Thematic report on the management of time limits

Criminal reports

108. Chart 1^[72] illustrates the number of criminal reports received and cases placed on petition over the period 2011/12 to 2013/14:^[73]

Chart 1

109. The figures show a 6% increase in criminal reports received over the three-year period with the number of cases placed on petition increasing by 4%. Figures relating to the first six months of 2014/15 show a slight fall in cases received but a continuing trend of more cases being placed on petition.

Pre-petition cases

110. In addition to cases where proceedings have been commenced, there has been an increase in the number of cases categorised as 'pre-petition' cases. These are cases where it is necessary to undertake further inquiries to determine whether there is sufficient evidence to commence criminal proceedings and whether such proceedings are in the public interest.

111. In 2012/13 there were 590 pre-petition cases of which 81% contained charges of sexual crimes. This increased in 2013/14 to 747 cases of which 80% contained charges of sexual crimes. In the first six months 2013/14, there are 289 such cases of which 60% contain charges of sexual crimes.^[74]

112. The figures highlight the high percentage of pre-petition cases concerned with sexual crimes. Such cases entail detailed and extensive investigation and often numerous meetings with victims and essential witnesses. In many cases, it is necessary to obtain and review medical (including psychiatric and psychological records), education and social work records. These cases are often time-consuming and involve difficult legal issues.

Current workload

113. Over the last three years the number of petition cases actively being investigated and progressed at any time has steadily increased from 3,639 cases in 2012/13 to 4,207 in 2013/14 and to 4,951 in 2013/14, representing a 27% increase.^[75]

Performance targets

114. The published COPFS performance target for High Court cases is to serve 80% of indictments within nine months of first appearance on petition and for Sheriff and Jury cases to serve 80% of indictments within eight months. Chart 2^[76] illustrates COPFS target compliance for 2012/13 and 2013/14.^[77]

Chart 2

115. COPFS has to date achieved their published targets but at time of publication,^[78] while the performance target for Sheriff and Jury cases in the year to date is being achieved with 81% of cases being indicted within target, only 66% so far of High Court cases have been indicted within target.

116. There are a number of factors responsible for the recent decline in the performance of the High Court target:

• There has been an increase in the overall volume of serious crime reported by the police.
• Crime has become increasingly global resulting in more crimes being reported that transcend territorial boundaries.
• Solemn cases have become more complex with new sophisticated investigation techniques being employed to combat crime. With advances in science and technology, such as more sensitive DNA techniques there is increasing reliance on the use of forensic, telephony, IT analysis and CCTV footage evidence. Obtaining such evidence can be a lengthy process. In addition, when dealing with more serious cases, there is likely to be more input from expert witnesses such as psychologists, psychiatrists, medical practitioners and pathologists.
• Multiple-accused prosecutions, often with different time limits for different accused, are more common, as are accused persons with a number of cases proceeding simultaneously all with different time limit. The case study below is indicative of the complexity of managing time limits in multiple accused cases.

CASE STUDY

In order to understand the complex nature of some cases we reviewed a High Court case which involved five police reports that had been conjoined with multiple accused and multiple charges.

The background to the case was a fall out between two groups involved in the supply of controlled drugs. There were escalating tensions between the two groups culminating with a pursuit by one of the groups of the other group through various locations in Edinburgh which concluded with the shooting and murder of one of the group.

There was an extensive and protracted police enquiry which resulted in seven persons being charged and subsequently prosecuted at the High Court of Justiciary in May 2014 for a number of offences including contraventions of the Misuse of Drugs Act 1971, assault, contraventions of the Firearms Act 1968 and murder.

The accused were arrested and appeared at court on different dates and all were remanded in custody. The procedural history of each accused is detailed below. The first three accused were fully committed on the same day and therefore had the same 80th, 110th and 140th time limit dates. Accused 4, 5 and 6 appeared on petition at later and different dates from each other which resulted in four different sets of time limits.

Due to the complexity of the case and to enable the prosecution to prosecute all accused at the same time, COPFS sought an extension which was granted on 19/08/13.^[79] Accused 7 was apprehended at a later date and appeared on petition in December 2013. He was served with an indictment citing him to the same preliminary hearing and trial dates as the other accused.

• There has been a change in the profile of the type of cases being reported. In recent times, cases involving sexual crimes have come to represent the majority of High Court prosecutions. During the previous 18 months, cases involving sexual offences have constituted more than 50% of the overall COPFS High Court workload.^[80] In the North and East Federations, there have been some months where such cases have constituted more than 70% of their workload. The changing profile reflects the increase of sexual crime recorded by Police Scotland.^[81] In 2013/14 there was an increase of 12% from the previous year in recorded sexual crime including an increase of 23% in recorded offences of rape. More than one-third (36%) of the rape offences fell into the category of historic reporting.^[82] Such cases often involve multiple victims, some who come forward during the course of the investigation and often after a significant period of the time limit has expired.
• Taking the pre-petition cases into account, the investigation and preparation of cases of sexual crimes is disproportionate to any other category of crime being dealt with by the High Court hubs. This undoubtedly impacts on the resources within the solemn hubs.

117. By meeting the service of indictment targets, COPFS ensures that all cases are progressed within the time limits. Indicting within eight months for solemn sheriff cases and nine months for High Court cases provides a comfortable buffer to deal with any difficulties that may arise between indictment and trial. However, as the number of cases being indicted out of target increases, so does the risk.

118. An unintended consequence of seeking to meet performance targets is that cases within target are often prioritised over cases where the target has been missed resulting in those cases often being indicted close to the expiry of the time limit.

119. For example, in 2013/14^[83] of the 181 accused persons who were served with an indictment for proceedings in the High Court after the nine-month period, 55%^[84] were indicted within three days or less of the expiry of the time limit.

120. Part of the rationale for performance targets is to minimise the number of cases being indicted at a late stage. The greater number of cases indicted close to the time limit adds pressure to all those involved with High Court business and affords little margin for error or the unexpected.

121. From the perspective of managing time limits, it is preferable to minimise the number of cases indicted close to the time limit. To achieve that outcome and retain focus on cases which have not achieved the nine month target consideration should be given to introducing a new milestone to indict all High Court cases at least seven days prior to the expiry of the 10 month time limit for High Court bail cases. This should act as a backstop for cases that do not achieve the nine month target and build in a degree of resilience.

122. The introduction of such a milestone is likely to require, at least in the short term, additional resource for the HCU and the High Court hubs.