Emergency criminal justice provisions: joint inspection

Introduction

The aim of this joint inspection was to assess the use and impact of key emergency criminal justice provisions introduced in response to the Covid-19 pandemic, and to consider whether any aspects of the emergency provisions could result in more efficient and effective ways of working in the longer term.

The inspection was carried out jointly, by HM Inspectorate of Constabulary in Scotland (HMICS) and HM Inspectorate of Prosecution in Scotland (IPS). We therefore considered the provisions primarily from a policing and prosecution perspective, however it was not possible to assess the provisions without also considering their implications for the wider criminal justice system. Had there existed a dedicated inspectorate with oversight of the Scottish Courts and Tribunals Service (SCTS), we would have sought to work with them to provide an even more rounded view of the emergency provisions. Nonetheless, we are grateful to SCTS for its open engagement and facilitation of our inspection.

The background to the joint inspection is set out in our Terms of Reference, published on 31 July 2020.^[1]

A range of provisions were made to enable the criminal justice system to continue to operate during the initial response to the pandemic. Our inspection focused on four of these, three of which were legislative and one of which was a change in policy. The four provisions were:

(1) Electronic signature and electronic transmission of documents^[2]

(2) Remote, electronic attendance of parties at court^[3]

(3) The ability to take a case beginning with an appearance from custody in any sheriff court ('national jurisdiction')^[4]

(4) The Lord Advocate's Guidelines on liberation by the police during Covid-19.^[5]

The Covid-19 pandemic has had an extraordinary impact on the criminal justice system, as it has for other areas of public service delivery. Responding to the pandemic has required remarkable efforts from those working across the system to be adaptable, innovative and to work at pace to maintain the integrity of the system and to continue to protect the public. While much focus has rightly been on health care workers, we would like to pay tribute to those working in various criminal justice roles who have continued to deliver essential services.

The scale and pace of the changes required to maintain the operation of the criminal justice system have been a significant challenge. Criminal justice professionals have had to operationalise law and policy changes in quick time, and re-engineer processes to meet new requirements. Any suggestions for improvement or perceived criticisms in this report should be set against this context.

Working across criminal justice agencies has been essential, and we welcome the collaborative approach that has been taken. We note, in particular, the effective partnership working between Police Scotland and the Crown Office and Procurator Fiscal Service (COPFS).

To help coordinate the response to the pandemic, a Criminal Justice Board was established as a sub-group under the auspices of Scotland's Justice Board.^[6] The Criminal Justice Board includes senior representatives from a range of criminal justice organisations including Police Scotland, COPFS, SCTS, the Scottish Prison Service and Community Justice Scotland. Focusing on the 'recovery, renewal and transformation' of the criminal justice system, the role of the Board is to drive forward a system level programme of work to deliver change. The Board has oversight of a number of workstreams, including those on virtual custody courts and virtual summary trials, and a number of enabling projects, such as those on a digital evidence sharing capability and a witness portal. Each of these workstreams or projects is led by one of the justice organisations.

These cross-agency governance arrangements are supported by internal governance arrangements within each organisation which have developed in response to the pandemic. For example, Police Scotland has refined the portfolio of one of its assistant chief constables so that he is solely focused on criminal justice policy issues, in support of the work of the Criminal Justice Board. This includes strategic responsibility for the digitally enabled policing programme which has strong links to ongoing criminal justice reforms. This demonstrates a commitment by Police Scotland to supporting the broader criminal justice agenda, which we welcome and which is evidenced further by the secondment of a chief superintendent to the Scottish Government to work on recovery and transformation of the criminal justice system. The COPFS response to the pandemic has been led by an internal Corporate Resilience Group, supported by what was initially known as the Operational Response Group and which has appropriately developed into an Operational Recovery and Transformation Group.

While the pandemic has brought uncertainty, risk and numerous challenges, it has also brought opportunity. Many of the innovations introduced in response to the pandemic are ones that have long been contemplated but had not yet come to fruition for various reasons. For some innovations, the pandemic has been a catalyst and for others, an accelerator. Some innovations are considered to be long overdue – until Covid-19, the justice system generally relied on face-to-face interactions and paper-based processes. As one respondent to our survey said, 'It shouldn't take a global pandemic to force the criminal justice system into the 21^st century'.

While many innovations have been vital to securing the continued operation of the criminal justice system and may continue to be of benefit in the longer term, their swift introduction without the usual consultation or equality and human rights impact assessments, risks them not gaining the support required to work as effectively as possible or, worse, risks the fairness of proceedings being called into question. It is now an appropriate time to take stock, assess their operation and ensure that the benefits are being fully realised without compromising the fair administration of justice. There should be a clear distinction between the response to the public health emergency and any future reform of the criminal justice system in Scotland, albeit that learning from the response may help shape its transformation. We understand that cross-agency work has recently begun on assessing the impact of changes made in response to the pandemic on equality and human rights, which we welcome.

Responding to the pandemic has been a challenge for all the criminal justice partners, but it is important to note the scale of the work still to be done. The criminal courts closed to all but essential business in March 2020. While some proceedings resumed as restrictions eased, by August 2020, the backlog of High Court and Sheriff and Jury solemn cases was 750 and 1,800 respectively, and the backlog of summary cases was 26,000.^[7] The backlog continues to grow as, while police recorded crime and the number of cases reported to the procurator fiscal initially fell during the lockdown period, they were returning to almost pre-Covid levels from May 2020. Modelling has shown it may be several years before the backlogs are addressed. This will have significant consequences for the accused, victims and witnesses involved in cases awaiting trial and risks damaging confidence in the criminal justice system. Tackling the backlog will require investment and continued innovation by the criminal justice partners.

This report sets out our findings in relation to each of the four provisions. We describe how they have been used, what benefits they have had and what issues and challenges have been encountered. We also discuss the value of the provisions:

• during the initial response to the pandemic – broadly equivalent to the lockdown period between March and the end of May 2020
• during the recovery period – beginning at the end of May 2020 and continuing until restrictions relating to the pandemic are lifted and backlogs have been substantially reduced (while acknowledging that further periods of lockdown may occur, returning the criminal justice system to a state more akin to that during the initial response to the pandemic)
• post-pandemic – when the criminal justice system has returned to business as usual, albeit that some ways of working may have permanently changed.

Appendix 1 sets out the results of a survey of criminal justice professionals we carried out in support of our inspection in more detail. Throughout this report, and in Appendix 1, we have used quotes from the responses we received to our survey. These quotes reflect the themes raised in the responses but do not necessarily indicate our endorsement of what has been said.

We gathered information about the emergency criminal justice provisions from a range of sources. We reviewed documents and data relating to the provisions, and sought the views of those working in the criminal justice system via an online survey which received 479 responses. We also carried out more than 60 interviews of those working in the criminal justice system. The majority of those we interviewed worked for either Police Scotland or COPFS, but we also interviewed Sheriffs Principal and defence agents, and staff working for SCTS, the Scottish Prison Service, GeoAmey and other stakeholders. Every interview was carried out by two inspectors – one from IPS and one from HMICS. This ensured that all issues raised were viewed from both a prosecution and policing perspective.

We observed governance meetings relating to the use of the criminal justice provisions and two virtual summary trials. We carried out on-site visits to observe the operation of virtual custody courts at Saltcoats, Falkirk and Cathcart police custody centres. During these visits, we were able to speak to numerous staff about the emergency provisions as well as accused persons who had appeared at court virtually. We also observed the operation of a virtual custody court from the court's perspective, at Glasgow Sheriff Court.

Throughout our inspection, we sought to comply with public health guidance and minimise the risks to our own inspectors as well as those with whom we met. All but three of our interviews were carried out by video or telephone conference, and appropriate safety and hygiene precautions were taken during our on-site visits.

Our fieldwork was carried out in August and early September 2020. At that time, the criminal justice system was still responding to the pandemic and assessing how it could recover. We are mindful that our inspection was carried out in an evolving context and as decisions were being made about the use of the emergency criminal justice provisions, resulting in developments one day or week to the next. Many of the issues identified in our report will already be the subject of discussion and action among the criminal justice partners.

We would like to thank the personnel of Police Scotland and COPFS who facilitated our inspection, as well as all those who shared their experience and views of the emergency criminal justice provisions. We are particularly grateful for their input at a time when they were dealing with significant challenges brought about by the Covid-19 pandemic.

Laura Paton
HM Chief Inspector of Prosecution

Gill Imery QPM
HM Chief Inspector of Constabulary

September 2020