09:34
Agenda item 3 is a follow-up session on the criminal courts backlog. I welcome our witnesses: Stephen Boyle, Auditor General for Scotland; Mark MacPherson, audit director, Audit Scotland; and Jillian Matthew, senior manager, Audit Scotland.
I invite the Auditor General to make a short opening statement.
This morning, I bring to the committee my report entitled “Criminal courts backlog follow-up: Transforming for the future”, which was published on 28 May. It looks back at the progress that has been made since we previously reported on the court system in 2023.
As members may recall, the pandemic caused a sharp rise in outstanding scheduled trials across all of Scotland’s criminal courts. Since then, the justice system has worked to reduce the backlog while pursuing wider transformation under the Scottish Government’s vision for justice. At the same time, growth in serious and complex cases, including cases involving historical sexual abuse and organised crime, has increased pressure across the justice system.
Clear progress has been made. The overall backlog is just over 13,000 scheduled trials, which is around a third of the 2022 peak, and it is now below pre-pandemic levels, but the High Court backlog is almost three times its pre-pandemic level and waiting times have doubled. Such delays can inevitably have a serious effect on victims, witnesses and accused individuals.
Progress on my 2023 recommendations has been somewhat mixed. The Scottish Government published “The Vision for Justice in Scotland: Three Year Delivery Plan 2023/24 to 2025/26”, and consultation and engagement with justice partners on new legislation has been positive. Elsewhere, though, governance and accountability remain complex and sometimes ineffective. Co-ordination, oversight and risk management arrangements are inadequate, and there has been limited evaluation and public reporting, which makes it difficult to judge whether transformation projects are improving efficiency and reducing the backlog.
The process of engaging with people who use court services and involving those with lived experience has improved, but it is not yet consistently embedded, and equality impact assessments are also not yet a routine part of the process.
My recommendations in the report, which focus on strengthening delivery and oversight, require co-ordinated action across the justice system. Over the next 12 months, the Scottish Government, the Scottish Courts and Tribunals Service and their partners should agree priorities, outcomes and responsibilities for the next delivery plan, strengthen programme management and public reporting, assess resource needs and complete equality impact assessments for every transformation project.
Lastly, it is probably worth mentioning to the committee that, inevitably, because my report was published in May, events have moved at pace since then. In addition, I highlight the fact that the Criminal Justice Committee took evidence on some of the matters covered in my report earlier this week.
Together with my colleagues, we will do our utmost to answer the committee’s questions, bearing in mind the need to keep our evidence as topical and relevant as possible, based on the information at our disposal.
Thank you, Auditor General. I welcome any progress that has been made to reduce the court backlogs, but I recognise that there are many challenges that still need to be addressed.
I want to try to understand the overall picture. In your report, you focus on the number of outstanding trials. Exhibit 1 helpfully shows the case volumes for 2024-25, including the cases that remain in the backlog. That is broken down by High Court, sheriff solemn, sheriff summary and justice of the peace trials. If we consider the backlog in each area as a proportion of the number of cases that were heard in that year, we find that the figures are 43.5 per cent for the High Court, 14.5 per cent for sheriff solemn, 24.5 per cent for sheriff summary and 20.3 per cent for justice of the peace courts.
Did you look at those figures over time? You have acknowledged the increase in the number of High Court and complex cases, but did you examine the backlog as a proportion of the overall caseload in order to understand its effect on the different courts?
I will bring in Jillian Matthew in a second, but, inevitably, trend will matter here. As we have set out in the “Background” section of the report, we might talk about backlog, but the fact is that waits will arise in the justice system. After all, it takes time for the appropriate evidence to be gathered, for citations to be issued and for the appropriate court setting to be convened. Backlog is actually about excess over traditional operating capacity, and that is what we look to track.
As you have mentioned, we have identified that, although there has been progress in other parts of the justice system, it is the more complex High Court cases, in particular, that are experiencing the more significant delays.
Jillian can say a bit more about our methodology for the audit.
We have tried, through exhibit 1 in the report, to illustrate the journey through the justice system. Obviously, the report focuses on the courts part of that, but we wanted to show how people move through the system, and we also thought that it would be useful to include the figures to give a sense of the scale at each stage, so we did so for this year. Other exhibits in the report show the number of outstanding scheduled trials and the waiting times, which are the key points where the pressures are.
We know that the number of High Court cases has risen, which is creating more pressure and more of a backlog. The justice of the peace courts and sheriff courts have less of a backlog, but to what extent is that down to their having fewer cases to deal with anyway, rather than efficiencies in the system?
Exhibits 3 and 4 show the number of outstanding scheduled trials for each of the courts. Exhibit 3 shows the figures for sheriff summary and justice of the peace courts, where the numbers of cases being dealt with are considerably higher, while exhibit 4 shows the numbers of solemn and more serious cases in the sheriff courts and the High Court, which are the ones that are going up. There was a significant peak in sheriff solemn cases just after the pandemic, and the number had started to come down, but both are continuing to increase at the moment.
It was helpful to have that information on the number of outstanding trials as a proportion of the total number of cases for 2024-25, because I think that understanding those trends is important.
Dawn Black has some questions on High Court and other serious cases.
Welcome to the meeting. First of all—I am glad that you have brought this up already—I just wanted to say quickly that the term “backlog” has quite a negative connotation. The expectation is that there will be cases in the system; the number that you have put on that in the report is 20,000, and we are, at the moment, below that, at about 13,000. That is actually positive.
However, the significant issue, as has already been mentioned, is that the number of sheriff solemn and High Court cases is up, and is continuing to go up. It has fallen since its peak in 2023, but it is still higher than pre-pandemic levels. Can you provide us with a little bit more information on the serious complex cases that are driving up the High Court backlog?
I am happy to start, and I know that Jillian Matthew will want to say a bit more.
Exhibit 4 supports the point that you made in your question that the peak that was experienced after the pandemic has reduced, certainly for the sheriff solemn cases. However, we have been seeing an upward trajectory in High Court cases ever since the very early days of the pandemic.
As I said in my introductory remarks, there are two main drivers for that. First, there has been an increase in the number of serious complex cases, particularly those involving historical sexual abuse, counterterrorism and, indeed, human trafficking, which comes under the umbrella of organised crime cases and requires significant evidence gathering, sometimes involving multiple victims and accused individuals. By their very nature, such cases can be long lasting and can take a long time to bring to trial.
Jillian Matthew might want to say a bit more, and some of the detail was set out in the evidence that the Criminal Justice Committee took earlier this week. It is a question of looking at what the circumstances were before and what comes next. How will the challenge be addressed by the Scottish Courts and Tribunals Service?
09:45
Much of the evidence that we will give to the committee this morning will refer to the interconnected nature of Scotland’s justice system. What improves the flow in one part of the system has a downstream implication; for example, police efficiency flows through to the courts and Scotland’s prison system. I am happy to talk about all of that, but I will bring in Jillian to talk about some of the background as to why cases are taking longer and the volume through the courts that deal with more serious cases.
The exhibits show that we are seeing an increase in the number of serious crimes. As the Auditor General mentioned, a lot of that is due to the historical sex abuse cases that are coming through. In relation to serious organised crime, there are more cybercrime and human trafficking cases. Many of those cases are very complex and involve a lot of accused or victims. The cases can be cross-border or international, so they are quite complex and take a lot longer to prepare for in order to be ready to come to court.
In the courts, the High Court cases take an average of six to seven days, whereas the summary court cases take an average of three hours. The serious crime cases are generally a lot more complex, involve a lot more people and take up a lot more court time. Other parts of the report are about how the issue is being tackled in the summary courts, and we are looking to see how that can be applied to the High Court and the sheriff courts for the serious cases. Because those cases are different and more complex, it is not as straightforward, but it is certainly something that we are looking to do.
In the report, we mentioned modelling. Since we published the report, new modelling has come out on projected court numbers and waiting times. That has shown that the number of High Court cases is three times higher than it was three years ago, and that is expected to continue to increase.
Waiting times will increase significantly over the next two years. Currently, waiting times are around 50 weeks, but they could be up to 135 weeks due to the volume that is expected to come through. There was a bit of a spike last year due to the legislation that was brought in during Covid, which allowed extra time for cases to be prepared, coming to an end, but the projected figures show a continued increase because of the serious and complex crimes that are coming through.
Thank you. We have covered the amount of court time that cases take up—you gave the example of six days compared with three hours—but what about the time that it takes for cases to get to court in the first place? That has an impact on victims, witnesses and accused individuals. You touched on that in response to my earlier question, but could you delve a little bit deeper into any evidence of contributing factors that you have found?
The information that we have presented in part 1 is an update of what we had in our previous report. A lot of the focus was on the follow-up to the recommendations, so we have not gone into a lot of detail about what is happening around waiting times. Exhibit 5 shows that a number of the waiting times have been coming down. There was a little bit of an increase for the High Court cases, as well as for the sheriff court summary cases to some extent, but that was at the end of 2025-26. The updated figures, which cover up to July 2026, show that waiting times for High Court cases have stayed about the same and that waiting times for sheriff court solemn cases and summary cases have come down. The position fluctuates quite a lot during the year, and there can be various reasons for that.
Jillian Matthew referenced the more up-to-date data, and a positive development has been that there is now more transparency on waiting times. As the deputy convener rightly mentioned, waiting for justice is one of the most traumatic periods in someone’s life—that applies to accused individuals, witnesses and victims of crime—so giving people an indication of when they might be expected to appear for their case is an important and necessary development. The fact that the Scottish Courts and Tribunals Service is publishing more data and that the information is, as appropriate, broken down by individual courts and areas is a welcome development in the provision of transparency about how the system is operating, regardless of the pressures that it is under.
Alan Brown has questions about data.
I will ask some supplementary questions based on the answers that have already been given. Jillian Matthew said that one of the reasons for the increase in waiting times and the number of cases at the High Court relates to the volume of historical sexual abuse cases. That issue has had a higher profile over the years because of high-profile cases. Do we know the extent to which historical sexual abuse cases are contributing to waiting times for the High Court?
We know that 70 per cent of all High Court cases—the majority—are sexual abuse cases.
Are the majority of them historical cases? How many of that 70 per cent are likely to be historical cases?
I do not have that information to hand, and I am not sure whether the data is broken down in that way.
We can certainly look at the data and come back to the committee in writing if we have that level of insight. Historical cases are certainly one of the driving factors that are contributing to the pressure in the justice system. Your predecessor committee took evidence on the impact of convictions for historical sexual abuse on the Scottish Prison Service in relation to the support and care needs that are required for an ageing prisoner population. We will need to check our records for details on the ratio before coming back to the committee.
Modelling has been done on the number of cases that there might be in the future. Does that modelling show that there will continue to be an increase in the number of historical sexual abuse cases, or will we reach a peak in the system before the number decreases?
The modelling certainly shows an increase in the number of sexual abuse cases, but, again, I do not know whether the data is separated for historical cases.
If the committee is interested in that issue, the Scottish Courts and Tribunals Service or the police might be better placed to give details on that. We are very happy to check our records, but that granular detail has not featured in our evidence. As Jillian Matthew said, we drew on more recent data based on modelling that the Scottish Courts and Tribunals Service has done. I will not pre-empt your questions, but the SCTS is looking at how it will address capacity issues resulting from additional cases, regardless of the nature of the crime. The modelling shows a growth in serious crime, but we might need to come back to the committee in writing with more details.
Does the future modelling—I know that this might not be covered in your report, but I am asking given that the issue has come up—that shows a continued increase in the number of cases and in waiting times include resource assumptions? I know that there are complexities, but is the situation also dependent on resource? If a resource assumption goes into the modelling and if that resource is provided or exceeded, clearly, that can improve things but, conversely, if the resource is not there, it will only go one way.
I think that both those things are true, actually. I will maybe come to Jillian Matthew again, because that was part of the evidence to the Criminal Justice Committee earlier this week on how the system intends to address the challenges, and its aspiration for further resource to support improvement activity—as we touch on in parts of our report—as well as additional High Court capacity.
We can currently operate 22 High Court sittings, but I will bring in Jillian to provide some of the detail.
There can currently be 22 High Court sittings a day, and it was announced last month that that will increase to 26 from January 2027. There are currently 10 venues where the High Court sits, and another four are to be added in existing sheriff courts. That will increase capacity. However, at the evidence session yesterday, Malcolm Graham from the SCTS said that, although it will make some difference, it will not have a huge impact, so more needs to be done to make efficiencies in the system and on the transformation of court business and doing it differently. That is about learning from what has been done in the summary courts and trying to apply it to the High Court.
I do not want to hog the time, convener, but that leads on to the summary court stuff, so can I ask about that?
Yes.
Obviously, there is a good news story about the waiting list or backlog—whatever the term is—in the summary court system. As I understand it, a lot of that is attributable to summary case management. Could the lessons learned on that be applied to the High Court and create improvements there?
Yes. Summary case management has been really successful. There have been a series of pilots over the past few years, and the approach has now been completely rolled out across all sheriff summary courts in Scotland. Case study 1, which is on pages 25 and 26 of our report, shows what that has done to bring down the number of summary trials, witness citations and cases that are adjourned—that is, delayed or put back. Cases are now running much more smoothly through the system.
As I mentioned, that cannot simply be applied to the High Court. There are definitely a lot of lessons learned that will be applied but it will take a bit of work to adapt the process for the High Court because that court is more complex, more people are involved and trials take a lot longer,. However, it was mentioned at the Criminal Justice Committee meeting yesterday that that is being looked at. We are not sure when it will happen, but there are plans to move that approach into the High Courts as well.
In relation to cases not requiring witnesses and being able to conclude early and not going to trial, I note from your figures that, in non-domestic abuse cases, earlier resolution increased from 51 to 59 per cent and that, for domestic abuse cases, the figure increased from 31 to 39 per cent. On the face of it, that seems really good, but does earlier resolution mean that there are more guilty pleas and convictions? Does it mean an increase in convictions at an earlier stage?
Yes. Some of it is about avoiding going to court at all. It is about making sure that cases are ready to go to court, as that is where there have been a lot of delays.
There has been a lot of work and collaboration with all the different agencies that are involved. Some of the early resolutions are also due to evidence being available earlier. That links to the digital evidence sharing capability—or DESC—programme that is referred to in case study 2, which means that the police are able to upload digital evidence straight away. It means that the Crown Office and Procurator Fiscal Service can decide what happens with a case a lot earlier.
10:00
The COPFS has also encouraged defence lawyers and prosecutors to have discussions a lot earlier. Some of that can happen outside court, which makes court business a lot more effective and efficient, and it sometimes means that such cases do not go to court.
It has been a lot of work, but the approach has been quite methodological and systematic in order to roll out DESC across the different areas of Scotland.
Just to add to that, we have to be careful about assuming that earlier resolutions mean earlier guilty pleas. The safest way to describe it is that the resolutions can go either way.
That is what I was trying to get a feel for. Are there more convictions in the cases that are resolved? Do we know the breakdown of those figures?
I do not think that we have a breakdown. An evaluation has been carried out, so data will be available, and the committee might want to explore that. However, as I said, I would be cautious about attributing the more efficient disposal of cases purely to there being earlier guilty pleas.
Okay.
I think that some of the reason for earlier resolutions is that, if the evidence and the case are not fully ready to go, the accused might not be completely aware of the evidence that is being presented or the full case, so they might not be ready to make a plea, either. It is more about getting to the point of resolution a lot more quickly.
I also want to ask about summary courts. There are now fewer cases in the system compared with before the pandemic, which is the good news story. There has been a massive reduction—70 per cent—compared with the peak in 2022, which is fantastic.
However, waiting times have increased. Justice of the peace court waiting times are very similar to pre-pandemic—23 weeks now versus 22 pre-pandemic—but, in the sheriff summary court, waiting times are around 35 weeks on average versus 23 weeks pre-pandemic. I am trying to establish why, although the number of cases in the system is lower, waiting times have increased in the sheriff summary court, especially given the increased number of early resolutions.
As we mentioned, there are some updated figures on that. In July this year, waiting times for the sheriff summary court were down to 29 weeks, so the numbers are going down again.
That number is still higher than pre-pandemic.
Yes, but it could be about capacity, because the sheriff courts hear solemn and summary cases. I do not have evidence or figures for this, but solemn cases are potentially being prioritised over summary cases, so, partly, the higher numbers might be down to how business is managed across the courts for different trial types.
I should also note that the summary case management system was only rolled out across the whole system relatively recently, so we might expect to see further reductions in the waiting times as a result of that.
I think that colleagues are right about the totality of court business. Although you might see a downward trajectory, the duration of some of the more complex cases might squeeze out the gains that are made in other parts of the court system.
That goes back to the wider point that there are evident signs of progress in addressing the backlog, but there are still niggles in different parts of the system, particularly given the interconnected nature of the court system and other parts of the justice system. In other parts of the report, we look at what is coming next: the application of the early success of the summary court management system pilot, the digital evidence sharing capability programme and further investment in technology, dashboards and so forth, which will all mean that the totality of the benefits is accrued. We continue to see some of the benefits of those projects in summary trials, which will then be applied across the system more widely.
I have a question on that. I understand why the pre-Covid period was used for the initial report in 2023, as well as for this follow-up report, and that is due to the massive spike post-Covid. However, is it right to always use Covid as year zero? What was the trend before Covid when compared with the historical low? Was it going up or down? Should there be work done to assess what the trend was in the historical context, rather than just compared with before the pandemic?
That is a fair question. We will not always use Covid as the baseline for assessments. However, especially because this is a follow-up report on—
I understand why.
It will not always be Covid, but that is the relevant baseline in the context of this report. We will always be clear and transparent on the methodology with which we arrive at a baseline. You are right that circumstances can fundamentally change, but we are always mindful of the conditions and the events that have taken place when we pick an appropriate baseline to measure performance. As in many other parts of the public services, reference to Covid is ebbing away in this context. What we see in this report is that, although we have seen improvements since Covid, the Covid context is no longer the driver in Scotland’s court system. As we have touched on a couple of times already, it is the changing nature of crime, especially among those who are going through Scotland’s High Court system, that is the driver of the circumstances that the justice system now needs to address.
I want to follow up on questions from Dawn Black and Alan Brown, particularly in relation to High Court and sexual offences cases. On page 30, you talk about “funding to support transformation” as being a risk. You say:
“SCTS has said it will be challenging to increase the number of High Courts to address rising demand within its existing budget”.
As you will be aware, a legal power exists to create a sexual offences court, which the Scottish Government is committed to doing. However, last week, the Crown Office said that there are not the resources in place to create a new court. What would need to happen to ensure that the SCTS has the resources in place to create such a court?
Ultimately, that will be a decision for the Scottish Government on how best to allocate resources through the Scottish budget, which will then be scrutinised by the Parliament. The case for additional resource has been made by the Scottish Courts and Tribunals Service; as Jillian Matthew has said, the chief executive gave evidence to the Parliament just this week on some of those aspects.
It absolutely comes down to resource allocation and how the SCTS is funded to deliver on its priorities, and, in the context of some of the evidence, I should say that much of that will be under the guise of the independence of the judiciary and its work. It is certainly not for me to comment on any of those aspects, but, ultimately, it will come down to prioritisation in resource allocation.
On data and waiting times, you talked earlier about the importance of people knowing how long they can expect to wait to go through the justice system. I completely agree with you on that, and it is important for us parliamentarians to know whether the data and the waiting times are improving.
The Scottish Government published data on the length of an accused person’s journey time in 2023. The publication of quarterly data stopped in March 2025, although you just mentioned to Mr Brown the waiting times statistics from July 2026, which suggests that those are being published again. That revised data has been published, and you have talked about improvements in data publishing. Is it your understanding that the waiting times data will now continue to be published every quarter?
There are different data sets, the publication of which by the courts is ongoing. There is a lot more data than we have in the report, but the data that we have in the exhibits on outstanding scheduled trials and waiting times is all published by the SCTS, along with quite a lot of other information about the courts.
The information on journey times in paragraph 33 of the report was published by the Scottish Government. There was a bit of a gap in the information being published, but it was updated in June this year. It covers the whole journey time from when the offence is known to the police, its referral to the Crown Office and Procurator Fiscal Service, and when it moves to court for registration and verdict. Those statistics are not produced quarterly but are published every few years, because it is a lot more involved to bring that data together. The latest data gives the median journey times for 2024-25. Generally, overall journey times are going down across the High Court, sheriff solemn courts and sheriff summary courts, but the times for the sexual offence cases are the longest and are increasing.
My understanding from the report is that the information on journey times was published quarterly from April 2023, but it stopped being published quarterly from March 2025. An update on the journey times was published in June, so there was a gap of about 15 months. Do you have any indication as to whether the information will continue to be published quarterly?
I am not sure. It has just been updated. We can check that, or the Scottish Government would be able to confirm it.
My understanding is that it will recommence on the basis that it was published before, but there were technical issues that caused some issues and created a gap in the information. We can confirm that.
That would be helpful.
Good morning, and thank you for joining us again, Auditor General. I might say that every week, but it is good to see you.
I have a couple of questions about the progress against 2023 recommendations. How would you describe the leadership to deliver the transformation?
Good morning, Mr Briggs. Exhibit 2 sets out the progress against the recommendations that were made in the 2023 “Criminal courts backlog” report. At a high level, we made seven recommendations and, in our assessment, three of those have been met, with a further four having been partially met. Our overall assessment is that some progress has been made but, clearly, there is work remaining.
There is an opportunity in the next vision for justice to address some of the areas in the recommendations that were not taken forward. I rereferred to a couple of those in my opening remarks, such as the need for effective collaboration and clearer programme management arrangements. Broadly, we would make an assessment that the implementation of the vision for justice has comprised a system of projects, rather than an overall programme of transformation. The recommendations also note the importance of evaluation that the Scottish Courts and Tribunals Service and the Scottish Government carry out on the implementation of some fundamental projects.
I will not cover all the recommendations, but it is also important to reference that the system does not operate in isolation. A couple of times in committee, we have touched on the need to engage appropriately with people who have experience of the Scottish justice system, particularly victim support organisations. One of the findings that we repeat in the follow-up report is about the importance of equality impact assessments being done thoroughly. The results reflect proper engagement. There is a real opportunity with the next programme and vision to address some of the recommendations in totality.
It is clear across the system that leadership really matters. As we often do in our reports, we look at governance and accountability arrangements. Exhibit 6 in the report sets out how some of that is operating in practice. There are opportunities to support leaders with governance operation with effective risk management programme arrangements, so that they are able to take appropriate decisions with clear outcomes to monitor, evaluate and so forth.
They are building on a system that is changing, and there is some progress but, on a high level, there is no doubt more work to do.
10:15
Your report states that the Scottish Government’s three-year delivery plan contains limited information on the outcomes of individual actions and projects. I want to go into more detail on the report, specifically paragraph 44, which states:
“In summer 2025, there was a proposal for a Justice Efficiencies and Effectiveness Collaboration (JEEC) to replace the Criminal Justice Programme Board,”
which had met only once in the previous year. The paragraph continues:
“However, despite an initial meeting in August 2025, the JEEC has not been formally established,”
and it has not met since. You put that down to a
“lack of Government resource”.
Since 2023, there has been a couple of meetings and the collaboration has not met since August 2025. Is that a fair reading of how transformation has been taking place?
I will bring in Mark MacPherson to say a bit more about that. Those are the circumstances that we found during the course of our audit. That speaks to the competing priorities in relation to resource allocation, and to our overall assessment, which Mark might want to elaborate on, that the delivery of transformation in the justice system probably will not happen on a project-by-project basis, because of the complexity and the range of partners that are involved. That requires high-level governance, oversight and programme board arrangements that are consistent and supported with the right information, the right risk management, governance and so forth.
We clearly identify in the report that there is scope for that to be addressed as we move into the next transformation phase, so that they can have all those underpinnings effectively in place.
Paragraphs 44, 45 and 52 all point to what could be considered to be significant gaps in the programme management arrangements and oversight arrangements. There is obviously a risk—I would not want to speculate as to whether it has caused significant difficulties beyond the ones that we have described in the report, but, without those, there is no assurance that the activities that are required have taken place.
That is what is striking. No one doubts that it is difficult to take forward the transformation work, but it does not seem to be progressing. Do you have any information from the Scottish Government on the reasons why some of the projects in its delivery plan—it is not anyone else’s; this is what we hoped would have been delivered three years ago—have not been fully scoped or costed? If we are going to say that this is a resourcing issue, we need to know what resources should have been targeted. We have not been able to say whether any of that work was done.
We think that there were significant gaps in that. I have not gone through it, and I do not have the detail on the project-by-project situation, but yes, there has perhaps not been enough emphasis on the need to move those projects forward. There is limited progress on some projects, and there are pauses or stops in progress in others, so more co-ordination and effort is required.
Jillian Matthew will come in on that in a second. It is about having capacity in the right places. Paragraph 50 talks about the important role of programme managers. I will refer to it a few times, because it is so relevant, as it involves co-ordination across a range of different partners. I refer to not having the capacity to fill programme manager posts at the right time, and the downstream implication of the programme activity not being as anticipated. Oversight and monitoring are therefore more challenging than the Government would have wanted, and there are resultant delays from that.
Opportunities exist in some of the fundamentals of effective project and programme management and implementation oversight. With the complexity of what is coming in relation to public service reform and transformation of the justice system, those underpinnings need to be fully addressed to give the Scottish Government and our partners the best chance of success in implementing strategy and spending money appropriately.
Some projects had already started before the delivery plan was made, and they were not really designed as programmes. There were lots of individual projects, some of which had started, and some of which have started since. Partly because of the difficulties of getting a programme manager, and partly because of resource and capacity issues, it has been difficult to bring the projects into the programme approach. As we say in our report, there has been limited reporting on the outcomes from the projects. As the Auditor General has said, that is partly because of all the different organisations involved, some of which are leading on projects.
When we spoke to the Scottish Government about that, it acknowledged how challenging that had been. Everyone has their own governance and accountability arrangements, and the Scottish Government was seen to be asking for that, but the organisations were already doing it internally. It a matter of managing that in the best way. There has been some learning around that, and different approaches are being considered, but there have been a number of factors involved.
You referenced paragraph 50. When I read the report, I found what that paragraph said quite shocking. I think that members of the public would find it shocking to read about the
“times when programme level activity has been paused to move resource to other areas of work”.
Specifically, you reference
“resources … diverted to work around the early release of prisoners in 2025”,
rather than being used to deal with the criminal courts backlog. Is that a common theme in the context of what we have seen over the past few years of announcements from the Government around early release? That is, instead of fixing the system, the Government is just trying to manage the problems that have been created.
I would not say that that is a common theme, but it is symptomatic of a system running hot, with pressure in many different places. You refer to some of the accountability arrangements that exist in the system. Some of the examples in the report—the two significant case studies discuss summary case management and the digital evidence sharing capability—are perhaps classic examples of the organisations that are leading the projects not necessarily being those that will benefit the most from them.
There was a statistic that jumped out at me regarding the summary case management pilot: while 530 trials were avoided, the benefits to the police were huge. About 11,000 police witness citations were avoided. The system needs to work better together to deliver transformations, whether they involve prisoner release or the courts backlog. It is so interconnected.
As the system moves into the realm of public service reform, there needs to be a level of clarity. The system needs to work hand in glove with all the different parts of it, with the underpinnings of effective programme project management helping that to be done in the best way.
That is helpful—thanks.
I return to a point that Dawn Black raised. The words “backlog” and “workload” are not synonymous. Are we talking about an actual backlog of things that are late in the system, or is it just a measure of the workload in the court system?
We tried to set this out in paragraph 1 of the report. I ask you to allow me a reference to the pandemic one more time. The normal operating capacity was around 20,000 outstanding scheduled trials at any given point. That is not really our language, but that is how the Scottish Courts and Tribunals Service measured itself. Backlog was such a prominent feature during the early days of the pandemic. The committee and everyone else will remember some of the innovative steps that the service took at the time when we published our 2023 report—for example, with courts meeting in cinemas, to alleviate some of the pressures and restrictions that were in place.
This year’s audit went back to look at the circumstances and consider, as we always do, where our recommendations were helpful and have been taken forward. This is not so much about whether the system is recovering from Covid or addressing a backlog; it is now much more about a system that is dealing with more complex and serious cases and how that is addressed through the innovations and reform measures that are taking place.
There will always be a waiting time. That is in the nature of effective evidence gathering and journey times through Scotland’s courts system. The question is whether we want to call that a backlog. I suspect that, in due course, the references to a backlog will no longer exist. Rather, it will be about how long people can expect to wait for justice to be delivered in Scotland’s courts and tribunals system.
Yes. In software development, backlogs and workloads are synonymous. In most people’s minds, if there is a backlog, it means that there is an excess delay in what is being delivered. However, what you are measuring is the workload in the courts.
To partly agree, I think that it is actually both. We are also seeing a growth in serious cases that take longer. Those two things exist at the same time. Jillian Matthew might want to come in on the detail and say whether that is a fair assessment.
As we say in the report, the number of outstanding scheduled trials peaked at over 43,000, but by the end of 2025-26 it was down to 13,268, which was obviously below the 20,000 figure. As you say, the difference between backlog and workload is unclear. There will always be outstanding scheduled trials.
The report, which is in annex A to paper 1, refers to
“an increase in serious, complex cases”.
Is it an increase in serious cases, in complex cases, in serious complex cases or in a mixture of all of them?
I am not sure—
I can think of a serious crime that is very simple—for example, somebody getting hit over the head. A complex crime would be historical sexual abuse, which is also serious.
Indeed. I think it is both. We reference and draw on the statistics from the Scottish Courts and Tribunals Service. Serious crimes will inevitably be heard by the solemn courts, and the complexity of some of those crimes is increasing. In particular, historical cases require considerable evidence gathering, which is inherently complex.
As we have already touched on, the nature of the organised crime cases that are being heard in Scotland’s courts system is such that there can be multiple witnesses and challenging events on which appropriate evidence needs to be gathered. Those circumstances are reflected in the additional waiting times and the additional cases that are going through, particularly in the High Court and in solemn cases in the sheriff courts.
Are we becoming a more lawless society if more serious cases are going through? Is that an inference that can be drawn?
That is not a judgment or a question that we sought to answer in this audit, Mr Kirkwood. Its aim was rather to look at the circumstances that are facing Scotland’s courts, and particularly the differential that we are seeing between progress towards recovery in relation to less serious cases and the very real challenge of delivering justice given the nature of some of the cases that are going through Scotland’s courts system. There has been transparency on that front from the Scottish Courts and Tribunals Service and the Scottish Government, but what matters now is how they address the desire that I think everybody has for swift but appropriate resolution and justice, given the impact on victims, accused individuals, witnesses and so forth.
At the top of page 3, the report says:
“There have also been some recent legal judgements that could impact on the backlogs”.
Will those impacts be positive or negative?
Would you mind repeating that?
10:30
It is at the top of page 3, in annex A of paper 1.
We might have different page references, Mr Kirkwood.
I apologise—it is in paragraph 5:
“Several new Acts have been implemented that will impact on court processes and potentially the backlog. There have also been some recent legal judgements that could impact on the backlogs.”
Will they have a positive or negative impact?
We were referring to the fact that they create the potential for an increase in workload. The nature of those rulings will not be beneficial to the court system.
So, the impacts are negative.
A couple of paragraphs down from that, the report talks about equality impact assessments and the fact that they are not being done. Would those help in the administration of justice or in the analysis of the results of justice?
It would help with both, actually. The public sector equality duty applies to those organisations. Equality impact assessments have been a feature of public bodies’ decision making for many years—particularly when they are going through periods of transformation, which the organisations that are involved in these systems are doing.
In 2023, our audit covered the prevalence of equality impact assessments. I remind the committee that we found that there was an important need to develop equality impact assessments. That remains the case—opportunities remain for EIAs to be seen as a thing to be done not towards the end of a project’s implementation but right at the outset. It is important for the public bodies involved in the justice system to consider embedding equality impact assessments in the way that they are required to be embedded. That is what our audit sought to establish.
Moving on to the Audit Scotland report itself, paragraph 4—which is on page 8 of my copy—says:
“By May 2023, considerable progress had been made in continually reducing the backlog through a courts recovery programme which included increasing court capacity.”
Is that just throwing money at the problem?
Those were the key findings in the 2023 report. There was investment to address the delivery of justice during the period in which pandemic restrictions were in place. I do not have the figures to hand, but I remember clearly the circumstances in which cinemas were reprovisioned for court settings and the required investment in communications, digital and so forth. There was investment to address the backlog.
In relation to what happens next, I refer to the point that I made to the convener earlier, about the Scottish Courts and Tribunals Service looking for further investment to address the problem. The allocation of resources will be a question of prioritisation for the Government and scrutiny by the Parliament.
Out of interest—I am speaking as an engineer—was any analysis done on the cost of a case that was heard with the jury in a cinema, as opposed to one that was heard with the jury in a court?
We would need to check our records—or that may be a question for the Scottish Courts and Tribunals Service to answer for the committee. We would need to come back to you on it.
I do not need it desperately.
I have a wee bit of pedantry about something on page 9 of the report. The plural of “procurator fiscal” is not “procurator fiscals”; it is “procurators fiscal”.
Thank you.
Let me find my next question—excuse me, I am discovering the limitations of my technology.
Paragraph 31 of the report, just below exhibit 5, talks about modelling. Modelling is always a contentious topic.
It is a lot easier to skew modelling towards the interests of the modeller than people think. How good do you think the modelling is? Do you do it yourself, or do you get somebody else to do it
We have drawn the statistics from the Scottish Courts and Tribunals Service.
I am talking about the paragraph after that, where it talks about modelling. I am not particularly interested in the statistics.
It is a forecast, is it not?
Yes.
It is a forecast that is based on the best available data. We would expect public bodies to undertake modelling. They are required to anticipate the demands on their services. The Scottish Courts and Tribunals Service is no different from any other part of the public service.
Will it get it right? Not necessarily, but modelling affords a public body with the best available information, provided that the underlying assumptions are tested. Scenario planning is part of that process, and that rigour across the piece allows the modelling to provide the best possible estimate.
Ultimately, any budget is just a plan, and any accompanying forecast or modelling of activity is much the same.
I think that you, Mr Kirkwood, are asking about the reliability of the assumptions and whether they are based on good-quality data, whether past activity behaviour is indicative of what might come and whether a wider assessment of other environmental factors is built into it.
As Jillian Matthew mentioned, the modelling is continuing into 2026-27 and beyond, and that is an important feature of how the Scottish Courts and Tribunals Service needs to run the service.
Just out of interest, does Audit Scotland have its own modelling capacity, or do you bring it in from external sources?
I will bring in colleagues to say a wee bit about the methodology and our approach in looking at some of the data.
We did not do our own modelling. All the data in the report is based on what we got from SCTS and the Scottish Government. They carried out the modelling; we are simply drawing on that.
Okay. If the modelling showed a speeding up of court processes, I would imagine that that would produce a bulge of convictions coming through. Were the implications for the prison estate considered, too?
That is very much what the future points to, and the points from this morning’s discussion are about the interconnected nature of the justice system. Achieving quicker justice through the Scottish Courts and Tribunals Service, and even some of the innovations around summary case management and digital evidence sharing capability, will have implications further down the line.
As was mentioned, fewer police witness citations might be beneficial, but what happens if there is an increase in convictions? That increase, in part, is why the Scottish Prison Service has referred to some of the pressures that it is experiencing. The growth is not just in volume, but in the different types of prisoners that it is now accommodating. Older people, who sometimes have complex care needs, are now a feature of Scotland’s prison system.
I should say to the committee that we are keeping a close eye on that and are thinking about how that features in, and builds on some of the discussion that we had last week about, our work programme.
I will move on to paragraph 49, which states:
“The programme approach requires data sharing and reporting”.
It also mentions that there are difficulties with data sharing. Why are there difficulties with sharing data?
There will be some sensitivities around the data, and there will be rules pertaining to individual bodies as to what they can and cannot share. Equally, there will be systems that do not necessarily gather information in the same way or measure it on the same basis, whether monthly, quarterly or annually, or that do not use the same categories. A number of factors come into play in that regard, including issues around governance and how easily systems can find ways to communicate with one another using that data.
I think that there is a recognition that more needs to be done in that space, but that has been part of the challenge. There is an argument for seeking to standardise it where that would be beneficial to the system as a whole.
Is it necessary to standardise data collection?
There is an argument for seeking to standardise it where that would be beneficial to the system as a whole. Individual bodies will have their own data requirements, which might not cut across to others, but it is important that they are able to use that data, too, instead of standardising everything—although, in principle, the idea of standardised data for similar data sets makes a lot of sense.
Jillian will want to say a wee bit more, so I will bring her in in a moment. The barriers around data sharing are not unique to this part of the public service—data sharing has been a regular feature of audit reports. Mark MacPherson is right that the issue is sometimes to do with the sharing of sensitive personal data.
Some legislation governs how data is used and shared; it is not as if it is an unknown issue. However, the sharing of data will be such an important part of the delivery of transformation projects, particularly as Government and the public service move into a more significant phase of public service reform, that it is important that it is mapped out with the appropriate safeguards so that data can be used appropriately to deliver services—especially as we move into the era of transformation.
Jillian might want to say more about the specifics.
The matter came up at yesterday’s Criminal Justice Committee evidence session, at which the chief executive of the SCTS talked about that very problem. Different organisations are involved in bringing a case to court, and they all have different systems that do not speak to one another. However, there is still a lot of paper-based work in the justice system, so consideration is being given to modernising the system and joining up the data, although that would be quite a big project.
To go back to your earlier comments about programme management, paragraph 51 mentions a RAID log for a programme that had not been updated since 2024. Is that because there is no programme manager or management staff to keep track of those issues?
It is symptomatic of some of the issues that we have discussed around capacity, governance and oversight of risk management arrangements. For people who do not have the report in front of them, a “RAID log” is a programme management tool that monitors risks, assumptions, issues and dependencies in the delivery of a programme. It is one of the hallmarks of traditional project management, with all its rigours, so we would expect that log to be updated. We are talking about complex projects with multiple partners. You mentioned some of the data sharing issues. There are many variables in the delivery of transformation of such a scale, and although having those underpinnings effectively in place gives no guarantee of success, it offers a better chance of it.
Paragraph 52 mentions that
“escalation processes are clearly set out but are not … implemented effectively.”
Is there a particular reason for that, or do people simply not know about the processes?
That is tied to the issues of capacity and prioritisation that the Auditor General has just discussed. It is a question of how you resource or implement that in the face of other challenges.
Thank you. That is it from me, convener.
In the report, you mention equality impact assessments several times. You report on the inadequate carrying out of equality impact assessments and point out that public bodies have a legal requirement to consider such matters under the public sector equality duty. The report further states that equality impact assessments should be published “within a reasonable time”. Given that you recommended that those assessments be carried out within 12 and 18 months in 2023 and that it is now September 2026, surely public bodies have had a reasonable time to do so. If they have not done so, do the Scottish Government and the Scottish Courts and Tribunals Service risk being in breach of their public sector equality duty?
I am reluctant to arbitrate on the matter, but others might take a view on it.
Could you give us a view on what is “a reasonable time”?
10:45
I was about to come on to that. I think that more than enough time has elapsed for an understanding of the importance of equality impact assessments to be embedded in such projects and service delivery models. That is absolutely something for the Scottish Courts and Tribunals Service, the Scottish Government and other partners to speak to, if that would be of interest to the committee.
However, as we referenced in the previous report, the assessments are not being carried out as routinely or in as timely a manner as they should be. They matter—they are part of the legislation and should form part of the overall arrangements. They should also not be something that is done towards the end of the process. It is not for me to judge, but it will be important for the Equality and Human Rights Commission to take a view on the quality of the arrangements and what progress is being made.
Just this week, we have learned that the number of domestic abuse cases has risen by 14 per cent, and almost all those cases are ones in which women will have been the victims. Does that statistic not further indicate why it is essential that equality impact assessments are carried out on any changes to the court system and done in a timely way?
I agree, and given the nature of some cases—you mentioned domestic abuse cases, in which women, girls and children are more likely to be the victims—it is important that equalities are factored into the consideration of service delivery and transformation models.
As I read the report, it looked as though the reason that the equality impact assessments had not been carried out adequately was that there were not enough resources. Is that reason enough not to have completed the assessments? Did you get an indication of precisely what resources would have been needed to complete the assessments on time?
I will bring in colleagues to set out some of the discussions that we had during the course of the audit. However, I will say that resources are a matter of prioritisation: resources were being used elsewhere and were not immediately available.
To go back to your earlier question, I think that sufficient time has elapsed for the issue to have been addressed. I repeat that it is important that organisations carry out equality impact assessments so that they are compliant, but, even more fundamentally, so that the service is designed around the people who experience it and so that the organisations adequately consider their obligations as public bodies, rather than it being a question of resources.
We did not really get an indication of the level of resource that was required, but the issue comes back to prioritisation and recognising that the assessments need to be done and are not something that organisations can choose whether to do. The Scottish Government brought out its equality and human rights mainstreaming strategy at the end of last year, which emphasises the importance of doing EqIAs. There is more support and capacity, and the Government is developing resources around that. Some people struggle with how to go about doing EqIAs, but that is not a good excuse for not doing them.
I completely agree with that point. We cannot say that we are going to put victims at the centre of justice policy if we are not even considering all the impacts that it has on various victims as set out in equalities legislation.
On risks associated with transforming the criminal justice system, you state on page 30 that one risk involves
“staffing capacity across the criminal justice sector”
and the demands that there are on staff, and you say that that is a significant risk for High Court cases. On page 31, you specifically mention that
“Some stakeholders remain concerned about the recruitment and retention of defence solicitors.”
To what extent are those concerns an issue? What is the balance here? I do not doubt that either of those are issues, but what is the balance of risk in that regard? Did you find evidence of court cases being delayed because of a lack of defence representation, for example?
We did not get into that level of detail; we were looking more at the higher level.
That issue came up in the Criminal Justice Committee yesterday. We mentioned legal aid fees, but, more generally, there is concern about advocates doing criminal justice work that they do not always see as attractive, and the resource that is provided for that work. With the increase in the number of serious crimes, there is concern about there being the people to do that work.
I will add a brief comment. Jillian Matthew is right—what we are trying to do in the last couple of pages of the report is to set out some of the environmental factors. Rather than drawing a judgment on the relative ratio of one to the other, we are setting out some of the existing circumstances—and concerns that some interest groups have more prominently than others—that still have to be navigated and are still featuring in discussion at the Criminal Justice Committee and, indeed, in the Government’s consideration, particularly around some of the changes that have been made to legal aid fees, and issues related to defence solicitors.
I appreciate that we need to look at the ecosystem.
I have one final question. There have been some examples of the Scottish Government not engaging with the Scottish Courts and Tribunals Service until late in the process—or not at all—when developing regulations and Scottish statutory instruments that impact on the criminal courts and justice partners.
Did the Scottish Government give any reason for the occasions when it engaged late—or not at all—with the SCTS when developing regulations that impacted on it?
We did not get any clarity on the reasons for that. The report was checked with the Scottish Government, which did not object to that conclusion in the report, so you might need to pick that up with the Scottish Government.
I will go back to an issue that has come up a couple of times in answers about the programme manager position not being filled and that leading, for example, to there being no risk register. Your report says that the Scottish Government has found it hard to fill the programme manager position. Have there been any discussions about what the difficulty is? Is it a difficulty in identifying the right person, or are people just not coming forward?
There is a range of factors and, inevitably, there will be individual circumstances. What we are trying to do is step back a little bit. We are not saying that it is not relevant, but, rather than engaging on the individual circumstances, we are asking whether the entire system—the Scottish Government—has access to the right level of change and transformation skills, and whether it has set up appropriate programme management oversight. If it cannot recruit, is it accessing skills from third parties?
Our view is that, given the scale and size of the Scottish Government, those skills exist. We look at other projects and we see that they have access to the skills. Department by department, the Scottish Government is not necessarily delivering these complex projects. If it is struggling to fill those positions, that is a sufficient reason for the lack of progress, but it is important that the Scottish Government can look across the totality of its resource and bring in skills with appropriate prioritisation. The latter is definitely the case. We know that those skills exist in the Scottish Government. Some projects are delivered very successfully with the right skills but, in this case, it fell down. The Scottish Government can take a view that it can reallocate resources and reprioritise as needed.
On that basis, does the Scottish Government recognise that the programme manager position should be filled in order to properly lead these projects, manage risks and do the proper planning? That is clearly another issue. When it comes to filling that position, is it recognised that it is fundamental that we get someone in there? In order to identify that key resource, it is necessary to look across resources, rather than having siloed departments.
As Mark MacPherson mentioned, all our reports go through factual accuracy checks and clearance. The report will be a hallmark for further scrutiny by the committee and any evidence that you decide to take from Government officials as to how they intend to respond to the audit recommendations that we have made. Effective project management and programme management oversight will be fundamental to the successful transformation that the Scottish Government now wishes to make.
I have one more question. You mentioned a couple of times—I should have asked about this earlier—the success of the summary case management system and 11,000 police citations not being required. That is a fantastic potential saving on police resource. Has that been quantified? If 11,000 police citations is equivalent to even half a day, that is a fantastic resource saving that really should be quantified. I dare say that Police Scotland will say, “We see that saving,” but that is a fantastic potential saving in resource.
I do not want to give you a definitive answer on that, if that is okay, Mr Brown. I might have mentioned this last week when we talked about our forward work programme. At the beginning of this year, Audit Scotland, together with His Majesty’s Inspectorate of Constabulary in Scotland, produced a report on best value in policing in Scotland, and one of the remaining judgments and recommendations that we made was that there was a need for further development and enhancement of workforce planning arrangements within policing in Scotland. The work that you mentioned will be fundamental to that.
Although we have not done any direct follow-up on that in the intervening few months, it is a significant area for further development within policing. I absolutely recognise that workforce planning is a hugely complex activity, especially with the new variable of police officer time not being required for citations, which means that it can be diverted to policing. The issue is how that translates into the workforce. We know that work is under way, but I am probably not able to say at the moment—subject to any further audit work that we do—whether that matter has been fully addressed.
Since there are no further questions from members, I thank all our witnesses for giving evidence today and for the report. Clearly, there is some progress to welcome, but there are also serious challenges and frustrations within the court system, and we are keen to ensure that people see justice done robustly, consistently and in a timely manner.
I now move the meeting into private session.
10:56
Meeting continued in private until 11:18.
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