Chamber and committees

I am pleased to speak to this group of amendments, which deals with electronic attendance at court. I commend the justice agencies on the record for their urgent, effective and collaborative work over the past two years. Virtual hearings are one measure that has enabled them to respond to the challenges that the pandemic has caused, and the extension of those measures is an important part of the justice system’s recovery.

I do not support Katy Clark’s amendment 78, which would require ministers to prepare and lay regular reports

“setting out the progress that is being made in the implementation of virtual courts.”

That would not be a temporary provision; it would be a permanent one that remained on the statute book even after all the provisions on virtual court attendance in the bill had expired. There are already avenues for members to obtain such information, such as parliamentary questions and the committee system, and I am pleased to confirm that we are working with the court service to agree an approach to the publishing of regular data to improve the evidence base on virtual trials. I mentioned that at stage 2. I will be happy to update the Criminal Justice Committee on that in due course. I therefore invite Ms Clark not to press her amendment 78.

I turn to my amendments in the group. Government amendments were agreed to at stage 2 to make it the default position that people who are appearing in court on undertakings will attend court in person, which matches what has been happening in practice. I told the committee that, in the run-up to stage 3, we would continue to consult justice partners on whether it would be beneficial to make other types of hearing in person by default.

Many types of hearing in the criminal courts are largely being held in person, and it makes sense for the default positions in legislation to reflect that operational reality. However, some types of hearing are predominantly calling virtually—for example, preliminary hearings in the High Court—and we do not want to undermine those arrangements. The courts also require flexibility, which has proved to be crucial in their response to the pandemic. We have been working closely with partners to try to find the best way to balance those considerations.

My amendments 15, 16, 21 and 22 are designed to do two main things. First, they will make almost all hearings in criminal cases in person by default. Civil proceedings are not affected. Secondly, they will enable the Lord Justice General to make determinations that suspend the requirement for physical attendance for particular groups of people or particular classes of criminal hearing. In other words, the default mode of attendance for those people or those hearings would become virtual.

For instance, the Lord Justice General might determine that virtual attendance should be the default for preliminary hearings in the High Court or when a person has Covid, or a determination could be used to support pilots of virtual hearings in specific parts of the country. Those are just illustrative examples; the decisions will be a matter for the Lord Justice General. However, that power to make determinations could not be used to make trials virtual by default.

Whether the default is physical or virtual attendance, courts and tribunals will have the flexibility to override the defaults in individual cases as long as they are satisfied that that will not jeopardise the fairness of proceedings or the interests of justice. Where the default is virtual attendance, a person will still be able to request an in-person hearing. Any determination that the Lord Justice General makes under the provisions must be made publicly available, so members will have a clearer picture of where and when virtual hearings are being used.

I know that Pauline McNeill has been particularly concerned about custody hearings being held by videolink. I hope that, rather than moving her amendment 79, she will support amendments 15 and 21. As I said, they will make almost all hearings in criminal cases in person by default, including custody hearings. The door is being left open for the Lord Justice General to determine that custody hearings should become virtual by default, at least in some circumstances. I think that that is a good thing. Greater use of technology in our courts has the potential to improve the experience and processes of hearings, and we should allow latitude for testing that.

I hope that Pauline McNeill will be reassured by the safeguards that I have outlined. I have no doubt that she and her colleagues on the Criminal Justice Committee will keep a careful eye on developments, and I very much welcome that.

My amendments 19, 20, 23 and 24 make changes to how courts and tribunals consider representations and issue directions in relation to a person’s mode of attendance. The changes apply to both civil and criminal proceedings. The bill as introduced called for parties to be given an opportunity to make representations about the mode of attendance before any directions about it were issued. However, practical experience has shown that, in some contexts, the first opportunity for parties to make representations can be at, rather than before, the first hearing in a case. In other cases, it is simply more efficient to let the court or tribunal first propose how attendance should take place, because it then only has to spend time dealing with any objections to that proposal.

The amendments therefore enable a court or tribunal to direct a person on how to attend a hearing, whether in person or virtually, without first giving parties the opportunity to make representations. They put the court or tribunal under a legal duty to ensure that the parties are aware of their right to challenge the mode of attendance that is proposed by the court, and to deal with any such challenge before turning to the substantive business of the hearing. If a court or tribunal upheld a challenge to proceeding virtually or in person, the hearing would be adjourned and rearranged accordingly.

Finally, amendments 17 and 18 in my name are minor technical corrections. They ensure that tests that are designed to be applied when courts or tribunals override an in-person or virtual default rule apply only to the overriding of the rule and not to decisions that would have the effect of reverting back to the default.

I hope that members across the chamber will support my amendments.

Most of the amendments in this group were debated extensively at stage 2, when the Criminal Justice Committee explored the various issues in detail.

Amendments 74 and 75 seek to expire certain time limits automatically one year after the bill receives royal assent. As I said at stage 2, we simply do not yet know what the situation will be with the backlog of cases in the summer of 2023. If those amendments are agreed to, the time limit extensions relating to remand cases would expire no matter what the scale of the backlog of cases was at that point.

I have similar concerns about amendments 82 to 85 and 87 to 91, in the name of Katy Clark, and amendment 86, in the name of Pauline McNeill. They all seek to reduce the length of the extensions to time limits provided for in the bill and are almost all the same as amendments that were debated extensively at stage 2, during lengthy debates. I cannot support pre-emptive attempts to reduce or expire extended time limits if such action would significantly adversely affect the time and resources for progressing trials.

The temporary time limit extension provisions are not the cause of the backlog. Extensions to the time limits help to ensure that scarce prosecutorial, court and defence resource is not diverted to having to prepare and adjudicate on large numbers of applications to extend the statutory time limits case by case. For that reason, I ask Ms Clark and Ms McNeill not to move amendments 82 to 91.

Amendments 76 and 77, in the name of Pauline McNeill, are new amendments that have not been discussed during scrutiny of the bill. They would require courts to record who applies for extensions to certain time limits in criminal cases and why. They would also require the Scottish ministers to report on that information every six months in perpetuity.

In any individual case, there might be a host of interconnected reasons why the prosecution or the defence might not be ready to proceed with a trial in line with the statutory time limits. The exact wording of amendment 76 is that

“the reason for the application”

should be noted. That duty could be fulfilled through recording that the case was not ready to proceed to trial, which would not provide helpful information. If the whole procedural history of the case was recorded each time that a time limit extension was granted, that would place a significant and undue additional administrative burden on the court service.

My officials have been in touch with the Scottish Courts and Tribunals Service, which has advised that however amendments 76 and 77 are interpreted, they would have a significant resource impact on the operation of the courts. In particular, they would add to the burden faced by court clerks by requiring them to record new information, and they could require changes to information technology systems. That would happen at a time when it is important that the justice system’s resources are fully focused on tackling the backlog of cases. I ask Pauline McNeill not to move those amendments.

Amendments 80 and 81, in the name of Russell Findlay, retread ground that was extensively debated at stage 2. They would end the temporary increase—from £300 to £500—to the upper limit of fiscal fines. That increase, which has been in force since April 2020, has freed up the courts and prosecutors to deal with more serious cases, easing the burden at a time of significant resource pressure as justice agencies deal with the backlog that has built up during the pandemic.

Fiscal fines have been part of the Scottish justice system since the mid-1990s. Independent prosecutors are able to use their discretion in deciding whether it is in the public interest to offer a fine as an alternative to prosecution. They are a tool that can be used by prosecutors to relieve the pressure on the courts by allowing less serious offences to be dealt with without taking up valuable court time.

Rightly, members have expressed concerns about the backlog of cases in our courts. This is not the moment to remove a measure that is aimed at tackling that backlog. Indeed, due to inflation, to revert to the previous maximum level of £300 would make fiscal fines less effective in diverting cases away from prosecution than they were when the Parliament approved that £300 maximum in 2007. At this time, given the backlog in the criminal courts, that would be counterproductive.

Retaining the maximum level of fiscal fine at £500 for a further temporary period remains an important part of our justice system’s on-going recovery from the impacts of the pandemic, and I ask members to reject amendments 80 and 81.

I assure the member that the people concerned—Gill Imery and HM Inspectorate of Prisons for Scotland—are well versed in the current situation in prisons and are well seized of those issues, but there is more work to be done on mental health issues, as I have just mentioned.

The member also mentioned the role of families. When I met the families, I was impressed with the knowledge that they had—first-hand lived experience of sometimes very traumatic events. We want to make sure that the lived experience of those families informs the new ways in which we can try to prevent further deaths in prison.

The Ministry of Justice negotiates prisoner transfer agreements on behalf of the United Kingdom, taking into consideration the views of the devolved Administrations. The Ministry of Justice has recently shared proposed amendments to the additional protocol to the Convention on the Transfer of Sentenced Persons, which is intended to improve prisoner transfers between the United Kingdom and Council of Europe member states. I am currently considering those amendments.

To quote the chief constable,

“Misogyny, sexism and discrimination of any kind are deplorable. They should have no place in society and no place in policing.”

I welcome the independent report, which has been commissioned by the chief constable and carried out by the Police Service of Northern Ireland. I fully support the review’s findings and recommendations. I expect to see Police Scotland demonstrating progress towards implementation of the recommendations and—to quote the chief constable again—

“to lead a change which improves the experiences of all women … enabling and supporting those who speak up … to be heard without fear of detriment or victimisation.”

In November 2019, my predecessor commissioned an independent review into the response to deaths in prison custody, in recognition of the need for increased transparency and better engagement with families following a death in custody. The review report was published on 30 November last year. On that date, I made a statement accepting in principle all the recommendations that were made by the review. I also made a commitment to provide Parliament with an update on progress made against the recommendations by summer 2022, and I will now honour that commitment.

I wish to begin by refreshing members’ memories of the purpose of the review. Its primary aim was to make recommendations on areas in which improvements can be made in the immediate response to deaths in prison custody by the Scottish Prison Service and the national health service, including deaths of prisoners while in NHS care. The review did that and, most importantly, it highlighted ways in which the response to, and experiences of, families could both be made more consistent and improved, so as to provide prompt answers, transparency and compassion.

The review recommended that two pillars of trauma-informed practice should underpin every interaction with families, at all points along the justice journey, including when a family experiences bereavement through the death of a loved one in SPS care. The two pillars are choice and control. It is my absolute commitment that choice and control, as well as compassion and transparency, will be woven into our justice system so as to better deliver for families.

At the beginning of this year, I held a round table with key agencies and family members who had provided expert views and lived experience to the review, to map what needed to be done to deliver on the recommendations and to gain agreement from all to make the necessary changes at pace. It was agreed by all that there were real benefits to the work being externally led.

In April, I appointed Gillian Imery, formerly Her Majesty’s chief inspector of constabulary, as an external chair to provide independent oversight and leadership for the implementation of all the review’s recommendations. Ms Imery has already met with all relevant stakeholders, and has established a deaths in prison custody action group to oversee and drive forward the programme of work that is necessary to make the suggested improvements to operational practices and to meet the recommendations. The group met for the first time yesterday. Agencies have already indicated early changes to the way that they respond to families and handle deaths in custody internally, with a commitment to making longer-term improvements over the coming few months.

I also met with Ms Imery yesterday, in the first of a series of regular progress updates with her, and I am assured that improvements are being implemented by all agencies. The external chair has committed to publishing a written update in November this year. That will provide on-going transparency to all the important work that is being progressed across this policy area.

I move on to improvements that are being made by agencies. The SPS is piloting an electronic form that allows family members to flag any serious concerns that they might have about the health and wellbeing of a loved one in prison. The form and its submission process have been user tested by third sector partners and prison monitor co-ordinators, which has identified that mental health concerns and suicidality are readily flagged, but physical health concerns are not. The form has therefore undergone additional refinement and will be further tested for efficacy.

The SPS is also seeking to improve early access for prisoners to emergency bells, and for staff to equipment such as ligature cutters and privacy screens. Those practices are being reviewed, and in some instances they have already been actioned. Privacy screens are now in place in the majority of prisons, with the remainder in train to be put in place. Active consideration is being given to the best model for ensuring ready access to ligature cutters, and I am confident that that will be resolved in the very near future.

The SPS is in agreement with the review’s recommendation that prison governors should be the next point of contact with families, after the police, as soon as possible after a death. It has already implemented that as best practice in a number of establishments.

In relation to NHS improvements, the NHS has taken the lead on developing a suite of training packages for NHS and SPS staff, including ones that equip staff with coping skills for responding to deaths in custody. They have also developed a process whereby prison nurses can provide confirmation of death, thus reducing the pressure on the Scottish Ambulance Service. That process has already been cascaded to all health boards, and further training to prison nurses will follow as soon as possible. Linking to that, within the next two months, the NHS will have developed a pathway, agreed with the SPS, that outlines the responsibilities of healthcare and operational staff following a death in custody.

As the head of the systems of criminal prosecution and investigation of deaths in Scotland, the Lord Advocate has responsibility for the investigation of all sudden, suspicious and unexplained deaths. Any decision of the Lord Advocate in that capacity is taken independently of any other person. In my previous statement to Parliament, I explained that the key recommendation would complement the independent investigation by the Crown Office and Procurator Fiscal Service into the circumstances of the death, the information provided to families by the Crown Office in terms of the family liaison charter, and the subsequent fatal accident inquiry, which is presided over by the judiciary. It was made clear that the recommendation around the independent body does not, and should not, replace any of the current inquiry processes. The Lord Advocate agreed in principle with the recommendation, and the Crown Office is providing a contribution as a key stakeholder.

I turn to the key recommendation, which is that an independent investigation should be undertaken into each death in prison custody and carried out by a body that is wholly independent of the Scottish ministers, the SPS, the private prison operators and the NHS.

My officials have constituted a working group of key agencies, the remit of which is to design a gold standard investigative process to review each death, identify lessons to be learned, and provide prompt answers and a single point of contact to families. The Scottish Government and the Crown Office are working closely and collaboratively to ensure that the new approach functions seamlessly in tandem with, and parallel to, existing investigative processes that need to take place when a death in custody occurs. The group is furthermore considering options as to the most suitable independent public body to take on the new approach in the current fiscal climate.

In April, my officials held a round table with the ombudsmen and senior investigators of England and Wales, Northern Ireland and the Republic of Ireland, to hear from them how deaths in custody are investigated in their jurisdictions. The implementation of the key recommendation will bring us in line with those jurisdictions, and there are lessons to learn from them in relation to good practice and key areas to be improved on when we create our own approach. A key takeaway from that meeting was the need for our approach not only to make recommendations but to have the statutory power to enforce them.

I want to ensure that changes that are made to processes when someone dies in custody are meaningful, that they meet families’ expectations, and that they radically improve the response to families when the death of a loved one occurs in prison. However, it takes time to effect meaningful change and, in order for changes to have teeth, they might require to be made in statute, which is dependent on parliamentary timetabling.

It is imperative that, as we move at pace to improve operational processes, we do not lose sight of the fact that, at the heart, we are striving to improve our response to bereaved families. I want to be clear that I regard families as our most important stakeholders, as key consultants as we progress with implementing the recommendations and as co-designers of the new investigative process.

I am adamant that we will consistently deliver a trauma-informed and compassionate service only when we afford families the twin loci of choice and control. I wish to reiterate my commitment to giving that choice and control to families at each and every touch point with public agencies—Police Scotland, the SPS, the NHS, the Scottish Government and the Crown Office—when a family experiences loss through a death in prison custody.

That is exactly our intention. It has to be remembered that our prisons deal with some of the most vulnerable people in society, and there is no getting round the fact that, for most people, being put in prison is a traumatic thing to happen.

I am absolutely committed to making improvements to the response to, and the experience of families who are impacted by, a death in custody. It is a family member, not the family, who has been sent to prison. As Pauline McNeill said, we must provide them with prompt answers and ensure that a compassionate approach is taken. That is why we have commissioned independent reviews into the provision of mental health services to young people in Polmont prison and into responses to deaths in custody. As I have mentioned, I have appointed Gillian Imery as the external chair to oversee the work on the implementation of the recommendations.

We have undertaken a number of initiatives in relation to data. I have mentioned, in relation to advising people of such deaths, that information will be put up on the Scottish Prison Service website. We must make sure that that information is collated and that the data is used. That will be looked at by the working group as part of the work that is being done by Gill Imery, so I expect to be able to give more information on how we can improve data in a future statement.

Any form of hate crime or prejudice is completely unacceptable. Although the increase in disability and transgender aggravated hate crime may in part be related to a greater willingness among victims to report incidents, we are not complacent and remain committed to tackling hatred and prejudice wherever it occurs. Later this year or shortly thereafter, we will publish our new hate crime strategy, which will set out our priorities for tackling hate crime. To help to drive that, we have established a strategic partnership group, which is chaired by the Minister for Equalities and Older People and includes representation from the Equality Network and Glasgow Disability Alliance.