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Inspection of COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 (2022)
Recommendation 1: COPFS should clearly set out its expectations of staff regarding record keeping and remind them that key decisions about a case should be recorded and that key documentation relating to a case should be imported into the relevant case file.
Status: Substantial progress
Rationale: Instruction issued to all staff that key decisions and key documentation should be recorded in case management system. Instruction also reflected in Chapter 9 (focusing on sexual history and character evidence) of the Sexual Offences Handbook which states copies of lodged section 275 application, court interlocutor and record of court’s ruling should be saved in case record in case management system.
For High Court cases, process desk instructions initially developed to ensure section 275 applications added to case management system and to folders used by Crown Counsel. Subsequently, new system for electronic reporting to Crown Counsel introduced ensuring all relevant personnel have access to key documents. In Local Court cases, each sheriffdom appointed a single point of contact whose duties include oversight and importation of key documentation into case records. Introduction of business codes now allows cases to be flagged as involving section 275 applications to allow management oversight.
IPS considers substantial progress has been made towards addressing this recommendation. There is scope for assurance work to be undertaken in High Court cases regarding record keeping in the case management system, confirming that instructions are followed in practice.
Recommendation 2: COPFS should urgently publish a revised Chapter 9 of the Sexual Offences Handbook to provide a single, easily accessible and up-to-date repository for all policy and guidance on managing section 275 applications.
Status: Achieved
Rationale: Chapter 9 revised to reflect changes to policy and processes in response to IPS recommendations, now providing a single source of guidance for staff. Staff advised of changes and revised Chapter 9 reflected in training.
Recommendation 3: Dedicated training on sexual history and character evidence should be mandatory for all COPFS personnel who are likely to regularly make or respond to section 275 applications in the course of their work.
Status: Achieved
Rationale: Three courses developed providing structured, staged and comprehensive training for staff likely to deal with section 275 applications as part of their work and for whom training is now mandatory. A list of those requiring mandatory training provided to Scottish Prosecution College and updated annually. Compliance now monitored. Training on section 275 applications for Crown Counsel also taken forward.
Recommendation 4: COPFS should instruct staff that, wherever possible, section 275 applications should be lodged with the court and intimated to the defence at the same time as the indictment is served.
Status: Achieved
Rationale: This instruction now included in Chapter 9 of the Sexual Offences Handbook. Dip sampling of cases shared with IPS showed increase in number of section 275 applications lodged with indictment, however scope for even further improvement (while recognising lodging with indictment not achievable in every case). COPFS committed to further increasing applications lodged with indictment through regular reminders to staff and monitoring by Sexual Offences Strategic Group.
Recommendation 5: COPFS should identify the most efficient process for receiving and actioning section 275 applications intimated by the defence. It should communicate this process to defence counsel and encourage them to use it.
Status: Achieved
Rationale: COPFS has requested that the defence send section 275 applications, as well as other case documents, to specified mailbox. Reminder issued and further reminder planned. Recommendation achieved although IPS considers this should be monitored and further reminders sent to defence, highlighting the benefits of using the specified mailbox, as required.
Recommendation 6: COPFS should provide staff with guidance on the circumstances in which it may not be appropriate to engage the complainer about section 275 applications.
Status: Achieved
Achieved: Guidance now included in Chapter 9 of the Sexual Offences Handbook and examples of when it may not be appropriate to engage complainer now included in training for staff. Work underway to obtain further practical examples from Crown Counsel for inclusion in Chapter 9.
Recommendation 7: The Scottish Government should consider seeking to extend the statutory time limits for making section 275 applications in the High Court, irrespective of whether a right to independent legal representation is introduced.
Status: Achieved
Rationale: The Victims, Witnesses and Justice Reform (Scotland) Bill (as introduced) will amend the time limit for lodging section 275 applications in the High Court of Justiciary from seven to 21 days before the preliminary hearing. The Bill is currently subject to parliamentary scrutiny.
Recommendation 8: COPFS should ensure that the manner in which complainers are precognosced about section 275 applications is complainer-led, with options being clearly set out and complainers being invited to state their preference which should be facilitated.
Status: Achieved
Rationale: Chapter 9 of the Sexual Offences Handbook updated in accordance with this recommendation, thereby providing guidance to all staff including those in High Court and Local Court teams. For High Court staff, guidance supplemented by reminder to all solemn legal managers of need for meetings with complainers in every case. Oversight provided via fortnightly meetings between solemn legal managers and case preparers to discuss case progress and communication with complainers, and via monitoring by Assistant Procurators Fiscal.
Further changes to Chapter 6 (on communication with victims) of the Sexual Offences Handbook prepared to provide guidance on meeting with complainers and aide-memoire on what should be covered. Approval and delivery of these changes expected in August 2024. Other work on improving communication with victims also being taken forward.
Recommendation 9: COPFS should clarify who is responsible for notifying complainers of the outcome of section 275 applications and should ensure compliance with this requirement. In addition, COPFS should remind its staff that they are required to advise complainers of the likely outcome of section 275 applications.
Status: Achieved
Rationale: Chapter 9 of the Sexual Offences Handbook updated in accordance with this recommendation. For High Court cases, responsibility for notifying complainers of outcome of section 275 applications lies with case preparer while likely outcome of an application in High Court cases will be addressed with complainer by Crown Counsel. In Local Court cases, informing the complainer of likely and actual outcome is responsibility of procurator fiscal depute conducting section 275 hearing.
Compliance monitored in High Court cases in fortnightly meetings between solemn legal manager and case preparer (see Recommendation 8). A dedicated VIA officer for each team works with case preparer to ensure communication with complainer about section 275 applications takes place. Compliance monitored in Local Court cases by the Local Court Sexual Offences Board which will instruct periodic dip sampling of cases.
Inspection of the management by COPFS of criminal allegations against the police (2021)
Recommendation 1: COPFS should review its policy and practice in relation to the involvement of complainers in the process for managing criminal allegations against the police.
Status: In progress
Rationale: COPFS supplied evidence of new strategy for communicating with complainers being developed (see Recommendation 2). While relevant and helpful, this strategy and work in support of it has focused on communication with complainers, rather than involvement of complainers. No evidence supplied as yet of, for example, monitoring of involvement of complainers, complainer response rates to correspondence and ensuing improvement activity to increase response/engagement rate.
Recommendation 2: COPFS should review its approach to communicating with complainers in cases involving criminal allegations against the police. It should develop a strategy for ensuring that communication is timely, sufficiently frequent, good quality and tailored to the individual needs of the complainer.
Status: Achieved
Rationale: Strategy for communicating with complainers developed – new template letters produced and schedule for sending letters at keys stages created. Includes additional stages at which complainers did not previously receive update.
While IPS considers the recommendation to be achieved, the emphasis remains on written communication with complainers and an apparent onus on complainers to request an alternative form of communication if required it. Remains scope for more proactive identification of complainer needs and tailoring of communication to suit.
Recommendation 3: COPFS should develop guidance for the police on the investigation and reporting of criminal allegations against the police, as well as guidance for its own staff on the handling of such cases.
Status: Substantial progress
Rationale: Tripartite agreement between COPFS, Police Scotland and Police Investigations and Review Commissioner (PIRC) now in place covering allegations of breaches of Articles 3 and 5 of European Convention on Human Rights. Agreement provides guidance on investigation and reporting of allegations. However, as an agreement between these three agencies, does not cover all police services that fall within CAAP-D’s remit nor does it cover off duty offending.
New guidance for COPFS staff on managing on duty allegations added to COPFS’s Book of Regulations. Separate guidance on managing off duty offending published in 2024 for staff working in National Initial Case Processing (NICP) Unit.
Recommendation 4: COPFS should make more information publicly available about its role in investigating and prosecuting criminal allegations against the police. COPFS should also publish data regarding its handling of such allegations, and work towards gathering and publishing data that is disaggregated by race and other characteristics.
Status: Partially achieved
Rationale: COPFS published information about its role in investigating criminal allegations against the police on its website – this part of the recommendation has been achieved.
The remainder of the recommendation has not yet been achieved. No more data published now than at time of inspection (for example, number of allegations investigated, outcome of investigation). With regard to data disaggregated by race or other characteristics, COPFS discussed with justice partners and advised IPS of challenges in taking forward. CAAP-D advises it has begun to gather data gender and age, but data on race and other characteristics is not yet available.
Recommendation 5: COPFS should ensure that it receives early notification of the existence of criminal allegations against the police. It should require reporting agencies to report criminal allegations within a specified timescale that is commensurate with the nature of the allegation and it should monitor adherence to those timescales.
Status: Achieved
Rationale: New tripartite agreement between COPFS, Police Scotland and PIRC sets out timescales and instructions for notifying CAAP-D of allegations. CAAP-D introduced monitoring process to ensure compliance. Timescale for notification for Police Scotland is as soon as reasonably practicable or within two working days from inference of criminality arising. Timescale for PIRC is as soon as reasonably practicable.
Although this recommendation is considered largely achieved, the tripartite agreement is only with PIRC and Police Scotland. It does not include other police services which should also be clear about their target timescales for notifying CAAP-D of allegations.
Recommendation 6: COPFS should consider setting target timescales for reporting agencies to submit investigation reports regarding criminal allegations against the police. It should work with those agencies to consider how best to monitor compliance with the targets.
Status: Achieved
Rationale: New tripartite agreement between COPFS, Police Scotland and PIRC sets out target timescales for submitting investigation reports to CAAP-D. CAAP-D introduced monitoring process to ensure compliance. Timescale for reporting for Police Scotland is within six weeks of receiving allegation, or within three months for complex cases. Timescale for PIRC is within 154 days of receiving allegation.
Although this recommendation is considered largely achieved, the tripartite agreement is only with PIRC and Police Scotland. It does not include other police services which should also be clear about their target timescales for reporting.
Recommendation 7: COPFS should work with reporting agencies to review what information about subject officers should be included in reports submitted to CAAP-D.
Status: Achieved
Rationale: COPFS worked with reporting agencies to review information about subject officers included in reports. Following consultation with the Scottish Police Federation, CAAP-D decided not to request that information relating to subject officers’ antecedents be included in investigation reports. IPS considers there remains a risk that important antecedent information may only come to light after a Law Officer has instructed a prosecution.
Recommendation 8: Pending the introduction of an electronic reporting system for criminal allegations against the police, COPFS should ensure that it records the receipt of such reports as soon as possible after they have been submitted (such as by the next working day).
Status: Achieved
Rationale: CAAP-D established a dedicated email address for the reporting of criminal allegations against the police. This is now monitored daily to ensure reports are actioned promptly.
Recommendation 9: COPFS should review its processes and its training for CAAP-D staff to ensure that it meets its disclosure obligations in related cases.
Status: Achieved
Rationale: Guidance on disclosure in CAAP-D cases now updated and added to COPFS intranet. All CAAP-D staff have received relevant training. The ownership of cases and their effective transfer from CAAP-D to Local Court for prosecution remains an area that should be monitored.
Recommendation 10: COPFS should review its use of experts in cases involving criminal allegations against the police to ensure they are sufficiently independent when this is appropriate in the circumstances of the case. COPFS should also work with the police to improve the quality of expert reports and ensure that the reports include a declaration regarding any potential conflict of interest.
Status: Achieved
Rationale: COPFS reviewed its approach and developed a policy on the use of expert witnesses, taking into account the need for independence when appropriate. CAAP-D provided feedback to police about the quality of expert witness reports. Reports from police expert witnesses now include declaration regarding any conflict of interest.
Recommendation 11: COPFS should review its process for transferring criminal allegations against the police to local court for prosecution.
Status: Achieved
Rationale: COPFS revised the case transfer process. Process supported by guidance for staff and new forms. Process monitored by procurator fiscal depute who makes further process improvements as needed.
Recommendation 12: COPFS should consider appointing 'CAAP champions' in each Sheriffdom who will have responsibility for and oversight of the prosecution of all criminal allegations against the police.
Status: Achieved
Rationale: COPFS considered the need for ‘CAAP’ champions in each Sheriffdom but concluded this was not necessary.
Recommendation 13: COPFS should review its induction processes and operational guidance for CAAP-D staff.
Status: Achieved
Rationale: CAAP-D has collated all training materials in one place and this now used as induction tool for new staff and general resource for other staff. A CAAP-D training co-ordinator role has been established to monitor training materials and organise training, including inputs from stakeholders.
Recommendation 14: COPFS should work with its partners to introduce an electronic reporting system for criminal allegations against the police.
Status: Not achieved
Rationale: COPFS advises this recommendation is not achievable in the short to medium term. An electronic reporting system for criminal allegations against the police is not being taken forward given other priorities in COPFS’s digital strategy.
Recommendation 15: COPFS should provide written guidance to its staff and to reporting agencies covering the definition of on and off duty criminal allegations against the police. COPFS should also work with reporting agencies to ensure they submit on and off duty cases via the correct route.
Status: Achieved
Rationale: Definition of on and off duty criminal allegations against the police agreed in 2022 and shared with reporting agencies. Existing cases reviewed to ensure all cases correctly categorised. Definition included in guidance for local court staff published on COPFS intranet in 2024.
Guidance published only recently and work to ensure on and off duty cases follow the correct process requires to be sustained.
Recommendation 16: COPFS should ensure that there is strategic oversight of how on and off duty criminal allegations against the police are managed, and greater dialogue between those responsible for handling each type of allegation.
Status: Achieved
Rationale: In March 2024, liaison in form of quarterly meetings began between Head of CAAP-D and senior member of staff within NICP to oversee interaction between on and off duty cases. Given only recent commencement of oversight, requires to be sustained to give full effect to recommendation.
Recommendation 17: COPFS should provide guidance to the police on ensuring that SPRs are completed with the correct occupation information.
Status: In progress
Rationale: In August 2024, instruction sent to Police Scotland regarding completion of SPRs with occupation information. Requires monitoring to ensure instruction carried out, and particularly that occupation information is completed consistently, to allow easy identification of cases involving criminal allegations against police.
Recommendation 18: COPFS should clarify the purpose of its approach to off duty criminal complaints against the police and design a process for handling such cases that supports that purpose. All relevant staff should be made aware of the process and it should be followed in all off duty cases.
Status: Achieved
Rationale: In May 2024, guidance on off duty criminal complaints against the police added to COPFS intranet. Given recent nature of guidance, requires to be monitored to ensure routine compliance.