Thematic review of the investigation and prosecution of sexual crimes

124. Decisions on whether there is sufficient evidence in sexual crime cases are often finely balanced and on occasion it is both necessary and appropriate to conduct preliminary investigation – pre-petition investigation – prior to commencing proceedings.

125. The purpose of pre-petition investigation is two-fold: to establish whether there is sufficient credible and reliable evidence to prove the crime; and to determine whether proceedings are in the public interest.

126. The focus of pre-petition investigation is, therefore, to:

• establish that sufficient evidence exists; and
• address any grave or substantial concerns regarding the quality of any aspect of the evidence.

Police Reporting

127. Where the police submit a report, having remanded an accused in custody, swift decisions need to be taken on whether the accused should appear in court and, if so, whether the prosecutor should ask the court to remand the accused in custody or release the accused subject to bail conditions.

128. From a police perspective, the need to manage risks within the community and a desire to report cases of a serious nature as quickly as possible, encourages earlier reporting of cases. While the assessment of risk is a critical factor, if there is insufficient evidence, then regardless of risk, the accused must be liberated. Once a case is reported to COPFS, the prosecutor has a duty to explore all evidential avenues before reaching a decision. This inevitably results in pre-petition investigation being instructed.

129. Prosecutors identified premature reporting by the police – reporting cases where there are extensive outstanding inquiries or a patent insufficiency of evidence – as a contributory factor for instructing pre-petition investigation.

130. There were 37 cases in our pre-petition case review where pre-petition investigation took longer than 10 months. ^[46] Of those, there were seven where the police reports identified outstanding extensive inquiries including tracing/obtaining statements from additional witnesses; or were significantly lacking in detail to enable the prosecutor to determine whether there was sufficient evidence; or there was a patent insufficiency of evidence.

Key Finding

Premature reporting by Police Scotland is a contributory factor for instructing pre-petition investigation.

131. Several forums involving COPFS and Police Scotland have recently been established at various operational levels with the aim of improving the reporting, investigation and prosecution of sexual crimes. The meetings facilitate discussion on the quality of police reports, promulgate good practice, promote early liaison prior to reports being submitted and review outcomes to take forward learning points for future cases. Greater collaboration is a positive development that will hopefully reduce the need for pre-petition investigation.

Looking to the Future

Investigative Liberation

132. The introduction of investigative liberation ^[47] will provide an opportunity to reduce premature reporting. Investigative liberation will allow the police to release a person arrested, but not charged, and impose conditions, similar to bail conditions, for a maximum period of 28 days, while they complete their investigation.

133. It will provide a useful tool for the police to manage risk, while fully investigating the circumstances of any alleged crime, so as to provide the prosecutor with a more complete investigation, enabling informed decisions to be made, without the need for pre-petition investigation.

Case Review

Initial Decision-making

134. NSCU instructed pre-petition investigation in 567 cases in 2014-15. We examined 82 of these cases.

135. We compared the recommendations made by the specialist prosecutors in the initial report to NSCU with the instruction issued by NSCU in 82 cases where pre‑petition was instructed by NSCU.

136. In 67 cases (82%), NSCU agreed with the recommendation of the prosecutor.

137. The 15 cases where the recommendation of NSCU and the specialist prosecutor differed fell into two categories:

Category one: In 11 cases NSCU instructed pre-petition investigation rather than placing the accused on petition as recommended by the prosecutor.

• In nine cases NSCU instructed additional lines of inquiry to clarify whether there was sufficient evidence, one of which was linked to concerns regarding the engagement of a victim.

• In one case there was agreement between NSCU and the prosecutor that there was insufficient evidence for a charge of rape, but NSCU wished clarification of the victim’s attitude to prosecution for a less serious charge.

• In the remaining case NSCU requested the prosecutor to discuss the circumstances with the Children’s Reporter, prior to making a decision on whether to prosecute.

After pre-petition investigation, the accused was placed on petition in four out of the eleven cases. In the other seven cases no prosecution was instructed for the following reasons:

• In 2 there was insufficient evidence
• In 3 due to the victims disengaging, there was insufficient evidence ^[48]
• In 1 the accused was referred to the Children’s Reporter
• In 1 it was determined that there was no realistic prospect of conviction

Category two: In four cases where the prosecutor recommended no proceedings, NSCU instructed pre-petition investigation. On completion of the pre-petition investigation, NSCU agreed, in all cases, with the initial recommendation that there should be no criminal proceedings.

We found a high level of agreement (82%), between the specialist prosecutors and NSCU on when pre-petition investigation was required. Where the initial decision differed, following pre-petition investigation, NSCU agreed with the initial recommendation made by the prosecutor in 8 of the 15 cases. In 3 of the other 7 cases the decision that there should be no criminal proceedings was due to the disengagement of the victim.

Of note, there were no instances where the prosecutor recommended no proceedings and following pre-petition investigation, NSCU took a contrary view.

The high level of agreement on how to proceed between the specialist prosecutors and NSCU is reassuring and provides a high degree of confidence in the initial decision-making of the specialist prosecutors.

The findings accord with those in the indicted case review and lend weight to the recommendation that COPFS should develop a policy of exception reporting to NSCU at the initial decision-making stage.

Increase of Pre-petition Cases

138. Pre-petition cases have steadily increased over recent years and during 2016-17 have, at times, constituted 40% of the national High Court workload. ^[49]

139. To ascertain the reasons for the increased use of pre-petition investigation and to assess whether it is achieving its purpose, we examined:

• The reasons for and the focus of the pre-petition investigation; and
• The outcome of these cases.

Focus of Pre-petition Investigation

140. Invariably there are several strands of investigation required to enable a final decision to be reached. In our pre-petition review we found that by far the most common requirement was a review of all witness statements (68%). Requests to interview witnesses, often the victim, analyse phones, devices or computers and obtain forensic evidence were also frequently instructed.

141. Other areas of investigation included obtaining; medical or other types of records, expert evidence, transcripts of the accused interviews, CCTV evidence and clarifying whether there were other victims and their attitude to proceedings and considering/instructing Joint Investigative Interviews (JII) of victims.

Outcome of Cases

142. Chart 5 illustrates the outcome of all 82 cases where pre-petition investigation was instructed.

143. Of the 82 cases reviewed:

In 49 cases (60%), no proceedings were instructed. Of the 49:

• In 40 there was insufficient evidence.
• In 6 the victims disengaged and did not wish to participate in the prosecution
• In 3 it was assessed that there was no realistic prospect of conviction

In 26 (29%), the accused was placed on petition. Of the 26:

Plea or Finding of Guilt

• In 13 there was a plea or finding of guilt. 9 accused pled guilty – 6 related to the possession of indecent images of children where there was no identifiable victim. In 4 the accused was found guilty after trial.

Acquittals/Discontinued Cases

• In 4 the accused was found not proven or not guilty
• 1 was deserted pro loco et tempore ^[50]
• In 1 case there was a successful appeal by the defence which brought proceedings to an end
• In 4 a decision was taken to discontinue proceedings after the accused had appeared in court
• 1 has still to proceed to trial
• In 2 cases arrest warrants are outstanding for the accused, one of whom requires extradition

144. We examined the four cases that were discontinued to identify whether the decision to discontinue proceedings could have been taken earlier.

145. In three the reason was the disengagement of the victim. In one there was insufficient evidence to proceed, following the provision of new information by the victim.

146. In the remaining 7 cases (11%):

• 4 were referred to the Children’s Reporter
• 1 was prosecuted on summary complaint; and
• 2 accused died

147. The majority of cases (60%) involving pre-petition investigation resulted in no proceedings due to insufficient evidence.

Timeliness of Pre-petition Investigation

148. Pre-petition investigation is an important and necessary tool in the armoury of prosecutors, but in contrast to court proceedings there are no statutory time limits. This introduces a degree of uncertainty to the timescales for such investigations. To achieve certainty for victims and accused persons, such investigation should be focused and conducted expeditiously.

149. The Appeal Court in Scotland recently considered the use of pre-petition investigation and its relevance to time bars in the context of considering whether a decision taken by a sheriff to extend the time bar was justified. ^[51] The court was critical of the sheriff’s approach of only considering the period after service of the indictment. The judgement questioned what case preparation had taken place between the accused appearing at court and the service of the indictment, eight months later, given that there had been a period of 11 months of pre-petition investigation between the police report being submitted and the accused appearing at court.

150. The decision of the court makes it clear that the entire pre-indictment procedural history of the case has to be taken into account in any exercise of discretion to adjourn the trial and extend the time bar.

151. To maintain public confidence, it is important that those accused of having committed serious crimes appear in court at the earliest possible juncture and, where appropriate, are subject to bail conditions to secure public protection.

152. The case study below illustrates the value of pre-petition investigation when conducted expeditiously.

NSCU instructed pre-petition investigation in a case involving the rape of a child by an older child offender. The investigation was to be conducted within custody timescales. The focus of the investigation was to:
(i) Obtain information from the Children’s Reporter, on the likely outcome, should a referral be made to the Reporter; and
(ii) Ascertain the attitude of the victim’s family on prosecution/referral.
The case was duly prioritised with the victim’s family being spoken to within a week, followed by a face-to-face meeting with the victim, their family and a social worker within a further three weeks.

Within the same timescale, there was a discussion with the Reporter on available options.

Within two months of the instruction for pre-petition investigation, the prosecutor provided a report to NSCU enabling an informed decision to be taken to refer the offender to the Children’s Reporter.

153. We examined the time taken for the pre-petition investigation in the 82 cases. We found the time for the investigation was as follows:

• 31 cases (38%) took up to 6 months;
• 14 cases (17%) took 6-10 months; and
• 37 cases (45%) took over 10 months

154. Ten months is an important benchmark in the context of solemn proceedings. Where an accused has appeared in court on petition and been released on bail, COPFS must indict an accused within ten months to comply with statutory time limits. Ideally, any pre-petition work should not exceed this timeframe. We found that a final decision was made within ten months in 45 cases (55%). There were, however, 37 cases (45%) where pre-petition investigation took longer than 10 months.

155. We examined the 37 cases to identify any common themes. Of note, 13 involved at least one child victim and one involved a child offender.

Analysis of Cases exceeding 10 Months

156. Of the 37 cases:

• In 12 there were demonstrable justifiable reasons for the length of time taken. For example, in one case, involving allegations of historic abuse, the victim, accused and all relevant witnesses resided in the USA. To obtain statements from the witnesses, Scottish prosecutors are reliant on international co-operation, a matter over which they have no control.

157. Of the other 25:

• In 16 there was no obvious justification for the length of time taken by the prosecutor to progress the investigation.

• In 2 the focus of the further inquiries was to attempt to secure the engagement of the victim(s) – in both cases the victims had made it clear from the outset that they did not want to engage.

• In 1 the focus of the further inquiries was to ascertain the attitude of a victim to proceedings despite there being no suggestion of the victim not engaging with the prosecution.

• In 2 repeated requests for different lines of inquiry to be pursued added substantially to the timeline.

• In 1 case an unexplained delay of five months without any action being taken coupled with a further eight months, during which the prosecutor made extensive efforts to interview the victim and secure her engagement, contributed to an overall period of 13 months before a final decision was made.

• In 3 cases the delay in reaching a decision was due, in large part, to the need to obtain expert reports. While all three cases involved complex issues, and recognising that the timescale for obtaining such reports is not in the control of the prosecutor, delays of 17, 21 and 24 months respectively suggests a lack of oversight in seeking to progress matters.

Key Finding

Pre-petition investigation took more than ten months to conclude in 45% of the cases examined.

Key Performance Indicators (KPIs)

158. COPFS operates a policy of Key Performance Indicators (KPIs) for reporting pre-petition work. Depending on the nature and complexity of the work required, a KPI of two, four, six or eight months is allocated for the pre-petition investigation to be conducted. If necessary, extensions can be requested.

159. It was evident from our review that the KPIs issued were not being enforced. We were advised by the specialist teams and Crown Counsel that the increasing volume of pre-petition cases had impacted on their ability to adhere to KPIs. KPIs are still issued but only to provide an indication of the priority that should be given to each case.

160. The lack of governance may explain, at least in part, the 16 cases where there were no extenuating circumstances to explain the time taken to conclude pre-petition investigation. Without the operation of statutory time limits or robust implementation of internal targets, it is not surprising that such cases are not being prioritised.

161. We appreciate that it is essential to ensure all possible lines of inquiries are undertaken in such serious cases and that focused pre-petition investigation can enable informed decisions to be made regarding sufficiency. However, the more protracted the pre-petition investigation, the greater the risk, that the quality of evidence is diminished. There is a greater likelihood that victims or witnesses may disengage or their ability to recollect what happened is affected.

Recommendation 5

COPFS should restrict pre-petition investigation to only those inquiries that are essential to reach a decision on whether there is sufficient credible and reliable evidence.

Pre-Petition Cases that Proceeded to Trial

162. Where there has been pre-petition investigation resulting in a decision being taken to commence proceedings, the statutory time limits apply from when the accused appears in court.

163. Of the 82 cases reviewed, 15 proceeded to trial. ^[52] In four, a period of 11 months or less elapsed between the decision to place the accused on petition and the trial. In the other 11, 12 months or more elapsed between the decision to place the accused on petition and the trial. In six of the 11 cases, the pre-petition investigation had already taken ten months or more to complete.

Key Finding

Cases where there has been pre-petition investigation are not being expedited after the accused has appeared on petition. By and large, COPFS is indicting pre-petition cases in accordance with the statutory timescales that apply to High Court cases.

164. There should be a correlation between the length of time taken for pre-petition investigation and the time required to prepare the case for court after the accused has appeared on petition. The more time spent on pre-petition investigation, the less should be required to prepare the case for court.

165. Pre-petition investigation requires to be taken into account by COPFS in its overall case progression. Failure to do so risks attracting criticism or, in light of the recent appeal decision, any subsequent application to extend the statutory time bars being unsuccessful. ^[53]

Recommendation 6

COPFS should take account of any period of pre-petition investigation when allocating reporting dates for cases to be reported to NSCU for a final decision.

Communication with Victims

166. In its written submission ^[54] to the Justice Committee’s Inquiry ^[55] Rape Crisis Scotland acknowledged the significant dedication and skills amongst COPFS staff in prosecuting this complex area of crime. However, it went on to state:

“Survivors tell us that they are going significant periods of time without communication from COPFS and are unaware of what is happening with their cases. This is particularly difficult for survivors where the case is pre-petition, where there are no bail conditions in place. Complainers often think that their case has been dropped, and may be unaware that the accused has been charged or that enquires are ongoing.”

167. VIA is responsible for contacting, by telephone, all victims referred to them, on the same day ^[56] where the accused has been released from custody. If VIA is unable to contact the victim, they should ask the police to make personal contact.

168. We examined the pre-petition cases to assess the quality and timeliness of COPFS communication with all 114 victims.

We found:

• There was no record that 20 victims had been advised, within the target timescales, that the accused had been released for pre-petition investigation, nor was there a record that the police been asked to make contact with them.

169. Being advised of what happens in court following the arrest of an accused person, whether he/she is remanded in custody, granted bail or released without any conditions is of paramount importance for victims. In the absence of any evidence that contact had been made, we assessed that the standard of communication fell below what was expected.

• For 9 victims, the standard of communication was otherwise satisfactory.

• For 11, however, we identified other issues. For 8 there was a gap of at least six months, before any contact was made by COPFS. For many the subsequent communication was patchy and in some instances non-existent. In some cases, it was evident that victims or their families required to chase up information from COPFS.

• For a further 34 victims we assessed that the communication also fell below the expected standard. Initial contact with 19 victims took over six months with the longest period being 15 months. Subsequent contact was also either patchy or non-existent or failing in key respects, as illustrated by the examples below:

A victim who had requested monthly updates was not contacted as agreed as VIA had incorrectly noted down the contact details.

One victim was contacted by VIA despite the prosecutor advising that the victim should not be contacted due to their fragile mental health at that time.

• For ten victims, although a significant period of time had elapsed before initial contact was made (ranging from between five to nine months), contact thereafter was fairly frequent, resulting in the standard of communication being assessed overall as satisfactory.

• 46 victims received a satisfactory standard of communication from COPFS in that: they were told timeously when an accused had been liberated from custody, initial contact for all was under six months and contact thereafter was regular and provided the necessary information.

• In two cases we saw evidence of excellent communication. The case study on page 33 highlights the benefit of timely communications. Another case involved a victim with severe mental health/psychiatric problems. A bespoke strategy was employed involving, with her consent, communication with her family and consultant.

• In two cases it was not possible to assess the standard of communications with the victims due to the unavailability of the VIA minute sheet, which records such communication.

Key Finding

The standard of communication where pre-petition investigation was undertaken, fell below what should be expected for 47% of victims.

170. COPFS accepts that there was a period where the initial contact for victims in pre-petition cases fell below the expected standard. This appears to have arisen due to a lack of clarity between those dealing with the pre-petition investigation and VIA as to who was responsible for making initial contact with the victims when pre-petition investigation was instructed. Regrettably, those dealing with the pre-petition investigation erroneously assumed that VIA would contact victims and vice-versa. The lines of communication have now been clarified.

171. COPFS has also acknowledged the need to progress cases with pre-petition investigation more expeditiously.

National High Court Sexual Offences Pre-Petition Unit

172. To improve the overall effectiveness of such pre-petition investigations, the National High Court Sexual Offences Pre-Petition unit was established in April 2016. Senior management, in consultation with staff, has produced a pre-petition improvement plan.

Pre-petition Improvement Plan

173. The improvement plan ^[57] provides a clear strategy to tackle the backlog of pre-petition work, reduce the age profile of such cases and provide greater focus on the outcome of pre-petition investigation for future cases.

174. Measures designed to maximise the output of the unit, reduce current caseload and improve communication with victims include:

• Agreed caseloads and targets for reporting cases, with output being regularly monitored;
• Improved monitoring of management information, including the age profile of cases;
• A triage system designed to prioritise cases involving accused or victim(s) with a particular vulnerability or where children are involved;
• Abbreviated reporting for cases only requiring full statements or clarification of the attitude of victim(s) to proceedings;
• Liaison with Police Scotland to discuss any issues with the quality of police reports;
• Provision of dedicated VIA resources to communicate with victims; and
• Prioritisation of contacting all victims and the use of simplified letters.

175. On speaking with senior management and staff within the team we are confident of their commitment to expedite these cases.

176. Since the introduction of the plan there has been a significant improvement in the time taken to deal with such cases and communication with victims.

177. In October 2016, the unit inherited 632 pre-petition cases, requiring investigation. A year later this figure has reduced to 302. In addition, the age profile of pre-petition cases over 12 months old has reduced from 117 to 55 between June and October 2017.

178. Of all current pre-petition cases, there are only 20 victims where COPFS has not yet made contact. As part of an ongoing wider review of all correspondence, ^[58] the introductory letters, which were the subject of adverse comment from some support agencies, have been simplified and the content reduced to include essential information only. A three week target has been introduced to contact any victim where there is an indication that they may have reservations about the case proceeding, to establish the reason for their concerns and provide practical advice on measures that can be put in place to hopefully alleviate such concerns.

179. We heard that the impact of the improvement plan would have been more significant if it had not been for a significant increase in new sexual crime cases reported over the last five months – a 57% increase over the equivalent period in 2016.

180. We acknowledge the concerted efforts being undertaken to address some of the issues highlighted and the ambition to restrict pre-petition investigation to inquiries that will provide clarity on whether there is sufficient evidence to prosecute.