Rebalancing the scales: Policing under pressure while criminal justice changes considered

The last year has been a tough one for policing after a series of controversies rocked London’s Metropolitan Police, leading to it being put on special measures last month. And despite policing being a devolved matter, Police Scotland has not had its own troubles to seek.

Public trust, according to Police Scotland’s performance report, is hovering around the low-40s – down from the pandemic high of 57 per cent and from the pre-pandemic 48 per cent. “Police Scotland is aware that confidence in policing is affected by events and media reports. This is likely to have had a particular impact in recent months due to a range of reported issues related to policing,” the report acknowledges.

That report goes on to say anti-social behaviour and drug-related crime are the public’s biggest concerns. It also highlights the importance of police having a presence in communities; “physical presence including more foot patrols in local areas” would provide reassurance and make more people feel safer. That, however, is easier said than done.

Officer numbers in Scotland fell to their lowest level in 14 years at the start of 2022. At the end of March, there were 16,805 full-time equivalent police officers – a drop of 312 from the previous quarter. While a Scottish Government spokesperson said it was “normal” for numbers to fluctuate, Police Scotland said retirement rates, pressures caused by the pandemic and longer periods between recruitment rounds had created a “significant challenge”.

And while recorded crime in Scotland did drop by five per cent in the year to June 2022 compared to the previous 12 months, that was largely driven by a reduction in coronavirus-related crimes. All other crimes collectively increased by two per cent.

The pressures on the frontline, combined with a dispute over pay, led to the police taking industrial action for the first time. The Scottish Police Federation (SPF) agreed the “withdrawal of goodwill” on behalf of officers across the country. That means refusing to start shifts early, concluding shifts on time, and not taking equipment like radios home for charging.

Such is the concern over the state of the police force, the issue made it to the floor of Holyrood in the last FMQs session of the parliamentary year. Scottish Conservative leader Douglas Ross told the First Minister that officers felt “overworked and undervalued”, and he quoted Chief Constable Iain Livingstone when he said policing was not one of the government’s “stated priorities”.

Nicola Sturgeon vociferously denied that was the case, insisting it was “clearly a priority”. Regarding the pay dispute, she insisted her justice secretary, Keith Brown, had had a “constructive discussion” with the SPF. Nonetheless, the industrial action started a few days later.

Six weeks on a pay deal was struck, with the SPF accepting a much-increased offer of a five per cent rise. “Whilst we genuinely believe police officers deserve even more, we believe this agreement is the best that could have been reached in all the prevailing circumstances,” the body said in a statement.

Criminal defence lawyers are also threatening a strike. That’s to do with a long-running dispute over legal aid fees, which the Scottish Solicitors Bar Association says have barely risen in decades. Several regional bar associations have already started to boycott holiday custody courts.

Community Safety Minister Ash Regan said the government had made a “substantial and credible offer” at the start of July which includes a 10.3 per cent increase in solicitors’ fees. Law Society president Murray Etherington said that while movement from the government was welcome, it “falls far short of the investment we have argued for and which we believe is necessary to retain solicitors in the legal aid system to ensure access to justice for all.”

Court backlogs continue to be a huge problem too. MSPs sought to deal with the issue through the Coronavirus Recovery and Reform Bill, passed just before summer recess, which included provisions to extend temporary Covid measures like allowing hearings over video and audio link.

While Covid exacerbated some issues, others are much longer running. Holyrood’s Criminal Justice Committee published a wide-ranging report in January in which members set out recommendations on several areas, including prisons, drugs, violence against women and victims’ rights.

Elsewhere, the Scottish Government published two overarching strategies setting out where it plans to go next: its Vision for Justice document and its updated National Strategy for Community Justice. Both point to a move towards more restorative justice, with a new Victims’ Commissioner to be appointed shortly and two new national restorative justice hubs opened. Brown said: “Providing a national restorative justice service is consistent with our clear commitment to putting victims at the heart of the justice system.”

There are also changes coming to the way imprisonment is used, with the lodging of the Bail and Release from Custody Bill in June. Broadly speaking, it aims to reduce the number of people in prisons by moving away from the use of remand unless there is a specific safety risk. The bill also promotes rehabilitation and reintegration through better pre-release planning, an end to Friday release and a new approach to risk assessment and monitoring.

MSPs will begin scrutinising the bill in the new term, but already it has been dubbed “reckless” by the Scottish Conservatives. The party’s justice spokesman Jamie Greene warned it would “empty Scotland’s prisons at a time when violent and serious crime is rising”.

Outside of parliament, Baroness Helena Kennedy published her report into misogyny in March. She recommended the government introduce a Misogyny and Criminal Justice Act that creates three new criminal offences and makes misogyny an aggravating factor in other crimes so women and girls are explicitly protected by hate crime legislation. Ministers are now developing a draft bill.

Meanwhile new proposals on tackling prostitution – which is defined as violence against women within the government’s Equally Safe strategy – are in the works. A short life working group was set up last November to consider how to take forward its preferred model of criminalising the purchase of sex.

The case for abolishing the not proven verdict – a campaign backed by Rape Crisis Scotland because the verdict is used disproportionately in sexual violence cases – is growing. The government recently published consolidated consultation responses, with a clear majority for switching to a two-verdict system. It will now consider what recommendations for reform it will bring to parliament.

Other changes planned following independent reviews are the handling of deaths in custody and police complaint processes.

On the former, the government has accepted in principle recommendations made by the now former prisons inspector Wendy Sinclair-Gieben, which included requiring a Fatal Accident Inquiry into every prison death and involving families in the process.

On the latter, the government has just wrapped up a consultation on a proposed Police Complaints, Investigations and Misconduct Bill. That legislation could require gross misconduct hearing for police officers to be held in public, accelerate the process for such hearings and create new powers for the police investigations commissioner to recommend officer suspension.

While the portfolio has undergone a lot of planning and strategy-forming in the last 12 months, Scotland also became the first nation in the UK to pardon former miners convicted of certain offences related to strike action in the 1980s. Although the passage of the Miners’ Strike Bill was broadly welcomed, for some it didn’t go far enough as it did not create a compensation scheme – something the Scottish Government is now urging the UK Government to do.

Lastly, a word on the other part of Brown’s portfolio: veterans. Susanna Hamilton is the first female Scottish Veterans Commissioner to be appointed and she brings with her 17 years of RAF experience. But the appointment of a new commissioner was delayed slightly, with a three-month gap between the end of former commissioner Charlie Wallace’s time in post. Wallace recently told Holyrood he was concerned about what message the gap sent to the veteran community.

Q&A with Cabinet Secretary for Justice & Veterans, Keith Brown

Holyrood: How did the pandemic affect the prison population?

Keith Brown: During the pandemic, public health advice led to restrictions to the prison regime, and the suspension of in-person visits, in particular, affected both individuals in custody and their loved ones. The Scottish Prison Service took forward a number of initiatives to enable families to maintain contact, including providing all prisoners with a mobile phone that also enabled access to support from organisations like the Samaritans and Breathing Space. Virtual visiting arrangements were introduced with over 46,000 of these taking place last year. TV rental fees were suspended and in-cell entertainment options were expanded allowing the purchase of additional subscription services and electronic gaming solutions. In-cell exercise routines were developed by physical education instructors and in-cell support material was developed to assist with issues around isolation, mental health and general health and wellbeing.

Scotland’s prison population remains one of the highest in Europe, but there are also concerns about the Bail and Release from Custody Bill. How do you balance the two?

KB: Investment is a key part of this, and that is why the Scottish Government is making a total investment of over £3.1bn in 2022-23 to strengthen and reform vital services across the justice sector, including investing over £500m in the prison estate over this parliamentary term. But how custody is used is just as important. During the consultation process, we received good support for the proposed direction of travel for bail and release policy, and as a result we now have the Bail and Release from Custody Bill lodged in parliament. The bill puts protection of victims very clearly at the centre of the proposals with, for example, public safety at the forefront of the new proposed bail test. This is all within the context of clear evidence that short periods of custody can lead to more re-offending, compared to keeping people within communities. It’s right we seek to refocus how custody is used but it must always help protect the public. The bill will help ensure greater support for those leaving custody which is another key aspect of delivering for victims.

Baroness Kennedy recommended creating three new offences relating to misogynistic hate crime. Will the government bring forward legislation on this and how is it tackling misogyny now?

KB: We are absolutely clear that women and girls should not feel unsafe or experience harassment, abuse or violence. It is unacceptable that misogyny and sexism continues to take place within our society.

In April this year we announced that a full consultation on the working group’s legislative proposals would be held. The timing of any future legislation will be considered in due course, informed by the consultation process.

 As I’ve stated previously, it is only through men changing their behaviour that misogyny can be dealt with, and developing effective legislation can help address and respond to misogynistic behaviours by men.

The pandemic has created huge backlogs in the courts. How will you ensure Scots have access to justice in a timely manner?

KB: We continue to support justice agencies to take action to address the backlog caused by the pandemic. We have established a justice recovery fund of £53.2m to be allocated to recovery, renewal and transformation activity across the justice system in 2022-23, and we have extended funding for remote jury centres for a further three months to ensure court capacity is maintained as SCTS transitions back to juries in court.

This builds on our £50m programme in 2021-22 which funded 16 additional solemn and summary courts, increased capacity through the recruitment of additional staff, and enabled greater use of digital tools and improved support for victims and witnesses. These measures are having a positive impact on the backlog, with figures published by SCTS in July showing that the number of outstanding scheduled cases has been reducing throughout 2022.

The war in Ukraine is a salutary reminder for many of Scotland’s veterans that peace is fragile. Have you felt an added responsibility for our veterans during what must be a time of great emotion for them?

KB: There is no doubt that the events of the appalling attack on Ukraine by Russian forces, and the inevitable coverage of its consequences, can be traumatising and triggering for many of those who have served in the armed forces. We have already provided nearly £1m in support through the Armed Forces Third Sector Resilience Fund to those organisations that play a vital role in supporting our armed forces community in Scotland, who have gone above and beyond to provide crucial support for veterans and their families despite the impact of the pandemic. In addition, the Scottish Veterans Fund provides £500,000 of funding annually to projects which support veterans and their families.

It is difficult to see any silver linings from the pandemic but has there been anything that has come from it that has given you reason to be optimistic about the future?

KB: During the midst of the unprecedented pandemic, we have seen some fantastically innovative, urgent and extremely effective responses from many in the public service.  Within our justice system we saw the rapid transition to remote jury centres and the move to online functioning of court processes and procedures. The outstanding joint working of the prison service and health service teams in supporting and caring for individuals in custody, and the superb efforts of police officers across Scotland to humanely manage the pressures within concerned communities who faced an extraordinary health and wellbeing threat, and a complex and changing regulatory and legal environment.  We have seen tremendous adaptability and public commitment from our justice services.

This article appears in Holyrood’s Annual Review 2021/22.