Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill: business and regulatory impact assessment

Executive summary

Issue and why it needs to be addressed

The first part of the Bill is intended to improve the experiences of people who come into contact with the justice system through the modernisation of criminal procedures. The matters which have been identified in this assessment can be addressed or mitigated as part of implementation.

The second part of the Bill creates a statutory framework for Scotland’s national multi-agency domestic homicide and suicide review model. The model aims to learn lessons where a person has died due to abuse. The learning gained will facilitate change and improvements to be delivered so that individuals and communities are better supported by public services and deaths can be prevented.

Intended outcomes

Both parts of the Bill support one of the Scottish Government’s priorities, namely the delivery of effective and sustainable public services. The first part of the Bill aims to do this by providing a basis for the ongoing and future resilience, effectiveness and efficiency of the criminal justice sector through modernisation, in particular through greater use of digital processes. The second part of the Bill ensures that change and improvements are delivered through effective learning from a robust review process so that individuals and communities are better supported by public services and deaths can be prevented.

Options

Part 1 – Criminal Justice Modernisation

The following options have been considered:

• Option 1 – Do nothing
• Option 2 – Legislative option

Part 2 – Domestic Homicide and Suicide Reviews

The following options have been considered:

• Option 1 – Do nothing
• Option 2 – Non-legislative option
• Option 3 – Legislative option

Sectors affected

Part 1 – Criminal Justice Modernisation

The following sectors and groups will be affected:

• justice agencies;
• victims and witnesses in criminal cases;
• people accused of crimes;
• third sector support organisations;
• the legal profession; and
• jurors.

Part 2 – Domestic Homicide and Suicide Reviews

The following sectors and groups will be affected:

• Relevant public authorities, where a ‘relevant public authority’ is (not exhaustively):
  • a local authority;
  • a health board constituted under section 2(1)(a) of the National Health Service (Scotland) Act 1978;
  • a special health board constituted under section 2(1)(b) of the National Health Service (Scotland) Act 1978;
  • the chief constable of the Police Service of Scotland;
  • the Scottish Police Authority;
  • the Lord Advocate;
  • the Scottish Courts and Tribunals Service;
  • the Scottish Ministers in the exercise of their functions under the Prisons (Scotland) Act 1989;
  • Community Justice Scotland;
  • Social Care and Social Work Improvement Scotland;
  • the Scottish Social Services Council;
• victims and witnesses in criminal cases;
• family members, friends, and colleagues of victims and perpetrators in criminal cases;
• victim support organisations;
• third sector support organisations; and
• victims of domestic abuse (men, women and children).

Engagement completed, ongoing and planned

Part 1 – Criminal Justice Modernisation

Over the course of 2023-24, the Scottish Government consulted on the proposals that form part of the Bill. In total, 30 consultation responses were received, of which 22 were from groups or organisations and eight from individual members of the public. Groups and organisations who responded included legal professionals, members of the judiciary, third sector organisations, police, and officials from various public bodies etc. Views were also gathered on the provision relating to virtual hearings from people with experience of the criminal justice system. The consultation analysis report has been published and is accessible for further detail.

Part 2 – Domestic Homicide and Suicide Reviews

Engagement completed

In December 2022, the Scottish Government established a Taskforce to provide national leadership for the development and implementation of a multi-agency Domestic Homicide and Suicide Review model for Scotland. The Taskforce brings together partners from across justice, local government, health, academia, and victims organisations. The model has been informed by evidence and learning from models operating elsewhere, and takes into account the operating context in Scotland.

Following the first meeting of the Taskforce, members completed an online questionnaire to seek their views on key aspects of the review process. The outcomes of the questionnaire were published in a report and the findings were used to inform a workshop held in February 2023. Members considered the purpose, principles and scope of a Scottish model at the workshop. Healthcare Improvement Scotland have produced and published a report on the outcomes of the workshop.

The Scottish Government also undertook a period of consultation and targeted engagement to inform the development of a domestic homicide review model for Scotland. This took place between 1 September – 30 October 2023 and gathered the views of:

• people (those 18 years of age and over) who have lived experience of domestic abuse;
• people who have been bereaved due to domestic homicide/abuse; and
• people working in the field of domestic abuse, for example, the police, victim support organisations, social services, health services.

There were a total of 235 responses, including 31 (13%) individuals with lived experience of domestic abuse or bereaved by abuse, 134 (57%) professionals working in the field of domestic abuse, and 70 (30%) professionals with lived experience working in the field of domestic abuse. Of the 235 responses, 173 (74%) participants took part in one of the 28 engagement sessions that were organised, and 62 (26%) by answering individually to the online consultation.

The sectors represented in the targeted engagement included social services, health, third sector, justice, housing, education, children’s services, victim support organisations, and local authorities. There were 35 organisational responses.

The outcomes of the consultation were published in a consultation analysis report and the findings were used to inform the next steps.

Engagement ongoing

The Scottish Government continues to engage with the sectors involved in this work through the various groups that have been established to provide oversight and take forward different implementation aspects. These groups include:

• The Domestic Homicide and Suicide Review Taskforce;
• The Model Development Subgroup;
• The Domestic Abuse Related Suicides Task and Finish Group;
• The Children and Young People Task and Finish Group;
• The Workforce and Training Task and Finish Group; and
• The Information Governance and Delivery Group.

Engagement planned

As the model is being developed, additional engagement will be undertaken with:

• people (those 18 years of age and over) who have lived experience of domestic abuse;
• people who have been bereaved due to domestic homicide/abuse; and
• people working in the field of domestic abuse, for example, police, victim support organisations, social services, health services.

Anticipated impacts (intended and unintended, positive and negative) and mitigating actions

Part 1 – Criminal Justice Modernisation

The criminal justice modernisation provisions in this Bill are anticipated to have the following impact:

Positive impact

• Electronic signatures: Partners report that this provision has created significant efficiencies, and that expiring them would undermine progress towards a more modern justice system. Current uses of the provisions include all High Court indictments being received electronically and search warrants being granted remotely.
• Virtual attendance: Aims to make permanent current temporary provisions allowing people to attend a criminal court by electronic means (for example, by live video link). Making current temporary measures permanent in criminal cases would ensure that the court system can continue to function as efficiently as possible in a way which does not impede access to justice. It would also support the transformation to a more trauma-informed and person-centred justice system, by enabling the courts to tailor the mode of attendance to individuals’ circumstances where that is appropriate.
• National callings from custody: Aims to make permanent provisions that enable all sheriffs to hear custody cases no matter where the accused is being held, no matter where the sheriff normally has jurisdiction, and no matter where the alleged offence took place.
• Fiscal fines: Aims make permanent the increase in the maximum level of fiscal fine from £300 to £500 originally legislated for in the Coronavirus (Scotland) Act 2020, and retained on a temporary basis through the Coronavirus (Extension and Expiry) (Scotland) Act 2021 and the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (the 2022 Act) to enable alternative action to prosecution to continue to be taken in a wider range of summary cases as an alternative to prosecution in court.
• Digital Productions: This provision supports modernisation in our justice processes and the way evidence is gathered and processed in the criminal justice system. More evidence than ever is being captured in a digital format with opportunity to further expand in this area. Given the benefits of being able to quickly and easily obtain and use digital images in the criminal justice system this provision allows images of physical productions to be admissible in evidence in the same way as if the item itself had been produced in court. This provision promotes the use of modern technology and will support greater efficiency across the criminal justice system and along with the proposal to have virtual trials could enhance the way that evidence is led to create improvements in the court experience.
• Alternative ways to authenticate copy documents: This provision aims to modernise the law and future proof it for technological developments that support alternative ways in which copy documents are authenticated.

Negative impact

• Proceeding with this Bill may result in some costs for agencies and businesses in the justice sector. However, these costs will be offset by the savings that will be derived from the implementation of these provisions. These are considered in detail in the Financial Memorandum for the Bill.

Part 2 – Domestic Homicide and Suicide Reviews

The domestic homicide and suicide review provisions in the Bill are anticipated to have the following impact:

Positive impact

• establish lessons to be learned from deaths where abuse is suspected and improve how local professionals and organisations work individually and together to safeguard victims and prevent future deaths;
• identify lessons to be applied both internally, within agencies, and externally, between agencies, agreeing timescales for implementation and expected outcomes;
• prevent domestic violence abuse and domestic abuse related deaths and improve service responses for all domestic abuse victims and their children by developing a coordinated multi-agency approach to ensure that abuse is identified and responded to effectively and timely;
• contribute to a better understanding of the nature of domestic abuse; and

• identify and facilitate the sharing of good practice both locally and nationally.

Negative impact

• there could be potential negative impact associated with the resource implications for public authorities and third sector organisations when contributing to the review; and
• there could be potential negative impact associated with the resource implications for public authorities and third sector organisations to implement the actions from the learning generated by reviews.

Enforcement/ compliance

Part 1 – Criminal Justice Modernisation

The implementation of the measures in the Bill is a matter for the Scottish Courts and Tribunals Service (SCTS), Crown Office and Procurator Fiscal Service (COPFS), and Police Scotland, who will be primarily responsible for its operation.

Part 2 – Domestic Homicide and Suicide Reviews

The domestic homicide and suicide review provisions in the Bill allow for a range of delegated powers. These include:

• enabling powers to modify the scope and name of the review;
• provisions establishing a review oversight committee, chair, deputy chair and case review panels and chairs;
• provisions requiring the notification of any death of which the notifying body is aware which it believes is a reviewable death;
• provisions ensuring a review does not prejudice another live investigation or proceedings;
• provisions ensuring co-operation, participation, and recovery of information; and
• reporting requirements.

Recommendations/ implementation plans

The Scottish Government intends to take the provisions in the Bill forward in the current parliamentary year 2024-25.