Chapter 5 – Administrative Trial Preparation
180. Support staff had the benefit of best practice guidance in the form of a Case Processing Manual and the Disclosure Manual and we learned from staff with whom we consulted at each office that these were of assistance and were supplemented by local desk instructions in 6 of the 8 offices we visited.
181. These manuals detail and describe processes for administrative staff to follow in relation to summary work. All staff advised that they were aware of the guidelines and the targets therein, that they had access to them and that they would refer to them if there was a need.
182. In offices where desk instructions were no longer used this was because they were out of date or, following restructuring in the office, it was discovered that there were a variety of working methods used.
183. Staff in each office told us training tended to be 'on the job' and through attending appropriate courses. The majority of staff felt training to be adequate although some felt it was not enough. All staff indicated that they worked well with each other and could share knowledge and experience.
184. Guidelines, desk instructions and training all provide for points of reference and information on how to process business and have an impact on how well staff could perform their duties. Desk instructions were particularly helpful in ensuring efficiency and continuity especially if someone new took up post therefore we recommend that where there are no desk instructions they should be updated or created and maintained to reflect the duties of each desk.
Desk instructions should, if not available, be created and updated regularly.
185. When a plea of 'not guilty' is tendered the papers must be returned to the office for administrative staff to 'action' all of the legal instructions. The Sheriff Clerk fixes dates for intermediate and trial diets and updates the court minutes. This is automatically transferred through ISCJIS to the COPFS IT system.
186. The time taken for files to be transported from court back to office varied depending on the distance of the office from the court building. Those offices located at or beside the courts benefited from this geographical advantage, particularly where instructions had to be implemented quickly.
187. All staff indicated that on return from court work was prioritised and split into categories with urgent cases eg custodies taking priority and we found this seemed to be borne out in our case review.
188. All offices advised that checks were carried out to ensure that the handwritten minutes from the Fiscal appearing in court were the same as court results. Whilst some offices commented on delays awaiting court validation, staff were nonetheless able to deal with urgent cases (custodies) straight away. In such offices other work (eg ordering full statements, citing witnesses, ordering productions, memos, requests for FSR, etc) was done once court validation was reconciled with minutes.
189. In the main administrative staff advised that they found Fiscal instructions understandable and legible but some indicated that sometimes writing could be difficult to read. In one office staff reported a complete absence of written minutes or lack of clarity requiring a referral back to a legal member of staff. In our case review we also noticed a couple of cases where no instructions were evident. In these instances it seemed that the administrative staff used their initiative to order full statements. Very occasionally we noted witness citations issued without a legal instruction obvious on the file but again these were rare exceptions.
190. We noted that one office operated with at least a three week delay in updating cases. This could have an impact on target achievement and churn especially when in this office there was a short time between pleading diet and trial diet and as a result less time to process work. Another operated with a 4/5 day delay.
191. We were concerned about the late administrative action in some cases. We were advised that in one office, where the problem seemed to be systemic, there were real concerns over staffing levels of support staff and these concerns were voiced to us during our inspection and were prominent in minutes of staff meetings throughout 2011. Indeed there appeared to be continuing problems with backlogs in the workload of support staff well into 2012 as we noted in our review of some 'live' cases.
192. Staff advised that they tend to only do work that has been instructed although on occasion some of the more experienced indicated that they might chase up legal staff for certain work to be instructed if it has been missed. This is very much dependent on the experience of staff.
193. Awaiting the return of court papers, searching for papers and asking for clarification of minutes/instructions impacted on the time taken to perform work and reportedly led to some delays in carrying out instructions.
Requesting and receiving full statements
194. There are certain targets/business rules that should be achieved in relation to requesting statements. In custody cases staff should request statements for witnesses in the case immediately after court and for bail/'ordained to appear' cases request these within 3 working days. These targets are measured and monitored:
|Target to Request Summary Statements
YTD March 2012
195. The above figures show that some offices managed to either meet or were near to meeting the target while others (in particular, Glasgow) struggled to meet the target. Our own case review results confirmed that with the exception of one office, full statements were, for the most part, being requested within the timescales envisaged. In the Glasgow office there did seem to be a high rate of failure to meet the target as indicated in the figures shown in Table 2 and worryingly the delays for requesting statements ranged from a day or so outwith target to several weeks in some cases.
196. Aside from the impact on target achievement, delays in requesting statements left less time for partner agencies to obtain, organise and supply the information.
197. The police should submit statements within 7 days in custody cases and 28 days for other cases. Submission is by electronic means through the ISCJIS system.
198. The following table provides details of police achievement in submitting statements.
|Target to Receive Summary Statements
YTD March 2012
199. Performance is monitored and discussed at joint police/COPFS meetings and has improved over time.
200. Staff told us that there were occasions where they had to chase up the police for statements. It has to be noted that achievement is triggered on receipt of the first statement only and that it may be that subsequent statements are not submitted on target. However, this is not measured. The triggering of the target achievement by receipt of the first statement in the case can prove problematic for the Crown as there is no automatic reconciliation mechanism in the IT system to confirm that all the statements of the listed witnesses have been submitted.
201. In particular we found that different police forces across the country had different approaches to the submission of witness statements. For example in Glasgow we were told that statements for cases were submitted sporadically rather than in complete sets for the cases and this could impact on what could be disclosed to the defence and the timing of disclosure.
202. In other areas of the country such as in Alloa and in Perth the practice of Central Scotland and Tayside police forces practice was to collate in a batch for the case and then submit the statements. Because of the wait for all the statements to be compiled before submission we were told there were sometimes delays. These might be due to officers being on leave or simply having to be reminded. In Alloa we learned that the practice of the police was to send a memo advising of the problem so that the Fiscal could decide whether to wait for the complete set of statements or simply take what was ready and wait for the outstanding ones.
203. We heard also in yet another jurisdiction of problems encountered by the police in submitting the statements electronically. Spelling errors in names could mean that statements were 'rejected' by the COPFS computer system.
204. What was clear to us, however, was that the next stage in the administrative process, namely the disclosure of these statements to the defence, was wholly reliant on the timely submission of the statements by the police or other reporting agency. There could be problems on each side in the process of getting full statements to Fiscals on time.
Issuing citations to witnesses
205. Following the instructions provided by the Fiscal administrative staff should issue witness citations to advise witnesses when and where they should attend court to give evidence for the prosecution in the case.
206. For the most part citations are issued for postal service. Business rules for issuing citation of witnesses state that certain categories of witness, such as children, should always receive their citation by personal service. If there is less than 8 weeks until the trial the citation should always be issued for personal service. Where there are administrative delays leading to the issue of citations with less than 8 weeks to trial, in terms of business rules such citations should be issued for personal rather than postal service, with consequent public expense. Otherwise, the decision to issue a citation for personal service is a matter for legal discretion.
207. For obvious reasons, for custody trials where a very short timeframe is allowed, citations should be issued as soon as possible and these are always personal citations for civilian witnesses due to the timeframe. In the period April 2011 to March 2012 114,586 postal and 49,733 personal citations were issued. Of the postal citations issued 54,107 were returned as undelivered by the Royal Mail and re-issued as personal (almost 50%).
208. Witness citations for civilian witnesses are either sent for service by post or by personal service by a member of police staff (these were formerly served by police officers but current practice by police forces is that civilian legal document officers serve these citations). Police officers are cited for court by email.
209. We describe below the different practices involved in issuing citations to witnesses and the common problems we found in this aspect of the work.
210. We identified two issues relating to witness citation -
- Proof of service information
211. According to the COPFS Case Processing Manual witness citations should be issued within 7 days of the pleading diet (or 'continued without plea' diet at which a not guilty plea was tendered).
212. During our review staff described varying practices for witness citations. Most of the staff we interviewed told us that they issued citations to witnesses straight away if they were in a position to do so. In some offices we heard of resource issues leading to backlogs of work which could contribute to delays in meeting the 7 day target. This was borne out by our case review findings.
213. Surprisingly, achievement of these targets is not measured by the Crown yet the failure to issue witness citations in time and failure by the police to serve citations timeously can have an impact on whether the citation process is successful. This in turn can impact on churn both at intermediate and trial diets.
214. In 5 offices witness citations were all issued within 7 days of pleading diet, thus meeting the target fully. In 2 offices where we were advised that there were issues with a shortage of administrative staff we found lower target achievement. This was especially so in one large office where almost half of the closed cases reviewed were outwith target for issuing witness citations.
215. Administrative delays were also noted in ongoing cases seen during our live case review indicating that the problems with backlogs were not short term blips but seemed to be a more persistent problem and of concern to the inspectors. We observed that in 5 cases we reviewed at 'live' intermediate diets there were delays of 4-8 weeks from pleading diet to citation of witnesses.
216. As we have previously explained the delay period between pleading diet and trial can vary enormously. In one office, where a delay period for trial was over 20 weeks, it made no sense to issue citations to witnesses months in advance as experience showed that witnesses were more likely to forget about it. A deliberate decision was made to withhold issuing citations to witnesses until about 12 weeks before the trial so that citations would reach witnesses in good time for trial but not so early that they would forget all about it.
217. Given the fluctuations in the delays between pleading diets and trials (of which the Procurator Fiscal has no control) we wondered if, in fact, the appropriate 'target' for issuing citations to witnesses should be a period before the intermediate diet (say 8-10 weeks) rather than a period post the pleading diet.
We recommend COPFS measure target achievement in relation to witness citation.
Proof of service information
218. For each witness selected, the 'execution return date' must be fixed by administrative staff. This is a target for the police to return an execution of service to the Fiscal. According to the guidance manual this should be fixed by staff as follows:
- 3 days before the intermediate diet (postal citations)
- 10 days before the intermediate diet (personal citations)
219. In practice we noted that there were marked variations between offices as to the date chosen for the 'Execution Return Date'. This ranged from 7 days in one office to 3 weeks in another. We were advised that the execution return date was set for a 10 day period by default on the computer system (10 working days before intermediate diet) yet some staff told us that they extended the return dates to give themselves more time to get any follow up work done to trace missing witnesses or make further enquiries. No-one seemed to adhere to the '3 days' rule for postal citations. As we go on to explain this can have unintended consequences for those citations needing personal service by police.
220. Although the administrative staff in each office set up the process for issuing witness citations, either by post or for personal service, the citations were actually printed by and issued by the discrete unit of COPFS called the 'National Print Unit' (NPU), based in Glasgow. Each day the NPU generates all the citations instructed by administrative staff in offices all around the country. The witness citation package includes a reply form that the witness must complete and return indicating that they either will or will not attend court on the specified day.
221. Reply forms should be returned to the NPU where they are scanned into the IT system. The scanning of replies triggers completion in the IT system of a 'date record' confirming the date of receipt of the reply form. The actual reply is scanned and saved into a separate database (called Power Retrieve) which can be accessed by administrative staff.
222. Where the witness signs and returns the reply form indicating that they will attend the reply form is scanned and saved. The reply does not go back to the office that issued the citation but the IT system is updated to reflect the position. If a reply is received at NPU indicating that the witness is unable to attend this is emailed to the office concerned. Administrative staff must check mailboxes daily for such replies so that they can be brought up for legal review.
223. Where there is no reply from postal service by the 18th day the IT system automatically issues a personal citation to the police to serve. This can occur when a witness receives the postal citation but fails to return the reply form, where the reply form is returned late or where the postal citation does not reach the intended recipient, for example, due to relocation. In any of these situations the citation is recorded on the IT system as 'personal after failed postal'. However, the 'execution return date' fixed at the outset by the administrative staff remains the same. As we have said administrative staff should have inserted a date 3 days before the intermediate diet but in practice much earlier dates were chosen.
224. We were advised that sometimes citations were issued to the police to serve when the target date for service had already expired leading to confusion especially when it was evident that the trial was still some weeks ahead.
225. We spoke to police forces about the issues facing them in trying to serve citations on witnesses within the 'execution return date'. It became clear that some police staff had some misunderstandings of what that date represented. Some police staff thought that the target was for service on the witness rather than the date for the execution to be returned to the NPU.
226. On the other hand Fiscal Office staff checking the outcome of service of such witness citations were often in the dark about whether the witness had been given their citation and urgently needed to update the papers about whether a witness was in fact cited to attend court to provide a clear picture for legal staff appearing at either an intermediate diet or trial diet.
'Witnesses cited for court' report
227. At any stage after witness citations are issued in a case it is possible for administrative staff to run off an IT generated printout showing the most up to date position regarding witness citation. During our inspection it became increasingly clear that there was a lack of clarity about the information provided in the IT generated 'witnesses cited for court' report. The printout was widely viewed as unfit for purpose and had to be supplemented by additional investigations by administrative staff to provide legal staff with a clear picture as to whether witnesses had received their citations. We heard complaints from sheriffs about the quality of information that Fiscals were able to provide in court about witness citation and these were directly related to the quality of the information provided by these reports.
228. We were pleased to note that an improved version of the report was introduced in April 2012 as we drafted our inspection report. We believe that the improvements made to this printout will go at least some way to provide a clearer picture of the status of citation of witnesses for cases being prepared for intermediate and trial diets. In particular, the improved style of report now contains information about -
- When the citation was issued;
- The type of service: postal, personal, failed after postal or police email;
- The date an execution, whether served or not, is received back from the police or from the witness by post; and importantly
- Service Outcome eg Witness Citation Executed; Witness Cited but Unavailable; Witness Citation Not Delivered; Witness Personal Cite Unserved; and Witness Cite Outcome Unclear.
229. In view of the fact that the NPU is the national conduit of all information to and from police forces about citation of witnesses there is sometimes a time lapse between the citation reaching the witness (or not) and the information about the service (or lack of service) showing up on the IT system at the local office. In addition, where the citation is shown as 'not delivered' or 'unclear', the additional information provided by the police staff attempting to trace or serve the citation is crucial. In the latter situation the NPU must send to the Procurator Fiscal's office concerned a copy of the reply from the police. In addition any information about a change of address by police documents servers is communicated to COPFS via the NPU where staff scan the information into emails to relevant office email boxes. In order for this to be picked up the administrative staff need to check email mailboxes on a daily basis.
230. We heard of some varying practices around the country where Fiscal Office staff were provided with the very latest information about the attempts to trace and serve witnesses direct from the force. Police in Ayr provided information by giving Fiscal Office staff access to a constantly updated spreadsheet charting progress of witness citation attempts. In turn this information could be given to legal staff to enable them to make prompt decisions about the likely chances of securing attendance of important witnesses and whether the prosecution should continue or not, motions to adjourn sought or decisions to carry on without. This practice was not universal and depended on the good partnership relations forged locally. This good practice we commend.
231. We found that where there was some co-location of police within the Fiscal Offices then more day to day co-operation was evident on a number of topics including witness citation. Constant exchange of information between police and Fiscal's Offices about witness citation helped both sides. For example we learned that there was a practice in Central Scotland police forces for additional communication by email directly to the Fiscal's Office to provide the most up to date position about citing witnesses where the target date for return was imminent. In Edinburgh witness citation officers could contact the Procurator Fiscal's office direct and seek an extension to the target date for service if they thought there was a chance of tracing and serving the citation. This prevented a duplicate citation being issued by the NPU due to no reply.
232. Some forces also reported an issue with repeat citations being issued for personal service often to the same wrong address where information provided in a previously returned execution of service about a new address did not seem to have been updated by Fiscal Office staff. In another force there was email communication to the Procurator Fiscal's office about any new address information rather than simply relying on the NPU scan of the reply form to filter back to the Procurator Fiscal's office and this picked up and actioned. As a result of the information being transferred directly to the office we were advised by the police that the number of repeat citations issued for personal citation dropped significantly.
233. Another issue for police citation servers was that on receipt of the citation by hand many witnesses advised that they had received their citation by post. If they did not submit a reply or the reply was late then the personal citation was issued by default. This seemed to create unnecessary duplication of effort. One opinion offered to us was that the citation package sent by post to witnesses contained a lot of information. The reply form was found at the back of the documentation and could easily be lost. This was confirmed by one Fiscal who told us that they regularly had witnesses turning up for court having received a postal citation, to which they had not replied and not having received their personal citation.
234. All of these issues and more were being examined in a multi-agency working group (under the auspices of Scottish Government's Making Justice Work programme) 'Getting People to Court', of which a sub group 'Getting Witnesses to Court' was particularly concerned. It seemed that better ways of communicating between Procurator Fiscal offices and those carrying out citation service was key to improvement.
235. Communication with the witnesses themselves was also a key factor and we noted with interest a pilot in Edinburgh to text witnesses who had been cited by post reminding them to attend court. The pilot commenced at the end of January 2012 and was to run for 4 months. It was being monitored but had yet to be evaluated at the time of our report.
236. We have already mentioned the good practice of trying to take into account police availability when fixing dates for trials (although we think there is scope for this to be extended to civilian witnesses also). In a few forces we heard of plans to use an IT fix to ensure that trial scheduling took into account the availability of police witnesses involved in the case. This would have the effect of reducing churn by reducing the number of cases needing to be rescheduled due to their non-availability and also reduce the number of requests for excusal from attending court submitted to the Procurator Fiscal.
237. In more than one Procurator Fiscal's office we visited there was a co‑located police officer who had responsibility for ensuring that any police witnesses who were no longer needed for court could be countermanded and rescheduled for other duties as early as possible. Such arrangements were of great benefit to the forces concerned as officers could be redeployed to other duties and created savings to the police budget.
238. We have outlined in detail how we believe the way in which legal instructions are provided about productions could be improved by a more bespoke approach to each production involved in the case.
239. According to Best Practice Guidance productions for custody cases should be ordered immediately after court (or no later than the next day) and they should be submitted by the police within 7 days of that date. For all other cases productions should be requested within 3 days of a not guilty plea and submitted by the police within 14 days of that date (para 2.11). This is not measured.
240. When we looked at how administrative staff responded to Fiscal instructions to order productions we found that overall administrative staff did what was asked of them. We observed occasional instances of administrative staff noticing that instructions were not always clear or complete and bringing this to the attention of legal staff or ordering productions on their own initiative. Much was down to the experience of administrative staff in the office.
241. In keeping with our findings about other administrative work we noted some delays in one office especially where there were 16 cases in which productions were ordered late 4 of which were only ordered days before the intermediate diet. Otherwise productions were ordered fairly promptly and most within the guideline period of 3 days after pleading diet.
242. Generally staff did not seem to differentiate between ordering productions to be lodged immediately and those instructed to be lodged at court.
243. In more than one office we found that the ordering of CCTV footage was not as clear as it might be. For example in one case involving CCTV the first request to the police was for the CCTV footage to be formatted for playing in court and lodged with the Procurator Fiscal's office. We then noted a memo some weeks later requesting the relevant certificates confirming the provenance of the CCTV and certifying the reformatted disc as a true copy. Clearer instructions at the outset might have prevented the necessity for the second request. We observed that different styles of request letter were used around the country depending on the local police force practice about formatting and copying.
244. Police in one force told us that officers might well seize CCTV and lodge the disc without ever viewing it so may not be aware of the need for reformatting. In other forces there were moves towards providing clearer information in the SPR about the nature, quality and provenance of CCTV, allowing for an improved approach to the request for court use. In Edinburgh we noted a very much more detailed letter from the Fiscal requesting CCTV evidence with clear instructions about what certification was expected also.
245. Strathclyde police have a discrete unit for copying and reformatting all CCTV whether public or private space and undertake that on request from the Procurator Fiscal this will be ready within 14 days in summary cases (48 hours in custody cases). This relies on the reporting officer lodging the footage with the unit at the time of submitting the report, along with the appropriate certificate of provenance. This also depends on prompt instruction from the Procurator Fiscal and from our case review it seemed that there were some shortfalls on both sides.
246. We heard of a medium term plan to have CCTV footage captured, saved and copied to the Crown via the IT system, although this was thought to be for the future and perhaps considered in IT plans for a single police force in 2013. The COPFS have CCTV evidence as a component of their digital evidence strategy.
247. It was a common feature of intermediate diets that we observed that CCTV footage was inevitably late - in almost every court in the country. Any moves to improve the way CCTV is obtained by the police, submitted to the Procurator Fiscal and used in court is to be welcomed.
248. As we have already described, in some offices, legal staff completed the full instruction for analysis at the marking stage or at least provided instructions elsewhere in the case preparation instruction to allow administrative staff to complete and submit the pro-forma request.
249. There is a protocol between COPFS, the Association of Chief Police Officers (ACPOS) and Scottish Police Services Authority (SPSA) containing detailed business rules about the way in which forensic analysis is instructed by the Crown and the timing of such requests. For summary cases where a scientific analysis is required to prove the case, whether involving drugs, DNA, or other, the protocol is clear that the instruction should be submitted on the day following a plea of not guilty at the pleading diet or continued without plea diet. The SPSA in turn should submit the forensic report 10 days before the intermediate diet.
250. This depends on a timely instruction by Fiscal Office staff and we have already outlined the issues in some offices in achieving timely case preparation work. In addition the laboratories also rely on the police lodging the productions with them to be examined. Liaison is between the laboratory and the force concerned on receipt of the request to analyse.
251. We were unable to determine with any degree of certainty when administrative staff submitted the requests for forensic analysis. In our closed case review we noted only one or two cases where late receipt of forensic reports were noted. In one case it seemed that, in error, the wrong date for expected receipt was put on the request. In another, it seemed that the delay was down to the police not lodging the productions at the laboratory in good time.
252. During our fieldwork around the country, observing 'live' intermediate diets and speaking to legal staff and sheriffs, there were few issues with the Crown's timely receipt of forensic reports but cases sometimes had to be continued for further steps such as instruction of an expert witness for the Crown and/or the defence. In Glasgow however one sheriff told us that there were significant delays in the Crown obtaining forensic reports which had led to churn of cases in the system.
253. At the present time there are 8 police 'gateways' for forensic analysis requests but in planning for a single police force next year we understand that matters are still under consideration for a single police gateway to forensic services. It is anticipated that this will bring greater consistency in police practice.
254. We were advised of a COPFS monitoring exercise, first introduced in Glasgow but now rolled out nationally, designed to improve the quality and timeliness of requests for scientific analysis. This exercise took the form of an electronic gateway via Fiscal Office staff based in Glasgow to the SPSA. Initial results from the exercise suggested that there was room for improvement in both the timing of the requests and quality of the information provided to SPSA by Fiscals instructing the analysis. Training issues were being identified when we visited the gateway unit in Glasgow in October 2011 although we have seen no new guidance or refresher operational reminders about this aspect of case preparation.
255. We consulted with the Forensic Services Director of SPSA and the Deputy Director of Serious Casework in COPFS. Both were agreed that there were difficulties meeting the timeframes in the protocol for each organisation and this was borne out by internal monitoring figures we were shown. Staffing seemed to be an issue on both sides and backlogs meant that sometimes forensic evidence was not available on time.
256. For the Crown there needs to be an improvement in the accuracy and timeliness of instruction. We were told of planned improvements in monitoring of cases by SPSA and hoped for improvements to achievement of targets by summer 2012. We were encouraged by the assurances of both COPFS and SPSA that they were working together to resolve the acknowledged shortcomings on both sides. A single co‑located gateway for COPFS and SPSA was under active consideration.
257. In respect of CCTV evidence and forensic reports (highlighted earlier) there is a need for an effective follow up procedure to ensure receipt and service of the necessary documentation. A diary 'bring up' system is essential as previously recommended.
258. We note the ongoing work among criminal justice partners to address both CCTV and forensic evidence and, therefore, make no recommendations.
259. COPFS is obliged to disclose to the defence all material information for or against the accused (subject to any public interest considerations). This relates to statements but it also relates to all information of which the Crown is aware.
260. During our inspection we learned that disclosure by way of 'pen drive' was being phased out as many more agents signed up for 'secure web' disclosure. By May 2012 all defence agents practising criminal law in Scotland had registered to participate in the Secure Disclosure Website (SDW) and were either fully operational and receiving all disclosure material on-line or were in the process of installation. By the end of June 2012 COPFS expected that all agents would be fully operational and that pen drive disclosure would be by exception only, eg in large or complex cases. By May 2012 we understand that approximately 118,000 disclosure 'binders' had been published and downloaded.
261. SDW reports are printed for each case and these clearly identify when documents have been downloaded to the secure website, when the email was sent to the agent advising of this, when uploaded/opened and if the download was successful.
262. There was almost universal approval for the secure website process from all parties with whom we consulted during the inspection process. Administrative staff found it much quicker and legal staff told us they were much clearer about what had been disclosed and when, since the printout from the website confirmed the time (to the second) and date of download of the material. Some administrative staff reported some instances of being asked to repeat the process for agents who had missed the timeframe for upload. Hopefully teething problems such as these will be ironed out in time as the process beds in.
263. The guidance to staff about all aspects of disclosure is found in the current COPFS Disclosure Manual. This is updated regularly and is supplemented by circulars as reminders to all staff. An overview of the process and timelines of disclosure of statements and PCOCs (Previous Convictions and Outstanding Charges) is shown in Annex I. For administrative staff there is also a guide on the IT process relating to the secure disclosure website.
264. We looked at the achievement of full disclosure against the timelines in every case we reviewed, in terms of statements, PCOCs and productions (where relevant and applicable).
265. Staff in some offices told us that they had difficulty in achieving disclosure in the timeframes given. The main reason cited for this was lack of resources. Other reasons included late receipt of letter of engagement from the defence agent, time involved in scanning documents, late receipt from the police, CCTV not playing, etc. During our fieldwork we noted in one office that staff preparing the following week's intermediate diet court had to redirect 16 files back to the disclosure desk as it had not yet been done. Staff in another office advised that this was often the case.
266. We found a variety of different approaches to disclosure in the offices we visited. Statements tended to be disclosed either at certain stages in the process or as and when they came in. There does not appear to be a consistent approach. COPFS policy is that material should be disclosed on receipt.
267. There were occasions where some offices had to chase police for statements. However, we were advised that this had improved (see table of target achievement re receipt of statements from police).
268. In our case review we looked at whether all the statements in the case had been disclosed and then checked if they had been disclosed within the timeframes. For the most part we found that there was full disclosure of all the statements in the case. We did, however, find the odd case where one or two statements had been missed because they arrived after the bulk of the statements had been submitted and disclosed.
269. Timing of disclosure was more of an issue in most of the offices we visited. In one office disclosure was made within the target timeframes in all but one (custody) case.
270. In another 4 offices success in achieving target was less impressive.
271. In 3 offices we noted poor performance for timeliness of disclosure.
272. Poorest performance was in one large office where, of the 41 cases reviewed, only 3 had full disclosure within target. In 11 of those cases we found that not all of the statements had been submitted by the police in time. Police practice in that area is for each police officer to submit his own statement. This seemed to result in statements arriving sporadically within the case folders on the IT system. We have already highlighted the problem that receipt of the first statement in a case triggers police target achievement.
273. In another office with poor results for timing of disclosure we heard from the office staff and confirmed by the police that delivery of full statements within timeframes was not routinely achieved.
274. In some cases, even where all statements had arrived from the police, lack of a 'letter of engagement' from the defence held up the process and the Crown had no control over this. However in some cases there was no obvious reason why there was not full disclosure on time other than perhaps staff resource issues.
275. We took an overall look at churn and the reasons for churn in all of the cases reviewed. It was not always possible to link late disclosure to churn given that there were many and varied reasons for churn, some of which were outwith the control of the Crown such as failure to appear by the accused.
- PCOCS (Previous Convictions and Outstanding Charges)
276. Some witnesses have criminal records and if those convictions or outstanding criminal charges are relevant and material they should be disclosed along with the statement of the witness concerned. PCOCs are redacted to remove any irrelevant material. Clearly timing issues were the same as for statements.
277. The process of obtaining the criminal record is that the request should be made by a member of administrative staff directly to Scottish Criminal Records Office (SCRO), if the witness details show a criminal record office reference number. A reply is received instantly and the record is then redacted by either legal staff or trained administrative staff.
278. In some offices it is legal staff who have responsibility to redact statements and PCOCs whereas in others it is administrative staff. Most administrative staff are happy to perform this function and if unsure they will ask a legal member of staff for advice, however, some feel that training should be given for redaction of PCOCs. In one office where it is legal staffs' responsibility to redact we were advised that there was a backlog as there was no legal staff available to perform this duty due to other work commitments.
279. We found that the process we have described was followed and in most cases we could see evidence of disclosure of criminal history information. In some cases the letters to defence agents did not make it clear whether criminal history information was included, although the request to obtain the information was made to SCRO. This may be because the SCRO record disclosed nothing of any relevance or it may be down to administrative staff failing to make the letter to the defence clear about criminal history information.
280. However in one office (Glasgow) we found that in just under a quarter of the cases we reviewed (8 out of 41) a request for SCRO record for witnesses should have been made and was not. This is a matter of some concern as it demonstrates a clear breach of disclosure practice.
281. In addition, in one case in the same office, worryingly it appeared to us that the criminal history of a person not connected with the case was obtained and disclosed to the defence. Here, the police provided a SCRO number but on obtaining the record it seemed to relate to a different name and date of birth. The day and month of birth were the same but the year of birth was different and since the offending seemed to have taken place in a different jurisdiction we thought that it was highly unlikely that it related to the witness concerned. Obviously this was an error emanating from the police information but this should have been picked up and queried on receipt by Fiscal Office staff before disclosure to the defence.
Given its potential importance we recommend closer attention is paid to obtaining and disclosing previous criminal history records of witnesses.
- Disclosure of productions
282. As we have already outlined there are issues about precision and clarity of legal instructions in the ordering of all productions. For documentary productions our expectation was that we would see the productions recorded on the IT system as received at the Procurator Fiscal's office and clear reference to the productions in the disclosure letter to the defence.
283. We were told that timing of disclosing documentary productions varied from office to office eg as and when the documents are received or by running filters in date order.
284. In our case review we noted that where there were a number of documentary productions it would be important to list these in a clear way so as to identify them individually for proper record keeping purposes. Some were being disclosed by way of pen drive at that time and we did find pockets of good practice where it was clear from the letter to the defence exactly what was being disclosed. However we were disappointed in the level of record keeping both in respect of what was lodged at the Procurator Fiscal offices and what was disclosed.
285. With secure web disclosure, where productions are received hard copy they must be scanned into the IT case file and individually named before being downloaded onto the secure website. Although administrative staff told us that they understood the benefits of this in terms of accurate recording they also told us it was very time consuming especially for cases with numerous documentary productions, such as benefit frauds, and that this has an impact on other work they have to do. There would be great benefits in receiving documents by electronic means to avoid this time consuming process.
286. It seemed that in a number of cases we reviewed there was partial disclosure of productions which made no sense. For example, in one case relating to drug charges the letter to the defence referred to the search warrant only and not to the equally relevant and material document - the production schedule completed by police officers conducting their search. Both documents had been lodged at the Procurator Fiscal's office.
287. In another case charges under the Animal Health and Welfare Act were libelled and the report from the Scottish Society for the Prevention of Cruelty to Animals (SSPCA) referred to an expert report by a veterinary witness. There was no record of such a document being lodged or disclosed to the defence on the IT system yet it would have formed a critical part of the Crown case. There was a handwritten note on the court minutes that 'copy productions' were on file and ready to be disclosed at the intermediate diet but no record of what those productions actually were. Such an approach was not uncommon in our inspection.
288. Moreover, even where there was a clear record of disclosure of documentary productions this was often close to the intermediate diet, at the intermediate diet itself or after the intermediate diet. This was sometimes but not always because of late receipt from the police. In one case documentary productions relating to uttering forged cheques were not even requested from the police until after the first trial had been adjourned (the accused failed to turn up for the first trial so the Crown's failure to prepare was masked). We also found one or two cases where drink driving charge forms (Form 4:8:1) which had been lodged with the Procurator Fiscal for some time were disclosed late or not at all. Early disclosure is recommended for such formal documentation.
289. The new provisions relating to solicitor access to suspects being interviewed by the police has already been mentioned. We found that SARF forms were commonly not ordered at the outset and had to be requested and disclosed late in the process.
- Disclosure of labels
290. For those productions that we have already described in our report as 'labels' - such as weapons, clothing and other non-documentary items, the existence of these items will generally be disclosed to the defence in the summary of the evidence provided at the outset. The Crown disclosure manual provides that the defence should also be told of their whereabouts and given a named point of contact for viewing of the same. We could find no evidence in any of our case reviews to show that this was being done proactively. Occasionally we noted defence requests to view items. This did not seem to cause problems in the smooth progress of a case, provided the Procurator Fiscal replied to the defence request on time.
- Disclosure of CCTV
291. We looked at disclosure of CCTV as a separate issue since we were aware of the widespread problems reported about obtaining CCTV evidence, having it copied and then disclosed on time.
292. We have already outlined the difficulties in obtaining CCTV on time. If properly requested in the first place CCTV should be formatted and submitted by the police in time for disclosure before the intermediate diet. It would be of benefit to all concerned if CCTV were to be submitted and disclosed electronically but the technology to allow this to happen has not yet been developed for the criminal justice system.
293. Administrative staff told us that they checked that it would play and that it was compatible with equipment used in court. It was then copied for disclosure purposes and defence agents were advised that it could be picked up. Receipts were filed with case papers. In more than one office the police supplied the defence with copies of CCTV (if the Procurator Fiscal advised on the request the number of accused) and therefore there is no need to copy it inhouse.
294. We were advised that sometimes CCTV could not be viewed so arrangements were made to address this (eg the defence agent advised that it could be viewed at council offices or it was sent back to the police to reformat.
295. According to the Disclosure Manual disclosure of CCTV should never be disclosed automatically without being first considered by a member of legal staff (or precognition staff in solemn cases) to ensure it conforms to tests of relevancy and materiality. We were not aware of any procedures in place in any of the offices concerned where this happened as a matter of routine. We noted that Fiscals rarely had time to view CTTV footage during their preparation of the intermediate diet courts and we heard that only rarely was CCTV footage viewed at earlier stages of the case. There was no obvious legal input into the processes for disclosing CCTV to the defence. If our recommendation about full case review is followed (see Recommendation 14) this could be achieved.
- Disclosure of forensic reports
296. Provided that forensic reports are served on the accused then disclosure of this material has been achieved. We found that it seemed to be fairly common for forensic reports, if available, to be prepared for service on the accused at the intermediate diet. In Chapter 3 we outlined how the case marking instructions should include proper instruction about follow up on receipt of the forensic evidence so that the report would be served on the accused and negate the need for scientists to give evidence. It seemed that, in practice, this was picked up during preparation for the intermediate diet so that personal service could be effected in court.
- Other disclosure issues
297. These findings were from the closed cases we reviewed and related to timing of disclosure between the pleading diet or first calling of the case to the intermediate diet. As indicated we carried out some 'real time' review of cases by looking at a sample of cases at live Intermediate diet courts where we observed the preparation by the Fiscal and then sat in to observe the court proceedings. We heard of some continuing problems for the Crown in achieving disclosure in good time before the intermediate diet and considered the extent to which disclosure or lack of or incomplete disclosure caused cases to 'churn' in the courts.
Disclosure in live case review
298. Our inspection included visits to observe the preparation of and conduct of intermediate diet courts in each of the offices we were inspecting. In two offices problems with disclosure persisted.
299. In the first office in 20 cases (a third of the cases calling in the intermediate diet court) we observed issues about lack of full disclosure. It seemed that statements had not been received in a number of cases hence the delay in disclosure but the court did not probe the reason for the late receipt of statements and the date of request. The Fiscal in court may not have had the information easily to hand in the paper file. Our own review of the state of preparation of the Crown for this intermediate diet showed that late action by administrative staff may have contributed to the late receipt of police statements in some of the cases calling. Disclosure of CCTV was still awaited in a couple of cases.
300. In one case in which defence agents had sought copy productions the Crown still had not complied with their obligations 2 months later. We noted that this case had been reduced from solemn proceedings and should have had advance preparation work carried out. Had this been done the missing productions ought to have been identified and requested. The case was continued for a further intermediate diet to resolve this matter with the sheriff expressing concern about the progress of the case given that it was set down for a 3-day trial.
301. In the second office, of 62 cases calling, some 20 cases had disclosure issues. It was clear from speaking to both administrative and legal staff preparing for the court that disclosure was being done very last minute, either the day before the intermediate diet or on the day of the court itself. In 4 cases disclosure had not been done at all and was to be followed up after the intermediate diet court. Where there had been partial disclosure, outstanding matters were commonly CCTV, forensic reports, police interview tapes and photographs. This finding ties in with our earlier comments about the need for focused, clear and full instruction for all productions at the case marking stage, bearing in mind what the defence will want disclosed to them in the event of a plea of not guilty.
302. We noted that in one or two cases the defence were attempting to place a higher burden of disclosure than the statutory duty encompassed. In another case the defence wanted the Crown to make enquiries about whether there was CCTV footage available for an incident that occurred in a busy city centre street that was well known to have CCTV cameras in situ. There was no mention in the SPR of any footage being viewed by police officers and it was down to the defence to investigate this with the police, although the Fiscal was asked by the court to assist the defence in their enquiries.
303. In two other offices we found that generally disclosure had been carried out ahead of the intermediate diet court with occasional further continuations for CCTV evidence that was still outstanding. In yet another office disclosure was not an issue save for one case where there had been a change of agency and the new solicitors instructed were awaiting the disclosure file from the previous agents. Indeed change of agency delays cropped up in more than one court. The Crown fulfils its obligation to disclose on the first occasion and on a transfer of legal aid the file should be transferred by the original agent.
304. In all the courts we observed we noticed that a small percentage of cases where disclosure had taken place were continued to a later intermediate diet because of 'possible resolution'. We heard of 'Sheriff shopping' or 'Fiscal shopping' where the defence simply wanted to put the case off to a later date in the hope of negotiating a 'softer' plea or having a more lenient sheriff sentencing their client on a plea or partial plea of guilt.
305. Although there was poor performance in relation to disclosure in our closed case review of one office this did not seem to be a problem at the time of our visit in October last year. This was confirmed to us during meetings with the Sheriff, COPFS staff and the local criminal justice co‑ordinator. We were told of a monitoring exercise carried out by managers in COPFS to try to establish the extent of the problem and in many cases where lack of disclosure was cited in court it transpired that disclosure had been carried out. This highlighted the need for full information to hand for Fiscals in court. Everyone with whom we consulted agreed that the secure web disclosure system had improved the provision of information about disclosure and enabled Fiscals to robustly counter any misleading statements to the court in this regard.
Management information about disclosure
306. The guidelines for timeframes for disclosure are shown in Annex I but there is no mechanism in place to measure achievement of timely disclosure. In one office we were advised that disclosure was monitored by the legal manager. This was achieved by administrative staff creating a spreadsheet by taking information from 4 screens.
307. There is no easy way of identifying which cases have been disclosed as there is currently no exception reporting relating to this. It requires staff running a report for the intermediate diet date and looking through each case, which is time consuming.
308. COPFS should look into identifying whether this can be done with a view to introducing it to allow staff to deal with only cases that still require to be disclosed and to allow management to measure whether targets are being met while also identifying specific issues where disclosure has been delayed.
We recommend the creation of a system to monitor performance on disclosure.
New incoming mail
309. Correspondence connected to summary cases arrives in a number of different formats. Reporting agencies with further information about the case submit 'subject sheets' via the electronic system, FOS. Administrative staff have a responsibility to check the electronic system for new information. We found occasional cases where it appeared that such information had not been printed and brought to the attention of legal staff.
310. Police officers seeking excusal from giving evidence in court also submit their requests by electronic means. In two offices we learned of staffing backlogs, both administrative and legal, leading to delays in dealing with such requests. In those offices where dates of trial were fixed with police availability in mind there were fewer excusals to be dealt with. One area had centralised their police excusals and this led to increased efficiency which was welcomed by the police locally.
311. In one office administrative staff (with special training on factors such as admissibility and sufficiency) either approve or reject police excusals however we were of the view this type of work should not be carried out by administrative staff.
312. Hard copy mail from defence agents, witnesses and others is processed by administrative staff before being forwarded to legal staff to deal with. This is also managed on a daily basis, although in one large office due to resource issues there were delays in matching mail to cases. We heard complaints from a number of defence agents that mail routinely went unanswered at that office and this was something we experienced first hand.
313. We learned that defence solicitors were being offered the chance to sign up to a secure email facility accredited by the Government Secure Community. This is still at a fairly early stage with no current information available to us as to how many agents had opted for this. It is hoped that this system will help to alleviate some of the mail processing delays involved in matching letters to paper files.
314. Whatever the method for dealing with mail, there is a need for well managed systems for checking mailboxes and sufficient staff to deal with these matters.
315. Administrative managers indicated that workload was testing, resilience was poor and it was hard to keep momentum. Phrases such as "keeping head above water", juggling work and shuffling responsibilities were common in our visits. Loss of staff had an impact.
316. Staff themselves said they felt the pressure and preparation of cases was suffering.