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The next item of business is a statement by the Rt Hon Dorothy Bain KC on prosecution guidance on public safety and prison population. The Lord Advocate will take questions at the end of her statement, so there should be no interventions or interruptions.
14:58
I am grateful for the opportunity to address members in the chamber. Members have heard from the cabinet secretary that the prison estate in Scotland may imminently be beyond capacity. I understand that this is causing extraordinary pressure on staff as prisoner occupancy exceeds capacity in cells, undermining attempts to rehabilitate and reduce the danger posed by individuals, and presenting the risk that the prisons cannot take individuals into their custody.
It is not for prosecutors to resolve the pressure on the prison estate and prosecutors are ordinarily entitled to assume that there is sufficient safe capacity within the prison estate. However, I have been asked what steps prosecutors, acting on my behalf, could take to alleviate some of the current pressures. I have concluded that it is possible and appropriate for me, acting independently and in the public interest, to provide further guidance to prosecutors, while others implement longer-term steps to address the situation. The measures that I propose are temporary and will be kept under review.
Before setting out those measures, there are some matters that I must make clear. First, there will be no change to the current vigorous approach to the prosecution of domestic abuse and serious sexual offending. To address the societal problem of violence against women and girls, it is essential that victims and the wider public understand that their allegations will be taken seriously.
Secondly, I cannot say what the effect of the measures that I will outline might be on the number of additional prison spaces that might be created. That would be entirely speculative. Nor can I say whether any persons who are granted liberty as a result might reoffend, as that is similarly unpredictable.
Thirdly, I am satisfied that prosecutors have been approaching the issue of whether to oppose bail on a consistent basis, in accordance with law and in the public interest.
The measures that I have introduced are intended to impact people in three situations. First, there are those who are held on remand, whose status might change on further review or through resolution. Secondly, there are those who might be liable to be remanded due to repeat offending or failing to appear but who do not seem to represent an immediate risk to the public. Thirdly, we wish to prevent some offenders from reaching the stage at which remand becomes necessary at all.
In relation to those who are already on remand, initial decisions on bail are frequently made to short timescales, based on relatively limited information and without the immediate option of special conditions such as electronic monitoring or bail supervision. Bail reviews, which are based on slower-time social work assessments of the suitability of an individual for such conditions, may provide a means to reduce the remand population. Such reviews cannot be initiated by prosecutors. They must be initiated on behalf of the accused, but prosecutors will endeavour to facilitate that process if approached, and may highlight potentially relevant cases for review to defence solicitors and local authorities. The grant of bail will remain a matter for the court.
In relation to resolution, prosecutors must take steps to progress and resolve cases efficiently and swiftly. The requirement for and value of early and firm decision making cannot be overstated. I have made it clear to prosecutors at all levels that effective early engagement with the defence is expected in all remand cases. We will build on the success of the summary case management pilot, which has shown a significant increase in the number of early disposals. We will work with our colleagues in the criminal defence bar to proactively resolve cases earlier and reduce the time that accused persons may spend on remand.
Judges make decisions about whether bail is granted for those who are liable to be remanded. The prosecutor’s role is to assist their decisions by highlighting risks based on information about the accused and the offence. Prosecutors start from the position that a person accused of crime should not be remanded in custody pending trial unless there are good reasons in law and the public interest to deprive them of their liberty.
Bail will continue to be opposed where there is evidence to suggest that the accused represents a substantial risk of causing harm to the public or to victims and witnesses, and where that risk cannot be mitigated by the imposition of bail conditions. When the issue of bail is first considered, prosecutors will highlight cases in which they consider that the options of electronic monitoring or other means of monitoring special conditions of bail may manage the risk to public safety and prevent reoffending. Where individuals do not represent a risk to members of the public or to specific individuals, my instruction to prosecutors is that bail should not normally be opposed. Where such offenders are not remanded in custody, there might be concerns about reoffending. However, bail conditions will still be considered where they are likely to reduce the risk of reoffending and, when such individuals offend while on bail or breach special conditions of bail, those offences will be prosecuted.
In addition, as a short-term measure, pre-conviction warrants should not normally be obtained and executed by the police unless there is no immediate alternative to secure the accused’s attendance or the accused represents an immediate risk to others. Where attempts to secure the accused’s attendance other than through the immediate execution of a warrant are unsuccessful, prosecutors may require the warrant to be executed.
People who are accused of crime must know that they cannot evade justice simply by not turning up at court without good reason and without consequence. In addition to prosecuting individuals for any offence of failing to attend, officials are currently considering how we can more readily proceed with trials in absence.
I repeat that the existing approach to the initial grant of bail or after failure to appear will not change in relation to allegations of domestic abuse or sexual violence.
Thirdly, I turn to early intervention. Lower-level offending can quickly escalate to repeat offending, successive prosecutions and, often, remand and imprisonment. There are three ways in which that is being addressed.
First, the consistent use of prosecutorial direct measures, along with my new guidance to the police on direct measures, may help to slow down such escalation.
Secondly, escalated offending is a particular risk where the offender has an identifiable need that remains unaddressed. Prosecutors already make extensive use of diversion where there is an identifiable need that can be addressed through an available programme. I have reiterated my support for that approach, but it is, of course, dependent on the necessary programmes being available to address such needs.
Thirdly, we continue to improve the information that is received from the police to ensure that we secure the right outcomes for the right people. As an example, we now receive additional information from the police regarding mental health issues that may be relevant to the accused’s offending and personal wellbeing so that we can take informed views on decisions about whether to prosecute or to oppose bail.
As Lord Advocate, my duty is to uphold the rule of law and to see that those who commit crimes are held accountable. No one is more determined than I am to ensure that people who need to be in prison are kept there.
However, I recognise that prisons that are full beyond their capacity will not deliver justice or public safety. The steps that I have set out today, which are being taken independently and in the public interest, will continue to serve to keep people safe. They will not change our robust approach to domestic abuse to protect women and children from the damage of domestic abuse, nor will there be any diminution in our approach to rape and serious sexual offences. They will serve to deliver a thoughtful and proportionate response to the current pressures.
The Lord Advocate will now take questions on the issues raised in her statement. I intend to allow up to 20 minutes for questions, after which we will need to move on to the next item of business.
I am grateful to the Lord Advocate for providing advance sight of her statement.
Today, the public hoped for clarity on what would change in prosecution policy in response to our ballooning prison population. The Lord Advocate seems to want to make it harder to oppose bail and divert more offenders from prosecution in the first place, but there is little clarity. The Lord Advocate said that, although it is not her job to resolve prison pressures, her aim with today’s measures is to do just that. She then said that she cannot say what the effect of those measures will be on prison spaces. What, then, is the evidential foundation for those specific measures being put in place?
Secondly, we have just heard about the Government’s failure to prioritise and notify victims. The Lord Advocate states that it is “unpredictable” whether those who are granted liberty may reoffend. However, given that we know that interventions can be effective, has she worked with the Government on the reforms to ensure that those interventions are in place and are funded, or is she implementing today’s measures in a vacuum?
Finally, the Lord Advocate conceded that she has taken the action that she has taken in response to the full prisons. In other words, she would not have taken it of her own volition, so it is a less preferable course of action. How does that fact square with her statement that there will be no reduction in keeping the public safe?
There were a number of questions there. I know that we are limited for time, but perhaps I can deal with some aspects of what I have just been asked.
As Lord Advocate, no one is more determined than I am to ensure that people who need to be in prison are kept there. It cannot be that we reach a stage where serious offenders are sentenced or remanded and there is nowhere for them to go because the space in prison is taken up by individuals who do not present an immediate risk to the public.
Ensuring that communities are safe from the harm caused by crime is at the centre what prosecutors do. The temporary measure that I have explained shifts the focus to how best that safety can be achieved. As I emphasised in my statement, the temporary measures will not change the response to allegations of domestic abuse or sexual offences. The temporary guidance is intended to mitigate the current pressure on prisons and will be reviewed. I take my responsibility very seriously and a fundamental part of my role is to serve the public interest and assist in the protection of the rule of law.
In relation to the question about my role and my engagement with the Government of the day, I say that the Scottish Government has legislated for a new test for bail that focuses primarily on the risks posed to the public and to the complainer. That new legal test will come into force on 1 February. In the meantime, the existing test is set down by statutory provision in the Criminal Procedure (Scotland) Act 1995 and provides for an accused person to be remanded only when the legal test is met and when it is in the public interest to do so. Prosecutors are entitled to take into account the public interest in maintaining a safe prison estate when determining the Crown’s attitude to bail. It is critically important that it is understood that we are talking today about prisoners who have not been convicted and about pre-trial measures that relate to bail and remand.
I welcome the Lord Advocate’s statement that the prosecution policy on violence against women and girls and on domestic violence will be as robust as it has been until now.
The Lord Advocate spoke about
“those who are held on remand, whose status may change on further review or through resolution”.
Will she elaborate on what that means?
One vital aspect of the criminal justice system is that summary justice is, indeed, summary, so it would be helpful to have some understanding of the success of the pilot. The Lord Advocate has said that the Crown will work proactively with the Scottish Solicitors Bar Association to resolve cases earlier. Will she indicate to Parliament which of the current barriers could be changed to ensure that summary justice is, indeed, summary?
The summary justice pilot is a big issue and involves complex considerations. I would be more than happy to talk to Ms McNeill after today about the success of the summary justice pilot and about what we are doing to progress that across the whole of Scotland, and to share with her the enormous benefits that have come from that pilot, by reason of close judicial management of cases, early engagement between Crown and defence and early provision of evidence in each case, and to share with her the benefits for all involved that came from prosecutors’ early engagement with victims of crime. A combination of those factors has led to the enormous success of the summary justice pilot and I very much hope to see those factors, including the excellent judicial management of cases that we have seen in places such as Dundee, bearing more of the fruit that we have seen. I can talk about that with Ms McNeill and I would be happy to share whatever information she wishes to receive.
Where possible, we work with colleagues in local authority social work teams and from the criminal defence bar to assist with bail reviews. Any review undertaken by the Crown would be to identify those who may be suitable for a review of bail, with conditions, as a short-term measure to assist with the current pressures.
Reviews take place only because of the gravity of current prison conditions. Prosecutors are not responsible for that, but we recognise that the matter is of considerable public interest. Decisions on bail are a matter for the court, but prosecutors will assist the court by providing information to help inform decisions about possible bail conditions, with public safety as the foremost consideration.
This week, the Criminal Justice Committee discussed the temporary extension of time limits for people being held on remand that were put in place during the pandemic. Will continuing the extension increase the pace at which cases progress? Could it therefore help to reduce the number of prisoners who are remanded in custody?
Removal of the time limits would present a serious risk that victims and witnesses may be deprived of their access to justice. If the provisions were not extended, and particularly if no saving provisions were put in place immediately, the Crown would require to make individual applications for extension of time periods for most cases that are currently in the system. That would require significant and critical resource to be diverted from preparing and prosecuting the most serious cases in our criminal courts, and it would involve a significant amount of work by all criminal justice partners. That process would simply compound delays and undo the good work that the criminal justice system has done in progressing cases that have been impacted by the Covid pandemic. It is likely that many of the accused would remain remanded if extensions were granted by the court and, indeed, they may receive a prison sentence, so there would not be a decrease in the prison population.
I am happy to provide the member with further detail if that would be helpful.
I thank the Lord Advocate for her statement, but I am struggling to see how the measures that she has announced will make a difference to the prison population. I believe that her prosecutors are already trying to use diversion from prosecution rather than sending people to jail, but the issue is with prolific crimes where a custodial sentence is the only option. As the Lord Advocate said in her statement, the necessary programmes need to be available. Has she had a conversation with the Cabinet Secretary for Justice and Home Affairs regarding the availability of the programmes and the extra funding that will be required for the criminal justice social work sector, whose workload would increase substantially?
It is right to say that an increased volume of criminal work is coming through the system. That is not solely related to the backlogs that have been created by the Covid pandemic. There is an increase in significant criminal business coming through our system. I have been briefed regularly by both the Scottish Government and the Scottish Prison Service on the pressure on the prison population, including the impact of the Government’s early release scheme, which was approved by Parliament earlier this year.
The Scottish Government has legislated for a new test for bail that focuses primarily on the risk that is posed to the public and the complainer, and that new legal test will come in in February next year. However, it is clear to me that action is required pending that legislation. I can do only so much. As Lord Advocate, I cannot change the law, but I can issue guidance on how prosecutors should apply the public interest in their decisions in relation to the area that I can influence to any degree, which relates to bail and remand. I am responsible for prosecution. Thereafter, conviction and sentence fall to the courts to administer. I can do only what I can as Lord Advocate.
As the Lord Advocate referenced in the statement, one reason why the remand population is very high relates to concerns that people will not turn up at court. Will the Lord Advocate say a bit more about what is being done to help to ensure attendance at court and, potentially, to undertake trials in absence?
The failure of individuals to attend court for their proceedings can be an enormous challenge for the system, particularly at the summary level in the sheriff court. Prosecutors do all that they can to ensure the attendance of the accused through engagement with criminal justice partners and the defence, but there is only so much that they can do to secure the accused’s attendance through seeking warrants from the court and the execution of those warrants by the police.
When it comes to the culture of the prosecution service in Scotland, the approach has never been to proactively look at trial in the absence of the accused. However, we will have to look at that very seriously in the circumstances that we now deal with in our criminal justice system, including the pressures on the system and the pressures on the prison population. Prosecutors are looking at that very seriously. After today, if he so wishes, I can provide more information to the member about what is being done.
On a number of occasions, the Parliament has been persuaded to extend the time limits in criminal cases—which means that many accused spend longer on remand. With regard to the emergency provisions, is the Lord Advocate confident that such longer time limits will be required in all cases? For the longer term, how confident is she that we can reduce the length of time that individuals spend on remand? What can the prosecution services do to support that by speedily preparing cases?
Some of what Katy Clark covered was referred to in my response to Audrey Nicoll’s question. It is important to understand the significant success that the criminal prosecution service in Scotland has had, over the very recent period, in the prosecution of serious sexual crime, domestic violence and serious organised crime. From the statistics that are available, it is clear that the way in which those cases have been prosecuted, and the success of the prosecution of those cases, is one of the drivers of the increase in the prison population. However, we have to work our way through the situation as it is now.
The last thing that we want is for people to be on remand for far too long, or for cases to take longer than is needed, because of the impact on victims and on the accused who await trial. However, we require to work through where we are and to seek the extensions that are being sought through the current legislation. I hope that we will continue to make progress on the challenges that have been faced in the Covid pandemic and in the increased level of business that is coming through the criminal justice system in Scotland.
I asked the Cabinet Secretary for Justice and Home Affairs about the high number of people being held on remand in our prisons, and I will ask the Lord Advocate a similar question: is she content that all 2,000 or so of the people who are currently being held on remand are a risk to society?
I am satisfied that prosecutors approach the issue of whether to oppose bail on a consistent basis, in accordance with the law and in the public interest.
The current bail test does not require individuals to be a risk to society. My instruction to prosecutors is to focus on those who pose a substantial risk of reoffending and causing harm to individuals. Decisions on bail are a matter for the court. However, it is recognised that prosecutors’ attitude to bail, although not determinative, can have a bearing on the court’s decision on whether to detain someone in custody as they await trial.
The prevention of crime produces better outcomes for everyone, and early intervention is a crucial component of that. The Lord Advocate spoke of the use of diversion and the importance of gathering good information from the police about mental health and other issues that might be relevant to an accused’s case. Is the Lord Advocate aware of specific gaps in, or barriers to, access to diversionary programmes? Similarly, are changes required to the information that police officers gather to better support prosecutors to come to an informed view when deciding whether to prosecute and whether to oppose bail?
I am aware that recent statistics show that the number of diversion from prosecution cases that were commenced rose by 28 per cent—from 2,600 to 3,400—between 2022-23 and 2023-24. It is important to note that that is the highest number in the past 10 years. As we know, diversion from prosecution is a process by which prosecutors can refer a case to a local authority or another identified agency as a means of addressing the underlying causes of offending.
We receive information that is relevant to such decisions. Prosecutors take the decisions with care, and they are informed of a particular individual’s vulnerabilities from a variety of sources, including the police. Given the situation that we are in, and the review of diversion that I am undertaking, we are considering whether the quality of the information that we receive from the police and, for example, from mental health services can be improved to inform how we deal with diversion.
I am pleased that the Lord Advocate made it clear that changes to the guidelines will not apply to domestic abuse cases. Can she provide reassurance that that message will be effectively communicated to victims and their support agencies?
On information for victims, we have spoken to a number of victims groups to reassure them that the temporary measures will not change our approach to cases of domestic abuse or to sexual offences. A copy of my statement and a supplementary briefing will be shared with the Parliament and victims groups and will be published on the Crown Office’s external website, so that victims and the wider public can access them. We will listen to any concerns that are raised and provide an update when we review the measures in January.
I appreciate that there will be consequences to the actions that I have set out. Individuals who are not remanded for failing to appear might draw out the length of criminal proceedings in some cases, which can have an impact on witnesses. The decision was not taken lightly, but I consider it necessary and proportionate in the current circumstances.
Justice social workers are essential in making community justice work, given their detailed knowledge of the offender, the circumstances and the range of available custodial and non-custodial options. However, we hear that, in a significant number of cases in which social workers recommend non-custodial alternatives, the courts choose instead to impose prison sentences. Bearing in mind the independence of the judiciary, does the Lord Advocate recognise that situation? What is her response to it?
I do not have any knowledge of the situation that Mr Rennie has raised. If he would like to raise it with me directly after today, I can meet him and talk it through. The point to be made is that decisions on bail, conviction and sentencing are, ultimately, matters for the court. In this country, our judiciary is independent, as is the prosecution service of which I am Lord Advocate. Those are separate roles. Beyond that, perhaps an open discussion with Mr Rennie on those matters would be beneficial.
I will take the final two questions if they, and the responses, are brief.
The Lord Advocate stated that she was asked to take steps to alleviate current prison pressures. When, and by whom?
I have been involved in discussions about the issue with a variety of sources. On the timing of the statement, as I have pointed out, I have been regularly briefed by the Scottish Government and the Scottish Prison Service about pressures relating to the prison population, including the impact of the Government’s early release scheme. The chief executive of the Scottish Prison Service has been in communication with the Crown Agent about those challenges, and there have been regular meetings with relevant policy officials, the Scottish Prison Service, the Scottish Government and senior members of the Scottish prosecution service.
Over and above that, individual prosecutors have visited Barlinnie and seen for themselves, at first hand, the challenges that are faced because of the growing pressure from our prison population. It is in that context that I have been informed of the position by the Government and, separately, by the chief executive of the Scottish Prison Service.
Recently, there has been a 28 per cent rise in the number of diversions offered. How does that contribute to reducing the remand population while ensuring that our communities are kept safe? Are prosecutors sufficiently aware of the options that they have outwith custody?
In order to reduce the volume of cases coming to court and to strengthen the prospects of addressing criminality at an early stage, the Crown has significantly increased its use of diversion, and it has the capacity to widen that if local authorities are able to provide diversion.
There will be no change to existing policy in relation to individuals who present a risk of reoffending and harming an individual or members of the public. However, last year, I instructed a review of how prosecutors deal with diversion from prosecution in cases of serious sexual offences, such as rape. That review, which engaged with victims, is reaching its conclusion.
We continue to monitor the use of diversion for cases involving domestic abuse, rape and attempted rape, and we continue to look at how diversion succeeds in dealing with the underlying needs of an individual who has been brought into the criminal justice system.
It is recognised that, if diversion works, it takes people out of the criminal justice system, which is a system that can make rehabilitation difficult. Diversion is a way in which we can, ultimately, make communities safer and reduce the number of people who progress through the prison estate.
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