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

Our inspection activity 

14. In 2019-20, we published two inspection reports – our Thematic Review of the Investigation and Prosecution of Sheriff Solemn Cases and our Follow-up Review of Fatal Accident Inquiries. At the request of the Lord Advocate, 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 being reported from police custody.

15. In 2019-20, we also commenced a follow-up inspection of our Thematic Review of the Investigation and Prosecution of Sexual Crime. 

16. 2019-20 was a year of change for the inspectorate. Staffing changes mid-year, as well as a three-month period in which no Chief Inspector was in post, curtailed to some extent our inspection programme. During this time, however, the inspectorate’s staff continued to scope and plan future inspection activity. 

Thematic Review of the Investigation and Prosecution of Sheriff Solemn Cases

17. Published in July 2019,^[4]this inspection assessed the effectiveness and impact of reforms arising from Sheriff Principal Bowen’s Independent Review of Sheriff and Jury Procedure and subsequent legislative reforms, and considered the current operation of solemn cases in the sheriff court. The inspection resulted in seven recommendations, all of which were accepted.  

18. The inspection commenced in 2018-19 and its findings are addressed in more detail in our annual report for that year.^[5]  

Follow-up Review of Fatal Accident Inquiries

19. Published in August 2019,^[6] this review assessed progress made against recommendations from our 2016 Thematic Review of Fatal Accident Inquiries.^[7] We found that five of our recommendations had been achieved, four were in progress, two had been superseded by the Fatal Accident Inquiry Rules and one was not achieved. Given that almost three years had passed since the initial thematic review, the lack of progress in several areas was concerning. We also made three new recommendations and indicated our intention to carry out a further follow-up review. 

20. While not published until August 2019, this review had commenced in 2018-19 and its findings are addressed in more detail in our annual report for that year.  

Young people reported in custody – mental health information

21. In April 2019, the Lord Advocate requested that IPS examine the extent to which appropriate mental health information is available to prosecutors when making key decisions in relation to young people being reported by the police in custody. He also asked IPS to examine the merits of prioritising the investigation following the death in custody of a young person. The second aspect of the Lord Advocate’s request was addressed in our follow-up review of Fatal Accident Inquiries, in which we recommended that the Crown’s Scottish Fatalities Investigation Unit should prioritise the Fatal Accident Inquiry of any young person held in legal custody.^[8] 

22. In taking forward the first aspect of the Lord Advocate’s request, IPS revisited cases involving young people that we had examined in two previous inspections. These included:  

• seven cases involving young people under the age of 21 who had died in prison between 2013 and 2018, which were considered during our follow-up review of Fatal Accident Inquiries  
• 17 cases involving children aged 16 or 17 who had been reported in police custody and which had previously been considered during our review of the prosecution of young people, published in late 2018.  

23. We examined these 23 cases to determine what information was available to prosecutors when key decisions were being made. The main source of the information is the Standard Police Report (SPR), sent by the police to COPFS. For some accused, information may also be available from other criminal justice partners.

24. Our report was submitted to the Lord Advocate but was not published as it noted details relating to the personal circumstances of the young people, including their mental health and other vulnerabilities. While our detailed findings were not published to preserve the privacy of the young people whose cases we reviewed and to avoid identifying information being made public, the key theme arising from our examination of the cases was that SPRs were too often not completed with sufficient information about the young person’s mental health and other vulnerabilities. This risked the prosecutor not making the most appropriate prosecutorial decision, taking into account all the circumstances of the case and the accused. In some cases, however, the SPRs did include relevant information, although we noted variations in its quality and quantity, suggesting that greater consistency in the completion of SPRs is needed. 

25. We understand that work is ongoing between COPFS and Police Scotland to address the content and quality of SPRs, which we welcome. We intend to revisit this issue in future inspection activity. 

Follow-up Review of the Investigation and Prosecution of Sexual Crime

26. In 2017, IPS published a review of the investigation and prosecution of sexual crime in the High Court by COPFS.^[9] That review resulted in 12 recommendations designed to support continuous improvement in the investigation and prosecution of sexual crime. 

27. We found there to be a well-defined governance structure within COPFS for the investigation and prosecution of serious sexual crime, with roles and responsibilities being clearly set out. However, we were concerned about the length of time taken to investigate and prosecute sexual crime cases, particularly those subject to pre-petition investigation, and we identified opportunities to reduce the journey time of cases. We were also concerned at the number of victims that disengaged at various stages throughout the investigation and prosecution process. This suggested that more could be done to provide the necessary information and support to victims. We found there 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. 

28. Six of the 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). 

29. In our follow-up review, published in August 2020, we assessed progress made by COPFS in implementing the 12 recommendations.^[10] Overall, we noted considerable progress had been made. 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. Despite this progress, our follow-up review found that delays still occur and there is still scope for improving communication with victims. We made three new recommendations: 

Recommendation 1

COPFS should ensure that the victim strategy is initiated within a reasonable time in all cases, regardless of their procedural history and status. 

Recommendation 2

COPFS should work with the police to ensure that processes for communicating with victims and witnesses who are looked after children take account of their individual circumstances and needs. 

Recommendation 3

COPFS should work with Police Scotland to ensure that a police victim strategy is submitted in all appropriate cases and in accordance with agreed timescales. 

30. To help assess progress against the 12 recommendations from our 2017 review, we reviewed a random sample of 50 High Court sexual crime cases reported to COPFS between 1 September 2018 and 28 February 2019. For the purpose of assessing the extent to which our recommendations had been implemented, the progression of the cases was assessed until March 2020. However, we also revisited the cases in July 2020, shortly before publication of the report, to assess the impact of the Covid-19 pandemic. In short, the suspension of jury trials as part of the initial response to the pandemic resulted in significant delays to cases that were ready for trial. We noted the serious impact that delays have on victims, witnesses and the accused. 

Inspection programme 2020-21

31. Our inspection programme for 2020-21 includes the scrutiny activity listed below. Any additional areas for inspection will be selected in consultation with the Lord Advocate and relevant stakeholders. 

• A follow-up review of the investigation and prosecution of sexual crime 
  As noted above, IPS commenced our follow-up review of the investigation and prosecution of sexual crime in 2019-20. Work on this review continued until its publication in August 2020. 

• A joint inspection of emergency criminal justice provisions 
  Working with HM Inspectorate of Constabulary in Scotland, we assessed the use and impact of key emergency criminal justice provisions introduced in response to the Covid-19 pandemic, and considered whether any aspects of the emergency provisions could result in more efficient and effective ways of working in the longer term.^[11] 

• An inspection of the management of criminal allegations against the police by COPFS 
  The investigation and prosecution of criminal allegations against police officers is one of the key functions of COPFS. In June 2018, Dame Elish Angiolini was asked by the Cabinet Secretary for Justice and the Lord Advocate to conduct an independent review of complaints against the police in Scotland. Her review focused primarily on the role of Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner. The role of the Lord Advocate and COPFS in the investigation of criminal allegations against the police was excluded from the review’s terms of reference. Following the publication of her final report in November 2020, IPS will assess how criminal allegations against the police are managed by COPFS. 

• An inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 
  Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 regulate the use of evidence relating to sexual history and bad character in sexual offence trials. Following discussions with the Lord Advocate and the publication of a report by the Equality and Human Rights Commission on the use of the provisions,^[12] IPS will assess COPFS practice in this area. The exact scope and timing of the inspection is to be determined but initial exploratory work commenced in October 2020. 

32. Our inspection programme is kept under review and altered as necessary to respond to any new challenges or developments which provide identifiable risks for COPFS and the wider criminal justice system. For example, follow-up reviews on Fatal Accident Inquiries and Victims’ Right of Review initially planned for 2020-21 were postponed to accommodate our joint inspection of emergency criminal justice provisions, an area of significant public interest.