Chapter 6 – Case Review
The case sample
167. We sought and obtained from COPFS a full list of cases reported by the police between April 2009 and end of March 2010 under two distinct headings to ensure that we captured both statutory and common law 'knife' crime:
168. We identified cases also by selected data descriptors or 'modifiers' as the police report describes them.
Statutory knife crime - possession offences
169. Cases reported under Sections 47 and 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 were relevant. We obtained a list of cases of those charged by the police and reported to the Procurator Fiscal for offences of having with them in a public place an offensive weapon (s47) and a bladed or sharply pointed article (s49). Section 49 cases also included similar offences where the locus was a school or prison rather than a public place.
170. We referenced also a data field in the police report showing a 'modifier' ie a note describing the type of weapon used. There were a number of weapon 'modifiers' that we thought our knife crime inspection should encompass. These were: knife, axe, sharp object, screwdriver, scissors, open blade razor, pick axe, machete, sword, saw, bottle and glass. This list seemed to provide the variety of 'knives' that might be used or carried as 'stabbing' implements. In fact, once we started to examine cases, we found that bottles were invariably used as blunt instruments and we therefore excluded 'bottle' and 'glass' cases fairly quickly from our case review. Our review did not cover other offensive weapons that were blunt instruments such as poles, pieces of wood etc.
171. The total number of 'weapon carrying offences' cases reported during 2009/10 was 7,355. Of this figure, 3,302 had 'knife' or one of the other descriptors of similar instruments we were including. 1,984 records had no 'modifier', in other words no descriptor of the weapon in a data field in the report that would then show up in any later criminal record in the event of a conviction. Since this was a large proportion of the weapon cases we included the 'no modifier' cases in our sample set and discarded those that were not knife related. So our sample pool of those charged with 'possession' of knives or offensive weapons we classed as knives amounted to 5,286.
172. This data integrity issue is problematic for future reference, in the event of a conviction and we discuss this and make a recommendation in Chapter 2.
Common Law knife crime and other 'using' offences
173. When we asked for a list of the common law offences reported these were identified by retrieving those reported to the Procurator Fiscal during 2009/10 where the police had included a 'modifier' or note describing the weapon to the charge. (We have no way of knowing if, like the statutory offences in the paragraph above, the police included in their report a reference to modifier in every case in which a weapon was used.) The cases where modifiers matched our description of 'knife' included a vast range of offending including some charges that were clearly irrelevant for our purposes - such as housebreaking, car thefts etc which were removed. We found an array of offending at common law using knives from the minor end of the scale - breach of the peace - up to the most serious - murder. Aside from the most obvious common law offences of violence we found that knives were aggravating features in a number of crimes such as culpable and reckless conduct, extortion and abduction to name but a few.
174. We list in Appendix 1 the full range of common law crimes included in our case review sample. We also included in the case review sample those offences of violence against public service personnel such as the police and emergency services. Although these are offences under statute - for example the Police (Scotland) Act 1967, s41(1)(a) - assaulting a police officer, they are included here so that our case review covered the broad spectrum of criminality using knives that was not otherwise captured by the 'carrying' offences.
175. In this category of crimes there were 5,421 relevant reports for the year.
176. We should say here that some cases appeared on both data lists where offenders were charged by the police and reported for a variety of offences arising out of one incident. We eliminated any duplication from the cases actually sampled. We can therefore say that the total number of charges from which we obtained our sample for review was just over 10,000. Our review examined 440 cases, giving approximately 4% of a sample.
177. Our case sample was in proportion to the number of cases reported to each Area and final marking decision per Area.Not surprisingly the West of Scotland had higher percentages of knife crimes reported than elsewhere with Glasgow Area receiving the most reports. This is illustrated in the table below showing the geographical spread of cases under review.
178. We did not examine in the case review cases reported regarding sale of knives as there were so few of these and in any event the guidance focussed on the crimes involving users and carriers of knives rather than retailers. Although legislation is in place to curb the sale of knives there was only one case reported to any Procurator Fiscal during the year 2009/10 under the Knives Act 1997, section 1 relating to the sale of knives intended for combat; just two cases were reported in the year under section 141(1) of the Criminal Justice Act 1988 which provides for regulation of 'prohibited items'; and one case under section 141 A - selling knives/blades to under 18s.
Criteria for case review
179. Case review examined the practice against the stated policy and guidance in relation to the following key areas:
- Police reporting
- Initial case marking decisions with particular regard to choice of forum and libelling of offence [although other general marking considerations were reviewed]
- Bail considerations
- Reporting to Crown Office (where appropriate)
- Case outcome
- Monitoring arrangements
180. We looked at the 'last marking' for a case as an indication as to how the case had ultimately been dealt with by prosecutors. We can separate these into five broad headings:
Cases marked for 'no action'
Cases dealt with other than by court proceedings
- Direct measures
- Reporter to the Children's Panel
Cases at summary court level
- Justice of the Peace court
- Stipendiary magistrates court (these are only found in Glasgow)
- Sheriff Court
- Those commenced on petition (solemn procedure) but reduced to summary proceedings
Cases that were dealt with by way of solemn procedure
- Sheriff and Jury
- High Court
Cases where court proceedings were discontinued
- Summary proceedings
- Solemn proceedings
Some general observations
181. The vast majority of knife crime cases reported to the Procurator Fiscal were reported as custody cases where the accused had been arrested and kept in the cells until the following court day. In some less serious matters or where there were factors relating to the circumstances of the accused - perhaps age or family circumstances the case was by undertaking or released for report in the normal way. If the accused was not traced the police often reported the case seeking a warrant for apprehension. A number of cases reviewed were reported by the Glasgow Gangs' Task Force and there was close liaison between the police and Fiscal about how to proceed.
- Community impact statements
182. In the cases we reviewed we found 96% had no community impact statement. In some cases such comment would be inappropriate - for example where the incident took place in a domestic setting. However, where the incident took place in a public area like a park or street we found few examples of community impact statements. We found that some reports from the Glasgow Gangs' Task Force cases in particular did contain very detailed information about the prevalence of knife crime at the locus of the offence and this was very helpful for prosecutors.
- Description of knife
183. Sheriffs highlighted to us that they found some Fiscals unable to provide a full description of the knife. This was confirmed by some operational Fiscals. This information is essential both for Fiscals marking cases but also crucially for sentencing purposes.
184. Some offices had local arrangements with the police whereby the knife itself would be lodged with the Procurator Fiscal on the same morning as the custody report was submitted. This is the ideal situation, but for logistical reasons does not happen everywhere. Some forces submitted either a photograph or a photocopy of the weapon for information and that was thought to be very helpful too.
185. Viewing of CCTV would be best practice before marking any case but did not appear to be routinely happening as far as we could tell.
186. Where CCTV footage was available at the marking stage (and here we noted that the time-frame for custody cases meant that CCTV would rarely be available to view by the Fiscal before marking) Fiscals told us that it was very helpful in providing a visual narrative of the events which sometimes lose a little in translation to the written word on the page. One example cited was of a youth involved in a gang disturbance. The case was reported to the Procurator Fiscal and CCTV footage was made available and viewed by the Fiscal. The samurai sword in the hand of one offender was almost as big as the boy himself and provided a striking image.
187. Apart from the size of the weapon, CCTV footage also shows the level of aggression shown. We noted that Procurators Fiscal engaging at an early stage with defence lawyers and showing them CCTV footage produced early pleas of guilty.
188. One Sheriff advised that the Fiscal's practice is to produce the knife at the sentencing diet and put it onto the court projector so that it can be seen on all the TV screens around the court. In this way the public as well as the Sheriff are provided with a view of the weapon concerned.
189. Knives came in an array of shapes and sizes from (at the bottom of the scale) small attachments to key-rings right up to (at the top of the scale) samurai swords and the like. Size of weapon was not always an indicator of seriousness. Some smaller weapons such as craft knives can have dreadful effects if used in a slashing. During a knife crime awareness session at Polmont YOI one of the most disturbing photographs shown was of a young girl who had her face slashed from forehead to chin with a craft knife. She will remain severely disfigured for the rest of her life.
- The 'modifier'
190. When a case is reported by a law enforcement agency to the Procurator Fiscal it is transmitted in a set format (the SPR2 - Standard Police Report version 2) via an IT system. When the Procurator Fiscal considers the case and comes to a decision about how to proceed, the 'marking' of the case is carried out onscreen. The decision is recorded in the IT system which then communicates with the IT system of the reporting agency. In addition, where court proceedings are taken, the IT system is linked to the IT system of the Scottish Court Service so that a computer record is created of the case. It is this information, in the event of a conviction, which is placed on the Scottish database - Criminal History System ( CHS).
191. In all cases it is imperative that accurate details about the charge, conviction and sentence are recorded on CHS - Scotland's computerised Criminal History System. However, for knife crime there is an added requirement that where a knife or other weapon is used or in the case of s47 and 49 of the 1995 Act, carried, that the 'modifier' is present.
192. The significance for our inspection was that if any of those cases 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 their previous 'relevant' offending then this is an issue which must be resolved.
193. We noted that in August 2010 our fellow inspectors in HM Inspectorate of Constabulary (Scotland) raised serious concerns about the integrity of criminal records on the police national computer. Although the issue of crime 'modifier' records was not specifically mentioned, the report concluded that -
'The integrity of data held on the CHS system relies on the actions of the three main criminal justice agencies, namely the police service, the Crown Office and Procurator Fiscal Service and the Scottish Court Service. Effective data management by these partner agencies is therefore crucial. In practice, liaison between the three in relation to CHS (and subsequently PNC) data could be improved.'
194. We agreed with those conclusions and with the suggestion that ideally where errors occur they should be corrected at source. This is a matter that COPFS should be raising directly with police forces. However, as well as reinforcing the need for this data to be included in the police report, COPFS staff should be alive to the fact that it is possible to correct the omission manually.
195. Processing instructions for the computer system used by COPFS includes a simple step by step process for adding information missed out by the police. Indeed on some occasions prosecutors will wish to add a fresh charge not libelled by the police. Coincidentally the FOS process manual uses the example of adding a charge of carrying a knife under s49 of the 1995 Act to illustrate the process. The option of adding in the 'modifier' is available although does not appear to be a mandatory step.
RECOMMENDATION 3 - That 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.
Age of accused
196. Although the majority of offenders were in the 21-30 age range it was interesting to note the wide variety of ages of offenders.
197. In general case marking decisions were well judged and we found many instances of good practice of notes created in the system. These notes were crucial to us in understanding how a decision had been made. Some notes explained information that had been gleaned from further enquiries made by telephone prior to the decision being made. Others recorded discussion with colleagues about the case. We had concerns in this inspection about those cases which appeared to contravene policy or go against a presumption for particular court action and which contained no explanatory case note.
198. We are well aware of the tight timescales for marking cases especially those where a knife is involved which are inevitably reported as custody cases. This means that a decision must be taken on the morning (or indeed sometimes later in the day) of the report being received. Marking involves a consideration of the law in relation to any search, the circumstances of the case and any relevant legislation and case law, an assessment of the evidence, consideration of any guidance, checking and if necessary changing police charges, considering whether bail should be opposed, if so, on what grounds. In addition in recent years the marking process has been extended to also include trial preparation instruction in the event of a plea of not guilty. All this must be done in time for the accused to receive a copy of the complaint or petition against him, instruct a lawyer in the cells of the court and then appear in the custody court that same day.
199. We accept that in carrying out our case review we have the opportunity to examine the cases in a far less pressurised time-frame. We also recognise and uphold the need for the Procurator Fiscal to retain an element of discretion where appropriate given the individual circumstances of each case. Case notes showing the rationale of a decision against a presumed course of action should be created for audit trail purposes.
RECOMMENDATION 4 - That 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.
200. There is a facility within the IT system (called Future Office Systems - or FOS for short) for 'real time' case marking audits. Legal managers can set audit parameters for each member of staff in their team. The settings allow for a percentage audit of the whole caseload or against certain case marking decision categories. So, for example, a percentage of all warnings or JP court markings could be set for audit. Managers can choose the extent of auditing for each member of staff depending on their experience and competence. The system settings ensure that the case is transferred to the manager for approval before it can complete the case marking process.
201. This audit setting does not easily allow for auditing of a particular crime type, such as knife crime. We were advised that it is possible to flag up crime types. The cases in which they appear are then shown with a [P] for priority in the case marking 'trays' and auditing could be arranged based on such flagged cases.
202. As far as we are aware no FOS auditing based on crime type has taken place for knife crime in any office in the country. However, we noted that FOS auditing did take place (via other set parameters per member of staff) in 45 of the cases reviewed. This represents approximately 10% of the overall case review sample.
What were our specific findings?
- Cases marked for 'no action'
203. Prosecutors consider the facts of the case reported to them and in some circumstances they decide that no action is appropriate. There are a number of prescribed reasons for taking this decision and a reason is recorded by the marking depute at the time the decision is made. Sometimes the decision is made immediately and at other times prosecutors will seek further information before coming to that final decision.
204. Our case review examined all the cases which appeared to involve a knife in the charge that were marked for ' no action' under the category 'further action disproportionate'. This category of no action is intended to reflect that the incident or matter reported is so ' de minimis' that prosecution is not merited. We chose to look at all the cases for the year under this heading as we did not expect Fiscals to treat any knife crime cases as de minimis.
205. In all 47 cases were examined in this category. The majority of cases that were marked in this way related to people who were trying to self harm and were arrested by the police as much for their own safety as for any other reason. The Crown's view is that such cases do not justify any criminal proceedings in the public interest. Many Fiscals quite properly consulted with local social work or mental health professionals and we heard of varying levels of service provision and support available for Fiscals to call upon in this connection.
206. Four of these cases had been subject to an in-house ( FOS) audit at the time of marking. Many more had been marked by legal managers themselves. We sought comment on five cases from the Areas concerned. One case had in fact been taken up as a prosecution. We agreed with the decision to take no action in two but disagreed with the category of reason given. Both should have been in the 'not a crime' category for no proceedings.
207. We accept that Fiscals must retain absolute discretion in their decision making and those local Fiscals, particularly in smaller offices, will have a grasp of local issues and indeed may have come across the accused and witnesses previously. Their assessment of the evidence with such local knowledge and experience is invaluable and whilst we may have come to a different conclusion about a case we uphold the discretion of the Procurator Fiscal to take proceedings or not as he/she sees fit.
208. In two of the 47 cases we disagreed with the decision to take no action. In the first case the accused was 16 and was found in possession of a locking Stanley blade. He claimed he had it for use at work but there was no evidence to support that and indeed the police report indicated he had gang affiliations. The Area Fiscal agreed with our view that there was no obvious reason for the 'no action' decision.
209. In the second case we thought that at the very least further enquiries should have been made before the final 'no action' decision was made.
210. We examined a further 33 cases (representing 3%) chosen at random of other cases marked 'no proceedings' under a variety of different reasons. Prescribed reasons for 'no proceedings' might be for lack of admissible evidence, mitigating factors, attitude of victim, not a crime, insufficient admissible evidence or other reasons.
211. We found that overall decisions were sound and showed good judgement, often showing a careful consideration of the legal issues concerned. There were only three exceptions to this and we outline the issues raised below.
- One case involved a craft knife with a blade of less than an inch. The decision to take no action was due to an error that the exception provided in Section 49 of the 1995 Act concerning folding pocket knives also applied to this weapon.
- Another was not prosecuted because the victim of an assault with a meat cleaver failed to provide a statement about it. Some of the incident was captured on CCTV and there was enough evidence to prosecute at least the statutory charge of having an offensive weapon in a public place.
- In the third case we noted that again there were difficulties highlighted about a victim who wanted to retract his original statement. We took the view, however, that the serious nature of the assault merited some further investigation before coming to a decision. We could find no evidence that this had occurred.
212. The Crown's role in investigating serious crime is an important one. We consider that a case such as this merited closer scrutiny and consideration of the evidence. We touch on this issue again in paragraph 238 of this report.
Cases dealt with other than by court proceedings
213. Here there are various options -
- Direct measures
214. Procurators Fiscal have the option to issue a warning letter to an accused or alternatively issue a personal warning. In the latter case an invitation is issued to a private meeting during which the personal warning is administered by a legal manager or more senior member of staff.
215. Diversions from prosecution vary from office to office around the country. Social work diversion may be an option for prosecutors to consider depending on the availability of provision from social work departments and other bodies offering some practical alternative to prosecution.
216. Direct measures are so called as they offer a direct alternative to a prosecution. Prosecutors have an array of options including issuing a fiscal fine, a compensation offer, a combined offer (of fine and compensation) and in some offices (under a pilot which has just been evaluated and extended) a work order is an option.
217. The guidance to legal staff contained in the GM 2/06 makes clear that persons carrying knives in public or involved in common law knife crime "should be prosecuted in the Sheriff Court" and "are not appropriate for warnings (or other alternatives to prosecution) except in exceptional circumstances". (our underline)
218. This clear guidance is repeated in the offence specific case marking guidelines ( CMG) for the statutory crimes of carrying knives or similar in public. Indeed in respect of warnings, CMG requires the decision to be taken by a Procurator Fiscal at District Fiscal or Divisional Fiscal level. Personal warnings should be issued by the District or Divisional Fiscal.
219. Our case review found the following:
220. The policy stated in GM 2/06 was that knife crime offences were to be prosecuted at Sheriff Court level and warnings or other alternatives for prosecution were not appropriate except in exceptional circumstances.
221. We carried out a 100% check on cases where a warning was recorded as the final marking in the case. 49 charges were initially thought relevant although many (14) were not fully checked as it quickly became apparent that the weapon was not in the class of weapons we were reviewing.
222. Of the remaining 35 cases we found only four cases where it was recorded on the IT system that the District Fiscal agreed the decision to warn the accused in accordance with the case marking guidance for statutory offences.
223. Warnings were given either by way of letter or by way of a personal warning. In one Area a number of personal warnings were given by a Principal Depute. On investigation these all related to young offenders involved in displaying images on social network sites, posing with various weapons and knives in obviously public places.
224. Many of the cases here had very exceptional circumstances justifying warnings and discretion was very properly exercised in the public interest although there was no case note indicating Divisional Fiscal involvement. For example one case we reviewed involved university students who were members of a martial arts club who were practising with swords in a local park for a forthcoming club event.
225. On the other hand there was one case where we did not agree that a warning was appropriate and some other method of disposal should have been adopted given the circumstances of the offence and previous record with the police.
226. There are some practical issues about the restrictive nature of the guidance that were thrown up by this inspection. In some situations a District Fiscal is not always available to make the decision and where an accused has been held in custody by the police (per the Lord Advocate's Guidelines on Liberation to Chief Constables) this can pose a practical problem for those carrying out case marking. Nonetheless, in the absence of any case note concerning the decision, we cannot be satisfied that this element of the guidance is being followed. We assume that the reasoning behind such a rule for District Fiscals to issue warnings is to ensure that only those very exceptional cases receive a warning.
RECOMMENDATION 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 that approval is obtained and is properly recorded.
227. In each Area there are local arrangements with social work departments for diversion from prosecution. This can mean either non prosecution or a deferred decision on prosecution pending the outcome of social work intervention. Only seven cases that appeared on the face of it to relate to knife crime were marked for diversion over the year 2009/10 and we examined all of them. We confirmed that in each case there were exceptional circumstances that would, in our view, justify the decision.
228. 12 cases in the year 2009/10 resulted in direct measures and again a 100% case review was carried out. In all cases, on scrutiny, the knife element quite properly had been removed from the offence due to lack of evidence so that the direct measure - eg a fiscal fine was for an offence such as breach of the peace with no knife aggravation.
229. Under the category of diversion from prosecution we also considered those cases diverted to the Reporter to the Children's Panel. Children are defined as those under 16 or aged 16 or 17 but still under the Supervision of the Children's Panel.
230. For offenders under 16, general policy provides a presumption against prosecution except where there are 'compelling reasons in the public interest'. Instead of prosecution the case would be dealt with by the Reporter to the Children's Panel.
231. In our field work we spoke to operational staff at a senior level in every Area. Some Areas had designated individuals who would discuss all cases for potential referral to the Reporter. Others told us that (especially for cases where the accused was in custody) a discussion would take place by telephone in the morning when the report was received.
232. Those offenders who commit crimes normally prosecuted in the High Court would expect to be prosecuted - for example crimes of murder or rape. Where a Procurator Fiscal considered that prosecution was merited he ought to consult with the local Reporter to the Children's Panel and in certain circumstances also seek the authority of the Lord Advocate. Where the case is so serious that it would merit solemn court proceedings and the child offender is in custody any decision to put that child before the court on petition requires to be ratified within three days by Crown Counsel acting on behalf of the Lord Advocate. Our examination of solemn cases showed a few cases where this quite properly occurred.
233. 15 cases were reviewed, representing approximately 8% of the cases referred to the Reporter during that year. Our case review found that there was no record of the terms of any discussion with the Reporter on the electronic records that we examined. Whilst in the main, where the presumption would have been for the Reporter to deal with the case, there would be no real need for an explanatory note there was one case with factors that might suggest a seriousness that might merit prosecution. Here good practice would have been for a note outlining any discussions with the Reporter and reasoning for the decision not to prosecute. We accept the Area Procurator Fiscal's assurances that discussions did take place.
Cases at summary court level
234. Here we examined cases prosecuted at summary level - that is to say cases heard before a single Sheriff (no jury), Stipendiary Magistrate (a legally qualified judge sits with the same sentencing powers as a Sheriff sitting summarily - in practice only in Glasgow) or lay JP (in the Justice of the Peace court). We included in the case sample a small random selection of cases where an initial decision to place the accused on petition (signalling solemn proceedings were contemplated) had later been changed, downgrading the case to be heard by way of summary procedure.
235. All cases were examined against the policies outlined in 2006, in particular:
- Police reporting and use of early diets
- Opposition to bail and appropriate use of bail conditions
- Case marking decisions - especially choice of forum
- We also looked at the more detailed aspects of guidance outlined in Chapter 5.
Justice of the Peace court
236. The guidance for knife crime indicates that prosecution should take place at Sheriff Summary level. Therefore we did not expect to see any cases prosecuted at the JP court. We examined all 30 JP court cases listed but were able to rule out most of them as either non relevant weapons such as bottles or because the knife element was excluded due to lack of evidence or because a co-accused in the same case was prosecuted for a knife crime offence in the Sheriff Court and the District Court case related to other, less serious charges. One case had been subject to a FOS audit.
237. We did, however, take issue with the decision taken in two cases looked at in this part of our case review, although for differing reasons:
238. In one, a decision was made to proceed in only one (a drugs offence) out of three charges reported by the police. The process involved does not require the marking depute to provide a reason for the decision not to proceed on every charge, unlike the situation in paragraphs 203 and 204 above where a reason must be provided for a 'no action' decision of an entire police report. Nonetheless, particularly where the more serious (knife) charges are not being taken up, we would have thought it desirable to create a case note with a brief explanation. In this case we took the view that the incident itself coupled with the previous criminal record of the accused were both serious enough to merit petition proceedings and some further investigation before coming to a final decision about the sufficiency and quality of the evidence and what might prove in court.
239. Cases such as this throw up some of the problems encountered every day by Fiscals assessing the merits of a case and taking decisions in the public interest. In custody cases, these decisions are made in very short time scales during the morning of the custody court.
240. In the second case a female charged with a breach of the peace by brandishing a cutlery knife at staff at an alcohol support services unit was prosecuted at the JP court. Policy dictated that this should have been taken up at the Sheriff Court.
Stipendiary Magistrates Court
241. Although the sentencing power of a Stipendiary Magistrate is the same as that of a Sheriff sitting without a jury, we were told that it was the Glasgow practice to prosecute knife crime cases in the Sheriff rather than the Stipendiary Magistrates court.
242. Only one case in our case review was dealt with at the Stipendiary Magistrates court. This appeared to go against the local marking policy but seemed to be an exceptional occurrence.
Sheriff summary proceedings
243. We examined 133 Sheriff summary cases, representing just under 3% of the summary court cases for the year. Seven of these cases were subject to FOS audit at marking. 115 cases were reported and presented to court as custody cases. When a person appears on summary complaint from custody they are called upon to state their plea to the charge. If a guilty plea is tendered they can be dealt with there and then or deferred for background reports. If a plea of not guilty is tendered then dates are fixed for Intermediate and Trial diets. The question of bail then arises and the Sheriff will hear both sides before making a decision as to whether the accused will be allowed his liberty pending the trial or whether he/she should be remanded in custody for trial. If the accused is remanded in custody, trial must take place within 40 days of first appearance.
244. Seven cases were not marked with any bail instructions on the IT system. This was more of a processing error and in all of these cases we saw ourselves or it was confirmed to us that the written case papers had bail instructions marked.
245. We queried a further seven cases where the instruction was not to oppose bail. The policy set out in 2006 seems quite strict in that a previous relevant offence or a previous conviction for violence which has resulted in a custodial sentence should trigger opposition to bail.
246. In four of those cases queried the relevant previous conviction was of some age which would be a relevant factor for the Sheriff and we agree that bail most probably would be granted in the circumstances.
247. Our interpretation of the policy was that a fairly strict rule was set in relation to bail opposition. Unlike the policy in relation to forum, where some discretion is allowed and a presumption applies that can be rebutted, there appears to be little discretion allowed in relation to bail in the written policy documents.
248. In practice, our case review showed that some discretion was being exercised where the previous criminal record was of some vintage. The difficulty with a strict policy is that a 'one size fits all' approach does not always work and some element of discretion in unusual circumstances can be helpful.
249. We noted that bail was not opposed and should have been opposed in the other three summary custody cases per the guidance. Area Fiscals agreed in one case but thought that deputes showed proper discretion in not opposing bail in the other two.
250. The Lord Advocate's Guidelines to Chief Constables indicate that it is ' unlikely to be appropriate' to release an accused person for report or on a written undertaking where they have been found in possession of or have used a knife in the commission of an offence. This is subject to the discretion of the officer in charge of the station. Procurators Fiscal with whom we consulted in every Area advised us that they thought that the police in their respective Areas were following the guidelines. They had not had occasion to raise any compliance issues with police Divisional Commanders in their Area.
251. Eight cases in our summary case review related to accused who were initially taken to the station and may have been considered for custody but were released by the police to appear at court a week or so later on an undertaking (a form of 'police bail'). The Lord Advocate's Guidelines to Chief Constables were changed in 2006 so that knife crime offenders should only in exceptional circumstances be released on an undertaking. In some cases there was an explanation of the reason for release on undertaking and in others there were clearly exceptional circumstances. Other cases were less obvious.
252. We queried two cases which were dealt with as undertaking cases.
253. In one case the accused was 52 years of age with a short criminal record for road traffic offences. He was found sleeping in a bus shelter and was arrested for being drunk and incapable and taken to the local police station. There, his rucksack was searched and a knife found. It was described as an ornamental letter opener although the accused claimed he had it in his rucksack because he had used it for fishing a few days earlier. The District Fiscal had no issue with the police liberating the accused on an undertaking rather than keeping him in custody over the weekend.
254. The second case was more serious and the Fiscal marking the case did have concerns that both accused had been liberated from custody to appear on undertakings later, but raised this concern with the police directly. It is not known if the District Fiscal was made aware of this case.
Released for report
255. Nine summary cases reviewed related to those cited to court (that is - not kept in custody and not appearing on an undertaking). In fact in two of those nine cases the accused had been liberated by the police on an undertaking. In one case, the marking depute required further information about another pending matter and liberated to later cite the accused to court. In the other case the police report was submitted after the undertaking date and so the accused was cited to court.
256. We queried two cases in this ( cited to court) category. In the first case the accused had a previous Section 49(1) conviction that should have prompted opposition to bail. In the other case the accused had a previous criminal record for violence and was still on licence having recently been released from prison. There were grounds for initiating matters by warrant and opposing bail in line with the knife crime policy.
257. One case was started by a warrant request as the accused could not be traced. Bail instructions were appropriately marked.
General issues for summary court cases
258. We found no instructions to seek early diets of trial in any of the cases reviewed. Although the General Minute states that Procurators Fiscal should seek early diets of trial wherever possible in summary cases, we did not see this guidance reflected in the specific case marking guidance for statutory or common law knife crime offences. We conclude that this aspect of the Lord Advocate's guidance is neither commonly known nor followed because it is not replicated in case marking guidance.
259. There are now many categories of cases where it is recommended by Crown Office guidance that early diets be sought, such as domestic abuse, child or vulnerable witness cases. In practical terms if too many summary cases that call are treated as having priority in terms of requiring an early trial diet then the request can be fairly meaningless as the Sheriff Clerk will find it almost impossible to accommodate such requests.
260. We did note some cases where trial diets were fixed at a fairly early date after first appearance. These were not custody diets (within 40 days) but were within a short time frame. It was impossible for us to know for sure but we thought some might have been domestic abuse cases. Others may simply have been because the clerk of court had some diets of trial within a short time frame.
261. In practice therefore we can say that early diets were not routinely sought unless the accused was remanded in custody pending trial - in which case a (maximum) 40 day time limit applied.
Choice of forum
262. In this aspect of the case review that we found some evidence of non compliance with the terms of GM 2/06. We examined all the summary cases selected for review for choice of forum decision. We queried 26 summary cases concerning choice of forum and asked Area Fiscals for comments.
263. The detailed guidance contained in General Minute 2/06 gives directions on how to proceed in three situations where the accused is charged with a 'relevant offence' (using or carrying a knife):
- Previous criminal record for 'relevant' offence and imprisoned for that
- Direction to put on petition
- Previous criminal record for 'relevant' offence and not imprisoned
- Presumption in favour of petition, which presumption could only be rebutted by a legal manager
- Previous criminal record for violence
- Requires 'careful consideration' of petition
264. Sometimes a range of convictions including knife crime and other general violence was evident.
265. In some cases we were not challenging the decision which, in the circumstances, appeared well founded. As we indicated in paragraph 197, a common issue was the lack of a case note confirming that a legal manager had ratified the decision to prosecute summarily. Only two cases contained a note that the presumption in favour of petition was considered and rebutted by a legal manager.
266. Where guidance provides that a presumption in favour of a particular course of action exists then it would be advisable for staff to ensure that they note their reasons for rebutting that presumption.
267. In three cases it appeared to us that there was a contravention of the clear direction for petition proceedings if the previous record showed a conviction AND prison sentence for a previous 'relevant' offence.
268. In the first case the accused (G) was reported in custody for a drugs offence and possession of a locking razor (described as an old fashioned barber's cut throat razor). He had a lengthy criminal record albeit the very serious offences were of some age. The record included two knife crime (s49) offences in 1999 and 2001, one of which attracted a four month sentence of imprisonment. He had more recent convictions for violence and drugs offences. Considering the record we felt that this fell into the first category where petition proceedings were required (and not simply a presumption). The case was marked by a senior member of staff who recorded his reasoning for marking for summary proceedings that, on balance, he did not think that the case would attract a 'solemn' sentence. At trial G pled guilty to the knife charge and was sentenced to six months imprisonment.
269. This was one of only two cases where a case note showing the reasoning behind the decision was found. We presumed that the Procurator Fiscal in this case was referring to the case marking guidance for s49(1), which, at the time, suggested that there was a presumption (rather than a clear direction) for petition proceedings. Since we raised the anomaly of the case marking guidance with Crown Office it has been changed to accurately reflect the knife crime prosecution policy outlined in 2006.
270. In the second case the accused had a lengthy and varied criminal record and he was still on licence for his last prison sentence when the incident took place. The offence involved assaulting his neighbour by thrusting a knife through the letter box of the front door. The guidance said this should be petition due to the last conviction for knife crime for which he was sentenced to eight months imprisonment.
271. The Area Fiscal thought this decision was defensible but was disappointed that the depute had not first cleared it with his legal manager. It was pointed out to us that the accused was only sentenced to three months imprisonment which is significantly less than the powers open to a Sheriff at summary level (12 months maximum).
272. In the third case the record would have dictated petition although we do not take issue with decision to proceed on summary complaint on the facts of the case.
273. In the second category - that is to say cases where a presumption in favour of petition proceedings applies - we found a number of cases prosecuted at Sheriff summary level where there had been a previous 'relevant' knife conviction (which had not attracted a prison sentence).
274. In five of those cases we observed that the previous conviction was of some age and therefore the decision to prosecute at summary level seemed entirely reasonable. Given the nature of the guidance we would have expected as a matter of good professional practice that deputes would record reasons for going against such a presumption and that they had discussed it with their legal manager. We accept that in a busy office, marking custody cases against the clock, this recording might take a little extra time. Nonetheless it is a worthwhile exercise to provide a clear audit trail.
275. In five cases, where the criminal record of the accused raised a presumption of petition proceedings but summary proceedings had been taken up, we were of the view that petition proceedings ought to have been initiated.
276. When we raised these cases with Areas there was an acceptance that the marking decision was wrong and could not be justified in two cases. In the other three cases Area Fiscals accepted that there was no note recording the rebuttal of the presumption but that, in all the circumstances, the decision could be ratified retrospectively.
277. In the third category, that is where the accused had a criminal record for violence, albeit nothing specifically knife related, the guidance was that 'careful consideration' was required for petition.
278. Nine cases were queried under this category. Of these, Area Fiscals agreed in four cases that they should have been considered for petition.
279. The other five decisions were justified retrospectively by Area Fiscals, either because of the circumstances themselves, the quality of the evidence or the eventual outcome.
280. Indeed it was a common theme from Area Procurators Fiscal who responded that the eventual outcome on conviction was a sentence that was below the maximum sentence open to a Sheriff sitting summarily and therefore could be taken as an indication that the decision to proceed by way of summary proceedings was a correct one.
281. We understand the approach to case marking in general is a more 'outcome focussed' approach and that Procurators Fiscal will consider the likely sentencing options available in making their decisions. We cannot say with any certainty that longer prison sentences would have been imposed had prosecution been at solemn level for those cases with which we took issue.
282. However, the whole thrust of the (published) policy on the prosecution of knife crime is towards giving Sheriffs the option to consider imposing a solemn sentence to mark the public disapproval of knife crime. We wondered if the decisions to prosecute summarily were influenced by the case marking guidance for offences of breach of the peace and Section 49(1) which, at that time, did not accurately reflect the terms of GM 2/06.
283. We obtained views from Sheriffs around the country. Sheriffs told us that, on the whole, they thought that Procurators Fiscal were getting the decisions so far as forum about right. However, there was a view that the Crown's role in choosing the forum does have an influence on the ultimate sentence imposed. One Sheriff said:
"The Crown has an important role in the court"
and that a prosecution on indictment would signal that the expectation was for a sentence in excess of 12 months.
284. The essence of the knife crime guidance issued in 2006 was that Sheriffs would have the chance to consider imposing longer custodial sentences for those who had come before the court for a second time for knife crime offences. Indeed the Solicitor General referred to this in his comments in 2009 when he noted that more knife crime offenders were going to jail and for longer on account of the robust prosecution policy introduced in 2006.
285. The increased sentencing powers of 12 months on summary and four years on indictment were intended to reflect the serious view taken by parliament of the scourge of the knife culture of our times.
Cases reduced to summary proceedings
286. 27 cases in our case review were commenced on petition but then reduced to summary proceedings, representing 3% of those reduced over the year. 16 of these were reduced to summary without being reported for Crown Counsel's instructions. In most of these cases we noted that the case had been referred to the District Fiscal for approval or the District Fiscal was the person taking the decision, which is in line with the knife crime guidance in GM 2/06. Indeed we learned that most District Fiscals are involved in decisions of this nature as part of their core operational duties whether the case relates to knife crime or not.
287. The initial framing of charges on petition and marking of bail instructions for these cases were all appropriate.
288. The timing of the decision to reduce to summary proceedings varied. Often the decision was made within days of first appearance on petition and followed a review of full statements from witnesses in the case. Other times it appeared that the decision was taken at the precognition stage when the case was being prepared for prosecution in a jury court but the evidence, for some reason or other, did not reach the required standard or it was a less serious incident than first thought.
Monitoring of summary knife crime cases
289. There were no centrally maintained monitoring processes for summary casework although GM 2/06 referred to monitoring and evaluating the policy. We noted that a framework for monitoring and evaluating solemn knife crime cases was established by Crown Office in 2006 but no system was put in place nationally to monitor summary case work relating to knife crime prosecutions.
290. During our field work visiting different Areas we came across one Area (Lanarkshire) where a 'quality review group' had been established. Here we were shown evidence of monitoring exercises in relation to a number of different themes, one of which was knife crime. The monitoring involved a check of some completed cases by a legal manager who identified aspects both of police reporting and Fiscal marking with a view to suggesting improvements. The findings mirror our own in this inspection and the results have been the basis for identification of refresher training for both police and Fiscals. We highlight this work as good practice and commend it to other Areas. No other Area seems to have carried out any monitoring of knife crime as a distinct topic.
291. In summary cases there is some case audit work carried out across the entire range of general summary caseload. Categories for audit under the self assessment case audit include 'no action', 'no further action' and 'quality of case marking decision' regarding forum, bail position considerations and recording. Knife crime is not particularly checked as a topic.
292. Aside from the FOS audits that we mention in paragraphs 200 to 202 there was no case audit work carried out at the time the cases we examined were reported - that is from April 2009 to March 2010. Self assessment case auditing in COPFS did not commence until May 2010. Nonetheless we asked all Area representatives if any issues had arisen in the course of self assessment case audit since May 2010. No issues or concerns were reported.
Crown Office audit of knife crime 2010
293. Crown Office 'Operations' section carried out a national audit of 25% of cases marked for summary proceedings where the offence reported was a contravention of either Section 47 or 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 from April 2009 to March 2010. This audit, carried out in 2010, was the first of its kind since the knife crime guidance was issued and was restricted to an IT based review of cases.
294. There were differences in our respective approaches. Crown Office looked at cases reported under Section 47 or 49 only - that is knife carriers, not users, rather than the broader spectrum of knife crime covered in this inspection. Their weapon categories did not cover some of the weapons we chose to include such as an axe or scissors.
295. It appeared to us that the in-house audit considered non compliance only where the previous criminal record showed a conviction AND prison sentence for knife crime and we wondered whether the case marking guidance for Section 49 was used as a reference. The Crown Office audit did not consider cases where the criminal record merited a presumption in favour of petition proceedings.
296. The Crown Office audit found non compliance in four cases where the accused was charged with possession of a knife (either under Section 47 or 49), had previous convictions for knife crime and received a custodial sentence and was nonetheless prosecuted on summary complaint. (None of these cases featured in our sample of cases for review)
RECOMMENDATION 6 - That there is regular monitoring of cases for compliance with the provisions of the knife crime guidance, particularly those cases that are dealt with at summary level or not prosecuted.
- Sheriff and Jury proceedings
- High Court proceedings
297. Serious cases are prosecuted before a Sheriff and Jury or in the High Court with a Judge and Jury. The maximum sentencing power of a Sheriff sitting with a jury is five years. Where a sentence in excess of five years is anticipated, the Crown will elect to take the case in the High Court.
298. Any case before a jury is prosecuted on indictment (charge sheet) which runs at the instance of the Lord Advocate - or Her Majesty's Advocate. Before a Procurator Fiscal serves an indictment on an accused person he must have the authority of the Lord Advocate. This authority, in practice, is granted by Crown Counsel (Advocates Depute) who carry out the duties of prosecutors in the High Court but who also have the duty of approving cases for indictment in both the Sheriff and High Courts.
299. 61 solemn cases were reviewed, representing a 2% sample. We had intended to review a slightly larger sample but our findings were fairly uniform and we were satisfied that this provided us with a clear picture. All were reviewed by way of the IT system and we requested sight of four sets of papers to follow up. One set of papers could not be retrieved due to storage arrangements. We viewed the other three sets, mainly to check what had led to an unexpected outcome. 14 cases were subject to FOS audit.
300. We were able to see the marking and bail instructions in all cases. These were the focus of our inspection. We had varying success in tracking the progress of the cases after the initial stages in terms of case preparation as not all documents were prepared and saved in the IT system under the case reference. We were able to obtain factual information about case dates and outcomes and were thus able to piece together some basic information about the progress of the cases.
301. Of the solemn cases 54 had been reported as custody reports, there were three undertaking reports and a further four seeking warrants.
302. Overall, case marking in terms of appropriate charges and forum was good. In particular we found many examples of good practice in bail instruction notes.
303. In 2007 16, bail was made the subject of a statutory framework. This Act altered provisions of the Criminal Procedure (Scotland) Act 1995. In terms of section 23C of the 1995 Act the Sheriff was now required to take into account certain factors relating to 'substantial risk' before allowing or refusing bail. In terms of section 23D, bail was not to be allowed if the accused had a previous conviction on indictment for a violent or sexual offence unless in exceptional circumstances.
304. The majority of cases here had very full and detailed reasoning for bail opposition. We found excellent notes about the factors in terms of sections 23C and 23D that would require to be argued before a Sheriff. Where appropriate, instructions were also inserted to appeal against a Sheriff's decision to grant bail if that occurred or to seek special conditions including curfew conditions in the event of bail being granted.
305. We observed that the IT marking system was designed prior to the 2007 Act. Although many deputes marking bail instructions identified the important factors for submissions in terms of the relevant section 23 of the Act, other deputes did not. It occurred to us that a minor alteration to the checklist on the IT system at this stage, to prompt consideration of the application of section 23C and D, might help focus on the issues and make that aspect of bail instruction marking quicker and simpler to complete.
306. We wonder if this is a matter that those involved in the upgrade of the IT system would wish to consider but we make no recommendation in this regard.
307. In the event, in 42 out of the 61 cases reviewed, the accused were remanded in custody pending their trial. Nine of those remanded appealed to the High Court against refusal of bail but only one was successful.
308. One or two cases involved a statutory charge only on petition - either Section 47 (offensive weapon) or Section 49 (article with a blade or sharply pointed) - and this was the only charge on the indictment. There were a variety of common law charges in the cases we examined: murder, attempted murder, robbery, assaults (some to severe injury or danger of life or to permanent impairment). Others were less serious: simple assault, breach of the peace, culpable and reckless conduct.
Framing of charges
309. We noted in the course of our case review that it seemed to be fairly standard practice in solemn cases that statutory charges were included in the indictment where appropriate. So, for example, where the main charges were of assault or breach of the peace, and the incident took place in a public place, an additional charge was added under Section 47 or 49 of the 1995 Act. As we have mentioned, this additional charge is useful for putting a case to a jury so that all options are open for possible conviction when considering all the evidence. This good practice was not always followed in summary cases reviewed.
310. On petition the accused is not called upon to state a plea at that stage. It is only after the case is prepared and, on the instructions of Crown Counsel, an indictment is served that a plea is required.
311. There was little evidence (from the IT system at any rate) of precognition of witnesses. Many cases at Sheriff and Jury level appeared to have been prepared on the basis of police statements without any obvious further investigation.
312. From what we could tell, 16 cases were resolved at the first calling of the indictment. Section 76 of the Criminal Procedure (Scotland) Act 1995 allows for an indictment to be served so that a pre-arranged plea of guilty can be tendered. We noted some good practice of Fiscals writing to defence solicitors to engage early after petition appearance about the prospects for an early plea of guilty. More often in practice the approach would be made by the defence, instructed by their client who had been remanded in custody, so that the matter could be resolved as soon as possible.
313. It appeared that many more cases were resolved by way of a plea or adjusted plea at one of the hearings before the trial. In this way witnesses would not have been inconvenienced nor court time wasted. In one case we noted that an adjusted plea of guilty seems to have been tendered at the trial. Matters proceeded to trial in only nine cases with a balanced mixture of convictions and acquittals, as would be expected. In practice a case is unlikely to proceed to trial unless there is a legal issue at stake or there are doubts about the credibility or reliability of witnesses.
314. Sentences, on the whole, were in excess of 12 months and in some High Court cases exceeded five years imprisonment. The longest period of imprisonment in our case sample was eight years for attempted murder. Where the conviction was for a statutory charge only - carrying (but not using) a knife we noted some sentences of under 12 months and some for more than 12 months. Probation and community service also featured in some cases.
315. In June of 2006 General Minute 6/06 was issued to staff. This followed on from GM 2/06 in providing, at least for solemn cases, a framework for reporting statutory knife crime offences to Crown Office and a monitoring scheme. A new template was designed for the reporting of (statutory) knife crime cases to Crown Office. This template appears to have been designed with the statutory case in mind and not particularly for knife 'user' crime.
316. Fiscals were directed to attach to the report to Crown Office a monitoring form (A) containing information about the charge and bail position. A further form (B) was to be returned to Crown Office at the conclusion of the case. It appeared that the function of the monitoring was to compile statistics concerning bail results and sentencing rather than compliance with guidance.
317. In any event, this monitoring system is not widely used in the present day. It appears to have fallen into disuse over time and many operational staff with whom we consulted had never heard of it or thought it had been discontinued.
318. Crown Office figures for completed forms A and B submitted since 2006 confirmed this anecdotal evidence. Of the cases we reviewed, only two forms A were submitted.
319. Area representatives who commented told us that the monitoring forms were of limited value for local office purposes. If useful for Crown Office purposes it was suggested that the information could perhaps be collated via IT systems rather than paper forms.
320. In all 26 cases were reviewed where proceedings had been commenced but subsequently discontinued. This represented 4% of the total for the year. Of these 18 were summary cases and eight were solemn cases.
321. In the summary case review there were a variety of reasons - all quite proper for discontinuing proceedings. We have listed some of the reasons to provide an illustration of the situations where a decision is made that it is no longer appropriate or in the public interest to pursue the case (whether knife crime or otherwise):
- The non availability of one or more witnesses either because they are untraced or have moved abroad
- Accused now a prisoner and detained under mental health legislation on another matter
- Review of witness statements - case does not meet evidential standard of proof
- A challenge was taken to the evidence under European Human Rights law
322. In other cases the discontinuation was due to a knife crime issue:
- A challenge on the grounds for the police search for the weapon - conceded that the argument would be lost in court
- Reassessment of whether the locus was a 'public place'
- A good reason for having the knife was accepted when proof of the accused's employment and use of the knife in work capacity established
323. We took issue with only two cases. In the first case a Fiscal accepted a not guilty plea at the trial on an erroneous belief that there was a requirement to prove 'intention' in a Section 49 charge. Proof of a Section 49 charge does not require any intention on the part of the carrier of the knife that he would use it. In certain situations (some Section 47 - offensive weapon charges) proof of intention is required. This was an error in law and the Area Procurator Fiscal accepted that this was a mistake on the part of an experienced depute.
324. The second case again appeared to be an error. At the first trial diet the case was deserted in the absence of civilian witnesses. This was a strange decision, not least because the marking depute had never marked for citing the civilian witnesses and appeared to be approaching the case from the viewpoint that police witnesses who arrived in the course of the incident would speak to the main parts of the charge. We thought that the case could have been better prepared both by the marking and by the trial depute.
325. We took issue with one solemn case that was discontinued. Here the issue was that the accused had committed crimes in different jurisdictions covered by different Fiscal Areas. Crown Counsel had instructed that Sheriff and Jury proceedings should take place in relation to one case against the accused. Separately he was prosecuted in a different Area and received a very lengthy prison sentence as a result of which the decision was taken to discontinue the case we reviewed.
326. We consider it would have been better for the two cases to have been joined up and prosecuted at the same time. The victim in the first case was (understandably) unhappy about the case being dropped. As a result of the case being abandoned that victim now has no right to be told when the accused is to be released from custody (under the Victim Notification Scheme).
327. Other than this one case, on review we again found a number of quite proper reasons for discontinuing solemn cases:
- Part of a 'global' plea
- Now insufficient evidence
- Death of complainer
- Change in a statement of a crucial witness
- Attitude of victim
Overall Conclusion on Case Review
328. Although we take issue with a few decisions as described above the overall compliance with policy in the 440 cases reviewed was very high.