Emergency criminal justice provisions: joint inspection

Joint inspection by HM Inspectorate of Prosecution in Scotland and HM Inspectorate of Constabulary for Scotland of emergency criminal justice provisions.

National jurisdiction for first appearance from police custody

126. Criminal proceedings before a sheriff court usually take place in a court in the sheriff court district where the offence was committed. The 2020 Act provides that where an accused appears in court for the first time from police custody, that first calling of criminal proceedings can be taken in any sheriff court in Scotland and may be dealt with in that court by a sheriff of any sheriffdom.[33] This effectively created a national jurisdiction for sheriffs dealing with first appearances from custody.

127. The creation of a national jurisdiction offered flexibility in response to the Covid-19 pandemic and was thought necessary for two main reasons, as set out in the Policy Memorandum:

(1) in response to the pandemic, Police Scotland intended to move to a smaller number of centralised custody centres. The first appearance of those held in police custody would therefore likely be at a court local to the custody centre rather than the location of the offence

(2) there was a concern that the availability of sheriffs may reduce as individuals became ill and self-isolated.[34]

128. In March 2020, SCTS consolidated its sheriff court business at 10 hub court locations. These hub courts dealt with all custody business from across Scotland. Because there was at least one hub court operating in each of the six sheriffdoms, it was not thought necessary to make use of the emergency provision creating a national jurisdiction. We were advised by SCTS, however, that had the situation deteriorated and the number of hub courts been reduced, then the emergency provision would have been employed so that custody business could continue to be heard. Instead, as the justice system's response to the pandemic progressed, the number of hub courts increased, reducing the need for emergency provision to be used as intended.

129. No data are available on the number of times the emergency provision regarding national jurisdiction has been used, but during our inspection, we consistently heard that it had been little used. While those appearing from police custody may not have appeared at their nearest sheriff court but instead at a hub court, they generally were not taken outwith the sheriffdom in which the crime was alleged to have been committed.

130. We heard that there may have been missed opportunities to use the provision to a greater extent during the initial response to the pandemic. Accused persons continued to appear in the usual sheriffdom, even when appearance at another sheriff court may have had benefits for them and others, such as their solicitor and GeoAmey. For example, a person from Girvan would have appeared at the sheriffdom's hub court at Hamilton, bypassing Kilmarnock Sheriff Court on the way (Girvan and Hamilton are within the sheriffdom of South Strathclyde, Dumfries and Galloway, while Kilmarnock is in the sheriffdom of North Strathclyde). If the accused was bailed from court, they may have had to make their own way home from Hamilton to Girvan on public transport at a time when the public were required to limit travel and contact with others. Appearing at Kilmarnock instead may not only have been more convenient from the accused person's perspective, but would have shortened the journey to court taken by both GeoAmey and the accused's local solicitor (as well as any additional support that would be required, such as an appropriate adult).

131. When asked why the provision had not been used, interviewees noted IT and practical difficulties in moving papers from one sheriffdom to another as factors. Some speculated that there was resistance to moving court business across sheriffdoms among sheriffs, court staff and defence agents.

132. Many of those we interviewed and who responded to our survey thought the provision would be useful in three main circumstances. The benefits they cited were not particular to an emergency situation such as the pandemic, albeit that the benefits might be more acutely felt during an emergency. The three main circumstances were:

(1) where a person detained in police custody has multiple outstanding warrants from more than one sheriffdom

(2) when local court holidays result in people being held in police custody for longer

(3) in the event of weekend custody courts.

133. Currently, where a detainee has multiple warrants from more than one sheriffdom, they generally appear in each sheriffdom on consecutive days, thereby extending their stay in police custody. Where a person has several warrants, they can spend several nights in custody. Remote appearance at a virtual custody court in each sheriffdom would offer the opportunity for the person to appear from one custody centre in all sheriffdoms in one day. This is an improvement on the current situation but would require effective scheduling and coordination across all courts. The national jurisdiction provision would allow one court to deal with all of the warrants at the same time. We welcome efforts by COPFS to establish a process for dealing with multiple warrants more effectively using the emergency provision, but note these stalled due to difficulties with transmitting papers electronically within the court service. However, it is intended that the Glasgow virtual custody court pilot will deal with multiple warrants at once, regardless of the sheriffdom which issued the warrant. We welcome this approach.

134. Dealing with multiple warrants at once offers various advantages. The time the accused spends in police custody will be shorter, which benefits the accused as well as reducing the demands on police resources. It was also suggested that where an individual is aware they have multiple outstanding warrants, they may be more likely to hand themselves in knowing they will be dealt with efficiently and will not have a prolonged stay in police custody. Even where our survey respondents were not supportive of a national jurisdiction, some did note that it would be useful in this limited circumstance. If the provision was going to be used in this way, defence agents were keen that consideration should be given to ensuring it is the accused person's 'home' court which is the one dealing with the multiple warrants.

135. During our inspection, we heard that the national jurisdiction provision could supplement existing efforts to minimise the impact of local court holidays on custody courts. It was suggested that the provision be used to ensure the custody cases of one area could be heard in the court of another sheriffdom, where that court was closest to the police custody centre at which the accused was being held. Again, this was with a view to minimising the time accused persons spend in custody.

136. The routine use of weekend custody courts has been suggested as a means of minimising the time accused persons spend in police custody and addressing to some extent the significant demands placed on COPFS and the courts on Mondays. While weekend custody courts are outwith the scope of our inspection, we note that a national jurisdiction for first appearances from custody could facilitate them. An analysis of the demand for a Saturday custody court could help identify how many are needed across Scotland, enabling only a small number of custody courts to run to deal with all cases. This may work best in combination with the use of virtual custody courts. While such a proposal has some advantages, further detailed consideration would need to be given to the justice system's capacity to sustain weekend custody courts, not only in terms of the police, prosecution and courts service, but also defence, social work, prisons and health care. Engagement with stakeholders would be critical and a full assessment of the costs and benefits needed.

137. One of the key benefits in each of the three circumstances outlined above in which a national jurisdiction may prove useful relates to reducing the length of time people spend in custody. This has long been the subject of concern, particularly for those detained over weekends and public holidays. Lord Carloway noted his concern about the duration of detention in his review of criminal law and practice[35] and one of the policy objectives of the Criminal Justice (Scotland) Act 2016 was to ensure that a person is not unnecessarily or disproportionately held in police custody. More recently, following a visit to Scotland in 2018, the European Committee for the Prevention of Torture noted that the police custody centres they saw were unsuitable for detention for longer than 24 hours given the limited facilities. It recommended that, 'the Scottish authorities take steps to decrease the high number of persons held in police custody facilities for longer than 24 hours (i.e. between Friday and Monday mornings)'.[36] Article 5 of the European Convention on Human Rights requires suspects to appear in court 'promptly'.

138. A concern that was highlighted by some was the potential loss of local justice should the use of a national jurisdiction be extended. They felt that justice should be seen to be administered locally. There were also some concerns about the broader implications for access to justice, with a fear that it might result in a concentration of defence agents in a smaller number of areas leaving some communities without local representation. Others were less concerned about local justice in the context of appearances from police custody, and felt it was more relevant to trial diets.

'Maintain, as far as possible, the link between crime and local court.' (Sheriff)

'Locality is key, it is important that local courts deal with local offenders as they understand the broader issues not just crime but the impact criminals have on communities.' (Police officer/staff)

Potential for retention

139. The emergency provision in the 2020 Act which created a national jurisdiction for first appearances from police custody has generally not been used and, in practice, other approaches have been taken to manage custody cases during the pandemic. However, the provision may be of use in some limited circumstances as set out above.

140. While there is some support for retention post-pandemic, it is not unanimous and some issues require to be resolved including logistical difficulties at court; resistance to moving business between sheriffdoms; addressing any concerns about local justice; and fuller assessment of costs and benefits of weekend custody courts. Further consultation with stakeholders should be carried out to assess the extent to which it might prove useful in future.


Email: carolyn.sharp@gov.scot

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