Official Report 748KB pdf
Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension of Temporary Justice Measures) Regulations 2024 [Draft]
Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Early Expiry of Provisions) Regulations 2024 (SSI 2024/246)
Our first main item of business is an oral evidence session on an affirmative instrument and a negative instrument. We are joined by the Cabinet Secretary for Justice and Home Affairs; I also welcome Patrick Down and Vallath Kavitha Krishnan, from the criminal justice division, and Nicola Guild, from the legal directorate, in the Scottish Government.
I refer members to papers 1 to 3, and I intend to allow up to 30 minutes for the evidence session. I invite the cabinet secretary to make some opening remarks on the Scottish statutory instruments.
Good morning, convener. As the committee knows, the Coronavirus (Recovery and Reform) (Scotland) Act 2022 includes a range of temporary justice measures, which were introduced to make sure that our justice system had the necessary flexibility to respond to the impact of the pandemic.
Since then, justice agencies have made significant progress towards recovery, and the need for some of the temporary measures has disappeared or reduced. Last year, the Scottish Government made regulations that expired several measures. Our continuing determination to reduce the number of temporary measures is shown by the expiry regulations that the committee is considering today, which expire two further measures because those are deemed no longer necessary or proportionate—including one of the extended time limits that were put in place at the start of the pandemic.
The proposed extension regulations would extend the remaining temporary measures so that those stay in force until the end of 30 November 2025. My decisions on which measures to extend are based on consultation with justice agencies, the legal profession, the judiciary, local government, and victim support organisations and other third sector bodies. The statement of reasons, which I laid alongside the regulations, sets out in some detail the findings of that consultation and review. For now, I will outline briefly why we need to retain the provisions.
We continue to see the impact of the pandemic on criminal court backlogs. Considerable progress is being made on reducing those backlogs. The total number of outstanding scheduled trials fell by more than 40 per cent between January 2022 and August 2024. However, modelling by the Scottish Courts and Tribunals Service predicts that backlogs of solemn trials will persist above the target baseline until 2026-27.
The measures in the extension regulations will continue to help in the effective use of court resources. For example, the availability of higher maximum fines will mean that more summary cases can be diverted from prosecution, which will reduce the number of cases that need to go to court.
The two extended time limits—which, under the extension regulations, would continue for one final year before reverting to their pre-pandemic level—will increase the courts’ capacity to hear trials rather than spend time on procedural matters. That will help the throughput of cases and protect victims’ access to justice.
I am committed to the reversion of the time limits next year; indeed, there is no ability under the 2022 act to extend them any further, and ministers have no intention of legislating to make them permanent, so they will end no later than 30 November 2025. However, justice agencies are clear that the extended time limits will continue to play an important role in helping the courts to manage the current solemn case load. The data that I offered shows the progress that has been made so far, but we should allow the justice agencies to continue their work to reduce the backlog. Their view is that, without the provisions, the timescale for reducing the solemn case backlog would be extended, and that there would be a risk that some cases would not proceed at all.
I am sure that none of us wants to jeopardise the courts’ capacity to focus on the throughput of trials. It is plain to me that the two remaining extended time limits must be continued for one final year, after which they will expire.
The other measures in the extension regulations include the conduct of business by electronic means, attendance at court by electronic means, and a national jurisdiction for callings from custody. Although the pandemic was a catalyst for introducing those measures, they have shown their value in modernising our justice processes and making those more efficient. They deliver better outcomes and experiences for people who use Scotland’s justice services. It is right that we look to extend the use of those valuable measures, which will promote the on-going recovery of the justice system and ensure the continuation of modernised practices that were much needed and welcomed.
Permanent reform will require primary legislation. Last month, we introduced the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, which proposes making permanent those measures that have a proven broader and longer-term benefit. To be clear, convener, that bill does not make any provision to continue extended time limits. As I said, those cannot be retained beyond the end of November 2025.
It is clear that, collectively and as a package of temporary measures, the extension regulations are vital in supporting our justice system’s continued recovery and resilience in the coming year.
Thank you, cabinet secretary. I open the meeting to questions from members.
A couple of issues that we raised at this time last year are still of concern. The first relates to the increase of fiscal fines from £300 to £500. At this time last year, the cabinet secretary asked for a one-year extension to that. We objected and put the matter to a vote. Labour supported us but, nonetheless, the Government got its way. Here we are again: the cabinet secretary seeks another one-year extension to what was supposed to be a temporary power that was necessary only because of the pandemic.
When we raised that matter last year, the cabinet secretary told the committee that there would be a public consultation. The findings from that were published in July. Some respondents raised concerns specifically about the increased use of fiscal fines. Comments were made that that would
“negatively affect the ability of the criminal justice system to deliver its public protection function”.
Concerns were also expressed that those fines were being used for more serious offences that would normally be prosecuted in a court. That has been borne out by recent reports that a number of serious crimes, including assault, are being dealt with by way of fiscal fine—there is no trial and no conviction and, often, the victims are not informed of the outcome.
Does the cabinet secretary genuinely think that further extension is appropriate, given the misgivings about the use of fiscal fines?
Thank you, convener, and thanks to Mr Findlay. I know that he has long-held objections to and views on fiscal fines.
As the committee will be aware, fiscal fines have been part of our justice system for decades. To be clear, the specific measure that we are talking about is a new level of fiscal fine. Instead of the maximum fine being £300, there is an additional level of fine of up to £500. The statistics show that only 2 per cent of the fiscal fines that have been applied have used that fine of up to £500.
For the record, the long-term trajectory shows that the use of fiscal fines has fallen significantly. In 2018-19, 21,678 fiscal fines were issued initially, and the 2023-24 figure was 12,108. I am happy to share those figures with the committee in full.
If prosecutors did not have the facility to look at a case and think that a maximum fine of £300 would not be appropriate but that a fine of up to £500 would be, there would be 200 to 300 more cases going through the justice of the peace courts. For that reason, I think that it is necessary to retain the measure. It is an extension of the maximum fine limit. That is pragmatic.
I say to Mr Findlay that there are good commonsense reasons for extending the provision for another year, and for building it into the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, as I set out to Parliament with the introduction of that proposed legislation.
I am sure that we would like to see those statistics. It is interesting to see that fiscal fines appear to have reduced significantly, but that should be seen in the wider context of all direct measures. If we are being provided with those figures, they should also include recorded police warnings, antisocial behaviour, fixed-penalty notices and any other such measures, because it might well be that some of them have reduced but others have increased.
Last year, I suggested that, if the Government wanted to extend the provision, it should introduce primary legislation. The cabinet secretary has today said that she does not intend to extend it after this one-year extension, I believe. Is that correct?
No. Forgive me, convener—I thought that I was crystal clear. The statutory instruments will extend the provisions for one year, but the ability to issue a fiscal fine of up to £500 is part of the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, so we have already included that in our proposed primary legislation. That bill was introduced in Parliament either last week or the week before.
The other issue of concern relates to the power that the Crown Office has been given to extend how long it has to put someone on trial. Previously, it was 80 days from the serving of an indictment in a solemn case, which, of course, are the more serious cases. However, that was increased by way of these temporary Covid measures to 320 days for those who are not on remand and 260 days for those who are held on remand. That is a huge increase and, as we know, was supposedly temporary, but if the motion is passed today, the extension will now run until 2025. Does the cabinet secretary agree that those extensions, which keep people in remand for so much longer, are only adding to the crisis in the prisons, which are already dangerously overcrowded?
10:15
I hope that Mr Findlay and the committee realise and appreciate that there is nothing that I take more seriously than the situation that our penal establishments currently face. If I thought that removing the time limits this year as opposed to next year would help, I would propose that.
My concern is that, if we remove the two time limits that I propose to extend for one year only, that will add to the problem of remand, rather than alleviate it. If we remove the limits right now, instead of the focus being on the throughput of criminal justice cases, decisions will be made, on a case-by-case basis, to extend the time limits. The system has always had the ability to extend time limits on a case-by-case basis. If that is being done for a substantial number of cases, that will only add to delay.
I propose that we give the system one more year to transition. I am not making permanent, in primary legislation, the temporary Covid time limits. Four of those time limits have now expired, and I am proposing to expire another one.
To cut to the chase, the increase in remand is affected by the backlog, and extending the time limits is a result of the backlog. To reduce remand, we have to reduce the backlog.
I have a final question. Do you or your officials have any data on how often the extensions have been used since the temporary measures were introduced?
We will have it. Patrick Down, could you speak to that, please?
We would have to come back to you on that in writing. I am not sure that we have statistics specifically on the number of extensions that are granted on a case-by-case basis. We would have to speak to the Crown Office about that.
Good morning. It is interesting to note that the use of fiscal fines has fallen. Is there any information on the levels of fiscal fines that have been used? How often have the maximum fines been used? In the pandemic period, the maximum fine was increased to £500, and you propose to extend that.
As I said to Mr Findlay, the information that I have been sighted on is that the new levels of fiscal fines—from £300 up to £500—have been used in around 2 per cent of cases. At 2 per cent of 12,000 cases, it is a very small proportion overall.
Is there any information on how often the maximum fine has been used? My reason for asking is that £300 to £500 is a significant jump. That maximum has been in place and you are asking the committee to support its extension.
Yes. I am asking the committee to support the extension. I would like it to remain in place permanently, which is why it is part of the primary legislation that we have introduced to Parliament. I do not have more granular information on how many fines have been £400 or £500.
That is fair enough. I presume that, when you lay the new bill before Parliament, you will let the committee see some detail on use of the maximum fine and what offences it has been used for. The problem is that we are being asked to accept something in the dark, because we do not really know how it is used.
My understanding is that the Crown Office regularly updates the committee on the matter. I stand to be corrected by members, but I am told that it last updated the committee earlier this year and that another update is imminent—it will be in October. However, I take Ms McNeill’s point on board and we will relay the request to the Crown Office to provide the committee with information at a more granular level.
We receive regular updates on a range of things, some of which are shared by email and some of which are in our weekly bulletin. I am comfortable that that information will have been shared with the committee.
It looks as though some progress is being made in relation to the pleading diet. Forty-three weeks is 301 days—I have just used my calculator—and the legal limit without the extension is 110 days. You want to extend the time limits significantly, but how confident are you that progress will continue to be made if you do that, given that, as you know, the system was not meeting the time limits by quite a long way even before the pandemic?
I want to reassure Ms McNeill. I cannot be any clearer that extending the remaining two Covid time limits for solemn cases is not in the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill. I hope that I have been crystal clear with Parliament and justice stakeholders about that. The reason for the final year of extension to the time limits that I propose is, in essence, to enable a smooth and effective transition. I wish for the progress that is being made to continue and I will continue to support it.
To date, the Government has invested £180 million in recovery. That is a significant amount of resource, and I am accepting the plea of the various justice agencies that the time limits be extended for a final year to assist with good planning and transition, because this is not in my plans for primary legislation.
I welcome that. However, as you know, I share Russell Findlay’s concerns about the impact on remand in particular. I know that you cannot answer this question, but I have questioned quite closely the Crown’s continual pushing for the indictment process to be 180 days, and I still do not have an answer as to why that would be necessary. However, I understand that setting a pleading diet is more difficult.
Do you want the national jurisdiction to remain in place under the SSI that is before the committee? Before the pandemic, the principle in Scots law had always been that a person would be tried in the particular sheriffdom where the crime was committed. The reasons for that were that the sheriffs who serve in a sheriffdom will know the area and that that approach makes sense for the accused and those who attend court for the case. Is the problem with the national jurisdiction not that, for example, someone in the sheriffdom of Glasgow—forgive me, but I cannot remember its full title—could end up in court in Aberdeen? It concerns me that you intend to make the measure permanent. The committee has no information on where people are being tried under the provision. We accepted that it was necessary and proportionate during the pandemic, but I question that provision, too.
The provision on a national jurisdiction for callings from custody is not used to the maximum. My view is that it allows flexibility, bearing in mind that public health emergencies have been a factor in our recent history, along with the weather in this small, inclement-weather country. There are, therefore, pragmatic arguments for retaining that flexibility. I recall that, last year, Ms Clark asked whether, after the initial custody hearing, further hearings could be held anywhere. That is not the case, because we do not want witnesses to have to travel all over the country. It is a limited provision, and there are pragmatic reasons for keeping it because it allows flexibility.
I have heard concerns about prisoners who are on remand not getting the same access to services or rehabilitation while they are in prison as those who are serving sentences. Has that been considered, if we are extending the time that they will be held on remand?
It is not directly related to the specific and quite technical provisions that are in front of the committee today. The broader point is that people on remand are held on a different legal basis from convicted prisoners. There are expectations about sentenced prisoners’ participation in particular activities, whereas people on remand are considered to be innocent until proven otherwise. Although the Scottish Prison Service will do a lot to encourage remand prisoners to participate in purposeful activity, a different legal basis is involved.
I am just thinking about that. If someone ends up going into prison for a substantial time but they do not get any rehabilitation while they are there and they do not attend any courses to give them skills for when they come back into the community, is there any—
Someone who is being held on remand has not been convicted of an offence and will probably go on to plead their innocence, so that is not the environment for them to do offending behaviour work. Indeed, they would be advised against making any admissions. When people participate in such work, much of it is based on the offence that a court of law has decided they are guilty of. Part of the work, and particularly the preliminary part of it, is about prisoners owning their actions and talking in detail about the offences that they have committed. That work is difficult to do with remand prisoners, because they are innocent until proven otherwise—it is a completely different legal basis.
However, there are arguments that there should be support for remand prisoners’ other needs that are not offence based. For example, their healthcare needs should absolutely be attended to on the same basis as those of any other prisoner.
Are there instances where somebody is held on remand and, by the time they go to court, they have already served their sentence?
Yes.
If they are found guilty but they have already served their sentence so they are released straight away without having had any rehabilitation, courses or anything else while they were in, the likelihood is that they will go out and offend again.
That is why one of the range of actions that we must take to address the length of time that people are spending on remand is to reduce court backlogs. That will benefit the remand population because it will make a significant contribution to reducing the time that people spend on remand.
In your submission to the committee, you say that the Scottish Government consulted the
“judiciary, legal profession, victim organisations and third sector organisations”
and that there was
“strong support for retaining such measures.”
Were there any objections to the measures being extended? Is there anything that it would be helpful for the committee to know?
10:30
I do not recall there being any strong objection to the measures. That is narrated in the statement of reasons that I submitted. Understandably, some stakeholders will raise issues of digital access. The Scottish courts and tribunals system does not want there to be a wholesale return to the use of paper, but people can access and use physical documents. That is why the Scottish Courts and Tribunals Service is working with Citizens Advice Scotland and has a strategy to support digital inclusion.
When you asked the committee last year for a one-year extension, did you tell the criminal justice agencies at that point that they had one year to sort themselves out, or did you intend to come back to the Parliament again this year to ask for one more year?
The coronavirus legislation permits me to make extensions only year by year. To be prudent and sensible, you want to be making an assessment of progress throughout the year. It would always be my desire to be making as much progress as possible, but you want to see that progress is being made and to have discussions about it.
We have to move on. The next item of business is consideration of the motion to approve the affirmative SSI on which we have taken oral evidence. I invite the cabinet secretary to make any brief additional comments that she would like to make and move motion S6M-14590.
I do not have any additional comments, convener.
I move,
That the Criminal Justice Committee recommends that the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension of Temporary Justice Measures) Regulations 2024 [draft] be approved.
Would members like to come in with any final points?
I welcome the progress that has been made, but I remain concerned about the extension of the time limits and a number of other things in the SSI. I might have considered the national jurisdiction differently, but I accept that it all has to be in one SSI. I am concerned about the lack of information on the use of fiscal fines. I have a long-standing concern about that. I was concerned about it even when the previous Government was in place, because we must be clear about the range of offences that the fines are used for and how well they are used. I note that there has been a reduction in their use, which is interesting. I would have liked to know whether sheriffs are using £300 or £400 fines and what tariffs they are using for the fines. In the absence of that information, I cannot vote for the SSI.
I expressed my deep concern about the issue in meetings that I had with the Scottish Courts and Tribunals Service before the pandemic. As the cabinet secretary will recall, the Parliament took a lot of pride in the time limits that were established, which were unprecedented. We extended the time limits because we felt that they were far too tight. Now, they have been relaxed to such an extent that it is having an impact on the prison population, and particularly on the remand population. Sharon Dowey was quite right to make the point about the restrictions on what we can do with someone who is on remand while they are in prison, and the proposal would prolong their situation for another year. Katy Clark and I argued that time limits could have been extended case by case. Although that would have been more cumbersome, we felt that it would be a better alternative.
For those reasons, I cannot vote for the SSI.
I note the concerns that we expressed last year about the increased levels of fiscal fines and, more generally, the lack of information that is available to the victims of crimes.
The second issue concerns the increased time limits, especially for prisoners who are on remand. In the same year, up to 500 prisoners have been released early due to catastrophic overcrowding in prisons, but I have not really heard from the Government today any sense of urgency or any evidence about what has been done in the past 12 months to remedy the problems so that we would not need additional 12-month extensions for both issues. I therefore cannot support the SSI.
As no other member wants to speak, I invite the cabinet secretary to wind up and press or withdraw the motion.
I reiterate that addressing the backlog is one of the key factors in addressing the time that people spend on remand. The provision would extend the time limits for only one year. I do not want to see any premature lifting of the two remaining time limits. The other five either went or are included in the expiry regulations.
I appreciate Ms McNeill’s long-standing concerns. It has long been the case that our system can review on a case-by-case basis, but I am concerned that reorienting that system wholesale to spend time on procedural matters would reduce the throughput and have a direct impact on the progress that we hope to make on reducing backlogs over the next year. That reduction would be part of the contribution to reducing the remand population and, in particular, the time that people spend on remand. I also point out that it is the Crown Office and prosecutors, rather than sheriffs, who make decisions about fiscal fines.
I press the motion.
The question is, that motion S6M-14590 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Against
Clark, Katy (West Scotland) (Lab)
Dowey, Sharon (South Scotland) (Con)
Findlay, Russell (West Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
The result of the division is: For 4, Against 4, Abstentions 0. As there is are equal numbers of votes for and against, I use my casting vote as convener to vote for the motion.
Motion agreed to,
That the Criminal Justice Committee recommends that the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension of Temporary Justice Measures) Regulations 2024 [draft] be approved.
As no member wishes to make any recommendation in relation to the negative instrument, are we content for the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Early Expiry of Provisions) Regulations 2024 to come into force?
Members indicated agreement.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to Parliament on the affirmative instrument?
Members indicated agreement.
Thank you. That will be published shortly.
I thank the cabinet secretary and her officials for attending the meeting. I will suspend the meeting briefly to allow for a changeover of witnesses.
10:39 Meeting suspended.