Part 3 – Structure and operation of ICU
33. Over the years, the composition of the Unit has altered in conjunction with changes within the wider operational COPFS structures.
34. During the course of our review, ICU has been incorporated back into SOCD and a second Deputy Head of SOCD appointed. One of these deputy posts has been designated as the Head of ICU, although the post also has responsibility for some of the work carried out by SOCD. The Head of ICU reports to the Head of SOCD. There are two Principal Deputes each in charge of a separate area of work, namely extradition and Mutual Legal Assistance. This has been a constant in the various reiterations of the composition of ICU. In addition, there are four prosecutors, generally split between extradition and MLA work. There is also a trainee who spends three months in ICU, mostly dealing with MLAs, and three months in The Hague assisting the National Member for the UK at Eurojust. In addition, a manager of ICU goes to The Hague every 12 weeks. The team is also supported by three administrative members of staff.
35. During much of our review, the position of Head of ICU was vacant and filled by an experienced Principal Depute as Acting Head of ICU on a temporary basis. This resulted in a reduction in the overall management capacity in the Unit with the Acting Head retaining much of his extradition portfolio.
36. There appears to be little differentiation in the work being undertaken by prosecutors and senior prosecutors within ICU suggesting that there is scope for a clearer division of responsibilities between the two grades and for senior prosecutors to take on greater responsibility for the more complex case work.
37. In general, due to the work being perceived as varied and interesting, there has been little difficulty in attracting staff to join ICU. The division of work between extradition and MLAs in the Unit was, however, commented on by some legal staff who expressed some reservations that working solely on a narrow area of work within the Unit may be too specialised and highlighted a desire to ensure that there was scope to maintain their more general court and case decision skills. The recent vacancy of the Head of ICU resulted in prosecutors within ICU undertaking work in a more diverse range of ICU responsibilities, which they reported provided greater variety and resilience within the Unit. The recent move of ICU within the SOCD umbrella may provide greater opportunities for movement between these specialist units but that remains to be seen.
38. Greater specialisation inevitably creates tensions between developing greater expertise in a narrow field, the possible dilution of skills in other areas of work and the provision of sufficient resilience in key operational areas.
There should be flexibility in the allocation of different types of work within ICU for staff development purposes. All personal development plans should include measures aimed at facilitating a smooth transition for staff moving to other positions within COPFS, including opportunities to retain existing and general skills such as court advocacy.
39. ICU legal members of staff receive training in a number of ways. They attend regular monthly team meetings where developments in law are discussed and analysed. While minutes of the meetings are taken, they are not published. There is also ongoing one-to-one training within the Unit and members of the Unit are given the opportunity to attend courses run by the Academy of European Law (known as ERA) in Trier in Germany.
Minutes of team briefings should be recorded on the ICU internet page.
40. However, it is clear from cases we have reviewed that some prosecutors in the Federations are not clear about the processes and requirements involved in international work and there is, in general, a lack of awareness of the role of ICU and that of ICRDs.
41. ICU has made concerted efforts to raise its profile in COPFS and has had some success. This has been achieved through articles on the work of the Unit in internal communication magazines and newsletters. Participation in a European Judicial Training Network competition by COPFS trainees in which they came fourth out of a field of 44 also raised the profile of the Unit. ICU is now also represented at the Sheriff and Jury and High Court Forums and delivers a presentation at the Core Deputes' Legal Module II course attended by first-year trainees, the new Case Preparer/Investigative Assistants course and at the precognition training course.
42. For those prosecutors who have had the benefit of assistance from ICU, there was positive feedback on the service and advice they received. ICU's role in contacting witnesses to arrange for them to travel to Scotland or to give evidence by live-link from abroad was commented on as being extremely helpful and critical for the success of many high-profile cases. ICRDs were also vocal in their praise for continuous support and advice received from individual team members in ICU.
43. Within ICU there are a number of policy issues that arise. In general policy issues are dealt with by the Policy Division in Crown Office with a specific prosecutor in Policy Division having responsibility for the international policy portfolio. However, the Head of ICU plays an active role in formulating policy and works with Policy Division on international issues, providing greater input into the more practical aspects of international policy. Both ICU and Policy Division work with the Scottish Government on international issues, and regularly meet with Scottish Government colleagues and Home Office officials on UK-wide policy issues. The Scottish Government appreciate the practical insight on proposed legislation that ICU provides. More recently, due in part to a lack of management capacity, a greater proportion of policy work has been cascaded throughout the ICU team, which has been favourably received.
44. ICU also provides Ministerial support at House of Lords and Scottish Parliament committee meetings on international affairs.
45. Due to the specialised nature of its work ICU researches the law and prepares its own appeal cases. Appeal cases have been traditionally presented in court by advocates who have particular expertise in this area. This is an expensive resource and more recently, following training and guidance from ICU, the Crown has used internal Advocate Deputes to conduct such appeals. Appeals in this area are relatively few. There were 20 lodged in 2011, 14 in 2012 and two up to May in 2013. ICU in discussion with the Appeal Court has arranged for appeals on similar points of law to be heard together to improve waiting times. ICU also prepares any appeals that are conducted in the Supreme Court sitting in London.
Role of ICU
46. The work of the unit is currently split between extradition and MLA. Given the predominance of these workstreams, it is helpful to have a clear understanding of the purpose and role of ICU in both areas.
Extradition Out (EO)
47. This is a request made by Scotland to foreign jurisdictions to extradite a person suspected or convicted of a crime in Scotland. In pursuing extradition, Scotland is giving an international undertaking that if the person is extradited to Scotland they will face prosecution on the charges for which they are extradited or, if already convicted, they will be sentenced. Most extradition occurs within the EU and follows a streamlined and accelerated procedure. The instrument for seeking the surrender of persons in the EU is the European Arrest Warrant (EAW). In order for an EAW to be granted, the offence committed must be an extradition offence as defined in the Extradition Act 2003.
48. If the suspect resides outwith the EU, the procedure will depend on whether the country has a treaty with the UK, such as the United States of America and Australia. For those countries where there is no treaty or agreement, each request is dealt with on a case-by-case basis and the process is more complex and uncertain. Often the critical factor is establishing a point of contact and obtaining detailed information on the legal requirements pertinent to the particular country. ICU will often send applications or requests in draft form to allow practitioners in other jurisdictions to provide advice on whether it is sufficient for them to grant a warrant. This is an excellent practice, ensuring that work is processed more efficiently.
49. An extradition offence is one where the facts that constitute the criminal conduct alleged to be committed, would constitute a crime in the executing state. In practice, in Scotland, it is usually only sought in serious cases that would be prosecuted on indictment.
50. A Scottish domestic warrant must be in existence before any warrant seeking extradition can be sought. All requests for EAWs or international warrants seeking extradition are channelled through ICU and are authorised by the Lord Advocate. ICU is responsible for drafting warrants or applications and all such warrants and applications are heard at Edinburgh Sheriff Court. Once granted, the EAW is sent to the foreign authority for action via SOCA or Interpol. Formal requests to countries with treaties are sent via the Scottish Government.
51. There are a number of documents and other pre-requisites that must be obtained by prosecutors in the Federations prior to an EAW or a request for extradition being sought by ICU including certified copy fingerprints, a certified copy of the domestic warrant and a certified copy photograph of the suspect.
Extradition In (EI)
52. Incoming requests for the extradition of persons in Scotland to other countries are usually routed to ICU through SOCA or the Scottish Government. ICU will consider the legality of the requests, and if content, will certify the request and issue it to the police for arrest. This contrasts favourably with the system in England and Wales where currently SOCA certifies and issues all applications and EAWs and there is no legal input until after the arrest. SOCA has no discretion in certifying such warrants and this can result in persons being arrested on matters that do not constitute a crime in Scotland. For example, failure to pay child maintenance is a criminal offence in some countries but not in the UK. If a warrant request for failure to pay child maintenance was received in Scotland, ICU would not certify or issue the warrant but would contact the foreign authority and provide advice on how to attempt to recover the debt whereas in England and Wales such a warrant would be certified by SOCA and issued, with the first opportunity for the EAW to be considered legally being when the prosecution lawyer appears in court with invariably the request then being dismissed. Early consideration by ICU helps to ensure that applications and warrants submitted satisfy all legal requirements and that all relevant information is available.
53. Persons arrested on an EAW must appear in court as soon as practicable and the fugitive must be returned to the issuing country within 10 days of voluntary surrender or a court ordered surrender. On arrest, ICU will liaise with the requesting state and conduct extradition hearings in Edinburgh Sheriff Court. The person may consent to extradition but, if not, an extradition hearing must be scheduled within 21 days of the arrest. Written consent may be given at any time. It is open to the court to place the fugitive on bail or detain them in custody. Any time spent in custody counts towards any custodial sentence for which the extradition is being sought.
Incoming Requests for Mutual Legal Assistance
54. Incoming requests for assistance from abroad are varied. They can come directly from the foreign authority, the Scottish Government, or from UKCA. All are processed by ICU. Some requests will be passed to the police to action, such as service of an official document, or a request to take a statement from a witness. Others may have to be heard in court and these tend to be dealt with by an ICRD. Such requests include obtaining search warrants or seeking precognitions on oath or arranging for witnesses to give evidence in foreign proceedings by a live-link from Scotland. On occasion some foreign authorities may request a precognition on oath for a prospective accused.
Outgoing Requests for Mutual Legal Assistance
55. Evidence is obtained from abroad by the formal process of sending ILoRs. The Crime (International Co‑operation) Act 2003 allows the Lord Advocate or a procurator fiscal to request such assistance during the investigation or prosecution of a criminal case.
56. In practice letters of request are only sent in serious cases. Requests for assistance will be issued by ICU, which is responsible for verifying that outgoing requests are complete and in the proper form. As all information is obtained for the purpose of presenting it as evidence in criminal proceedings in Scotland, ICU will ensure that any request fully sets out the Scottish requirements for the provision of evidence in a form that renders it admissible before a Scottish court and without the need to call additional witnesses in the trial.
57. Letters of request sent from Scotland seeking the assistance of criminal authorities in another country will normally be signed by an Advocate Depute or a procurator fiscal, but it may also be issued by a court, for example, on the application of an accused person or in a request for evidence by live-link from a witness outside the UK.
Purpose of ICU
58. There is no overarching document setting out the core aims of ICU. This shortcoming is remedied to a large extent by the extensive guidance on the Knowledge Bank. It contains clear and helpful information, providing contact details to whom particular issues should be directed for guidance and support. However, to provide more certainty on the respective responsibilities between those in ICU and local prosecutors, a clear and published remit would be of benefit.
ICU should prepare and publish a defined and agreed strategic purpose and remit for the Unit to clarify and raise awareness of its role within COPFS.
59. Within the existing guidance the first port of call for those seeking assistance on international matters are local International Co‑operation Resource Deputes (ICRDs).
International Co-operation Resource Deputes (ICRDs)
60. Due to the specialised and reputational nature of international work, it was decided that legal members of staff with some specialist training should undertake this type of work in the wider COPFS.
61. As a result, ICRDs were annexed to ICU in 2009. The intention was that ICRDs would be a legal resource based in local offices across COPFS who, after receiving training, would assist ICU by dealing with various international matters. The role of ICRDs was seen as providing a communication channel between the local offices and ICU, a resource to deal with the practical work in local courts and to engender good relations with the local International Liaison Officers (ILOs) within the police.
62. The mainstay of ICRDs' work has been dealing with incoming MLAs - that is requests by other countries for assistance. This often involves obtaining precognitions on oath from witnesses, or by organising the practicalities for evidence to be given to a foreign court by a live link.
63. Some ICRDs are also involved in seeking and drafting outgoing MLA requests. The reasoning for ICRDs' involvement with outgoing MLA requests is that they have access to and knowledge of the local case and can give advice to the local procurator fiscal on what steps can be taken to obtain international assistance and the available options.
64. ICRDs are not involved in incoming extradition cases, which are dealt with exclusively by ICU although some ICRDs are involved in the initial stages of seeking EAWs or advising local prosecutors on the process of obtaining such warrants.
65. As a rule, ICRDs enjoy international work. It provides an opportunity to develop different and new skills. The relationship between ICU and the ICRDs has generally worked well, although there are a number of areas that have been highlighted by ICRDs where there is scope for improvement.
66. One such area is the lack of access by ICRDs to electronic styles. The styles used by ICU are contained in "ICU Live" - an electronic system used exclusively by ICU. More experienced ICRDs have built up their own portfolio of styles but this runs the risk of the styles being inconsistent with those used by ICU and being out of date. Given the high-profile nature of most ICU cases, it is essential that the drafting of such requests is efficient and accurate, to ensure success and retain credibility.
67. Providing an accessible bank of approved ICU styles would be more productive and provide reassurance on the quality of the content of requests and applications.
68. The lack of a clear remit has created uncertainty for many ICRDs on their role in comparison with those in ICU. One of the functions identified for ICRDs was to draft outgoing MLAs but in practice the standard is variable depending on the level of experience of the ICRD and the prevalence of competing demands.
69. A frequent concern raised is that no specific time is allocated to ICRDs to undertake ICU work and many have highlighted difficulties in completing international work timeously due to competing demands. This has resulted in ICU becoming more involved in undertaking some work that would have previously been dealt with by the ICRDs, such as drafting warrants and requests for assistance. ICU has no influence on how work is allocated within each Federation and there is no system of monitoring such work once allocated to ICRDs. While there is a record of outstanding work recorded on ICU Live with a date allocated for the case or request to be reviewed, there is no record of outstanding work that is sitting with ICRDs or within the Federations.
70. The lack of monitoring is illustrated by delays that have arisen in some cases. In one case a request for a precognition on oath was allocated to an ICRD some five months after it was received in ICU and it then took approximately 14 months before the case was actioned by the ICRD, resulting in the sheriff who ultimately dealt with the case expressing concern at the delay.
71. In another case a request was made to take precognitions on oath from three persons. The ICRD was first asked to have an ILO check the addresses in February 2012. Following the addresses being passed to ICU on 27 February 2012, they instructed the ICRD to conduct the precognitions on oath but it was not until 18 October 2012 that the precognitions were actually taken.
72. There are some cases, however, where the work has been dealt with extremely expeditiously. Overall, performance is variable.
73. More recently the appointment of ICRDs has been sporadic and their expertise is mixed due mainly to a lack of training. When the ICRD role was initially rolled out many of the ICRDs were seconded to ICU for a period of a week with ICU prosecutors taking over their daily duties in offices. This was favourably received by the ICRDs and was effective in developing expertise and fostering relations with ICU. It also provided ICU prosecutors with an opportunity to refresh their prosecution and court skills. This was supplemented with "ICU roadshows". However, training has tailed off over the last two years with new recruits to ICRD posts having received little training.
74. The role of ICRDs initially worked well but more recently there are wide variations in the work undertaken by ICRDs, their level of experience, inconsistencies in the quality of their work and on how they are utilised in the new Federation structure.
75. The guidance on the work to be dealt with by ICRDs on the Knowledge Bank pre-dates the re‑structuring of COPFS into a new Federation structure in April 2012, which has markedly changed the work profile of prosecutors and the structure of COPFS. There is a distinct lack of clarity on the role of ICRDs in the new structure. Following the introduction of Federations, each Federation has moved to functional working in "hubs" with some offices dealing solely with a particular work stream, such as initial decision-making or Sheriff and Jury business.
76. ICU has expressed difficulty in clarifying who it should contact in the new structure as the information on the Knowledge Bank is out of date. Lists provided by the Federations show significant changes in the body of available ICRDs to undertake international work with many of the previous ICRDs no longer available and having been replaced by others with no previous experience.
77. Each of the Federations has adopted a different approach to dealing with international work. In the West, where the majority of such work arises, there are four ICRDs based in Glasgow. Three of the ICRDs are located in one of the three main functions - High Court, Sheriff and Jury and Summary business - and the fourth is situated in a unit dealing with financial crimes. International work is allocated according to the forum with which it is most closely linked. However, the system does not take account of any other external considerations which may cause bottlenecks and three out of the four ICRDs in the West are newly appointed and have had no training. ICU work is allocated by a single contact point, which gives more certainty than the previous system of copying requests to all ICRDs in the office to decide amongst themselves who should take on each piece of work, but the single point of contact has no management or monitoring responsibilities for the completion of the work.
78. In the North Federation there are also four ICRDs with two ICRDs in Dundee and two in Aberdeen, although they have significantly less workload than in the West. ICU sends requests for assistance to all ICRDs in the Federation leaving the ICRDs to decide who will take ownership. Work is dealt with mainly on a geographical basis.
79. In the East, a different approach has been adopted with all international work being filtered through a senior legal manager. There are no longer ICRDs in the East. The manager allocates international work with guidance to local prosecutors. It is of note that ICU undertakes a proportionally higher amount of international work in the East due to the fact that it is situated in Edinburgh.
80. Having a single legal manager as a point of contact for each Federation to allocate work is the approach favoured by ICU. It is seen as providing a more managed approach to delegating and monitoring the work. The introduction of a generic email box accessible to all ICRDs has been identified as good practice, providing easy access to requests.
81. One of the main benefits in introducing ICRDs was to establish a network of knowledgeable prosecutors in local offices who would liaise with their police counterparts (ILOs). However, as a result of the restructuring of Scottish policing in April 2013, there are no longer ILOs within individual divisions. Instead, there is a national International Assistance Unit (IAU) that has established a direct link with ICU rather than at a local level. This has removed the need for ICRDs to instruct local police inquiries as ICU now simply directs all inquires through the IAU. Consequentially, it has removed any meaningful contact or relationship between ICRDs and ILOs.
82. Given the restructuring in COPFS and the police, it is questionable whether the ICRD is still an effective or necessary resource. Many of the functions undertaken by ICRDs, such as court appearances to seek warrants and to take precognitions on oath, providing that there are clear instructions from ICU, do not require any specialist skills and can be undertaken by prosecutors within the Federations.
83. Further, the lack of management and monitoring of the work of the ICRDs introduces a risk that a referral to an ICRD may introduce unnecessary delays.
84. Even with input from ICRDs, it is not uncommon for advice to be sought from ICU.
85. For the reasons specified, the ICRDs are no longer fulfilling the role that was envisaged and it is debatable whether this model fits with the new Federation structure.
86. An alternative model within the new Federation structure may be to provide a single legal point of contact in each Federation to act as gatekeeper for ICU requests and to allocate the work according to functional responsibility. ICU would be required to provide detailed instructions for each request, including styles, to enable any legal member of staff in a Federation to deal with the request.
87. If, however, the preference is to retain ICRDs, we have identified a number of areas of good practice that should be implemented.
A clear remit specifying the type of work to be undertaken by ICRDs is agreed, prepared and publicised.
Clear timescales for completion of ICU work should be agreed.
Time should be specifically allocated to ICRDs to undertake ICU work.
A new training programme is rolled out and regular liaison events are held between ICU and ICRDs.
ICRDs are either given access to "ICU Live" in order to access styles, or ICU styles are placed on the Knowledge Bank for all to access.
An up-to-date list of ICRDs is published and maintained.
ICRDs are spread among the main functions within each Federation to facilitate carrying out work connected to their function.
There is a single point of contact for ICU and ICRDs within each Federation to allocate the work, to ensure an appropriate and even distribution of work. The work should be managed and monitored by ICU and the Federations with a monthly return from ICU detailing outstanding work being sent to the point of contact in the Federations.
ICU introduces an effective review system for work sent to ICRDs.
Communal email boxes should be established within each Federation to allow more accessibility and flexibility in dealing with requests.
If the role of ICRDs is retained, it is suggested that the good practice points identified in part 3 are implemented.