Coronavirus (Recovery and Reform) (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament at on 12 May 2022.

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Photo of Baroness Katy Clark Baroness Katy Clark Labour

I am a member of the Criminal Justice Committee, so I will focus on that aspect of the legislation. Audrey Nicoll, the convener of the committee, has already spoken to our report. The issues that I will raise relate largely to process rather than fundamental principle—other than in relation to the extension of time limits, which I will deal with later.

A number of the provisions in the bill will result in significant changes to the criminal justice system, some of which are complex. However, the committee was unable to scrutinise many of those measures in detail, due to the time constraints resulting from the truncated nature of the process. It would have been more appropriate for some of those provisions to be brought forward in standalone legislation, with a timetable to enable the full scrutiny process, particularly given that even some of the temporary measures could be in place until 2025.

I will focus on specific aspects of the bill. The first relates to remote custody appearances, which the Scottish Government has indicated it wishes to become a normal part of the justice system. Our understanding is that there is considerable concern in the legal profession and the wider justice system about remote custody appearances, which were enabled by the emergency Covid legislation and are therefore operating currently.

For example, in the Glasgow custody court last Monday, the court ran until half past 9 at night due to a range of technical problems. I know that because my colleague Pauline McNeill attended the court and witnessed what happened. We understand that that is far from being an unusual occurrence: in their evidence to the committee, both the Scottish Solicitors Bar Association and the Law Society of Scotland said that those appearances are often subject to technical problems.

Concerns have also been raised about the greater difficulty that lawyers have in obtaining instructions from an accused person, and the Scottish Association of Social Work expressed its concern about access arrangements. These are significant changes to how the legal system operates in Scotland, and I believe that they are matters that the Criminal Justice Committee and the wider Parliament should have had the opportunity to find out a great deal more about.

Another aspect that I will focus on is virtual trials. As the committee’s report states, there is very little evidence that full virtual trials have taken place. Therefore, there is very little evidence on how they are working. What is clear is that aspects of trials have been virtual, such as people giving evidence virtually via a link, or remote jury trials taking place in cinemas. I am concerned about some of the undertakings from ministers, and I ask that an attempt be made to ensure that those trials go ahead only when everyone agrees, and that there is proper scrutiny of how they operate.

The provisions of the bill that give me greatest concern in relation to justice and human rights are those relating to the extension of time limits, which is already in place as a result of the emergency Covid legislation. The bill proposes that, on a temporary basis—which could mean until 2025—the extended statutory time limits are continued. There are some minor changes to the provisions, but, in general, they are very similar to the provisions under the emergency Covid legislation. That means that it could take far longer for a case to come to court.

Perhaps of even more concern is that the length of time for which a person can be held on remand is also being extended. For example, a person could be held on remand for nine months before they are served with the indictment, which contains the full charges that they face. Scotland has the largest remand and prison populations in western Europe, along with poor conditions and overcrowding in many parts of the prison estate. Between 2014 and 2017, 57.18 per cent of prisoners who were later convicted in summary cases, and 28.9 per cent of prisoners who were later convicted in solemn cases, did not receive a custodial sentence at the end of the proceedings. There are considerable human rights concerns about that aspect of the process. There would never be a situation in which a person who should be in prison was not, because there has always been provision in Scots law to have time limits extended on cause shown.