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Annual reports, Corporate documents

27th September 2023

This report sets out our work between 1 April 2022 and 31 March 2023

Appendix 1 – status of recommendations

HM Inspectorate of Prosecution in Scotland : Annual Report 2022 - 2023

Appendix 1 – Status of recommendations

Thematic report on the prosecution of young people (2018)
Recommendation		Status	Rationale
1	COPFS should guard against 'net-widening' by dealing with jointly reported offenders who do not fall within the Lord Advocate's Guidelines and those who have not yet turned 16 where the presumption is that they should be dealt with by the Reporter.	In progress	Action taken and a review underway with Police Scotland and the Scottish Children's Reporter Administration, but insufficient evidence provided that change has been achieved.
2	COPFS should prioritise consideration of the review that offenders aged 16/17 subject to a Compulsory Supervision Order (CSO) are presumed to be dealt with by the prosecutor.	Achieved	COPFS published a new prosecution policy on accused under 18 years and diversion in Operational Instruction 5 of 2019 (OI 5/19) clarifying that in all cases where the accused is aged 16 or 17 and subject to a CSO, there is a presumption that the accused will be dealt with by the Children's Reporter.
3	COPFS should liaise with Police Scotland to standardise the provision of information on any known vulnerabilities or individual and/or family circumstances that may have a bearing on the appropriate prosecutorial action. The report should specify if there are none identified or whether the offender refused to divulge such information.	Superseded by new recommendation	This issue persists, as noted in our Joint review of diversion from prosecution (2023). This recommendation is now superseded by Recommendations 9-11 of the 2023 review. The new recommendations are directed to Police Scotland.
4	COPFS should ensure that there is a written record of discussion with the Reporter, in all jointly reported cases, including the factors taken into account in determining who should deal with the young person.	In progress	COPFS created a new process for recording decisions in jointly reported cases involving child accused in Operational Instruction 3 of 2020, but no evidence has yet been provided to demonstrate that the process change is embedded in practice.
5	COPFS should facilitate the maximum use of diversion (or a lesser form of alternative action) for all young people under 18 years. Where there are compelling reasons in the public interest to prosecute they should be clearly recorded by prosecutors.	Achieved	Addressed by OI 5/19, but we note there is a residual risk of diversion not being chosen as the most appropriate prosecutorial option when marking is carried out by local court or some specialist units.
6	COPFS should improve the timeline of cases involving young people where diversion is offered.	Superseded by new recommendation	Progress made in relation to timeliness of marking, but issue persists in relation to overall timeline of cases. Superseded by Recommendation 17 of Joint review of diversion from prosecution (2023).
7	COPFS should introduce a national streamlined process for communicating with social work departments and offenders to support the effective operation of diversion.	Superseded by new recommendation	Issue persists. Superseded by Recommendation 23 of Joint review of diversion from prosecution (2023).
8	COPFS should review and simplify all correspondence issued to young people being offered diversion.	Superseded by new recommendation	Issue persists. Superseded by Recommendation 29 of Joint review of diversion from prosecution (2023).
9	COPFS should tailor communication to the individual needs and vulnerabilities of young offenders taking account of, any known, equality issues.	Superseded by new recommendation	Issue persists. Superseded by Recommendation 29 of Joint review of diversion from prosecution (2023).
10	COPFS should, on completion of diversion, confirm in writing what action, if any, is to be taken.	Superseded by new recommendation	Issue persists. Superseded by Recommendation 29 of Joint review of diversion from prosecution (2023).
11	COPFS should clarify whether the applicable age requiring Crown Counsel's instructions, prior to any proceedings being commenced for children aged 13, 14 or 15 years, is the age of the child at the date of the offence, when the police report is submitted or when there is a decision to prosecute.	Achieved	COPFS has clarified in case marking instructions that no proceedings may be taken against a child aged 13, 14 or 15 at the date of the offence without the instructions of the Lord Advocate or Crown Counsel (with the exception of some road traffic matters for those aged 15).
12	COPFS should explore the possibility of expanding the scope of the Driver Improvement Scheme and/or the feasibility of introducing a new road safety programme to address low-level road traffic offences.	In progress	Work is underway in consultation with relevant partners but there is no evidence of resolution as yet.

Thematic review of Fatal Accident Inquiries (2016)
Recommendation		Status	Rationale
1	Scottish Fatalities Investigation Unit (SFIU) should implement monthly reconciliations of all active deaths investigations between SFIU National and the SFIU Divisions.	Achieved	See Follow-up review of Fatal Accident Inquiries (2019) (the 2019 report).
2	SFIU National should introduce a streamlined reporting/ notification process for Fatal Accident Inquiries (FAIs).	Achieved	See 2019 report – outstanding element of this recommendation covered by new Recommendation 1 in 2019 report.
3	SFIU National should review, update and centralise all guidance and policies on the investigation of deaths.	Achieved	Action taken as part of SFIU Modernisation Project.
4	COPFS should introduce an internal target for progressing mandatory FAIs.	Achieved	See 2019 report.
5	Where criminal proceedings are instructed and the circumstances of a death require a mandatory FAI: COPFS should issue guidance requiring an instruction by Crown Counsel on whether a mandatory FAI is likely following the criminal proceedings; and COPFS should ensure there is a debrief between the team dealing with the criminal case and SFIU, at the conclusion of the criminal proceedings.	Achieved	Action taken per 2019 report, as well as parallel proceedings/investigations policies and protocols and updated guidance to staff.
6	COPFS should ensure that all operational case related emails are recorded and imported into the case directory.	In progress	Action taken but insufficient evidence provided of change being achieved.
7	There should be a single point of contact for the nearest relatives throughout the criminal proceedings and any subsequent FAI.	Achieved	See 2019 report.
8	SFIU National should explore with the Death Certification Review Service (DCRS), the possibility of the review service providing a consultative forum for SFIU to discuss medical cases.	Achieved	See 2019 report.
9	COPFS should explore with the Scottish Civil Justice Council, the possibility of introducing rules to facilitate the attendance of 'expert' witnesses at preliminary hearings to reach consensus on areas of agreement and identify areas of contention.	Superseded by FAI Rules 2017	See 2019 report.
10	COPFS should provide a single point of contact for the nearest relatives in all FAIs.	Achieved	See 2019 report.
11	SFIU should provide written notification to all participants on the issues COPFS intends to raise at the inquiry.	Superseded by FAI Rules 2017	See 2019 report.
12	SFIU should agree a Memorandum of Understanding (MoU) with all investigative agencies that have responsibility to investigate the circumstances of certain types of deaths.	Substantial progress	An MoU with the Police Investigations and Review Commissioner has been agreed while work on MoUs with other agencies remains in progress.

Follow-up review of Fatal Accident Inquiries (2019)
Recommendation		Status	Rationale
1	To provide a clear audit trail in each case the work stream to record all information in the case directory should be prioritised and documents should be recorded and named in a structured manner.	Achieved	Action taken including templates for recording, guidance and training on importing and naming documents.
2	In order to assess compliance with the Family Liaison Charter a record of the wishes of the family should be recorded on the charter template.	In progress	Action taken, but insufficient evidence provided of change being achieved.
3	SFIU should prioritise the FAI of any death of a young person in legal custody.	Achieved	Action taken, including new guidance and creation of Custody Deaths Unit.

Victims' Right to Review (2018)
Recommendation		IPS status	Rationale
1	COPFS should provide guidance on the factors to be considered and the approach to be taken to conducting VRRs – it should be supplemented by workshop training for the core participants involved in such reviews.	Substantial progress	Guidance drafted but final approval remains outstanding. Once approved, training will be delivered.
2	COPFS should ensure that the factors taken into account and the reasons for the initial decision and the outcome of the review are recorded in a consistent and standardised manner.	In progress	Reminders issued to staff about recording and recording templates in use, but limited evidence provided to show this is now embedded in practice.
3	COPFS should ensure that reviews, involving specialist areas of law, including sexual crimes, are conducted by a prosecutor with the relevant specialist skills and expertise regardless of whether the offence(s) is likely to be prosecuted at solemn or summary level.	Achieved	Reviews now undertaken by specialists not previously involved in case.
4	COPFS should clarify who is responsible for notifying victims of any decision to discontinue proceedings in summary cases that do not fall within the VIA remit and reinforce and embed existing policies regarding notification of decisions not to prosecute and to discontinue proceedings.	In progress	Guidance revised. Further progress is linked to work to address Recommendation 5.
5	COPFS should work towards a system of notifying all victims of decisions not to prosecute, whether through the use of IT solutions or otherwise.	In progress	Options to deliver this recommendation explored in depth. Work to deliver an expanded notification model is ongoing.
6	COPFS should undertake a review of the VIA remit to assess whether it remains appropriate following the prosecution policy review.	Achieved	Review carried out, concluding that remit should remain as is.
7	COPFS should undertake a review to identify all summary offences, involving victims and a statutory time limit, where there is no suitable alternative charge, with a view to extending notification of decisions not to prosecute to such offences.	In progress	Recommendation 7 likely to be addressed upon delivery of expanded notification model noted at Recommendation 5.
8	COPFS should raise awareness in the Procurator Fiscal Offices of the importance of identifying requests from victims to review decisions not to prosecute or to discontinue proceedings and to transfer them without delay to the Response and Information Unit (RIU) to enable reviews to be completed within any time limits.	Achieved	Addressed through staff bulletins, briefings, training.
9	COPFS should provide substantive and understandable reasons for initial decisions not to prosecute or to discontinue proceedings to victims who are notified of such decisions.	In progress	Template letters have been revised to encourage staff to provide reasons for decisions. COPFS expects to evidence improvement or implementation by end 2023.
10	COPFS policy should reflect that the VRR response should be communicated in a manner consistent with previous communication, in terms of the victim strategy or, in death cases, with the Family Liaison Charter and in accordance with any equality considerations.	Achieved	Policy updated.
11	COPFS should avoid issuing multiple template holding replies and provide an explanation for the delay and an indication of the timescale for completion for all cases that are likely to take longer than 20 days.	In progress	Action taken but insufficient evidence provided to demonstrate this is now embedded in practice.