HM Inspectorate of Prosecution in Scotland: annual report 2017-2018

Chapter 3: Our Inspections

25. This year we published a thematic report on the Victims’ Right to Review, a follow-up report on Complaints Handling and Feedback and a thematic report on the Prosecution of Young People.

Thematic Report on the Victims’ Right to Review

26. Our Thematic Report on the Victims’ Right to Review (VRR) was published in May 2018. Victims of crime or bereaved relatives have the right to seek a review of a decision by COPFS not to prosecute a criminal case or to discontinue criminal proceedings that have commenced.^[9]

27. For many victims of crime or bereaved relatives, contact with the criminal justice system is unfamiliar and often traumatic. Providing reasons for such decisions is essential to retain confidence and to deliver accountability and transparency to those whose lives have been affected and allows victims to make an informed decision on whether to submit a VRR application.

28. The aim of the inspection was to assess the operational effectiveness of the COPFS Victims’ Right to Review Scheme.

29. We found the COPFS review process was robust with reviews being conducted independently and thoroughly and reviewers overturning decisions where they found the initial assessment of sufficiency and/or the public interest was incorrect or unreasonable. Of the applications we examined, we found over 90% of reviews were conducted to a high standard. The responses issued to victims were also generally empathetic.

30. However, not all victims are notified of decisions not to prosecute. This policy has the potential, in some cases, to deny victims access to an effective remedy, in the form of a prosecution, if the decision is overturned.

31. The report identified a number of areas where COPFS can improve the quality of service offered to victims:

• By working towards a system of notifying all victims of decisions not to prosecute;
• Providing substantive and understandable reasons for initial decisions not to prosecute or to discontinue proceedings;
• Expediting requests for a review for offences subject to time limits; and
• Tailoring communication of the outcome of reviews to the needs of the individual.

32. The report made 11 recommendations, all of which were accepted, designed to ensure the review process is thorough, effective and conducted to the highest quality, in accordance with the individual needs of the victim(s).

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

Key Findings

• Different approaches were applied by those undertaking reviews.
• The VRR process was robust with reviewers overturning decisions where they found the initial assessment of sufficiency and/or the public interest to be incorrect or unreasonable.
• Of the 57 applications examined, we found 91% (52) were conducted independently, thoroughly and to a high standard.
• Specialist areas of law require the reassurance of a specialist undertaking the review.
• There is a correlation between victims not being notified of decisions not to prosecute or to discontinue proceedings and delays in VRRs being submitted.
• The optimum approach would be to notify all victims of decisions not to prosecute.
• There was a commitment in the Response and Information Unit (RIU) to conduct full and thorough reviews and responses were generally empathetic. In the majority of the 57 applications reviewed, efforts had been made to respond to all issues raised and where there was fault or poor service, it was acknowledged, often with an apology.
• 70% (40) of the responses were issued more than 20 working days after receipt of the application.

Recommendations

Recommendations 1 and 2

COPFS should provide guidance on the factors to be considered and the approach to be taken to conducting VRRs – it should be supplemented by workshop training for the core participants involved in such reviews.

COPFS should ensure that the factors taken into account and the reasons for the initial decision and the outcome of the review are recorded in a consistent and standardised manner.

Recommendation 3

COPFS should ensure that reviews, involving specialist areas of law, including sexual crimes, are conducted by a prosecutor with the relevant specialist skills and expertise regardless of whether the offence(s) is likely to be prosecuted at solemn or summary level.

Recommendation 4

COPFS should clarify who is responsible for notifying victims of any decision to discontinue proceedings in summary cases that do not fall within the VIA remit and reinforce and embed existing policies regarding notification of decisions not to prosecute and to discontinue proceedings.

Recommendations 5 and 6

COPFS should work towards a system of notifying all victims of decisions not to prosecute, whether through the use of IT solutions or otherwise.

COPFS should undertake a review of the VIA remit to assess whether it remains appropriate following the prosecution policy review.

Recommendation 7

COPFS should undertake a review to identify all summary offences, involving victims and a statutory time limit, where there is no suitable alternative charge, with a view to extending notification of decisions not to prosecute to such offences.

Recommendation 8

COPFS should raise awareness in the Procurator Fiscal Offices of the importance of identifying requests from victims to review decisions not to prosecute or to discontinue proceedings and to transfer them without delay to RIU to enable reviews to be completed within any time limits.

Recommendation 9

COPFS should provide substantive and understandable reasons for initial decisions not to prosecute or to discontinue proceedings to victims who are notified of such decisions.

Recommendation 10

COPFS policy should reflect that the VRR response should be communicated in a manner consistent with previous communication, in terms of the victim strategy or, in death cases, with the Family Liaison Charter and in accordance with any equality considerations.

Recommendation 11

COPFS should avoid issuing multiple template holding replies and provide an explanation for the delay and an indication of the timescale for completion for all cases that are likely to take longer than 20 days.

Complaints Handling and Feedback Follow-up Report

34. The Complaints Handling and Feedback follow-up report was published as part of the Thematic Report on the Victims’ Right to Review. It followed an inspection of Complaints Handling and Feedback in December 2015.

35. Complaints provide valuable insight into areas where there is scope for improvement in an organisation. Critical to improving service delivery is a culture that values complaints and commits to learning from them.

36. In our thematic report on complaints handling and feedback we concluded positively that the complaints handling staff within COPFS Response and Information Unit (RIU) were helpful, skilled and in the majority of cases we examined, efforts had been made to respond in full and where there was fault or poor service this was acknowledged with an apology. However the quality of these responses was hindered by the use of legal terminology, jargon, using formulaic paragraphs, overly defensive, and a lack of empathy.

37. We found less evidence of the wider organisation accepting the need to learn from complaints and resolve them at the point of receipt. Learning from complaints was not systematic – there was no register of themes, actions taken, lessons learnt and outcomes.

38. We made 15 recommendations designed to strengthen and improve the complaints process and promote a culture focused on people rather than process, where complaints are valued as a key indicator of customer satisfaction, and as a source of feedback to identify recurrent themes and systematic issues.

39. In our follow-up report we found that, whilst COPFS had implemented a substantial number of the recommendations from our 2015 thematic report, recommendations 14 and 15 remained outstanding:

14. COPFS should introduce a system to record, analyse and report on complaint outcomes, trends and improvement actions.

15. COPFS should establish a set of key performance indicators to measure complaints handling performance and drive improvements.

40. These recommendations were critical to COPFS developing strategies for improving service delivery, tackling the underlying causes of complaints and embedding a culture of valuing complaints and learning from them.

41. We reported that these recommendations were being taken forward by the newly created Service Improvement Board (SIB), chaired by the COPFS customer service “champion”, and that assurances had been given that progress would be made by the time of our annual report.

42. We are pleased to report that these recommendations are now being progressed:

• A system has now been introduced in RIU to capture themes arising from complaints and a senior lawyer in RIU provides analysis of these themes to the SIB.
• A national Service Improvement Strategy with the primary focus on service improvement has been introduced.
• Each function within COPFS has been tasked by the SIB with developing a bespoke improvement plan to implement the overarching national strategy. Within the local court function an improvement plan is being developed for each sheriffdom, recognising the need for a nuanced approach to improving standards in different geographical locations.
• The SIB has recommended the introduction of two key performance indicators, focusing on reducing the numbers of complaints which are upheld due to failing to communicate and increasing the number of complaints dealt with by quick resolution. They will be considered by the Operational Performance Committee before the end of the year and thereafter will go to the Executive Board for consideration.

Thematic Report on the Prosecution of Young People

43. “In the “year of young people”, we thought it timely to assess the effectiveness of COPFS processes and procedures for prosecuting young people and their use of alternatives to prosecution including diversion.

44. The inspection tracked the journey of 95 young offenders reported to COPFS who fell into three categories – under 16 years, 16/17 year olds who fell within the joint remit of the Children’s Hearing System and COPFS and all other 16/17 year olds.

45. We found that there was a tension between the consensus that those under 18 should be treated as children and the current legal framework where, for many, 16 still represents the transition from child to adult.

46. A young person’s journey through the criminal justice system can differ greatly. For some, there may be contact with the police resulting in use of direct measures, early interventions or Recorded Police Warnings. This may graduate to interventions through the Children’s Hearing System and some may receive an alternative to prosecution such as a warning, fiscal fine or diversion. Further offending may result in prosecution and criminal convictions.

47. For others, aged 16/17, who have no history with the Children’s Hearing System or have not come to the attention of the police, their offending can take them directly into the adult criminal justice system.

48. The report makes 12 recommendations designed to ensure that:

• COPFS guards against dealing with young people who can appropriately be dealt with by the Children’s Reporter;
• COPFS facilitates the maximum use of alternatives to prosecution, including diversion for all of those under 18 years;
• Timelines on implementing decisions to divert young offenders are improved;
• Communication with offenders is simplified and tailored to individual needs and vulnerabilities; and
• Other opportunities are explored to address low level road traffic offending by young people.

Key Findings

• 16/17 year olds were twice as likely to be prosecuted as 16/17 year old offenders subject to a Compulsory Supervision Order (CSO). 53% were prosecuted in comparison to 23% of the offenders subject to a CSO.
• Of those prosecuted in the sheriff summary and Justice of the Peace courts the sentence imposed in 41% of cases could have been achieved by an alternative to prosecution.
• Compared to the police reports for the categories of offenders under 16 or 16/17 year olds subject to a CSO, there was a significantly higher percentage of reports where no information was provided on the offender’s individual or family circumstances or vulnerabilities for those in the 16/17 year olds category.
• Delays in reporting or taking decisions when an offender is approaching 16 or has an intervening birthday has the potential to create a different outcome for young people who are older by a few days or weeks.
• There is a disconnect between the emerging consensus that young people aged under 18 should be treated as a child or young person in the criminal justice context and the current legal framework where, for many, 16 still represents the transition from a child to an adult.
• There was a high success rate (80%) for the 16/17 year olds diverted as an alternative to prosecution.
• Diversion only failed in three cases (3.5%) due to a lack of co-operation or further offending.
• Of the 69 offenders where diversion was completed successfully almost two thirds (43) did not re-offend.
• For those with complex needs more than one intervention may be necessary to address the causes of the offending behaviour.
• In 56% of cases, it took more than four weeks to implement the decision to divert the offender.
• Close proximity between the offence and the commencement of engagement with Criminal Justice Social Work (CJSW) is essential for diversion to be effective and relevant for the offender.
• The average time between receipt of the police report and the completion of diversion was seven months.
• Updates on progress from CJSW need to be obtained in a timely manner to ensure final decisions can be taken as swiftly as possible to minimise any adverse impact on the young person.
• Communication with offenders during the diversion process was inconsistent and often at variance with COPFS guidance.
• Letters sent to offenders were overly complex and contained legal jargon.
• Communication was not tailored to offenders’ needs taking account of, any known, equality issues.

Recommendations

Recommendation 1

COPFS should guard against “net-widening” by dealing with jointly reported offenders who do not fall within the Lord Advocate’s Guidelines and those who have not yet turned 16 where the presumption is that they should be dealt with by the Reporter.

Recommendation 2

COPFS should prioritise consideration of the review that offenders aged 16/17 subject to a CSO are presumed to be dealt with by the prosecutor.

Recommendation 3

COPFS should liaise with Police Scotland to standardise the provision of information on any known vulnerabilities or individual and/or family circumstances that may have a bearing on the appropriate prosecutorial action. The report should specify if there are none identified or whether the offender refused to divulge such information.

Recommendation 4

COPFS should ensure that there is a written record of discussion with the Reporter, in all jointly reported cases, including the factors taken into account in determining who should deal with the young person.

Recommendation 5

COPFS should facilitate the maximum use of diversion (or a lesser form of alternative action) for all young people under 18 years. Where there are compelling reasons in the public interest to prosecute they should be clearly recorded by prosecutors.

Recommendation 6

COPFS should improve the timeline of cases involving young people where diversion is offered.

Recommendation 7

COPFS should introduce a national streamlined process for communicating with social work departments and offenders to support the effective operation of diversion.

Recommendation 8

COPFS should review and simplify all correspondence issued to young people being offered diversion.

Recommendation 9

COPFS should tailor communication to the individual needs and vulnerabilities of young offenders taking account of, any known, equality issues.

Recommendation 10

COPFS should, on completion of diversion, confirm in writing what action, if any, is to be taken.

Recommendation 11

COPFS should clarify whether the applicable age requiring CCI, prior to any proceedings being commenced for children aged 13, 14 or 15 years, is the age of the child at the date of the offence, when the police report is submitted or when there is a decision to prosecute.

Recommendation 12

COPFS should explore the possibility of expanding the scope of the Driver Improvement Scheme and/or the feasibility of introducing a new road safety programme to address low-level road traffic offences.

Current and Future Work Programme

• IPS has recently commenced an inspection of Sheriff and Jury cases. As part of the review, we will assess:
  • The effectiveness and robustness of the systems, processes and procedures governing the prosecution of solemn cases in the Sheriff Court, including those designed to manage the new time limits;
  • The timeliness of the investigation and prosecution of cases;
  • Compliance with statutory obligations and COPFS guidance when engaging with defence solicitors and when preparing the written record;
  • Reasons for adjournments and delays;
  • The effectiveness of liaison arrangements both internally, including where cases are transferred between those with a specialist function and sheriff and jury teams, and externally with stakeholders such as Police Scotland and Scottish Courts and Tribunals Service (SCTS);
  • Whether those investigating and prosecuting sheriff and jury business are sufficiently resourced and trained to provide a high quality service; and
  • Whether there is appropriate communication with victims and witnesses throughout the life of the case.
• A follow-up report on the thematic review on Fatal Accident Inquiries.
• A follow-up report on the thematic review on the Investigation and Prosecution of Sexual Crimes.

49. 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.