Thematic report on summary case preparation

420. We set out to look at the timeliness and quality of Crown preparation of summary cases particularly in the light of the problem of 'churn'.

421. In particular we wanted to examine cases to see whether and to what extent prosecution practice was contributing to the delay in the disposal of cases and what external factors affected the prosecution.

422. As the 'face in court' the prosecution has to be responsible for not only its own actions (or inaction) but that of others.

423. The overall conclusion is that there are factors within the control of the Crown which do contribute to inefficiency and churn but also there are actions on the part of third parties and sometimes both operate together.

424. There is no failure of policy, indeed generally policies have been put in place which, if implemented, would deliver in full on the Crown's obligations to summary justice reform.

425. The main reason for the policy/practice gaps we found was sheer volume of business, well beyond, for example in the case of intermediate diets, what was considered reasonable in the McInnes Report.

426. A resounding feature is the degree of co-operation that now exists among criminal justice partners, the 'silo' mentality is long gone although some tension may exist in the area of end to end targets where overloading of the court may assist in target achievement but at the expense of quality.

427. We are very conscious of the financial landscape in the public sector and the need for the Crown (and others) to prioritise. Not unreasonably a large commitment has gone into dealing with serious crime but this has been to some extent at the expense of the 'bread and butter' work in the summary courts. These courts are where the vast majority of the public as witnesses/victims will interact with the criminal justice system and influence their views.

428. We noted that the summary case audits set up in 2010 were suspended in 2011 as COPFS restructured into Federations. The prescribed methodology was said to be too cumbersome and time consuming. However, only with an understanding of how and why cases do not proceed as planned can COPFS learn lessons for the future.

429. We recognise the reality that more resources are unlikely to be provided in the short term. Some would argue that self assessment is too resource intensive. However for COPFS not to continually critically assess their own work is false economy. A proper analysis of the reasons behind failed prosecutions or poorer than expected outcomes should inform better case marking decisions and more meaningful liaison with the police and other reporting agencies about the quality of prosecution reports. This should lead to a more discerning approach to case marking where only cases with a reasonable prospect of success are taken up and where those not meeting that standard are rejected at an earlier stage. Such an approach would increase the public confidence in the prosecution system.

430. Strengths

• Policies which are comprehensive and designed for improvement
• Comprehensive in-house guidance available to all at the click of a mouse
• An IT system which although slow at times works and is capable of development with good links to partners
• Committed staff often willing to go the extra mile and who value the overall purpose of the organisation
• A willingness to engage with criminal justice partners and seek improvements with greater understanding of each other's problems
• Some local good practices
• Greater awareness of victim/witness issues including interpreters properly arranged

431. Weaknesses

• Overloading of the system (especially in the numbers of intermediate and trial diets) hinders proper preparation
• Arguably the concept of 'front loading' of all cases when only a small percentage go to trial. This does not suit large or complex cases.
• Late and inadequate legal review of cases between the pleading diet and the intermediate diet
• Multi-stage tasks can defeat the system

RECOMMENDATIONS

RECOMMENDATION 1

We recommend revision of the method of requesting productions on FOS to enable a tick box option against each listed production in the SPR.

RECOMMENDATION 2

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.

RECOMMENDATION 3

For clarity at the marking stage use should be made of only one method of suggesting to the defence what evidence could be agreed.

RECOMMENDATION 4

We recommend the creation of guidance in relation to reduction to summary clarifying what and by whom trial preparation is instructed.

RECOMMENDATION 5

We recommend that the Acceptable Plea position be retained but only 'in-house'.

RECOMMENDATION 6

We recommend more robust FOS audits be carried out to include trial preparation instruction.

RECOMMENDATION 7

We recommend discussions take place with ACPOS to encourage more recording of civilian witness availability.

RECOMMENDATION 8

Desk instructions should, if not available, be created and updated regularly.

RECOMMENDATION 9

We recommend COPFS measure target achievement in relation to witness citation.

RECOMMENDATION 10

Given its potential importance we recommend closer attention is paid to obtaining and disclosing previous criminal history records of witnesses.

RECOMMENDATION 11

We recommend the creation of a system to monitor performance on disclosure.

RECOMMENDATION 12

We recommend that efforts are made in liaison with Scottish Court Service to limit the number of intermediate diets to the recommended maximum of about 30.

RECOMMENDATION 13

We recommend the use of one standard method of recording administrative action for preparation of intermediate diets.

RECOMMENDATION 14

We recommend that a holistic legal review of the case should take place when full disclosure is made to the defence including proposals for agreeing evidence and a named point of contact.

RECOMMENDATION 15

Advance notice trials should be allocated only by legal staff and appropriate time allowed for their preparation.

RECOMMENDATION 16

We recommend that a system of self assessment be put in place as soon as possible to enable in-house assessment of the quality of decision making and subsequent process.