HM Inspectorate of Prosecution in Scotland: annual report 2021 to 2022

Foreword

This report sets out the work of HM Inspectorate of Prosecution in Scotland (IPS) between 1 April 2021 and 31 March 2022. During this period, the criminal justice system continued with its response to and recovery from the Covid-19 pandemic. Despite this being a further year of uncertainty, change and challenge, the Crown Office and Procurator Fiscal Service (COPFS) continued to fulfil its purpose of securing justice for the people of Scotland through the investigation and prosecution of crime and the investigation of deaths.

COPFS was assisted in its efforts by an increase in its resource allocation from 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 a share of £50 million allocated by the government to criminal justice organisations for their Recover, Renew, Transform programme. For 2022-23, the resource allocation for COPFS was further increased to £169.8 million, with additional funding provided in-year to support, for example, the investigation of Covid-related deaths.

The additional resource allocated to COPFS was not just to meet the additional demands arising from Covid, but also reflected the changes in the profile and complexity of its casework and an increase in staffing costs as a result of efforts to ensure pay parity between COPFS staff and their government colleagues. Increasing resource allocations in recent years have also reflected an acknowledgement that for some time COPFS had been underfunded.

While the recent, significant increases in funding have been welcome, I share concerns expressed by COPFS itself and other justice sector organisations about the impact of the Resource Spending Review in May 2022. This review proposed a flat cash settlement for COPFS and other parts of the justice system, with COPFS being allocated £170 million in 2023-24 and in each of the three subsequent years. While budget negotiations for 2023-24 and beyond will continue, it is of some concern that this flat cash settlement was proposed in May 2022, prior to the financial situation deteriorating even further and with the cost of living crisis becoming increasingly acute and inflation continuing to rise.

I echo the warnings of others that the proposed flat cash settlement risks impeding the justice system's recovery from Covid, increasing delays across the system with the consequent impact on victims, witnesses, next of kin and the accused. It also risks limiting the ability of COPFS to sustain progress it has made in recent years as well as to further improve its service. In short, there is a real risk that, despite best efforts, the aspirations for a person-centred, trauma-informed justice system as set out in the government's Vision for Justice in Scotland would be just that – aspirations, rather than the transformative change that is needed.

The inspectorate

In 2021-22, we published an inspection of how COPFS manages criminal allegations against the police. Overall, we concluded that the quality of decision making by COPFS in such cases is good, and that the public should be reassured by the robust scrutiny which is applied to on duty criminal allegations against the police. However, we also found there to be scope for improvement in how such allegations are managed and made 18 recommendations. For example, 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 also highlighted the need for greater transparency in the handling of criminal allegations against the police by COPFS and we hope that the publication of our report helped in this regard.

In 2021-22, we also began two new inspections. The first was an inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, provisions which regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials. The report of this inspection was published in October 2022 and continues the focus the inspectorate has had in recent years on how COPFS investigates and prosecutes serious sexual crime. This focus has been merited given the sensitive and expert handling that such cases require, and the resources COPFS must allocate to ensure they are managed well. Sexual crime makes up almost 70% of High Court cases. While all police recorded crime in Scotland fell by 4% in 2021-22 compared to the previous year, sexual crime increased by 15%. Sexual crime is at the highest level seen since 1971, the first year for which comparable data is available.^[1] The frequency with which sexual crime continues to be reported to the police indicates it will continue to form a significant part of the Crown's casework for years to come. I therefore welcome a review of how prosecutors deal with reports of sexual offences commissioned by the Lord Advocate and led by Susanne Tanner KC.

The second inspection we began in 2021-22 was a joint review of diversion from prosecution. Working alongside our scrutiny partners, HM Inspectorates of Constabulary and Prisons and the Care Inspectorate, we are assessing the operation and impact of diversion from prosecution in Scotland. Work on this review is ongoing. It is already clear, however, that a joint approach to this review has been hugely beneficial and has allowed us to track cases through the diversion process, from when the police submit a report to COPFS, to the decision by COPFS to divert and refer the accused to justice social work, and to the diversion intervention delivered by justice social work.

In our Annual Report 2019-2020, we highlighted 11 recurring themes arising from our inspections of a range of topics and business areas within COPFS since 2013.^[2] We thought it useful to highlight these themes to COPFS so that it is aware of the issues which appear to cause particular challenges and where its own self-assessment and internal improvement activity could helpfully be targeted. More recent inspections, as well as our ongoing scrutiny activity, suggest that these themes continue to be areas in which improvement is required and to which COPFS should direct its attention. Examples of some of the previously highlighted themes that recurred, yet again, in our recent scrutiny activity include:

• The need for communication with complainers, witnesses and others to be understandable, appropriate and timely.
• The need to reduce delays in the progress of cases.
• The need to improve IT systems and processes to help improve efficiency.
• The need to update guidance to staff following changes to policy and procedures and to provide them with appropriate training.
• The need to improve the approach to performance management and to use data more effectively.
• The need to improve record keeping, to ensure key decisions about a case are recorded and that staff have access to all relevant case documents.

In 2021-22, the inspectorate also began work on a Strategic Plan for 2022-25. This plan reflects our commitment to our own continuous improvement. We reviewed what we do well and where we can develop and improve our approach to scrutiny. We also refreshed our vision and values, and identified five strategic objectives which will guide us over the next three years.

In reviewing our own work, we considered that our current staffing model may not best meet the needs of an independent, resilient organisation with capacity to respond to emerging issues as they arise. Our initial plan, to increase our permanent inspection resource in order to boost our capacity, increase our resilience and rebalance the mix of permanent and seconded staff, may no longer be achievable due to the current financial climate. Over the life of our Strategic Plan, we will be working to resolve any weaknesses in our staffing model while acknowledging that this can currently only be done within the budgetary and recruitment constraints placed upon us by the Scottish Government.

Prosecutors, support staff and other professionals across the criminal justice system have demonstrated admirable commitment to delivering a vital public service during the pandemic and in the current recovery phase. I pay tribute to their efforts and their resilience, and thank all of those who facilitated and contributed to our inspection activity over the year. I also thank the inspectorate's own staff for their continued support and assistance.

Laura Paton

HM Chief Inspector of Prosecution in Scotland

November 2022