I am grateful for the opportunity to address the chamber.
Members have heard from the Cabinet Secretary that the prison estate in Scotland may imminently be beyond capacity.
I understand that this is causing extraordinary pressure on staff as prisoner occupancy exceeds capacity in cells, undermining attempts to rehabilitate and reduce the danger posed by individuals, and presenting the risk that the prisons cannot take individuals into their custody.
It is not for prosecutors to resolve the pressure on the prison estate and prosecutors are ordinarily entitled to assume that there is sufficient safe capacity within the prison estate.
But I have been asked what steps prosecutors, acting on my behalf, could take to alleviate some of the current pressures. I have concluded that it is possible and appropriate for me, acting independently and in the public interest, to provide further guidance to prosecutors, while others implement longer-term steps to address the situation.
These are temporary measures and will be kept under review. Before setting out those measures, there are some matters that I must make clear.
Firstly, there will be no change to the current vigorous approach to the prosecution of domestic abuse and serious sexual offending. In order to address the societal problem of Violence Against Women and Girls (VAWG), it is essential that victims and the wider public understand that their allegations will be taken seriously.
Secondly, I cannot say what the effect of the measures that I will outline may be in terms of additional prison spaces that may be created. That would be entirely speculative. Nor can I say whether any persons who are granted liberty as a result may reoffend, as that is similarly unpredictable.
Thirdly, I am satisfied that prosecutors have been approaching the issue of whether to oppose bail on a consistent basis, in accordance with the law, and in the public interest.
The measures I have introduced are intended to impact in three situations:
- Those held on remand, whose status may change on further review or through resolution
- Those who may be liable to be remanded due to repeat offending, or failing to appear, but who do not appear to represent an immediate risk to the public;
- Preventing some offenders reaching the stage at which remand becomes necessary at all.
Those already on remand
Initial decisions on bail are frequently made in short timescales based on relatively limited information and without the immediate option of special conditions such as electronic monitoring or bail supervision. Bail reviews, based on slower-time social work assessments of the suitability of an individual for such conditions, may provide a means to reduce the remand population.
Such reviews cannot be initiated by prosecutors. They must be initiated on behalf of the accused, but prosecutors will endeavour to facilitate this process if approached and may also highlight potentially relevant cases for review to defence solicitors and local authorities. The grant of bail will remain a matter for the court.
Resolution
Prosecutors must take steps to progress and resolve cases efficiently and swiftly. The requirement for, and value of, early and firm decision making cannot be overstated.
I have made it clear to prosecutors at all levels that effective early engagement with the defence is expected in all remand cases. We will build on the success of the summary case management pilot which has shown a significant increase in early disposals.
We will work with our colleagues in the Criminal Defence Bar to proactively resolve cases earlier and reduce the time that accused persons may spend on remand.
Those who may be liable to be remanded
Judges make decisions about whether bail is granted. The prosecutor’s role is to assist their decisions by highlighting risks based on information about the accused and the offence.
Prosecutors start from a position that a person accused of a crime should not be remanded in custody pending trial unless there are good reasons in law and the public interest to deprive them of their liberty.
Bail will continue to be opposed where there is evidence to suggest the accused represents a substantial risk of causing harm to the public, or victims and witnesses, and this risk cannot be mitigated by the imposition of bail conditions.
When the issue of bail is first considered, prosecutors will highlight cases where they consider that, the options of electronic monitoring, or other means of monitoring special conditions of bail, may manage the risk to public safety and prevent reoffending.
Where individuals who do not represent a risk to members of the public or to specific individuals, my instruction to prosecutors is that bail should not normally be opposed.
Where such offenders are not remanded in custody, there may be concerns about reoffending. But:
- Bail conditions will still be considered where they are likely to reduce the risk of re-offending.
- And where such individuals offend whilst on bail, or breach special conditions of bail, these offences will be prosecuted.
In addition, as a short-term measure, pre-conviction warrants should not normally be obtained and executed by the police unless there is no immediate alternative to securing the accused’s attendance, or where the accused represents an immediate risk to others.
Where attempts to secure the accused’s attendance other than through the immediate execution of a warrant are unsuccessful, prosecutors may require the warrant to be executed.
People accused of crime must know they cannot evade justice simply by not turning up at court without good reason and without consequence. In addition to prosecuting individuals for any offence of failing to attend, officials are currently considering how we can more readily proceed with trials in absence.
I repeat, the existing approach to the initial grant of bail or after failure to appear will not change in relation to allegations of domestic abuse or sexual offences.
Thirdly, early intervention
Lower-level offending can quickly escalate to repeat offending, successive prosecutions, and often remand and imprisonment. There are three ways this is being addressed.
Firstly, the consistent use of prosecutorial direct measures, along with my new guidance to the police on direct measures, may help to slow down this escalation.
Secondly, escalated offending is a particular risk where the offender has an identifiable need, and that remains unaddressed. Prosecutors already making extensive use of diversion where there is an identifiable need that can be addressed through an available programme. I have reiterated my support for that approach, but it is, of course, dependent on the necessary programmes being available to address such needs.
Thirdly, we continue to improve the information received from police to ensure that we secure the right outcomes for the right people. As an example, we now receive additional information from the police regarding mental health issues that may be relevant to the accused’s offending and personal well-being so that we can take informed views on decisions whether to prosecute or oppose bail.
To conclude
As Lord Advocate, my duty is to uphold the rule of law and to see that those who commit crimes are held accountable. No one is more determined than I am to see that people who need to be in prison are kept there.
However, I recognise that prisons are full beyond their capacity will not deliver justice or public safety. The steps I have set out today, taken independently and in the public interest, will continue to serve to keep people safe.
They will not change our robust approach to domestic abuse to protect women and children from the damage of domestic abuse, nor will there be any diminution in our approach to rape and serious sexual offences.
They will serve to deliver a thoughtful and proportionate response in relation to the current pressures.