Meeting of the Parliament 21 June 2023
There are two amendments in this group that seek to retain the operation of the presumption in favour of remand that is contained in section 23D of the 1995 act—amendment 1, in the name of Jamie Greene, and amendment 74, in the name of Pauline McNeill. In addition, there is amendment 73, which would require a review of the operation of the restrictions on bail in solemn cases by the Scottish ministers.
The policy content of the bill was first consulted on in 2021. That was a full, open public consultation to which anyone with an interest could offer their views. Included in the consultation was a proposal to move towards one core bail test with public safety and victim safety at its heart. Following consultation, the bill was developed and introduced to Parliament more than a year ago for effective scrutiny, which has taken place over the past 12 months. That involved the committee holding numerous evidence sessions throughout the autumn with full stage 1 scrutiny and detailed stage 2 amendment sessions. With respect, I therefore dispute the need for the further review of the operation of this aspect of bail law that is envisaged by amendment 73, but I will talk later about other reporting requirements that the Government will come forward with.
It seems to me that the key question that Parliament is faced with in this group of amendments is whether to move to a new single bail test that has embedded within it public safety and victim safety. Those are exactly the issues that will arise in section 23D cases, where the court can use its expert judgment in assessing when remand should be imposed.
If amendment 1 or amendment 73 was agreed to, the current statutory restriction on bail that is contained in section 23D of the 1995 act would apply alongside the new bail test that is set out in section 2 of the bill, which would mean, in effect, that there would be two bail tests. The new bail test would operate for most cases, while the section 23D test would operate for certain solemn cases. It is important to remember that bail can be granted under section 23D in exceptional circumstances.
16:45I am very aware that, through the scrutiny process, concerns have been expressed about the removal of the statutory restriction on bail in such cases. It is important to note that those who have expressed concerns have tended, overall, to focus less on concern that the repeal of section 23D of the 1995 act would lead to a change in bail decisions in such cases and more on concern about a perception that bail law is being weakened. I note for the record that I consider matters of perception to be of fundamental importance, particularly with regard to trust and confidence. I will come back to that in a moment.
We know that most people, especially in the legal sector, accept that there will be no significant change, given that the new bail test has at its heart public safety and the need to protect the complainer from the risk of harm. However, I am aware from my direct discussions with victim support organisations, including Victim Support Scotland and Scottish Women’s Aid, that they would prefer the continuation of the statutory restriction on bail for that category of case. I acknowledge that those perceptions matter. If the law is to be credible, it should command support from those who are affected by its operation. That is why I have lodged amendments that will help us to understand more, and give reassurances, about how the new bail test will be used in the future for cases that would previously have been subject to section 23D of the 1995 act.
My amendments 27, 30 to 33 and 35 will extend the reporting requirement in section 5A, which relates to part 1, on bail and remand. Amendment 27 will require information to be included on
“the number of bail orders made in respect of ... individuals ... accused”
of certain serious offences where those individuals have a previous analogous conviction. With the bill seeking to move to a new single bail test for all cases, the requirement for information to be reported on cases that would previously have been subject to the restriction on bail in section 23D of the 1995 act will help us to assess the operation of the new bail test for those cases.
Amendments 32, 33 and 35 are consequential to amendment 27. They simply define the types of offences that the specific reporting requirement covers.
Section 5A also contains a general power for the Scottish ministers to include in the report other appropriate information over and above that which is specifically listed. Amendment 30 adds to that to make it clear that such information can, in particular, include information on the repeal of section 23D of the 1995 act, as provided for in section 3 of the bill. Where the report includes such information, amendment 31 requires the Scottish ministers to consult certain groups in preparing the report, including persons who provide support services to victims.
Overall, my amendments will strengthen the reporting requirements so that information will be available on how the new bail test will operate for types of cases that would previously have been covered by section 23D of the 1995 act.
Throughout the scrutiny process, there was strong support for the repeal of section 23D from many, including the judiciary. That support was based on the law being simplified so that one core bail test can be used for all cases. Crucially, consideration of public safety and the risk of harm to the victim is embedded in the new bail test. That is an essential element of the new test, which will continue to allow the court to remand those who pose a risk to public or victim safety.
The new bail test caters explicitly for exactly the types of cases that section 23D of the 1995 act currently covers—that is, where an accused person is charged with a serious sexual, violent or domestic abuse offence and they have similar previous convictions. That is exactly the type of case in which public and victim safety will be of critical importance and it is exactly the type of case in which the new bail test provides for the court to refuse bail.