Investigation and prosecution of sexual crime: follow-up review

Footnotes

1. HM Inspectorate of Prosecution in Scotland, Thematic Review of the Investigation and Prosecution of Sexual Crimes (2017).

2. The term 'complainer' is most often used to describe the person against whom it is alleged a crime has been committed. In this report, we have used the term 'victim', as we did in our 2017 report. The term 'victim' is used in legislation and is more commonly understood. It makes no assumption about the veracity of any allegations.

3. Scottish Government, Recorded crime in Scotland, 2018-19 (2019).

4. COPFS, Securing justice: our strategic plan for 2020-2023 (2020).

5. Scottish Government, Delivering for Today, Investing for Tomorrow – The Government's Programme for Scotland 2018-19 (2018).

6. Scottish Government, Protecting Scotland's Future – The Government's Programme for Scotland 2019-20 (2019).

7. COPFS, Operational Instruction 3 of 2018.

8. It is worth contrasting this approach with that taken in rape cases where a decision to take no further action after the accused has already appeared on petition or indictment is still referred to a Law Officer.

9. Under section 288BA of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), a docket can be added to an indictment or complaint to give notice of an intention to lead evidence of a crime not libelled.

10. More detail on statutory time limits can be found in Appendix 2. Unless otherwise stated, the time limits referred to in this report relate to time limits in solemn proceedings under the 1995 Act, not taking into account the emergency amendments made to time limits in the Coronavirus (Scotland) Act 2020.

11. The reporting KPI refers to the date a report is sent to Crown Counsel in NSCU with a recommendation on how to proceed.

12. These are outlined further in our previous report on the management of time limits. See HM Inspectorate of Prosecution in Scotland, Thematic report on the management of time limits (2015) and Thematic report on the management of time limits: follow-up (2017).

13. See from paragraph 175.

14. See from paragraph 184.

15. See from paragraph 195.

16. Paragraph 212 for bail cases and 221 for custody cases.

17. Paragraph 212 for bail cases and 221 for custody cases.

18. See from paragraph 226.

19. See from paragraph 226.

20. See paragraph 140 for further information about this case.

21. Where the police wish to submit further information for the attention of the procurator fiscal regarding a case they have already reported, they can submit, via electronic means, a subject sheet directly into the case file held on the COPFS system. It is expected that COPFS personnel with responsibility for the case will note whether any such submissions have been made.

22. In one of these cases, the accused subsequently pled guilty.

23. For further discussion of delays and continuations at the preliminary hearing stage in cases that we reviewed, see from paragraph 225.

24. Scottish Courts and Tribunals Service, Quarterly Criminal Courts Statistics – Report 8 – Quarter 4 2019/20 (Provisional).

25. See paragraph 92 for further detail on timescales for initial contact.

26. Operational Instruction 15 of 2020.

27. Operational Instruction 15 of 2020.

28. At the time of our review, standard special measures were use of a live television link, a screen to avoid seeing the accused and a supporter. Other special measures included giving evidence via a commissioner or by means of a prior statement. The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 came into force in January 2020, but this was too late in the progression of the cases in our follow-up case review to assess its impact.

29. COPFS has a policy which recognises the reasons why victims may be reluctant and which provides that, before a case is discontinued, there should be a discussion with the victim about the reasons for their reluctance and support measures available to them.

30. This does not automatically apply to child witnesses and is not, therefore, included in letters sent to children.

31. It should be noted that, by the time the court management strategy is sent, special measures should already have been discussed with the victim.

32. In the four cases where an early decision about the case was made within four weeks and the decision was intimated to the victim by the police rather than COPFS in accordance with policy, we judged these cases to be satisfactory.

33. More than one of these themes was an issue in some cases.

34. To introduce sexual history or character evidence, a written application from the defence or prosecution (a section 275 application) must be submitted to the court. Section 274 of the 1995 Act sets out what must be specified in an application and section 275 sets out the exceptions to the prohibition on leading such evidence. For further discussion of this issue, see Eamon P H Keane & Tony Convery, Proposal for independent legal representation for complainers where an application is made to lead evidence of their sexual history or character (2020).

35. This MoU and a resulting change in practice are further discussed in COPFS et al, Standards of service for victims and witnesses – Annual report on performance 2019-20 (2020), page 20.

36. SCTS, Coronavirus update – jury trials, 17 March 2020.

37. Scottish Government, Covid-19 and solemn criminal trials, April 2020.

38. Lord Justice Clerk, First steps in restarting jury trials, 25 May 2020.

39. This case is discussed further at paragraph 140.

40. The days passed since full committal are only shown in respect of the two cases in which the accused was remanded into custody and remained in custody at the time we revisited the cases in July 2020.

41. The accused was bailed at full committal but subsequently failed to appear at a preliminary hearing. He was later arrested under warrant and remanded in custody.

42. The accused was remanded in custody at full committal. However the accused's period of remand in this case was interrupted by the accused being sentenced to a period of imprisonment in another case. The period for which the accused has been remanded has therefore been calculated from the earliest release date of their period of imprisonment, and reflects his resumed remand status in this case.

43. The sample was drawn from this period so as to allow sufficient time for COPFS to have taken action in response to our recommendations made in 2017, and to allow sufficient time to have passed since the cases were reported to assess their progression.

44. The Sexual Offences (Scotland) Act 2009 came into force on 1 December 2010.

45. Several of the cases in our sample had multiple victims. Charts 1 and 2 relate to the main charge in the police report, which may relate to only one of the victims. The statutory offences cited relate to the 2009 Act.

46. The statutory offences cited relate to the 2009 Act.

47. That is, the case was merged with another case against the same accused.

48. A reported case is where the accused person is not in custody, does not have a date to attend court and the police have not specified that they are actively seeking an apprehension warrant

49. While 'further enquiries' may also have been used by COPFS in 2017, it was not an outcome that featured in our 2017 case review.

50. References in weeks have been rounded to the nearest week.

51. This case is discussed further at paragraph 61.

52. The reporting KPI refers to the date a report is sent to Crown Counsel in NSCU with a recommendation on how to proceed. The report is prepared by a case preparer and reviewed by the SLM.

53. Where an accused person is indicted into the Sheriff Court, if he/she pleads not guilty and their case proceeds to trial, they will be tried before a jury.

54. Under section 67 of the 1995 Act, a written notice can be lodged by either the prosecutor or the accused adding further witnesses, productions or labels to an indictment.

55. A pre-trial diet to enable to court to be advised whether the prosecution and defence are ready to proceed to trial and also to deal with ancillary procedural matters. See Appendix 2.

56. Time limits are regulated by section 65 of the 1995 Act. The time limits noted here are those that normally apply. Emergency provisions relating to time limits were enacted in response to the Covid-19 pandemic – see Appendix 2 for further information.

57. Sections 65(1)(a) and (b) and Section 66(6)(1)(b), 1995 Act.

58. Section 65(4)(a) and (aa), 1995 Act.

59. Section 75A(1) and (2) of the 1995 Act.

60. Sections 75A(5)(a) and (b) and 75A(7) of the 1995 Act

61. In one of these cases, the accused failed to appear at a preliminary hearing and a warrant was obtained for his arrest. The case was re-indicted with an additional charge and went on to have a combination of section 75A applications where the diet was discharged without a hearing and continued preliminary hearings in court.

62. In some of these cases, there was more than one application under section 75A of the 1995 Act.

63. See note 34 for further information about section 275 applications.

64. Generally High Court trials for sexual crimes are being allocated to a dedicated floating trial. A dedicated floating trial is scheduled for a particular High Court and can start within one of a number of days within the same week.

65. Rounded to nearest week.

66. Criminal Procedure Act 1701 (c.6); see also Herron v A.B.C. & D., 1977 SLT (Sh Ct) 24; also see Dunbar, Petitioner 1986 SCCR 602 – no more than eight days may elapse between committal for further examination and full committal but neither of the days on which one of the committals takes place counts towards that total.

67. Criminal Procedure Act 1701 (c.6); see also Herron v A.B.C. & D., 1977 SLT (Sh Ct) 24.

68. Section 65(4)(a) of the 1995 Act.

69. Section 72 of the 1995 Act.

70. Section 65(4)(aa)(i) of the 1995 Act.

71. Section 66(6)(b) of the 1995 Act.

72. Section 72A(1) of the 1995 Act.

73. Section 65(4)(aa)(ii) of the 1995 Act.

74. Section 65(4)(a) and (aa) of the 1995 Act.

75. Section 65(1) and s66(6)(b) of the 1995 Act.

76. Section 66(6)(b)of the 1995 Act.

77. Section 65(1)(a) unless the hearing has been dispensed with under section 72B of the 1995 Act.

78. Section 65(1)(b) of the 1995 Act.

79. Section 65(1A)(a) and (b) of the 1995 Act.