Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, June 17, 2020

Official Report 1360KB pdf

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Justice Sector Response, Recovery and Renewal

The next item of business is a statement by Humza Yousaf on justice sector response, recovery and renewal. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

14:58  

I will update the Parliament on how Scotland’s justice system has responded to the challenges posed by Covid-19 and on the next steps that must be taken to allow the system to recover and, importantly, to renew.

The past few months have been challenging and everyone working in the justice sector is and has been under immense pressure. I pay tribute to the adaptability, resilience and hard work of everyone, across all justice agencies and on the front-line, in their response to the Covid-19 outbreak. The dedication and commitment of those who make the wheels of justice turn have enabled Scotland’s justice system to respond quickly to the significant challenges posed by the Covid-19 outbreak.

I also thank the people of Scotland for largely adhering to the measures that are in place to keep everyone safe. However, Covid has not gone away and I urge everyone to continue to comply with the public health measures that are essential to help us curb, control and curtail the spread of this dangerous virus.

We are under no illusions when we consider the major impact that Covid has had on the justice system. I will highlight to members the key role of the national justice board in driving forward our recovery efforts as we move through each key phase of our four-phase lockdown exit road map. The justice board, engaging with victims, legal professionals and others, is overseeing the progress of activity to ensure the recovery, renewal and transformation of the justice system as we progress through and beyond our Covid-19 route map. The board recognises that significant progress was quickly made in response to the Covid-19 outbreak, and that that should be regarded as the foundation of the work still to be done.

Last week, the Lord Advocate and I co-chaired the victims task force, and heard from its members the importance that they attach to being involved in the development of the changes. Some clear anxieties were expressed by victims organisations, which we are determined to act on.

The approach recognises that transformation across the system has been accelerated to enable essential business to be conducted in the early stages of the Covid-19 outbreak; that substantial work is on-going to re-establish service provision—obviously, in line with public health guidance; and that additional extensive transformation will be required to enable the system to operate while living with the implications of Covid-19.

I turn to the detail of what is happening across various justice agencies and in particular policing and police enforcement. The police have been on the front line in the emergency, supporting one of the most effective tools that we have to control the spread of the disease, namely, physical distancing. There have been very good levels of compliance, because almost every individual knows that this is a collective endeavour. The public has been very supportive of the way in which the police have dealt with the pandemic. We know that from surveys of the Scottish Police Authority, from Police Scotland’s own surveys, and from the work of the independent advisory group on the policing of the Covid-19 regulations, which is chaired by John Scott QC. We know that all those surveys have come back showing very high levels of confidence in policing. In fact, the very existence of the independent advisory group is a symbol of the openness and accountability of our police service.

The recent policing of the black lives matter events shows that that approach is the right one. There was a clear balance between the need for sensitive policing and the imperative to keep people safe. The chief constable and I made plain our views that people should not attend the events and that they should find other ways of protesting. However, given that a significant number of people gathered in different parts of Scotland, Police Scotland’s approach reflected that balance very well. I believe that the past few months have confirmed beyond all doubt that Scotland is most effectively policed by a single, national service that is able to extend a commonsense and empathetic approach across the whole country.

The fundamentals of policing will not change during the coming months, although I would judge that the specific role of the police will inevitably change as we move further out of lockdown, when there will be more focus on business-as-usual and core policing duties. Considering the shameful scenes of disorder that Police Scotland had to deal with last Sunday, and the separate horrific incident that left two officers seriously injured, I hope that everyone, including all parties in the chamber, renews their appreciation of the incredible job that our police officers are doing to keep us safe.

I turn to court business. In a short number of weeks, Scotland’s courts have resumed many of their services. Virtual courts have been held in the Court of Session inner house, and High Court criminal appeals and remote hearings have been held in the outer house. Sheriff courts and mental health tribunals have also held remote hearings. New digital approaches have been introduced, allowing cases to be progressed across the sheriff civil courts and the all-Scotland personal injury court, and commissary proceedings have been restarted through remote working.

Protocols have been introduced in the courts to ensure physical distancing is maintained where attendance is required, with practice notes in place allowing remote representation, to minimise attendance in court by solicitors and Crown Office and Procurator Fiscal Service staff. Alongside the hard work and ingenuity of Scottish Courts and Tribunals Service staff and of the legal profession, many of the innovative approaches could be utilised only because of the new legislative provisions that we introduced, so it is also to Parliament’s credit that such measures could be put in place so quickly.

The Scottish Courts and Tribunal Service has announced a three-stage approach to restarting civil business, prioritising urgent business and tackling the backlog. As I am sure that members are aware, 15 hub sheriff courts are operating. They are dealing with custodies and have been helping to reduce court sitting times. All sheriff courts reopened on 2 June and have restarted processing local business this week. Last week, virtual summary trials were commenced in two locations, thereby supporting arrangements for summary trials to be conducted remotely in future.

The working group on restarting solemn trials, which is led by the Lord Justice Clerk, Lady Dorrian, has made swift progress in identifying the steps needed for jury trials to commence in Edinburgh and Glasgow in July. Although that will involve very small numbers at first, the aim is to establish a sustainable approach that will allow as many trials as possible to progress as is consistent with maintaining a fair justice system, while protecting the health of all those involved.

The Scottish Prison Service has taken rapid and responsive action to ensure that physical distancing and public health protocols have been met, and has put in place a robust plan to manage Covid-19 and prevent its spread. I hope that members across the chamber will join me in thanking our hard-working prison officers and staff for the incredible job that they have done to prevent a Covid-19 crisis in our prisons. At the peak of the outbreak, approximately 100 individuals in Scottish prisons were self-isolating and a number of positive cases were confirmed. As of last night, there were no confirmed positive cases in Scottish prisons and just nine individuals were self-isolating across five establishments. That represents a significant achievement by our prison and healthcare staff. As we see lockdown measures starting to ease in our wider communities, the prison service is developing a phased approach to the easing of restrictions right across the estate, while ensuring the operational stability and safety and wellbeing of everyone in our prisons.

We continue to recognise the impact, especially on prisoners’ families, of the family contact restrictions that have had to be put in place in prisons. Her Majesty’s chief inspector of prisons has implemented a remote monitoring framework and inspection liaison visits to ensure oversight and monitoring of conditions in prisons. Nevertheless, we recognise very much the impact that the suspension of visits has had on families. The prison service has been working hard to introduce alternatives for maintaining vital family contact. Following the laying of amended prison rules in Parliament earlier this week, the first virtual visits by prisoners’ families and friends took place yesterday, for some of those in custody at Polmont, Cornton Vale and Shotts. We anticipate that virtual visits will be available in all our prisons by the end of the month.

As another way of enabling vital family contact during this difficult time, the use of restricted mobile phones is being introduced this week in Cornton Vale and Polmont and then over the next month or so across the entire estate—with the exception of HMP Kilmarnock, which is implementing an in-cell landline solution.

The prison service will ensure that implementation of virtual visits and the use of mobile phones is done in a way that is practical, safe and as swift as possible for those in custody, their families and those in the wider community.

As members will be aware, the level of our prison population was of particular concern before the pandemic. Since March, it has reduced by around 15 per cent, to under 7,000 prisoners—largely as a result of the downturn in court business, but aided by the early release arrangements that we put in place. Those arrangements were completed on schedule on 1 June and saw a total of 348 prisoners being released early.

However, in light of the continuing arrival of new remand prisoners, and the gradual reopening of the courts, we must continue to monitor the prison population and ensure that its reduction is not short lived. The key aims of the early release process—to take necessary and proportionate action to support the safe operation of prisons and to protect the health and wellbeing of those who live and work in them—very much remain our priority.

Presiding Officer, in the interests of brevity I will conclude my statement shortly. However, first, I wish to say that, during the lockdown, all of us will have had at the forefront of our minds the victims and survivors of domestic abuse. I reassure victims of all crimes that action will continue to be taken against perpetrators, who will continue to be brought to justice. However, it is worth noting that, in the calls that I have with the chief constable multiple times each week, I have been reassured by the commitment of Police Scotland and of support organisations to do all that they can to help those who are in difficult positions at home and who might suffer domestic abuse.

The Scottish Government also has a focus on cybercrime. We know that serious organised crime groups have been trying to exploit people during the pandemic, and we are making efforts to tackle that.

In conclusion, I assure the Parliament and the people of Scotland that the justice system is continuing to operate and to support our citizens through this time, as we navigate our way out of lockdown. No doubt members will join me in paying tribute to the hard work that has been undertaken by all in the justice system in supporting a safe, just and resilient Scotland.

The cabinet secretary will now take questions on the issues that were raised in his statement. I have absolutely no additional time and we are already running a bit late, so I doubt very much if we will get to all members who have questions. First, I call Liam Kerr.

I will try to be quick, Presiding Officer. I thank the cabinet secretary for advance sight of his statement and echo his thanks to the police, prison officers and all those whom he mentioned in his introductory remarks and throughout his statement.

I wish to explore three areas. First, it is vital that the courts are up and running again as soon as possible. Even before the pandemic, the number of cases that took more than six months to go from caution or charge to verdict was shocking. Of course steps had to be taken to protect public health, but victims should not have to wait any longer than necessary. Why has the cabinet secretary not announced today detailed plans to create additional court capacity to help the courts to catch up?

Secondly, I have a written answer from the Lord Advocate in which he confirms that the Scottish Police Federation’s call for those who cough or spit on police officers not to be released from custody before trial is a policy matter for the justice secretary rather than a matter for the Crown Office and Procurator Fiscal Service. Why will the cabinet secretary not take that decision?

Finally, the cabinet secretary, in his statement, repeated his long-standing aim to put more criminals on to historically underresourced community orders. I have seen data from local councils that shows that, understandably, face-to-face contact with offenders in the community has plummeted during the pandemic. What assurances has the cabinet secretary sought from councils that public safety has not been, and will not be, compromised by reduced monitoring?

I thank Liam Kerr for his questions. I note that he has taken a consistent interest in the matters that he raised, and I appreciate the tone in which he asked his questions.

With regard to the courts, detailed plans have been put forward—rightly—by the Scottish Courts and Tribunals Service. A cursory glance at the SCTS website would show Liam Kerr the three-stage approach that I mentioned; if he has not seen it, I will ensure that the link is forwarded to him in due course.

Liam Kerr hits on an important point. Our existing court capacity, with physical distancing in place, will take us only so far, and there is simply no doubt that we need to go further if we want to make inroads into the backlog. I can confirm that radical and innovative solutions are being explored. For example, we are looking at commercial premises and whether we can set up temporary courts to deal with the backlog. Real, outside-the-box, radical, innovative thinking is being explored, but it is right that those decisions are taken by the Scottish Courts and Tribunals Service, and the details are on the SCTS website.

On Liam Kerr’s second point, I have before me the written answer to his parliamentary question to which he referred, but my interpretation of it is slightly different from the one that he articulated.

The Lord Advocate makes it clear that

“The law on arrest and police custody”

has to be

“consistent with the requirements of Article 5 of the European Convention on Human Rights.”

I am certain that Liam Kerr would agree with that.

The Lord Advocate goes on to state:

“A proposal that all persons arrested for coughing or spitting on police officers during the COVID-19 pandemic should be automatically detained”—

this is the important bit—

“would not be consistent with this statutory framework.”—[Written Answers, 15 June 2020; S5W-29808.]

Liam Kerr forgot to mention that point, which is so important. I am sure that he is not suggesting that anybody, be it the Crown or anybody else, looks to go against the statutory framework. I think that that answers that question.

With regard to community orders, I will raise that question—as I often do—with the Convention of Scottish Local Authorities. I have a regular engagement with Councillor Kelly Parry. We want to get community orders up and running as safely and swiftly as possible. That can be difficult in a group dynamic, given the nature of such orders, but I take on board Liam Kerr’s points around safety and I will raise those again with COSLA during our next conversation.

I thank the cabinet secretary for advance sight of his statement, and I echo his comments in complimenting those in the police, prison and court sectors who continue to work in very difficult circumstances to keep people safe. As we emerge slowly from lockdown, it is essential that we keep our communities safe and protect people. To achieve that, we need clarity in public messages.

I have two questions for the cabinet secretary. First, what consultation has there been with Police Scotland ahead of the phase 2 announcement tomorrow to ensure that there is clarity about what is in guidance and what is in the law? Secondly, in relation to the restarting of jury trials, what provision is there for Covid-19 testing to give some assurance to those who will potentially be empanelled?

I thank James Kelly for the constructive manner in which he has raised those issues and the other issues that he has consistently raised relating to the justice sector for a number of weeks and months.

On James Kelly’s first question, I give him an absolute assurance that a detailed consultation has taken place with Police Scotland. That has happened at ministerial level. I speak regularly to the chief constable and to Deputy Chief Constable Malcolm Graham, who is in the lead on operation talla, and some of the other DCCs. There has been a ministerial relationship with the chief constable and the DCCs that has been focused on phase 2 for a number of weeks now. At official level, there has also been a lot of detailed discussion with Police Scotland. James Kelly is absolutely right that there should be consistency and alignment of message in relation to what is in guidance and what is in regulation.

As I think I referred to in my statement, as restrictions begin to ease, we will no doubt see the police revert more to core policing duties and the use of public order powers and so on, as opposed to the powers in the regulations. That is probably an obvious point.

The work on the restarting of jury trials is being led by Lady Dorrian, the Lord Justice Clerk, and she is advised by Public Health Scotland in that work. Therefore, I expect—indeed, I know this, because I raised the issue in my most recent conversation with the Scottish Courts and Tribunals Service—that the issue of testing is being actively explored when it comes to the resumption of jury trials. We have the capacity for that. James Kelly will understand that testing asymptomatic individuals gives an assurance only at that point in time, and jury trials can last for a number of days, if not more than a week. I give him an assurance that the question that he asks about testing is being actively explored.

We move to open questions. As I said, a lot of members want to ask questions.

What is the cabinet secretary’s response to the 2018-19 Scottish crime and justice survey, which shows that, compared to a decade ago, people are now less likely to experience crime and feel safer in their communities?

It is a very positive survey, and I urge members to have a look at it. The 2018-19 survey, which was carried out before the pandemic, involved 5,500 adults and shows some really positive trends. Over a decade, crime overall is down and violent crime has almost halved. Compared to a decade ago, people are now less likely to be victims of crime. One really interesting point—we do not yet know whether this is a trend or just an outlier—is that there seems to be no statistical difference between the likelihood of being a victim of crime for those in one of the most deprived areas in Scotland and the likelihood of that for those in any other area of Scotland.

The statistics are interesting. As members will imagine, there are also areas of concern, which relate to the reporting of crime. There is lots of good detail in the Scottish crime and justice survey, and I encourage members to look at it.

The cabinet secretary addressed in general terms in his statement support for victims of crime. Can he give specific details on the level of mental health support that is being given to victims of crime, particularly given that the current emergency has led to a protracted and anxious wait until the judicial process is fully up and running again?

That is an important question. We have given additional funding to Victim Support Scotland, which is the national organisation that works with victims, Scottish Women’s Aid and Rape Crisis Scotland and to the ASSIST—advocacy, support, safety, information services together—project, which works specifically with survivors and victims of domestic abuse. As I referred to earlier, although home might be a safe haven for Maurice Corry and me and for others, that is not the case for everybody. Since the beginning of the pandemic, we have given additional funding to those victims organisations. If we can do more, my door of course remains open to those organisations, and I have regular engagement with them.

The cabinet secretary is absolutely right to pay tribute to our police officers for keeping us safe. In April, the Scottish Police Federation raised concerns about the safety of the type 2 surgical masks that had been issued to police officers, but it was reassured that FFP3 masks would be delivered. Can the cabinet secretary update the chamber as to whether those masks were delivered and how many were issued to police officers?

The member will forgive me; I do not have the number of FFP3 masks that have been delivered. Certainly, no concerns have been raised with me about the masks in recent consultations and conversations with the Police Federation and directly with Police Scotland, but I am happy to look into that.

In relation to the type 2 surgical masks, the member will know that that issue has now been referred to the Health and Safety Executive. I will make a prejudgment on that: I have always been confident that Police Scotland has been aligned with the Health Protection Scotland’s public health guidance, but I will wait for HSE’s judgment in that regard.

John Finnie joins us remotely.

I note the cabinet secretary’s comments on the prison estate and I thank the prison staff for their hard work.

The cabinet secretary may be aware that the Children and Young People’s Commissioner Scotland has written a very concerning letter to the Justice Committee, advising it that

“international human rights frameworks clearly prohibit ... solitary confinement for children, recognising the damaging effects it can have on physical and mental health.”

As the cabinet secretary may be aware, the commissioner understands that

“some children and young people in young offenders’ institutes are currently being confined in their cells for up to 23 hours a day”

and

“those who are showing symptoms of coronavirus are isolated in their cells for 24 hours a day.”

Can the cabinet secretary confirm whether that intolerable situation has occurred and, if so, whether it continues? Most important, how quickly will the Scottish Government remedy it?

As of today, there should not be anyone self-isolating in our young offenders institutions. The numbers are low: nine people are self-isolating across five prisons, and none of those is a young offenders institution. It should not be the case that young people are self-isolating or are being held in solitary confinement for public health reasons—although there may be other reasons why that is the case.

I share the concerns expressed by John Finnie and the commissioner. However, despite the lockdown measures that are in place, a robust monitoring framework has been put forward by Her Majesty’s chief inspector of prisons. I will look specifically at the detail of the issues that the commissioner has raised, but John Finnie will recognise that, in the early days of the pandemic, some extreme measures had to be taken that we would never think to implement in normal times. As a result of the extreme situation that we are dealing with, those measures had to be taken for no reason other than public health. I take his broader points on board and I will look at them in more detail.

Given that lockdown has led to many victims of domestic violence being exposed to an even greater risk, are there any plans to further roll out and expand the Caledonian programme and other such initiatives to tackle the scourge of domestic abuse?

Fulton MacGregor will know, because I have discussed it with him before, that additional funding from the Scottish Government is allowing the Caledonian project to be rolled out across even more local authorities. I am a big believer in the effects of that excellent programme and I would like to see it rolled out further. During the pandemic, work has been undertaken to see whether there is a version of the Caledonian programme that can be undertaken on a one-to-one basis—he will know that the programme is usually group based. This week, accreditation and sign-off are being sought for that one-to-one programme. I give the member the assurance that, if the programme can get that sign-off and if local authorities are interested in having that resource available to them, of course I will look at that with an open mind.

Liam McArthur joins us remotely.

I, too, pay tribute to everyone who is working across our justice system, in which services and systems have been radically reconfigured over recent weeks.

What action has the cabinet secretary taken since last week, when I raised Scottish Women’s Aid’s concerns about refuge capacity in view of an increase in requests coinciding with the pressures brought about by social distancing and difficulties in being able to move individuals on to more permanent homes?

The issue has been raised not just with the Minister for Local Government, Housing and Planning but with housing officials and in liaising directly with Scottish Women’s Aid. I had a conversation through our victims task force with Scottish Women’s Aid about the victims and survivors of domestic abuse.

I will get back to Liam McArthur—I know that he raised the issue with me last week—once the Minister for Local Government, Housing and Planning and I have had a further conversation about refuge space. Members should be in no doubt whatsoever that, where there are issues to do with refuge space, we are collectively committed to tackling them.

The cabinet secretary will recall that I asked him on 21 April, which is almost two months ago, about the number of jury trials that could proceed. What is the timeline for clearing the backlog that has been building for months now and which will continue to build until resumption in mid-July?

Gordon Lindhurst knows that there are detailed plans under way and that there is a working group that is looking at that specific issue, which is led by the Lord Justice Clerk.

There are no easy answers. If there were a magic wand, a click of the fingers or a silver bullet that could be applied to the issue to deal with the backlog, it would have been found not only by us but by England and Wales and every other common-law jurisdiction, such as New Zealand, Australia and Canada. However, they have not found it. Everybody is dealing with and working through the issue, and everybody understands that, despite our best efforts, there will be a backlog that will have to be worked through.

There is no easy way for me to say this, but there is a backlog that will be difficult for the accused, witnesses and victims of crime. As I have already mentioned in my answer to Liam Kerr’s question, we will explore radical and bold solutions, whether that is setting up temporary courts to work through the backlog or asking retired judges and, indeed, sheriffs to come back on to the bench, for example. We will explore every possible avenue. However, if Gordon Lindhurst expects me to have a magic solution that no other country has managed to find which will give him a reassurance that the backlog will not be difficult to get through, I am afraid that I simply do not have that.

These are serious matters that are being given serious consideration across the legal profession, victims organisations and the Government, and I can give an assurance that there is not a day that goes by in which I am not in discussions about addressing that backlog.

The cabinet secretary will know that the local delivery of justice is important for victims and witnesses and that it is also a practical consideration. He talked about the possibility of renting commercial premises for temporary courts to help to clear the backlog. I appreciate that this is a difficult matter, but can he indicate when we might see jury trials resuming in Dunfermline and Kirkcaldy?

Again, that is work that is being taken forward by Lady Dorrian as part of the work of the working group on resuming jury trials. As Claire Baker will know, the plan is to resume jury trials in the High Court in Glasgow and Edinburgh first and foremost in July. There are different solutions for each of them. Some victims of crime from the region that Claire Baker represents may well be serviced by that. However, I have to be frank with members: a very small number of cases will begin in the initial phase, which is, of course, understandable. In the first instance, they will involve a small number of witnesses.

That work will continue. I can give an absolute assurance to Claire Baker, as I have to Gordon Lindhurst, that nobody wants to elongate the delay any further than it has to be elongated, and nobody wants to have victims in particular or the accused waiting any longer than they have to for a trial date. We will continue to work on this at the quickest pace that we can.

My question is about virtual visits. Given the importance of family contact, what is being done to ensure that no families are excluded because of a lack of access to appropriate technology? I request that families in Ayrshire are able to access the service at Kilmarnock prison as soon as possible, please.

Ruth Maguire will be aware that Kilmarnock prison is one of two private prisons in Scotland. HMP Kilmarnock has decided not to introduce mobile phones; instead, it will develop its own in-cell telephony option, which will provide similar functionality in enabling contact with family and friends.

Ruth Maguire asked about virtual visits. HMP Kilmarnock’s bookings are scheduled to open on Monday 22 June, and visits will start on Thursday 25 June. I will ensure that the details of that are sent to Ruth Maguire.

That concludes questions on the justice sector response, recovery and renewal. I apologise to Joan McAlpine and Alasdair Allan for being unable to accommodate their questions.