Fy gŵr o gwybod a fwy o gyd amgylcheddu cymaintau ddechrau 30 ym Ysgol yng Ngwybod 18. Fy gyd yn gwybod gwybod ydweud, y gyfnodau ysgol ym 1, yn eu ffordd am gweithgwr Gwrthgawr, byw pwysigol, yng Nghymru, byww, byw, byw, byw. Fy gyd yn gwybod, byw, byw, byw, byw, byw, byw, byw, byw. Fy gyd, byw, byw, byw, byw, byw, byw, byw. Cymru Y Justice Division, Leslie Baga, Cymru Justice Division, Lluise Miller, director of legal services with the Scottish Government. Caroline, rwy'n credu i'n fawr o'r ddechrau. Thank you for the opportunity to make an opening statement on the bill. The main purpose of the bill is to improve how children, in the first instance, and vulnerable witnesses participate in our criminal justice system by enabling the much greater use of pre-recording their evidence in advance of trial. The bill builds on the work of the Scottish Courts and Tribunal Services' evidence and procedure review, which made recommendations on how to improve the treatment of vulnerable witnesses in the Scottish criminal justice system. Those recommendations included proposals on how to protect vulnerable witnesses, focusing on children in the most serious cases, from further traumatisation by introducing a new rule that they will pre-record their evidence. Therefore, the main reform in the bill is to create a new rule for children under 18, both complainers and witnesses, in order to ensure that, where they are due to give evidence in the most serious of cases, they will have it pre-recorded unless an exception applies. The new rule applies to solemn cases only. Members will therefore have noted that the bill does not make any provision in relation to summary cases. However, it is currently possible, in a summary case, to pre-record under the current legislative provisions. The bill also does not extend the new rule to child accused. That was considered, but it was decided that it was not appropriate, given the practical issues in doing so, and those issues are expanded upon in the policy memorandum. Again, it is important to note that, under the current legislative provisions, the evidence of an accused person can be pre-recorded. The bill does, however, include a power for the proposed new rule to be extended to adult deemed vulnerable witnesses in solemn cases.  The Scottish Government considers that those categories of witnesses would also greatly benefit from the greater use of pre-recording, and that power therefore ensures that the bill's most significant reform can be extended beyond child witnesses in due course. As committee members will be aware, evidence by commissioner is a special measure that is used to allow for evidence to be pre-recorded in advance of the criminal trial. The benefits of that are that the date and time for evidence by commissioner can be scheduled in advance, avoiding uncertainty for vulnerable witnesses. The atmosphere is also less formal than in full court proceedings, and evidence can be recorded directly or via a remote video link from another location. That evidence is then used and played at trial without the witness having to be present. The bill also removes any legislative barriers that may have a detrimental effect on the greater use of pre-recorded evidence, which means that, if appropriate, a commission could happen prior to the service of an indictment. Although, as committee members will note from the policy memorandum in the short to medium term, it is considered that applications for evidence by a commissioner to be taken in advance of the indictment are likely to be rare. The concept of a ground rules hearing is also introduced by the bill. That is to ensure that all parties are prepared and the issues set out in the practice note are considered. It is important to note, however, that the bill provides the flexibility for the ground rules hearing to be conjoined with another hearing if appropriate to do so. The bill also makes provision with regards to the role of the commissioner. That is to ensure that the commissioner has the same powers as a judge to review the arrangements for a vulnerable witness, giving evidence and to encourage that we are reasonably practical to do so. That is the same judge who undertakes the ground rules hearing and the commission. Finally, the bill makes provision for a new simplified intimation process for a standard special measures for child and deemed vulnerable adult witnesses. Where it applies, that will streamline the current process by making it more administrative rather than a judicial process. John Finch-Saunders Thank you for your opening statement, convener. I wonder if you could outline the special measures that are in place at the moment and how the bill will affect those, please. The bill has changed the current special measures as they operate at the moment, so you have standard special measures, which are witnesses that are automatically entitled to. That would be a screen, a supporter and a TV link. We have non-standard special measures, which are made on application. That would be evidence by commissioner or use of a prior statement. That is something that has been recorded before, whether that is written down or in the form of what is known as a joint investigative interview, where that is a police and a social work interview. The bill does not actually change the operation of how special measures work at the moment. What it does, though, is that it creates a new rule that, in certain circumstances, the position is that a child under 18 would have her evidence pre-recorded by using the special measure of evidence by commissioner. And just for the ones that are doubt, it is most definitely under 18. Yes, it is. Yes. Okay, thank you very much. Moving on, Shona. Just on the pre-recording of evidence, can you say a little bit more about the main benefits of pre-recording evidence? Obviously, you were aware of the obvious benefits of removing the vulnerable person from a stressful situation, but it would be useful if you could expand a bit on that and how the bill seeks to encourage the greater use of pre-recorded evidence. Obviously, as I touched upon in the opening statement, the commission is scheduled, so the witness knows exactly when the commission is taking place, so it takes away that uncertainty of timings. It is certainly meant to be a less formal environment for a child or a witness giving evidence. The bill is creating the framework for the greater use of pre-recorded evidence, but behind that is, obviously, members will be aware that Lady Dorian introduced a revised practice note last year, which was to encourage the greater use. It is actually quite a comprehensive practice note, so it sets out in great detail things that the court and the parties should be considering before a witness gives evidence. It could include something like removal of wigs and gowns. It could include the location of where the witness is giving evidence. Also, for the witness, I think that pre-recording your evidence in advance of the trial, the trial could be some months later, but for that witness on that day, it means that that is the end of the process for them. There is just a pull-up on that as well. It currently happens under the new guidance on the High Court practice note, but the bill as well as a grounds rule hearing, which would have to happen before the commission takes place and it could be incorporated into a preliminary hearing. Basically, that means that there is a lot of focus on making sure that the parties are ready on what kind of questioning it would be, if everything is appropriate, whether there needs to be breaks. It makes it much more focused for when the child or vulnerable witness is giving evidence before that actually happens. That has added scrutiny and getting ready for it would probably happen at the moment. Can I ask a little bit more about the plans for phasing in the proposal? We talked in the initial statement about the power that would be taken to potentially expand. It would be helpful to hear a little bit about what would be a realistic timeframe and was the reason for having the initial focus and having the power to expand? What was the reasoning behind that? Was it to do it in an orderly fashion or were there capacity issues? What was the kind of reasoning for doing it in that way? The bill, the main focus, is on children because we wanted to start somewhere. We wanted to target the most vulnerable. That is not to say that other people are not vulnerable as well. I accept that some stakeholders would like it to go a little bit further and a little bit quicker. One of the fundamentals is that that is quite a significant change to how evidence is taken at the moment. It is important to get it right. It is important for the practice note to bed in and for people to get used to the way of working. We accept and recognise that other categories of witnesses would benefit from the special measure and the way that it is taken. We are keen to ensure that we get it right from the very beginning. The danger is that, if we expanded it too quickly, that would not be to the benefit of any of the witnesses. We are working with stakeholders at the moment on what a potential implementation plan could look like. The bill has various powers in it on how that power could be used, whether it is not to target certain cases for adult and vulnerable witnesses or specific occasions. We are very mindful that a lot of people would like the bill to come in very quickly, but it is important that we do not rush too quickly. When do you think that the implementation plan will be ready and, presumably, it would have some broad timeframes attached to it? When do you think that the implementation plan will be ready? As I said, we are working with stakeholders at the moment on potential implementation, so perhaps when the cabinet secretary comes after the year to give evidence, he might be in a position to update the committee. We have learned a lot of our discussions from what is happening in other jurisdictions as well. It is how important it is, even if you have an ambition on what to do, to actually time doing it and make sure that it is done properly, but also to have monitoring and evaluation time set in. Obviously, this is dealing with very vulnerable people. We absolutely have to get it right. Even though, as Karen said earlier, Evans by commissioner has been around for a number of years, it has been used relatively infrequently, and therefore we cannot see enough how much what is being proposed here is a very substantial and significant change. Obviously, it will depend on the views of the committee and the Parliament, but it is proposing bringing in a legal rule, which in a sense is relatively inflexible and can make a massive, massive change, so we have to make sure that it is right. It is not just about legislative change, it is about making sure that all the practical changes to go along with it are done as well. We are in close contact with our counterparts down in London, who have been doing pilots on their section 27, section 28, version of pre-recording evidence. Certainly, one of the big lessons that we have learned from them is that it probably takes even longer than you think, and to get it right, make sure that you build in time through all the stages and monitor and evaluate, learn from that and then roll out to the next stages. The Government's current position is that the initial focus should be on children. That came out through the evidence-pleasure review and also the work that we have done, but for power in the future. However, that will have to be very carefully evaluated and considered. Obviously, that is a matter for the Parliament and ministers ultimately. Good morning. I will go back to the point that you are making in relation to the ground rules here and the importance of that. We had some discussion earlier this morning about how lines of inquiry can be pursued where you agree questioning in advance, but, depending on the answer that you receive from a witness, you may feel that you need to pursue a line of questioning that perhaps was not as predictable from the outset. Will the guidance notes be expected to cover how that should be handled, or is that likely to fall to the discretion of those who are conducting the commissioning? I think that it would probably fall to the discretion. Whether or not you think that you would maybe need to have the witness back or—that is certainly a mark for the court—when we were looking into developing the policy for the ground rules here, we took quite a lot from how they operate down south, which is quite similar. In fact, down there, I think that it is a prerequisite that they have to hand in and write all the questions down. Speaking to them, we raised the question that is there ever a situation where maybe some other disclosure is made or somebody has said something that is not expected? The feedback that we have got from them is because parties are fully considering all the issues and they are looking at all the evidence and disclosure that they have. It tends to be when those questions are asked and the witness is asked that that has not actually been an issue that has come up in the past, but certainly it is something that perhaps could happen. It tends to be ground rule hearing. It is often that you could supply questions and that might be something that the High Court ultimately thinks is appropriate, but it is also often the broad content of the areas making sure that there are going to be questions that the child can actually understand. I would thought that it would be possible during a commission if somebody comes up unexpected given the commissioner who is a judge or a sheriff is there as well to say, I would like to now pursue this kind of line of questioning. There is still flexibility. The one thing that we have been keen to stress with any of those proposals, nothing on this is about stopping legitimate testing of the evidence of a witness because clearly that is key and absolutely important. Is that about getting the best evidence out and making sure that it is in a more controlled environment, but it is not about limiting cross-examination in any way? I assume that the other end of the spectrum is that where an answer is not provided either because the child either cannot recollect or is uncertain. There would be limitations on how far that could be pursued at some relatively early point. There would be an agreement that the answer is what the child has provided. Just in terms of the expansion that you were talking about of a procedure that is currently used but nothing like to the extent that is anticipated, what are the financial implications of that? What is the court and tribunal service saying about albeit in a phased process where the evaluation is taking place before the next phase is rolled out? Do they believe that they have the resources at the moment to manage that process through to conclusion or will that depend on the evaluation that takes place subject to the legislation that is coming in? The financial memorandum sets out the estimated costs and you will probably see that it is set out in a range because we just do not know at this stage how many will actually go on to give evidence by commissioners. For children, I think that it starts off from about half a million and if it was all children being cited it was up to about three and a half million. If you then extend that into the adult deemed vulnerable witnesses, again it is very much an estimate because we do not know at this point how many would go on. The costs go up to about 14 million, so clearly there are significant resource implications for the court service, the Crown Office and the legal aid board. The costs are set out in the financial memorandum but decisions that are taken in the spending review will come out in due course. In terms of the equipment that is needed in all the rest of it, there is an expansion of what is currently used as opposed to requiring a different series of equipment and technology. It is a very important point because it is not used so much now. The court service absolutely have recognised that they need to look at their whole venues and IT and upgrading it and making sure that it is ready. If those proposals get passed, you will probably recently see that there was Scottish Government announced funding. I think that it was £950,000 for facilities in Glasgow to be upgraded to have vulnerable witness hearing suites and sensory rooms and to be a state of the art to actually start taking more evidence by commissioners. We are certainly very closely involved with the court service about looking now at other areas and possibly also mobile equipment. That work is a really important workstream alongside legislation to make sure that there is actually the practical infrastructure. I am sure that when court service come along to give evidence they can give you a lot more detail on the kind of work that they are doing because they are certainly doing a lot on that right now. If I take any supplementaries, could you make them absolutely on point to make sure that we are not straying into other areas that we want to cover in their particular order? I just want to cover the reasons for not applying the proposed rule on prerecording evidence to the child accused. I think that that is covered by subsection 7 and 8 of the bill. Subsection 7 says that it will apply an exemption if the giving of all the child witnesses' evidence in advance of the hearing would give rise to a significant risk of prejudice to the fairness of that hearing. Subsection 8 C says that it would be in the child's witness's best interest to give evidence at the hearing. Who makes that judgment? Was the first part in relation to child accused? I do not know. Sorry, in relation to child accused. There are exceptions that exist within the legislation that stands. The bill does not extend the new rule to child accused at all, they are not within the scope of the bill. The exceptions apply for the children under 18 who would be caught by the new rule. With regard to those children then? Those exceptions are extremely tightly drawn. I would not envisage a situation where they would be applied but it is to give a little bit of flexibility for the interests of justice or if there was a significant risk to the fairness of a trial. However, the position will be in the vast majority of cases that the children will be under 18 in those cases that are listed in the bill give pre-recorded evidence. In relation to that risk to the fairness of the trial then, who makes that overall judgment? Who does that decision rest with? I think that that would rest with the courts and the judge. In relation to the current and expected future use of prior statements then, I think that you alluded to there being more evidence perhaps in terms of evidence gathering by the commissioner. You expect that to happen. It already is happening. Do you expect it to continue at the same level or to increase? Pre-recording can happen in a number of ways. In terms of what would happen to have all the child's evidence given advance of the trial, it could happen by a prior statement that Karen touched on. A prior statement is when it is just the child of the witnesses, evidence in chief, that is actually recorded. That can happen in written or video recording. In Scotland, there is less use of video recording by the police, but there is one circumstance when it does happen more often, and that is what is called the joint investigative interview. That is led by the police and social work, where they interview and record the child's evidence, but there also has to be child protection issues, so they are also looking at it from that point of view. That ultimately could be introduced as part of the child's pre-recording as a prior statement, but it does not cover the cross-examination or the re-examination, so that could be done by the process of evidence by a commissioner, or you could have all of the witnesses' evidence gathered by them by a commissioner. It is just the one hearing where they could ask various questions and record all of the evidence and have that recorded for the trial, so there are a number of different mechanisms to actually have it pre-recorded in advance. Can you give an update perhaps with regard to the development of the national standards for joint investigative investigations? I know that that was a recommendation made in 2017. Yes, that is right. That was a recommendation by one of the subgroups from the evidence and procedure review, and there is a lot of work on going by on that at the moment. I think that the main bits that they are looking at as well is because, as you will be aware, there are areas of good practice for joint investigative interviews, but there is actually a lot of areas where they felt that it could be improved, particularly, I think that there are some of it, the IT, but also the training and the guidance. So there is a lot of work that is undergoing right now. My understanding is that it is actually mainly focusing on the training that is going to be taking place for people who actually conduct these kind of interviews. They are doing a revised model to develop a training programme, but they also intend to design national standards, so all of that work is going along in sync very much in tune with the greater idea, greater pre-recording, that we have to actually get them up to being the best quality they can, so there has already been a lot of work on going on that and it will carry on. Thank you. Supplementary Rona Denfield. Thank you, convener. Good morning. Karen, in your opening statement, you mentioned that the policy memorandum outlined reasons why the building extended child accused. I wonder if you could very briefly just bullet point the reasons why that would be? Yes. I mean, a child accused obviously has a completely different status from a witness, so for example, they already have access to legal representation. They also do have a choice whether or not to give evidence or not. As I said earlier, it is technically possible for an accused person to pre-record. To our knowledge, it has never ever happened before, so the decision was taken that it would not seem sensible to apply a rule to a category of person when the special measure was available and it has never been used. We have done further work over the summer with a lot of stakeholders, and some of it is just being published now online, and that sort of touched on. I think that there was a recognition that pre-recorded would not really work for an accused, but what did come out of that was actually around wider support that perhaps child accused need, so I think that that is something that we will have to take back and consider. It was a lot of work that was done on it because actually when we did our Scottish Government consultation, there was a lot of favour about actually including child accused, but when we actually practised to start looking at it and actually speaking to people, the answer is in practical terms that it could be very, very prejudicial because normally an accused person would on advice of legal counsel, and this includes children deciding not whether to give evidence or not once they have heard all the crown evidence against them. If you pre-record it, you are actually having it done in advance. Of course, all the other advantages that I know were asked about earlier for pre-recording in terms of knowing that you do not have to attend at the trial, not being there, and an accused person has to be there, they have to listen to it, they are in the courtroom, so none of those advantages are there, but you could prejudice them, and that would go very much against the heart of the policy about having the best chance of the child involved. As Karen says, from talking to people, once we have actually talked through it, our general consensus has grown that pre-recordings would be not the answer. Just on the point of supporting the child accused that we did here during our visit to the High Court yesterday, that there are things that could be done now without bringing them into the bill that are not being done, like they do not have to be in court, they could be in a separate room listening to the evidence. That is obviously a bigger question for the legal, and it is not to do with your bill. Okay, thank you. Fulton. Yes, thanks, convener. I have a good morning panel. I have got a supplementary on the supplementary first and then back to Jenny, so it was about the child accused as the rules around child accused have been taken into cognisance, the current bill that has gone through the Equalities and Human Rights Committee on the Age of Criminal Responsibility. Yes, we certainly work closely with Scottish Government officials across, especially when there is connected policy interests. We have been engaging with them. As I said, and as Lizzie touched on, while we recognise that pre-recording is probably not the best special measure, I think that there is a lot of wider work in support that would benefit from further consideration. Yes, certainly. What I have seen on that, it does seem to fit into the ethos of that bill that has gone through. My other question, convener, is around the joint investigative interviews. I should declare an interest as a registered social worker and have been involved in joint investigative interviews in the past. I am just interested in how often they are used just now as pre-recorded evidence. You might not have exact stats, but roughly how much are they used? I would probably be guessing to be honest if I gave you a number, so it is probably better that we write to you with more specific information. What I do understand is that they happen a lot more than they are admitted into court at the moment. Part of the reason for that is that the quality is not quite good enough to meet the test that would be needed to be a prior statement in court. There are a number of the ones that already happen, and they would have to ultimately be a court case. However, my understanding is that a lot of them do not end up being the evidence. That is the bit that is wanted to be changed is to get that quality up. I mean, would you like us to go and find out numbers and just strike to the committee with numbers on the number if they exist? We can certainly try and do that. Oh, yes, please. Okay, moving on to Daniel. Well, I'd just like to really ask about some of the nuts and bolts, but before I do, I mean, as you've already said, this is in some ways a formalising existing practice and seeking to extend it. I mean, again, at the risk of asking another numbers question, what sorts of volumes of children are currently giving evidence through these sorts of special measures, and how many more will benefit following the passage of the bill? Well, since the introduction, what the practice note was revised, I think that the numbers were extremely low, but since the introduction of the practice note, the numbers have been steadily increasing. I think that from April 2018 to August 2018, there were 82 applications for evidence by commissioner in the High Court. 71 of those were for children and 11 were for adults, so clearly that the numbers are going up. I think that it's important to recognise that it's not just about the numbers going up, but it's about improving the overall quality and the consistency across the board. If passed, the bill in its current form, then the numbers will be into, well, for children. I think that at the maximum, it was about 759 children, and then you're talking about a couple of thousand for adult deemed vulnerable witnesses. The numbers that would result from the bill are quite significant, but it's very encouraging to see that, since the practice note, the numbers have steadily been increasing. I'll just give a bit further context to that. Those 82 applications, that's just for a five-month period from April, but actually for the previous period, from April 2017 to March 2018, for the High Court practice notes, first of all came in, there were 62, so you can see that's almost a year, and there's already been quite a substantial increase. It has to be said that nothing compares to the increase that's actually under the proposals, which is why it's such a significant change, but even that is seen as quite a big change to get used to and have everything being set up for. It's already the High Court practice note appears to be having a positive effect. That's a very useful context. Obviously, you've stated that this is going to be dealing with solemn cases. Could you just explain the rationale for not extending that to more broadly into summary and, indeed, to share a court case, which was probably much larger numbers again? As I said earlier, the bill is a framework to encourage and start the greater use of pre-recorded evidence. We have focused on the most serious cases, because we believe that that's probably an appropriate place to start. However, if it was deemed appropriate, the special measure could be used in the share of court at summary level, but, as you touched upon, the numbers in the share of court at summary level are significantly higher than for solemn cases at the moment. Would the Government be looking to review that in the future and about how that practice might be able to extend it, either through non-legislative means or, indeed, legislative means, if that's required? Thank you. Certainly, since the practice note has come in, there has been a period of monitoring and review by court service, and we have an interest in that. When the bill, if it's passed in its current form, we start to commence various powers, there would be a period of continuous monitoring and evaluation. As I said, the ultimate aim is that that becomes the norm, but it will take a little bit of time. It's a culture and a practice thing, and, because the current special measures of evidence by commissioner are already in legislation, it's not that we would need to bring forward any more legislation. I think that it exists so that people could use it. It's also the case about the bill, so the matter for the Parliament, when it's appropriate to have a rule that can be relatively inflexible, and when it's actually better to be left on a case-by-case basis. As my colleague says, it's possible in summary cases to apply for it, if it's a very appropriate case. In terms of the bill's proposals, as well as the current proposal for children under 12 in certain solemn cases, it's proposed to take quite wide powers in that respect to even remove the list of offences, which could absolutely have it applied to all children under 18 in the High Court and in sure share of solemn cases, which would actually be massive, as well as extending it to adult and vulnerable witnesses. Now, this is actually already even just the proposal for the first bit, a big, big change. Even going down those lines would be huge. So it's a bit of managing expectations as well about how far this rule can go and how quickly it can go that we need to do. Can I just go into the ground rules hearings, because having had the discussion yesterday with people at the High Court and indeed from your evidence, that's actually really critical to establishing how the evidence will be taken, making sure that the sensitivities that we all hope will be there are there. I think that having just heard from Rona Mackay about sometimes people don't know to ask for particular provisions or approaches to be taken in court, what sort of safeguards are in place to make sure that those questions are asked, that they're not just simply relying on both the defence council and the prosecution to know to ask the right things or indeed to agree to a particular approach. What would stop this in many years down the line being taken advantage of by a particularly aggressive defence council that just simply doesn't agree to particular lines of questioning or approach? The practice note is really comprehensive and I think at the heart of it is actually putting the vulnerable witness and their needs first. The practice note also references what's called, I don't know if you're familiar, but it's the Advocates Gateway, which is something that they use down in England and Wales and it's a comprehensive training for advocates on how to cross-examine children. Very much if that practice note is being followed is a matter for the judge in each case, but as I understand it, the feedback that we've had from the practice note and since the numbers have started to be increasing is that people are now getting used to this way, taking evidence by commissioner and the practice note is being followed and considered. My final question is really about timelines. It can often take even in the speediest of circumstances 18 months to two years for something to arrive at trial from the point of the crime, and that's if it's recent and not historic. How much earlier in that process is going to enable that evidence to be taken? Given that, I think that we all agree that essentially the sooner the better is by and large the rough rule of thumb, albeit given some caveats. The bill also removes or amends the current provisions by allowing a commission to happen prior to service of the indictment. The current legislation defines the commencement of proceedings by service of an indictment, so that has been amended. It would be a commission could happen after an accused has appeared on petition, which is obviously some time before service of the indictment. That removes the legislative barrier because it had been highlighted to us as a reason perhaps maybe why commissions don't happen earlier, but we set out in the policy memorandum that in the short to medium term we wouldn't expect a lot of commissions to happen pre-indictment because it's only at the point that the indictment is served that the accused knows all the charges that they're facing, but again I think it's to remove that and to give a little bit more flexibility so that once these provisions do start to bed in and people get used to it, then there might be on a case by case basis where it would be appropriate to have a commission before service of an indictment, but that would really be a matter for Crown Office and the defence because obviously the defence still has the right to cross-examine. In practical terms, what does that mean? Are we talking about a few weeks earlier, a few months earlier, even a year before trial? What is likely to happen on average in practical terms? I can certainly write the committee with maybe a better indication of timescales, but my understanding is that somebody could be appearing on petition and it could be maybe six months, eight months later that the indictment is served. I think that we do recognise that actually some cases are taking far too long from an initial report to get into court. There's wider context as well because obviously we're looking at the bill in pre-recording, but we're aware that in the summer it was the Cabinet Secretary who announced that it was 1.1 million funding and that was to be used to help the court service in Crown Office to reduce the amount of time in sexual assault cases that they take to go through the system. In our policy memorandum, we've actually done a lot of the wider context as well because this is in the sense of just one part of what needs to be done to actually look at it wider. We're aware of a number of issues and all the various parts with ministers and of the justice director are looking at different ways. We can do that alongside court service in Crown Office, rather than just pre-recording. John Finnie, staff of the mentoring. There's been quite a number of references to the practice note. I wonder if you can say a bit more about that, please. Is the author Lady Dorian? Is it a what regard the legislation has to that? Is it a dynamic thing? Is it an evolving piece of information? I can more speak to that because I sat on the group. It was one of the subgroups of the evidence procedure review. I was there as a Government just observer because it actually had representatives from the legal sector, third sector. Lady Dorian chaired it and there was a number of things actually off the back of the initial evidence procedure review looking at a bit more practical things, what can actually be done to enable greater pre-recording. So this was one work stream of that. It was part of the work stream. Lady Dorian obviously chaired it and was the court service of the main people who actually developed the practice note, but it was done with inputs from all those sectors about how this could actually work, and it is quite a lengthy practice note. It was almost about a year at that subgroup that was actually looking at that before Lady Dorian brought in the practice note. I think it was at May 2017. It's actually a high court that can bring in practice notes, so they do them regularly, so it could be updated at any time. Right now, this practice note is only for the high court. It'll be a matter for the court service whether they want to develop a similar one for the sheriff court. We understand at the moment, if there's commissions in the sheriff court, they do have cognisance of the actual high court practice note, but they don't have their own new one at the moment, so it could be amended at any time. In terms of this particular bill, we picked a few key elements for the ground show hearing of what we think potentially are things that should be in primary legislation, but in a sense it's almost better to limit what's in primary legislation compared to the practice note for your very point, but it can be a fluid document and it's an easier thing to amend as they learn. Right now, the court service is actually evaluating the success of the practice note. You might be aware that they very recently issued their first evaluation report, which is actually about how the guidance for the practice note is working in the high court, and that's got very positive feedback. I think they're going to be doing a second evaluation report in the next few months, and I'm sure they'll be able to give a further update on that, so they're evaluating it, and I'm sure there'll be lessons out of that that they'll learn that might take further adaptions, but that would be for the court service, probably, to give more information on. Is this a nice to do or a half to do, or because it exists and it's followed in any case? The high court practice note. I think that the high court practice note is a very important vehicle, because it means that all the parties to the case, and not just the courts of judiciary, are aware of what's expected of them and give some form and guidance. The fact is already having a sense of a very positive influence on increasing numbers and also prepared they are, shows that there is a lot of merit in it, so clearly it's a nice thing to do, but it sounds like it's having a very positive influence as well, so probably more than that. Thank you very much. Some of the submissions have raised concerns about miscarriages of justice being a possibility. Karen Ochencloss, in your opening, talked about the setting being less formal, perhaps, but some might suggest that the process is taken less seriously. For example, it doesn't allow the jury to see a contemporaneous cross-examination. How reassured are you that miscarriages of justice will not happen? Pretty much very reassured. Some people might think that it's less serious, because it's less formal, but at the heart of it as well is protecting those who are most vulnerable, and by doing it in a less formal setting, where they might feel slightly more relaxed, then we're likely to get better evidence for them. In the interests of justice, I think that the best evidence that we have can only be a good thing. It's still under judicial scrutiny, and we must remember that those witnesses are often giving evidence of very traumatic matters, and what we might see as a more informal setting can still probably be a very intimidating setting for those witnesses. Commissions, as they happen right now, are informal in a sense, but they're not informal on the point that actually there's still a legitimate questioning on quite difficult subjects that happens. In terms of your point about the jury not seeing it as part of the Scottish Government's commissioning of jury research, there was actually an evidence review that we published in the last year, which was how pre-recording evidence is seen by jurors, and it was quite interesting in terms of how it seemed with respect to child's witnesses' evidence, and actually there wasn't probably some of the things you might think about it, not as you're carrying the same weight or leading to any prejudice, as it was actually quite positive in that respect. I don't know if the committee has a link to that evidence review report, but if not, we can certainly send it on to you. Okay, thank you. Yeah, I thought that was very interesting, some of the conclusions from that report, but sticking with the pre-record and I notice that there's an exception to the rule of pre-recording. If, and I'm pulling phrases out rather than giving you a full quote, it says, if it gives rise to a significant risk of prejudice to the fairness of the trial and that risk outweighs the prejudice to the child's interests, which I just thought was quite an interesting way of setting it, because it would suggest that the fairness of prejudice to the child's interests outweighs the fairness of the trial. That's already actually set out in legislation in other matters to do with special measures, and it's been seen as that it's still actually, it's still accepted, because any decision is actually taken on this, the right to fry trial article 6, that runs underneath all of it. So that stays paramount, as it were, the fairness of the trial? Things have to always be convention compliant, even judges making decisions, but the actual wording that we use in our bill is actually wording that's currently used in the 1995 act, it's not new wording, so it is seen as still as actually providing fairness to the trial. We've sometimes had raised with us about the miscarges of justice points, so it's a very, very point we're very sensitive about. I think it, well, I can't say why people personally think it might be miscarges, I think it might be a slight fear that in some way we're actually trying to remove the right to cross examination or really greatly limit or stop the proper testing, and we've really tried to make it quite clear that we are absolutely not, that is not the policy intent, it's really just about having a more focused area of questioning and a more appropriate circumstance, but it's not in any way about legitimate questions not being put directly by the defence to the witness, that is still absolutely the intention. We, presumably you would accept though that some of the criticisms have been, or not criticisms, but that it does require a cultural shift, a mentality shift almost within the adversarial process that we have. I mean, I think that's right, it's kind of a movement to say just because you're actually having a more trauma-informed way of how you're actually approaching children and vulnerable witnesses does not mean you're actually removing any of the rights to the accused or fair trial to actually test the evidence. By actually enabling the witness to get out their evidence that actually doesn't undermine anybody else's fairness, all you're doing is let them actually have their story and then have legitimate questions. So we'll obviously always work with the legal sector whenever that's raised to try and alleviate those concerns because it's certainly not the intention at all, it's really just about being able to have maybe better circumstances where vulnerable children and witnesses can give their evidence but to be properly tested at all times. Just sticking with that point, the Faculty of Advocates suggests that there's a requirement that sufficient safeguards are in place, so their word is sufficient safeguards to ensure fairness. So what do you understand those sufficient safeguards to be and are you comfortable that they are in place? I think I'd probably have to have the faculty here to say exactly what it is that they would have concerns with. It has been raised with us before in terms of the bill that they are slightly more concerned, and I'm sure they'll see us in evidence that the way the bill is being drafted might actually mean that it's possible just for a prior statement to be submitted to court and not to actually have any form of cross-examination by commissioner. I mean, we're quite clear, 100 per cent that's not the policy intent. The way the bill has just been drafted is just to explain the ways that pre-recording can happen, but if the defence ever wants to cross-examine, that is absolutely tough to be convention compliant and that can happen. However, what we've tried to allow for in the bill, which I think whereas maybe sometimes some concern has arisen, is that there's actually a real possibility that a child's prior statement might be taken and the defence might not actually have any questions. If that's the case, we don't want a commission just to have to be set up to be, everybody to be sitting there and saying, actually I've got no questions and then send the child away, so we have to allow for some circumstance where the prior statement might be the only evidence, but if there's any questioning that's want to be done by the other party that's not called the witness, that will still happen. I do understand that, but if I might pose the question again because the faculty of advocates have said there need to be sufficient safeguards in place, now presumably you will have taken time to understand what is a very powerful voice saying these need to be in place, you will have taken time to understand what those sufficient safeguards in their view would be and if you think they're legitimate to build them into the legislation is that right? I mean absolutely, I've had a number of meetings with the faculty of advocates and I have to say that that's been very helpful and very supportive of the representatives that we've met in that respect. I mean I think one of the keys, safeguards is the fact that all of this is done is under judicial scrutiny, everything that's set up in terms of the ground rule hearing the commission is always done under judicial scrutiny so the judge is always there to ensure that actually a fair trial can take place and I think that's one of the main safeguards, we're not removing that in any way or any sense so obviously it's still the same thing to make sure actually that nothing further goes. In terms of safeguards obviously if there's anything further that we haven't thought of we'll listen to the faculty's evidence and absolutely we will take that on board. As I said they've been very constructive in their dealings with us and carry on. I hear what the faculty of advocates are saying and they've been very constructive but it actually sounds like this bill is at its essence providing a safeguard for the court process by changing the environment in which vulnerable witnesses give evidence, I just wonder if you'd agree with that. I think, as I touched on earlier, the hope is that actually it's not just about somebody giving evidence but it's about somebody giving their best evidence so the provisions in the bill have always had that in mind, it's not just about getting evidence but it's about securing the best evidence from the child or the vulnerable witness. In the advice safeguard in the court process. I just wanted to briefly again just to ask your opinion on the Barnahus model and whether you think this bill would bring us any closer to that. Probably the first thing to say is that the bill is not Barnahus, it absolutely is not Barnahus. I've actually had some involvement previously with the Barnahus concept and that's probably the main thing that I would say about Barnahus is that it's a general concept. It's often talked about the Barnahus model but as it's slowly being rolled out in different parts of Europe they all adapt it according to the circumstances of each individual country what works best for it and I've actually had some formal initial dealings with Barnahus before it moved to another unit and when I went over to as part of the EU promise programme I don't know if you've heard of that or not but it was an EU funded programme which brought representatives from lots of different countries to actually find out about Barnahus, some who were actually setting it up, some who were just only considering it so initially it was court service in children first who went. I went to the very last meeting of it and actually one thing that did strike me when I went to it is I think it was about the only justice representative there, I think it was another police officer. A lot of people came from health and child protection because a lot of what Barnahus is about is actually the sort of trauma informed child focus so it's a lot about the health and child protection. I actually when I was over at that meeting spent a bit of time talking to one of the main people who's actually been responsible for actually bringing into Barnahus into Europe, he's a gentleman called Braggie Goebranson, he was the director general of the child protection agency in Iceland. I think he's now actually finished that job because he's now moved on to being a committee member for the UN convention of the rights of the child so I spoke a little bit about him because obviously I was coming from it, looking at it from a justice point of view and he was clear as well what Barnahus could work in an adversarial system, most systems have set it up per inquisitorial. There would be no problem with a Barnahus but you'd have to adapt it to an adversarial system which means you wouldn't tend to have the one bit of Barnahus, the one forensic model interview, you could still have bits of pre-recording because actually what Barnahus is, it's much more about wraparound services, forensic medical examination, therapy, advocacy, that all happening in one place. So currently the Scottish Government is just exploring the Barnahus concept and whether it potentially could be adapted for Scotland so that's very much at the exploration stage but that work is undergoing at the moment. Okay thank you. You haven't mentioned the streamline process for arranging the use of standard special measures. The bill provides for an automatic entitlement and making it administrative rather than judicial, could you perhaps talk about that? Yeah, the way that the legislation is framed at the moment actually if somebody is automatically entitled to standard special measures then they're automatically entitled but the way the legislation was framed the applications of the notice that were going to the judge so really this is actually just to free up judicial time and to make it more an administrative process because the other thing of standard special measures is automatically entitled to them and nobody other parties can't object so it really is to make it more an administrative rather than a judicial proper stamping exercise to free up time. There's no concern that by making it an automatic process it is administrative and the judge just casting his eye over who's before them that someone might slip through the net that might need not just a standard but perhaps other measures. The legislation is framed at the moment as well does have review provisions so that a court or a judge could review if they didn't think that the most appropriate special measure had been applied for so and the new rule obviously has review provisions built in as well right and Liam Kerr supplementary. Thanks convener. Something perhaps slightly separate the SCTS evidence and procedure review referred to research which indicated that the current system of examination across examination is not a good way of obtaining accurate evidence from a vulnerable witness. Now through our papers that's referred to several times and I find that very interesting so I'm just wondering can you give us a bit more detail on what that evidence says and first of all is that research scalable to not only other vulnerable witnesses but in fact the whole system as it stands at the moment? Yes in terms of procedure review it was looking at as whether the adversarial system is probably much bigger picture than that and I mentioned earlier I think it was related to Mr Perfinney's questions about the subgroup on joint vascular interviews and also Lady Dorian's part of that was looking at maybe a longer term vision that could be done and that was almost potentially moving a bit from that system to more in one cases having the one forensic interview. I think it was level one so it was certainly for certain child witnesses that was seen as very much a long term vision I think it's safe to say and obviously Lady Dorian and Court Service can speak for themselves but that's not something that could be done quickly in a sense what's being proposed by the Scottish Government at the moment is potentially a first step but it's a first step to getting the whole system used to pre-recording as more of a norm which just doesn't happen at the moment whether we currently have the best system or not is probably beyond what we can comment on but it was actually interesting to look at in terms of actually getting to the truth and how to find out about it there was a lot of interesting things that came out the evidence procedure review but really it was about starting it's a bit of a we always talk about a journey whether it ends up in that end point or not of actually moving to more of an inquisitorial system we're just at the very start of the journey where we're not really used to pre-recording and evidence be taken in advance in Scotland and it's actually just starting that and that becoming more of the norm. In terms of research and everything I probably would leave it to Court Service to be much more involved in it to comment on it in detail in case I misrepresent it but I think it was part of just a much more extensive vision possibly for the future for Scotland rather than than anything that immediately could happen. If that is the start of a journey how would you respond to the criticisms perhaps too strong but the suggestion that the ability to extend the category vulnerable witnesses by regulation only gives Parliament insufficient scrutiny over that category going forward? I mean the provision to extend is I think it's proposed by a formative procedure so we still have a lot of I think it would still have actually significant scrutiny it's hard to see how what other way it could be done I mean clearly if the the committee or the Parliament weren't happy with what's being proposed then further evidence could be given in terms of actually any extension I suspect this would have to be happened it wouldn't be to be done in the vacuum there'd have to be a lot of discussions about it and how it would be done and actually to have broad discussion. The one thing that I think why it's good to have that flexibility but still to absolutely have the parliamentary scrutiny by being by a formative procedure is if you have anything too flexible there's a much greater assist risk that actually things come in before actually the system is ready for it to be handled and that could have a really detrimental effect on vulnerable witnesses themselves so there is absolutely going to parliamentary scrutiny if in the future regulations are brought forward to extend it to deemed vulnerable witnesses as I say there's the parliamentary scrutiny built in it's not that we'd just be done by a commencement order for that power it would have to be actually put before the Parliament. That concludes our questioning I think the witnesses very much for attending. We'll now suspend briefly to allow a change of witnesses in a five minute gun for a break. Agenda item 2 is an evidence session on the management of offender Scotland Bill. I refer members to paper 3 which is not by the Clarke and paper 4 which is a private paper and I welcome Jill Emory, HM chief inspector of Constabulary in Scotland, HM the inspector of Constabulary in Scotland twice, Wendy Sinclair, G-Given, HM chief inspector of prisons for Scotland and chief inspector Gary McEwen, divisional commander, criminal justice service division, police Scotland and Colin McConnell, chief executive of the Scottish Prison Service. I thank all the witnesses for your written submissions as always the committee finds these particularly valuable in advance of our formal evidence session. We're not too bad for time I think we can allow a bit of magnitude but if we could be as sinked as possible and maybe direct questions maybe not to the whole panel but if you've got a question you know exactly who to direct it to that would be a more effective session. So can we start with the questionings and Liam McArthur? Good morning. It set out in your written evidence as the committee said which was very helpful but just for the record it might be helpful just to start with a question around home detention curfew and who can be released under home detention curfew, how the balance is struck in terms of public protection and obviously the process of rehabilitation. Thank you Mr McArthur. As you know the chief inspector of prisons and chief inspector of constabulary have made a number of recommendations that were considered by the Scottish Government out of which has emerged and developed a further set of restrictions in terms of those in custody that can be considered for home detention curfew. I mean I have the list here which I'm happy to to read out so there are the statutory exclusions so that's those required to register as a sex offender anyone on an extended sentence those who have a supervised release order those currently serving a section 17 or 18 recall those subject to hospital direction or of course those awaiting deportation over and above that there is a presumption against grant of hdc for those whose index offence is involved in an act of violence within sex offence involved the possession or use of an offensive weapon with index offence involved the possession or use of an article which has a blade or a sharp point or and to include those who have any links to serious and organised crime so in terms of the situation now there is a considerable restriction and presumption against the grant of hdc which has resulted in since these new measures were introduced approaching a 75 percent reduction in the grant of of hdc so where at one time we may well have been somewhere between say 25 and 30 grants of hdc per week we are now down to seven and I mean you've described those that are excluded I mean what previously was the the assumption around hdc would you got to a certain point in your in your term and and you could automatically apply for that or you would be put forward for it so in a sense that there are there are two facets to this the first is that the statutory exclusions of course always applied I think previously the presumption would have been unless there were particular factors the anticipation would have been to grant hdc so that has completely been turned around the presumption now is not to grant hdc where there are any concerns at all and of course now the introduction of previous acts of of violence and although the presumption against guides towards the index offence decision makers are encouraged to look further into someone's background and I think the implication of that is clearly where any recent indication of violence or even any active violence is considered to be serious it might will be sometime in the past would probably mitigate towards the decision that would be against a fairly dramatic fall that you've described in it and at one level I think it's entirely understandable how we've arrived at that point but presumably given the the purpose of hdc was about rehabilitation of those about to leave prison back into the community so presumably that dramatic reduction in the numbers getting hdc's is going to have a knock-on impact on that rehabilitation process and if that's the case what measures can be taken to try and address that because clearly it's not in anybody's interest to see offenders being released back into the community and going through that circle of re-offending again. Absolute valid point I mean it's at the end of the day it's the same group of people who are being considered or in a sense with because of the nature of the people that we care for in Scottish prisons you know the background for most of them is fairly similar so what we're seeing here is something I imagine will be projected in the weeks and months and years years ahead but essentially you know we can't have it always if our concern is and understandably so the potential for someone to commit a further offence or in fact a heinous act when on any form of licence then it's quite understandable that if the tolerance of that is reduced even the tolerance of that as a potential is reduced then clearly our position is to move forward on this sort of basis now I have to be clear with the committee my my instruction to through the operations director to governors is that we should be very very careful in terms of how we arrive at those decisions to grant hdc given what has happened but also given the level of political and public concern that there's been quite recently in terms of people being released into the community so I think we're seeing here a very clear change in behaviours which I think will be sustained over time I'm going to come to that issue around the information that informs those decisions and the training that's applied to those making the decisions I just wonder whether Mr McEwen or any other panellists want to address that point about the rehabilitation process and any concerns that might arise out of the approach that's now being taken. I would be happy to add to that Mr McArthur just in terms of the involvement of other agencies in the assessment of an individual's behaviour in the community that was something that we certainly saw was missing that other than the service provider actually having the control of the device to control the curfew to manage that there was no other assessment of conditions for that individual. I think the principles that were in place for home detention curfew previously were sound in that the three guiding principles for the prison service were about protecting the public, about preventing re-offending and about successful reintegration into the community. It was the fact that certainly the evidence that we managed to find in our review showed that that wasn't happening was the problem, not the principles in themselves. Although the statutory exclusions that Mr McEwen has just talked about in a sense take the decisions that need to be taken down to a much smaller level, as well as involving others, it would be helpful to know now precisely who's expected to be involved in that decision making process, but the training that's provided for those individuals, the information and the evidence that they're able to draw upon in order to inform those decisions, what has that been like up until now and how is that going to change as a result of the reports that have been produced? From SPS's perspective, we welcome the reports that have been published as the committee knows that we've accepted without limitation the recommendations for improvement that have been made. In terms of the decision making process, again, as I expect the committee knows by now, the governor-in-charge of the respective prison takes the final decision. As before, and there's a sort of multiplexity of contributions to that eventual decision, both from within and outwith the prison environment. That remains the case. Of course, the engagement with external contributors has been focused on in greater measure now to make sure that the bases are appropriately covered. This is about defensible decision making at the end of the day. The key advantage that we have now is that we have fewer people in terms of within the Scottish Prison Service. We have fewer people engaged in the decision making process. Those people are clearly identified and their roles are very specific. Having Governors or, in their absence, Deputy Governors taking those crucial decisions is a strengthening, given the recommendations that were made, because those are strategic decision makers, and that's all part of their experience and training as they move on through the service. Again, what that introduces is an opportunity for reflective practice in the Scottish Prison Service. Governors-in-charge meet every month with the Director of Operations, and part of that process is reflective practice through which this decision making process will be continuously reviewed and improved upon. We'll get that consistency across the service that the chief inspector has introduced. From what you've said, that will still be the decision of a Governor or a Deputy Governor. It's not moving to a situation where, effectively, a board of individuals would be taking that decision. Previously, it would have been at middle manager level in the service those decisions. Now it's the Governor-in-charge of each of the prisons that makes those final decisions. Of course, some may wish to appeal against that, and there is an appeal process, but it's Governors-in-charge who take those decisions. If they are not available, it's their Deputy. If others, you were talking about the multiplicity of views that were taken on board by the Governor or Deputy Governor before arriving in that decision, if any were to raise serious concerns about what the Governor or Deputy Governor was intending to do, would that be overridden? Would that be construed as a potential veto? In a sense, what is the idea to arrive at some unanimity across the range of stakeholders? To be clear, Governors-in-charge are experienced strategic decision makers. It's the nature of their job. We trust Governors to act appropriately within the framework that they've been given. Instructions are clear, and I want to reiterate with the committee that, given where we're at now, the presumption is against the grant of HDC. Governors will identify those who more clearly will benefit from HDC in the absence of clear or critical concerns. Again, as I've been able to set out for you in the statistics that I've shared with you, a towards 75 per cent reduction would suggest, certainly in the short term, that those critical decisions are probably more appropriately being taken, given the limitations that we now have. Governor practice is reviewed on a regular basis. On the additional information that's being provided, you've talked about to the other individuals or stakeholders that are involved, are there additional types of information or evidence that will be sought as part of that decision-making process? Again, that was part of the recommendation that was made overall. Police colleagues might wish to contribute, but both practically and currently, there's a considerable amount of work going on, particularly with Police Scotland, in terms of information sharing and making sure that that information runs through into the decisions that are taken. There's an exchange of information every Monday morning in terms of the data bank that we have for those that are being considered for HDC and that information is subsequently validated. In terms of the information that's coming together from criminal justice social work, from Police Scotland, from across the prison service in terms of the data that we know, the information that we hold on each individual who's being considered, it's a quantum leap forward in that sense. Again, I'm going to reiterate that having a strategic decision maker sitting on top of that gives us a far better level of assurance than we had previously. I certainly support all that's being said there. The purpose of home detention curfews is the reintegration of the right people back into communities and that aspect of rehabilitation. The role of the police in all of that is where a home detention curfew has been breached, is to then understand what the breach is, whether that be a breach of curfew or committing an offence, and then for the police to basically try and encourage that individual and for that individual to then be recalled back to the prison. So the premise of HDCs, I fully support. The risk assessment now, the communication between both organisations is far better than it was previously as Colin mentioned. There is now weekly discussions conference calls at that operational level, where they have regular discussions to ensure that those at the prison service are releasing on home detention curfew and, importantly, those that have breached their curfew or any aspect of that, then that is communicated to Police Scotland and then we can action that very quickly at the local level with good oversight by local commanders now and local area commanders to actually make sure that those individuals that are and are lawfully at large are brought into custody as soon as we can possibly make it. Colleagues, I will come on to the issues around breaching. I will just finish on one point. Mr McConnell, you have described, as I said, a dramatic reduction in the use of HDCs. Mr McEwen, you have talked about now an appropriate level and managed around risk. That does tend to suggest that where we were before was a situation that nobody could have been entirely comfortable with. Obviously, we have arrived at this situation through the most tragic of circumstances but were concerns being raised previously at the extent to which HDCs were being used across the board for individuals that really should not have been granted HDCs. Perhaps I could take the lead on that. I am not sure if all the logic, Mr McEwen, is that I can understand if you are juxtaposing the current position almost on a monochrome basis with where we were previously. The fact is that the approach has changed. As the chief inspector reports it, the particular instance that led to the review actually SPS had complied with the instructions, the guidance, as it was at the time. However, the guidance is of a different order. We have moved from a presumption for to presumption against. It should not surprise us then that, with the restrictions that we put in place and with potentially more adept decision makers now taking those critical decisions, that we have seen a change—a sea change, I think—in the level of grant of HDC, I would not agree, as I say, with a monochrome position that what went before was not acceptable. What went before was compliant with the rules and regulations as they were, the rules and regulations as we have now and the import of a presumption against rather than a presumption for, I think, leads us to the conclusions that we are drawing now. That is a monochrome characterisation. I think that it is simply picking up the point that you have made about the dramatic reduction where the presumption has now shifted and a suggestion that this manages risk in a way that is entirely appropriate. I do not doubt that that is the case, but I think that the public would question why, if previously the HDCs were being used to the extent that they were, albeit for rehabilitative purposes and all the rest of it, that somehow there were not concerns being raised at that stage as to whether or not that was appropriate, that the presumption was where it needed to be, that the statutory exclusions were as extensive as they needed to be. I think that that is an entirely legitimate question for ourselves and indeed the wider public to be asking. If I may just come back to that, I agree entirely and goes back to an element of your earlier question, which is, at the end of the day, what is HDC for? If we are a society that believes in testing people out in the community, people who have made mistakes and fallen by the wayside and that we should find opportunities to, in a sense, retest and give people the opportunity to survive in that test and not make mistakes, then that is the fundamental that lies behind HDC and licensing more generally. There have been a couple of horrendous experiences in people in the community who have either been on HDC or on licence and that has caused us collectively to reflect on that, which has led us to the position that we are in now. I wonder if Ms Sinclair-Jeeban has anything to add. One of the things that we were pleased about was that all the recommendations have been accepted, but the thing that I have been particularly pleased about is the speed of acceptance. I know that the guidance document, which, after all, is the Bible for people who are deciding on HDC, is something that they lean on. When I look at the new guidance document that has already been issued, it holds all the extra stuff that you have put in and, funnilof, we did not actually recommend, but it has gone into all the details, all the recommendations that we have put are now in there. It is a much clearer, more robust document and it also adds consistent documentation to it. One of our concerns was consistency of judgment. When it comes to the day that judgment happens between one person, we asked for a secondary assurance. With someone more senior, that now happens. The guidance document is considerably larger and provides the documentation with it. We should see a consistency of approach. The statutory exclusions are now much, much bigger, not the statutory exclusions. The exclusions are now much, much greater. Listening to that debate, my feeling is that it is the exclusions that are causing that drop rather than the poverty of the capability beforehand. I wonder if you have any thoughts about the impact of the more stringent restrictions on the prison population. I have, funnily enough, we were speaking about that before. I had real concerns before this review started that there might be unintended consequences of a rise in the prison population and not just from HDC. One of the things that I had asked for in my recommendations is that there is an official and an independent evaluation of the whole HDC, that we collect the reconviction statistics, that we actually look at whether HDC does work for reintegration. My concern is that if we become risk averse on HDC, we will also become risk averse on parole, people going to the open estate, which means that the pressure on the prisons at some of which are already struggling is going to become huge. I really worried about that ahead of time. Colin and I keep in regular touch because I wanted to see how the population was growing. One of the other unintended consequences that you all know is that the pressure on the population also puts pressure on the staff and also puts pressure on all sorts of other things. The level of self-harm goes up, the level of violence can go up. It is a very testing time at the moment because we have got that distinct evidence that this change to the HDC has had an impact. I was interested that you said that it implies that previously it meant that we were not getting it right. We need a further review in a further three or five years' time that says, have we got this right? Is this having the consequences that we wanted for HDC? We need to do that proper evaluation. Supplementary Liam Kerr? Just to pick up that point, but it is really something that Colin McConnell responded to Liam McArthur about the political and public tolerance of risk. What I am hearing from you is that since the reviews and some tragic incidents have happened that politically and publicly there is a reduced tolerance for risk of re-offending. So the question is, who is making the assessment that we could have a higher tolerance of risk to public health? Was that the SPS or was that an instruction from government? That is an extraordinarily difficult question to answer because I listened to the discussions in the Scottish Parliament. I take into account discourse in the media. I have some discussions with parliamentarians on a one-to-one basis, as well as taking general counsel from other professionals across the justice system. I do not think that it is as straightforward as either or. I think that it is a melange of all of that. Certainly part of my role as CEO of the service is to try and set the tone of what I think sensible decision making in an operational public service is. My judgment at the moment is that, given all that discourse that has been going on, there is a lower level of tolerance, particularly in the public domain, and I would be interested to hear from parliamentarians sitting round here if you do not think that that is the case. Certainly my own judgment and I influence my decision makers in the organisation is that we need to be more cautious in terms of our decision making, particularly around allowing people access to the community when they are on prison sentence. I think that the guidance and the restrictions that have been agreed and implemented reflect that.  I do not have that data immediately hand. Interestingly, I thought that something the committee would be interested in and asked my team for that this morning, so we are working up those details. Other than those that are already in the public domain, which have influenced the review, I am not aware of high numbers of serious offending. There will be a low level of offending, of course, and that reflects those who are reflected in numbers whose licences or HDCs have been breached. However, I do not have that particular number, but I am happy to look at the convener here and write to the committee if that would be helpful with those numbers. The numbers that have been intimated to me are 16 murders and dozens of serious sexual assaults. Would those numbers surprise you? I mean, that is what has been intimated to me. I would be entirely unfamiliar with those numbers. I will await your clarification, because I think that the key thing here and based on your previous answers is the question of whether or not the tragic circumstances that brought those reviews about are isolated and to what extent there was a wider problem. Would you agree with that? With the convener's indulgence, if I could just check Mr Johnson that your information would lead you to believe that, for people on HDC, there have been 16 murders? That is a point or a number that was raised with me directly by the family of the person who lost her life as a result of her family. Of course, I will check. I mean, I am shocked and stunned by that number, and I am entirely not familiar with any of those numbers. I mean, I would just, obviously, you have asked for those numbers. I think that it is an important one for the point that I just raised there. I mean, I am just looking at police colleagues. I have to say that I would be very surprised if there were 16 murders since 2006 with those that have been out on home detention curfew. I would be extremely surprised if that was accurate, but it would be interesting to get the figures. Are you confident about the processes that are in place? I mean, you are saying that it is now the governor that would be taking the final decision. I would really like to ask the question why it was not the governor taking those decisions previously. Actually, who was? Can you just give us some clarification as to what level of seniority, what number of years of experience that the individual taking those decisions was having? Was it finally signed off by the governor? What will prevent, essentially, that this becoming just a rubber stamp process, given the new guidelines that are being brought in? As I have already said previously, it would be one identified middle manager in the prison who would take those decisions previously. Now, it has to be the governor in charge. Effectively, it signs those decisions off previously. Again, just reflecting on the data that you have shared with me, I mean, I am a bit stunned by that suggestion. It was referred to directly, personally and anecdotally. I mean, in a sense, my primary concern is that this family feel that they have an awful lot of questions and are still very angry. I, in some ways, want to put the questions to you that they would if they were here, because I think that that is quite important. In terms of the previous decision making process, the information that has already been shared with Parliament is that 80 per cent of people on HDC completed their license without issue. There was a level beyond that where there were technical breaches. I will get that data for you comparatively small number who went on to commit further offences, but generally those offences were low level. That is not me excusing it or diminishing it, that is just the fact. We know, of course, because it is a fact that, in recent times, there has been, as far as HDC is concerned, one very serious issue that we should all reflect upon carefully and in which we would hope that the measures that we have put in place are designed to make us as unlikely as possible we can. I will go back to, if I may, the similarity in the questions between yourself, Mr Johnson and those raised by Mr MacArthur. I do not think that it is right or appropriate to try and make the position that, because we have put in place different decision making processes now because of what has happened, that that is in any way, given the instructions that we had in place, a criticism of decision makers previously is not. I think that that is a chief inspector. With all due respect, I will quote directly from the HMIPS report. Whilst an assessment process clearly existed, it may not be regarded by some to meet the definition of robust. I have skipped a sentence, but this situation led to different criteria, interpretation of timescales being adopted in different establishments. That is a pretty critical thing to be put into a report. While I agree with you, because we have adopted new criteria and assessment processes, that does not necessarily infer anything about the previous one. Those sentences in the report do question the robustness of your processes. If that is ultimately what we are about, as Jill-Henry pointed out, one of the fundamental criteria is about keeping the public safe. Questioning the robustness of your processes there, I think, is of serious concern. I was just wondering how you would respond. I am grateful for that clarification, because what the chief inspector also said was that, in the case that was being referred to specifically, the decision makers had followed the process. I think that that is quite insightful, but generally the view or was, and the chief inspector may wish to comment on this, was that the guidance, the rules that were in place were by and large being followed. I think that where we are now and I think that we welcome the report and the recommendations is moving from a situation where the presumption was to grant HDC. The presumption now not to grant HDC by its very necessity brings with it a far tighter set of requirements. I think that that is what we have put in place. I think that that is what the chief inspector has said. Can I just ask one final question? The situation regarding home detention curfew in many ways is comparable to the decision at the beginning of the custodial sentence of the criminal justice process with regard to remand and whether or not to bail. I was just wondering whether or not that decision gets taken into consideration either now or in the previous processes that you undertook, i.e. whether or not a sheriff or a judge had bailed the person and whether or not they had had concerns about public safety. If you don't, would that be worth having or would you find that information valuable as part of your considerations going forward? That is an interesting proposition. No, we do not take that into account. In that, the person that we have before us in terms of who we are making decisions for is someone who has been convicted and sentenced to a period of custody. Our concern in that sense is that that aspect of the judicial process has already been followed through. We then have an executive or administrative process that we apply. However, I can understand the principle that you are making and it certainly something that I would be happy with justice policy colleagues to reflect on. John Finlay, supplementary. Thank you, convener. It is a question for Mr McCorlam. I am afraid that you are getting them all, Mr McCorlam. Public safety is paramount and I think that if we park that, I mean everyone accepts that. Can I commend the rehabilitative work that the Scottish Police Service does? I think that it is absolutely vital to my mind that that is what it should all be about. Can I ask about a particular category of prisoner? A sizable percentage of the prison population are people with addiction issues, be it drugs and alcohol. I would not want a situation where there is not a realisation that these illnesses have with them lapsing as part of it. Can you see the regard that there would be to these circumstances in decisions around home detention curfew, please? We would entirely hope that someone who is granted HDC would continue with any therapeutic process that is going on whilst in custody. Of course, we cannot insist on that. That becomes ultimately a matter of choice. That is linked to the provision of other services in the community because HDC is only, in the main, granted to people who are serving less than four years. There is no statutory provision for them in the community. There is a voluntary provision which they can decide to access or not. However, as we engage with people moving through that process and as we go through the transition back to the community, all of us, be it agencies based in the community or in fact ourselves based in the custodial environment, really do try to encourage people to engage as productively as possible with all the services that may help them to resettle appropriately. For instance, would it be established that there would be a service available for someone to engage with in that area of fact? Thank you, that is reassuring. Shona, oh, sorry, yes, by August. One of the things that has changed in the guidance is that before they would attach licence conditions, with no guarantee that the criminal justice social work would be able to monitor or support those licence conditions, now they have to have the guarantee in place or the written acceptance and agreement before HDC can be granted, so there is a shift in that direction. Thank you. That is reassuring. We have touched on some of this already in terms of the presumption against release on HDC, so I want to focus a bit more on the anticipation that you might have of whether the extension of presumption against release to offences involving violence, possession of a weapon or links to serious organised crime. Would the panel anticipate therefore that the already quite dramatic fall in numbers of 75 per cent? Do you see a further fall happening in the light of the extension of presumption against? I was particularly interested in Wendy Sinclair-Gibbons' comment about the need for an independent evaluation, maybe three to five years down the line of HDC. Do you anticipate that being focused on the changes that have happened, which are quite dramatic? I take it from what you said that you would be particularly interested in whether that has had an impact on the prison population, but presumably also what the outcomes have been for those who have been granted HDC. It would be interesting just to hear a little bit more about it, but is it on the numbers, first of all, whether you think there will be a further drop? That is really a hard one to answer, as I have already said to the committee. The population is not going to change that much in terms of what people bring with them as their backstories. We are seeing the outworkings of the backstories of most people who make their way into custody. I would be concerned that, depending on how far back we think something is reasonable to consider, most people who head our way at some stage will have engaged in violence some way and somehow. Will the numbers remain the same? I think that they will stabilise over time. I doubt whether we are going to see them shift much up the way. We have moved from a position of somewhere between 25 and 30 grants per week to now somewhere around seven. I see that going up to 10, 12, 15, probably not. I think that it is going to be at the lower end over time because, as I said, the population in custody, generally speaking, has a backstory. For most people, that will involve some level of violence somewhere. How much discretion will there be on the issue of where an offence involves violence? As you said, that could cover many offenders. Just so that I understand the process of the presumption against, will that ultimately come down to the judgment of the governor in terms of how far back or in terms of the guidance? How clear is that in relation to? I think that that is a really important and strategic issue for the justice system. My guidance to governors is to be clear, but to be cautious, and to take a broad look at someone's offending history. I think that if there is any indication that certainly anybody has used a weapon or an implement against another person, but any indication of meaningful, serious violence, almost no matter how far back that is, my encouragement to governors is to be cautious about that. The presumption would be, with someone with a backstory like that, that I would be reluctant to grant them HDC. That is the guidance that I am giving to my governors now. I think that over time, if we have a mature discussion about that in the light of experience, then it might well be that a different consideration might well emerge, but I think that that will be based on experience and mature discussion. It might well be the view forms that my approach and SPS's approach currently is far too narrow, is too conservative in that sense of small c. Perhaps there is a more informed and mature view that will emerge over time, but I think that at the moment our approach is reasonable and probably necessary in order that we can establish some confidence moving forward in the HDC decision making process. The evaluation that you were suggesting? I think that there needs to be two. There needs to be one because HDC has been in place now for a number of years and we now need to have an evaluation of HDC before those changes as to how effective that was that would be able to give us an informed decision of how we are to move forward. We do not even collect the reconviction rates and in reality I think we should. I also think that we need to look at the reintegration and quite how we would research that, I am not sure, but certainly it would be very interesting comparator to see how the reconviction rates stack up against the reconviction rates of people just released from prison and also those reconviction rates of community orders. I do think that that is quite an important one. The second part is that anecdotally we have many, many prisoners saying to us that HDC was actually a wake-up call that they got out of prison and they could rethink their lives. They actually had time on HDC in which they could re-change their lives and start again. That is an anecdotal experience. We need to back that up with proper research. The second part is after this current system has been in place and I think the decision as to how many years it should be in place is one to be decided. We should have a second evaluation because we then have the first evaluation and the reconviction statistics, the second evaluation will tell us whether it has been just as useful a reintegration tool or whether, in reality, the reduction in HDC has seen a rise in the reconviction rates. The two evaluations are critical before we can decide that the previous system was good, bad or indifferent and the current system is good, bad or indifferent. That is helpful, thank you. Foto. Good morning or good afternoon, panel. I'm missing a corner, you'll be glad to know that my line of questions were on compliance and enforcement, so probably first upon the end of Gary McEwen in the first instance. What are the arrangements in place for non-compliance? Could you perhaps actually take us through the police process when somebody is breached, if you like? When someone is initially released on a home detention curfew, the decision has been made by the governor that he or she will be released back into community. There is a notification now that will come into a single point of contact. I call it a single point of success now, because that was one of the key issues that was identified around multiple points of failure. In the old world, there were a number of different email addresses based on legacy force arrangements, and those emails sometimes reached the source and other times didn't. We now have a single point of success, as I would call it. Should we get notification, that individual is then released into the community, and he or she is rightly allowed to go about their business? They wear a tag, which is then monitored by G4S in Scotland, which is the supplier. If that individual then breaches the curfew and there are four key issues around that. One is around removing or tampering with the device. The second one is around if the curfew may be that he or she has to stay indoors from 10 o'clock every night until 8 o'clock the following morning. If they leave the house during that point, that is alerted, and that is a breach. If they come at another offence, that is a breach, or a more general one, which is to keep the peace. The bottom line is, if somebody breaches the conditions, then G4S will notify the governor of the respective prison where they were released from, and the governor then makes a decision around whether they inform the police that that individual is now unlawfully at large. The reason I was hesitant there, because on some occasions they might not do that, they might actually go back to G4S and say, let's just understand, maybe the tag was faulty etc. Not on all occasions is that individual actually declared unlawfully at large. When they are, we then get a revocation of licence formal documentation from the prison service, we then disseminate that to the area in which we believe that that person resides, and then the local police officers will go and attempt to arrest them as part of the revocation of licence, and then he or she will be convened or taken back to the jail at the earliest opportunity thereafter. That is the general process that we now have in place between ourselves and the Scottish Prison Service. How quickly would that happen between being informed by the Scottish Prison Service and the action officer to search for the individual? We hope now within 24 hours. The initial part, when somebody is released on home detention curfuges generally, we get notifications seven days in advance of their release, so we know seven days in advance that they are coming out, but then when they breach the home detention curfew, we likely get notification formally from the prison service within 24 hours. You have also got a role that you touched on there as well. In monitoring persons released, can you explain a bit of that, but how often that would be? I am assuming that it would be dependent on the situation and the offences. That is G4S, the responsible authority for the on-going monitoring, has oversight and ownership of the devices, so it is them that would be alerted to the breach before the police. Sorry, I did not make that clear. I was not referring to the monitoring of the devices. I was meaning more in terms of policing if there is social work involved visits. We do not have a statutory role in doing visits, but we may well do as part of our routine policing. There might be some intelligence coming around to suggest or otherwise that somebody is getting back into bad relationships, maybe drugs or low-level shop work or whatever it may be, so that will be for the local officers to make efforts to contact them and to try and if there are any referrals that are required through our vulnerable person database to criminal justice or social work of the individual on the brink of re-offending, but if not committed offence, then we have a key role to play in trying to support or at least refer that individual for some support. Do you think that that could be tightened up a wee bit that there was a requirement almost for visits because where I was going to get to with that? Because in my previous employment where I have been involved in that situation, there have been police visits, but they have obviously been established locally or whatever, as you have suggested. I think that they work really well, but the area that I was going to get to was that you would be able to perhaps pick up police or other agencies, as you said, to pick up that perhaps a breach is more likely and then the information coming back the way as well as coming from the SPS to you. I do think that the police have a role. I would offer some caution around making that obligatory that the police do that, because those individuals have served their time, they are out, they are free citizens, albeit under a home detention curfew, so I think that we need to be careful around the role and responsibility of the police, but I do think that criminal justice, social work and other wee third party or voluntary organisations that can provide that support, yes. However, as I said, we do local officers, they are tuned into local intelligence and local relationship building, so if there is an opportunity there to create an announce visit, then that does happen very regularly across the country just now. I think that that is a useful question, but where does home detention sit in the priority list, if you like, and ask me a crude term, but if you take it with restriction of liberty orders and community payback orders, if they are breached, what would be the response in terms of priority? So now the home detention curfew breaches on lawfully at large is considered in policing terms as a category, so as high risk as any current outstanding warrants now where we look to have that individual incarcerated and brought back into custody within 21 days of that on lawfully at large, where, and I did raise it at the last session we had around the electronic moment, where the current guidance is very restrictive, however, is that we don't have the power to enter and search premises, so we could go and check and address for Gary McEwen, but we have no power of entry, whereas for apprehension warrants, as long as the police officer has the apprehension warrant in their possession, they can force entry to any house and search that house for an individual, so that piece of legislation and power, I think, is a gap that I mentioned at the last session, and I also think that there is another gap that I probably didn't articulate the best the last time, but it's actually... So I've tried to explain the process, which is G4S to the governor to the police, but there are occasions when the police officer may actually come across that individual, I call it the three o'clock in the morning, so they actually come across the individual at three o'clock in the morning, G4S are not aware that they've breached their curfew at that point, the police officer comes across the individual who, in my mind, is probably presenting the greatest risk because they've breached their curfew, they're out, whatever they're doing, and the police have no power of arrest at that point, so we simply have to, we can note details and if they are committing no other offence, we have to allow them to go on their way, and I would suggest that that's a real vulnerability, and I, again, at the last occasion I did mention it, where I think the police should be afforded some power of arrest, as a non-officially accused perhaps, where we take that individual into custody and then the notification procedure happens very quickly thereafter to the governor etc, whereas just now, realistically, we would take note details, allow that individual to go on their way and then notify the governor as quickly thereafter that that individual has breached their curfew. Do you think that that's something that would be useful to be included in the bill, then, as it goes through Parliament? I do very much so. The power of arrest for those who are found in real time having breached their home detention curfew and also the power of entry and search would certainly be another aspect that I would encourage the committee to support. Thank you, convener. Just for the record, I meant to say earlier that it was good answers to the line of questioning and not to praise the line of questioning, just to keep the effect up in that. One of the key issues as individuals who are on home detention curfew and in and reside in other jurisdictions or move abroad, could you just clarify what the situation is when someone gives an address in England and what the procedure is for ensuring that they're not breaching the curfew and what happens if they do give an English address? Certainly. The position as is now is the single point of success. The prison service would notify Police Scotland and then we would undertake to note. We put it on PNC and CHS, national systems that alert any officer anywhere in the country if they come across that individual and check the details out and they'll get notifications. That's on an IT system, but we also notify the respective police force in England and Wales that that individual is unlawful at large and we pass down the paperwork that we get from the prison service down to the respective police force in England and Wales now. It is then their responsibility to undertake, to prioritise and to try to incarcerate that individual. Is it English law that you'd be relying on in terms of unlawfully at large as an offence in English law but not in Scotland currently? Is that correct? No, it would be that. Because the offence that the custody came from here, then it would be your legislation that we would pass through. I would have thought so. I'm not a lawyer but I would have thought so. Can I just ask the blunt question regarding the McLeiland case? Why did it take the police 69 days from the point of breach and the notification of that occurring? Is that simply because you didn't update SPS with your current email address because that would seem to be one of the implications from your previous answer? No, that wasn't meant to be. If we're talking about the tragic killing of Craig McLeiland now, the HMIC done a review of that process and found that the processes were absolutely followed as they should be. The notification arrangements from the prison service to Police Scotland, the updating, the respective national computer systems were all followed. I talk about the previous life when the various emails didn't happen and the tragic circumstances were Craig, but the release of Mr Wright, so that didn't happen. It was actually followed as it should have been was the commentary that came from the HMI. Why did it take 69 days? As far as the notification process is concerned, Chief Superintendent McLeiland's correct, that was followed in that particular instance and actually was within, well within, 24 hours that the notification came, but what HMICS review was absolutely clear on that what happened thereafter was not acceptable and there certainly was not sufficient evidence to demonstrate a professional level of inquiry being made to actually apprehend James Wright and return him to prison. I mean, in your view, changing the category to sort of category A priority, which is that sufficient to ensure that that level of response is what happens in the future, no? What would you like to see her? No, it was a category A at the time. It was 14 days under the previous standard operating procedures. Had it been, you know, there is this issue that's explained in the report about the difference between a home detention curfew breach, a revocation licence and a warrant, but even, you know, the other high priority warrant would be 21 days. Regardless, Police Scotland didn't manage to meet any of those deadlines, so the deadline hasn't changed. There's nothing wrong with the standard operating procedures that existed. It's just that they weren't followed. That's quite a serious allegation. Thank you, convener. Chief Superintendent McEwen, going back to the line that Fulton MacGregor was pursuing, so if I may summarise briefly and reflect about what you've said, if the police suspect a breach of home detention curfew, there is no power of arrest at that point. If the SPS revoke a licence, you can arrest, but you can't enter a premises to search. In England and Wales, I believe, you do have a facility to do some of those things. Now, you've already said to Mr MacGregor that you feel that the bill should allow you to arrest on suspicion of a breach. Can we extrapolate from that to say, do you think that you need a similar ability to arrest? Do we need an offence of being unlawfully at large, or do you need the ability to enter and search for those who have had a licence revoked? There are probably three aspects there. One is about the power of forced entry and search. Yes, I think that that would be absolutely advantageous. One is about the power of arrest at the point where the three o'clock in the morning scenario where the police actually the first organisation to find that individual before the current formal process, I think that the police would benefit from a power of arrest at that point. And the third one about an additional charge for somebody who has basically breached their revocation. I am supportive of that. I mean if someone, and I'm probably stepping on to other territory here, but if somebody breaks out of prison, there is an offence there. Whereas if somebody as it stands currently breaches their home detention curfew, they simply get taken back into the prison and serve the remainder of their sentence. So there is no punishment and there is no deterrent then for this individual to actually not to breach the curfew. I think that if there was then that may again be subject to reviewing three or five years' time, but that may be an additional deterrent to prevent those individuals from breaching their home detention curfew. It's very helpful, thank you. Let's finally ask you about communication perhaps to inspectors. You both refer to that, perhaps you could say specifically where, but can I pose one scenario where there's a legitimate reason for breaching? You've perhaps been rushed to hospital and you then see that you're not supposed to be, you're not where you're supposed to be because of that reason. Is there a problem currently with getting that information from hospitals due to the data perfection? When the committee visited the WISE group, it was suggested that there was an issue there, so I'd like to know if that was something you'd come across and how more generally you think communication, which is a theme that goes through so many reports with the police and other organisations, how that could be improved? HMICS certainly didn't come across that particular scenario. Chief Superintendent McEwen has already referenced a number of reasons why an individual might not be technically complying with their tag that are not necessarily in breach as in committing another crime or being unlawfully at large. The communication issue more widely absolutely was a feature of the review that HMICS carried out. Again, Mr McEwen has referenced the single point of contact now that's been established and that isn't something that we've had an opportunity to test as yet, but as the committee will be aware, we will be revisiting the issues of the home detention curfew process in six months' time, so we will be able to assess the difference that that single point of contact has made to the communication process two-way between Police Scotland and the Scottish Prison Service. If I could pose that question to you, Ms Sinclair-Gubbins, given particularly your comments on recombining the need for more communication between the SPS and the police, perhaps we should be adding the NHS to that, too, if it's relevant? I think that communication for me was one of the key points in the report. By the way, please just call me Sinclair. I think that the second half of my name is just much too difficult. We certainly talked about a number of areas of communication that we made recommendations for. One of the ones that interested me is when someone had breached their licence or was expecting revocation, we didn't inform them and we should be sending them a letter. One of the ones was precisely that. I know that a number of people who end up with breaching of licence are because there's a technical system failure. They're dutifully at home in bed, but there's a technical system failure. I don't have those actual statistics to hand, but communication is key. Communication between the police to the people who are making the decision to release about their previous history of offending or intelligence held about serious and organised crime is one of the key points that we raised. Continued communication between the police and the SPS—I agree with you with the NHS—there should be a way that the NHS can find his gut a tag. It's not hard to spot and then be able to have a single point of contact to inform that that person has come into hospital if they say they're unconscious. There are numerous other reasons why people end up breaching. There is really no fault of their own. That's just one of them. It would be interesting and perhaps if you could provide in written evidence any examples of where information has been refused under the data protection rules. Obviously, the more we can identify the legitimate reasons for someone breaking, it means that the rules of these can then be targeted at looking at the people who really have to know how to breach them and are a danger to the public. That concludes our questioning. I thank the panellists very much for what's been a very worthwhile session. We can suspend briefly for the witnesses to leave. Three is consideration of a negative instrument licensed. Legal services complaints about approving regulators. Scotland regulations 2018, SSI 2018, Oblake 341, are firmly members to paper 5, which is not by the clerk. Do members have any comments? It's one that I made fairly recently. Presumably, I either have an impact assessment that you shared or you don't. The fact that paragraph 12 talks about an impact assessment was discussed with the Law Society, then a paragraph 13, a partial business and regulatory impact assessment. I just find that quite peculiar. I have no further comment to make. We will feed that back to the manager for business who has been taking a particular interest in SSIs, and I'm sure that he'll find that very helpful. Are there any other comments? If not, is the committee agreed that it does not wish to make any recommendations in relation to this instrument? Agree. Agenda item 4 is feedback from the Justice Subcommittee on policing on its meeting on 15 November. I refer members to paper 6, which is not by the clerk. Following the verbal report, there will be an opportunity for comments or questions from members. John Finnie. Thank you, convener. You rightly identified that the most recent meeting was on 15 November, and that was where we heard our fourth piece of evidence on Peace Scotland's proposal to introduce a digital device triage system, which is also known as cyber chaos, in the intention to interrogate mobile phone data and their intention to bring that in Scotland next month. The subcommittee took evidence from representatives of the information commissioner's office, Police Scotland, the Scottish Human Rights Commission and the Faculty of Advocates. The main focus of that evidence was to determine whether Police Scotland had a legal basis to introduce this new technology. Police Scotland had requested legal advice from the Crown Office and Procurator Fiscal Service, but that was not provided ahead of the meeting. I should say that this was an issue that was raised right at the outset of the subcommittee's deliberations in May of this year, so that was disappointing. The subcommittee did hear that there's not a bespoke piece of legislation that covers the use of this technology, and that, as a result of that, Police Scotland is relying on a complex mix of legal methods to seize and examine an electronic device. That includes the use of judicial warrants, reliance on common and case law, or statutory powers. Again, it's fair to record that the committee members understood that there were protections in place for accused and indeed suspects, but there were some specific issues around the position of witnesses or complainers. The subcommittee was told that legislation had got kept placed with technology. Legality was an issue not just for the proposed use of this technology, but Police Scotland's approach to accessing any digital media and biometric data. It was certainly the view of the Faculty of Advocates, the Scottish Human Rights Commission and the Information Commissioner, that legal clarity should be in place before the cyber chaos be introduced. Given the serious concerns raised about whether the legal framework was fit for purpose for accessing data, as well as the human rights privacy and data protection implications of introducing cyber chaos, the subcommittee agreed to write to the Cabinet Secretary for Justice and the chief constable to seek the views on the evidence that we received. Those letters went off today. The subcommittee will next meet on 6 December when it will hold an evidence session on Police Scotland's role in the immigration process and community relations. Do members have any comments? You talked about the Faculty of Advocates and the legal framework, and it says in this summary that the law requires to be changed prior to introduction. Does that mean that she was saying that we need to look at this and sort it all out? Or was it saying that if the law is not changed, this cannot legally be brought into force? It certainly was the view of the Faculty of Advocates, the Information Commissioner and the Scottish Human Rights Commissioner that there wasn't a sound legal basis to bring this in. It could be brought in without breaching a law, but it would be very inadvisable to do so. It is not how I would paraphrase it. They were very concerned that there wasn't sufficient legal basis around which you would operate, but they also looking ahead were concerned that the technology is racing ahead of legislation and not just the technology, but the amount of information that is available in technology. Metaphors were given about searching a house and at one time you might get a warrant to search the cupboard while the information that is stored on people's devices is about their entire private life, their finances, their relationships and everything. There were concerns that technology would be expanding even on a daily basis. I understand that. The sufficient legal basis is just now. We are still awaiting a judgment from the Crown and Procurate of Fiscal Service, so that will be coming. Liam McArthur? I think that the issue that was not just a faculty race, I think that it was accepted across the panel and I think that it was also agreed that cyber kiosks had been kind of the portal into this, but it opened up a breadth of areas where the legal basis was not particularly sound and I think that the legal requirement to update the law was increasingly evident. I mean, I think that John's described the process very fairly, that this was something where I think that Police Scotland were of a view that this was hugely beneficial to them and to those who had their mobile devices taken off them, but returned more quickly than would be the case previously and therefore had proceeded without, I think, due care and attention. What was interesting about the approach in this last session was that there was an acceptance across the board that lessons had to be learned. I think that Police Scotland, for all their failings, to some extent, came across as being very open to that and the other stakeholders, I think, were giving them due credit for the way in which they engaged through the external stakeholder group over the last couple of months. I think that it is fair to say that as a result of the evidence session where there was a presumption that they would be going ahead end of December, I think that that was being questioned and it was very much emphasised that it's not even going to need to get it right, they can't afford to get it wrong. It's so important that we get this right and have the right circumstances in which these cybercares are being used. There's no more question that concludes the Justice Committee's 30th meeting for 2018. Our next meeting will be on Tuesday, 27 November, when we'll continue our evidence taking on the vulnerable witnesses bill.