Inspectorate of Prosecution in Scotland: annual report 2016-2017

Chapter 2 – Our Inspections

16. This report covers the period from November 2016 to November 2017. During this period we published our follow-up report on the management of time limits and a thematic report on the investigation and prosecution of sexual crimes.

Management of Time Limits Follow-up Report

17. The Management of Time Limits follow-up report was published in February 2017. ( http://www.gov.scot/Publications/2017/02/3249)

18. Time limits set out in legislation regulate the maximum length of time that can elapse between the first time a person appears in court charged with an offence and the start of their trial on that charge. Failure to adhere to statutory time limits has serious consequences:

• If the accused has been remanded in custody and the relevant time limit is not complied with, the accused will be released on bail. Remand in custody is a means of managing the risk that an accused person presents, to individuals, to the community and/or to the administration of justice. Releasing such a person on bail, therefore, potentially places people in danger and/or creates a risk that s/he may try to interfere with or evade justice.
• For accused persons released on bail, failure to comply with relevant time limits brings proceedings to an end and the accused person will be free from those charges.

19. As well as the consequences described for victims, witnesses and the community, any failure to comply with statutory time limits is likely to undermine public confidence in COPFS and, potentially, in the criminal justice system as a whole.

20. In our thematic report on the management of time limits, we concluded that COPFS has a strong record of compliance with statutory time limits, but the combination of an increasing volume of serious cases, the changing profile of serious offending and the greater complexity of such cases, within the context of reducing budgets, posed significant challenges for COPFS in the management of its solemn business and increased the risk that cases may be lost if time limits are not managed effectively.

21. We made 13 recommendations designed to provide assurance that the systems employed by COPFS to ensure compliance with time limits are effective, comprehensive and robust.

22. Our follow-up report found that COPFS had implemented 10 of the 13 recommendations, resulting in:

• More robust procedures for recording, amending and monitoring time limits;
• Increased awareness of time limits that apply in different circumstances and forums; and
• Clarity for managers as to who is responsible for monitoring the progress of solemn cases.

23. There were three recommendations that remained outstanding at the time of publication of the follow-up report. We are pleased to report that the recommendation for COPFS to introduce mandatory training on all aspects of time limits for all legal and administrative staff involved in the investigation, preparation and management of solemn cases has now been achieved, with the delivery of bespoke training on the management of time limits and the relevant law to all staff with responsibility for the management and monitoring of time limits. ^[2]

24. Work is ongoing to complete the technical specification of an automated process for collecting and updating all time limit information to be held in the COPFS Management Information Book ( MI Book) as the sole repository. This will streamline the existing process and be a significant advance on current arrangements.

25. In the follow-up report, we found that there had been a reduction of cases being indicted within three days of the time limit. There were, however, a significant number of indictments that were still being served within seven days or less of the time limit. Electronic service of indictments would go a long way to mitigate this risk and has the potential to incur savings for COPFS, and for the police in terms of man hours employed to physically serve indictments approaching the time limit.

Thematic Report on the Investigation and Prosecution of Sexual Crimes

26. A thematic report on COPFS investigation and prosecution of sexual crimes was published in November 2017. ( http://www.gov.scot/Publications/2017/11/3053)

27. The focus of this inspection was the investigation and prosecution of sexual crimes prosecuted in the High Court of Scotland. In contrast to most other types of reported crimes in Scotland, which have steadily fallen since 2007-08, sexual crimes have steadily increased. The prosecution of sexual crimes now constitutes 75% of COPFS High Court work.

28. While there has been an increase in the reporting of such crimes, the high rate of attrition (the process whereby cases drop out of the criminal justice system at any point) and the low conviction rate associated with sexual crime cases, particularly for offences of rape and attempted rape, remain a source of concern as do accounts of "secondary victimisation" experienced as a result of the trauma of the investigation, prosecution and court room processes.

29. The aim of the inspection was to assess the effectiveness of COPFS investigation and prosecution of High Court sexual crimes having particular regard to:

• The effectiveness of procedures, processes and systems in ensuring cases are progressed expeditiously;
• The quality and thoroughness of the investigation; and
• The individual needs of the victims.

30. We found that cases were investigated thoroughly and prepared to a high standard. There were many dedicated professionals in the Crown Office and Procurator Fiscal Service ( COPFS) seeking to achieve the best outcome for each case, facing challenges including unprecedented numbers of serious sexual crimes.

31. However, the high number of victims who disengage during the criminal justice process, after taking the significant step to report such crimes, infers that more could be done by the criminal justice system, in which COPFS is arguably the key organisation, to secure their participation throughout the process.

32. Our inspection identified the need for a more proactive approach, tailored to individual vulnerabilities and needs of victims and witnesses and advocates the introduction of a bespoke court management strategy, designed to ensure the suite of practical measures aimed at providing support is made available in a coordinated package.

33. We also make recommendations aimed at streamlining the existing investigation process.

34. The review also highlights wider criminal justice issues, including a gap in the availability of any advocacy or court based support for child victims or witnesses and the benefit of removing the requirement to lodge notices for support measures at court, to provide those giving evidence with more certainty that they can give evidence in the manner of their choosing.

35. The report makes 12 recommendations designed to ensure serious sexual crimes are investigated and prosecuted thoroughly, expeditiously and to the highest quality, in accordance with the individual needs of the victim(s).

36. The key findings and recommendations are set out below.

Key Findings

• The high number of victims who disengage during the criminal justice process, after taking the significant step to report the crime, infers that more could be done by the criminal justice system, in which COPFS is arguably the key organisation, to provide the necessary information and support to victims, many of whom have complex needs or vulnerabilities, to enable them to have the confidence to continue throughout the process.
• The high level of agreement between the specialist prosecutors and NSCU at the initial decision stage is reassuring and provides a high degree of confidence in the initial decisions made by specialist prosecutors.
• Premature reporting by Police Scotland is a contributory factor for instructing pre‑petition investigation.
• Pre-petition investigation took more than ten months to conclude in 45% of the cases examined.
• Cases where there has been pre-petition investigation are not being expedited after the accused has appeared on petition. By and large, COPFS is indicting pre-petition cases in accordance with the statutory timescales that apply to High Court cases.
• The standard of communication where pre-petition investigation was undertaken, fell below what should be expected for 47% of victims.
• VIA updated victims of any significant developments in 93% of cases. There were, however, significant gaps between contacts from VIA.
• The frequency of contact provided by the COPFS Victim Strategy is not meeting the needs of victims.
• Victims commonly do not understand that VIA is part of COPFS.
• The use of legal terms when dealing with victims and witnesses creates barriers and enhances a sense of separation and detachment from the process.
• The COPFS Victim Strategy requires a more nuanced approach, tailored to victims' needs. For victims with identified vulnerabilities, such as mental health problems or learning difficulties, a bespoke strategy taking account of their particular needs, including whether more regular contact would assist, should be discussed and agreed at the outset.
• There is an unrealistic expectation by COPFS of victim and witnesses' understanding of the prosecution process and how the criminal justice system operates.
• The abolition of notices and applications for special measures would provide certainty for victims that they could give evidence in accordance with the standard measure of their choice.
• Asking the victim to engage pro-actively on special measures at the beginning of the investigation is premature. Many victims and witnesses do not have sufficient knowledge of court procedures and concepts such as TV link to make informed decisions. Decisions on special measures should be tailored to the individual needs of the victim following a face to face meeting.
• The criminal justice system places an onus on victims to seek updates, decide about special measures, find appropriate support, deal with the shifts and uncertainties in scheduling of trials and narrate what happened in an environment over which they have no control. For many dealing with the trauma of the offence, the process is too much and it explains why many simply disengage.
• Prosecution requests for sensitive, personal records are being tailored to the specific purpose for which records are being sought.
• Whilst cases involving child offenders/victims are being given some priority they are not being progressed to custody timescales.
• We found a significant gap in the availability of any advocacy or court based support for children. No agency or organisation provides such support on a national or systematic basis.

Recommendations

Recommendation 1:

COPFS should develop a policy of exception reporting to NSCU at the initial decision-making stage of the investigative process.

Recommendation 2:

COPFS should revise the target dates for the submission of the Investigative Agreement to Crown Counsel to enable a more detailed instruction on the direction of the investigation and of the case by Crown Counsel. The target dates should be monitored and rigorously enforced.

Recommendation 3:

COPFS should consider undertaking the indicting process prior to the case being reported to NSCU for a final instruction.

Recommendation 4:

COPFS should introduce a more sophisticated system of allocating cases for indicting to reflect the priority that is to be afforded to certain categories of cases.

Recommendation 5:

COPFS should restrict pre-petition investigation to only those inquiries that are essential to reach a decision on whether there is sufficient credible and reliable evidence.

Recommendation 6:

COPFS should take account of any period of pre-petition investigation when allocating reporting dates for cases to be reported to NSCU for a final decision.

Recommendation 7:

COPFS should ensure that VIA pro-actively offer to contact the victim every eight weeks, as a minimum, unless more frequent contact is required or requested or a victim expressly opts out.

Recommendation 8:

COPFS should ensure that there is a dedicated VIA Officer allocated to each case and provide victims with information on who to contact in their absence.

Recommendation 9:

COPFS should consider re-branding VIA to include a reference to "prosecution" in their title.

Recommendation 10:

COPFS should review all correspondence sent out by VIA.

Recommendation 11:

COPFS should discuss and agree special measures at the interview with the case preparer in the context of preparing the victim or witness for court.

Recommendation 12:

COPFS should ensure that a court management strategy is agreed with every victim and relevant agencies following service of the indictment as part of the Victim Strategy.

Current and Future Work Programme

• IPS has recently commenced a follow-up inspection on Complaints Handling. This will include an inspection of the Victims' Right to Review ( VRR). The Right to Review, introduced in July 2015, provides victims with a statutory right to review a decision not to prosecute or a decision to stop or discontinue a case. It is important to assess the procedures and policies implemented by COPFS are effective and fulfil the right provided.

• A follow-up report on the thematic review on Fatal Accident Inquiries.

• A thematic review on the prosecution of young people in the Sheriff Court, including the availability and use of diversion from prosecution for young persons. There are several reasons for our decision to examine the prosecution of "young persons."
  • 2018 is the Scottish 'Year of Young People' – Bliadhna na h-oigridh.
  • The increasing number of children subjected to, or engaging in, sexual behaviour that constitutes criminal conduct is of significant concern. Cases reported to COPFS, involving a sexual offence committed against a child by a child, rose by 34% between 2011-12 and 2015-16. ^[3] Cyber-related crime through the use of electronic devices and the internet, including "sexting" – sharing intimate images without consent or possessing images of a person aged 18 or under – is responsible for much of the increase.
  • To contribute to the ongoing debate on whether there is scope to reduce the number of young people prosecuted and to maximise the use of alternatives to prosecution taking an outcome focussed approach.
  • Our report on the investigation and prosecution of sexual crimes highlighted a lack of court-based or advocacy support for children in the criminal justice system.

37. The review will examine the prosecution of young persons in the Sheriff Court, the role of diversion and other alternatives to prosecution, outcomes for young people, the interaction with the Children's Reporter and the Whole Systems approach.

38. The IPS 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.