Top Scottish lawyer warns prisoners could take legal action against the Scottish Government for a breach of human rights

Rachel Amery
Tue, 29 August 2023

One lawyer is warning prisoners could take legal action against the Scottish Government for breaching human rights. (Photo: submit)

A leading Scottish lawyer is warning prisoners on remand could launch legal action against the Scottish Government for breaching their human rights.

Thomas Kerr KC says delays to having criminal cases heard in courts are “extremely serious”, with waiting times for the most serious cases doubling.

He says this is leading to some people being in prison for two years and then being found not guilty, which is a breach of their right to a fair trial in a reasonable amount of time.


Speaking on BBC Good Morning Scotland, Mr Ross said: “Everyone working in the criminal justice system is working flat out.

“Particularly in the high court we have exhausted all the court’s resources, but with all that effort the delays are still going up.”

The number of prisoners on remand in Scotland has risen from around 900 to 2,200.

There are a number of reasons for this, including a backlog caused by the coronavirus pandemic and a “proliferation” of large-scale prosecutions such as for serious organised crime.

Mr Ross says he worries this will lead to some people pleading guilty to crimes they have not committed just to get out of the prison system quicker.

He said: “That won’t happen in the high court where the sentences are between six and 12 years.

“But in the sheriff court where the sentence might be two years, with release after one year, if you’re on remand for more than a year it doesn’t make sense for you to stay in prison, so many will just plead guilty to get out.”

He adds he “wouldn’t be surprised” if this leads to some raising legal action for a breach of human rights, particularly if the person is later found not guilty.

Mr Ross said: “Everybody has the right to a trial within a reasonable time and arguably if you’re relying on remand for a period in excess of two years, you are not getting that in a reasonable time and arguably this is a breach of human rights.

“Most of those on remand are serving sentences which will be imposed on them in the future, but if you’re on remand for two years and are then acquitted, you aren’t entitled to any compensation.

“Recently in an Irish court an accused was not extradited to Scotland because the prison conditions here are so terrible.

“People are being held in cells for 22 hours a day - imagine being locked up in a cell for 22 hours a day for two years, and then being found not guilty?”

He is now urging the criminal justice system and the Scottish Government to do some “creative thinking” to come up with ways of bringing these long waiting lists and delays down.

Mr Ross said one solution may be offering people more of an incentive to plead guilty early, particularly for crimes such as drug trafficking offences.

He said: “These solutions won’t find favour with everyone, but there are a lot of people out there who want more lengthy sentences.

“But we are in a difficult situation so we need some blue-sky thinking to get out of this emergency.”