Investigation and prosecution of sexual crimes: review

Footnotes

1 First year for which comparable crime groups are available.

2 Scottish Government Bulletin on National Statistics on crimes and offences recorded by the police in 2016-2017.

3 Scottish Government Bulletin on National Statistics on crimes and offences recorded by the police in 2016-2017.

4 IPS Time Limits report para 116 ( http://www.gov.scot/Publications/2015/02/1907).

5 As at 02/10/17.

6 Conviction rate is calculated as the proportion of people with charge proved as a proportion of people proceeded against for a specific crime type.

7 Scottish Government Criminal Proceedings in Scotland Statistics 2015-16.

8 Corroboration is discussed further at Annex A.

9 Police Scotland Management Information Report Quarterly Information 2014/15.

10 See pages 15/16.

11 Source: COPFS Management Information Unit ( MIU).

12 Combining cases relating to different incidents alleged to have been committed by one accused person into a single case, enabling all the charges to be dealt with at one trial. This is commonly referred to as “conjoining” or “rolling up”.

13 Source: COPFS MIU – 82 cases.

14 Source: COPFS MIU – 50 cases.

15 See Annex A for more detailed explanation.

16 See Annex A for more detailed explanation.

17 Source: COPFS MIU – April 2014 to April 2015.

18 Combining cases relating to different incidents alleged to have been committed by one accused person into a single case, enabling all the charges to be dealt with at one trial. This is commonly referred to as “conjoining” or “rolling up”.

19 These cases were not further analysed.

20 In some cases there is more than one disposal.

21 Pleas of guilty and findings of guilty by a jury included pleas and findings of alternative and amended charges.

22 Includes ‘Not Proven’ verdicts.

23 8 were discontinued prior to the trial and 12 at the trial.

24 7 were discontinued prior to the trial and 6 at the trial.

25 COPFS Strategic Plan 2015-18.

26 Cases reported to the police some years after the date of offence and where the victim was a child at the date of offence.

27 Comprises of Senior Civil Service Head of High Court, Heads of specialist teams, including Head of Sexual Crimes, Business Managers and Senior Managers from the specialist teams.

28 Comprises of the Crown Agent and the Chairs of the Operational Boards attend as required.

29 Comprises of the Law Officers and the Crown Agent. The Chair of the Audit and Risk Committee, the Chair of the Equality Advisory Group and the Senior Executive team (the three Deputy Crown Agents) also attend.

30 Introduced in 2009.

31 6 training modules.

32 2-day course provided by COPFS People and Learning.

33 2-day course provided by COPFS People and Learning.

34 1-day course provided by COPFS People and Learning.

35 Issued in 2010.

36 Release on condition to appear at court on a certain date.

37 Submission of a standard police report.

38 Discussed at Chapter 3.

39 Discussed at Chapter 4.

40 Inspectorate of Prosecution, Thematic Report on the Management of Time Limits, 24 February 2015.

41 Inspectorate of Prosecution, Thematic Report on the Management of Time Limits - Follow-Up, 28 February 2017.

42 S67 of the Criminal Procedure (Scotland) Act 1995 is a written notice lodged by either COPFS or the accused adding further witnesses, productions or labels to an indictment. It may be objected to by either party to the proceedings. The notice is referred to as a section 67 notice.

43 Includes charges of physical abuse.

44 Includes additional victims identified during investigation.

45 Includes a finding of guilty for one victim in relation to both accused.

46 Discussed at paragraph 154.

47 Criminal Justice (Scotland) Act 2016, Sections 16-19, not yet in force.

48 Includes case where the prosecutor and Crown Counsel agreed there was insufficient evidence to prove rape.

49 Source: COPFS February 2017.

50 Proceedings were brought to an end by the court.

51 RW v HMA 2017 SCCR, 203.

52 For these purposes “trial” includes preliminary hearing or first diet where the case has been resolved at this stage of proceedings.

53 RW v HMA 2017 SCCR, 203.

54 Written submission dated 19 October 2016.

55 Scottish Parliament, Role and Purpose of the Crown Office and Procurator Fiscal Service, 25 April 2017.

56 Working Together for Victims and Witnesses – Joint Protocol between COPFS, Police Scotland, Scottish Courts and Tribunals Service ( SCTS) and Victim Support Scotland ( VSS).

57 Introduced in October 2016.

58 Discussed at paragraph 238.

59 Review of Victim Care in the Justice Sector in Scotland - provides a detailed chronology of historical developments of services to victims and witnesses.

60 Scottish Government, Scottish Strategy for Victims, 18 October 2006.

61 Role and Purpose of the Crown Office and Procurator Fiscal Service, paragraph 306.

62 COPFS, Review of Victim Care in the Justice Sector in Scotland, by Dr Lesley Thomson, QC.

63 Review of Victim Care in the Justice Sector in Scotland, paragraph 1.8.

64 Review of Victim Care in the Justice Sector in Scotland, paragraph 1.1.

65 Justice Board includes Scottish Government Directors and the heads of partner justice organisations.

66 Scottish Government, Justice in Scotland: Vision and Priorities, July 2017.

67 Scottish Government, Victims' Code for Scotland, 29 March 2017.

68 COPFS, Standards of Service for Victims and Witnesses 2017-18.

69 COPFS, Our Commitments to Victims and Prosecution Witnesses.

70 Review of Victim Care in the Justice Sector in Scotland, Paragraph 5.13.

71 Reports providing information on the background, needs, concerns, vulnerabilities and expectations of victims.

72 Working together for Victims and Witnesses – Joint Protocol between COPFS, Scottish Courts and Tribunals Service ( SCTS), Police Scotland and Victim Support Scotland ( VSS).

73 One case involved a child victim, another victim was not a witness and the accused pled guilty in one case.

74 Cases involved children or the victim had learning difficulties. Contact was made with parent or supporter.

75 All victims were offered a meeting but it is not recorded whether they read their statement.

76 Not recorded.

77 Accused pled guilty prior to Preliminary Hearing.

78 One case pled guilty prior to the trial, one trial did not call due to ill health of accused, one case was discontinued and one case is still to conclude.

79 Four cases pled guilty before the trial, two cases were discontinued before trial, two have still to conclude.

80 Met commitments if provided updates and made initial contact soon after accused appeared at court; Not met commitments if there were lengthy protracted periods without contact and updates not provided; Exceeded commitments if contact was more regular and had an element of assessing individual needs.

81 The Criminal Justice and Licensing (Scotland) Act 2010, Section 54.

82 As at 13 October 2017.

83 Scottish Parliament, Role and Purpose of the Crown Office and Procurator Fiscal Service, 25th April 2017 (Page 69, para 278).

84 Implemented to comply with minimum standards on the rights, support and protection of victims required by the European Directive 2012/29/EU.

85 Underpinned by the Victims’ Right (Scotland) Regulations 2015.

86 The court is empowered to appoint a commissioner to take the evidence of a vulnerable witness in advance of the trial.

87 Excluding the public during the taking of evidence from the vulnerable witness.

88 Section 4 of the 2014 Act.

89 Section 6 of the 2014 Act.

90 Section 3E of the 2014 Act.

91 Section 3D of the 2014 Act.

92 Section 3D of the 2014 Act.

93 Includes all summary and non-sexual solemn cases.

94 COPFS, Review of Victim Care in the Justice Sector in Scotland, by Dr Lesley Thomson, QC.

95 The use of taking evidence by a commissioner and giving evidence in the form of prior statement is currently being considered as part of the Evidence and Procedure Review ( EPR).

96 Section 3D - it is the responsibility of the Chief Constable of Police Scotland to inform a person that they may request a referral to these services.

97 COPFS response to Justice Committee.

98 Scottish Government, National Scoping Exercise of Advocacy Services for Victims of Violence Against Women and Girls, 8 August 2017.

99 This includes a male support worker to assist male victims who express this preference.

100 Working Together for Victims and Witnesses – Joint Protocol between COPFS, Police Scotland, Scottish Courts and Tribunals Service ( SCTS) and Victim Support Scotland ( VSS).

101 13 weeks as at October 2017.

102 Policy on Obtaining and Disclosing Sensitive Personal Records in the Investigation and Prosecution of Sexual Crime Cases (“the Prosecution Policy”) published originally in July 2011 and in its current form in April 2014.

103 Article 8 of the European Convention on Human Rights.

104 Judicial Review: F (Petitioner) v Scottish Ministers.

105 Sexual Offences (Procedure and Evidence) (S) Act 2002, Sections 274 and 275.

106 S274 sets out what must be specified in an application and S275 sets out the exceptions to the prohibition on leading such evidence.

107 Section 275(2)(b)(i) and (ii) of the 1995 Act.

108 In one case we could not ascertain the subject matter of the application.

109 From 12/12/16 to 12/03/17.

110 COPFS: Management Information Unit ( MIU).

111 Lord Advocate’s Guidelines on juvenile offenders.

112 An order which means that a named local authority is responsible for supporting the child or young person.

113 Joint Agreement by SCRA and COPFS.

114 Cases where the offender was 16/17 and not subject to supervision were excluded as they do not fall within the definition of a child.

115 Source: MIU April 2014 to April 2015.

116 Offender would be released subject to conditions for this period to enhance public protection.

117 For one we were unable to ascertain the reason the case was discontinued from the case records.

118 Includes a case where the court ruled essential evidence was inadmissible prior to trial.

119 High Court of Justiciary Practice Note No. 1 of 2017: Taking Evidence of a Child/Vulnerable Witness by a Commissioner in terms of section 271I of the Criminal Procedure (Scotland) Act 1995.

120 Role and Purpose of the Crown Office and Procurator Fiscal Service, page 62, footnote 296.

121 Scottish Courts and Trubunals Service, Evidence and Procedure Review Report, March 2015.

122 Scottish Courts and Trubunals Service, Evidence and Procedure Review – Next Steps, 26 February 2016.

123 Scottish Government, National Scoping Exercise of Advocacy Services for Victims of Violence Against Women and Girls, 8 August 2017.

124 Criminal Procedure Act 1701 (c.6); see also Herron v A.B.C. & D., 1977 S.L.T.(Sh.Ct.) 24; also see Dunbar, Petitioner 1986 SCCR 602 – no more than eight days may elapse between committal for further examination and full committal but neither of the days on which one of the committals takes place counts towards that total.

125 Criminal Procedure Act 1701 (c.6); see also Herron v A.B.C. & D., 1977 S.L.T. (Sh.Ct.) 24.

126 S65 (4)(a) of the Criminal Procedure (Scotland) Act 1995.

127 S72 of the Criminal Procedure (Scotland) Act 1995.

128 S65 (4)(aa)(i) of the Criminal Procedure (Scotland) Act 1995.

129 S66 (6)(b) of the Criminal Procedure (Scotland) Act 1995.

130 S72A (1) of the Criminal Procedure (Scotland) Act 1995.

131 S65(4)(aa)(ii) of the Criminal Procedure (Scotland) Act 1995.

132 S65(4)(a) and (aa) of the Criminal Procedure (Scotland) Act 199.

133 S65 (1) and s66(6) (b) of the Criminal Procedure (Scotland) Act 1995.

134 S66 (6 (6) b of the Criminal Procedure (Scotland) Act 1995.

135 S65(1)(a) unless the hearing has been dispensed with under s72B of the Criminal Procedure (Scotland) Act 1995.

136 S65(1)(b) of the Criminal Procedure (Scotland) Act 1995.

137 S65 (1A) (a) and (b) of the Criminal Procedure (Scotland) Act 1995.

138 The Carloway Review, published November 2011. Paragraph 7.2.6.

139 E.g. eye witness evidence identifying the accused as the perpetrator of the offence.

140 Otherwise known as “indirect”, i.e. evidence of a fact (e.g. fingerprint) or facts from which another fact (e.g. presence of accused at the scene) may be inferred.

141 Walker & Walker: Evidence (1st ed) para 380, p 402 et seq; (3rd ed) para 5.2.2.

142 Moorov v HM Advocate 1930 JC 68.

143 See The Scottish Law Commission “Similar Fact Evidence and the Moorov Doctrine”.

144 M v HM Advocate [2011] HCJAC 6 doubting Cannell v HM Advocate 2009 SCCR 207; Pringle v PF (Dumbarton) 2011 SCCR 97; ANM v HM Advocate 2011 SCCR 47; Hussain v HM Advocate 2010 SCCR 124 and CAB v HM Advocate 2009 SCCR 216.

145 Dodds v HMA 2003 JC 8.

146 AK v HMA 2012 JC 74; MR v HMA 2013 JC 212; KH v HMA 2015 SCCR 242; AS v HMA 2015 SCCR 62; CW v HMA 2016 SCCR 285; RF v HMA 2016 SCCR 319; JL v HMA [2016] HCJAC 61.

147 Beyond reasonable doubt.

148 M v HM Advocate [2011] HCJAC 6 doubting Cannell v HM Advocate 2009 SCCR 207; Pringle v PF (Dumbarton) 2011 SCCR 97; ANM v HM Advocate 2011 SCCR 47; Hussain v HM Advocate 2010 SCCR 124 and CAB v HM Advocate 2009 SCCR 216; HMA v ER 2016 HCJ 98.

149 As the law stood pre Lord Advocate’s Reference (No 1 of 2001) 2002 SCCR 435

150 Yates v HM Advocate 1990 JC 378n, 1977 SLT (notes) 42; Smith v Lees 1997 JC 73.

151 Smith v Lees ( supra).

152 s2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2009.

153 s6 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2009.

154 s7, s8 and s9 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2009.

155 Section 6. It applies to trials where the indictment was served on or after 24 April 2017.