Exclusive:Justice Denied: Scottish Government to take steps to avoid time-bars 'cliff edge'

Justice secretary tells The Scotsman she is ‘mindful’ of pressures facing prosecutors and courts

Scotland’s justice secretary has promised to look at “transitional arrangements” to prevent prosecutors from dropping a slew of criminal cases that are at risk of falling foul of strict time limits.

In an interview with The Scotsman, Angela Constance said she had asked Scottish Government officials to hold discussions with the Crown Office and Procurator Fiscal Service (COPFS) to find a way to mitigate the impact of time-bars being reset to pre-pandemic levels later this year.

Amid ongoing efforts to tackle a backlog exacerbated by the Covid-19 pandemic and an increasing number of serious and complex cases, John Logue, the Crown Agent and chief executive of the COPFS told this newspaper that the organisation was facing its “biggest challenge” in years as it faced the prospect of doubling its workload between now and the end of November in order to indict around 2,000 cases that are currently beyond the traditional time-bar limits.

Temporary extensions to certain criminal procedures were enacted by legislation five years ago as part of the government’s response to the pandemic, but they will expire come 1 December. It means the time-bar between an accused’s first appearance on petition and trial will revert from 18 to 12 months. For accused on remand, the time limit until their trial will go from 320 to 140 days.

Justice secretary Angela Constance said the government was in talks with the Crown Office about the changes. Picture: Lisa Ferguson | Lisa Ferguson

Mr Logue told The Scotsman that the COPFS had no choice but to deliver the rapid uplift in indictments, but stressed it would be “incredibly difficult” and that he had concerns about the independent prosecution service’s ability to do so, warning that the extra cases would add further strain on the wider criminal justice system.

But Ms Constance said the government was “very mindful” of the increasing demand facing prosecutors and the courts system, and said it was engaged on the issue of the backlog of criminal cases at risk of falling foul of time-bars.

“We have some options around that, and that’s just about ensuring there are no cliff edges,” she explained. “We don’t want cases to be lost because they’re time-barred, and neither do we want the court processes completely clogged up because, on a case-by-case basis, there are applications to extend the time-bar.

“We are in discussions with the Crown Office about how we support that transition. One option around that is to have the old, pre-Covid time-bars kicking into place on 1 December for new cases, and not applying them retrospectively to cases already in the system. We’re actively engaged on that, and we’re mindful and sympathetic, but the remaining time limits need to go back to their pre-Covid limits.”

The Scotsman's week-long series is scrutinising pressures in the criminal justice system. | TSPL

It is understood that any such change to ensure existing High Court caseloads do not flout reset time-bars would require a statutory instrument, as well as the approval of Holyrood’s criminal justice committee. Mr Logue told The Scotsman that in hindsight, the emergency legislation brought in in 2020 was “over optimistic” in its forecast of the response of the pandemic, and Ms Constance pointed out that the workload in the criminal justice system was unlikely to return to the levels of five years ago.

“I can’t rewrite history and there’s always things to learn with the benefit of hindsight, but the priority for me right now is to continue to invest and support court recovery,” she said. “The pressing challenge is there’s a new reality. The level of business coming from prosecutors has increased, and there’s a new level of demand on our courts system. That of course is due to the success of both police and prosecutors, which is to be welcomed, but it does place a demand on the system.”

The response to that demand, Ms Constance said, was one that required continuous investment and reform. She pointed to the success of the summary case management pilot - a scheme that will be rolled out nationwide - in ensuring cases are resolved earlier, an outcome that is “good for the justice system, good for victims, and has significant workforce and financial benefits for Police Scotland.”

She also highlighted the “landmark reform” of a new dedicated sexual offences court as proposed in the Victims, Witnesses, and Justice Reform (Scotland) Bill currently going through Holyrood. “It’s about embedding expertise, and one of our priorities, as well as reducing delays, is to improve the experience of the justice system so it doesn’t compound the trauma victims are experiencing,” Ms Constance explained.

John Logue, Crown Agent and chief executive of the Crown Office and Procurator Fiscal Service, has expressed concern about the impact of the reset time-bars. Picture: COPFS | COPFS

Even so, the question of additional resources remains pressing. The Scottish Government has committed £20.3 million in its 2025/26 Budget for post-pandemic renewal and recovery work in the justice sector, but that will only maintain the extra trial court capacity put in place during Covid instead of adding to it.

Addressing the criminal justice committee last month, Malcolm Graham, chief executive of the Scottish Courts and Tribunals Service (SCTS), said that unlike the COPFS, the SCTS and other parts of the system had not received uplifts in its budget, which limited its capacity to develop the High Court system in the short-term.

The SCTS’s fiscal resource funding for 2025/26 of £123.2m is down from the £136.6m it was allocated in 2024/25 following the Autumn Budget in-year revision. Pressed on the figures, however, Ms Constance rejected the narrative that the SCTS funding had been cut, arguing it had increased when compared to the published 2024/25 Budget figure of £111.7m. “It’s absolutely not cut,” she insisted.

Asked to clarify, the SCTS said that next month it will publish its own budget for the year ahead, which takes into account other income, such as fees collected. It said that while its 2025/26 budget is anticipated to be “slightly above” 2024/25 levels, the proposals still “fall short of our identified needs,” and would require some “challenging decisions to be made.”

It is just one bump on the criminal justice system’s road to recovery - a journey that has some way to go.