Coronavirus (COVID-19) recovery - public health, public services and justice system reforms: consultation analysis

Independent analysis of the responses to the consultation on supporting Scotland's recovery from coronavirus. This relates to the Coronavirus (Recovery and Reform) (Scotland) Bill.

The impact of Covid in the justice system

J1 – Courts and tribunals: conduct of business by electronic means (Extension)

These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 7.1% 5.7% 12.8% 65.2% 1.5% 20.4% 205
All giving a view (2312) 8.9% 7.2% 16.1% 81.9% 1.9% - 198
All org responses (130) 29.2% 3.8% 33.1% 7.7% 0.0% 59.2% 39
All orgs giving a view (53) 71.7% 9.4% 81.1% 18.9% 0.0% - 35

The most common reason for support among those in favour of continuing business by electronic means was increased efficiency and reduced delays in the court system. This reason was cited by those supporting permanence (e.g. Scottish Courts and Tribunals Service, The Senators of the College of Justice, Sheriffs Principal of Scotland, Police Scotland, Her Majesty's Inspectorate of Prisons for Scotland (HMIPS), Faculty of Advocates, Care Inspectorate, Victim Support Scotland, law practices, local authorities) and the small number supporting an extension (inc. Law Society of Scotland and Citizens Advice Scotland). Sheriffs Principal of Scotland and SCTS supported permanence and agreed the power of the Lord President/Lord Justice General to grant exemptions be retained. Scottish Social Services Council also supported permanence.

A few supporters cited other benefits which included reduced delays due to documents being sent to solicitors, and cost and environmental savings from reduced printing, postage and travel. Police Scotland noted the ability to be granted a search warrant without travel reduces travel time for officers and frees them for other duties.

“The facility to lodge court documents by electronic means and without the requirement for a wet signature is long overdue, and we strongly support this proposal – especially as a national body which may be required from time to time, to raise and conduct urgent legal proceedings in jurisdictions where it has no physical presence.” (Care Inspectorate)

“The provisions allowing electronic signature and transmission of court documents has been a welcome modernisation of court practice.” (Shoosmiths LLP)

“From our perspective as civil court practitioners, we support this approach… It has had the effect of streamlining court procedures, has assisted in reducing unnecessary delays and inefficiencies, and has, overall, improved communication between the courts and court users.” (extract from CMS Cameron McKenna Nabarro Olswang LLP)

Procedural concerns around electronic business were raised by some supporters. A few, including SCTS, a legal organisation and HM Revenue & Customs (HMRC) described inconsistency in how Sheriffs have interpreted electronic signatures and submissions and called for these to be clearly set out to ensure uniformity. That the additional work required to produce written submissions is not yet reflected in fees for solicitors’ work or in the legal aid system was noted by a few respondents, including Law Society of Scotland. City of Edinburgh Advice Shop noted that not all individuals are represented by a solicitor who can receive their communications, and Faculty of Advocates noted that solicitors need to keep all parties advised of any change of agency. One organisation noted that clarity is needed over whether the proposal relates only to service of documents in, and not outside, Scotland.

Other less common perspectives were identified in responses from those supporting and opposing the provisions. Some, mostly individuals, expressed concerns over security - that the processes for electronic signature may be open to fraud and that incorrect email addresses may lead to documents being sent to the wrong place. There were also concerns over digital exclusion. Respondents including Law Society of Scotland and Citizens Advice Scotland noted that some demographic groups or geographic areas will not have access to the necessary technology; others may have conditions or disabilities which prevent them doing business digitally.

Given the above, some respondents called for a hybrid model where the option for physical lodging of documents remains alongside electronic business. Some individuals opposed any extension and called for all processes to take place face-to-face. However, the majority of comments in both these cases suggest individuals were referring to virtual attendance rather than electronic submission of documents.

J2 – Courts and tribunals: virtual attendance (Extension)

These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 7.0% 5.7% 12.7% 65.9% 1.5% 19.8% 184
All giving a view (2329) 8.7% 7.2% 15.9% 82.2% 1.9% - 175
All org responses (130) 25.4% 6.2% 31.5% 13.8% 1.5% 53.1% 44
All orgs giving a view (61) 54.1% 13.1% 67.2% 29.5% 3.3% - 40

In the closed question responses to J2, permanence was supported by SCTS, The Senators of the College of Justice, Society of Messengers-at-Arms and Sheriff Officers, Police Scotland, HMIPS, nine local authorities, Care Inspectorate, The Scottish Social Services Council, ICAS, Scottish Independent Advocacy Alliance, Scottish Women’s Aid, Victim Support Scotland, Scottish Association of Landlords. An extension was supported by Law Society of Scotland, The Sheriffs Principal of Scotland, The Scottish Law Agents Society, COSLA, HMRC and Citizens Advice Scotland, among others. The Forum of Insurance Lawyers (FOIL) and a few other legal organisations opposed an extension.

“These provisions have been essential in enabling court business to continue whilst minimising the number of people required to attend our buildings. For as long as public health measures restrict the number of people we can safely have within our buildings remain in place, these provisions are crucial to ensuring court and tribunal business can continue.” (Extract from SCTS)

“The senators support the extension of these provisions. They also support the proposal that the facility enabled by the provisions should be made permanent, but consider that the process is currently cumbersome and that a more agile solution is required.” (Extract from the Senators of the College of Justice)

“For as long as Covid-19 is considered a threat to public health and necessitates physical distancing in court buildings after March 2022, the Sheriffs Principal would broadly support the retention of the provisions for Topic J2.” (Extract from Sheriffs Principal of Scotland)

“We do not think that the provisions for virtual attendance should be made permanent nor do we consider that should be the default position. There are potential hearings which are truly procedural which will not impact upon the accused’s position. In such circumstances there can be virtual (or indeed no) attendance. However any hearing which has a bearing upon the accused’s trial ought to be conducted in circumstances where he/she has a right to attend in person.” (Extract from Faculty of Advocates)

However, this question received more open comments from organisations than any other in the consultation (44); they highlight that this is a complex issue. Many responses were detailed and considered the benefits and disadvantages of virtual attendance. The analysis below summarises these views, but we would encourage Scottish Government and the reader to review these detailed responses where permission to publish has been granted.

The most common theme in support of continuing the provisions linked to perceived benefits. Some felt greater use of technology would modernise and improve court processes and help reduce the Covid backlog. Other benefits were mentioned by small numbers including the time and costs savings for participants who do not need to travel; a few specifically noted positive impacts of reduced travel for police and expert witnesses e.g. doctors attending virtually. Other advantages included: creating a less stressful or intimidating experience for some witnesses, victims of crime, vulnerable individuals or people with disabilities; less movement of individuals from police custody and prisons to courts which reduces overcrowding in court custody units; and increasing the resilience of the court system e.g. allowing it to operate in severe weather or travel disruption.

While recognising these benefits, several respondents raised issues around virtual attendance. Concern over the effectiveness of virtual attendance was common. Respondents often noted the challenge of assessing the demeanour of an individual remotely; they felt the lack of ability to interpret non-verbal communication i.e. body language was detrimental to assessing the credibility of witnesses and decision-making. A few also commented on the negative impact to all parties of not being able to see each other, and the overall poorer quality of remote hearings and advocacy processes compared to in-person. A very small number noted security challenges around confirming the identities of attendees and verifying witnesses are alone when giving evidence.

Another common concern was that virtual attendance could create discrimination. This took two forms. Firstly, disadvantages for those without access to, or the skills to use, the necessary technology. Secondly, a few organisations noted that it is harder for parties to consult their representatives or get legal advice in a virtual setting than when physically in court. This was particularly true of unrepresented individuals (party litigants). In both cases, there were questions around whether this limited access to justice. Related to this, a small number noted concerns around the technology itself, and the resources required to ensure it is fit for purpose.

Some respondents expressed fears that virtual attendance could diminish the justice system. They felt that dialling in to a hearing did not convey the same gravitas or seriousness of proceedings as attending in-person and that this was sometimes evident in the poorer behaviour of some attendees. A small number were concerned about the lack of public access afforded by a virtual hearing and the threat this poses to open justice. A few simply stated that physical attendance was central to the system or that hearings should be in-person and in public so justice could be seen to be done. A less common concern, mentioned by a few organisations, was how the lack of physical access to court could be detrimental when training new lawyers, who need to observe proceedings.

A variety of views were evident on whether attendance should be face-to-face or virtual. Most desired a hybrid system with a range of options to create the flexibility to adapt to different circumstances and the seriousness of each case. Most in the legal and justice sector called for default in-person attendance, particularly for civil proofs and jury trials, given the importance placed on these by all parties and the concerns noted above.

However, it was acknowledged that there should be an option for some elements to take place virtually. Specifically, The Senators of the College of Justice called for a more agile process, suggesting in-person attendance should be the default in criminal cases except for some categories of professional witnesses, with it also being permitted to apply to the court for virtual attendance. Others echoed this stance, noting that the form of attendance should be at the court’s discretion. A few – including Scottish Civil Justice Council, Sheriffs Principal of Scotland, and SCTS - called for future provisions to be enabling. Some noted the Scottish Civil Justice Council's separate consultation on the Mode of Attendance at Court Hearings to develop rules that propose default positions for different types of hearing, exceptions to these, and when the default can be over-ridden by the court.

There was generally less opposition to remote procedural hearings; Law Society of Scotland and the Senators of the College of Justice noted that virtual should remain the default for these. A few felt that minor civil or criminal cases could be heard virtually. Others were more open to virtual attendance, but often noted that it should be agreed by all parties, or with an option to request in-person attendance. A few noted that parties should also be represented if appearing virtually, and called for specialist support requirements to be considered.

J3 – Criminal justice: early release of prisoners (Extension)

These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 2.2% 2.5% 4.7% 73.0% 1.8% 20.5% 241
All giving a view (2310) 2.8% 3.2% 5.9% 91.8% 2.3% - 236
All org responses (130) 8.5% 8.5% 16.9% 9.2% 1.5% 72.3% 26
All orgs giving a view (36) 30.6% 30.6% 61.1% 33.3% 5.6% - 22

Those who supported permanence or extension commonly explained this was due to the practical value of the early release provision. Its role in managing the pandemic in prisons was mentioned by Law Society of Scotland and NHS Lothian Directorate of Public Health among others. HMIPS also supported permanence for this reason, but argued those under the age of 18 should be included in the eligibility criteria. Similarly, South Lanarkshire Council called for young people aged under 21 to be added to the eligible categories.

Others, including Police Scotland and ARC Scotland, valued the provision in managing the size of Scotland’s prison population. Howard League Scotland supported the extension but argued against permanence until the provisions are amended to a human rights, vulnerability-based model. A few organisations noted the importance of communicating the provision to the public to avoid undermining the justice and sentencing system.

A need to ensure that sufficient assistance is in place for prisoners released early was the second most common theme in discussions of support for the provision. Given the impact this has on community services and housing provision, for example, there were calls from local authorities for greater planning and a multi-agency response to ensure support is in place if the provision is used again. The challenges around this were cited as the reasons for Justice Services, South Ayrshire Council HSCP’s opposition to the provision.

Resistance to early release of prisoners was the most common theme among those who opposed an extension of the provision. Many respondents felt prisoners should serve their full sentence regardless of circumstances. Several other less common views were shared by small numbers of respondents. The wider impact of early release and the dangers this posed to the public was cited by Victim Support Scotland as a reason for their opposition. Others felt that the Government should not be in charge of early release, that there needs to be wider reform, and that other steps should be considered to control the prison population e.g. building more prisons. A few described specific circumstances where early release might be acceptable.

“We believe that these provisions should be extended but not made permanent. Early release has been used on a limited basis through the pandemic period, and remains an important option for as long as a risk to public health is presented." (Extract from Law Society of Scotland)

J4 – Criminal justice: expiry of undertaking (Extension)

These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 2.4% 3.5% 5.9% 66.1% 3.8% 24.2% 119
All giving a view (2201) 3.1% 4.7% 7.8% 87.2% 5.0% - 116
All org responses (130) 7.7% 7.7% 15.4% 8.5% 3.1% 73.1% 20
All orgs giving a view (35) 28.6% 28.6% 57.1% 31.4% 11.4% - 18

Only a limited number of open comments directly addressed the expiry of undertaking provisions. The most common theme, mentioned by a few of those in support, was agreement that the provision should be extended due to the ongoing pandemic and the need for individuals to self-isolate. This was cited by Sheriffs Principal of Scotland, Scottish Courts and Tribunals Service, Law Society of Scotland, The Faculty of Advocates, West Lothian Council and Angus Council, all of whom supported an extension.

Other organisations gave supportive comments. For example: Police Scotland supported permanence as a proportionate response when someone cannot attend court due to Covid; Aberdeen Council supported the extension with clarity on when the power could be used in the future; and Scottish Women’s Aid supported permanence noting that there should be a check that the accused has Covid. While not providing a response to the closed question, The Sheriff’s Association also expressed support in their comments.

Beyond the consistent themes of opposition covered later in this report, a less common theme was a call for further review or more information, raised by a few respondents who opposed the measure. A few also questioned whether it would undermine the justice system. Two individuals felt that the provisions would put extra pressure on the police.

Additional singular comments made by organisations included questions around how the risk posed by an individual would be assessed, and the challenges facing those with learning disabilities or Autism Spectrum Disorder who are on bail. The Law Society requested that any further extension should take into account how the provisions are explained to accused who are unrepresented.

“While coronavirus remains a threat to public health, the Sheriffs Principal would support the extension of these provisions beyond March 2022." (Sheriffs Principal of Scotland)

“Retaining this meantime seems reasonable, but only for the purpose for which it was introduced, namely as statutory reasonable excuse and based on Covid reasons. For that reason we consider that it could be extended but for a fixed period, and, in the absence of further significant Covid outbreaks, no longer than autumn 2022.” (The Sheriff’s Association)

J5 – Criminal justice: fiscal fines (Extension)

These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 2.9% 3.7% 6.5% 66.6% 3.3% 23.5% 125
All giving a view (2221) 3.7% 4.8% 8.6% 87.1% 4.4% - 121
All org responses (130) 7.7% 7.7% 15.4% 9.2% 2.3% 73.1% 23
All orgs giving a view (35) 28.6% 28.6% 57.1% 34.3% 8.6% - 20

Support for extending the provision for fiscal fines was primarily based on its value in helping to clear the court backlog created by Covid. A small number cited this benefit, including Angus Council and Dundee Council (who supported permanence) and Scottish Women’s Aid (who supported an extension). Others expressed their general agreement, for example Police Scotland, Stirling Council, and Faculty of Advocates. The Sheriffs Principal of Scotland expressed support for the measures to assist clear the backlog, but expressed no view on the maximum level of fiscal fines. While supportive of the proposals, three organisations commented on the need to consider an accused’s ability to pay fiscal fines. Howard League Scotland provided a detailed response which notes that fines are less meaningful to those in Court and that increasing the fine to £500 may worsen inequalities due to an accused being even less able to pay.

The ability to pay was highlighted by a small number of respondents who opposed or were unsure about an extension. For example, Law Society of Scotland (unsure) commented on fiscal fines not taking account of ability to pay and noted their used in deprived areas. Other individuals and organisations considered the potential for increased poverty and re-offending among those issued with fiscal fines. Another less common theme was overall disagreement with the use of fiscal fines. The Scottish Social Services Council argued against an extension on the basis that it undermines public protection. They explained that alternatives to prosecution have been used during the pandemic in relation to serious behaviour which would otherwise have been investigated. The Scottish Law Agents’ Society disagreed with the increase, feeling it diminishes the seriousness of an offence.

Some respondents shared general comments on the effectiveness of fiscal fines. A small number of individuals and organisations supported an extension, describing fiscal fines as useful tools to avoid unnecessary prosecutions and custodial sentences. Scottish Women’s Aid, while supportive, requested the provision should not apply to domestic abuse cases. ARC Scotland noted that fiscal fines could lead to an accused missing out on opportunities to address their offending behaviour. The Faculty of Advocates posited that the provision could result in people accepting fines without taking legal advice.

“Police Scotland consider the extension of fiscal fines as a non-court disposal as an effective means of reducing police witness commitments. Reducing this demand releases officers to perform other duties and keep the public safe. It also provides broader efficiencies to the criminal justice system and provides additional capacity within the physical court estate for evidence-led trials and other urgent procedural matters.” (Extract from Police Scotland)

J6 – Criminal justice: national court for cases beginning with an appearance from custody (Extension)

These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 4.1% 3.5% 7.6% 64.9% 3.6% 23.9% 120
All giving a view (2211) 5.3% 4.7% 10.0% 85.3% 4.7% - 116
All org responses (130) 11.5% 6.2% 17.7% 6.2% 2.3% 73.8% 23
All orgs giving a view (34) 44.1% 23.5% 67.6% 23.5% 8.8% - 20

Flexibility and efficiency, allowing cases to be heard promptly and help clear any backlogs were the most common reasons for supporting the continuation of this measure. Organisations supporting permanence elaborated on this theme. HMIPS, Howard League Scotland and Police Scotland noted efficiency savings from minimising unnecessary travel and reducing time in custody. Scottish Courts and Tribunals Service and the Senators of the College of Justice felt this would add flexibility in times of severe weather, transport disruption or public health emergencies.

A few of those supporting an extension, including Victim Support Scotland, also mentioned flexibility and efficiency. While supporting permanence, Howard League Scotland felt the measure should not apply to under 18s and that individuals should be given sufficient time to instruct their representatives. Scottish Women’s Aid also supported permanence.

Sheriffs Principal of Scotland did not support permanence of the provisions in their current form, but noted they would support their use to process individuals arrested on warrants issued by different courts; processing them in one court would avoid moving them to different courts or remanded for further appearances. Similarly, Law Society of Scotland and The Sheriff’s Association felt extending the national court was appropriate while Covid is still a public health risk, but did not support permanence. Law Society of Scotland expressed concerns about associated virtual custody appearances, calling for further work to ensure barriers to access and understanding of proceedings for people in custody are addressed. Other organisations called for consideration of an accused’s support needs if they appear in a court in a different jurisdiction, as their ‘home’ area may struggle to support them from afar.

A small numbers of respondents shared their reasons for opposing the provision. Most common was that justice should remain local; a few elaborated that Sheriffs were best placed to understand their areas. A few highlighted the potential travel costs for both the accused and solicitors who appear in a court outside their area. Other opposing comments made by very small numbers of respondents included that: appearances should always be in-person; it is purely a cost-saving exercise; and that courts should return to normal. ARC Scotland highlighted a recent report by the Scottish Sentencing Council on the need for Justice Social Work, which they felt would be especially relevant to a national jurisdiction.

J7 – Criminal justice: time limits (Extension)

J7(i) - Time limit on summary-only cases at section 136 of the 1995 Act
These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 2.3% 4.3% 6.6% 64.6% 4.2% 24.6% 125
All giving a view (2189) 3.1% 5.7% 8.7% 85.7% 5.6% - 120
All org responses (130) 2.3% 13.1% 15.4% 10.0% 3.1% 71.5% 26
All orgs giving a view (37) 8.1% 45.9% 54.1% 35.1% 10.8% - 23
J7(ii) - Remand time limits at section 65(4) and section 147(1)
These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 2.2% 3.7% 6.0% 65.6% 3.5% 25.0% 118
All giving a view (2180) 3.0% 5.0% 7.9% 87.4% 4.7% - 112
All org responses (130) 2.3% 11.5% 13.8% 11.5% 1.5% 73.1% 27
All orgs giving a view (35) 8.6% 42.9% 51.4% 42.9% 5.7% - 22
J7(iii) - Extending time limits relating to the maximum time between first appearance on petition and the first diet/preliminary hearing and commencement of the trial at section 65(1)
These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 2.5% 4.1% 6.6% 66.2% 3.1% 24.1% 116
All giving a view (2204) 3.3% 5.4% 8.7% 87.2% 4.1% - 112
All org responses (130) 0.8% 12.3% 13.1% 11.5% 1.5% 73.8% 21
All orgs giving a view (34) 2.9% 47.1% 50.0% 44.1% 5.9% - 19
J7(iv) - Removing time limits on the length of individual adjournments for inquiries
These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 2.1% 3.4% 5.5% 66.8% 3.5% 24.1% 112
All giving a view (2204) 2.8% 4.5% 7.3% 88.1% 4.6% - 109
All org responses (130) 0.8% 11.5% 12.3% 10.8% 2.3% 74.6% 20
All orgs giving a view (33) 3.0% 45.5% 48.5% 42.4% 9.1% - 18

Organisational support and opposition (based on closed question responses)

Mixed support was evident among key organisations in the legal and justice sector. No organisations supported making the provisions permanent. Extending all four of the time limits was supported by The Senators of the College of Justice, Police Scotland and Victim Support Scotland. All four proposals were opposed by HIMPS.

Other organisations expressed a mix of opposition or support for extensions. For example, Sheriffs Principal of Scotland supported extending all time limits with the exception of the time limit on summary-only cases at section 136 of the 1995 Act (J7(i)); Scottish Courts and Tribunals Service supported extensions apart from removing time limits on the length of individual adjournments for inquiries (J7(iv)); Howard League Scotland supported extensions, with caveats, for all except remand time limits at section 65(4) and section 147(1) (J7(ii)). Law Society of Scotland was opposed to any extensions with the exception of remand time limits at section 65(4) and section 147(1) (J7(ii)). The Sheriffs’ Association did not provide a response to closed questions but expressed a mix of opposition and support for extensions in their open comments (see below).

Participating local authorities were more likely to express views on these provisions; around half did so. COSLA and three local authorities supported extending all measures; three other local authorities opposed extending all; except the time limit on summary-only cases (J7(i)), where views were mixed. Other local authorities indicated a mix of support for extension, opposition to any extension or did not give a view. The sole support for permanency was Dundee City Council’s support for extending summary-only cases.

Improved efficiency and clearing the backlog

Across all four proposals for time limits, some respondents expressed support for extension - but not permanence - to improve flexibility and efficiency in the court system and to clear Covid related backlogs. Within this, a small number felt that an extension was only appropriate as long as Covid remains a public health risk; a few argued the extension should be as short as possible or time limited.

“We recognise the constraints on the system and the backlog caused by Covid-19, as well as the undesirability of cases simply falling because time limits have not been met. However, we believe that any extension should be for the absolute minimum time possible.” (Citizens Advice Scotland – J7(i))

“Given the backlog of cases within the Criminal justice system, Policing believes this provision is currently necessary. Given the length of time the backlog may take to resolve, this provision may be necessary for some time.” (Police Scotland – J7(ii, iii, iv))

A need for prompt justice

The most common rationale for opposition was that any extension to time limits could cause delays to the judicial process. Most of these comments came from individuals, who felt that justice should be served promptly. A small number also felt this would undermine the public’s belief in the justice system. Some opposed extending each of the time limits because they felt a further delay in cases would have a negative impact on victims.

Sheriffs Principal of Scotland did not support extensions in summary only cases, stating they “require to be progressed expeditiously”. Howard League Scotland, while supporting extensions, also felt Covid should not threaten speed and fairness in the system.

Law Society of Scotland cited recent court data showing court business is approaching pre-pandemic levels; on this basis, they felt current provisions should end. Similarly, the Sheriffs’ Association asserted that as Scotland moves out of the pandemic and normal business resumes, “there is less justification for retaining extended time limits”. Both organisations noted the importance of the existence of time limits to all parties.

HMIPS provided a detailed response outlining potential negative consequences of increased time limits. These included: courts not returning to normal business as quickly as possible, a further increase in remand numbers and pressure on the prison system; limited ability to engage remand prisoners in rehabilitation; and the potential for false guilty pleas to be submitted to facilitate release. For these reasons they did not support an extension but recognised that one may be needed and should be time limited.

Negative impact of time spent on remand

Another theme was the impact of the increased time limits on those on remand. This was more commonly mentioned at J7(i) and J7(ii). The potential for an accused to be on remand for long periods raised some general and specific concerns.

Some, including The Sheriffs’ Association, Families Outside, and responses from a few local authorities and individuals, described the negative impact on families and communities of those on remand. They felt these impacts - including on finances and mental wellbeing - could be exacerbated with an extension of the time limits.

Howard League Scotland gave a detailed response and at J7(ii) referenced figures stating 57% of people in remand in Scotland do not go on to be given a prison sentence. They argue that many could have awaited trial in non-custodial settings such as community-based bail accommodation. As such, they opposed the further extension of the time an accused could potentially spend on remand. At J7(i) Citizens Advice Scotland also noted that significant numbers of pre-trial remand prisoners are subsequently found not guilty or given a community sentence. They felt an extension on summary-only time limits should be for the minimum time possible, because of this and the negative impact on families.

Specific points of opposition on extending limits for time on remand included:

  • A few, including Law Society of Scotland, cited breach of human rights. At J7(iv), a small number of individuals felt an accused might stay on remand indefinitely.
  • An organisation opposed extending time limits for children under the age of 18. Police Scotland and Angus Council noted the impact of delays on young people on remand in relation to summary-only cases at J7(i).
  • Sheriffs Principal of Scotland noted at J7(ii) that while they supported an extension, “the length of time that an accused person might remain on a remand is a factor to which greater weight in now given when deciding whether to grant bail”.
  • The Sheriffs’ Association in response to J7(ii) noted some on remand may have served the equivalent of their likely sentence by the time they come to trial. They felt this was unavoidable in the pandemic, but unacceptable in the medium term. Angus Council made this same point in relation to summary-only cases at J7(i).
  • ARC Scotland highlighted at J7(i) the negative impact of increased time on remand for the accused and families of the accused with learning disabilities or autism.

“We do not support the proposals to extend or remove time limits for cases and extend the time a person can be subject to remand. There should be clear targets for the finalisation of all cases from arrest to sentence and people on remand should be amongst key priorities” (Dundee City Council – J7(ii, iii, iv))

J8 – Proceeds of crime (Extension)

These figures are a non-representative sample Permanent Extend Total Support Oppose Unsure No view / answer No. of comments
All respondents (2905) 4.2% 4.3% 8.6% 63.0% 3.9% 24.6% 112
All giving a view (2190) 5.6% 5.8% 11.4% 83.5% 5.1% - 105
All org responses (130) 3.8% 10.8% 14.6% 5.4% 0.8% 79.2% 17
All orgs giving a view (27) 18.5% 51.9% 70.4% 25.9% 3.7% - 12

Most comments on proceeds of crime linked to the wider themes in consultation responses, explained in Chapter 6. Only a small number directly addressed the proposals.

Support for an extension to the legislation, rather than permanence, was the preference for most organisations. Rationales for an extension included: that it is an appropriate step to take while Covid remains an issue (The Senators of the College of Justice, Law Society of Scotland, Sheriffs Principal of Scotland[7], West Lothian Council, Dundee City Council); that it allows individuals more time to pay (Police Scotland, ARC Scotland and a local authority); and a few individuals felt it would help reduce court backlog. COSLA and Faculty of Advocates indicated support for an extension in their closed question response.

A working group of the Centre for Scots Law at the University of Aberdeen supported an extension. Their responses noted doubts about the appropriateness of the second point in the consultation document (paras 207-208) but did not elaborate.

Less common themes included a small number who felt Covid was not a valid reason to extend payment timescales; a few felt this sent the wrong message. A few called for and wider reform of the justice system and an end to the proceeds of crime. Singular comments from individuals included one who supported an extension but questioned whether interest would accrue during the delay, and another who was unsure and proposed making case by case decisions. One who opposed the proposal felt a delay was illogical if it allowed the convicted party to use or remove assets.

“It seems reasonable that individuals subject to confiscation orders have more time to pay but this should be limited to a time where Covid-19 is impacting.” (West Lothian Council)

“Police Scotland considers that the provisions to allow the Covid pandemic to be included as “exceptional circumstances” when considering a postponement or extension to be a reasonable and proportionate response to the pandemic.” (Extract from Police Scotland)



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