Coronavirus (Recovery and Reform) (Scotland) Act 2022 - proposed extension of temporary justice provisions: statement of reasons

Provisions proposed for extension

Part 1, Chapter 1: conduct of court and tribunal business by electronic means

What do the provisions do?

13. These provisions enable documents produced by a court or tribunal, or connected with criminal or civil proceedings, to be signed and transmitted electronically (for example by email), and in certain circumstances be sent to a party’s solicitor instead of to the party themselves in a case, removing the requirement for physical movement of documents. They also provide that documents that would normally have to be physically displayed (or otherwise made publicly available) in a court building can instead be published on SCTS’ website.

Why does the Scottish Government believe these measures should be extended until 30 November 2025?

14. Since introduction in 2020, the provisions have become firmly embedded in Scotland’s justice system and have made many justice processes more efficient and reduced costs. Returning to paper-only documents would be resource-intensive and create inefficiencies that have been countered through the provisions, resulting in a diversion of critical resources from supporting the courts’ recovery from the impacts of the pandemic.

15. Electronic submission is now the main method of sending documents to the civil courts. For the Crown Office and Procurator Fiscal Service (COPFS), the availability of electronic signature and electronic transmission of documents allows their resources, and that of criminal justice partners including Police Scotland, to be used more efficiently. Furthermore, the measure offers a significant benefit in terms of environmental impact.

16. SCTS and the Scottish Civil Justice Council (SCJC) consider the provisions’ continuation essential. The vast majority of civil court documents are now lodged electronically, and removing this would reintroduce inefficiencies, not just for the courts, but for the parties making use of them. For criminal proceedings, a number of documents are transmitted electronically such as applications, notices, and in some cases the complaints from the procurator fiscal’s office. In the High Court of Justiciary, all indictments are received electronically and warrants from the High Court are submitted electronically to the prison service. Between March 2020 and May 2024, in the Court of Session over 9,300 applications have been lodged, all of which have been dealt with electronically. On the Civil online portal, between 1 October 2023 and 23 May 2024 9,250 documents were lodged electronically. Moreover, instead of posting on the walls of the Courts, between 1 October 2023 and 23 May 2024, 4,259 sheriff court notices^[8] were published on the SCTS website, which is more efficient and provides considerably greater public access to these notices.

17. Police Scotland shared that, from local policing to the Specialist Crime Division (SCD), there is consensus that conducting business by electronic means is a major improvement, which saves considerable time. An illustration of this is that evidential warrants can be obtained in as little as two hours via electronic means. This has had a very positive impact on being able to progress cases promptly, particularly cases of serious crime.

18. The provisions have also been very beneficial in saving operational resource around warrants. The ability for officers to apply for, and be granted, a search warrant without the need to travel to obtain a “wet” signature (a physical signature made in pen) has significantly reduced the time spent seeking warrants and frees up availability for other duties.

19. Expiry of these provisions would represent a major setback for Police Scotland in terms of managing capacity and demand. They also outlined that these have changed how local policing performs some key police functions, providing greater flexibility and efficiency - especially in urgent situations that require quick decisions.

20. Similarly, the provisions streamline the process for obtaining emergency child protection orders, which can now be obtained out of hours without requiring a physical meeting between the courts and social workers to be convened.

21. The Scottish Government sees these provisions as an integral part of modernising our justice system. It is evident that these provisions play a vital role in making justice processes more efficient and utilising limited resources better. If we allowed these to expire, it is clear that it would have detrimental impact on the efficiencies and resilience developed across the system and would lead to increased delays and inefficient use of limited resources.

What views were expressed during the consultation?

22. In the feedback provided to the consultation, there was widespread support for the retention of these provisions, as we saw in the review for the SSI last year.

23. However, a third sector organisation did outline that electronic submission is not always preferable, especially where individuals may have limited literacy or are neurodiverse. They noted there can be instances where for these groups, physical documents via a solicitor can be beneficial. This sentiment was echoed by other legal and third sector organisations who felt that while electronic submission has had marked benefits, we must take into consideration that there are digital access challenges across Scotland and that, for some, a physical copy can be preferable.

24. It is worth emphasising that these provisions do not remove the option of having physical copies (i.e., paper copies). If people do not have online access, or do not feel comfortable with digital copies and engagement^[9], they can request to lodge paper copies of documents rather than lodging them electronically. These measures simply enable the digital option as well.

25. Furthermore, SCTS is working on an Assisted Digital Strategy which will apply across their systems, following feedback and engagement with a range of stakeholders including Citizens Advice Scotland. It is intended to help ensure that digital services are straightforward and convenient, so that all those who can use them choose to do so, whilst those who cannot are not excluded from the justice process.

26. One independent organisation, in continuation of their feedback to the SSI in 2023, also considered that court notices should continue to be displayed as physical documents, as well as online, to avoid digital exclusion.

Part 1, Chapter 2: attending a court or tribunal by electronic means

What do the provisions do?

27. These provisions enable participants in court or tribunal proceedings (including judges, clerks, legal representatives, parties to proceedings, accused people, convicted people, appellants, jury members and witnesses) to take part in some proceedings by live visual (television) or audio (telephone) link, from any location.

28. Before the Covid-19 pandemic, physical attendance at court or tribunal proceedings was almost always mandatory. Paragraph 6 of the schedule removes those requirements for certain proceedings, so that virtual attendance is the default. The proceedings this applies to are:

• In the criminal courts, proceedings where the only party is a public official. In practice, this means police officers seeking warrants or court orders.
• In tribunals
• In limited civil proceedings, in the civil courts: summary cause proceedings, summary applications, simple procedure claims, small claims, and proceedings in the Scottish Land Court.

29. For most criminal business, the default position is that people attend hearings physically (however, see paragraphs 32-34 on determinations). A court or tribunal can overturn any of the defaults described above, on a case-by-case basis.

30. The provisions outline the tests that a court or tribunal needs to apply if it is overturning the default positions on mode of attendance. When the default is virtual attendance, a court or tribunal may only require a person to attend physically if allowing them to attend by electronic means would prejudice the fairness of proceedings or would otherwise be contrary to the interests of justice. When the default is physical attendance, the court or tribunal may only direct a person to attend virtually if it is satisfied that would not prejudice the fairness of proceedings, or otherwise be contrary to the interests of justice. The decision is ultimately for the court or tribunal.

31. For civil business, guidance has been produced by the Sheriffs Principal to achieve a consistency of approach across the sheriff courts wherever possible. For most civil hearings, anyone involved in a civil court case will be expected to address the court on the mode of hearing when inviting the court to fix a diet at which it is proposed evidence will be led. Unless otherwise directed by the court, proofs and other substantive hearings will be conducted in person^[10]. Exceptions to this are in place in relation to child welfare hearings and to summary cause actions in which recovery of possession of heritable property is sought in terms of the Housing (Scotland) Act 2001^{[11] [12]}. All guidance is published on SCTS’ website and current guidance is set out in the Guidance from the Sheriffs Principal.

32. For criminal business, the provisions provide the Lord Justice General a power to issue determinations to change the default to virtual attendance for certain types of cases or in certain circumstances. There is an exception to this power: the Lord Justice General cannot issue a determination that trials should be held virtually by default. However, on a case-by-case basis, a court can direct a person to attend a trial virtually. Whenever a party is directed to attend criminal proceedings virtually (either because that is the default under a determination, or the court has specifically directed them), they may make representations requesting that the court allows them to attend physically instead. As above, the decision remains ultimately with the court.

33. All determinations in force are published on SCTS’ website. Currently, all active determinations are set out in the Criminal Courts Determination 2022, which was published on 30 September 2022 and took effect from 1 October 2022^[13]. The 2022 Determination nullifies the requirement for physical attendance for a range of procedural hearings (such as preliminary hearings in the High Court and, where a person is detained, full committal hearings in the Sheriff courts) and bail appeal hearings in the Sheriff Appeal Court, so that the default attendance for these hearing types is now virtual. This is largely in line with the types of hearing that were already being held virtually under the First Scottish Act and the Extension Act^[14].

34. The 2022 Determination also provides that people who are suspected of having COVID-19 or have been advised to self-isolate should attend hearings virtually. Again, this continues previous practice.

35. During the passage of the 2022 Act, some MSPs expressed concerns about virtual appearances from police custody. It should be noted that custody courts are not included in the 2022 Determination, and so the default is currently that accused people appear at custody courts in person^[15].

36. Police Scotland provided data showcasing how helpful these provisions remain for their operations, in terms of better utilising police staff and financial resources. The daily time cost of attending court in person (based on the current full time equivalent (FTE) rate for an officer) is £129.67, for an 8-hour day. It takes an estimated 8 hours for an officer to attend court to give evidence in person.

37. 752 officers gave evidence within the reporting period of January to August 2024. 504 did so in person - this had an estimated financial time cost to Police Scotland of £65,353.68. In the same reporting period, 248 officers gave evidence remotely. It only takes an estimated 4 hours for an officer to give evidence at a remote evidence room; half the time that is needed for in-person witnesses. The estimated financial time cost to Police Scotland of the 248 officers giving remote evidence was therefore £16,079.08 – a significant saving in comparison to the cost of in-person attendance. (To note, the remote provision of witness evidence is currently only available within the High Court.) Furthermore, with remote evidence, the witness can continue to work until the court are ready for them to give evidence, so the productive time of the officer does continue when waiting within the virtual lobby. This clearly demonstrates that the measures have a positive impact upon police resources, both staff and finance, and allow for greater flexible use of officers’ time.

Why does the Scottish Government believe these measures should be extended until 30 November 2025?

38. As technologies continue to improve, people in Scotland rightly expect increasing digital engagement with public services. Allowing the flexibility for wider use of electronic participation has the potential to make processes more accessible and efficient for people. These provisions enable fully virtual or hybrid hearings to take place.

39. Moreover, the provisions remain necessary to support the daily running of the courts and continue to assist in recovery efforts to tackle the backlogs. They allow flexibility where there is a business continuity need and provide efficiencies. For example, looking at the remote attendance of jurors, while most of the jury centres have been decommissioned, a remote jury centre to support the High Court recovery programme remains in daily use in 2024.

40. These provisions equally support other areas of the justice system; for some cases, virtual attendance helps to ensure that the justice system’s resources are used advantageously. For Police Scotland, officers are frequently cited to appear as professional witnesses in criminal trials – this can take place in person or online. As highlighted above, waiting at court for the trial to commence when cited in-person can take considerable amounts of officers’ time and diverts scare resources. The ongoing development of IT infrastructure by SCTS should increase capability for more witnesses to participate remotely. Police Scotland feel that the ability for police officers to give their evidence remotely offers clear resource savings. The use of remote evidence is increasing. Between January 2022 and May 2024, more than 750 police officers and more than 400 expert witnesses provided evidence remotely to the High Court.

41. In terms of the wider benefits of these provisions, the Scottish Government is supporting justice partners collaborating on a programme called Transformational Change Programme (TCP 3) Criminal Justice System Efficiency^[16], which aims to improve people’s experiences of the criminal justice system and increase the use of digital technology to help the system to recover from the negative impacts of COVID-19. A particular strand of this programme focusses on increasing the percentage of police officers and other professional witnesses who give their evidence remotely. As well as reducing the time spent by professional witnesses in giving evidence (and the consequent disruption), this also aims to reduce the number of cases needing to be re-scheduled due to witnesses being unavailable.

42. Following on from an original pilot of running virtual trials for summary domestic abuse cases, SCTS is also now developing a business case for Trauma Informed Domestic Abuse Management (TIDAM) that will be presented to the Criminal Justice Board for consideration. TIDAM seeks to build on the benefits that remote attendance can offer to respond to domestic abuse cases in a more trauma-informed way, covering a case’s full journey through the court. This relies on these provisions being available.

What views were expressed during the consultation?

43. Stakeholders broadly supported these provisions. Respondents to our consultation emphasised that the provisions provide welcome flexibility and, allow different approaches to managing cases efficiently without having to rely on attending court in person. Legal professionals’ views on these provisions outlined that they are helpful for openness and accessibility as well as reducing financial burdens on individuals, as they do not have to travel to attend hearings. This was supplemented by feedback that the ability to participate remotely in certain proceedings was welcomed as a way of enabling cases to progress efficiently in the face of resource constraints. For example, preliminary hearings in High Court cases are held in Glasgow and are held virtually by default - the ability to attend virtually was reported by legal professionals to be having ‘remarkable practical results’, providing more openness and accessibility and reducing financial burdens.

44. In terms of third sector organisations’ views - one respondent outlined that virtual hearings have benefited people in proceedings, particularly in situations where their health, location and / or physical access needs made attending court in person difficult, or where individuals found remote hearings less distressing than attending court in person.

45. Respondents, in addition, commented that these measures, by offering flexibility in the management of cases, had an added benefit in helping support better experiences for children and young people engaging with Scotland’s criminal justice system. One organisation, with a focus on children and young people, highlighted the potential benefits to virtual attendance at court for children and young people; this was supported by evidence of how challenging court processes are for children and young people as victims, witnesses or the accused. They believe that these provisions can help create a more efficient justice system, especially considering that delays are often more harmful to children than adults given their significant ongoing developmental changes and importance of accessing education and employment opportunities. Virtual access also reduces the need for children travelling lengthy distances for court appearances.

46. Some organisations in their feedback did highlight concerns about implementation of the measures and about how justice agencies will put the measures to practice. In particular, some third sector organisations noted that digital exclusion can limit the benefits of these provisions. This concern was shared by some legal organisations.

47. One third sector organisation in particular felt that a digital divide continues to disadvantage individuals and communities, particularly in Scotland’s rural and island communities due to digital connectivity challenges, lack of digital skills and/or confidence. On a broader basis, they also noted that the cost-of-living crisis is leading to more people struggling to afford mobile/broadband data which would allow them to access legal and court services online. The relaunch of The Digital Participation Charter Fund^[17] in October 2023 looks to provide further support to individuals and organisations across Scotland to help with digital upskilling, especially within the context of the challenges identified. However, it is worth outlining that these are wider system concerns about infrastructure in Scotland and are not specific concerns with the measures themselves.

48. Concerns about vulnerable parties were also raised – noting that as important advice and advocacy services are often located in court buildings, people might not be signposted to information if they were participating remotely. This was bolstered by another organisation’s reflection that there needs to be awareness of how people understand processes (electronically) if they have learning disabilities and / or alcohol related brain damage; it can be the case that speaking in person to others can be more preferable than meeting or engaging with justice online. The Scottish Government has highlighted these implementation issues to SCTS^[18].

49. A third sector organisation remained concerned that the use of virtual custody courts may be challenging both for the quality of service that justice social workers can provide, and for their resources. (As was outlined above, virtual custody courts are not currently operating, and the current default is for custody hearings to be in person. The Scottish Government recognises that justice partners have been working to develop an improved model for virtual custody courts and engaging with justice social workers on their role in supporting these hearings.)

Part 2: Fiscal fines

What do the provisions do?

50. Paragraph 13(2) provides that the maximum fixed penalty that may be offered by the procurator fiscal under section 302 of the Criminal Procedure (Scotland) Act 1995 Act is £500. Before the temporary modifications made by the First Scottish Act, the maximum penalty was £300.

51. The Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008 sets out the scale of fixed penalties. Paragraph 14(2) of the 2022 Act schedule temporarily replaces this with a new scale. The temporary scale has nine levels instead of seven. The amounts in levels 1 to 7 are identical to the scale that operated before to the temporary modifications made by the First Scottish Act (i.e. £50 to £300). The two additional levels provide for the amounts of £400 and £500.

52. Fiscal fines are a long-standing part of criminal procedure, dating back to the mid-1990s. They can only be used for offences capable of being tried summarily. As a matter of law, there are no offences that are now capable of receiving a fiscal fine which could not also have been used for a fiscal fine before the higher maximum level was first introduced in 2020 Coronavirus legislation (with the small exception of any offences created since April 2020).

53. An accused does not have to accept the offer of a fiscal fine. A person offered is allowed to refuse the conditional offer by giving notice to the court. In those circumstances, the prosecutor will decide what further action to take including whether to prosecute the accused in court.

Why does the Scottish Government believe these measures should be extended until 30 November 2025?

54. Fiscal fines are a means of allowing less serious offending behaviour to be appropriately dealt with outwith the criminal courts. They have been part of the criminal justice system for decades as an appropriate means of keeping some less serious offending behaviour from requiring to be prosecuted. Maintaining the increased maximum level of fiscal fine of £500 as a non-court disposal on a temporary basis allows prosecutors to continue to deal with lower-level offending appropriately, freeing up capacity in the criminal courts system for more serious cases. It reduces the number of cases entering the criminal justice system, allowing the courts and prosecutors more time to deal with more serious cases.

55. Although the increased range of fines covers the same range of summary offences as before, it allows for more fines in a wider range of cases; i.e., it now covers those cases where COPFS consider that a £300 fine is not appropriate in the circumstances, but a £500 fine is, therefore taking the “£300 - £500” cases out of the courts. Cases that COPFS consider require a court disposal will still, as before, be marked for prosecution in court rather than dealt with by a fiscal fine.

56. The increase in the maximum level of fiscal fine enables alternative action to prosecution to be taken in a wider range of cases. Crucially, this allows prosecutors to issue proportionate penalties for lower-level offences while also providing a higher maximum penalty for appropriate cases.

57. In line with policy guidance issued by the former Lord Advocate, prosecutors are directed to first consider offering a direct measure, in particular a fiscal fine, in relation to appropriate cases.

58. Between 7 April 2020, when the revised scale was introduced, and 25 July 2024, around 2% of fines were issued above the previous scale maximum of £300, and 0.3% of individuals were issued with a combined offer (comprising of both a fiscal fine and a compensation offer).

59. This provision supports efforts to best use resources as the justice system continues to address current caseloads. Furthermore, it enables more cases to be resolved without the need for court procedure and associated appearance at court, which can have a detrimental impact on individuals. Keeping the revised scale in place also would empower COPFS to continue using this alternative action to prosecutions and help reduce the number of cases entering the criminal justice system.

What views were expressed during the consultation?

60. COPFS are strongly in support of retaining this measure. If the provisions were not extended, the impact would be that the range of options for procurators fiscal to deal with cases would be reduced. It was noted that whilst a relatively small proportion of the fines issued have been above the previous maximum amount, the change has been useful as it has allowed COPFS to respond proportionately and efficiently to offending for which such a measure is appropriate.

61. Most of the organisations consulted were in favour of the provisions being extended.

62. To note, one of the organisations focussed on children and young people’s experiences in the justice system felt it is critical that measures such as fiscal fines should not be applied to any child or young person, where possible^[19]. This is due to evidence that indicates the most effective mechanisms for children are early intervention and diversion to deliver positive outcomes^{[20] [21]}. They did emphasise that is it a rare occurrence that fiscal fines are applied to children and young people.

63. Data show that since 2021, while 16–18-year-olds have been issued with fiscal fines for offences such as possession of drugs, threatening and abusive behaviour, and road traffic offences, the number of fiscal fines issued for 16–18-year-olds has declined from 286 in 2021 to 185 in 2023^[22]. The new maximum level of fiscal fine has not been used for 16–18-year-olds: all of the 125 people who were issued with a fiscal fine of £500 between 7 April 2020 and 25 July 2024 were 18 or older.

Part 4: National jurisdiction for first callings from custody

What do the provisions do?

64. Paragraph 16 of the schedule provides that, where a person appears in court for the first time from custody in criminal proceedings, the calling of the case may be taken in any sheriff court in Scotland, and it may be dealt with in that court by a sheriff of any sheriffdom. Paragraph 16 further allows a sheriff court that has taken on the initial calling of a case to continue dealing with it unless a not guilty plea is tendered, or the person is fully committed in proceedings on petition or indictment).

65. Paragraph 18 goes on to ensure that when a court is dealing with a case over which it would not normally have territorial jurisdiction, the sheriff and the prosecutor have all the same powers to manage the case as they would have if it were a case within their normal territorial jurisdiction.

Why does the Scottish Government believe these measures should be extended until 30 November 2025?

66. The measure enables custody proceedings to be heard in any sheriff court in Scotland by a sheriff of any sheriffdom, no matter where the alleged offence took place. Having a national jurisdiction allows the court that first heard the case to deal with guilty pleas and move them out of the court system, minimising the number of cases that have to be transferred to local court.

67. The measure is part of a holistic approach to enabling the justice system to recover from the impact of COVID-19, by helping SCTS efficiently manage court resources in response to the backlog. As such, extension of this measure until the end of 30 November 2025 would support the court system to continue recovery.

68. The measure in Part 4 give SCTS the flexibility to manage custody court business efficiently. It further improves resilience, enabling an effective operational response to transport disruption, severe weather, large public events or unexpected public health threats that can restrict the capacity to move an accused person and / or to use court facilities in a particular area. Without this measure, the law would revert to the pre-pandemic position that criminal proceedings before a sheriff court must take place in a court in the sheriff court district where the offence was allegedly committed.

69. While there are existing powers to transfer cases between sheriffdoms, this requires a judicial order for each individual case, which is very time consuming. It is unsuitable given custody timescales, where cases have to be brought to court quickly.

What views were expressed during the consultation?

70. There remains broad support for these provisions, evidenced through the feedback already held and responses to our consultation for these SSIs. Similarly, SCTS expressed full support for this measure and feel it would be beneficial to extend these provisions beyond the end of 30 November 2024. They provide a degree of flexibility in the management of cases in unexpected or emergency situations which will be of assistance in a whole range of situations (including transport disruptions, severe weather and another pandemic).

71. Having flexibility in the management of cases of unexpected or emergency situations is critical. SCTS noted the alternative is that courts would have to go through the process of transferring cases, or a direction would need to be sought from the Sheriff Principal for each diet of the court – both of which would create inefficiencies at a time when courts are still in recovery. COPFS echoed this reflection and noted that although there are existing powers to transfer cases between sheriffdoms, they are not as practical; this is a general power that allows criminal justice partners to efficiently use resources and potentially reduce the time an accused remains in custody.

72. SCTS further observed that national jurisdiction provisions will also be essential in supporting custody callings within TIDAM, which seeks to build on the benefits that remote attendance can offer to respond to domestic abuse cases in a more trauma-informed way, covering a case’s full journey through the court.

73. It was further emphasised by SCTS that powers of this nature can assist in ensuring that business can be effectively processed in situations where circumstances such as transport disruption, severe weather or other public health emergencies restrict either the capacity to move an accused person or to use court facilities within a particular area. They can also be useful on public holidays, where cases from multiple courts could be called in one location. There are also benefits to justice partners in this model, with fewer courts seeing the same accused, this saves time and improves efficiencies. Defence agents can also see time savings in their client having to only appear once for all matters.

74. Third sector organisations noted that these provisions are very helpful in minimising the amount of time people are being held in custody, particularly for children and young people. They also felt that the flexibility the provisions provide are welcome as they allow proceedings to be dealt with by a broader range of sheriffs and sheriff courts.

75. Police Scotland noted that these provisions have many potential benefits. They highlighted that they remain supportive of any measures that safeguard individual’s Article 5 rights^[23], by reducing the time officially accused persons spend in custody before being brought before a court. They noted that they are happy to continue to work with affected partners and SG on national jurisdiction. Police Scotland also observed that the availability of a national jurisdiction complements virtual custody appearances, when they are used.

Part 5: Criminal procedure time limits

What do the provisions do?

76. These provisions increase the statutory time limits for certain criminal procedures. Longstanding legislation provides that all of these time-limits can be extended at the court’s discretion, on a case-by-case basis. By contrast, the temporary extensions to time limits apply automatically, meaning there is a longer period before the court is empowered to consider whether a time-limit in an individual case should be extended.

77. The temporary, extended limits were introduced in 2020, in recognition of the fact that the pandemic would hinder the justice system’s ability to progress cases. They were maintained in the 2022 Act on the basis that they were necessary to help the courts focus on responding to the backlog that has developed as a result of the pandemic and its impact. This is because without extensions to time limits operating as a matter of law, more court time would be diverted from hearing cases to considering large numbers of individual applications to extend the time limits to prevent cases from being time-barred.

78. The Scottish Government believes that the pre-pandemic time limits should be re-instated as soon as is reasonably possible and that this should be done responsibly, without risking the courts’ capacity to focus on the outturn of trials or placing prosecutions at risk. As Table 3 outlines, one of the remaining extended time limits will expire on 29 November, and the regulations retain only two that remain crucial to courts’ recovery and delivery of justice in solemn only cases:

79. The overall effect will be that out of the seven extended time-limits originally legislated for in 2020, five out of the seven extended time-limits will have been expired and two will continue for a final year to the end of 30 November 2025 (unless expired earlier).

Why does the Scottish Government believe these measures should be extended until the end of 30 November 2025?

Solemn time limit extensions – section 65 – Criminal Procedure (Scotland) Act 1995

80. Section 65(1) sets out time limits that apply where the accused appears on petition for trial on indictment. It currently provides that a preliminary hearing or first diet must commence within 17 months of the first appearance of the accused on petition in respect of the offence, and the trial must commence within 18 months of the first appearance of the accused on petition. As outlined in Table 3, the pre-pandemic time limits were 11 months and 12 months, respectively.

81. Section 65(4) sets out the time limits that apply where the accused has been remanded in custody prior to trial. It currently provides that an indictment must be served within 260 days of the accused being remanded in custody, a preliminary hearing must be commenced within 290 days of that period, and the trial must be commenced within 320 days. If these time limits are breached, the accused shall be entitled to be admitted to bail. The pre-pandemic time limits were 80 days, 110 days and 140 days respectively, as shown in Table 3.

82. After assessing available evidence, the Scottish Government considers that the solemn bail time-limit and solemn remand time-limit should stay as extended, until the end of 30 November 2025.

83. All jury trials were suspended at the onset of the COVID-19 pandemic in March 2020. High Court trials resumed later in 2020 and sheriff and jury trials restarted in late 2020 and early 2021. In some parts of Scotland, there were no sheriff and jury trials for 12 months. For a considerable period after this, there was reduced capacity within the courts to hear cases due to social distancing measures to protect public health.

84. The impact of this period continues to be felt by the criminal courts. While there has been considerable progress, with the number of current cases having reduced by over 40% since its peak in January 2022, SCTS data^[24] show that the number of outstanding scheduled trials stood at 24,951 at the end of July 2024, this remains substantially higher than the target baseline of 20,000^[25].

85. These statistics show that the position is different in different types of court. While there has been a considerable reduction in the number of scheduled trials in the summary courts, the position in the solemn courts remains challenging. At sheriff and jury level, the number of outstanding trials rose sharply from a pre-pandemic average of 499 in 2019/20 to peak at 2,472 in January 2023 – it has since fallen to 1,445 in July 2024. The number of scheduled trials in the High Court steadily increased from a pre-pandemic figure of 390 in 2019/20 to around 700 in December 2022, where it remains (the July 2024 figure was 709).

86. Modelling published by SCTS last year^[26] has set out the continuing expected pressures on the solemn courts as the recovery programme progresses. The data shows the continuing impact of the pandemic on criminal court caseloads, coupled with an increase in the number of new trials entering the criminal courts. This means there is a continued need for the measures to allow a sustained focus on delivery of throughput of cases.

87. As noted, the situation has been impacted by an increase in the number of solemn cases going through the court system, with new petitions having risen from around 9,000 a year before the pandemic to around 11,000 a year in 2020/21 and stayed at that level^[27].

88. The effect of this has been that the length of time it takes for cases tried on indictment to come to trial has increased considerably. In November 2019 for sheriff and jury cases on bail, the average delay between the case calling for a first diet and a trial commencing was 11 weeks. This delay increased significantly, peaking at 52 weeks in July 2022, and stood at 35 weeks in July 2024. In the High Court, the average time from a preliminary hearing to a trial is double what it was pre-pandemic: around 42 weeks against 22 before the pandemic.

89. Without the continued extension to the two separate sets of time limits at section 65 of the 1995 Act, the only option would be for an application to be made to the courts to extend the time limit in each individual case under the discretion given to the courts by statute. The implications for COPFS, the judiciary and SCTS would be considerable.

90. The time taken for a court to consider an individual application to extend time limits will vary depending on the case; it could take only a few minutes if it is not contested, or up to a whole day if the case was very complex. Resources could better be used to manage the current caseload of cases and, in particular, focus on throughput of trials.

91. The Scottish Ministers therefore consider that it is necessary that the extensions to the time limits at section 65 of the 1995 Act should remain in effect until the end of 30 November 2025 to assist in the continued efforts of justice agencies in managing the current caseload of trials being prosecuted on indictment.

92. The Scottish Government does not want the extended time-limits to be in force for longer than is necessary. This is the final year that extended time-limits can be retained and there are no plans to make the extended time-limits permanent. Reverting to the pre-pandemic time-limits as soon as feasible is the position of Scottish Government where that can be done without introducing undue negative impact on the progress of criminal cases through the courts.

93. The Scottish Government will continue to liaise with justice agencies on how time-limits can be reverted to those operating prior to the pandemic with minimal impact on the progress of recovery of the criminal courts.

What views were expressed during the consultation?

94. COPFS and SCTS strongly supported retaining the extended time limits that the Scottish Government is proposing continuing for a further year. COPFS stated that if these extended limits were not retained beyond the end of 30 November 2024 there would be a serious risk of not being able to deliver justice.

95. COPFS also noted that expiry of the time limits relating to solemn cases tried on indictment would mean that the number of applications to extend time limits on a case-by-case basis would greatly increase, with significant resource implications for them and justice partners. Despite the work that COPFS Local Court has and will be taking to decrease the number of cases awaiting indictment being served and the cases sitting in extended time bars, as of November 2024 they project that up to 700 bail cases presently on petition (awaiting indictment) would time bar and not be capable of prosecution unless court mandated extensions are granted. A further 200-300 would be at imminent risk of time-barring. In the High Court there may be around 500 (bail and custody) cases at risk of time bar.

96. SCTS highlighted that they and justice partners have put significant resources in place to help deal with the current caseload of cases as quickly as possible and the extension of the provisions within solemn time periods are particularly necessary to continue this essential work. Without this extension, in solemn cases the only option is for an application in each individual case to be made to the court to extend the time periods. This has notable administrative and resource implications for SCTS. If the court does not grant the application, or no application is made, then the accused would be released on bail (in a remand case) or the case would fall (where the ’bail’ time limit is exceeded), when the relevant time limit expires. The application process would require court and other justice partner/ judicial resource, which could be better utilised dealing with the current caseload of cases.

97. Within this context, SCTS do not believe that it would be appropriate to revert to the pre-pandemic time limits at the end of 30 November this year. They reiterated that removal of the time limit extension would create more delay – as a large body of cases would need to be managed individually to ensure they were not lost. Extending the provision and planning for a managed return to the previous position is the approach that will support the speediest and most efficient management of the cases in question.

98. In terms of third sector organisations, some highlighted that the extension to the time limits offered benefits by allowing cases to be called that would have otherwise been time-barred. Others did note concerns with extension to the time limits, such as for those on remand, who they noted are not eligible for as much support and services while in custody as those serving a sentence (such as access to benefits, housing, training and mental health support). Organisations with a focus on children also echoed this concern with remand, noting children and young people on remand represent a higher proportion of the total population than for adults. Furthermore, they outlined that most children who were remanded were held in young offenders Institutions (YOIs), in spite of the conclusions of the Independent Care Review that YOIs “are not appropriate places for children and only serve to perpetuate the pain that many of them have experienced” (p.91). Concerns with remand and its impact on accused people were echoed by some legal organisations. It should be noted that, since the consultation exercise took place, new regulations which came into force on 28 August 2024^[28] mean that there will be no new admissions of children under 18 to YOIs, and all under 18s who were previously detained in YOI Polmont have now been moved into secure care settings.

99. It is worth noting that it is likely that the remand population would be higher if solemn time-limits had not been extended. The increase in the remand population is the result of the backlog in trials that inevitably built up during the pandemic, when the capacity of the criminal justice system was greatly reduced. Without the extended time-limits, more scarce court and prosecutorial time would have been spent on procedural matters ahead of trial rather than on trials themselves. By helping the throughput of cases, the extended time-limits have contributed to those on remand being able to have their cases heard sooner than they otherwise would.