Victims in the criminal justice system - Phase I

234. We have prepared a simplified process map to illustrate the route a 'typical Phase One' victim takes through the criminal justice system. It is important to emphasise that we understand and expect this to be a markedly different journey for victims of crime of the remaining phases of this series of inspections as substantially different policies and processes are in place for them.

235. Similarly this process map illustrates the route from the point that the initial complaint is made to the police rather than any other agency which can report incidents of crime to COPFS. Police report the vast majority of cases where there is an identifiable victim, but there are a few notable exceptions where there may be a victim of crime investigated and reported by another agency eg Health and Safety Executive. We have not examined the provision of services by them.

236. A victim reporting an incident to the police should generally encounter the following stages where information and support is provided by the police and/or COPFS:

237. PROCESS MAP - INFORMATION PROVISION AND SUPPORT TO VICTIMS

238. Following the chronological process taken by cases we examined police processes, handover provisions from police to COPFS and finally COPFS processes as they relate to victims.

Police

239. When a member of the public contacts the police to tell them about an incident, the information they provide typically results in an entry being created and logged on an electronic incident logging system. Once the incident log is created, officers will examine the circumstances as reported and react accordingly. The Scottish Crime Recording Standard ( SCRS) ²⁸ gives guidance to police officers both on what scenarios should lead to an incident being recorded as a crime and further, which of the many categories of crime it should be recorded under. Should it be established that a crime has occurred, officers are expected to record the details within a crime report and then carry out an investigation.

240. In 2010 HMICS carried out an audit of crime recording across Scotland ²⁹. The audit was designed to provide additional useful information for this inspection on victims. In focusing on crimes of domestic abuse, vandalism and minor assault, it was considered that a reasonable snapshot of a force's crime was being examined. Equally they represented crimes that APCOS were prioritising for action across Scotland.

241. Of relevance to our current inspection was that in addition to the abovementioned incident and crime recording systems, forces frequently also maintain other systems for example, to record details of victims and offenders. We did not find it easy to track the contact made with victims across all forces' systems and obtain a clear overview. This is also likely to make supervision of victim contact more difficult in those forces. The principal police IT systems were designed to facilitate investigation and prosecution. If victim service is to continue or increase in its importance then more effective means of recording and collating related information are important.

242. We noted high policy compliance levels in some forces that also ensured clear and comprehensive information was recorded accessibly. We also noted higher policy compliance levels where, as in domestic abuse cases, there were highly intrusive supervision regimes even though these were at times cumbersome due to multiple systems recording activity.

Domestic abuse

243. Our audit found that a number of incidents had not been recorded as crimes and investigated further because the victim did not wish to pursue the matter. The SCRS is unequivocal in that where the circumstances amount to a crime it will be recorded as such irrespective of the victim's wishes.

244. As we know from our current inspection, in crimes such as domestic abuse there are various reasons why a victim might not want the incident investigated further. Yet to better protect them and other vulnerable persons including children, and to reduce the prevalence of this type of crime generally, all these crimes should be reported, fully investigated and where appropriate prosecuted. We discuss in the next section Results why this situation may lead to victims not being satisfied with the criminal justice system even though on balance the correct action has been taken. We also noted that organisations supporting victims of domestic abuse agree strongly with the presumption to prosecute, where sufficient evidence exists, irrespective of victims' wishes.

245. On the basis of the domestic abuse incidents we audited, four forces exceeded the 95% target for SCRS compliance set by ACPOS. The four were Dumfries and Galloway Constabulary, Lothian and Borders Police, Strathclyde Police and Tayside Police. Rates for the remaining four forces ranged from 83.6% to 91.3%.

246. As part of their efforts to improve practice, some forces, including Strathclyde, are now monitoring the proportion of domestic abuse incidents that are then recorded as crimes. This focus and the use of specialist guidance to staff is increasing the proportion of incidents which when more fully investigated are then recorded as crimes which in turn are subject to fuller investigation.

247. In 2004/5 Strathclyde Police recorded 20,658 incidents of domestic abuse of which 11,073 (54%) were recorded as crimes. In 2009/10 they recorded 25,119 incidents of which 17,606 (70%) were recorded as crimes.

248. As we report on page 38, the statistics for homicides in Scotland that are linked with a domestic relationship are startling. The earlier interventions afforded by the correct recording and investigation of these crimes, even where individual cases don't proceed to court, are an important step to reducing overall occurrences.

Updating victims

249. During our crime audit we took the opportunity of viewing recorded victim contact. In the majority of the records that we examined, victims were shown as having been updated. Since forces have different policies regarding the nature and frequency of updating victims, comparative judgements are not straightforward.

250. To illustrate this if;

251. Force 'A' states that victims should be updated personally by the investigating officer every 14 days. The enquiry last three months and so the policy would expect six updates. The records show only four updates.

252. Force 'B' has no policy expectation other than the victim is "kept informed". An enquiry lasts six weeks and the record shows one update by the officer.

253. In the first example, policy has not been met and yet the victim has received more updates than the second which has complied with the force's policy.

254. We argue throughout this report that some consistency across Scotland would be helpful in terms of victims understanding of what they should expect.

255. Many forces already provide an updating service to victims based upon;

• an initial letter to confirm that the force is dealing with the crime
• a subsequent letter at the conclusion of the enquiry giving the outcome of the officer's investigation
• intermediate updates usually somewhere between 14-28 days

256. We consider that this appears to be a reasonable baseline. We have also supported the VSS contention that independent of a particular timescale, practitioners should consider at every important juncture in a case's progression whether the victim should be updated.

257. What we found harder to reconcile however is the consistency of feedback from victims and victims' groups across Scotland that in a number of cases updates were not delivered at all.

258. The SCJS also found;

"in around a quarter of reported crimes (26%) victims did not receive any information or assistance about the investigation (or case) at all."

(P82)

259. This is an issue that forces will wish to better understand. Likewise it is something we intend to investigate further in later phases of this inspection.

Passing information to victims groups

260. We describe above the process of police forces recording incidents and crime. Some of these are then reported to the Procurator Fiscal and this is described below under handover.

261. Another process is the passing of victims' information primarily to VSS so that practical and emotional support can be provided. There is an agreed protocol between ACPOS and VSS covering these arrangements albeit we were informed that we would find that practice had now superseded policy. This turned out to be an accurate prediction and across Scotland we found a variety of arrangements in place with a variety of further informal mechanisms supporting them.

262. We were provided with a copy of good practice guidelines issued to forces from the Information Commissioner's Office ( ICO) in 2007. Noting the degree to which some current arrangements had departed from these guidelines we contacted the ICO. They had some difficulty tracing their original document but have since confirmed that they are reviewing it.

263. There are a number of issues pertinent to this handover between the police and VSS.

264. Victims details should be passed only where the victim provides informed consent for this.

265. Support groups including VSS are unable to provide the same level of service to all victims and therefore need to be provided with enough information to allow them to decide which victims should be prioritised to receive which services.

266. This in turn has to be balanced with the need to avoid providing unnecessary or personally sensitive details of the offence

267. It further has to be balanced against the need not to provide details that may jeopardise subsequent prosecutions.

268. As we indicate above forces across Scotland have a variety of ways in which they transfer victims' information to VSS and other groups. We understand and support the jointly expressed need for clarity and consistency. We would highlight that whilst it may be easy to automate transfer of certain information from police systems to those of other agencies, care needs to be taken to balance the issues we highlight above.

269. The ACPOS/ VSS protocol is currently being revised which we consider timely.

RECOMMENDATION

270. That the current revision of the ACPOS/ VSS information exchange protocol takes cognisance of the need to balance between providing sufficient information to allow VSS to make good decisions about how best to support victims with the need to avoid unnecessary or inappropriate detail being provided. The protocol should be developed in consultation with the Information Commissioner's Office.

Remote reporting

271. We know from the SCJS and from what victims and victims groups told us throughout this inspection that crime is under-reported to the police.

272. Police forces offer remote reporting ³⁰ facilities in an effort to increase reporting particularly of hate crime (eg homophobic or racist crimes) from those victims who prefer to use this method.

273. Whilst the numbers that use this facility are very small, the fact that the option is provided is recognised by victims groups as being important not only to encourage reporting but as a recognition of the difficulties that they might have.

274. We were reminded that small and rural communities can be intimidating for some victims whose greatest concern is that after reporting their crime subsequent investigation and prosecution may draw unwanted attention to them. Thus after taking the, at times, difficult decision to report their crime, it is particularly important to keep these victims updated on progress and decisions.

275. It was encouraging to hear that victims groups consider that the criminal justice system continues to recognise and improve its approaches to deal more effectively with issues such as domestic abuse and hate crime. We were told of contrary experiences though and it was apparent how powerful these were in affecting attitudes.

276. The police (and COPFS) have placed considerable emphasis on improving their approaches towards such issues with some success. The strength of this intention is likely to be tested in the near future as hard decisions will need to be made about what issues continue to be resourced generally and where investment, such as in additional training, is focused.

HANDOVER

POLICE to COPFS

277. Handover for case responsibility is generally considered to be the point at which the police submit a report, a Standard Police Report ( SPR) to COPFS. There may occasionally be some crossover in provision of instruction about the investigation prior to this point but this is fairly unusual in cases considered in this phase of the inspection. In the vast majority of cases the first contact COPFS will have with these cases is when it arrives electronically in the form of the SPR. It follows that in most cases this is the first point at which COPFS have any knowledge about or consideration of the victim(s).

278. We found some ambiguity as to when this point occurs. We heard from police staff that they considered this to be when the reporting police officer set this process in motion. In custody ³¹ cases this is effectively immediately as cases are delivered electronically to COPFS within a few hours of that system being set in process however in non custody report cases this process can take several days and occasionally up to 4 weeks for background reports to be carried out, the case agreed by a supervisor and forwarded to COPFS.

279. Unsurprisingly COPFS staff considered the 'handover' to be when the report actually reached them for consideration.

280. There is not clarity about responsibility for contact with victims at this stage. When responsibility for the case as a whole has transferred to the Procurator Fiscal, although we have indicated difficulties in pinpointing that time, the generally held view was that responsibility also transferred to the Procurator Fiscal for victim contact. Victims however appear unaware of how and when this might occur or that their point of contact changes.

281. At times in report cases the victim will have been advised by the police when this process was set in motion, that the Procurator Fiscal was now responsible for the case and victims may try to receive an update on case progress from COPFS even though the case hasn't reached them. At best this situation raises an unrealistic expectation with victims about timescales in which the case decision will be made by COPFS.

282. There appears to have been limited discussion but certainly no agreement as to whether police should cease their involvement with or responsibility towards the victim at this point as far as information provision or practical and emotional support is concerned nor, more fundamentally, if COPFS should take on this responsibility. In practice however this does appear to have become the default position.

283. We are aware from our inspection process that some stakeholder groups and victims consider the police officer, with whom they have built a personal relationship over the case, to remain their first point of contact for provision of case information. We heard regularly that investigating officers would at a victim's request return to cases and interrogate the IT systems and make other enquiries to assist victim's receive information on progress of cases well after the report has been forwarded to COPFS.

284. A clear and agreed understanding about transfer of responsibility towards victims is important. As discussed above it is generally understood that responsibility for contact with victims should lie in the hands of the body then having decision making powers in respect of the incident ie at transfer from police to COPFS. The 'handover' point therefore is of some significance.

285. We note by contrast that for the purposes of transfer of responsibility in cases involving police Family Liaison Officers to VIA a simple clear statement has been agreed as part of the Joint COPFS/ ACPOS protocol on family liaison. We refer to this not to suggest there should be a formal handover meeting in the cases in this phase but as an example of a clear unambiguous process illustrated in an easily understood diagrammatic form which could provide assistance to victims, police and COPFS staff.

286. Excerpt from the Joint COPFS/ ACPOS protocol on family liaison -

17. The Diagram below indicates the primary, though not sole, responsibility for Family Liaison at the main stages of case proceedings:

COPFS

287. COPFS current policy about information provision is, as previously discussed, that victims should be able to obtain information on their case where there has been a decision not to prosecute the case in court.

288. There are many reasons why a crime might not be prosecuted. It may be either that no formal action is to be taken for a variety of reasons including that there is insufficient admissible evidence, or that the age of offence, mitigating circumstances etc make prosecution in court inappropriate. In many other cases formal action is taken as an alternative to court proceedings by way of 'warning letters' or 'Direct Measures'. ³²

289. The number of cases reported to COPFS which resulted in no court proceedings is substantial. In the year 2009/10 of the 275,503 criminal reports received by COPFS 109,152 were dealt with other than by court proceedings ie 40% of the criminal reports received. The COPFSIT systems are 'accused' and 'prosecution' focussed and do not currently have the facility to immediately distinguish cases which have a victim. Not all of these cases will have an identifiable victim however it is clear that a significant proportion do.

290. In terms of COPFS policy and the process map above, any victims in these 109,152 cases should be able to access information about the decision in their cases. They should be able to do this either by requesting this information directly from the Procurator Fiscal dealing with their case, or if the case involved one of the limited category highlighted for special treatment ( cases involving domestic abuse, racially motivated offences, sexual offences, child victim cases and other cases involving particularly vulnerable victims) COPFS should proactively provide this information.

291. Despite this relatively clear position we found that lack of information provision from COPFS about case progression to be an area where there was a high level of unmet need and criticism from victims and stakeholder groups speaking on their behalf.

292. The remote nature and limited extent of COPFS contact with those who are the victims of crime in this inspection phase is quite unlike police officers who will have had direct contact on at least one occasion (when receiving the report) and perhaps several other meetings pursuing the investigation and updating the victim. The 'marking' depute will receive a report electronically from the police, consider what if any action should now take place and input that decision online. In all but a very few cases in Phase One, that will be the marking deputes only contact with that particular case. There is no direct relationship with the victim. It was generally understood that the victim's need for immediate practical and support needs would have been dealt with by the agency receiving the complaint from the victim and forwarding the report, normally the police, and as such not be the responsibility of COPFS at that point.

293. We also found that it was generally accepted by COPFS staff that victims should be advised of the outcome of their case and willingness by COPFS to assist in that regard, but an acknowledgement that standard current processes don't deliver this outcome.

Case review of COPFS processes

Background

294. HMICS carried out a Crime Audit across all 8 police force areas in 2010. This involved examination of 104 reports to each police force area of incidents in each of the following three crime types:

• Domestic abuse
• Minor assault
• Vandalism

295. As part of this inspection we examined these cases and followed their progress. This examination found that of these 'logged incidents' 627 resulted in police reports to COPFS. Of these 627 reports 187 were not prosecuted in court and are relevant for this phase of the inspection.

Cases examined

296. These 187 cases were examined in more detail against COPFS policy for information and advice provision to victims. In particular the domestic abuse cases, and the minor assault and vandalism cases where there was a particular vulnerability identified for the victim, were examined for record of contact and information provision to the victim. The cases covered all 11 COPFS areas.

297. We report the results under the three crime types.

Results of Case Review

298. Domestic Abuse - 271 cases reported

- 58 cases not prosecuted
- 58 cases examined for victim contact and information provision
- 14 of these cases (24%) were referred by the marking depute to VIA
- There was no evidence on the IT systems of the outcome of these cases being intimated to the victim by COPFS (either mainstream staff or VIA) however in some offices VIA do not record their actions on the common IT systems.

299. NB: In most domestic abuse cases the accused is detained in custody by the police prior to reporting to the Procurator Fiscal. As part of the joint Domestic Abuse Protocol the stated arrangement is that COPFS will advise the police of their intention to liberate an accused where they cannot take proceedings and request the police then ensure that information is passed to the victim as soon as possible. We found a variety of local arrangements throughout the country to ensure this occurred involving COPFS mainstream staff, VIA staff, court liaison officers, DALOs, duty sergeants etc. This process was generally carried out on the basis of a phone call request and confirmation.

300. While we found there were effective joint working arrangements to ensure information about the accused's liberation was passed to the victim we rarely found a record of this process on the COPFSIT systems. On the whole we are satisfied that in most cases this information was provided timeously to victims (see Policy and Strategy supra page 27). We did not find there to be a similar system for providing victims with information about the outcome of the case or reasons for prosecution decisions.

301. Minor Assault - 284 cases reported

- 101 cases not prosecuted
- 101 cases examined for victim contact and information provision
- 9 of these cases (9%) were referred by the marking depute to VIA
- 15 of the Minor assault cases had contained information regarding vulnerability issues relating to the victim
- There was no evidence on the IT systems of the outcome of these cases being intimated to the victim by COPFS (either mainstream staff or VIA) however in some offices VIA do not record their actions on the common IT systems.

302. Vandalism - 72 cases reported

- 28 cases not prosecuted
- 28 cases examined for victim contact and information provision
- 0 (0%) referred by marking depute to VIA
- 5 of the vandalism cases contained information regarding vulnerability issues relating to the victim
- There was no evidence on the IT systems of the outcome of these cases being intimated to the victim by COPFS (either mainstream staff or VIA) however in some offices VIA do not record their actions on the common IT systems.

Awareness of COPFS internal processes

303. As discussed before at Policy and Strategy there was a lack of understanding by mainstream COPFS staff and VIA staff of internal processes and restrictions on operational activities carried out by discrete parts of the organisation. We were advised by a number of deputes they referred cases to VIA on the understanding VIA would make contact with and provide information about the outcome of the case to the victim. They were unaware that the COPFS operational instructions for VIA resulted in VIA staff not acting on the referral as court proceedings had not been initiated. We also were advised by a number of deputes that they were unaware of the policy guidance that related to proactive provision of information to some victims and accordingly they made no attempt to intimate decisions to victims.

304. These factors taken together exposed an unfortunate gap between COPFS policy and the practice existing at the time of the inspection. The results of this gap were that many victims who should have received notification of the outcome of their cases did not do so. We did not find any evidence of a robust system of information provision to victims about the outcome of the crime.

305. This supports the position we heard from various victims and stakeholder groups that there is no case progress or outcome information provided on a systematic basis.

Reactive case information

306. We found very little record of request for reactive provision of information in the case review. The case review was carried out on the COPFSIT systems and this would not record any such request. As such we are unable to comment, from the examination of these cases, about how such requests are dealt with.

307. A fairly consistent thread of complaint by stakeholder groups and victims in their responses to our questionnaires was of difficulty in contacting COPFS to receive information about the outcome of cases and information about decisions not to prosecute. As discussed before some groups had spent time and energy to form relations with individual members of COPFS staff as a means of circumventing what they found to be a 'difficult' system.

308. As discussed at Partnership and Resources (page 52) COPFS have recently invested in the 'Enquiry Point' as a means of addressing the large volume of requests for a variety of information and enquiries about cases (relating to matters such as dates for trial, witness queries etc). This also includes those requests for information about case decisions by victims.

309. We have no doubt the Enquiry Point has the potential to deal with many such requests in a speedy and straightforward manner but the lack of knowledge, clarity and guidance about case information provision (as discussed at Policy and Strategy page 36) fails to allow this new provision to currently deliver its full potential. As the inspection was being carried out some requests for case decision information were not being answered and callers required to put requests in writing, directed to their local Procurator Fiscal who then processed the response directly.

310. As discussed before clarity about policy in this area and better internal partnership working could provide a better outcome for victims and reduce workloads at Procurator Fiscal Offices. Similarly a system of proactive case decision information could reduce such requests which require this reactive response.

COPFSIT Systems

311. The current IT systems used by COPFS are 'offender' and 'case' orientated. Their purpose is to ensure proper and effective prosecution of accused. It is consistent with COPFS core functions that this is so. However we understand this is an opportune point to increase usability to be more victims orientated as they are being subject to a major review and update.

312. We were advised the IT systems could potentially be adjusted to better highlight victims and victim issues eg repeat victims, victim vulnerabilities, prompts for victim contact. We suggest this be investigated with a view to assessing the resource implications of generating better information providing 'standard' or 'templated' letters to victims as part of the current system redesign.

Domestic Abuse

313. There was evidence that the position regarding information provision has improved over recent years in relation to domestic abuse cases. This appears to be the result of specific policies and protocol rather than a general improvement in information provision to victims 'per se'. This information however tended to be restricted to the liberation of the accused rather than reasons for decisions or the outcome of the case as a whole.

314. However this improvement is recognised and appreciated by stakeholder groups:

315. "It appears women are made much more aware of how the incident/case is progressing, compared to how women were kept informed in the past. As you will know, this is in part due to more multi-agency responses and partnership working, and as we see it, due to the establishment of domestic abuse courts at Glasgow Sheriff Court and the work of ASSIST in Glasgow". ³³

316. However SWA, other stakeholders and our questionnaire responses indicated that information provision even for domestic abuse varied widely.

317. The SWA submission stated "(in some areas) information provision was poor and that women were having to chase police and COPFS to find out what's going on - not super proactive at keeping in touch". We did not find any significant geographical relevance to the level of information provision, as commented it can "depend on the officer dealing with the incident".

Processes elsewhere

318. We are aware of different models used in other jurisdictions. We looked at neighbouring jurisdictions.

319. In England & Wales, Witness Care Units ( WCU) have been established. The WCU are staffed jointly by representatives from the police and The Crown Prosecution Service. WCUs maintain responsibility for victim and witness liaison in all cases from point of 'charging' to conclusion. This service was established with the help of substantial investment, £36.1m. It now provides 165 local units across England and Wales. There are, in England and Wales, statutory duties which require to be met around the nature and level of victim contact.

320. In Eire there is a more limited level of information provision to victims in cases which are not proceeding to court. This is a fairly new system and is managed with the assistance of the Gardai (the Irish police force) in that they retain contact with the victim and deliver a 'reasons' letter from the Director of Public Prosecutions to victims.

321. It is unlikely in the current financial climate there will be any substantial investment to radically improve greater information provision to victims in Scotland.

322. There may however be some learning to be gained from the different approaches elsewhere, particularly the approaches towards more joined up partnership working.

CONCLUSIONS

323. We did not find robust systems to advise victims of COPFS decisions that there were to be no court proceedings in their case nor of the reasons for such decision.

324. This extended to all non court disposal of cases which includes those dealt with by alternatives to prosecution such as Warning letters or Direct Measures as well as cases where no action was taken.

325. Even in those cases where policy indicates there should be proactive intimation we found this often did not take place.

326. Therefore the current position is that victims of crime at this level are not routinely advised of the outcome of cases where there are no court proceeding. A victim who reports a crime will frequently be unaware of the outcome of their case. They will have to make contact with COPFS to find out what has happened. We were told this was not always an easy or straightforward exercise.

RECOMMENDATION

327. That COPFS and police forces reach agreed protocols about which agency provide information at different stages of cases to ensure all victims have basic information about the progress of the case in which they are involved and who/where to contact for further information they require.