HM Inspectorate of Prosecution in Scotland: annual report 2018-2019

Chapter 2: Our inspections

12. In 2018-19, we commenced two inspections – our Thematic Review of the Investigation and Prosecution of Sheriff Solemn Cases and our Follow-Up Review of Fatal Accident Inquiries. We also published a Thematic Report on the Victims' Right to Review and a Thematic Report on the Prosecution of Young People, the findings of which were highlighted in our previous annual report.

Thematic Review of the Investigation and Prosecution of Sheriff Solemn Cases
13. Our Thematic Review of the Investigation and Prosecution of Sheriff Solemn Cases was published in July 2019.^[1] Sheriff Principal Bowen's Independent Review of Sheriff and Jury Procedure in 2010 made recommendations that were designed to tackle procedural and systematic inefficiencies and to change the culture contributing to delays. The legislation reforming sheriff and jury procedure was phased in between 29 May and 31 July 2017.

14. As sheriff solemn cases have been prosecuted under the new regime since August 2017, it was an appropriate juncture for us to review and assess the effectiveness and impact of the reforms and review the current operation of solemn cases in the sheriff court.

15. We found that following implementation of the reforms, there was an increase in earlier resolution of cases and reduced churn with a high degree of compliance with the prosecutor's statutory duty to agree evidence. Many dedicated and professional staff within COPFS were committed to ensuring the legislative reforms made a difference. Positively, of the 91 cases we reviewed, we found that 79% were resolved by or at the first trial diet.

16. However, we also found that victims who had vulnerabilities but were not automatically entitled to special measures were dealt with inconsistently. For 35% of victims within the remit of the Victim Information and Advice service, the standard of communication fell below what was expected.

17. The report made seven recommendations, all of which were accepted. These were designed to ensure full information on witness availability is given to procurator fiscal deputes, that all sexual offence victims have a clear victim strategy, and that a national model of good practice in investigating and prosecuting sheriff solemn teams is created.

18. The recommendations are set out below.

Recommendation 1
COPFS should ensure that, where there is a legal representative, a letter providing contact details of the first diet prosecutor and/or the SLM and seeking engagement of the defence on key issues is sent when the indictment is served in all cases. A record of the extent of communication with the defence before the first diet should be recorded on the COPFS IT system.

Recommendation 2
COPFS should refresh the guidance on witness engagement including an explanation of the content of the reports.

Recommendation 3
COPFS should ensure that all relevant information provided by witnesses (whether they provide availability details or not) is pulled into the first diet report.

Recommendation 4

COPFS should ensure that any information obtained on the availability of witnesses is captured and included in the first diet report.

Recommendation 5
COPFS should seek to incorporate the various elements of good practice into a national model for investigating and prosecuting sheriff solemn cases that can be adapted for local variations.

Recommendation 6
COPFS should extend the victim strategy to all victims of sexual crimes prosecuted in the sheriff solemn courts.

Recommendation 7
COPFS should apply a consistent approach to taking evidence by a commissioner for cases prosecuted in the High Court and sheriff solemn courts for all witnesses under 18.

Follow-up Review of Fatal Accident Inquiries
19. The Thematic Review of Fatal Accident Inquiries (FAIs) was published in August 2016.^[2] Looking at the journey time of cases, we reported that delays between the date of death and the start of an FAI adversely impacted on:

• the momentum of investigations and the operational capacity of investigating agencies
• the well-being of potential witnesses for whom the prospect of the inquiry 'hanging over them' is a source of anxiety and concern
• the confidence of the nearest relatives and the public
• the quality of the evidence and, in some cases, the purpose of the FAI.

20. Of particular concern was the finding that mandatory FAIs^[3] took on average 14 months from the date of death to the start of the FAI.

21. In the course of the thematic review, we made 12 recommendations. We monitored progress against these recommendations in our follow-up review, published in August 2019. We found that five^[4] of our recommendations had been achieved, four were in progress, two^[5] had been superseded by the Fatal Accident Inquiry Rules^[6] and one was not achieved. Given that almost three years had passed since the initial thematic review was published, the lack of progress in several areas is concerning. The following four^[7] recommendations are still in progress:

• SFIU National^[8] should introduce a streamlined reporting/notification process for FAIs
• SFIU National should review, update and centralise all guidance and policies on the investigation of deaths
• Where criminal proceedings are instructed and the circumstances of a death require a mandatory FAI:
  • COPFS should issue guidance requiring an instruction by Crown Counsel on whether a mandatory FAI is likely following the criminal proceedings
  • COPFS should ensure there is a debrief between the team dealing with the criminal case and SFIU, at the conclusion of the criminal proceedings
• COPFS should ensure that all operational case related emails are recorded and imported into the case directory.

22. The following recommendation was not achieved:

• SFIU should agree a Memorandum of Understanding (MoU) with all investigative agencies that have responsibility to investigate the circumstances of certain types of deaths. ^[9]

23. Of particular note, we found that there has been little progress in shortening the time line for mandatory FAIs. While the number of outstanding FAIs over 12 months is decreasing, we found that there are still 20 which are over three years old. We are aware that efforts are ongoing to accelerate back filling vacancies and to increase SFIU resources.

24. On the basis of our findings from our follow-up report, we made three new recommendations as follows:

• To provide a clear audit trail in each case, the work stream to record all information in the case directory should be prioritised and documents should be recorded and named in a structured manner
• In order to assess compliance with the Family Liaison Charter a record of the wishes of the family should be recorded on the charter template
• SFIU should prioritise the FAI of any death of a young person in legal custody.

25. Given, in particular, the number of recommendations that remain in progress, continuing delays in dealing with mandatory FAIs and the three new recommendations, we will re-visit the investigation of FAIs in a further follow-up review next year.

Current and future work programme
26. In addition to the follow-up reviews listed below, our future inspection programme plan will be finalised in consultation with the Lord Advocate and relevant stakeholders:

• A follow-up report on the thematic review of the Investigation and Prosecution of Sexual Crimes
• A further follow-up report on Fatal Accident Inquiries
• A follow-up report on the thematic review of Victims' Right of Review.

27. Our inspection 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.

28. When delivering our inspection programme, we will continue to fulfil our duty of user focus, as set out in the Public Services Reform (Scotland) Act 2010.