,000. So we are tackling that. We're not blind to the fact that, of course, I've just made the argument to you that being remanded can have a negative effect on risk. Being remanded for longer increases that risk. I conceded that point and we are trying to deal with that as well. Okay, so here's what I don't understand though, is we're using legislation to reduce the remand, or the intent of the bill is to reduce the remand population by sending fewer people to prison in the first place. And there's been a debate, I think, amongst the judiciary of whether the bill will meet its objectives because there seems to be a school of thought that remand hearings will just progress as they currently do, because of the lack of clarity around the changes to public safety issues. But the Government seems to think that it has got an ambitious reduction in the numbers. But if we go back to 2015, the remand prison population in Scotland was just shy of 20 per cent. So over the last seven years that's increased to nearly 30 per cent, which is probably where it sits about the moment. Can I ask what's driven that? So what over the last seven years has resulted in our remand population rocketing? What legislative changes have taken place that we're trying to reverse? Or why is legislation needed to address what seems to be quite a short-term spike in the increase in remand population when historically actually it was there, thereabouts and in fact it's favourably comparable to England and Wales as far back as the year 2000 and at the moment is still considerably short of many other comparative small countries with a similar population such as Denmark, Sweden and Norway who have remand populations of 30 per cent, 39 per cent and 25 per cent so they're not low either. So I'm trying to get my head around why the Government is using legislation to address what seems to me a very marked but short term increase. Well as I hear I don't think it's obviously it's easier for me to talk about the time that I've had responsibility in this area but I don't think it's a short term increase or I don't think the concern has been just a recent one and I've mentioned 2018. I could actually read out the quotes from various members. Yeah I know you've got quotes but the statistics are in the year 2000 the remand population was 16 per cent, 2005 it was 17, five years later 18, five years later 19 so it's creeping up but I admit that by around 1 per cent every five years but it jumped by 2022 to nearly 30 per cent so what happened? The pandemic is a major factor in relation to that obviously with the court system having to operate on an extremely restricted basis then that's the result of that very large increase that happened which other jurisdictions have seen as well but on the one hand you know I think many of your witnesses have said that they do believe quite explicitly from their expert position that legislation is required to change this and I do think if you go back into the history of this there have been a number of attempts trying to almost by persuasion respecting the different independence of the courts are trying to achieve this reduction in people on demand for the best of reasons it's not been effective and we believe that legislation is required. I did mention and I won't read them out but there are quotes demands from individual members of this committee to deal with the remand situation there was no distinction made at that time between legislative and non-legislative measures to just get on and deal with it and I did say in my opening statement this is how we think we should deal with it based on information we've got if there are other suggestions and I've actually asked the individual if you like stakeholders within the justice system if you've got a suggestion as to how we can do this please do it and just to correct a couple of things we have not said that the primary purpose of this bill is to reduce numbers in prison we haven't made that statement we have had to give I think there's been some indicative figures of what a reduction might look like by one of our stakeholders but this is the purpose is to make sure that only the people that need to be held in custody are held in custody that's the primary purpose and we think this is the best way to do it. Is it your view then or is it the Government's view that the wrong type of people are being remanded because again looking at statistical data the nature of offences is really really enlightening what has happened over that period that I mentioned where there has been a huge spike in the remand population is the nature of the offences for which people are held on remands so crimes of violence has doubled over that period crimes of sexual violence have doubled and at the same time crimes committed by people on bail for similar offences has been markedly high so there were 14 murders in Scotland committed by someone on bail and 770 attempted murders of serious assaults and again that number for rapes attempted rapes is high as well so from what we can see it's really we're not sending low level criminals to prison on remand in fact one percent of summary cases end up in remand it seems to be that the high numbers at the high court in those solemn cases where the offences are grave and serious so as the government suggesting that there are people who are currently on remand for those serious offences that should be walking the streets because this is what I can't get my head around. I think first of all it's not for us to say whether people on serious offences if the court system has been wrong in relation to that although I think one of your expert witnesses now maybe come to Philip you'll have the exact reference to it said around 21 percent in their view of prisoners did not need to be on remand and the point of the bill one of the points of the bill is also to take into account the gravity of the offence as well as the likelihood of the risk of further offending and of course to have a sensible estimation of the recidivism the offending rate of those on bail you really have to compare that to what it would be if they'd served in custody the two rates I think are a very useful comparison so we do think there are people that and not necessarily listen to serious crime I've just mentioned the fact in response to Rona Mackay the vast majority of people I think that are currently remanded under 23d are likely for the same reasons to be remanded in future but we do think there is a cohort that need not necessarily put on remand and it would be useful to hear from Philip in relation to that as well if you could to come in. Philip would you like to come in? Thank you and cabinet secretary it's just to add I think there's a figure maybe the cabinet secretary was referring to by maybe 21 percent I think that might be a reference a stakeholder indicated to the committee about the number of people on remand tonight they not receive a custodial sentence which I know the committee have been looking at and yeah so ultimately the focus of the test is to ensure that those who need be remanded as a last resort are and that's the focus on public safety including victim safety and prejudice to justice and on the question serious offenses clearly violent offenses sexual offenses serious domestic abuse offenses would be caught by that test and so the government has not predicted in the financial memorandum that there will be a particular reduction in the use of the remand it's just that the test will be more focused so that as people flow through the system the court has to apply that focus test in the future and from that should be a more focused use of remand but it will be for the court in each and every case to make that decision based on the cases they are dealing with. Just on the point that Philip's made there so one of the criticisms rightly raised last year was the fact that you might have somebody on remand for a longer period than the sentence that they eventually received or you might have somebody on remand kept in custody with other criminals who is found not guilty but you could have somebody who then receives a sentence which is non custodial so we've kept them in custody for that period of time even though the crime of which they've been convicted is just by the courts to be deserving of a non custodial sentence so it's to capture that as well I think. So we heard from evidence last week from Scottish courts and tribunal service and I'm happy to ask us to Mr Lamont and the cabinet secretary from David Fraser who said I've managed to determine the number of people who are on remand in awaiting trial in our legal system. In summary cases only 1% of people on remand for sheriff and jury cases it is 12% and for high court cases it is 27%. That contradicts what I've just heard from Mr Lamont who says that if by the very nature of those types of offences those people will probably likely be held on remand anyway even under the new rules surely that then contradicts the purpose of the legislation because if you're trying to reduce what you would consider cabinet secretary is people who are held on remand but don't need to be but at the same time we're saying that people who commit serious offences and rightly should be held on remand will still be held on remand so the two don't add up so either those people will still be held on remand or will be letting them out with bail conditions so I'm a bit confused as to what the purpose of the legislation is because it's clear from the statistics that the lion's share of people held on remand are there through high court cases which are normally quite serious cases which normally will result in a custodial sentence? Perhaps the lion's share is not what we are looking to tackle here it's the other part of it if you like but I'm a little bit... That's only 1% so the summary cases are only 1% so the very few summary cases are very few people in the summary case are held on remand which is where you'd actually think the bulk of it would be in which case there absolutely would be a problem but it doesn't seem to be a problem. Well that doesn't necessarily relate to the nature of the crimes of which they're acute it does to some extent I realise that but I suppose I'm a little bit confused. What is it within what we propose in the test that's proposed that does not go far enough to capture more people that you'd be concerned about? I say this because I think the discussion with the committee is also to be a bit of a dialogue I'm happy to be questioned but we're generally looking for other people's ideas in relation to this so if there's a category of people that we're not going to capture with these proposals I'm happy to hear that but I don't know since you've asked Philip a bit of contradiction in his statement where we should hear from Philip too. Thank you and I think I'll be for others to judge if there's a contradiction I suppose I would just make one point about summary cases obviously the volume of summary cases is much higher than solemn including high court there's thousands more cases of summary cases a year so even 1% of summary cases is a significant number of people albeit perhaps for a relatively short period who are held on demand and so the undue harm that can be caused through short periods and custody even if proportionately it's quite a small number in absolute numbers can be a significant number given the volume of summary cases that goes through the courts each year. I mean I could talk all day on this subject but I appreciate a lot so other members but I'm happy maybe to come back in if it's time later. Thank you okay Russell you want to come in and then I'm going to come back to Fulton. Thank you and one of your earlier answers you spoke about philosophical issues around bail and this question is going to be an attempt at a hybrid of a practical and a philosophical question so in terms of some of the evidence we've heard from Victim Support Scotland they've got serious misgivings about the bill you'll be aware of that they effectively say more bail it was more crime the Scottish Police Federation have said to us that quote it's another good day for criminals however the social work academic kind of lobbyists to kind of put them into one one group are largely supportive of what's being proposed and one of the contributors from from that side of the argument talked used the phrase a risk appetite and that struck me has been quite interesting the point they were making is and this is the philosophical part that the public need to almost be persuaded that the the risk in changing the system quite radically may lead to more crime in the streets potentially and that is just a quid pro quo in the benefits that you would get from from not having people in remand and so on so given what Jamie Greene's just said about some of the serious offending that takes place by those in bail and the inevitability that that will will continue no matter what the system do you think the public have the appetite for that risk and what can you do as the cabinet secretary to perhaps persuade people about this direction of travel and it's quite philosophical but I'm just very surprised and delighted to be asked by both the concept of members to get involved in the philosophical discussion about this which is a pleasant change but just to say that I can't really talk through the interpretation that whichever the academic was that you're referring to put on this I would acknowledge though that risk is a part I think I've said this in the chamber recently risk is a part of the justice system it's a part of every justice system that I know of happy for anybody point to me a justice system where whether it's pro boards of courts or other parts of the system don't have to balance risks on a regular basis so I acknowledge the risk that's there but I think what we're trying to do is to minimise those risks but and you can argue going back to an earlier answer I gave that by reducing the numbers of people that are on the man that don't necessarily need to be on the man you're also reducing risks so I think there's a element of this bill which helps to reduce risk and of course the part which we've not really got on to so much just now part two is also designed to substantially reduce risk so I would say the package of proposals we're making is designed to reduce and we're not asking the the public to trade risks to accept a higher level of risk we think we are trying to minimise risks but you started off by saying there are quotes from as if there was a dichotomy between different groups of witnesses I mean I've got a number of quotes from victim support Scotland that are supportive I think Kate Wallace said it seems to me one of the main purposes of the bill is it will potentially strengthen the approach to public complainer and victim safety and also given the size of the remand population so there is I think that also from the police I can't put my hands in it just now there are also quotes out of the police with Erwin you mentioned supportive quotes of what we're doing here as well it's probably never going to be the case it will get either everyone to agree that's not going to happen or that people who do agree with it will agree with every part of it or people who disagree will disagree with every part of it I accept that but in the end result the purpose of government is to show leadership in relation to this so we're putting this forward but I think at this point it is really important to reiterate the point I made before I think it was possibly Jamie Greene that said in the chamber we have to where it was we have to wrestle or wrangle with this issue might have been Paul McNeill and forgive me if I'm wrong and that's what we're doing and we're not saying that we've got a monopoly on wisdom if people have got better ideas how to do what everybody here says they want to do which is to reduce remand then please come forward and say this is the way to do it and we're happy to look at that yeah I mean I understand the victim support Scotland produced a considered evidence some of which was supportive of the intent but it remains that they believe that the outcome will be more people will be mailed more people committing crime and indeed police evidence the Scottish Police Federation's position was different in parts to what Police Scotland had to say about it so but it's just worth putting those views to you on the record I think so thank you thank you thank you um Fulton do you want to come back in if not I'll come in with a question what I'm just going to ask is sort of has now been more or less covered in those conversations moved on from so I'm happy to leave it can be done okay okay I'll bring you in on a second Rona I wonder if I can maybe just come in cabinet secretary and just ask a couple of questions around release planning and through care support for prisoners so within sections nine and ten of the bill they seek to improve release planning and through care support so can I ask how the Scottish Government will ensure that relevant bodies involved in release planning and through care will be resourced and the capacity to implement the proposed changes will be sufficient for them what first of all is the legal aspect of it whereby we'll name public bodies who will have an obligation then a legal obligation to engage in pre release planning now I would say that I am aware of different practices across the country in Barlinny there's some very good practice in a particular location on the prisoner state where different bodies get involved and talk with prisoners in advance of the release quite effectively I think it can go further so for example somebody being released that say they live in Western Isles say they're released on a Friday afternoon say they've got an addiction problem and they have no house to go to I mean that seems to be setting somebody up to fail in my view so the idea that local authorities and others will be named to make sure that that planning is done before that person's release so they can get to where they need to go that they will have the support they need I'll give you one example I know the committee went to see new routes through in Glasgow I don't know whether you got the same example that I was given of one of the chaps that was there saying he was released by the Friday of that week he ended up in a pub he didn't have alcohol addiction but he did have drug addiction and because he felt particularly low that temptation was there he in that case I think was maybe not saved his right idea but he was hugely helped by the mentor the scheme that they have there to prevent that going any further but if that support is not there you can see where things end up and it's got to be joined up so that transport someone's housing options social work support if that's required so I think those things are too hit and miss just now we have to be more co-ordinate in the way we do that most local authorities where they have responsibilities are resource to provide those services in any event it may change some configuration and of course we're always willing to look at resource implications for it but the idea and it would be useful I think to hear from hopefully I can get 100% to be Jennifer in relation to answering at this point the idea is to make sure that it's joined up across the country I mean I think it's I would hope uncontentious that we have to better prepare people if we're going to reduce crime in future but if I've missed anything maybe Jennifer could add something in convene if I saw it yeah Jennifer would you like to come in yes close together I don't have a huge right to add what the cabinet secretary said other than just to confirm that is the intention in particular of section nine so I know that the chief inspector of prisons when she gave her evidence she compared it to hospital discharge planning which is what we were thinking of when we developed the provision that that planning starts at a much earlier point than sometimes happens in someone's sentence so you don't end up with a scenario that the cabinet secretary described where people are released with a list of appointments but that's very difficult for them to navigate that what should happen increasingly because of this provision along with with other supports that put in place and the release planning that SPS do that that person leaves with clarity about what their support package needs to needs to look like and that where SPS are identifying these needs and they are able to engage with those universal services at an earlier point. Can I just add convener a point that when I went to Perth prison it was made I suppose it's probably something very obvious to members of the committee but the point was made to be seeing some of the people in the I'm not sure it was a recovery cafe but it was a social space where prisoners could gather that this was the least least chaotic period of their lives being in prison and the scariness of going back into society is a huge thing and trying to cope with that and that's partly what this is about and I'm not just to be clear I'm not drawing any analogy between veterans and people that have been in prison but I've also been making this argument for a number of years with the MOD that on day one of somebody joining the armed forces they should be given the right to sign up to the local authorities housing so they can get points for housing for when they eventually even if they're not in the slightest bit interested and similarly we still have not cracked the point of the MOD giving the health records of individuals leaving the armed forces directly to a GP to make sure that that's seamless so a GP is informed about what that person's been through when they get them so it's a similar thing starting at the very start of the process but especially towards the end of the process if you can get people more likely to have a rounded support package when they go into society there's less chance of them re-offending yeah absolutely and I agree with with with all of that and it kind of brings me nicely on to a follow-up question and this was raised and it's been raised in committee but it was raised recently when I was on a visit to HMP Grampian and they spoke about how planning for release should actually start the day that somebody enters prison but one of the scenarios that it is difficult for the prisons for families for stakeholders supporting an individual is where release from remand is unplanned or not anticipated so how suppose what we're grappling with is how we how we make that process less less volatile perhaps less unpredictable so that in those circumstances there is something put in place that supports that individual where their leaving prison is not planned yeah again I'll come back to Jennifer but you're absolutely right convener this has been raised and it's a problem that we're wrestling with the unexpected release straight from the dock which can happen for a number of reasons how the agencies can gather around to make sure there should be a different demand that's called upon in those circumstances that most frequently happen to somebody that may well have been on demand but for a short period of time I don't know if Jennifer wants to either put some detail around that Jennifer come in um so this is an issue exactly as you highlighted convener that's been raised with us and it was something we asked about in the consultation to inform this legislation the reason it's not in the bill is the views that actually doesn't it doesn't need legislative change but it does need some operational change and some practice changes so for example section seven um will be intended it will apply to remand and sentence prisoners the section nine of a department will apply to remand and sentence prisoners so what increasingly we would hope would happen was at least for those remand prisoners there will be a better understanding of what their needs are so that when they go to court if they are to be they can go with that plan now if they're released then there at least is a an assessment of what their needs are and there can be some engagement with whichever the most applicable agency is I'm not seeing this as a solution this will mean a number of things to change but having better information and earlier planning for individuals when they leave custody has got to be a good thing and we are working and developing work with business service and others around that cohort exactly as you described that that go to court for a hearing and are released then it's not necessarily expected and what can be put in place to support those individuals and it's difficult for everybody sometimes they're not with SPS for very long and that release is unexpected there's not an easy solution and it doesn't necessarily need legislative change but it does need a better understanding I think of those processes and information sharing that follows those people. Thanks very much I don't know if you want to add anything to that cabinet service. If the cultural change which the legislative change makes which results in the legislative change which is to say that people the service the prison service is aware of the need to plan from the early stages that can also apply to people on demand but it's got less time to have effect I think we'd acknowledge that it's also true though that if you're on demand you've probably got you're often got access to other services like navigators who will be helping in that process as well but I would acknowledge that's an issue and it catches just now too many people by surprise and we have to be allowed to. I'd like to ask you about emergency release. The coronavirus bill has restrictions in it and they were added during stage 3 proceedings which meant that it restricted the period of early release to more than 180 days and prevented the release of prisoner serving sentences for domestic abuse offences. Will this bill be amended to reflect that in any way or I'm just wondering why that's not in in the current bill those restrictions? I think it's a fairly good prediction that I think it was Mr Finlay that proposed an amendment previously and I think we are looking at how we can do that at stage 2 as well. Thank you. Thanks very much. Russell, you want to come back in? Yes, thank you. Just generally talking about prisoners being released, one issue that the bill addresses is to stop the release of prisoners on a Friday or indeed at the cusp of a bank holiday period. This being to provide them with the support they need not to reoffend or to find themselves in dire straits. There are some pretty tragic cases, not least the 2019 murder of Alan Geddes, which I'm sure you're familiar with. Sorry that this individual had helped a prisoner who had been released from custody with no support it seems and ended up being murdered by him within 24 hours of that release. His family are happy to mention this and I think it illustrates the seriousness of the lack of support. One of the issues that Jennifer Studdart mentioned a moment ago was the need for operational changes rather than legislative changes and I suppose what I'm asking is in terms of the bill reducing the days in which people can be released. Would it not have been better, more practical, to fix the system and allow for Friday releases and have the networks that exist presumably on the other days of the week rather than shrink the system as strive to have one that functions and protects people? If I'm right in saying the particular case that you mentioned, I don't want to go into details but I think the murder to place in the kitchen is a horrendous case, if it's what I'm thinking of. I'll just offer my condolences again to the family concerned. However, if somebody thinks that the Friday release change is not the appropriate way to go, the idea is to provide seven days a week or 24-hour services, then by all means put that as an amendment, you would have to quantify the cost of that, which I don't think would be nougatory. It would be very substantial. I think that there's also real questions for the people who will be providing those services. I'm having to provide it whether overnight or seven days a week. Some of those services, we don't control those services directly. They're provided by the third sector. I think that this is a better response to demand. We've had many times over the years to not have the Friday releases for the reasons that are mentioned, so we can better enable those support services to be available to people being released. That's the route that we are choosing, but I'm happy to consider any amendments that people put forward. I'm pleased to be having an interaction with the cabinet secretary rather than just the question and answers, because I think it is a discussion and, hopefully, a constructive one. One of the issues that arose as we got to understand how the system currently works is that we have spoken around the parameters that the bill changes about public safety testing and changes to that. We have talked at length around the remand periods and that may be another way of addressing it, but the third aspect that struck me is the use of opposing bill by the Crown. It seems to be that what was there are, of course, final decisions made by sheriffs or judges, but certainly the deputes on the day in remand hearing courts are pretty busy, to say the least, dealing with dozens of cases and spending probably very little time looking at each individual case, especially if those are people who have been held on remand over the weekend, and this is a Monday court, for example. Is there perhaps any thought or feeling in the Government that there is overuse of opposing bail by the Crown, because that would clearly also alter the numbers quite substantially if the Crown opposed fewer bails as the cases came through the remand custody hearings? If that is not the case, what more could be done on the day by empowering deputes to make more instant decisions rather than centralised decisions from above? That would clearly lead to an inevitable of fewer people being held on remand, because it seems to me that the sheriffs listened to what has been said by the Crown and take their views on board. If bail is not opposed, it is probably going to be granted. There are probably very few cases where the sheriffs will just go straight over the Crown's head and say, you should have opposed bail in this condition. I just wondered what the thoughts were around that, because that struck me as an area that we haven't really gone into much detail on. I think that Philip's contribution will be useful here as well. From my point of view, that is more than a tricky area for the Government to get involved in, which is to say that you have seen short of legislative measures. How would you have that kind of interaction? I think that that is very tricky for the Government to get involved given the independent nature of the Crown Office. I know, as Jamie Greene said, that you heard evidence from some saying that legislation is a legitimate way to do this. That is what the role of legislators is, but it is not our role to get involved in that kind of, if not direction, even influencing of the independent service. It is not my position that it is overused, but I think that you also had some evidence from some members of either the judiciary or the legal community who felt that they were currently constrained in terms of when they had to refuse bail. I do not know if Philip wants to add to what I have said. One thing that I would add is just to reflect on what the Crown Office representative said to the committee just last week, which is that the position that the Crown Adopt on bail is, of course, shaped by the legal framework. If the legal framework changes, it will have to change their approach. There is a specific quote from Kenny Dunley, where he explicitly says that the Crown, in the future, there will be certain instances that it will not be open to us, the Crown, to oppose bail any more. That is because the legal test changes. The legal test applies to the court, but the Crown has to consider it, because they can no longer oppose bail if the legal test does not support it. That is a way in which the legislative change, which impacts directly on the court, can actually speak through the system and influence the Crown Office, but not threaten their independence, because ultimately they have to operate within the law set by Parliament. That is one of the ways why legislation is part of the answer here. It is not the only answer, and that is why legislative change is quite important, because it helps to filter down not just on the court but through the system to others who are involved in the decision making. That is interesting, because you said that it is not really for Government to interfere overly with decisions made by the Crown, but if we make legislative change, that will alter their behaviour and decision making. The point that I am trying to make is that the public looking at that will know exactly what the legislators have done, and they will know what discretion is afforded to the Crown, whereas if it is the result of a backroom discussion between us, it is less transparent. We have talked to our legitimate role as legislators of providing the framework, and they stick to their role and independently come to the conclusions that they do, but having regard to what the legislator has put in place for us, it is more transparent that people know where the influence is, and that is why we have chosen this route. You mentioned Kenny Donnelly, Mr Lamont, but he raised one particular concern that I do not think we have properly addressed in the bill, and I hope that we do as the bill moves forward. That is the issue in relation to section 23C, which removes from a summary court the ability to oppose bail for people who simply have a record of not attending or, as he says, about whom there is information that they will not attend. That would not necessarily fulfil the public safety criteria based on the ordinary meaning definition that you described earlier. How do we counter that? How do we ensure that courts have that ability to demand people where there is a significant risk of not appearing or attending future hearings? We know all the implications that come with that, both the cost, financial and human cost, and of course court time, which is precious. It seems to be that they feel that their hands may be tied in that respect. There is another aspect to the test, which covers that in terms of the administration of justice. Filippor or someone else is coming in detail on that, and it is a legitimate concern, although I think that what we are saying is that the safety test will dominate in this area. When we talk about the administration of justice, and as I say, we can get the exact words of Cunpi Mwfengorant right away, we are also talking about things like jury tampering, potentially, or intimidation of witnesses, but it is also about continued willful non-appearance at court. However, if you are worried that somebody might not appear in court, and for that reason you remand them, which is the greater harm that is caused here, remanding somebody for, and he has just said that these things can get delayed for all sorts of reasons, so it could be for quite a lengthy period, somebody kept in jail at the taxpayers' expense not presenting a safety risk to the public, but simply in order to avoid the possibility of non-appearance. I do think that the obligation is to make sure that we get better at making sure that people appear in court when they are meant to appear in court. I understand that risk, and I speak of somebody who represents an area that had a very particular problem with this one, the worst in Scotland, and then the police took particular actions to try and remedy that. I think that we have to do more on that, but just on your point about the test, maybe if Philip can just fill out the text that I have been able to bring to mind. To confirm that what is proposed in the bill is that where someone is appearing in a summary case, not in front of a jury, the less serious end of the system, the ground in section 23c relating the failure to appear will not be available to the court at first instance, unless the person himself has been accused of a failure to appear. In effect, it is to reflect that at that level of the system we do not think that remand in the first instance is appropriate where there is not a public safety risk. Public safety will still be available when the administration of justice test will not apply. That reflects the feedback that we received to the Scottish Government consultation, where initially there was not a proposal for the new bill test to include an acknowledgement of the administration of justice prejudice to justice test. What we proposed in the bill is a direct response to that, which for solemn cases, high court, sheriff and jury, that test is available, but in summary cases, person, as long as they are not appearing on a failure to appear related offence or they have not already failed to appear, that will not be an option to the court and bail must be granted. That is where supporting the community must be available through the steps that we have discussed today to help ensure as much as possible that person attains. In solemn cases, that test could still apply and would be grounds for remand, but at summary level not. That is a removal of that ability. We know that there are people out there who are taking the proverbial with the system, who are repeat offenders at summary level, who do not appear regularly. There seems to be no way of now holding them on remand. Is resolve that behaviour, which is unfortunate, I would say? What Philip just said is that even at summary level, where non-appearance is part of the case against them, then that can be taken into account unless I am getting that wrong thought. At summary, that is not my interpretation of what I heard, but I am happy to have to perhaps you could write to us or I am sure we will talk about it again. I think what he said is that if part of the case against them is related to non-appearance, then at summary level it could be taken into account, but we will write to clarification on that. Because bill-related defences are rocketing, they were 18 per cent five years ago, we are now sitting at 26 per cent. There is a real problem with bill-related defences, which I presume will only get worse if more people are on the bill. I wonder if I can just about just under 10 minutes away from our scheduled time with you this morning, cabinet secretary. I wonder if I can just come in and ask a question around release on licence of long-term prisoners, which is contained in section 7 of the bill. Section 7 of the bill provides for the release of long-term prisoners on a reintegration licence, and it provides for that in two situations before and after the parole board has recommended release on parole. In relation to the second of those situations, we took evidence from John Watt, who is chair of the parole board, to advise us that it would need a power to reverse its decision on parole if an offender fails to comply with the conditions of release on a reintegration licence. My question is just if there is a plan to amend the bill to provide for the power? There is not a plan to amend this bill, because this bill does not affect—it is not a result of this bill—the issue that has been raised by the chair of the police board. He has raised it, and it is a concern for him. I do not deny that, but it is not an effect of this bill. That will change. That is an existing situation. We are willing and are engaged in discussions with both the chair and the parole board, so I am happy to confirm that on this issue. It opens up a number of other issues as well, which is why it is probably not suitable for dealing with the bill, but it is a live issue that we have been and are discussing with the chair. Any other questions? If not, I will bring in Fulton and then Jamie. We have heard some concerns about information being shared under section 11 of the bill without the consent of the victim. Are you able to talk about that, cabinet secretary? I think that the concerns expressed if I am right are about the idea that victims should consent to any information being shared. I do not think that there is any track record of victims' organisations if she would agree acting against the interests of victims. I think that this is a bit more complex than it first appears, but we are willing to have further discussions on this. It might be useful to hear from Jennifer in relation to this. We have not set ourselves against it just for the sake of it. I think that our view is probably understood by the victims' organisations, so I think that we are having a continuing dialogue, but I do not know if Jennifer wants to add to that. It is exactly that. Within the legislation, that consent was implied. The evidence that you have received from victims support organisations and the engagement that we have had with them is that they would prefer that to be explicit on the face of the legislation. That is something that we are looking at actively and how that might end up being in the bill. As the cabinet secretary said, there is no indication that that does not happen in practice, but there is a clear reference from the VSOs that that is explicit. That was an issue that came up in last week's session, perhaps another on evidence that we had from the Pro-Board Scotland who made a specific call to the Government. I am sure that the cabinet secretary's advisers have taken note of it, but he said that there might be some benefit of an independent judicial body deciding where it would be appropriate for the Pro-Board to make decisions on temporary release. That probably falls into that conversation around what powers ministers have in relation to powers that the Pro-Boards have. Is that a piece of evidence that the Government has taken cognisance of in plans to the address later in the bill? Once again, it would be useful to hear from Jennifer, but just to say that you have probably gathered from a number of the contributions that I have made today, including specifically the last one, there are areas where we will, and also Rhona Mackay's previous point about exclusions from emergency release. There are areas that we are listening to people. It is the way to do this. It is generally a bill trying to find solutions to problems that we all agree with, so we are still involved in that discussion. However, it is a very tricky area for the reason that you have mentioned for us to get involved and direct in the Pro-Board given its independent powers. I do not know if Jennifer you want to add to that, and it is specifically with reference to the evidence that is being mentioned. There are a couple of points. The committee is aware that the Pro-Board has a role in relation to section 7, which is obviously why you heard from Mr Watt, whereby the Scottish ministers of prison service are making a decision as to whether to release an individual on a reintegration licence in advance of the Pro-Board's consideration of their release. They have to consult with the board for their views, and that reflects the Pro-Board's expertise in risk-based decision making. It is also important to recognise the prison services expertise in that area, too. Transferring responsibility for making those decisions from the prison service to make those decisions on a dynamic basis to a different body is a significant shift, and that is not something that is within the terms of the bill, as you know, as is currently drafted. However, the bill does recognise the important role that the Pro-Board plays and will play in relation to helping to inform those decisions. If you think, convener, to the emergency release powers that were used two years ago, one of the caveats in there was that prison governors would have essentially a veto over an individual prisoner, which they did not think was right to release. So I think that it is recognised, as has been mentioned by Jennifer, the fact that there is real expertise in factors closer experience in the prison service than anywhere else. I think that it is important to keep that expertise there. Can we clarify that, though? The thing is that, because it is a matter of law, is that if the Pro-Board make a take a view on someone that they can be released, and I think that this came up as an anecdote last week, but that person commits an offence during that short timeframe, and it is quite possible that it gets into some sort of form of infraction or breaks the rules within prison, what would then happen is that they seem to think that they do not have any further powers to stop release happening, even though there has been a further incident after that decision has been made. Will governors have a veto on those decisions, or will ministers have a veto, because it is unclear where the power actually lies in that scenario? If I am getting this right, I think that first of all, if somebody is released on temporary licence, if they breach the licence, then they can be recalled for that reason. If they commit an offence, that will be a breach of the licence conditions, same as if you are paroled, you are paroled on licence, and if you breach your parole requirements, you can be subject to recall at that stage. That power is there in law, and I am not sure that it has to be exercised by either the Pro-Board or the prison service, that is a consequence of you breaching your licence, but given that we are talking about a point of law, I do not know if Jennifer, if it is okay, convener, if Jennifer wants to add more to that. I think that the point that Mr Watt was making, and that Mr Greene is highlighting, is where the parole board has already recommended release, and that decision has taken an advance of PQD, and there is a bit of time before someone's parole qualifying day, the parole board can direct that person to be released on reintegration licence as a way of better supporting the reintegration. If they do not comply with the terms of that licence, as Mr Watt described, the parole board does not have the ability to reverse the parole decision, and that is not made by this bill. That is an existing situation, but we are engaging with the parole board to see what can be done in relation to that. It is a legal point, as you make it. It is not an operational thing, that is a legal point, and it is something that we are actively considering with the parole board. That was the first question that was asked about this, which is that it is not an effect of this bill. And final, very quick question. It is to do with bail. One of the inevitable consequences, indeed the intended consequences, there is going to be more people on bail, and therefore greater reliance on supervised bail, such as electronic monitoring. We have heard evidence from some academics who take the view that two days in those conditions should be a direct trade-off effectively towards any future sentencing, such as a ratio of two days of those conditions to one day in custody. Do you agree with that, and indeed does the bill factor this in in any way, or is it not part of it? Not in that detail that you have mentioned, but the principle, yes, that courts should be able to take into account when sentencing, not time served, but if somebody is being subject to electronic monitoring, I think that this is a tritance at this point earlier. That is a diminution of your rights, and I think that it should be taken into account by the court when sentencing. Will the bill state it in a prescribed way, or is it going to be entirely discretionary? Not in that level of detail. I am happy to have any officials that fill up his hand up there, but not in that detail, but the principle, I think, yes. A bit of prescript discretion ultimately sits with the court. The court has to decide how much of the time should be accounted for for the purposes of time served. If, for example, someone is on EMBL for six months, for example, the court has a decision to make whether all of that six months should be accounted for, or some of it, or none of it. For example, if someone breaches, then the court probably would not give them any allowance on that, but if they are well behaved, there are no compliance issues, then the court may say six months on EMBL, and then there is a formula that says that six months is converted into three months, two days to one, so that would then count for the purposes of the custodial sentence. That is based broadly on a similar scheme that has operated in many years in England and Wales. The principles of the scheme are based on legislation in England and Wales, although there are some differences of detail. Is there any difference to how things operate just now in terms of judicial discretion around those decisions? At the moment, we have not permit the court to take those things into account. There is case law that says that the court would not take those things into account, so that provision is needed to give discretion to the court. The court uses discretion to work out how much of the period it should be accounted for and then to ensure consistency for our kicks in, which the bill has two days for one. So there is a bit of discretion and then a bit of prescriptiveness. Thank you very much indeed. That has taken us a little bit over our time. Thank you very much indeed Cabinet Secretary and all your officials for joining us this morning. That completes our public agenda items and we will now move into private session. Thank you.


My wife's dad was a collector at Babe Ruth's shoe when he played with the Red Sox. What? Yeah. Before he came to the Yankees.