Chapter 11 – Statements
"In all cases in which a not guilty plea has been tendered and a summary trial has been fixed, full witness statements should be prepared by the police, if they have not been prepared earlier."
The Summary Justice Review Committee "Report to Ministers" 2004
Recommendation 2A of the Bonomy Report focused on the issue of witness statements and recommended the setting up of a working party to review how witness statements are taken and in what circumstances they might be disclosed to the defence. The ACPOS and COPFS Working Group formed to develop the Joint Protocols considered this area. and thereafter recommended that the issue of statements be addressed through the following:
- Statements submitted to the Procurator Fiscal (in electronic format) must, on the face of such statements, record the source of the statement and describe the method of authentication - [ ACPOS/ COPFS - Rec. 23]
- There should be common practice across Scotland for the layout and completion of transmitted statements - [ ACPOS/ COPFS - Rec. 24]
- A set of data standards for statements should be developed through ISCJIS - [ ACPOS/ COPFS - Rec. 25]
- Suitable templates for pro forma statements for a range of witnesses should be developed jointly by a short-term ACPOS/ COPFS Working Group - [ ACPOS/ COPFS - Rec. 26]
- ACPOS should agree to adopt the principle that it is the responsibility of the statement taker or author to ensure that any statement is both accurately recorded and appropriately sourced and authenticated - [ ACPOS/ COPFS - Rec. 27]
- ACPOS should endorse the key role of the Supervisory Officer in ensuring the reliability of statements - [ ACPOS/ COPFS - Rec. 28]
- ACPOS and COPFS should commit to a process of full disclosure in all solemn cases - [ ACPOS/ COPFS - Rec. 29]
- COPFS should consider a pilot for routine disclosure of a summary of the Crown case in summary cases - [ ACPOS/ COPFS - Rec. 30]
- Police statements in solemn cases should be routinely prepared on the understanding that sensitive material will be excluded from the disclosure process and such material should be contained in an addendum to, rather than in the body of, the statement - [ ACPOS/ COPFS - Rec. 31]
The timely provision of good quality witness statements to the Procurator Fiscal can have a significant bearing on the progress of a case, especially where there is a possibility of a guilty plea at an early stage. It is imperative that the police give sufficient importance to taking and submitting to Procurators Fiscal properly authenticated witness statements, in accordance with appropriately recognised timescales.
11.1 Submission of Statements
It was clear to HMIC and IPS that improvement in relation to timeliness and quality for Standard Prosecution Reports has not been mirrored in the case of submission of statements.
Consultation with the Sheriffs' Association reveals that new disclosure requirements have created additional pressures for the police and the prosecution service in relation to preparing and providing witness statements. Sheriffs in many courts have been aware of difficulties with the timeliness, and quality, of statements since well before the recent developments in the law. Sheriffs are not generally in a position to know if late statements are the result of delay by Procurators Fiscal, the police or both, but are aware of the impact on efficient planning and timely disposal of court business. Sheriffs have expressed disappointment over continuing problems of discomfiture of police witnesses giving evidence in trials, when discrepancies are discovered between their evidence in court and the statement that they purportedly prepared themselves. More serious is a perception amongst Sheriffs of persisting problems of poorly prepared civilian witness statements, unnecessarily giving rise to stress for witnesses and opportunities to attempt to undermine their evidence.
Submitting statements was included in the overarching ACPOS/ COPFS target of 14 days for forces to respond to requests for information from Procurators Fiscal. Despite this, the inspection team found that the target was largely ignored by both services. In respect of solemn and summary custody cases, Procurators Fiscal request that statements are submitted "immediately" or within seven days. In respect of solemn and summary bail cases, the return dates varied between 21 and 28 days. Return dates also varied considerably in respect of non-custody summary cases. Forces were critical of Procurators Fiscal apparent lack of acknowledgement of operational policing requirements, shift patterns and rest days, when requesting full statements.
The inspection team noted that the lack of consistency and potential confusion posed by different dates appearing on statement requests, led to forces deciding when to submit the statements. This invariably means that statements are submitted against the latest date. HMIC and IPS recognise the similarity between statement requests by Procurators Fiscal and requests for information (Chapter 10). All statement requests should be managed using the following information:
- date the statements are requested
- date the statements are required by PF
- date the statements are received by PF.
HMIC and IPS suggest that all Procurators Fiscal requests for statements are routed through a single point of contact within forces or divisions, possibly the case management unit or co-located officers. On receipt of such a request, the force should seek to deliver the statements by the date requested by the Procurator Fiscal. As with requests for information, forces and Area Procurators Fiscal should routinely monitor performance, to identify unacceptable delays by officers or unrealistic dates being set by Procurators Fiscal.
While standard prosecution reports are transmitted electronically between forces and Procurators Fiscal, it is common for Procurators Fiscal to request statements by letter or fax. This paper-based approach has the potential to cause problems in relation to receipt, recording and allocating requests. Although some forces use effective electronic systems for fulfilling statement requests, the inspection team established that, in many cases, processing requests was inconsistent and, at times, haphazard. The inspection team also discovered some confusion within forces in relation to the ability of COPFS computer systems to record requests and receipt of statements. HMIC and IPS found that no meaningful management information was available in respect of statement requests.
On the basis that Procurators Fiscal initiate and receive all statement requests, it would appear logical here too that FOS is adopted as the primary system to record the three key dates and provide performance information. As with requests for information, this may require some additional development to the FOS system and include new functionality that automatically receipts responses to statement requests. HMIC and IPS recommend that COPFS explore the feasibility of using FOS to record and monitor performance in relation to statement requests.
Recommendation 12 - that ACPOS and COPFS establish a new target for submitting statements, set against the date by which the response is required. COPFS should also explore the feasibility of using the Future Office System ( FOS) to record and monitor performance in relation to submitting statements.
Whilst HMIC and IPS recognise that all forces and Area Procurators Fiscal are making efforts to enhance the submission of witness statements, developments in two force areas were seen as good practice.
Fife Constabulary recently introduced a Statement Section, where one of the report checkers assumes the role of liaison officer for all statement requests. This officer provides a single point of contact between the Procurator Fiscal, supervisory officers and reporting officers. This ensures that all requests are properly managed and submitted timeously. The CrimeFile system is used to prompt supervisory and reporting officers where statement requests are nearing their submission dates. The role also ensures that procedures are in place to fast track urgent and petition statements. The Statement Section processes in the region of 9,600 statement requests per year and provides significant time savings for reporting officers.
Strathclyde Police has introduced an Intranet Case Reporting System ( ICRS), which coincided with a force training programme on the launch of the National Standard Statement. Individual officers are responsible for evidential quality; however the system has control mechanisms in place to ensure that non-evidential aspects of the statement are addressed. A statement can be tracked from the time it is typed up to submission to the Procurator Fiscal. This allows for contingency options in an officer's absence. Statements can also be forwarded directly to the Procurator Fiscal when ready, avoiding the need to wait until the entire set has been completed. Furthermore the system will provide meaningful management information.
11.2 Holland and Sinclair
The decision of the Judicial Committee of the Privy Council in the cases of Holland and Sinclair 16 came into effect on 1 September 2005. The Crown now has a duty to obtain and disclose witnesses' statements as well as Previous Convictions and Outstanding Cases ( PCOCs) for some witnesses whom the Crown intends to call to give evidence in summary court proceedings. This has implications for all agencies involved within the criminal justice process. In September 2005 a joint ACPOS/ COPFS Conference addressing this complex issue was held at the Scottish Police College. Delegates agreed that there was also an opportunity for "faster, fairer and effective justice" within the context of the wider criminal justice reform programme.
Although it is appreciated that work is needed to maximise the efficiency and effectiveness of processing statement requests, the inspection team has confirmed that the Holland and Sinclair developments have drawn the timescales for the submission of statements into sharper focus. The inspection team found that, in general current processes for processing disclosure requests are loose and disjointed. The majority of forces and Area Procurators Fiscal believe that the implications of PCOCs will place a significant burden on both organisations. The inspection team endorses this view, in the knowledge that only a few forces are presently comfortable with their level of performance on submission times. The Holland and Sinclair provisions will increase pressure on forces to provide statements within tighter timescales. And any failure to comply with timescales will reduce the time available for Procurators Fiscal to address disclosure applications from defence agents.
Forces have yet to realise the full impact of the Holland and Sinclair provisions, introduced in September 2005, although there case management workloads have already significantly increased. Forces currently process disclosure requests according to local arrangements, and the inspection team found no common approach as to how disclosure requests are managed. Some forces separate the statement request from the PCOC enquiry, while others deal with the request as one package. Likewise, some requests are sent directly to reporting officers while others are managed centrally. Problems are occurring where case management staff are attempting to cope with the increased volume of requests. There are also issues around the resultant lack of suitably qualified staff to access the SCRO Criminal History System ( CHS) in respect of PCOC enquiries. The inspection revealed a consensus amongst forces that some targets concerning requests for statements and PCOCs were "unrealistic".
Recent developments have included allowing Procurators Fiscal limited access to the CHS. This enables them to undertake checks on previous convictions and outstanding cases for both witnesses and accused. It still requires forces to confirm the identify of the witnesses or accused on CHS and to provide the unique reference for these persons, prior to submitting cases to the Procurator Fiscal. This burden on forces should, nevertheless, be eased by a proposed legislative change to require witnesses to provide their date of birth to police officers when providing statements.
In general, the most common concern from Area Procurators Fiscal relative to the Holland and Sinclair provisions relates to staffing issues. One Procurator Fiscal intimated that although significant benefits had been accrued from the Bonomy reforms in solemn cases, these were effectively eroded by Deputes having additional work in respect of summary disclosure issues. Another stated that greater redaction than should be necessary was required, due to officers failing to apply confidential witness information in the appropriate field of the National Statement Standard. It was also believed that police failure to meet timescales for statement requests would increase pressure on Procurator Fiscal staff by reducing the time available for disclosure related tasks.
The inspection team recognises that the Holland and Sinclair provisions are at an early stage, although both police and Procurators Fiscal have concerns regarding the current and future management of disclosure requests. HMIC and IPS are aware that the ACPOS Criminal Justice Business Area and COPFS are jointly considering the issue of disclosure, and recommend that ACPOS and COPFS develop this work into a joint protocol on disclosure requests.
Recommendation 13 - that ACPOS and COPFS develop a joint protocol for disclosure requests.