Chamber and committees

Thank you for the opportunity to provide an opening statement on the justice provisions in the bill. I thank all those who engaged in the 12-week consultation process, which has helped to inform the development of the bill, and those who have provided written and oral evidence to the committee.

The majority of the justice provisions detailed in the bill are being progressed on a longer extension basis. That is in the context of the justice recovery programme, the “Justice Vision and Priorities delivery report—key achievements and impact of Covid 19”, which was published last month, and against a background of the backlog of cases as a result of the pandemic.

During the pandemic, we have seen significant changes in how the justice system has operated and adapted to changes in working practices as it has responded to public health guidance. Public safety has been the paramount consideration throughout and consequently required a change in how we work. That consideration clearly remains, as does a recognition that public attitudes to travel and general day-to-day activities will have been shaped by people’s experiences of the pandemic.

I expect that much of what we will discuss will be firmly rooted in the “Recover, Renew, Transform” programme. The measures in the RRT programme have contributed to recovering a viable justice system, responding flexibly to meet the challenges that Covid-19 presents, while delivering a more effective and efficient justice system now and for the future. That is fundamental to protecting our rights and freedoms and to addressing inequality.

The justice system has responded to, and continues to respond to, the challenges presented by the pandemic and societal changes that we must adapt to. Many of the technological changes that have been introduced, such as virtual custody hearings, the operation of remote jury centres and the electronic transmission of documents, have proven to be a successful response to the new working environment.

As the committee has heard in its evidence sessions, for some, those changes are seen as temporary measures to address the problems that have been caused by the pandemic and ought to apply only in that context. However, others see an opportunity for transformation that could form part of a new justice system.

In common with the committee, I agree that it is essential that we fully evaluate the impact of the measures—operationally and on court users—before they could be considered a permanent feature. Also, there will be some changes that are only ever temporary and that the Scottish Government has no intention of making permanent. For example, the extended time limits are purely to address the impact of the pandemic on the criminal courts.

Equally, I can provide reassurance that powers that are no longer required will not continue to be used. The bill includes suggested annual milestones at which the provisions can be reassessed. The bill also includes powers for measures to be expired or suspended ahead of the annual milestones. The Government remains committed to expiring or suspending any existing provisions that are no longer necessary.

It is proposed that measures requiring to be extended beyond November 2023 could be extended by regulations, using the affirmative procedure, potentially through to November 2025. That would mean that appropriate parliamentary scrutiny could take place, and would place a clear onus on all justice organisations to evidence how the powers have been used and to make the case for their retention.

In addition, and in an effort to be open and transparent, the policy memorandum to the bill highlights areas where stage 2 amendments might be progressed, noting other areas of activity that might have an impact.

I have listened carefully to the evidence sessions over the past two weeks and, to some extent, the evidence that was heard this morning. It is clear that there are a range of views on how best to respond to the impact of the pandemic on the justice system and to the opportunities and challenges that that raises for us all, but there is no doubt that there is agreement on the impact that the pandemic has had on the justice system.

I take on board all the comments, and trust that, as we consider the provisions and their individual and collective impacts, we can respond and address points of concern carefully and directly as a Parliament. I am happy to take questions, convener.

Of course it was taken into account. That is why Parliament debated the measure and agreed to it—I think that it might have done so unanimously; I am not sure.

Covid has meant that Governments and others have had to balance harms. Parliament decided that releasing those prisoners was the better option to take.

If there were to be a legal challenge, it would be for others to take that decision. From my point of view and the point of view of the justice portfolio, the important thing is to ensure that we can identify whether that has been the case. That is why we are carrying out the risk review process that I have previously mentioned. It is quite a lengthy, detailed and technical process with different layers, but it will be very thorough. I do not know whether it is possible to hear from Cat Dalrymple about how that will be carried out.

I should mention an issue that might well come up. Last week, I mentioned that we had 285 open cases. We were concerned and, as of yesterday, we have been able to check every single one of those cases. Not one is giving rise to any public protection issues for us.

On other cases in which people might feel that they have been wrongly assessed, my understanding is that, with the different layers of checks that are carried out in the risk review process, that is unlikely to be the case. However, it might be a good idea to hear about that from Cat Dalrymple.

I will respond first, as I believe that you asked a similar question in the chamber last week, and what I said in my statement should provide you with some reassurance.

You have asked about the offences that are involved, particularly whether they are sexual ones. I am grateful for the question, but I have to point out that LS/CMI is not an offence-based system and does not record the offence involved. As I have explained, it is a kind of generic triage system; although that might seem strange, that is entirely consistent with the risk assessment approach. As our briefing paper sets out, it is a general tool that looks at general factors, including potential offending, but part of the judgment applied relates to a different part of the assessment that looks at the nature of offending and provides structured consideration of that issue. I know that we have said this a number of times, but it is important to get across the fact that every risk assessment has different elements.

That element of the system does not have a score. For example, individuals convicted of a sexual offence will have bespoke risk assessments carried out. Those will likely focus not only on general offending but on risk of harm, which are particular to that type of offending. So, there are other processes that cover that.

You asked about what has priority. So far, we have concentrated on—this has been our priority—the 285 live cases. Moving on—

Yes. Last week, during the statement, I read out the different categories of professionals who consider cases. As you will know better than any of us, Mr MacGregor, a whole list of experts examine risk management, and the LS/CMI is one tool in which to do that.

Katy Clark queried whether we have asked for a breakdown of the offences. We have not. We could do that—and I will look into that—but the simple fact is that the individual social workers and other professionals involved know exactly what the offences are. They are the ones who apply professional judgment. The fact that they do that, with other experts to help them, is the most valuable part of the system.

I have made the point a number of times—although it seems to be lost sometimes—that it is important to realise that the LS/CMI is one part of the system and that other tools are used in addition to it when it comes to sexual and high-risk offending.

Last week, I gave the example of the issue that we have with the alcohol assessment, whereby the lower score that might be justified by somebody moving away from alcohol addiction might not have been captured.

The professional override—I say this as a layperson and I am sure that Cat Dalrymple will correct me if I am wrong—has now been applied again to 285 cases. The experts involved have looked at those 285 live cases and said that there are no public protection issues arising from them. As others have urged us to do, we now need to go back and look at previous cases. If 285 out of 285 cases have come back with no issues, that is a pretty good indicator of things. However, we accept that we must look at previous cases is in the interests of public reassurance.

I was aware of some of that but not as aware as you are of the detail. The system provides further reassurance. As you say, it is not the case that something is taken from one computer system and drives the whole process. Professional judgment should not be rushed past. It is an important part of the system, if not the most important part. As you say, that does not involve just one professional. The decision is checked again by others to ensure that there is nothing that should be questioned. It is a robust system.

Obviously, we regret the two issues that we have had with the IT system. We must and will learn from that. There will be an on-going process with the providers to ensure that we try to cover that in future and make the risk assessment system as robust as we can. It is and has been robust. The two issues with the IT system have given us concerns, which we have addressed, and I have said that I will come back to Parliament. However, we want to have the most robust system possible.

One feature of the Scottish justice system is that it has more people on remand and in prison than is the case in many other systems. Given that, we could be accused of being risk averse. However, we must have in place a proper system. We should be accountable for anything that has not worked as it should and for ensuring that we get things remedied as quickly as possible. That is what we are trying to do.

I briefly touched on the point about funding last week. We have made it clear that we are willing to respond to any request for financial support that derives from a need for more people and resources to look at the matter.

There are a number of levels to rebuilding people’s confidence. One relates to the IT system itself. We will engage with IT people and others to ensure that the system is as it should be. Beyond that, as a number of members have suggested, we need to go back to closed cases and ensure that the system operated as it should have done despite the IT issues. Those two things should help to provide confidence.

We are also taking the opportunity to see whether we can make further improvements to the system. We should do that at any point but this seems the right point at which to do that.

We have had a number of discussions on that. It is probably true to say that different parties across Government and, perhaps, across society have received less than they might have hoped for, but that is the nature of the budget and the cuts that have been made to it. We have now had about 10 years of austerity, which, of course, has led to pressures building up that we have tried to respond to.

We worked closely with the courts service on the budget. I should point out that the Crown Office negotiates its budget separately with the finance secretary, so it is for that organisation to answer any such questions, but I am confident that the budget, despite our constrained means, will be more than sufficient for the service to do as it intends, not least in relation to the backlog.

I might ask Jeff Gibbons to come in on that but, as a layperson, I think that the gap could be bridged, although I am not saying that I have the answers now. Many of the qualms that legal representatives have raised have been about looking somebody in the eye and having that kind of presence. The Faculty of Advocates has said that things such as presence in the courtroom and being able to read somebody’s reactions and body language are extremely important. I will say this now without having the expertise, but there might well be digital solutions that will allow us to improve in that respect.

I hope that the gap could be bridged, given some of the benefits. We have heard about vulnerable witnesses, but there is also the issue of people having to travel a long way, as well as the issue that was raised yesterday about domestic abuse. There are potentially huge benefits, but we want to try to take the profession with us. You are absolutely right that, even between the Law Society and the bar associations, there are different points of view. It must be possible to reach agreement, but it will take some work to do that, and we will have to listen to people’s concerns.

I ask Jeff Gibbons whether he wants to come in.