Investigation and prosecution of sexual crime: follow-up review

Part 1: Reducing the journey time of cases

1. Our 2017 review of the investigation and prosecution of sexual crime made six recommendations aimed at supporting COPFS to reduce the journey time of cases. The progress made by COPFS in implementing those recommendations is described below.

Recommendation 1

What we found

2. At the time of our initial inspection in 2017, all serious sexual crime reported to COPFS was dealt with by specialist teams located in Aberdeen, Dundee, Edinburgh and Glasgow. Their sole function was to investigate sexual crimes that were serious enough to be prosecuted in the High Court. Cases investigated by the sexual crime teams were reported to the National Sexual Crimes Unit (NSCU), a body of senior lawyers known as Crown Counsel, specialising in the investigation and prosecution of sexual crime. When reporting the case to NSCU at the initial decision-making stage, the sexual crime teams made a recommendation on the action to be taken (to prosecute, to instruct further investigation, to take no proceedings, or to use an alternative disposal). NSCU considered their recommendation and provided instruction on how to proceed.

3. In our 2017 case review, we found there to be a high level of agreement between the recommendations made by the sexual crime teams and the instructions provided by NSCU. This provided a high degree of confidence in the initial decision-making of the specialist teams and suggested that little value was being added by the 'double-handling' of the cases.

4. We therefore recommended that the blanket requirement for all sexual crime to be reported to NSCU at the initial decision-making stage be removed. Instead, a system of exception reporting should be established for those cases that are particularly complex or where there is greatest risk.

5. To ensure that the standard of decision making is maintained under a system of exception reporting, we suggested that some safeguards be put in place. For example, we noted that the accreditation of specialist teams in managing sexual crime cases should be retained and monitored.

What we recommended

6. COPFS should develop a policy of exception reporting to NSCU at the initial decision-making stage of the investigative process.

Progress

7. Since our inspection, COPFS has created a national specialist marking team which considers all reports received from the police that involve serious sexual crime and that are likely to be High Court level offences. In response to our recommendation, a policy of exception reporting to NSCU at the initial decision-making stage has also been introduced.^[7] Implemented in March 2018, this policy allows the specialist marking team to make initial decisions on the appropriate prosecutorial action to be taken without routinely seeking the instruction of Crown Counsel in NSCU. Instead, the policy requires Crown Counsel's instructions to be sought only in specific circumstances. These include, for example, cases where consideration of complex areas of law is required.

8. COPFS considers that this change in policy is working well in practice and has reduced the double handling of cases and allowed some decisions to be taken more quickly. In our follow-up case review, only five of the 50 (10%) cases we assessed were sent to NSCU at the initial decision-making stage and all appeared to be for appropriate reasons. Previously, all cases would have been sent to NSCU. The change in policy has therefore created a more streamlined process and an opportunity to shorten the journey time of many cases. We therefore consider Recommendation 1 to have been achieved.

Recommendation 1 status: achieved

9. During our follow-up inspection, we were advised by COPFS that it has not received any feedback to suggest the change in policy has had a negative impact on the quality of decision making. Indeed, in our own case review, where cases were reported to NSCU at a later stage in the process, we found that Crown Counsel agreed with the recommendations of specialist prosecutors in a high proportion of cases (see paragraph 206).

10. Nonetheless, in our 2017 inspection, we suggested possible safeguards that COPFS may wish to consider when introducing a policy of exception reporting. One of these was that cases in which the initial decision is to take no proceedings should still be reported to Crown Counsel for their instructions. COPFS chose not to take this approach when developing its policy.^[8] Instead, the requirement that the initial decision maker seek the approval of a Solemn Legal Manager (SLM) to take no action was thought by COPFS to be a sufficient safeguard. This supervisory oversight is welcome and we were advised that further informal discussions may take place with more senior staff if there was any uncertainty as to the appropriate decision. While this seemed a proportionate approach in cases where there is clearly insufficient evidence, we consider that the risk that the incorrect decision has been made could be more fully managed by introducing further mitigation in the form of ad hoc checks or quality assurance.

Recommendation 2

What we found

11. The Investigative Agreement is the 'blueprint' for the investigation of a case. At the time of our inspection, it was intended that it would be prepared by the SLM within seven or 21 days of the appearance of an accused in court, depending on whether the accused was in custody or on bail, and submitted to NSCU. The Agreement consisted of a number of elements, including:

• the precognition strategy – identifying which witnesses require to be interviewed and the matters to be covered at interview
• the legal strategy – analysing and identifying any legal or evidential difficulties
• the victim strategy – identifying any vulnerabilities and special measures that may be required
• the case presentation strategy – used in complex cases where there is a high volume of evidence
• the need for expert reports, forensic analysis and sensitive records (such as medical, psychiatric or social work records).

12. The purpose of the Agreement was to provide Crown Counsel in NSCU with an opportunity to direct the investigation at an early stage, preventing unnecessary work being done and avoiding requests for additional work at a later date. We found, however, that this purpose was not being fulfilled. The target timescales were too short for legal managers to complete the Investigative Agreement to a meaningful standard as often key information, such as vulnerability reports, had not yet been submitted. In our case review, the Agreements were being submitted by the target dates in only 4% of cases. Even once submitted, the Agreements were not always being reviewed as intended by Crown Counsel and last minute requests for additional work were still being made.

13. We considered the idea of agreeing a strategy for the investigation and preparation of cases at an early stage to be sound, but recommended that the target dates for submission should be revised to allow for the more meaningful involvement of Crown Counsel.

What we recommended

14. COPFS should revise the target dates for the submission of the Investigative Agreement to Crown Counsel to enable a more detailed instruction on the direction of the investigation and of the case by Crown Counsel. The target dates should be monitored and rigorously enforced.

Progress

15. Since our recommendation was made in 2017, COPFS has revised its approach to Investigative Agreements. Taking into account the establishment of specialist teams dealing with sexual crime cases and the expertise that has subsequently developed, COPFS considered that it was no longer necessary for an Investigative Agreement to be reviewed by Crown Counsel in every case. Following consultation with those involved in the drafting and review of Investigative Agreements, it was decided that the document should only be submitted in cases requiring true strategic input from Crown Counsel.

16. This new approach was set out in Operational Instruction 10 of 2018, issued in December 2018. The instruction also lists two types of cases:

• those in which it is still required that an Investigative Agreement is submitted to NSCU (such as where a docket^[9] will be used to provide sufficiency of evidence)
• those in which the SLM should consider submitting an Investigative Agreement (such as where instructions may be needed regarding disclosure of sensitive personal records).

17. In our current case review, we found that an Investigative Agreement had been sent to NSCU in only three cases, all of which were in accordance with the Operational Instruction. For example, one case required the input of Crown Counsel regarding the disclosure of sensitive personal records. However, we also found one case where a docket was used to provide evidence of sufficiency and yet an Investigative Agreement had not been submitted to NSCU. This appeared to contravene the Operational Instruction. While it is possible the decision in this case may have been discussed and/or justified, there was no record of it.

18. The new approach of COPFS to the submission of Investigative Agreements to NSCU appears to be proportionate – the input of Crown Counsel should be sought only in cases where it is necessary. This approach offers an opportunity to further streamline the investigation and prosecution process and thereby reduce the journey time of cases. In light of this change in practice, Recommendation 2 of our 2017 report is no longer relevant in the majority of cases. However, due to inconsistencies we found in our case review in the extent to which Investigative Agreements were being completed as instructed, there is scope for COPFS to do more to ensure policy changes are effectively implemented and that underlying processes support delivery of the policy and are understood and used by staff.

Recommendation 2 status: no longer relevant

Recommendation 3

What we found

19. Once the Investigative Agreement has been agreed, cases are allocated to case preparers to undertake all lines of enquiry identified in the Agreement. Cases are then considered by the SLM who records whether they agree or disagree with the assessment of the case preparer. Cases are then submitted to NSCU along with a draft indictment. Following consideration by Crown Counsel at NSCU and a final decision that a case is to be prosecuted in the High Court, it is passed to a team of indicters who check that all evidential, legal and presentational aspects of the case are fully addressed. This quality assurance role involves checking whether there are any outstanding issues to be followed up.

20. We queried the purpose of the quality assurance process taking place after Crown Counsel had read the completed case and issued a final instruction. We considered that it would be beneficial for quality assurance to take place prior to cases being considered by Crown Counsel. To avoid unnecessary work, however, we suggested that where the SLM recommends that prosecution is no longer appropriate, cases should be submitted directly to Crown Counsel for a final decision, prior to the indicting process.

What we recommended

21. COPFS should consider undertaking the indicting process prior to the case being reported to NSCU for final instruction.

Progress

22. In response to our recommendation, COPFS considered involving indicters at an earlier stage in the progression of cases and consulted widely with staff, including case preparers, SLMs and indicters themselves, on the issue. The pros and cons of early involvement were explored. For example, it was noted that the early involvement of indicters in large and complex cases could add value to the work of the preparation team. On the other hand, an element of double handling would be introduced if indicters were to review cases at an early stage and again at the indicting stage. On balance, following extensive consideration and consultation, it was decided by the High Court Operational Board not to adopt the proposal. However, other suggestions made by the inspectorate are being taken forward. For example, COPFS has indicated its intention to take forward a programme of shadowing or short term secondments to the indicting team for case preparers and SLMs to promote the cross fertilisation of skills, which we welcome.

Recommendation 3 status: achieved

Recommendation 4

What we found

23. Statutory time limits regulate the maximum length of time that can elapse between the first time a person appears in court on petition charged with an offence and the start of their trial on indictment on that charge. At an accused person's first appearance on petition, the most likely outcome is that they will be committed for further examination. If the accused is released on bail, the prosecution must serve an indictment no later than 10 months after the date that the accused was committed for further examination.^[10]

24. If remanded in custody after being committed for further examination, the accused must be brought back to court within eight days, when the most likely outcome is that they will be fully committed for trial. At this point, they may either be released on bail or remanded in custody, pending trial. If remanded in custody, the prosecution must serve an indictment within 80 days of the accused being fully committed.

25. In our case review in 2017, we noted that in 84% of cases, the indictment was served within seven days or less of the time bar. In more than half of the cases, the indictment was served on the last date of service before the time bar. We found that cases were being allocated to indicters by reference to the time bar – even cases reported to the High Court Unit earlier than their target date were not being indicted until close to the time bar. Consideration was not being given to prioritising cases on any other basis such as whether they involved children or whether they had already involved a prolonged period of investigation. We stated that a more sophisticated system of allocating and prioritising cases for indicting was required.

What we recommended

26. COPFS should introduce a more sophisticated system of allocating cases for indicting to reflect the priority that is to be afforded to certain categories of cases.

Progress

27. In response to our recommendation, COPFS introduced a new performance monitoring framework for post-petition High Court cases that was intended to support efforts to shorten the journey time of cases and to prioritise certain types of case. The framework included key performance indicators (KPIs) for the reporting and indicting of cases. By collecting data about these key milestones, COPFS should be able to monitor how it is delivering on its business objectives, identify any problem areas, and check whether priority cases are being appropriately expedited. We welcome this approach which should allow COPFS to take corrective action where problems or delays are identified, and to make informed decisions about resource allocation.

28. Each High Court case is assigned a priority based on its circumstances and placed into one of four categories (see Table 1), taking into account factors such as whether the accused is in custody, the age of any child witness and the accused, and time the case has already spent in the pre-petition phase, as well as any other priority factors. Generally, the KPIs run from the date of receipt of the police report in bail cases and, in custody cases, from the date of full committal.

Table 1 – Reporting and indicting KPIs

Category	Report by[11]	Indict by
1	60 days	70 days
2	6 months	7 months
3	7 months	8 months
4	8 months	9 months

29. The new reporting and indicting KPIs were effective from 1 April 2019, however some were in use as early as October 2018 (in relation to cases involving child witnesses under 12 which fall into Category 1) and 1 January 2019 (in relation to all other cases falling into Category 1). Compliance with the KPIs is monitored by the Operational Performance Committee.

30. Experience of implementing the KPIs has highlighted the need to develop more nuanced business rules for their application. While this is being addressed by COPFS, it has likely resulted in the new approach being slower to embed than may have been initially expected, and in the opportunities offered by monitoring KPI data, such as informing decision making about resources and processes, not being fully exploited at an earlier stage. Additionally, action taken to address problems identified by the KPI data may not result in immediate improvement. For example, while COPFS has allocated much needed additional resource to the indicting team, new staff require training and development before their full impact can be felt. Nonetheless, we consider this new performance framework to be a promising approach which, with effective governance, offers opportunities to reduce the journey time of cases.

31. The cases that we reviewed in our follow-up inspection were reported to COPFS between 1 September 2018 and 28 February 2019. All cases were reported before the new KPI regime was fully implemented on 1 April 2019, although some cases were subject to the KPIs that were brought in early. We acknowledge that the new KPI regime was not fully in place at the time all of the cases in our sample were reported and that compliance was not then being routinely monitored. Nonetheless, we have considered 12 cases in our sample where records show that the case had been allocated to a priority category and the reporting and indicting KPIs had been applied. From these cases, we have identified some issues for COPFS to consider as it continues to develop and apply its approach to KPIs. These, as well as a fuller discussion of the application of both the reporting and indicting KPIs, can be found from paragraph 209 in Appendix 1. Here, we have focused on the indicting KPI only given its relevance to Recommendation 4.

32. Of the 35 petition cases that we reviewed, the accused was on bail in 24 cases. We found evidence in the case records that the new indicting KPIs had been applied by COPFS to seven of the 24 bail cases:

• in one case, the indicting KPI was met
• in six cases, the indicting KPI was not met.

33. In all cases, even where indicting KPIs were missed, the indictment was served within the statutory time limit.

34. In three of the six cases where the indicting KPI was not met, the reporting KPI had been met. This means the delay occurred at the indicting stage. In one case, efforts to ensure the reporting KPI were met following earlier delays in the case were somewhat negated by the delay at the indicting stage. As a Category 1 case, it should have been indicted 10 days after being reported, but three months passed before the indictment was served. In the other two cases, the case should have been indicted one month after being reported, but the actual time passed was just under five months and four months respectively.

35. In the three cases where neither the reporting nor indicting KPIs were met, we also found evidence of delays at the indicting stage. In one, despite being prioritised as a Category 1 case due to the involvement of a child witness under the age of 12, the case spent five months at the indicting stage.

36. Of the 35 petition cases we reviewed, the accused was in custody in 11. We found evidence in the case records that the new indicting KPIs had been applied by COPFS to five of these cases. As custody cases, they all fell into Category 1. The indicting KPI of 70 days was not met in any of them. In two cases, the reporting KPI had been met, meaning that as in the bail cases, the delay occurred at the indicting stage. In all cases, the case was indicted in accordance with the statutory time limit of 80 days (two were indicted on the 80^th day).

37. Our case review shows that despite the new approach of applying indicting KPIs and prioritising cases, delays still occur at the indicting stage, including for cases prioritised as Category 1. In some cases, it appeared indicters were still working to the statutory time limits, as we noted in our 2017 inspection. This approach is not without risk, as serious consequences follow failures to adhere to statutory time limits.^[12] Our findings suggest that further additional resources may be required in the indicting team and/or that a cultural shift may be needed in how that team prioritises its work. We would have explored the reasons for delay at the indicting stage in more depth had our inspection fieldwork not been interrupted by Covid-19.

38. While we welcome the new approach to prioritising cases and reducing journey times outlined above, we have found insufficient evidence in our case review that it is yet having the desired effect and that the benefits it offers are being fully realised. Recommendation 4 is therefore in progress, rather than achieved. As the new approach continues to be used, monitoring data on compliance with the indicting KPI should inform COPFS as to whether further progress is being made in relation to Recommendation 4.

Recommendation 4 status: in progress

Recommendation 5

What we found

39. In our 2017 report, we noted that decisions on whether there is sufficient evidence in sexual crime cases are often finely balanced. In some cases, it may be necessary to carry out further enquiries before deciding to commence proceedings. This period of pre-petition investigation is not subject to any time limits. We were concerned that, in 45% of the cases we examined, pre-petition investigation took more than 10 months to conclude. This contrasts with the situation where an accused has appeared in court and has been released on bail, and COPFS must indict the accused within 10 months. We noted that, the more protracted the pre-petition investigation, the greater the risk that the quality of evidence would diminish and the greater the likelihood that victims or witnesses may disengage.

What we recommended

40. COPFS should restrict pre-petition investigation to only those inquiries that are essential to reach a decision on whether there is sufficient credible and reliable evidence.

Progress

41. In response to our recommendation, COPFS issued Operational Instruction 3 of 2018 in March 2018. This sought to reduce the number of cases in which pre-petition investigation is used and set timescales for completing the investigation. The Operational Instruction stated that pre-petition investigation should ordinarily only be used in one of two circumstances:

(1) to establish by detailed investigation whether sufficient evidence exists

(2) to address any grave or substantial concerns regarding the quality of any aspect of the evidence.

42. The Operational Instruction distinguishes cases requiring pre-petition investigation from those requiring routine further enquiries. Cases requiring further enquiries include those in which full statements or other routine information may be requested from the police, or in which forensic or cybercrime reports are awaited. Further enquiries cases continue to be managed by the national specialist marking team rather than being allocated to a case preparer.

43. The Operational Instruction sets out KPIs for managing the length of time cases are subject to both pre-petition investigation and further enquiries. In pre-petition cases, the investigation should conclude:

• within eight weeks, in cases where some level of precognition is involved
• within 26 weeks in cases where, on a full assessment of the evidence, a full review of the case is required before a decision can be taken in the public interest.

44. In further enquiries cases, initial decisions about the case should be taken within:

• four weeks for standard cases (such as requesting full statements from the police)
• 12 weeks where a forensic report is required
• 16 weeks where a cybercrime report is required.

45. By clarifying and limiting the cases in which pre-petition investigation should be used, and setting new timescales for the conduct of pre-petition investigation and further enquiries, the Operational Instruction has addressed our recommendation. COPFS considers that this new approach has significantly reduced the number of pre-petition cases. Whereas at 1 March 2018 there were 284 pre-petition cases and 116 further enquiries cases, this had fallen to 54 and 86 respectively in January 2020 (with a further 33 cases undergoing investigation by the Scottish Child Abuse Inquiry team).

Recommendation 5 status: achieved

46. Of the 50 cases reviewed in our follow-up inspection, 17 (34%) required further enquiries and nine (18%) required pre-petition investigation. Five of the pre-petition investigations were marked as such from the outset, whereas four were marked for pre-petition investigation after they had already had a period of further enquiries.

47. Of the 17 cases requiring further enquiries:

• 12 were subject to the four-week KPI
• three were subject to the 12-week KPI
• two were subject to the 16-week KPI.

48. In the cases requiring forensic or cybercrime reports, with KPIs of 12 and 16 weeks respectively, the KPIs were met or only slightly missed. The four-week KPI was met in only four of the 12 cases. Where it was not met, this was for a variety of reasons, including delays by COPFS in requesting the information and delays by the police in providing it. Overall, for the 12 cases that had a four-week KPI, the time taken for the further enquiries to take place and for a subsequent decision to be made ranged from three to 23 weeks, with an average of nine weeks.

49. Of the nine cases requiring pre-petition investigation, one had a KPI of 15 weeks rather than eight or 26 weeks. We could find no record of the reason, and the KPI was in any case exceeded by six weeks. In the other eight pre-petition cases:

• in three cases, the eight-week KPI was applied but was never met. The period of pre-petition investigation was 11, 17 and 36 weeks
• in five cases, the 26-week KPI was applied and was met in two cases (at eight and 21 weeks). Where the KPI was not met, the period of pre-petition investigation was 37 and 53 weeks. In one case, pre-petition investigation had still not concluded at the time of our review.

50. We welcome the application of KPIs to cases allocated for further enquiries and pre-petition investigation. They should help ensure that cases continue to progress despite there being no applicable statutory time limits. Nonetheless, KPIs are only useful when they are supported by effective governance and action is taken in response to any issues identified. The fact KPIs were missed in eight of 17 further enquiries cases and seven of nine pre-petition investigations suggests that governance could be more robust. We acknowledge, however, that these KPIs had only recently been introduced at the time of our case review and governance should have developed since then.

51. We noted two scenarios in which it was challenging or impossible to meet KPIs. First, where a KPI is set in cases where initial decisions about whether further enquiries or pre-petition investigation are delayed, the KPI may soon be due or already have been exceeded. Second, the timescales for both the further enquiries and pre-petition investigation KPIs run from the date the police report is submitted to COPFS. Thus, in cases where a period of further enquiries is followed by pre-petition investigation (particularly if the further enquiries KPI has been exceeded), it can be difficult or impossible to meet the pre-petition KPI. We comment on this further at paragraph 56.

Recommendation 6

What we found

52. Where there has been a period of pre-petition investigation resulting in a decision to commence proceedings, the statutory time limits apply from when the accused appears in court. We were concerned that the sometimes lengthy period of pre-petition investigation was not being taking into account in the subsequent management of the case. Where there had been a prolonged pre-petition investigation, we would have expected a shortened period of case preparation.

What we recommended

53. COPFS should take account of any period of pre-petition investigation when allocating reporting dates for cases to be reported to NSCU for a final decision.

Progress

54. As noted above, COPFS introduced new reporting and indicting KPIs to help reduce the journey time of High Court cases. To address Recommendation 6, the timescale for the KPIs runs from the point at which the police submit the report to COPFS in bail cases and from the date of full committal in custody cases. This ensures that the case's entire journey – including whether it has spent time having further enquiries or pre-petition investigation carried out – is factored into the dates by which cases should be reported to Crown Counsel and by which the indictment is served.

55. While we have commented elsewhere in this report that governance of KPIs could be developed further to ensure corrective action is taken both to expedite individual cases where delay has already occurred and to address systemic issues causing delay (such as a lack of resources or process failures), we consider Recommendation 6 to have been achieved.

Recommendation 6 status: achieved

56. An issue for COPFS to consider in its application of KPIs is where the starting point of the KPI is re-set due to delays that have already occurred. For example, we noted in a few cases that where, as a result of previous delay or a case's complex procedural history, a KPI had already been exceeded or was almost due, staff chose to re-set the KPI using the date of, for example, committal for further examination, rather than the date of the police report. This included cases where several months had passed between these two dates. While the desire to set only achievable KPIs is understandable, the effect of this is to mask the true journey time of these cases, as seen from the perspective of victims, witnesses and accused persons. This risks these cases not coming to the attention of senior managers who should be in a position to address the factors that have caused the initial delay. COPFS should consider how it manages these cases so that problems can be identified, cases expedited and realistic reporting and indicting dates set.

Emerging findings

57. Since our review of the investigation and prosecution of sexual crime was published in 2017, COPFS has made progress in implementing improvements that seek to reduce the journey time of cases. Four of our six recommendations which sought to address journey times have been achieved and progress is being made in relation to a fifth, while a sixth recommendation is no longer relevant. There is clearly commitment at a strategic level within COPFS to ensuring that cases progress efficiently through the investigation and prosecution process. That said, the findings of our follow-up case review suggest there is more to be done to expedite cases and to reduce delay. We found that delays still occurred at the following stages, not all of which are within the control of COPFS:

• when making an initial decision as to what action should be taken, following receipt of a police report. Although the majority of decisions in the cases in our review were taken quickly, we noted unacceptable delays in two cases^[13]
• when further enquiries take longer than the four weeks allocated to them. In our case review, the time taken for further enquiries with a four-week KPI was an average of nine weeks^[14]
• when pre-petition investigation takes longer than expected. Of the nine cases in our case review subject to pre-petition investigation, only two investigations were completed within the target timeframe^[15]
• when target dates for reporting the case to Crown Counsel are missed. Of the 12 cases in our review to which the new reporting KPIs applied, they were met in only six cases^[16]
• when target dates designed to expedite and prioritise cases for indictment are missed. Of the 11 cases in our review to which the new indicting KPIs applied, they were met in only one case^[17]
• when preliminary hearings are continued or adjourned^[18]
• when trial diets are delayed.^[19]

58. Despite the delays highlighted above, it should be noted that COPFS met the relevant statutory time limits in all cases that we reviewed.

59. We note that COPFS has taken several measures to reduce the journey time of cases in response to our initial inspection report, which we welcome. We acknowledge that some measures had only been 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. We anticipate that as those measures bed in, further improvements will be seen. Nonetheless, the delays highlighted above and in our case review suggest areas where COPFS should focus its attention, ensuring that effective monitoring and governance arrangements are in place so that any delays or inefficiencies can be identified and action taken in response.

Initial decision-making

60. In relation to initial decision making, we found that in 31 of 50 cases (62%) the initial decision was taken on the same day as the police report was received. Initial decisions were made in a further seven cases within 10 working days; in five cases between 11 and 25 working days; and in four cases between 25 and 35 working days. In one case, an initial decision had still not been taken at the time our review concluded in March 2020, pending the outcome of another case in which the victim was also involved.^[20]

61. In the remaining two cases, the initial decision was not made for a considerable period. The first was a case in which the police were craving an apprehension warrant for the accused and where the initial decision was made 191 working days (nine months) after the report was received. We could find no justifiable reason for such a delay. The case appeared to have been overlooked for some time as a result of being placed in the wrong electronic 'tray'. When the error was noted, a decision was made to obtain a petition warrant for the accused in order to initiate proceedings. The second case, in which the initial decision was made after 187 working days, was reported as a subject sheet^[21] into another case and was not noticed until more than eight months later. A new case was created and a decision taken to seek a petition warrant to initiate proceedings in relation to the further charges reported. The unacceptable delays in these two cases suggest the need for more effective procedural safeguards to ensure that all reports are identified and actioned timeously.

62. With regard to subject sheets submitted by the police, COPFS has indicated that it is aware that the process for monitoring these may not have been sufficiently robust and that improvements are being implemented. COPFS should also engage with Police Scotland to address any inappropriate use of subject sheets by its officers.

Delays at trial

63. We also noted delays in cases reaching trial, even before jury trials were suspended in response to the Covid-19 pandemic. While ensuring that cases are suitably prepared for trial is for COPFS, it is not responsible for securing court time for cases to proceed.

64. In our case review, we found that the statutory time limits for trial had to be extended in all cases. Of the 15 cases that reached trial where the accused was on bail, four trials had concluded. None of the four trials took place within the statutory time limit of 12 months. Instead, the time between the date the accused was committed for further examination and the trial commencing ranged from 59 to 74 weeks. Of the 11 bail cases where the trial had not yet taken place, the time between the accused being committed for further examination and the scheduled trial diet ranged from 60 to 88 weeks (all 11 trials were then postponed due to Covid-19).

65. There were six cases in our review where the accused had been remanded in custody and the trial had taken place. The longest period of time that passed between the accused being fully committed and trial was 53 weeks (33 weeks after the 140-day time limit). We reviewed one case where the accused was remanded in custody and the trial had not yet taken place. The time between the accused being fully committed and the trial being scheduled was 49 weeks (29 weeks after the 140-day time limit). This trial was then postponed due to Covid-19.^[22]

66. The delay in cases reaching trial is a concern. Delays may happen for a range of reasons – delays and continuations at the preliminary hearing stage are a factor in some, but not all, cases, while the particular circumstances of the parties involved may also play a role.^[23] For example, in one case we reviewed, the ill-health of the accused resulted in the trial being delayed. However, the cases we reviewed also suggest that securing court time for a trial is an issue. This shows that in trying to reduce the journey time of cases, it is necessary not only to consider efficiencies within COPFS but also the wider criminal justice system.

67. Data published by the Scottish Courts and Tribunals Service (SCTS) illustrates the increasing demands on court time.^[24] The number of indictments registered in the High Court rose 12.4% from 911 in 2018-19 to 1,024 in 2019-20. The increase in the reporting of sexual offences is thought to have contributed to this. At the end of March 2020, 390 High Court trials were scheduled, an increase of 45.5% compared to the same time the previous year. Six per cent of all High Court trials were adjourned due to lack of court time in 2019-20. In 2018-19, 11 trials were adjourned due to lack of court time, rising to 49 in 2019-20. Given that High Court trials were paused in late March 2020 in response to the Covid-19 pandemic, the pre-existing backlog of cases is only going to increase.

68. Any delays in the progress of cases will have a negative impact on the victims and witnesses involved. Delays risk victims and witnesses disengaging from the case, and also risk them losing confidence in the criminal justice system. Delays also put at risk their ability to give their best evidence when the trial finally takes place, and limit their ability to move on from what may well be the most traumatic experience of their lives. Delays also impact the accused, particularly those who have been remanded in custody pending trial. It is therefore imperative that the criminal justice system operates efficiently and effectively, and is resourced appropriately, so that the benefits of improvements made in expediting the investigation and prosecution of cases are not lost due to delays in commencing trials.