Meeting of the Parliament

Meeting date: Tuesday, March 24, 2020

Official Report 893KB pdf

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Covid-19 (Justice)

The next item of business are statements by the Lord Advocate and Humza Yousaf, Cabinet Secretary for Justice, on justice and Covid-19. The Lord Advocate and the cabinet secretary will take questions at the end of their statements, so there should be no interventions or interruptions.

In the past 10 days, all of us have had to respond to one overriding imperative: to follow the Government’s public health advice which, as the First Minister has just reminded us, is designed to save lives. That required an immediate response from the justice system. Last Tuesday, the Lord President announced that no new jury trials would commence until further notice. He was right to take that step, which was entirely consistent with the public health advice.

Since Thursday, the Crown, in co-operation with the court, has been taking steps to adjourn most summary trials—trials that are dealt with by a sheriff or justice of the peace without a jury—until June. The only business going through the criminal court at this time will be essential custody business.

Those steps will have a profound impact. They involve putting on hold almost all criminal trials, but they were, and are, necessary steps, which will help all of us—staff working in the justice system and citizens alike—to comply with the public health imperatives.

As we take those steps to address the urgent public health advice, I am committed to maintaining the rule of law and the fair administration of justice; to respecting the rights of the defence; and to fulfilling our obligations under the European convention on human rights.

In the steps that I, as head of the system of prosecution, am taking in response to the current situation, my watchword is, and will continue to be, the safety of the public. Last week, the chief constable and I set out our shared commitment to keeping people safe from harm and to dealing effectively with those who do not comply with the law.

The police will continue to respond to crime and to report cases to the procurator fiscal. Where individual or public safety justifies that course, accused persons will, in accordance with the guidelines that I issued on Friday, continue to be taken into custody, and prosecutors will continue to take action in accordance with the Scottish prosecution code. Where there is sufficient evidence and the public interest requires a prosecution, prosecutions will be initiated.

We will seek where we can to resolve and progress cases with the minimum need for appearance at court. Where a hearing requires to take place and the accused is in custody, the accused will, where possible, attend by videolink. Where cases cannot be resolved, and the case is one of the very small number of summary cases where a trial can, and should, take place, we will keep the number of witnesses whom we require to attend to the minimum that is necessary.

Where a trial cannot take place—I have to be frank that that will be the great majority of cases that cannot otherwise be resolved—we will have no option but to defer that trial until the public health guidance allows business to resume, even if that means that the accused has to remain in custody meantime, if public safety demands it. We will need where necessary to seek extensions of the statutory time limits that apply.

Let me turn from the prosecution of crime to add that adjustments are also being made at this time to the system for the investigation of deaths, with a view to relieving pressures on the medical profession.

I thank all those who are involved in delivering justice across Scotland for their response over the past 10 days and—in anticipation—for their continued support during what will undoubtedly be a challenging period ahead. I express my appreciation of the staff of the Crown Office and Procurator Fiscal Service, who have been working enormously hard to do what has been required of them. I also publicly thank the wider legal profession for its understanding and support in relation to necessary measures that will have a significant effect on many practitioners.

The administration of justice is a collective endeavour in which all those involved have an essential part to play and in which mutual respect for our distinctive functions goes along with our shared responsibility to deliver justice to the community that we serve. Never more so than at this extraordinary time will we need that sense of collective endeavour in the service of justice while doing what we all must do collectively to minimise the loss of life.

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The word “unprecedented” has been used many times over the past few weeks but, frankly, it simply does not do justice to the times that we find ourselves in. Our justice agencies, front-line professionals and other staff deal with emergency situations and unexpected events, day in, day out. However, even for them, the challenges that are raised by the Covid-19 outbreak have never been seen before. I cannot praise enough the work that has been undertaken by those agencies and individual staff in both planning for and responding to the Covid-19 outbreak.

I will set out this afternoon the approach that we in the Government, along with our key justice partners, are adopting, broadly under the three headings of maintaining public confidence and safety; supporting and responding to the health advice; and, finally, taking necessary but difficult decisions.

On maintaining public confidence and safety, which is the first of those themes, we heard the Lord Advocate set out his and the chief constable’s priorities. He emphasised the continuing commitment to keeping people safe from harm and dealing effectively with those who break the law. Let me reassure the chamber and the people of Scotland that, alongside the essential work of our health professionals, Police Scotland, the Scottish Fire and Rescue Service and our wider partners will continue their work to protect the public and communities in their homes.

While our justice agencies continue to fulfil their essential role, it is important that they, like all of us, follow the health advice to help contain and reduce the spread of the Covid-19 virus. That is not easy, as many of our justice interactions take place in public and require people to come together in particular locations. However, it is vital that we do not place at inappropriate risk those who work for our justice agencies, undermining the impact of the public health advice.

Last week, following agreement between the Lord President and the Lord Advocate, the Scottish Courts and Tribunals Service announced a programme of immediate changes to the operation of the criminal courts, some of which we just heard from the Lord Advocate. A range of criminal or civil business will proceed administratively, through correspondence or by telephone conference. We will use digital means where possible to take cases forward. It is clear, as the Lord Advocate has set out, that the measures that have been brought forward by the Scottish Courts and Tribunals Service will impact on court business.

The Minister for Community Safety is considering the impact of those changes, including to court programmes, for solicitors and advocates, and has been working proactively with the Scottish Legal Aid Board—I thank the board for thus far showing a great degree of flexibility in the support that it has already announced. Further measures are being proactively explored.

We know that this will be an anxious time for victims. Generally on the approach to a potential court proceeding, anxiety can follow for victims of crime, and that is even more so in the circumstances in which we find ourselves. The Government has been proactive in speaking to organisations that help to support victims, such as Victim Support Scotland, Rape Crisis Scotland and Scottish Women’s Aid. We are working closely with them.

Our prison service has in place robust contingency plans for dealing with emergency situations. The Scottish Prison Service’s national pandemic plan has been implemented and is being overseen by its national coronavirus response group. Local governors in charge are overseeing the delivery of their own plans, which are tailored to the needs of individual establishments and informed by the latest medical advice.

As in the community, effective communication is vital in preventing the further spread of the virus. The SPS has communicated with every single prisoner telling them how to avoid infection and advising how the outbreak will impact on their daily routine. Those people in custody who are displaying any of the symptoms of Covid-19 are self-isolating, as are prison staff. The SPS has established clinically led protocols for testing, and I have been assured that our prisons have secured sufficient access to personal protective equipment for staff, consistent with those protocols.

During this fast-moving situation, the Prison Service has considered all the necessary steps that need to be taken to reduce the risk of the virus spreading. Effective from today, the Prison Service has suspended visits to our prisons. That decision was not taken lightly with our Prison Service, and it was communicated to all staff, prisoners and partners yesterday evening.

We recognise that maintaining family contact, perhaps more so now than ever, is crucial during these challenging times. As a matter of urgency, the SPS is working on other options with which we can support and maintain family relationships, including establishing a dedicated family helpline, and we will of course look at all digital and telecommunication solutions. More difficult operational decisions may lie ahead and we are working urgently with the SPS and other partners to help to mitigate, where at all possible, the impact of those changes. I express my personal thanks to front-line prison officers and national health service staff and others who work in our prisons for their efforts in what is always a challenging and complex environment, but even more so in the face of the Covid-19 outbreak.

With regard to taking difficult decisions, part of what makes the current situation so unsettling and difficult is the escalating nature and scale of the challenge. For many people, there is also an extreme sense of uncertainty about how long the disruption to normal life may last. Part of the function of our justice system is to provide clarity and stability for individuals and communities, especially in times of uncertainty. That is especially important when the capacity of our front-line services will themselves be impacted by the measures that have been introduced to prevent the spread of the Covid-19 virus.

As members are aware, and as we discussed in the previous item of business, the United Kingdom Government has published an emergency bill to provide additional powers to protect lives and respond effectively to the Covid-19 outbreak. Following dialogue between the four UK Administrations and joint advice from the four chief medical officers, many of the provisions apply on a UK-wide basis. The legislative consent motion for those provisions will of course be considered by members today.

The bill includes powers allowing police in Scotland to support and enforce public health measures, including powers to detain people and put them in appropriate isolation facilities if necessary to protect public health. The bill also gives the Scottish ministers the powers to restrict or prohibit events or gatherings where the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health.

I hope that good citizenship and the continued co-operation of event organisers will mean that we will have little cause to invoke such powers. Crucially, there are sufficient safeguards to ensure that any requirements or restrictions placed on individuals through those powers must be necessary and proportionate. The measures will also be time limited.

Thankfully, the UK bill is likely to be just the first tranche of measures to enable our key services to change and respond in an effective manner to deal with the outbreak.

The bill also gives the Scottish ministers the power to make public health regulations to enforce the measures that the First Minister announced last night. Breaching the restrictions will be a criminal offence that could lead to a fine or other enforcement actions.

These measures are unprecedented, but we must take this action now to save lives. We do not do so lightly. We do not want to use the new powers, and we are working on the basis that most people will act in compliance with what we have set out.

Over recent days, we have been engaging closely with key justice organisations and other partners to consider what further legislative measures might be required that would be specific to devolved services in Scotland. Further information about such measures will be shared in the future.

The measures will be limited to ones that we in Government and our partners consider absolutely necessary in order to respond effectively and promptly to the particular exceptional circumstances of the outbreak. Our clear intention is that the measures will be subject to appropriate scrutiny by the Parliament and will be time limited. However, let me be clear that all measures that are necessary to keep our citizens safe—be they in or outwith our prisons—will have to be considered. Underpinning our approach will be our continuing absolute commitment to the rule of law and to protecting individuals and our communities from harm.

I am confident that members will join me in expressing our continuing thanks for those who work in our justice system. At this time of significant and unprecedented challenge, we will continue to work with them to provide the support and capability that they need to protect lives and, crucially, to maintain confidence in Scotland’s justice system.

The Lord Advocate and the cabinet secretary will take questions on the issues that were raised in their statements.

Members will shave noticed that the statements went over time. I cannot allow any more than 20 minutes for questions. We are oversubscribed and time is very tight, so brevity will be required for the sake of fairness.

I call Liam Kerr. Please indicate to whom you wish to address your question.

Thank you, Presiding Officer. I thank both the cabinet secretary and the Lord Advocate for advance sight of their statements, and especially for the approach that they and their justice teams are taking, which I think will be very reassuring.

Time is unexpectedly restricted, so I will move on to my three questions—two for the cabinet secretary and one for the Lord Advocate.

Prisons are undoubtedly a difficult environment in which to stop the spread of the virus, and I understand that protocols are in place. First, what contingency has the cabinet secretary considered in the event of a critical number of staff being absent? What more is being done, and can be done, to limit the spread, especially in prisons such as Barlinnie, where prisoners are in double cells?

Secondly, the Lord Advocate has said that he will seek extension of statutory time limits in relation to remand. I understand the intention, but I wonder: how long can he do that, and are alternatives that he is prepared to tell us about being explored?

Finally, with regard to our police, is the cabinet secretary fully satisfied that our brave officers who are charged with enforcing the lockdown have enough PPE to keep them safe? Can he reassure the public that there are enough officers to enforce the lockdown?

I thank Liam Kerr also for his approach, which I have appreciated during our very constructive dialogue over the past few weeks.

Liam Kerr is right that prisons are a very difficult environment. The Scottish Prison Service is following the public health advice to a T, but I will be honest and frank and say that every option must be explored. If, for example, staff absences in the SPS continue to increase because of public health advice, we will have to consider every possible measure.

Let me be clear: just as the UK Government has considered releasing prisoners and increasing the number who are on home detention curfew, we in Scotland cannot rule out releasing prisoners if doing so is in the best interests of keeping our establishments and those who work in them safe. That measure will be actively explored.

With respect to the questions about the police, I talked this morning to the chief constable. I understand that an order of PPE is due to come in, which I hope will reassure Liam Kerr about the safety of officers. On officer numbers, he will note that an appeal has gone out to special constables and to their employers, asking them to free up their time to work more with the police. There are also about 350 recruits to Police Scotland starting at Tulliallan as we speak.

I am grateful for the question. In the current legal framework within which we operate, we cannot bring cases to trial in the solemn courts, or in most summary cases. It will therefore be necessary for us to extend time limits.

One of the tensions and challenges that we will face will be the need for individuals to be detained on remand where public safety requires it. The guidelines that I have issued to the police focus decisions about custody firmly on the question of public safety, so that individuals will be taken into custody where public safety demands it, but not unnecessarily.

Beyond that, a range of measures are being considered with the Government, but at this stage it is perhaps not for me to outline what they are.

I thank the Lord Advocate and the cabinet secretary for their statements. Due to the Covid-19 outbreak, we live in unprecedented times, so it is important that we work together. However, Parliament also exists as an essential platform for members of Parliament to bring issues to Government ministers and the Lord Advocate, so that the response is as comprehensive as possible.

I have two questions for the Cabinet Secretary for Justice. First, prisons are a sensitive area. There have been reports about an incident at Addiewell prison yesterday, which underlines the importance of staff having appropriate PPE. It has also been drawn to my attention that staff in the prisoner escort service do not have appropriate equipment at the moment. When will that be supplied and will the equipment be up to date?

Secondly, what action will be taken to ensure that governance arrangements are in place so that local police decisions fit in with the priority of the local community in relation to the on-going outbreak?

I take James Kelly’s point that this is a chance for us to inform, but also to be scrutinised, and I welcome that approach. He is right that there was an incident at Addiewell. The SPS briefed me regularly throughout the day on it, and it was resolved last night. That is just one example of the difficult and challenging circumstances that we find in prisons across the country at any time, let alone in these most challenging times.

I am not saying that it is specifically related to the Addiewell incident, but there has been
anxiety among people that visits were continuing, so the decision to suspend visits is correct, in line with public health guidance. However, if all family contact was cut and there was no family contact by means of digital or telecommunications, that would have an adverse reaction, too, so the SPS is working urgently and proactively to see how we can continue family contact.

I will look into the issue of PPE in relation to the contract that we have with GEOAmey to provide prisoner escort services. Lack of PPE has not been raised with me as a concern, but I will speak to James Kelly offline to see whether he has more information. After this meeting, I will speak to my officials about the GEOAmey contract and PPE, because prisoner escort staff do an important job.

I will leave local policing to the chief constable, as an operational matter, but I know that he greatly values the relationship that divisional commanders have with local authorities. Of course, James Kelly is right to allude to the fact that the response to the outbreak might differ in different geographies and parts of the country. The chief constable is absolutely clear that his commitment is to making sure that people are kept safe throughout the pandemic, and that that might involve dealing with issues that are directly related to the pandemic, but also with issues that are substantially important to communities but are unrelated to the pandemic.

We move now to open questions. I ask members who wish to ask questions to press their request-to-speak buttons. I remind members of the need for brevity, and for them to direct their questions appropriately.

I thank the Lord Advocate and the cabinet secretary. Not for the first time, I commend the important role that cleaning staff play in our public services. That role could not be more important as we face the current situation.

Trade unions have claimed that a number of private companies, including Serco and Sodexo, are refusing to pay cleaners who are self-isolating or who cannot attend work because of childcare commitments. Can the cabinet secretary say what discussions he has had with those companies regarding staff at private prisons, and will he confirm that all staff at those sites, and across the Scottish Prison Service, will be paid and tested?

I do not think that that question is particularly relevant to the statement. However, the cabinet secretary may respond, if he wishes to do so.

I will give a very quick response, because the question relates to our private prisons, in particular.

I have not been made aware of that situation in respect of cleaners. If that is the case, I will be deeply disappointed, because it is not the message that has come from this Government or the UK Government. I will follow up the issue particularly, as John Finnie mentioned, in relation to private prisons.

I am concerned about a potential rise in domestic abuse as we endure this period of lockdown. How can we ensure that there is support for potential victims and that there are enough escape routes, especially if a person is confined to their home? How do we ensure that people are not being left to their own devices?

I look to the Lord Advocate, who can ensure that I am right on this. Domestic abuse cases will not be deprioritised; the Scottish Courts and Tribunals Service has also said that. I hope that that reassures people who are fearful from having lived in an abusive relationship and are waiting for their case to come to court.

We are very aware of the matter: it has been raised directly with me by organisations including Victim Support Scotland and Scottish Women’s Aid. Police Scotland is also aware of the situation, and is liaising with those organisations and using its local intelligence. The Domestic Abuse (Scotland) Act 2018 came into force only after the vast majority of police officers had had enhanced domestic abuse training.

I give Willie Rennie as much assurance as I can. We in Government are aware of the issue, as are the police. The courts will continue to prioritise domestic abuse cases.

What is the cabinet secretary’s response to Police Scotland’s call for employers to consider making paid leave available to members of staff who volunteer as special constables in order to allow them to support the national effort to tackle the coronavirus?

In short, we support that call. We know the impact that Covid-19 is having on staff across the justice sector and more widely, and Police Scotland is not immune to that. It has put out a call for the employers of special constables to give them paid leave so that they can do more work as special constables, which will help to bolster our police force. I add my weight to that call to employers. I ask them to be sensitive to it and heed it, and I hope that it will help us all in the national endeavour to combat the virus.

I address my question to the Lord Advocate. Will prosecutors be required to attend court for the few trials that are proceeding? If so, what steps have been taken to protect them?

In the past week, the prosecution service has taken steps to maximise working remotely and working from home. In the management of court business, where cases can be progressed without anyone appearing in court, they will be progressed in that way. It is hoped that judicial case management and proactive engagement between the Crown and the defence will maximise the potential for progressing cases in that way.

In the very small number of trials that will continue, there will be no option but for those who are required to attend to be at court. Local arrangements should seek to ensure that there is social distancing as far as possible.

The starting point is the steps that have been taken to minimise the need for people to attend court at this time. If court business has to take place, local arrangements will be put in place to respect the social distancing requirements.

My question is for the Cabinet Secretary for Justice. In relation to the maintenance of family contact, can the cabinet secretary give an approximate timescale for when new measures will be available, such as a helpline?

All that I can say to Rona Mackay at this stage is that the decision was taken last night and I will look to make sure that we have solutions in place in days, as opposed to weeks.

Some measures can already be deployed. We are actively looking at a range of measures, and the helpline is one of them. We know that technology exists elsewhere in relation to mobile phones that have restricted call lists, and we are looking at other measures such as videoconferencing and so on. We are looking at a suite of packages to retain family contact.

Equally, of course, we have to understand the environment that we are working in, so appropriate risk assessment must be in place. However, I give Rona Mackay and other members in the chamber an absolute assurance that that is being done as a matter of urgency.

The Cabinet Secretary for Justice acknowledged that the new restrictions and their enforcement will place real pressures on the capacity and availability of police officers and staff. However, just this afternoon, the Unison Police Scotland staff branch stated that key staff roles have yet to be identified by the police. Will the cabinet secretary say what communication he has had with the chief constable about that? More generally, what steps are being taken to maximise the availability of police officers and staff at this time?

Daniel Johnson raises an important point on police staff. To give a direct answer to his question, I note that I raised that very issue yesterday afternoon with the chief constable. I mentioned to him that I had also heard that—not directly from the union, which I tend to meet regularly, but from a number of police staff who had been in touch directly. He was surprised that that was coming in, and he absolutely gave me a reassurance that he would turn his urgent attention to the staffing issue.

The chief constable’s communication to me was very clearly that the Government’s guidelines are being followed, so anybody who is able to work at home should be working at home. We recognise that, for some staff, that will simply not be possible, but the chief constable is of the opinion that, where it is possible, he expects it to happen. I raised the matter with the chief constable yesterday afternoon and I am sure that he is working hard on the matter.

Some officers who have contacted me and other MSPs are worried that vulnerable members of the police force are being encouraged to continue to work if they are symptom free. Will the cabinet secretary clarify what advice senior staff should be giving to vulnerable and at-risk members of the police force?

The advice from Government has been very clear in relation to who should be working, but also who should be working at home. The advice can be found on our NHS inform website, but also in myriad other places. It covers people who are deemed to be at high risk and the precautions that should be taken for them. On the back of both Daniel Johnson’s question and Sandra White’s question, I will again ensure that the matter is raised directly with Police Scotland.

My question is for the justice secretary. Will the Scottish Government provide guidance to funeral operators, and particularly community-organised funeral operators? Muslim and Jewish burials are done with a ritual of washing of the body before the burial takes place. Will there be guidance on what should happen with Covid-19 patients in those circumstances? If that is to be done by those community organisations, will the Government help them to acquire PPE so that they can keep themselves safe at this really difficult time?

Again, I am not sure that that is entirely relevant to the issues that were raised in Humza Yousaf’s statement, but if he would like to answer, he can.

I am happy to answer the question. It perhaps does not fall within the remit of the justice secretary, but I work closely with my colleagues in public health, and Joe FitzPatrick in particular. In addition, Anas Sarwar will understand, as I do, that on matters relating to the Muslim community, he and I will often be approached regardless of what our official remits are or are not.

To answer the question directly, I note that guidance has been provided to Glasgow central mosque, which does the vast majority of such funerals in the west of Scotland, but I have been told that it has also been passed to the Muslim Council of Scotland, which will disseminate it across mosques. In relation to the Jewish community, I will have to look that up, but I will ensure that advice is sent to all communities on the specific rituals that they have in dealing with the deceased.

The point about PPE has not yet been raised with me by the likes of Glasgow central mosque. People there are never shy to be on the phone to me if there is a matter of concern, so I will pick up the phone to them. If the Government can assist through the work that we are doing in relation to PPE, we will try to be as helpful as we can be in that regard.

I ask the cabinet secretary for reassurance about the safety of the staff and prisoners at Bowhouse prison, near Kilmarnock, given the positive confirmation last week of two cases of the coronavirus among the inmates.

I give an assurance that, when it comes to our policies, regardless of whether the prison is in the public sector or is run by a private company, the strict public health guidelines and clinical protocols are being followed. In relation to the two positive cases at HMP Kilmarnock, I can confirm that the correct protocols were followed.

However, the matter does give me cause for concern. We know that infections and viruses can spread rapidly in a prison setting, and therefore, as I intimated in my response to Liam Kerr’s question, we will have to explore a range of measures. We have the powers to enact some of those now, but we might have to think about the matters over which we do not have powers and whether we will have to return to Parliament in that regard.

The cancellation of jury trials will have an impact on those who are the victims of rape and sexual assault and, as has already been raised, there are serious concerns about a potential increase in domestic violence. Will the Government keep a close watch on the situation and provide whatever resource is necessary to protect and support women and children, some of whom are in the midst of very stressful and upsetting court cases?

I will comment first, and then the cabinet secretary may wish to add his response. I am acutely conscious of the matters that Claire Baker refers to. Specifically in relation to domestic abuse, I can elaborate on what the cabinet secretary said a few moments ago. The rigorous approach to domestic abuse that is set out in the protocol between the Crown and the police on domestic abuse will continue to apply. Where there is a substantial risk of harm to an individual, the police will continue to take the accused into custody. The guidelines that I mentioned earlier enjoin the police to be mindful of the particular issues that arise in the context of domestic abuse. Indeed, if an accused is not taken into custody, the police are enjoined to consider the use of conditions to protect public and individual safety.

Of course, courts will continue to make decisions about remanding accused in custody—it is important that we emphasise that. Ultimately, in this difficult situation, decisions on remand will be for courts. Where an accused is not remanded, the Crown will seek appropriate conditions of bail to protect public and individual safety.

In relation to jury trials generally, the current legal framework does not allow us to bring a solemn case to trial other than before a jury. Accordingly, at this time, there is no option but to defer those trials unless and until the public health guidance allows us safely to recommence the empanelling of juries.

The cabinet secretary is desperate to add something. Please be quick.

I was trying to indicate the opposite, Presiding Officer. I simply say to Claire Baker that we will continue our engagement with victims’ organisations and if there is anything further that the Government can do in this regard—we understand that domestic abuse could be more prevalent during the outbreak—we will do it.

That concludes questions on the justice statement in relation to Covid-19. I apologise to those members who would have liked to take part but whom I could not reach.