Area Inspection. Dumfries and Galloway

Transcription

1 Area Inspection Dumfries and Galloway Jan 2008

2 CONTENTS Preface Introduction 5-7 Page No(s) 2 - Case Analysis Managing Performance Disclosure Service to Victims and Witnesses Deaths Management Issues Relations with Criminal Justice Partners Equality and Diversity Securing Public Confidence Conclusions and Recommendations Appendix 1 Breakdown of Statistics for Dumfries and Galloway Area Appendix 2 Target Achievement 65 Analysis of Questionnaires Completed by Witnesses Crown Office and Procurator Fiscal Service Diversity Structure 69 2

3 PREFACE The Inspectorate of Prosecution in Scotland was initially created on an administrative basis in December 2003 and is part of the Scottish Government but independent of Crown Office and Procurator Fiscal Service. The Inspectorate was placed on a statutory footing in April 2007 by the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (sections 78 and 79). The Inspectorate has carried out one full cycle of office inspections based on race related issues. In addition thematic reviews usually in conjunction with criminal justice partners have been undertaken as follows: Thematic Report on Crown Office and Procurator Fiscal Service s Response on Race Issues Joint Thematic Report on the Provision of Services to Witnesses Case Study - a joint thematic inspection of Case Management Death Cases - A Thematic Report on Liaison in Death Cases with Particular Reference to Organ Retention Complaints Against the Police HM Chief Inspector reports directly to the Lord Advocate. All reports are published at: The function of the Inspectorate is to inspect the operation of Crown Office and Procurator Fiscal Service and make, where appropriate, recommendations that will contribute to improvement in Crown Office and Procurator Fiscal Service service delivery, making Crown Office and Procurator Fiscal Service more accountable and enhancing public confidence. All reports are submitted to the Lord Advocate and an annual report is laid before the Scottish Parliament. The Inspectorate is concerned with improvement. How outcomes and results have been achieved is examined and the identification and promotion of good practice and minimising risk is promulgated. The Inspectorate is committed to observing the Government s policy on the principles of inspection including taking a customer focus and all reports and recommendations being evidence based. Methodology: This inspection is the first of a new programme of Area (as opposed to Office) based inspections. The new programme will see all Areas (and Crown Office) inspected on approximately a three-year period. 3

4 It includes a combined compliance audit, audit of corporate governance, identification of any policy/practice gaps and identification of and promulgation of best practice. In preparation for inspection On site Local performance information, local business and other plans and general local information were examined Local policies and protocols were reviewed 125 recently closed case files were selected for review across all categories of offence and disposal methods Contact was made with local criminal justice partners and other community bodies and specialist agencies Meetings were held with criminal justice partners and other bodies Interviews were held with members of staff 4

5 1 INTRODUCTION As stated in its business plan the Dumfries and Galloway Area covers a large geographical area in the South West of Scotland. It is the smallest Area within the Crown Office and Procurator Fiscal Service in terms of the volume of reports received and accounts for about 4% of Crown Office and Procurator Fiscal Service caseload. There are two Procurator Fiscals offices in the Area situated at: 44 Buccleuch Street, Dumfries (covering Dumfries and Kirkcudbright) The Sheriff Court, Stranraer The Area Management Team is based in the Dumfries office. The Area covers Sheriff Courts at Dumfries, Stranraer and Kirkcudbright with District Courts at Dumfries, Stranraer, Kirkcudbright and Lockerbie. The Dumfries Office is due to be refurbished this financial year and the relocation of the Stranraer Office is being considered. The Dumfries and Galloway Area is responsible for: Considering, and taking appropriate action, on reports in respect of crimes committed in Dumfries and Galloway Conducting related prosecutions in the Sheriff and District Courts and investigating the most serious crimes for prosecution in the Sheriff and Jury and High Courts Investigating sudden deaths which occur in the Area and conducting Fatal Accident Enquiries Investigating all complaints alleging criminal conduct by police officers in Dumfries and Galloway and conducting related prosecutions The staffing structure for the Dumfries and Galloway Area is as follows: 5

6 DUMFRIES AND GALLOWAY AREA STRUCTURE AREA PROCURATOR FISCAL DISTRICT PROCURATOR FISCAL DUMFRIES AND KIRKCUDBRIGHT DISTRICT PROCURATOR FISCAL STRANRAER PROCURATOR FISCAL DEPUTE PROCURATOR FISCAL DEPUTE PROCURATOR FISCAL DEPUTE PROCURATOR FISCAL DEPUTE PROCURATOR FISCAL DEPUTE AREA BUSINESS MANAGER PROCURATOR FISCAL DEPUTE 2 nd YEAR TRAINEE DUMFRIES and KIRKCUDBRIGHT OFFICE MANAGER PRECOGNITION OFFICER PRECOGNITION OFFICER P/T PRECOGNITION OFFICER AREA PA VIA OFFICER DUMFRIES and KIRKCUDBRIGHT DISTRICT PA STRANRAER OFFICE MANAGER VIA ASSISTANT x 2 DUMFRIES AND KIRKCUDBRIGHT FISCAL OFFICERS X 14 plus Temporary Fiscal Assistant STRANRAER FISCAL OFFICERS X 3 6

7 The Area Business Plan states that the Area s population increased in 2006/2007 by 1%. Also highlighted in the Area Business Plan was the fact that the Area experienced a 5% increase in criminal reports received. Recent Crown Office figures 1 show that in year July 2006 to June 2007 there was an increase on the previous year of 7% which is higher than the national average of 2% in the same period. The Area Business Plan also indicated that there was a 45% increase in cases initiated by petition (i.e. the most serious cases) during 2006/2007. This information would have been gathered at a specific point in time and would have reflected the change in business during the periods reviewed. Recent Crown Office figures show that for period July 2006 to June 2007 there was an increase on the previous year of 14% of cases placed on petition and an increase of 19% in net petitions (cases remaining on petition after further information received and considered) compared with national figures of 15% and 15% respectfully. The Area Business Manager indicated that this is the eighth successive year that there has been an increase in the number of criminal reports received by the Area. 1 Figures extracted 04/09/07 7

8 2 CASE ANALYSIS Review of Case Marking and Processes As the main function of the Crown Office and Procurator Fiscal Service is the investigation and prosecution of crime a major focus for the inspection is how reports from the police and other agencies have been considered and what action taken. As part of the Inspection process 125 recently closed cases (all closed on the IT system in April 2007) were selected for review. The criteria was to select a number of cases relating to various different offences (ranging from minor statutory and nuisance offences to the most serious High Court matters) which would allow inspection of case marking and case processing decision-making across the full range of cases from receipt of the reports to closing off of the cases. Other than an attempt to review a variety of types of offences and disposals the selection process was essentially random and the number of cases reviewed is not intended to be statistically significant however the review process does provide a useful snapshot of the workings of the offices concerned. The review process involved requesting the original case papers and manually reviewing these together with interrogating the related IT Systems. 125 original sets of case papers were sought from the offices (mostly Dumfries but a few from Stranraer under each head of selection). Hard copy papers were provided for 106 cases, no hard copy having been processed for No Proceedings and Warnings cases and as such were not available. Where no hard copy papers were provided review was carried out solely by interrogation of the IT systems where this was possible. There are currently a number of IT Systems on which cases are processed and data preserved. The systems work in tandem and data is shared and moved from system to system and from hard copy to IT thus data integrity is an issue of some importance. RESULTS OF ANALYSIS: No Proceedings Markings The Procurator Fiscal has discretion to mark a case reported as No Proceedings. This means, as it says, there will be no action taken by the Fiscal by way of prosecution regarding the subject matter of that report. Indeed when that marking is disclosed to the accused the Crown is precluded from any prosecution. Crown Office and Procurator Fiscal Service guidelines and policy require the reasons for a No Proceedings marking to be clearly minuted on each case. There are a number of approved categories of reasons for No Proceedings 12 specific and a 13th reason of other specified reasons which must detail reasons why it would not be appropriate to prosecute. In short these 8

9 reasons range from there being insufficient admissible evidence available to secure a conviction to various other reasons why it would not be in the public interest 2 to prosecute or take other positive action against the accused (such as a Fiscal Fine or a Warning). 10 cases in which proceedings were not taken were selected for inspection for this report (8 from the Dumfries office and 2 from Stranraer). A high degree of adherence to Crown Office and Procurator Fiscal Service policy and guidelines was found with all cases being marked No Proceedings in compliance with stated policy and guidelines. In 1 case the incorrect category was selected as the reason for applying the No Proceedings marking but the marking itself was entirely appropriate (another category fitted the case). The breakdown of categories of reasons for No Proceedings in this sample was: 1 case - Civil remedy more appropriate (minor road traffic incident) 5 cases - Insufficient admissible evidence 4 cases - Further action disproportionate (although one case in this category should have been marked insufficient admissible evidence) Other Comments: Timings: There is an agreed protocol with the police that reports of criminal offences be submitted to the local Procurator Fiscal within 28 days of the offence or caution and charge. This target was met by the police in 7 of the 10 cases inspected. The Crown Office and Procurator Fiscal Service target to mark and implement further action in criminal cases reported to it has recently been enhanced; with effect from April The target until the end of March 2007 was to do so in 75% of cases within 5 weeks of receipt. From April 2007 this period has been reduced to 4 weeks. All cases in this sample were marked and closed within these timescales. It is noted however the Area is finding the new enhanced target challenging. In the year to March 2007 the Area substantially exceeded the 75% of cases take and implement target within 5 weeks by doing so in 89% of cases. In the period from April 2007 to July 2007 the monthly statistics indicate the percentage of cases meeting the new 4 week target have been 71%, 74%, 77% and 74% just marginally short of meeting the new target in 3 of the 4 months. 2 The Public Interest The decision whether to take proceedings and the nature of any proceedings will be determined by the Procurator Fiscal s assessment of the public interest. The Procurator Fiscal will have regard to the whole circumstances including the gravity of the offence. He will also take into account the interests of the victim, and the effect of prosecution on the accused and the local community or general public opinion. 9

10 Communication With Victim/Complainer: None of the cases were such that Crown Office and Procurator Fiscal Service guidelines would suggest initiation of communication and/or intimation of the decision with the victim/complainer. Interrogation of the IT system did not find any request for such information nor that any such contact was made. Good Practice: In 3 cases the marking Depute had taken time to correspond with the reporting officer to advise why the decision had been taken in the particular case and to provide advice for submission of future cases. Warnings The Procurator Fiscal has discretion as to what form of action should be taken in cases reported. Indeed where there is sufficient evidence of both a crime and that a particular person committed it, consideration should be given as to whether court proceedings are merited in the public interest or whether some other action would be sufficient. This may take the form, in minor cases, of issuing a Warning to the accused. This may be a written or personal warning although in practice personal warnings are rarely issued. This does not apply in cases reported by the Health and Safety Executive who have their own power to warn. In the year to 31 March 2007 only 49 offers of personal warning were made by the service as a whole i.e. throughout Scotland, with 9 of these being made in Dumfries. This fairly high proportion being in Dumfries is probably explained by the geography and rural nature of the jurisdiction. Once a warning has been issued the Fiscal has waived the right to prosecute in court. This system of warning does not result in a conviction against the accused. However, the Fiscal is required to keep a local register of warnings and intimate in the warning that should a further similar report be received court proceedings will be considered. 10 cases were selected for inspection for this report (8 from Dumfries and 2 from Stranraer). In line with the nature of this marking these should be minor offences and there was noted a high level of adherence to Crown Office policy in this sample with 1 notable exception. One of the cases was a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995 section 49 (carrying of knives in public places). Crown Office and Procurator Fiscal Service guidelines and policy are clear that warnings should only be issued where there is sufficient evidence against an 10

11 accused. At review it was noted there were 3 instances where a warning letter was issued and there was not ex facie a sufficiency of admissible evidence in the police report. One of these cases was the aforementioned carrying of knives in a public place case. Further inquiry with the police may have ascertained sufficiency in these 3 cases but this was not carried out. Timings: The police adhered to the timing protocol by submitting cases to the Procurator Fiscal in 8 of the 10 cases within 28 days of offence or caution and charge. In 1 of the cases submitted outwith this period the report was only 1 day late. Similarly the Fiscal issued the warning letter within the target of 4 or 5 weeks (depending on when the case was received) in 8 of the 10 cases and in the other 2 cases within days of receiving from the police further information which had been sought prior to marking. Communication with Victim/Complainer: None of the cases were such that Crown Office and Procurator Fiscal Service guidelines would require initiation of communication and/or intimation of the decision with the victim/complainer. Interrogation of the IT system did not find any request for such information nor that any such contact was made. Areas to be strengthened: Crown Office and Procurator Fiscal Service guidelines and policies are clear that warnings should only be issued where there is sufficient admissible evidence. The member of the public receiving the warning is unable to dispute the warning and as such great care should be taken that they are only issued in accordance with guidelines. While this is only a snapshot of cases it is concerning the high proportion that did not meet this standard. A warning letter was issued to an accused where the police report stated in terms the accused struggled with reading, writing and living independently. Details of the accused s social worker were provided in the report. Issuing a warning letter with legal jargon or wording to such an individual appears inappropriate. Fiscal Fines The Procurator Fiscal may in cases where there is sufficient admissible evidence of a crime committed by a named accused person, consider that action is merited in the public interest and that action stronger than a warning is required to mark the offence. In these circumstances there is statutory provision authorising the Procurator Fiscal to issue a monetary penalty by way of a Fiscal Fine or Road Traffic Fixed Penalty. 11

12 This is done in terms of statutory framework provided by The Criminal Procedure (Scotland) Act 1995 for Fiscal Fines and The Road Traffic Offenders Act 1988 for road traffic matters. The current penalties range from 25 to 100 for Fiscal Fines and to 200 for road traffic Fixed Penalties. Where the Fiscal Fine/Penalty is unpaid, unless there are compelling reasons, the matter should be taken further and prosecuted. The type of offences which may be considered for Fiscal Fines is self-limiting in that they require to be able to be capable of being prosecuted at the District Court in event of non-payment of the fine. The Road Traffic offences covered by the legislation are detailed in the relevant legislation. 10 cases were selected for inspection for this report (8 from Dumfries and 2 from Stranraer). These cases were chosen to provide a variety of offences and levels of Fiscal Fines offered. The cases inspected displayed full adherence to Crown Office and Procurator Fiscal Service policy and guidelines relating to this marking. All cases were appropriately marked as Fiscal Fine and the level of fine was within the appropriate range. Records indicate all the Fines were paid and further action was not required in any case. Timings: All 10 cases were submitted by police within the agreed time protocol. All 10 cases were marked by the Fiscal within 5 weeks of receipt (all of these cases were received at the Procurator Fiscal s office prior to the reduced period now targeted for taking and implementing decisions). The offences disclosed in the inspection were principally Misuse of Drugs Act 1971 section 5(2) (possession of small quantities of cannabis for personal use), contravention of Civic Government (Scotland) Act 1982 section 47 (urinating in public), minor Breaches of the Peace etc. Although there were 10 cases these involved a total of 14 accused persons (a number of cases had multiple accused) and the fines offered ranged as follows: 2 x x 50 1 x 75 1 x 100 All of the penalties offered were paid by the accused who have the right not to pay should they disagree with either the evidence that they committed the alleged offence or the level of penalty offered. 12

13 Good Practice: All cases were processed by the police and Procurator Fiscal Service ahead of time targets. All cases were properly marked for this alternative and with an appropriate level of penalty. The offences have accordingly been dealt with by the Criminal Justice System without the necessity of court proceedings. It is anticipated that the Summary Justice Reform, which is being introduced by the Criminal Procedure Reform etc (Scotland) Act 2007, will have a significant effect on both the number of cases being processed by way of Fiscal Fine and the level of Fine available (a fine of up to 300 with the Procurator Fiscal additionally being able to offer the accused the opportunity to pay up to 5,000 in compensation) - these reforms are due to come into force in No Further Proceedings The Procurator Fiscal retains the duty to prosecute in the public interest throughout the course of proceedings. Where circumstances change and it is no longer in the public interest to prosecute then the Prosecutor should discontinue proceedings as appropriate. This may be by stopping the proceedings completely and marking the case as No Further Proceedings or accepting a plea to some charges as current circumstances or evidence dictates. Similarly to the No Proceedings marking there are categories within the No Further Proceedings marking that require to be completed on the case papers to record the reason for this final marking. There are 14 detailed categories eg Accused dead, Acceptable explanation offered 3 etc together with a 15 th reason of Other which must only be used where none of the other specified reasons apply and a specific set of circumstances apply to that particular case. With each of the categories comes a code to be inserted on the paperwork with the reason for this marking and this code is transmitted to the IT system for statistical purposes. 10 cases were selected under this head (8 from Dumfries and 2 from Stranraer). Original case papers were recovered in 8 of the cases; consequently full review of 2 cases was not possible. The cases were chosen to provide a variety of types and gravity of offence and coincidentally all cases were chosen from the Other category, otherwise the selection of cases was random. In relation to the 2 cases where papers were not provided by the local office 1 of these related to a minor case some 10 years old which appears to have 3 Where further information now provided which amounts either to a complete defence or to a substantial plea in mitigation such that it is no longer appropriate to prosecute in court 13

14 only been formally closed off on the IT system in April It is impossible to comment on the marking, if indeed this is an accurate record of the marking, as the system seems to indicate there was a successful prosecution against one accused and No Proceedings against a second accused. The second case, a case that had proceeded to Sheriff and Jury trial before being deserted, simply had a short note indicating the reasons for discontinuance being difficulty with statements. Without the original file a view of the propriety of this decision is not possible. In all cases fully reviewed it was found that the decision to take No Further Proceedings complied with Crown Office and Procurator Fiscal Service policy and guidance. In 5 of these 8 cases however the incorrect category of No Further Proceedings marking was noted on the IT System. It is of note that in those 5 cases the Depute marking the case has failed to insert the recognised code on the papers albeit they have narrated the reason for the decision on the hard copy case papers. On the No Further Proceedings marking being entered on to the IT System the Other code has been inserted although the reason narrated may more properly fit one of the specified categories provided. A Fiscal Officer rather than a legally qualified Fiscal Depute carries out the job of entering the code on the IT System. Good Practice: In the 8 cases subject to full review the Fiscal had taken proper cognisance of further information and change of circumstances and reviewed the original decision in the case and prevented further and unnecessary court proceedings. Reasons for the change of marking have been correctly marked on the papers. Areas to be strengthened: The Depute marking the No Further Proceedings final marking has in 5 of 8 cases failed to use the up-to-date published marking category codes. The wrong code has been entered on the IT System. This results in data integrity issues. It is of note that in this selection of 10 cases 5 demonstratively have the wrong code attached to the marking. District Court Cited Cases The Dumfries and Galloway Area has 5 District Courts operating in its jurisdiction; these are based at Dumfries, Kirkcudbright, Stranraer, Lockerbie and Annan. There are currently in excess of 2,000 cases prosecuted each year at the District Courts in the area - 2,139 cases disposed of in the year to June

15 The District Court is the forum for prosecution for the more minor criminal offences reported to the Procurator Fiscal which merit, in the public interest, either direct prosecution at court or prosecution at court because an alternative has failed such as a Fiscal Fine has been offered and remains unpaid. District Courts can competently try a wide range of crimes and the magistrates have powers to impose fines up to 2,500 and/or 60 days imprisonment (regulated by the Criminal Procedure (Scotland) Act 1995 s7). This scale of sentencing power effectively self-limits the type of offence that can appropriately be tried at the District Court. Legislation specifically prohibits a number of more serious offences being tried at the District Court eg murder, rape, assault to the fracture of a limb, housebreaking etc and in addition the Lord Advocate has formally directed that particular types of crime should as a matter of principle not be prosecuted at the District Court eg breaches of (or offences aggravated by a breach of) Sex Offenders Orders, where a Non-Harassment Order would be an appropriate disposal or cases involving a racial element etc. Crown Office and Procurator Fiscal Service guidelines require that an alternative to prosecution be considered before court proceedings are initiated in less serious cases and that where the Procurator Fiscal marks a case for immediate prosecution at the District Court the reason for so doing is minuted (unless the reason falls within a defined category of cases not to be offered an alternative to prosecution). 20 District Court cases were selected for inspection, 15 cases from Dumfries and 5 from Stranraer. These cases were chosen to provide a variety of offences both statutory and common law ; otherwise the selection process was random. 15 original sets of hard copy papers were recovered and reviewed. In all these cases there was sufficient evidence to prosecute and Crown Office and Procurator Fiscal Service policy and guidelines were followed. It was appropriate to prosecute all these cases in the District Court. All cases met the 5-week target and 13 were reported by the police within 28 days. The reason proceedings were taken at the District Court was minuted on the IT system in all cases where this was required although it was noted in a number of cases this was done by a Fiscal Officer rather than the legal member of staff who had marked the case suggesting this step had been omitted at first instance by the marking Depute. The reasons minuted were, however, all appropriate and in accordance with Crown Office and Procurator Fiscal Service guidelines and policy. The reasons 15

16 provided included 7 cases of statutory vandalism (Criminal Law (Consolidation) (Scotland) Act 1995 section 52) where compensation might be an anticipated disposal and 5 cases where there was previously unpaid Fiscal Fine. The remainder of the cases were miscellaneous minor offences where it was appropriate the matter be prosecuted at court eg due to the accused s record, nature of the offence etc. All cases reviewed proceeded upon reports received from the police as the reporting body. The police reports contain draft charges and in a number of these the marking Depute had improved these by making stylistic changes and in one case had removed the draft charge and substituted a more appropriate statutory charge albeit none of the police draft charges were incompetent. In all occasions the resulting charges were of good quality and would be resilient to legal challenge on competency or relevancy. Preparation for Trial at Case Marking Stage: It was noted that in all Stranraer cases reviewed Those witnesses who would be required for any subsequent trial were identified Where possible the witness highlighted if it appeared evidence could be agreed Productions required for any trial were noted and Instructions provided re service of statutory certificates etc It is of note this step in case preparation was carried out in only one of the Dumfries cases reviewed. Disclosure: There has been a significant change in processes relating to the disclosure of evidence required by the Crown since the judgements issued by the Privy Council in the cases of Holland and Sinclair in There is now a presumption in favour of disclosure of witness statements to the defence in all cases where a not guilty plea is tendered and a trial fixed. This has involved fresh protocols being agreed with the police about the submission of statements and arrangements about checking of the statements and provision of these to defence solicitors. The IT systems allow for these procedures to be set in place at the marking stage to avoid double-handling of cases (i.e. a second Depute reading the case to choose witnesses should there be a trial fixed). At the marking stage Stranraer cases reviewed were marked for disclosure of witness statements in the event of a not guilty plea and a trial being fixed. In the event all Stranraer cases pled guilty at the first calling and the statements 16

17 did not require to be disclosed. In contrast only one Dumfries case had been so marked for disclosure. Preparation for Trial: Only 2 of the cases in this sample had a plea of not guilty (or partial plea of not guilty) tendered requiring a trial to be fixed. Both of these cases were from the Dumfries office. In neither of these cases were witnesses identified for citation, full statements marked for request, an order made for lodging of productions or statements identified for disclosure to the defence at the marking stage. These steps were clearly taken shortly after the Pleading Diet (first calling in court of the case in summary procedure) and procedures set in motion for full statements to be lodged, witnesses to be cited etc but the IT systems do not retain full details of when, how and by whom this was carried out. It is of note that in both cases the full statements - as received - were not sent to the defence by way of disclosure within the agreed time framework i.e. no later than 28 days prior to the Intermediate Diet. In one of the cases the disclosure statements were sent to the defence, according to the IT System on 30 March 2007 (after the intermediate diet) albeit the statements were marked to be disclosed on 12 March 2007 and had been received, again as recorded on the IT System, on 19 February In this case the Intermediate Diet was fixed for 29 March 2007 the original trial diet fixed for 12 April 2007 was adjourned for an unrelated reason and the matter proceeded to trial on 26 April In conclusion it would appear that the statements were not disclosed to the defence timeously. In the second case where at Pleading Diet on 13 July 2006 a trial was fixed for 5 October and Intermediate Diet for 21 September 2006, the agent sent 4 requests for disclosure statements. The statements were submitted to the Procurator Fiscals office by the police in 2 batches: police statements on 8 August 2006 and the civilian statements on 4 October 2006, which was the day before the trial diet. The police statements were disclosed on 18 September 2006, more than a month after they had been received and 3 days before the Intermediate Diet) The civilian statements were noted as being sent for disclosure on 4 October i.e. the day they arrived in the Procurator Fiscal s Office. It appears from interrogation of the systems that PCOCs (Previous Convictions and Outstanding Cases for civilian witnesses) were neither sought, chased nor disclosed. At the Trial Diet on 5 October 2006 the accused pled guilty as libelled. In neither of the cases reviewed did the Crown require to seek a further Intermediate Diet to allow further preparation. 17

18 There was no evidence of a formal checklist procedure being carried out prior to trial diets; however, the papers were reviewed in office in preparation for trial as evidenced by instructions noted on the papers. It is of note there was failure to comply with agreed arrangements relating to timings on disclosure to agents. Although there were notable difficulties regarding case preparation in context this review considered only 2 cases that proceeded to Trial Diet and the Area as a whole produces a very high rate of pleas of guilty at Pleading Diet. The figures for pleas at Pleading Diet (at the District Court) to years ending June 2006 and June 2007 are 88% and 89% respectively as opposed to national corresponding figures of 78% each year. It is anticipated that the Summary Justice Reform, which is being introduced by the Criminal Procedure Reform etc (Scotland) Act 2007 will have a marked effect on both the number of cases being processed by way of Fiscal Fine and the level of Fine available (up to 400) these reforms are set to come into force in Summary Sheriff Court Cases The Dumfries and Galloway Area has 3 Sheriff Courts operating in its jurisdiction; these are situated at Dumfries, Kirkcudbright and Stranraer. In the year ending June 2007 there were 4,240 cases prosecuted which is an increase of 14% on the previous year s 3,704. The Sheriff Summary courts can competently try a wide range of crimes with a few excluded by statute such as murder, rape and treason. The maximum sentences available to the Court are of a fine up to the prescribed sum ( 5,000 until December 2007 when it will rise to 10,000) and up to 12 months imprisonment depending on the offence or record of the accused. 50 Sheriff summary cases were selected. We requested 10 cases where the accused had been kept in custody by the police pending appearance at court from Dumfries, 5 custody cases from Stranraer, 30 cases where the accused was not in custody for the offence and 5 from Stranraer. We examined 46 sets of papers, 14 of which were custodies. Custody Cases: 14 custody cases were examined. 4 immigration cases from Stranraer were all marked for opposition to bail. 6 cases were Domestic Abuse cases:- 18

19 3 were marked that bail was not opposed but special conditions were sought. In each case bail was allowed with special conditions. 1 was marked that bail was not opposed but special conditions sought. The Accused pled guilty. 1 was marked that bail was to be opposed; bail was refused. 1 was marked that bail was to be opposed, bail was granted but with special conditions. The decision was not appealed. Of the remaining 4 custody cases: - 1 was marked that bail was to be allowed on the standard conditions. 1 was marked that bail was to be opposed and bail was refused. 1 was marked that bail was to be opposed and the accused pled guilty. 1 was not clearly marked in relation to the bail position and there was no custody statement. The absence of custody statement would suggest bail was not being opposed. All the cases examined with the exception of the last mentioned had an appropriate bail marking. The last mentioned case was suitable for bail and absence of custody statement would suggest that the appropriate decision has been made. Marking: All 46 cases reviewed proceeded upon reports received from the police as the reporting body. The police reports contain draft charges and in a number of these the marking Depute had improved these by making stylistic changes and in a few cases adding in Bail aggravations, which the police had omitted, and in some cases the charges had been appropriately merged. All cases were marked in compliance with Crown Office policy. 19

20 Preparation for Trial at Case Marking Stage: As noted in our examination of District Court case - in Stranraer there is a practice of full preparation at the case marking stage, Dumfries do not follow this practice. In Dumfries in the year to June % of cases pled guilty at the Pleading Diet, in Stranraer in the same period 55% of cases pled guilty at that stage and in Kirkcudbright 64%. Nationally for that same period only 45% of cases pled guilty at the Pleading Diet. No cases were identified where early diets should have been sought. Disclosure and Preparation for Intermediate and Trial Diets: As detailed in our analysis of District Court cases the new process of disclosure has involved new working practices with criminal justice partners. In 25 cases out of the 46 pleas of not guilty were tendered and Intermediate and Trial Diets fixed. The disclosure requirements were complied with in 11 cases. In 4 cases we could not ascertain if the time limits were complied with. In 8 cases it was impossible to meet the time limits due to when the statements were submitted by the police. In 2 cases the statements were submitted on time but not disclosed timeously. Intermediate Diet checklists to ensure the case is fully prepared for trial were used in both offices. In some cases it is clear that Intermediate Diet checklists have been used and it is evident in all cases that pre-trial preparation was carried out but the formal checklist was not always present on the file which may be due to weeding (i.e. removal of non-essential papers prior to storage). In one drugs case we found no forensic report available at the Intermediate Diet. The accused failed to appear and a warrant taken. We could find no evidence of the forensic report being chased up and no sign of receipt. The accused subsequently appeared from custody and pled guilty to another charge. In one custody case the Intermediate Diet was adjourned for a week, as witnesses had not been cited. At the continued Intermediate Diet the accused was liberated and further diets fixed in normal course. None of the cases we examined required special measures such as screens or CCTV (where the witness would give evidence through a live link with the courtroom). 20

21 Preparation for Trial At Trial Diet: At Intermediate Diet 10 cases maintained the plea of not guilty. 6 of these proceeded to trial without the necessity for any further work and were resolved at the trial diet. 3 cases were adjourned, 2 on defence motion. The motions to adjourn in the circumstances appeared reasonable. In one case the police produced CCTV evidence of which neither Crown nor Defence were aware. The other 2 cases were adjourned on Defence motion, in 1 to obtain expert evidence, and in the other the defence had just been instructed. Referrals to Victim Information and Advice: Of the 46 cases 7 were appropriately referred to VIA. VIA (Victim Information and Advice) is part of Crown Office and Procurator Fiscal Service and has 3 main functions: To provide information to certain victims, witnesses and bereaved next of kin about the criminal justice system To keep victims, witnesses and bereaved next of kin informed about the progress of cases To advise on and facilitate referral to other agencies for specialist support and counselling as required We found that the 7 cases, which were referred to VIA, were done so appropriately, one was a race case and the others domestic abuse. One of the cases examined, however, should have been referred to VIA but was not. The case involved witnesses said to be in fear due to the reputation of the accused and in the full statements one of the witnesses was described as petrified. Good Practice: We found that all pleas of guilty accepted were appropriate and reasonable and that all cases were marked and prosecuted in accordance with Crown Office policy and guidelines. Areas to be strengthened: It was not always clear from the available papers if productions had been requested but only 2 cases were identified where there were issues with productions. One case was the case mentioned earlier where CCTV evidence was produced at the trial diet, which was not previously known about. 21

22 We found that there may be an issue with the audit trail for cases. In some cases where there were productions we could not find hard copy or any indication on FOS, SOS or PROMIS (IT systems) to confirm that they had been requested. Additionally communication by without putting a copy in the file compromised the audit trail. We found one case where this may have been an issue. Solemn Cases In serious cases (solemn cases) the case goes through an extra stage of investigation called precognition and this means that the Fiscal or a member of the Fiscal s staff may see witnesses as well as instruct and oversee any other further investigation required by the case. The case will then be reported to Crown Office for a further layer of checking and instructions on how to proceed. Proceedings in solemn cases in the High Court or Sheriff and Jury courts are taken in the name of the Lord Advocate. The Solicitor General for Scotland and Crown Counsel assist the Lord Advocate in issuing instruction in serious cases and prosecuting in the High Court. Crown Counsel is the collective name for the Lord Advocate s Deputes, Advocate Deputes. Serious cases are split as follows: Cases where the likely sentence is likely to be more than 5 years imprisonment are prosecuted by Crown Counsel in the High Court and Cases likely to attract a sentence of 5 years and less are prosecuted in the Sheriff and Jury Courts by Procurators Fiscal Solemn cases start, in the main by the accused appearing first on Petition in the Sheriff court. The case is then prepared for court by the Procurator Fiscal by precognition, a process that requires prompt, thorough and effective investigation of a reported case. 4. Crown Office and Procurator Fiscal Service in its stated key objectives commits to give priority to prosecution of serious crime, including drug trafficking 5. There are specific Crown Office and Procurator Fiscal Service guidelines and policies setting out standard procedures that require to be followed to achieve this aim. There are in general more onerous duties of investigation and preparation in High Court cases than in other cases. It was reported to us that the general countrywide increase in solemn work happened in Dumfries and Galloway in advance of the rest of the country. When the last Principal Depute retired he was not immediately replaced and 4 COPFS Book of Regulations Chapter 4 5 COPFS Strategic Plan

23 this left a significant gap in the management of the solemn work at Dumfries. (The principal depute post has been filled since our inspection took place) The District Fiscal had to take on the duties of the Solemn Manager but it was not physically possible for him to carry these out in addition to his designated work. Consideration was given to a solution to this problem and what was put in place was a 2-team system of Precognition Officers and legal staff with operations being overseen by the 2 legal managers of the teams who were both of Depute grade. The legal staff in Dumfries are all extremely experienced and there was confidence that they would be able to take on some of the devolved duties expected of legal managers in solemn work. This structure is not as specified in Crown Office and Procurator Fiscal Service Book of Regulations Chapter 4 but there was a conflict with the Book of Regulations and the reality in the Office. Initial allocation of precognitions would be carried out by the District Fiscal who would review the cases and carry out some of the necessary pre-precognition work. Corners could be cut in the pre-precognition work required as the cases would be overseen by 2 very experienced members of legal staff. There was considered no need to give specific instructions in the majority of cases. The legal manager posts were rotated round the legal staff. The cases would then go to the teams for precognition. The precognition and legal staff worked very closely and the team system worked well particularly for the new Precognition Officer. Cases are reviewed and countersigned by the legal managers although the District Fiscal would countersign some cases, for example if the Deputes were on leave or road traffic collision deaths. We requested 10 Sheriff and Jury cases and 5 High Court cases. Sheriff and Jury Cases We requested 8 cases from Dumfries and 2 from Stranraer. The Dumfries Office could not find one set of papers. In these cases we found confirmation of the high level of pleas reported by the Area. In all bar one of the cases the accused pled guilty removing the need for a trial. In 5 cases the accused pled guilty by accelerated procedure (section 76 indictment), which can spare the precognoscer in whole or in part from full precognition of the case. In 3 of the cases the accused pled guilty at a first diet (a hearing in advance of the trial) meaning that witnesses could be advised in advance that they did not have to come to court. In the remaining case the accused went to trial and was acquitted. 23

24 Marking: Looking at the initial charges used by the Fiscal we found that in 8 of the cases the initial charges (on the petition) were well drafted by the Fiscal. In 7 of the cases changes were required to the police charge. In some cases these were minor or to add detail. Judicial Examination: In none of the cases were judicial examinations (limited questioning which can be asked of the accused by the prosecutor in Court at first or second appearance in court) carried out. There were no cases where we considered that such an examination should have been carried out. Custody Cases: In 5 of the cases the accused remained in custody until the police reported the case to the Fiscal. In all of those cases the Fiscal correctly applied Crown Office policy and opposed bail. In one case where it was appropriate when the court was granting bail in the face of Crown opposition special conditions were sought to be attached to the bail order. Precognition Process: It is expected that a Solemn Legal Manager of at least Principal Depute grade will give detailed guidance to precognoscers. The duties laid down on these managers are onerous and in the Dumfries Office, as detailed above, this does not happen. Given that in the main these cases were going to experienced legal members of staff the risk involved is relatively small. 7 of the cases went to such members of staff, in one case guidance was given and in another we could not tell from the case papers submitted to us whether guidance had been issued or not. Disclosure: Disclosure of Crown witness statements should generally be made within 28 days and we found that this was done in 4 cases, late in 3, one case was an early plea and it is not known in the remaining case when disclosure was carried out. Performance against Departmental Targets: Crown Office and Procurator Fiscal Service has set targets for processing of cases either in accordance with statutory time limits or in some cases to deliver justice with appropriate speed. The targets for Sheriff and Jury Courts are to indict 100% of custody cases where the accused has been remanded in 24

25 custody pending trial within 80 days of the accused s appearance at court for committal for trial and Dumfries and Galloway meet that target. In bail cases the Departmental targets in bail cases are to indict 80% of cases within 9 months and 60% within 8 months. It was of note that despite the increase in solemn business the Crown Office and Procurator Fiscal Service targets have been achieved and exceeded. In the year April 2006 to March 2007 the 80% target in 9 months was exceeded (96%) and the 60% in 8 months exceeded (91%). From April 2007 to June 2007 the 80% target in 9 months was exceeded (92%) and the 60% in 8 months exceeded (79%). Crown Office also has internal targets for reporting precognitions to Crown Office and all bar one of the cases were reported to Crown Office when they should have been. Good Practice: In general we found good evidence of communication with the defence, which has borne fruit in the large number of pleas resulting in witnesses not having to come to Court. Areas to be strengthened: In one case we found that where an accused person reneged on an accelerated plea of guilty the matter did not appear to be re-reported to Crown Office. A lack of minuting (i.e. recording of what had happened with a case) on the papers although most gaps could be supplemented with the electronic record in some cases. High Court Cases The High Court in Scotland is the highest court for criminal proceedings and sits permanently in Edinburgh and Glasgow and regularly elsewhere throughout the country including in Dumfries. The most serious cases must be prosecuted at the High Court - these are defined by statute (including as would be expected murder and rape), cases where there is a likelihood the sentencing powers available to the High Court are required i.e. a sentence higher than that available at Sheriff and Jury level (maximum of 5 years imprisonment) or the offence is of such a nature that public policy requires the case be treated with this gravity. Volume of Cases: 25

26 It was of note the increase in cases proceeding to the High Court at the Dumfries and Galloway Area for the period year-end June 2006 to year-end June 2007 increased by 19% (an increase of 31 cases to 37 cases) whereas the increase for the Crown Office and Procurator Fiscal Service nationally for the same period was 1%. This is a significant additional workload. Performance against Departmental Targets: Crown Office and Procurator Fiscal Service has set targets for processing of cases either in accordance with statutory time limits or in many cases exceeding these time limits to deliver justice with appropriate speed. The targets for High Court cases are currently to indict custody cases (i.e. where the accused has been remanded in custody pending trial) within 80 days of the accused s appearance at court for committal for trial; and where the accused is liberated on bail to indict all cases within 10 months of the accused s first appearance on petition. These 2 targets are essentially in accordance with legislative requirements and an enhanced target to indict 80% of the bail cases within 9 months of first appearance. It is of note that notwithstanding the increase in volume of High Court cases in the Area the Crown Office and Procurator Fiscal Service targets have been achieved and in fact exceeded. In the year to March 2007, 100% of High court cases indicted met all targets - both statutory and Departmental enhanced - and the available figures to June 2007 indicate this level of performance has continued. This is a commendable performance. Guilty Pleas: It was of note that the number of early pleas of guilty by section 76 procedure was significantly higher in the Dumfries and Galloway Area as opposed to the service as a whole. In the year to June 2007 Dumfries and Galloway dealt with 45% of its cases in this way as opposed to 15% of cases nationally. In the previous year the figures were similar - 48% Dumfries and Galloway and 17% nationally. Case Review: 5 High Court cases were selected at random. The papers received were 4 Dumfries cases and 1 Stranraer case. 3 of these cases had ultimately been resolved by way of section 76 plea. In 2 of the cases the section 76 cases the plea had been received sufficiently early to avoid the full precognition process and as such there was no full precognition prepared. In 1 case the full precognition process had taken place and the case prepared for report to Crown Office when the section 76 letter arrived. Of the 2 cases which resulted in the accused being indicted to trial at the High Court only parts of the paperwork were available for review eg correspondence files missing and as such the review was carried out on the available paperwork and interrogation of the IT Systems. 26