Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

Summary

This report has been prepared by Craigforth HCAS Limited.

This summary sets out key findings from analysis of responses to the recent Scottish Government consultation on proposals to make permanent certain measures from the Coronavirus Recovery and Reform (Scotland) Act 2022.

The consultation opened on 6 November 2023 and closed on 12 February 2024, and asked 22 questions (see Annex 2). In total, 30 consultation responses were received, of which 22 were from groups or organisations and eight from individual members of the public.

The views of a small number of those with lived experience of the justice system were also gathered using a shorter question set specifically relating to provisions allowing attendance at criminal court by electronic means. Further information on the methodology and background of this process is available at Annex 3.

Cross-cutting themes

This summary and the main body of the report consider views on each of the 22 consultation questions in turn. However, several cross-cutting themes also emerged across consultation responses, that appear to have influenced views on proposals. For example, responses to some proposals appeared to reflect underlying views on the relative value of digital and physical evidence, and between remote communication and in-person testimony. It was notable that few of those opposed to or raising concerns around proposals expressed less confidence in the suitability of digital technologies and digital evidence for criminal court.

Other common themes emerged across views on potential for proposals to positively or negatively impact the justice system. The opportunity for efficiencies in time and resources was highlighted across proposals for conduct of business by electronic means, virtual attendance and digital productions. Efficiencies were seen as a significant positive in the context of the current backlogs in court cases and potential for efficiencies to enable cases to be handled more quickly, benefiting all parties including vulnerable people with complex needs. The needs of vulnerable people were a factor in comments around potential for proposals to enable more trauma-informed justice processes, particularly for views on use of virtual attendance and conduct of business by electronic means. Vulnerable people, and in particular their capacity to engage with justice processes via digital means, were also a common theme for opposition to some proposals. This included concerns that vulnerable parties may require additional support to ensure greater use of digital technologies does not limit their access to justice.

Conduct of business by electronic means

The majority of respondents agreed that provisions for conduct of business by electronic means should be made permanent. Those expressing support suggested that measures such as electronic signing and transmission of documents, granting of search warrants remotely, and remote citation of witnesses had become an “essential” element of justice processes. This included a view that these provisions are necessary for a modern, efficient and person-centred justice system.

Some suggested exceptions to conduct of business by electronic means, including reference to the issue of digital exclusion for those involved in the criminal justice system. Respondents also raised other points for consideration around how proposed innovations are implemented across the justice system, in terms of resourcing and infrastructure requirements, technical capacity and skills, and compliance with data protection requirements.

Virtual attendance

Most respondents agreed that virtual attendance provisions for criminal courts should be made permanent. Efficiency benefits were highlighted, with virtual attendance seen as having helped to reduce travel costs and mitigate the impact of what was described as poor performance by the current Prisoner Escort and Custody contractor. Other perceived benefits included a view that virtual attendance can be particularly positive for vulnerable individuals and those who may find in-person attendance frightening, emotionally taxing or (re)traumatising.

A small number objected to the principle of the proposal, suggesting that virtual attendance cannot replace in-person communication. Others raised points for consideration around how provisions are used, including a view that virtual attendance may not work well in all cases. Experience was cited of digital platforms creating barriers to participation and/or diminishing the significance of proceedings for some – seen as a particular risk for vulnerable individuals with complex needs and those facing language barriers. Respondents also suggested that quality and reliability issues around digital technologies can impact the quality of evidence seen by juries and individuals’ access to justice. Digital poverty was noted as a risk factor, and issues were highlighted around infrastructure and resourcing.

Amendments or additions to current provisions were suggested to ensure that the future approach is effective. These included calls for virtual attendance to be the default for professional witness such as police, medical and scientific witnesses. Others wished to ensure that mode of attendance should be determined on a case-by-case basis, particularly with reference to individual needs and circumstances.

National jurisdiction for callings from custody

The majority of respondents felt that the provision for national jurisdiction for callings from custody should be made permanent. Those who supported permanency saw national jurisdiction as enabling a more flexible and efficient approach to management of custody business, noting that provisions have often helped to minimise the need for transport of prisoners and streamlined the handling of custody cases. Respondents suggested that this provision has the potential to reduce the current backlog of cases, benefiting both victims and the accused. It was also suggested that national jurisdiction can support a more trauma-responsive approach to custody.

Some of those who objected to or raised issues for proposals raised concerns that national jurisdiction could limit local access to justice. However, most of those raising concerns referred to practical considerations such as potential for custody hearings held outwith the jurisdiction of the offence to be less accessible to victims, witnesses and members of the public. It was suggested that provisions should ensure virtual attendance is available for those unable to attend in-person, and some proposed local hybrid custody courts as a preferable alternative.

Fiscal fines

Most respondents agreed that provisions for fiscal fines should be made permanent. This support included a view that provisions could reduce use of court prosecution, helping to address backlogs and prioritising court time for more serious cases. It was suggested that temporary provisions have been working effectively in this regard.

Opposition to the permanency of fiscal fine provisions included concern that greater use of alternatives to prosecution could limit the ability of criminal justice partners to deliver their public protection function. Respondents also raised issues around how fiscal fines should be applied. The most common concern was that fines must be proportionate to the severity of the offence, and take into account capacity to pay and the potential impact of any financial hardship on families. Some saw a need for additional guidance to ensure appropriate use of fiscal fines as an alternative to prosecution.

Digital productions

The majority of respondents agreed that digital evidence should be used in criminal cases rather than having to produce the original item in court. A range of anticipated advantages were noted, most commonly the potential to deliver efficiencies in relation to early disclosure and presentation in court. Several points for consideration were raised around how digital productions are used, most commonly that provisions should ensure that the court can require physical evidence to be produced and that the prosecution or defence can request physical productions. There were also calls for clarity around quality standards to ensure that digital productions can be trusted.

Most respondents agreed that, where an image is produced, it can be treated as if it was the item itself that was being produced – including a view that this is necessary if use of digital productions is to achieve the anticipated benefits. Respondents also saw other practical advantages such as potential to reduce the resources required for storage and transport of physical evidence. Opposition to the proposal appeared to be linked to a view that physical productions are usually more suitable than digital productions for criminal cases, including concerns around how the integrity and accuracy of images could be assured.

Around half of respondents agreed that the current procedural framework would allow the defence to request physical production in light of concerns that its absence would prejudice a fair trial. Comments on the approach to handling requests for physical productions included a perceived need for judicial oversight of requests, and for issues to be raised at an early stage to enable judicial determination. It was also suggested that physical production should be allowed where there is disagreement between prosecution and defence, unless a request is considered unjustified. There was also concern around how these issues can be dealt with prior to trial for summary cases, as the defence would not be made aware in advance of intended productions.

Modernisation of the law on copy documents

Around half of respondents agreed that the transfer of digital files to a reliable digital evidence system should remove the requirement of certification, and that any such file should be accepted as a true copy. Support reflected confidence in the capacity of the Digital Evidence Sharing Capability (DESC) system to ensure the integrity of digital evidence, and potential for significant efficiencies if the requirement for certification is removed in these cases. Several points for consideration were raised around whether and how the provenance of digital evidence can be assured on the basis of information retained in the DESC audit system. There were concerns around potential manipulation of data and images, and how any manipulation before a file was transferred to DESC can be identified. It was also suggested that assuring the provenance of digital files may require DESC to capture additional information such as locus, the person responsible for evidence, and the information captured.

Most respondents agreed that any issue relating to the admissibility of the copy held in DESC could be raised through the existing pre-trial hearing system. Potential issues were raised around how admissibility disputes should be managed, including that a certification defect may only become clear after a procedural hearing, potentially requiring a trial to be halted. Around half of respondents agreed that the court should have discretion to allow a document, if satisfied it is a copy, despite any defect in certification, and most agreed that the court should be able to hear evidence to make such a determination. Respondents expressed confidence that judicial determination would ensure copy documents are not allowed into evidence inappropriately, although it was suggested that the specific formulation of the power will be important such as the basis on which a court would be able to make such a determination.

Impact assessments

Around half of respondents commented on the potential impacts of consultation proposals, including a view that effective monitoring will be important to ensure that any emerging issues affecting access to justice are understood and addressed.

Comments on human rights impacts included reference to potential positive impact for proposals to make justice processes more efficient and accessible. However, respondents also saw a risk of adverse impacts on human rights, including potential for use of virtual attendance and digital productions to impact the right to a fair trial (Article 6) and right to respect for private and family life (Article 8).

In terms of potential impact on equalities and the protected characteristics, it was suggested that wider use of digital technologies is likely to support access to justice for some with protected characteristics. Potential negative impacts included concern that proposals could limit access for those who may struggle to engage with justice processes via digital means, such as people with disabilities or visual impairment, and other needs such as those with addiction or mental health needs, or neurodivergence. Concern that those affected by digital exclusion could also be disadvantaged were raised for children and families, and children in care.

Comments around the impact for children and young people focused on the perceived risk of negative impacts. This included potential for fiscal fines to disproportionately affect children and younger people, and concern that some may have difficulty engaging meaningfully with justice processes via digital means. Scotland’s Bairns Hoose Standards were suggested as a reference point for work around implementation of proposals for virtual attendance to mitigate negative impacts. There were also calls for proposals to be extended to the children’s hearing system, as the means by which many children who offend are dealt with.

Regarding socio-economic equality, comments primarily related to fiscal fines and use of digital technologies. Respondents identified ability to pay fiscal fines as a key issue for socio-economic equality, with proposals seen as having potential to disproportionately affect those who are socio-economically disadvantaged. There was also concern that greater use of digital technologies could limit access to justice for the socio-economic inequality, due to the higher incidence of digital exclusion amongst this group.

Discussion of impacts for island communities included reference to potential for virtual attendance proposals to improve the accessibility of court for these communities, particularly for those where no court is available locally and travel to the mainland can be costly and unreliable. Potential negative impacts included concern that proposals could contribute to the closure of sheriff courts for island communities. This was also linked to wider concern that any centralising of justice could disproportionately affect island communities and their access to local justice.

Respondents cited several areas where proposals could have a negative impact on data protection and privacy, primarily around use of digital technologies and digital evidence. It was suggested that greater use of digital evidence would increase the risk of data protection breaches, and specific issues were raised around assuring the right to privacy for witnesses and victims, and the need for suitable protocols to ensure compliance with data protection legislation.

Consideration of business and third sector impacts included potential for efficiencies due to conduct of business by electronic means and digital productions to improve prosecution of financial crime. There were also concerns around potential for any closure of court buildings to have an adverse impact on local businesses, and that proposals could result in additional financial burden for organisations required to upgrade digital technologies and security systems.

Commentary around environment impacts identified positives associated with greater use of digital technologies. In particular, respondents noted that proposals for virtual attendance and use of digital productions are likely to reduce environmental impacts associated with travel to and from court due to reduced transport of evidence and people.