Justice - vision and priorities: report

5. The impact of COVID 19 on the justice system

5.1 The spread of COVID 19 has also impacted across the whole of the justice system obstructing many citizens from asserting their rights in the courts, and has placed considerable additional demands on the police service, prisons and on criminal justice social work.

5.2 In response to the impact of the pandemic, justice partners and practitioners have worked collaboratively and innovatively, which has been praised by HM Inspectorate of Constabulary in Scotland (HMCIS) and HM Inspectorate of Prosecution in Scotland (HMPIS) in their joint inspection report published in September 2020. However, significant challenges remain in enabling the justice system to recover to pre-pandemic levels.

5.3 The summary below describes some of the ways in which COVID 19 has impacted across the justice system, which has, in turn, shifted immediate priorities across the justice system and impacted on progress against the seven key justice priorities. More information can be found on justice partners websites. This summary also illustrates the considerable efforts and innovation made by those organisations to keep the justice system running under challenging and uncertain circumstances.

Impact of COVID 19 on Policing

5.4 The necessary expansion of policing powers was introduced through legislation during the pandemic which has had positive impact on reducing the spread of COVID 19. An Independent Advisory Group on coronavirus chaired by John Scott QC was also established with membership across numerous civil and public bodies including the Scottish Policy Authority. The Scottish Police Authority have conducted a survey on public views on policing of COVID 19 which has consistently indicated strong levels of public confidence and consent for Police Scotland.

5.5 The pandemic has placed a significant demand on the police force as they are dealing with unlawful gatherings and more neighbourhood disputes as well as EU exit, environment and climate change, racial and sectarian tensions.

5.6 The policing of serious crime during COVID 19 has been challenging but Police Scotland continue to collaborate with partners to address emerging concerns, for example in relation to hate crime. There has been a move to virtual ways of working and changes in workforce planning, policy for mass mobilisation events and for operational delivery. Police Scotland has also rolled out mobile working technology. It has been reported to the SPA that this has equipped c. 11,000 officers and 150 Forensic Scene Examiners which allows access to a range of policing systems, increasing the time that officers are out visible in the community and reducing COVID-19 risk in an office environment.

5.7 Despite the challenges, police continued to take accused persons into custody. The Lord Advocate's updated Guidelines issued on March 31 2020 focused on public safety, and were to be applied by the police in making decisions about the liberation of an arrested person pending further investigation or action.

5.8 COP26, will be the biggest conference the UK has ever hosted and will see temporary policing powers and preparation of additional custody suites. The Scottish Police Authority continue to provide oversight of the policing arrangements for COP26 and the provision of custody facilities.

5.9 COP26 will also see the roll out of Body Worn Video technology among armed police officers. This will support greater public transparency, improved officer safety and swifter progression through the justice system. In relation to the introduction of new technology Scottish Government have also set up an Independent Advisory Group on emerging technologies in policing to ensure Police Scotland with the overall aim to ensure Police Scotland have the right safeguards to protect the rights of the individual.

Impact of COVID 19 on Courts and Tribunals

5.10 At the start of the COVID 19 lockdown period, the Lord President substantially reduced the day to day business considered by Scotland's courts and tribunals system, as a necessity to protect the health of staff and the public.

5.11 Despite the focus on public health while policing the pandemic, police officers continued to investigate and report criminal offences to the Procurator Fiscal. Reporting of new cases fell in April by 19% but quickly recovered to close to 2019-20 levels from May onwards.

5.12 Throughout the lockdown period prosecutors have continued to make decisions in the cases being reported by Police Scotland and specialist reporting agencies. Prosecutors have continued to prepare and present cases in court, both physically and virtually. This work was enabled by the distribution of laptops to all staff.

5.13 As the country partially re-opened, some court and tribunal business got underway either in virtual, online form or through a limited number of cases where participants (judges, lawyers, witnesses, the accused, media and the public) attended in a socially distanced manner. Significant investments in court technology has allowed the setting up of 16 remote jury centres which are now fully operational.

5.14 Managing recovery in the civil courts and tribunals, whilst challenging, has been more achievable than managing the significant criminal case backlogs through the use of virtual proceedings, electronic transfer of documents and digital solutions.

5.15 One of the most serious impacts of the closure of Scotland's courts and tribunals has been a substantial increase in the backlog of civil and particularly criminal cases which has resulted in delays in justice for the victims and survivors of crime and for the accused. For those accused held on remand, it has meant extended periods in prison and extra strains on an already stretched prison service. Once the courts start to reopen and cases proceed, there will be further pressures placed on both Justice Social Work and the prison service.

5.16 Although extensive work has been undertaken by COPFS, Police Scotland and SCTS to mitigate the impact of the delays on the public, the impact of the pandemic been especially hard on witnesses and victims of crime due to delays in bringing their cases to court. Such delays can cause witnesses withdraw and/or the quality of the evidence that can be provided diminishes. Further the passage of time makes it harder to recall events and makes victims less likely to persist with a case.

5.17 Diversion to social work services by COPFS which is more likely to address the underlying problems associated with offending has been affected as COVID 19 has lengthened the time required to carry out assessments and made the provision of relevant services more difficult.

5.18 Digital solutions have been a critical feature of the justice system's response to the pandemic. For example, in the custody courts (where the accused is making their first appearance having been held in custody by the police) video links between police custody suites and the court have been used since the start of the pandemic. That service is currently operational and has been throughout and to date 3,500 virtual custody hearings have taken place. Also, Advocate Deputes have been appearing in entirely virtual appeal court hearings and the Solicitor General has argued a virtual appeal in the United Kingdom Supreme Court. The COPFS case management in court ("CMiC") programme and use of tablets in summary cases has been very significant throughout the crisis. All deputes, whether they have appeared in the physical courts, the virtual courts or the administrative courts, have had access to their documentation on tablets, either at the court or at home, to enable them to conduct the trial or procedural hearing.

5.19 The Coronavirus (Scotland) Act 2020 ('the 2020 Act') contains various provisions designed to respond to the coronavirus pandemic. The provisions relating to criminal justice had immediate effect from 7 April 2020. The 2020 Act made provision for electronic signature and electronic transmission of documents. An electronic signature now fulfils the requirement for signature in relation to certain types of documents and it allows for the competent electronic service of documents on the accused or their solicitor. The 2020 Act also enabled search warrant applications to be signed by a prosecutor using an electronic signature and to be submitted by electronic means to the clerk and the Judge, who will grant the warrant, by signing the warrant using an electronic signature and, thereafter, it can be transmitted back to the prosecutor and/or the police (or other Specialist Reporting Agency officer) for execution. The legislation allows the Judge to hear information from a prosecutor or police officer in support of the warrant by electronic communication, for example, telephone or video link.

5.20 The pandemic has highlighted the critical importance of reliable technology across the justice system, partnership working and workforce planning - new and innovative ways of working have been introduced to aid recovery of the system which has seen an acceleration approaches for processing court business virtually and for case information and evidence to be shared digitally. The Scottish Government also provided additional funding for investment in court technology and towards the establishment of remote jury centres to enable the serious criminal cases to be heard.

5.21 The effects of the pandemic has necessitated that the Justice Board for Scotland, with membership made up of the Chief Executives and leaders of our Justice organisations, lead and oversee the strategic response to the pandemic. More detail on this response and the establishment of a Criminal Justice Board to lead the system's 'Recover, Renew and Transform' Programme of work is covered in Section 6.

The impact of COVID 19 on Community Justice Services

5.22 Through the pandemic, Justice Social Work (JSW) have continued to deliver a wide range of community justice services (e.g. Community Payback Orders, Drug Testing & Treatment Orders, Parole Licences, etc.), with a focus on prioritising vulnerable people and those who presented an imminent and serious risk of harm (especially people being managed via the Multi Agency Public Protection Arrangements (MAPPA).

5.23 Where circumstances would allow, JSW have delivered aspects of service provision by means of digital solutions, e.g. via videoconferencing. However, some aspects of specialised work, such as the Caledonian system (for people with domestic abuse convictions) and Moving Forward: Making Changes (for people convicted of sexual offending offences) are far less suitable for delivery through such mechanisms.

5.24 Many of JSW's community justice partners who deliver critical services to support rehabilitation and reintegration, such as mental health services, addiction services, etc., have also been significantly impacted upon by COVID 19 and, in particular, the facility to deliver face-to-face services.

5.25 As noted previously, the delivery of unpaid work or other activity requirements in CPOs has been a particular challenge given public health restrictions, and JSW capacity in this area remains significantly constrained. Recent measures taken through the Community Orders (Coronavirus) (Scotland) Regulations 2021 will assist in reducing the overall volume of UPW hours to be delivered, but ongoing monitoring will be vital to assess the risk that courts may be able to impose more disposals than JSW will have the capacity to deliver.

The impact of COVID 19 on prisons

5.26 With prisoner numbers rising, with the increase of those on remand it has made it all the more challenging for SPS to provide access to rehabilitative interventions and they warn that further increases to the prison population may pose risks in managing the population safely during the pandemic. Further issues include staff shortages, fewer community disposals and impacts on diversionary and reintegration initiatives. Some innovative work has produced some benefits, including virtual visits, improved data sharing and mobile telephones for prisoners.

5.27 SPS have also had to manage the issue of prisoners becoming ill with COVID 19 and the isolation of those that had come into contact with them. The significant reduction in the prison population in the past 12 months has been particularly helpful in this regard. On the whole, the virus has been well controlled with a smaller percentage of prisoners catching it than in the general population.

5.28 The Coronavirus (Scotland) Act 2020 facilitated early release for circa 350 prisoners giving the service a short respite in prisoner numbers. Also at SPS's disposal was new Home Detention Curfew powers which also reduced prison numbers - although fewer prisoners than expected were eligible due to the early release legislation.

5.29 As the courts open up, the predicated rise in prisoner numbers may create significant challenges. The level and availability of local community justice interventions can have a bearing on sentencing decisions, potentially reducing the use of community sentences and the further use of custody. Both of these issues are likely to have significant implications for the management of those individuals in custody who require to socially distance or be isolated whilst the public health restrictions remain in place.

5.30 COVID 19 has had significant impact on the delivery of programmes, interventions and other services for those in custody. It has also impacted on the progression of long term prisoners into the National Top End and Open Estate. The day to day effects of the restrictions required to control the spread of the virus have also been considerable. Changes have been made to working hours for staff, to allow maximum access to recreation and other activities, however the regimes available in our prisons have been limited, for example, the lack of face to face visits with families has extended over a period of some months. The tremendous cooperation that has been shown by those in the care of the prison service has made the management of the pandemic considerably better than might have been the case.

Impact of COVID 19 on the Scottish Fire and Rescue Service

5.31 The service have maintained operational resilience throughout the period by taking a flexible, focused and pragmatic approach to staffing including the opportunity for some staff to work from home in line with government guidance. A significant amount of resource has been directed towards ensuring the 'COVID Secure' status of SFRS buildings and, that this is maintained on a risk assessed basis aligned to our service provision.

5.32 The SFRS infrastructure has been maintained throughout the pandemic both on a supporting function and operational response basis. The COVID 19 impact on staff within the SFRS very much mirrored that of Scotland's communities with the pattern of absence being prevalent in localities hardest hit by the virus. Whilst resource intensive, specific arrangements were instigated which protected the SFRS's ability to respond to all incident types.