Access to justice
“ Giving individuals substantive legal rights is of little value if they lack the capacity and the means to enforce them or to participate effectively in the justice system. Assisting citizens to realise their legal rights contributes to a just and fair society.”
Martyn Evans, Rethinking legal Aid, 2018
5. Please outline the recent legal aid reforms and their impact on access to justice and effective remedies.
The eligibility criteria for those accessing legal aid in Scotland are consistent and transparent. There is no requirement to be resident in Scotland when applying for legal assistance under the Legal Aid (Scotland) Act 1986. Advice and Assistance is available for matters of Scots law. Legal Aid is available for proceedings in the Scottish courts. Both Advice and Assistance and Legal Aid are subject to eligibility criteria.
Children can access legal advice and representation on the same broad range of issues that adults can so long as they have the capacity to instruct a solicitor.
The Criminal Justice (Scotland) Act 2016 ensures that every person detained at a police station has the right to a private consultation, at any time, with a lawyer and to have a lawyer present during interview, and this applies also to those attending voluntarily for interview, where they are suspected of committing an offence. The requirement for legal aid contributions for advice and assistance given in a police station was removed on 1 April 2016 and it is now free for every person detained at a police station to have access to a lawyer.
On 1 February 2017, the Scottish Government announced a comprehensive, independent review of legal aid. Rethinking Legal Aid, An Independent Strategic Review, published in February 2018, recognises that the current system compares very well internationally and sets out a 10-year vision for legal aid in Scotland. It makes 67 recommendations on how this vision can be delivered. Following discussions with stakeholders – such as the Law Society of Scotland, the Faculty of Advocates, the Scottish Legal Aid Board and others in the third sector – the Scottish Government published its response on 29 November 2018. The response signals the Scottish Government’s willingness to take forward supported recommendations that will deliver an enhanced system of legal aid across Scotland and the ambition that publicly funded legal assistance continues to be recognised as an invaluable public service. During 2019 a public consultation will be conducted on future reforms that will deliver an improved, user-focused legal aid service for Scotland.
Closed material procedures
6. With regard to the Committee’s previous concluding observations (para. 12), please provide information on the steps taken to ensure that all measures used to restrict or limit fair trial guarantees on national security grounds, including the use of closed material procedures, are fully compliant with the provisions of the Convention.
Concerning the use of closed material procedures, consideration of “secret evidence” must be dealt with by a judicially managed process involving special counsel. This is set out in the disclosure regime established by the Criminal Justice and Licensing (Scotland) Act 2010. However, there is little, if any, actual experience with special counsel in Scotland.
Monitoring and oversight
National Preventive Mechanism
7. Further to the Committee’s previous concluding observations (para. 14), please indicate whether the State party has ended the practice of seconding individuals working in places of deprivation of liberty to the national preventive mechanism bodies. Please provide information on the material, human and budgetary resources allocated for the effective functioning of those bodies.
The UK NPM was set up in 2009 to ensure regular visits to places of detention in order to prevent torture and other ill-treatment, as required by OPCAT. The NPM is made up of 21 statutory bodies, including six based in Scotland, that independently monitor places of detention. Information on the material, human and budgetary resources of these bodies can be found in their respective annual reports (see footnote references).
- Her Majesty’s Inspectorate of Prisons for Scotland (HMIPS)
- Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS)
- Scottish Human Rights Commission (SHRC)
- Mental Welfare Commission for Scotland (MWCS)
- Care Inspectorate (CI)
- Independent Custody Visitors Scotland (ICVS)
Her Majesty’s Chief Inspector of Prisons (HMCIP) is working to reduce reliance on secondees from the Scottish Prison Service (SPS), but also notes that there are some benefits from this practice, including accessing current, up to date, professional expertise and technical advice, and also the transfer of skills and expertise back to the inspected body at the end of periods of secondment, which may increase understanding and impact.
Complaints of acts of torture and ill-treatment
8. As requested in the Committee’s previous concluding observations (para. 35), please provide updated statistical data, disaggregated by sex, age, ethnic origin or nationality, and place of detention, on complaints of acts of torture and ill-treatment recorded during the reporting period (since May 2013). Please include information on investigations, disciplinary and criminal proceedings, convictions and the criminal or disciplinary sanctions applied. Please provide examples of relevant cases and/or judicial decisions.
No specific record is kept of allegations of torture, however such allegations may form part of the conduct which constitutes another offence (for example assault, murder etc.). See paragraph 10 below for references to a range of statistical data collated by the Scottish Government concerning convictions and victims of crime.
Complaints about Police Scotland can be made in a number of ways:
- write, phone or email the police service concerned
- give the details at any police station (or to any police officer)
- ask a solicitor, MSP or local councillor to take the matter up with the Chief Constable
Full details of police complaints procedures in Scotland can be found on Police Scotland’s website.
Independently of the SPS, the Procurator Fiscal investigates allegations that a prison officer has committed a crime. Additionally, all allegations of staff-on-prisoner assault within an establishment are reported to the police and investigated in the same way as allegations against police officers.
The Scottish Public Services Ombudsman (SPSO) is the final stage for complaints about prisons (and other public services) in Scotland. The SPSO normally investigates complaints afterindividuals have gone through the standard prison complaint procedure.
Redress and compensation
9. With reference to the previous concluding observations (para. 35), please provide information on redress and compensation measures, including the means of rehabilitation ordered by the courts and actually provided to the victims of torture or their families since the consideration of the previous periodic report (May 2013). That should include the number of requests for compensation that have been made, the number granted and the amounts ordered and actually provided in each case. Please also provide information on any ongoing reparation programmes, including treatment of trauma and other forms of rehabilitation provided to victims of torture and ill-treatment, and on the material, human and budgetary resources allocated for their effective functioning.
The Criminal Injuries Compensation Scheme (CICS) provides compensation payments to blameless victims of violent crime (subject to certain criteria) in Scotland, England and Wales. While this is a devolved area, the Scottish Government has chosen to participate in the UK Government scheme rather than establish a separate scheme.
The CICS is administered by the Criminal Injuries Compensation Authority (CICA), a cross-border public body. The Scottish Government provides around £17 million per annum to the CICA to administer and deliver compensation to victims of crime in Scotland. While it is not possible to identify individual figures in relation to compensation for victims of torture, in 2017-18 the CICA awarded over £12 million to victims of criminal injuries sustained in Scotland.
In 2018-19, the Scottish Government is providing £17.9 million in funding to victims’ organisations, such as Victim Support Scotland, to enable them to provide free practical and emotional support to victims of crime.
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