Chapter 3 – Case Marking
33. One of the effects of summary justice reform has been the raising of thresholds for court action to be taken across the spectrum of options available to prosecutors. Increased use of alternatives to prosecution and changes to prosecution policy in relation to prosecution in the lower courts has meant a change in profile of the type of case now routinely prosecuted at Sheriff Summary level in courts around Scotland.
34. We observed a fairly consistent approach to decisions about appropriate forum with some slight variation in the Glasgow office where we found some quite serious cases prosecuted at summary level. We presume that to some extent this may be due to the existence of the Stipendiary Magistrates Court, where sentencing powers of magistrates are the same as that of Sheriffs, in effect creating an additional tier of prosecution options there. In any event, choice of forum was not part of our inspection and we simply comment to provide some context to our report.
Chart 2 - Reports Received - April 2008 to March 2012:
COPFS statistics show that since 2008/09 there has been an overall drop of 3% in total reports received (304,441 in 2008/09 to 295,452 in 2011/12).
35. In order to comply with joint criminal justice targets, reporting agencies are required to submit 80% of their reports within 28 days of caution and charge.
36. Thereafter the COPFS target for 'take and implement' a decision (about whether and how to prosecute) is 75% within 4 weeks of receipt of the Standard Prosecution Report (SPR).
37. The 'Normand Report' in 2003 recommended that criminal justice organisations set targets for overarching performance across the criminal justice agencies. In particular, looking at the efficiency of cases dealt with in court, Normand recommended an -
"overall time target for the duration or 'lifespan' of detected criminal cases, whether summary, solemn or dealt with by alternatives to prosecution"
38. Such a recommendation was implemented and, in respect of summary cases, there is a 26 week target of disposal of a case from caution and charge to the verdict in the case in 60% of prosecutions. Latest published figures on the COPFS website shows that this target was met comfortably.
39. As well as those 'standard' reports, COPFS receives more urgent reports regarding cases that must be dealt with more quickly. These are either -
40. These relate to those persons who have been kept in custody in terms of the criminal procedure legislation so that they must be brought to court on the next court day to face charges against them. Typically, therefore, these are persons charged with more serious offences (those likely to attract a prison sentence if convicted). These reports must be considered and marked by legal staff on the day of receipt to allow a case to be brought against the prisoner. These cases are therefore marked under quite urgent timeframes and pressures.
41. These relate to those persons whose offence comes within certain defined categories such as 'drink drivers', where a policy decision has been made that their prosecution will be fast tracked. Normally this means that the police release the accused who signs an undertaking promising to attend court at a specific date and time provided by the police at the point of liberation from police custody (normally within 28 days of liberation). Again as these reports are fast tracked they must also be marked within tight timescales and in any event before the specified court date provided to the accused.
The Standard Prosecution Report (SPR)
42. The development of Integration of Scottish Criminal Justice Information Systems (or ISCJIS for short) started in the 1990s and led to a standardised format for the reporting of cases electronically to the Procurator Fiscal. The format of electronic report, the Standard Prosecution Report or SPR was standardised in 2004. Aside from the police over 100 agencies report to COPFS. From 1 January 2006 they were all required to conform to the SPR format.
43. The current format as agreed between COPFS and police (and other agencies) is the SPR2. This standard report should always contain, inter alia, draft charges for prosecutors to consider, a summary of the evidence, an analysis of the evidence, a list of witnesses and a list of any productions seized by the reporting agency.
44. COPFS issues guidance to the police and specialist agencies outlining the technical requirements of the SPR2 format and quality standards expected in terms of the initial report and subsequent submission of statements and supporting material for trial preparation. These matters are covered in joint protocols and detailed guidance notes.
Initial Case Processing (ICP) - the 'case marking' stage
45. As previously indicated, the submission of the SPR2 is done electronically and the initial case marking or decision making is also done by legal staff electronically, using an IT programme designed for the process called FOS (Future Office System).
46. The legal case marker must read the SPR2 in FOS, decide whether there is a sufficiency of evidence in law for prosecution, whether it is in the public interest to prosecute and should consider whether the case can be associated with other cases reported and 'rolled up' into one prosecution file. In addition the Fiscal prepares and revises the draft charges and creates the legal document called a 'complaint' containing the charges and a schedule of any previous convictions where applicable.
47. For custody cases the Fiscal also considers whether bail should be opposed and provides detailed instructions on this and other matters such as referral to Victim Information and Advice (VIA) for victim support and special measures for giving evidence, where appropriate. Less commonly issues arise about mental capacity, possible deportation considerations for foreign nationals, seizure of property in anticipation of forfeiture and other legal matters.
48. All of this work is carried out on a computer screen and the Fiscal must switch between different screen views to read and amend (where necessary) any charges proposed by the police and then open up a series of checklists to create the documents and case instructions for the case proceeding in court.
49. The creation of trial preparation instructions involves opening a separate 'checklist' from a range of checklist options about the first calling of the case and bail considerations. This is not a mandatory step and can be missed as we discovered in a few exceptional cases.
Trial preparation - initial legal instructions
50. At this stage of the process the current practice is that the Fiscal should assume that there will be a plea of not guilty and should provide a full set of instructions for the case preparation in the event of a trial. This 'front loading' practice was introduced many years ago in an effort to reduce the 'double‑handling' of cases. Previously the practice was to mark in pen on the paper file any trial instructions only if and when a plea of not guilty was recorded. The theory behind this change was that the person marking the case should be satisfied as to legal sufficiency and therefore be in a good position to make a judgement about what witnesses would be needed and what additional material by way of productions were likely to be needed for the trial.
51. Detailed guidance is available on the COPFS Intranet for Fiscals outlining best practice in such trial preparation. We considered this guidance at each step of the process as we carried out our specific review of closed and live cases during our inspection.
52. Since the introduction of 'front loading' there has been a decrease in the number of cases being prosecuted (due to summary justice reform).
Chart 3 - Sheriff Summary Court Business - April 2008 to March 2012:
53. COPFS statistics show that since April 2008 to March 2012 there has been an 18% drop in cases dealt with as summary business (73,372 in 2008/09 to 60,418 in 2011/12). This demonstrates a continuing downward trend as noted in the Scottish Government report 'Summary Justice Reform - System Performance, Monitoring and Evaluation' which was published in July 2009. We also looked at data relating to the offices we visited and noted a downward trend in all eight. We noted inconsistencies in data kept by different Criminal Justice System users as noted in the Audit Scotland report.
54. Nonetheless, the proportion of cases being reported by the police as 'custody' or 'undertaking' reports has increased. Additionally, with advances in technology, many more cases have some kind of technical evidence such as audio, video, digital evidence or scientific or expert evidence. The proper instruction of such evidence is essential but we found it was not always done well.
55. In light of what we have said about the existence of so many reporting agencies and the variety of criminal conduct that the police report to COPFS it is difficult to provide an example of a 'typical' summary prosecution case. A 'one size fits all' approach to dealing with such prosecutions is not always appropriate, yet the systems and processes designed to deal with summary prosecutions are fairly standardised across the Service. It is our view that such an approach does not always serve the more complex cases very well.
56. We also observed that the number and variety of other considerations at the case marking stage, together with the fact that trial preparation is probably the least pressing concern (especially with custodies), may mean that less focus is given to trial preparation at this early stage.
Case review findings
57. The vast majority of cases had some trial preparation instructions. There were very few where there were no instructions at all. This was clearly an oversight which was generally picked up at an early stage and dealt with by administrative staff.
58. Where instructions were provided on the whole these were adequate and ensured that the necessary evidence was available for leading evidence at trial. We did find some instances of very good practice where the Fiscal marking the case had added helpful notes about case proof or matters that would need attention at a later stage down the line pre-trial and had anticipated the need for additional steps along the process.
59. Where there were no instructions at all we occasionally found some administrative action nonetheless. There were only a handful of these cases found overall and these omissions were very often picked up before any problems emerged.
Ordering full statements
60. There was almost universal appropriate requesting of full statements and, indeed, even where not instructed by Fiscals the administrative staff inevitably predicted the need for these and issued the request automatically. We are now aware of a proposed change in the administration process to make this an automatic step.
Marking witnesses for citation
61. In general we thought that the appropriate decisions were made about identifying the necessary witnesses to prove the charges.
62. In a small number of cases we took the view that the marking Fiscal had marked too few witnesses for citing. In one or two cases this was clearly down to simple error. In one of these cases the marking Fiscal had identified that a witness's evidence was probably capable of agreement and instructed that a letter be issued to the defence to this effect. The witness should have been marked for citing meantime and cancelled in the event that the evidence was agreed.
63. We did, however, find more than a few instances of marking too many witnesses for citing. Possible reasons were:
- In some cases lack of clarity in the SPR as to what witnesses spoke to what aspects of the evidence.
- We speculated that marking cases under extreme time pressures might lead to over-citing on a 'better safe than sorry' basis.
64. It seemed that there was more of a propensity to over-cite police officers. This was a finding in every office we reviewed although there was some variation between offices as to the degree that this was an issue. We looked at possible reasons for over-citing and concluded that the following were likely reasons:
65. Often police witnesses whose only involvement in a case was that they took the statement of a civilian witness were cited for trial. In some instances this would be good practice where it was anticipated that the civilian witness may not speak up and might have to have their original statement 'put' to them in the witness box and the content of that statement proved by the evidence of the police officer who took it. However, we did encounter cases where there was nothing to suggest such a problem might arise and the officer was nonetheless marked for citing.
66. In this connection we took note of a recent 'practice note' issued by one Divisional Fiscal in Glasgow that attempted to address this problem. In an effort to reduce citing police officers in potential 'reluctant witness' cases it was agreed with Sheriffs that Procurators Fiscal would not routinely cite the police officer concerned. In the event that a witness was reluctant and the police officer then required the Fiscal would make a motion to adjourn the trial to have the police officer attend court.
67. Either lack of confidence or lack of knowledge of the law of evidence as to the need for corroboration of police interviews. We encountered a number of cases where two police officers were cited when their sole involvement in the case was in connection with a police interview. In law there would only be a need for the terms of the interview to be corroborated (that is spoken to by more than one witness) when the accused displayed 'special knowledge' about the crime. Where no such 'special knowledge' was displayed the terms of the interview could be adequately proved with one officer's evidence. Indeed, there were many instances where we thought that the terms of a police interview or reply to caution and charge were likely to be unchallenged and were ripe for potential agreement.
68. We spoke to legal managers in the offices we visited and learned that some internal case audit had been undertaken, either in the form of case audit on FOS or by way of the Department's 'self assessment' programme. We learned that over-citing of witnesses (especially police witnesses) was a common finding in these monitoring exercises. We also saw some evidence of local training/awareness raising to address the issue which seemed nonetheless to persist. During the course of preparing this report COPFS suspended its 'self assessment' programme.
69. In this section we talk about 'productions' as documentary items and 'labels' as 'hard' productions, such as weapons, clothing, tools, property since this is the way they are described in court proceedings.
70. Generally cases with productions and/or labels were less likely to proceed smoothly than those without. While for the most part they were ordered appropriately for trial there were some cases where the initial instructions were not specific enough. We looked at the following factors to find the root causes of the problems:
- SPR listing of productions
- Method of instruction
- Productions that would need specific instruction to obtain
- Multi-staged processes for some productions (Forensic/CCTV)
- The need to consider disclosure
71. Procurators Fiscal rely on the police to accurately record the productions for a case, whether documentary or labels. We found that some police forces' practice was to lodge at the initial case marking stage certain documentary productions, described as 'case related documents'. These were not always recorded as productions on the SPR.
72. An additional matter of concern with 'case related documents' was that these were not always properly recorded in the Procurator Fiscal IT system as having been lodged at the Procurator Fiscal's office and that could lead to some confusion later down the line.
73. We thought that some consistency of approach by all reporting agencies about the way certain documents were described and listed would assist Fiscals in their trial preparation instructions. This may be something on which to seek some standardisation when police forces merge into a single force in 2013.
74. Sometimes the list of productions and labels in the SPR did not include all the items mentioned in the summary of evidence. This was most common in relation to CCTV evidence which we deal with in greater detail below. Because of the method of instructing the lodging of the productions (or labels) these items are sometimes missed and not lodged.
75. There are some 'tick box' options for certain types of productions commonly used in summary trials. The options cover many but not all of the productions needed. Aside from these specific options in FOS, there are two 'blanket' options which we found in our case review were the instructions most frequently selected. These are:
- Order immediate lodging of productions
- Order productions for court
76. The 'blanket' instructions would cover the items listed by the police in the SPR. However, if the document was not listed as a production by the reporting officer we found that these would not routinely be caught by the 'blanket' instruction relating to 'all productions'.
77. The 'blanket' instructions make the distinction between those that were to be lodged at the Procurator Fiscal's office straight away and those that were needed at court for trial.
78. In some instances the instruction to 'lodge at court' was inadequate for documentary productions. In our case review we found one or two examples of incomplete legal instruction about productions such as cheques or documents relating to frauds. We explain below how this is inadequate for disclosure purposes.
79. The option of 'order productions for court' might be more appropriate for 'labels' since storage of bulky items would pose some difficulties for many Procurator Fiscal offices. Occasionally we found an instruction that these items be lodged immediately with no obvious reason why this would be necessary. Again, apart from having the production to use to aid in the proof of the case at the trial, the Crown's disclosure obligations have to be considered. We learned during a previous inspection (knife crime) that some forces submitted photographs of knives or other weapons and Fiscals found such supplementary information useful for case marking (and disclosure).
80. We concluded that the tick box selection of a 'blanket' instruction for productions did not always suit the types of case being prepared. Best practice guidance suggests that in addition to ticking the box a note should be added to indicate which specific productions were being sought. We did not see any evidence of such specific instructions in our case review and thought that the 'tick box' format probably discourages such a bespoke approach, since the creation of a case note would be extra manual work by the Fiscal and certainly not an option for those cases with a large number of productions (of which we found many examples).
81. Police force case management units told us that a blanket instruction to 'lodge productions' would immediately be referred to the police production keeper who would know nothing about the case and check the SPR for the list of 'productions'. Some police case managers told us that Fiscals sometimes issued a request to lodge productions (either at the Procurator Fiscal's office or at court) when there were no productions listed on the SPR, creating extra work for the police in checking this out. This was borne out in occasional cases reviewed.
82. Best practice guidance suggests that formal police documentation need only be disclosed to the defence on request (and so presumably not requested from the police unless asked for by the defence). However, in light of the recent appeal decision in Cadder concerning the status of an accused person in police custody, the proof of legal status and provision of legal advice in custody has become increasingly important. We found in many of the cases we reviewed that formal police documents (such as detention, arrest or SARF forms) were not ordered at this initial stage of trial preparation, either because they did not feature on the list of productions or because the Fiscal did not 'tick' the specific box to request the named document from the separate suite of options. Indeed we found numerous examples of 'SARF' forms being requested later down the line when the initial request to 'lodge productions' meant that these formal documents were missed because they had not been listed on the SPR.
83. As reported by us previously (in Area inspection reports and Victim thematics) productions can present a real problem for the police, particularly in terms of storage and instructions for return. A method of providing Fiscals with the opportunity to give separate instructions per item listed could prompt earlier instructions to the police to return to owners where the property seized is of no value to the prosecution case. Sometimes an instruction to photograph before return or to return meantime and obtain an undertaking to produce at the trial can assist if there is doubt about an item's usefulness.
We recommend revision of the method of requesting productions on FOS to enable a tick box option against each listed production in the SPR.
84. This would mirror the way in which witnesses are selected for citation. Such an approach may be more time consuming (particularly in cases with large numbers of productions) but would, in our view, cut down on the confusion about what is to happen to productions that currently exists.
85. It was also stressed to us by police forces that they needed to know not only what productions were needed but also where they were to be taken. This was especially important for larger Procurator Fiscal's offices where complicated arrangements for productions were in place depending on the nature of the case and the type of production. For example, in one office Police Interview tapes were to be lodged in a different part of the office from CCTV discs which differed from documentary productions. If the instructions were not clear enough then the receipt and recording of such by Fiscal Office staff could be prejudiced.
86. Lastly, lack of instruction for medical records cropped up in one or two cases where there was an instruction to cite a doctor to speak about injuries without an instruction to also obtain medical records to which the doctor would need to refer in court.
87. A particularly common problem in custody reports related to productions or labels that officers were simply not able to seize before they finished their shift and submitted the SPR. Some reports referred to, for example, the existence of CCTV evidence and either advised it was still to be obtained or sought specific instructions as to whether this ought to be pursued and obtained.
88. All too often in such circumstances there was a confusing situation where the Procurator Fiscal simply issued the 'blanket' instruction for 'all productions'. This did not give the required direction to seize the item concerned and evidence was sometimes lost as a result of the poor communication.
89. Again, we thought that a revised format for ordering productions individually could solve this problem. It would be clearer to Fiscals that the police had yet to seize the item if it was not listed and ought to prompt Fiscals to issue a specific instruction to seize the item concerned.
90. One aspect of a pre-loaded case preparation instruction format is that it does not always lend itself to multi-stage processes unless the stages are set out clearly. In cases where 'multiple stage' instructions were appropriate we found that the necessary instructions were given for only the first step and rarely (at the initial case marking) for the later steps needed. FOS does not offer the option for 'follow up' steps. These have to be added in manually by Fiscals and were often missing from the instructions.
91. These issues were especially common in relation to forensic and CCTV evidence:
92. In some cases forensic work is undertaken before the police report is submitted. More often than not, however, no work is undertaken unless and until a Procurator Fiscal instruction is received by the laboratory. The appropriate time for such work to be undertaken would be on a plea of not guilty.
93. Where a scientific analysis is required a pro-forma application to the Scottish Police Services Authority (SPSA) must be prepared for the analysis to be carried out. In some offices local practice is that legal staff provide an outline of the instruction but leave administrative staff to carry out the form-filling whereas In other offices legal staff complete the full pro-forma detailing exactly what should be examined by the scientists and why.
94. Generally we found that the initial legal instruction, whether on a completed form or by way of notes followed later by administrative staff, appeared to be adequate.
95. Beyond the initial instruction for the analysis to take place we saw very little evidence of any instruction as to what should happen on receipt of the forensic report. There are formal evidential provisions in the criminal procedure legislation allowing for such reports to be admitted to evidence without the necessity of leading oral evidence from the scientists who carried out the analysis. For these evidential provisions to apply a copy of the report must be served on the accused at least 14 days prior to the trial. In our case review we found some instances of instructions to follow up on receipt of the report with instructions for service on the accused to allow for these evidential provisions to come into play. These, however, seemed to be the exception rather than the rule. We also expected to see instructions for the drugs or whatever was analysed to be lodged for court and again such follow up instructions were often absent.
96. In addition, in drugs trials where the allegation was of 'dealing' in drugs rather than the offence of simple 'possession', the Crown frequently relied on expert evidence from an experienced drugs squad officer. These are commonly referred to as 'statement of opinion' reports (or 'STOP' reports for short). Again, at the initial marking stage we found that not all cases contained the necessary follow up instructions on receipt of the forensic report to obtain such an expert opinion.
97. Some administrative staff did not seem to need additional instructions to carry out these extra steps themselves whereas in other offices the administrative staff would not know to do this and relied on step by step instructions. Local practices differed quite significantly in relation to the minute detail of how certain productions were ordered and how they dealt with them, in terms of record keeping of receipt, storage, service on the accused where applicable and any further action needed.
98. The explosion in the use of CCTV in both public places and in private settings has provided challenges for those in the criminal justice system in making the best use of such evidence in the context of criminal prosecution.
99. Again we noted that local practices and procedures differed quite widely between police forces. We were told that where the CCTV footage was captured on a 'public space' CCTV system operated by a local authority then police usually had little difficulty in obtaining access to the CCTV and obtaining the necessary copy of the footage.
100. We spoke to police officers in case management units in a number of police forces across the country. In Grampian, Lothian and Borders, Central and Tayside there were new arrangements in place or about to come into place for some CCTV footage to be lodged with the Procurator Fiscal's office at the time of submission of the SPR. In some instances police forces were trying to provide CCTV footage at the outset even with custody reports. Some courts provided viewing facilities 'in-house' for this.
101. In Strathclyde police force area (which was the force reporting to Procurator Fiscal offices in Glasgow, Paisley and Ayr) a protocol was agreed between police and COPFS for delivery of CCTV only on instruction by the Procurator Fiscal. The timeframes were dependent on the type of case. For summary cases where the accused was at liberty (either on bail or ordained to appear) delivery was to be within 14 days of request; for custody trials, within 48 hours of request.
102. We were advised that, even where CCTV had been lodged at the outset, there were such time constraints on legal staff marking cases that very few in practice would view at that stage. This was particularly so where the case was reported as a custody case. Much would depend on information in the report about what it was likely to show and how crucial it was to the proof of the case or the decision as to appropriate forum although we did find one case with a very helpful note to the effect that the CCTV had been viewed.
103. We heard that some forces were moving towards providing a fuller description of what the CCTV footage showed with precise information about timing on the footage, a description of the action shown and comment on the quality of the images which was welcomed by Fiscals. However, we also heard comments from some officers that due to their time constraints it was not always possible to provide such detailed information for custody reports.
104. Where not lodged with the initial police report the marking Fiscal would require to instruct that CCTV evidence be lodged. Here again local practice as to how this instruction was given varied. In Glasgow, for example, marking Fiscals completed a pro-forma document (similar to a forensic analysis request form) and submitted it to the Digital Forensics Unit of Strathclyde police as part of their case preparation at the marking stage. The instructions were to reformat the footage (copy onto another disc to play on the equipment available in court) or to simply lodge at the Procurator Fiscal's office along with a copy (or copies - depending on the number of accused) for disclosure purposes.
105. In the other offices we inspected the Fiscal marking the case would simply tick the option to 'order video tapes [and any certificates]'.
106. Additionally Fiscals should tick the option to order a certificate to cover the evidence of a CCTV operator, which would be of a formal nature, to be led without necessity of calling him to give evidence about the provenance of the footage. Again, as with the evidential provisions about forensic reports, we expected to see a further instruction that the certificate had to be served on the accused on receipt. In case review there was scant evidence of such follow up instructions.
107. The 'front loading' of trial preparation at the initial case marking stage was introduced many years ago, long before the Crown's obligations for disclosure became law in 2005. It was always good practice to prepare well in advance of the trial and to engage early with the defence where it appeared that issues were likely to resolve on presentation to the defence of certain evidence.
108. Good practice guidance advises that productions should be available for disclosure to the defence at an early stage, even as early as the pleading diet (first calling of the case). In practice the Crown always provides the defence with a summary of evidence on which the prosecution is based at the first calling. With the exception of the initiatives we have already described about getting CCTV from the police at an early stage, proactive disclosure of anything else at this early stage was rare.
109. Overall there seemed to be a lack of anticipation about what would be needed. In particular in those cases where the instruction to 'lodge productions at court' was given this would provide no facility for the Crown to copy the productions to the defence. In one case involving forgery and uttering of prescriptions, the instruction to 'lodge productions at court' meant that the prescriptions were not lodged with the Procurator Fiscal and not disclosed to the defence at an early stage.
110. Even where the production was unlikely to assist either party at trial, for example some CCTV footage which was neutral, there was sometimes a lack of anticipation of what the defence would need disclosed before engaging in meaningful discussions about the case. We thought that more could be done to anticipate the need for disclosure at the stage of ordering productions.
111. For 'labels' best practice guidance advises that the defence should be advised of the whereabouts of the items together with the name of a point of contact to make arrangements to view them. We found no evidence that this guidance was being followed in any of the Procurator Fiscal's offices we visited. Instead the practice seems to be to wait for the defence to ask to view an item. We thought that this could also be remedied at the marking stage with a more bespoke approach to each production with a decision to either have the item lodged at the Procurator Fiscal's office and copied for disclosure or an instruction to offer the defence viewing facilities at the police station (or elsewhere) and lodge at court for the trial.
112. Where Crown witnesses need an interpreter in order to give evidence in court it is up to the Crown to request an appropriate interpreter to attend the trial. The Crown rely completely on the police or other reporting agency to provide the information about language needs in the first place. We checked the files we reviewed for evidence that this practice rule was being followed. We found very few cases where this situation arose but where it did we found good compliance.
113. In terms of administrative action we could not find any record keeping on the IT system to confirm that the interpreter had in fact been asked to attend, although neither did we note any adjournments for lack of interpreting services so assume the interpreters were indeed requested to attend. It would be good practice for copies of the instruction to be saved on the case file on the IT system. We covered these issues in earlier reports on every office in the country in relation to race issues.
Instructing further enquiries about the case
114. In some cases further enquiries were instructed at the time the decision was made to prosecute. Inevitably the response to such enquiries would involve some further consideration by the Procurator Fiscal, whether in respect of additional witnesses to be cited, productions to be seized or viewed or at least to rule out any further work.
115. Here we observed some pockets of good practice where the Fiscal issued thorough instructions to the police or other reporting agency as to what additional information was needed and included a note to administrative staff to bring up the papers to a legal member of staff to cite anticipated additional witnesses or take further necessary steps. However, there were cases where such good practice was lacking. We found instances where additional instructions were properly given but without the necessary follow up instructions to ensure that case was reviewed by a legal member of staff and further necessary action taken.
116. One of the most common instructions for further action was where it was anticipated a (vulnerable or child) witness would give evidence in court with special measures such as behind a screen or in a remote site via CCTV to the court. Use of such measures means that the witness is unable to point to the accused in the dock and where identification is essential from that witness it is necessary to have identification proved by other means. Here an identification parade is often needed to establish proof of the identity of the accused.
117. There were two frequent flaws in the way legal instruction was provided in these types of cases:
- We found in some instances that the instruction was too vague for administrative staff to action so was left undone.
- Cases where the instruction was issued to the police appropriately had no follow up instruction to diary for receipt of the report of the identification parade and either to cite the additional witnesses needed to prove the essential matter of identity or to make arrangements to serve a copy of the identification parade report on the accused to take advantage of routine evidence provisions about its proof.
118. It seemed that, in the absence of a 'bring up' instruction for follow up work, complete reliance was placed on the next scheduled legal review. As we describe later this would be when the case was being prepared for intermediate diet. If that review was very near to the intermediate diet (often only a day before) then there was too little time for a proper review of the evidence and follow up work can be missed. We picked up at our live Intermediate diet observations that identification parades were often still to be held, or if held, the reports about the procedure and findings were yet to arrive.
119. We expected to see some mechanism in place to ensure that progress on the further enquiry was monitored by way of a diary entry ('bring up') to have the case reviewed in light of the reply. There is a mechanism available on the IT system to create a diary entry or 'bring up'. We examined the IT records for the cases we reviewed. It was common to find that administrative staff used a diary system to ensure that 'bring ups' were used to check progress of full statement requests, citation of witnesses, but NOT for requests for productions (including CCTV, forensic reports as well as the standard request to 'order immediate lodging of productions') or for further enquires such as identification parades.
120. Given that there is such a mechanism available 'bring up' instructions should be part of the legal case preparation.
In situations where action is required in various stages such as obtaining and serving forensic reports, CCTV evidence, identification parades etc the Fiscal should instruct a diary entry on FOS and clear instructions as to the follow up stages needed. Ways of achieving this more easily on the IT system should be explored.
Evidence capable of agreement
121. Another of the McInnes committee's recommendations was to restrict the number of witnesses attending and giving evidence at a trial to those essential and contentious. Three provisions of the Criminal Procedure (Scotland) Act 1995 deal with evidence not in dispute:
122. Section 256 - describing how admissions and agreements by one side are taken as agreed and proved without the necessity of leading evidence to prove them.
123. Section 257 - the duty on both sides in a criminal case to identify facts that are unlikely to be undisputed by the other party and in proof of which there is no desire to lead oral evidence. Both sides should seek to ensure that the facts are identified AND steps taken to agree are both carried out before the intermediate diet (more of which later).
124. Section 258 - the option to serve a statement of uncontroversial evidence on the other side where facts are likely to be undisputed by way of a formal notice served on and open to challenge by the other party (which challenge can, in certain situations, be overruled by the court).
125. Best practice guidance for case marking stresses the importance of prosecutors identifying any evidence capable of agreement at the marking stage but does not make clear how this evidence should be dealt with once so identified.
126. During our case review we observed two different methods used by marking Fiscals to indicate likely evidence for agreement:
- By ticking the 'EA' box at the side of the witness's name. 'EA' stands for 'evidence agreed'. This is misleading since, at the marking stage no approach has been made to the defence and therefore no evidence actually agreed. Where this method was used it simply recorded the view of the Fiscal depute but would not result in any action being taken by administrative staff to seek agreement.
- By ticking the option 'send s257 letter re witnesses (specify)'. Where this option was ticked then administrative staff should send a style letter to the defence. We only saw this being used in a couple of cases in one office reviewed and we wondered whether administrative staff were clear enough about the instruction since they did not action the instruction. Furthermore in one of these cases the Fiscal had failed to cite the witness in the first place so that, if not agreed, the evidence of the witness would be lost.
127. We found no use of the provisions of section 258 about statements of uncontroversial evidence.
128. In custody cases, particularly where there were child or vulnerable witnesses, we found a number of cases with notes for the Fiscal taking the first calling of the case to seek agreement about the identity of the accused so that special measures could be adopted (without the necessity of holding an identity parade to establish this). This was good practice. However, there was rarely a follow up instruction as to how to proceed in the absence of such agreement. Reliance was placed on verbal requests during the court hearing rather than use of the formal evidential provisions that would achieve the same result such as letters seeking agreement (s257) or statements of uncontroversial evidence (s258).
129. We thought that the host of other more pressing considerations required of Fiscals were such that the agreement of evidence was less likely to be the focus at the case marking stage. We describe in Chapter 6 how we believe that a more thorough case review is needed than is presently carried out in most of the offices we visited. We did wonder if by then a more focused approach to agreement, at a time when full statements, productions, CCTV OUGHT to be available might present a better opportunity to have that kind of 'trial' focus.
130. We therefore conclude that whilst identifying evidence capable of agreement is a worthy aim at case marking, in practice it is rarely done. Where the Fiscal is able to so identify evidence there should be one uniform method of alerting the defence of this at the earliest opportunity. We found that this was not achieved in practice in the cases we reviewed.
For clarity at the marking stage use should be made of only one method of suggesting to the defence what evidence could be agreed.
Reduction to summary
131. Until now we have focused on the cases that were marked at the outset for summary proceedings. Where proceedings are commenced on petition for solemn procedure (before a jury) there are times when, on review, the case is reduced to summary level. Very often the case will be reduced to summary after a review of the full statements, productions, and in some cases review of further enquiries such as forensic analysis, identification parade results or other matters. The information about the case in the Crown's possession is often much fuller than those cases initiated for summary proceedings based only on a summary of evidence provided by the police.
132. The Fiscal making that decision must create full instructions for the trial preparation as we have previously described. Where we reviewed cases in this category we noted that all the instructions about trial preparation were in handwritten notes on the 'backing sheet' of the papers, rather than in FOS. This was the practice at the time.
133. Despite having fuller information we found that such cases did not always fare any better in the system than those simply initiated from a summary of evidence. We picked up a couple of instances where we thought that better consideration of the evidence at the reduction stage and where the information was to hand, fuller disclosure at the time of reduction to summary might significantly reduce the problems encountered later with these cases.
134. Legal staff told us that there could be something of a 'silo' mentality between the solemn and summary units (especially in the larger offices). For the solemn team there are tensions between dealing with more serious offences in their own unit and taking the time needed to provide the necessary quality of case instructions for summary proceedings. This may well become more of an issue as different types of case work are spread over different geographical offices around the country under new 'federal' structures in COPFS.
135. We looked for operational guidance as to how to deal with cases that were reduced to summary and could find no specific guidance, either in the general case marking guidance or in the best practice guidance for summary casework. We considered that guidance might be helpful as to allocation of responsibility for the trial preparation instruction.
136. We also thought that revision of the letters to agents advising of the reduction to summary to include copies of whatever statements and productions were at that stage available for disclosure might all go some way to effectively progressing these types of cases. As we have said, all of this takes some time especially with complex cases that involve a number of accused or witnesses or productions.
137. Most of the cases reduced to summary did at least have an appropriate instruction that the case merited some advance preparation.
We recommend the creation of guidance in relation to reduction to summary clarifying what and by whom trial preparation is instructed.
138. As we outlined earlier the seriousness and complexity of summary case work in the Sheriff Court has increased in recent years. There is no standard summary case. It has long been accepted as good practice that some more complex cases are allocated to a legal member of staff in advance of the trial for additional preparation over and above what might be considered 'standard' trial preparation. In recognition of this there is an option for Fiscals to highlight the case for 'advance preparation'.
139. In our case review we found that for the most part cases were being appropriately identified as needing some extra preparation. However, it was entirely another matter whether and to what extent that 'advance preparation' was actually carried out as we discuss later in this report.
140. Plea negotiation has been an accepted and long-standing practice in all courts in Scotland. A pragmatic view that efforts should be made to have the case resolved effectively at the earliest opportunity without the necessity of proceeding to trial is one on which summary justice reform is based. Indeed without it the system would long since have collapsed.
141. One element of the new approach by the Crown in summary justice reform was the introduction of the practice of intimating to the defence at the earliest opportunity the 'acceptable plea' position, effectively advance intimation of the 'bottom line' in any plea negotiation. The aim was to reduce the number of late pleas at trial and encourage an earlier focus where resolution without a trial was likely. The acceptable plea letter makes it clear that the plea on offer - if not 'guilty as libelled' - is only open for acceptance until the intermediate diet. The Crown's policy is that by the time of the trial diet the reduced offer should be refused except in limited circumstances, where for example there has been a material change in circumstances.
142. In 2010 acceptable plea letters were the subject of an appeal and the court (Lord Hardie) commented:
"It might appear anomalous that a procurator fiscal depute should determine that it is in the public interest to take proceedings against an accused in respect of several charges while simultaneously advising the accused through his solicitor that he will not insist upon these proceedings, insofar as they relate to certain specified charges, provided the accused pleads guilty to other charges on or before a specified date. However the public interest in any particular situation doubtless involves the Lord Advocate or procurator fiscal balancing different considerations."
143. Best practice guidance advises that the position should be considered by the Fiscal, based on the state of evidence in the case from the initial police report, whether that is a guilty plea as libelled or some lesser adjustment to the charges libelled. The 'acceptable plea' position should be recorded by the Fiscal in the court instructions in FOS as well as in a letter for the defence drafted by the Fiscal and issued to the defence at first calling.
144. In terms of the processes involved we found that whilst most of the cases reviewed did have an acceptable plea letter in the case there was not always a corresponding note on the case instructions to this effect. The absence of a case note on the paper file could present a difficulty for the Fiscal in court.
145. In one or two isolated incidents we encountered discrepancies between what the acceptable plea letter stated as opposed to the recorded note by the Fiscal, also presenting potential difficulties.
146. Leaving aside the processes, however, we encountered strongly held views on the use of acceptable plea letter expressed to us by various parties.
147. Legal staff with whom we consulted ranged from the very experienced to some newer members of staff. It was almost universally agreed that the discipline of having to consider an acceptable plea position at the outset helped to focus on what might be a satisfactory outcome of the prosecution.
148. For less experienced staff it was thought that having a note from a more experienced colleague who marked the case as to the acceptable plea position was helpful.
149. The consensus view from legal managers with whom we consulted was that it was likely to be of most assistance to a Fiscal in a busy custody court where there was little time to read the papers in advance but that it was not always necessary. It was a good idea in principle but had some drawbacks in practice.
150. Sometimes it was difficult at the marking stage to be confident of a 'bottom line' and since the letter is binding on the Crown some Fiscals worried that they would prejudice the Crown's position by setting out too weak a plea at the outset. Many opted for the safe option of 'guilty as libelled'.
151. In our case review we thought that some acceptable pleas could be described as 'unrealistic' and could be counter-productive to early effective resolution.
152. From a defence perspective we were told by one agent that he considered them a complete waste of time - "not worth the paper they are written on" - and invariably threw them in the bin. Another agent in the same jurisdiction thought it was useful to know the Crown's position at custody hearings. Others thought that they were used by less experienced Fiscals in court as an excuse for avoiding meaningful discussions.
153. The efficacy of the acceptable plea offer is dependent on the attitude of the defence. Some Fiscals bemoaned the fact that defence agents either completely ignored the acceptable plea letter or took the acceptable plea position as the starting point for negotiation. It was felt that the Crown were simply 'lowering the bar' at the outset in summary cases and there was doubt as to whether the early offer on the table from the Crown did achieve its intended aim.
154. A number of defence agents commented that a named contact and telephone/email address in order to facilitate discussions would be helpful. We have seen local guidance in some offices to the effect that Fiscals should provide a contact name and number on the 'acceptable plea' letter. We did not notice any examples of such information being provided (although we were not specifically looking for this) but we did note that the terms of the template for 'acceptable plea' letter available in the IT system was not set out in terms to provide such information and would require to be manually amended. We address the matter of communication between defence and Fiscals later in Chapter 6.
155. Many agents complained of a perceived lack of discretion, particularly in cases where there was a firm prosecution policy such as in domestic abuse and racially motivated crime (both policies which the Inspectorate in other reports has strongly supported). They told us that they preferred to have a discussion with a Fiscal who was willing and able to take a decision based on the evidence available and that Fiscals should use their discretion rather than feeling tied to an apparently inflexible position to which they appeared to be constrained to adhere.
156. We conclude therefore that this innovation by the Crown has had mixed results. Internal communication of an acceptable 'bottom line' between Fiscals seems to be a helpful addition to the case notes. However, there is less evidence that communication of that position to the defence at the outset actually promotes the early case resolution it is intended to achieve and in some cases, we suggest, may have the opposite effect.
We recommend that the Acceptable Plea position be retained but only 'in-house'.
157. Before we leave this chapter on initial case marking we should mention the facility to audit cases at the initial case marking step by use of an audit tool in the FOS IT system.
158. We canvassed views from some of the legal managers around the country about their practice in reviewing cases at audit. There were differing approaches. A couple of managers indicated to us that it was their practice to review the choice of forum and check that the charges were properly drafted in FOS audit but would not look at the instructions for trial preparation at this audit. Others claimed to review all aspects of the marking work including the trial preparation work. In one office we learned that FOS auditing was not being undertaken at all due to the resource intensive nature of this monitoring. It was impossible to tell from the IT system, even where the audit had clearly taken place, to what extent the case preparation element had been reviewed.
159. In line with Government policy COPFS introduced a form of self assessment. This was limited to examining certain aspects of case work and was drawn up by the Strategy and Delivery Division (SDD). The practice was to carry out 10 monthly audits every year and embedded as a standard job objective of legal managers and to take effect from May 2010. It has since been suspended. It should have been operating in the 8 offices we visited at that time. One office had done none, in another only one month had been attempted and in the other 6 there was at best partial attempts at completing this. We understand COPFS is considering its position in the context of Federation working.
160. This meant that apart from the FOS auditing referred to above little was done to monitor performance issues and learn lessons.
We recommend more robust FOS audits be carried out to include trial preparation instruction.