Hansard

Amendments 32 and 41 make changes to new section 106B of the 2016 act in consequence of new section 106BA, so that section 106B will now apply only to dispensing with reporting restrictions in relation to child suspects. The new section 106B power remains different in scope from the new section 106BA power. Just as with the provisions on self-identification, there are different considerations in play in relation to child suspects, given the potential adverse impact on future police investigations and, beyond that, fair trial rights. It would remain possible for a suspect, constable, prosecutor or a media representative to apply for a dispensation from reporting restrictions and for the court to grant that if it was satisfied that it was in the interests of justice. However, Mr Whitfield’s amendment 191 proposes the wholesale removal of new section 106B, which would mean that there would be no scope at all for reporting restrictions to be dispensed with prior to any court proceedings, whether in relation to a child victim, witness or suspect. Although I appreciate that Mr Whitfield might not believe that a media representative should be able to apply to the court to have such reporting restrictions lifted, the removal of that entire section would mean that a constable or prosecutor would be breaking the law by publishing any identifiable information in relation to a child suspect. Police Scotland and the Crown Office and Procurator Fiscal Service have been clear that they require the ability to do so in some form. Publication of such information could be crucial for the protection of that child or other people and could seriously interfere with the ability of those organisations to investigate crimes and prosecute. That would be to the detriment of everyone involved and could interfere with the ability to protect the public and children. Moreover, even in the case of a media representative making the application, it can be legitimate for the court to consider whether reporting restrictions should be lifted where it is satisfied that doing so is in the interests of justice. I therefore urge Mr Whitfield not to press the amendment, and, if he does, I urge the committee not to support it. 09:15 I will turn back to my amendments. Amendment 60 would insert new sections 47ZA and 47ZB into the 1995 act to make provision enabling applications to the court to dispense with reporting restrictions in relation to the publication of information, respectively, in relation to a child accused after the disposal of any court proceedings and in relation to a child victim or witness during or after the completion of court proceedings. Amendments 44 and 45 are consequential to amendment 60. The amendment broadly ensures parity in terms of the provisions on dispensing with reporting restrictions, whether prior to, during or after any court proceedings. Ruth Maguire’s amendments 137 and 138 concern the court’s powers to remove or reinstate reporting restrictions. Before I come on to those amendments, I want to state that I recognise that the intention behind those amendments and her other amendments, to be debated in a later group, is to seek to reduce the trauma that is experienced by those who lose a child as a result of crime. I understand Ms Maguire’s motivation for lodging the amendments and I acknowledge the letter that was sent to me and a number of other ministers from families who have been bereaved by a crime, calling for change in this area. That letter was followed by a similar letter from a number of organisations. The Government is absolutely committed to considering the issue in more detail and in discussion with those with lived experience, victim support organisations, academics, legal professionals and media representatives. To that end, the Cabinet Secretary for Justice and Home Affairs provided further international evidence to this committee and the Criminal Justice Committee in a paper of 23 January, which I think it is important that we reflect on. The Scottish Government is also hosting a round-table event with victims organisations and a range of partners in February to discuss experiences and options. The cabinet secretary and I are committed to working with Ms Maguire and other members on the matter, but we need to take the necessary time to do so. In respect of amendments 137 and 138, at this stage and as drafted, I have significant concerns about how they could work in practice. I note that officials in the criminal justice agencies have raised concerns with my officials about whether the amendments would be enforceable in their current form. In the case of amendment 137 and an order made under its proposed new section 106C, vast resources would be required to identify all publications breaching the order and ensure that they were removed or withdrawn from public availability. Such is the media landscape that publications, publishers and broadcasters may well be located outwith the United Kingdom, and so publications might have reached an international audience. There are also questions about the value of such provisions, given that once there is widespread knowledge of an individual’s identity it is impossible to completely retract that information. Today’s media landscape is almost unrecognisable from when legislation on reporting restrictions was first introduced. It is no longer limited to the traditional print and broadcast channels but ranges from international news agencies to individuals posting on public forums, with an exceptional growth in the number of self-published authors, bloggers and influencers. That has been reflected in the updated definition of “publication” in the bill. Many people who are outwith the larger media organisations do not have ready access to legal teams to advise them on what can and cannot be published. It is therefore essential that, as far as possible, provisions on anonymity are unambiguous and offer legal certainty—a sentiment that has been echoed by academics from the campaign for complainer anonymity at Glasgow Caledonian University. The ability for the restrictions to be applied retrospectively; to be varied or revoked in relation to particular information, people or publications; and to be reinstated at any time following expiry could lead to considerable confusion and the risk of criminalising those who are unaware of or unable to follow repeated court orders on varying, revoking or reinstating restrictions. We must balance our desire for appropriate safeguards and protection with the principles of open justice and freedom of expression. Although the powers of removal rest with the courts, which would need to take decisions in a way that was compliant with the European convention on human rights, it might be difficult, if not impossible, for a court to exercise those powers in a rights-compatible way in order to identify relevant published information that should be removed or reinstated or to identify who was responsible for that. Once information has been published in breach of any restrictions, the person who was originally responsible would have no control over how that information might then be used or disseminated by others. In summary, a host of legal complexities require further consideration and consultation in order to establish how measures would realistically work in practice. Ruth Maguire’s amendment 138 provides a further power to reinstate reporting restrictions following their removal and raises similar concerns to amendment 137 with regard to its workability, enforceability and potential to undermine legal certainty. For the reasons that I have outlined, I am unable to support amendments 137 and 138, and urge Ruth Maguire not to move them. However, I am fully committed to further discussion and engagement on how we better protect the privacy of those bereaved by crime, which the committee will discuss shortly. The next amendments concern the removal of the power of the Scottish ministers to dispense with reporting restrictions. The Government’s amendment 51 would mean that the Scottish ministers would no longer have the power to dispense with reporting restrictions after the completion of court proceedings. Consequently, only a court would have such a power, under section 47(3) of the Criminal Procedure (Scotland) Act 1995, to dispense with reporting restrictions on disposal of the proceedings. That change will locate such decision making solely with the courts. Amendment 51 follows the compelling stakeholder evidence, including from the campaign for complainer anonymity, which stated: “We believe the courts are the only appropriate forum for making decisions on whether reporting restrictions in cases involving children continue to apply or are set aside.” In practice, as it stands, the ministerial power is partial in that ministers can dispense with reporting restrictions only after the completion of court proceedings, and that would only be before the child turned 18, when reporting restrictions automatically lapse. In the future, it is likely that decisions about dispensing with reporting restrictions and/or extending restrictions beyond the child turning 18 will be made at the completion or disposal of proceedings. If the restrictions are extended beyond a child turning 18, there are provisions to enable the order to be reviewed or revoked. Leaving decision making with the court brings a number of advantages. Judicial decision making can benefit from hearing the full evidence in a case, with in-built appeal provisions, in a way that the ministerial power could not. That is particularly important given the huge implications and potential risk for the child involved if reporting restrictions are dispensed with, including in respect of children’s rights. The change would also afford consistency with the Victims, Witnesses, and Justice Reform (Scotland) Bill, which was introduced in April 2023, under which ministers have no powers to dispense with reporting restrictions for cases covered by that bill. Amendments 61, 68, 69, 72, 76 and 81 are consequential to amendment 51. Government amendment 62 concerns the right of appeal under section 47A of the 1995 act. The bill as introduced makes provision for a child accused, a child victim, a child witness or a prosecutor to appeal the court’s decision to dispense with reporting restrictions. Amendment 62 provides greater clarity on the ability of victims and witnesses to appeal that decision. That is an important change to ensure that the ability of victims and witnesses to exercise that right is as well understood as possible. I move on to the amendments that concern the extension of reporting restrictions. On introduction, the bill did not allow reporting restrictions for victims and witnesses to extend beyond the age of 18 or the conclusion of proceedings, if that comes later. That was to enable victims and witnesses in adulthood to self-identify, should they wish to do so. However, as we debated in the previous group of amendments, the proposed amendments would enable child victims and witnesses to self-identify at any point without breaching reporting restrictions. Various stakeholders, including the campaign for complainer anonymity, Together Scotland and the Children and Young People’s Commissioner for Scotland, criticised the fact that, while the bill as introduced enabled a child accused to seek an extension of reporting restrictions, no similar provision was made in respect of child victims and witnesses. That is addressed by Government amendment 65, which amends the power in new section 47B of the 1995 act to extend reporting restrictions in relation to child victims and witnesses. Amendments 66 and 67 are consequential to that. Moreover, Government amendments 54 and 55 would also enable child victims or witnesses to appeal any decision to extend or not extend reporting restrictions in the same way as a child accused. Those amendments now ensure parity between a child accused and a child victim or witness in relation to decision making around extensions of reporting restrictions. I understand Ruth Maguire’s intention behind and motivation for lodging amendments 147 to 150 and 192 and the associated amendments. They, too, make provision for the extension of reporting restrictions with associated rights of appeal. The amendments appear to have a similar intent to the Government amendments that I have just described. However, the Government’s amendments go further in some respects, as they extend to child witnesses as well as child victims. I am concerned that Ms Maguire’s amendments would not extend to child witnesses. I strongly believe that child victims and child witnesses should have the option to apply to have reporting restrictions extended, in keeping with our person-centred and trauma-informed approach. To limit that to child victims would mean that child witnesses could miss out on those important protections and benefits into adulthood. Although I acknowledge that Ms Maguire’s amendment 148 would also enable extensions of reporting restrictions in relation to deceased victims, I have concerns about the extension through the bill of provisions in relation to deceased victims and the potential adverse consequences of that. I will address my concerns when we come to debate the issue shortly. If an extension has been granted at the request of one family member but another family member wants to identify the deceased child publicly, they would have to apply to the court to have the order varied or revoked, with the emotional and financial costs involved. Failure to do so could result in that individual, and anyone else who subsequently published that information, being criminalised, adding to the trauma for that individual and their loved ones. There could be different views between family members and it is unclear what would happen in such situations. Another concern is that extending the protection to deceased victims could inevitably extend the protection to those who commit offences. We must keep it in mind that, tragically, the majority of child homicide victims are killed by a parent. It is hard to understand how you could identify one without leading to the identification of the other. I am therefore unable to support Ruth Maguire’s amendments, for the reasons outlined. Again, I urge her not to move them in return for a commitment from the Government for further discussion and engagement on this deeply important issue, allowing time for the level of detailed consultation and consideration that we have committed to, in which I know that Ruth Maguire is keen to participate. As I said previously, the Government is keen to seek a solution to the issues raised by bereaved families and victim support organisations and to engage on those issues in an open-minded way, but it is essential that we fully explore the complexities involved to avoid any unintended consequences from making such a significant and expedited change to the law. I note that the issue has potential implications for the Victims, Witnesses, and Justice Reform (Scotland) Bill, which also includes provisions about reporting restrictions for the protection of other victims of offences under that bill. Instead, I ask members to support the Government’s amendments concerning the extension of reporting restrictions. I firmly believe that the Government’s amendments are more consistent with our trauma-informed approach, provide equality for child victims, witnesses and accused, and bring greater consistency with the provisions under the Victims, Witnesses, and Justice Reform (Scotland) Bill. Finally, I will address the Government’s amendments concerning the application of the public interest test, which should inform decision making by the courts in relation to dispensing with reporting restrictions or not. In further support of Scotland’s incorporation of the United Nations Convention on the Rights of the Child, the amendments vary the tests to be considered in making decisions regarding reporting restrictions. 09:30 Amendments 70, 71, 73 to 75, 77 to 79 and 82 make further amendments to new section 47D of the 1995 act, as inserted by section 13 of the bill, which makes provisions for the court’s application of the public interest test in relation to decision-making around dispensing with or extending reporting restrictions. In relation to decisions concerning a child accused, amendment 73 ensures that their best interests must be regarded as a primary consideration. Amendments 75 and 79 concern decisions in relation to a child victim or witness. Amendment 79, in particular, would mean that, when a child victim or witness is under 18, the court should regard the best interests of the child as a primary consideration and should have no regard to the length of time until the person will reach the age of 18. That is because reporting restrictions might not cease when a child turns 18, as debated elsewhere in this grouping. That will bring consistency with provisions for a child accused and it should address the concern raised by stakeholders about differential provisions in relation to consideration of those matters depending on whether they relate to a child accused or a child victim or witness. Moreover, the amendments reflect the call made by stakeholders during stage 1 that the best interests test should be more consistent with the language in the UNCRC. Members will be pleased to know that that concludes my discussion of the amendments in the group. I urge Martin Whitfield not to move amendment 191. I likewise urge Ruth Maguire not to move her amendments pending further exploration of the important matters that they and her other amendments raise. I move amendment 21.