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

Our inspection activity

14. In 2020-21, we published two inspection reports – our Follow-up review of the investigation and prosecution of sexual crime and our Joint inspection of emergency criminal justice provisions. We also commenced an inspection of how COPFS manages criminal allegations against the police.

15. 2020-21 was another year of change for the inspectorate. Vacancies in our specialist legal inspector roles affected our planned inspection programme to some extent, however the most significant impact on our work was the Covid-19 pandemic. In Spring 2020, we reviewed our planned inspection programme and developed alternative options for scrutiny, taking into account the pressures facing COPFS and the public interest in how the service was responding to the pandemic. Following discussions with the Law Officers, this led to our inspection of criminal allegations against the police being postponed until later in the year and the inclusion in our 2020-21 programme of an inspection of key emergency criminal justice provisions introduced in response to the pandemic.

Follow-up review of the investigation and prosecution of sexual crime

16. Published in August 2020,^[7] this follow-up review assessed the progress made by COPFS in relation to the 12 recommendations in our 2017 inspection of the investigation and prosecution of sexual crime in the High Court. 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.

17. In our follow-up review, we noted that considerable progress had been made in implementing our previous recommendations. Eight recommendations had been achieved, three were in progress and one was no longer relevant given changes to working practices. We noted that the 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, however, our follow-up review found that delays still occur and there is still scope for improving communication with victims. We made three new recommendations, all designed to further improve communication with and support for victims.

18. While completed and published in August 2020, the follow-up review commenced in 2019-20 and its findings are addressed in more detail in our annual report for that year.

Joint inspection of emergency criminal justice provisions

19. In 2020, IPS carried out a joint inspection, with HM Inspectorate of Constabulary in Scotland (HMICS), to assess the use and impact of key emergency criminal justice provisions introduced in response to the Covid-19 pandemic. The inspection report, published in September 2020,^[8] also considered whether any aspects of the emergency provisions could result in more efficient and effective ways of working in the longer term.

20. In 2020, a range of emergency provisions were made to enable the criminal justice system to continue to operate during the initial response to the pandemic. Our inspection focused on four of these and, working with HMICS, we were able to consider them from both a prosecution and a policing perspective. Three of the provisions were legislative^[9] and one was a change in policy. The four measures we assessed were:

• Electronic signature and electronic transmission of documents
• Remote, electronic attendance of parties at court
• The ability to take a case beginning with an appearance from custody in any sheriff court ('national jurisdiction')
• The Lord Advocate's Guidelines on liberation by the police during Covid-19.

21. The inspection involved us gathering information about the emergency criminal justice provisions from a range of sources during August and September 2020. This included seeking the views of those working in the criminal justice system via an online survey which received 479 responses, the largest survey ever undertaken by IPS. We also carried out more than 60 interviews with criminal justice professionals. While most worked for either COPFS or Police Scotland, we also interviewed Sheriffs Principal and defence agents, and staff working for the Scottish Courts and Tribunals Service, the Scottish Prison Service, GeoAmey and other stakeholders. We observed virtual summary trials and carried out on-site visits to police custody centres and Glasgow Sheriff Court to observe the operation of virtual custody courts. During these visits, we were able to speak to numerous staff about the emergency provisions as well as accused persons who had appeared at court virtually. Interviews and visits were carried out by two inspectors – one from IPS and one from HMICS so that all issues raised were viewed from both a prosecution and policing perspective.

22. In our report, we noted the extraordinary impact the pandemic had on the criminal justice system as well as the remarkable efforts required 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. Criminal justice professionals were required to operationalise law and policy changes in quick time, and re-engineer processes to meet new requirements. Working across criminal justice agencies was essential and we welcomed the collaborative approach that had been taken and, in particular, the effective partnership working between COPFS and Police Scotland.

23. We also noted that while the pandemic had brought uncertainty, risk and numerous challenges, it had also brought opportunity. Many of the innovations introduced in response to the pandemic were ones considered to be overdue as, until Covid-19, the justice system generally relied on face-to-face interactions and paper-based processes. As one respondent to our survey said, 'It shouldn't take a global pandemic to force the criminal justice system into the 21^st century'.

24. Generally, we found that the emergency provisions had proved particularly beneficial during the initial lockdown period and would continue to have value during the recovery period (and any subsequent lockdowns). We found there would be merit in considering which of the provisions should be retained in the long term:

• We found general support for retaining provisions relating to the use of electronic signatures and electronic transmission of documents. Most believed that they resulted in more efficient and effective ways of working, saved time and money and, by reducing an outdated reliance on moving hard copy papers between organisations, were more environmentally friendly.
• We found more mixed views on whether the emergency provision relating to remote, electronic appearance of parties at court should be retained. Some thought virtual proceedings were only appropriate in an emergency situation, while others were in favour of retaining and extending the use of virtual justice. Others had more nuanced views according to the type of court proceedings, and there was some support for hybrid models.
• At the time of our inspection, the emergency provision creating the ability to take a case beginning with an appearance from police custody in any sheriff court had been little used. We considered, however, that there were circumstances in which it could be useful.
• We found that the revised Lord Advocate's Guidelines on liberation by the police during Covid-19 had positively influenced custody decision making. We noted that efforts were being made to sustain the required cultural change in decisions about whether to release from custody or hold for court, and to safeguard the presumption of liberty while managing risks to communities and individuals.

Inspection of the management by COPFS of criminal allegations against the police

25. In 2020-21, we commenced an inspection of the management of criminal allegations against the police. Terms of reference for this work were published in February 2021,^[10] and a report of the inspection was published in September 2021.^[11] The aim of the inspection was to assess the management of criminal allegations against the police by COPFS with a view to providing assurance to the Lord Advocate, the public and other stakeholders that such cases are dealt with effectively and efficiently. The inspection was intended to complement a broader review of police complaints handling in Scotland carried out by Dame Elish Angiolini, the final report of which was published in November 2020.^[12]

26. All criminal allegations against the police are reported to COPFS. COPFS is able to independently oversee and direct the investigation into criminal allegations, before making a decision as to whether the person complained about should be prosecuted. COPFS has separate processes for dealing with criminal allegations against the police depending on whether the alleged criminal conduct was committed while on duty or while off duty. We reviewed how COPFS manages both types of allegation.

27. Overall, we concluded that the quality of decision making by COPFS is good and that the public should be reassured by the robust scrutiny which is applied to on duty criminal allegations against the police. There is scope for improvement, however. There is a need for greater clarity about how on and off duty allegations should be managed among those agencies that report allegations to COPFS and among its own staff. Reporting agencies and COPFS can also make improvements to their processes, to ensure that COPFS is able to properly fulfil its role in independently overseeing and directing investigations. There is work to be done to ensure that decisions on whether criminal allegations should result in a prosecution are made timeously, and are communicated effectively to complainers and those complained about. We made 18 recommendations for improvement.

Inspection programme 2021-22

28. Our inspection programme for 2021-22 includes:

• An inspection of the management by COPFS of criminal allegations against the police
  As noted above, IPS commenced an inspection of how COPFS manages criminal allegations against the police in 2020-21. Work on this inspection continued until its publication in September 2021.^[13]

• 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,^[14] IPS will assess COPFS practice in this area. Initial exploratory work was carried out in late 2020. This identified difficulties in identifying cases in which applications under section 275 had been made and which would be suitable for review by IPS. As a result, IPS liaised with COPFS to establish a process to manually record all such applications between 1 January 2021 and 30 June 2021. This information will be used by IPS to further scope and plan our inspection activity and to identify a sample of applications for review. This work commenced in September 2021.

29. In addition to the scrutiny activity listed above, throughout 2020-21 IPS has engaged with our scrutiny partners to explore issues which would benefit from a joint approach. The exact scope and timing of any future joint work is yet to be finalised but is likely to include:

• The management of cases reported from custody
  When a person is arrested and kept in police custody after being charged with an offence, they must, wherever practicable, be brought before a court by the end of the next court day. In such cases, the police are required to submit a report to COPFS and prosecutors are required to mark the case within a very short period of time. Working with HMICS, we are considering a joint review of how custody cases are managed both by the police and by COPFS. Of particular interest is whether prosecutors are supported, through the provision of adequate and timely information, to make the most appropriate decisions.

• Community justice
  Working with the Care Inspectorate, HMICS and HM Inspectorate of Prisons for Scotland, we are exploring joint scrutiny of community justice and the extent to which national outcomes and priorities are being delivered. While community justice encompasses a broad range of interventions at various points in the criminal justice process, the interest of IPS is primarily in the use of diversion from prosecution.