Thematic report on summary case preparation

1. The Inspectorate, in keeping with current inspection philosophy and government policy, takes a 'risk' based approach to the selection of topics.

2. There has been for some time concern about the efficiency of the summary courts in Scotland (and elsewhere) and a growing need to make efficiency savings against a backdrop of reducing budgets for the various parties. The question of 'churn' or the unnecessary continuation of cases from one court diet to the next has received much attention.

3. This, combined with some high profile summary cases which had gone astray due to poor preparation by the Crown, meant the topic rose to the top of the Inspectorate's agenda.

4. There is a need to balance cost and efficiency on the one hand with the dictates of justice on the other, not least the accused's right under ECHR legislation to a fair trial.

5. The criminal justice system is a complex one consisting of many parties, each independent of the other, and is not amenable to simplistic solutions. Some have even questioned whether the word 'system' is appropriate
(eg the Normand Report referred to below).

6. Efforts to improve the system have continued for many years. Some examples include:

• The Thomson Report - Cmnd 6218 (1975)
• The Stewart Committee - Cmnd 8958
• Creation of Intermediate Diets - Criminal Justice (Scotland) Act 1980
• Review of High Court practices etc by the Rt Hon Lord Bonomy 2002
• The Normand Report 2003 on the Aims, Objectives and Targets of the Scottish Criminal Justice System
• McInnes Report to Ministers 2004
• Report by the Rt Hon Lord Gill on Scottish Civil Courts 2009
• Creation of the Scottish Parliament and devolution
• Review of Disclosure by the Rt Hon Lord Coulsfield 2007
• The Making Justice Work initiatives
• The Audit Scotland Report, Overview of Scotland's Criminal Justice System 2011
• Report on Criminal Law and Practice by the Rt Hon Lord Carloway 2011

7. The Summary Justice Reform (SJR) model introduced in 2007 following the McInnes Report had as some of its aims:

• Cases would come to court more quickly
• Cases would be dealt with at the earliest possible stage in proceedings
• Early, effective preparation
• More effective court hearings

8. This, if achieved, would result in fewer trials being scheduled which did not go ahead, fewer victims and witnesses cited to court to give evidence, and a summary justice system that would live up to its name and would be truly summary in nature.

9. All these initiatives have shared the aim of improving the system with particular focus recently on the treatment of victims and witnesses seen by some as the 'poor relations' of the system compared with the focus on the accused.

10. An overarching development has been a raising of the threshold at which cases enter the various tiers of the court system. This has been accompanied by an increase in sentencing powers of the lower courts now up to a year before a sheriff sitting alone. Thus cases which would traditionally have gone to the High Court are now heard in the Sheriff and Jury court and likewise the summary courts are routinely hearing cases previously ascribed to the jury courts. This is not without considerable impact on the summary courts. Traditionally the more serious the case the more resources were put into preparation of it including precognition of witnesses, analysis of evidence etc. The raising of the thresholds (involving more serious offences) has had an impact on the summary courts. This was borne out by our extensive case review.

11. The criminal justice system presents something of a moving target for inspection agencies. This particular inspection coincided with possibly the biggest shift in approach by the Crown Office and Procurator Fiscal Service (COPFS) as to where and by whom cases are prepared and processed.

12. Traditionally the investigation and prosecution of crime was a responsibility of District Procurators Fiscal appointed by the Lord Advocate. This gave ownership of all the work in the district and facilitated local relationships with bench, bar, police, clerks, social workers and others.

13. However, from April 2012, the Crown Office has restructured into three geographical 'Federations' (East, North and West) with staff responsible for discrete types of work rather than responsible for work in a geographical area. This is a topic high on the Inspectorate's agenda for future inspection work but needs time to bed in. However, it remains to be seen whether this new approach helps or exacerbates the problems we encountered in this report. Part of the philosophy of creating the Federations is moving the work rather than the people, gaining economies of scale and greater use of specialisation.

14. As part of a wider Scottish Government initiative 'Making Justice Work' the COPFS has, in partnership with other agencies, been involved in a case preparation review project consisting of four streams including summary case preparation. This was a work in progress at the time of completion of our report.

15. In 2008 COPFS issued its response to proposed changes in summary justice. It highlighted the fact that less than 8% of cases which called at an intermediate diet proceeded to trial - "We are preparing for trials that never take place".

16. It founded on the successful reforms in the High Court (following the Bonomy Report) and aimed to extend and build on that approach namely 'front loading' of work and early engagement with the defence.

17. Reform was to be about changing behaviours and cultures and identified a number of areas of concern namely -

• Many defence lawyers not seeing their clients until the last minute
• Expectations that Fiscals will adjust pleas at trials because of poor drafting of charges, poor case preparation and non-attendance of witnesses
• Overloading of trial courts
• The perception that Fiscals are never available to discuss cases with the defence
• Fiscals not responding to correspondence or providing necessary information

18. As part of its contribution to reform COPFS would -

• Have relevant material (such as CCTV) available as quickly as possible
• Have staff, material and facilities at court to ensure that pleas could be resolved especially at non-trial diets
• Ensure that witnesses were not cited unnecessarily
• At an early stage indicate to the defence areas of evidence considered unlikely to be disputed
• Contact the defence proactively to establish their state of preparation for trial and ensure there was nothing further they required
• Ascertain from the defence before the intermediate diet what evidence could be agreed
• Revise the forensic science protocol

19. These were very laudable aims and most found their way into internal guidance for use by staff.

20. Against this background of reports and legislation etc the main aim of this inspection was to get behind 'headline' figures and look in detail at Procurator Fiscal preparation of summary cases. The aim was to identify any practices by the COPFS which were contributing to 'churn'. As part of that exercise we separated issues which were due to third parties' failure to provide essential evidence or information to the prosecution from issues which could be described as attributable to the prosecution.

21. The hope was that by identifying the relevant factors which were within the control of the prosecution and contributing to churn that better ways of handling the work could be identified and improvements made.