Reportby the Comptrollerand Auditor General NATIONAL AUDIT OFFICE

Prosecution of Crime in Scotland: Review of the Procurator Fiscal Service

Ordered by the House of Commons to be printed 7 February 1989 Her Majesty’s Stationery Office, London g4.10 net 187 PROSECUTION OF CIUME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE

This report has been prepared under Section 6 of the National Audit Act, 1983 for presentation to the House of Commons in accordance with Section 9 of the Act.

John Bourn Comptroller and Auditor General National Audit Office 2 February 1989

The Comptroller and Auditor General is the head of the National Audit Office employing some 900 staff. He, and the NAO, are totally independent of Government. He certifies the accounts of all Government departments and a wide range of other public sector bodies; and he has statutory authority to report to Parliament on the economy, efficiency and effectiveness with which departments and other bodies use their resources. PROSECUTION OF CRIME IN SCOTLAND REVIEW OF THE PROCURATOR FISCAL SERVICE

Contents

Pages Summary and conclusions 1

Part 1: Introduction 6 Part 2: Definition of Objectives and Criteria for Assessing Effectiveness 7 Part 3: Investigation Procedures 9

Part 4: Dealing with Offenders by Prosecution or by Other Means 11 Part 5: Adequacy of Preparation and Fairness of Presentation by the Prosecution 16 Part 6: Delays Arising in the Prosecution Process 18

Glossary of Terms 24 PROSECUTION OF CRIME IN SCOTLAND REVIEW OF THE PROCURATOR FISCAL SERVICE

Summary and conclusions

1. The procurator fiscal service is a cornerstone of the Scottish criminal justice system. Procurators fiscal (fiscals) are responsible to the Lord Advocate for the investigation of all reported crimes and of any sudden or suspicious deaths and for the preparation and presentation of cases in court. In fulfilling these functions they have absolute discretion whether or not to prosecute. The service is administered on the Lord Advocate’s behalf by the Crown Office.

NAO examination 2. The National Audit Office examination considered whether clear and findings objectives had been set for the service and appropriate criteria established for assessing its efficiency and effectiveness. It also reviewed the action taken to pursue and achieve objectives and to deal with any difficulties. The main findings and conclusions were as follows:

On the identification of objectives and criteria for assessing effectiveness

(a) The aims and objectives of the procurator fiscal service are not defined in statute or formally set out elsewhere, but at the request of the National Audit Office the Crown Office drew up a formal statement of current aims and objectives. Although the National Audit Office found no evidence that the absence of a formal statement has led to fiscals misinterpreting their role or pursuing divergent or conflicting activities, there are nevertheless a number of management and operational benefits in having these aims and objectives better defined (paragraphs 2.1-2.2). (b) In the absence of specified aims and objectives, there were no related criteria for assessing effectiveness, the main operational yardstick in use being the extent to which certain time limits for particular stages of prosecution had been met. In some offices there were also informal targets for the time taken to process various stages of the work (paragraph 2.3). (c) The Crown Office recently introduced some performance indicators for the work of the procurators fiscal, again time-related. They are awaiting feedback from fiscal offices before considering any further measures. The main source of management information is a monthly return of reports received, cases dealt with, and delays (paragraphs 2.4-2.6). (d) In the National Audit Office’s view, there are potentially significant benefits in further development and implementation of a wider range of performance measures, both centrally in the Crown Office and down the line at regional and local fiscal level. A suitably analysed database would provide scope for relevant comparisons, not only between offices and against expected standards but in terms of performance and trends over time for individual offices. This would

1 PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE

enable performance to be monitored and encourage improvements and supplement the existing methods of disseminating good practice. Better information and analysis would, with appropriate safeguards, encourage consistency of approach and treatment as between fiscals, and help to ensure continuing high standards and the effective management and administration of the procurator fiscal service (paragraphs 2.7-2.8). On investigation procedures (e) Although the procurator fiscal is responsible for the adequate and prompt investigation of all crimes and sudden, unexplained and suspicious deaths, there are in practice significant limitations on his involvement in less serious cases. Here the police have the major responsibility for prompt and thorough investigation (paragraphs 3.1-3.6). (f) Fiscals have criticised the standard of police reports~and those of other agencies and delays in submission. They have encouraged the police and the other agencies to introduce improvements in reports and to adopt standard report formats (paragraph 3.7). (g) Generally the National Audit Office examination confirmed that ftscals paid close attention to the promptness and adequacy of investigations. There was no evidence to suggest that in this area work was being constrained by staff shortages. Continuing difficulties with the standard of reports must still be addressed; and although liaison with the police is given a good deal of attention, there are some continuing uncertainties over fiscals’ requirements at local level which can vary (paragraph 3.9). On dealing with offenders by prosecution or other means (h) Fiscals received 353,000 reports in 1987 and decided to take no proceedings in 59,000 cases (16.7 per cent). There are considerable variations between fiscal offices in the proportion of reports not proceeded with. They range from 2.5 per cent to over 25 per cent, with no discernible pattern or obvious reason for the differences (paragraphs 4.24.4 and Tables 2A and 2B). (i) In the National Audit Office’s view, the wide differencesbetween offices in the proportion of cases marked “no proceedings”, and the recognition that the levels of such cases are influenced by factors other than the merits of the case, suggest that more needs to be done to monitor levels and trends in the number and kinds of cases not pursued, to identify reasons and consider possible remedies. Better liaison with the police may also be required (paragraphs 4.548). (j) Since 1980 increasing use has been made of alternatives to prosecution for less serious offences. Reports disposed of in this way have risen from 5 per cent in 1980 to 23 per cent in 1987. The main alternatives are formal warnings (20,000 issued each year): fixed penalties for moving traffic offences (62,000 issued in 1987); and fiscal fines (introduced in 1988 and used increasingly as the year progressed). The vehicle rectification scheme and the fixed penalty scheme introduced for stationary vehicle offences, both operated by the police, have also proved successful (paragraphs 4.94.13).

2 PROSECUTTON OF CRIMB IN SCOTLAND:RRVIEW OF THE PROCURATOR FISCAL SERVICE

(k) An important part of the fiscal’s responsibility is to decide on the merits of the case which court should hear a case being taken to prosecution. On occasions, however, the decision that a case should be heard under summary procedure rather than by judge and jury has been influenced by the limited availability of fiscal staff to carry out all the necessary work for jury trials. If persons guilty of more serious crimes are dealt with under summary procedure there is a risk that the lower sentences available will not be a severe enough punishment or deterrent. On the other hand, several sheriffs have expressed the view that cases are being taken in the sheriff court which should be taken in the lower district court. The Crown Office do not accept that this happens in many cases, but have issued a reminder to fiscals about the allocation of cases (paragraphs 4.144.18).

On preparation and presentation of evidence (1) Almost 90 per cent of summary cases and 60 per cent of solemn cases are disposed of by a guilty plea, and more than half of contested trials result in a conviction. This would seem broadly to indicate that fiscals are correctly selecting and preparing cases for prosecution, and are prosecuting them effectively in court. Some abbreviated procedures are used but the risks involved are monitored by the Crown Office (paragraphs 5.1-5.5). (m) Staff shortages - particularly of legal staff - are constraining the work in those fiscal offices responsible for handling 80 per cent of cases. There are both benefits and disadvantages in extending the present use of non-legal staff, but in the National Audit Office’s view the Crown Office should consider further, in conjunction with fiscals, whether more could be done to make greater use of non-legal staff on more routine work. With appropriate guidance on training and supervision, this would release scarce legal resources. Although the staffing difficulties are being addressed by the Crown Office, continuing staff shortages underline the need for a fresh initiative on these matters (paragraphs 5.5-5.11). (n) Information technology has been introduced and is being extended to improve efficiency and effectiveness and make the best use of available staff. A comprehensive review of information systems has recently been completed, and the Crown Office have confirmed that this addresses many of the operational issues raised by the National Audit Office during their examination (paragraph 5.12).

On delays in the prosecution process (0) Delays in receiving and clearing police reports and resulting documentation occurred in many offices - 18 of the 49 offices did not meet their targets in non-custody summary cases and 25 per cent had backlogs in marking police reports. However, many of the contributory factors are beyond the control of the procurator fiscal. In some cases responsibility for delay rested with the police, but there was also a need for better liaison on fiscals’ requirements (paragraphs 6.1-6.4). (p) The Crown Office consider that the interval between a preliminary hearing and the trial should not normally exceed 14

3 PROSECUTION OF CRIME IN SCOTLAND RE”EW OF THE PROCURATOR FECAL SERVICE

weeks. But over the period April 1987 to September 1988 expected delays between preliminary hearings and trials ranged from 3 to 45 weeks in sheriff summary courts and up to 43 weeks in district courts. At a number of courts there were frequently delays of 20 to 30 weeks or more, with delays of over 40 weeks at two particular courts. There is a risk that very long delays in bringing cases to trial are likely to impair the administration of justice (paragraph 6.7). (q) There are a variety of reasons for such delays, some of which are not within the responsibility of the Crown Office. In the National Audit Office’s view steps to establish the causes and to tackle the long delays need to be considered by the Crown Office, in conjunction with the various other bodies concerned (paragraphs 6.8-6.11). (r) In only 20 per cent of cases set down for trial is evidence heard on the appointed day; in the other cases the accused either changes his plea to guilty at the last moment (40 per cent) or the case is adjourned for various reasons (40 per cent). Courts are therefore deliberately overbooked to be certain that there are enough cases to keep them fully occupied. The present court programming arrangements reduce wasted court time, but can cause considerable cost and inconvenience to witnesses, both the police and members of the public (paragraphs 6.12-6.14). (s) The police estimate that 60-70 per cent of police witnesses are not called to give evidence on the first day they attend a trial. In the police view unnecessary waiting time represents 150 man-years of their resources, and overtime associated with time spent in court costs E2.5 million per year. Efforts to secure better liaison on police attendance have had limited success. In the National Audit Office’s view more positive action is needed to resolve this problem, over and above steps now in hand (paragraphs 6.15-6.18). (t) Courts normally sit from 10 am till 4 pm each day, but the start of business is often delayed and the average finishing time of sheriff summary trials in one court over a recent three month period was 2.40 pm. Procurators fiscal and the police have suggested that longer sittings might help reduce the present delays (paragraph 6.20). (u) Late pleas are a major problem in planning court time and in ensuringthe efficient conduct of business.There is no sanction against a late plea and no incentive for an early plea: so the accused has everything to gain by maintaining a not guilty plea for as long as possible, as he or she is fully entitled to do. Some procurators fiscal believe that late pleas are also encouraged by the legal aid regulations. Attempts to hold more pre-trial discussions with the defence to encourage early pleas and experiments in having intermediate hearings have had only limited success, and there are attendant costs (paragraphs 6.21-6.28).

3. In reviewing these issues it is essential to recognise that the purpose of the procurator fiscal service is above all to serve the criminal justice system. The interests of justice and the rights of those concerned are paramount, and the management and delivery of the fiscals’ work must be directed towards and consistent with those objectives. Improving management and monitoring so as to increase the efficiency and timeliness

4 PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE of fiscals’ activities, and to help target their stretched resources to greater effect, is in no way inimical to the interests of justice. Better liaison with the police, with the courts, and with the legal profession again serves those same ends. These points are fully recognised and are being addressed by the Crown Office.

4. The National Audit Office examination confirmed that good work was being done in a number of important areas; but equally the position on some issues - particularly on delays of various kinds - was less than folly satisfactory. Some of these matters are within the control of the procurator fiscal service and the Crown Office, but others are not. And some issues may require changes in the operation of the criminal justice system which go beyond the scope of this National Audit Office examination.

5. But throughout the examination, including discussions with the various parties concerned, there was a concensus that serious problems remained to be resolved, that shortage of resources lay at the root of many of the issues raised, and that the consequences of this extended beyond the immediate effects within the criminal justice system. In this context it is relevant to note views expressed to the National Audit Office by the Criminal Law Committee of the Law Society of Scotland in September 1988. They commented that despite the fact that court proceedings were generally demand led, their impression was that there were only limited judicial resources available for criminal proceedings and expressed concern at delays which resulted from a shortage of resources and which had adverse consequences on civil business. The Criminal Law Group of the Faculty of Advocates also commented that they were only too well aware of the additional pressures which had been placed on the procurator fiscal service, the courts and the legal profession as a whole. They stated that they regarded it as essential in the public interest and in the interests of justice that such resources as might be necessary to ensure the maintenance of public confidence in the service should be made available. Nevertheless they were not aware of any lack or diminution of public confidence in the procurator fiscal service.

5 PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE

Part 1: Introduction

1.1 The prosecution of crime in Scotland is the Scope of the National Audit Office responsibility of the Lord Advocate assisted by the examination Solicitor General and Advocates Depute, [collectively known as Crown Counsel) and by procurators fiscal 1.5 The main purpose of the National Audit Office (fiscals). Fiscals are legally qualified and are examination was to consider: appomted by the Lord Advocate as his local agents. They are responsible for the investigation of crime, [a) whether clear objectives have been set for and prepare and present cases in the sheriff and the procurator fiscal service and appropriate district courts. They also do most of the preparation criteria established for assessing effectiveness in of High Court cases, involving the more serious meeting those objectives; crimes, although Advocates Depute present these in (b) the action taken to pursue and achieve court. objectives and to deal with any difficulties. 1.2 All crimes are reported by the police or other 1.6 In carrying out the examination evidence was reporting agency to the local fiscal who has absolute obtained by: discretion whether or not to prosecute, subject only to the direction and control of the Lord Advocate. (a) a questionnaire on local operational matters Fiscals also investigate sudden or suspicious deaths, completed by each procurator fiscal: fires and explosions; they represent the Crown in fatal accident and sudden death inquiries; and they (b) a questionnaire on central matters investigate complaints against the police. completed by the Crown Office; (c) selective examination at seven local 1.3 The procurator fiscal service is administered by procurator fiscal offices [of which four were also the Crown Office, headed by the Crown Agent. There regional offices); are 49 local fiscal offices throughout Scotland. Six act as regional offices for administrative purposes, with (d) interviews with senior police officers and a the remainder divided into upper and lower level questionnaire completed by each of the three offices according to workload. The service employs organisations representing the police; and about 250 legal staff and 770 support staff. Although the total staff has increased by 41 per cent since 1978, (e] interviews with officials involved in there has been a 30 per cent increase over the same running the courts. period in recorded crime, particularly more serious crime. This extra workload has continued to impose a 1.7 Views were also sought from the Law Society of burden on some procurator fiscal offices. Scotland and the Faculty of Advocates about the impact on themand their membersof the operations 1.4 The costs of crown prosecutions in Scotland are of the procurator fiscal service. The Society accounted for by the Crown Agent. In 1988-89 these expressed some difficulty over the issues to he were estimated at f24 million, comprising f20 million examined because of possible conflict between the to meet the running and capital costs of the demands of justice and the pursuit of economy and procurator fiscal service and of the Crown Office, and efficiency; but both bodies advanced some general f4 million for witnesses’ expenses and other views which are reported in paragraph 5 of the associated costs. These figures exclude police costs. Summary and Conclusions of this report.

6 PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE

Part 2: Definition of Objectives and Criteria for Assessing Effectiveness

2.1 The procurator fiscal service has been in within the service. Advice on their interpretation and existence for more than 60 years and there is no application was contained in internal regulations and statutory statement of its aims and objectives. For the Crown Office circulars. The National Audit Office purpose of the National Audit Office examination, the found no evidence to suggest that the absence of a Crown Office drew up for the first time a formal formal statement of aims and objectives had led to statement of the service’s aims and objectives, as individual fix& misinterpreting their role or follows: pursuing divergent or conflicting activities. Nevertheless there are benefits in setting out agreed aims and objectives in this way. It encourages better To serve the public interest by providing a system of management, helps in identifying priorities and independent public prosecution and to allay public targeting resources, and facilitates examinations of anxiety by investigating all sudden, unexplained and performance and effectiveness. It also provides a basis suspicious deaths. for oversight and monitoring by the Crown Office.

Objectives 2.3 In the absence of specified aims and objectives there were no related criteria for assessing how well (a) To ensure that all crime made known to the objectives were being met. The main operational procurator fiscal service is adequately and yardstick in use was the extent to which certain timeously investigated. statutory and non-statutory time limits for (b) To investigate all sudden, unexplained and prosecution had been met; an example is the rule in suspicious deaths so as to eliminate the risk of solemn procedure (cases heard by a judge and jury) undetected homicide; and to eradicate dangers under which an accused held in custody must be to health and life. brought to trial within 110 days, otherwise he is released and gains immunity from further prosecution (c) To ensure that alleged offenders are dealt with in the most appropriate way having regard for the alleged offence. As an internal measure Some fiscals also set informal targets for the time taken to to the public interest, ie by prosecution or by an process various stages of the work in their offices. alternative to prosecution. (d) To ensure that all cases are adequately Management and performance information prepared, fairly presented and where, by reason of any change in circumstances, they cease to be 2.4 The Crown Office’s main source of management in the public interest, discontinued. information is a monthly return from each fiscal office which shows progress in disposing of individual (e) To ensure that prosecutions are progressed cases. This provides data on: within statutory time limits, without unnecessary delay and, so far as within the (a) inputs in terms of reports received from the control of the department, brought to an early police and other reporting agencies: conclusion. (b) outputs in terms of cases not proceeded (f) To contribute to the development of the with or disposed of by alternatives to criminal law by: prosecution or by pleas or trials in the various (i) bringing issues appropriate to its courts; and development before the courts. in (c) any backlogs and delays arising at various particular the Appeal Court; and stages, including delays in the courts. (ii] suggesting improvements and advising other departments on criminal legislation. 2.5 In response to the Treasury requirement for departments to produce running cost management 2.2 Although these aims and objectives were not plans, the Crown Office are developing a previously set out in such specific terms, the Crown computerised model which will enable budgets and Office have confirmed that they were well known targets to be set for costs and staffing of individual

7 PROSECUTTON OF CRIME IN SCOTLAND REVIEW OF THE PROCURATOR FISCAL SERVlCE fiscal offices and thus assist in financial and 2.7 In the National Audit Office’s view, there are manpower control. The emphasis in the model is on potentially significant benefits in further development the disposal of cases, each type of disposal being and implementation of measures of this kind, both weighted according to an estimate of the time it takes. centrally in the Crown Office and down the line at The Crown Office will monitor workloads and will be regional and local fiscal level. The availability of able to assess local staffing needs by comparing information, suitably analysed, from 49 offices weighted workloads and existing complements. The carrying out essentially similar functions should proposals are expected to allow more informed provide a sufficient database for relevant decisions on staff allocations than existing procedures comparisons. Results could than be analysed not only which rely on the limited information on case between offices and against expected standards or numbers in the monthly return and on norms but also in terms of performance and trends representations from the regional and local over time for individual offices. Information of this procurators fiscal. kind, progressively developed to encompass qualitative as well as quantitative factors, would help 2.6 In response to the Government’s financial the Crown Office to monitor performance and management initiative, the Crown Office have encourage improvements and supplement the existing recently introduced some performance indicators; but methods of disseminating good practice. so far these have again been limited to information about the time taken to process the main stages of the 2.8 Whilst developing the management of the fiscal’s work. Some fiscals believe, moreover, that service as a whole in such ways, care would clearly setting performance indicators in this area involves a need to be taken to recognise the powers, risk that staff effort will be directed too narrowly responsibilities and judgements of fiscals operating in towards meeting time limits at the expense of quality particular local circumstances. Nevertheless, or to the detriment of other aspects of work for which consistency of approach and treatment in handling there are no specific targets. The Crown Office are cases, and ensuring continuing high standards, are awaiting further feedback from fiscal offices on such central to the effective management and issues before considering any further measures. administration of criminal justice. PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE

Part 3: Investigation Procedures

3.1 The procurator fiscal is responsible for ensuring 3.5 The fiscal’s involvement is normally lower on the adequate and prompt investigation of all crime less serious crimes. Here the promptness and reported to him and of all sudden, unexplained or thoroughness of the investigation largely depends on suspicious deaths. The vast majority of such cases are the police, since by the time a crime has been made reported by the police, who are required under known to the procurator fiscal, the investigation stage statute to comply with instructions received from the is usually complete. Furthermore, the fiscal is not procurator fiscal in investigating crime. Reports are normally made aware of, and therefore not involved also received from a wide range of other departments in the investigation of the vast majority of unsolved covering such matters as tax and customs evasion, crimes. In these circumstances the fiscal is not in a social security fraud and breaches of health and position to ensure that there have been adequate and safety regulations. Within these categories the prompt investigations: and it is relevant to note that seriousness of cases may vary widely; for example this covers a large number of cases. In 1987 only Customs and Excise reports range from routine VAT 35 per cent of crimes recorded by the police were matters to major drug trafficking cases. cleared up, but the main reason for failure to solve a crime is lack of evidence. 3.2 In cases involving major fraud or corruption, the fiscal can call on specialist assistance from the Serious 3.6 Once a crime has been reported and police Fraud Unit, which the Crown Office established in investigations completed it is the fiscal’s 1985. This unit also deals with extradition, the responsibility to decide on the adequacy of the seizure of drug trafficking proceeds and cases which investigation and whether or not there is sufficient call for mutual assistance with foreign jurisdiction. evidence to prosecute and, if so, the merits of Since it was established, the unit’s work has led to prosecution. This may involve further discussion of the recovery of more than ??l million. individual cases with reporting officers and additional investigation and evidence should the fiscal consider 3.3 In practice the fiscal is directly and immediately this necessary. involved in the investigation of only the more serious crimes. For example, where a death has occurred in 3.7 In responding to the National Audit Office circumstances where homicide is suspected, the questionnaire about 20 per cent of procurators fiscal police at the outset contact the local duty fiscal who criticised the standard of police reports. They attends at the scene and at the post mortem. His role complained, for example, about the omission of in such cases is to ensure that the police take steps to essential information, failure to identify the strengths obtain and preserve evidence - including anything and weaknesses of a case, and delays. The Crown which may be favourable to the defence - and to Office also have recently received complaints from prepare, apply for and issue any urgent warrants. The regional fiscals about the standard of police reporting. police may also consult the fiscal on a continuing The police are taking these criticisms seriously and basis during the investigation stage of a serious crime, some police forces have set up central reporting especially if they are experiencing difficulty in sections to check reports before they are sent to the collecting enough evidence to arrest and charge a fiscal. Increasing use is made of standard formals fur suspect. reporting common statutory offences to ensure that all essential items are included, although these do not 3.4 In the investigation of deaths, which may or may necessarily allow for unusual but important factors to not involve the possibility of criminal proceedings, be brought out. the fiscal’s involvement in the detailed investigation may include obtaining and considering medical and 3.8 Similar criticisms have been made in relation to technical evidence and the preparation and/or the reports submitted by government departments conduct of a fatal accident inquiry or other public and local authorities and the Crown Office have inquiry. Current examples of the dual responsibility organised training seminars, met with officials of of the procurator fiscal in such matters are the these bodies and issued guidelines in an attempt to investigation of the Lockerbie air disaster, in which improve the standard of reports and reduce delays. the procurator fiscal of the district has overall Furthermore, an inter-departmental working group is responsibility for the investigation of the deaths and currently considering standardising the preparation of the related crimes, and the Piper Alpha inquiry. and presentation of witnesses’ statements, which is

9 PROSEWTION OF CilME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE expected to lead to an improvement in the quality of difficulties with the standard of reports, from the reports to the fiscals. police and other agencies, which must still be addressed. Liaison with the police is given a good deal of attention. At local level there is daily contact 3.9 Generally the National Audit Office examination on individual cases when many problems are confirmed that fiscals paid close attention to the speedily resolved and there are discussions with promptness and adequacy of investigations, both in senior police officers on ways and means to proceed their direct involvement and in their scrutiny of in the investigation of crime, particularly serious reports submitted. There was no evidence to suggest crime. Even so, there are some continuing that in this area work was being constrained by staff uncertainties over fiscals’ requirements at local level shortages, since it is recognised as being central to the which can vary (see paragraphs 4.54.6 and 6.4 fiscal’s functions. There are some continuing below). PROSECUTION OF CFJM!. IN SCOTLAND REVIEW OF THE PROCURATOR FISCAL SERVICE

Part 4: Dealing with Offenders by Prosecution or by Other Means

4.1 The procurator fiscal is responsible for ensuring fiscal to be insufficient or is based on malice or that alleged offenders are dealt with in the most illwill on the part of the informant; appropriate way having regard to the public interest. (b) the reported offence is of a trivial nature; He can decide to take no proceedings at all, or he can adopt an alternative to proceedings by issuing (c] the age and other personal characteristics of appropriate warnings or imposing penalties, or ha can the alleged offender; submit the case for trial before the High Court or a (d] there is sufficient justification for the lower court (Table 1). conduct of the accused; Cases in which no proceedings are taken (e] the case is more suitable for civil action. 4.2 It is not necessary or appropriate for a fiscal to 4.3 In 1987 out of 353,000 reports received by procurators fiscal, some 59,000 cases or 16.7 per cent, institute formal criminal proceedings in every case were marked “no proceedings” (Tables 2A and 2B). reported to him, even though there may be sufficient Although the number of “no proceedings” cases has evidence that a crime or a statutory offence has been remained at broadly the same level for several years, committed. Having considered all relevant factors, the this is considerably higher than the average between fiscal may decide to take no proceedings. This can 1979 and 1983 (Table 1). There are also considerable happen in all types of case, no matter how trivial or variations in the number and proportions of “no serious. Circumstances in which the fiscal may decide proceedings” cases, in some cases for offices which not to proceed include: appear broadly comparable in workload and location; (a] the evidence appears to the procurator see below.

Table 1 Disposal of police reports 1979-1987

pr&dure proceeding to prosecution trial

1987 353,553 14,814 59,019 80,664 121,073 27,920 762 19,436 1986 358,369 14,383 71,228 69,053 124.317 29,756 937 19.545 1985 353,830 14,513 65,580 82,392 129,782 30,836 994 21.433 1984 329,237 13,880 55,307 59,643 129,254 28,908 1,056 21,242 1983 322,652 13,615 41,876 16,704 167,249 27,695 1,090 21,715 1982 304,652 13,065 34,514 163,936 27,048 1,031 21,252 1981 304,682 12,795 57,095 172,070 22,626 959 21,500 1980 327,204 11,897 38,041 194,341 23,728 992 23,249 1979 288,203 10,780 34,065 168,098 17,321 1,027 18,514

* The sum of the various disposals does not equal the number of reports received because(il reports received towards the year end will not be disposed of until the following year, and [ii] if more than one report charging the same accused is received they may be “rolled up” into one case and therefore one disposal. o The various alternatives were introduced at different times eg conditional offers of fixed penalty under the Transport Act 1982 in 1984, fiscal fines in 1988. $ The pleading diet in solemn trials was abolished by the Criminal Justice (Scotland) Act 1980. “Guilty pleas before trial” include only those made at the pleading diet in summary casesalthough before the coming into effect of the 1980 Act the equivalent applied in solemn cases. $ Prior to 1984 no record was kept of the number of guilty pleas at High Court trials. =! In a ~102 plea in solemn procedure the accused may give written notice to the Crown Agent that he intends to plead guilty and wishes to have his case disposed of at once (see paragraph 6.5).

11 PROSECUTIONOF CRLMEIN SCOTLAND: REVIEWOF THE PROCURATORFISCAL SERVICE

Table 2a Table Zb “No proceedings” cases in 1987 (by number of “No proceedings” cases in 1987 (by percentage of reports received) cases]

received Number Percentage

Glasgow 76,989 19,772 25.0 Edinburgh 42,707 10,903 25.5 Edinburgh 42,707 10,903 25.5 Aberdeen 14,249 3,604 25.3 Hamilton 24,350 2,184 9.0 Glasgow 78,989 19,772 25.0 Aberdeen 14,249 3,604 25.3 Haddington 4,028 825 20.5 Dundee 14,193 848 6.0 Peterhead 2,544 515 20.2 Kilmarnock 12,620 1,351 10.7 Fort William 1,440 270 18.8 Paisley 12,460 2,277 18.3 Paisley 12,460 2,277 18.3 Airdrie 10,043 487 4.8 Wick 1,097 196 17.9 Kirkcaldy 9,721 1,399 14.4 Perth 9,367 1,670 17.8 AF 9,418 1,350 14.3 Dunfermline 7,142 1,263 17.7 Perth 9,367 1,670 17.8 Falkirk 9,328 1,626 17.4 Falkirk 9,328 1,626 17.4 Elgin 4,417 760 17.2 Dumbarton 8,642 642 9.7 Tain 1,464 242 16.5 DUllflies 6,277 280 3.4 Rothesay 447 71 15.9 Linlithgow 8,135 409 5.0 Selkirk 2,114 315 14.9 Dunfermline 7,142 1,263 17.7 Greenock 7,097 1,046 14.7 Greenock 7,097 1,046 14.7 Kirkcaldy 9,721 1,399 14.4 inverness 6,898 859 12.5 AY 9,418 1,350 14.3 Stirling 6,478 675 10.4 Dingwall 1,720 241 14.0 Lanark 4,905 213 4.3 Duns 1,057 137 13.0 Elgin 4,417 760 17.2 B&f 1,124 145 12.9 Haddington 4,028 825 20.5 Lerwick 874 110 12.6 Forfar 3,430 87 2.5 Inverness 6,898 859 12.5 .4&a 2,785 251 9.0 KilkWall 640 80 12.5 cupar 2,660 207 7.6 DUIlOOn 1,554 187 12.0 Stonehaven 2,602 238 9.1 PO&% 548 66 12.0 Peterhead 2,544 515 20.2 Oban 1,164 138 11.9 Arbroath 2,289 177 7.7 Dornoch 611 69 11.3 Stimaer 2,229 178 8.0 Campbeltown 845 91 10.8 Selkirk 2,114 315 14.9 Kilmarnock 12,620 1,351 10.7 Dingwall 1,720 241 14.0 Stirling 6,478 675 10.4 Jedburgh 1,717 144 8.4 Dumbarton 8,642 842 9.7 DllIlOOll 1,554 187 12.0 Stonehaven 2,602 238 9.1 Tain 1,464 242 16.5 Hamiltm 24,350 2,184 9.0 Fort William 1,440 270 18.8 Alloa 2,785 251 9.0 Kirkcudbright 1,368 89 6.5 stornoway 728 65 8.9 Oban 1,164 138 11.9 Jedburgh 1,717 144 8.4 Banff 1,124 145 12.9 StWlW2r 2,229 178 8.0 Wick 1,097 196 17.9 cupar 2,660 207 7.8 DUIX 1,057 137 13.0 Arbroath 2,289 177 7.7 Lerwick 874 110 12.6 Peebles 813 56 6.9 Campbeltown 845 91 10.8 Kirkcudhright 1,368 89 6.5 Peebles 813 56 6.9 Dundee 14,193 848 6.0 stornoway 726 65 8.9 Linlithgow 8,135 409 5.0 Kirkwall 640 80 12.5 Locbmaddy 225 11 4.9 Dornoch 611 69 11.3 Airdrie 10,043 467 4.6 POrtrfY3 548 66 12.0 Lanark 4,905 213 4.3 Rotbesay 447 71 15.9 Dumfries 8,277 280 3.4 Locbmaddy 225 11 4.9 FIJI& 3,430 87 2.5

Total 353,553 59,019 Total 353,553 59,019 Average % 16.7 Average % 16.7

Source: 1987 Annual Statistics Source: 1987 Annual Statistics

12 PROSECUTIONOF CRIME IN SCOTLAND:REVIEW OF THE PROC”RATOR FISCAL SERVICE

4.4 The overall proportion of “no proceedings” cases offence that are not proceeded with. They suspect ranged from 2.5 per cent at Forfar to over 25 per cent that this may often be due to a shortage of staff in in Aberdeen, Edinburgh and Glasgow. Individual fiscal offices rather than a decision taken on the merits variations included a figure of 25.3 per cent from of the case. The National Audit Office findings confirm some 14,000 reports in Aberdeen (12 legal staff) as that this is indeed a factor in some areas. Twenty per compared with 6 per cant from almost exactly the cent of fiscals, including all but one of the regional same number of reports at Dundee (8 legal staff). In fiscals, accepted that some minor cases were marked general there appeared to be no discernible pattern to “no proceedings” for reasons other than their legal the incidence of “no proceedings” cases. It did not judgament, at times because of limited staff resources, seem to depend on size or workload - for example but also due to other factors such as overloading of the lowest figure of 2.5 per cent at Forfar was for an courts and resultant delays. These particular fiscals office whose workload of 3,430 reports a year was handle 55 per cent of the total case load. substantially higher than that for many other offices with higher “no proceedings” levels. Some of the 4.7 The Crown Office are not notified of the reasons higher “no proceedings” figures were to be found in for not taking proceedings; this is considered a matter offices with quite modest workloads - for example for individual fix&. Accordingly they have not Haddington (4,028 reports a year) had a “no sought to analyse the figures and are thus, for proceedings” level of 20.5 per cent, and Peterhead example, not aware of the number of cases which are (2,544 reports a year) had a level of 20.2 per cent. not pursued because of staff shortages. However the Stonehaven, however, whose workload of 2,602 Crown Office have informed regional fiscals of the reports a year was virtually the same as that of total figures and have suggested that they might be Peterhead had a “no proceedings” level of only 9.1 discussed with the local fiscals, although again there per cent. Geographical location did not appear to play is a limit on the extent to which a regional fiscal can a significant part in explaining variations in question or appear to interfere with an individual “no proceedings” levels. fiscal’s discretion. Further action, or power of direction, could only coma from the Lord Advocate. 4.5 There may well be good reasons why cases are marked “no proceedings”. Decisions depend upon the 4.8 There is a risk to the administration of justice if weight of evidence, the likelihood of successful cases are not pursued for reasons other than the prosecution, the seriousness of the case, and the merits of the case, and if there are wide variations likely attitudes of the local bench. These matters are between fiscal offices in the chances of an individual also affected by the judgements and preferences of reported offence not being pursued. In the National individual procurators fiscal. No instructions are Audit Office’s view, the wide differences between given by fiscals to the police not to report particular offices in the proportion of cases marked “no offences but guidance may be given on the proceedings” and the recognition that the levels of circumstances which should be taken into account. such cases are influenced by factors other than the However, the police may continue to report a type of merits of the case suggest that more needs to be done offence even where the procurator fiscal is known to to monitor the extent to which this occurs, to identify take no proceedings in such cases. A fiscal’s reasons reasons and to consider possible remedies in terms of for not proceeding with a case are confidential, and better guidance and more consistent standards and the police are not necessarily told what they are, possibly redeployment of staff. Better liaison with the although the Crown Agent encourages liaison and police may also be required. feedback so that necessary lessons can be learned. No information is available as to how effectively this Alternatives to prosecution works in practice, but National Audit Office enquiries suggested that there are continuing uncertainties on 4.9 Since 1980 increasing use has been made of the part of the police. These uncertainties are alternatives to prosecuting cases in the courts. complicated by the fact that one police force may Excluding no proceedings decisions, in 1980 only 5 submit reports to several different fiscal offices, with per cent of cases reported to the fiscals were disposed perhaps varying expectations and individual of by alternatives to prosecution, with some 80 per operating criteria [see also paragraph 6.4 below). The cent of cases proceeding to court. By 1987, nearly 23 police have also expressed concern at the possible per cent of cases were dealt with by alternatives to effect on morale where large numbers of their reports prosecution, again excluding no proceedings are marked “no proceedings”, a frequent example decisions. Three main alternatives are currently used: bdng minor road traffic offences not involving personal injury. (a] Formal warnings. These are used where prosecution would be out of proportion to the 4.6 The police told the National Audit Office that gravity of the offence, particularly with young or they are concerned about some of the categories of old first offenders. In 1983 some 16,000 formal

13 PROSECUTIONOF CRIME IN SCOTLAND REVIEWOF THE PROCURATORFISCAL SERVICE

warnings were issued. Since then there have procurator fiscal does not become involved. This been about 20,000 each year. The majority of scheme is considered a worthwhile road safety warnings are made by letter, although some are initiative, and in 1987 over 16,000 cases were issued in person where this is thought to be handled in this way. more effective. 4.11 The other example is the fixed penalty scheme (b) Fixed penalties for moving traffic offences. introduced in 1987 and operated by traffic wardens These are offered for such offences as speedinn and the police for stationary vehicle offences. Where or failure to comply with directions. Fixed _ a motorist fails to pay and does not request a court penalties were introduced in 1984, when 38,000 hearing a fine is automatically registered against him. offers were made; since then the number has Such cases do not involve the procurator fiscal unless risen progressively each year and in 1987 62,000 the offender requests a court hearing. In Edinburgh fixed penalties were issued. Refusal of an offer the operation of these arrangements resulted in the to settle by a fixed penalty, or failure to pay, can lead to court proceedings. The scheme is number of parking cases reported to the fiscal falling considered a success with acceptances running from over 26,000 in 1986 to less than 7,000 in 1987. at about 90 per cent, but its operation is fairly 4.12 In appropriate circumstances, a fiscal may pass demanding in terms of administrative effort in a case to the social work department of a local the district court. In Glasgow for example the authority or call for the offender to remedy the district court cannot handle all fixed penalty damage caused or provide appropriate restitution; but cases, and as a result potential fixed penalty these alternatives to prosecution are particularly time- cases are periodically marked “no proceedings”. consuming and are not widely used. (c) Fiscal fines. These were introduced early in 1988 for minor cases such as breach of the peace 4.13 An alternative to prosecution not brought into or low value theft which would previously have force in Scotland is the provision in the Transport been prosecuted in the district court. By May Act 1982 under which the police may issue a fixed 1988, a quarter of fiscals had yet to make use of penalty notice in respect of moving traffic offences the scheme under which they can impose a such as speeding, and failure to comply with road fixed fine of X25. But by November 1988 their traffic directions and signs. The reason for its non- use had increased to 1,100 per month compared introduction is the success of the existing scheme for with 300 per month when introduced. Although these offences already operated by the fiscal most fiscals acknowledged the potential benefits (paragraph 4.9(b)). The Crown Office in consultation they were concerned that the inflexibility of the with the police considered that the level of scheme could lead to anomalies compared with participation in the existing schemes and the the t?.nelikely to be imposed by the district court potential difficulties of the new one outweighed any for similar offences. And the fixed fine did not advantages likely to arise from passing responsibility take account of the offender’s financial for resolving a large number of routine cases from the circumstances. But any change to the scheme procurator fiscal service to the police. would require legislation. There can also be substantial administrative costs in pursuing Cases proceeding to prosecution unpaid fines, since payment may be allowed in instalments and on non-payment of an 4.14 The fiscal’s responsibility for ensuring that the instalment the balance can only be pursued by accused is dealt with in “the most appropriate way” the responsible district council taking includes determining which court should hear the appropriate action. And there have been case. Apart from cases of murder, rape and treason, problems in some district councils in which must be heard in the High Court, and those implementing the scheme. statutory offences which can only be dealt with summarily (ie without a jury) in the sheriff or district 4.10 Other alternatives to prosecution which reduce court, the original decision on which court to use is a the number of minor cases being referred to the quasi-judicial function in that the sentence or fine a procurator fiscal include two schemes operated by the convicted person will receive depends on the police themselves. Under the vehicle defect sentencing power of the court to which the fiscal rectification scheme introduced in 1984 drivers of directs the case (Table 3). There is no right, as in motor cars, light vans and motorcycles, when England, for the accused to opt for trial by jury. cautioned and charged by the police with minor construction and use offences, are given the 4.15 Where a case is to be heard by a judge and opportunity to rectify mechanical defects within 21 jury, the procurator fiscal must submit to Crown days as an alternative to prosecution. The police do Counsel a report called a precognition. A precognition not need to prepare reports or attend court and the involves substantial extra work because it includes

14 PROSECUTIONOF CRIMEIN SCOTLAND:REVIEW OF ‘IKE PROCURATORFISCAL SERVICE

Table 3 Analysis of court business 1978-1987

under trial dealt s102 with by COWtS

1987 260 397 7x2 879 940 56,755 17,278 10,376 64.318 9,503 7,725 169,213 1986 261 422 937 912 932 63,751 17,580 10.844 60,566 11.005 7.347 174,557 1985 313 446 994 878 867 63,349 18,649 11,200 66,433 10,996 8,920 183,045 1984 178 302 1,056 811 879 61,701 18,693 11,722 67,553 9,226 8,339 180,460 1983 256 1,090 850 854 94,598 17,096 11,367 72.651 9,749 9,238 217,749 1982 254 1,031 1,011 949 94,713 18,207 11,168 69,223 7,830 8,881 213,267 1981 218 959 856 751 98,836 15,228 11,008 73,234 6,542 9,523 217,155 1980 257 992 964 975 128,214 17,670 13,386 66,127 5,094 8,631 242,310 1979 298 1,027 721 708 103,314 12,191 10,327 64,784 4,409 7,181 204,960 1978 315 1,007 925 932 108,271 15,899 12,661 62,386 4,497 7,053 213,946 $ ie trials where evidence heard. * In H&h Court or Sheriff and Jury cases,an accused pleading guilty may seek an acceleratedhearing under s.102 (see paragraph 6.5). the outcome of interviews with witnesses during they are recommending for solemn procedure. If the which statements given to the police are verified and cases recommended for solemn proceedings from an expanded as necessary. In contrast, the preparation individual fiscal office were well above a particular for summary cases, for which precognitions are not level of seriousness, Crown Counsel might enquire as required, requires much less work. to the seriousness of cases being taken in the summary court. 4.16 The National Audit Office noted that on occasions the limited availability of fiscal staff, 4.18 The Crown Office have issued a direction to especially to undertake time-consuming precognition fiscals that as a general rule, and unless there are work, has in some fiscal offices resulted in cases good reasons to the contrary, cases which may be being marked to be dealt with in the sheriff court competently taken in the district court should be under summary proceedings, rather than by solemn prosecuted there rather than in the sheriff summary proceedings involving trial by judge and jury. In court where penalties are higher. The preparation Glasgow, the fiscal’s workload has resulted in a work and court presentation are the same for the sentence “threshold” being set considerably above the procurator fiscal whichever of these courts hears the maximum sentencing power of the sheriff summary case. The National Audit Office noted that several court, and only cases which merit sentences above sheriffs have expressed the view that some cases are this threshold are marked for solemn proceedings. being prosecuted in the sheriff court which should be There is a risk that if persons guilty of serious crimes taken in the district court, adding to the congestion in are dealt with under summary procedure, the lower sentences available will not be severe enough the sheriff court. The Crown Office have reminded punishment or deterrent. There is a safeguard in that fiscals that allocations to the appropriate court should a sheriff may comment if he thinks that a case before be made according to the merits of the case, him is inappropriate for the summary court; but the regardless of the fiscal’s opinion of the way in which Crown Office have pointed out that an increase in the it might be handled in the particular court concerned. sentencing power of sheriffs sitting summarily would However, as stated above, the fiscal has the discretion help to resolve such difficulties. It would also provide to opt for prosecution in the sheriff court where he a more significant differential between the summary considers this appropriate and the Crown Office have sentencing power of the sheriff and that of the district suggested that, on occasion, sheriffs may fail to realise court. that a case whi& at first sight might appear to be a district court case reflects the response of the fiscal to 4.17 A further safeguard of consistency of approach local concern about a particular type of offence or within the procurator fiscal service when allocating contains an evidential or procedural difficulty cases to the courts lies with reviews by Crown identified by the fiscal as requiring the legal expertise Counsel of reports from procurators fiscal on cases of the sheriff.

15 PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVKE

Part 5: Adequacy of Preparation and Fairness of Presentation by the Prosecution

5.1 Procurators fiscal are required to ensure that all trial. A further uncertainty arises from the fact that cases are adequately prepared, fairly presented and not infrequently the fiscal who prepared the case discontinued when further proceedings become no does not present it in court. longer in the public interest. About 90 per cent of summary cases prosecuted are disposed of by a plea 5.4 A risk of inadequate preparation arises in cases of guilty without evidence being taken at a trial. In where the report for Crown Counsel relies principally other words, the defence recognise the strength of the on police statements with none, or not all, of the prosecution case. This suggests that fix& are witnesses having been precognosed. This means that selecting correctly from police reports those cases the reliability of witnesses has not been assessed and where there appears to be sufficient evidence to their evidence in court may differ from their police prosecute. In solemn cases about 60 per cent are statements. Nevertheless, the attraction of such disposed of by guilty pleas. The Crown Office have procedures in reducing work means that they are stated that careful preparation of solemn cases is also used by some fiscal offices when there is a large a factor in obtaining pleas - often after discussion of backlog of other precognition work. To minimise the the evidence in the case with the defence solicitors. risk cases selected for limited precognition are those where the police statements are of high quality and 5.2 As regards sufficient and effective preparation of where only a few essential witnesses need to be the case, the most obvious indicator would seem to precognosed, the remainder being, for example, be the “success rate” of convictions in trials where concerned with routine forensic evidence. evidence has been heard, on the grounds that a conviction indicated that the case had been 5.5 The fiscal offices do not keep formal records of thoroughly prepared and effectively presented in how frequently this abbreviated procedure is used nor court. The Crown Office estimate that in Scotland as whether the decision not to precognose all of the a whole more than half of contested summary trials witnesses in a case has in practice had a significant result in a conviction. The Crown Office do not keep effect on the outcome. However, the Crown Office any statistics of the results of solemn cases. But they monitor its use and make inquiries if it seems to be have informed the National Audit Office that in used too frequently by any particular office. solemn cases, records kept by the Scottish Home and Use of non-legal staff Health Department show that about 57 per cent of accused persons who went to trial in 1987 were 5.6 The staff complements and costs of the convicted. The Crown Office believe that the procurator fiscal service are subject to cash limit percentage of cases which result in a conviction is control. Some 50 per cent of procurators fiscal - higherif calculatedon a casebasis, representing offices where about 80 per cent of reports are handled - told the National Audit Office 5.3 Assessing the outcome of fiscals’ work in this that they believe shortage of staff, particularly of way may however be an over-simplification. Fiscals legally qualified staff, is constraining their work. The themselves do not see the conviction rate as an Crown Office are addressing these difficulties which appropriatemeasure of adequate preparation or fair they consider are exacerbated by maternity leave, presentation. The duty of the procurator fiscal is to sickness and delays in replacing staff who resign. ensure that all the evidence is “fairly presented”, not just the evidence supporting the prosecution case. 5.7 It costs about twice as much to employ a legally Only when he has decided that the evidence justifies qualified officer as it does to employ an executive taking proceedings does the fiscal’s objective become officer. If the more straightforward or routine work in to convince a sheriff or jury of the strength of the a fiscal’s office could be undertaken by non-legal staff, case. There are also factors affecting the outcome of more efficient use could be made of those legally individual cases over which the fiscal has no control. qualified, who are in any case in short supply. For example, in summary cases witnesses are not Accordingly, in response to pressures of work, the precognosed and in court they may change earlier precognition officer grade has been introduced to take statements, and some may not even appear at the over from legal staff the role of interviewing witnesses

16 PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF TEE PROCURATOR FISCALSERVICE and associated case preparation. Most of the larger from court experience. The Crown Office have offices now employ precognition officers, acting advised that the consent of the Lord Advocate would under the advice and guidance of fiscals. At present be required before non-legal staff could be used in 70 precognition officers are employed in the this role. They have also expressed doubts whether procurator fiscal service and another five in the legal resources would be saved, delays reduced or the Crown Office’s fraud unit. quality of work improved by such a measure. Nevertheless, in the National Audit Office’s view the 5.8 However, there are sane disadvantages in Crown Office should consider further, in conjunction employing precognition officers. In the past the with fiscals, whether more could be done to make depute fiscal who interviewed the witnesses in a High greater use of non-legal staff for the more routine Court case attended court so as to be available should aspects of the work, and should consider developing the prosecuting advocate depute wish to clarify appropriate criteria to provide the necessary guidance aspects of the evidence. Under the revised on training and supervision. The need for a fresh arrangements, where a precognition officer has initiative in these matters is underlined by the interviewed the witnesses, he attends the court; but continuing staffing difficulties referred to below. some procurators fiscal have criticised this practice on the grounds that an unqualified person is not 5.11 Recorded crime in Scotland has increased by competent to answer the prosecuting advocate Over 30 per cent in the last ten years with an even depute’s questions. Some advocates depute do not greater increase in more serious crime. And there has request a precognoser to be in attendance at all. In been a marked increase in the number of not guilty sane locations a senior member of the procurator pleas in this time. Over the same period there has fiscal staff has responsibility for all ongoing High been a 41 per cent increase in the staff employed in Court cases, including answering advocate depute’s the procurator fiscal service. Nevertheless, the police queries, and the precognoser is not required to attend have told the National Audit Office that in their view court. A further disadvantage is that where a legally the service is suffering from a shortage of staff in qualified member of staff has prepared a case for trial general and of legal staff in particular. This is a view before sheriff and jury he is qualified then to present which sane fiscals have themselves expressed, it in court, whereas a precognition officer is not. illustrating it by pointing to the need for increasing amounts of unpaid overtime to be worked. In their 5.9 The possibility of improving efficiency by view a satisfactory level of service at present relies delegating more work from professional to non- very largely on the extra efforts and goodwill of their professional staff was considered by a Treasury team staff; but this cannot continue indefinitely, and with carrying out a staff inspection of the Glasgow fiscal the rising crime rate the service will face difficulties office in 1984. They considered that there was scope in maintaining standards with present complements. for delegating some of the work associated with alternatives to prosecution to non-professional posts, 5.12 A key element in improving efficiency and with only exceptional cases having to be referred to making the best use of available staff is the legal staff. This work did not in their view appear to information technology now being introduced into be very different from work elsewhere in the civil fiscal offices and the Crown Office, a process which service where staff at relatively junior levels are started in 1984. Computers are being used for such required to make judgements in specific cases against purposes as following the progress of police reports, carefully drawn criteria. The team’s recommendations the production of standard documents and the were however rejected on the grounds that the production of a database of Scottish case law. They proposals showed a lack of understanding of the legal are also being used to produce management knowledge required for such work. information. Plans are well advanced for the electronic transmission of documents between the 5.10 Other fiscals have confirmed to the National police, the fiscals and the courts and a preliminary Audit Office that they do not consider there to be study has begun in one fiscal office. A comprehensive scope for extending the role of non-legal staff; for review of information systems has recently been example, they have pointed out that in considering completed, and the Crown Office have confirmed that alternatives to prosecution, a knowledge of what this addresses many of the operational issues raised constitutes “sufficient evidence” can only be gained by the National Audit Office during their examination.

17 PROSECUTION OF CRIME IN SCOTLAND: REVDEW OF THE PROCURATOR FISCAL SERVICE

Part 6: Delays Arising in the Prosecution Process

Delays at the investigation stage there are often several fiscals within the area of a single police force or even of an individual division, 6.1 It is the aim of the procurator fiscal service to and each fiscal has his own ideas on reporting progress prosecutions within statutory time limits and requirements and best practice. There may even be without unnecessary delay and, so far as it is within inconsistencies in the requirements of different their control, to bring cases to an early conclusion. depute fiscals within an office. Rather than risk The prosecution process is governed by a number of having a report returned by the procurator fiscal, the statutory time limits and systems are in force to police say they try to anticipate all the possible identify cases subject to such time limits and ensure requirements, and this inevitably leads to longer that they are progressed to avoid becoming time- preparation time and to longer reports. barred. This involves not only the individual fiscal offices but also the Crown Office and liaison with Delays before cases come to trial other bodies, such as the prisons. Records are not kept of the number of cases which in practice become 6.5 Under solemn procedure there is no initial time-barred, but the National Audit Office were told hearing to consider pleas. The procurator fiscal sets that as a result of the special efforts made very few out the charge in a petition and moves for committal such cases arise. for further examination or for trial. The accused may be given an early opportunity to state his position 6.2 There are however backlogs of work at various regarding the charge, but he may and usually does stages. In 1987 18 of the 49 fiscal offices did not meet decline to answer any questions. If the accused their target of between 4 and 9 weeks for issuing a wishes to plead guilty, however, he may request by complaint in a non-custody summary case; in nine letter an accelerated disposal of his case. offices this target was on average exceeded by more than four weeks. Again, fiscal offices work to a target 6.6 Under summary procedure, in the majority of of about one week for marking police reports, but the cases the accused is not arrested but is simply National Audit Office noted that at the end of charged. He is subsequently sent a complaint, which November 1987 almost a quarter of the offices had specifies a date and time for him to appear in court backlogs of cases awaiting marking that were greater for the preliminary hearing. The period between the than could be dealt with in the target period. service of the complaint and the preliminary hearing varied in 1987 between one and six weeks in both 6.3 Many of the factors which lengthen this stage of sheriff and district courts. This delay is not the the prosecution process are however beyond the responsibility of the procurator fiscal but depends on controlof the procurator fiscal. Investigation and the volume of cases and the frequency with which reporting is primarily the responsibility of the police such courts are held. or other agencies. Most police forces have a target of submitting a report to the fiscal within two weeks of 6.7 If the accused pleads guilty at the preliminary the charge. But currently in one city reports are still hearing he is usually dealt with there and then. occasionally being received up to six months after the Where he pleads not guilty the date of the trial is charge although concerted efforts are being made to proposed by the court clerk and checked by the fiscal improve the situation. for availability of witnesses. The Crown Office consider that the interval between preliminary and 6.4 The police have explained that many factors trial hearings should not normally exceed about 14 contribute to delays at the investigation stage. Many weeks. However, National Audit Office examination of these arise from the investigation itself or, for of statistical returns relating to summary criminal example, because of major incidents or crimes business at both sheriff courts and district courts over requiring the redeployment of manpower; but in the period 1 April 1987 to 30 September 1988 addition the police consider that delays in submission showed that the expected time for a preliminary of reports arise also from inconsistent instructions hearing to reach full trial ranged from 3 to 45 weeks received from procurators fiscal. As previously noted, in the sheriff courts and up to 43 weeks in the district

18 PROSECUTION OF CRIMX IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVXE

Table 4 Summary criminal business - Sheriff Courts Delay in weeks between pleading and trial hearings June 1987 - September 1988

Haddington 10 10 14 37 45 31 Dumbarton 20 27 26 30 31 23 Hamilton 28 27 17 11 16 22 Paisley 26 31 22 21 19 20 cupar 12 12 10 10 11 19 Edinburgh 15 16 18 16 16 19 AF 16 17 14 18 18 18 Fort William 12 10 8 12 20 18 Glasgow 12 17 17 19 18 17 Aberdeen 12 16 16 13 17 17 Dumfries 19 19 20 20 20 16 Kilmarnock 17 18 16 21 17 16 Kirkcudbright 11 12 13 10 12 16 Airdrie 15 19 15 14 14 15 Arbroath 15 14 12 13 14 15 Stolnoway 10 12 12 12 14 14 Campbeltown 12 10 12 8 16 13 Peterhead 12 9 10 12 14 13 Stirling 15 9 8 10 14 12 StX%lK%?~ 14 17 10 9 12 12 Greenock 17 10 11 12 21 11 Dornoch 12 4 10 11 9 10 Alloa 25 18 20 13 17 10 Dunfermline 15 18 17 15 15 10 Linlithgow 11 9 9 9 14 10 Oban 10 12 10 8 10 10 Peebles 6 8 8 10 10 10 Lanark 11 8 7 8 8 9 Bmff 13 10 9 6 13 9 Inverness 12 11 11 10 10 9 Dunoon 12 11 13 13 13 9 P&h 15 14 11 12 14 9 Lerwick 5 5 7 7 14 8 Lochmaddy 12 8 8 8 12 8 Dingwall 10 10 7 8 12 8 P0rtree 12 12 11 8 12 8 Stonehaven 12 9 7 10 12 8 Wick 12 8 8 7 9 8 Kirkcaldy 10 11 9 10 8 7 Elgin 11 10 8 8 10 7 Dundee 6 6 8 8 8 7 Falkirk 14 12 14 13 11 7 Kirkwall 4 8 8 10 12 7 Forfar 15 12 11 10 10 7 Selkirk 12 6 6 6 11 6 Tain 11 7 8 8 8 6 Rothesay 8 6 8 8 9 5 Jedburgh 13 6 8 8 4 5 Duns 10 5 4 6 4 3

19 PROSECUTION OF CRIMB IN SCOTLAND: REVIEW OF THE PROCURATOR FISCAL SERVICE

Table 5 Summary criminal business - District Courts Delay in weeks between pleading and trial hearings June 1987 - September 1988

.,. ” ., 1,/ ,,. ,../, court ‘, 30.6.87 30.9.8+ 3Cli.87 “31.5.88 - Hamilton 20 28 38 38 40 43 Haddington 22 18 21 28 36 34 Paisley 18 19 21 6 30 25 Dumbarton 10 16 16 18 22 22 Glasgow 21 20 17 27 24 21 AYr 20 12 12 18 18 18 Falkirk 12 7 11 13 20 17 Forfar 16 24 20 20 16 16 Stonehaven 6 7 14 8 14 16 Aberdeen 15 12 9 14 18 15 Dllnlflies 16 11 12 8 9 15 El@ 16 6 12 10 13 14 Stimaer 8 12 8 8 8 13 Dunfermline 15 11 7 12 16 12 Airdrie 11 11 13 17 14 11 Linlithgow 14 7 9 11 16 11 All0a 21 19 20 17 16 10 Dornoch 8 8 8 10 10 10 Edinburgh 20 11 17 23 20 10 Kilmarnock 14 12 11 11 14 10 Peterhead 16 9 16 16 13 10 Stirling 18 14 12 8 11 10 Stornoway 10 10 10 10 10 10 cupar 9 7 6 7 7 9 Campbeltown 4 4 4 8 8 8 Dingwall 4 4 4 4 8 8 Inverness 15 15 18 18 14 8 Kirkcudbright 8 8 8 8 8 8 Peebles 4 5 4 4 4 8 PO&?lZ 8 8 6 - 6 8 Wick 5 a 2 8 8 8 Greenock 7 9 8 6 10 7 Dundee 8 7 6 7 4 6 Kirkcaldy 14 14 14 11 7 6 Lanark 9 6 10 8 8 6 Perth 6 8 6 5 4 6 Selkirk 9 4 9 9 6 6 Tain 4 6 4 6 4 6 Arbroath 4 4 4 4 4 4 Dunoon 4 4 4 4 4 4 Duns 4 4 4 6 4 4 Fort William 8 6 6 4 4 4 Jedburgh 9 6 5 5 7 4 Rothesay - - 8 8 4 4 Oban 8 8 8 8 8 3 Baff 15 11 10 11 15 -

(NB: No District Courts in Kirkwall, Lochmaddy or Lerwickl

20 PROSEC”TION OF CRIME IN SCOTLAND RR”IEW,OF THE PROCURATOR FISCAL SERVICE courts. At a number of both sheriff and district courts Office noted that as a result of recent discussions over delays of 20-30 weeks or nmre were frequently the serious delays at Haddington sheriff court for occurring - see Tables 4 and 5 - and that at two example, the Scottish Courts Administration opened a particular courts delays of nmre than 40 weeks were second court there in January 1989. But this is not expected to occur. There is a risk that very long delays the only example of serious and growing delays, as in bringing cases to trial are likely to impair the indicated in Tables 4 and 5. A committee under the administration of justice. chairmanship of Lord Stewart which reviewed alternatives to prosecution in 1983 highlighted the 6.8 The date of a trial may be delayed for a number inordinate pressure on the criminal justice system as of reasons. Replies from fiscals to the National Audit being the main cause of delays. In the National Audit Office questionnaire indicated that the main causes Office’s view steps to establish the causes and to W!?W tackle the long delays need to be considered by the Crown Office in conjunction with the various other [a) non-availability of sheriffs (30 per cent]; bodies concerned. (b] lack of court accommodation (18 per cent); 6.11 One way forward which has already been (c) shortage of court clerks (14 per cent]. suggested is to hold extra court hearings. The Crown Office have received requests from sheriffs principal These matters are not the responsibility of the to provide extra fiscal staff to allow extra courts to be procurator fiscal service but of the Scottish Courts held to reduce the delay between preliminary and Administration, see below. However, smne 50 per trial hearings. Whilst there appears to be little cent of fiscals stated that a shortage of their own staff difficulty in employing temporary sheriffs to man resources was a major factur in delays, including the such extra courts, the Crown Office told the National non-availability of prosecutors. The National Audit Audit Office that the procurator fiscal service finds it Office were told that on occasions a court has had to difficult to recruit temporary prosecutors. In their be cancelled at short notice because the fiscal cannot view the main rearm is that temporary sheriffs can provide appropriate staff. Cancelling a court is a last be offered much higher fees than temporary resort, but in Edinburgh, for example, about six courts prosecutors. have to be cancelled each year. Waiting time of witnesses and police 6.9 The Scottish Courts Administration is responsible for ensuring that adequate court 6.12 The Crown Office know from past experience accommodation and the judiciary and appropriate that in approximately 40 per cent of cases an accused court officials are available. And the statutory will plead guilty on the day of the trial and the case responsibility for the speedy and efficient disposal of will be disposed of without taking evidence: a further court business lies with sheriffs principal. 40 per cent will be adjourned through non- Nevertheless, the Crown Office are ultimately appearance of the accused or witnesses or through responsible for bringing a case to trial and they have lack of time; and in only about 20 per cent of the confirmed that they discuss with the other trials set down will evidence actually be heard. responsible bodies ways to ~vercmue the problems Courts are therefore deliberately over-booked. that arise. Regional procurators fiscal also investigate Sufficient trials are set down for each day to allow for instances of abnormal delays at courts within their late pleas and adjournments. administrative area. 6.13 On average eight summary trials are set down 6.10 The Scottish Courts Administration have to be heard each day for each court and all the advised the National Audit Office that, in witnesses for each trial are cited to attend at the collaboration with the sheriffs principal, a range of beginning of the day. At the start of the sitting there measures have been and are being taken to tackle is a “callover” to check the presence of accused and delay problems where they occur for court related witnesses to find out which trials are ready to reasons. These measures include a major court proceed. If it is necessary to adjourn a trial at that building and refurbishment programme, running at stage, for example through the absence of a key some f15 million per year, the appointment of figure, then the witnesses are dismissed. But as it is additional sheriffs, both permanent and temporary, not possible to estimate the length of any trial, reviews of court practices and procedures and the witnesses already called are not necessarily dismissed introduction of targets and performance indicators even if it is unlikely that the trial with which they are covering a wide range of court business. It is not clear concerned will start that day. Witnesses may at this stage how far these proposals will help to therefore have to wait all day without being called to alleviate the problems of delay. The National Audit give evidence. And where a trial has to be adjourned

21 PROSECUTION OF CRIME IN SCOTLAND: REVIEW OF THE PROC”RATOR FISCAL SERVICE to another date through lack of time, the witnesses frustrated by events. For example, in Edinburgh the will have to come back once again. procurator fiscal notifies the police of the date of the trial as soon as it is fixed, to allow duties of officers 6.14 In the High Court and in some sheriff and jury involved to be revised if possible; but when witness courts up to a dozen trials are set down for a sitting citations are sent out nearer the trial date some of due to last a fortnight or five for a week long sitting. these officers may not in practice be required to One trial and one backup trial are fixed for the first attend. day and the remainder are fixed at intervals throughout the sitting. In High Court trials the order 6.18 In 1985 an inter-departmental working party of witnesses is decided by the prosecuting advocate, under the chairmanship of the Secretary of the and where this has not been notified sufficiently in Scottish Home and Health Department considered advance the procurator fiscal may have called on all ways of reducing police time spent at court. The the witnesses to attend from the outset. On occasions working party which reported in 1987 concluded that over 100 witnesses have been cited for the first day of the way forward was to extend and maintain a trial. The police gave the National Audit Office discussion and action at local level involving sheriffs examples where the majority of witnesses in such principal, fiscals and the police. In the National Audit cases were then dismissed and told to return instead Office’s view more positive action is needed to over a series of days. Changes have recently been resolve this problem; and in any case the working introduced in the system to help ensure that only a party’s remit did not extend to the parallel problem of reasonable number of witnesses are cited for each waste of witnesses’ time. The Crown Office have set day. up a working party to investigate further ways of tackling these problems. 6.15 Time wasted by witnesses waiting for a trial to proceed is matched by time wasted by the police. 6.19 It is the practice in Scotland for witnesses to Chief police officers have expressed their concern to give evidence in person in open court rather than the National Audit Office at the amount of time their through sworn and signed statements. Some officers spend in court waiting to give evidence, and procurators fiscal believe that the number of estimate that 60-70 per cent of police witnesses are witnesses cited to attend in court could be reduced if not called to give evidence on the first day they are statements given to the police were sworn and signed cited to attend court. The police estimate that in the by the witness and were then admissible in court. course of a year some 150 man-years of police These could then be served on the defence, and only resources have been spent on unnecessary waiting those witnesses the defence wished to challenge time. would need to be cited to appear. The Scottish Law Commission has investigated this proposal and issued 6.16 Waste of police time is exacerbated by police a consultative document in October 1988 to which regulations, which require 29 days notice to be given the Crown Office will be responding. to an officer if his scheduled rest day is to be changed because, for example, he has been cited to attend Court utilisation court to give evidence or to attend the procurator fiscal office for a precognition. If insufficient notice is 6.20 Courts normally sit from 10 am until 4 pm each given the officer is entitled to time off in lieu or day. But the start of business is often delayed, and an enhanced overtime payment; and if the notice is very analysis by the National Audit Office of one sheriff short, he might receive both payment and time off in summary court over a recent three month period lieu. The police estimate that throughout Scotland in showed that the average finishing time was 2.40 pm. 1987 overtime payments associated with time spent Procurators fiscal and police officers have suggested in court cost about E2.5 million, despite every effort to the National Audit Office that delays might be being made to avoid such overtime by changing rest reduced by longer sittings each day. The days and shifts. The police are also concerned that practicability of any such change would have to be civilian witnesses who have suffered inconvenience examined in the light of its effect on non-criminal and cost through excessive time waiting in court to work of the courts. Fiscals also have regular meetings give evidence will be less willing to come forward as with sheriff clerks to discuss the optimum number of witnesses in future. trials to be set down each day to make best use of court time. 6.17 Fiscals recognise that the police and civilian witnesses suffer cost and inconvenience in such 6.21 Procurators fiscal have said that in their view circumstances and make every effort not to cite the major cause of court overcrowding is late pleas. In witnesses unnecessarily. However, even where efforts approximately 40 per cent of sheriff summary trials are made to secure better liaison these may be set down each day, the accused pleads guilty at or

22 PROSECUTION OF CRIME IN SCOTLAND REVIEW OF THE PROCURATOR FISCAL SERVICE

shortly before the trial, having previously pleaded not offices away i?om court buildings. This impacts also guilty. Much of the work carried out in prep&ring a on the conduct of the fiscal’s business, since it can case for trial would be avoided if the fiscal were told mean that fiscal staff cannot easily return to their of such changes of plea by the defence in advance of office during court adjournments. In both Edinburgh the trial. Witnesses and the police would also not be and Glasgow it is estimated that travelling time of this called to attend the court. Two main factors were said kind amounts to one depute fiscal day per week. to influence late changes of plea - the attitude of the accused and entitlement to legal aid. 6.26 In an attempt to reduce the number of late pleas, the option of an intermediate hearing was 6.22 Although the defence solicitor will be aware of introduced by the Criminal Justice (Scotland] Act the strength of the case against his client, he is under 1980. A sheriff could inquire into the progress of the no obligation to inform the procurator fiscal of a prosecution and defence cases and whether the change of plea in advance of the trial. The accused accused intended to maintain his plea of not guilty. has in fact everything to gain by maintaining a not However, in those courts where such intermediate guilty plea for as long as possible, as he is fully hearings have been held they have not made a entitled to do. There is always the possibility that significant impact, as noted below. something might occur at the last minute which could severely damage the prosecution case, such as 6.27 In Edinburgh the potential benefits of the non-availability of a key witness. The accused intermediate hearings were explored in 1982 and may also wish to postpone the imposition of a 1983. Where an intermediate hearing was held one custodial sentence or a fine for as long as possible. week before the full trial there was a 50 per cent reduction in the number of accused waiting until the 6.23 It is open to sheriffs to express disapproval to trial itself before pleading guilty. This meant a saving defence solicitors about late changes of plea, and to in the time of police and witnesses, who no longer demand explanations. But there is no sanction against needed to attend the trial; but there was no reduction a late plea, nor any incentive for an early plea. A in the work falling on the fiscal since at that late stage recent Appeal Court judgement has specifically ruled much of the preparation had already been done. out the possibility of lighter sentences or fines in Indeed there could even be extra work involved in return for early pleas. countermanding citations already sent out to witnesses. And where the intermediate hearing was 6.24 Some procurators fiscal also advanced the view held four weeks before the trial to provide greater that the current legal aid regulations act as a financial notice, fewer accused pleaded guilty at the incentive to the defence to maximise the amount of intermediate hearing, with correspondingly more work undertaken up to and at the trial. A defence saving a late change of plea for the trial. solicitor’s fees covered by legal aid relate to the time spent attending with clients, taking precognitions, 6.28 The holding of intermediate hearings also and to the time spent in court. The greater this increased delays in the courts without any involvement the higher the fee. Some fiscals saw a corresponding savings elsewhere. It was decided clear risk that some defence solicitors and counsel therefore that this procedure should be kept for were prepared to prolong cases unnecessarily. selected cases such as trials of abnormal length. Criminal legal aid in Scotland is running at around s35 million a year. 6.29 Clearly there are no simple solutions to the causes and consequences of the present court 6.25 The procurator fiscal has a duty to encourage programming arrangements. The National Audit the defence to engage in pre-trial discussion - for Office invited fiscals to suggest how the system could example, to agree a plea or to agree formal evidence be improved, and although no new ideas were put in joint minutes, thus avoiding the need for witnesses forward there was a repeated concern that more use to attend the court. However some defence solicitors should be made of existing measures. The most refuse a pre-trial discussion, in the view of some common suggestion was for more pretrial discussion fiscals because of poor communications with their with the defence to encourage early pleas, for plea client or because of the financial benefits from taking negotiation and for joint minutes of evidence to the case to trial. There are, however, practical reduce witness attendance. The Crown Office have difficulties which may also inhibit such exchanges: made the legal profession aware that fiscals are for example a factor which does not encourage the always willing and available to meet defence defence to engage in pm-trial discussions is the solicitors for these purposes, but there has been only housing of almost 40 per cent of procurator fiscal a limited response.

23 PROSECUTION OF CRIME IN SCOTLAND REVIEW OF THE PROC”RATOR FISCAL SERVICE

Glossary of Terms

Advocate Depute an advocate appointed by the Lord Advocate to prosecute under his direction, and paid by salary. citation a summons to the accused, witnesses and jurors requiring their attendance at court complaint the form in which a criminal charge is made in summary proceedings at the instance of the procurator fiscal

Depute Fiscal a legally qualified member of the procurator fiscal’s staff holding a commission to prosecute in the sheriff and district court diet the meeting of the court for the purpose of taking proceedings in any prosecution marking the initial consideration by the procurator fiscal of a report and the decision on prosecution or an alternative minute of admission and a minute signed by both parties and lodged with the clerk of the agreement, joint minute court, any facts and documents therein are deemed to have been duly proved petition the initial writ in solemn procedure, setting forth the name, designation and address of the accused, the charge and asking for the necessary warrants pleading diet sitting of the court at which the accused pleads guilty or not guilty precognition a preliminary examination of a witness in a criminal trial to obtain advance knowledge of his evidence, which is then set out in a precognition s102 plea in solemn procedure the accused may give written notice to the Crown Agent that he intends to plead guilty and wishes to have his case disposed of at once

Sheriff a judge in the sheriff court who must have been qualified as an advocate or solicitor for at least 10 years solemn procedure the procedure under which a person charged on indictment is tried before the High Court or sheriff and jury summary procedure criminal proceedings taken otherwise than on indictment

24