Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

4. National Jurisdiction for Callings from Custody etc.

It is proposed that temporary provisions to enable all sheriffs to hear custody cases - irrespective of where the accused is held, where the sheriff normally has jurisdiction, and where the alleged offence took place - are made permanent.

The consultation paper notes that these temporary measures extend a sheriff’s jurisdiction throughout Scotland to deal with first appearances from police custody, and any continuation until tendering of a not guilty plea, or to full committal in solemn proceedings. It is proposed that making such provisions permanent would enable more flexible and efficient management of custody business, and support increased use of virtual custody courts. The consultation paper also makes reference to stakeholder agencies having expressed support for the permanency of these measures.

Question 3: It is proposed that the provisions for Chapter 3 (National Jurisdiction for Callings from Custody etc.) will be made permanent. Which of the following best describes your view?

Responses to Question 3 by respondent type are set out in Table 4.

1 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

Most of those answering the question (18 of 29) felt that the provisions for Chapter 3 in relation to national jurisdiction for callings from custody should be made permanent, with five of these wishing to see provisions made permanent with exceptions. Three respondents – two legal profession and a judiciary respondent - felt that the provisions should not be made permanent. Eight respondents were unsure or had no view.

If you have any comments on the proposal for permanency of these provisions, please provide them below.

Eighteen respondents provided further comment at Question 3.

Reasons for supporting the permanency of provisions

Several of those who supported permanency noted the potential for provisions to enable a more flexible and efficient approach to management of custody business, reducing the current backlog of cases and easing pressure on police custody units.

It was noted that national jurisdiction has often helped to minimise the need for lengthy transportation of prisoners (with associated carbon reduction benefits), and to ensure those appearing from custody can be processed without delay. Comments in support of national jurisdiction noted benefits such as enabling the operation of ‘hub’ virtual custody courts with the power to deal with cases throughout Scotland, providing access to modern facilities which ensure custody cases can be dealt with promptly. It was also suggested that national jurisdiction can support a more trauma-responsive approach to custody, and that provisions are essential in enabling the virtual trauma-informed and domestic abuse aware summary court model.

Any reduction in backlog of cases and the length of time that individuals spend in custody was seen as having benefits for both victims and the accused. This included particular reference to benefits for vulnerable individuals and those with certain protected characteristics for whom delayed access to justice can have a significant negative impact. Respondents cited feedback indicating that national jurisdiction has had a positive impact on the wellbeing of accused persons, and that minimising the time that the accused spends in custody before being seen in court can safeguard their Article 5 Rights under the European Convention on Human Rights (ECHR). It was also noted that reducing case backlogs would have a positive impact on the wellbeing of court staff, and that national jurisdiction has helped to address current challenges associated with staffing shortages at the custody contractor.

National jurisdiction provisions were seen as particularly relevant where an accused is arrested on warrants from multiple courts, by enabling all outstanding matters to be dealt with more efficiently in a single court with minimal travel. Respondents also referred to benefits where there are barriers to travel such as transport disruption, severe weather or other unexpected events, and on public holidays.

Reasons for not supporting permanency

Some of those who objected to or raised concerns around this proposal felt that justice should be dealt with locally. In addition to commenting on the importance of the relationship between the court and the people it represents, respondents cited specific positives associated with local justice including sheriffs and court officers being able to draw on their local knowledge of the accused and circumstances around cases, better access to local social work and support services to input to sentencing, and ensuring local residents can witness justice being administered. There was also concern that proposals could result in the closure of court buildings to save money, and would thus be detrimental to local justice.

Other points for consideration

Most of those raising concerns around national jurisdiction referred to practical considerations, including a view that proposals raise significant difficulties that are yet to be resolved. There was concern that custody hearings held outwith the jurisdiction of the offence may be less accessible to victims, witnesses and members of the public. It was suggested that any permanent use of national jurisdiction should ensure that parties unable to attend in-person have the option of virtual attendance, to ensure that victims and witnesses are not adversely affected. Local hybrid custody courts were proposed as a preferable alternative in the context of these issues noted above, and there were calls for work to develop this model further.

Several respondents reiterated concerns discussed previously at Question 2 and the supplementary question about specific factors which relate to virtual appearance at custody hearings, potentially indicating lack of clarity around the distinction between the principle of national jurisdiction, and virtual attendance at court.

These respondents suggested that use of virtual attendance as part of national jurisdiction could limit the ability of more vulnerable individuals to fully participate in proceedings, and it was suggested that consideration should be given to how individuals can access support prior to leaving custody. There was also concern that use of virtual attendance could prevent effective input from local social work services with potential for this to lead to an increased number of individuals being remanded in custody, contrary to the wider policy direction.

Respondents also perceived pilots of virtual custody courts as having failed to deliver anticipated benefits, and there was a view that pilots have been less efficient than in-person custody courts. This was primarily attributed to administrative and technical issues that have not been overcome to date. Some felt that there is scope for stakeholders to continue to work together to improve efficiencies, but others suggested that technical barriers are currently too great to allow effective virtual custody courts. There were calls for an evidence-based evaluation of virtual custody court pilots before further change is considered.