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Joint Inspection of Emergency Criminal Justice Provisions

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Joint Inspection of Emergency Criminal Justice Provisions HM Inspectorate of Constabulary in Scotland & HM Inspectorate of Prosecution in Scotland Joint inspection of emergency criminal justice provisions September 2020 HM Inspectorate of Prosecution in Scotland © Crown copyright 2020 Produced and published by Her Majesty’s Inspectorate of Constabulary in Scotland and Her Majesty’s Inspectorate of Prosecution in Scotland and published on behalf of the Scottish Government by APS Group Scotland. www.hmics.scot ISBN: 978-1-910165-59-1 www.gov.scot/collections/inspectorate-of-prosecution-i2 n-scotland About HM Inspectorate of Constabulary in Scotland HM Inspectorate of Constabulary in Scotland (HMICS) is established under the Police and Fire Reform (Scotland) Act 2012 and has wide ranging powers to look into the ‘state, effectiveness and efficiency’ of both the Police Service of Scotland (Police Scotland) and the Scottish Police Authority (SPA). About HM Inspectorate of Prosecution in Scotland HM Inspectorate of Prosecution in Scotland (IPS) is led by HM Chief Inspector of Prosecution who is appointed by the Lord Advocate to inspect the operation of the Crown Office and Procurator Fiscal Service. The functions of HM Chief Inspector are set out in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. The 2007 Act makes clear that in the exercise of any of the functions conferred by the Act, HM Chief Inspector is independent of any other person. This joint inspection was undertaken by HM Inspectorate of Prosecution in Scotland under section 79 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007; and by HMICS under section 74(2)(a) of the Police and Fire Reform (Scotland) Act 2012. This report was submitted to the Lord Advocate under section 79 of the 2007 Act and laid before the Scottish Parliament under section 79(3) of the 2012 Act. 3 Contents Introduction 05 Key findings 09 Electronic signature and electronic transmission of documents 11 Remote, electronic appearance at court 17 National jurisdiction for first appearance from police custody 35 Lord Advocate’s guidelines on liberation by the police during Covid-19 38 Appendix 1 – Survey results 44 4 Introduction The aim of this joint inspection was to assess the use and impact of key emergency criminal justice provisions introduced in response to the Covid-19 pandemic, and to consider whether any aspects of the emergency provisions could result in more efficient and effective ways of working in the longer term. The inspection was carried out jointly, by HM Inspectorate of Constabulary in Scotland (HMICS) and HM Inspectorate of Prosecution in Scotland (IPS). We therefore considered the provisions primarily from a policing and prosecution perspective, however it was not possible to assess the provisions without also considering their implications for the wider criminal justice system. Had there existed a dedicated inspectorate with oversight of the Scottish Courts and Tribunals Service (SCTS), we would have sought to work with them to provide an even more rounded view of the emergency provisions. Nonetheless, we are grateful to SCTS for its open engagement and facilitation of our inspection. The background to the joint inspection is set out in our Terms of Reference, published on 31 July 2020.1 A range of provisions were made to enable the criminal justice system to continue to operate during the initial response to the pandemic. Our inspection focused on four of these, three of which were legislative and one of which was a change in policy. The four provisions were: (1) Electronic signature and electronic transmission of documents2 (2) Remote, electronic attendance of parties at court3 (3) The ability to take a case beginning with an appearance from custody in any sheriff court (‘national jurisdiction’)4 (4) The Lord Advocate’s Guidelines on liberation by the police during Covid-19.5 The Covid-19 pandemic has had an extraordinary impact on the criminal justice system, as it has for other areas of public service delivery. Responding to the pandemic has required remarkable efforts from those working across the system to be adaptable, innovative and to work at pace to maintain the integrity of the system and to continue to protect the public. While much focus has rightly been on health care workers, we would like to pay tribute to those working in various criminal justice roles who have continued to deliver essential services. The scale and pace of the changes required to maintain the operation of the criminal justice system have been a significant challenge. Criminal justice professionals have had to operationalise law and policy changes in quick time, and re-engineer processes to meet new requirements. Any suggestions for improvement or perceived criticisms in this report should be set against this context. Working across criminal justice agencies has been essential, and we welcome the collaborative approach that has been taken. We note, in particular, the effective partnership working between Police Scotland and the Crown Office and Procurator Fiscal Service (COPFS). 1 HMICS & IPS, Joint inspection of emergency criminal justice provisions: Terms of Reference (July 2020). 2 Schedule 4, Part 1, Paragraphs 1 and 1A of the Coronavirus (Scotland) Act 2020 (the 2020 Act) and Schedule 4, Part 3, Paragraph 3 of the Coronavirus (Scotland) (No. 2) Act 2020. 3 Schedule 4, Part 1, Paragraphs 2 to 4 of the 2020 Act. 4 Schedule 4, Part 3 of the 2020 Act. 5 COPFS, Lord Advocate’s Guidelines on liberation by the police during Covid-19 (2020). 5 To help coordinate the response to the pandemic, a Criminal Justice Board was established as a sub-group under the auspices of Scotland’s Justice Board.6 The Criminal Justice Board includes senior representatives from a range of criminal justice organisations including Police Scotland, COPFS, SCTS, the Scottish Prison Service and Community Justice Scotland. Focusing on the ‘recovery, renewal and transformation’ of the criminal justice system, the role of the Board is to drive forward a system level programme of work to deliver change. The Board has oversight of a number of workstreams, including those on virtual custody courts and virtual summary trials, and a number of enabling projects, such as those on a digital evidence sharing capability and a witness portal. Each of these workstreams or projects is led by one of the justice organisations. These cross-agency governance arrangements are supported by internal governance arrangements within each organisation which have developed in response to the pandemic. For example, Police Scotland has refined the portfolio of one of its assistant chief constables so that he is solely focused on criminal justice policy issues, in support of the work of the Criminal Justice Board. This includes strategic responsibility for the digitally enabled policing programme which has strong links to ongoing criminal justice reforms. This demonstrates a commitment by Police Scotland to supporting the broader criminal justice agenda, which we welcome and which is evidenced further by the secondment of a chief superintendent to the Scottish Government to work on recovery and transformation of the criminal justice system. The COPFS response to the pandemic has been led by an internal Corporate Resilience Group, supported by what was initially known as the Operational Response Group and which has appropriately developed into an Operational Recovery and Transformation Group. While the pandemic has brought uncertainty, risk and numerous challenges, it has also brought opportunity. Many of the innovations introduced in response to the pandemic are ones that have long been contemplated but had not yet come to fruition for various reasons. For some innovations, the pandemic has been a catalyst and for others, an accelerator. Some innovations are considered to be long overdue – until Covid-19, the justice system generally relied on face-to-face interactions and paper-based processes. As one respondent to our survey said, ‘It shouldn’t take a global pandemic to force the criminal justice system into the 21st century’. While many innovations have been vital to securing the continued operation of the criminal justice system and may continue to be of benefit in the longer term, their swift introduction without the usual consultation or equality and human rights impact assessments, risks them not gaining the support required to work as effectively as possible or, worse, risks the fairness of proceedings being called into question. It is now an appropriate time to take stock, assess their operation and ensure that the benefits are being fully realised without compromising the fair administration of justice. There should be a clear distinction between the response to the public health emergency and any future reform of the criminal justice system in Scotland, albeit that learning from the response may help shape its transformation. We understand that cross-agency work has recently begun on assessing the impact of changes made in response to the pandemic on equality and human rights, which we welcome. Responding to the pandemic has been a challenge for all the criminal justice partners, but it is important to note the scale of the work still to be done. The criminal courts closed to all but essential business in March 2020. While some proceedings resumed as restrictions eased, by August 2020, the backlog of High Court and Sheriff and Jury solemn cases was 750 and 1,800 respectively, and the backlog of summary cases was 26,000.7 The backlog continues 6 The role of the Justice Board is to lead justice system organisations to deliver the outcomes set out in the Scottish Government’s justice strategy. 7 SCTS, Respond, recover, renew – Supporting justice through the pandemic and beyond (August 2020). 6 to grow as, while police recorded crime and the number of cases reported to the procurator fiscal initially fell during the lockdown period, they were returning to almost pre-Covid levels from May 2020.
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