Care in the justice system
We would expect a public health approach to drug use to be fully embedded in the justice system. This means treating drug use as a health condition and responding to it in the same way as with any other health condition.
The justice system should present a meaningful pathway to provide support for people who use drugs. Interventions can be made at critical points on the journey to ensure people leave healthier and more supported than when they entered.
Care between and in justice and community settings should be seamless.
We outline in the evidence paper that Scotland needs to reduce the number of people going to prison and remand. This is an issue that is directly tied to drug deaths. We know that people’s tolerance levels can be affected by incarceration, increasing the risk of overdose upon their release.
If this is to be achieved, more work needs to be done in the community to intervene before people enter the justice system.
We present below some key themes that are relevant to all aspects of the justice system. We have also identified six intervention points that have been highlighted as being critical stages of a justice journey and require specific focus – diversion, police referral, police custody, courts and tribunals, prisons and community justice.
Information sharing can present challenges for those working in the justice system.
Evidence from our projects shows that difficulties arise when implementing referral processes. This is particularly the case when sharing between statutory services and the third sector.
What needs to change
National guidelines should be developed to help resolve these issues. We recommend, however, that statutory partners develop their own procedures for sharing information with services.
Action 76. Statutory partners4 in the justice system should develop standard operating procedures for the sharing of information at all points of the justice system and with services.
Decision-making in the justice system has been shown to improve when detailed reports on vulnerability are available. This leads to increased use of alternatives to custody.
The best available information should be provided to the Procurator Fiscal to help inform their decision-making, and to the court to inform its decision-making. This should not be used as coercion into treatment, but as an opportunity to provide support and ensure the most appropriate outcome for the individual.
Police Scotland collects a large amount of data on vulnerability at the start of an individual’s justice journey. As the journey continues, most partners collect their own information. Currently, there is no single record that follows an individual through their justice journey. The collected information is therefore not used to greatest effect.
A single record, starting with police vulnerability data and following an individual through court and into prison if necessary, should be developed. This record could then be supported by information from support services to which an individual is referred.
This would also help in the development of targeted pathways for people who use drugs. It could be particularly useful in improving support pathways for specific groups such as women, young people, people who are injecting and those who have experienced a recent NFO.
Action 77. The Scottish Government should work with statutory partners in the justice system to develop a single record for people’s justice journey to ensure tailored support at all stages of the journey and support decision-making.
Detailed actions on navigators are included in section 3.3.5 of this chapter. We believe that providing assertive outreach in this way is the gold standard.
What needs to change
Third-sector community navigators should be utilised in the justice system, incorporating lived and living experience wherever possible. The justice system must become more open to working with these services, which are needed to support people during key transition points.
Fundamentally, navigators are needed to support people through a broken system. They should not be seen as a replacement for appropriate pathways and support structures. Other timely and appropriate referrals should continue to operate and be improved wherever possible, including feedback from navigators.
Action 78. The Scottish Government and statutory partners in the justice system should ensure that navigators and outreach workers have the resources to follow and support vulnerable individuals throughout their justice journey and beyond.
People in the justice system who have complex needs and their families require holistic support.
If referrals to support are to be effective, services need to be available and ready to receive them. Multi-agency working, mapping of services and relationship-building should be embedded in the justice system to facilitate referrals.
Some of those being held in the justice system, including in police custody suites, may distrust the justice system. Non-justice statutory services and community-based third-sector organisations working directly in these settings could help to increase trust, particularly through peer support.
If an individual refuses support, it should not exclude them from being offered it in the future. This will lead to an understanding that you can get help in the justice system when you are ready for it.
What needs to change
ADPs should proactively engage with justice services to detail what support is available in their area. They can then provide a gateway for vulnerable individuals who use drugs and have other complex needs.
NHS boards should not exclude people who use drugs and who are in custody from support. This includes when they are being transferred across boundaries. Referral pathways should be in place for family members, who may also need support.
Statutory services and third-sector organisations should work with justice staff to facilitate training. This would help them learn more about how to recognise and sensitively respond to people who have experienced trauma.
Action 79. Statutory partners in the justice system should develop standard operating procedures for referral at every point of the justice system. They should work proactively with vulnerable individuals and their families to ensure all policies and procedures are trauma-informed.
Diversion from prosecution
The Crown Office and Procurator Fiscal Service (COPFS) policy is that diversion from prosecution offers an opportunity to address needs that have contributed to offending behaviour. This may reduce the risk of re-offending.
Diversion is considered for all people reported to COPFS for whom an identifiable need that has contributed to the alleged offending can best be met through a diversion scheme.
Prosecutors currently can offer diversion to non-statutory schemes. This tends to be done through local authorities. Local authorities can then work with other agencies to provide a diversion programme that is tailored to the needs of the individual.
In cases where individuals are referred for a statutory diversion, consideration should be given to the services required to support the individual and address ongoing needs.
Diversion can be an opportunity to provide parallel support. Emphasis should be placed on the need for multi-agency partnerships and third-sector services to be operating alongside diversion.
Support needs to be flexible. Otherwise, it could be considered to be part of a stigma-based response towards people who use drugs, have other complex needs and are at risk of harm.
What needs to change
National guidance on diversion from prosecution was published in April 2020 (38). It describes how interventions should be tailored to meet individual needs, risks and circumstances in a holistic and creative manner. The guidance does not, however, specifically prescribe that treatment and recovery services should be included in the interventions or outline how this can be supported.
The potential for diversion programmes to include involvement in peer cafes or other peer initiatives should be considered. A process for the aftercare of vulnerable individuals that links to pathways for support should also be provided in all cases.
Action 80. The current diversion from prosecution guidance should be reviewed to incorporate support for treatment and recovery as part of a diversion pathway. Local authorities should work with specialists and people with lived and living experience to embed the guidance in a consistent and evidence-based way and monitor and evaluate its effects.
A multi-agency tasking and coordination protocol approach should be considered nationally for people who use drugs and have the most complex needs. This should be tied to community justice partnerships to provide a strategic, coherent, multiagency service planning approach for each diversion.
A network for practitioners and agencies who work with people with drug dependency in the diversion process should be established. This would allow practitioners to share training opportunities and best practice.
Action 81. The Scottish Government should support the development of a national diversion from prosecution forum for practitioners and agencies who work with people who use drugs, and a multi-agency tasking and coordination protocol to support people who use drugs and who have multiple complex needs.
The Children and Young People’s Centre for Justice already hosts and manages a Diversion from Prosecution Forum (39) that is themed on youth justice issues. A diversion toolkit (40) that advises on how to provide effective, tailored and appropriate interventions for young people who offend was developed for service providers in 2011.
We believe there is now an acute need for a toolkit on supporting people who use drugs. It should focus on how to support an individual’s treatment and recovery as part of a diversion pathway. Examples of best practice should be part of the toolkit. These would increase confidence in the diversion options available.
Action 82. The Scottish Government and Community Justice Scotland should develop a national diversion toolkit on supporting people who use drugs. It should reflect the tailored support that is needed to promote people’s treatment and recovery.
Police referral arrest interventions
People who have a vulnerability in relation to drug use and come into contact with a police officer should be given the option of support.
What needs to change
The pathways to support should be holistic, trauma- and human rights-informed, and assertive in their potential to engage people in treatment and support them to remain in treatment. Support from the police should be based on the principle of vulnerability, which means making every contact count whether criminality is evident or not.
Action 83. The Scottish Government and Police Scotland should ensure that police referral pathways are available nationally. This may include developing a national standard operating procedure.
A number of police referral schemes are already in place across Scotland. The police have a responsibility and desire to improve community wellbeing. The process for police officers to provide a referral pathway should be straightforward and quick.
Mapping of services and relationship-building should be embedded from the start of a referral service. This will help to build multi-agency working. Education for police officers also needs to be integrated into police referral planning from the offset.
Action 84. The Scottish Government and Police Scotland should establish a shared practice and learning network for police referrals to develop national consistency, with variation based on local needs.
Being held in police custody is often a crisis point in someone’s life. Holistic support should therefore be available for all people who use drugs when entering, being held in and leaving custody, either to continue their justice journey or go back into the community.
People who use drugs and are in police custody often have to navigate the possibility of longer-term loss of liberty while processing acute crisis and trauma. We have a duty of care to support people in such circumstances.
What needs to change
NFOs in police custody, recorded on a vulnerable persons’ database, should be shared with support services through the local NFO pathway.
Police custody staff should be offered trauma-informed training. This would help them learn more about how to recognise and sensitively respond to people who have experienced trauma and withdrawal symptoms.
Embedding MAT standards should also be a priority. Police Scotland will continue to work with NHS partners to ensure this is achieved. The MAT Implementation Support Team has highlighted that the NHS Custody Patient Management System may need to be upgraded to ensure compatibility with the MAT standards.
Action 85. Embedding MAT standards in police and prison custody settings should be a top priority for the Scottish Government, Police Scotland, the Scottish Prison Service and NHS Scotland.
Courts and tribunals
We welcome the updated Scottish Government bail supervision national guidance published in May 2022 (41) and the additional funding to support bail supervision. It aims to support the consistent establishment and delivery of effective bail supervision services across Scotland by providing increased clarity on practice.
The Scottish Government published its responses to the public consultation on bail and release from custody arrangements in Scotland in March 2022 (42). We also welcome the main findings from the consultation.
What needs to change
The consultation highlighted that there should be adequate staffing and resources, collaborative planning and availability of meaningful interventions (we expect “meaningful interventions” to include treatment and recovery options).
Flexibility to allow both court and social work discretion in decisions linked to the request and release of information on an accused was proposed. This was seen as being necessary to meet the best interests of all parties involved in individual cases.
The consultation highlighted broad agreement that prison-based programmes were not consistently available across the prison estate. This should be addressed.
It also proposed a specific duty should be laid on public bodies to engage with prerelease planning for prisoners.
We welcome the strong support for banning all prison releases on a Friday, or the day before a public holiday, so that people have a better opportunity to access support. This throws extra weight behind our action on Friday liberations (see section 3.6.9, Action 96).
Action 86. By the end of 2022, the Scottish Government should publish an action plan with timescales for implementation of the measures supported in the bail and release from custody consultation.
We welcome recent shifts from the Scottish Sentencing Council towards rehabilitation for young people. We would like to see this extended to assist other vulnerable groups, including those who use drugs.
Many people who come into contact with the court have experienced trauma. We would expect that everyone is treated with respect and dignity. A national roll-out of trauma-informed training could improve the way people are treated in the court system.
Action 87. The Taskforce would welcome a review of sentencing guidelines by the Scottish Sentencing Council to take greater account of the treatment and recovery needs of people who use drugs. Scottish Government should engage with the Council to request the proposed review.
Glasgow Drug Court
We visited the Glasgow Drug Court and heard of its potential to have a significant, meaningful and positive impact for people who use drugs.
The aim is to reduce drug use and consequent offending through sentences that are based on practical treatments. The sentences impose on offenders an obligation to be treated and tested for drug use.
The court fast-tracks offenders into the courtroom. A trained team works together to support treatment and reviews. A holistic approach is taken with health, social work and drug-addiction services working collaboratively and providing first-hand input to case discussions.
Transition into community addiction services is essential. It ensures continued access to an effective support network upon completion of the programme. This helps to prevent reoffending and provides ongoing support towards recovery.
What needs to change
An evaluation showed that outcomes for clients mainly were positive, but reported that a number of challenges would need to be addressed for drug courts to be rolled-out further (43).
This evaluation was published in 2006. We would like to see a new peer-led evaluation to explore why the model has been so successful and to support wider expansion.
Action 88. The Scottish Government should commission a peer-led evaluation of the Glasgow Drug Court to explore how this approach is more successful than a standard court process and support the expansion of the drug court model.
We expect that every prisoner will be offered treatment and support. The aim should be to ensure they are better supported when they leave prison than when they entered.
What needs to change
Individuals should have access to treatment in prison. Families who have a concern should be offered the opportunity to be part of their care and treatment plan, in line with community settings. Appropriate support is needed before and throughout sentences, with reintegration support on release. People on remand should receive the same level of support as those serving a sentence.
Continuity of support between prison settings and communities must be seamless. This is necessary to ensure that people who use drugs are provided with a high standard and equality of care. As outlined earlier in this chapter, fully implementing, embedding and mainstreaming the MAT standards in the prison estate should ensure this.
All prisoners should also be given sufficient time and opportunities to engage in activities that support their recovery. These might include physical activity, education and skills training, and engaging with peer support or recovery communities that directly support recovery.
Action 89. The Scottish Prison Service and NHS Scotland should ensure that all people in prison have access to effective treatment and support for recovery. This should be a blanket policy that includes those on remand and is properly resourced through appropriate investment.
We funded the Scottish Drugs Forum to pilot a peer-to-peer naloxone training programme in HMP Barlinnie. This innovative practice ensures that prisoners are offered one-to-one naloxone training and are provided with a Nyxoid® kit for their release. It helps to support people who use drugs at a known time of increased risk of overdose.
Coverage of the programme has been extended so that anyone due to be liberated, not only those deemed to be at risk or receiving MAT, can access naloxone.
Action 90. The Scottish Prison Service and NHS Scotland should ensure that people who use drugs are provided with naloxone on liberation. Peer-to-peer supply should be available across the prison estate.
We considered the idea of recovery prisons or wings. Due to the prevalence of drug use in prisons and the principle of keeping people in prison closer to their families for support, it was felt that this would not be adequate for the whole prison population.
Recovery wings or flats within prisons were also considered. Issues were raised, however, around the punitive approach that would need to be taken for those who relapsed. We believe a more nuanced solution should be found.
Some prisons have been successfully operating recovery hubs or cafés, which have been well received. This should be expanded to develop a recovery community within each prison, connected to local recovery communities in the area.
Consideration may be given to developing a cohort-based recovery community in which those who are further on in their recovery journey are supported in a recovery wing.
Action 91. The Scottish Government and Scottish Prison Service should, with the support of the third sector and people with lived and living experience, expand the recovery cafes/hubs across the prison estate, developing these into recovery communities that effectively support people who use drugs. Our drug law reform report committed to further work focusing on support in prisons being undertaken. This includes building on the outputs of the commissioned Scottish Government substance-use prison needs assessment to be published later this year. We have had sight of this prisons needs assessment and have used it to inform our recommendations.
Action 92. The Scottish Government and the Scottish Prison Service should establish an integrated case management approach, seamlessly connecting service provision from the community, throughout an individual’s time in prison and beyond.
Redefining throughcare support means that support begins before the person is sentenced. It then operates throughout their time in prison and continues after they are liberated into the community. An individual accessing community treatment and support should see this continue throughout their time in prison.
Action 93. Individuals should receive treatment and support throughout their time in prison and have a release plan established from day one identifying the services they need to access on release. This should be continuously updated.
The prison estate should enable community services to continue to provide support throughout an individual’s time in prison. Community support can be even more vital, as the person will be coping with adjusting to the prison environment alongside any pre-existing trauma or withdrawal symptoms.
Action 94. Prisons should be permeable to enable access for services, be they statutory or third sector.
Some services, such as housing, benefits and GPs, may not be needed while a person is in prison. In these cases, support should resume on release without gaps in service provision.
On liberation, prison leavers may need to attend mandatory appointments with probation staff and attend to a range of other issues. These can include finding somewhere to live, registering with a GP and securing benefits. Those with health needs often require access to immediate support and medication.
This is a critical time for people who use drugs. Release from prison has been shown to be a time of high risk for drug-related death due to reduced drug tolerance and limited access to support networks.
Action 95. Statutory services should be obliged to continue (or establish) support for all individuals in prison, including those on remand, ensuring that there is no gap in provision on release and that individuals leave prison better supported than when they entered.
Friday liberations from custody create unnecessary risk. They can leave people particularly vulnerable to relapse, as only limited services are available at weekends.
Action 96. The Scottish Government should change the legislation to implement a blanket policy of no liberations on a Friday or the day before a public holiday.
We have seen the success some people have achieved on the Scottish Government-funded Prison to Rehab pathway. We support the roll-out of this programme nationwide, noting the actions on residential services we outlined in section 3.5.6.
Action 97. The Scottish Government should build on the Prison to Rehab programme, utilising the learning from the 2021 evaluation in a wider national roll-out.
We would like to see a well-resourced community justice system that is able to support and rehabilitate people with multiple complex needs, including those who use drugs.
We acknowledge, however, the cross-cutting nature of offending behaviour and complexities around a range of issues including alcohol, mental health, homelessness and domestic violence.
Community justice is delivered in different ways across Scotland. Some differences reflect local needs, but common issues include the availability and suitability of services. Broader structural challenges with funding, access and joining up of services are present.
What needs to change
The structure and delivery of community justice is very complex throughout Scotland. A more strategic approach to collaborative working needs to be taken.
Consideration should be given to further reviewing current community sentencing options. The aim would be to determine if they provide the best support for people who use drugs.
Action 98. The Scottish Government should review drug treatment and testing orders, community payback orders and other community sentencing options to assess how they have been used, their outcomes and whether they are the most effective mechanism to support an individual’s recovery and reduce recidivism rates.
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