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

Chapter 3: Evidence and Procedure Review

29. The Evidence and Procedure Review chaired by Lord Carloway was established to explore and identify ways to modernise the criminal justice system for the 21^st century. This resulted in reports published in 2015^[10] and 2016^[11] which addressed inefficiencies such as 'churn'^[12] and looked at ways to reduce stress and inconvenience to victims and witnesses. The reports examined the use of modern technologies that would assist in the taking of pre‑recorded evidence and the use of digital innovations to transform the summary criminal justice system. They called for consideration of not fixing trial diets in summary procedure until the court is satisfied that the case is ready to go for trial and it concluded that successful introduction would require the willingness of judges and sheriffs to have proactive control of case management in court.

30. Various Cross Justice Working Groups developed the aims of the reports within the different areas of the justice system, including in relation to:

• summary courts
• recording evidence in chief
• further evidence and cross examination.

31. In particular, within the summary court work stream, two papers^[13] were produced which has led to the development of a new model for summary criminal case management.

32. Three Sheriff Courts, at Dundee, Hamilton and Paisley, will pilot this new approach of increased judicial case management and early engagement between the Crown and defence in summary cases. The pilots are judicially led by the Sheriff Principals for each Sheriffdom and are supported by justice partners, including COPFS. These pilots will commence in January 2020 for 18 months and are underpinned by a Practice Note^[14] to provide guidance to all practitioners outlining the practices that will require to be adopted by Crown and defence at pleading and intermediate diets.

33. Through increased judicial control, active case management, the use of continued without plea and written records prior to intermediate diets, the aims of the pilots are to:

• resolve cases at the earliest opportunity without the need of a trial being fixed
• reduce the need for full disclosure where cases can be resolved
• reduce the number of cases called for trial
• reduce the number of witnesses unnecessarily called
• preserve trial for cases that cannot be resolved by other means.

34. The pilots will be subject to monitoring and evaluation by a multi justice partner working group and the results will inform a wider rollout.

35. As part of the recommended approach from the Evidence and Procedure Review regarding the taking of evidence of children and vulnerable witnesses, two of the Cross Justice Working Groups looked at:

• improving and creating a consistent approach to visually recording 'Joint Investigative Interviews' of certain child witnesses so that those interviews can be used more often as evidence in chief, extending the visual recording of interviews and/or statements to other child and vulnerable witnesses^[15]
• improving taking evidence by Commissioner and a new High Court practice note was developed.^[16]

36. Following on from the Recommendations and the Working Groups is a pilot project which commenced on 1 November 2019 to test the visual recording of witness statements of adult complainers in cases involving rape and attempted rape. This pilot will run for two years and involved COPFS together with the Police Service of Scotland, Rape Crisis Scotland and the Scottish Government.

37. Following the work on the Evidence and Procedure Review, the Scottish Government introduced the Vulnerable Witness (Criminal Evidence) (Scotland) Act 2019 which creates a legal presumption in favour of the pre-recording of evidence from child witnesses in solemn cases by prior statement and/or by Commissioner. The Act will also simplify the procedure for submitting Vulnerable Witness Notices to the court for child and deemed vulnerable witnesses seeking only standard measures.

38. The Inspectorate will watch with interest how these developments unfold with a view to, in the future, assessing the impact within COPFS on efficiency of sheriff summary work and the services provided to victims and witnesses.