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Chamber and committees

Criminal Justice Committee

Meeting date: Wednesday, May 24, 2023

Agenda: Decision on Taking Business in Private, Economic Crime and Corporate Transparency Bill, Priorities in the Justice Sector and an Action Plan, Subordinate Legislation


Priorities in the Justice Sector and an Action Plan

The Convener

Our next agenda item concerns consideration of follow-up correspondence received as part of our regular review of the action plan and the priorities for reform of the justice sector in this session. I refer members to paper 2.

We have replies to our queries from the Scottish Government; the Scottish Prison Service; the Convention of Scottish Local Authorities; the Scottish Fire and Rescue Service; the criminal justice voluntary sector forum; and the Scottish Courts and Tribunals Service. I thank all those organisations for their comprehensive replies.

I will take each of the responses in turn and ask for members’ observations. The first one is the Scottish Government response.

Russell Findlay

There is a lot in here, and I am sure that colleagues will cover parts that I do not. In respect of the assessment of the new HMP Stirling and the two new community custody units for women, during our visit to the prison yesterday, we were told that the University of Glasgow had just been awarded a contract to conduct that assessment work. It might be that the minister’s response was written prior to that being known, but it might be worth exploring further what the terms of the process are, when it is likely to conclude and so on. I assume that it will not begin until July, as that is when HMP Stirling opens.

On the numbers of young people in secure accommodation, I cannot remember what we asked. If we only asked about numbers, then the information on page 5 of the response deals with it. However, I thought that we had perhaps asked more about the funding arrangements. From the evidence that we heard, when the provision to send young people into secure accommodation rather than prison comes into force, that will put a greater strain on bed numbers, which are limited. If I understand the situation correctly, the fact that others elsewhere in the UK are paying more for those beds might have an impact in relation to where the funding would come from to subsidise the policy in Scotland.

My only response to that is that numbers can change day to day or week to week, so, if you are looking for that specific information, you should bear that in mind.

Russell Findlay

It is not so much the numbers, which are fluid; it is more to do with the inevitability of more Scottish spaces being required but less being paid for them. The providers have already given evidence to the effect that that will have an impact on their viability.

Okay, we can pick that up.

Jamie Greene

The response is dated 6 April, so it is six weeks out of date. I know that the committee has not been able to consider it until now because we have had a lot on in terms of legislation, but there might be things in it that have been updated since then, so I apologise to the cabinet secretary, if she is watching.

I have a query on the court backlog. We have spent a lot of time over the past year or so talking about clearing the backlog, but my understanding of the response is that “clearing the backlog” essentially means returning to what is an acceptable backlog rather than getting to a net clear scenario.

The response says that the aim is to return to the point where the number of cases across courts is approximately 20,000, which I presume is deemed an acceptable pre-Covid level of backlog. I want to query that. I guess what I am asking is whether the Government is therefore stating that a normal backlog would be 20,000 cases, and whether the ambition is to get to that level rather than to clear the backlog in any shape or form. All we are doing is clearing the delta between what was already a backlog before Covid and what it increased to over that period.

I just want to set expectations, because we talk quite openly about clearing backlogs, but I do not think that the public fully understand that the Government is not trying to clear the backlog but is trying simply to get back to what it thinks is an acceptable backlog of 20,000 cases in the system, which is still a lot. There were lengthy delays in the system before Covid, so I do not think that that is an acceptable response. We should be pushing for a slightly more ambitious approach from the SCTS and the Government.

I cannot pre-empt the outcome of what it will say, but I understand that an Audit Scotland report on this is due out imminently. That will give us an update on the situation since 6 April. One of the things that I am quite keen to see is where there has been improvement in the clearing of cases. We should look carefully, perhaps even as soon as in the next couple of weeks, at what that data shows us about the clearing of solemn and summary cases, and the cases that are still deemed to be difficult to clear quickly.

I suspect, although I have not seen the report, that it will tell us that the most serious cases, including those of serious violence, murder and sexual crime, are still taking a considerable period of time. I will be looking to see what the updated expectation is for clearing those cases. That was my first point.

I will jump ahead to a point that Russell Findlay raised on the number of young people being held in adult institutions. The cabinet secretary’s response on 6 April said that there were eight under-18-year-olds held in a young offenders institute, but a couple of paragraphs down, it states that there is occupancy in secure accommodation. The statistics are helpful, but the wider question is, why are there under-18-year-olds, seven of whom are on remand, in YOIs, when there are places in secure accommodation?

I may be misreading the information that we have been given, but that does not add up if there are spaces in the independent secure accommodation network or elsewhere across the network. Why does the Government not want those under-18-year-olds to be in those places? I know that it changes on a daily basis, but there seems to be a pattern there that needs to be addressed.

The next page, which is page 6 of our papers, is on misuse of drugs and the work on the drug treatment and testing orders. The Government talks about the review and the final report on areas for consideration, and it says:

“We expect to report to be published in spring 2023.”

I wonder whether that report has been published since the letter was produced. Perhaps we have missed it or it is due shortly. My worry is that spring 2023 in the language of Government could be as late as the last week of June, which is technically when summer starts, which leaves us no time to look at the report as a committee between now and September. I would be keen to get off-the-record knowledge of when that might be published and, if we could look at it before summer recess, that would be very helpful.

The next point that I want to raise is on deaths in custody, which are dealt with on page 7 of the paper. The Scottish Government said that it has

“no intention to create an online centralised system where delivery of the recommendations can be tracked”.

There is a short response from the Government on that, but it is clearly sticking to that position. The problem that we have with that is that the families of those who have sadly lost their life in custody are looking for much more than one paragraph of a review, with respect to Ms Imery.

There cannot be lessons learned if there is no centralised system. There is a centralised system to track committee recommendations and any progress made on them, but it seems to me that, every time there is a fatal accident inquiry or an investigation into a death in custody, many of the same recommendations are made, time after time and year after year. We are quite good at tracking the Government’s progress on whether it is doing what it has said that it would do, but the Government’s response will be disappointing for the families who are asking for the Government to do more and for lessons to be learned. I am hoping that the Government will expand on more of the work that it is doing in order to give some comfort to those families.

Lastly, I will address legal aid reform and the legal aid reform bill. The Government has said that it is

“committed to reforming the current system of legal aid”

and that it will do so

“within this Parliamentary Session.”

In my conversations with solicitors, they have said that they cannot wait until 2026 for that reform. There are some temporary measures that are in place on fees, but that position is not sustainable and it does not provide any long-term comfort to people who are in the legal profession. I am hoping that the cabinet secretary could elaborate on what “this Parliamentary session” means from a timetabling point of view, given how busy the Parliament and our committee are already—assuming that the legal aid bill will be discussed by this committee. I am hoping that the bill will be introduced sooner, rather than later, in the parliamentary session so that we can do it justice and give stakeholders adequate opportunities to get involved in the process.

Pauline McNeill

I have three points. First, I wholly agree with Jamie Greene. I think that what matters is getting the delay to be listed as a number of weeks or days. The Criminal Procedure (Scotland) Act 1995 is clear that someone should not be detained for more than 110 days in some cases or more than 140 days in other cases. Anything above that is contrary to the 1995 act. There has been a drop in the number of such cases, so it looks as though the delays are reducing. However, the committee needs to see what that looks like: how many weeks, on average, would a person have to wait for a rape case or a sexual offence case, for example, to get to court?

My second point relates to what Russell Findlay said about our visit yesterday. I will not say too much until I have read my notes and considered them in some detail, but my overall impression, as with previous visits, was that the facility was extremely impressive. However, I am concerned about two things, which the committee should drill down on. In my view, following the Angiolini report, the model could be undermined by the number of places within the Stirling estate being 100. It has been reported that there will be 80 places, but we were clearly told yesterday that there will be 100—I wrote that down. We know that two units are to be assessed, but the report recommended five. As a result, as we discussed yesterday, some women will be in male jails, albeit in women’s wings. I totally accept that there is a geographical dimension to this in relation to, for example, Grampian—I will say no more about that because it is beyond my knowledge. However, I am concerned that the model will be undermined if only a percentage of women end up being in the part of the estate that has been designed to change the way that we treat women offenders. The committee should come back to that.

Thirdly, I will make a similar point to the one that Jamie Greene made about deaths in custody. The Government’s response does not mention one of the primary recommendations, which is for families to have unfettered access to information following a death in custody. That is important, because FAIs take so long. Many families have complained that they did not get immediate access to information so that they could know what happened and ask questions. That recommendation is important for families. I suggest that we follow up the issue with Gillian Imery, the chair of the action group, and ask what conversations she is having. I am particularly interested in that. For completeness, I should say that, when the matter has been discussed in the Parliament, I have asked the cabinet secretary to explain how that unfettered access would cut across any police investigation; as has been said, it is not all that it is set out to be, and it could be problematic. However, it is important for families that that recommendation be followed through.


The Convener

Before I bring in Katy Clark, I will pick up on the points that Jamie Greene and Pauline McNeill have made about the backlog. I do not know—and I probably should know—whether “backlog” means just the number of open cases in the court system at any one time or whether that is the wrong interpretation. There might be some merit in our clarifying that. If it means just the open cases, I imagine that work has been done around the figure of 20,000 being an acceptable court workload, but I am happy for us to check and confirm that.

On Jamie Greene’s points about YOIs, the number of young people who are in YOIs will be due to the decisions of the courts. The Children (Care and Justice) (Scotland) Bill has not yet been enacted, so perhaps there is still a bit of a lag in that number starting to change.

I am happy to check on the progress of the DTTO report, which Jamie Greene flagged.

On Pauline McNeill’s comments following our visit yesterday, we had a helpful discussion with the SPS about the models. There was reference to an evaluation process that will be introduced for CCUs, as Russell Findlay mentioned. My understanding was that that would incorporate a wider focus. I could be wrong about that, so I am happy to track that.

I am also happy to follow up with Gill Imery on the points about deaths in custody.

Katy Clark (West Scotland) (Lab)

When officials gave evidence, they said clearly that, currently, no 16 or 17-year-olds could legally be moved into secure units, because of the disposal of the court. However, it would be helpful to ask the Scottish Government for confirmation that that remains the case and for a commitment that it will continue to be the case that 16 and 17-year-olds will be held in secure units wherever possible. If, for whatever reason, that is not possible, the committee should be advised through the Government’s writing to alert us to the fact that there has been a change.

I have a further point, which is about data and women in custody. The committee has discussed such issues many times and has expressed concern on numerous occasions, both publicly and in our private sessions, about the lack of data that is available to us and the difficulty in carrying out our scrutiny work when we do not have an understanding of the profile and the nature of the people who are being incarcerated in this country.

The Scottish Government’s intention seems to be to reduce the number of women in custody, but, in reality, that number is increasing, and there seems to be concern that it will continue to increase. It would therefore be helpful to get more information from the Scottish Government about the profile of the women who are held in custody and the reasons why there might have been an increase. There might be a range of reasons for that. I do not want to speculate in this meeting as to what those might be, but we need an explanation from the Scottish Government.

It is far from clear whether the Bail and Release from Custody (Scotland) Bill will make any difference to the number of women who are remanded. We were told yesterday that the current figure for women on remand in the prison estate is 37 per cent. That is high, and it is very unclear whether the bill will make any difference to that. It would be useful to find out whether the Scottish Government believes that the bill will make any difference to the number of women who are held on remand and why it remains the case that so many women are being held in the prison estate.

We know that the new custody units have, at maximum, been at only 53 per cent capacity, which tells us that, at other times, they have been less than half full. The committee should write to express concern about that. I fully understand that the issue has now been raised and that the Scottish Prison Service is considering it, but those custody units have been open since August.

Committee members were very impressed by what we saw when we visited the units—there has clearly been massive investment, financially and in other ways, in those facilities, so it is important that they are a success. We should express our concern in the strongest terms about the fact that they have not been used to their full capacity and call for urgent action in that regard.

We know that people are put in custody not just because of the legislative framework but because of the lack of alternatives to custody. In relation to the alternatives to remand reference group, we need a great deal more detail about what the Scottish Government is doing to ensure that there are genuine and robust alternatives to custody. We know, for example, that people who are given community service orders are often not required to carry out the measures that are set out in their sentence.

We need a shift in resources into alternatives to custody if the Scottish Government is to be successful in enabling the courts to dispose of cases in other ways. When we look at the budgets, we see that the money for that is not being provided. The direction of travel is the wrong one: the amount of money that has been provided for alternatives to custody is going down instead of up. We should express in the strongest terms the need for the Scottish Government to shift resources now if it is to have any success with its stated strategy.

The Convener

A lot was covered there. You are right to say that there are opportunities and challenges. I note your point about data collection, which will be relevant to our work on the Victims, Witnesses, and Justice Reform (Scotland) Bill.

I note your extensive comments about the women’s prison estate. I think that there is a role for the committee in the matter, and I will look to take that work forward either as part of our work programme or as an additional piece of work.

I am conscious of the time, as we still have a number of pieces of correspondence to work through, but I will bring in Rona Mackay.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I will be quick. I agree with a lot, if not all, of what Katy Clark said. First, regarding women going to the custody units, I have heard that there might be an issue relating to eligibility criteria. It would be useful to ask whether eligibility has been set too high and whether the criteria are realistic. We should definitely chase that up, as well as Katy Clark’s points about remand, data and so on.

Secondly, we have talked about young people being put in YOIs instead of secure care when there is capacity in the latter. I understand that point, and it would be useful to find out why that is happening. The situation might change when the new legislation is passed, but that really should not be happening now anyway.

Lastly, a thread runs through many of the responses, in that there are references to reviews and reports being published in spring. It might be helpful for us to have a wee table of stuff—I do not want to put more work on the clerks; the Scottish Parliament information centre might be able to produce it—so that we know what is coming, what is late and what is expected, because there are so many reviews and reports out there.

The Convener

That is helpful. I flag that, yesterday, we covered the evaluation of the CCUs that will be coming forward. I am sure that that is of interest to you.

I note your point about YOIs, and your suggestion about our being prepared for what is coming down the line is helpful.

I do not want to curtail debate, but we have five more letters to consider and a lot to get through this morning. If there are specific points that members want to follow up, or if they want to remark on the other pieces of correspondence, I will bring them in.

Russell Findlay

I will be quick. I have some specific questions about in-cell telephones, which are referred to in the letter dated 26 April. The letter says that the relevant work in all establishments should be completed by the end of April, which was last month. It would be useful to know whether that happened.

The context is also important. We know that more than £4 million was spent on providing mobile phones initially during Covid, but we also know that that was abused on more than 7,000 different occasions by more than 4,000 prisoners. Those phones were also used in the commission of some serious crimes.

My questions are about the cost of in-cell telephony. Will it replace the mobile phones or will the two types of phone run in tandem? I think that it is safe to assume that it will replace the mobile phones, but the letter does not state that. If it is the latter, how much will it cost to run both schemes? Crucially, given the problems with the mobile phones that we were told would not happen but did happen, what measures is the SPS taking to ensure that the in-cell telephony will not be abused in the same way?

That is noted. Thank you.

Katy Clark

My points, which are about data, relate to the letter from the Scottish Prison Service dated 26 April. The terms of the letter are general but they relate to areas in which the SPS has data.

When Teresa Medhurst appeared before us, she said that the SPS could provide the committee with more data. We cannot wait for the Victims, Witnesses, and Justice Reform (Scotland) Bill to get more data so that we can do the job that we have been tasked with. I suggest that we write to ask Teresa Medhurst if she could look at what data the SPS could share with the committee, because she made it clear that further data was available and, from talking to people in the system, my understanding is that there is a great deal more data that we have not seen that could easily be shared with us. We should write with that specific request.

Thank you, Katy. We can have a wider discussion about that under agenda item 6.

Collette Stevenson wants to come in.

Collette Stevenson

My point is about purposeful activity. The letter from the SPS says that it is

“currently undertaking a post covid recovery activity review.”

I would be keen to follow that up and find out exactly what the SPS is doing.

The other thing that I picked up on is that purposeful activity includes work placements outside prison. That would relate to the open prison. It was mentioned earlier that we are only using 50 per cent of the open estate’s capacity. I am keen for that to be monitored and to find out whether that figure has increased and, if not, why it is still not at full capacity.

The Convener

I am aware that that has been a gradual trend in the open prison estate’s capacity, so I would be happy to follow that up and ask for some more information.

Does any member want to make any further points on any of the correspondence?

Jamie Greene

I will try to rattle through the letters. On the SPS letter that we have just discussed, I have the same question as Russell Findlay on in-cell telephony.

My second point is about purposeful activity. There seems to be a bit of confusion around what the reality of that is versus what the law says. The letter gives the impression that purposeful activity is available to all prisoners. That point was reiterated during last week’s scrutiny of the Bail and Release from Custody (Scotland) Bill, when the cabinet secretary said—I am just checking the Official Report:

“Prison rules do not exclude remand prisoners from work or purposeful activity, and the Prison Service will, where possible, offer access to work and educational opportunities to those on remand.”—[Official Report, Criminal Justice Committee, 17 May 2023; c 57.]

I wonder what the reality is on the ground versus what it says in the letter and what we were told. If nothing else, there seems to be a perception that remand prisoners participate in much less purposeful activity, including education, counselling, training and work. I appreciate that, when it comes to forcing someone to work, there is a difference between someone who has been sentenced and someone who is on remand, but we need more clarity around that because the situation is a bit unclear. The perception and the reality seem to be two different worlds.


We cannot look at the correspondence without noting the letter from COSLA, in conjunction with community justice partners. It is quite detailed and a lot of work and time have obviously gone into it. The letter is quite stark and makes clear something that we already know through budget analysis, which is that almost every aspect of the justice sector received more money in the 2023-24 budget than in the 2022-23 one, with the exception of criminal justice social work, which had a flat cash settlement despite pre-budget scrutiny that warned of the consequences of that.

The letter goes into great detail, which I will not go into, about what the consequences might be. In effect, we are talking about a substantial real-terms cut, year on year, in the criminal justice social work budget. The letter makes it clear that that cut makes it incredibly difficult for COSLA and its council partners to deliver the Scottish Government’s national strategy for community justice and that it widens

“the existing ‘implementation gap’ between national policies/legislation and local delivery”.

I know that that sounds like technical jargon, but it is a really important point. It is all very well having a national ambition, but if the people on the ground who are tasked with implementing that are saying that they cannot do it with what they have been given, there is an issue. I would like the Government to respond in detail to this specific letter from COSLA and local criminal justice social work. It is the kind of letter that the Government ought to reply to, and its response should also come to us. The conversation is not just about money: the letter goes into workload and the issue of people retiring.

My last point is about the letter from the Scottish Fire and Rescue Service, which was short and sweet. I note that the deputy assistant chief officer writes that

“50 per cent of all operational staff ... have voluntarily completed the training”

on overdose awareness. It is not quite clear from the letter how many operational staff actually participate in the scheme or carry pouches of naloxone to administer. There must be some difference between the number who have done the training and the number who actively hold the product. The letter just says that

“there has been limited progress”,

but 50 per cent does not sound like limited progress. There is clearly a difference between the number doing the training and the number carrying the product, and it would have been helpful if the fire service had been more explicit about that.

I feel slightly nervous about language that says that a delivery plan will be in place once

“broader agreement to deploy is confirmed”.

Agreement with whom? I presume that that means front-line workers or their union representatives, but it is a bit unclear and I can only read between the lines. It would be very helpful if the fire service could keep us up to date.

The Convener

You covered quite a bit there. You are right to say that the correspondence that we received from COSLA was comprehensive and helpful, and I would be happy for us to share it with the Government. We can, of course, monitor progress at the Scottish Fire and Rescue Service in relation to its roll-out of naloxone. Thank you for those points.

Are we finishing up, or can we refer to the other letters?

If you have specific action points in relation to any other correspondence, please flag those so that we can note them and take them away.

Russell Findlay

I will be selective. The letter from the Scottish Courts and Tribunals Service says:

“SCTS successfully achieved customer service excellence”.

I have no idea what that is, so it would be good to know. We have asked the SCTS about its complaints process and been told how wonderful it all is, but there is no data about the number of complaints, whether that number is going up or down, or how complaints are resolved. That might be interesting to know.

I have a few other points about the letters from COSLA and the SFRS, but I will leave those for now.

That concludes our scrutiny of correspondence on the action plan.