Joint inspection of emergency criminal justice provisions

1. Prior to the Coronavirus (Scotland) Act 2020 (the 2020 Act), the usual method of signing documents in Scottish criminal procedure was to affix a hardcopy document with a 'wet signature'. The usual method for the transmission of legal documents was to have the hardcopy document physically couriered between parties or organisations. Central to these processes was the physical attendance at offices and courts for the printing, signing, sending and receiving of documents, and physical interaction between criminal justice staff.

2. In response to the pandemic, the 2020 Act enabled the use of electronic signature and electronic transmission of documents associated with criminal proceedings.^[8] Suspending existing requirements for the physical signature and transmission of documents was thought necessary as they would expose justice officials, legal practitioners and others unnecessarily to increased risk of infection.^[9] The provisions were also an acknowledgement that access to secure printing facilities would be limited while many courts were closed and many staff from across the criminal justice system were working from home rather than offices. Enabling the electronic signature and transmission of documents would allow the essential administration of justice to continue in a manner that reduced the risk of transmitting Covid-19.

3. It is worth noting that there are some examples of electronic signature and transmission of documents that pre-date the 2020 Act. For example:

• a procedural amendment in 2005 enabled the use of a typed electronic signature by the prosecutor on out of hours search warrants. It meant that a prosecutor could draft the search warrant, type their signature and email it to the police officer. The oath subsequently taken by the police officer was sufficient to authenticate that the application was an application by the named prosecutor.^[10]
• in 2011, the Crown moved to electronic transmission of documents to fulfil its duty to disclose information to the defence.^[11] Since then, the majority of Crown disclosure has taken place via the COPFS Secure Disclosure System, a website onto which the Crown can securely upload the relevant documentation and from which it can be downloaded by the defence.

4. These earlier uses of electronic signature and transmission of documents are helpful to note as they demonstrate investment in and willingness to make better use of technology, and highlight some existing digital infrastructure which has facilitated the swift implementation of the emergency provisions in response to the pandemic.^[12]

5. The introduction of the provisions was supported by effective governance arrangements and the rapid development of new guidance and processes. Within COPFS, an Operational Sub-group of the Corporate Resilience Group was formed with a specific remit to lead the implementation of the provisions relating to electronic signature and electronic transmission of documents. Within Police Scotland, a chief inspector was tasked with overseeing and organising the implementation of the provisions. During our inspection, we also heard about effective partnership working across the two organisations to develop new processes to implement the provisions.

6. We noted that comprehensive written guidance on the use of electronic signatures and the electronic transmission of documents was produced for staff. Within COPFS, staff received guidance on how to create an electronic signature and apply it, general guidance on the use of electronic signatures and specific guidance on the use of electronic signatures relating to key processes. They also received general guidance on the electronic transmission of legal documents, specific guidance on each legal document capable of being electronically transmitted and guidance that was tailored to the prosecution level (Sheriff and Jury, High Court, etc).

7. While there was limited evidence of formal training on the use of the provisions, this is understandable given the circumstances in which they were introduced. In any case it may not have been necessary as the administrative and legal staff within COPFS whom we interviewed indicated that the step-by-step guidance and supporting operational instructions were comprehensive and easy to follow. We also found evidence of an open dialogue regarding the provisions between frontline staff and their line managers. We did, however, note that some training was provided to units which had to substantially change the manner in which they worked to facilitate the use of the electronic transmission provision. In the High Court Unit for example, we were informed that staff were trained via video conferencing in a new way of using their system.

8. Within Police Scotland, we also found comprehensive guidance on the use of electronic signatures for search warrants. The guidance had been well-received by officers who described it as succinct and easy to understand. Despite there being no formal training, they felt the guidance, with an accompanying process map, was sufficiently detailed and helpful. Officers we spoke to said they and their colleagues felt confident using the new approach.

9. During our inspection, we found extensive use of electronic signatures by COPFS across a range of processes and at all stages and levels of prosecution.^[13] We found that electronic signatures had replaced wet signatures in a number of key processes including the signing of search warrants, vulnerable witness applications, petitions, indictments, section 67 applications and section 259 applications. While we also noted significant use of electronic transmission of documents, we noted that this varied by stage and level of prosecution, with the most common usage being at the investigation stage and the High Court solemn level of prosecution. For Police Scotland, the emergency provisions were mostly used in respect of applications for search warrants.

Benefits

10. There was significant support for the emergency provisions regarding electronic signature and electronic transmission of documents amongst those we interviewed and those who responded to our survey. They cited several benefits, but the one most frequently mentioned was that the new way of working saved time. COPFS staff in particular noted that electronic signature and electronic transmission of documents was more efficient and more convenient. They said the author of a document was now able to sign it immediately, rather than the document being printed elsewhere and another member of staff having to review and sign it. We also heard about cost savings, not only those related to time savings, but also savings on the printing and transportation of documents. Linked to this, we heard that the new way of working was more environmentally friendly.

'A huge benefit on time and resources…' (COPFS staff)

'It's an efficient way of serving documents. We're saving a fortune on postage.' (COPFS staff)

11. We also heard that the use of electronic signatures could assist with resource management. For example, prior to the 2020 Act, advocate deputes who were on the rota to sign High Court indictments would have to attend the office in person and provide a wet signature. Since the 2020 Act, in-person attendance was no longer required and the work could be spread more evenly amongst advocate deputes. They said this resulted in a more efficient use of their time and described electronic signature as 'the way forward'.

12. More generally, we heard about a reduction in the need for police officers and COPFS legal and administrative staff to attend local offices. The use of the emergency provision enabled the work involved in reviewing and signing legal documents to be spread more evenly amongst staff working at home. Most crucially in the context of the pandemic, it also decreased instances of physical interaction between criminal justice professionals while ensuring that the administration of justice continued.

13. During our inspection, we heard that the provision enabling electronic transmission of documents was being well-used by COPFS at the solemn level of prosecution. The provision allowed High Court and Sheriff and Jury indictments, and other legal documents, to be served on the defence using the Secure Disclosure System. At the High Court level, these documents could also be lodged with the court, ensuring an entirely electronic process. This meant that police officers were not required to serve documents, freeing them up for other duties. Defence agents informed us that this provision enabled the rapid service of indictments. They also said they were able to access the documents outside their office, saving time and reducing costs.

'Quick service of indictments, rather than waiting on police to deliver. Can get them on our phones at court rather than waiting on return to office.' (Defence agent)

14. The benefits of the emergency provisions on electronic signature and electronic transmission of documents are well-illustrated by their application to search warrants (see case study). The new approach has advantages for Police Scotland and COPFS, as well as other criminal justice partners. During the lockdown and recovery phases of the pandemic when physical distancing restrictions were in place, the emergency provisions have removed the need for physical interaction but have also saved significant time and resources. Officers have not had to attend local procurator fiscal offices or sheriff courts, or the homes of prosecutors or sheriffs out of business hours.

'Avoids police officers travelling to my home and avoids my getting dressed in the middle of the night to deal with them. Saves a considerable period of time.' (Sheriff)

'Saves time and travel and has probably had the biggest positive impact on policing during Covid and should be considered as becoming BAU [business as usual].' (Police officer/staff)

Issues and challenges

15. While the use of electronic signature and electronic transmission of documents received widespread support, there were nonetheless issues or concerns raised which require to be resolved to maximise the potential of the provisions or which suggest that the emergency provisions are not suitable for use in all circumstances.

16. We heard about a few processes where it was felt that wet signatures on printed documents were more efficient than electronic signatures. For example, within COPFS, the National Initial Case Processing Unit (NICP) initially sought to use electronic signatures but abandoned them in favour of wet signatures. NICP is responsible for marking almost all summary level cases across Scotland. Cases reported in which the accused is not in police custody are printed at centralised hubs where an experienced prosecutor quality checks each summary complaint and signs them. Due to the significant volume of complaints and the process involved in applying an electronic signature to each, it was felt that signing hard copy complaints was quicker.

17. When it was felt that electronic signatures had not resulted in efficiencies, this was sometimes because they were not being used in tandem with electronic transmission. This was most often because the person to whom the document was being sent was not capable of receiving it electronically. To maximise the benefits of the emergency provisions regarding electronic signature and electronic transmission, they should generally be used together. For example, it is not currently possible to digitally lodge summary complaints and some other documents, which we heard has impacted the system's ability to digitise the custody court process. Some COPFS staff questioned the point of using electronic signatures when the document is only going to be printed and transported to SCTS. We understand these issues are being reviewed by IT staff within SCTS and COPFS with a view to increasing the capability to electronically transmit documents between the organisations.

18. COPFS staff told us that the IT capability of defence agents can occasionally be a barrier to greater use of the emergency provision. However, in these circumstances, hard copy service is still available.

19. We also heard that the electronic service of summary complaints in cases reported while the accused is in police custody is not possible because at the stage of service, most accused persons either do not yet have legal representatives to accept service on their behalf or COPFS do not yet know who their legal representative is. Postal and personal service of these documents is still the only option for this process.

20. While we welcome efforts by Police Scotland to ensure applications for search warrants can be made from officers' mobile devices, officers told us that they do not all have access to a mobile device currently. Those without a device would still require to attend a police office to make an application, limiting to some extent the efficiencies offered by the new process.

21. When the emergency provisions were first introduced, there were some early procedural issues that limited their initial effectiveness. For example, in relation to electronic applications for search warrants, some officers were initially using incorrect email addresses while some of the COPFS mailboxes to which applications were sent failed to acknowledge receipt. We also heard that an issue with SCTS resources meant that lodging documents electronically at the High Court was not initially possible. These issues were quickly resolved due to the collaborative efforts of the organisations involved.

22. While many of our survey respondents highlighted increased security as a benefit of the provisions relating to electronic signature and electronic transmission of documents, security was also a key concern of other respondents. Some were concerned about the possibility of electronic signatures being forged, although we heard no evidence to suggest that a wet signature was any less secure than an electronic one. There were also concerns about the possibility of electronic documents being sent to the wrong email address.

Potential for retention

23. The emergency provisions within the 2020 Act which enabled the use of electronic signature and electronic transmission of legal documents have been beneficial. In the early period of lockdown, the necessity of reducing physical contact and travel was essential for public safety. These provisions helped to significantly reduce physical attendance and contact within the criminal justice system, while also allowing essential criminal justice processes to continue. These benefits will continue during the recovery phase and as long as physical distancing is required.

24. It is notable however, that many of the benefits of electronic signature and electronic transmission of documents outlined above are not confined to a pandemic situation. Indeed, the benefits most frequently cited by our survey respondents relate to efficiencies and savings in the criminal justice system. One survey respondent succinctly described the benefits of electronic signature and electronic transmission of documents as being 'Immediate, efficient, resource saving, green and secure.' Consideration should therefore be given to extending the provisions so that they apply post-pandemic. Many of those we interviewed and who responded to our survey felt that the gains made as a result of the provisions should not be lost. Further consideration should be given to rolling out the use of electronic signature and electronic transmission of documents to additional processes within the criminal justice system and to ensuring the digital infrastructure is able to support this.

25. Of all the emergency provisions within the scope of our inspection, the electronic signature and electronic transmission of documents received the most widespread support. In our survey, when asked whether these provisions should be retained, 95% of respondents said yes. One respondent from COPFS said, 'of course – it is 2020'. Only a small proportion suggested some caveats to their continued use, such as limiting the electronic application of search warrants to only those requested out of hours. Significantly, and unlike the other emergency provisions explored in our inspection, support for the use of electronic signature and electronic transmission of documents was high amongst all professional groups within the criminal justice system.

'This has modernised the way we work and has brought the process into the 21st century.' (COPFS staff)

'It is a lot more efficient and something that should have been done years ago… it would be madness to go back' (Advocate)

'It would be a backward step to return to old, slow… hardcopy/wet signature, transfer of documents when all of the work has been done between partners to make the[se] changes.' (Police officer/staff)