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Updated 3rd June 2020 (12pm)

This page provides updates on the legislation relating to COVID-19 and justice in Scotland.

Coronavirus Act 2020

The Coronavirus Act 2020 enables action in 5 key areas:

  1. increasing the available health and social care workforce – for example, by removing barriers to allow recently retired NHS staff and social workers to return to work (and in Scotland, in addition to retired people, allowing those who are on a career break or are social worker students to become temporary social workers)
  2. easing the burden on frontline staff – by reducing the number of administrative tasks they have to perform, enabling local authorities to prioritise care for people with the most pressing needs, allowing key workers to perform more tasks remotely and with less paperwork, and taking the power to suspend individual port operations
  3. containing and slowing the virus – by reducing unnecessary social contacts, for example through powers over events and gatherings, and strengthening the quarantine powers of police and immigration officers
  4. managing the deceased with respect and dignity – by enabling the death management system to deal with increased demand for its services
  5. supporting people – by allowing them to claim Statutory Sick Pay from day one, and by supporting the food industry to maintain supplies.

It received Royal Assent on 25th March 2020.  Further details are available here.

Coronavirus (Scotland) Act

The Coronavirus (Scotland) Act received royal assent on 6th April 2020.

The Act introduces considerable changes to a range of policy areas for a time limited period (initially 6 months with the potential for extension, to a maximum of 18 months total). Key aspects of the Act, from a justice perspective, are provisions that empower the Scottish Government to:

  • Release people from prison
  • Extend the length for completion of all current community payback orders that include an unpaid work or other activity element by 12 months
  • Further vary or postpone community orders en masse as required
  • Allow trials to take place remotely and for evidence and documents to be submitted and served electronically
  • Increase the maximum amount that can be imposed by a fiscal fine to £500
  • Change how the Parole Board operates to allow it to sit remotely
  • Make changes in the law to prevent eviction of people from their homes
  • Makes changes to the children’s hearing process

During the Stage 1 Bill Debate, the Scottish Government announced it would not be including proposals to suspend jury trials as part of the emergency legislation (initially included in Schedule 4, Part 5) but that these would be the subject of further consultation and would be brought as separate legislation at the next available opportunity on the 21st April. The Scottish Government later announced on 14th April that it would now no longer be pursuing the introduction of judge only trials as its preferred option and would be consulting stakeholders on alternative proposals.

The Scottish Parliament’s Information Centre (SPICe) has produced a briefing on the Bill, which is available to read here.

Various bodies provided responses/briefings to the Bill as it was passing through Parliament:

Coronavirus (Scotland) (No.2) Bill

The Coronavirus (Scotland) (No.2) Bill was introduced in the Scottish Parliament on 11th May 2020 and passed Stage 3 on 20th May.  The Bill introduces further measures to respond to the emergency situation caused by the coronavirus (Covid-19) pandemic.  It makes:

  • changes to laws which protect individuals to ensure
    their effective operation during the coronavirus outbreak;
  • changes to criminal procedure, and to other aspects
    of the justice system, to enable essential justice business to
    continue throughout the coronavirus outbreak;
  • a range of provisions designed to ensure that business
    and public services can continue to operate effectively during the pandemic.

The operation of the Justice System is one of the main provisions of the Bill. In particular, the Bill covers:

  • criminal justice (Schedule 2, part 1). This part allows for:
    • an extension of time limits to criminal proceedings
    • changes to the custody arrangements for people detained at police stations. This will allow Prisoner Custody Officers (PCOs) to facilitate court appearances by electronic means for people in custody, rather than being required to escort people in custody to the court.
    • changes to the timing (and any associated conditions) of an undertaking to appear in court where an accused person fails to appear for a reason relating to coronavirus
  • proceeds of crime (Schedule 2, part 2). This part allows for:
    • an extension of the permitted period for the purpose of a confiscation order
    • extensions to the time limits allowed for payment of confiscation orders
  • intimation etc. of documents (Schedule 2, part 3). This part allows for:
    • documents that usually need to be put on walls etc of a court building to instead be made publicly available through the Scottish Courts and Tribunals Service website.

A briefing on the Bill can be found on the Scottish Parliament’s website.

Guidance relating to the Coronavirus (Scotland) Act

The Scottish Government has published guidance on the Act for central and local government and public bodies, which you can find here. (Updated 7th April 2020)

Regulations relating to the Coronavirus legislation

The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020

Following Royal Assent of the UK Coronavirus Bill, the Scottish regulations [The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020] came into force on 26 March and were laid in the Scottish Parliament on 27 March 2020.

Prisons and Young Offenders Institutions (Scotland) Amendment Regulations 2020

These regulations amend the Prison Rules to support the Scottish Prison Service’s response to the current Coronavirus outbreak. The amendments generally provide prison Governors with flexibility in relation to compliance with timescales and the provision of those services, which although important, are not critical to the security and health of staff and prisoners.

Release of Prisoners (Coronavirus) (Scotland) Regulations 2020

The Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 were laid in Parliament on 4th May 2020 to enable the early release of some short sentence prisoners.   The Regulations were laid in the Parliament under an expedited procedure that permitted the early release of appropriate prisoners beginning on 4th May and that took place over 28 days.

Eligibility for release was limited to those who are sentenced to 18 months or less and who, on 4th May 2020, have 90 days or less left of their time in custody. The  Coronavirus (Scotland) legislation already passed by Parliament automatically excludes those in prison for the most serious crimes, including sexual or terrorism offences, from being considered for early release.  These regulations introduced further exclusions in relation to domestic abuse, harassment and Covid-19 related offending. In addition, Prison Governor retained a veto under the Coronavirus (Scotland) Act 2020 to prevent someone from being released under the scheme where they considered that the prisoner presents an immediate risk of harm to an identified individual.