The prosecution of domestic abuse cases at sheriff summary level

Reporting and marking cases

87. During our inspection, we assessed how well COPFS prepares, manages and prosecutes domestic abuse cases. Our focus was on cases in which proceedings are initiated at sheriff summary level. It did not include cases that proceeded at solemn level, or where the accused person was offered an alternative to prosecution. We considered how prosecutors mark reports received from the police of offending behaviour for prosecution, and how those cases are managed until their conclusion, including where they conclude by way of a guilty plea, a trial, or a decision to bring proceedings to an end.

Standard Prosecution Reports

88. The police report cases to COPFS by way of a Standard Prosecution Report (SPR). Its purpose is to provide the relevant, accurate and comprehensive information needed by a marking depute^[35] to help them make the most appropriate prosecutorial decision. Usually, the SPR will be the only information available to a depute at the marking stage, so its contents are the foundation on which prosecutorial decisions are made. SPRs follow a nationally agreed format including, for example, details of the charge and the accused person, any previous convictions of the accused, a summary and analysis of evidence, and a list of witnesses and productions.

89. All cases involving an element of domestic abuse should be reported using a tailored SPR format. This requires reporting officers to include additional information specific to domestic abuse, including:

• the nature of the relationship between the accused and victim
• any previous history of domestic abuse, including incidents not previously reported
• the victim’s views on court proceedings, bail conditions and non-harassment orders
• information about risks to the victim, any children and other witnesses. This should include the outcome of a risk assessment carried out by the police
• information about any children, including whether they were present during the incident and any expressed views (and those of their parents or carers) on giving evidence
• whether the address of the victim is known to the accused
• any vulnerabilities or support needs of the victim, witnesses or accused.^[36]

90. We reviewed 60 domestic abuse cases. It was not our intention to review the quality of SPRs as that would properly be the role of HM Inspectorate of Constabulary in Scotland (HMICS). However, we did assess the extent to which SPRs supported effective and timely decision making by the marking depute, and how the content of SPRs affected the management of the case by COPFS.

91. In the 60 cases we reviewed, 22 (37%) SPRs fully supported prosecutorial decision making. We found examples of excellent, detailed reports. These reports made good use of the domestic abuse reporting format and addressed the points noted at paragraph 89. A further 34 (57%) SPRs partially supported decision making. These SPRs were generally adequate, but lacked some information that would have better supported the marking depute in their decision making. We considered that four (7%) SPRs did not support decision making at all.

92. Where SPRs only partially supported prosecutorial decision making, common issues included:

• a history of domestic abuse between the parties or on the part of the accused was missing
• there was insufficient information on risk
• the views of the victim were missing
• there was a lack of clarity about counter allegations.

93. These issues are explored in more detail below. Examples of SPRs that did not at all support decision making included:

• one SPR in which the identity and evidence of the victim was unclear. The victim’s vulnerabilities were not explored and this led to significant delays later in the case
• one SPR in which there was a complete absence of the additional information that should feature in domestic abuse cases. The reporting officer also omitted consideration of the children as he considered they would not be affected by domestic abuse due to their young age
• in two cases, the domestic abuse SPR format had not been used, resulting in key information being left out.

94. The standard of SPRs was consistently better in the Glasgow cases. Twelve out of the 20 Glasgow cases fully supported decision making, compared to seven in Dundee and only three in the Rest of Scotland cases. All of the SPRs in Glasgow fully or partially supported decision making. We could not establish why SPRs in Glasgow were better – it is possible that there was some legacy effect from work to improve reporting in support of the Glasgow Domestic Abuse Court. It should also be noted that our samples were not statistically significant, although we did feel there appeared to be a clear pattern of reports that better supported decision making in Glasgow across several of the measures we applied.

95. While we considered that the standard of SPRs was consistently better in Glasgow, we heard positive feedback from prosecutors in Dundee that the standard of SPRs in their cases had significantly improved as a result of the summary case management pilot. We interviewed prosecutors several months into the pilot, whereas the Dundee cases we reviewed were all reported to COPFS in the early stages of the pilot. We appreciate that the standard of SPRs would have evolved as the pilot embedded.

History of domestic abuse

96. In the 60 domestic abuse cases we reviewed, all SPRs featured information about the nature of the relationship between the accused and victim, while 54 (90%) SPRs featured a good amount of information about any previous history of domestic abuse. In two of the six SPRs that did not include sufficient information about any history of abuse, the reporting officer had not used the tailored domestic abuse SPR format. The other four SPRs had used the correct format but had nonetheless not been completed adequately.

97. SPRs sometimes focused on a specific incident of domestic abuse but failed to address the wider circumstances, patterns of offending or history of abuse. Sometimes these SPRs alluded to other offending, but it appeared this had not been further investigated by officers. This should have resulted in further information being requested by the marking depute. Such requests were made by deputes, although there were also cases where this should have happened but did not. Victims and advocacy workers we interviewed felt that the police, and consequently COPFS, failed to ask about or take account of the totality of the victim’s circumstances or the full history of abuse. They felt the focus was on the specific incident that prompted police attendance and that this led to an under-use of section 1 of the Domestic Abuse (Scotland) Act 2018. In the cases we reviewed from both Dundee and the Rest of Scotland, we were pleased to note examples of cases initially being reported as assaults and threatening and abusive behaviour being amended by COPFS to contraventions of section 1.

98. The joint protocol notes that domestic abuse encompasses a wide spectrum of behaviour, and that this includes cases involving isolated incidents as well as cases involving a course of conduct, and both violent and non-violent abuse.^[37] This is emphasised in the training available to deputes. Nonetheless, we were concerned that a small number of deputes appeared insufficiently aware of the non-violent ways in which a perpetrator can seek to exercise coercive control. This risked them being unable to recognise, when marking cases, conduct that could amount to psychological harm as defined in the 2018 Act. This reinforces the need for deputes to undertake training so they can develop an up to date understanding of domestic abuse.

Risk assessment

99. The Domestic Abuse Questions (DAQ) is a list of questions posed by the police to a victim to help identify the level of risk to the victim. Completion of the DAQ provides a score for each victim based on their answers. A score of 14 or above means the victim is deemed to be at high risk of homicide or serious harm. The outcome of the risk assessment should be used by deputes, alongside other information, to inform their decision on whether to oppose bail or whether to request special conditions of bail.

100. In the cases we reviewed, the DAQ was completed and the outcome noted in 44 (73%) SPRs. In 11 (18%) cases, the SPR noted that the victim refused to answer the risk assessment questions. In the remaining five (8%) cases, the SPR did not mention whether a DAQ had been carried out or its outcome.

101. Where a victim refused to answer the risk assessment questions, there appeared to be inconsistencies in how this was managed by officers. Some officers did not complete the DAQ, while others sought to answer the DAQ themselves, based on their knowledge of the incident and surrounding circumstances. We also saw examples of the DAQ generating a low risk score for victims, but officers stating in the SPR that the victim was at high risk.^[38] The reason for the disparity between the score and the level of risk was not generally explained, leaving deputes unsure whether it was an error. This affected deputes’ ability to make their own evidence-based decisions about risk.

102. Guidance to deputes indicates that the DAQ outcome should be a key factor in their decision making, and the DAQ features in their training. However, some deputes told us they did not pay particular regard to the scores. They felt that without a note of the answers to specific questions, its utility was limited. In one of the cases we reviewed, the reporting officer had included all the risk assessment questions and answers in the SPR, not just the score and level of risk. This helped deputes understand the specific risks to the victim.

103. Under section 1(3) of the Bail and Release from Custody (Scotland) Act 2023, when making decisions about bail, courts may request prosecutors provide ‘information in relation to the risk of harm to the complainer’. While not yet in force, this provision will require deputes to have accurate and detailed information about the risks to individual victims. It is therefore essential that COPFS and Police Scotland work together to ensure risk assessments are carried out effectively, and that sufficient information is shared with and acted upon by deputes (Recommendation 2(a)).

Victims’ views

104.SPRs should detail the views of the victim regarding three issues: court proceedings; bail conditions; and non-harassment orders. Almost all of the SPRs in our Glasgow and Dundee case samples (90% in each sample) set out the views of the victim regarding at least one of the three issues. However, only 45% of SPRs from the Rest of Scotland sample included this information. Across all areas, it was not uncommon for the victim’s views on at least one of the three issues to be missing. This is another area in which the information detailed in SPRs should improve, so as to provide the marking depute with more information on which to base their decisions. The information is also needed by the local court deputes who go on to prepare and prosecute the case.

105. Some SPRs used outdated language to describe victims. Victims were described as ‘hostile’. This language was sometimes also used by COPFS staff. While there may be some victims who do not support a prosecution at all, it seemed likely that many who were unsupportive were likely unsure or afraid of the prospect of prosecution and the impact this might have on their safety or their lives generally. Indeed, victims and advocacy workers told us that victims described as hostile were often afraid of reprisals from the accused if they engaged in the justice process, or were concerned about the impact this might have on their children, other family members or their work. VIA officers we interviewed said that victims who had been described as hostile in SPRs were sometimes not at all hostile or unsupportive of a prosecution when they spoke to them. The language used to describe victims was often not trauma-informed, and neither did it help a depute understand the reasons why a victim may not engage with the justice process. This limits the effectiveness of the depute’s decision making, and their ability to address concerns the victim may have. Senior police leaders told us they were keen to remove outdated language from SPRs, such as referring to victims as hostile, however it was clear from the SPRs we reviewed that there was still some work to be done in this regard (Recommendation 2(b)).

Counter allegations

106. In domestic abuse cases, sometimes both parties will make allegations against the other person. The joint protocol states that, ‘The police must thoroughly investigate the full circumstances of the incident in order to identify and report the principal perpetrator to the Procurator Fiscal. It will not generally be appropriate to arrest and report both parties to the Procurator Fiscal.’^[39]

107. In nine (15%) of the cases we reviewed, the SPRs made reference to counter allegations (four cases each in Rest of Scotland and Dundee, and one in Glasgow). While there were references to counter allegations, it was not always clear whether the ‘principal perpetrator’ approach was being followed, or whether a counter allegation had also been recorded and reported to COPFS. We heard from victims, advocacy workers and marking deputes who felt this aspect of the protocol could be applied more robustly.

108. Marking deputes told us that the police continued to report both parties where counter allegations had been made. They felt that counter allegations were investigated poorly, and reporting officers appeared reluctant to provide a view on the principal perpetrator. They said when both parties were reported, the police sometimes did not mention this in the individual SPRs. The individual SPRs were therefore likely to be marked by different deputes, meaning no one was taking an overview of the circumstances. The police reports could also be submitted to COPFS at different times, meaning a decision in the first case may already have been made before the second report was submitted.

109. Where reporting officers specified that both parties were being reported, and where reports were cross-referenced, it was much easier for one marking depute to review both cases, allowing them to revisit the issue of the principal perpetrator. They often felt, however, that it was the officer who had attended the incident and who had spoken to both parties who was best placed to form a view on the principal perpetrator, rather than a depute reading a report. Should the officer be unable to identify a principal perpetrator, then the SPR should clearly say so and explain the reasons why. Marking deputes also acknowledged there was scope to raise awareness of this aspect of the protocol among their own colleagues. This highlights a training need for both the police and deputes on how to manage counter allegations in accordance with the protocol, and on how the making of counter allegations may itself be part of the perpetrator’s abuse of the victim (Recommendation 2(c)).

Further enquiries

110. Before deciding how a case should proceed, the marking depute may request further enquiries or information from the police. Sometimes the information is needed urgently, before any decision can be made. Other times, a decision on how to proceed can be made but the information is needed for a later stage in the case.

111. Of the 60 cases we reviewed, further information was needed from the police in 15 (25%). Further information was needed in two Glasgow cases, seven Rest of Scotland cases, and six Dundee cases. Examples of further information requested included:

• evidence required to corroborate the identification of the accused
• full statements to be submitted earlier in the process
• further history of domestic abuse for possible additional charges
• clarification of the circumstances of the offence
• the complainer’s views on non-harassment orders (this information is needed if the accused pleads guilty at the first calling).

112. The response time for the requests ranged from receiving a response the same day, to the request still being outstanding at the time of our review (several months after the request was made). We heard that the police generally respond promptly where further information is needed about cases in which the accused is in custody. However, we were concerned about the delayed response in cases where the accused had been released on an undertaking (see paragraph 122).

113. In one case, the marking depute requested that the reporting officer provide further information about a more serious allegation that was mentioned in the SPR but which did not appear to have been explored further. The reporting officer failed to respond. Because the accused pled guilty to other charges at his first appearance in court, the case was closed without the outstanding request being followed up. We brought this case to the attention of COPFS. The outstanding request in this specific case was followed up, and the need to manage the broader risk of cases being closed while enquiries remain outstanding was added to guidance to marking deputes.

Digital evidence

114. From the cases we reviewed and from our interviews with prosecutors, we noted that essential evidential information can be missing from SPRs or be poorly described. This can prolong the marking depute’s consideration of the case and lead to delays while they request further investigation or additional information from the police.

115. Many cases now feature some form of digital evidence. This includes, for example, footage from CCTV, mobile phones or doorbell cameras, recordings of calls to the police, screenshots of messages, and photographs of injuries. Often, digital evidence can be compelling. It can help deputes obtain an early guilty plea or can be useful evidence at trial. Such evidence may be particularly important in domestic abuse cases where the victim or a child witness may be unable or unwilling to give evidence. We were concerned that some types of digital evidence are not being used to their fullest extent in domestic abuse cases.

116. Digital evidence is usually described in the SPR, rather than being submitted alongside it. While we saw some examples of digital evidence being well used and described by reporting officers, we also heard from deputes that this was an area for improvement in many SPRs. They felt that digital evidence – including 999 calls and CCTV – was often not well described or was inaccurately described, impacting the marking depute’s decision making, libelling of accurate charges, and their ability to provide instructions on how the case should be prepared and prosecuted. In particular, we heard that descriptions of 999 calls tend not to convey the seriousness of the incident. This may be because the reporting officer has not listened to the call at the point of reporting or even considered its evidential value. For example, in one case we reviewed involving an adult victim and a child witness, the SPR suggested that part of the domestic abuse incident was captured on a 999 call. This may have provided corroboration of the victim’s account, rather than requiring the child witness to give evidence. However, no effort was made by the reporting officer to obtain the call recording as evidence. Unfortunately, this was also not requested by the marking depute (Recommendation 2(d)).

Reporting method

117. Where there is a sufficiency of evidence in domestic abuse cases, there is an expectation that the police will arrest the accused and report them to COPFS while they are held in custody, or while they have been released on an undertaking to appear at court.^[40] This is in recognition of the particular risks associated with domestic abuse cases. Accused who have been released on an undertaking can be subject to conditions, such as not approaching the victim or the victim’s home. Whether the accused is held in custody or released on an undertaking will depend on an assessment of risk by the police. It is also possible for the police to report the accused to COPFS with no conditions being in place. Where there is not yet a sufficiency of evidence and the police require to carry out further enquiries, the accused may be released on investigative liberation, during which time protective conditions regarding the victim may be put in place although only for a limited period.

118. In 2022-23, 91% of domestic abuse cases were reported to COPFS while the accused was in custody or subject to an undertaking, in line with the expectation set out above. Although there is no guidance in the joint protocol as to which cases may be suitable for reporting when the accused is neither in custody nor subject to conditions, a small proportion of cases are reported this way.

119. Of the 60 cases we reviewed, four (7%) were reported to COPFS where there was a sufficiency but the accused was neither in custody nor subject to conditions:

• in one case, this appeared appropriate given the circumstances
• in another case, we thought it was likely appropriate. However, in this case, the SPR stated that the DAQ risk score was 14. We thought it likely this was an error in light of all the other information provided, however this should have been checked by the marking depute
• in two cases, it was not clear why the police risk assessment had led to the accused being reported while not in custody or subject to conditions. In the first of these cases, we were concerned that more than 90 days passed between the report of the offence and the accused’s first appearance at court, during which time no protective conditions were in place for the victim. In the second case, we were pleased to note that on reviewing the case, the marking depute immediately requested a warrant to initiate proceedings against the accused. He was arrested, appeared in court promptly and was thereafter subject to bail conditions.

120. While marking deputes we interviewed felt that it was rare to see accused in domestic cases being reported while neither in custody nor subject to conditions, we were encouraged that where this happens, they said they would take a similar approach to that described in the final case above. They said they would reassess the risk to the victim, and consider taking action to bring the accused before court as soon as possible so that protective bail conditions could be put in place.

Undertakings and investigative liberation

121. In summary cases, where the police have not yet identified sufficient, corroborative evidence, reports should not be submitted to COPFS.^[41] Despite this, there was a strong sense among deputes we interviewed that cases are being reported prematurely, before a sufficiency of evidence has yet been established. They felt that, rather than releasing the accused on investigative liberation (which has a 28-day time limit), the police were releasing the accused on an undertaking and submitting reports to COPFS without sufficient evidence. This often resulted in deputes instructing further enquiries to be carried out by the police before they were in a position to mark a case. Further enquiries were instructed in 25% of the cases we reviewed, although not all of these related to gathering corroborative evidence.

122. Sections 27 and 28 of the Criminal Justice (Scotland) Act 2016 allow for undertakings to be modified or cancelled by the procurator fiscal. Where further enquiries are instructed, this often results in an undertaking being postponed by a marking depute. We found that the police did not always respond to instructions for further enquiries timeously, meaning undertakings were postponed even further. There was a general sense among those we interviewed that undertakings should not be postponed beyond a maximum of three months, however the 2016 Act places no limit on the number of postponements nor does it impose an overall time limit. Two cases were brought to our attention in which undertakings were postponed four and six times respectively, each one being for a three or four-week period. This significantly delays progression of the case, for both the accused and the victim.

123. Poor reporting and delays in carrying out further enquiries by the police are not the only cause of postponed undertakings. We also heard about capacity issues within local court teams resulting in undertakings not being marked timeously, leading to last minute marking or instructions to police.

124. Where the police do require further time to investigate, the accused should be released on investigative liberation. This allows the police time to gather more evidence to support its reports to COPFS, while also allowing conditions to be applied to the accused that support victim safety. Investigative liberation (and any associated conditions) may only be used for 28 days, thus any further evidence gathering would require to be carried out expeditiously. In 2022-23, the proportion of accused released by Police Scotland on an undertaking was 23.9%, while the proportion released on investigative liberation was 0.7%^[42] (Recommendation 2(e)).

Summary case management pilot (Dundee)

125. A key feature of the summary case management pilot is the early disclosure of key evidence to the defence in domestic abuse cases. This requires Police Scotland to identify the key evidence and to provide it to COPFS at the time of reporting, rather than at a later date. This allows COPFS to disclose the key evidence to the defence on receipt of a letter of engagement.

126. Key evidence is the essential evidence required to prove the charge, as well as any further evidence which will ensure its effective presentation. Examples of key evidence in domestic abuse cases include statements from victims, police officers or other eyewitnesses, or photographs, video or audio recordings. To help the police submit key evidence at this earlier stage, a cloud-based solution (known as Egress) was introduced. In Dundee, this solution was supplemented by the piloting of the Digital Evidence Sharing Capability (DESC) from early 2023.

127. Submitting key evidence at the same time as the SPR not only facilitates early disclosure to the defence, it also provides a stronger foundation on which the marking depute can make decisions about the case and how it should proceed. For example, in two of the Dundee cases we reviewed, the marking depute was able to watch video footage prior to marking the case:

• in one case, a doorbell camera captured high quality images of the criminal conduct. We considered the footage was more shocking than what was described in the SPR
• in one case, an audio recording of comments by the accused in the presence of police officers was not clear, meaning the marking depute was aware from the outset that more reliance should be placed on the police witnesses than on the recording.

128. Key evidence was submitted within target in only eight of the 20 Dundee cases we reviewed. In the 12 cases where key evidence was not submitted when required, all but one featured missing digital evidence (such as CCTV or other video or audio recordings). Key witness statements were also missing in five of those cases. In no cases where key evidence was missing did the SPR contain an estimated timeframe for submission of the evidence, as is required.

129. We appreciate that the Dundee cases we reviewed were reported during the early stages of the summary case management pilot, and the requirement to submit key evidence at the time of reporting was still new and not yet embedded. The interim evaluation of the pilot also notes that the process for submitting key evidence had posed a significant operational challenge for Police Scotland.^[43] Nonetheless, the two cases outlined at paragraph 127 indicate the value of submitting key digital evidence at the time of reporting, not just to facilitate early disclosure, but also to allow the marking depute to make the best prosecutorial decision, assess the quality of evidence against the accused and provide appropriate marking instructions that allow the case to be managed more effectively from the outset.

130. While the Dundee cases we reviewed were submitted during the early stages of the pilot, we interviewed deputes working in Dundee several months into the pilot. They felt the information provided by the police in SPRs had significantly improved. They said that by submitting key evidence alongside the SPR, the police in Dundee were helping deputes make better and more timely decisions in domestic abuse cases. They felt there had been a significant reduction in the number of requests they had to make for further information. They also felt this approach was having a positive knock-on effect on the information provided in SPRs in other types of case.

Recommendation 2

In relation to the reporting of domestic abuse cases, COPFS should work with Police Scotland to:

(a) ensure that prosecutors have sufficiently detailed information on the risk to victims which can be passed on to the court when required

(b) ensure that Standard Prosecution Reports fully address the victim’s views on court proceedings, bail conditions and non-harassment orders. Reasons for victims’ views should be fully explored and should be described, by both COPFS and Police Scotland, in appropriate and accurate language

(c) ensure that the approach to counter allegations set out in the joint protocol on challenging domestic abuse is followed in practice by both reporting officers and marking deputes. Managing counter allegations should form part of training

(d) ensure that calls to 999 and 101 are assessed for their evidential value by both reporting officers and marking deputes

(e) address the premature reporting of cases and delays in carrying out further enquiries. Consideration should be given to increasing the use of investigative liberation, while ensuring that the risk to victims is assessed and managed through the use of protective conditions.

Marking

131. Within COPFS, members of the National Initial Case Processing (NICP) team specialise in marking cases. This team marks the majority of cases where the accused is reported while in custody. Currently, most cases where the accused is released on an undertaking are marked by prosecutors working in the six sheriffdom local court teams. However, NICP has taken on the marking of undertakings from the summary case management pilot areas, and there are plans for NICP to take on the marking of more undertakings in future. Of the 60 cases we reviewed, 39 (65%) were marked by NICP. Half of the Glasgow and Rest of Scotland cases were marked by NICP and half were marked by local court deputes. All but one of the Dundee cases was marked by NICP.

132. All of the cases we reviewed were marked for prosecution at sheriff summary level. We considered whether this marking decision was in accordance with COPFS policy on domestic abuse. The marking decision was appropriate in 58 of the 60 (97%) cases. We considered that one Rest of Scotland case should have been referred to the sheriff and jury team pending further enquiries to establish whether allegations about more serious offending could be corroborated. One Dundee case may have been marked appropriately but no reasons were given for the decision, making it difficult to properly assess. This case involved a breach of solemn bail that was dealt with at summary level. During our interviews, we heard about a more general issue regarding solemn marking deputes dealing with breaches of bail in solemn cases not recording the rationale for instructing proceedings at the lower summary level.

133. We also made an overall assessment of the quality of the marking in each of the 60 cases, including whether this was in accordance with COPFS policy. We assessed whether marking was fully, mostly, to some extent, or not at all in line with requirements set out in all COPFS policy and guidance. We took into account matters such as:

• the timeliness of marking decisions
• the use of appropriate charges and aggravations
• the drafting of charges (including not making reference to the victim’s address where this was not known to the accused)
• instructions regarding remand or bail
• instructions regarding the further preparation of the case, including any need for advance preparation
• the identification of evidence capable of agreement
• the consideration given to supporting victims who had been identified as non-engaging witnesses, or at risk of not engaging
• the citing of child witnesses.

134. In respect of the Dundee cases, we also took into account additional requirements set out in the summary case management pilot guidance, including whether marking instructions noted:

• a reasonable plea and the basis for it
• whether key evidence was disclosed to the defence at the time of marking
• the evidential basis for proceeding
• whether there is a sufficiency of evidence without the victim giving evidence.

135. We considered that the marking in 18 (30%) cases fully complied with all requirements; 22 (37%) mostly complied; and 15 (25%) complied to some extent. In five (8%) cases, we considered that while some requirements were present, those missing were of such significance that the marking was poor overall.

136. Below, we set out some of the issues we noted in case marking. Elsewhere in this report, we also highlight the consequences of inadequate initial marking decisions and instructions.

137. There was no correlation between the quality of marking decisions and the team marking the case. Good and poor marking decisions and marking instructions were evenly distributed across both NICP and local court teams. This is perhaps surprising – it may have been expected that the quality of marking would be consistently better when carried out by NICP, the specialist marking team.

138. The quality of marking in the Glasgow cases we reviewed was substantially better than elsewhere. We were not able to definitively establish why this was so. We considered whether the Glasgow Domestic Abuse Unit played a role in better marking decisions in undertaking cases. While this may have been a factor in some cases, most of the undertakings were marked by members of the local court team, rather than the Domestic Abuse Unit. The better standard of SPRs in Glasgow appeared to play a stronger role in the quality of marking decisions – indeed, across the cases we reviewed, there appeared to be a correlation between the standard of the SPR and the quality of the marking decision. While there were examples of a marking depute taking steps to address the deficiencies in SPRs, a correlation between the standard of the SPR and the marking decisions highlights the importance of the police getting it right from the start of the case’s journey through the justice process. It also highlights the need for marking deputes to take steps to address any deficiencies in the SPR at the earliest opportunity.

139. The quality of marking in Dundee was also better than in the Rest of Scotland cases, although where it fell short, this was often because the additional requirements associated with the summary case management pilot were not followed. This suggests a need for greater training and awareness raising of additional requirements when implementing the pilot, and has implications for the pilot’s rollout to other areas.

Charges

140. When reporting a case to COPFS, the police must select the most appropriate charge and include any relevant aggravations. It is normal practice for marking deputes to add, amend, or remove the charges put forward by the police after careful consideration of the circumstances and taking into account evidential rules and how charges require to be corroborated or proved by evidence led at trial.

141. Of the 60 cases we reviewed:

• in 41 (68%) cases, the charges on the complaint matched those on the SPR
• in nine (15%), the marking depute changed the charge
• in seven (12%), a charge was added
• in three (5%), charges were removed or merged.

142. We saw examples of marking deputes making appropriate changes to charges when required. For example, in two case, after instructing further enquiries, the marking depute changed the original charges (assaults and threatening and abusive behaviour) to contraventions of section 1 of the Domestic Abuse (Scotland) Act 2018.

143. Selecting the appropriate charge can be a complex and finely balanced decision. In 55 (92%) cases, the charges were correct. However, in five (8%) cases, we considered the charges were either not appropriate or that there were missing charges. For example, in some cases, there was additional criminal conduct that was not libelled. In other cases, the charges chosen by the marking depute were competent, but may have caused evidential difficulties at a later stage that should have been foreseen.

Aggravations

144. In Scotland, criminal offences can be aggravated by factors which make the offences more serious and therefore likely to increase any sentence upon conviction. A wide range of aggravations exist, including those relating to hate crime, serious and organised crime, and offending while subject to a court order. Section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 introduced a domestic abuse aggravation. Deputes can apply the aggravation to any offence where, in committing the offence, the accused intends to cause or was reckless about causing their partner or ex-partner to suffer physical or psychological harm. If the accused is convicted of the aggravated offence, the court must record the offence as being so aggravated and take it into account when sentencing. Another consequence of this particular aggravation is that, upon conviction, the court must consider, without application by the prosecutor, whether to make a non-harassment order.^[44]

145. A domestic abuse aggravation was applied appropriately in most of the cases we reviewed. However, there were some exceptions: in four cases, the domestic abuse aggravation was used inappropriately or unnecessarily; and in three cases, it was missing.

146. We reviewed several cases which included a charge that the accused had breached special conditions of bail, in contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995. We noted inconsistencies in how this was approached by marking deputes and this was echoed in our interviews with them. There appeared to be particular confusion about the approach to be taken when the accused and the victim were found in one another’s company. Some felt this meant the aggravation, requiring proof of the accused’s intention to cause or recklessness as to causing physical or psychological harm, was not competent. While some thought that the victim was ‘complicit’ in the breach of bail and therefore the aggravation was not appropriate, other deputes were keen to explore the circumstances and the accused’s behaviour in more detail, mindful of the possibility, for example, that the victim may be with the accused under duress. One senior prosecutor we interviewed had noted inconsistency among their team on this issue and had provided them with further guidance.

147. Section 5 of the Domestic Abuse (Scotland) Act 2018 created an aggravation to reflect the harm caused to children by domestic abuse. It can be applied to an offence under section 1 of the 2018 Act where the accused committed the offence in a way which involved a child. This child aggravation was missing from the complaint in two of the cases we reviewed. It had also been missing from an SPR, although this was rectified by the marking depute. COPFS has been alert to the issue of missing child aggravations and has been monitoring and quality assuring cases to ensure it is used appropriately. This has resulted in operational reminders being sent to all staff, and feedback being given to those who have failed to apply it correctly.

148. We also noted errors relating to other aggravations. For example:

• an aggravation relating to disability was missed in three cases and used unnecessarily in one case
• an aggravation relating to offending occurring in breach of bail was missed in one case.

149. Given that so many cases were marked by NICP, a national team, we would have expected more consistency in the appropriate use of aggravations. However, we found a far greater number of errors in the use of aggravations in the Rest of Scotland cases, compared to those in Glasgow and Dundee.

150. The errors we found relating to the use of aggravations generally, as well as the inconsistency in applying the domestic abuse aggravation to breaches of bail, show this is an area for improvement. Some efforts have already been made to address this, such as monitoring the use of child aggravations and individual leaders providing further guidance to teams. These approaches should be employed more widely however to ensure aggravations are applied when appropriate. This is particularly important in domestic abuse cases given that they may lead to more protection being offered to victims in the form of non-harassment orders.

Recommendation 3

COPFS should ensure that statutory aggravations are applied where appropriate. This could be done via additional training and guidance, as well as quality assurance and feedback to staff.

Marking instructions

151. When marking a case, the marking depute is required to provide instructions to the court depute who will manage the case at its first calling. Marking deputes have the opportunity to consider the circumstances of the case in full, meaning they are best placed to assess what might be an acceptable plea, what evidence might be agreed, and to assess whether bail should be opposed and, if granted, whether special conditions of bail should be sought. The court depute will likely be managing multiple cases at once and will therefore place significant reliance on the marking depute’s instructions.

Bail

152. In the SPR, the police should provide an initial assessment of the risk posed by the accused should they be granted bail and, if so, whether special conditions should be sought. The marking depute takes the information supplied by the police as well as COPFS policy and any other relevant information into account, before recommending to the court depute whether the Crown should oppose any bail application made on behalf of the accused.

153. While the Crown may oppose any bail application, the decision whether to remand or bail the accused and what conditions should be applied is one for the court. In the cases we reviewed, there were 21 cases where the Crown opposed bail. The accused was remanded in two. In the remaining 19 cases, the Crown opposed bail but it was nevertheless granted by the court.

154. In domestic abuse cases, in addition to standard bail conditions, special conditions of bail are frequently sought by the Crown.^[45] These special conditions offer additional protection to the victim and, where relevant, other witnesses. The most common special condition of bail is that the accused must not approach or contact, or attempt to approach or contact, or communicate directly or indirectly with the victim. Another common special condition of bail is that the accused must not enter a property or street where the victim resides. While both these special bail conditions are common in domestic abuse cases, it is important that careful consideration is given to whether they are required in every case. If, for example, a victim does not want one or either these conditions, the marking depute is reliant on the SPR saying so. This information was not always provided by the police.

155. Following a domestic abuse incident, some victims may move to an address not known to the accused for safety reasons, and this would be revealed should the second of the special conditions mentioned above be sought. In cases where offending occurs via electronic communication, the accused may be unaware of the victim’s address. To safeguard the victim’s safety, it is essential that COPFS does not reveal the victim’s address to the accused. This is highlighted in policy and guidance, and reminders have been issued to staff to be mindful of the risks of disclosing confidential information to the accused. Nonetheless, in two of the Rest of Scotland cases we reviewed, the marking depute instructed that special conditions of bail be sought that named the victim’s address. This was despite information in the case that suggested the address was not known to the accused. Victims and advocacy workers also told us that the disclosure of confidential information to the accused continued to be an issue.

156. We noted that some marking deputes used an aide memoire for their marking instructions, which encouraged them to confirm that they had considered whether the victim’s address was known to the accused. This appeared to be effective, but it was not a service-wide practice.

157. Victims and advocacy workers also told us that the victims’ children were not always protected by special conditions. There was one case in our review in which the marking depute failed to specify that the children should be covered by the bail conditions, but this was addressed by the court depute. There was a sense among those we interviewed that deputes and sheriffs were reluctant to include children in special bail conditions as this would interfere with the accused’s right to family life. However, some sheriffs we interviewed said it was not always made clear in the complaint or by the court depute whether children were involved or witnessed the domestic abuse, or how they were impacted by it. One potential barrier to highlighting the role of children in domestic abuse incidents is that the child aggravation can only be applied to contraventions of section 1 of the 2018 Act, but not any other offences.

158. While the approach taken by COPFS to bail was good in most of the cases we reviewed, there is generally a need for both the police in their SPRs and for marking deputes to take a more tailored approach that focuses on the individual circumstances of the victim and any child witnesses. To facilitate this, relevant information should be included in SPRs. Where it is missing, it should be requested by marking deputes so that the most appropriate bail conditions can be put in place.

Non-engaging victims

159. An important consideration for marking deputes is the victim’s attitude towards any prosecution and whether they are likely to engage in the process and give evidence if required. Where it appears the victim may not engage, we consider that the marking depute should highlight that action be taken to ascertain the victim’s latest position (which may have changed since they spoke to police), to provide information and reassurance about the prosecution process, and to signpost the victim to support services if needed. We consider that COPFS should be more proactive at an earlier stage in its efforts to engage and support victims who are at risk of not supporting a prosecution.^[46]

160. Consideration should also be given to whether the victim’s evidence is needed – it is possible that the charges may prove without the victim and on the basis of other evidence such as CCTV and 999 calls. In England and Wales, this is known as an evidence-led prosecution (that is, a prosecution that does not rely on the victim’s evidence). We consider that in domestic abuse cases, marking instructions should always specify whether the prosecution can proceed without the victim. This recognises the distinct nature of domestic abuse cases, and the fact that domestic abuse victims are more likely not to engage or change their mind about supporting a prosecution (often in response to pressure from the accused or in light of concerns about the impact of a prosecution on their family life). Specifying whether the prosecution can proceed without the victim is already a requirement in the marking of cases falling within the summary case management pilot, but is not yet widespread. We consider that it should become the norm in all domestic abuse cases and will assist in the ongoing management of the case. COPFS should not wait for a national rollout of the pilot before making this a requirement.

Recommendation 4

In domestic abuse cases, COPFS should require that marking instructions specify whether there is a sufficiency of evidence without the victim giving evidence.

Summary case management pilot (Dundee)

161. As noted at paragraph 134, deputes marking summary case management pilot cases are required to address additional issues in their marking instructions. From the cases we reviewed and from our interviews with court deputes in Dundee, we noted that these additional requirements are having a positive impact on case management. While some marking deputes we interviewed were not sure whether the additional instructions they provided were helpful, court deputes were clear that the more detailed instructions were a significant improvement. The instructions helped them to better manage multiple cases while in court, not just at the case’s first calling but throughout the preparation and prosecution process. They said marking deputes had sometimes highlighted relevant case law as well as strategies on how to manage charges that may be difficult to prove, all of which court deputes found helpful. COPFS should ensure that such positive feedback is shared with marking deputes so they are aware that the additional work they are doing is valued and has a positive impact on cases at court.