Chapter 5 – Attending Court, Trial and Case Closure
216. This chapter examines the stage when a case proceeds to court including where the victim may be required as a witness for the giving of evidence. The chapter examines the key issue of victim participation as a witness and through to the conclusion of the case. This will include the issue of communication by COPFS to a victim of the outcome of their case.
217. The chapter also examines the procedures when a victim or other witness has property seized and retained that will assist proving the case in court. These items are known as productions.
Victim Participation as a Witness
218. As stated the important national documents for victims of crime are the Strategy and the National Standards for Victims of Crime. The National Standards make reference to the following in relation to victims' participation in criminal proceedings:-
'Your participation in criminal proceedings will usually be as a witness. A number of people will want to speak to you about what happened to you before, during or after the crime, and any effect the crime has had on you.'
219. Attendance at and giving evidence in court can be a daunting, yet important part of the criminal proceedings process for a victim and is clearly an important aspect of participation as identified in the National Standards.
220. Having specifically identified this aspect of participation it then becomes important to contextualise it.
221. For the period April 2009 to March 2010, COPFS received 275,503 criminal reports. Only 5,572 proceeded to trial in the Sheriff Court or District Court at summary level. These figures reflect the difficulty faced by the inspection team in identifying cases with a victim which had proceeded to trial.
222. They reflect the fact that while there are a great many victims of crime only a small number (in the order of 2.6%) will ever potentially be given the opportunity to participate in the proceedings by giving evidence in court. Victims may in some cases not be essential witnesses and not therefore cited to attend at court.
223. VIA statistics for 2010-11 show that during that time period 19,211 summary cases were referred to VIA. This figure is 7.2% of the total number of criminal cases reported to COPFS of which 4.9% were cases involving Domestic Abuse.
224. Leaving domestic abuse aside, only 2.3% of the criminal cases reported to COPFS were referred to VIA in respect of summary proceedings. These figures show that of the large number of cases referred to COPFS, many of which will have identifiable victims, only in 2.3% of cases dealt with at a summary level will victims receive information proactively in relation to their case and the criminal justice system.
225. These figures explain why we found it difficult to identify in our audit, summary cases within the chosen case categories, where there had been a VIA input.
226. In conclusion only a small number of victims go to court as witnesses allowing them to participate in this way and of those only a very small number who are not the victims of Domestic Abuse are supported by VIA in relation to summary proceedings.
227. We found it difficult to secure data on victims' participation as witnesses as no statistics are kept by COPFS that quantify the proportion of victims/witnesses who are cited to attend at court and do so.
228. This was in sharp contrast to the situation in England where the Crown Prosecution Service was readily able to provide us with figures in relation to witness attendance at court.
229. Figures in relation to the adjournment of trials are kept by The Scottish Court Service. However these figures only relate to situations where there are Crown motions to adjourn as a result of witnesses being absent. They do not keep data which confirms whether the witness was cited or not and whether any witnesses were in attendance or not.
230. COPFS is party to initiatives to address the issue of cases repeatedly calling at court for trial commonly referred to as "churn". This can have an adverse effect on victims. Their case can take much longer than necessary to go through the system making it more difficult for them to recall events in their evidence and causing inconvenience by way of repeat citations or attendances at court.
231. One such initiative is called 'Getting People to Court' which is led by ACPOS as part of The Scottish Government's "Making Justice Work". This aims to maximise the number of trials proceeding on the date they are first set down for trial.
232. Alongside this national initiative there have been and are ongoing local initiatives. These developments aim to make witnesses interaction with the criminal justice system as good as it can be.
233. However with no baseline figure of those cited/those in attendance it is difficult to understand how the outcomes will be evaluated. Of particular interest was a local initiative in Lothian and Borders, where manual counts were to be used to gather this type of information.
234. Monitoring and evaluation of these issues has not previously been factored into any processes or IT systems, making it difficult to see how improvements can be measured other than anecdotally, or by employing cumbersome, time consuming and resource intensive manual methods.
235. If IT improvements are made this may assist the keeping of data in relation to victims and witnesses to allow for meaningful analysis of victim and witness attendance and court and the effect this has on court churn.
- It would allow for analysis of whether the problem was one of process ie victims/witnesses were not being successfully cited, or one of attitude of the victim/witnesses, ie they were being cited but were not attending.
- In securing a proper understanding of the problem a solution will be more achievable.
Recommendation 10 - Evaluation and Monitoring of Court Churn
COPFS should improve their IT system to allow for analysis of victim/witness attendance at court.
Outcome of Case
236. The communication and information relating to the outcome of a case is dealt with at the conclusion of the case.
237. Information provision of the outcome of the case is of particular importance and interest to victims. This was confirmed by our survey where almost half of those victims volunteering further comments made reference to the outcome of the case. They confirmed that this was of interest to them and many advised of their dissatisfaction on not being told same. Amongst the comments made were:-
"'only information was press reports pointed out by cleaner'
"Not told what happened to him"
"Knowing final outcome would have brought closure but no information at all."
"Not informed what happened - would have liked to have known disposal"
238. Victim Support Scotland are firmly of the view that every victim deserves to know the outcome of their case.
239. Women's Aid are of the view that where there is no information provided as to why decisions are made in a case, this can have a significant impact on the women and children involved making them potentially reluctant to report further incidents.
240. In our first report we supported the principle that victims should be informed when a significant decision is made relating to their case. During the course of this inspection we noted that COPFS has made some progress in informing some victims of decisions taken and the progress of their case, albeit limited. The evidence from our survey of victims and from other agencies is that this is an important issue for victims.
241. In Recommendation 9 of this report we have recommended that COPFS proactively provide victims with information when they need it. However we particularly support informing victims of the outcome of their case which reflects the importance of this issue to victims of crime and fulfils the underlying principles of the Scottish Strategy for Victims.
Recommendation 11 - COPFS - Information to Victims on Outcome of Case
COPFS should inform victims of crime of the outcome of their case at the conclusion of proceedings.
242. The conclusion of court proceedings does not always mean the end of the victim's involvement in the criminal justice system, and this is recognised by COPFS in their OCVW. Commitment number 9 is:-
[We will] tell you how to claim expenses and deal with your claim as quickly as possible.
243. This commitment has the least supporting literature in the booklet version of OCVW and is clear and unambiguous as are the explanatory statements. However notably it provides no certainty around the timescales within which expenses should be sought and paid.
244. We were unable to find records in relation to the payment of expenses within the cases we audited which is a difficulty in relation to the monitoring of this commitment. We did make contact with COPFS Finance Division on this matter. They confirmed that while they have no internal targets their working practice is that once they receive a claim and citation from a witness a cheque will be issued and sent within 24 hours. They keep an audit trail in relation to the cheques and a note of all the citations they have in their system. These records can be matched up if required however the details are not recorded in a joined up way.
245. An overwhelming number of those who responded to the telephone survey were satisfied or very satisfied as to how these had been dealt with by COPFS with only one witness being very unsatisfied.
246. In conclusion this is an area where we secured very positive feedback and it would appear that the clarity and detail of information is meeting the needs of witnesses and is supported by sound systems and processes.
Return of Victims Property - Productions
247. When a crime has been committed the police have the power to seize and retain property which will be of evidential value in proving the case in court. Once seized the property is known as a production. The police are responsible for the safe storage of the productions until the case is concluded.
248. When a decision is taken by the local Procurator Fiscal to begin proceedings the responsibility for determining when the property should be returned to the owner then lies with COPFS. The recognised practice across Scotland for the authorisation of return of property or its disposal is the signing of a Production Release Note ( PRN) by a Procurator Fiscal. If the crime has not been detected responsibility for returning the property lies with the police.
249. Productions can be of financial or sentimental value to the victim, or of a nature that its retention can cause the owner inconvenience. During the inspection we explored the procedures between the police and COPFS for the return of productions and the impact current practice had on victims of crime.
250. We found conflicting views on the issue of productions. Victims consulted during our Telephone Survey were generally satisfied with how the police and COPFS dealt with the return of their property and Victim Support Scotland stated that they were not aware of this being a significant issue for victims. On the other hand police forces stated that procedures with the COPFS for the return of productions were unclear and inefficient and often led to complaints from members of the public, including victims, about the return of their property.
251. We examined the policies of the police forces inspected and COPFS. All three forces examined have detailed polices and guidance on the seizure and retention of productions but we found that there was little detail on the process for the subsequent disposal and return of the productions beyond stating that this relied on the issue of a Production Release Note by a Procurator Fiscal.
252. COPFS have clear policies on the return of productions most notably a commitment in the COPFS Book of Regulations that once a case has been concluded "Procurator Fiscals should ensure that all productions, including documentary productions, letters etc are returned to the owners without delay". COPFS staff guidance also states that once a case is completed it is the responsibility of the presiding Fiscal to complete the Production Release Note, or cause one to be raised where no such note is included in the case papers, in order that the police can return the property to the owner.
253. During our fieldwork we discussed the issue of productions with staff and management within both the police and local Procurator Fiscal Offices. The following is a summary of what we found:-
- COPFS procedures for dealing with productions have not kept pace with criminal justice reform and the increase in case disposals that are now available. There is no organisational procedure in place for Production Release Notes to be issued for Fiscal Fines and we found confusion between the police and COPFS around who is responsible for authorising the release of productions where a decision is taken to take no proceedings in a case.
- The application of COPFS's policies on the completion of Production Release Notes for the return of productions is inconsistently applied across the country.
- The police reported having to tackle a backlog of productions, some having been stored for many years. Some of the forces have had to employ additional staff solely to deal with this backlog which given current budgetary constraints does not represent the best use of resources. The long term storage of these productions also represents an additional organisational risk to police forces.
254. Overall it was clear that the service being provided in this area is inconsistent. Whilst we did not find significant evidence of a negative impact from the victims consulted for this inspection it was nevertheless our view that the current procedures between COPFS and the police are inefficient and leads to a diminished service for members of the public including victims of crime. We have noted that work is currently ongoing between ACPOS and COPFS to develop a simplified process for the police to receive information on closed cases that will allow for the early release of productions.
Recommendation 12 - Protocol for Release of Productions
Chief Constables and COPFS should develop and implement a formal agreement that details clear procedures to ensure the efficient return of property to victims and owners after the conclusion of a case. This agreement should clearly define the respective roles and responsibilities of police forces and local Procurator Fiscal Offices.