Investigation and prosecution of sexual crimes: review

Chapter 2 – Investigation And Prosecution Of Sexual Crimes

31. COPFS aims to deliver a world-leading public prosecution service which secures justice for the people of Scotland. ^[25]

32. Integral to this aim is achieving operational effectiveness in serious cases, including sexual crimes, for which COPFS needs the right structures in place and prosecutors with the right skill sets.

33. The investigation of such cases has become more complex as the criminal landscape has changed over recent years. For example:

• There has been a significant increase in historical ^[26] crimes being reported to the police;

• Crime has become increasingly global resulting in more crimes being reported that transcend territorial boundaries, including internet crime;

• Cases with multiple accused, victims and charges are more common;

• More proactive policing, with establishment of the Domestic Abuse and Rape Investigation Taskforce teams and more sophisticated methods of police investigation being deployed; and

• In many cases it is necessary to review detailed medical, education and social work records and instruct multiple specialist/expert reports.

34. The combination of these factors poses significant challenges for all those involved in the investigation and prosecution of such crimes and impacts on their ability to progress High Court cases expeditiously. The case study at page 33 illustrates the various lines of investigation routinely undertaken in such cases.

Current Structures

Leadership and Governance

35. In COPFS there is a well‑defined governance structure providing clarity of roles and responsibilities in the investigation and prosecution of serious sexual crimes.

36. All serious sexual crimes reported to COPFS are dealt with by the specialist sexual crime teams located in Aberdeen, Dundee, Edinburgh and Glasgow, whose sole function is to investigate sexual crime cases that are serious enough to be prosecuted in the High Court.

37. The teams are headed up by a Senior Civil Servant ( SCS) as Head of Sexual Crimes and report to the Operational Board, ^[27] which oversees all High Court cases and is responsible for the day to day management of the High Court teams. The Board monitors performance using a monthly health check of data including real-time data on work in progress, the age profile of cases and any areas of risk.

38. The Operational Board is accountable to the COPFS Operational Performance Committee who in turn is accountable to the COPFS Executive Board. ^[28] The Executive Board is charged with implementing the vision and delivering the priorities set by the COPFS Strategic Board ^[29] and is accountable for key targets and standards of delivery of the COPFS strategic objectives.

National Sexual Crimes Unit ( NSCU)

39. Cases investigated by the teams are reported to the National Sexual Crimes Unit, ^[30] which is a body of senior Crown Counsel specialising in the investigation and prosecution of sexual crimes. NSCU directs investigations from the earliest stages, provides advice and expertise on all aspects of the investigation and preparation of cases and conducts trials in court.

Specialism and Accreditation

40. All specialist prosecutors and case preparers working in the teams and supporting NSCU require to go through a system of accreditation and must complete this process within three months of taking up a specialist post.

41. Accreditation involves:

• Completion of mandatory e-learning and other training courses (see below); and
• Demonstrating competency by submitting cases to be assessed against the required standards.

42. A central database has recently been set up to record all information relating to the completion of each requirement and the accreditation process has been refreshed to introduce an element of continuous assessment and re-accreditation.

43. Of the 77 members of the specialist sexual crime teams, 64 (83%) are fully accredited. 13 are partially accredited with 12 at an advanced stage of the process.

44. A rolling programme to ensure all those involved in the investigation of such crimes have completed all elements of the process is currently being given priority.

Training and Guidance

45. There are a number of national courses aimed at dealing with sexual crimes. These include:

• Sexual crimes e-learning ^[31]
• Sexual crimes course ^[32]
• Evidential interviewing of children course ^[33]
• Abuse of children in institutions course ^[34]

46. We found an extremely high take up rate within the teams for all of the courses, with all but one person from the specialist sexual crime teams having attended the sexual crimes course.

Guidance for Prosecutors

47. The Sexual Offences Handbook is a central repository for all guidance on sexual crimes. It is a valuable resource but in an area of law that is constantly evolving, we found that there is often a time lapse in updating the handbook and removing out of date material.

48. For ease and consistency, the handbook should be a 'one stop shop' where up to date information on all aspects of investigation of sexual offences is held.

Good Practice

COPFS should review, update and centralise all guidance and policies on the investigation of sexual crimes.

Process

Police Reporting

Lord Advocate’s Guidelines

49. The Lord Advocate’s guidelines ^[35] to the police about the investigation and reporting of sexual crimes provide that the police should:

• Report all cases where there is sufficient evidence to the prosecutor for consideration. This includes cases in which there is a technical sufficiency but there are doubts over the quality of the evidence.

• Report all cases where the question of sufficiency is finely balanced.

• Include any available risk assessment information on the accused and/or the victim and any circumstantial evidence or other information which may support the allegation.

50. Cases are reported by way of a Standard Prosecution Report ( SPR). The SPR sets out: the crime(s) with which the accused person has been charged; the circumstances of the crime(s); and information on the background of the accused and victims, including any vulnerabilities.

51. The accused person may be reported in custody or liberated on an undertaking ^[36] or for report. ^[37]

Initial Decision-Making

52. On receipt of a police report alleging sexual crimes, a prosecutor, within a specialist team, considers the case and prepares a report for consideration of NSCU. The report will provide a detailed analysis of the evidence, including an assessment of whether there is sufficient evidence for the essential elements of the charge. Depending on the complexity of the case, this process can take anything between one hour to half a day or longer.

53. The report will include a recommendation on the action to be taken. There are four possible recommendations:

• To prosecute – if so the accused will appear in court, usually on petition;
• To instruct investigation prior to deciding whether to prosecute – known as pre-petition investigation;
• To take no proceedings;
• To use an alternative disposal, for example, refer to the Children’s Reporter.

54. Following consideration of the report, NSCU provides an instruction on how to proceed.

55. Prior to the introduction of specialist sexual crime teams the involvement of NSCU, with specialist Crown Counsel, was an important safeguard to ensure that appropriate decisions were taken at the outset. With the inception of specialist teams who investigate and prepare only sexual crime cases, prosecutors within the teams have now acquired a degree of specialism and expertise in dealing with such cases.

Case Review

56. We examined 50 cases where the accused was indicted in the High Court for a sexual crime.

57. We compared the recommendations made by the specialist prosecutor in the initial report to NSCU with the instruction issued by NSCU in the 50 cases where the accused was indicted.

58. In all but seven cases (86%) NSCU agreed with the recommendation of the prosecutor.

59. In five cases NSCU instructed pre‑petition investigation rather than place the accused on petition as recommended by the prosecutor. After pre-petition investigation, proceedings were commenced in all five cases and all were subsequently indicted to the High Court.

60. In one case NSCU instructed prosecution at Sheriff and Jury level rather than the High Court as recommended by the prosecutor. Following investigation, the case was ultimately indicted to the High Court and resolved by a plea.

61. In the remaining case the prosecutor recommended pre-petition investigation whereas NSCU took the view there was sufficient evidence to commence proceedings. The case was subsequently indicted and prosecuted in the High Court.

62. Of note, there were no instances where the prosecutor recommended no proceedings and NSCU took a contrary view.

63. The findings accord, to a large extent, with those in the pre-petition case review, ^[38] where NSCU agreed with the initial decision taken by the prosecutor in 82% of cases. The high level of agreement on how to proceed between the specialist prosecutors and NSCU is reassuring and provides a high degree of confidence in the initial decision-making of specialist prosecutors.

Key Finding

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.

64. This finding begs the question, whether there is a continuing need for NSCU to consider every case at the initial decision-making stage and whether a more nuanced exception based approach can be adopted.

65. The safeguard of reporting to NSCU was introduced at a time when prosecutors were still regarded as generalists and the concept of specialist sexual crime prosecutors and the process of accreditation had only just been introduced.

66. At the initial decision-making stage, statements from all witnesses in the case are generally not available and decisions are taken on the information provided by the police. Given the findings of our case reviews and the experience and specialism that now exists in the sexual crime teams, there appears to be little value added by double handling at this stage.

67. Provided the system of accreditation and re-accreditation is retained and robustly monitored, we suggest that Crown Counsel’s expertise may be better served by seeking their input at the initial decision-making stage only in cases where there are problematic legal or evidential issues.

68. Removing Crown Counsel’s input at this stage would free them up to provide greater input at a later stage in the investigative process when they can add more value.

69. We advocate, therefore, that COPFS should remove the blanket requirement of all sexual crimes being reported to NSCU at the initial decision-making stage and introduce a system of exception reporting for complex cases or where there is greatest risk.

Exception Reporting

70. It would be for COPFS to establish the parameters of a system of exception reporting. Taking a risk-based approach such cases may include:

• Any case where the prosecutor is of the view there should be no proceedings;
• Cases involving children or other vulnerable accused;
• Cases of institutional abuse or other high profile/complex cases; and
• Cases where a novel area of the law has to be considered.

71. Additional safeguards include:

• The continuing involvement of Crown Counsel at the Investigative Agreement ( IA) stage – discussed below;

• Strict adherence to timescales for prosecutors submitting the IA for consideration of Crown Counsel. This will ensure any evidential concerns continue to be addressed at an early stage of proceedings, to front load work.

• A mandatory system of accreditation and continuous assessment through re‑accreditation for all staff involved in the investigation and prosecution of sexual crimes.

Recommendation 1

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

Investigation

Direction of the Investigation

The Pathway Document

72. The pathway document is an electronic “living” document, designed to record key milestones and the progress of the case in one place. For ease of use, the pathway document is accessible through an app that sits on the desktop.

73. As in all High Court cases under investigation, as part of the pathway process, an Investigative Agreement between Crown Counsel at NSCU and the specialist legal manager is prepared.

The Investigative Agreement ( IA)

74. The IA is a “blueprint” for the investigation of a case. It sets out, at an early stage, a strategy agreed between the case preparer and Crown Counsel for the investigation and preparation of a case. It outlines the key matters of relevance to the prosecution, including the charges to be investigated with a view to prosecution, how these will be proved, the parameters of the investigation and how the evidence will be presented.

75. The intention of the early collaborative engagement is to front load the work, provide Crown Counsel with an opportunity to direct the investigation at an early stage, preventing unnecessary work being undertaken, and avoid requests for additional work after the case is reported to NSCU.

76. The IA allows for consistency of approach in the preparation and investigation of the case and ultimately provides an audit of all decisions taken in the case and a bespoke prosecution file for Crown Counsel.

77. Completing the IA is a time-consuming process for the SLM. Statements from all witnesses and all sources of evidence gathered by the police require to be reviewed and consideration given to what, if any, additional inquiries require to be instructed. The IA consists of a number of mandatory sections to be completed, including:

• Precognition strategy – identifying which witnesses require to be interviewed and the matters to be covered by the case preparer at the interview.

• Legal strategy – analysing and identifying any legal or evidential difficulties.

• Victim strategy – identifying any vulnerabilities and assessment of special measures.

• Case presentation strategy – to be used in complex and/or large cases where there is a high volume of evidence. This section will be used to obtain input and agreement from Crown Counsel on any tools necessary for the presentation of the case to the jury.

• Experts – consideration of obtaining any expert reports.

• Forensics – consideration of the need for analysis (including DNA, toxicology, phone and computer examination).

• Sensitive records – consideration of obtaining records such as medical, psychiatric, housing and social work.

78. The SLM must complete an IA within either 7 or 21 days of the appearance of an accused in court, depending if the accused is in custody or on bail. The IA is then submitted to NSCU for consideration. The intention is for Crown Counsel to agree the direction of the investigation and instruct any additional inquiries that have not been identified by the SLM. By agreeing a joint strategy at this early stage, it was anticipated that requests for additional work to be undertaken after the case was reported for a final decision would be eliminated or significantly reduced.

79. We found, however, that this intention is not being realised. We asked those who use the IA why it was not achieving its envisaged objective.

80. SLMs told us that they find the IA to be a useful tool – it provides a comprehensive record of their thought process, provides an audit of their decision-making and records all inquiries instructed throughout the life of the case. However, due to a lack of sufficient information, they identified difficulty completing the IA to a meaningful standard within the target timescales. For example vulnerability reports, a report from the police providing information on the background of the victim, their needs, concerns, vulnerabilities and expectations, are often not available within the 7/21 day timeframe. Without this information, the victim strategy ^[39] cannot be completed.

81. SLMs and case preparers report that Crown Counsel has minimal input at the IA stage and that its introduction has made little difference to the number or frequency of last minute requests for work.

82. We found that there was a lack of clarity on the part of some Crown Counsel about their role in the preparation of the IA, with some advising that they do not have sufficient time to consider the IA in detail and that they rely on the assessment provided by the SLM.

Case Review

83. In our 50-case review we found only seven in which Crown Counsel, following consideration of the IA drafted by the SLM, requested additional investigations to be carried out.

84. In four of the seven cases, Crown Counsel instructed multiple additional investigations, including additional forensic and psychological reports, obtaining medical records, re-interviewing the victim and additional interviews of victims on specific points. In two, Crown Counsel instructed obtaining school records and a psychologist’s report to assess special measures requirements. In the remaining case, Crown Counsel adopted a different legal strategy.

85. In the 50 cases, the IA was submitted within target in only 4% of cases. On average, the IA was submitted 28 days after the accused appeared in court in custody cases and 3½ months in bail cases. This may indicate that that the current targets are not the optimum timescales for the completion of a meaningful IA.

86. Clearly, it is not an efficient use of a SLM’s time to try to complete the IA when they do not have all information needed to make an informed decision about further work required to complete the investigation. This also explains why Crown Counsel has identified that IAs add most value at a later stage, when the case is reported for a decision on whether to indict the case, often just before the expiry of the time limit.

87. As identified in our Management of Time Limits report, ^[40] late consideration of High Court cases, many approaching the time limit is a high risk strategy.

88. The ethos of the IA approach in ensuring early and detailed consideration of the evidence is sound and, if achieved, should minimise the need for late instruction of additional lines of inquiry. Such inquiries place an unnecessary burden on COPFS and the police, who are often instructed to carry out work within extremely short timescales.

89. For the IA to be meaningful and fulfil its intent, Crown Counsel requires to take a more proactive role and assume ownership of the IA. Failure of Crown Counsel to consider the IA in detail defeats its purpose and renders it an additional process that, in many cases, is generating no additional value.

90. More meaningful involvement of Crown Counsel at the IA stage may also assist with the earlier identification of cases where, as a result of inquiries instructed, the evidence indicates that there is no longer a realistic prospect of a conviction or proceedings are no longer in the public interest.

91. Armed with more information in the IA, Crown Counsel should confirm the decision to prosecute or provide an alternative instruction.

92. To realise the potential of the IA its target submission dates should be revised to enable a more detailed instruction on the direction of the case and investigation by Crown Counsel. To realise the intention of front loading the work at the IA stage, the target dates must be rigorously enforced.

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.

Reporting

High Court Unit

93. The High Court Unit ( HCU) is a specialised Crown Office unit that monitors all High Court cases, including sexual crime cases. Once an initial decision has been taken to proceed with a case in the High Court, the unit allocates a date by which the case should be submitted for consideration to the unit. This is known as the target report date.

Completion of Investigation

94. Following the agreement of Crown Counsel of the IA, cases are allocated to case preparers to undertake all lines of inquiry identified in the IA. Case preparers handle, on average, approximately 70/80 cases per year.

95. Once a case preparer has completed work on the case, their analysis and recommendations are considered by the SLM. The SLM will record if they agree or disagree with the assessment of the case preparer and provide an explanation for their reasoning. The case is then submitted to NSCU, along with a draft indictment, where proceedings are recommended. Each case is considered by Crown Counsel who make a final decision.

Indicting

96. Following an instruction by Crown Counsel at NSCU that a case is to be prosecuted in the High Court, it is passed to a team of indicters based in the High Court Unit. The indicter provides a quality assurance role to ensure that all evidential, legal and presentational aspects of the case are fully addressed. It is their responsibility to read the case, ensure that all relevant inquiries have been undertaken, identify any gaps where additional inquiries are necessary and check the accuracy and appropriateness of the charges on the draft indictment.

97. The indicter produces a note of outstanding issues that require to be followed up by the case preparer prior to the case being indicted.

Case Review

98. We found that indicters add most value to the drafting of appropriate charges. In 32 of the 50 cases reviewed indicters made material changes to the charges prior to the case being indicted.

99. Cases can often involve multi-accused, multi-charges and multi-victims. Of critical importance is identifying which accused appears on which charge(s), the victim(s) who relate to that/those charge(s), the dates of the charge(s) and evidence available to prove the charge(s). This can often be a hugely complex and time-consuming task.

100. In some cases involving multiple charges and crimes over a period of time, we found that the case preparer included, as part of the analysis, a specific paragraph setting out the evidential basis for the dates included in the charges. For example, it may refer to a particular statement or to documents such as housing or medical records to provide an explanation for the dates chosen. This is a practice that should be universally adopted.

Good Practice

In the analysis section of every case with charges spanning a period of time, the case preparer should include a section setting out the evidential basis for the dates selected.

101. Failure to number and describe labels and productions accurately and to deal with other administrative matters such as pagination is routinely flagged up by indicters. Indicters comment that they regularly highlight the same omissions and issues when revising cases. This is despite feedback being provided in each case.

102. It is unclear if the “safety net” of the quality assurance process provided by indicters results in a lack of detailed consideration by SLMs in relation to such aspects or if an increasing workload means SLMs have insufficient time to address such matters prior to the cases being reported.

103. To provide a greater understanding of the role of the indicter, some indicters, who specialise in sexual crimes, have met specialist teams to provide feedback and an insight to their role.

104. There would appear to be scope for more productive dialogue and interaction between indicters and the specialist teams and, in particular, the SLMs. A rolling programme of shadowing, or short secondments to the indicting team for SLMs or experienced case preparers would allow greater cross fertilisation of the skills that both possess.

105. Further, there is currently no mechanism to receive feedback from Crown Counsel on any issues they have identified during the course of a trial. As the case is prepared to enable Crown Counsel to present cases to the highest standard at court, their input to the preparation of the case is invaluable. One option would be for a representative of NSCU to attend the High Court Forum, a meeting of senior managers and representatives from VIA, the indicters and the specialist teams held quarterly to discuss all aspects of preparing and presenting High Court cases.

Good Practice

COPFS should introduce a rolling programme of shadowing, or short secondments to the indicting team for SLMs or experienced case preparers.

A representative of NSCU should attend the High Court Forum to provide feedback on any issues arising at court.

106. The indicting process currently takes place after Crown Counsel has read the completed case and issued a final instruction. The purpose of a quality assurance process is to address any deficiencies and enhance the final product. It would, therefore, make sense for the indicting process to be undertaken prior to the case being reported to the end user – Crown Counsel.

107. Indicters, working with the specialist teams, should revise the case and prepare a draft indictment prior to the case being submitted to Crown Counsel.

108. To avoid unnecessary work, if the indicter or the SLM concludes, after the investigation is complete, that a prosecution is no longer appropriate, the case should be submitted to Crown Counsel for a final decision, prior to the indicting process.

Recommendation 3

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

Indictment of High Court Cases

109. The IPS Thematic Report on the Management of Time Limits and the subsequent Follow up Report ^[41] identified a significant issue with High Court cases being reported close to their time bar. The evidence from our review of sexual crime cases suggests that this is still an issue.

Case Review

110. In 26 of the 50 cases we reviewed the indictment was served on the last date of service before the time bar. In 42 of the cases, the indictment was served within seven days or less of the time bar.

111. Due to pressure of business, cases are currently allocated to indicters by reference to the time bar. This means that any case reported to the High Court Unit earlier than its target date is not being indicted until close to its time bar.

112. Acknowledging the necessity to ensure cases are dealt with within the time limit, the current system fails to prioritise cases that are supposed to take precedence, such as those involving children, or the age profile of cases, including any periods of pre-petition investigation. A more sophisticated system of allocating cases for indicting is required to facilitate the appropriate prioritisation of certain categories of cases.

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.

Post Indictment

113. SLMs and case preparers have all commented that a significant amount of time is still spent carrying out last minute requests instructed by Crown Counsel in their preparation for the Preliminary Hearing and trial. This only adds to the strain on the specialist teams – in particular case preparers.

114. Case preparers have an existing workload of cases to prepare with reporting deadlines, and the requirement to juggle not insignificant requests for inquiries within very short timescales, adds to a pressurised working environment. In some instances, if the case has been reported timeously, it requires the case preparer to spend time re-familiarising themselves with the case, diverting them from their existing workload.

Case Review

115. In our 50-case review, we found only 6 cases (12%) in which additional productions, labels or witnesses had not been added after the indictment had been served. Additional witnesses, productions or labels are added by means of a written notice,[42] which may be objected to by the defence and/or refused by a judge. In one case, eight notices had been lodged adding items including forensic reports, books of photographs, medical records, expert reports, computer and telephone reports, and additional witnesses and labels. In essence the bulk of evidence on which the COPFS intended to rely on was added after the case was indicted.

116. On closer analysis, we found some types of evidence that were regularly added late, including:

• Forensic reports (18 cases)
• Transcripts of the interview of the accused (9 cases)
• Original witness statements (22 cases)
• Expert reports (10 cases)
• Medical, housing, social work and council records (15 cases), books of photographs (6 cases) and
• Witnesses (35 cases).

117. Recognising that requests for further work and/or inquiries to be completed after service of the indictment is unlikely to ever be eradicated, due to factors that are not directly attributable to COPFS, such as the late submission of information from other organisations, the non-co-operation of witnesses or late requests from the defence, there is certainly scope for the work at this stage to be reduced.

118. Productions such as transcripts of interviews, book of photographs and original statements should not routinely require to be added after the indictment has been served.

119. Of particular note, there was a pre-petition investigation in 11 of the cases where notices were lodged. In two of these cases there were five notices, adding forensic reports, books of photographs, transcripts, witnesses, statements and medical records.

120. There is an obvious risk, in relying on adding evidence in this manner, that the court will refuse to allow a notice, endangering the ability of COPFS to effectively prosecute the case.

Chart 5 - Number of notices in each case

Overview

121. Within the existing system, as depicted in the process flowchart below, a case passes through nine stages prior to an indictment being served on the accused. At three separate stages, the case is considered by Crown Counsel and either the SLM or the specialist prosecutor.

122. The double handling impacts on the time taken to process such cases and has not made a discernible difference to the amount of evidence being added after the indictment has been served or the post-indictment work being instructed.

123. With the experience and specialism that now exists in the sexual crime teams, we advocate a more streamlined process as depicted in the process flowchart below. This seeks to reduce double handling and front load the work at the IA stage and bring the indicting process forward to improve the quality of the final product when reported to Crown Counsel for a final instruction.

Current Process

Recommended Process