Coronavirus (COVID-19) update: Cabinet Secretary for Justice statement 21 April 2020

Presiding Officer, let me begin by expressing my gratitude to justice agencies and front-line professionals across the country for their response to the COVID-19 outbreak.

Scotland’s justice system is responding well.  Justice agencies face significant challenges in the context of COVID-19 – in adapting how they work, in maintaining where at all possible, access to justice, in continuing to protect our communities, protecting vulnerable individuals and those of course in our care, whilst also ensuring compliance with essential public health advice and regulations.

In these unprecedented times administrations right across the UK and internationally are having to take very difficult decisions to boost and strengthen the justice response to help combat, curtail, and control the spread of the virus. 

I will now set out briefly the Scottish Government’s Justice response.

Police officers and staff are on the frontline of our response to this public health crisis. I pay tribute to the crucial job they are doing, in protecting the NHS and other services, and in keeping us safe.

The approach taken by Police Scotland when interacting with the public is very welcome. It makes sense to engage, to educate, to encourage, and then, only as a last resort, to use enforcement action where necessary. It is in line with our valued traditions of policing with the consent of the public.

Only a fraction of these interactions are leading to warnings or fines. Compliance with the regulations remains very high.

I thank the people of Scotland for their common sense and recognition of our shared responsibility during the crisis.

I welcome the Chief Constable’s decision to invite John Scott QC to review Police Scotland’s use of the new emergency powers. An independent review by a highly-regarded expert in human rights is a welcome check and balance, complementing the ongoing role of the Inspectorate. 

We have heard a lot, quite rightly, of the need for the police, as with many of our key front-line workers, to have access to PPE (Personal Protective Equipment).  I take this issue very seriously.

The level of PPE that police officers and police staff must use is first and foremost a matter for the Chief Constable of Police Scotland given his statutory responsibility for the health and safety of his officers and staff.

PPE will not be needed for routine policing activities where there are no suspected or confirmed cases of COVID-19.  However, if there is a requirement for police support at an incident of suspected or confirmed COVID-19, trained officers in full PPE will be asked to attend.

Police Scotland’s guidance on the use of PPE is proportionate and based on risk assessments in each circumstance, and on advice and guidance from Health Protection Scotland.

Training for officers has now been increased across the country with specific roles being prioritised.  By Friday last week, around 5,000 front line police officers had been trained in the use of PPE and had a mask fitted.  Over 7,000 kits had been issued.

The Scottish Fire and Rescue Service, who work closely with other first responders across our communities, are also doing a fantastic job. With increased time at home, I urge the public to be mindful of fire safety in their homes, and to follow SFRS guidance.

During this time we have all been asked to stay at home but unfortunately for many people, home is not a safe haven.

Those suffering domestic abuse, including coercive and controlling behaviours, can feel isolated, they can feel vulnerable, unheard and unseen. 

Support is available 24/7 on Scotland’s Domestic Abuse Helpline on 0800 027 1234.  Childline is also available to support children and young people. 

Police Scotland’s response to domestic abuse remains unchanged. Officers will continue to respond to reports and endeavour to prevent harm. 

The Lord Advocate confirmed that domestic abuse cases will continue to be prosecuted rigorously and fairly; and bail conditions and non-harassment orders are continuing to be enforced.

We have developed a COVID-19 domestic abuse emergency response to maintain delivery of vital services.

We have provided support to third sector organisations, including an additional £1.5 million provided to Scottish Women’s Aid and Rape Crisis Scotland.

We have increased the Victim’s fund to £100,000 – available through Victim Support Scotland to and help meet immediate needs of victims.

We re-launched Scotland’s Domestic Abuse campaign that makes clear if you are experiencing domestic abuse help is available and you are not alone.

The courts spotlight has recently shone on how criminal business is handled, but I recognise courts deal with an extensive range of civil business. 

Much of this is rightly regarded as essential. A wide range of family law cases, guardianship orders and commissary business to give but three examples. 

Maintaining the safety of litigants, judiciary, court staff and the wider public must always be the absolute priority. 

The emergency legislation passed by this Parliament to facilitate court business has been of great assistance to the courts in progressing business safely. However, it is inevitable that many aspects of court business are disrupted.  I am grateful for the way in which the Courts are engaging with the legal profession and others to identify and prioritise those areas of work that can continue.

Difficult decisions have also had to be taken in the management of criminal business.  This includes the decision by the Lord President and Scottish Courts and Tribunals Service (SCTS) – in light of the social distancing advice – to suspend all jury trials in the immediate term.

Let me be clear, the Scottish Government is absolutely committed to the principle of Trial by Jury.

Last week we published a discussion paper setting out a number of potential options, some raised by members, and confirmed that Judge-only trials are not the favoured option of this Government.

I was pleased a number of MSPs were able to join the first virtual roundtable to discuss the issues our system is facing and best way forward.

I hosted sectoral discussions with the legal sector, third sector and human rights organisations among others.  The Chief Executive of the SCTS and Crown Agent have shared latest data on what the numbers of cases we are facing that can’t progress and the likely backlog.

The SCTS estimate in our paper a potential backlog of 1,600 serious cases awaiting trial by August. We must not lose sight of the impact that backlogs and delays will have on real people, including victims, vulnerable witnesses and those accused of crime held on remand. 

Turning now to options within the paper.

Based on the discussions so far, we will focus on a number of the options, including the potential for:

• Smaller numbers of jurors.
• Social distancing measures within existing court facilities
• Measures to enable faster progression of jury trials to address the backlog following easing of public health restrictions; and
• Potentially adjusting the sentencing powers of Sheriff Courts

I’m aware that not everyone will be supportive of all these options. Representatives from third sector spoke powerfully about concerns of any options that still require juries, due to the possibility that in these times there may be a greater likelihood of jurors falling ill or self-isolating, and of trials starting and not being able to proceed – causing extreme distress for victims.  I’m sure every member has also received similar representations.

Many challenges remain, but I am heartened by the progress to date. We will continue to work to seek to mitigate and reduce the potential backlog of cases.  However, we need to be realistic that the impact on the courts will continue for a significant period even after the current health restrictions begin to be lifted. 

Coming now to the most significant aspect of my update today; the prison service has taken comprehensive action to ensure social distancing and public health advice are met within our prisons.

Some of these measures, set out in recent amendments to Prison Rules, were necessary to ensure operational stability and preserve safety and wellbeing across prisons.

Let me take this opportunity to thank prison officers & staff for the incredible job they have done to maintain safety and order in our prisons during these challenging times.

I’d also like to thank the range of social workers, public sector staff and third sector groups that have continued to support people in prison and after their release.

As of last night, there are currently 89 people in custody across 12 sites isolated as per protocols and they are being monitored accordingly.

The monitoring of conditions in our prisons continues to be very important. I can confirm Her Majesty’s Chief Inspector of Prisons for Scotland will be implementing a remote monitoring framework shortly.

Measures to mitigate the impact of social isolation for those in the care of the prison service have been introduced, such as in-cell support material developed for those in SPS care by psychologists and those experts in mental health and wellbeing.

The suspension of prison visits in place since 24 March will be being felt by prisoners and families alike.  I announced on Friday our intention to provide mobile phones to those in custody in order to allow them to maintain vital family contact, while putting in place robust restrictions to prevent misuse.

There are currently still some security, technical and legal issues to be resolved before phones can be rolled out, but this is a priority for the SPS and the Government.

We recently debated the Coronavirus (Scotland) Act 2020 and provisions on prisoner release secured unanimous support. 

Work continues within SPS and justice social work to carefully assess prisoners to decide which of them can be permitted to spend the last section of their sentence on a tag on Home Detention Curfew. 

The slow-down in court business has also reduced the numbers of people in prison.  However, we cannot underestimate the challenges that our prisons face in protecting and managing the prison population in the context of COVID-19.

There are still a significant number of prison staff who cannot be in work, either due to ill-health, a requirement to isolate or as a result of needing to take care of children and family members. Taken together with the changes to prison regimes, these factors make prisons an especially challenging environment at present for prisoners, prison officers, NHS staff and others who work in our prisons.

We have also had recent confirmation of a further three weeks of lockdown so we need to make arrangements now with a view to the continued running of prisons over the following weeks.

I can advise the Parliament today that after careful consideration and in agreement with the views of the Chief Executive of the Scottish Prison Service, I will be asking the SPS to consider the release of a limited number of short-sentenced prisoners towards the end of their time in custody. I believe this is a necessary and proportionate response to the current situation in our prisons.

This is in the interests of maintaining security and good order in our prisons and vitally also in safeguarding the health, safety and welfare of prisoners and those working in our prisons. This action will help give the SPS sufficient capacity, including increased single-cell occupancy, to continue to maintain a safe custodial environment. 

By the end of this month we will lay regulations to make use of the powers which Parliament agreed and release will begin at that point.

In advance of regulations being laid, I can now advise Members of some of the detail of the arrangements. 

Only those prisoners serving sentences of 18 months or less, who are in the last three months of their time in custody will be placed under consideration for possible release.  These are short-term prisoners already due to be released over the next three months as their time in custody ends. They would typically be released without any further requirement for supervision in the community.  The release process is scheduled to begin at the end of this month, and to run for four weeks. 

The Act itself already rules out any early release for certain types of prisoner – such as those sentenced for sexual or terrorism offences, and those sentenced to supervision orders after their release.

The regulations for this process will rule out the release of further categories of prisoner – including those serving sentences for domestic abuse offences, those with non-harassment orders or those convicted of certain COVID-19-related offences.

Under the Act, Prison Governors will have the power to veto any individual from early release, where there is evidence that they would present an immediate risk to an identified individual.  The individual at risk may a specific person or a person belonging to specific group.

This process will consider around 450 prisoners for release – who will all have been approaching their scheduled release date.  The review and veto process will inevitably reduce the eventual number that are released.

We will work with a range of public and third sector services to enable prison leavers to access the housing, healthcare, benefits and other support services.

Work is underway to consider the medical care and supervision of any prisoners involved in this process who have COVID-19 symptoms or other medical conditions, to ensure they are managed appropriately.

Changes are also being made to the Victim Notification Scheme so that that victims and their families who have signed up to receive updates from the VNS will be informed if an individual they are registered in connection with will be released under these arrangements. 

I understand that this will a difficult decision for some, including victims of crime. This in no way diminishes the harm they have suffered but in these exceptional and unprecedented times, we must take difficult decisions that best reduce the risk of further harm.

I am mindful that this decision will not be universally popular, however, let me be clear, it is my judgement that it is the right course of action for the safety of those who work in our prisons as well as for those in our care.

It is at times like these that we must act in recognition of our obligations to all those in our society including those that live and work in our prisons and I believe this action is necessary, is proportionate and is the right action for a responsible government to take.

I trust that members across the Chamber will support this difficult but necessary decision. I will of course keep channels of dialogue open with colleagues across the chamber to listen to their concerns or indeed suggestions.

In conclusion, Presiding Officer, I invite Members to also express their appreciation for those who support and work within the justice system as we continue to deal with the profound impact of this public health emergency. And to work with us to take necessary actions to assist justice agencies and staff in fulfilling their roles.

I commit that the Government will continue to engage with others to provide support and capabilities to maintain public confidence, keep people safe, protect lives, to instil and maintain ongoing confidence in Scotland’s justice system.