���˿���

That is fair enough. I presume that, when you lay the new bill before Parliament, you will let the committee see some detail on use of the maximum fine and what offences it has been used for. The problem is that we are being asked to accept something in the dark, because we do not really know how it is used.

Good morning. Lynsey, I will continue by asking a follow-up to Ben Macpherson’s question. In answer to his question, you said that there is a level of intensity required to pull together teams. Is one of the key issues that it is expensive to have the intensity to pull teams together?

The reason why I ask that is that when we first created drugs courts, I assumed that anyone who had a drug addiction would go to the drugs court, but I was told that they would be for the people who it was felt had the most difficult problems. That is because of the cost of pulling teams together, and their being resource intensive. Has the situation ever been better than it is now, or do you envisage that it is always going to be a problem because of the intensity of the resource that is required?

Does a drug treatment and testing order get around the problem of not applying a community sentence? In my understanding, a community sentence is an alternative to prison. You do something for a specific length of time, and if you are a drug user you cannot do that because you have to go and do that thing. Does applying a drug treatment and testing order get around that?

I am not sure that I understand the answer, to be honest. In case I was not clear, I will note the reference again. Karyn McCluskey said that 80 per cent of people whom sheriffs would like to give community sentences to cannot comply with them, so they give them short-term sentences.

My amendment 56 is a probing amendment. I want to set out what I am trying to achieve with it. To be clear, it is about cases involving non-criminal matters because, with criminal matters, there are not any timescales for prosecution. I admit that, when reading the policy memorandum and the bill, it is quite difficult to get your head round what applies to what, because the provisions do not apply evenly in relation to ranks or circumstances. Rona Mackay mentioned the issue of open-ended proceedings, and I am trying to get fairness in that respect.

The committee was absolutely at one that there should be a power to pursue police officers for serious misconduct after they leave the service, whether they retire or move on. The question remains whether there should be a timescale for the completion of that and whether that timescale should be in the bill.

Amendment 56 places in the bill the requirement that gross misconduct proceedings will commence within 12 months of the misconduct, and that such proceedings will be completed within 12 months of their commencement. That is modelled on parts of paragraph 74 of the policy memorandum, so it covers all serving and former “officers of any rank”, and therefore all disciplinary proceedings.

On the period of 12 months unless the caveats apply, that is a matter of proportionality.

As the stage 1 report said,

“The Cabinet Secretary confirmed that the 12-month timescale ‘is not a hard and fast statutory requirement’”,

and that will be the case without amendment 56.

I admit that, up to the point when the cabinet secretary said that, we thought that it was a statutory requirement. There may be good reason not to have that in the bill, and I am willing to hear what the cabinet secretary has to say about that.

The stage 1 report noted the example—Sharon Dowey also referred to this case—of

“an officer who is probably three years into their suspension”.

Police Scotland was frustrated that

“the case will be sitting somewhere in the criminal justice system”—[Official Report, Criminal Justice Committee, 22 May 2024; c 42.]

for up to three years.

As the stage 1 report also notes,

“David Kennedy, SPF, told the Committee that the conduct regulations enable hearings to take place within 35 days, and that this timescale could be met in circumstances where the person accepted there was misconduct on their part.”

It is important to highlight cases where an officer accepts the misconduct proceedings. A case where there has been a drug test failure, for instance, seems to be a pretty obvious example of where we should not be waiting beyond the 35 days to take action against the officer concerned.

I feel that not having some indication of when the proceedings should be completed is unfair, both to the person who has been charged with the offence and to the victims, who are waiting to hear the outcome. We know that, in our criminal justice system, time delays are one of the biggest factors that let us down, so I thought it was worth discussing bringing in a new provision that we all support to provide clarity as to when proceedings should commence.

We should consider the case of a police officer who is charged with serious misconduct who has moved to another job but, within 12 months, finds themselves the subject of an allegation that they must defend. In the end, the allegation may not have been proven in the first place, and having an open-ended procedure seems to be contrary to human rights. I was just wanting to probe and discuss that.

Right. I know that that will be for discussion between you and the cabinet secretary but, when the revised amendment is being framed, I would like it to be clear about how the chief constable will select those individuals. Let me put it this way—some individuals are more vocal than others and some have louder voices through representatives than others.

The proposal is good, because it is important to consult those who have complained. I note that amendment 4 refers to individuals who have “made a complaint”; it does not say whether the complaint has been successful. If we are going to do something on the issue, I would like to understand a bit more of the detail before stage 3.

In principle, I am very supportive of amendment 4, but it is important to clarify how the chief constable would go about the consultation.

Thank you.

I am in the same position as Katy Clark, in that I think that the amendments in this group are really important, regardless of how they have been framed.

There are a couple of things on which I would like further clarification. Cabinet secretary, have you had any discussion with the Scottish Police Federation or other police organisations about the implications of the duty of candour being applied to off-duty officers? Katy Clark talked about various scenarios, and one of the difficulties with the bill lies in trying to apply its provisions to scenarios that we know very little about. One scenario that I can think of involves an off-duty officer who is out socialising and witnesses something. Does the duty of candour apply in that scenario? Are there any circumstances where it would not apply—for instance, if an officer is involved as a witness, which could compromise them in some other way—or is the duty absolute?

Secondly, in relation to the framing of the bill, I want to understand the language used in amendment 10, which says

“subject, in particular, to the reasonable assertion”.

Perhaps the officials will need to help to answer that. Why is the amendment framed in that language, with the phrase “reasonable assertion”? Does that suggest that there are circumstances where the privilege against self-incrimination would not apply?

I have a third point of clarification to raise. Cases where a police officer has been confirmed as a witness illustrate an important aspect of the duty of candour versus the issue of self-incrimination. Am I right in thinking that there is no requirement for the duty of candour to be applied until the point at which the officer concerned is confirmed as a witness and not a suspect? Would there be any scenarios in which that might change—where an officer might go from being a witness to being a suspect, but has already spoken without any privilege? I was wondering whether those things had been discussed when you framed the provisions.

I want to be clear before the vote. This is not a new vetting procedure.

On a point of information, I am not trying to be difficult with the Government on this. Cabinet secretary, you have said that these are the timetables that we have to work to, and that is true, but, having dealt with quite a lot of legislation over the years, I know that it is not usual for the Government to introduce a substantial procedure at this stage. I know that you said that it was not a new procedure, but it looks to me as though it is, and I am going to be asked to vote on it in five minutes. I think that it is a new procedure, and we have not consulted on it, so it is not fair to represent the process of legislation in that way.

We are probably all dissatisfied with regard to how fast the process is. However, it is unusual for the Government to lob in an entirely new process at this stage. We are not really sure about the effect that it will have on people. You said that you consulted the federation, but the committee is confused, because we have been told that you have not done that. Therefore, it would be helpful if the Government would even concede that it is not normal to lodge a three-page amendment to a procedure when we have had no discussion of that amendment.

I acknowledge that. I thought that you could draft something that would allow for an extension of that. It is really about the principle of not having a completely open-ended investigation. Something should go in the bill that tries to ensure fairness. Without revision, an investigation could just run on for years and years, as some have done.