Thematic report on the Victims' Right to Review and complaints handling and feedback follow-up report

Effectiveness of Review

29. We found that the applications in the ten cases where the decision was overturned had been carefully considered.

30. In seven, the reviewer sought additional information including; further information from the prosecutor who made the initial decision; statements, productions, ^[22] information from the police and other agencies; CCTV evidence; and medical updates.

31. The provision of additional information, in some cases, resulted in the decision being overturned as illustrated in the case study below.

A VRR application was submitted regarding a decision not to prosecute an allegation of assault.

After considering the information provided in the application and, in particular, the impact of the crime on the victim, the reviewer requested:

Medical reports on the injuries sustained by both parties (the case involved a counter allegation of assault); statements from all witnesses; information on the availability of witnesses, some of whom did not normally reside in Scotland.

Taking account of the new medical information and eye witness accounts, the reviewer overturned the original decision concluding that a prosecution was in the public interest.

32. The finding that 18% of cases reviewed in our sample were overturned is reassuring and provides confidence that the VRR process is effective and providing access to justice for victims.

Key Finding

The VRR process was robust with reviewers overturning decisions where they found the initial assessment of sufficiency and/or the public interest to be incorrect or unreasonable.

Quality of the VRR Process

Key Finding

Of the 57 applications examined, we found 91% (52) were conducted independently, thoroughly and to a high standard.

33. There were five cases where we identified areas for improvement:

• In two, the review did not address all of the issues raised or information provided by the victim. One application referred to other allegations regarding the same accused and the other raised the possibility of a potential witness. Neither response alluded to the information provided. Although the information may not have altered the outcome of the review, failure to pursue all lines of inquiry or to explain why they may not be relevant is likely to result in a lack of confidence in the robustness of the decision-making.
• In one, the reviewer overturned the initial decision not to prosecute but, erroneously thought that the charge was time barred ^[23] for prosecution on indictment resulting in the case being prosecuted on summary complaint.
• In one, involving a sexual crime, there was no reference to a potential source of evidence in the original decision-making or during the review indicating that it had not been taken into account.
• In the remaining case involving a number of sexual crimes, the law relating to crimes that had taken place outwith Scotland was misapplied and not considered during the review.

34. The two cases, referring to sexual crimes, highlight a potential area of risk. As both cases were considered suitable for summary proceedings the review was conducted by a member of RIU rather than Crown Counsel in the National Sexual Crimes Unit (NSCU) or by an accredited member of a specialist sexual crimes team, ^[24] who would be more familiar with recent developments in law regarding proof of sexual crimes, including the ability to lead evidence of crimes that took place outwith Scotland. ^[25]

35. This raises the question of whether in specialist areas of law, the reviewer, in addition to being independent, should also have the relevant specialist knowledge, experience and skill sets to conduct the review.

36. The CPS VRR process provides that reviews of decisions made by prosecutors in their Central Casework Divisions, dealing with more complex areas of the law such as counter terrorism, election offences and frauds, are conducted by a different specialist prosecutor from that area.

Key Finding

Specialist areas of law require the reassurance of a specialist undertaking the review.

37. Increasing complexity in certain areas of law, including sexual crimes, health and safety law, and the investigation of deaths, has resulted in the development of a number of specialist teams within COPFS. To provide robust and effective reviews, VRRs relating to specialist areas of law, including sexual crimes, should be reviewed by prosecutors with the relevant skills and expertise regardless of whether the offence(s) is likely to be prosecuted at solemn or summary level.

Recommendation 3

COPFS should ensure that reviews, involving specialist areas of law, including sexual crimes, are conducted by a prosecutor with the relevant specialist skills and expertise regardless of whether the offence(s) is likely to be prosecuted at solemn or summary level.

Notification of Decisions

38. While all victims are entitled to seek a review of a decision to take no action or to discontinue proceedings (subject to exceptions listed in the Lord Advocate's rules), there are, however, different policies that apply to how/whether decisions not to prosecute or to discontinue proceedings are notified to victims. The policy differs depending on the category of the offence.

39. Notification of the decision must always occur in solemn cases falling within the VRR scheme. However, summary cases fall into two categories, only one of which requires notification of no action decisions.

40. The three categories/processes are outlined below:

• Solemn cases – No action decisions must be notified to the victim who must be given reasons for the decision along with details of their rights to information and to request a review of the decision. This can be communicated by letter or if there has been prior contact with the victim by a phone call or at a meeting or in accordance with any victim strategy. ^[26]

  No further action decisions must also be notified in a manner consistent with any previous communication with the victim. If the decision to discontinue is made at court, where possible, the decision should be explained directly to the victim and they should be advised of their right to request a review. If it is not possible to speak to the victim at court, VIA should intimate the decision to the victim in accordance with instructions provided by the prosecutor.

• Summary cases requiring notification – This encompasses all cases falling within the Victim Information and Advice (VIA) service remit and cases of football and knife crime where there is a victim. The category of cases within the VIA remit is set out at Annex B. 

• Such cases are referred to VIA officers in the local offices who forward the referrals to the VIA officer at Enquiry Point ^[27] who notifies the victim of the reasons for the decision along with details of their rights to information and to request a review of the decision. Notification will generally be made using template letters unless the case is reported with the accused in custody ^[28] or as an undertaking, ^[29] in which case the victim will be contacted by phone.

  No further action decisions in these cases are notified by VIA in the relevant local Procurator Fiscal (PF) office. If the decision to discontinue is made at court, where possible, the decision should be explained directly to the victim and they should be advised of their right to request a review. If it is not possible to speak to the victim at court, VIA should notify the decision to the victim in accordance with instructions provided by the prosecutor.

• Other Summary cases – If the decision to discontinue is made at court, where possible, the decision should be explained directly to the victim and they should be advised of their right to request a review. If it is not possible to speak to the victim at court, the prosecutor should arrange for notification to be made to the victim.

  Unless the victim is considered vulnerable in terms of the VIA remit, there is no notification of decisions to take no action.

  Such cases can encompass a wide spectrum of offending behaviour, including:

  • Assaults – including those with serious injury
  • Offences involving dishonesty – including frauds and embezzlement
  • Public disorder offences
  • Road traffic offences including dangerous and careless driving where someone is injured
  • Dangerous dogs offences

Instead, the onus is placed on victims to enquire what has happened with their case.

In absence of notification of decisions not to prosecute victims are made aware of their rights by the following means:

• On making an initial complaint, they are provided with a Victim Care Card (VCC) by the police. The VCC provides an incident reference number and refers them to the Scottish Government's Victims' Code ^[30] where they can find details of their rights as a victim.
• The Victims' Code sets out minimum standards of service that victims and witnesses should expect from the core criminal justice agencies, including the right to be told the reasons why a victim's case is not prosecuted and to request a review of the decision from COPFS.
• The COPFS website (at the victims and witnesses section) provides information regarding the VRR scheme, including the Lord Advocate's Rules and an application form for requesting a review.

The COPFS approach to notifying decisions not to prosecute or to discontinue proceedings differs and is less inclusive than in the other UK jurisdictions.

CPS Approach

41. While the VRR scheme operated by the CPS excludes some regulatory offences, notably offences of careless driving, all victims of recordable offences ^[31] receive intimation of decisions not to prosecute. This is undertaken, in most cases, by the prosecutor emailing a standardised form to the police providing; the reason for the decision not to prosecute; what the victim should be told; any relevant time limits and a timescale for advising the victim. The police will then notify all decisions within five days or 24 hours if the victim falls within the definition of an enhanced victim. ^[32]

42. For more serious offences or where a decision is taken post charge to discontinue the case, the prosecutor will write to the victim providing detailed reasons for the decision and advising of their right to review.

PPSNI Approach

43. Likewise in Northern Ireland, all victims, with the exception of some minor road traffic offences, are told of decisions not to prosecute. Prosecutors advise staff within the Victim and Witness Care Units (VWCUs), ^[33] via an automated electronic system, who in turn write to victims informing them of the decision, the reasons and their right to seek a review. For more vulnerable victims, the police or an identified third party may notify the victim directly and for more serious offences detailed reasons for the decision are provided by the prosecutor and a meeting is offered.

Case Review

44. We found that victims were notified of the decision not to prosecute in 68% (39) of the applications.

Impact of Lack of Notification

45. To ascertain the impact, if any, of the lack of notification of the decision not to prosecute, on the right of review we examined the 18 applications where there was no notification of the decision.

46. Of the 18, there were 14 where the original decision was upheld and four where the decision was overturned. The cases encompassed a wide range of criminal offences some of which were relatively serious in nature, including an assault to permanent disfigurement and high value thefts/frauds. In addition, some of the offences had had a considerable impact on the victims involved. We identified the following patterns/trends:

• In nine, in accordance with COPFS policy, the victims should have been notified of the decision. In four, the victim was not advised of a decision to discontinue proceedings and in five, there was no referral to VIA even though they fell within the VIA remit; one was a solemn case and four qualified under the older persons' policy;
• In six, there was a delay in the VRR being submitted ranging between three to ten months. In two, the delays were compounded by statutory time limits that applied to the offences. ^[34] In four the victims were not advised of the decision not to prosecute even though they had been in contact with the PF office.
• In the remaining three, no issues were identified as a result of the lack of notification. However, one victim had worked in the criminal justice sector and would have a greater awareness of how to obtain information and another had been independently informed by the police of the no action decision.

Key Finding

There is a correlation between victims not being notified of decisions not to prosecute or to discontinue proceedings and delays in VRRs being submitted.

47. Any period of delay can adversely impact on:

• the operational momentum of investigations, particularly if new information is provided in the VRR – investigations characterised by lengthy periods of inactivity run the risk of becoming fragmented and lacking continuity; and
• the confidence and well-being of victims.

48. The COPFS VRR guidance is silent on who is responsible for notifying victims of a decision to discontinue proceedings in summary cases that do not fall within the VIA remit. This may account for the failure to notify the four victims referred to in the first bullet point above.

Recommendation 4

COPFS should clarify who is responsible for notifying victims of any decision to discontinue proceedings in summary cases that do not fall within the VIA remit and reinforce and embed existing policies regarding notification of decisions not to prosecute and to discontinue proceedings.

VIA Remit

49. Of the 28 summary cases we examined, 12 fell within the VIA remit.

50. Following a recent review of COPFS prosecution policy, there is the possibility of more serious offences, including aggravated assaults, ^[35] being prosecuted summarily.

51. Given the profile of cases prosecuted summarily, including some quite serious offences, and cases where statutory time limits apply, ^[36] the policy of not notifying all victims of decisions not to prosecute has the potential to deny victims access to an effective remedy, in the form of a prosecution, if the decision is overturned.

Key Finding

The optimum approach would be to notify all victims of decisions not to prosecute.

52. Notifying all victims of decisions not to prosecute has resource implications and, unlike England and Wales, the option of the police assisting with notification is not available. In the longer term, it may be possible to utilise IT solutions – perhaps through the provision of information on the status of cases via a witness portal ^[37] using a unique reference number.

53. We acknowledge, in the current climate of budgetary restraint, the rights and expectations of victims require to be balanced with a proportionate response. If notification to all victims is considered prohibitive, in light of the recent review of COPFS prosecution policy, we advocate that COPFS should undertake a corresponding review of the categories of cases included in the VIA remit to assess whether they remain appropriate. For instance, offences that previously normally gave rise to solemn proceedings, such as aggravated assaults, may merit being included, regardless of whether they are prosecuted in summary or solemn proceedings.

Recommendations 5 and 6

COPFS should work towards a system of notifying all victims of decisions not to prosecute, whether through the use of IT solutions or otherwise.

COPFS should undertake a review of the VIA remit to assess whether it remains appropriate following the prosecution policy review.

Time Limits

54. In solemn proceedings, time limits regulate the maximum length of time that can elapse between the first time a person appears in court charged with an offence and the start of their trial on that charge. Different time limits apply depending on whether an accused person is in custody or on bail.

55. In summary proceedings, if a person is remanded in custody, the trial must commence within 40 days of first appearing in court. ^[38] In addition, there are some statutory offences where proceedings must commence within six months after the date of the last offence. ^[39]

56. The end of the time limit is commonly referred to as the "time bar." Annex A provides a more detailed explanation of the law and procedure applicable to solemn and summary time limits.

57. The responsibility of complying with statutory time limits, which are among the tightest in comparable jurisdictions across the world, rests with COPFS.

58. On applying for a review of a decision not to prosecute, the desired outcome is to have the decision overturned and the offence prosecuted. If the statutory time limit has expired, this option is not available, unless the prosecutor has grounds to seek an extension of the time limit. To seek an extension, the prosecutor must show sufficient cause and demonstrate that it is in the interests of justice. ^[40]

59. In the absence of grounds to seek an extension, to preserve the option of prosecution, in the event of the original decision being overturned, COPFS requires to consider whether there are any applicable time limits on receipt of an application and, if so, ensure that they are prioritised and fast-tracked.

Case Review

60. Of the 57 VRR applications reviewed, we found nine applications where time limits impacted on the review.

61. Of these, five concerned solemn proceedings and four summary proceedings. They covered a range of offences including sexual crimes, road traffic offences and culpable homicide. Five applications concerned a decision to discontinue proceedings and four related to a decision not to prosecute.

Discontinued Cases

62. In all five cases, the accused had been placed on petition and appeared at court, activating the solemn statutory time bar.

63. Of the five cases:

In four, the decision to discontinue proceedings was upheld:

• In two of these cases, COPFS actively managed the review process – fast‑tracking the review to ensure any decision was taken prior to the expiry of the time bar for serving an indictment – as demonstrated in the case study below.

  The accused appeared on petition for a sexual crime. A decision had been taken not to prosecute a charge of rape. Aware of the approaching time bar, the specialist sexual crimes team contacted the victim to advise her of the decision and ascertain if she wished to submit a VRR. A VRR application was received 11 days before the expiry of the time bar for the service of an indictment.

  Recognising the urgency to review the decision within the statutory time limit, the prosecutor in the sexual crimes team liaised with RIU, Crown Counsel and the High Court Division to fast-track the VRR. The VRR was considered by Crown Counsel within five days of receipt.

  While the original decision was upheld, if the decision to discontinue the charge had been overturned, the fast-tracking of the review would have enabled COPFS to timeously serve an indictment.

• In one, the review was completed before the expiry of the time bar, although there was no evidence of the review being fast-tracked.

• In one, the review was not finalised until after the expiry of the time bar. Had the review concluded that the decision not to prosecute should be overturned, the only remedy would have been an apology.

64. In the remaining case although COPFS wrote advising the victim that proceedings had been discontinued, the victim did not receive the letter and only became aware of the decision on contacting the office for an update. As a consequence, the VRR was received after the expiry of the time bar. The outcome of the VRR was to refer the case back to the local PF office to reconsider the original decision taking account of productions that had become available. If the decision is to re-raise criminal proceedings, the charge will require to be prosecuted on summary complaint.

Decisions Not to Prosecute

65. All no action decisions that were impacted by time limits involved cases that would normally be prosecuted in the summary courts.

66. As explained, in summary proceedings, certain offences require to be commenced within six months from the date of the last offence. This can cause difficulties for the VRR process as illustrated in the case study below.

Following an extensive investigation, the police submitted a report containing a contravention of the Dangerous Dogs Act four months after the date of the offence. The decision not to prosecute, due to insufficient evidence, was notified to the victim who submitted a VRR application containing additional information, which if accurate, would have provided sufficient evidence. Unfortunately, the charge was time barred prior to receiving the VRR and the offending conduct could not be prosecuted using an alternative charge.

67. The difficulties caused by statutory time limits are compounded by a lack of notification of decisions not to prosecute for victims that do not fall within the VIA remit as evidenced by the following three cases:

• In a case involving, among other charges, a charge of careless driving, the victim was only made aware of the decision not to prosecute when they contacted COPFS for an update, resulting in the VRR being submitted within days of the expiry of the time bar.
• Similarly in a case involving the statutory offence of vandalism, the victim was only advised of the decision not to prosecute when they contacted the PF office seeking an update, resulting in the VRR being received just before the expiry of the time bar.
• In a case involving a statutory contravention of s127 of the Communications Act 2003, the lack of notification of the decision not to prosecute resulted in the VRR being submitted after the expiry of the time limit.

68. In some circumstances the prosecutor can use an alternative offence if a statutory time bar has expired. For example, the reviewer overturned the decision not to prosecute the careless driving charge, discussed above. While the careless driving charge was time barred, in the particular circumstances, the conduct was prosecuted as a statutory breach of the peace, ^[41] where time limits do not apply.

69. The original decisions were upheld in the other two cases but had they been overturned the prosecutor would have had to consider whether alternative charges such as malicious mischief or a breach of the peace were suitable.

70. While the option of using an alternative charge may be available in some cases, it is preferable to use the charge that best fits the circumstances. The inability to prosecute some statutory charges may also impact on the penalties available to the court on conviction. For example, the inability to prosecute road traffic offences may exclude the accused's driving licence being endorsed or a period of disqualification being imposed.

71. Given the six month time limit that applies to many statutory offences, even where there is notification of decisions not to prosecute or to discontinue proceedings, the timescales for dealing with any VRRs are extremely tight.

72. To mitigate the risk posed by the combination of a lack of notification and the time limits, applicable to many summary offences, we advocate that COPFS should undertake a review, to identify offences involving victims and where there is no suitable alternative charge, with a view to extending the notification of decisions not to prosecute to such offences.

73. One such category which featured in our case review was Dangerous Dogs Act contraventions, where there is little scope for using an alternative charge. We heard also from those conducting reviews that it is not uncommon to receive a VRR in relation to such offences.

Recommendation 7

COPFS should undertake a review to identify all summary offences, involving victims and a statutory time limit, where there is no suitable alternative charge, with a view to extending notification of decisions not to prosecute to such offences.

74. We found reviewers were aware of the need to prioritise cases with statutory time limits. RIU has recently issued guidance highlighting the importance of identifying any time bar issues on receipt of a VRR and, if applicable, processes to be implemented to fast-track such reviews.

75. We found evidence, however, of a lack of awareness within local PF offices of the importance of identifying VRRs and the need to transfer them to RIU without delay. ^[42] Increasing awareness may be achieved by incorporating a section on VRRs in existing COPFS training, for example, the Managing Time Limits training module or through issuing a summary of key obligations and duties imposed by VRR, with examples of good practice.

Recommendation 8

COPFS should raise awareness in the Procurator Fiscal Offices of the importance of identifying requests from victims to review decisions not to prosecute or to discontinue proceedings and to transfer them without delay to RIU to enable reviews to be completed within any time limits.