Emergency criminal justice provisions: joint inspection

Appendix 1: Survey results

To inform our inspection of the emergency criminal justice provisions, and in light of the inspectorates' duty relating to user focus,^[42] we invited those working across the criminal justice system to respond to an online survey regarding their experience of and views on the provisions. The survey was open between 6 and 21 August 2020. We received 626 surveys but 147 were excluded from our analysis because they contained no useable data – the respondents either did not answer any of the questions or they said none of the questions were relevant to their role.

Of the remaining 479 responses:

• 54% of respondents worked for COPFS
• 28% were police officers or staff
• 8% were defence agents
• 2% were sheriffs or judges
• 1% worked for SCTS.^[43]

The remaining 5% of responses were received from a range of criminal justice professionals including advocates, social workers, those working for the Scottish Prison Service and third sector organisations, forensic scientists, and civil servants.

Electronic signature and electronic transmission of documents

We asked respondents whether they had experience of the emergency provision relating to the electronic signature and electronic transmission of documents. Of the 479 respondents, 476 responded to this question:

• 74% (352) said they had experience of the provision
• 15% (70) said they did not or had not yet had experience of the provision
• 11% (54) said the provision was not relevant to their role.

Satisfaction

For those who had experience of the provision, we asked how satisfied they were with the new approach to electronic signature and electronic transmission of documents. Respondents indicated a high level of satisfaction, as shown at Chart 2.

The level of satisfaction with electronic signature and electronic transmission of documents was consistently high across professional groups. For example:

• 94% of COPFS staff were satisfied
• 93% of police officers and staff were satisfied
• 93% of defence agents were satisfied
• 91% of sheriffs and judges were satisfied.

Benefits

We asked respondents what benefits electronic signature and electronic transmission of documents offer. 351 people responded to this question. Only 3% of respondents said there were no benefits. Of those who identified benefits, those most commonly cited are listed below. The benefits identified were generally consistent across the professional groups.

Efficiency

The majority of respondents said the process of signing and sending documents was now faster, that time had been saved and that delays had been reduced. These benefits were particularly useful for out-of-hours work. Efficiency and time saving benefits were those most commonly mentioned across all the professional groups that responded to our survey.

A huge benefit on time and resources. The process of serving an indictment could take up to 24 hours with numerous paper copies generated… now electronic signatures are applied the whole process takes less than 30 minutes. (COPFS staff)

Saves time trying to find relevant people to sign and lodge the document. (COPFS staff)

Easier and less time consuming. Leaves a trail of you lodging too. (Defence agent)

Electronic movement ensures the right parties have the information receipted within quick time. This supports a more efficient use of information and reduces risk of late or missing papers. (Police officer/staff)

I live and work on an island and taking physical documents to court takes time and is not always feasible operationally. (Police officer/staff)

Avoids police officers travelling to my home and avoids me getting dressed in the middle of the night to deal with them. Saves a considerable period of time. (Sheriff/judge)

Much more efficient way of dealing with out of hours warrants. (Sheriff/judge)

Savings

Linked to the theme of efficiency, respondents said savings could be made on unnecessary travel, paper, printing, transport and postage, as well as savings on staff time which could be reinvested in other work. Time and cost savings for those working in remote areas were highlighted.

It's an efficient way of serving documents. We're saving a fortune on postage. (COPFS staff)

Allows colleagues to work from home and not be confined in the office, also easier process to serve on solicitors rather than arranging the police. (COPFS staff)

Incredibly quick, meant that a warrant could be granted without leaving the office to drive to a sheriff's home address, which usually contributes to a significant amount of time. (Police officer/staff)

Faster and more secure delivery, decreases need for officers to collect documents for service and enables them to focus on other duties. (Police officer/staff)

Saves time and travel and has probably had the biggest positive impact on policing during Covid and should be considered as becoming BAU [business as usual]. (Police officer/staff)

Allow for warrants to be granted without physical presence of deponent so minimises disruption to all involved. (Sheriff/judge)

Security

Respondents felt signing and sending documents electronically was more secure, and provided an audit trail.

Speed of serving, reduced workload for Police Service of Scotland, better electronic audit trail for service of indictment. (COPFS staff)

More difficult to 'misplace' an electronic document. Speed of delivery, electronic trail which would be auditable and transparent. (Police officer/staff)

Speed, ease of service and it creates an electronic paper trail. (Defence agent)

Ease

Linked to efficiency, respondents felt the electronic signature and electronic transmission of documents was easier and more convenient.

Quicker and more convenient. Means the author of the document can sign it, rather than someone else. (COPFS staff)

Easy access; remote working; universal access if required; lack of bulk; easy portage. (Sheriff/judge)

Quick service of indictments, rather than waiting on police to deliver. Can get them on our phones at court rather than waiting on return to office. (Defence agent)

Safety during Covid-19

Respondents said there was a reduced risk of transmitting infection by sending documents electronically, and more use of electronic processes generally had facilitated home working. The ability to work at home as a result of electronic processes was also mentioned by some respondents as a benefit without reference to Covid-19.

Prevents need for face to face contact for provision of for example search warrants. (SCTS staff)

Less risk of transmitting/catching the virus if staff do not have to attend offices to sign the documents. (COPFS staff)

Environmentally friendly

Respondents felt they were working in a more environmentally friendly and sustainable way as a result of the reduced need to print and transport documents.

I truly feel this is a far more expedient and environmentally friendly way of working. (COPFS staff)

Environment - saves on paper, use of printer ink / power, and transfer of documents by mail (carbon footprint). (Police officer/staff)

Downsides

We asked respondents whether there were any downsides to the electronic signature and electronic transmission of documents. The most prevalent themes were:

Security

While security was highlighted as a benefit by some, it was also cited as a downside. Respondents noted risks relating to the forging of signatures, of electronic documents going awry, and of legal challenges. Some suggested the need for a system that confirmed receipt of documents.

Lack of face to face interaction may lead to fraudulent obtaining of court orders, warrants, etc. (COPFS staff)

The concept of a principal hard copy. Are we confident in the security and authenticity of those signing? (COPFS staff)

Not all agents are on secure networks. (COPFS staff)

There are risks of documents going astray especially for unrepresented accused. (Defence agent)

Technical/IT issues

Respondents noted IT limitations or weaknesses which impeded the use of electronic signature and electronic transmission of documents. They also noted storage limitations, potential loss of files, and server failure.

IT at all ends of the process has to be suitable. Potential for loss/corruption of files in the event of IT failure. (Police officer/staff)

Police systems are not modern/advanced enough to do this timeously and as easily as could be achieved. (Police officer/staff)

The only downside I have encountered is that the IT system to support electronic signatures is a bit clunky. (COPFS staff)

Broadband connectivity; lack of e-memory. (Sheriff/judge)

Effectiveness

Some respondents were concerned about the effectiveness of electronic document sharing. Some thought it was complicated, noting different rules for different documents.

Require constant monitoring of emails so as not to miss service of an important document. (Defence agent)

Further difficulties if receipt not acknowledged or 'the wrong mailbox' is selected for the recipient where multiple email addresses are available. (Defence agent)

Different rules for different documents seems overly complicated. (COPFS staff)

Time taken/delays

Some respondents were concerned that the use of electronic signature and transmission of documents may take longer or cause delays – this was linked to concerns about effectiveness and IT difficulties.

Very time consuming and not simple enough. (COPFS staff)

Delay in documents being sent from the court resulting in persons being held in custody longer. (Police officer/staff)

Limited reach of electronic system

To work effectively, an electronic process requires senders and recipients of documents to use it. There was some concern that some people or organisations do not have the capability for electronic processes (either through preference or logistics).

SCTS remaining on a paper based system. (COPFS staff)

Lack of relevant e-mail addresses for solicitors firms or being unsure whether they access their [Criminal Justice Secure Mail] account. (COPFS staff)

Decision making

A small number of respondents noted concerns about the impact of electronic processes on decision making, including that it may lead to reduced scrutiny.

The absence of discussion means the more controversial/borderline decisions are not so easily explained. (COPFS staff)

The most commonly mentioned downsides across the professional groups were:

• for COPFS staff, it was security and delays
• for police officers and staff, it was technical/IT issues
• for defence agents, it was concerns about effectiveness
• for sheriffs and judges, it was security, technical/IT issues and decision making

Changes

We asked respondents what changes, if any, they would make to the use of electronic signature and electronic transmission of documents. The following themes were identified in their responses:

Expand the electronic approach

Respondents were keen to extend the use of electronic signature and electronic transmission to more types of document and processes and to have a more standardised approach across the criminal justice system. They also wanted to remove the need for services to state that they will accept an electronic mode of delivery before it can be sent. In particular, respondents wanted to be able to send all documents to the sheriff court electronically, and to have electronic forensic reports.

Being allowed to send electronically to the sheriff clerk. (COPFS staff)

Extend the use of electronic signatures and documents for other processes and document between partners- electronic arrest warrants, bail orders, JP search warrants, civilian citations. (Police officer/staff)

Would like the process extended to other documents, in particular interview transcripts. (COPFS staff)

Clarify time when electronic service is deemed. Change the legislation to mandate all, Crown, defence, and in particular SCTS must accept documents electronically. (COPFS staff)

Simplify and streamline the system

Respondents were keen to simplify and streamline the electronic signing and document sharing process.

I would legislate that anything which is uploaded to the National Disclosure Website should be treated as served on the agent for the accused (for whatever purpose). (COPFS staff)

I would bring it in permanently and phase out lodging and serving hard copy documents. (Advocate)

IT improvements

Respondents were keen to see IT improvements and made various suggestions. These related to how documents could be signed electronically, how to secure documents once signed, having a team or system in place to ensure receipt and secure storage of documents, having adequate online storage facilities, and ensuring that organisational IT systems were adequate and functional.

I would make the documents locked for editing before they get sent out electronically as this may cause issues in the future. (COPFS staff).

Clearer guidance needed

Some respondents felt there was a need for clearer guidance on use of electronic processes if they are to be used effectively, as well as a need for training.

Make the guidance clearer on where you find some of the documents that are used for electronic service and signature. (COPFS staff)

Ensure that everyone competent to sign documents is trained in the procedure for signing electronically. This will ensure the workload of signing documents is shared equally. (COPFS staff)

Security

Respondents suggested that changes were need to improve security, including developing a process to acknowledge receipt of documents (such as adding a digital stamp to documents that had been received) and to authenticate signatures.

Use of DocuSign or equivalent security measure. (Police officer/staff)

Use thumb print technology to remove the need for signature on documents like warrants, this would make it even more efficient. (Police officer/staff)

Retain elements of other/previous systems

Several respondents said there could be learning from the smartcard system used by the Law Society of Scotland which they felt was secure and easy to use. Some respondents were also keen to retain the option of face-to-face discussion and wet signatures, where discussion adds something to the decision making process.

Among both COPFS staff and police officers and staff, the change suggested most often was the need to expand the use of electronic signature and electronic transmission of documents. They also highlighted the need for IT improvements. COPFS staff also made several suggestions around simplifying and streamlining the process, as did defence agents and sheriffs and judges.

Retention

We asked respondents whether the emergency provision allowing for the electronic signature and electronic transmission of documents should be retained once the emergency Covid-19 situation is over. Of the 344 respondents who answered this question, 95% (328) said that the provision should be retained. Many of the comments related to the provision being a timely step forward.

This has modernised the way we work and has brought the process into the 21st century. It is far more efficient to have the documents served electronically. (COPFS staff)

This has been needed … for a long time and is a significant step forward. (COPFS staff)

It would be a backward step to return to old, slow time hard copy/wet signature, transfer of documents when all of the work has been done between partners to make the changes albeit under the emergency legislation but surely this should be retained. (Police officer/staff)

It is a lot more efficient and something that should have been done years ago… It would be madness to go back. (Advocate)

Support for retention was generally high across the professional groups:

• 97% of COPFS staff said that the provision should be retained (10% of whom said it should be retained with caveats, such as following review a process of review)
• 100% of police officers and staff said it should be retained (3% of whom said it should be retained with caveats)
• 78% of defence agents said it should be retained (24% of whom said it should be retained with caveats)
• 90% of sheriffs and judges said it should be retained
• 90% of 'other' respondents said it should be retained (one of whom noted a caveat).

Remote, electronic attendance of parties at court

We asked respondents whether, since the introduction of the emergency criminal justice provisions, they had been involved in proceedings where they or other parties appeared remotely ('virtual' proceedings). Of the 417 people who answered this question:

• 37% (155) said they had been involved in virtual proceedings
• 28% (118) said they had not, or had not yet, been involved in virtual proceedings
• 35% (144) said this question was not relevant to their role.

We asked the 155 respondents who had been involved in virtual proceedings which type of proceedings they had been involved in – custody courts, summary trials, solemn trials, appeals or other proceedings:^[44]

• 66% (103) of respondents had taken part in a virtual custody court
• 7% (11) had taken part in a virtual summary trial
• 5% (8) had taken part in a virtual solemn trial
• 15% (23) had taken part in a virtual appeal
• 39% (61) had taken part in other criminal proceedings including preliminary hearings, intermediate diets, bail appeals and pleading diets, amongst others.

Of the 155 respondents who said they had been involved in virtual proceedings:

• 53% (82) were from COPFS
• 21% (32) were defence agents
• 10% (15) were police officers or staff
• 7% (11) were sheriffs or judges
• 3% (5) were from SCTS
• 6% (10) were from other criminal justice organisations, such as the Scottish Prison Service.

Respondents were asked by what means they had participated in virtual proceedings. Of the 147 people who responded to this question, 85 had used video conferencing, 14 had used telephone conferencing, and 48 had used both.

Satisfaction

Respondents were asked how satisfied they were with the virtual proceedings in which they had participated. Overall, 65% of respondents were either satisfied or very satisfied and 35% were either dissatisfied or very dissatisfied. Those who had participated in virtual proceedings via video conferencing tended to be more satisfied than those who had participated via telephone. There was variation in satisfaction levels across professional groups with defence agents tending to be less satisfied than others.

Effective participation

We asked respondents whether the accused person or witnesses are able to participate effectively in proceedings when they appear remotely.

In relation to the accused:

• 69% of respondents said the accused would be able to participate effectively when they appeared remotely, although this fell to 59% among those respondents who had actually participated in virtual proceedings
• 31% said the accused would not be able to participate effectively, and this rose to 41% among those respondents who had participated in virtual proceedings

Responses to this question varied by professional group:

• among COPFS staff, 82% said the accused would be able to participate effectively, and 18% said the accused would not be able to participate effectively
• among police officers and staff, 91% said the accused would be able to participate effectively, and 9% said the accused would not be able to participate effectively
• among defence agents, only 7% said the accused would be able to participate effectively, and 93% said the accused would not able to participate effectively
• among sheriffs and judges, 50% said the accused would, and 50% said the accused would not, be able to participate effectively.

In relation to witnesses:

• 74% of respondents said witnesses would be able to participate effectively when they appear remotely, although this fell to 56% among those respondents who had participated in virtual proceedings
• 26% said witnesses would not be able to participate effectively, and this rose to 44% among those respondents who had participated in virtual proceedings.

Again, responses varied by professional group:

• among COPFS staff, 79% said witnesses would be able to participate effectively, and 21% said they would not
• among police officers and staff, 95% said witnesses would be able to participate effectively, and 5% said they would not
• among defence agents, only 19% said witnesses would be able to participate effectively, and 81% said they would not
• among sheriffs and judges, 57% said witnesses would be able to participate effectively, and 43% said they would not.

Comments regarding effective participation tended to focus on the accused's inability to hear and follow proceedings properly due to poor quality IT links. They noted that the accused may be reluctant to interrupt proceedings to say there is a problem, or where they try to do so, they may struggle to catch the attention of their agent or other participants. There were also some concerns about the ability of vulnerable accused persons to participate effectively in virtual proceedings.

While it was strange and new, the court was able to function effectively and parties were keen to cooperate and ensure it did so with no prejudice to anyone involved. (COPFS staff)

The sound quality is inconsistent and sometimes there is either muffled sound at both ends or delay in the sound being received. (Sheriff/judge)

The accused cannot hear everything, and it is hard to tell if they understand. It is hard to judge if a client is vulnerable in this situation. (Defence agent)

Some accused persons are not following what is happening via video link and cannot easily get the attention of their agent. (COPFS staff)

Because the accused are not formally identified by the clerk, no one knew that the accused could not hear anything at all during the hearing. It only transpired afterwards at the full committal hearing. (Defence agent)

Effective, confidential consultation

We asked whether effective and confidential consultation between the accused and their legal representative is possible when either of them appear remotely. We asked whether this was possible before, during and after proceedings.

Before proceedings

Of the 190 responses to this question, 72% said that the accused and their legal representative can have effective, confidential consultation before virtual proceedings. However, there were variations across professional groups. Significantly, 80% of defence agents said that effective, confidential consultation was not possible.

During proceedings

Of the 182 responses to this question, 46% said that the accused and their legal representative can have effective, confidential consultation during virtual proceedings. Again, there was some variation across professional groups with 100% of defence agents saying that effective, confidential consultation with their clients was not possible during virtual proceedings.

After proceedings

Of the 175 responses to this question, 65% said that the accused and their legal representative can have effective, confidential consultation after virtual proceedings. However, 93% of defence agents said that it was not possible to have effective, confidential consultation after virtual proceedings.

Overall, defence agents generally did not feel effective, confidential consultation with their clients was possible before, during or after virtual proceedings. Those not involved in such consultations, including COPFS staff, police officers and staff, sheriffs and judges, thought effective consultation between the accused and their legal representative was possible during virtual proceedings.

Many comments were made regarding effective, confidential consultation between the accused and their legal representative. There was concern about a lack of suitable facilities and a lack of time for such consultation to take place. Regarding facilities, there was concern among some respondents that the video link being used for consultations is the same as that used by the court, which can cause disruption and delay.

Consultation is more difficult remotely where the accused is vulnerable, new to the court process or has mental health difficulties. (COPFS staff)

There is no capacity for quick, private conversations to deal with short but crucial issues. (Sheriff/judge)

Court facilities do not allow video conferencing between solicitor and accused or witness other than in court so if necessary, and it can be, court has to be disrupted to allow it to take place. (Sheriff/judge)

The provision for accused persons and their solicitors is wholly inadequate. (Defence agent)

I was not able to consult with the client via a video link prior to his hearing. (Defence agent)

It can be difficult for [the defence] to consult confidentially depending where the accused is held. (COPFS staff)

Emptying the court every time a case calls in order for the agent to speak to his client is both frustrating and time consuming. (COPFS staff)

Police staff/custody staff had to be present within video rooms…not really very confidential. (Police officer/staff)

Matters often arise shortly before, during or immediately following proceedings where consultation with the accused is necessary and desirable but not possible. (Defence agent)

There is not enough rooms in the courts to allow for effective communication before, during and after proceedings. There is often long queues before proceedings and often you cannot see your client in the allocated rooms. The accused cannot or does not feel he/she can speak during proceedings. After proceedings the prison has usually already taken the accused back to their room. (Defence agent)

It is impossible for an agent to see a client after proceedings as other business is being heard in the court. (COPFS staff)

Support for vulnerable accused and witnesses

We asked whether there are suitable arrangements in place to support the participation of the accused or witnesses when they are either vulnerable or have additional support needs (such as those with disabilities, learning difficulties or mental health issues, children and those whose first language is not English).

Of the 176 responses, 52% indicated there were suitable arrangements in place while 48% said there were not.

Views varied across professional groups, with 87% of police officers and staff saying suitable arrangements were in place, compared to 55% of COPFS staff. Only 20% of defence agents thought suitable arrangements were in place.

Arrangements are well established to provide support as required including interpreters. (COPFS staff)

We have occasionally been unable to proceed due to the difficultly posed by the requirements to involve an interpreter. (COPFS staff)

The process for support hasn't changed, either with advocacy or solicitors, it's just as easy via VC or telephone. (Police officer/staff)

I am not aware of any assistance. (Sheriff/judge)

It is utterly hopeless for someone with language difficulties and is entirely inappropriate for the vulnerable. (Defence agent)

One cannot assess someone to see how vulnerable they are over a telephone line with a terrible reception. This has been happening with duty clients where agents haven't previously met the accused. (Defence agent)

Benefits

We asked respondents what benefits remote attendance at court offers. The main themes were:

Safety while maintaining court business

Many respondents noted a benefit that was specific to the public health situation. They said remote appearance allowed essential court business to continue in a way which maximised the safety of participants.

Minimises the number of personnel within the court room to allow for proper social distancing. (COPFS staff)

I suppose the benefit is a reduced risk of infection for all concerned. (Defence agent)

There are considerable benefits in remote attendance. It obviates the need for prisoners to be brought to court; dispenses with the requirements for solicitors to be physically present for cases; and permits the efficient running of business. (Sheriff/judge)

It allows the court to continue to deal with cases in a safe manner. (Sheriff/judge)

Time, cost and resource savings

Across the professional groups, respondents noted the potential for savings in terms of time, cost and resources. Some said this was only a potential benefit and said the current arrangements would need to improve before savings could be fully realised. Police officers and staff, in particular, noted the opportunity remote appearances afford to reduce the time they spend waiting at court to give evidence, and travelling to and from court.

Transporting fewer prisoners reduces the risk of infection to others, it is also more efficient and presumably saves considerable costs. (COPFS staff)

There are savings in terms of travel time and reduction in risk associated with the presence of the accused and witnesses in the same building. (COPFS staff)

Saves time, there is so much time wasted for police officers and staff travelling to court, days spent in witness waiting rooms, re-rostered rest days and annual leave etc. (Police officer/staff)

Only called when court actually ready to hear evidence. More efficient process. (Police officer/staff)

Less abstraction from day job. (Police officer/staff)

You would think that time and money would be saved as there would be less travelling. (Defence agent)

If the system could ever be made to work then it could potentially save some time however, this is not currently the case and as a consequence the time it is taking to do remote cases, certainly in courts, is vastly longer than if they were physically present and it is costing a great deal more money as a result. (Defence agent)

Efficiency and flexibility

Some respondents suggested that remote proceedings are more efficient and more flexible, and said there could be a new approach to scheduling proceedings.

Ability to deal with matters even when the parties are far apart e.g. cases affecting island and remote communities and to deal with them quickly and efficiently. (COPFS staff)

Provides an element of scheduling rather than all cases calling at 10am. (COPFS staff)

Benefits for victims and witnesses

Respondents suggested that remote proceedings offer benefits to victims and witnesses. For victims, these include not having to see the accused in person and potential protection from further victimisation. Attending remotely may also minimise disruption to witnesses, particularly expert witnesses.

Negates the pressure already put on witnesses to attend court who are already scared of the process. (Police officer/staff)

I work in a remote environment where witnesses and accused attendance for criminal proceedings is a significant logistical challenge, remote attendance removes potential barriers to cases running through difficulties. (Police office/staff)

No benefits

Some respondents, including a majority of defence agents, noted there were no benefits arising from remote appearance.

[There is] none at all unless the person has COVID. (Defence agent)

None from a defence point of view. (Defence agent)

Downsides

We asked respondents whether there are any downsides to the remote attendance of parties at court. The main themes emerging from their responses were:

Contact between the accused and their legal representative

Respondents were concerned that there was not sufficient opportunity for the accused to consult with their legal representatives, and some said a lack of face-to-face contact was problematic.

Lack of facilities, unreliability of systems, unfairness in accused regarding taking proper instructions and being able to identify any additional needs properly. (Defence agent)

We do need to ensure that there is a robust solution for agents to be able to speak with their clients for consultation – this should not be rocket science and should not detract from us moving forwards. (COPFS staff)

Increased length of proceedings

Respondents suggested that remote proceedings were not more efficient and could actually take longer than in-person proceedings. This was sometimes linked to proceedings being disrupted to allow for consultation between the accused and their legal representative. Scheduling issues also contributed to inefficiencies.

The provision for accused persons and their solicitors is wholly inadequate. At the sheriff court where I mainly practice, there is one video link for pre and post case consultation that is required to be shared between all agents trying to deal with custodies, custody trials and full committals. (Defence agent)

There are multiple downsides. It slows the court down. There are not enough facilities for this system to work. It is not fair on the accused who should be able to see and speak to a solicitor. (Defence agent)

IT and technical issues

Respondents felt the current IT infrastructure within the criminal justice system is not capable of supporting remote attendance, and several noted IT equipment failing. The quality of the audio was mentioned frequently, with those who had participated in virtual proceedings saying they had found it difficult to hear what was being said or to be heard.

Whilst remote attendance is great in theory, and I think it should be worked towards for procedural courts in future, at the moment the technological infrastructure and manpower by some agencies is not really there. (COPFS staff)

Technology invariably fails - remote attendance should be a backup solution only not the default position. (COPFS staff)

The available technology is unsatisfactory for this to become normal. Accused repeatedly claim they cannot hear. (Defence agent)

I doubt the accused follows the proceedings given the poor-quality system. I am often contacted afterwards to ask what went on. (Defence agent)

I can't hear, parties can't hear, the link breaks frequently, its shambolic and the dignity of the court is absent. (Sheriff/judge)

IT systems need upgraded in court to allow multi-point link and better audio links. Wi fi inadequate. Phone link poor on bench. (Sheriff/judge)

Increased time spent in police custody

A recurring theme, raised frequently by police officers and staff, was that accused persons spend longer in police custody than previously as a result of virtual custody courts. This is time they previously would have spent in court cells, and increases demand on police resources, including staff and the custody estate. They felt current custody provision was not suited to the new process.

Custody are left with prisoners sometimes until mid-day…it can take a long time for their paperwork to come through delaying their release or transfer to prison. (Police officer/staff)

It has sometimes meant that offenders were in police custody for prolonged periods which they would have previously spent in court cells. (Police officer/staff)

In addition to the themes raised above, there was some concern that communication between COPFS and defence agents was more challenging in relation to remote appearances. It was also suggested that the interests of justice were not always served by remote appearance. One respondent said:

I am uncomfortable with the idea of sentencing someone to imprisonment when he is not physically before me. I will not do it if the link is audio only – I do not think any objective observer would regard that as justice being seen to be done. (Sheriff/judge)

Improvements

We asked respondents what, if anything, about remote appearances could be improved. The most frequent suggestions were:

Increase video conferencing facilities

Respondents noted the need to increase the capacity of the system to allow for more video conferencing to take place. This included at police custody centres and at prisons.

Prison link needs better organisation. (COPFS staff)

More links from prison. (COPFS staff)

Install remote technology in ALL custody suites, this is not new or expensive. (Police officer/staff)

More capacity within Police Scotland custody facilities to permit consultation between solicitors and accused persons. (Sheriff/judge)

[For] various prisons to have more than one link so that more than one court can dial into the prison at the same time. (Sheriff/judge)

IT improvements

Respondents across all professional groups noted the need for significant improvements in the current IT infrastructure. They said more investment is needed.

The technical side needs improving, and all staff should be fully trained on how to use the equipment. (COPFS staff)

Better and more IT. E.g. for productions etc, CCTV productions, and more IT so it can be done in many more courts. (COPFS staff)

I would like to see multiple screens showing images of all participants. (Police officer/staff)

Most aspects have to be improved, the number of booths, the ability to consult, the camera angle for the accused – in some courts the camera is far too far away and the quality of connection. (Defence agent)

The quality of the IT equipment. Sheriffs were confronted with a situation where we had to accept procurator fiscals appearing by phone audio only link, despite the fact this was completely unsatisfactory… Had the defence solicitors also insisted on appearing remotely the system could not have handled it and the court would have been unable to function at all. (Sheriff/judge)

Wider investment in criminal justice estate

Some respondents said that the estate across the criminal justice system required investment to more fully support remote processes.

Improve communication

Some respondents said that communication between criminal justice organisations had to improve so that remote appearances could run more smoothly.

Communication from the court about times and bail papers etc. It is very difficult to get a response when phoning the court to find out information. (Police officer/staff)

I think the most beneficial improvement would be to ensure there is effective monitoring in place so any issues can be fed back and acted upon swiftly. (COPFS staff)

Retention

We asked respondents whether the emergency provision allowing remote appearance at court should be retained when the emergency Covid-19 situation is over.

Most COPFS staff said that the provision should be retained, although many said this should be subject to conditions. These conditions included that the provision should only be used in certain circumstances, should only be used if the improvements highlighted above are made, or should only be retained following further review.

But only for procedural hearings at the moment pending further pilots for trials. (COPFS staff)

It should be withdrawn but with a view to its reintroduction once matters have been reviewed properly. (COPFS staff)

Most police officers and staff thought remote appearance should be retained, although they too thought this should be subject to conditions. As well as those already highlighted by COPFS staff, police officers and staff thought there needed to be additional support and training on remote appearance. Police officers and staff were generally more positive about remote appearance than others in the criminal justice system.

Everything is capable of improvement, let's get started and accept this is an iterative process. (Police officer/staff)

Defence agents overwhelmingly rejected the idea that the emergency provision should be retained post-pandemic. A minority suggested that remote appearance could continue to be used in exceptional circumstances.

Only in extreme circumstances otherwise definitely not. (Defence agent)

Sheriffs and judges generally thought that the emergency provision could be retained, but should not become the default.

Yes, but only for certain types of appearances with the court having a discretion to order that the hearing be in person. (Sheriff/judge)

Not as a matter of routine, although the formal hearings where the accused is in prison could be expanded. (Sheriff/judge)

National jurisdiction for first appearance from police custody

We asked respondents whether they had been involved in a case where the accused had appeared in a sheriff court outwith the sheriffdom where the offence was allegedly committed. Only 14% (66) of respondents reported such experience. Of the 66:

• 64% were satisfied or very satisfied with the experience
• 35% were dissatisfied or very dissatisfied with the experience.

Satisfaction was higher among COPFS staff (66%) and police officers or staff (81%). In the main, defence agents were dissatisfied (88%) with their clients appearing in other sheriffdoms.

Benefits

We asked what benefits having a national jurisdiction for first appearances from custody offers. Of the 66 respondents who reported that they had experience of this provision, 77% (51) reported benefits. Of the 165 respondents who reported they had no experience of the provision, 68% (113) reported potential benefits. The most commonly cited benefits were:

Management of court business

A majority of COPFS, SCTS and Police Scotland respondents said the provision would help better manage criminal court business, due to the ability to move business across the country, enabling greater support for areas with fewer resources.

The case can be heard anywhere thereby relieving pressure from busier courts. (Police officer/staff)

Any sheriff can hear it anywhere. (SCTS staff)

It allows all custody cases to be dealt with in a situation when only limited courts are sitting. It also allows cases to be split between the sitting courts to avoid one court being overwhelmed. (Sheriff/judge)

Better allocation of resources

Linked to the better management of court business is the impact upon criminal justice resources. Many respondents said the provision enables flexibility in the allocation of resources within the criminal justice organisations, saving time and cutting costs.

Allows for easier management of business and effective holiday cover to be arranged. (COPFS staff)

More flexible working of legal staff and easier management of rotas where there is a location neutral aspect. (COPFS staff)

Allows less custody courts to sit on a given day. (COPFS staff)

Efficiency of using best available resource without complex administration. (Sheriff/judge)

Better time management of court staff time. (Police officer/staff)

Save time transporting custody to other courts. (Police officer/staff)

Also in terms of time and money savings for GeoAmey, court and custody staff required to look after the person if one court could hear all of the business for that one individual. (Police officer/staff)

Benefits for accused

A significant number of respondents from across the criminal justice professions identified the benefits of a national jurisdiction when appearing from police custody for an accused person, including less delay in coming to court and less travel.

It was safer… Prevented accused being held in cells for another night to appear in a different court the next day. (COPFS staff)

Would mean that accused people could appear in other courts when there are local holidays to avoid extra time in custody. (COPFS staff)

Quite often, persons in custody require to appear on various warrants issued from different courts, there are routinely 'holds' placed on that individual to attend various court in answer to the warrants. Surely in terms of ECHR for that individual that is not right? (Police officer/staff)

It prevents prisoners being held in custody to appear before more than one court and obviates the need for moving prisoners from one court to another to answer warrants. (Sheriff/judge)

[Saves] the transportation of many accused across the country. (Defence agent)

Downsides

We asked respondents whether there were any downsides to having a national jurisdiction for first appearances from custody. The most common themes were:

Local justice

Respondents from across the professional groups were concerned that there would be a loss of local justice. This theme included the risk that local defence agents might not be able to represent their own clients, and the risk of losing a sheriff's knowledge of their local community and accused persons who appear before them regularly.

It removes the 'local' element to proceedings. Even at a very early stage in proceedings there are occasions on which, for example, the prosecutor's and Sheriff's understanding of the local impact of a certain type of offending may influence attitudes towards the granting of bail or the imposition of special conditions. (COPFS staff)

Lack of local knowledge/interest on part of the prosecutor and judiciary. (Sheriff/judge)

Justice should inherently be local for the vast majority of matters…many issues are particularly local. (Defence agent)

How does the accused get home? How do their family or other interested parties such as victims attend if they want to? How does the local press report on it? court cases are of interest to local publications and local communities. Justice should be done locally. (Defence agent)

Appearance in local courts is a strong deterrent factor for those involved in criminality as local courts bring local accountability. (Defence agent)

Less access to justice

A number of COPFS staff and defence agents raised concerns about access to justice. Many of these respondents feared that the centralisation of custody appearances within a national jurisdiction would result in diminished access to justice, whether in the form of choosing your own solicitor or the right to be prosecuted within your own community.

Defence may struggle to meet clients/take instruction. (COPFS staff)

Disadvantage to accused persons and their relatives and friends who may have to travel a considerable distance to appear at court. (COPFS staff)

It could make it [in]feasible for the accused to have the solicitor of their choosing. It makes no sense to transport an accused to a different jurisdiction in normal times. The agent who ends up representing the accused may not have knowledge of the people and places pertinent to the case. (Defence agent)

Access to justice and choice of representation is a live issue. (Defence agent)

Logistics and planning

COPFS and defence agents raised logistics and planning as a downside of the use of a national jurisdiction. Respondents identified a lack of planning and failure to consider the practical realities of such a measure.

May be difficult to manage logistically for both Crown and Defence – for example, how quickly will either know where and when and how the accused is appearing. (COPFS staff)

A great deal of coordination of partners and daily business will be required to organise the logistical planning of the custody court. (COPFS staff)

Papers for each case are held in the local sheriff clerk's office so it can be difficult for the court hearing the case to have all of the up to date info. (COPFS staff)

It would only lead to chaos and confusion. (Sheriff/judge)

More lawyers congregating in one court during a pandemic. (Defence agent)

Improvements

We asked respondents what improvements, if any, could be made to the use of a national jurisdiction for first appearances from custody. The main themes were:

IT

Similar to the issues raised with the provisions on electronic signature and transmission of documents and remote appearances, respondents said IT has to be improved for this provision to be used to its fullest potential.

Improve quality of video links and sound equipment. (COPFS staff)

Better technology; the sound is appalling. (SCTS staff)

The video and audio needs to be top notch with experts in support to assist. (Sheriff/judge)

Communication

Respondents said better communication between criminal justice organisations is needed for national jurisdiction to be used to a greater extent.

Communication between all the services involved in the process needs greatly improved. (COPFS staff)

Better communication to inform officers and [procurator fiscals] there is still an attitude of keeping people in the dark. (Police officer/staff)

Early engagement with the agents of choice by SCTS and the Crown. (Defence agent)

Improved infrastructure and resources

Respondents from across the professional groups said there was a need for improvements in infrastructure and resources for this provision to be used effectively. This included more guidance and training, systematic reform of procedures, more staffing and better facilities.

Courts must be better resourced with more available staff and better integration and cooperation from police and custody staff. (COPFS staff)

Having clear guidance about when to use the provisions would assist… and a commitment from Sheriff Principals to use it when it is required. (COPFS staff)

More frequent use. There should be a national collegiate approach to processing custodies. What I mean by this is that every court should remain processing custodies until all of the custodies nationwide have been processed. (COPFS staff)

Better facilities for the police and court. (Police office/staff)

Better communication links with lawyers. Written info to accused of what a video hearing involves. Better screening for neuro diverse and mentally disordered accused. (Queen's Counsel)

Investment and testing needs to be done, not forced through during a pandemic. (Defence agent)

Retention

We asked respondents whether the emergency provision regarding a national jurisdiction for first appearances from custody should be retained. The majority of COPFS staff said the provision should be retained, albeit some said further discussion and consultation should be carried out. Similarly, some sheriffs and judges were in favour of there being further consultation on the use of the provision. Police officers and staff were generally more certain in their view that a national jurisdiction should be retained post-pandemic. Defence agents were almost unanimously against retention of the provision.

Across the professional groups, there were respondents who were not sure about whether the provision should be retained, and some who felt the provision is useful, but only in emergency circumstances such as the pandemic.

Flexibility is key for any modern criminal justice system. (COPFS staff)

Not as a blanket approach but for specific circumstances. (COPFS staff)

Should be looked into further and put out for democratic discussion. (Sheriff/judge)

Only to be used in limited, crisis circumstances. (Sheriff/judge)

Lord Advocate's Guidelines on liberation by the police during Covid-19

We asked respondents whether their work had been affected by the revised Lord Advocate's Guidelines on liberation by the police during Covid-19. Of the 479 respondents, 176 said their work had been affected.

Benefits

We asked respondents about the benefits of the revised guidelines. We received 164 responses to this question, the majority of which highlighted benefits. One fifth of responses said there were no benefits or highlighted downsides. The main benefits were:

Reducing numbers in custody and custody to court

The most frequently mentioned benefit across all professional groups was that the revised guidelines had contributed to a reduction in the number of people being held in custody, and a reduction in the number of people held in custody for court. This freed up staff resources within custody centres. It also kept the volume of people detained in custody at a manageable level, particularly during the response to the pandemic. This eased pressure both on custody provision and health care provision. Respondents also cited the importance of the presumption of liberty, and said the revised guidelines had resulted in practice that was more in line with the policy intention of the Criminal Justice (Scotland) Act 2016.

There are fewer prisoners in custody and as such less risk for the police and courts. (Police officer/staff)

It ensured that custody courts were more manageable. (COPFS staff)

Only the most serious offenders/offences remain in custody and freeing up resources. (COPFS staff)

It offers more flexibility into the system - freeing up police/GeoAmey resources in detaining and transporting prisoners where appearance on undertaking would suffice. (COPFS staff)

Decision making

Another theme was that the revised guidelines facilitated increased discretion and flexibility in decisions about whether to hold people in custody or release them. For defence agents, this helped avoid people being held for court for what they viewed as minor offences.

The guidelines provide a bit more flexibility for officers deciding on some disposals from custody as opposed to the blanket approach to keeping certain suspects/crimes in custody. (Police officer/staff)

The ability of the police to use their professional judgement to ensure that only people who need to be kept in custody for court appearances are. (COPFS staff)

Domestic matters and other custody matters are handled in a more effective and proportionate manner i.e. s38s released on [undertakings] fairer system for accused and other parties. (Defence agent)

Eliminates unnecessary custodies. (Sheriff/judge)

Safety during Covid-19

Reducing the number of people in custody, and the number of people having to attend court from custody was seen as beneficial in minimising the risk of transmitting Covid-19. This also helped essential court business to continue.

It was sensible in not overloading the cells where cross contamination likely. (Defence agent)

Minimises health and safety risks. (Sheriff/judge)

Allowed processing of accused when courts were shut/limited. (Sheriff/judge)

Time, cost and resource savings

Some respondents highlighted the time, cost and resource savings of the revised guidelines, as a result of fewer people being held in custody. They said officers had more time to write reports and prepare cases. They also noted that fewer officers were abstracted from their usual duties to work in custody which was particularly important in rural areas.

Downsides

We asked whether there were any downsides to the revised Lord Advocate's Guidelines. There were 161 responses to this question, the majority of whom identified downsides. Just over one fifth said there were no downsides. A greater proportion of police officers and staff identified downsides compared to the other professional groups (76% compared to 67% of COPFS staff and 64% of defence agents). The most common themes were:

Risk to the public

The most commonly mentioned theme was the potential risk to the public of not holding suspects in custody. Many saw this as letting victims down, as well as removing a deterrent to offending. Some also felt that there was an increased risk to police officers and their job became more challenging.

Too many undertakings! particularly with individuals who really should have their bail opposed. (COPFS staff)

Concerns about undertakings

Some respondents were concerned that the revised guidelines had led to an increased use of undertakings and the longer undertaking period.

Undertaking dates are several months away which can result in an extended delay to the prosecution of the case. (COPFS staff)

Liberated accused sometimes 'forget' to answer undertakings or move address and miss citations etc. Very long liberation dates given and often could be on arbitrary police bail conditions for months. (Defence agent)

They prevent some accused from getting assistance when they require it through delaying or removing their interaction with the criminal justice system. (Defence agent)

Inconsistent interpretation and lack of transparency

Some respondents said the guidelines were being interpreted inconsistently and could be clearer, and that there was a lack of transparency around how they were being applied. Some commented that communication between criminal justice organisations on the application of the guidelines could be improved.

For persons where bail is to be opposed it makes such a motion far less likely to be successful if the police have decided to release the person on undertaking – the police are essentially usurping the crown's ability to seek remands. (COPFS staff)

For police officers and staff, the most commonly cited downside was the risk to the public, whereas for COPFS staff and defence agents, it was concerns about undertakings. Sheriffs and judges were more concerned by a lack of transparency and the need for clearer guidelines.

Improvements

We asked respondents what, if anything, could be improved in relation to the revised guidelines. 72 people responded with suggestions. The most common themes were:

Clearer guidelines and guidance

The most common suggestion was that the guidelines could be clearer, and that there could be more guidance on their use to address inconsistent interpretation across Scotland.

Do not allow local interpretation. (Police officer/staff)

Stricter guidelines on who should be released on undertakings and who should be remanded in custody. (COPFS staff)

Clearer guidance for domestic cases. (Police offer/staff)

Address undertaking issues

Respondents suggested reducing the extended undertaking period or reducing the number of people released on undertakings. It was also suggested that the police should have more options at their disposal when considering undertaking conditions.

Provision of more comprehensive information to the accused of the ability to challenge undertaking conditions. (Defence agent)

Limiting the passage of time between the issuing of the bail undertaking and the first appearance. (Defence agent)

Decision making

Linked to having clearer guidance, some respondents said the difficulties associated with making custody decisions should be addressed. One said that the background of the accused should be a stronger factor in decision making, while others said improved communication between departments or between criminal justice organisations would aid decision making.

We received a lot of queries from complainers in domestic cases. They were typically distressed, as the police undertaking bail conditions usually required the accused not to have any contact with them, with an undertaking date scheduled sometimes a few months away. I think having a discussion with the complainer to understand their needs and having scope to adjust the police bail conditions for the circumstances would be sensible in future. (COPFS staff)

Review guidelines

Some respondents suggested a review of the revised guidelines should be carried out before deciding whether to continue using them.

Should be re-written following proper and full discussion. (Sheriff/judge)

Revert to previous guidelines

A few respondents suggested that the revised guidelines should be revoked and the previous guidelines reinstated as they provided sufficient discretion to officers.

They need to better recognise the risk to the public from those engaged in criminality still remains despite the pandemic. It is not appropriate to release everyone. (Police officer/staff)

Retention

We asked whether there were any aspects of the revised guidelines which should be retained once the emergency Covid-19 situation is over. This question received 134 responses, of whom:

• 41% said the revised guidelines should be retained (of whom, 51% suggested caveats to retention)
• 39% said the revised guidelines should not be retained
• 13% were not sure whether the revised guidelines should be retained
• 7% said the revised guidelines should be reviewed post-pandemic before a decision is made on retention.

Of those who said the guidelines should be retained, 51% suggested caveats to retention, including the need for more training and guidance and more scrutiny of decision making.

General comments

Finally, we asked respondents whether they had any other comments about the implementation or impact of the emergency criminal justice provisions. Across the professional groups, there was recognition of the efforts that had been made to sustain the criminal justice system in the challenging circumstances brought about by the pandemic. Other themes were:

A modern criminal justice system

The emergency provisions had been necessary and beneficial, and had brought the criminal justice system into the 21^st century.

It shouldn't take a global pandemic to force the criminal justice system into the 21^st century. (COPFS staff)

Savings

There were savings to be made as a result of the provisions in relation to time, cost and resources.

The huge reduction in use of paper and travel time as a result of the greater use of electronic means for hearings and signing/lodging documents is a benefit we should seek to preserve for the future. (COPFS staff)

Fewer legal protections

There was concern that the emergency provisions had eroded safeguards.

Care must be taken not to favour efficiency over justice. (Defence counsel)

I remain concerned about the lack of potential checks and balances associated with hasty implementation. Are the facilities suitable? Have all human rights and GDPR issues been addressed? (Civil servant)

Further review and consultation

Respondents said there was a need for further review of the provisions and consultation before their use is extended.

[The emergency] provisions should not be allowed to be used to implement significant changes to the criminal justice system without proper thought or consultation with all parties involved. They are not an excuse for change by the back door. (Defence agent)

Clearer guidance and better communication

Some respondents highlighted the need for clearer guidance around the emergency provisions and said communication about them could be improved.

IT investment

Many respondents highlighted the need for investment in IT to support more modern ways of working.

The technology is not fit for purpose. (COPFS staff)