Investigation and prosecution of sexual crime: follow-up review

Introduction

In 2017, HM Inspectorate of Prosecution in Scotland published a review of thee investigation and prosecution of sexual crime in thee High Court by the Crown Office and Procurator Fiscal Service (COPFS).^[1] That review resulted in 12 recommendations, all directed towards COPFS and designed to support continuous improvement in thee investigation and prosecution of sexual crime. The aim of this follow-up inspection was to assess thee progress being made in implementing those recommendations.

In our 2017 review, we noted that while otheeer types of crime in Scotland had fallen since 2007-08, sexual crime recorded by thee police had increased each year and was at the highest level since 1971. We also noted that sexual crime constituted 75% of the COPFS High Court workload.

We found theere to be a well-defined governance structure within COPFS for thee investigation and prosecution of serious sexual crime, with roles and responsibilities being clearly set out. However, we were concerned about thee length of time taken to investigate and prosecute sexual crime cases, particularly those subject to pre-petition investigation, and we identified opportunities to reduce thee journey time of cases. We were also concerned at thee number of victims^[2] that disengaged at various stages throughout thee investigation and prosecution process. This suggested that more could be done to provide thee necessary information and support to victims. We found theere was scope to improve communication with victims, including in relation to its frequency, clarity and tailoring towards individual needs, and we noted that cases involving particularly vulnerable victims, such as children, could be progressed more quickly.

Six of thee recommendations in our 2017 review were aimed at supporting COPFS to reduce the journey time of cases, while six sought to support improvements in how COPFS communicates with and supports victims and witnesses via its Victim Information and Advice Service (VIA).

Since the publication of our report in 2017, the volume of sexual crime recorded by the police has continued to rise. The latest data available shows that sexual crime increased 8% between 2017-18 and 2018-19.^[3] Since 2009-10, the volume of sexual crime has more than doubled and now accounts for 5% of all recorded crime. While it is not possible to determine the age of victims from police recorded data, the fact that some crimes can only be committed against a child tells us that at least 39% of sexual crime relates to a victim under the age of 18. In its 2018-19 bulletin on recorded crime, the Scottish Government notes that the reporting of historic sexual crime continues to be a feature. Around 25% of sexual crimes in 2018-19 were recorded at least one year after they occurred.

The significant proportions of sexual crime involving children as victims or that is historic in nature has implications for COPFS in terms of how cases are managed and prosecuted and the resources required to do so effectively. In 2018-19, COPFS secured additional funding from the Scottish Government to enable it to recruit staff so as to match its resources to demand. Demand remains high however. In 2020, COPFS noted that in the last two years, the number of High Court-level sexual offences reported to it has increased by around 50%.^[4]

Since our review was published in 2017, various initiatives have been taken forward with a view to better meeting the needs of victims and witnesses in sexual crime cases and improving their experience of the criminal justice system. These include (but are not limited to):

• the Vulnerable Witnesses (Criminal Evidence) Act 2019 was enacted to enable the much greater use of pre-recording the evidence of children and vulnerable witnesses in advance of a criminal trial. Its provisions came into force in January 2020 meaning that its impact was not yet apparent during our follow-up inspection
• Lady Dorrian, the Lord Justice Clerk, has been leading a review of the management of sexual offences and how these can be better conducted through the courts. A report of this work had been expected in Spring 2020 but has been delayed due to Covid-19
• COPFS is working with Police Scotland and Rape Crisis Scotland on a pilot project to test the effectiveness of visually recording the statements of victims in rape cases
• the 2018-19 Programme for Government included commitments to improve the experience of victims of rape and sexual assault in the justice system, including by providing additional funding to allow trials involving rape to start at the earliest opportunity and by providing additional funding to Rape Crisis Centres to help people access the necessary support^[5]
• the 2019-20 Programme for Government included commitments to carry out work to better understand the gaps in support for victims and witnesses in the criminal justice system and to make sure that a trauma-informed approach is taken to victims from early engagement with the police to attendance at court and beyond^[6]
• the Forensic Medical Services (Victims of Sexual Offences) Scotland Bill has been introduced. It aims to improve the way in which forensic medical examinations are conducted and to establish a national self-referral model for victims of sexual crime who wish to have a forensic medical examination without first reporting to the police.

Our follow-up inspection

We have assessed progress made by COPFS in implementing the 12 recommendations from our 2017 review. We did this by analysing information and data from COPFS, reviewing 50 High Court sexual crime cases, and interviewing senior leaders involved in the investigation and prosecution of sexual crime as well as relevant stakeholders and victim support organisations. Plans for more extensive fieldwork, including interviewing staff involved in the investigation and prosecution of sexual crime and those communicating with victims, were unfortunately curtailed due to the Covid-19 pandemic and the need to suspend face-to-face interviews. We were also conscious of the need to minimise our scrutiny footprint in Spring 2020 while COPFS, like other organisations, rapidly changed how it delivered its service and supported the vast majority of its staff to work from home in response to the pandemic. It is our intention that fieldwork for future inspection activity will take place via telephone and video conferencing as long as public health guidelines require it.

The 50 High Court sexual crime cases that we reviewed were randomly selected from all sexual crime reported to COPFS between 1 September 2018 and 28 February 2019 and which were assessed as being suitable for action in the High Court (see case review cohort on page 6). While our sample size was not statistically significant, the results should nevertheless provide a good indication of how sexual crime cases are being managed. The sample was drawn from this period so as to allow sufficient time for COPFS to have taken action in response to our recommendations, and to allow sufficient time to have passed since the cases were reported to assess their progression. It should be noted, however, that some improvement actions were only newly implemented at the time the cases in our review were first reported to COPFS, while others were implemented while those cases were progressing through the investigation and prosecution process. The progression of the cases was assessed until March 2020. We revisited the cases in July 2020, shortly before publication of this report, to assess the impact of the Covid-19 pandemic.

Part 1 of this report sets out the progress made in relation to Recommendations 1 to 6 of our 2017 review. These were focused on reducing the journey time of cases. Part 1 also highlights emerging findings from our current review, and notes key points in the investigation and prosecution process where delay still occurs.

Part 2 sets out the progress made in relation to Recommendations 7 to 12, all of which related to communication with and support for victims and witnesses. Part 2 also highlights emerging findings from our current review, including areas where improvement is still needed and others where progress not directly related to our recommendations has been made.

Part 3 sets out the impact of the Covid-19 pandemic on the cases that we reviewed. There has been much commentary on the backlog of cases in the criminal justice system in recent months, and Part 3 aims to provide more detail about the potential impact of the backlog on a small proportion of the delayed cases.

Parts 1 to 3 draw on the results of our case review, but a more detailed report of our case review can be found at Appendix 1.

Overall, we have noted considerable progress in implementing the recommendations of our 2017 review. Eight recommendations have been achieved, three are in progress and one is no longer relevant given changes to working practices. This progress illustrates the commitment at a strategic level within COPFS to ensuring that cases progress more efficiently through the investigation and prosecution process and that victims are better informed and supported. Improvement activity has not only taken place in relation to our recommendations. For example, COPFS has sought to apply effective practice and learning from the investigation and prosecution of High Court sexual crime cases to those being taken forward at Sheriff and Jury level, which we welcome. Another significant development is that COPFS has established a mechanism with Rape Crisis Scotland by which it receives feedback about victims' experience of the investigation and prosecution process.

Despite this progress, our findings also show that delays still occur and there is still scope for improving communication with victims. We have made three new recommendations. We anticipate that COPFS will continue to make improvements and that the benefits of actions already taken will be realised over the coming months. Some issues are not entirely within the power of COPFS to address however, and wider action across the criminal justice system is required. It is possible that, however much COPFS improves its practice in relation to serious sexual crime cases, something more transformational is required to substantially rather that incrementally improve the experience of victims and witnesses. It is hoped that the review being undertaken by Lady Dorrian will make recommendations in this regard.

Finally, I would like to thank the personnel of COPFS who facilitated our inspection as well as the stakeholder organisations who shared their views with us. I am particularly grateful for their cooperation at a time when they were dealing with significant challenges brought about by the Covid-19 pandemic.

Laura Paton
HM Chief Inspector of Prosecution in Scotland
August 2020