HM Inspectorate of Prosecution in Scotland: annual report 2019 to 2020

Foreword

This report outlines the work of HM Inspectorate of Prosecution in Scotland (IPS) between 1 April 2019 and 31 March 2020. During this period, IPS experienced significant change with both a new Chief Inspector and Assistant Inspector of Prosecution taking up post. My predecessor, Michelle Macleod, was in post until August 2019 and my own appointment took effect on 15 November 2019. As a result, IPS was without a Chief Inspector for a period of three months, and I would like to pay tribute to the work of the inspectorate’s staff during this time. Shortly after my appointment, IPS published its Annual Report 2018-19 covering Ms Macleod’s last full year in office and in which we paid tribute to her contribution during her six-year tenure.^[1] 

In recent years, the inspectorate’s annual report has tended to be published in the December following the conclusion of the annual reporting period. In future, it is my intention that publication of our annual report is brought forward so that it follows on more closely from the period to which it relates. 

Upon being appointed Chief Inspector of Prosecution in Scotland, I noted that I intended to continue the inspectorate’s practice of producing thorough, evidence-based assessments of the service provided by the Crown Office and Procurator Fiscal Service (COPFS), with a view to supporting continuous improvement in its delivery. By providing independent scrutiny, I believe IPS plays a key role in supporting an effective criminal justice system and promoting positive outcomes for the public in Scotland. 

In 2019-20, IPS published a thematic review of the investigation and prosecution of sheriff solemn cases and a follow-up review of fatal accident inquiries. We also undertook some work regarding the extent to which appropriate mental health information is available to prosecutors when making key decisions in relation to young people reported from custody. We commenced a follow-up inspection of the investigation and prosecution of sexual crime, which was published in August 2020. All of this inspection activity is summarised in this report. 

Perhaps most significantly, in early 2020 we began to consider the impact of the emerging global pandemic. In anticipation of the lockdown imposed in March 2020, we developed a contingency plan which would allow the inspectorate’s staff to continue to deliver our inspection programme while working from home. When lockdown began, we were shortly due to commence qualitative fieldwork, including interviews and focus groups with COPFS staff and stakeholders, in support of our follow-up review of the investigation and prosecution of sexual crime. We suspended what would have been face-to-face fieldwork and completed our inspection by analysing documents and data from COPFS, reviewing 50 High Court sexual crime case files and by interviewing a smaller number of staff and stakeholders via telephone and video conferencing. This allowed us to adhere to public health guidelines while continuing to deliver our scrutiny function and while minimising our scrutiny footprint at a time when COPFS was developing its response to the pandemic. 

More broadly, we began to consider the impact of the pandemic and the lockdown on COPFS and the criminal justice system, as well as how IPS could best fulfil its statutory role in a meaningful way, taking into account both the pressures facing COPFS and its staff, and the public interest in how the service was responding to the pandemic. We reassessed our planned inspection programme and developed alternative options for scrutiny. Following discussions with the Lord Advocate, Solicitor General and Crown Agent, this led to us adapting our 2020-21 programme to include an inspection of the use and impact of key emergency criminal justice provisions introduced in response to the pandemic. 

Upon my appointment, I had been keen to develop our approach to joint inspection, collaborating with other independent scrutiny bodies to provide a broader view of key criminal justice issues. Just as we expect those delivering criminal justice services to work in a coordinated away, so too should scrutiny bodies. I am therefore pleased to report that our inspection of the emergency criminal justice provisions was carried out jointly with HM Inspectorate of Constabulary in Scotland, allowing us to consider the provisions from both a prosecution and policing perspective.^[2] Published in September 2020, this work will be addressed in more detail in the inspectorate’s next annual report. In the year ahead, I intend to continue to explore opportunities for joint work that will support improvement across the criminal justice system. To that end, I meet regularly with leaders of other criminal justice scrutiny bodies and participate in the Strategic Scrutiny Group, led by the Accounts Commission. 

The Covid-19 pandemic has had an extraordinary impact on the criminal justice system, as it has for other areas of public service delivery. Responding to the pandemic has required remarkable efforts from those working across the system to be adaptable, innovative and to work at pace to maintain the integrity of the system and to continue to protect the public.

The Crown’s Corporate Resilience Group led the service’s response to the pandemic, ensuring that contingency planning was based on the latest assessment of risk and maintaining service delivery while also protecting the health and wellbeing of staff. Plans to update the Crown’s digital infrastructure later in 2020 were brought forward to March, facilitating a massive shift to home working which had not previously been the norm. This included the distribution of more than 1,500 laptops and several hundred mobile phones during the early stages of lockdown and, later, the rollout of secure video conferencing facilities to all staff. 

COPFS also dealt with significant legal and policy changes in response to the pandemic and had to operationalise these changes in quick-time. This has included drafting guidance and re-engineering processes to meet new requirements. Working practices which had previously been paper-based were digitised. The scale and pace of the changes required to maintain service delivery have been a significant challenge. I commend the staff of COPFS for their commitment, flexibility and creativity in responding to that challenge. 

The criminal courts closed to all but essential business in March 2020 and jury trials were suspended. During this time, COPFS continued to process newly reported cases as well as those already in the system. While some proceedings resumed as restrictions eased, by August 2020, the backlog of High Court and Sheriff and Jury cases was 750 and 1,800 respectively, and the backlog of summary cases was 26,000.^[3] The backlog continues to grow as, while police recorded crime and the number of cases reported to the procurator fiscal initially fell during the lockdown period, they were returning to almost pre-pandemic levels from May 2020. Modelling has shown that it may be several years before the backlogs are addressed. This will have significant consequences for victims, witnesses and the accused in cases awaiting trial and risks damaging public confidence in the criminal justice system. It will also have significant consequences for the work of COPFS for some time to come. A key issue will be the ability and capacity of the service to maintain a high standard of communication and engagement with victims and witnesses in newly reported cases as well as those who have been awaiting the conclusion of their cases for a prolonged period of time. 

There will be further significant demand on the resources of COPFS in relation to its role in the investigation of deaths in Scotland. While ordinarily any deaths occurring due to infectious disease must be reported to COPFS, at the outset of the pandemic, the Lord Advocate issued a direction that until 31 July 2020, Covid-19 or presumed Covid-19 deaths did not require to be reported unless there was some other substantive reason for reporting the death. This direction was consistent with the approach taken in response to other significant outbreaks of infectious disease. In May, the Lord Advocate directed that deaths where the deceased may have contracted the virus in the course of their employment or occupation, and deaths where the deceased was resident in a care home when the virus was contracted, should be reported to the Crown. A dedicated unit has been established within COPFS to investigate such deaths and there will understandably be significant public interest in the outcome of those investigations. 

As well as responding to the pandemic, COPFS continues to face other, ongoing challenges. These include an increase in reports of serious sexual offending and major crime, both of which require expert resource to investigate and prosecute appropriately. COPFS must also deal with an increased volume and complexity of evidence across all its casework as a consequence of the expanded use of social media and electronic communication. Had it not been for the pandemic, COPFS would arguably have been better placed to meet those challenges than ever before having secured additional resource to better meet demand and having been able to increase its number of staff to its highest ever level.  

While such investment is welcome, further support will be required to help COPFS meet the significant, additional challenges resulting from the pandemic. Moreover, COPFS is one component in a wider criminal justice system and it is essential that the system in its entirety works effectively - this includes policing, prosecution, defence, courts, prisons, criminal justice social work and the voluntary sector. Improvements and investment in one area will not produce the desired outcome if not matched system-wide. As we noted in our follow-up review of the investigation and prosecution of sexual crime, for example, while COPFS can strive to cut the journey time of cases, the full benefits of its efforts will not be realised if court time is not available for those cases to proceed timeously to trial.

In recent months, COPFS and its criminal justice partners have moved from a state of crisis management in response to the pandemic to focusing on the recovery of the criminal justice system. While the pandemic has brought uncertainty, risk and numerous challenges, it has also brought opportunity. The pandemic has acted as a catalyst or accelerator for much needed modernisation of the system. In the months ahead, IPS will continue to monitor the progress being made and to identify opportunities where independent scrutiny can support improvement in service delivery. 

Laura Paton 

HM Chief Inspector of Prosecution in Scotland 

December 2020