Our inspection activity
20. In 2022-23, we published two inspection reports – our Inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 and our Joint review of diversion from prosecution. We also commenced an inspection of the prosecution of domestic abuse cases at sheriff summary level, and reviewed progress made in implementing recommendations arising from three previous inspections.
Inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995
21. Published in October 2022, this inspection assessed COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. These provisions regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials, and are designed to protect complainers giving evidence from irrelevant and often distressing questioning.
22. Section 274 contains a general rule that evidence or questioning falling within certain categories is inadmissible in sexual offence cases. Section 275 allows the court, on application made to it, to admit evidence or questioning falling within the general prohibition at section 274 so long as certain tests are met. Sections 274 and 275 apply equally to evidence sought to be led or elicited by either the Crown or the defence.
23. This topic was chosen for inspection following developments in case law regarding sexual history and character evidence. In recent years, a series of cases have sought to clarify the import of sections 274 and 275 and to set out the correct approach to be taken to section 275 applications. These cases had been a response to challenges faced by the courts, the Crown and the defence in making, responding to and determining applications regarding sexual history or character evidence.
24. In RR v HMA, the court clarified the Crown's duties when engaging with complainers regarding section 275 applications. It held that COPFS has a duty to ascertain a complainer's position in relation to a section 275 application and to present that position to the court, irrespective of the Crown's own attitude. This would require that the complainer be told of the application, be invited to comment on the accuracy of any allegations within it, and be asked to state any objections to the granting of the application.
25. Our inspection focused almost entirely on how COPFS manages section 275 applications in High Court cases, although brief consideration was also given to practice in the Sheriff Court. We considered both how COPFS makes its own applications and how it responds to those made by the defence. In light of the court's decision in RR v HMA, we also assessed the extent to which COPFS is implementing its duty to engage with complainers regarding section 275 applications.
26. In support of our inspection, we gathered evidence from a range of sources. This included interviews with over 40 COPFS personnel involved in managing section 275 applications, as well as interviews with external stakeholders including members of the judiciary, defence counsel and Rape Crisis Scotland. We reviewed a statistically significant, random sample of 123 High Court sexual crime cases and a small number of Sheriff Court cases in which section 275 applications had been made.
27. We found that COPFS responded swiftly to developments in case law, issuing new instructions to staff and creating a training course dedicated to sexual history and character evidence. This led to a significant shift in practice regarding how section 275 applications are managed – complainers are now regularly told about section 275 applications, asked their views on the applications' contents, and those views are presented by the Crown to the court. We found the quality of Crown section 275 applications to be generally good, and we found that the Crown generally opposed applications made by the defence when it was appropriate to do so. Nonetheless, there remained scope for further improvement.
28. We made nine recommendations, eight of which were directed at COPFS and one of which was directed at the Scottish Government. If implemented, the recommendations should support further improvements in the way in which COPFS makes and responds to section 275 applications. Four of the recommendations directly related to the Crown's duty to engage with complainers about section 275 applications. Other recommendations related to guidance and training, improving record keeping, and improving processes for managing applications so as to maximise the time available to COPFS to fulfil its duty to engage complainers.
29. Upon publication of the report, the Lord Advocate accepted the eight recommendations directed to COPFS and instructed that improvement work be taken forward as a matter of urgency. The report was also welcomed by Rape Crisis Scotland who described it as a 'welcome, important and timely review'. IPS is pleased to note that progress is already being made by COPFS towards implementing our recommendations.
30. In our report, we highlighted the short timescales, set out in statute, within which COPFS is required to engage with complainers about section 275 applications. We noted that this risked complainers being approached in a way which is not sensitive to their needs, supportive or trauma-informed. We recommended that the Scottish Government address these short timescales. This is now being taken forward, along with a new right to independent legal representation for complainers who are the subject of section 275 applications, via section 64 of the Victims, Witnesses and Justice Reform (Scotland) Bill, which was introduced to the Scottish Parliament in April 2023. The Bill, as introduced, will require that section 275 applications be made:
- no later than 21 days before the preliminary hearing in High Court proceedings, extended from the current seven days
- no later than 21 days before the first diet in solemn proceedings in the sheriff court and the intermediate diet (or trial diet, if no intermediate diet is fixed) in summary proceedings. Currently, applications in the sheriff court should be made not less than 14 days before the trial diet.
31. As well as our report on section 275 applications being cited in the Policy Memorandum for the Victims, Witnesses and Justice Reform (Scotland) Bill, data gathered by IPS as part of our inspection was also cited in the Bill's Financial Memorandum, to help estimate the legal aid costs arising from the proposed complainer's right to legal representation in relation to section 275 applications. Our report on section 275 applications has also generated interest outside of Scotland – our findings were cited by the Law Commission of England and Wales in its work reviewing the law relating to the use of evidence in sexual offence prosecutions.
Joint review of diversion from prosecution
32. In 2022-23, we also carried out a joint review of diversion from prosecution. The aim of the review was to assess the operation and impact of diversion from prosecution in Scotland. The review was carried out jointly with HM Inspectorate of Constabulary, the Care Inspectorate and HM Inspectorate of Prisons. Working with our scrutiny partners allowed us to provide an overview of diversion practice from a policing, prosecution and justice social work perspective, highlighting what is working well and exploring any barriers to the more effective use of diversion. Terms of reference for the review were published in March 2022 and the final report was published in February 2023.
33. Diversion from prosecution is one of several alternatives to prosecution available to COPFS upon receipt from the police of a report of alleged offending. Diversion is the process by which COPFS refers an accused person to local authority justice social work (or a partner agency) for support, treatment or other action as a means of addressing the underlying causes of the alleged offending and preventing further offending. Diversion from prosecution will be considered in any case where the person reported to COPFS has an identifiable need that has contributed to the offending and where it is assessed there is a sufficiency of evidence and that diversion is the most appropriate outcome in the public interest.
34. In support of our review, we gathered evidence from a broad range of sources. This included a survey of all community justice partnerships in Scotland regarding the operation of diversion from prosecution in their local area and a review of cases in which an initial decision to divert the accused person from prosecution had been taken by COPFS, as well as some cases in which diversion did not appear to have been considered. In addition, we carried out extensive interviews with those involved in the diversion process. This included personnel within COPFS, police officers, justice social work staff, third sector organisations involved in delivering diversion interventions, and other community justice partners and key stakeholders. We also interviewed 13 people who had been diverted from prosecution.
35. We found that the number of diversion from prosecution cases commenced rose by 12% between 2019-20 and 2020-21. This rise is likely linked to changes in prosecution policy in 2019. We noted a broader shift in public policy in recent years, with a greater focus on community justice and early intervention to address the underlying causes of offending. We welcomed this shift, as many accused persons require support for mental health, substance use or other issues and diversion from prosecution offers an opportunity for that support to be provided swiftly. Early intervention can help address the underlying causes of offending, avoid the person being drawn further into the criminal justice system and reduce or prevent further offending, to the benefit of the person, victims and communities. The people we interviewed who had been diverted from prosecution were overwhelmingly positive about their experience of diversion and welcomed the support they had received, saying it had helped them make meaningful changes in their lifestyle and behaviour.
36. Overall, we considered that diversion is working well and is developing in the right direction. The publication in 2020 of national guidelines on diversion had been a significant milestone, and we welcomed ongoing work to revise these and hoped that they would be relaunched to achieve widespread awareness and understanding of current policy and practice. We also, however, found scope for improvement in how diversion from prosecution operates and we made 34 recommendations. These recommendations are intended to support the agencies involved in diversion – including COPFS, Police Scotland, justice social work, community justice partners, Community Justice Scotland and the Scottish Government – to continue to plan and deliver diversion services more effectively, to manage diversion efficiently across agencies, and to maximise diversion while maintaining confidence in its use as an appropriate response to offending behaviour.
37. We found that there are several ways in which diversion could be increased, including by:
- improving the quality of information submitted by the police to COPFS to assist appropriate decision making by prosecutors
- further increasing consistency in case marking by COPFS
- ensuring the processes for managing diversion across agencies are as effective and efficient as possible
- increasing the take-up of diversion by accused persons. While diversion is voluntary, more could be done to tackle the high level of non-engagement in the diversion assessment process.
38. We also found that there needs to be a recalibration of the processes for managing diversion from prosecution to account for cases in which the accused is diverted in relation to more serious offending. While diversion may only be used infrequently in such cases, there is nonetheless a need to strengthen the processes for managing them and to ensure they are robustly monitored.
39. By its very nature, diversion from prosecution is focused on the needs and circumstances of the accused person and on providing them with support to address the underlying causes of their behaviour. While the impact of the offence on the complainer is taken into account by the prosecutor when they decide whether to offer diversion from prosecution, there should be a greater focus on the needs of complainers when diversion proceeds. In particular, there is a need to improve communication with complainers where the accused person in their case has been diverted.
The prosecution of domestic abuse cases at sheriff summary level
40. In early 2023, we began an inspection of how well COPFS manages and prosecutes cases involving domestic abuse cases at sheriff summary level. This is the forum in which the majority of cases involving domestic abuse are prosecuted.
41. As well as considering COPFS's standard approach to preparing and prosecuting domestic abuse cases at sheriff summary level, we will assess and compare the bespoke arrangements for managing domestic abuse cases:
- calling at the Glasgow Domestic Abuse Court, where dedicated resources are committed to improving the justice process
- falling within the remit of the Summary Case Management Pilot, taking into account the focus on facilitating advanced disclosure, early resolution, enhanced victim engagement and an accelerated trial process. To manage our own resources and in light of the progress made in implementing the pilot in Dundee, we will focus our scrutiny on domestic abuse cases calling in that area in particular.
The Summary Case Management Pilot
The pilot introduces a new approach to managing cases at summary level with the aim of reducing the number of cases that are set down for trial unnecessarily and reducing the volume of late pleas of guilty and late decisions on discontinuation, thereby reducing the adverse impact on victims and other witnesses. A key feature of the new approach is the early disclosure of key evidential material and early judicial case management. The pilot commenced in Dundee, Paisley and Hamilton on 5 September 2022, and is expected to run for 18 months.
42. Our inspection will examine how well COPFS is fulfilling its obligations and commitments to victims in domestic abuse cases. This will include how well COPFS keeps victims informed throughout the life of a case, how victims are engaged and involved in the justice process, and the extent to which COPFS takes steps to ensure victims are supported and protected. We will also give special consideration to child witnesses in domestic abuse cases, in light of the recent introduction of the statutory aggravation intended to reflect the harm caused to children by domestic abuse.
43. The key inspection questions we will seek to answer are:
1) How well does COPFS support its staff to prepare, manage and prosecute domestic abuse cases at sheriff summary level?
2) How well does COPFS prepare, manage and prosecute domestic abuse cases at sheriff summary level? This will include consideration of issues such as prosecutorial decision making, plea adjustment, and how COPFS manages cases in which there are counter allegations or in which the victim is reluctant to engage with the justice process or requires additional support to do so.
3) How efficiently are cases progressed by COPFS?
4) How well does COPFS support and protect, and communicate and engage with victims and child witnesses? To what extent is COPFS delivering a person-centred and trauma-informed service?
5) To what extent does COPFS use quality assurance and other feedback mechanisms (such as feedback from victims or support organisations) to improve its approach to domestic abuse cases?
6) How well does COPFS work with partner agencies at both a strategic and operational level to progress cases efficiently and to improve the experience of victims and child witnesses?
7) How well are domestic abuse cases managed by COPFS in line with bespoke local arrangements, including cases falling within the Glasgow Domestic Abuse Court and the Summary Case Management Pilot? What are the key features and characteristics of these local arrangements that contribute to well-prepared, efficiently progressed cases that better meet the needs of victims?
44. Terms of reference for this inspection were published in May 2023. A report is expected later in the year.
Following up on previous recommendations
45. In our Annual Report 2021-22, we noted that the inspectorate had agreed a new process with COPFS which would result in a more proportionate, risk-based and intelligence-led approach to following up recommendations from our previous inspections. This involves COPFS providing us with an action plan in response to our recommendations as well as supporting evidence about implementation so that we might assess the progress being made. This will inform our decision as to whether recommendations have been achieved or not achieved, or whether implementation is in progress. It will also inform our decision as to whether a follow-up inspection is merited.
46. This year, we assessed information supplied by COPFS in late 2022 in relation to the implementation of recommendations made in previous reports on:
47. Overall, we found that in respect of some recommendations, action was taken promptly and this should have led to improvements in service delivery which we welcome. In particular, a significant amount of work has been carried out in relation to supporting improvement in death investigations. Progress has been slower in relation to recommendations arising from the inspections of the prosecution of young people and Victims' Right to Review. We appreciate that the diversion of focus and resources to the emergency pandemic response will have interrupted progress for a time, although in some areas, we consider that greater progress could have been made prior to the pandemic. We anticipate that the new process for following up recommendations – of receiving and reviewing action plans shortly after the publication of our reports, and of greater dialogue with those responsible for taking forward the recommendations – will result in a more timely assessment of progress in future and the opportunity to highlight any lack of progress at an earlier stage.
48. A general theme arising from our assessment of the action plans supplied by COPFS is that COPFS is able to point to measures taken in response to recommendations, but sometimes lacks evidence as to whether change has been achieved as a result. For example, while a policy change might have occurred in response to a recommendation, there was sometimes a lack of evidence to show that the policy change had led to changes in practice. Discussions with COPFS have already begun as to how the quality of the information supplied to the inspectorate can be improved.
49. Our assessment of which recommendations have been achieved is set out in more detail at Appendix 1. In summary, we do not propose to carry out a follow-up inspection of any of the three inspections. However, we consider that two would benefit from fresh scrutiny in the years ahead.
The prosecution of young people
50. Published in 2018, this report examining how COPFS prosecutes young people made 12 recommendations. While some recommendations were acted on promptly, others remain in progress five years later. Of the 12 recommendations, we consider that three have been achieved and three are in progress.
51. The remaining six recommendations have not been achieved. While action had been taken in relation to some, we did not consider it to be sufficient. In our Joint review of diversion from prosecution, published in 2023, we found that the issues giving rise to the recommendations made in 2018 persisted and similar recommendations have been made again. This is disappointing as, had further progress been made in relation to the 2018 recommendations, the need to make similar recommendations in 2023 may not have arisen. Given that the recommendations made in 2023 are broader (they relate to adults as well as young people) and are based on more recent findings, we propose that our efforts on monitoring progress will be focused on the more recent recommendations.
52. We do not propose following up further on the three recommendations which are in progress. Given the significant legal and policy changes in relation to the prosecution of young people which are imminent (including the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the Children (Care and Justice) (Scotland) Bill), we consider that it would be more appropriate to scrutinise this area afresh once those changes take effect.
Fatal Accident Inquiries
53. The inspectorate published a thematic review of Fatal Accident Inquiries in 2016, and carried out a follow-up review in 2019. The first review resulted in 12 recommendations. In the follow-up review:
- five of the initial 12 recommendations were considered to have been achieved
- two recommendations had been superseded by Act of Sederunt (Fatal Accident Inquiry Rules) 2017
- four recommendations were considered to be in progress
- one recommendation had not been achieved.
54. The follow-up review also made three new recommendations.
55. Having reviewed information supplied by COPFS, we now consider that of the 15 (in total) recommendations relating to death investigations:
- 10 have been achieved
- two have been superseded by Act of Sederunt (Fatal Accident Inquiry Rules) 2017
- three are still in progress, with substantial progress having been made in relation to one of them.
56. In the 2019 follow-up review, the then HM Chief Inspector of Prosecution indicated that IPS would carry out a further follow-up inspection in 2020. This did not take place in light of the emerging pandemic and other competing priorities. Given the progress that has now been made, we do not plan to carry out any further follow-up of recommendations made in relation to Fatal Accident Inquiries. However, we continue to share the concerns of bereaved families about the timeliness of death investigations and the quality of communication between COPFS and next of kin. We also note the high degree of public interest in this area of COPFS's work. Taking into account the significant developments in this area, not least the increase in death investigations as a result of the pandemic, the creation of the Covid Deaths Investigation Team as well as the Custody Deaths Unit, and new governance arrangements introduced for death investigations earlier in 2023, we consider this should be an area for fresh scrutiny in the near future. This scrutiny should focus on current performance, rather than following up previous recommendations.
Victims' Right to Review
57. In 2018, IPS published a thematic report on Victims' Right to Review (VRR) and made 11 recommendations. We consider that:
- four recommendations have been achieved
- seven recommendations remain in progress, with substantial work having been carried out in relation to some recommendations.
58. Additional recommendations could have been considered achieved if evidence had been provided of the impact of actions taken (through, for example, quality assurance or auditing cases or correspondence with victims).
59. Although progress on the Victims' Right to Review recommendations has been slower than we would have expected, we do not propose at this stage to carry out a follow-up inspection. We will take the opportunity to consider issues relating to the Victims' Right to Review during the course of other scrutiny work.
Inspection programme 2023-24
60. Our inspection programme for 2023-24 includes:
- an inspection of the prosecution of domestic abuse cases at sheriff summary level
As noted above, IPS commenced this inspection in early 2023. This is expected to be a significant piece of scrutiny activity and work on this issue will continue throughout 2023.
61. At the time of writing this annual report, IPS is reviewing our future inspection programme and will consult with the Law Officers, COPFS and other stakeholders on issues that would benefit from independent scrutiny.
62. Also in 2023-24, we will continue to review progress made in implementing recommendations from previous inspections, with a particular focus on: