By Bill Heaney
Where stands Scotland’s justice system now that the Lord Advocate and Solicitor General are on their way out the door following the debacle surrounding the failed prosecution of Alex Salmond in the last parliament?
The Cabinet Secretary for Justice, Keith Brown, is more of a soldier than a solicitor and his stamina showed through as he yomped his way through a debate consisting of almost 26,000 words on “some of the most important challenges that our justice system faces.
“I want to use the time to build on my recent productive discussions with other parties’ justice spokespeople on how we can deliver on the Government’s ambition to achieve a faster, fairer and more effective justice system for the people of Scotland.”
He added that remote jury centres are an example of measures put in place during the pandemic.
“The use of cinema complexes as a base for jury centres has enabled the jury trials that deal with the most serious cases to continue after they first restarted in July last year,” he told MSPs.
The Scottish Courts and Tribunal Service’s quarterly statistical bulletin, which was published last week, showed that, despite the challenges at the High Court in recent months, evidence-led trials had been running at an even higher level than was the case pre-Covid, which the Ministerclaimed was “a huge achievement”.
Mr Brown said: “The resumption of court business was possible only because of the collaborative efforts of our justice partners, third sector organisations and the judiciary and defence community to innovate and embrace new ideas. We should praise all those who were involved in ensuring the continuation of justice during this most challenging period.
“There are sgnificant backlogs of cases that existing capacity or resources cannot address. We have therefore committed an additional £50 million in this year’s budget to further support recovery across the justice system. That includes a capacity increase in both the High Court and the sheriff court.
“In our civil justice system, in which backlogs remain, great progress has been made to manage recovery through the use of virtual proceedings, the electronic transfer of documents and innovative digital solutions.
“Although restrictions greatly hampered their delivery of face-to-face services, our community justice delivery partners have continued to support a wide range of community justice services throughout the pandemic, with a focus on prioritising vulnerable people and those who present an imminent and serious risk of harm.
“One of our key priorities throughout the pandemic was to ensure that victims continued to be supported, to feel reassured and to have confidence in the justice system.
“We were particularly aware of the risks for women and children who were experiencing gender-based violence, so we provided an additional £5.75 million to front-line services so that they could respond to an increase in demand from victims of abuse.
“We also increased Victim Support Scotland’s victims fund to help meet the immediate financial needs of the most vulnerable victims during the pandemic.
“Our prisons are a unique setting, and additional measures have been required to keep those who live and work in prison safe.
“We took important action to ensure that those in prison could maintain family contact through virtual visits and the use of mobile phones or in-cell phones across the estate. To the credit of prison and national health service staff, the virus has been well controlled in our prisons, although of course we must remain vigilant.”
Mr Brown said: “A challenge remains in relation to remand cases—the people who are in prison but who have yet to have their trial or who are awaiting their sentence. The number of people on remand has gone up during the pandemic at a time when overall prisoner numbers have reduced.
“Although decisions on bail and remand are a matter for the independent judiciary, the Scottish Government has taken steps to ensure that community-based alternatives to remand are available.
“At the end of last year, the Scottish Government introduced regulations to allow the electronic monitoring of people on bail.
“A number of justice partners have been working to prepare for that change and, subject to all partners completing that work successfully, the process can be fully commenced after the summer.”
The Justice Secretary was asked by Tory Jamie Greene: “Could the proposed new coronavirus legislation that the Government wants to introduce, and the powers that would then exist, lead to people on remand staying on remand for up to a year?”
Mr Brown said that the backlog had been contained and the government had allocated £20 million for that purpose – “The changes that happened during the pandemic led to an increased number of prisoners on remand—that is self-evident from the backlog in the courts.
“Through some of the measures that have been introduced, the new powers and the coronavirus restrictions have helped to reduce that backlog.
“I appreciate and value the legal profession and the role that it has played during the pandemic. That is why we committed to bringing forward a package of measures, worth up to £20 million, to help support the legal aid sector, as well as delivering the first stage of a 10 per cent increase in [legal aid] fees in March.”
Labour’s Pauline McNeill, right, said: “When we carried out the reform that extended sheriff court sentencing powers to five years, it was always intended that, in complex cases, people would get legal aid for counsel. Does the cabinet secretary think that it is time to look at that issue [again]? It seems to be virtually impossible to get such legal aid now.”
Mr Brown replied: “We have established a resilience fund worth up to £9 million, and have recently provided another £1 million to support legal traineeships. I acknowledge the concerns that some in the legal profession have raised with regard to the resilience fund.
“We remain absolutely committed to engaging with the profession and are exploring, as a matter of urgency, options for the effective distribution of unallocated funds. Part of the issue was about having the facts and the data to support a more rapid disbursement of those funds, and we are trying to work through that with partners.
“We are clear that our ambition to recover the operation of the justice system also presents an opportunity to reinvigorate system-level improvements and take forward our manifesto commitments to deliver a faster, fairer and more effective justice system for Scotland.”
So, what’s going to happen during the new parliament?
Mr Brown said: “Our manifesto commitments aim to ensure that victims’ rights are at the heart of Scotland’s criminal justice system; to secure provision of support for children and young people; and to develop restorative justice services, key to which will be the appointment of a victims commissioner to provide an independent voice for victims.
“The investment of £250,000 over three years to fund a trauma specialist at NHS Education for Scotland will help to drive forward development of a trauma-informed and trauma-responsive workforce in justice services.
“We will also introduce changes to ensure lifelong anonymity for complainers in sexual crimes, thereby further increasing the confidence of victims to report crimes of such a serious nature. We will engage with key stakeholders, including victims organisations, to give serious consideration to the full set of recommendations from Lady Dorrian’s review to deliver a justice system in which survivors of sexual crimes can have confidence. It is worth pointing out that many of those provisions and recommendations interlock with one another, so it is best if they are considered at the same time.
“We have an unashamedly bold aspiration to create our own bairn’s hoose in Scotland. We believe that every child victim or witness has the right to consistent and holistic support that enables them to tell their stories, access specialist services and recover from their experiences.
“We have committed to consult on the removal of the not proven verdict. It is plain to me that there are differing views among the parties in the chamber, and it is right that we have a proper consultation and discussion. In common with my previous comments, the not proven verdict and what we eventually do with it will be dependent on, and have implications for, other parts of the justice system. For that reason, consideration of the matter is best taken forward in the same way.
“We recognise that a strong case has been made for the abolition of the verdict, but there are complex issues. Although many in the chamber today support the move, it is right that we consider those issues carefully.
Mr Brown said: “At the direction of the outgoing Lord Advocate, the Crown Office has significantly reformed the arrangements for the investigation of deaths, and it has applied significant additional resources to that work.
“Those reforms have resulted in reductions in the duration of death investigations, and it is expected that they will continue to do so. In my view, their full benefit needs to be allowed to work its way through the system.
“The current Lord Advocate [James Wolffe], left, has welcomed engagement with justice spokespeople on the issue, and I look forward to future engagement with his successor. I am sure that whoever is appointed will engage with members across the chamber.
“Ensuring that people and communities across Scotland are safe and resilient is vital and will play a key role in supporting our recovery and renewal from the pandemic. Throughout the pandemic, we have continued to invest money recovered from convicted individuals to support people, families and communities.”
Meanwhile, on Wednesday this week, Liberal Democrat leader Willie Rennie called for the nominees for Lord Advocate and Solicitor General to face confirmation hearings before being appointed to the roles.
Mr Rennie said: “The nominees put forward have impressive CVs but there is more to these important roles than legal expertise.
“The new Lord Advocate will face an overflowing in-tray of issues requiring attention, from the failure of the Crown Office to get a grip on fatal accident inquiries to the malicious prosecution of figures connected to the Rangers takeover.
“A confirmation hearing would offer parliament an opportunity to grill the nominees over their approach to these pressing issues as well as key constitutional questions such as the creation of an independent director of public prosecutions and their approach to legislation proposing an unsanctioned independence referendum.
“All of these issues deserve to be aired in public. That’s why I am asking for confirmation hearings to be introduced for top Scottish Government appointees. These roles must command the confidence of the public and our parliament, not simply the government of the day.”