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I listened with great interest to the cabinet secretary, and I am sympathetic to an awful lot of what she put before us. I might counter that, although the Lord President is, of course, the head of the service and is independent, surely, in the system that we have, ministers must have some oversight of what is going on. Bear in mind that I am not asking for an opinion; I am asking for some way of scrutinising compliance with the timescales and the ability of the service to meet the timescales, and for this Parliament and the Government to help to properly resource the system to make sure that it works as well as possible.

We heard very powerful testimony, which I referred to earlier, about what is happening in the courts and what might happen when the timescales revert, which I am sure causes fellow committee members great concern.

That said, I think that the cabinet secretary spoke persuasively, and I accept that my amendment is perhaps not the right route to achieve my aims, so I will not press it to a vote today. I would like to work with the cabinet secretary offline to work out what the best way of achieving the end game is—I know that the cabinet secretary is receptive to that sort of thing—because I suspect that we share the drive to do things as efficiently as possible and in the best way that we can. However, I accept that there might be a better way to do that than through amendment 55. For that reason, I seek leave to withdraw amendment 55.

Amendment 55, by agreement, withdrawn.

Section 9—Domestic homicide or suicide review

Has any research and investigation been done, prior to the laying of the instrument, into the impact of reducing the threshold for time served to 15 per cent on victims and/or on the general public’s respect for and perception of sentencing in Scotland, given that a criminal can be sentenced to prison but may serve only 15 per cent of their sentence inside?

I am grateful for the answer. I say that with great respect, because I enjoy our exchanges, cabinet secretary, but I am not sure that it answered my question, which was about the data and the research that has been done on the impact that the reduction will have on rehabilitation in prison. If you have that data, perhaps you could outline it in your response to my next question.

In your opening remarks, you said that there would be no change to the risk assessments. However, if people are in and out of prison sooner, it would, logically, be more difficult to risk assess them and to address any issues that they are bringing with them from the outside. You say that there will be no change to those assessments, but has there been any investigation as to whether there might be a need for such a change, or has it just been assumed that there is not?

I thank the cabinet secretary for her contribution to the debate, but I am afraid that I do not accept the argument. If the issue was truly about sticking at an appropriate level and not crime inflation, as it were, I cannot see why we would not make rises from the £500 level based only on inflation. The committee has already seen the consequences of fiscal fines, with the Scottish Solicitors Bar Association telling us its view that shoplifting is effectively decriminalised, which I mentioned earlier.

I understand the point that is being made, but if that is right, why not simply provide that the sum will be increased by the level of inflation, so that it is tied not to crime inflation but to fiscal inflation? If the cabinet secretary is not minded to do that, under which circumstances could she envisage increasing the level of fiscal fines?

Finally, you said that there would be more people out on HDC—although not significantly more, to be fair. Logically, your 7 per cent failure rate will increase if more people are subject to the regime. Ultimately, it is for the SPS to consider breaches and whether or not to recall people. What research has been done on the SPS’s freedom to make a decision, given the context, which is that our prisons are full? Does that stay the SPS’s hand when deciding whether to recall people from HDC?

I would be grateful if you could do that.

I will speak to amendment 44 and then to amendments 45 and 46, relating to section 4, which starts on page 8 of the bill. Taken together, those amendments are aimed at ensuring that, although digital productions will be possible, all parties would have the right to view physical evidence and that physical evidence could be produced.

Amendment 44 would delete section 4(2) of the bill. The reason is that subsection (2) refers to section 68(2) of the Criminal Procedure (Scotland) Act 1995, which provides that the accused is entitled to see the physical productions in specific places, depending on in which court the trial diet is happening. Section 4(2) of the bill would change the default position, such that the accused would no longer be able to see the production physically if it were available in electronic form and the accused had had the opportunity to see it in electronic form. I do not quite understand that, because it feels as though it is a removal of rights for no discernible benefit. My amendment 44 would therefore remove section 4(2) from the bill, such that the default position would continue to apply and the accused would be able to see the physical production on request.

I turn to amendment 45. Section 4(4) of the bill provides that an image of physical evidence

“is ... to be treated for evidential purposes as if it were the physical evidence”.

Again, I am not sure that we should be putting handcuffs on the court and the processes that it follows. My amendment 45, therefore, would simply wind us back from the absolute, such that the image “may” be treated as if it were the physical evidence, if the court wants to do so—thus giving the court a more proactive discretion over whether that should be done, rather than accepting it as the default.

My amendment 46 builds on that principle to provide that, where the court has directed that the image of the evidence

“be treated ... as if it were the physical evidence”,

all parties and the judge may still request to see the physical item.

Once again, my authority for the amendments is the committee’s report, which, on page 20, says:

“At any point, up to and including during a trial, any party, including the judge, who wished to see the physical production should not be prevented by this Bill. We recommend that the Scottish Government strengthens these provisions on the face of the Bill to make it clearer that this would be the case.”

That was in line with the Faculty of Advocates, which, in its submission to the call for views, said:

“in some cases, the item may have certain distinctive physical characteristics which are less obvious in an image. This may be of particular importance in determining whether the item can be seen in CCTV footage. There may be limited occasions when this is the case. However, on such occasions the items themselves may provide decisive evidence to incriminate or exculpate an accused. It is important if the court is not satisfied by the use of an image in place of the physical evidence that it remains open to the court to otherwise direct that the original item be produced.”

That is what I have sought to capture in my first three amendments in this group.

Amendment 49 is slightly different, but it would also apply to section 4 on digital productions. The amendment was suggested to me by the Law Society of Scotland. I remind colleagues that I am a member of and am regulated by the Law Society. Amendment 49 simply says that, even though there is now a valid image of the physical evidence, the actual physical evidence

“may not be destroyed while proceedings are ongoing”.

That includes until after any appeal is completely finished.

Again, that is in line with the committee’s report, which says:

“it is not clear how long that object must be retained for beyond that point. The concern from some organisations was that, in the absence of any guidance to the contrary, the existence of a digital image might make it more likely that the original physical object would be disposed of. This clearly would be inappropriate if there was the chance that the object may be required in any future court proceedings.”

That was the reason for my lodging amendment 49.

Pauline McNeill’s amendment 48 is similar. It is very helpful, but it goes beyond what I am proposing. At this stage, I am not persuaded by amendment 48 and what it proposes in relation to the Scottish Criminal Cases Review Commission. We know that the SCCRC can accept a request to investigate at any time, potentially years after a conviction. Should amendment 48 be agreed to, presumably the original productions would always need to be retained—perhaps in perpetuity—which would undermine the point of the proposal.

I remain to be persuaded by Pauline McNeill’s remarks on amendment 48, but my starting position is that it might go too far and undermine the proposal.

I move amendment 44.

Forgive me, cabinet secretary, as I order my thoughts, but I heard that amendments 44 and 45 would not work because of the progress that is being made on digital evidence sharing capacity—DESC—which the committee heard about and was very positive about. On a legislative level, should the law be led by what is happening in practice, or should the law seek to lead, such that the practice follows?

Would you like to come in, Katy?