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That will be a decision for legislators—that will be for you and me. I am not going to make a blanket determination on that.

I would be happy to engage directly with Scottish Women’s Aid on that, because I do not want that to be the perception or the reality. As Ms Chapman mentioned, in the on-going improvement work following the workshops that we undertook with partners, 10 areas have been identified in which more detailed work is needed, including training, data sharing, court processes and structured case management. Ms Chapman spoke about some of the work that needs to be developed.

Rather than make promises now that I cannot keep—other than to say that I will want to give a fair hearing to all of this—I will simply say that we will consider matters further over the summer. I have a meeting arranged with Mr Findlay, and I would also be happy to meet Ms Chapman, separately or together with Scottish Women’s Aid, over the summer, so that we can at least ensure that we look with a fresh pair of eyes at where we are, what the timescales are and what the journey ahead is.

I would consider best practice to be aligned to modernising our criminal justice system so that—in the example of DESC—evidence can be shared from crime scene to courtroom. That supports the overall efficiency and effectiveness of the justice system and is to the benefit of everybody who comes into contact with it. As a programme of work, DESC has benefited from £33 million of investment and has the support of our justice partners. I hope that you understand my reticence about rolling back on the use of DESC. It is right and proper that I, with respect, point out that amendment 44 would not permit the use of DESC to store digital evidence and share it in court, which is one of the main benefits of that significant programme of reform.

My comments on amendment 46 also apply to Ms McNeill’s amendment 93. The bill, and my amendment 5, which I will come on to, clearly set out the process by which parties can apply for a judicial direction to have a physical item produced. Amendment 93 would give parties an unqualified right to have items produced when they requested it, with no role for the court to decide whether that was necessary to avoid prejudicing the fairness of proceedings.

I take this opportunity to reassure Mr Kerr and Ms McNeill that there is an existing common-law right for the defence to examine any physical item whose condition is critical to the case against the accused, even when it will not be produced at trial. There is nothing in the bill that interferes with that right, which will continue to apply even when an image is used at trial. That right should be exercised promptly after the defence is made aware of the item through disclosure by the Crown and should inform any application to require the physical item to be produced in court instead of the proposed image.

As members will be aware from the policy memorandum, there are clear statutory exclusions. Members will be familiar with what they are. That means that there is a cohort of people who are not considered for HDC. There are also other statutory criteria, all of which have to be met. Sentences must be three months or more. People must have served at least a proportion of their sentence—that is one of the things that we are proposing to change. People can be on HDC only for a minimum of 14 days and for a maximum period. The criteria around sentence length, eligibility, proportion of sentence served, and minimum and maximum period all have to be met.

The reality is that if, for example, someone was sentenced to one year, the change to the automatic early release point for some short-term prisoners will mean that they are released after 144 days, rather than after 180 days, which would have been the case before the changes. Due to the changes in relation to the short-term population, the potential time spent in HDC has reduced from 90 days to 54 days.

We want to realign the HDC process with the short-term prisoner 40 per cent programme. It does not mean that every prisoner who is eligible for home detention curfew will be eligible for the maximum time, because it depends on the length of their sentence, how long they have spent on remand, how long the assessment process takes, and how long it takes to gather information, particularly from the community. Of course, people must pass the assessments as well.

We are in the unusual yet fortunate position that many of the provisions in the bill mirror those that have been in force for more than five years, since the emergency legislation that was passed in the early weeks of the pandemic.

Throughout that time, we have engaged with justice partners to identify how the provisions have been working in practice, and the committee has heard evidence on that, through the stage 1 process and, in previous years, when considering extension of the temporary framework.

Stakeholders and justice partners have consistently told us that national jurisdiction provides flexibility to allow custody hearings to be managed quickly and efficiently, ensuring that the accused does not have to be transferred from one court to another for what are often short hearings. When the accused is subject to a number of outstanding warrants, national jurisdiction hearings can also facilitate bringing them together for pleas and sentencing, thereby minimising churn in court business.

I turn to Sharon Dowey’s amendment 59. Prosecutors take decisions that are based on the public interest. They are bound by the “Prosecution Code” and guidance that is issued by the Lord Advocate. It is not necessary to require them to consider the facts and circumstances of the case, as that is a fundamental part of their approach.

It would not be appropriate for them to make decisions that are based on cost and expense incurred by others. National custody jurisdiction does not include trials, so the requirement to consider the travelling time and expenses of witnesses is not relevant. In any event, it is unclear how prosecutors would know that type of information at the stage of marking a custody. They might not even know the identity of the accused’s lawyer at that point. Amendment 59 would introduce unnecessary and onerous obligations on prosecutors and, therefore, I cannot support it.

The other amendments in this group seek to adjust the end point of national jurisdiction. Ms McNeill’s amendments 51 and 53 would provide for the continuation of national jurisdiction—beyond the initial custody appearance—to be subject to the accused’s agreement. I am not persuaded of the merits of an approach in which matters of the court’s jurisdiction would be subject to a veto by the accused.

Ms McNeill’s amendment 52 would replace the provision in the bill that ends national jurisdiction in solemn proceedings on full committal, with a provision that would end it after bail has been granted. Although that might be intended to provide a clear end point before a trial, the effect would actually be to extend the court’s national jurisdiction in solemn custody cases, when the accused has been fully committed and not released on bail. That is contrary to the approach of the past five years and the committee’s stage 1 recommendations. Therefore, I cannot support any of Ms McNeill’s amendments.

I have lodged my own amendments, which I urge the committee to support. I believe that they address what I see as the intention behind Ms McNeill’s amendment 52.

My amendments 8 and 10 make it clear that the default will be for national jurisdiction to end following initial custody hearings, and only in specific circumstances will national jurisdiction continue until the conclusion of a case. The amendments provide that national jurisdiction in solemn proceedings will come to an end at the point at which the accused is fully committed. They also recognise that not all accused will be fully committed, as that is not a compulsory step when the accused has been bailed. As such, my amendments further provide that, when there is no full committal, national jurisdiction can continue only when an accused pleads guilty before the first diet. The amendments also make it clear that first diets, and any subsequent solemn proceedings, cannot be heard under national jurisdiction.

I understand Ms McNeill’s point, but if I go back to stage 1, the evidence from the Crown Office emphasised that its expectations for vulnerable and non-vulnerable civilian witnesses were that, when attending remotely, they would do so either from a Scottish Courts and Tribunals System remote site or from another designated site, whether that is a Victim Support Scotland facility or a designated site such as a bairns’ house. The Crown Office has confirmed that that remains its position.

I know that Ms McNeill did not quite ask this, but witnesses are not routinely giving evidence from their homes. In fact, that is exceptionally rare—I have been told that that is vanishingly rare. That would happen when a witness has a medical condition—perhaps agoraphobia—or is medically unfit. Before the emergency legislation, there was always scope to make an application to the court to enable such an arrangement, if that was crucial. The court would have to specifically sanction any such arrangement. That was the case previously, and it remains the case under the emergency legislation and the bill.

Ms McNeill has spoken about the fact that we continue to invest in evidence by commissioner suites for pre-recorded evidence. She is correct that witnesses must still take an oath and that the Crown Office sends guidance to witnesses. That is about ensuring that people understand the solemnity of the proceedings.

The guidance is quite detailed, so I will not read out a lot of extracts from it, but I can perhaps ensure that the committee receives a copy. It includes information such as that the procurator fiscal will inform the witness via telephone when it is their time to join. There are very clear expectations that people must be heard and that they need to be able to see the proceedings.

I make it clear to the committee that I fully intend to include so-called honour killings in the review model. However, there is on-going work that needs to be concluded before that can be achieved. I am referring to work that is currently being undertaken by the Scottish Government and stakeholders to develop a policy definition of what so-called honour abuse means in a Scottish context. That will lay the foundation of how we then look to define such deaths for review purposes.

Although I share Ms Dowey’s ambition to bring so-called honour killings into the scope of the review model, I cannot support amendments 60 to 76 or amendments 78 to 91, for a number of reasons. I acknowledge Ms Dowey’s remarks about her intentions, but I will go through the reasons anyway, because it is helpful to put them on the record—it will, I hope, help us as we work together.

The first reason why I cannot support the amendments is that, at present, neither familial homicide nor honour killings is defined in a Scottish context. Although I recognise that amendment 67 includes time for a definition of familial homicide to be developed, there is no such work under way. My understanding is that there is not sufficient appetite to include familial homicide without an honour context in the model, although there is a strong desire to see so-called honour killings included.

I turn from the regulation-making power to the amendments that would include the extra category of death in the model with immediate effect. Those amendments look to define so-called honour killings in fairly broad terms in order to capture the wider set of relationships that such abuse and deaths include. However, the consequences of broadening the scope in such a way are that it would significantly expand the model and create delivery risks.

The broadening of the scope to include familial homicide would also cover circumstances in which there is no domestic abuse link or so-called honour killing link. Such deaths go outwith the focus of the proposed review model and would risk overwhelming it if they were to be included from the outset.

The amendments make no reference to the important context of perceived—I emphasise that it is perceived—dishonour and shame that a victim is said to have brought upon their family, extended family and community. At the same time, I am concerned that the definition is too narrow in the context of so-called honour killings, as it captures only close family members and does not cover the full range of possible perpetrators. Therefore, although the definition is, on the one hand, too broad and would bring a wider range of deaths into the model scope, it is, at the same time, likely too narrow and would cut across the work that is being undertaken by stakeholders to define what so-called honour abuse means in a Scottish context.

For similar reasons, I cannot support amendment 67, which would require the Scottish ministers to make regulations in relation to both familial homicide and honour killings. The coverage—which includes familial homicide, not just honour killings—is too broad. However, I give my commitment that reviews will be extended to include so-called honour killings. In the event that there is a desire in the future to include broader familial homicide, the bill already contains powers to extend the scope of the model with the necessary flexibility.

Therefore, I cannot support the amendments, but I reiterate my absolute commitment to ensure that the review model extends to so-called honour killings at the appropriate time and when the crucial preparatory work to which I have referred has been undertaken. I would be happy to discuss the issue further with Ms Dowey ahead of stage 3 to set out the detail of the work that is already happening in that regard. I therefore ask Ms Dowey not to press those amendments, and she has intimated that she will not do so.

Amendment 16 would amend the regulation-making power in section 10 of the bill. That power will enable Scottish ministers to expand the review model to include further types of death arising from abusive behaviour, and it will be used to add so-called honour killings to the review model. Amendment 16 would allow adjustments to be made to the considerations to be weighed by the review oversight committee at the sift stage, so that the sift can be altered when the scope of the review model is being adjusted.

Amendment 16 has been prompted by the need that we identified to adjust the sift criteria at stage 2, in light of my amendment 14, in the next group, which relates to anchoring reviewable deaths in a domestic abuse context. It has been shown that it will not necessarily always be possible to alter the scope of the review sufficiently through a change to the definition alone, and it might be necessary to combine definition changes with changes to the sift mechanism to get the correct result. The same may well apply when the scope of reviews is widened under section 10 in future. So-called honour killings are a salient example of where there will be a need to adjust the sift criteria.

Amendment 16 is therefore an important amendment that will help to future proof the model in the event of changes in social and cultural circumstances that may lead to modification of the types of deaths and events that the model may look to review in time. It also demonstrates my commitment to include so-called honour abuse in the model and ensures that that inclusion will be able to take place in the way that I believe that we all want.

I therefore ask committee members to support my amendment 16. I reiterate my offer to discuss so-called honour killings further with Ms Dowey and ask that she does not press her amendments in this group.

It is certainly not a way to empty our prisons—that is for sure.

I will give an example. At any given time, there are around 3,000 short-term prisoners. Yesterday, there were 106 people on home detention curfew. I hope that that gives a sense of proportionality. There is absolutely no automatic right, even when we change two of the criteria. It is all subject to risk assessment. It is also important to say that home detention curfew has a high rate of successful completions.

On rehabilitation, it is important to point out that our prisons are for rehabilitation as well as punishment, so what happens in relation to the rehabilitative process in prison is important. However, for some prisoners, home detention curfew shifts the balance between time spent in custody and time spent sentenced in the community, and we must bear in mind that they are tagged, electronically monitored, on a licence and on a nightly curfew.

Home detention curfew is a restrictive way to ensure that people can spend part of their sentence in the community. It also enables people to engage with support that they require in the community. It is a managed process of reintegration, and the evidence shows us the value of community-based approaches in comparison with time in custody. I stress that the rate of successful completion of home detention curfew is very high.

The following amendments seek to strengthen what is to be included within case review reports and to include a dispute resolution mechanism within the model.

Amendment 27 makes a change to require a case report, where the case is about partners or ex-partners, to include an analysis of the social connections of the victim and perpetrator in the lead up to the death. That analysis should include the strength of those connections—whether they were strong or perhaps fractured or strained—and any changes in those relationships prior to the death. Such connections would include friends, family, work colleagues and relevant others. The change reinforces the importance of safeguarding those who experience domestic abuse, and it will help to identify risk factors that have not previously been considered. Recent research on domestic homicide cases has identified the absence of such a requirement. Without it being included, potential risk factors could be missed. This provision will ensure that that analysis is a feature within case review reports.

The purpose of amendment 28 is to broaden the scope of section 22 in order to include the recording of instances of good practice. Currently, there is provision in the bill requiring case review reports to include discussion of where there are lessons to be learned from missed opportunities in order to safeguard those who are affected by abusive domestic behaviour and to promote the wellbeing of victims of abusive domestic behaviour. The change will ensure that lessons can also be learned and shared from identifying and outlining good practice. In addition to helping to reduce any defensiveness on the part of agencies participating in a review, requiring good practice to also be reported will strengthen the review process. The amendment will demonstrate a focus on openness to learning, rather than on blame, and emphasise that there are positives that are important to learn from, too.

It would be possible, under the bill as introduced, for the report to include the things that are mentioned in both amendments, as the bill is not exhaustive in relation to what a report must include. However, those issues are felt to be sufficiently important that steps should be taken in primary legislation to ensure that they are considered in every instance.

Amendment 29 addresses a potential slight gap in the bill in the event where a dispute between the review oversight committee and a chair of a case review panel cannot be resolved. That would most likely be in cases where the panel chair has submitted a case review report to the oversight committee and the chair does not agree with a direction made by the committee to resubmit that report with changes. I anticipate that, in such an event, the committee and the panel chair will usually be fully capable of resolving any disputes through dialogue, and it is unlikely that a mechanism will be needed. However, in the event that that cannot be achieved, there is currently no process to resolve such matters. The amendment will therefore ensure that a mechanism is in place if needed. The risks of not having a dispute resolution mechanism available include delay in signing off and publishing a case review report, which would obviously negatively impact on bereaved families.

A further risk is that, where there is no route to resolve disputes about changes to reports, that could lead to case review chairs stepping down. That would also be problematic for bereaved families, as a panel chair might well be undertaking more than one review at the same time. A rapport with bereaved family members would need to then be established by a new chair.

To prevent such risks, amendment 29 introduces a regulation-making power, which would be subject to the affirmative procedure under amendments 31 and 32, to enable disputes to be resolved. The resolution could either be provided by the Scottish ministers directly or through the Scottish ministers appointing an appropriate person.

As I mentioned, it is anticipated that, if there are disputes between the oversight committee and panel review chairs, those will normally be able to be resolved through discussion, which the amendment also accounts for. However, I believe that it is necessary to ensure that the bill includes a mechanism to facilitate the resolution of such disputes, should that be required.

I move amendment 27.

Amendment 27 agreed to.

Amendment 28 moved—[Angela Constance]—and agreed to.

Amendments 87 and 88 not moved.

Amendment 29 moved—[Angela Constance]—and agreed to.

Amendment 89 not moved.

Section 22, as amended, agreed to.

Section 23 agreed to.

Section 24—Periodic reports

Amendment 90 not moved.

Section 24 agreed to.

Section 25—Guidance by the Scottish Ministers

Amendment 30 moved—[Angela Constance]—and agreed to.

Section 25, as amended, agreed to.

Section 26—Regulation-making powers

If someone is recalled from HDC, that would have to be proportionate in relation to the breach of licence. The decision would be framed by whether someone has breached their licence and the circumstances around that. Although optimising the use of home detention curfew assists with the management of a very large prison population, it is also a reintegration tool. It is certainly not a silver bullet for our large prison population. I reassure Mr Kerr that the operational decisions that the SPS makes are based on an assessment of risk, its partnership work with communities and the information that it has about whether someone has breached their licence or not. Those are the things that determine when a decision has to be made about whether someone is recalled. If it is helpful, I could ask the Prison Service to provide more information to the committee on that point.