The prosecution of domestic abuse cases at sheriff summary level

Preparing and prosecuting cases

162. Case preparation begins when the marking depute marks the case for prosecution and provides instructions to those who will manage the case as it progresses. Generally, the same depute does not manage a summary case on its journey through the prosecution process. Instead, different deputes may deal with the case at different stages, including at the accused’s first appearance in court, at any other pleading diets, at pre-intermediate diet meetings, at intermediate diets and at trial diets.

163. If the accused pleads not guilty, a number of standard case preparation steps are triggered. This includes contacting the reporting officer to request that witness statements be submitted electronically and that productions and labels be lodged. We noted that some instructions to the police simply state, ‘send in all productions and labels’. This instruction was given even in cases where there were no productions or labels, or where the police had already submitted the evidence. We saw cases where this caused confusion and delay. To avoid this, instructions to reporting officers regarding the submission of evidence should be tailored to the individual case.

Advance Notice Trials and Advance Preparation Trials

164. Marking deputes are able to flag any cases which they consider require additional attention. This is helpful, and allows non-routine cases to receive early or additional preparation by court deputes. Cases can be flagged as either an Advance Notice Trial (ANT) or an Advance Preparation Trial (APT). Guidance on what is an ANT or an APT is inconsistent however, and practice varies between deputes.

165. Case marking instructions published by COPFS state that cases with complex or unusual legal or evidential issues, or in which there are particular sensitivities, should be flagged as an ANT. No mention is made of APTs in the instructions.

166. A separate summary legal guidance manual mentions both ANTs and APTs and notes the distinction between them. The manual states that cases involving a child witness or which are high profile, but which are also routine and do not require significant preparation, should be flagged as ANTs. In contrast, cases which require significant advance preparation should be flagged as APTs. Such cases may require a nominated depute to prepare and manage the case to completion. In the domestic abuse context, APTs might include a complex stalking case.

167. We considered it likely that the manual sets out the most up to date approach, but that the case marking instructions had not been amended accordingly and that efforts to raise awareness of the new approach had been inadequate. During our interviews, we heard varying explanations of when a case should be flagged as an ANT or an APT. Some deputes had never heard of the latter. Some deputes said they automatically flagged all domestic abuse cases as requiring some form of advance notice or preparation, regardless of complexity.

168. In the cases we reviewed, we noted that marking deputes took different approaches to whether they marked cases as ANTs or APTs. Practice generally did not align with the guidance set out in the manual. Of the 60 cases we reviewed, 49 (82%) were marked for some form of advanced notice or preparation. We considered that only seven merited being flagged in this way. We also considered that one case which should have been flagged for advance preparation was not. If such a large proportion of cases had in fact required some form of advance preparation, there is a risk the current model and resourcing for managing summary cases would not be sustainable.

169. The failure to appropriately identify ANTs or APTs at the marking stage means that once cases pass to the local court team, they require to be reassessed. In one area, a Principal Depute reviewed all flagged cases before deciding how they should be managed. In another area, it was left to the depute dealing with the intermediate diet to decide whether cases should be ANTs or APTs, by which point vital preparation time has already been lost.

170. While there will always be a role for Principal Deputes to make decisions about the handling of cases in light of their greater knowledge of the experience levels within their teams, we consider that identifying whether a case requires advance notice or preparation should happen at the earliest opportunity (that is, by the marking depute). Routinely revisiting the marking depute’s decision involves unnecessary duplication. What is key to this ‘getting it right first time’ approach however, is all deputes having a shared understanding of ANTs and APTs and the thresholds that cases must reach before being so designated, so that local deputes can have confidence in the marking depute’s assessment.

171. We were also concerned that even where a case was identified as requiring advanced preparation, this was not always acted upon. One case we reviewed involved a charge under section 1 of the 2018 Act. The charge spanned three years, and the SPR noted the victim was not fully engaged and had extensive health issues. The marking depute noted that advance preparation was needed, but this was not actioned. At a later date, a court depute also noted that the case required to be allocated to a depute for additional attention, but this was not done. It was only when a second court depute made the same observation that the case was allocated to a named depute. There were significant delays in this case, including five intermediate diets (the case was still ongoing at the end of our review period and further diets had been scheduled). These delays could have been avoided had a depute been given ownership of the case at an earlier stage.

172. Even where court deputes were allocated ANTs and APTs, we heard they lacked time to prepare cases adequately. Some deputes said their workload was such that they prepared the next day’s cases in the evening after spending the day in court, or at weekends.^[47]

173. The need to allocate a depute to a case can also emerge later in the process, in light of new information or the case’s lack of progression. For example, we heard from an advocacy worker about a case that experienced repeated adjournments. These were having a negative impact on the victim. A depute dealing with the case at one of the later adjournments acknowledged the impact on the victim and committed to retaining the case himself, ensuring that the outstanding issues were resolved prior to its next calling. The victim and advocacy worker greatly appreciated the attention the depute gave to the case.

Recommendation 5

COPFS should ensure there is a shared, service-wide understanding of Advance Notice Trials and Advance Preparation Trials. There should be a clear, efficient process for identifying cases that require advance notice or preparation and for ensuring that they receive the additional attention they require.

Lack of ownership

174. Unless a case requires advance preparation, it is generally not allocated to a specific court depute. Instead, as noted above, different deputes may deal with a case at different stages. While no one ‘owns’ a case throughout its journey, the rationale behind this model of case preparation is that it allows summary cases to be managed more efficiently.^[48] In some cases, this model works well. However, in too many cases we reviewed, a lack of ownership and a failure to address issues promptly during preparation led to delayed and/or poor outcomes.

175. We consider that this model of case preparation risks unintended consequences that require to be managed. Cases that illustrate these consequences are highlighted throughout this report.

176. One consequence is that when issues emerge in a case, they may not be dealt with immediately. Emerging issues could include new information being submitted by the police, or a request from a victim for information or an enquiry about an excusal. These issues are often only picked up by the depute who is preparing the case for its next calling, by which point valuable time to deal with those issues may have been lost. We also saw examples of deputes not picking up on new information when they prepared cases, or noting the issue but failing to consider how it affected the case as a whole.

177. Administrative staff are often the first to be aware of new issues and will try to bring them to the attention of a depute. However, they told us that often there were no deputes available to deal with them. They said in the past, there was often a depute working in the office who would deal with queries as and when they arose. Now, deputes were often either in court or preparing cases at home, or simply lacked capacity to deal with queries. Because of this, administrative staff felt it was not unusual for issues to go unactioned until the case was prepared for its next calling.

178. It is not just new issues that risk being left unaddressed until the case’s next calling. We also saw examples of deputes failing to address during their case preparation issues which were known about since the outset. For example, in some cases, it was known from the police report that the victim was either not supportive or even resistant to a prosecution. Nonetheless, no proactive steps were being taken to address this, such as monitoring whether the victim’s position changed over time, or providing additional support or reassurance. The victim’s attitude towards the prosecution then became problematic at a later stage, including their non-attendance at trial diets. In reviewing our cases, it sometimes appeared as though the approach was one of hoping for the best, without sufficient steps being taken to achieve a positive outcome. In both Glasgow and Dundee, an ‘enhanced engagement’ model with victims had been introduced to help resolve these issues (see from paragraph 346).

179. Another consequence of the model used for preparing summary cases is that when a depute preparing the case instructs a task, it is often not followed up promptly. Thus, tasks that remain unactioned, or not actioned appropriately, are often not noticed or dealt with until the next calling of the case. For example, in one case we reviewed, the same request was made to the reporting officer several times over a period of a few months. No action was taken to escalate to the police the lack of an appropriate response. The failure to fulfil the request eventually led to an adjournment and then a plea being agreed to amended charges as the evidence requested was still unavailable.

180. Deputes’ focus on preparing the case for its next calling can result in a failure to consider the case as a whole, including to continuously re-evaluate whether the prosecution should proceed. Cases passing from one depute to the next can result not only in a lack of ownership but also a lack of accountability for effective case preparation and management. It is often the trial depute who is left dealing with the consequences of this, including by having to seek an adjournment or decide to discontinue at a late stage.

181.COPFS’s model for preparing and managing domestic abuse cases at summary level, whereby cases pass from depute to depute at different stages, was not working well in too many of the cases we reviewed. It is possible that some issues will in part be addressed by the further rollout and effective implementation of the summary case management pilot. However, there is still a need to ensure there is effective oversight and grip of cases by COPFS throughout the preparation process. If COPFS is to retain its current model of preparing domestic abuse cases at summary level, it must do more to mitigate and manage the associated risks. It should ensure that:

• new information is brought to the attention of deputes and acted on promptly
• deputes are available to deal with urgent and unexpected queries as they arise
• tasking is followed up timeously
• action is taken to address any risks to the efficient progression of the case
• deputes have sufficient time to address issues during their case preparation.

182. If the risks associated with the current model are not more effectively managed, then a more fundamental review of the model of domestic abuse summary case preparation by COPFS is required.

Recommendation 6

COPFS should ensure that domestic abuse cases at summary level are prepared effectively. This will require that:

(a) new information is brought to the attention of deputes and acted on promptly

(b) deputes are available to deal with urgent and unexpected queries as they arise

(c) the tasking of reporting officers is followed up timeously

(d) action is taken to address any risks to the efficient progression of the case

(e) deputes have sufficient time to address issues during their case preparation.

First appearance and pleading diets

183. At their first appearance before the court, the accused is asked how they plead to the charges on the complaint. One aim of a first appearance is to resolve cases in accordance with the ‘acceptable plea’ that has been set out by the marking depute. This brings cases to a swift conclusion, meaning that neither victims nor any witnesses are required to give evidence at court and freeing up court time to deal with cases that cannot be resolved. Of the 60 cases we reviewed, a third resolved at the first appearance: in 11 cases, the accused pled guilty as libelled; and in nine cases, the accused pled guilty to an amended charge.

184. In the Glasgow cases, six accused pled guilty as libelled and only one pled guilty to an amended charge. The numbers were exactly reversed in the Rest of Scotland cases. Our case samples were not statistically significant, and we were unable to establish whether this finding was random or whether it reflected a broader approach to pleas in Glasgow compared to elsewhere. It may also have been linked to the better quality of police reporting we noted in Glasgow.

185. Of the 40 cases that did not resolve at first appearance:

• 21 accused pled not guilty
• 17 cases were continued without plea
• two accused failed to appear in court and a warrant was taken for their arrest.

186. Of the cases that were continued without plea (CWP), 13 of these were from Dundee. Most cases were continued for one or more of the following reasons:

• for COPFS to disclose key evidence to the defence
• for the defence to take instructions from the accused
• for there to be engagement between COPFS and the defence.

187. Cases being continued without plea by the court is an intended feature of the summary case management pilot in Dundee. The expectation is that early disclosure of key evidence leads to the earlier resolution of cases, and that this is supported by early proactive case management by the sheriff. Where cases cannot be resolved at first appearance, the goal is to continue to seek to resolve the case at a case management hearing, rather than a trial date being assigned unnecessarily. The pilot’s interim evaluation found that 19.4% of Dundee cases resolved at a CWP diet, up from 13.6% pre-pilot.^[49]

188. While a reduction in the number of trials being assigned unnecessarily is to be welcomed, there is a need to monitor the frequency with which individual cases are CWP by the court and the overall length of time for which they are CWP. There will be a need to guard against repeated CWPs inadvertently prolonging the journey time of cases.

Disclosure

189. COPFS has a duty to disclose all material information to the defence, including that which strengthens or weakens the case against the accused.^[50] In standard summary procedure, once COPFS has requested full statements, the police require to submit them within seven days if the accused is in custody or within 28 days if the accused is on bail. COPFS staff then review the statements and disclose all material evidence no later than seven days (custody) or 28 days (bail) prior to the intermediate diet. The defence require to provide COPFS with a letter of engagement before evidence can be disclosed.

190. Of the cases we reviewed, those from Glasgow and the Rest of Scotland should have followed the rules relating to standard summary procedure. In these 40 cases, only 26 proceeded to a pre-intermediate diet meeting (PIDM) and/or an intermediate diet where a request was made to the police for statements and other evidence which required disclosure. Disclosure was completed within target in only six of the 26 cases (23%).

191. In 18 cases where disclosure was not achieved within target, this was for reasons outwith COPFS control. The most common reasons were the police had not yet submitted evidence to COPFS, or that the defence had not yet submitted a letter of engagement. In two cases, COPFS appeared to be at fault for not disclosing the material within target.

192. In some cases we reviewed, we saw good examples of COPFS disclosing evidence on the same day it was received from the police or on the same day a letter of engagement was received. However, we also noted that where evidence and a letter of engagement had been submitted, COPFS did not always respond promptly. In one case, a letter of engagement was not received until 15 days before the intermediate diet, but disclosure was not made until after the intermediate diet. Staff told us that delays in disclosure were the result of administrative backlogs and a lack of resources. They said cases were often not looked at until immediately before or after the next court hearing.

193. Delayed disclosure by COPFS can result in cases being adjourned, which wastes valuable court time and prolongs the justice process for both the victim and the accused. COPFS should ensure that once evidence is submitted by the police or a letter of engagement is received from the defence, it is able to carry out disclosure promptly.

194.COPFS has shown strong performance in relation to disclosure in the summary case management pilot, particularly in Dundee. A key feature of the pilot is the early disclosure of key evidence to the defence. This is to encourage guilty pleas to be made at an earlier stage, and to reduce the number of cases set down for trial unnecessarily. In its interim evaluation of the pilot, SCTS note that in Dundee, 94% of key evidence was disclosed to the defence within three days of receipt of a letter of engagement. This exceeds the target of 90%.^[51]

Agreeing evidence

195. In the cases we reviewed, we saw efforts by COPFS to agree evidence at the earliest opportunity which we welcomed. Section 257(1) of the Criminal Procedure (Scotland) Act 1995 places a duty on the prosecutor and the accused to identify facts which they seek to prove and which are likely to be undisputed by the other party. Agreeing evidence reduces the evidence that requires to be led at trial, saving court time and potentially reducing the number of witnesses that need to be cited.

196. In domestic abuse cases, where the victim and accused are known to one another, it is usual to agree the identification evidence of the victim at the first calling of the case (that is, that the partner or ex-partner of the victim is the accused). In the majority of the cases we reviewed, the marking depute had instructed the court depute to seek to agree identification evidence at the outset. This avoided the victim having to identify the accused at an identity parade, which was beneficial for the victim and also saved police and court time.

Pre-intermediate diet meetings

197. Pre-intermediate diet meetings (PIDMs) were introduced in 2020.^[52] Their purpose is to ensure that meaningful communication takes place between the Crown and the defence with a view to resolving cases early. Where cases cannot be resolved and are ready to go to trial, a trial diet will be assigned and parties only need attend an intermediate diet where necessary. It was also hoped that preparing for the PIDM would prevent court time being lost through last minute adjournments.

198. There was a high level of scepticism among deputes and defence agents about the value of PIDMs and whether they were achieving their purpose. Deputes felt that a lack of engagement from many defence agents limited the value of PIDMs. They also said they lacked preparation time, meaning discussions at PIDMs were not as productive as they should have been (this lack of preparation was also evident in the cases we reviewed). Defence agents told us the value of PIDMs varied depending on the depute, their level of preparation and whether they felt authorised to make decisions. Deputes and defence agents told us that sheriffs varied in their approaches, with some content to move straight from PIDM to trial, while others insisted on intermediate diets, leaving them wondering why a PIDM had been necessary.

199. Deputes also told us that guilty pleas still tended to occur at either first appearance or at the trial diet, rather than at the PIDM. Of the cases we reviewed in Glasgow and the Rest of Scotland, 24 had a PIDM.^[53] In only one case, from the Rest of Scotland, was a plea agreed at the PIDM and tendered at the subsequent intermediate diet.

200. We also found that, in almost all cases, key issues were not resolved at PIDMs and that intermediate diets were continued for reasons which should have been addressed at or even before the PIDM. Examples of issues not resolved at PIDMs that necessitated intermediate diets included:

• COPFS was awaiting evidence from the police or the outcome of enquiries
• it was not known whether witnesses had been successfully cited
• disclosure by COPFS was incomplete
• there was no letter of engagement from the defence or the defence had only recently been instructed
• the defence had ongoing enquiries
• evidence was still to be agreed by the parties.

201. From the evidence we gathered, it was clear that there is still some work to be done before PIDMs will fulfil their purpose. This will require more timely completion of enquiries by the police, as well as a greater focus on effective preparation by COPFS and the defence.^[54]

202. In the cases we reviewed, we observed poor recording of discussions and outcomes of PIDMs in case files. Staff told us there was no clear guidance on whether and where to record information about PIDMs in case files, resulting in varying practice. In one case we reviewed, the depute preparing for the PIDM decided to take no further action. This decision was recorded in a document sent to the sheriff clerk, but the case file was not updated. This meant the victim was not informed of the outcome. It also led to another depute re-raising the case several months later, after they mistakenly thought the case had been missed. This was successfully challenged by the defence.

Recommendation 7

COPFS should ensure that an accurate record of discussions and decisions at pre-intermediate diet meetings is made in the electronic case file.

Intermediate diets

203. The intermediate diet is usually set between two and four weeks before the trial diet. Its purpose is for the court to establish the state of preparation of COPFS and the defence and whether the trial diet is likely to go ahead. The intermediate diet should be the end of the period of case preparation, rather than the beginning.

204. Within COPFS, preparation for intermediate diets is a role for both administrative and legal staff. We found good examples of administrative processes which make it clear whether key preparation steps have been completed, such as whether disclosure is complete and the number of witnesses successfully cited. However, in the cases we reviewed, we noted that some of the issues that had been unresolved at the PIDM remained unresolved at the intermediate diet. In fact, of the 24 cases from Glasgow and the Rest of Scotland in which PIDMs took place, one case was discontinued, a plea was agreed in another case, and in just two cases, the issues which were outstanding at the PIDM were resolved by the time of the intermediate diet. Consequently, 20 cases called for intermediate diets with issues still unresolved from the PIDM.

205. We also noted that various deputes were involved in preparing cases for PIDMs, carrying out PIDMs, preparing cases for intermediate diets, and carrying out intermediate diets. This contributed to the sense that there was a lack of ownership of cases and seeing any issues through to completion. We noted that some of the same issues that arose early in the case remained unresolved throughout the process, and that there was a lack of clarity about who was responsible for actioning and following up tasks. For example, in one case, three deputes were involved in case preparation at various points within a few days of one another, and each depute made a different request to the reporting officer.

206. We did also see good examples of deputes taking action which was followed up by other deputes at later stages in the case.

207. Failing to address issues before the intermediate diet can affect the overall journey time of cases and can take up additional court time. While some cases continue to the first trial diet in the hope that preparation will be complete by that date, other cases require an additional intermediate diet before the first trial diet. In some cases, the first trial diet is adjourned and further intermediate and trial diets are set. In the Glasgow and Rest of Scotland cases we reviewed, around half the cases had trial diets adjourned at intermediate diets. In one Glasgow case, the trial diet had been adjourned six times at numerous intermediate diets.

208. In the summary case management pilot in Dundee, case management hearings were generally replacing PIDMs and intermediate diets. The pilot’s interim evaluation notes that robust case management meant intermediate diets were often no longer required.^[55] One benefit of case management hearings compared to PIDMs was that, because the accused was generally in attendance, the defence could immediately take instructions, increasing the likelihood that issues could be resolved.

Citations

209. A key aspect of trial preparation is knowing whether or not the victim and any other witnesses have been successfully cited for the trial diet. We heard about inconsistent practice across sheriffdoms as to whether courts checked that witnesses had been successfully cited before proceeding to trial. Some did not on the basis that COPFS was not always able to provide up to date information on the execution of citations. This meant cases were continued to trial diets with no certainty as to whether witnesses were available or attending. We also heard from victims about cases which had called at a trial diet without them having received a citation. This sometimes resulted in the case being discontinued, on the mistaken assumption that the victim was not supportive of the prosecution. The citing of witnesses to give evidence at court is an area that the inspectorate will revisit in our future work programme.

Trial diets

210. Final preparation for the trial diet is carried out by the depute who will prosecute the case in court. We heard from deputes that they often lack sufficient time to prepare cases for trial to the standard they would like. Some were worried they were providing a poor service to victims. They said trial preparation was often done at home the evening before the trial after spending the day in court or at weekends. They also said that court loadings made preparation more difficult. While the number of cases set down for trial each day varied from court to court, deputes felt that the numbers were often too high. This meant they had to prepare multiple cases, knowing that only a few would go ahead. Some deputes said they were relieved when certain cases did not proceed to trial as they felt insufficiently prepared and hoped that the cases would get more attention at their next calling. A recurring theme in our discussions with victims and advocacy workers was that when they met trial deputes at court, they felt the deputes did not know the details of the case.

211. In courts across Scotland, more cases are scheduled to go to trial in a particular court each day than is possible to accommodate. This is because many cases will not go ahead. This may be for a range of reasons, including that the accused pleads guilty at the last moment or because witnesses or the accused do not turn up at court. Courts with a high number of trials scheduled result in at least some trials proceeding, meaning the court’s time is not wasted. However, where the prosecutor, defence and witnesses prepare and attend at court for trial but it does not go ahead, it is their time that is wasted. This is, unfortunately, a current feature of the justice system. More positively, we heard that court loadings at the Glasgow Domestic Abuse Court were deliberately lower than those in other mainstream courts in Glasgow.

212. In the cases we reviewed, 35 had trial diets fixed and 31 of those proceeded to a trial diet (this included 12 cases in Glasgow, 10 cases in the Rest of Scotland and nine in Dundee). The outcomes were:

• in 10 cases, the accused pled guilty at the trial diet
• nine cases were adjourned and were still ongoing at the conclusion of our review
• five cases were discontinued
• evidence was led at trial in three cases and the accused was found not guilty
• three cases were deserted simpliciter
• in one case, the accused failed to appear at the trial diet, a warrant was granted and he was arrested and appeared from custody when he pled guilty.

Adjournments

213. While nine cases were adjourned and still ongoing at the conclusion of our review, another 10 cases also experienced adjournments prior to their conclusion. Trial diets can be adjourned for a range of reasons, and some trials can be adjourned more than once. At the conclusion of our review, one case already had a third trial diet scheduled, while another already had its fourth trial diet scheduled. It is possible that there will be further adjournments in these cases, as well as in the other seven cases that were still ongoing at the conclusion of our review.

214. Delays or adjournments were caused by:

• the victim or other witnesses failing to attend court
• the accused failing to appear
• the defence experiencing funding issues
• late disclosure by COPFS
• COPFS awaiting evidence.

215. In some cases, a combination of the above factors caused a trial to be adjourned. Adjournments were requested by the Crown or the defence, and sometimes by both parties. In two cases, the trial was adjourned by the court itself.^[56]

216. While the Crown is not responsible for some adjournments, there is more that it could do to minimise its responsibility for others. This includes through better case preparation and addressing issues such as late disclosure. Given that the most common reason for adjournments in the cases we reviewed was the failure of the victim to appear, we consider that there is more the Crown could do while preparing cases to anticipate and manage this. This could include providing more support and reassurance to victims to increase their likelihood of attendance. Alternatively, where the victim is adamant they will not attend, deputes should be proactively reviewing whether the case can or should proceed without the victim’s evidence. We return to this issue from paragraph 346.

217. Although not the most common feature in the cases we reviewed, we heard during our interviews that adjournments are often caused by evidence not being ready for trial. We were told about delays in formatting evidence appropriately for court – this included, for example, the reformatting of CCTV or mobile phone footage. This is an issue which should be addressed through the rollout of DESC. Until then, it requires to be better managed during case preparation by both COPFS and the police.

218. We were also told that forensic or cybercrime reports, or transcripts of joint investigative interviews of children, have often not been received by COPFS within the shorter timescales set for summary domestic abuse cases. This suggests that, in cases where such evidence is needed and if the evidence itself cannot be expedited, then more realistic timescales for trial diets should be considered.

Recommendation 8

To avoid unnecessary adjournments, COPFS should ensure that, where it is clear during case marking or case preparation that the complexity of the case or the nature of the evidence required will mean early trial diets are not achievable, then more realistic trial diets should be sought.

Discontinuations

219. Throughout the life of a case, the decision to prosecute should be kept under continuous review. The marking depute’s initial decision may no longer be appropriate if new evidence emerges or circumstances change. As court deputes manage and prepare the case, they should also be reassessing whether there is a sufficiency of evidence and whether it is in the public interest to prosecute. Where that is no longer so, they may decide to discontinue proceedings.

220.COPFS has issued extensive guidance to staff setting out the policy and process for discontinuing cases. In domestic abuse cases, there is a presumption against discontinuation. Any decision to discontinue proceedings where a sufficiency of evidence still exists must be approved by a Principal Depute or more senior prosecutor who has also completed the domestic abuse accredited prosecutor training. Reasons for discontinuations must be recorded. Approval to discontinue proceedings is not needed where there is no longer available and admissible evidence to secure a conviction.

221. Of the 60 cases we reviewed, seven (12%) were discontinued. One was discontinued at a further pleading diet and one at a PIDM. Four were discontinued at the trial diet, while one was discontinued the day before the trial. In all five cases that were discontinued at trial or the day before trial, we were concerned that had the case been managed and prepared more effectively, the decisions to discontinue would either not have been necessary or could have been made at a far earlier stage. This included cases where there were missed evidential opportunities, and cases where the reluctance of victims or witnesses, evident at an early stage, was not addressed.

222. In one case, the victim was supportive of the prosecution. The main corroborating witnesses were members of the accused’s family who appeared reluctant witnesses from the outset. The accused was charged with assault, but the marking depute failed to include an additional charge of threatening and abusive behaviour. Once submitted, it was clear the witness statements made no reference to an assault. However, one witness statement supported the victim’s allegation of threatening and abusive behaviour. The depute at the intermediate diet failed to notice the witnesses did not corroborate the assault. At the trial diet, the victim and other witnesses attended, but the depute made a motion to desert the case pro loco et tempore, stating that there was now insufficient admissible evidence. The position had not changed since the statements had been submitted however, meaning this decision could have been taken earlier. Moreover, a trial could have proceeded in respect of a charge of threatening and abusive behaviour, had that been included on the complaint.

223. In another case involving an adult victim and a child witness, it was clear from the SPR that the domestic abuse incident had been captured on the victim’s call to the police. The call recording, which may have provided additional corroborative evidence, was never requested. The victim refused to provide a statement to the police and did not support the prosecution. The child witness had provided a statement but was anxious about attending court. No efforts were made to engage or support the victim or the child witness beyond routine written communication from VIA. The victim contacted COPFS in the lead up to the trial over the child’s concerns about court. There was no record of the victim receiving any response. The victim attended court although made clear they were still not supportive of the prosecution. The child witness did not attend. The trial depute decided to discontinue proceedings. In this case, opportunities to explore the child’s anxiety about attending court, including whether alternative special measures would have relieved their anxiety, were missed.^[57]

224. In addition to the seven discontinued cases in our sample, there was one case in which the trial depute chose not to seek a conviction after the trial had commenced. The accused was therefore found not guilty. In this case, the issue causing the trial depute to effectively discontinue the case was known about for some time. It had been flagged by the defence at the PIDM but not addressed. In this case, the victim had already given evidence at the trial before proceedings ended.

225. It is not unusual in domestic abuse cases for the victim to request that proceedings be discontinued. COPFS provides guidance to staff on how this should be managed. The guidance helpfully sets out a range of reasons why a victim may make such a request, and requires deputes to consider requests carefully. The police can be instructed to carry out further enquiries, including to verify that the victim has not been subject to manipulation, control, fear or intimidation by the accused. Deputes can also request further information from any organisations involved in supporting the victim.

226. We were concerned that this guidance was not always being followed in Glasgow. Rather than email requests from victims to discontinue proceedings being considered by deputes, a practice had developed where administrative staff were sending template responses saying that it was not possible for victims to withdraw and that proceedings would continue. This practice was not in line with guidance, which requires requests to be considered by deputes and a more tailored approach to be taken depending on the circumstances of the request and the case. This should be addressed.

227. One case that we reviewed was discontinued the day before trial. This was a result of a phone call by the trial depute to the victim. From the outset of the case, based on the information in the SPR, it was clear the victim did not support the prosecution. There was also information in the SPR about the personal circumstances of the accused that suggested prosecution may not have been in the public interest. The victim confirmed the details of these personal circumstances in the telephone call with the depute. The call revealed no new information, yet led to a decision to discontinue, two months after a decision to initiate proceedings. This case highlights an issue that was also raised with us by deputes during our interviews. While the initial decision by the marking depute to prosecute was not inconsistent with the policy, court deputes felt that initial decisions sometimes failed to take full account of the public interest and the value of a prosecution compared to other prosecutorial options. There is a need for communication between court and marking deputes about case outcomes. Regular reviews of discontinuations, for example, would facilitate feedback to marking deputes to inform future decisions.

228. In the cases we reviewed, we were concerned that guidance and processes surrounding decisions to discontinue were not always followed. The approval of a Principal Depute to discontinue cases was not always sought when it should have been. Conversely, approval was sometimes sought when it was not required. Decisions to discontinue proceedings on the day of trial meant that seeking approval was often not achievable. The reasons for discontinuation were not always recorded or, when recorded, they were not always clear.

229. There also appeared to be some confusion about the circumstances in which VIA should write to the victim to advise of a decision to take no further action, to ‘not call’ a case, or to desert pro loco et tempore.^[58] This affected whether victims were appropriately advised of their right to review the decision.

Recommendation 9

COPFS should provide clear guidance to staff on when a domestic abuse victim should be informed of a decision to discontinue a case and of their right to request a review of that decision.

230. At interview, we heard that deputes were generally wary of discontinuing domestic abuse cases. They were well aware of the robust approach that should be taken to domestic abuse set out in COPFS policy. Some deputes said they would repeatedly request adjournments in cases where the victim failed to attend court, in the hope the victim would attend a future trial. Others said they would not call the case or make a motion to the court to desert pro loco et tempore instead, in order that the case could be re-raised in the future.

231. When cases are not called or deserted pro loco et tempore, there appeared to be no clear review process to decide what action should be taken next. In one case we reviewed, the trial depute decided at the first trial diet not to call the case due to the non-attendance of the victim and a witness. Both had been cited, but only two days prior to the trial. The victim had emailed COPFS saying that she did not wish proceedings to continue, but received no response. The case was reviewed around six months later and marked for no further proceedings. The victim was not informed of that decision.

232. Some guidance on deserting a case pro loco et tempore can be found on the COPFS intranet, including in its Book of Regulations, however it is outdated. While some Principal Deputes told us they reviewed such cases, this did not seem consistent across areas or sufficiently frequent. Regular and timely reviews of such cases ensures that decisions are made on what should happen next and, consequently, victims can be kept informed. Reviews also offer an opportunity to check the victim’s current view on a prosecution, which may have changed during the intervening period, and to check whether there has been any further offending by the accused which may allow cases to be prosecuted together. Reviews also offer an opportunity to monitor depute decision making, including at court, where seeking a Principal Depute’s approval to discontinue cases in line with guidance is not always practicable. They also provide an opportunity to learn lessons from cases that have not proceeded as planned.

Recommendation 10

Where cases are discontinued at court, COPFS should ensure that they are reviewed timeously by a Principal Depute. The Principal Depute should review whether the discontinuation decision was appropriate, identify if there is any learning arising from the case, and determine how the case should proceed.

233. Our findings regarding adjournments and discontinuations show that a greater proportion of cases would proceed to trial if case preparation was more effective. In the cases we reviewed, we found that too often, issues which caused adjournments or led to discontinuations in the latter stages of the case, including at trial, were known about either from the outset of the case or at a significantly earlier stage. There was, however, a failure to take ownership of the issues and to ensure they were resolved. This leads to a vicious circle:

• court loadings are high because so many cases do not proceed
• cases do not proceed for a range of reasons, but including because they are not effectively prepared
• cases are not properly prepared, in part because court loadings are too high.

234. As noted above, we anticipate that the rollout and effective implementation of the summary case management model may help address some of these issues, but further action, as suggested at Recommendation 6, also requires to be taken by COPFS in respect of its internal operations.