Hansard

As we have heard, the bill was introduced almost two and a half years ago, in June 2013. It has gone through a number of transformations in that period. It was brought to Parliament to implement many of the recommendations of Lord Carloway’s review of Scottish criminal law and practice, which was set up in 2010, following the Cadder case. As members know, after the Cadder case, emergency legislation had to be introduced in the form of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

Lord Carloway’s review group made 76 recommendations, including recommendations on a new system of arrest and detention, avoiding unnecessarily long periods of detention and liberation subject to conditions while the police carry out further investigation. Recommendations were also made regarding suspects’ right to legal advice, the nature of police questioning and safeguards for children under 18 and vulnerable adults. Most controversially, the bill as drafted would have ended the requirement for corroboration in Scots law. That was accompanied by proposed changes in jury composition and jury majority. I think that some of that will be revisited with Michael McMahon’s bill—the Criminal Verdicts (Scotland) Bill—when it comes before the Justice Committee shortly.

The proposal to end the corroboration requirement caused many of us much deliberation in weighing up the potential benefits to victims of one-on-one crimes such as rape and domestic abuse, as more cases would be likely to be prosecuted, with other concerns, such as whether successful prosecution was any more likely, and the possibility of miscarriages of justice for individuals accused of other crimes on only one piece of evidence.

The bill was suspended after stage 1, which it narrowly passed, for Lord Bonomy to undertake a review of additional safeguards required if and when the requirement for corroboration was removed. While the current cabinet secretary understands the concerns that many of us had, I am afraid that his predecessor castigated us roundly for them at the end of the stage 1 debate. Although the present Cabinet Secretary for Justice probably disappointed some on his own side, he was correct to remove the parts of the bill relating to the removal of the requirement for corroboration to enable the remainder of the bill to continue its passage through Parliament.

The original bill contained other proposals that have since been taken forward by alternative means. Sections 83 and 84 of the original bill created two statutory aggravations relating to people trafficking. However, the issue of human trafficking was addressed through a much more robust, stand-alone human trafficking bill, the Human Trafficking and Exploitation (Scotland) Bill, which was based on a member’s bill proposed by my colleague Jenny Marra.

The original bill did not contain measures to change the terms of release of long-term prisoners, but the intention had been to introduce those as stage 2 amendments. When the bill’s progress was suspended after stage 1, the proposals were progressed through the Prisoners (Control of Release) (Scotland) Bill, which turned out to be much more controversial than had been expected. It is fortunate that the measures were not introduced as amendments at stage 2 and were subject to full scrutiny at stage 1 of the subsequent bill. That was an advantage of suspending the passage of the bill.

Despite those deletions, many of Lord Carloway’s recommendations remain in the bill as we considered it during its final stage today. On first consideration, committee members had concerns about the change in the use of the term “arrest” from what we were used to in Scotland, complex as that might have been. Instead of meaning that a suspect is charged with an offence, it means that a suspect will be arrested when they are questioned on suspicion by the police in connection with the offence.

We had concerns that the general public and the media would not be aware of the change in the use of the term and that persons who had been arrested would be assumed to have been charged. Although, in our legal system, everyone is innocent until proved guilty, some suspicion is unfortunately commonly still attached to individuals who have been arrested, as that term is commonly understood. It will be necessary to educate both the public and the media on what the change in use of the term means. In England and Wales where the term “arrest” has been used, I am afraid that I have often assumed that the person has been charged.

I was at my mother-in-law’s home one Christmas when there had been a terrible murder down south and an individual was arrested for questioning. The assumption seemed to be that the poor guy had been charged. He turned out to be innocent and was not charged; someone else had done it. In changing the use of the term “arrest”, we need to ensure that everybody understands what the term “arrest” means, so that suspicions are not cast on people who have not done anything.

Many concerns have been expressed recently about stop and search, and it is to be welcomed that most of the recommendations from John Scott’s review have been included in the bill.

At stage 2, Mary Fee was successful in introducing an amendment to ensure that a child and family impact assessment will be undertaken when a person is remanded in custody or imprisoned. That assessment will determine the likely impact of detention or imprisonment on dependent children and identify any support and assistance necessary for their wellbeing. The amendment is extremely welcome.

Committee convener Christine Grahame also introduced a stage 2 amendment, which has survived in the final form of the bill. She was concerned about changes that were brought about in the emergency legislation in 2010 that related to the relative powers of the Scottish Criminal Cases Review Commission and the High Court and which enabled the High Court to overrule decisions of the SCCRC and not accept cases referred to it.

A requirement on the Lord Advocate to publish the prosecutorial test—a statement on the general criteria that a prosecutor requires to be satisfied in order to proceed with criminal proceedings—was originally proposed as a safeguard if the requirement for corroboration was abolished. Despite the latter being dropped from the bill, the prosecutorial test was introduced nevertheless and I believe that it will provide a welcome understanding regarding how decisions to take a criminal case to court are made.

Lord Carloway also proposed that anyone under the age of 18 should be considered to be a child for the purposes of arrest, detention and questioning. That would accord with much of the legislation that we have recently passed. At stage 2, I lodged a number of amendments that would have introduced parity for anyone below the age of 18; some parts of the bill treat 16 and 17-year-olds differently from younger children, which is probably right. Children 1st was concerned about the fact that we had not changed every reference to 16-year-olds to 18-year-olds. Having heard the reasons for that, given the other legislation that has been passed, Children 1st, like me, is content that some things have to be introduced more gradually. The general intention to treat people aged under 18 as children has been accepted; indeed, it applies in much of the bill.

Children 1st was also concerned about the use of the term “wellbeing” of a child in the bill, which it considers to be less well understood than the more-often-used phrase “best interests”. However, I believe that it was less concerned on learning that there will be training for police officers and other professionals around the Children and Young People (Scotland) Act 2014 and this bill, to which it has offered to contribute.

The bill has travelled a long and rocky road and Scottish Labour members have expressed concerns about it and suggested improvements to it. Most of our concerns have been addressed and some of our suggestions have made it through to the bill’s final form, which we are very happy about. Unlike at stage 1, we will support the bill tonight.