Investigation and prosecution of sexual crime: follow-up review

Part 3: The impact of Covid-19

152. On 17 March 2020, in response to the Covid-19 pandemic, the SCTS suspended jury trials.^[36] In a discussion paper on Covid-19 and jury trials published in April 2020, the Scottish Government noted that Scotland's justice system relies heavily on physical attendance at court and on physical evidence and that, until it is safe to convene a jury, there would be no solemn trials in Scotland.^[37] The government said the existing backlog of 390 High Court trials would very quickly increase and estimated that for each five-month period in which solemn trials could not take place, there would be an additional backlog of 250 High Court trials. The government noted emergency measures it had taken in the Coronavirus (Scotland) Act 2020 to extend time limits for criminal proceedings and outlined various options to help manage the impact that Covid-19 was having on court business. Concerns about the impact of the delay on victims, witnesses and accused persons were widespread. A working group was established by the Lord Justice General in May 2020 to consider the practicalities of recommencing trials by jury as and when public health guidelines would allow. This group, chaired by the Lord Justice Clerk, later announced that two physically distanced jury trials would take place in July 2020.^[38]

153. In July 2020, shortly before publication of this report, we revisited the cases in our sample which were still ongoing to identify how they had been affected by the Covid-19 pandemic. Of our 50 cases, 22 were still ongoing. When we concluded our initial analysis of the cases in March 2020:

• in one case, an initial decision was still awaited on what action was to be taken^[39]
• in two cases the trial had taken place and the accused had been convicted but sentencing had not occurred
• three cases had not yet been indicted
• 16 cases had been indicted and were awaiting trial.

154. By July 2020, an initial decision was still outstanding in the first case. In one of the cases where the accused had been convicted, the sentencing diet was initially delayed but went ahead in May 2020. This shows that some criminal proceedings were able to continue during the lockdown period. However, in the second case, the sentencing diet had so far been adjourned twice.

155. COPFS continued to investigate and prepare the three cases that had not yet been indicted. One of these cases was concluded during lockdown with no further action being taken.

Post-indictment cases

156. The 16 post-indictment cases in our review that were still ongoing at March 2020 involved 51 victims, of whom 14 were children under the age of 18. Three of the cases involved child witnesses while one involved a vulnerable older witness. All of the victims were deemed vulnerable because of the nature of the offences, while the child victims and witnesses would also have been deemed vulnerable due to their age. In more than half of the cases, there were victims with additional vulnerabilities such as autism or mental or physical health issues.

157. In two cases, the accused was a child at the time the case was indicted. In three cases, the accused had significant vulnerabilities. When we revisited the cases in our review in July 2020, in two cases, the accused was remanded in custody and would be so for 229 and 190 days respectively until their case was next due to call, unless either successfully applied for bail. In one case, there was a note on the record that the accused had been suspended from work pending the outcome of the case because of the nature of the charges. This was likely to also be the case for another accused, given the nature of his work and the charge.

158. In 15 of the 16 post-indictment cases, the main charge was rape – this included rape under section 1 of the Sexual Offences (Scotland) Act 2009 (11 cases), rape of a young child under section 18 of the 2009 Act (two cases) and the common law crime of rape (two cases). In one case, the main charge was the common law crime of lewd and libidinous practices.

159. Some of the 16 cases had already been subject to delay prior to Covid-19, and this delay has been exacerbated by the pandemic and the suspension of jury trials. Delay may have a serious impact on the parties involved in the case, as noted in the Scottish Government's discussion paper:

• For victims of the most serious crimes, and their families, there is the distress and uncertainty of waiting for an extended period for their case to be resolved. This may be particularly acute for children, for whom the length of delay can represent a significant proportion of their life so far.
• For vulnerable witnesses, there is the ongoing trauma involved when there is a delay in giving evidence. Delay may have an adverse impact on the willingness of victims of crime to continue to engage with the criminal justice process, an issue already of much concern in the context of sexual crime cases.
• For people accused of serious crimes, there is the uncertainty of awaiting justice. Accused persons on bail have a criminal charge hanging over them, and may be subject to conditions of bail for an extended period of time. Due to the nature of the charges in sexual crime cases, their livelihood may be at risk or lost.
• For those people accused of crime who are remanded in prison, the negative implications are especially acute. Without the ability for cases to progress to trial, an accused person could be remanded for an extended period with no certainty about when their case will come to trial. Imprisonment during the Covid-19 pandemic is likely to be even more acutely felt, given the lack of face-to-face contact with family and the restricted prison regime.

160. In the 16 ongoing cases, most have experienced adjourned preliminary hearings or trials as a result of the Covid-19 pandemic and the suspension of jury trials. In only one of the cases could we identify that there had been no Covid-related delay so far. This was because the preliminary hearing had taken place in February 2020 and the trial scheduled for August 2020 – at the time we revisited the cases, the need to adjourn the trial had not yet arisen although that appears a likely outcome.

161. Essential to the wellbeing of victims and their continued engagement in criminal proceedings is effective communication from COPFS about the status of their case, as well as support from various public sector and voluntary agencies. However, we could not find a record in all cases of victims and witnesses having been updated about the impact of the Covid-19 pandemic on their case. One victim who had been contacted said that she wanted the case 'over and done'. Another said she was 'upset and disappointed' by the delay. Regardless of the preference around frequency of contact expressed by the victim when the victim strategy was carried out, all victims are likely to be concerned about the impact of Covid-19 on their case, particularly in light of the extensive media coverage given to the suspension of jury trials. We recognise that during the early lockdown period, VIA staff will have faced significant challenges in delivering their service as they switched to working from home and developed new working practices. It is our view that contact should be made with all victims in post-indictment sexual crime cases to provide them with an update about the status of their case and the impact of Covid-19 on the justice system, even if the exact impact of Covid-19 delays on their individual case is not yet known. Since we revisited the post-indictment cases, COPFS has advised that all victims will be updated in line with the preference each expressed when their victim strategy was carried out, and a letter will also be sent to all victims regarding the impact of Covid-19.

162. Table 2 shows the time that had passed between key milestones in the journey of each case through the criminal justice process and the next scheduled calling of the case. It should be borne in mind that the next scheduled calling may not result in the timely resumption of the case and, given the larger backlog of which our 16 cases are only a small proportion, they may be continued again. At the time we revisited the cases, the next scheduled calling dates all fell within July, August and September 2020. The days passed cited in the table are therefore likely to be a minimum journey time.

163. In one case, the accused, victims and a witness are children. The case is not due to be called for an adjourned preliminary hearing until almost two years after the police reported the incident to COPFS. There is a risk that further delay will occur before the trial takes place. This case had already experienced delays prior to being indicted, which have now been exacerbated by Covid-19. Meanwhile, the children involved are at risk of being re-traumatised by delays in the criminal justice process and the quality of their evidence may diminish over time. We welcome efforts being made by COPFS to review cases with victims and witnesses who would benefit from giving their evidence via Evidence by Commissioner hearings. These hearings were able to recommence in June 2020. This will help to lessen the impact of delays on victims and witnesses.

164. This illustrates the significant impact of Covid-19 on the criminal justice system and particularly the victims, witnesses and accused involved in ongoing cases. The inspectorate welcomes efforts to resume jury trials and to prioritise cases involving those remanded in custody; vulnerable victims and witnesses – particularly children and those at risk from disengaging in the process; young accused; and those cases that have already experienced delay prior to Covid-19. Given the widespread vulnerabilities of those involved in serious sexual crime cases, such prioritisation is a significant challenge.