Emergency criminal justice provisions: joint inspection

Lord Advocate's Guidelines on liberation from police custody during Covid-19

141. The Lord Advocate's guidelines on liberation from police custody were updated in April 2018 to reflect the terms of the Criminal Justice (Scotland) Act 2016 (the 2016 Act) and to provide clarity on the overall approach to be taken. In particular, the revised guidelines outlined that there is an overarching presumption of liberty and as such, police officers must have regard to a person's right to liberty under Article 5 of the European Convention on Human Rights and consider whether it is reasonable or necessary to keep that person in custody.

142. In response to the Covid-19 pandemic, and having considered the potential impact on police custody centres and courts, the Lord Advocate issued revised guidelines on 30 March 2020. These were introduced to guide Police Scotland on the approach to be taken regarding individuals who are in police custody having been arrested during the period of disruption caused by the pandemic. The principal aim of the revised guidelines was to assist custody officers to make well-informed, risk-based decisions on the suitability of liberation of an individual from police custody and the situations in which it may be suitable to detain a person for appearance at court. This was with a view to reducing the number of individuals held within police custody centres around the country and therefore to reduce the potential for spread of Covid-19.

143. The revised guidelines reiterated existing provisions based on the presumption of liberty and provided additional direction to police on the kind of situations where refusing to release an accused person may be justified. This included for example, where it is considered that there is a likelihood of the accused reoffending, or posing a substantial risk to the safety of a victim, witness or the public which cannot be mitigated by undertaking conditions.^[37]

144. The guidelines also revised the procedures for the release of a person on an undertaking to appear at a specified court. They extended the date of the appearance at court to within 90 days of liberation, or otherwise in accordance with agreements between Police Scotland, COPFS and SCTS. The 90-day undertaking period also applied in respect of domestic abuse offences and the guidance highlighted that police officers must have regard to the terms of the Domestic Abuse Protocol^[38] when considering liberation or undertaking for persons charged with domestic abuse offences. The extended period was introduced in recognition that there were significantly fewer courts in operation during the lockdown period.

145. In July 2020, the Lord Advocate updated the guidelines in respect of the timescales for a person released from custody on undertaking to appear at court. These reverted to the original timescales which were that the date of appearance at court should generally be within 28 days of liberation, and in respect of domestic abuse offences, the court appearance must be within 14 days of liberation.

146. Prior to the pandemic, it is evident that the Lord Advocate's guidelines introduced in April 2018 had not been implemented as intended. In January 2020, Criminal Justice Services Division (CJSD) within Police Scotland had undertaken a review of the first year of implementation of the Criminal Justice (Scotland) Act 2016, including the impact of the legislation on throughput, detention in police custody, the use of investigative liberation and release on undertaking. The review recognised that there had been no discernible reduction in the number of individuals detained in custody for court appearance and only a 2% increase in the use of undertakings. While this does not suggest that decisions to detain individuals for court were not sound, CJSD recognised that the provisions had been under-used particularly in respect of undertakings.

147. As part of our inspection, we reviewed custody throughput data for a sample period between 15 March and 10 September 2019 and the same period in 2020. This enabled us to examine the impact of the revised Lord Advocate's guidelines on the levels of detention and liberation from police custody during the period of restrictions imposed as a result of the pandemic.

148. We found that the level of throughput in custody centres reduced by approximately 19% from 62,100 to 50,580. Almost 45% fewer people were held in custody for appearance at court during the sample period in 2020 compared to that in 2019, a reduction from 30,900 to 17,080. Our analysis identified that there was a considerable reduction in the use of custody to appear at court during the initial months of the pandemic. However, the number of people held for court gradually increased as the year progressed and on some dates during July and August, reached similar levels of detentions to those recorded in early March 2020, prior to restrictions being imposed.

149. In respect of release on undertaking, there was a 63% increase in the use of this procedure during the above noted period in 2020 compared with the same period in 2019. These increased from 7,350 to 11,990. The use of undertakings was highest during April and May 2020 with a gradual reduction during the following months. However, the daily rate of undertakings remained consistently higher during the sample period in 2020 as compared to 2019.

150. These figures suggest that while the revised guidelines had a considerable impact during the early stages of restrictions being imposed, there had been a gradual return to previous custody centre practices during the latter months of our sample period.

151. During our inspection, we recognised that the decisions made, predominantly by custody sergeants, on the detention or liberation of an individual from custody were often complex and required a balancing of the rights of the accused person with the potential risk posed to the community or specific individuals. This, coupled with a generally high level of custody centre throughput, creates a pressurised environment where difficult decisions are made on the release of an individual from custody. These decisions can at times be challenged by partners in the criminal justice system, by other police officers, and by victims of crime or members of the public which adds an additional layer of complexity.

Impact of revised guidelines

152. It is evident from the data that the revised Lord Advocate's guidelines had a considerable impact on the number of people detained in police custody and those held for court. Whilst it is not possible to quantify the public health outcomes of this reduced custody throughput, it demonstrates that due consideration was given to limiting the potential spread of Covid-19 when custody decisions were made.

153. We heard consistently positive comments from interviewees on the benefits of the revised guidelines in respect of the reduced number of individuals detained in custody and held for court. It was acknowledged by interviewees and many respondents to our survey, that this likely had a positive impact on public health. Some interviewees we spoke to highlighted that the reduced custody numbers eased pressure on frontline health services at a critical time.

154. The revised guidelines provided increased discretion and flexibility to custody sergeants to guide risk-based decisions on custody and liberation. Some survey respondents stated that reduced custody throughput helped free up custody resources and provided more time to undertake investigations and prepare cases. This was balanced however, with the recognised impact of virtual custody courts on custody officers in respect of additional care and welfare responsibilities as noted above at paragraph 51.

155. The revised Lord Advocate's guidelines allowed the release of individuals arrested on pre-conviction and witness warrants in certain circumstances during the pandemic to ease the number of individuals held in police custody, however we heard that these powers were not being used consistently across custody centres.

156. Between April and June 2020, COPFS received 5,365 undertaking reports, compared to 3,255 undertaking reports the previous year, an increase of 65%. The increase in the number of undertaking reports, and the reduction in cases reported to COPFS from custody, has implications for the management of resources within COPFS. The undertaking report cases with an anticipated forum of summary proceedings are usually marked by local court teams, whereas summary custody report cases are usually marked by the National Initial Case Processing (NICP) Unit. The effect of Police Scotland's application of the revised guidelines would have been to increase the workload of local court teams but to reduce the demands on NICP. While custody reports must be marked by NICP on the day of receipt, local teams have more time to mark undertaking reports, significantly relieving the time pressures on COPFS to make decisions on how cases should be managed. COPFS should continue to monitor the volume of custody and undertaking reports received to ensure that it is distributing its resources appropriately.

157. Whilst initially viewed as helpful in managing the marking of cases and keeping persons who had to be in court buildings to a minimum, a 90-day undertaking was seen by many to be too long for some individuals to manage and had the potential to be breached particularly by those with curfew conditions, thus creating additional cases. A subsequent increase in reviews to conditions imposed requested by defence agents^[39] resulted in a requirement for cases to be considered and marked in advance of the scheduled undertaking date. As undertakings returned to the usual 28 and 14-day timescales, there was increased pressure to identify available court time for these as the 90-day cases were already fixed into slots that would usually be available. This should have been a temporary problem given that timescales have since reverted. However, we have also heard that there are challenges in meeting the timescales due to the need to minimise the number of people attending court at one time due to Covid-19. In light of the information gathered during our inspection, we believe that should there be a second strict lockdown period, consideration should be given to whether it is necessary for undertakings to be extended as long as 90 days and whether the usual timescales can be retained.

158. Some interviewees raised concerns about the potential for inconsistent application and interpretation of the guidelines and were of the view that the liberation of persistent and/or serious offenders could undermine public confidence. Whilst we were not able to explore the potential impact on public opinion as this was outwith the scope of our inspection, we found no evidence of a problematic level of inconsistent application of the revised guidelines.

Revised guidelines – key messages

159. The revised guidelines have reinforced the policy objective of the 2016 Act around the presumption of liberty and the need to ensure that a person is not unnecessarily or disproportionately held in police custody. As a result, this policy objective has had greater prominence in custody decisions.

160. Police Scotland provided swift and clear guidance to staff on the implementation of the revised Lord Advocate's guidelines and provided updates as these occurred. This view was supported by several survey respondents who stated that 'clear and helpful guidance was issued at an early stage of the pandemic'.

161. When restrictions were introduced by the Scottish Government in March 2020 as a result of the pandemic, there was an initial decrease in the number of people detained, linked to a more general reduction in crime. Of those who were detained, fewer were held for court and more were liberated by way of undertaking. Whilst it is not possible to estimate the impact on public health of the reduced number of people detained in custody centres, it is considered that this situation helped to mitigate risks associated with the spread of Covid-19.

162. As restrictions eased, the rate of custody throughput returned to near pre-pandemic levels. The proportion of those held in custody for court also increased however did not return to the pre-pandemic levels of approximately 50%, but averaged 40% of throughput.

163. A significant number of individuals held in custody for court appearance were subsequently liberated from court. Following one weekend during the aforementioned sample period, 86% of people detained for court across Scotland were subsequently released from court. Many of these individuals would have been released on bail with conditions which could potentially have been imposed by way of undertaking. This raises issues regarding the basis for custody decisions in some cases, particularly those in which bail was not subsequently opposed by prosecutors, and highlights the need for increased partnership working between police and prosecutors with a view to achieving a greater understanding of which cases would be most likely to result in a period of remand to custody.

164. We found that there was willingness among police officers and prosecutors to develop a greater understanding of colleagues' roles and responsibilities in relation to custody and marking decisions. This could be achieved through developing joint training opportunities and collaboration on enhanced operational guidance.

165. As outlined above, we found a gradual return to custody centre practices which saw a return to pre-emergency provision levels of detention of individuals for appearance at court. It is evident therefore that in order to achieve continued effective implementation of the revised Lord Advocate's guidelines, a greater level of culture change will be required to challenge previous custody decision making practice.

166. Custody decisions can be complex and take place in a pressurised environment where issues regarding an individual's right to liberty are balanced with public protection and the safety of victims and witnesses. We found that in addition to this challenge, there was at times a tension between local policing perspectives on liberation of individuals from custody and CJSD decisions to release an individual on the undertaking that they appear at court at a later date.

167. We found that decisions on the release of individuals accused of domestic abuse offences were particularly challenging and this prompted responses from several interviewees, particularly those with custody experience, that they would benefit from additional support and operational guidance to assist with custody decisions particularly where these were contentious. It was also noted that the introduction of a risk assessment template to guide custody decisions may encourage consistency across the country.

168. We noted from our review of key documents that a paper provided to the Scottish Government Victims Taskforce,^[40] highlighted that releasing people from police custody who were accused of domestic abuse offences had raised anxiety for some victims. It was suggested within the report by domestic abuse support organisations that the use of undertakings did not give them time to contact victims and/or to assist them to put a safety plan in place.

169. We recognise this additional complexity for decision makers on considering the release of an individual from custody. We heard from several interviewees that there is a need for greater understanding amongst the public of the conditions that can be imposed on undertakings and the weight that these carry should they be breached. We suggest therefore that Police Scotland explore further opportunities to engage with victim support groups on this subject to promote a shared understanding of this aspect of criminal justice procedure and the protections that can be provided to victims by imposing an undertaking with conditions.

170. During our inspection, we noted that Police Scotland intended to pilot the introduction of five police inspectors into the role of quality assurance officers, to review cases marked for court as well as other quality assurance functions. This was with the intention of promoting greater consistency in custody decisions and the use of undertaking procedures and to enable those decisions to be taken at a more senior level where required. This approach had been in place for a short time during the lockdown period and likely assisted in making decisions which resulted in fewer people being held for court and more being released on undertakings. The proposed pilot therefore, would further embed practices that were shown to work during lockdown. We support this initiative and encourage strong partnership working between the inspectors and prosecutors in COPFS.

171. The proposed quality assurance inspector role has the potential to promote greater consistency in custody decisions and share learning across the country. This could promote greater compliance with the revised Lord Advocate's guidelines and human rights law. We suggest that Police Scotland also take this opportunity to provide comprehensive guidance to assist operational decision makers in custody disposal decisions. Effective working arrangements between quality assurance inspectors and custody review inspectors^[41] would be essential in order to achieve enhanced monitoring and management of custody decisions.

172. We consider that the revised Lord Advocate's guidelines have had a positive impact on custody decision making. While it is not strictly the content of the guidelines themselves that may merit retention, it is the cultural change they prompted within Police Scotland and the greater focus on the presumption of liberty that require to be sustained.