Accused could bring human rights case against Scottish government over backlog

Thomas Ross KC

Mr Ross said that the Crown Office should consider a more “creative” strategy to address the existing issues. The auditor general has previously indicated that it might take years to resolve 28,029 solemn trials and 24,946 summary trials pending as of February.

The situation is further exacerbated by daily delays caused by staff shortages at GEOAmey, a private firm responsible for prisoner transfers.

Mr Ross told The Sun: “It’s getting to the stage where people on remand will bring human rights damages claims against the government and as soon as one case is settled there will be hundreds of them submitted overnight - there certainly is talk of that happening.

“One of the big problems was that we incorporated the European Convention of Human Rights, which has made things much worse, ironically. In Scotland, we were way ahead of Europe in terms of time limits for bringing cases forward. In other words, the twelve-month rule that we had in Scotland doesn’t really apply anymore.”

Legal insiders told the newspaper that it is only a matter of time before individuals start admitting to crimes they did not commit because of perverse incentives to do so. There are concerns that individuals are being detained on remand for periods exceeding the potential sentence if convicted. By pleading guilty, they would be released the same day, accounting for time already served. Conversely, a not guilty plea could entail a six-month prison wait before trial.

Mr Ross suggested that the implementation of bail hostels and a specialist drug court could help decrease the caseload. He said: “To address some of the problems with the backlog the Crown need to be more creative in their approach. They need to find ways of getting cases out of the system. This is an emergency and they need to consider emergency measures and do things that they wouldn’t normally do.

“I suggested that we should have a drug court where the maximum sentence is five years. That would get a lot of these cases out of the system. These are the cases that are really time consuming and can sometimes last three or four months.

“Another option they could look at is releasing people from custody if the maximum jail sentence they could get is 12 months. Also, lots of people are in jail because they have no fixed abode or they commit a crime near their home. We should have bail hostels like they have in England. They are much cheaper than jail. But the Crown isn’t being creative or thinking of any other solutions.

“It’s a bad time to be putting further delays into the system. I have a trial now that is expected to end in September 2024. That’s a long trial but it is now common to have trials fixed for May and June next year – now that is a long wait for someone who is in custody and may be innocent. People are being held on remand in custody for more than two years. That is a very long time if you are then proven innocent. The delays are already bad and every time there is a GEOAmey sponsored delay it makes it worse.”