Criminal Justice Committee
The Scottish Government's Coronavirus (Recovery and Reform) (Scotland) Bill (the Bill) was introduced on 25 January 2022.
The Criminal Justice Committee is considering the provisions in the Bill which cover justice matters.
Although the remit of the Committee refers to criminal justice, the Committee considered court measures that apply to both criminal and civil courts, and legal aid which is also a criminal and civil matter.
The Criminal Justice Committee is a secondary committee on the Bill. This report is made to the lead committee on the Bill, which is the COVID-19 Recovery Committee.
The Bill discusses justice topics which are by their nature wide-ranging. For example, the Bill includes provisions about electronic justice and the early release of prisoners. Both of these topics could be the subject of substantial reports in their own right.
However, the Committee has only had a limited time to conduct scrutiny on the Bill and it is appropriate that we focus on the specific provisions on the Bill. There are of course topics which the Committee will want to return to, but we have had to be focused in our work on the Bill and in this report.
The justice provisions in the Bill are complex in places. We have tried to avoid describing in great detail the provisions of the Bill or going into the background of how particular provisions have been developed. This information can be found elsewhere. We have included summaries of the key provisions, but these should not be taken as a definitive legal description of every aspect of every provision.
We would draw readers’ attention to the useful briefing by the Scottish Parliament Information Centre (SPICe) for a fuller description of the Bill, as well as the explanatory notes and policy memorandum published by the Scottish Government.
Finally, we note for the record that the Committee held a series of oral evidence-taking sessions on the Bill, details of which can be found online. We are grateful to all those witnesses who took the time to contribute their views, which have helped us reach our conclusions in this report. The COVID-19 Recovery Committee ran the Scottish Parliament’s written consultation on the Bill on behalf of all the committees with an interest in the Bill. The responses to the consultation can be found online.
The Bill proposes various justice measures, some of which would be temporary, in that they would time-limited.
Others would be permanent changes.
We will discuss the permanent changes first. These are changes which were put in place as a result of the pandemic, but which the Scottish Government has decided are worthy of retaining on a permanent basis. Generally speaking, they attracted limited comments and were fairly non-contentious.
Existing coronavirus legislation makes temporary provision for lawyers to be able to claim legal aid payments at an earlier stage than usual. This was intended to help with cashflow given the impact of COVID-19 on case progress.
The provisions in the Bill on legal aid seek to make amendments to the Legal Aid (Scotland) Act 1986 to establish a permanent system whereby interim payments can be made to solicitors and counsel, with corresponding powers of recovery in the event of overpayments resulting from such payments.
This would be a permanent change.
The views we received on this proposal in response to the written consultation on the Bill were limited in number but those we did receive were generally supportive. In written evidence, the Law Society of Scotland commented—
“The use of interim payments has been an important element of the response to court delays during the pandemic. We believe that these provisions provide greater flexibility, and should be made permanent.”
The written evidence from the Scottish Association of Social Work noted that the increased availability of interim payments could encourage more solicitors to offer legal aid services, which would benefit individuals who require this support.
Views of the Committee
In the limited time available for the Committee to scrutinise the Bill, the Committee did not receive many comments on this proposal. We have not, therefore, been able to scrutinise this measure in detail. From the evidence we did receive, this appears to be a relatively minor administrative provision, which nonetheless has been welcomed by the Law Society of Scotland and others.
This section removes legal requirements for lawyers to be physically present during certain legal processes which take place away from court, for example, to take an oath or witness someone signing a document.
This would be a permanent change.
The policy memorandum on the Bill stated—
“It is the Scottish Government’s view that this provision will allow greater access, convenience, and flexibility to those who may require such legal services, whilst also facilitating a move to a more digitalised and efficient justice sector.”
Views of the Committee
Similarly, in the limited time available for the Committee to scrutinise the Bill, this proposal did not attract significant comment in evidence. The temporary provisions on electronic business in courts attracted more views and are discussed later.
These provisions enable the Scottish Ministers to make arrangements for Prisoner Custody Officers to carry out their functions within police stations. This reflects the Scottish Government’s position that remote custody appearances should become part of the normal operation of the justice system.
The provisions on the role of Prisoner Custody Officers would be a permanent change.
A written submission from the Scottish Association of Social Work argued that if these provisions become permanent, criminal justice social workers should still be able to access to those in custody in order to carry out assessments for Bail Supervision and Structured Deferred Sentences, and welfare checks.
The Committee also heard some general criticism about the use of virtual custody hearings that went beyond this specific provision in the Bill. For example, the Scottish Solicitors Bar Association argued that they were often subject to technical failures, and did not offer the same opportunity for a lawyer to support their client as an in-person hearing.i Similar concerns were raised by the Law Society of Scotland.
Stuart Murray from the Scottish Solicitors Bar Association noted that it is often only when a lawyer sees their client in person that it becomes apparent that the person is affected by issues such as drug abuse or mental health issues. He also noted that face-to-face contact was necessary to properly establish the circumstances of their client, especially if they are young or leading chaotic lives. He told us—
“People deserve to be able to have face-to-face contact with their lawyer, especially if it is a duty lawyer and the accused person has never been in custody before. It is really important that their mind is put at rest and that they know that the person they are face to face with is looking after their best interests.”i
Views of the Committee
This particular provision in this section of the Bill relates only to the role of Prisoner Custody Officers at police stations, not the wider issue of the appropriateness of remote custody hearings. In the time we had to scrutinise the Bill, there was limited comment on the expanded role of Prisoner Custody Officers. What was highlighted in evidence, were some wider concerns about the use of remote custody hearings, irrespective of who is tasked with facilitating them within police stations. For example, we were told about challenges for defence lawyers and criminal justice social workers in effectively engaging with accused persons.
The Committee asks the Scottish Government to respond to the comments from both the legal profession and the Scottish Association of Social Work about access arrangements where an accused’s first appearance in court is from police custody.
The Committee notes that concerns about opportunities for effective communication in this area form part of a wider discussion on how such matters are dealt with where court business more generally is carried out by electronic means. We will come back to this later in our report.
Under the temporary COVID-19 legislation passed in 2020, provision was made for the functions of the Chair of the Parole Board for Scotland to be delegated to the next most senior member where the Chair was unable to undertake their functions due to COVID-19.
The Bill makes permanent these powers of delegation, but extends them to all circumstances in which the Chair is unable to perform their functions, not just for COVID-19 reasons.
This would be a permanent change.
Again, this provision in the Bill did not attract a great deal of comment in the written consultation carried out for the Bill, although the submission from the Scottish Association of Social Work noted that—
“Allowing more flexibility in how parole boards are chaired would presumably prevent delays and subsequent backlogs to parole board hearings. This is fairer for prisoners who would otherwise have had to wait longer for their case to be heard for reasons that were outside of their control.”
Views of the Committee
On the basis of the limited evidence received by the Committee, this appears to be a sensible change which will help the efficient running of the Parole Board for Scotland.
The Bill also contains various measures relating to justice matters which are temporary in nature. The rest of this report discusses the specific temporary measures which are being proposed.
It is worth emphasising that these are not permanent changes. The Bill provides that the measures will expire on 30 November 2023, unless an affirmative statutory instrument is agreed by the Scottish Parliament delaying expiry. The Bill also allows for the early expiry of temporary provisions (in this case by statutory instrument under negative procedure).
The Bill provides that expiry of the temporary measures cannot be delayed beyond 30 November 2025. The only way of extending the measures beyond that date would be for the Scottish Parliament to pass a further piece of primary legislation, i.e. another bill separate from the Coronavirus (Recovery and Reform) (Scotland) Bill.
The framework described above applies to all the temporary justice measures included in the Bill. In other words, all the temporary justice measures in the Bill (which are described from this point on in our report) are time-limited to 30 November 2025 at the latest.
The Bill contains provisions relating to ‘electronic business’ in courts and tribunals. This covers remote/virtual attendance at court hearings, including what are sometime referred to as ‘virtual courts’ and ‘virtual trials’.
Before we discuss these measures, it is important to note that even before the pandemic there were initiatives to promote electronic business in Scotland’s courts. For example, the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 aimed to encourage greater use of pre-recorded evidence in criminal trials and enabled relevant persons to appear remotely.
However the impact of the pandemic served to significantly accelerate the development of digital working. Temporary legislation in spring 2020 introduced provisions allowing for electronic signatures and the electronic transmission of court documents; the ability to publicise certain court documents on the SCTS website rather than court walls; and a suspension of legal requirements for a person to attend court physically.
The 2020 legislation provided that courts could issue directions to specify whether a virtual or physical hearing was required based on two principles: the fairness of proceedings and the interests of justice. Courts were required to have regard to guidance issued by the Lord President.
Since the passage of the temporary legislation in 2020 there have been various developments, including—
remote juries sitting in cinemas for trials in the High Court and Sheriff Court;
remote hearings becoming the norm in civil hearings;
a consultation on new civil court rules by the Scottish Civil Justice Council; and
the Virtual Trials National Project Board piloting virtual summary criminal trials in Aberdeen and Inverness, which recommended the setting-up of specialist online courts in each sheriffdom to tackle domestic abuse cases.
In our evidence, it became apparent that some organisations and individuals have had different perceptions of what the Bill was proposing in relation to virtual trials. In addition, there has been an understandable tendency to conflate on-going initiatives in relation to electronic court business with what is being proposed by way of legislative change in the Bill.
We consider that as a committee our primary focus should be to scrutinise what is proposed in the Bill. That is the role which was given to us when we were designated as a secondary committee.
In summary, the Bill proposes to extend the current temporary measures which allow for electronic court business during the COVID-19 pandemic.
As discussed above, the extension is time-limited. The proposals in the Bill could not be made permanent beyond 2025 without further primary legislation being passed by the Scottish Parliament. We are cognisant, however, that the nature of the temporary arrangements may play a role in shaping more permanent changes.
The Bill does not set out detailed proposals of how virtual courts should be run. It is enabling in nature and provides a general framework for the operation of electronic court business rather than being prescriptive.
The main provisions are as follows.
First, the Bill provides that an electronic signature can fulfil any requirement for the 'signing, initialling or signetting' of various documents relating to court proceedings. In addition, any requirement that a document is given to a person can be fulfilled by transmitting it electronically.
Second, the Bill contains a presumption that any requirement that a person physically attends a court does not apply unless the court directs the person to attend physically. A court can only issue a direction requiring physical attendance if it considers that a virtual hearing would: (a) prejudice the fairness of the proceedings; or (b) otherwise be contrary to the interests of justice.
However, this presumption in favour of virtual hearings does not apply to "a hearing in which a person is to give evidence" (i.e. a criminal trial or an evidential hearing, known as a “proof”, in the civil courts). A court can only order virtual attendance for an evidential hearing if it is of the view that this would not: (a) prejudice the fairness of the proceedings; or (b) otherwise be contrary to the interests of justice. So, in effect, the presumption is for in-person hearings in such situations.
As can be seen, the Bill gives courts a fair degree of discretion, given that it is their responsibility to issue a direction as to whether a physical or virtual hearing should take place. The Bill sets out the framework within which courts take such a decision.
In taking a decision on virtual versus physical hearings, courts must have regard to fairness and the interests of justice. They are also required to give all parties the opportunity to make representations. Finally, they must have regard to any guidance issued by the Lord President.
One of the areas which was of particular interest during evidence was the piloting of fully virtual trials in a limited number of criminal cases. The Committee sought information in writing from the Scottish Courts and Tribunals Service (SCTS) on the outcome of the Virtual Trials National Project Board.
In a letter to the Committee, the SCTS explained that its intention is that each Sheriffdom will have a dedicated virtual domestic abuse trial court, offering the opportunity for the introduction of trauma informed practices and procedures in relevant summary cases. However the letter noted that the model for summary virtual trials is still in the development stage—
“Part of this work will be consideration of a legislative change to create a presumption in favour of virtual domestic abuse trials and which meantime seeks to encourage the use of virtual trials through a revised practice note.”i
It is our understanding that this reference to legislative change refers to further primary legislation which would be required in addition to this Bill currently before the Parliament.
On this subject, the written submission from the Lord President of the Court of Session stated that he was “disappointed” that the Bill “does not include provisions enacting the necessary legislative change sought by the Virtual Trials National Project Board to enable sheriffdom virtual domestic abuse trial courts to be effective”.
Marsha Scott of Scottish Women’s Aid also expressed disappointment that the Bill did not contain a presumption in favour of domestic abuse trials by electronic means.
The Committee was also interested in understanding how many virtual summary trials had actually gone ahead. This information had not been readily available.
In response to a request for information by the Committee, the SCTS revealed that during the pilot of virtual trials, which focused on Aberdeen domestic abuse cases, 33 cases were scheduled for trial. Of these 6 proceeded to an evidence-led trial. Of the 6 cases that proceeded to trial, three resulted in a verdict of ‘guilty’ and three of ‘not guilty’. As at the start of January 2022, a further 10 cases were scheduled for trial of which two have proceeded, one was deserted and three were converted to a physical (in person) trial. Subsequent correspondence with the SCTS clarified that the remaining 4 cases have trial dates assigned and are scheduled to take place in March/April.ii
David Fraser of SCTS conceded that—
“…there has not been a volume of cases because there has been no compulsitor for cases to be done virtually. It has been done only where people have consented to it. That is one of the fundamental reasons why we have not had the volumes that we anticipated we would have when we started the process.”iii
The Committee heard mixed views about the merits of remote court attendance and fully virtual hearings (including ‘virtual trials’).
David Fraser of SCTS told us—
“I look at the issue from the perspective of the benefits for vulnerable witnesses, and I see entirely removing such witnesses from the court environment as a phenomenal benefit.”i
He also highlighted the potential time savings for professional witnesses, such as police officers and medical professionals, who do not have to go to court in person.
Kate Wallace of Victim Support Scotland supported the availability of an option for witnesses to give evidence virtually. She told us—
“Not everybody wants to give evidence in that way, but the overwhelming feedback that we have had is that doing so has lessened people’s trauma and completely removed their concern about bumping into the accused or their family, and that is helpful.”ii
Marsha Scott of Scottish Women’s Aid echoed these views. However, she noted that only a limited number of virtual trials had gone ahead. She commented that one problem is that defence agents tend to object to virtual trials.
Teresa Medhurst of the Scottish Prison Service highlighted the benefits of individuals in prison not being required to attend court in person for short hearings.
The Lord President of the Court of Session commented in a written submission that both he and the Senators of the College of Justice support—
“virtual hearings, live links, and the use of electronic documents being available as an option, in the interests of efficiency and flexibility. This support is predicated on there being no dilution of public access to hearings as a consequence of the provisions being continued or, as the case may be, made permanent.”
However, we also heard a number of views from individuals and organisations who were more critical of ‘virtual hearings’.
Stuart Murray of the Scottish Solicitors Bar Association was among the most critical, telling the Committee—
“I am wholly disappointed by the resulting systems that we are now working with in relation to virtual courts and virtual trials…. I can say—on behalf of the vast majority of the profession, I think—that the experience has, unfortunately, been nothing but a resounding failure.”iii
His concerns were about access to justice and the solemnity of justice, which he felt was not present during virtual trials. He felt that in the criminal realm, an accused person should be entitled to have their accuser in the same room as them. However, he felt that there is more scope for virtual working in the civil realm.
As we have discussed above, representatives from the legal profession also raised concerns about the operation of virtual custody hearings.
Emma Jardine of Howard League Scotland did not object to the provisions in the Bill, but said–
“…we need to be careful to ensure that the use of technology does not jeopardise or discriminate against those who find it more difficult to engage with the process by virtual means, so it should remain under constant monitoring...”iv
In a written submission, Citizens Advice Scotland also raised a number of concerns about how the use of virtual hearings and technology might disadvantage access to justice. The submission stated—
“…we are concerned that the reliance on digital means of participation in court business risks people being excluded from the justice system. We believe more support is needed to enable vulnerable and digitally excluded groups access to justice.”
As an example, the submission argued that current guidance on accessing virtual hearings is based on unrealistic expectations about the way in which people access the internet (for example, the guidance recommends using hard-wired or Wi-Fi broadband with the use of a headset and microphone).
The Faculty of Advocates, in a written submission, raised concerns that the proposals in the Bill risk conflicting with new rules of court which are soon likely to provide for a more flexible system but with certain default settings. In its view, the Bill should be amended so that the provisions on attendance at court mirror rather than conflict with that new system.
The Faculty of Advocates’ view is that there should be a default setting of virtual hearings for procedural business supplemented by the ability of parties to apply for an in-person hearing which can be granted by the court if considered appropriate in the interests of justice. However, the Faculty considered it essential that the default position for contentious and substantive business should be in-person and in a court room.
In its view, the current proposals in the Bill “if implemented, would create problems with access to justice, the quality of justice and inequality”.
The Committee put some of the concerns to David Fraser of the SCTS. On the criticism by the Scottish Solicitors Bar Association that the virtual hearings had been a ‘resounding failure’ he responded—
“No, I disagree with it entirely. I do not think that that is the case at all. We have had phenomenal success. I am not saying that the approach has not been without its teething issues or the odd technical issue, which you would get in any transition.”i
He also commented that “we are very involved with all those whom the changes affect, but I accept that there are differing levels of excitement about the process that we are going through”.ii
The Cabinet Secretary for Justice and Veterans was asked about the differences of views the Committee had received—
“As ever, there are arguments on both sides, and we want to take those into account, along with things that we learn from the pilot projects, before proceeding further. It is possible that, given its powers, the judiciary could advance the approach in the meantime, through a practice note. However, for the reasons that you mention, I think that its preference would be to have legislation.”iii
He added—
“I hope that the gap could be bridged, given some of the benefits…. There are potentially huge benefits, but we want to try to take the profession with us….It must be possible to reach agreement, but it will take some work to do that, and we will have to listen to people’s concerns.”iv
The Cabinet Secretary told the Committee that “if there is to be a more permanent change, it must be evidenced”. The Cabinet Secretary commented—
“The bill will not move things forward as far as virtual trials are concerned; those things will continue on the current basis and according to the default positions that have already been mentioned. However, as I have said, we will want to look at whether there would be other legislative vehicles for doing that, once we have carried out the consultations and the work with partners.”v
Views of the Committee
The Committee has previously commented on ‘digital justice’ in its report Judged on Progress. In this report, the Committee stated:
“Our view is that a proper assessment has to be made of the various proposals for ‘digital justice’. They should only progress if there is genuine merit in the proposals, rather than simply being a matter of a cost saving or administrative convenience. Whilst we accept there may never be unanimity, there must be a general consensus from the main participants and we cannot make fundamental changes to how our court system functions and the rights of individuals involved without full and proper debate.”vi
This is still the view of the Committee.
The view of the Committee is that care is needed to differentiate between fully virtual hearings and hearings which have some element of remote participation (for example, those involving vulnerable witnesses) which may already be permitted under pre-COVID legislation.
There is evidence, at least in the criminal courts, that only a limited number of fully virtual hearings have gone ahead and so a greater evidence base is needed about (a) how they work in practice; (b) what advantages they deliver and any disadvantages; (c) the outcomes of virtual criminal trials; and (d) any unintended consequences. This evidence base is needed before a view can be taken as to whether the temporary provisions in this Bill should be made permanent in future legislation. It will also be important to monitor and respond to developing evidence during the continued temporary use of such powers for a period that could run as long as November 2025.
The Bill leaves a considerable degree of discretion to courts as to whether a virtual hearing goes ahead. The position in the Bill is that any requirement that a person physically attends a court does not apply unless the court directs the person to attend physically. However, there is a presumption in favour of in-person hearings for those hearings involving the taking of evidence. The discretion given to courts has affected the number of virtual trials which have actually gone ahead in the criminal courts.
There are clearly some in the justice sector who see the advantages of either fully virtual hearings or having some elements of them virtual. However, the Committee heard other far more sceptical views, including fundamental concerns about how they impact on the solemnity of justice and other practical concerns such as digital exclusion. More needs to be done by the Scottish Government and the SCTS to acknowledge these legitimate concerns and to attempt to bring all the participants in the justice sector on board.
The Committee is of the view that more virtual trials need to take place in the criminal courts before a properly informed view can be taken as to whether there is merit in these arrangements being made permanent. In particular, the Committee is concerned that only a limited number of virtual summary trials have gone ahead. In effect, there needs to be an expansion of the pilot so more evidence can be gathered as to the effectiveness of virtual summary trials. The Committee also considers that more evidence should gathered and research carried out into the impact of virtual trials in civil cases, which have become the norm during the pandemic.
In addition, we have heard specific concerns about the operation of virtual custody hearings which we have highlighted in this report. The Committee asks the Scottish Government how it proposes to address the legitimate concerns raised by the legal profession about the access arrangements to their clients.
The Committee notes the Cabinet Secretary’s comments that the provisions in the Bill are temporary in nature and that he envisages further primary legislation would be necessary to make the provisions permanent.
The Committee recommends that the Scottish Government provides evidence, including robust data, of the impact of electronic business in courts and tribunals before taking a view as to whether the temporary measures in the Bill should be continued beyond 2025. Any permanent changes to the system must be on the basis of proper evidence that change is both required and would be beneficial. Part of this will be reassurances that the format of civil hearings and criminal trials does not prejudice the fairness of the proceedings.
The Committee also notes that if the temporary provisions are continued until 2025, they would have been in place for over 5 years which a significant length of time. The Bill requires any temporary extensions beyond November 2023 to be agreed by Parliament by affirmative instrument. If the Scottish Government was to seek to extend the temporary provisions beyond 2023, the Committee would expect it to bring forward a robust evidence base to justify such request. This should include a clear quantification of the benefits of such an extension, as well as details of how the Scottish Government has worked to address the concerns expressed by some in the justice sector.
Any future legislation beyond the 2025 expiry date of the temporary provisions in this Bill would be a chance to look more fundamentally at how the legislation is constructed and whether there may be any merits in a different approach to the way the law is framed. For example, could the legislation governing virtual attendance at court specify different rules for different types of trial? In particular, whether there should be a presumption that summary domestic abuse cases should be virtual, with only limited reasons specified by which an opt out could be obtained? The Committee believes such proposals are worthy of consideration.
The Bill temporarily increases the maximum level of fiscal fine available to prosecutors from £300 to £500.
A fiscal fine is an option available to prosecutors instead of prosecution through the criminal courts.
In 2020, temporary COVID-19 legislation increased the levels of penalty available for fiscal fine from between £50-£300 to between £50-£500. The rationale for this to this change was to ease the burden on courts during the pandemic by allowing more cases to be resolved without going to court.
In the period 7 April 2020 to 31 October 2021, 595 individuals were given a fiscal fine above the previous £300 maximum. This represents a little under 3% of all those given a fiscal fine during that period.
The Bill proposes to temporarily retain the maximum level of fiscal fine at £500. However, it proposes that there should be nine increments between £50 and £500 rather than the seven as provided for under the 2020 legislation.
In a 2020 letter from the then Lord Advocate to the Justice Committee, he appeared to rule out the use of fiscal fines for domestic abuse.i
The Committee did not have a great deal of time to question witnesses on this provision because of the expedited passage of this Bill. However, in the time available, we raised with the Crown Office and Procurator Fiscal Service (COPFS) questions about how the fiscal fines scheme has operated in practice.
The written submission from the COPFS commented—
“The revised fiscal fine scale continues to enable a wider range of cases to be dealt with by fiscal fine. Whilst a relatively small proportion of the fines issued have been above the previous scale maximum the change has been a useful modification, which has allowed the Crown to respond proportionately, efficiently and in a timely manner to offending for which such a measure is appropriate, particularly at a time when summary criminal court capacity is not anticipated to return to pre-pandemic levels for a significant period.”
Kenny Donnelly from COPFS was asked about the suggestion that an FOI request from July last year had indicated that 30 per cent of those who rejected fiscal fines faced no further action—
“I am not aware of the FOI request, so I would need to enquire about that. That figure sounds too high, however. My understanding is that when fiscal fines are rejected, the normal course is for the case to be prosecuted and that very small numbers of them are discontinued.”i
He told the Committee that the increase in the maximum level of fiscal fine from £300 to £500 only impacted on a relatively small number of cases—
“I think that about 4 per cent of JP court disposals were within that range. The fiscal fines that have been issued are 3 per cent of the disposals in that range.”ii
The policy memorandum on the Bill noted that in the period between 7 April 2020 and 31 October 2021, 21,297 people, or approximately 25% of individuals who received a first marking action for a Direct Measure (i.e. initial action by a prosecutor following report from the police) were offered a fiscal fine. Of those 21,297 people, 595 (3% of the individuals offered a fiscal fine) were issued a fine amount above the previous scale maximum of £300, up to £500.
The Committee also asked about the types of offences of brought into the temporary new upper limit of £300-£500. Kevin Donnelly of COPFS said he did not have the details and did not want to speculate, but said the offences would be non-traffic offences and would be “other routine matters that go to the justice of the peace court—disorder, low-end violence, vandalism and so on”.i
The Committee asked about the information given to victims of crime about the use of fiscal fines. Kevin Donnelly from COPFS told us that if the victim asked the COPFS whether the disposal of the case had been that there was no further action, they would be told that no further action had been taken, not that it had been disposed of by an alternative to prosecution. He noted that although a victim might assume that such a disposal was a fiscal fine, alternatives to prosecution cover a range of options that are available to the prosecutor.
The view of the Law Society of Scotland is that these changes should be more appropriately considered through separate legislation as opposed to emergency legislation relating to the pandemic. The Law Society of Scotland noted in its written submission “that there are questions relating to the fairness of the scheme given the incentivised nature of the offer as it extinguishes the risk of conviction and the fact that decisions to accept fiscal fines are commonly uninformed”.
The written submission from Scottish Women’s Aid stated—
“We agree the continued increase of Fiscal Fines to £500 for cases that go to the JP court to help deal with the backlog, but these provisions should not be permanent and Fiscal Fines should not apply to cases involving domestic abuse.”
Views of the Committee
The Committee discussed with the COPFS aspects of how the current temporary provisions in relation to fiscal fines have operated in practice.
The Committee is of the view that there should be more transparency and improved reporting on the use of fiscal fines. This may help the victims understand the process. There are also questions to be answered if there were further efforts to extend the fiscal fine provisions to include more types of crime.
For example, we believe that the COPFS should make public the numbers and types of offence which are dealt with by fiscal fine and, in particular, the types of offence brought in to the new temporary £300-£500 range of fine. We request this information. The Committee will reserve judgement on the extension of this provision until this information is provided.
Furthermore, we ask the COPFS to provide the reassurances sought by Scottish Women’s Aid that fiscal fines have not been used in domestic abuse cases, and will not be in the future.
Finally, we ask the COPFS how communication with victims of crime can be improved so they are better informed when an alternative to prosecution is taken forward by a prosecutor. In addition, if the accused rejects a fiscal fine, the victim involved should be told of the outcome of the case including a decision by the Crown Office to take no further action.
On balance, a majority of the Committee supports the temporary provisions in the Bill relating to fiscal fines. Jamie Greene MSP and Russell Findlay MSP do not agree with this provision.
The Bill contains a provision about the situation where a suspect has been released by the police subject to an undertaking to appear at court on a specified date.
If the person fails to appear, the court may grant a warrant for the person's arrest. However, the court may decide not to do so if there appears to be a good reason for non-attendance.
The COVID related legislation in 2020 temporarily allowed a court to extend an undertaking where a person fails to appear in court and this is attributable to COVID-19.
The Bill proposes to extend this flexibility on a temporary basis.
The written submission from the Crown Office and Procurator Fiscal states—
“Whilst it may be anticipated that, as the public health situation improves, this provision may be used less often, it remains an important flexibility to allow a court to deal most appropriately with non-appearance where the issuing of a warrant is not considered to be the most appropriate course of action.”
The written submission from Scottish Women’s Aid stated—
“This has been a key measure to preserve the safety of women experiencing domestic abuse during the COVID pandemic and an important measure to retain. However, in relation to the temporary specific use in relation to COVID, we think there should be a check that the accused do in fact have COVID.”
Views of the Committee
In the limited time available for the Committee to scrutinise the Bill, the Committee is not aware of any significant concerns raised in the evidence taken about this proposal. However, we ask the Scottish Government to respond to the point raised by Scottish Women’s Aid about checking the COVID-19 status of the accused when this provision is being used.
The Bill contains temporary provisions giving greater flexibility in relation to which sheriff courts can deal with a case when it first comes to court.
In 2020, legislation introduced in response to the COVID-19 pandemic allowed allow any sheriff court in Scotland to deal with a suspect’s initial appearances from police custody, no matter where an offence is said to have taken place. Previously, the appearance had to take place in the sheriffdom in which the alleged offence took place.
The Bill proposes that this flexibility is continued, with minor modifications, on a temporary basis.
The Committee did not receive many comments about this provision. However, the written submission from the Law Society of Scotland expressed the view that these measures should be discontinued at the point when there was no longer a risk to public health.
Views of the Committee
The Committee is content that this provision continues on a temporary basis. However we heard views from legal representatives that this practice should be discontinued when it was no longer needed in the interests of public health. We ask if this is the intention of the Scottish Government.
The Bill proposes that there is a relaxation, on a temporary basis, of the statutory time limits which criminal proceedings are subject to.
This would continue the current temporary relaxation of the time limits which was introduced in 2020 in the light of the disruption to the justice system caused by COVID-19.
The more significant proposed changes are discussed below.
In 2020 the following temporary changes were made to the statutory time limits for solemn cases—
Time from appearance on petition to pre-trial hearing – 11 months extended to 17 months
Time from appearance on petition to trial – 12 months extended to 18 months
The Bill proposes to continue these extensions on a temporary basis.
In 2020 the statutory time limit for commencing proceedings in relation to summary cases was increased from within 6 months of the alleged offence to within 12 months.
The Bill proposes to continue this 12 month time limit on a temporary basis.
In 2020 the following temporary changes were made to the time an accused person can be held on remand in relation to a solemn case—
Time on remand until service of indictment (document confirming the charges faced) on accused – 80 days extended by 6 months
Time on remand until pre-trial hearing – 110 days extended by 6 months
Time on remand until trial – 140 days extended by 6 months
The Bill proposes that these extensions are continued on a temporary basis – although the extension in the Bill is expressed as 180 days rather than 6 months (which is virtually the same length of time).
In relation to pre-trial remand for summary cases, in 2020 the period an accused could be held on remand before the trial started was increased by 3 months from 40 days.
The Bill proposes that this extension is continued on a temporary basis – although the extension is expressed 90 days rather than 3 months (which is virtually the same length of time).
It is worth noting that the above extensions are automatic in relation to all cases. There are, in addition, provisions (applying before the pandemic as well as now) allowing for some time limits to be extended on a case-by-case basis on application to the court.
The rationale for an automatic extension for all cases, rather than a targeted approach, was explained by David Fraser from Scottish Courts and Tribunals Service. He noted that individual extensions would involve an extension application being made to the court, and an individual sheriff or judge deciding whether an extension should be given. He argued that the significant volume of cases in the court backlog would use up resources and prevent trials from taking place while decisions on extensions are taken.
Kevin Donnelly of the Crown Office and Procurator Fiscal Service also made the point that it was not just court time which was under pressure due to the pandemic. He noted, for example, that it was taking longer to obtain the necessary scientific, forensic, telephony and cybercrime reports.
The Committee asked Kevin Donnelly whether cases could be prioritised rather than a blanket extension being given. He told us that priority is given to those who are on remand, but that every case in the High Court has a degree of priority.
Kate Wallace of Victim Support Scotland told us that she supported the continued extension of the time limits “with a heavy heart” so that cases did not get dropped.i However her view was that the time limits should not be permanently extended. A similar view was expressed by Marsha Scott of Scottish Women’s Aid.
Emma Jardine of Howard League Scotland described the extension measures as “a necessary evil” due the requirement to clear the trial backlog.ii Howard League Scotland did not think the extensions should be made permanent.
Emma Jardine noted that there is a danger of breaching article 6 of the ECHR, which states: “everyone is entitled to a fair and public hearing within a reasonable time”. One particular area of concern she highlighted was the impact which the extension of time limits would have on the increasing number of remand prisoners in Scotland’s prisons.
Teresa Medhurst of the Scottish Prison Service told us that just over 30 per cent of the prison population was on remand. This is an increase from between 15-17 per cent at the start of the pandemic in 2020. She noted that there had not been significant disruption linked to prisoners spending longer on remand, however uncertain timescales for attending court can impact on individuals’ mental wellbeing and their health.iii
A concern for the mental health, personal finances and relationships of the accused was also highlighted in the written submission from the Scottish Association of Social Work.
The written submission from the Law Society of Scotland stated—
“We are of the firm view that time limits in the criminal justice system should revert to those as set out prior to the pandemic.”
Vicki Bell of the Law Society of Scotland argued that extensions should be applied in a more tailored manner on a case-by-case basis. For example, an extension might be appropriate where there was a delay due to forensic science.
The Cabinet Secretary for Justice and Veterans told the Committee—
“This is about ensuring that we make the justice system work and that people are safe. In summary, I would say that we recognise that these are substantial and profound powers that we do not want for any longer than is necessary, but we continue to believe, not least because of the representations that we have received from those in the justice system, that they are necessary. I realise that it would be for her to answer this, but the Lord Advocate, who is the person charged with guaranteeing people’s rights, believes that the move is necessary, too.”iv
Scotland already has the highest remand and prison population figures in Western Europe along with poor, overcrowded conditions in many part of the prison estate. Between 2014 and 2017, 57.18% of remand prisoners who were later convicted in summary proceedings, and 28.9% of remand prisoners who were later convicted in solemn proceedings, did not receive custodial sentences (Howard League report on remand, May 2021).
Views of the Committee
The Committee recognises the views of those witnesses who characterised these provisions as a “necessary evil” given the requirements to extend the time limits for a temporary period to ensure the delivery of justice.
However, there are clearly good reasons for returning to normal time limits as soon as feasible. The pre-pandemic time limits were introduced for good reasons, such as protecting the human rights of different parties involved. Reducing the delays in the resolution of cases benefits both victims and the accused. A number of organisations emphasised that the temporary extensions should not become permanent, including Victim Support Scotland, Howard League Scotland and the Law Society of Scotland.
The further extension of time limits is concerning. Given the Committee has not had clarity on how these cases will be prioritised by the Crown, gives us more cause for concern. Any extension of this to 2025 would need detailed scrutiny with sufficient time for the Committee to take evidence.
The Committee does not fully understand the reasons why a further 6 month extension to the time on remand until service of indictment is being proposed. This extension could bring the time limit to up to 9 months, which the Committee believes is too long.
The Court has the powers of “cause shown” on a motion to extend the deadline for a case coming to court. The Committee notes that the courts retain the existing powers to seek extensions.
It is further concerning to note the remand figure have risen further and are currently approximately 30%. Given that the Committee has previously expressed concerns at the conditions prisoners have been held in during the pandemic, we would be concerned if this continues due to the use of further extension of time limits.
The Committee is very concerned at the prospect of these powers being available until 2025. The impact on complainers, witnesses, victims and the accused will be acute.
The Committee would not want these extended time limits to become the new normal. The Committee seeks reassurance that the use of extended time limits would be monitored and used proportionally.
The Bill temporarily modifies the Proceeds of Crime Act 2002 to make clear that coronavirus-related reasons are valid reasons for allowing the confiscation-order making process to be postponed.
A confiscation order is an order under section 92 of the Proceeds of Crime Act requiring a person convicted of an offence to pay a sum of money representing the person’s benefit from crime.
The process for making a confiscation order cannot, ordinarily, be postponed for more than 2 years beginning from the time that the person is convicted. However, if the court is satisfied that there are exceptional circumstances in a case, it can postpone the process for more than 2 years.
The temporary changes proposed by the Bill provide that the effects of coronavirus can constitute exceptional circumstances, for example due to the illness of the people involved or due to COVID-19 related disruption to court timetables.
The Committee did not receive many views on this proposal, however the Law Society of Scotland commented in its written submission that it is appropriate for these measures to continue for as long as public health is at risk.
Views of the Committee
The Committee notes that, in the limited time available for us to take evidence on the Bill, this provision did not attract much comment.
The Bill gives Scottish Ministers the power to make regulations to release certain people from prisons and young offenders institutions early. These are temporary, time-limited powers. They are subject to the time-limits outlined earlier in this report.
The regulations may only be made if the Ministers are satisfied that they are a necessary and proportionate response to the effects, or anticipated effects, of COVID-19 on a prison or on prisons generally. The regulations must be for the purpose of protecting the security and order of the prison concerned or protecting the health, safety and welfare of those accommodated or working in the prison.
In addition, there are certain restrictions on the use of the regulations. A person may not be released under the regulations if the governor of the prison concerned considers the person to pose an immediate risk of harm to another identified person.
Furthermore, certain categories of prisoner are ineligible for benefiting from the early release provisions in the Bill. These include—
Those remanded in custody;
Those who are not serving determinate sentences (for example, a person sentenced to life imprisonment, or where no limit of time has been specified); and
Those sentenced to an extended sentence for sexual, violent or terrorism offences or those who have been made subject to a supervised release order in order to protect the public from serious harm upon the person’s release.
The powers in the Bill are equivalent to the current temporary powers which have been in place since the COVID-19 related legislation was passed in 2020. This provided for the release of certain prisoners where this is a necessary and proportionate response to the impact of COVID-19.
The current temporary powers have been used once, in relation to the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 in May 2020.
The Committee heard that 348 prisoners were released early in May 2020 under the provisions in the temporary COVID-19 legislation.
Teresa Medhurst of the Scottish Prison Service explained the reason for this decision was to try to minimise the spread of COVID-19 in prisons by, in particular, raising the single-cell occupancy rate (which increased from just over 60 per cent to around 84 per cent).
Teresa Medhurst confirmed that the prisoners released in May 2020 were not tested for COVID-19 because at the time a testing regime was not in place. However, the prisoners released were given information about the pandemic and access to public health advice.
Teresa Medhurst told us that “it would be for the Scottish Government to determine whether emergency release should be applied again, depending on what circumstances arose at the time”.i
Kate Wallace of Victim Support Scotland commented that at the time of the May 2020 early release of prisoners, all the victim support organisations saw a—
“massive upsurge in the number of victims who contacted us, petrified that the perpetrator in their case was going to be released early. We all struggled to find the capacity to manage people’s anxiety and to support them through that time.”ii
She argued that if the powers to release prisoners early were to be used again, information should be shared with victims, and safety planning and support planning should be put in place for victims.
Emma Jardine of Howard League Scotland felt that concerns about the early release of prisoners should be put in context. She told us that—
“There were prisoners on short-term sentences who were within three months of their release date and there were the exemptions that we know of. Therefore, in reality, all that happened was that people who were already going to be released were released a little earlier—some by only a day or two—in the three tranches of release.”iii
Emma Jardine indicated that she was in favour of the temporary powers in the Bill, but did not think they should be permanently extended. She also questioned why the legislation does not include special provision for children, the most vulnerable, the disabled or pregnant women.
Written evidence from the Commissioner for Children and Young People stated that at present, children who have not yet been tried cannot benefit from the early release provisions in the Coronavirus (Scotland) Act 2020. The Commissioner recommended that the Bill should be amended to ensure that untried children can be considered for early release based on an individualised assessment of risk and their human rights.
The Committee questioned the Cabinet Secretary for Justice and Veterans about this provision in the Bill. In relation to the May 2020 release of prisoners, he commented—
“If your question is, ‘Why did you release those prisoners?’, the answer is that we did that because of the pandemic. We deemed the consequences of not doing it to be unacceptable, from the point of view of the constraints that it would put on our prisons and prisoners because of Covid, and from the point of view of the public safety of prisoners, prison officers, prison staff and people who visit prisons. That is why we released them.”iv
Against a backdrop of Scottish Government figures from 2018-19 which show that the reoffending rate for all releases was just under 30 per cent, the Cabinet Secretary for Justice and Veterans was asked about statistics which suggested that of the 348 people who were released early, 142 went on to reoffend and 40 per cent of them did so within six months of being released. The Cabinet Secretary commented that—
“…if we look at the categories of prisoners who were released, we will see that the situation was not at all unusual. For those on short sentences, you could be looking at a 50 per centi or sometimes 60 per cent reconviction rateii.”v
However he told the Committee that, were this situation to arise again, the community justice system needed to be better prepared to address potential reoffending.
The Cabinet Secretary described the extension of the powers of early release as a “contingency power”. A Scottish Government official accompanying the Cabinet Secretary said that a future use of the powers was “absolutely not planned”.vi
Views of the Committee
The Committee notes the statement from the Cabinet Secretary that he currently has no plan to use these powers. The Committee views these powers as ones which should only be used only in case of a significant deterioration in the COVID-19 position in Scotland where the outbreak cannot be managed through any other measure except reducing the prison population.
Any regulations brought forward under the Bill on early release of prisoners would be subject to close parliamentary scrutiny by this Committee, with sufficient time to take evidence. There is a balance which must be struck between the risks associated with early release of prisoners (despite the safeguards in the Bill) and the risks associated with a COVID outbreak in prison. The Committee notes that on the occasion the Scottish Government used this power, 40% of the prisoners reoffended within six months. The Committee requests that the Scottish Government monitors reoffending rates if these powers are used again.
The Committee notes that powers of early release under the 2020 COVID-19 legislation have only been used once in May 2020. We ask the Scottish Government whether, if it has no immediate plans to use these powers, it is necessary to keep this legislation on the statute book. Is an alternative approach to legislate if and when it is necessary to release prisoners early via emergency legislation?
We also note that the provisions in the Bill on the early release of prisoners do not include measures prioritising the release of particular types of vulnerable individuals. Again we ask the Scottish Government why this approach to the early release of prisoners was not adopted. We ask the Scottish Government to include such measures to ensure the appropriate testing of any prisoners who may be released.
Finally we note the views of organisations representing the victims of crime about the concern, stress and uncertainty caused by the early release of prisoners in May 2020. We recommend that communication with and support for victims is improved if this power is to be used again including specific measures to notify victims who would be affected by any decision to release prisoners early.
The Criminal Justice Committee has been designated as a secondary committee to consider the justice provisions in the Coronavirus (Recovery and Reform) (Scotland) Bill.
However, it is not our role to take a position on the general principles of the Bill. This is a matter for the COVID-19 Recovery Committee, which as lead committee has the role of considering the Bill as a whole.
Instead we have made a series of comments and recommendations on the justice provisions on the Bill.
We ask the Scottish Government to respond to this report in advance of the Stage 1 debate on the Bill.
Detail on the scrutiny in the Scottish Parliament of this Bill can be found online.
Extracts from the Official Reports and minutes of the relevant meetings of the Criminal Justice Committee are also available online:
The written submissions received for all parts of the Bill have been published online.