Annual Report 2012-13

To the Right Honourable Frank Mulholland QC
The Lord Advocate

This is my eighth and final annual report as Her Majesty's Chief Inspector of Prosecution in Scotland before demitting office in August 2013. The Inspectorate was put on a statutory basis in 2007 having been launched in 2003 on a non-statutory basis.

The creation of an independent inspectorate for the Crown Office and Procurator Fiscal Service (COPFS) was the first recommendation of the Jandoo Report into the Crown Office handling of the Chhokar case. Initially the work concentrated on race issues but expanded to cover all aspects of the work of COPFS (as required now by the 2007 Criminal Proceedings etc. (Reform) (Scotland) Act).

In total to date we have produced 17 thematic reports on a wide range of topics including knife crime, proceeds of crime, victims and wildlife. Additionally, 45 individual reports on Procurator Fiscal Offices and five reports on the function of Procurator Fiscal Areas have been produced.

The past 10 years have seen arguably the biggest changes in the criminal justice system in generations. These have included decisions of the House of Lords and Supreme Court with far-reaching implications for the criminal justice system. Decisions on disclosure (Holland & Sinclair) and legal representation at police interview (Cadder) have necessitated urgent and extreme action by prosecutors and others in the criminal justice system. The inspection programme has as a consequence had to factor these and other changes into the inspection process.

Changes to the structure of criminal justice partners have also impacted significantly on COPFS including recently the creation of a single police service for Scotland and the current proposals for reform of the judiciary and courts.
At the time of writing the Carloway Report's central recommendation of abolition of the requirement of corroboration has enormous potential impact for COPFS, police, victims and others.

Against this changing landscape COPFS itself underwent radical structural change in April 2012 with the creation of four Federations (replacing the previous 11 Areas) with a move away from work being dealt with geographically to staff in the new Federations being responsible for discrete areas of work.

An emphasis on specialisation (always present) has grown apace in recent years, the era of the generalist being largely over. This brings obvious advantages, not least in the efficient disposal of work and savings in work moving, rather than people. The obvious disadvantage of potential de-skilling and monotony is something that will have to be addressed. These of course are not problems exclusive to COPFS as other agencies including defence lawyers also go down this route.

When the Inspectorate was created it was at the time of closer scrutiny of inspection and regulation on both sides of the border. Various reports examined the role of inspection resulting in the promulgation of the agreed 10 principles of inspection which we follow.

Events in the financial and health sectors have focused attention on what is expected of inspection bodies. Recent reports into, eg Mid-Staffordshire Hospital and others, have highlighted the importance of robust, independent scrutiny.

As reported in previous Annual Reports I am concerned about self assessment in COPFS. The primary responsibility for improvement lies with the bodies themselves and as I reported last year the self assessment regime (which was based on summary cases) was suspended in 2011. We previously reported on patchy performance in relation to the previous self assessment regime and await the new system with interest.

The original intention when the Inspectorate was created was that self assessment would be available as an aid to inspection. This has not happened. I do believe there is a real role for self assessment in COPFS.

The Inspectorate is a very small body and cannot be the sole source of quality assurance. Done properly self assessment can be a useful management tool highlighting problems before it is too late, sharing good practice and as an aid for training. Although there are well documented recent examples of self assessment being delusional and, while that is a danger, with proper oversight it should be beneficial.

The year 2012/13 saw the publication of three major thematic reports. The first on the prosecution's preparation of summary Sheriff Court cases which account for about 60% of all cases taken to court. This report was set against a background of unacceptable delays (referred to as 'churn') in the criminal justice system.

The second report was on the working of the Health and Safety Division in Crown Office. The creation of the Health and Safety Division was an example of the move towards greater specialisation in COPFS and mirrored greater specialisation on the part of defence lawyers in this field.

The third report was on the operation of the COPFS Enquiry Point. This had been set up in 2008 with the purpose of improving delivery of service to the public (including victims, witnesses, accused persons and their representatives) by providing a high quality and prompt telephone enquiry service building on best practice and supported by appropriate training.

During my time as the Chief Inspector I have come strongly to the view that inspection is primarily based on three things:-

• Accountability (we publish all our reports)
• Quality assurance (where appropriate) and
• Most of all, as a catalyst for improvement

In that last regard I note recently the Scottish Government used our joint victims thematic (with HM Inspectorate of Constabulary for Scotland) as part of the background evidence for the current Victims Bill and also aspects of our wildlife crime report (again done jointly with HMICS) are being considered for statutory implementation.

We continue to pursue joint working where possible and hope to return to joint work with HMICS once the single police force has bedded down.

Review of past reports and recommendations remains a challenge for a small unit.

As reported last year our budget has reduced to £320,000. I am pleased to say, however, that we delivered this year's programme within budget but I expect pressure on budgets will inevitably increase in future years.

I wish to record my thanks to all the various people and organisations who have, over the past 10 years, so freely given of their time, assistance and advice. If I had to pick out one single major change that has been particularly significant over the span of my own 40 years then it has to be much greater co-operation and partnership working among the various criminal justice partners, the days of silo working (if they ever existed) are long gone.

Finally, I wish to put on record my thanks to my own staff both present and past without whose good natured and tolerant approach nothing would have been possible. It has been a privilege to have them as colleagues. I know my successor will also enjoy their support.

Joseph T O'Donnell
HM Chief Inspector
July 2013