Chapter 5 – COPFS Policy and Guidance on Knife Crime
133. In this chapter we provide more detail about the policy and guidance issued to Procurators Fiscal in light of the Lord Advocate's public pronouncement in 2006.
134. The revised guidance was issued to all staff in COPFS by way of General Minute 2/2006 and made reference to crimes involving the possession or use of a knife ('relevant crime'), thus including both statutory and common law offences.
General Minute 2/06
135. The main thrust of the guidance was to treat offenders (particularly those who had analogous previous convictions) more robustly in terms of forum for prosecution and opposition to bail. The main principles were set out in the following three paragraphs.
136. Any individual charged with an offence involving the possession or use of a knife (a relevant offence) should be placed on petition where they have been previously sentenced to imprisonment for a relevant offence.
137. There is a presumption in favour of placing on petition any individual charged with a relevant offence where they have been previously convicted of a relevant offence. [In determining whether the presumption may be rebutted, regard may be had to the age of the previous conviction, any exceptional circumstances relating to the accused or any other exceptional feature in respect of either the current offence or the previous conviction. Any decision to rebut the presumption will require to be confirmed by a legal manager.]
138. Prosecutors should oppose bail and seek relevant special conditions if bail is granted where the accused has been previously convicted of either
- a relevant offence; or
- an offence of violence which has resulted in a custodial sentence
139. Aside from these main principles, General Minute 2/06 gave more detailed guidance to prosecutors as to how they should approach cases involving carrying or using knives.
140. If the criminal record disclosed a previous offence of violence then careful consideration was to be given for petition proceedings.
141. Prosecution for knife crime should take place in the Sheriff Court. Such cases were not suitable for warnings (or other alternatives to prosecution) except in exceptional circumstances.
142. Those cases commenced on petition were to be reported for Crown Counsel's instructions and not reduced at a later date to summary proceedings unless, in the view of the District or Area Procurator Fiscal, there were exceptional reasons for so doing.
About case preparation:
143. Procurators Fiscal were advised to ask the police to follow up for factual accuracy any excuse or reason for having the knife offered by the accused at the time.
144. Where summary proceedings were instituted early diets of trial were to be sought where possible.
About bail considerations:
145. Expanding on the advice regarding prosecutors' bail considerations, it was suggested that in some circumstances it might be appropriate to seek curfew conditions as a direct alternative to custody.
About young offenders:
146. Where offenders were under 16 at the time of the offence or under the supervision of the Children's Panel there remained, a presumption in favour of allowing the Reporter to the Children's Panel to deal with the case. However, after consultation with the Reporter, if it were thought that there were compelling reasons in the public interest, prosecution should occur. Indeed, if there was a history of knife crime offending or routine involvement in gang violence, prosecution would be more appropriate.
About the timing and quality of police reporting:
147. Knife crime cases would be reported as custody cases or exceptionally by way of undertaking 15, rather than delay some weeks for routine report. In this way knife crime cases were to be fast tracked to court ahead of some more routine and less serious crimes. Lord Advocate's Guidelines (to Chief Constables) on Liberation were amended to reflect this new instruction. In addition Procurators Fiscal were to seek early trial dates in summary cases to ensure they came to a swift conclusion.
148. Police were asked to provide a 'community impact' statement giving background information concerning the impact of knife crime on the community and its prevalence in the particular location. This information was to be given to the court where a guilty plea was tendered.
Case marking guidance
149. In the last few years Crown Office has developed very helpful guidance to prosecutors in the form of case marking guidance about specific offences. This is available on the COPFS intranet and easily accessible to legal staff. Since the overarching policy contained in General Minute 2/06 relates to the decision making process upon receipt of a report from the police it seemed appropriate for us to consider, in our case review, the extent to which there was compliance with the terms of GM 2/06 and the offence specific case marking guidance. Overall we found that the knife crime guidance was simple to access and the offence specific marking guidance for the most part mirrored the terms of the General Minute. There were one or two matters that arose from our inspection however.
150. There is case marking guidance for both Section 47 and Section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995.
151. We found that the case marking guidance for Section 47 was full and helpful. The principles concerning choice of forum mirrored the wording of the 2006 General Minute.
152. At the time our inspection commenced the case marking guidance for Section 49 offences (including all the subsections relating to schools and prisons) contained some anomalies.
153. There was conflicting guidance as to when a case would merit proceedings by way of petition. In one section the guidance said:
154. "Where the accused has already been sentenced to a period of imprisonment for an offence involving the possession or use of a knife, and is charged with a subsequent offence involving the possession or use of a knife, the accused should be placed on petition." (our emphasis)
155. However elsewhere in the same guidance note it said:
"Where the accused has already received a sentence of imprisonment for an offence involving the possession or use of a knife, there is a presumption in favour of placing the accused on petition." (our emphasis)
156. There was nothing in this case marking guidance to advise that any relevant knife crime previous conviction (regardless of sentence) triggered the presumption of petition proceedings. This was a subtle but significant deviation from the original policy stated in General Minute 2/06.
157. The significance of these anomalies became apparent during our case review. We found that some cases should have raised a presumption in favour of petition proceedings as stated in the General Minute 2/06 yet were marked for summary proceedings without apparent reference to a legal manager considering and rebutting the presumption.
158. We are pleased to report that as soon as this discrepancy, which is likely to have been the result of a simple error, was brought to the attention of the Head of Policy at Crown Office it was immediately rectified so that the guidance accurately reflected the 2006 stated policy.
159. Other matters raised about the accuracy of the wording of the guidance with reference to the wording in the statute were also corrected instantly.
160. It was our view that busy practitioners may not always have the time to consult different forms of policy and guidance and would, for the most part, rely on the case marking guidance to correctly state the policy. This was confirmed by practitioners with whom we consulted at Area level. Case marking guidelines are an invaluable tool but need to be completely accurate so that those taking decisions about prosecuting cases within very tight time frames (and here we are very conscious of the need for speed and accuracy in marking custody cases) can rely on them.
Common Law crimes
161. Under this general heading we examined the case marking guidelines for -
- Robbery (includes assault and robbery)
- Breach of the peace
- Culpable and reckless conduct
- Hamesucken (an old term for the aggravation of assault by first breaking in to the victim's house)
- Attempt to pervert the course of justice
162. The marking guidance for breach of the peace referred to and therefore had similar errors as the marking guidance on Section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 which were also corrected by Crown Office when we raised them.
163. Case marking guidance for the crimes of robbery (and assault and robbery) accurately reflected the terms of General Minute 2/06.
164. However case marking guidance for crimes of assault appeared to take a more robust position than stated in the General Minute. Here guidance stated that any previous conviction for a 'relevant' offence, whether resulting in a custodial sentence or otherwise, would merit petition proceedings.
165. Case marking guidance for crimes of abduction, culpable and reckless conduct, hamesucken and attempt to pervert the course of justice had no reference to the knife crime guidance or the GM 2/06. As we found during our inspection, such crimes could involve the use of a knife and we considered it might be helpful to have a cross reference to the general minute on knife crime. However, we thought that these types of crime were far more unusual and therefore perhaps not so critical.
166. We also looked at the guidance for the statutory crimes of assaulting emergency workers or police officers. Again there is no cross reference to the knife crime policy which would make the guidance more complete.
RECOMMENDATION 1 - That all Case Marking Guidance is checked against the guidance contained in GM 2/06 and cross referenced accurately.
RECOMMENDATION 2 - That 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 that brings the marking guidance in line with GM 2/06.