Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill: island communities impact assessment

Policy aims

The Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill is a dual purpose Bill and covers provisions that relate to criminal justice modernisation and domestic homicide and suicide reviews, comprising of:

• Part 1 – Criminal Justice Modernisation
• Part 2 – Domestic Homicide and Suicide Reviews

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 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.

A summary of the policy content of the Bill and the specific aim of each part of the Bill is set out below.

Part 1 – Criminal Justice Modernisation

With some adjustments, the Bill aims to make permanent the temporary measures in the 2022 Act that relate to:

• allowing for the electronic signing and sending of documents in criminal cases;
• enabling virtual attendance at a criminal court;
• a national jurisdiction for callings from custody, so that custody cases can be heard in any court in Scotland; and
• an increase in the maximum level of fiscal fine, to £500, along with adjustments to the scale of fines.

Part 1 of the Bill also introduces two new provisions that support digital innovations such as Digital Evidence Sharing Capability (“DESC”, which is explained in more detail below), by:

• supporting the use of images rather than production of physical evidence in court; and
• enabling copies to be treated as equivalent to the item copied without the need for additional authentication, to provide more flexibility in the law.

Electronic signing and sending of documents

The provisions for electronic signing and sending enable documents produced by a criminal court, or connected with criminal proceedings, to be signed and transmitted electronically (for example, by email), and to be sent to a party’s solicitor instead of to the party themselves, removing the requirement for physical movement of documents. Since the provisions were introduced in 2020, they have become firmly embedded in Scotland’s justice system and have made many justice processes more efficient and reduced costs.

The use of these measures has enabled process changes that have allowed justice partners to operate more efficiently and effectively. Electronic signing and sending of documents allows High Court and sheriff and jury indictments, and other legal documents, to be served on the defence using the Secure Disclosure System. These documents can also be lodged with the court electronically. In practical terms, this means that police officers are not required to serve documents, freeing them up for other duties. Prior to the pandemic an indictment was, in most circumstances, served by two police officers.

The provisions also enable police officers to obtain warrants electronically, saving considerable time: evidential warrants can be obtained in as little as two hours via electronic means, which helps ensure that cases (particularly serious crime) can progress without delay. Previously, obtaining wet signatures on warrants would often have required two police officers to attend court and to wait for a sheriff to become available. The current provisions have also enabled applications for search warrants to be applied for out-of-hours and granted without the need for a police officer to attend at a sheriff’s home. This is a much more efficient process for all concerned.

Virtual attendance at a criminal court

In Scotland, criminal proceedings are usually held in person at court. Generally, all parties are either physically present, or represented by an agent who is physically present.

Before the pandemic, some legislation required people to physically attend court proceedings. Temporary provisions in the 2022 Act adjusted those requirements to create more flexibility, by enabling any participant in criminal proceedings (including judges, clerks, legal representatives, parties to proceedings, accused people, convicted people, appellants, jury members and witnesses) to take part in some proceedings by way of live visual (television) or audio (telephone) link, from any location. This extends to the ability to conduct fully audio or video-enabled procedural hearings (where no one is physically in the same place), as well as being able to hold hearings in a court building with some participants joining remotely. The Bill seeks to make these provisions permanent.

The default position is still that most people (with minor exceptions) attend court in person but the court can overrule this default and direct someone to attend court by virtual means – subject to what is in the interests of justice, and subject to taking account of any representations received.

These provisions have enabled the justice sector to respond to the challenges of the pandemic and to deliver improvements which are seen as features of a modern criminal justice system. Engagement with stakeholders has identified benefits for people affected by crime who can be traumatised by attending court, and in supporting more person-centred and resource-efficient approaches to justice.

Responses to the consultation also highlighted potentially significant cost savings for individuals if virtual attendance enables them to avoid travel and accommodation costs associated with attending court.

The provision will also have beneficial implications for certain parties such as police, medical and other professional witnesses, when providing evidence, allowing them to return more quickly to vital front-line roles.

This provision has the potential to improve the accessibility of court for island communities. This was identified as a particular issue for communities where no court is available locally, and where travel to and from the mainland can be costly and unreliable. It was also noted that justice social work teams are typically smaller on Scotland’s islands, and that these teams could benefit from greater use of digital technologies and remote communication.

National Jurisdiction for Callings from Custody

The provisions seek to make permanent the measure allowing 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).

This measure enables 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 and allows that court (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 a local court.

Maintaining a national jurisdiction for custody cases as a feature of Scotland’s criminal justice system would enable a flexible response in the management of custody business. Justice partners including SCTS and Police Scotland have expressed clear support for permanency due to the continued flexibility and efficiency in the programming and management of custody court business which is provided for through a national jurisdiction for callings from custody.

The provision is also being extended to grant the same powers to the Justice of the Peace (JP) courts, such that they also have a national jurisdiction for callings from custody.

Fiscal fines

Fiscal fines are one of a suite of direct measures which prosecutors may offer to an accused person as an alternative to prosecution in court (provided the accused pays the fiscal fine). Fiscal fines are a long-standing part of criminal procedure, dating back to the mid-1990s. They can only be used for offences capable of being tried summarily. In cases where they are offered, fiscal fines represent a proportionate response to the offending behaviour. This enables cases to be resolved without the need for court procedure and associated appearances at court, which gives the courts and prosecutors more time to deal with more serious cases.

An accused does not have to accept the offer of a fiscal fine and may give notice to that effect. In those circumstances, the prosecutor will decide what further action to take including whether to prosecute the accused in court.

Prior to the pandemic, the maximum fiscal fine which could be offered was £300. That was raised to £500 by the Coronavirus (Scotland) Act 2020 and retained on a temporary basis through the Coronavirus (Extension and Expiry) (Scotland) Act 2021 and 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. 53.

Making the increased maximum level of fiscal fine of £500 permanently available to prosecutors as a non-court disposal allows prosecutors to continue to deal with less serious offending appropriately, freeing up capacity in the criminal courts system for more serious cases. It reduces the number of cases entering the criminal justice system, allowing the courts and prosecutors more time to deal with more serious cases.

Digital productions

This is a new provision which supports modernisation in our justice processes in the way evidence is gathered and processed in the criminal justice system.

The provision enables the fuller use of the Digital Evidence Sharing Capability (DESC). DESC modernises and streamlines the way digital evidence is collected, managed, and shared throughout the criminal justice process, removing the need for a physical item to be presented in court.

Through DESC, digital evidence can be shared by members of the public at the point of reporting a crime to the police. This evidence is then shared with the prosecution and defence agent for the accused to allow early consideration and possible resolution of cases. The use of digital evidence through DESC has the potential to improve the experience of victims, witnesses, and the accused in terms of providing swifter justice.

Through primary legislation, we aim to allow the law to change in order to allow the digital image (such as a scan or photograph or video) of a physical item (such as a weapon) to be received in evidence without objection on the basis that the original item has not been produced to the court, and to treat the image as the equivalent of the actual production itself.

Change of legislation which supports the use of digital images 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.

This proposal received support from stakeholders during the consultation with majority of the respondents agreeing that digital evidence should be used in criminal cases rather than having to produce the original item in court. These respondents cited a range of anticipated advantages associated with use of digital productions, most commonly the potential to deliver efficiencies and reduce pressure on court and justice partner resources. It was noted that DESC enables all parties – police officers, prosecutors, defence agents and the judiciary – to access evidence in an efficient and secure way.

Modernisation of law on copy documents

This provision seeks to modernise current legislation on the use of copy documents in criminal cases to maximise use of digital technologies, and to give courts more discretion on the authentication of copies of physical documents.

Currently, copy documents to be admitted in evidence are authenticated through the use of physical signed certificates. The Bill aims to update the range of Court Rules that currently govern how copy documents should be authenticated, and by whom.

The development of DESC has significantly changed the way in which digital evidence can be stored, edited, transmitted, and presented in court. DESC incorporates multiple authentication and auditing measures to ensure the accuracy and integrity of digital documents, including where documents must be edited or redacted. As such, this voids the need for separate certificates for authentication.

Stakeholders who responded to this proposal in the consultation agreed that the transfer of digital files to any reliable digital evidence system should remove the requirement of certification. They recognised that removing the requirement of certification for files transferred to DESC could deliver significant efficiencies in the management of evidence, particularly with respect to resources.

Part 2 – Domestic Homicide and Suicide Reviews

Purpose

A Domestic Homicide and Suicide Review is a multi-agency process which allows lessons to be learned following a homicide or suicide where abuse is suspected. Domestic homicide is a gendered crime which is predominately undertaken by men against women. Whilst recognising the gendered nature, victims of domestic homicide also includes men. The review model in Scotland therefore includes victims of any gender.

The aim of the reviews is to work with relevant agencies, both statutory and voluntary/ community sector organisations, where a victim, or victim and perpetrator, have come into contact with services, to learn from the circumstances of domestic abuse related homicides and suicides. This is to assist agencies to better identify and respond effectively to the risks associated with abuse, to prevent further deaths, and to ensure that the victim and their family is kept at the centre.

There are an average of 9 police recorded homicides in Scotland per annum where the homicide victim was killed by a partner or ex-partner. Homicide in Scotland 2022-23 - gov.scot (www.gov.scot). 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).

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 was 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)

Background

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.

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 also carry 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.

Evidence

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.

Taskforce members were also issued with an online questionnaire to seek views on key aspects of the review model. 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 evidence gathered also informed the programme of consultation and targeted engagement undertaken in 2023 on key aspects of the review model. Further detail on the consultation and targeted engagement undertaken is provided below.