Coronavirus (COVID-19) recovery - justice system, health and public services reform: consultation

Chapter 4: Responding to the impact of Covid in the justice system

Background

136. The justice system measures in this Chapter originate in the First and Second Scottish Acts and expire in March 2022. The Scottish Government currently proposes to look at further extending them to September 2022 via secondary legislation, subject to the agreement of the Scottish Parliament. In the particular case of the provisions in this Chapter, the Government is also looking at the evidence for extending provisions beyond September 2022, but not making them permanent, via further primary legislation. This position is based on a recognition that in the interim period evidence might support a view that certain provisions are no longer required and/or that there may be case to consider how these might be adapted and modified at a future date to form part of further legislative changes.

137. Topics within this Chapter are listed in alphabetical order rather than by their position in the First Scottish Act or the Second Scottish Act. No UK Act provisions are within this Chapter.

Rationale for considering extended justice system provisions

138. On 10 June 2021, the Scottish Parliament debated the Scottish Government’s ambition to achieve a faster, fairer, and more effective Justice system for the people of Scotland, building on the progressive Recover, Renew and Transform (RRT) programme in response to the Covid pandemic. The programme aims to recover essential services and transform how the justice sector operates to ensure a resilient and effective system for now and for the future.

139. Work of course also continues on developing a new broader and progressive Justice Strategy for Scotland, building on the achievements over the last five years and the initiatives introduced as part of the Justice recovery programme. The ability to continue recovery from Covid will be potentially dependent on retaining the provisions in this Chapter for a further period of time; and also provides the opportunity to progress wider practical and cultural changes in the system, benefiting all those who come into contact with our Justice sector and helping drive towards a faster, fairer and more effective Justice System for Scotland.

140. During the pandemic significant progress has been made on the operation and expansion of remote jury centres for the High Court and sheriff and jury trials (solemn criminal process). We have seen changes to summary (non-jury) criminal process, in community justice and preventing offending. We have seen the arrival of fully virtual summary trials and virtual custody courts. This work has progressed under the common goal of recovering a viable justice system which is able to respond flexibly to meet the public health challenges of Covid, and deliver a more effective and efficient justice system.

141. There have been many challenges over the last 18 months and lessons learned, especially where operational decisions have come hand in hand with delivering possible benefits to court and tribunal users. Key issues have been court backlogs, the impacts on victims and witnesses, and the impacts for all those accused of offences including those prisoners on remand. Many of the measures which are possible due to the temporary provisions provided for in the First Scottish Act and Second Scottish Act remain crucial to the delivery of the recovery programme and facilitate the desired managed move to a more digitalised justice sector. Continuation of many of these provisions would lend themselves well to a sustained progressive response to the pandemic which embraces the opportunity that technology provides whilst safeguarding the key principles of our justice system for users. In that context, operational decisions will always be considered alongside the impact on users, with appropriate analysis and evaluation.

142. On the assumption that the existing court system has returned to pre-pandemic capacity by March 2022, and subject to the service delivery organisations being able to recruit staff for the additional courts to allow them to start in September 2021, it is envisaged that the backlog of solemn trials will be cleared in 2025. This is of course by no means certain and the summary trial backlog is not expected to be cleared until 2024 and the consequences of this backlog for community services will not begin to reduce until 2027. If more courts could be established, the backlog could be cleared earlier. The use of digital technology to allow procedural steps to be taken electronically and virtual courts to be convened will potentially also facilitate and enhance the ability of the courts to deal with the backlog. Continuing the provisions which impact on community sentencing will also be critical in allowing the backlog of community sentences to be progressed quickly and effectively. Not retaining on a longer term basis key elements of the temporary primary legislation, as it impacts on the criminal justice system, would seriously undermine the progress and ultimate achievement of this ambition.

How extended provisions should work

143. The Scottish Government welcomes views on how further extended provisions would work. In the case of Parts 1 of each of the First and Second Scottish Acts, these initially were to expire on 30 September 2020 but provided a delegated power (regulation making power conferred on the Scottish Ministers) to extend provisions to a later date, with the approval of the Scottish Parliament. Delegated powers were also conferred on Ministers to earlier expire, suspend or revive suspended provisions. How these powers were used was explained in the 9 June 2021 publication: “Coronavirus Acts: seventh report to Scottish Parliament”^[25] and the Policy Memorandum supporting the Bill for the Extension and Expiry Act.

144. The Scottish Government considers that a regime for extending the provisions in this Chapter ought be more flexible than the regime set out in the First and Second Scottish Acts. Where this Chapter proposes longer extension of temporary provisions, it means that changes to the law on the topics below would still only be temporary and there would still be the ability for the Scottish Ministers to expire these provisions earlier than the temporary limit if this should be needed. This is in contrast to what are described in Chapters 2 and 3 as permanent changes. However, there is the option when answering the questions in this chapter to express the view that the provisions should be made permanent – when considering whether to legislate in this way, the Government would require to consider human rights implications. Where respondents have particular views on how longer extension should work for particular proposals, views can be submitted using “free text” boxes under the appropriate question or questions.

Topic J1 – Courts and tribunals: conduct of business by electronic means Courts and tribunals: conduct of business by electronic means

Legislative reference: Part 1 of schedule 4 of the First Scottish Act (legislation.gov.uk) (paragraphs 1, 5 and 6 - excluding paragraph 1A which is within Topic P8 (Courts: intimation, etc. of documents))

145. It is proposed that the provisions around electronic signing and sending of documents in courts and tribunals should be extended beyond March 2022.

146. Those provisions provide:

• that documents which would normally have to be signed in ink can instead be signed electronically;
• that documents which would normally have to be physically delivered can instead be transmitted electronically (for example by email);
• that documents which would normally have to be sent to a party in a case can instead be sent to the person’s solicitor;
• that the head of the Scottish courts (the Lord President of the Court of Session, known as the Lord Justice General as regards the criminal courts) can direct that there should be exceptions to the rules described above so that for some types of document, or in certain cases, electronic signing and sending will not be appropriate and physical documents and signatures should instead be used.

147. The use of written submissions, the digital transmission of documents and the use of electronic signatures have enabled swift process changes that have enabled court services to operate more efficiently.

Question 23:

It is proposed that the provisions for Topic J1 (Courts and tribunals: conduct of business by electronic means) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J1 should be extended beyond March 2022 and made permanent

I think the provisions for Topic J1 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J1 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J1, or the proposal for extension beyond March 2022, please write them below.

Topic J2 – Courts and tribunals: virtual attendance

Legislative reference: Part 1 of schedule 4 of the First Scottish Act (legislation.gov.uk) (paragraphs 2 to 5 and 6 - excluding paragraph 1A which is within Topic P8 (Courts: intimation, etc. of documents))

148. It is proposed that the rules allowing people to attend a court or a tribunal by electronic means (for example, by live video link) should be extended beyond March 2022.

149. Those provisions provide:

• that by default anyone who would normally have to physically attend a court or tribunal (other than a trial) can attend by electronic means, but the court or tribunal has the power to require a person to physically attend in a particular case;
• that by default people who have to physically attend a trial will still have to do so, but the court has the power to allow a person to attend a trial by electronic means in a particular case;
• that where someone is to attend a hearing by electronic means, the court or tribunal will set out how that is to happen in a direction.

150. The Scottish Government supports an extension to ensure that courts and tribunals can continue to function as efficiently as possible in a way which does not impede access to Justice. The proposal is to retain the default position in which requirements for physical attendance at any court or tribunal hearings will not apply, except for trial diets, where the default is that a person will physically attend hearings. The presumption for non-trial diets can be overridden by the court or tribunal, where it considers that the default position would prejudice the fairness of proceedings, or would otherwise be contrary to the interests of justice. A court or tribunal can allow a person to appear by electronic means for a trial diet, provided that doing this would not prejudice the fairness of proceedings or otherwise be contrary to the interests of justice.

151. These provisions have been utilised to good example, most particularly through the remote jury model, and have enabled the justice sector to respond to wider challenges out with their control in order for business to continue and adapt.

152. These provisions have enabled a systemic response to the impact of public health restrictions. The systemic response often represented improvements previously identified as features of a modern criminal justice system and something that should be retained in the immediate term.

Question 24:

It is proposed that the provisions for Topic J2 (Courts and tribunals: virtual attendance) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J2 should be extended beyond March 2022 and made permanent

I think the provisions for Topic J2 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J2 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J2, or the proposal for extension beyond March 2022, please write them below.

Topic J3 – Criminal justice: early release of prisoners

Legislative reference: Part 8 of schedule 4 of the First Scottish Act (legislation.gov.uk)

153. The proposal is to continue to provide Scottish Ministers with the power – where it is considered a necessary and proportionate action to maintain the safe and effective operation of prisons, and to protect the health of prison staff and prisoners – to instruct that the group of prisoners who fall within criteria set out in regulations would be released from prison earlier than their scheduled release date.

154. Covid can have a severe impact on the operation of prisons, given the risk of infection spreading amongst prisoners and staff, and the substantial changes in prison operation that are necessary to deliver daily operations in line with public health guidance. Prisons require more capacity to ensure that prisoners can be quarantined or can self-isolate, as well as ensuring there is enough flexibility to manage any necessary changes safely. There is an increased workload for prison officers to maintain day-to-day operations alongside any action required to manage any potential infections. There will also be increased pressure on staffing within prisons, when officers and other staff members may be unable to work due to ill health, self-isolation due to possible contact, shielding, or family and other caring responsibilities.

155. In order to reduce pressure on the prison system, and help prison management to maintain safe and effective operations under these capacity and staffing challenges, the First Scottish Act gave Scottish Ministers powers to release a limited number of prisoners earlier than their scheduled release date. The specific criteria identifying which prisoners were to be released early had to be set out in regulations, which were to be approved by the Scottish Parliament. This power was only to be used when it was necessary and proportionate to do so, to deal with problems arising from Covid.

156. The Scottish Government works closely with the Scottish Prison Service (“SPS”) to consider how circumstances in prison are being affected by Covid, and in May 2020 the Scottish Government instructed that a small number of prisoners would be released early in the four weeks after 4 May. 348 prisoners were released, under specific regulations which were approved by the Parliament. All of them had been serving short sentences, and all were already due to be released in the following 90 days. Prisoners serving sentences for domestic violence, harassment or Covid related offences were excluded automatically, and Prison Governors were able to veto the early release of specific individuals if there was evidence that if released early they would be a risk to a specific individual. Local authorities, Health boards, housing services, benefits agencies and other support services were involved in planning the process. Victims groups were notified of the proposals, and their views guided the selection criteria that were applied. The Victim Notification Service was used to notify any individuals who had requested information about the prisoners involved.

157. The Scottish Government and SPS have kept the situation under close observation since then, and despite the fact that there is ongoing pressure on the SPS due to Covid, it has not been considered necessary to use these powers again. However, it remains possible that circumstances may change in the future (such as the possibility of new variations increasing the rate of infections, and the continuing impact that the 2020-21 restrictions are having on the wider justice system in Scotland), and if so, it may become necessary and proportionate to take further action in the future.

158. There are no equivalent executive powers for Scottish Ministers to order the release of groups of prisoners in this way, so it would be prudent to extend the powers established in the First Scottish Act. Whilst the specifics of any future early release process would have to be devised in response to the circumstances at that time, the May 2020 action referred to above has demonstrated that this power can be applied in a controlled manner, to deliver a quick and effective support to the SPS when it is required.

Question 25:

It is proposed that the provisions for Topic J3 (Criminal justice: early release of prisoners) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J3 should be extended beyond March 2022 and made permanent

I think the provisions for Topic J3 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J3 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J3, or the proposal for extension beyond March 2022, please write them below.

Topic J4 – Criminal justice: expiry of undertaking

Legislative reference: Part 1 of schedule 2 of the Second Scottish Act (legislation.gov.uk) (paragraph 6)

159. Where a person is in police custody and has been arrested under a warrant or arrested without warrant and subsequently charged with an offence, that person may be released if the person gives an undertaking to appear at a specified court at a specified time and to comply with any conditions imposed while subject to the undertaking. The police can impose protective conditions in an undertaking intended, for example, to prevent the person from interfering with witnesses, including the complainer. Breach of these conditions without reasonable excuse is a criminal offence.

160. An undertaking, as well as any conditions attached to it, expires either at the end of the day when a person was required to have appeared at court in accordance with the terms of the undertaking, or at the end of the day when a person appears at court having been arrested on a warrant for failing to appear as required by the terms of the undertaking.

161. During the Covid pandemic people have been unable to attend court in accordance with their undertaking due to public health guidance or infection. Without action, in this situation there is a risk that protective conditions attached to undertakings will expire in an increasing number of cases, raising safety concerns and an increased risk for the public, with particular risks associated with domestic abuse cases.

162. These provisions addressed this risk by providing the court with the power to prevent the expiry of an undertaking and any conditions attached to it by changing the time the person is due to appear at court. Where a person fails to appear at court as required by the terms of the undertaking; the court considers that the person’s failure to appear is attributable to a reason relating to Covid; and the court does not consider it appropriate to grant a warrant for the person’s arrest, the court may modify the terms of the undertaking given by changing the time at which the person is to appear at the court.

163. Where the court exercises the power provided by these provisions, it has the effect of preventing the undertaking and any associated conditions from expiring and ensures that where, for example, protective conditions have been put in place to protect a complainer, they continue to have effect until a court is able to consider whether to impose bail conditions or remand the accused in custody.

164. The need to self-isolate because of possible infection with Covid (or the continued existence of other Covid related reasons which prevent people from attending court) will continue for some time to come. Whether this provision would be required beyond March 2022 will depend on whether Covid infection remains an issue at that time. The picture may be clearer by Autumn 2021.

165. Given the uncertainty as to prevalence of Covid within communities, it is considered prudent and necessary for this provision to remain in force. This is in order to ensure that in any case where an accused is unable to attend court for a Covid-related reason, the court has a power to ensure that any conditions associated with the undertakings on which they were released can continue to have effect until they are able to appear in court.

166. Where an undertaking continues longer than might have initially been anticipated arising from this provision, the conditions are the same as those that the person initially agreed to when entering into the undertaking and the penalty for breaching the undertaking also remains unchanged.

167. The power to extend an undertaking and any conditions attached to it is limited to circumstances where the court considers that the accused person has not attended court for a reason relating to Covid, and as such, it could not be used by the court as a general alternative to issuing a warrant for the person’s arrest in instances where, unrelated to Covid, the person has not appeared in court and the undertaking has lapsed.

168. This continues to be identified as a measure to preserve public and victim safety during times of Covid pandemic, particularly in sensitive cases of domestic abuse.

Question 26:

It is proposed that the provisions for Topic J4 (Criminal justice: expiry of undertaking) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J4 should be extended beyond March 2022 and made permanent

I think the provisions for Topic J4 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J4 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J4, or the proposal for extension beyond March 2022, please write them below.

Topic J5 – Criminal justice: fiscal fines

Legislative reference: Part 2 of schedule 4 of the First Scottish Act (legislation.gov.uk)

169. The proposal is to seek views on whether there is merit in continuing for a longer, time-limited period policy that allows for maximum fiscal fines up to £500 to be offered by prosecutors as a non-court disposal.

170. The new scale of fixed penalties introduced by the First Scottish Act contains seven levels of fixed penalty which may be offered by the Crown Office and Procurator Fiscal Service (“COPFS”) as an alternative to prosecution, ranging from £50 to what was a new maximum level of £500. The pre-Covid maximum level was £300.

171. These types of disposal are commonly known as fiscal fines. Fiscal fines are offered as a penalty and allow the alleged offender to refuse the offer by giving notice to the court to that effect. In such an event, the refusal is treated as a request by the alleged offender to be tried for the offence in which case the procurator fiscal will then decide whether to prosecute. The new higher maximum (as well as adjustments to the increments allowed for) mean proportionate penalties can be offered by prosecutors for lower level offences including use of the higher maximum penalty for appropriate cases.

172. In accordance with the revised policy guidance issued by the Lord Advocate as head of the COPFS in relation to fiscal fines, the increase in fine amounts has enabled alternative action to prosecution to be taken in a wider range of summary cases during the impact of Covid on the justice system, where such action is assessed as appropriate by prosecutors.

173. In line with pre-existing guidance, prosecutors are directed to first consider offering a direct measure, in particular a fiscal fine, in relation to appropriate cases which would otherwise have proceeded in the lowest level of criminal court in Scotland - the Justice of the Peace court.

174. It can be argued that providing for the continuation of an expansion of the use of alternatives to prosecution will help allow for the continuation of a greater number of cases to continue to be resolved without the need for court procedure and associated appearance at court. This will continue to free up the courts and prosecutors to deal with more serious cases and ease the burden on the courts during a time of significant resource pressure as a result of the lingering impact of Covid, which is expected to last for a number of years.

175. This would not be a permanent change. While there can be arguments made that it may be appropriate to re-assess the maximum value of a fiscal fine (given, for example, the maximum level of a fiscal fine has been set at £300 for nearly 15 years and so re-assessment merely to reflect the effects of inflation may be justified), it is not proposed to make permanent changes in this area in this forthcoming legislative process. If such changes are to be considered, they will be progressed through development of separate justice reform legislation

Question 27:

It is proposed that the provisions for Topic J5 (Criminal justice: fiscal fines) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J5 should be extended beyond March 2022 and made permanent

I think the provisions for Topic J5 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J5 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J5, or the proposal for extension beyond March 2022, please write them below.

Topic J6 – Criminal justice: national court for cases beginning with an appearance from custody

Legislative reference: Part 3 of schedule 4 of the First Scottish Act (legislation.gov.uk)

176. The proposal is to extend the provision in the Act that introduces Scotland-wide jurisdiction for sheriffs dealing with first appearances from police custody and any continuation of the case up until a not guilty plea is tendered (or full committal in petition proceedings). Normally in criminal proceedings, cases are dealt with on the basis of where offences are committed. This would be within the sheriffdom where the offence was committed (usually also in the sheriff court district where it was committed) and that would include first appearances.

177. A sheriffdom is a geographical area governed by a sheriff principal for the purposes of splitting Scotland into six areas for processing of cases. Sheriffdoms are further broken down into sheriff court districts. The provisions contained in the First Scottish Act are being used to enable custody proceedings to be heard in any sheriff court in Scotland by a sheriff of any sheriffdom no matter where the alleged offence took place. This has provided the necessary flexibility to allow for a smaller number of police centralised custody suites and to enable custody courts to be conducted in a way that minimises unnecessary travel and congregation of people in accordance with public health guidance. It also allows the national court to deal with guilty pleas and move them out of the court system, and in doing so, minimise the number of cases that have to be transferred to local court.

178. Providing for a Scotland wide jurisdiction for sheriffs in this way has also enabled more efficient prioritisation of court resources by allowing cases calling from custody to be dealt with by a smaller number of sheriffs as the number of judges available to consider custody cases at any given time has been reduced as a result of Covid.

179. The provision has created greater flexibility in the programming of court business to help the Scottish Courts and Tribunals Service (“SCTS”) manage the significant backlog of cases arising from the Covid pandemic and this flexibility is necessary as an important part of the justice system’s ongoing recovery from the lingering impacts caused by Covid, which is expected to last for a number of years.

Question 28:

It is proposed that the provisions for Topic J6 (Criminal justice: national court for cases beginning with an appearance from custody) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J6 should be extended beyond March 2022 and made permanent

I think the provisions for Topic J6 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J6 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J6, or the proposal for extension beyond March 2022, please write them below.

Topic J7 – Criminal justice: time limits

Legislative references: Part 4 of schedule 4 of the First Scottish Act (legislation.gov.uk) and Part 1 of schedule 2 of the Second Scottish Act (legislation.gov.uk) (paragraph 1)

180. We are seeking views on whether none, some or all of the extensions of the time-limit provisions in the First and Second Scottish Acts, extended by the Extension and Expiry Act, should continue in effect beyond March 2022. These provisions extend a number of statutory time limits contained in the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) which set out the maximum time within which different parts of the summary and solemn criminal prosecution process must take place

181. Statutory time-limits are in place for a reason. They help ensure criminal cases proceed through the court process within a time period that gives sufficient time for appropriate preparation of cases to the parties involved while respecting the need for justice to be carried out within a reasonable time period.

182. At the outset of the Covid pandemic, the exceptional circumstances arising required an exceptional response to reflect the severe impact of the pandemic on the delivery of justice. Without extension to various time-limits, scarce court time would have been required to be used to consider extension of time-limits in individual cases. Furthermore, if the time limit concerning certain summary-only cases had not been extended, it is likely that cases would have been lost as pre-existing law did not permit extensions at all.

183. This was the context within which the Scottish Government was forced to propose temporary changes to time-limits. None of the changes made would have been proposed by the Scottish Government but for the severe impact of the pandemic. The policy sought to balance the need to minimise disruption on the operation of criminal courts with the continuing need for fairness for those involved in the court process including accused persons, especially those on remand, and victims and witnesses.

184. This document does not propose a specific approach on time-limits. Instead, it discusses various issues relating to the different time limit extensions and seeks views from key interests as to the extent to which the extension of time-limits, should continue in effect, if at all, post March 2022.

185. Specifically, the First and Second Scottish Acts modify the following time limits contained in the 1995 Act so that there is a period in each case during which the running of time towards the relevant time limit is suspended for 6 months^[26]:

a) Time limits at section 65 of the 1995 Act which set various time limits in respect of trials under solemn procedure:

• if accused is being held on remand, the indictment must be served within 80 days, failing which there is an entitlement to bail;
• if the accused is being held on remand and an indictment has been served for the High Court, the preliminary hearing must commence within 110 days, (or if an indictment has been served for the sheriff court, the first diet must commence within 110 days) failing which there is an entitlement to bail;
• if the accused is being held on remand, trial must commence within 140 days, failing which there is an entitlement to bail;
• whether or not the accused is in custody, where an indictment has been served in respect of the High Court the preliminary hearing must commence within 11 months of first appearance of the accused on petition, failing which the accused is entitled to be discharged;
• whether or not the accused is in custody, where an indictment has been served in respect of the sheriff court, the first diet must commence within 11 months of first appearance of the accused on petition, failing which the accused is entitled to be discharged;
• whether or not the accused is in custody, the trial must commence within 12 months of the accused’s first appearance on petition, failing which the accused is entitled to be discharged.

b) Time limits at section 136, which requires that proceedings in certain summary cases must commence within 6 months of the alleged commission of the offence.

c) Time limits at section 147, which provides that a person charged with an offence in summary proceedings shall not be detained in that respect for a total of more than 40 days after the bringing of the complaint in court unless their trial is commenced within that period, failing which they shall be liberated forthwith and the prosecution cannot continue. (This is extended by 3 months rather than 6 months).

d) Time limits at section 52T, which applies the custody time limits in section 65 and 147 where the accused is detained in hospital because of an assessment order or a treatment order.

186. The overall effect of the suspension of time-limits for 6 months can be illustrated through an example. For an accused held on remand in a solemn case, the time-limit for the indictment being served becomes 80 days plus 6 months (failing which there is an entitlement to bail).

187. As noted above, statutory time limits are important in helping to prevent undue delay in the progress of criminal cases. This is especially important where the accused person is being held on remand prior to trial, though it should be acknowledged that long delays in a case coming to trial can have a significant impact on victims, witnesses and accused people, whether or not the accused person is being held on remand.

188. Notwithstanding that the direct impact of Covid on operation of the criminal courts is reducing as the severe impact of Covid on communities reduces, a significant backlog of cases has built up as a result of the reduced level of court business during the Covid pandemic, and the continuing need for social-distancing measures, self-isolation etc. has meant that the courts remain unable to operate at full pre-Covid capacity.

189. Even as the courts return to pre-Covid levels of business, it is anticipated that there will continue to be a significant backlog of cases in the system for years to come. COPFS prosecutors can apply to the court to extend most of the time limits^[27] on a case-by-case basis. The size of the backlog of cases that has built up in the system means that, if the time limit extensions expire at some point in 2022, prosecutors may have to seek extension on a case-by-case basis on a reasonably routine basis. The requirement for courts to schedule numbers of hearings (potentially a significant number) to extend time limits in the majority of all cases being prosecuted in the courts risks impacting on both court and prosecutorial time and resources, impeding the ability of the justice system to reduce the backlog of cases that has built up.

190. As such, there is a balance to be struck between, on the one hand, ensuring that there is sufficient judicial oversight where there is a long period between an accused person initially being charged with an offence and their case coming to trial, especially where the accused person has been remanded in custody, and on the other hand, not impeding the ability of the courts to address the backlog by requiring them to hold large numbers of hearings to extend time limits on a case-by-case basis.

191. This suggests possibly adopting a selective approach to which time limit extension provisions, if any at all, should remain in effect beyond March 2022 (or September 2022 if current period of effect is extended by 6 months).

192. It may be considered that there is a strong case for retaining the extension to the time limit at section 136 which relates to the maximum time after the alleged commission of the offence within which criminal proceedings for certain summary offences must be commenced (referred to as Topic J7(i)). This was previously set at 6 months and was extended to 12 months by the Coronavirus (Scotland) Act 2020.

193. As part of the prioritisation of scarce court resources, efforts have been made to progress cases at all levels of the system, but there has been a necessary specific focus on delivering justice in more serious (solemn) cases.

194. Within this context, the case for retaining the extended summary time limit is because of an important key difference between the operation of this specific time-limit and the other time-limits. In contrast with the other time limit extensions, there is no ability for the court to extend this time limit and once it has expired, it is not possible for proceedings to be continued or brought afresh.

195. In addition to this key point, it is also the case that at the point at which this time limit extension is expired, it may have a more immediate impact than the other time limits because the time limit relates not to the date on which an accused person is first charged but the date on which it alleged that the offence has been committed. As such, it is likely that there would be a significant number of cases where the time limit would expire at once, while the case was still under investigation, and a real risk that justice could not be done in these cases if the backlog of summary cases has not been reduced to a manageable level at the point at which it is repealed.

Question 29:

It is proposed that the provisions for Topic J7(i) (relating to the time limit on summary-only cases at section 136 of the 1995 Act (Criminal justice: time limits)) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J7(i) should be extended beyond March 2022 and made permanent

I think the provisions for Topic J7(i) should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J7(i) should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J7(i), or the proposal for extension beyond March 2022, please write them below.

196. More generally, the Scottish Government wants a balance to be struck between managing the capacity of the courts and the impact of the backlog of cases on those awaiting trial. As such, an approach could be to consider allowing the expiry of those provisions extending the limit on the length of time that an accused person can be held on remand prior to trial (at section 65(4) and section 147(1) of the 1995 Act) (referred to as Topic J7(ii)), while retaining the time limit extension provisions which relate to the maximum time between first appearance on petition and the first diet/preliminary hearing and commencement of the trial (at section 65(1) of the 1995 Act) (referred to as Topic J7(iii)). However, if this approach is taken, it may be helpful for case management purposes to retain the J7(ii) provisions until September 2022, which is the latest date that the provisions in the Coronavirus (Extension and Expiry) (Scotland) Act 2021 can continue to have effect. The benefit of this possible approach would ensure that specifically where an accused person is being held on remand, the pre-Covid position would re-emerge so as to require a judicial decision at an earlier point to extend the time limits beyond those prescribed in the 1995 Act prior to the amendments made by the Coronavirus (Scotland) Act 2020.

Question 30:

It is proposed that the provisions for Topic J7(ii) (remand time limits at section 65(4) and section 147(1) (Criminal justice: time limits)) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J7(ii) should be extended beyond March 2022 and made permanent

I think the provisions for Topic J7(ii) should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J7(ii) should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J7(ii), or the proposal for extension beyond March 2022, please write them below.

Question 31:

It is proposed that the provisions for Topic J7(iii) (extending time limits relating to the maximum time between first appearance on petition and the first diet/preliminary hearing and commencement of the trial at section 65(1) (Criminal justice: time limits)) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J7(iii) should be extended beyond March 2022 and made permanent

I think the provisions for Topic J7(iii) should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J7(iii) should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J7(iii), or the proposal for extension beyond March 2022, please write them below.

197. These provisions also disapply certain time limits on the length of individual adjournments contained in the 1995 Act so that the court can adjourn a case for such period as it considers appropriate.

198. These time limits are those at:

• section 145 (power of the court to adjourn a summary case at first calling where the accused is present and is not remanded in custody, to allow time for inquiry into the case or for any other cause which it considers reasonable);
• section 145A (corresponding provision where the accused is not present at first calling);
• section 200 (power of the court to remand an accused for inquiry into their physical or mental condition where the accused has committed an offence punishable with imprisonment);
• section 201 of the 1995 Act which enables a court to adjourn a case prior to sentencing to enable inquiries to be made;
• section 245J (power of the court to adjourn a hearing and remand an offender for inquiry in respect of their apparent failure to comply with a requirement of a community payback order, drug treatment and testing order or restriction of liberty order).

199. Provisions removing the limit on the length of a single adjournment of a case to make enquiries are principally intended to maximise efficient use of court time where it is known that external agencies are going to be unable to respond to a request for information within the timescales prescribed by the 1995 Act for a single adjournment because of the impact that Covid has had on their ability to respond to such requests.

200. While there is a risk that future outbreaks of coronavirus could result in either court closures in particular areas or a significant reduction in the capacity of either courts or the police or criminal justice social work or medical experts to consider or respond to requests for further information, it is open to question how essential such provisions are when Covid has less of a severe impact on communities.

201. It is recognised that the limits on the length of an individual adjournment can be helpful in setting expectations as to when police, criminal justice social work and others will respond to requests for additional information. On the other hand, there is a risk that, without the continuation of these provisions, multiple hearings could be required to adjourn a single case, and as set out above, this risks impacting on the ability of the courts to reduce the backlog of cases that has built up in the system during the pandemic.

202. The continuation of extension of time limits relating to a number of solemn and summary court processes would continue to deliver a reduced need to allocate scarce and valuable court time that otherwise would be required for the court to individually consider applications for extension of time-bar in given cases, or to repeatedly adjourn a case for further inquiries. This enables the COPFS and the SCTS to prioritise cases so as to continue to make more efficient use of court time at this continuing challenging time for the criminal courts.

203. We would therefore welcome views on whether the provisions removing the time limits on the lengths of individual adjournments should continue in effect beyond March 2022 (referred to as Topic J7(iv)).

Question 32:

It is proposed that the provisions for Topic J7(iv) (removing time limits on the length of individual adjournments for inquiries (Criminal justice: time limits)) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J7(iv) should be extended beyond March 2022 and made permanent

I think the provisions for Topic J7(iv) should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J7(iv) should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J7(iv), or the proposal for extension beyond March 2022, please write them below.

Topic J8 – Proceeds of crime

Legislative reference: Part 2 of schedule 2 of the Second Scottish Act (legislation.gov.uk)

204. The proposal is to keep in operation for longer two adjustments to the Proceeds of Crime Act 2002 (“the 2002 Act”) made by the Second Scottish Act.

205. First, it is proposed that the law continues to state, for the purposes of section 99(4) of the 2002 Act, that the effects of Covid (whether direct or indirect) are to be treated as “exceptional circumstances”. A postponement or extension may be made on application by the accused, a prosecutor, or the court of its own motion.

206. Ensuring that the period to apply for a confiscation order can be extended will mean that the process for the confiscation of the proceeds of crime is not frustrated due to delays in court proceedings as a result of pandemic-related backlogs. Without these provisions, the Crown Office and Procurator Fiscal Service (“COPFS”) for example may be unable to proceed with confiscation proceedings against convicted criminals which could allow serious organised criminals to continue to use the illegally obtained funds to further their criminal activities in communities and be a threat to public safety and public order. The provision allows both prosecutors and defence agents additional time to prepare the cases if needed due to the pandemic.

207. Second, it is proposed that accused persons continue to be allowed longer to pay confiscation orders where the effects of Covid (whether direct or indirect) have affected the person’s ability to pay. This would mean that the courts would continue to be able to extend the time to pay beyond 12 months. And an accused would be able to make an application to the court for a further extension of the time to pay. If such an extension were granted, interest of the outstanding amount would not run as it otherwise would under section 117 of the 2002 Act.

208. Allowing more time for confiscation orders to be paid will ensure that individuals are not treated unfairly or disproportionately throughout this period if they have been unable to pay for reasons related, directly or indirectly, to Covid. The confiscation order will remain in force and no convicted person is being excused from paying their confiscation order, however if they are unable to extend the permitted time for payment (for Covid reasons) they might otherwise face a default custodial sentence. The Scottish Government considers that this would be disproportionate. If the sheriff court does not accept that payment has been delayed due to Covid the order will be required to be paid as previously ordered.

Question 33:

It is proposed that the provisions for Topic J8 (Proceeds of crime) as described will be extended beyond March 2022. Which of the following best describes what you think about this?

I think the provisions for Topic J8 should be extended beyond March 2022 and made permanent

I think the provisions for Topic J8 should be extended beyond March 2022, but not made permanent

I do not think the provisions for Topic J8 should be extended or made permanent

Unsure

I have no view

If you have any comments on either the provisions for Topic J8, or the proposal for extension beyond March 2022, please write them below.