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

Section 1: Background, aims and options

Background to policy issue

Part 1 – Criminal Justice Modernisation

The COVID-19 pandemic increased the pace of adoption of digital processes and innovation in many spheres, including the justice system. Throughout this period, a number of changes were made to operational practices and procedures, including the use of digital technologies, to ensure the continued operation of a viable justice system. These technological solutions allowed justice agencies to meet the challenges of the pandemic whilst also providing the basis for the delivery of a more effective and efficient justice system.

As Scotland becomes a more digital nation, the nature of government, at a national and local level, is changing. Those using public services expect them to be responsive and tailored to their needs, efficient and of high quality.

The Scottish Government’s Vision for Justice^[1], published in February 2022, and the associated Three Year Delivery Plan^[2], published in November 2023, set out a transformative vision to deliver a just, safe resilient country. Delivering the Vision requires changes to the operation of Scotland’s justice services, ensuring that its processes and laws meet the needs of people now and in the future.

The criminal justice modernisation provisions form a key part of a programme of work that takes forward the Scottish Government’s commitment to modernise justice processes through greater use of digital processes.

The Coronavirus (Recovery and Reform) (Scotland) Act 2022 (“the 2022 Act”) built on previous legislation^[3] introduced in response to the pandemic. It continued a range of temporary justice provisions which have proven crucial to maintaining and enhancing the effectiveness and efficiency of the justice system and helped to facilitate the desired move to a more digitalised justice sector.

One of the main objectives of this part of the Bill is to make some of these provisions permanent, to deliver significant longer term benefits and provide a basis for the future resilience, effectiveness and efficiency of the criminal justice sector. The Bill also introduces two new provisions to further support the modernisation of Scotland’s justice processes and procedures.

Part 2 – Domestic Homicide and Suicide Reviews

Domestic Homicide Reviews are established processes in other parts of the UK and internationally. Scotland is the only part of the UK that does not have a multi-agency Domestic Homicide Review model. In England, Wales and Northern Ireland, legislative provision has been available for Domestic Homicide Reviews to be undertaken since 2004, but these were only established in England in 2011.

There is no universal definition for what constitutes a “domestic homicide”. However, all include intimate partner/ex-partner homicide. A high level analysis of domestic homicide review models across different jurisdictions demonstrates the variation in relation to scope, with most having a broader definition which includes death of children, bystanders, familial homicide and those who die by suicide where domestic abused is suspected.

Most Domestic Homicide Reviews result in a report being produced, which provides a narrative about the circumstances of the domestic homicide and the involvement (or lack of involvement) by key organisations across health, justice, victim support services etc. Based on the findings, recommendations are made that may highlight, for example, the need for increased training in domestic abuse, greater understanding of risks as well as changes to systems and processes. In England, Wales and Northern Ireland, reports are produced for each case, but in other jurisdictions, reports might be produced on an annual or bi-annual basis. Data from DHR reports can be aggregated to discuss trends and consolidate learning opportunities.

In Scotland, there is an average of 9 domestic homicides per annum. In 2022-23, there were 8 victims killed by a partner or ex-partner. The homicides comprised of 6 female victims (46% of all female homicide victims) and 2 male victims (5% of all male victims). Between 2018-19 and 2022-23, there were 42 victims killed by a partner or ex-partner (34 female victims and 8 male victims). Between 2013-14 and 2022-23 there were 89 victims killed by a partner or ex-partner (63 female victims and 26 male victims). There is less clarity on the data related to domestic suicides, and this is something that is currently being explored by a dedicated Task and Finish Group. Research has been untaken in England and Wales which suggests the number of domestic abuse related suicides could be as much as double the number of domestic homicides. For Scotland, that would equate to approximately 18 per annum based on annual averages of domestic homicides in Scotland. These figures do not take into account the impact and emotional cost to families and the services who endeavour to prevent such loss.

As outlined above, the Scottish Government established a Taskforce in 2022 to provide national leadership for the development and implementation of a multi-agency Domestic Homicide and Suicide Review model for Scotland. In September 2023, the Scottish Government established a Model Development Subgroup to support the work of the Taskforce by developing the detail of Scottish model. The Model Development Subgroup will test and evaluate the model to ensure it is robust and fit for purpose before it is rolled out. A number of Task and Finish Groups have also been created to focus on specific or more complex aspects of the model. These include a Domestic Abuse Related Suicide Task and Finish Group; Children and Young People Task and Finish Group; Workforce and Training Task and Finish Group; and an Information Governance Delivery Group.

In line with the scope of Domestic Homicide Review models within wider jurisdictions across the UK and internationally^[4], Taskforce members unanimously agreed that the Scottish model will include victims killed by a partner or ex-partner (this includes adolescents in an intimate relationship). However, in order to develop an evidence-based model for Scotland, a greater understanding was required of whether the scope of the model should be broader. Further clarity was also necessary on a range of other fundamental aspects of the model such as whether or not the model should be underpinned by legislation.

A package of evidence has been brought together to inform the work of the Taskforce, the Model Development Subgroup, and the Task and Finish Groups. The evidence includes papers which consider how Domestic Homicide Review models operate in other countries and what can be learned from them. The papers include the International Comparator Research and Domestic Homicide Reviews: Identifying Best Practice in Learning Lessons and Implementing Change by Scottish Government, and Learning from Domestic Homicide Reviews produced by the University of Edinburgh.

Purpose/ aim of action and desired effect

Part 1 – Criminal Justice Modernisation

Our Vision for Justice, published in February 2022, and the associated Three Year Delivery Plan, published in November 2023 sets out the Scottish Government’s transformative vision to deliver a just, safe resilient country. Delivering the vision requires fundamental change to the operation of our justice services, ensuring that our processes and laws meet the needs of people now and in the future.

This Bill is a key part of a far-reaching programme of work and takes forward our Programme for Government 2022-23 commitment to modernise justice processes through greater use of digital processes. It also delivers on our priorities for justice as outlined in Equality, opportunity, community: New leadership - A fresh start.

Throughout the pandemic, justice agencies were required to respond at rapid pace and adapt their operational practices. These changes included the use of remote jury trials, fully virtual summary trials and virtual custody courts along with electronic citations. These technological solutions enabled the operation of a viable justice system which met the challenges of a pandemic whilst also providing the basis for how a more effective and efficient justice system could be delivered in the future.

Many of these measures were made possible due to the temporary provisions provided in the Coronavirus (Scotland) Act 2020, Coronavirus (Scotland)(No.2) Act 2020 and the Coronavirus (Recovery and Reform) (Scotland) Act 2022. This legislation underpinned changes to court processes and procedures during the pandemic and facilitated a move to a more digitalised justice sector.

The temporary justice measures enabled a progressive response to the justice system and the continuation of these measures in primary legislation would ensure the future resilience of the sector, ensuring the system can deliver efficient and effective justice services in the future.

The measures would also enable flexibility, appropriate choice and a person-centred approach in the way processes are managed for those who use the system, including victims, witnesses and the accused and maximise the use of technology where appropriate in our procedures and practices.

Part 2 – Domestic Homicide and Suicide Reviews

The development of a multi-agency Domestic Homicide Review model for Scotland is an action within the Equally Safe Delivery Plan (see action 4.6). Equally Safe is Scotland’s strategy – developed by the Scottish Government and COSLA in association with a range of key partners – for preventing and eradicating violence against women and girls. This commitment is also a key priority within the Scottish Government’s Programme for Government 2023-2024 and the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, which will legislatively underpin the model, is one of 14 Bills the Scottish Government intends to bring forward in Year 4 as set out in Programme for Government 2024-25: Serving Scotland - gov.scot (www.gov.scot)

These provisions are intended to allows lessons to be learned following a homicide or suicide where abuse is suspected. The aim of the review model is to work with relevant agencies, either statutory or voluntary, where a victim and/ or perpetrator have come into contact with services, to better identify and respond to the risks associated with domestic abuse and help prevent future domestic abuse related deaths. There is no intention for the Bill to have a different effect on the island communities, and it has been assessed that the provisions in the Bill do not need to be developed in a way to improve or mitigate the outcomes expected from the Bill. The matters which have been identified in this assessment can be addressed or mitigated as part of implementation.

The domestic homicide reviews undertaken in other jurisdictions suggest that the possible impact of such reviews would positive, resulting from the opportunity to:

• establish lessons to be learned from domestic abuse related deaths 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 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 violence and abuse; and

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

Options

Part 1 – Criminal Justice Modernisation

Option 1 – Do nothing

Total benefit:

• Void need for additional work to implement the new provisions

Total cost:

• There would procedural issues for justice agencies who will be forced to revert to pre-pandemic ways of working which can potentially contribute to court backlogs
• Savings associated with digitalisation of criminal justice procedures will not be realised
• The full returns from the investment into the Digital Evidence Sharing Capability will not be realised.

Option 2 – Legislative option

Total benefit:

• No need for additional legislative process/ minimal legislative processes needed.
• Efficiencies in time and resources achieved through conduct of business by electronic means, virtual attendance and digital productions.
• Significant positive in the context of the current backlogs in court cases and the ability for cases to be handled more quickly, benefiting all parties including vulnerable people with complex needs.

Total cost:

• As the temporary justice provisions are already operational to some degree, no new costs are foreseen as arising from making them permanent through this legislation. Where any costs may arise for purposes such as training, they can be offset through the efficiencies and savings derived from these measures.
• For the new provisions that are being introduced, the main vehicle for implementation will be Digital Evidence Sharing Capability which is funded by Scottish Government. These provisions would not give rise to costs that would not already be incurred as part of DESC implementation.

Part 2 – Domestic Homicide and Suicide Reviews

Option 1 – Do nothing

Total benefit:

• No additional work or resources would be required to evaluate and improve practice.

Total cost:

• This option would not create the opportunity for national change or improvements in the practice the prevention of deaths where domestic abuse has been identified as a factor.

Option 2 – Non-legislative option

Total benefit:

• Learning reviews could still be undertaken on a non-statutory basis, allowing for some degree of improvement in practice.

Total cost:

• Lack of stakeholder trust in the process
• Output may be inconsistent and result in unwarranted variation.
• Review model would not be as robust or enable information to be shared effectively.
• There would be time and resource implications associated with the development, implementation and operation of the Domestic Homicide and Suicide Review model.

Option 3 – Legislative option

Total benefit:

• Learning reviews could be undertaken with consistency at a national level, enabling the sharing of relevant information between organisations, and providing for statutory public appointments to oversee the process, ensuring its quality and effectiveness.

Total cost:

• Requires close collaboration between all sectors involved in this work to ensure robust information sharing and governance processes

Sectors/ Groups 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).