Annual Report 2023-24

20. In 2023-24, we carried out an inspection of The prosecution of domestic abuse cases at sheriff summary level. This was a substantial piece of work, taking almost the entire year to scope, gather and analyse evidence, and write up our findings. During the year, we also monitored progress made by COPFS in implementing recommendations arising from two previous inspections.

The prosecution of domestic abuse cases at sheriff summary level

21. Domestic abuse represents a substantial proportion of the cases managed by COPFS. In 2022-23, 11% of all charges reported by the police to COPFS related to domestic abuse.^[9] The vast majority (94%) of those charges were prosecuted.^[10]

22. Our inspection assessed how well COPFS prepares, manages and prosecutes domestic abuse cases at sheriff summary level, as well as how efficiently such cases are progressed. We also examined how well COPFS communicates with and supports victims and child witnesses in domestic abuse cases, keeping them up to date with developments and taking steps to ensure they are supported. By focusing on cases heard at sheriff summary level, we sought to assess the service provided by COPFS in the majority of domestic abuse cases.^[11]

23. To support our inspection, we gathered evidence from a range of sources. We heard directly from 23 people who had experience of domestic abuse and the justice process, as well as over 50 advocacy workers who provide support to victims of domestic abuse. We also:

• reviewed relevant documentation and data
• examined a sample of 60 cases involving domestic abuse charges
• observed court proceedings and training available to COPFS staff
• interviewed over 60 COPFS staff involved in managing and prosecuting domestic abuse cases
• interviewed a range of stakeholders such as organisations offering support to those who experience domestic abuse, the police, sheriffs, clerks and defence agents.

24. We found that tackling violence against women and girls is a strategic priority for COPFS. Those working at COPFS were well aware of the need to respond robustly to reports of domestic abuse. We met a range of staff who were committed to delivering an effective service. We found some cases that were well-prepared and in which victims were kept informed of developments, supported to give evidence and protected through bail conditions and non-harassment orders. We also found that domestic abuse cases were being prioritised for early trial diets.

25. However, we also examined too many cases which could have been prepared more efficiently and effectively, and in which victims’ individual needs were not addressed. Despite COPFS aspiring to deliver a person-centred and trauma-informed service, we considered that much work requires to be done before this aspiration is delivered routinely. We made 27 recommendations for improvement.

26. Our inspection found a range of ways in which the management and prosecution of domestic abuse cases could be improved. Two key themes emerged – the need to prepare cases more effectively, and the need to improve communication with and support for victims.

27. In too many cases we reviewed, there was a failure to address issues at the earliest opportunity during case preparation. The model for preparing domestic abuse cases at summary level, whereby cases pass from prosecutor to prosecutor at different stages, contributes to a lack of case ownership. This, coupled with a lack of preparation time and the relative inexperience of some summary prosecutors, meant cases were not prepared as well as they should be. This led to delays in some cases and, in others, it led to cases being discontinued at a late stage. It also risked victims’ withdrawal from the justice process.

28. There was also a failure to engage effectively with victims during case preparation, particularly those who were not engaged in, or were at risk of disengaging from, the justice process. Insufficient steps were being taken to establish the reasons for victims’ lack of engagement, and to provide reassurance and appropriate support. Recent initiatives in some areas to enhance engagement with victims during case preparation were welcome, but required to be delivered more effectively and rolled out nationally.

29. Communication with and support for victims was also inadequate. In the cases we reviewed, we assessed communication between COPFS and 61 victims. We found the overall quality of communication to be unsatisfactory for 80% of those victims. We noted delays and basic errors in the service provided by COPFS’s Victim Information and Advice service (VIA). While VIA was staffed by many who were committed to delivering a better service to victims, they said they were hampered by, amongst other things, backlogs of work; a lack of resources, training and support; and poor systems. We questioned whether VIA was fit for purpose in summary cases and whether it was capable of delivering the person-centred and trauma-informed service to which COPFS aspires.

30. During our inspection, we compared the prosecution of summary level domestic abuse offending under COPFS’s standard summary prosecution procedure, in the Glasgow Domestic Abuse Court, and in Dundee under the summary case management pilot.^[12] We found that in both Glasgow and Dundee, there were examples of better practice compared to the service being delivered in the rest of Scotland under the standard summary prosecution procedure. The work of COPFS and its partners, including the police and courts, contributed to this better practice.

31. In Glasgow, the quality of marking decisions was substantially better and this appeared to be linked to a better standard of Standard Prosecution Reports (SPRs) submitted by the police to COPFS. A dedicated team of prosecutors in the Glasgow Domestic Abuse Court afforded the opportunity to develop expertise in managing domestic abuse cases. Cases calling in the Glasgow Domestic Abuse Court also progressed more efficiently – the time between the first calling of the case and the first trial diet was one of the lowest in Scotland, despite it having the highest volume of cases.

32. In Dundee, the quality of the SPRs submitted by the police was improving under the summary case management pilot. The submission of key evidence alongside the SPR was enhancing and expediting prosecutorial decision making, reducing the need to instruct further enquiries and informing more comprehensive marking instructions, all of which contributed to more effective case management from the outset. The submission of key evidence alongside the SPR was also facilitating early disclosure to the defence, which can lead to pleas being tendered at an earlier stage.

33. Despite these examples of better practice in Glasgow and Dundee, those areas also experienced many of the challenges we noted elsewhere, such as inadequate communication with victims. Our findings suggested there was no one approach that was consistently better than others. Rather, each approach had features which contributed to the more effective management of summary domestic abuse cases. In our report, we highlighted features that COPFS should consider implementing across its service.

34. Our report was published in April 2024. It received widespread media coverage and was welcomed by key organisations providing support to victims of domestic abuse. The Lord Advocate accepted the recommendations and committed COPFS to doing more to deliver a trauma-informed prosecution service. COPFS has since committed to working with its justice partners to implement all of our recommendations by 31 March 2025.^[13]

35. IPS will monitor the progress made by COPFS in implementing the 27 recommendations. We will also consider whether a follow-up inspection is merited, given the significant public interest in ensuring that COPFS responds effectively to reports of domestic abuse.

Following up on previous recommendations

36. In 2023-24, we monitored the progress made by COPFS in implementing recommendations arising from two previous inspections.

COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995

37. Published in October 2022, this inspection assessed COPFS practice in relation to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.^[14] These provisions regulate the use of evidence relating to the sexual history or character of complainers in sexual offence trials. Section 274 contains a general rule that evidence or questioning falling within certain categories is inadmissible in sexual offence cases. Section 275 allows the court, on application made to it, to admit evidence or questioning falling within the general prohibition at section 274 so long as certain tests are met.

38. We found that COPFS had responded swiftly to developments in case law, issuing new instructions to staff and creating a training course dedicated to sexual history and character evidence. This led to a significant change in practice regarding how section 275 applications are managed. Complainers are now regularly told about the applications, asked their view on the contents, and those views are presented by the Crown to the court. There was, however, also scope for some improvement.

39. We made nine recommendations, eight of which were directed at COPFS and one of which was directed at the Scottish Government. The recommendations were designed to support further improvements in the way in which COPFS makes and responds to section 275 applications, including how it engages with complainers.

40. Improving how it prosecutes cases of sexual offending and how it supports and communicates with victims are key priorities for COPFS.^[15] This prioritisation is apparent from the way COPFS has embraced the recommendations made in our report. We welcome the attention that the service has given to implementing the recommendations, and the pace at which it has done so.

41. Following the report’s publication, the Procurator Fiscal for High Court Sexual Offences formed a group comprising a range of leaders from relevant teams across COPFS, including those working on High Court and Local Court cases. The group first met in December 2022 and then regularly thereafter to oversee the extensive work carried out to implement our recommendations.

42. Of the eight recommendations directed at COPFS, we consider that seven have been achieved and that substantial progress has been made in relation to one. In some areas, COPFS has gone beyond our recommendation and taken further action to address other issues raised in our report.

43. Positively, there is now greater oversight of how section 275 applications are managed with a view to ensuring that policy is followed in practice. This includes, for example, fortnightly meetings between solemn legal managers and case preparers to discuss case progression and communication with complainers. Section 275 applications are also a standing agenda item at the Sexual Offences Strategic Group, chaired by a Deputy Crown Agent. This group considers both High Court and Local Court cases, promoting consistency in approach and allowing for further improvements to be identified.

44. In December 2021, the Lord Advocate commissioned a review of how prosecutors deal with reports of sexual offences. This work, carried out by Susanne Tanner KC, is expected to be completed shortly. We anticipate that the review will identify other ways in which the handling of sexual offence cases can be improved. This may further impact COPFS’s approach to managing section 275 applications and how it supports and communicates with complainers.

45. Our recommendation directed at the Scottish Government has also been achieved. For further details of how our nine recommendations have been progressed, see Appendix 2.

The management of criminal allegations against the police

46. In September 2021, IPS published a report on how COPFS manages criminal allegations against the police. ^[16] Overall, we concluded that the quality of decision making by COPFS in such cases was good, and that the public should be reassured by the robust scrutiny which is applied to on duty criminal allegations against the police. The creation of the Criminal Allegations Against the Police Division (CAAP-D), a national unit to manage all on duty criminal allegations against the police, had resulted in consistent decision making by specialist prosecutors and had facilitated effective relationships with stakeholders. Nonetheless, we also found scope for improvement in how criminal allegations against the police were managed. We made 18 recommendations.

47. We have assessed information supplied by COPFS in respect of its work to implement our recommendations. Of the 18 recommendations, we consider that:

• 13 have been achieved
• one has been partially achieved
• progress has been made in implementing three recommendations. In respect of one of these three, the progress has been substantial
• one recommendation has not yet been achieved.

48. Further detail on the action taken to implement the recommendations is available in Appendix 2.

49. The investigation of criminal allegations against the police has received much attention in recent years and the issue of public trust in policing has rarely been more intense. We therefore welcome the good progress COPFS has made in addressing many of our recommendations as well other findings in our report. However, some recommendations have only been implemented very recently. While we have assessed those as achieved, they will require to be monitored by COPFS to ensure new approaches are sustained and delivered routinely.

50. COPFS has taken welcome steps to improve its communication with those who make criminal allegations against the police. In such cases, the level of communication goes beyond that in other cases reported to COPFS. This should assist in building complainers’ confidence that their allegations are being investigated robustly. However, there remains a tendency to rely on written communication with complainers and there is scope for CAAP-D to be more proactive in its tailoring of communication to meet complainers’ needs. At present, the onus is on the complainer to request alternative forms of communication if they are required.

51. In evidencing its implementation of several recommendations, COPFS has pointed to the development of a tripartite agreement between COPFS, Police Scotland and the Police Investigations and Review Commissioner (PIRC). The agreement focuses on the investigation and audit of allegations of breaches of Articles 3 and 5 of the European Convention on Human Rights (that is, allegations of assault, use of excessive force and unlawful arrest).

52. While the agreement is a welcome and useful development, COPFS’s focus on this agreement as the means by which some IPS recommendations are taken forward has raised some issues that merit further consideration by CAAP-D. For example, the agreement is the means by which COPFS has provided guidance on the reporting of allegations to CAAP-D to Police Scotland and PIRC. The agreement does not, however, provide guidance to other reporting agencies, nor does it cover the full range of criminal allegations against the police that may be reported. While COPFS has also developed a separate, more general guidance document, this is only available to its own staff. While the majority of criminal allegations against the police will arise in respect of those serving with Police Scotland simply because it is the largest police service, CAAP-D requires to also engage with other services operating in Scotland (such as British Transport Police). As we noted in our report, there is a need to ensure those other police services remain fully sighted and consulted on policy and practice developments.

Inspection programme 2023-24

53. Our inspection programme for 2024-25 includes:

• An assessment of how well COPFS responds to enquiries received by National Enquiry Point, its customer contact centre. Many members of the public or organisations wishing to contact COPFS will phone or email Enquiry Point in the first instance. We will assess how efficiently and effectively such contact is addressed, including where enquiries are resolved by National Enquiry Point at the first point of contact and where they are transferred to other teams within COPFS for action. IPS commenced scoping and planning this work in the spring of 2024 and a Terms of Reference was published in July 2024.^[17]
• A review of how effectively and efficiently witnesses are cited to attend court to give evidence. This review, to be conducted jointly with HM Inspectorate of Constabulary in Scotland, will consider whether there is scope to modernise the citation process. It will also consider the experience of witnesses who are cited and how this can be improved.

54. We keep our future inspection programme under continuous review and will consult with the Law Officers, COPFS and other stakeholders on other issues that would benefit from independent scrutiny. We anticipate that in the near future, our programme will include a review of COPFS’s approach to learning and development for its staff.

55. Also in 2024-25, we will continue to review progress made by COPFS in implementing recommendations from our joint review of diversion from prosecution, published in 2023.^[18]