Thematic report on the management of time limits

How are time limits managed?

50. After an accused person has appeared on petition, the case is allocated to a case investigator in a specialised solemn hub in the relevant geographical Federation. The investigator is responsible for preparing the case for court, including instructing any further investigation required. Different processes apply to the preparation and management of cases depending on whether they are prosecuted at High Court or at Sheriff and Jury level.

High Court cases

51. Within Crown Office the High Court Unit (HCU) is a specialised unit that monitors and undertakes a quality assurance role for High Court cases. The HCU is notified by the Federation High Court hubs of all new cases likely to proceed in the High Court and allocates a date by which the case should be submitted for consideration to the Unit. In certain categories of case, an initial view on sufficiency of evidence and the likely forum^[61] for the case must be obtained from Crown Counsel prior to the accused appearing in court. For example, all criminal reports containing charges of sexual crimes are submitted to a specialist unit - the National Sexual Crimes Unit (NSCU) - for such an instruction.

52. Following a recent review, the format and preparation of High Court cases has been revised.

53. The most significant change is the introduction of an Investigative Agreement (IA) between an allocated Advocate Depute and the case investigator. High Court cases are time consuming and often complex. They can involve thousands of statements and productions. The IA is a "blueprint" for the investigation of a case. It sets out, at an early stage a strategy agreed between the case investigator and the Advocate Depute for the investigation and presentation of the case. It outlines the key matters of relevance to the prosecution, including the charges to be investigated with a view to prosecution, how those will be proven and how the evidence will be presented.

54. Prior to the review, only a minority of cases were considered in detail by an Advocate Depute at the start of the preparation of the case. As a consequence, the focus of the Advocate Depute was engaged at the later stages of the preparation of the case, often just prior to the case being indicted. The intention of early collaborative engagement is to prevent unnecessary work being undertaken and to avoid requests for additional work after the case is reported to the HCU, expediting the indictment process.

55. Once a case investigator has completed his/her work on a case, the case is submitted to the HCU. There is a team of specialised legal staff in the HCU who work with the case investigator to ensure that all evidential, legal and presentational aspects of the case are fully addressed. Each case is considered by Crown Counsel who make a final decision on whether the case should prosecuted, on what charges and in which forum. The time required to fully consider the case at this stage depends on the complexity of the case and other factors such as the number of accused and the number of complainers. To provide sufficient time to consider all issues in detail and allow a smooth through flow of work, cases should be submitted to the HCU by the date initially allocated to the hub. However, compliance with allocated submission dates is variable.

Identification and notification of High Court cases

56. The Review also introduced the "pathway document".^[62] This is an electronic living document created for every potential High Court case that is intended to capture the key milestones and processes in the life of a case in a single location.

57. As part of the process of populating the pathway document, each potential new High Court case requires to be notified to the HCU. The mechanism for this is the completion of the "Notification of new case to High Court Unit" section of the pathway document. The notification is completed by the SLM and submitted by email to the HCU. There are different timescales for submitting the notification depending on the nature of the offence, the likely timescale for any subsequent trial and whether the case has any particular sensitivities. In general, for custody cases it should be submitted within 7 days of full committal and in bail cases within 21 days of first appearance on petition.

58. As a management tool, to assist in ensuring that all High Court cases are intimated to the HCU, MIU provide regular reports to solemn managers highlighting cases that have been identified as High Court but where there has been no such notification. Despite frequent reminders being issued by MIU, action to remedy such oversights is not always prioritised within the hubs.

59. The benefit of the notification to the HCU of new High Court cases is that it provides an independent check of the progress of the case and the HCU can alert a hub to any case approaching its time limit. This independent check is a critical safeguard for High Court cases although it can only operate as such if the notification process is followed rigorously in each case and the proposed forum is correctly identified at the outset.

60. While both the HCU and the Federations monitor the progress of High Court cases, there is no formal reconciliation between the HCU and the Federations. Such a process would quickly identify cases that had not been notified to the HCU and would provide a check and reassurance that both the Federations and the HCU were fully sighted on all High Court cases.

Sheriff Court

61. Solemn cases in the Sheriff Court are prosecuted on behalf of the Lord Advocate by Procurator Fiscal Deputes. The procedures for dealing with Sheriff and Jury cases differ in some aspects from those prosecuted in the High Court.

62. Once an accused has appeared in court and the case has been identified as a potential Sheriff and Jury case, the case is allocated to a case investigator within one of the Federation Sheriff and Jury hubs. Unlike High Court cases there is no notification of the case to the HCU. The investigator produces an electronic document known as the Case Preparation Living Document (CPLD). The CPLD captures all the evidence and information gathered during the investigation and preparation of the case along with all key processes and recommendations. The recommendations are approved by the SLM.

63. At the conclusion of the investigation, the CPLD is sent electronically to the HCU in Crown office and reviewed by Crown Counsel. In most cases, Crown Counsel concur with the recommendation and the case is returned to the Sheriff and Jury hub to be indicted. However, there are some cases where Crown Counsel take a different view on forum and instruct that the case is prosecuted in either the High Court or the summary court or, indeed, that there should be no further court proceedings. Decisions at a late stage to prosecute in a different forum from that initially identified can pose difficulties.

Forum for prosecutions

64. There are a number of legitimate reasons why it may be appropriate to prosecute in a different forum. For example, it may transpire during the investigation of the case that the injuries sustained by the victim were more serious than originally understood and that prosecution in the High Court is warranted. Or investigation may reveal that the conduct of the accused was less culpable than had initially been indicated and that summary proceedings are more appropriate.^[63]

65. The reason that late decisions to proceed in a different court are problematic is primarily the different time limits that apply. In general, an indictment for a High Court case has to be served two weeks earlier than in a solemn sheriff case. In summary proceedings, there are certain statutory offences where the time limit is specified by law and runs from the date of the offence rather than the appearance of the accused at court. Common examples are offences under the Misuse of Drugs Act 1971, the Road Traffic Act 1988 and some sexual crimes.

66. The distinction between time limits that apply to the High Court and Sheriff and Jury proceedings will be removed following the implementation of the Criminal Justice (Scotland) Bill 2013 that was introduced to the Scottish parliament in June 2013. It will enact a number of provisions that flow from a report by Sheriff Principal Bowen^[64] making recommendations to improve the efficient and effective operation of Sheriff and Jury business. It includes a provision to change the Sheriff and Jury time limits to match those in the High Court. The alignment of the time limits will remove an unnecessary complication when dealing with solemn cases and simplify the movement of cases between the High Court and Sheriff Courts.

Change in character or circumstances of the offence

67. In an attempt to minimise difficulties arising from late decisions to alter forum, there are systems in place to clarify the appropriate level of proceedings at the beginning of the investigation:

• As noted, all reports containing charges of sexual offences are considered by NSCU prior to the accused appearing at court and an instruction on forum issued.
• There are a series of case marking guidelines and instructions designed to assist with determining forum for all other significant crimes.
• For other cases where there may be uncertainty regarding the appropriate level of proceedings, an abbreviated report can be sent to the HCU following the first appearance of the accused at court requesting advice on whether the conduct would justify proceeding in the High Court or the Sheriff Court.

68. It is not uncommon, however, to receive additional information during the investigation that changes the character of the case. For example, the police may obtain additional information from a new witness or the complainer that results in the offence or offences being viewed as being more serious than when initially reported. Developments in law can also have a bearing on the appropriate level of proceedings.

69. If there is a change of circumstances during the investigation, the different time limits in solemn proceedings can cause difficulties. In a recent case involving sexual offences, the initial instruction was to place the accused on petition with a view to prosecuting the accused in the Sheriff Court before a jury. During the preparation of the case, the police submitted additional statements containing allegations of a more serious sexual offence. The case was reported to the HCU at the completion of the investigation with a recommendation that case should be prosecuted in the Sheriff Court on the basis that there was insufficient evidence to prove the more serious allegations. However, taking account of recent developments in the law,^[65] Crown Counsel took the view that there was sufficient evidence to prosecute the more serious charges and that the prosecution should proceed in the High Court. The preferable course of action was to prosecute all of the offences together in the High Court. However, due to the expiry of the 10-month time limit to serve an indictment, it was not possible to prosecute the original offences in the High Court. The result, which was less than satisfactory, was to prosecute the accused in the High Court for the offences that were not time barred and to prosecute the remaining offences in the Sheriff Court.

70. Difficulties can also arise if it is decided that the circumstances of the case are not sufficiently serious to merit solemn proceedings and a decision is taken at a late stage to proceed on summary complaint. This is demonstrated by a case where the accused was originally placed on petition for drug offences on 17 December 2012 which were alleged to have been committed on 29 October 2012 with the expiry of the Sheriff and Jury time limit being 17 December 2013. After investigation, it was decided that it would be more appropriate to prosecute the case on summary complaint. A summary complaint was prepared and a court hearing was scheduled for 13 December 2013 prior to the expiry of the 12-month time limit. It was overlooked that the summary time limit runs from the date when the offence was committed and not from when the accused appears in court. As the offence had been committed on 29 October 2012, the proceedings were time barred and the case could not proceed.

Conjoining cases

71. Another area where difficulties can arise is when a number of cases for an accused are conjoined. It is not uncommon for accused persons to appear in court on different charges that relate to different incidents occurring on different dates. In such circumstances, the logical and most efficient course of action, subject to any legal restrictions, is to gather all outstanding charges into a single case. This enables all the charges to be dealt with at one trial. This is commonly referred to as "rolling up" cases. In doing so, the prosecutor must take care to ensure that the case proceeds in accordance with the charge with the earliest time limit. This is not always straightforward particularly if a period of time has elapsed between the cases or if the accused was granted bail on one case but remanded on another as in the case highlighted below.

72. The case commenced with the accused appearing on petition for a number of offences including allegations of assault and being remanded in custody. The case was subsequently indicted to a first diet and trial. The trial was adjourned on three occasions due to witness difficulties and on the third occasion the accused was granted bail. At that stage the relevant time limit reverted to 12 months after the date of the accused's first appearance at court.

73. On a subsequent date the accused was remanded in custody on a charge of murder. The charges on the previous petition were conjoined with the murder charge and an indictment containing all charges was served on the accused. During the proceedings, there was an application to the court to extend the time limit which was granted with the custody time limit that applied to the murder charge being extended. There followed a number of procedural hearings at the High Court at which the time limit for the murder charge was further extended. It was, however, overlooked that the time limit for the assault charges had a different expiry date and were not extended. Ultimately, the accused was found guilty of murder. The case does, however, highlight the importance of having an accurate record of the time limit that applies to each charge when conjoining cases.

Interruption of time limit

74. As noted earlier^[66] custody time limits are interrupted if a sentence of imprisonment is imposed on the accused, subject to the trial being commenced within 12 months of the first appearance of the accused at court. The general policy adopted by COPFS is to progress cases in accordance with the time limits that apply to the case rather than working to an extended time limit resulting from the imposition of a sentence of imprisonment. We agree with this approach. The interruption may provide the prosecutor with valuable additional time to prepare in a particular complex case. There are, however, potential pitfalls to guard against.

75. The time limit is interrupted until the earliest release date ("the ERD") from prison. The calculation of the ERD is the responsibility of the Scottish Prison Service (SPS). The ERD is essential to calculate any new time limit but we received feedback that there were inconsistent practices across the hubs in obtaining and recording such information. Some hubs seek written confirmation from SPS of the ERD whereas in other hubs there are more ad hoc arrangements. In most hubs the information is noted on the case papers or there is a note added to a note field on a spreadsheet rather than added to the case management system.

76. Recognising that there could be a more consistent approach to the provision and recording of such information, there has been recent discussion between SPS and COPFS to improve current practices.

77. The legal implications of a sentence interrupting the time limit also need to be understood. Time limits are only interrupted if an accused person is remanded in custody. In a case, where the accused appeared on petition and was granted bail and subsequently sentenced to a period of imprisonment, the time limit was erroneously re-calculated taking account of the intervening sentence. The error was not recognised until after the time limit had expired and the case could not proceed.

78. The above examples demonstrate the importance of accurate recording of time limits.

Recording of data

79. Within each of the Federations there are differing approaches to checking the accuracy and reliability of data. Given that the clock starts running from either the first or second appearance of the accused in court, it is critical that these dates are accurate. In the majority of cases the COPFS computer-based case-tracking and management system known as PROMIS is populated with these dates by the Scottish Court Service through an electronic transfer of information. Thereafter, PROMIS automatically works out the time limit. There are, however, some instances when the information does not transfer and the data is manually added by staff in COPFS taken from the handwritten court minutes. In some hubs, the data is checked using the SCS court enquiry database^[67] or certified court minutes. The SCS database is available to COPFS and provides an independent check on the procedural history and current status of cases.

80. We found hubs, however, where there is a lack of clarity on who is responsible for checking the accuracy and reliability of data. In many cases data is checked by more than one person at each stage of the process whereas in other areas it is assumed by the case investigator or administrative manager that the data is checked by others such as the SLM. There are also different tools used to calculate the actual time limits with some hubs using the electronic calendar on the COPFS intranet and others using electronic spreadsheets to populate the dates. Most electronic spreadsheets deduct a day from the correct calculation with the result that the calculation differs by a day depending which method is used, which is not helpful.

81. While there is no denying the effort solemn staff puts into monitoring time limits, the process of inputting, amending and monitoring requires to be underpinned by a standardised, streamlined, and systematic approach. The Appeal Court has held that administrative errors do not excuse failure to comply with procedural requirements^[68] and has emphasised the importance of scrupulous adherence by the Crown to such requirements, including time limits.^[69]

82. To provide certainty and clarity, as a minimum there should be a formalised check of the following data:

• Date of initial appearance (CFE) and appearance at Full Committal (FC);
• Information on forum - whether it is a High Court or Sheriff and Jury case;
• Calculation of the appropriate time limit applicable to each accused. Where the time limit is not automatically calculated by PROMIS, the electronic calculator provided on the intranet should be used to ensure that all staff are working to the same calendar; and
• Notification of new High Court cases within the pathway document.

83. All case files have the earliest time bar for the case highlighted on the front of the file and it is recorded on the pathway document and the CPLD.

84. What is not readily apparent is the following:

• The time limit for proceeding in the High Court for any cases considered borderline between Sheriff and Jury and High Court to ensure that there is sufficient time built into the process to accommodate a change of forum;
• Where appropriate, the summary time limit for any statutory offences; and
• Any amended time limits.

85. There are also different styles of Sheriff and Jury court folders. Some hubs include a specific page containing details of all relevant time limits whereas others simply incorporate the court minutes. Given that the intention of the CPLD is to provide a living document that is updated following all court hearings, the Sheriff and Jury court folder should be updated with a refreshed copy of the CPLD time limits sheet following each court hearing.

Tracking cases

86. In Scots law, an accused person is required to attend at a court within the jurisdiction where the crime was committed. There are 43 Sheriff Courts in Scotland. Within the new Federation structure, solemn cases are investigated and prepared in High Court and Sheriff and Jury hubs which are based in 13 locations. There will, therefore, inevitably be cases where the accused and prosecutor appear in a jurisdiction that is remote from the relevant solemn hub responsible for the investigation and preparation of the case.

87. In most areas, where the accused appears in a jurisdiction where there is no solemn hub, the practice is, following the court appearance, to physically transfer the case papers to the appropriate hub from the local Procurator Fiscal's office. In addition to the delay that arises from the transportation of cases - which was commented on by a number of people - the need to track the case files adds another layer of monitoring. This is illustrated by a case that had been identified as a potential High Court case and accordingly after the accused had appeared in court, it was anticipated that the case file would be sent to the High Court Hub. The file, however, was not received and on investigation, it transpired that it had erroneously been recorded as a Sheriff and Jury case and sent to the Sheriff and Jury Hub. While the error was quickly rectified, the case investigator lost valuable time in preparing the case, which is best avoided given the tight timescales.

88. We found that in some hubs, rather than transport the files the hub responsible for preparing the case compiled the case file from the electronic case system. This is achievable as COPFS now scans all relevant information pertaining to a case including the court minutes, into the electronic case file. The local prosecutor appearing in court simply printed the necessary documentation for the initial court appearance from the electronic system. In due course it is envisaged that the prosecutor in court will be able to retrieve this information from a tablet device.^[70] This practice avoids any delay through transporting papers and should minimise the capacity for any misunderstanding between the local office and the relevant hub.

Monitoring time limits

89. The consequences of failing to adhere to time limits have resulted in a strong focus on time limits within COPFS. This has led to a plethora of monitoring arrangements that are constantly being adapted and amended to take account of new requirements or new formats and has resulted in an ever expanding industry of differing forms of monitoring arrangements and the development of different management tools.

Management tools

90. Details of all criminal cases are entered onto PROMIS. The COPFS Management Information Unit (MIU) generates a series of reports from PROMIS at regular intervals and circulates these to managers to support their management of a number of processes/procedures. These include reports critical to the management of time limits, highlighting, for example, cases where a time limit date has not been entered, where there is no data to indicate if it is a High Court or Sheriff and Jury case and cases that have been identified as High Court but no notification has been sent to the High Court Unit. The purpose of these reports is to make sure that gaps and errors in information in PROMIS are corrected by administrative staff.

91. Data derived from PROMIS is also used to populate the COPFS Management Information Book (MI Book) which provides a range of management information in a readable format.

92. In addition, each Federation uses spreadsheets to record and track data for various purposes. There is, however, no uniform approach to monitoring time limits.

93. The need for fail-safe monitoring systems has, in the absence of a uniform national system spawned an industry of auditing and monitoring arrangements in the form of a variety of spreadsheets, check lists and reports using data from a variety of sources. Within different Federations and even in different hubs within the same Federation, information is collated from different sources and recorded in different ways and there are variations on the type of data that is being monitored. The monitoring generates a number of "health check" reports that are adapted for various management meetings. The collation of data for such reports demands a significant proportion of managers' time and often results in duplicate effort being expended at various stages of the progress of the case. In addition, the combination of some systems electronically calculating the time limits with others relying on manual inputting provides the potential for discrepancies and a risk of error.

94. Common to each Federation is that data is analysed on a regular basis at senior management meetings. The purpose of these meetings is to monitor the progress of cases, in particular those approaching the expiry of the time limit, to identify trends in solemn workload and to plan current and future business. These meetings are pivotal to the effective monitoring of solemn cases but clarity on the roles and responsibilities of those that attend such meetings and adequate contingency arrangements are essential as highlighted by the following case where the time limit expired prior to it being submitted to Crown Counsel for a final instruction. The case was dealt with as a potential Sheriff and Jury case. It had evidential difficulties that required additional investigation and work to be undertaken. Due to a combination of circumstances, including the absence of a key solemn manager at the time that the case was due to be reported, the case was not reported within the requisite time limit. Ultimately, it was determined that there was insufficient evidence for a prosecution but the investigation into the failure to adhere to the time limit exposed a lack of clarity regarding the role of various managers in monitoring workloads and adequate contingency planning to deal with unexpected absences.

95. Most senior management meetings use a combination of data sources, including MI Book, Federation spreadsheets and, for High Court cases, some derive information from a database complied by the High Court Unit. The meetings focus on a number of key indicators including the number of new petitions, cases that have not been allocated to case investigators for preparation, the number of High Court and Sheriff and Jury cases that are not indicted by nine months and eight months respectively and cases awaiting Crown Counsel's instructions.

96. In general, the regular reports circulated by MIU (referred to at paragraph 90) are not considered at these meetings, because they are regarded as part of the administrative process and so primarily read and dealt with by business or administrative managers. However, fundamental to an effective system is that PROMIS data used to populate the various reports considered at management meetings is complete and accurate. As a minimum, accurate information about custody/bail status and relevant time bars must be available. It therefore makes sense that the relevant MIU reports are considered as part of the indicators examined at the management meetings.

97. The reliance on different sources of management information arises, in part, because MI Book, at present, does not contain all the data necessary to provide a complete picture and, in part, due to a lack of confidence on the part of some managers in the reliability of data it contains/holds. Most hubs prefer to rely on their own spreadsheets, notwithstanding the attendant risk of human error.

98. The lack of confidence in MI Book is fuelled by a number of misconceptions regarding the availability of data there, reinforced by a lack of knowledge on the part of many managers of how to extract data from it. For example, it was often stated that the MI Book did not contain data on cases after they were submitted to Crown Office and that it was unable to distinguish between High Court and Sheriff and Jury cases after the accused appeared in court. Both these assertions are incorrect.

99. Such misconceptions have arisen due to lack of structured training on the use of the MI Book and to a lack of awareness of enhancements that have been made to it. Despite MI book being one of primary sources of management information, many solemn managers - both administrative and legal - said that they are not confident in using it and many expressed a desire for training.

100. Being able to extract data from a single source, MI Book, is the ideal solution. However, certain information relevant to time bar management, for example, data on the number of cases allocated to each case investigator, is not recorded in PROMIS and is therefore unavailable in MI Book. For that reason, even if deployed correctly in its present form, it is necessary to supplement it with other sources of information.

101. As we have highlighted, time-limit monitoring information is collated in a number of different ways, principally in spreadsheet format. COPFS staff are adept at compiling and using spreadsheets. Spreadsheets are accessible visual aids and are easy to manipulate to highlight particular strands of information. However, as we have also highlighted, a variety of spreadsheets is used across the Federations, some of which are populated automatically from PROMIS and some relying on manual input. To provide consistency and to streamline the existing processes, a standard time-limit monitoring spreadsheet should be developed for use across COPFS solemn hubs.

102. COPFS has, during the course of our review, recognised the limitations of the current time-limit monitoring arrangements and has commissioned a project designed to enable all time limit information to be stored in MI Book and populate a standard spreadsheet. The intention is that data input to PROMIS will automatically populate a standardised spreadsheet and, similarly, that data entered onto the spreadsheet will update PROMIS. The intended outcome is that all data in PROMIS and on the spreadsheets will be available in and easily accessible from MI Book. Data will therefore only need to be input once and the MI book will be the sole repository for all time-limit data. This will streamline the process and be a significant advance on current arrangements and so is an extremely welcome development.