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

Our inspection activity

19. In 2021-22, we published the report of an inspection of the management by COPFS of criminal allegations against the police. We also commenced two inspections: the first was an inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995; and the second was a joint review of diversion from prosecution.

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

20. In 2021, IPS inspected how COPFS manages criminal allegations against the police. Terms of reference for the inspection were published in February 2021^[3] and the final inspection report was published in September 2021.^[4] 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.^[5]

21. The inspection was timely given that criminal allegations against the police have been the subject of much media and public interest in recent years. The privileged place that the police occupy in our society and the powers they exercise on behalf of the state mean it is essential that allegations are investigated thoroughly and independently, and in a manner that maintains public confidence in the criminal justice system.

22. In Scotland, 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 off duty. We reviewed how COPFS manages both types of allegation.

23. In support of our inspection, we interviewed almost 40 COPFS personnel involved in the investigation and prosecution of criminal allegations against the police. We also engaged with a wide range of stakeholders and partner organisations, including Police Scotland, the Scottish Police Authority, the Police Investigations and Review Commissioner, British Transport Police, the Scottish Police Federation, the Association for Scottish Police Superintendents and the Scottish Chief Police Officers' Staff Association. We met with solicitors who represented those who had made a criminal allegation against the police, and solicitors who represented police officers and staff who had been accused of a crime.

24. We also reviewed a statistically significant sample of 80 cases reported to COPFS in which a person serving with the police was alleged to have committed an offence while on duty, and a sample of 40 cases in which the offence was committed while off duty.

25. 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. The creation of CAAP-D, a national unit to manage all on duty criminal allegations against the police, has resulted in consistent decision making by specialist prosecutors and has facilitated effective relationships with stakeholders. Nonetheless, we found there to be scope for improvement in how criminal allegations against the police are managed:

• The most common complaint made by stakeholders was the length of time COPFS takes to decide whether a criminal allegation should result in prosecution. In the 80 cases we reviewed, the average time taken to decide whether to prosecute was 18 weeks.
• While communication with many complainers in the cases we reviewed was good, more could have been done to involve complainers in the investigative process and to ensure they were kept up to date on the status and progress of their complaint. The quality of communication with some complainers could also be improved.
• There was a lack of written policy or guidance about how COPFS manages criminal allegations against the police, both for reporting agencies and for the Crown's own staff. There was also scope for COPFS to be more transparent about how criminal allegations against the police are handled and to publish data on the volume of cases and their outcome.
• While leadership and governance arrangements for the management of criminal allegations against the police were good, governance could be strengthened if better quality data was available. We found there to be a lack of robust and accurate management information about CAAP-D's work.
• There was a lack of information about the protected characteristics of complainers and those complained about, and there may be scope to give greater consideration to the role that race may play in complaints.
• CAAP-D was not being routinely notified by the police of the existence of criminal complaints at a sufficiently early stage, which risked compromising its ability to direct or provide independent oversight of investigations.
• There was a need for greater clarity about how on and off duty allegations should be distinguished and managed among those agencies that report allegations to COPFS and among the Crown's own staff. Of the 40 off duty criminal complaints we reviewed, a quarter should have been subject to the process for on duty criminal complaints.

26. We made 18 recommendations for improvement. In response to our inspection report, we asked COPFS to prepare an action plan to address our recommendations. We await the action plan. Once received, the plan and any progress made in implementing our recommendations will inform our decision as to whether a follow-up inspection is required.

Inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995

27. In 2021, we began an inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. These provisions regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials, and are designed to protect complainers giving evidence from irrelevant and often distressing questioning.

28. Section 274 contains a general rule that evidence or questioning falling within certain categories is not admissible in sexual offence cases. Section 275 allows the court, on application made to it, to admit evidence or questioning falling within the general prohibition at section 274 so long as certain tests are met. Sections 274 and 275 apply equally to evidence sought to be led or elicited by either the Crown or the defence.

29. This topic was chosen for inspection following developments in case law regarding sexual history and character evidence. In recent years, a series of cases have sought to clarify the import of sections 274 and 275 and to set out the correct approach to be taken to section 275 applications.^[6] These cases had been a response to challenges faced by the courts, the Crown and the defence in making, responding to and determining applications regarding sexual history or character evidence. A report published in 2020 by the Equality and Human Rights Commission on the use of sexual history and character evidence had also suggested that a review of COPFS practice in this area take place.^[7]

30. We found that COPFS responded swiftly to developments in case law, issuing new instructions to staff and creating a training course dedicated to sexual history and character evidence. This has led to a significant shift in practice regarding how section 275 applications are managed – complainers are now regularly told about section 275 applications, asked their views on the applications' contents, and those views are presented by the Crown to the court. We found the quality of Crown section 275 applications to be generally good, and we found that the Crown generally opposed applications made by the defence when it was appropriate to do so. Nonetheless, there remains scope for further improvement.

31. We made nine recommendations, eight of which were directed at COPFS and one of which was directed at the Scottish Government. If implemented, the recommendations should support further improvements in the way in which COPFS makes and responds to section 275 applications. Four of the recommendations directly relate to the Crown's duty to engage complainers about section 275 applications.

32. The report of our inspection was published in October 2022. We had originally intended to publish our findings in Spring 2022, but the progress of our inspection was significantly delayed by difficulties identifying and tracing key documents. As a result, one of our recommendations was for COPFS to clearly set out its expectations of staff regarding record keeping, and to remind them that key decisions about a case should be recorded and key documentation relating to a case should be imported into the relevant case file.

33. Upon publication of the report, the Lord Advocate accepted the eight recommendations directed to COPFS and instructed that improvement work be taken forward as a matter of urgency. She also noted that work had already begun to address the recommendations.

Joint review of diversion from prosecution

34. In 2022, we also began a joint review of diversion from prosecution. The aim of the review is to assess the operation and impact of diversion from prosecution in Scotland. We will provide an overview of diversion practice from a policing, prosecution and justice social work perspective, highlight what is working well and explore any barriers to the more effective use of diversion. The review is being carried out jointly with HM Inspectorate of Constabulary, the Care Inspectorate and HM Inspectorate of Prisons.

35. Diversion from prosecution is one of several alternatives to prosecution available to COPFS upon receipt from the police of a report of offending. Diversion is the process by which COPFS refers an accused person to local authority justice social work (or a partner agency) for support, treatment or other action as a means of addressing the underlying causes of the alleged offending. Diversion from prosecution is considered in any case where the person reported to COPFS has an identifiable need and where it is assessed that diversion is the most appropriate outcome in the public interest.

36. As part of this review we will consider:

• the extent to which the police, COPFS and justice social work, alongside their community justice partners, share a vision for diversion from prosecution and collaborate on a strategy for delivery, while respecting the important principle of independent prosecutorial decision making
• how effectively the police identify whether an accused person has an identifiable need which has contributed to their offending and communicate this via the Standard Prosecution Report to COPFS
• the extent to which diversion is being considered and the systems and processes within COPFS which support prosecutors to make the most appropriate prosecutorial decision in respect of those who have an identifiable need
• the process by which accused persons are assessed for their suitability for diversion by justice social work
• the extent to which relevant and appropriate diversion schemes are available across local authority areas to meet the needs of those who have been diverted
• how well community justice partners work together to identify individuals suitable for diversion and to deliver effective diversion from prosecution
• the extent to which the impact of diversion is understood and intended outcomes are being achieved.

37. Terms of reference for this joint review were published in March 2022.^[8] The majority of the evidence gathering to support the review took place in the Spring and Summer of 2022. A report is expected later in the year.

Inspection programme 2022-23

38. Our inspection programme for 2022-23 includes:

• An inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995

As noted above, IPS commenced this inspection in 2021-22. Work on this inspection continued until its publication in October 2022.

• A joint review of diversion from prosecution

As noted above, IPS commenced a joint review of diversion from prosecution in 2021-22. Work on this inspection will continue throughout 2022.

39. At the time of writing this annual report, IPS is reviewing our future inspection programme and consulting with the Law Officers, COPFS and other stakeholders on issues that would benefit from independent scrutiny.