HM Inspectorate of Prosecution in Scotland: annual report 2020 to 2021

Foreword

This report outlines the work of HM Inspectorate of Prosecution in Scotland (IPS) between 1 April 2020 and 31 March 2021. It covers a period of change and unprecedented challenge for the criminal justice system and for the delivery of all public services across Scotland.

The year began in lockdown due to the Covid-19 pandemic, with the criminal courts closed to all but essential business. In accordance with public health restrictions, there was an enormous shift to home working. Emergency legislation and guidance were drafted and implemented within weeks, and new approaches were introduced, such as virtual court proceedings. The early response of both the inspectorate and COPFS to the pandemic is described in our Annual Report 2019-20.^[1]

As 2020 progressed and restrictions eased, attention turned to the resumption of court business and how the criminal justice system would recover from the pandemic. While much of the Crown's casework had come to an almost complete stop due to court closures, new cases had continued to accumulate and a significant backlog of cases awaiting trial had developed. The use of remote jury centres across Scotland allowed High Court and Sheriff Court solemn trials to resume. The High Court was operating at pre-Covid trial capacity by November 2020 and the Sheriff Court by February 2021. Due to the winter lockdown however, the majority of summary trials were adjourned in January 2021, only resuming in April.

While 46,159 cases were concluded in 2020-21 due to the commendable efforts of the criminal justice partners, this was almost half the number of cases concluded in 2019-20. By February 2021, the forecasted backlog of High Court trials had risen to over 740 (from 390 in March 2020), Sheriff Court solemn cases had risen to over 2,600 (from around 500) and sheriff summary cases had risen to over 35,000 (from almost 14,000).^[2] Even with innovations such as remote jury centres, it is plain that the backlog will take years to resolve. Delays in cases reaching trial will adversely affect all those involved, including complainers, witnesses and the accused. Moreover, a system operating at maximum capacity will strain the resources and resilience of all affected organisations and their personnel. Ensuring that individuals have sufficient support for their mental and emotional wellbeing will be key, so that they can continue to deliver the high standard of work expected of them.

For COPFS, additional pressure arises from its role in the investigation of deaths in Scotland. In May 2020, a new team – the Covid Deaths Investigation Team – was established to investigate all Covid-related deaths reported to COPFS. By 31 March 2021, the team was managing the reports of 3,160 deaths, almost three quarters of which had occurred in care homes.^[3] By August 2021, this had risen to 4,152 death reports.^[4]

To help meet this demand, the COPFS resource allocation was increased by the Scottish Government from £124.9 million in 2020-21 to £146.8 million in 2021-22. It also received additional capital funding of £0.5 million and will share in £50 million allocated by the government to the criminal justice partners for their Recover, Renew, Transform programme. The additional resource allocated to COPFS is not just to meet the additional demands arising from Covid but reflects, amongst other things, the need for the service to respond to the rise in sexual offences being reported and the increasing need to investigate and prosecute large and complex cases. It also reflects an increase in staffing costs arising from efforts to ensure pay parity between COPFS staff and their government colleagues.

In 2020-21 and continuing throughout 2021, COPFS has rightly been subject to extensive scrutiny and comment in connection with the prosecution of individuals associated with the purchase, administration and sale of Rangers Football Club. Civil actions were taken against the Lord Advocate in his role as head of the system of prosecution in Scotland. Following a decision by the Inner House of the Court of Session that the Lord Advocate is not immune from civil liability at common law in respect of prosecution decisions, admissions of liability for malicious prosecution were made regarding two individuals. In a statement to the Scottish Parliament in February 2021, the Lord Advocate provided details of the admissions, noted that profound departures from normal practices had occurred, and apologised for the serious failure in the system of prosecution and for the consequent cost to the public purse.^[5] He also noted that additional claims in respect of the same prosecution remain live, preventing him from providing further information. The Scottish Government has provided assurance that the settlement of the claims will not affect the operational effectiveness of COPFS as they will not require to be met from the COPFS budget.

I share the public's consternation that individuals were prosecuted without a proper evidential basis, that this has resulted in such significant cost to the public purse and that it risks damaging public confidence in Scotland's prosecution service. I therefore welcome the commitment to hold a transparent and independent, judge-led public inquiry into the prosecution that gave rise to the civil actions. That inquiry will take place once all live legal proceedings have concluded. I also welcome steps already taken by the Lord Advocate and COPFS to identify learning from this case and to take corrective action.

While scrutiny of the case which gave rise to the civil actions is entirely appropriate, the management of the case unfortunately risks detracting from the hard work, commitment and professionalism of prosecutors and support staff who each day contribute to the fair and effective administration of criminal justice in Scotland.

Following nomination by the First Minister and the unanimous approval by the Scottish Parliament, Dorothy Bain QC and Ruth Charteris QC were appointed as Lord Advocate and Solicitor General in 2021. Their appointment marks the first time both positions have been held simultaneously by women. I congratulate the Law Officers on their appointment and look forward to a constructive and productive working relationship. I would like to thank the previous Lord Advocate and Solicitor General for the value they placed on the independent scrutiny provided by the inspectorate and their support of our work.

The inspectorate

In our Annual Report 2019-20, I described our initial response to the pandemic, the development of a contingency plan to allow us to continue to deliver our scrutiny programme while working from home and revisions to that programme in light of public interest in how COPFS was responding to the pandemic.

In 2020-21, IPS published two inspection reports and commenced work on a third. We published a follow-up review of the investigation and prosecution of sexual crime, and a joint inspection of emergency criminal justice provisions used as part of the response to the Covid-19 pandemic. We also commenced an inspection of how COPFS manages criminal allegations against the police. Our work is summarised in this report. Our follow-up work on sexual crime was cited in the Lord Justice Clerk's review of the management of sexual offence cases, published in March 2021.^[6] Our interest in this area will continue in 2021-22, with a review of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 which govern the leading of evidence relating to the sexual history or bad character of complainers. We will continue to build on the joint work undertaken in 2020 by exploring options for joint scrutiny of community justice alongside the Care Inspectorate and HM Inspectorates of Constabulary and Prisons in Scotland.

Throughout 2020-21, the inspectorate's staff worked almost entirely from home in line with restrictions associated with the Covid-19 pandemic. This was facilitated by video conferencing and by all staff having remote, direct access to COPFS systems. While we have adapted well to inspecting remotely and video conferencing undoubtedly offers benefits such as minimising travel time and expense for inspectors and those being inspected, working from home has also presented challenges such as inducting and training new staff some of whom, several months on, have still not had the opportunity to meet their colleagues in person. On the other hand, working remotely has encouraged us to extend our recruitment processes to those working anywhere in Scotland, with the newest addition to our team being based in Inverness.

Other challenges associated with remote working include building relationships with COPFS and stakeholders, particularly as individuals change roles; gathering intelligence about the service outside of a formal inspection; and inspections perhaps taking longer than expected when staff are not co-located at least some of the time. A key component of our inspections is interviewing staff and stakeholders, sometimes about sensitive issues which require quickly establishing rapport with the interviewee, openness and trust. Body language can also be useful in helping the inspector develop a line of questioning. Video conferencing, while convenient and essential during the pandemic, has limitations in this regard. In the future, we look forward to returning to in-person meetings and interviews where possible, albeit they will be augmented by some of the novel approaches we have developed during the pandemic.

I will conclude by thanking the staff of the inspectorate who, like so many others, have shown impressive resilience, dedication and flexibility during a challenging year.

Laura Paton
HM Chief Inspector of Prosecution in Scotland
October 2021