Annex A: Criminal Justice - Beyond COVID 19: Recover, Renew and Transform
Paper presented to Stakeholder Roundtable in March 2021
1. Scotland's criminal justice system was already engaged in a programme of modernisation and reform when the COVID 19 pandemic brought much of the system to a sudden halt in March 2020. Guided by the Scottish Government's Justice Vision and Priorities and new legislation, the criminal justice organisations responsible for service delivery were already collaborating on expanding the use of recorded evidence, sharing digital evidence across the whole system, resolving cases at an early stage and enhancing sentencing options which promoted rehabilitation and reduced the risk of re-offending.
2. This work has continued throughout the pandemic and remains essential as we look ahead to a criminal justice system beyond 2021, one in which justice is delivered swiftly and effectively, offending and re-offending are reduced and the needs of all those affected by the criminal justice system are met. The challenge in achieving this level of transformation has, of course, been increased by the impact of the pandemic. There is now a significant backlog of cases before the courts which could not be brought to trial in 2020-21 because of the impact of the public health lockdowns across Scotland and the ongoing restriction of physical distancing. Cases are taking longer to go to trial and the number of individuals held on remand has increased. As the capacity of the courts increases from September 2021 to allow the backlog to clear there will be an immediate impact on custody and community justice services as individuals are sentenced.
3. This document brings together the pandemic recovery work in the criminal justice system, which will take some years, and initiatives to transform the delivery of justice in Scotland. It provides a basis for an ongoing discussion with stakeholders, service users and the public to build consensus about what it will take to achieve recovery, renewal and transformation.
Background and Context
4. "Recover, Renew, Transform" (RRT) is a justice collaboration aimed at co-ordinating and delivering the solutions and resources needed to restore the criminal justice system and ensure that this restoration supports and enhances the wider work to transform the whole system. It recognises the operational independence of each organisation in the system but is an express commitment by each of the service delivery organisations to work together to deliver this transformation.
5. RRT will ensure that future investment contributes towards a shared, system-wide vision of a transformed justice system which is underpinned by fairness, equity and a respect for rights. It will promote, using modern digital technology, a court system which protects the safety and wellbeing of those who work within and rely on the courts during the public health emergency. It will ensure that such innovation is aligned to the wider aim of transformation.
6. The criminal justice system must, now, focus on three things between 2021 and 2025:
- Recover - returning to pre-pandemic capacity and addressing backlogs across the whole system;
- Renew – prioritising the resolution of cases at the earliest opportunity and embedding new ways of working; and
- Transform – changing outcomes for those affected by the criminal justice system.
7. These three things must be progressed at the same time but prioritisation must be flexible to respond to the public health consequences of the pandemic. Each of the three priorities brings its own funding challenges. Each similarly brings its own challenge in terms of building support with stakeholders and the confidence of the public. We must create the links between them to support each one and ensure that as the justice system emerges from the pandemic there is a focus on 'what works' over simply returning to what is familiar. The renewed justice system should resolve cases at the earliest opportunity, be more convenient for those who rely on it and deliver more effective reductions in re-offending.
8. The immediate priority in March 2021 is recovery: the backlog of trials continues to grow and its impact on victims, vulnerable witnesses, accused persons and public confidence is profound. Addressing the backlogs will take time and require concentrated effort, innovation and well-targeted resourcing. It is anticipated that a return to "normal" operating levels will not be possible for some considerable time, and that the number of cases in the system will continue to grow until additional court capacity is introduced, disposals from which will need to be effectively resourced across community and custodial options, and a way is found to reduce the impact of physical distancing in courtrooms.
9. Funding of £50 million has been made available in 2021-22 to begin to address the "Recover" stage and will fund the whole system consequences of establishing additional courts from September 2021. Up to sixteen additional courts will be put in place and will be required for a number of years in order to clear the backlog of trials and more courts could be established if further funding becomes available:
- Four trial courts in the High Court;
- Two solemn trial courts in the Sheriff Court; and
- Up to ten summary trial courts in the Sheriff Court.
10. Wider costs across the justice system, including prisons, community justice and legal aid, have been recognised and allocated funding to ensure a balanced recovery across the whole system.
11. On the assumption that the existing court system has returned to pre-pandemic capacity by September 2021, and subject to the service delivery organisations being able to recruit staff for the additional courts to allow them to start in September, the Criminal Justice Board (CJB) believes that the backlog of High Court trials and Sheriff Court solemn trials will be cleared in court in 2025. The summary trial backlog will be cleared in 2024 and the consequences of this backlog for community services will not begin to reduce until 2027. This will have funding consequences across the whole system throughout that time. If more courts could be established, the backlog would be cleared earlier.
12. Another assumption which has been made in developing the recovery plan is that key elements of the emergency pandemic legislation, as it impacts on the criminal justice system, will continue beyond the current extent of the legislation. Provisions allowing for the use of digital technology to allow procedural steps to be taken electronically and virtual courts to be convened will facilitate and enhance the ability of the courts to deal with the backlog. Continuing the provisions which impact on community sentencing will also be critical in allowing the backlog of community sentences to be progressed quickly and effectively.
Renew and Transform
13. We are clear in our ambition that creating additional trial court and sentencing capacity to reduce the backlog of cases will not be a sufficient response to the pandemic. Public confidence in the criminal justice system, as it recovers from the backlog, will depend on visible changes which demonstrate that the system is reducing offending and further offending through effective community justice disposals, has adapted to take full advantage of modern technology to improve service delivery, and promotes case resolution at the earliest opportunity, bringing sentencing as close as possible to the offending.
14. As the criminal justice system recovers from the pandemic, we aim to build a justice system that is fit for the future:
Effective justice: a system that resolves cases at the earliest opportunity, values and listens to its users and stakeholders and delivers informed outcomes based on evidence.
Open & Transparent: a system that lawfully and safely shares strategic data and personalised information.
Collaborative: a system that makes informed decisions together, working across organisational responsibilities and taking account of the impact of decisions on the system as a whole.
Safe: a system that continues to focus on the safety, protection and health of communities and all those involved in the system, in line with the Scottish Government's updated Strategic Framework to lift public health restrictions.
Resilient & Responsive: a system that continues to adapt, respond and modernise, including through the effective use of technology.
Preventive: a system that continues to prioritise prevention and early intervention, including outcome focussed support and diversion to promote rehabilitation and reduce crime, offending and further offending.
User-focused: a system that takes account of the impact of decisions for individuals, including victims and others, promotes trauma informed practice, equality and respects and protects human rights.
15. Renewal and modernisation will be achieved, with appropriate safeguards to ensure effective representation and communication between lawyers and clients, through the consistent and effective use of technology to allow remote appearance of parties in virtual or traditional courts. The Digital Evidence and Sharing Capability (DESC) project will support modern and flexible case preparation. The Evidence and Procedure Review (EPR) pilot courts will promote early case resolution and robust judicial case management. These projects will deliver a more convenient and flexible justice system in which case resolution is focused on the issues in a case and does not depend on the ability of multiple organisations to bring individuals and evidence to a court room on a particular date.
16. Enhanced community justice and a safe, stable prison population must also be at the heart of a transformed justice system. Such sentencing options must be visible, accountable and provide an equity of service across the country. They will provide enhanced opportunities for prevention, re-integration and rehabilitation. There should be appropriate, accessible diversionary opportunities which address the causes of offending and further offending and provide opportunities for restorative justice without the delay of a court system.
17. In terms of effective community options to reduce the use of remand, the greater use of electronic monitoring of bail and bail supervision will provide courts with enhanced options for sentencing, thereby increasing the likelihood of non-custodial disposals.
18. Activities and outcomes developed by community justice partners fall across three areas:
Prevention – ensuring broader and more consistent access to early and effective intervention options, including diversion and restorative approaches;
Transition – understanding where support is necessary to ensure effective transitions from custody to community and from community sentences to universal, sustained support in communities that promotes citizenship, relationships and family in its broadest sense. These steps support provision into a system of support that helps people move away from cyclical involvement in the system;
Compliance – community justice sentences must support individuals to comply and avoid returning to the courts and the possibility of incarceration. This requires early identification of support needs which avoid the risk of breach and the provision of services which meet those needs.
19. In support of community justice activity across these outcome areas, the following commitment is required to support transformation at a national level:
- A political consensus which accepts that justice should be achieved in local communities and engages the public on the need for fewer victims of crime and how this can be meaningfully achieved;
- National standards of service provision that ensures equity across Scotland;
- Accountability for the performance of community justice; and
- Development in 2021/22 of a costed model of community justice that delivers the outcomes required.
- A focus and funding of prevention
- Effective community options to reduce remand
- A shared understanding of justice 'demand' through integrated assessment of needs and risks, bringing together evidence around shared priorities, including remand, women, young people, sexual offending, violence, SOCG, OLRs and domestic abuse
20. Scotland's prisons should only be used to protect the public and should focus on addressing offending and further offending through relational, restorative, trauma-informed approaches. The prison system requires transformational capacity to enable it to keep pace with the demands of an increasingly complex prison population.
21. A number of work streams have been established to progress specific aspects of this work and involving wider stakeholders, including from local government, the third sector, the legal profession and those with experience of the justice system:
- Additional trial courts for pandemic backlog
- Virtual custody hearings
- Digital Evidence Sharing
- Early recording of evidence
- Early resolution of cases
- Virtual model for summary trials
- Alternatives to remand
- Increase bail support and supervision
- Improved diversion models
- improved compliance across community-based orders
- Sustainable prison population
Oversight and Monitoring Progress
22. The RRT work set out in this document will be overseen on a collaborative basis by the Criminal Justice Board of leaders from key justice agencies.
23. An independent Criminal Justice Advisory Group has been established to comment on and challenge aspects of the work. The Group provides information on and insight into the varied rights and needs of those impacted by the system; where possible, ensures the voices, views and lived experiences of those impacted by the system are heard and recognised, and advise as to how this is best achieved; highlights real and potential consequences of the RRT programme on those impacted by the system, including differential impacts and those specifically related to protected characteristics; comments on evaluation/monitoring requirements; and provides guidance on mitigations required and trauma-informed approaches that should be adopted.
24. The Scottish Government and individual criminal justice organisations will continue to publish regular statistical data and other relevant information to monitor and update on the progress of the recovery, renewal and transformation programme. Statutory inspection bodies will continue to monitor and report on the delivery of key aspects of the criminal justice system.