Chapter 2 – Executive Summary and Recommendations
30. When in 2006 the Lord Advocate Colin Boyd QC addressed a Violence Reduction Unit seminar in Edinburgh and announced new more robust prosecution policies on the prosecution of knife crime, he pledged "continued, on-going energies of the Crown Office and Procurator Fiscal Service" in tackling knife crime. It was said that the goal of the new prosecution policy on knife crime was "to send a strong deterring message to those who commit knife crime".
31. The Lord Advocate made it clear that the policy related to both the possession and use of a knife in a criminal act.
32. "And let me say that in my mind there is little distinction between possession and use of a knife in a criminal act. The danger when carrying a knife is plain for all to see and there are sound public safety reasons for the statutory offences which exist to prevent the possession of knives in public places."
33. The Lord Advocate said:
"So my message today is simple.
And it goes out to anyone who would carry a knife on our streets.
If you are caught by the police carrying a knife, you will be arrested and kept in custody even if you are a first offender.
When you appear from custody if you have a previous conviction for a similar offence then your bail will be opposed and you risk losing your liberty pending your trial.
If you have a previous conviction for a similar offence you run the risk of being prosecuted before a jury and face a maximum sentence of 4 years imprisonment, after the Bill, which is presently before Parliament, becomes law.
If you not only carry a knife but use it the consequences will be even more serious."
34. The overarching conclusion based on our inspection of 440 cases is that there is a very high compliance with the policy outlined by the Lord Advocate.
35. We did take issue with the decision not to take proceedings in seven cases (or 1.5%) and we did not agree with the choice of forum in 18 cases (or 4%). These latter cases were, however, prosecuted.
36. We make six recommendations designed as an aid to improvement.
37. Prosecutors seem well aware of the robust nature of the provisions and for the most part are following the detailed guidance set out in the General Minute to all staff.
38. The results of our case review inspection show that in the vast majority of cases there is compliance with the knife crime guidance outlined by the Lord Advocate in 2006 in respect of bail and choice of forum.
39. On the whole cases involving knife crime are now reported by the police immediately after the arrest of the accused after they have been kept in custody pending his or her court appearance.
40. Our case review confirmed that an appropriately robust position in relation to bail opposition is being taken around the country in relation to those who are alleged to have committed knife crime, particularly where the offender has one or more previous convictions for knife crime or other crimes of violence.
41. This is borne out by Scottish Government statistics 2 which show a decrease generally in the number of bail orders in 2009/10. In 2005/06 56,233 bail orders were granted in courts in Scotland. Of that figure, 2,818 related to the crime of handling an offensive weapon. After a peak in 2006/07, the total number of bail orders has reduced to a figure of 47,921 last year of which 2,313 were for offensive weapon cases.
42. As a result of the guidance on choice of forum for knife crime those who have previous convictions for knife crime or violence are more likely to be prosecuted on indictment rather than summary complaint. This gives the sentencing Sheriff the option of a custodial sentence of up to five years.
43. In 2005/06 882 people received a custodial sentence for 'handling an offensive weapon' and spent an average of 117 days in custody. Over half (54%) of these received sentences of 3 months or less, 41% were sentenced to between 3 and 6 months behind bars and the remaining 5% got between 6 months and 2 years.
44. In 2009/10 the same statistics show that whilst those sentenced for the same crime rose slightly to 916, the length of sentence had increased dramatically. Only 16% received a sentence of less than 3 months, 38% received between 3 and 6 month sentences and 42% were in the 6 month to 2 year category. [In the future this trend may be affected by new provisions in the Criminal Justice and Licensing Act of 2010 3 that create a presumption against the court passing sentences of imprisonment (for any offence) of 3 months or less unless it considers that no other method of dealing with the person is appropriate.]
45. There was evidence of good liaison work between Fiscals and police in relation to gang problems in the Glasgow area. The use of CCTV footage at an early stage and proactive work to encourage early pleas of guilty was commendable.
46. Some monitoring of knife crime cases was taking place in solemn cases but the practice seemed to be in decline. FOS ( IT system based) auditing was evident and in some cases we noted a change (at audit) to the original marking decision by legal managers to ensure compliance with knife crime guidance.
47. In addition, one Area's (Lanarkshire) Quality Review Group's knife crime monitoring exercise was shown to be effective and led to focussed training of both police and Fiscals.
Areas for strengthening:
48. We chose to examine cases against the terms of the General Minute and at the same time checked cross referencing of the more detailed offence specific case marking guidance that has been developed in recent years. It was during this exercise that we discovered some discrepancies between the offence specific guidance and the General Minute.
49. In practice we found that some cases that we expected to proceed by way of solemn procedure - that is before a jury - did not and instead were dealt with at Sheriff Summary level where the Sheriff has maximum sentencing powers of 12 months imprisonment.
50. When we brought these discrepancies to the attention of the head of policy in COPFS the case marking guidelines were changed immediately to reflect the 2006 policy. It is important that the changes are publicised in the Service in order that all staff are aware of the issue.
We therefore recommend that -
1. All Case Marking Guidance is checked against the guidance contained in GM 2/06 and cross referenced accurately.
2. Procurators Fiscal are reminded of the terms of GM 2/06 and that they are advised of the recent changes to Case Marking Guidance for Breach of the Peace and Section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 to bring the marking guidance in line with GM 2/06.
51. We looked at issues concerning the quality of police reporting of knife crime to Fiscals. Our remit is not to inspect police forces. However, we noted the comments of the Lord Advocate in asking for the assistance of the police in ensuring the knife crime cases were reported quickly and with adequate information.
52. We should say that we were told by all Area representatives that they were satisfied with both the timing and quality of police reporting in their jurisdiction. However, we noted that very few reports contained any community impact assessment information (albeit in some cases such comment would be inappropriate - for example where the incident took place in a domestic setting).
53. We also heard from Sheriffs that ideally they wanted to see the weapon itself or at least a photograph of it for sentencing purposes. There was some evidence of visual information being provided by the police whether by way of a photograph or a photocopy of the knife. Some local police officers were able to bring along the knife itself to the Procurator Fiscal in time for custody marking. In some rare instances CCTV footage was brought at this time also. We thought it was important for the Fiscal marking the case to be able to see the weapon (or at least a photograph of it) to take a view about the case at marking as well as being able to present the fullest information to the Sheriff for sentencing, at summary level prosecutions.
54. We also highlighted the issue about data quality in the reports, which if not challenged or changed, can affect the quality of information in the Criminal History Records. Police reports have a data field for the reporting officer to complete where a weapon is used in the offence. This data field is called a 'modifier'. The significance for our inspection was that if any police reports with 'no modifier' where a knife was in fact involved proceeded to conviction the criminal record would not show a reference to a knife. Since the criteria for placing a person on petition for knife crime is directly related to previous 'relevant' offending then this is an issue which must be resolved. The completion of the 'modifier' section of the report was essential for future reference but one not likely to be noticed by Fiscals marking cases. This is a quality of reporting matter that should be raised with the police.
With these matters in mind we therefore recommend that -
3. Procurators Fiscal should liaise with police forces in connection with the quality of knife crime reporting to ensure that reports meet the needs of the Procurator Fiscal, the courts and provide sufficient information on data for the Criminal History System.
55. We had some misgivings about one or two cases where we felt that the decision to take no proceedings was made instantly rather than with the benefit of further enquiry. Given the serious nature of knife crime we would urge more careful reflection before ruling out prosecution in the public interest.
56. GM 2/06 provided for warnings or diversion in only exceptional circumstances. Specific case marking guidance provided for approval of warnings by District Procurators Fiscal. There was scant evidence of prior approval by District Procurators Fiscal.
57. In certain situations the General Minute provided a presumption in favour of prosecution at solemn level and any deviation from that practice required Depute Fiscals marking cases to obtain prior approval of their senior managers. Our case review findings showed little evidence that the measures for prior approval were being adopted. We also found some cases, but overall not many, where the presumption for solemn proceedings applied due to the previous criminal record of the accused yet proceedings were at summary level.
We therefore recommend that -
4. As a matter of good practice Procurators Fiscal should provide a case note concerning a decision where the decision appears to go against guidance or rebuts a presumption.
5. Where approval of a senior member of staff is required for a particular course of action that there is a clear procedure in place for ensuring such approval is obtained and is properly recorded.
58. Given that knife crime is a matter of public concern and the subject of specific direction from the Lord Advocate we looked for auditing and monitoring within the Service to ensure compliance. One Area had undertaken specific quality monitoring of knife crime reporting and marking and used the results to inform joint training of police and Fiscals which was good practice.
59. At national level there was some limited monitoring of 'solemn' knife crime evident but that seems to have fallen into disuse. There was a national knife crime monitoring exercise of statutory summary knife crime that coincided with the start of our scoping for this inspection. Other local general (not knife crime specific) auditing practices for case marking were evident. We thought there was a need for more robust monitoring, especially of cases that were prosecuted at summary level or not prosecuted at all.
We therefore recommend that -
6. There is regular monitoring of compliance with the provisions of the knife crime guidance, particularly those cases that are dealt with at summary level or not prosecuted.