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Thematic Report on The Inspectorate of Prosecution in Scotland Thematic Report on the Victims’ Right to Review and Complaints Handling and Feedback Follow-Up Report May 2018 © Crown copyright 2018 Produced and Published by the Inspectorate of Prosecution in Scotland (IPS) ISBN: 978-1-78851-890-1 http://www.gov.scot/about/public-bodies/ipis If you require this publication in an alternative format and/or language, please contact us to discuss your needs. ~ 1 ~ Contents Page Part I – Victims’ Right to Review Introduction 4 Key Terms 5 Key Findings 7 Recommendations 8 VRR Policy, Processes and Procedures 9 Case Review Sample 11 Application of the Reasonableness Test 12 Quality of Reviews 15 Effectiveness of Review 15 Quality of the VRR Process 16 Notification of Decisions 17 Time Limits 21 Communication and Contact 26 Timeliness of the VRR Process 30 Annex A – Criminal Law and Procedure 32 Annex B – Victim Information and Advice (VIA) Remit 35 Part II – Complaints Handling and Feedback Follow-Up Report Introduction 2 Follow-Up 3 Other Developments 5 Recommendations 7 Progress Against Recommendations 8 Concluding Remarks 13 ~ 2 ~ Part I – Victims’ Right to Review ~ 3 ~ Introduction Victims’ Right to Review The Victims’ Right to Review (VRR) scheme was introduced by the Crown Office and Procurator Fiscal Service (COPFS) on 1 July 2015.1 The VRR scheme gives victims the right to request a review of a decision by COPFS not to prosecute a criminal case or to discontinue criminal proceedings that have commenced.2 For victims of crime or bereaved relatives, contact with the criminal justice system is unfamiliar and often traumatic. Providing reasons for such decisions is essential to retain confidence and to deliver accountability and transparency to those whose lives have been affected and allows victims to make an informed decision on whether to submit a VRR. To place the number of VRRs in context, between 1 April 2016 and 31 March 2017, COPFS received 195,731 criminal reports3 of which there were 50,729 cases where there was a decision not to prosecute or to discontinue a prosecution.4 Over the same period, 166 applications seeking a review were received5 equating to one review for every 306 cases where a decision was taken not to prosecute or to discontinue criminal proceedings. Of these 146 were upheld or withdrawn and 17 (10%) were overturned. Aim The aim of the inspection was to assess the operational effectiveness of the COPFS Victims’ Right to Review Scheme having regard to: The effectiveness of procedures and processes; The quality and robustness of reviews; and The communication and contact with victims. Methodology We adopted a mixed-method approach which combined the following evidence-gathering methods: Interviews with key personnel involved in allocating, monitoring and conducting reviews in COPFS and personnel involved in VRR schemes in other UK jurisdictions; Document Review: A review of COPFS departmental protocols, policies, rules, guidance and management information and VRR schemes in other UK jurisdictions; and Case Review: We examined a significant sample of 55 cases – in two there were two victims who submitted a VRR – resulting in 57 VRR applications. Acknowledgement We wish to thank all who participated in the review and shared their experience and knowledge. 1 The Right to Review was introduced into Scots Law by Section 4 of the Victim and Witnesses (Scotland) Act 2014. 2 VRR gives effect to the principles laid down in Article 11 of the European Directive 2012/29/EU on establishing minimum standards on the rights, support and protection of victims of crime: Article 11 enables victims to verify that a correct decision has been made not to prosecute by the prosecuting authorities. 3 Excludes death reports. 4 Performance Statistics – ‘No action cases reported to COPFS’ – http://www.copfs.gov.uk/publications/statistics 5 RIU statistics. ~ 4 ~ Key Terms Accused Person charged with committing a crime. Advocates Depute Advocates Depute are prosecutors appointed by the Lord Advocate. Advocates Depute prosecute all cases in the High Court and present appeals in the Appeal Court. Bail Release from custody of an accused person until the trial or next hearing. Charge The crime the accused is alleged to have committed. Committal for Further Examination (CFE) First appearance of an accused at court in solemn proceedings. Complaint Formal document initiating proceedings in the Sheriff summary court or Justice of the Peace court. Crown Counsel Collective term for the Law Officers (Lord Advocate and Solicitor General) and Advocates Deputes. Crown Office and Procurator Fiscal Service (COPFS) The independent public prosecution service in Scotland. It is responsible for the investigation and prosecution of crime in Scotland and the investigation of sudden, unexplained or suspicious deaths and allegations of criminal conduct against police officers. Crown Prosecution Service (CPS) Principal prosecuting authority for England and Wales, acting independently in criminal cases investigated by the police and others. European Union Directive A legal act of the European Union, which requires member states to achieve a result without specifying the means of achieving that result. High Court of Justiciary The Supreme Criminal Court in Scotland with sole jurisdiction to deal with the most serious crimes such as murder and rape. Indictment Court document that sets out the charges the accused faces in solemn proceedings. Law Officers The Lord Advocate and the Solicitor General for Scotland: The Lord Advocate is the Ministerial Head of COPFS and is the senior of the two Law Officers. ~ 5 ~ No Action decision (NA) A decision made by a prosecutor not to prosecute an accused for an offence that has been reported by the police or other reporting agency. No Further Action decision (NFA) A decision made by a prosecutor to discontinue a prosecution against an accused for an offence that has commenced in Court. Petition Formal document served on the accused in solemn proceedings at first appearance, giving notice of the charges. Place on Petition Decision by the prosecutor to commence solemn criminal proceedings. Procurators Fiscal Prosecutors who receive reports about crimes from the police and other agencies and make decisions on what action to take in the public interest and, where appropriate, prosecute cases. They also investigate deaths that require further explanation and where appropriate conduct Fatal Accident Inquires and investigate criminal complaints against the police. Public Prosecution Service, Northern Ireland (PPSNI) The department of the Northern Ireland Executive responsible for public prosecutions of people charged with criminal offences. Solemn proceedings Prosecution of serious criminal cases before a judge and jury in the High Court or Sheriff Court. Summary proceedings Prosecutions held in the Sheriff or Justice of the Peace Court before a judge without a jury. Victim Someone who has suffered harm, including physical, mental or emotional harm or economic loss directly caused by a criminal offence, including: family members of a person whose death was directly caused by a criminal offence, and who have suffered harm as a result of that person’s death; and businesses and other organisations that have suffered loss.6 Victim Information and Advice (VIA) The dedicated service provided by COPFS to victims, witnesses of certain crimes and bereaved relatives. 6 As specified in the Lord Advocate’s Rules – see paragraph 1. ~ 6 ~ Key Findings Different approaches were applied by those undertaking reviews. The VRR process was robust with reviewers overturning decisions where they found the initial assessment of sufficiency and/or the public interest to be incorrect or unreasonable. Of the 57 applications examined, we found 91% (52) were conducted independently, thoroughly and to a high standard. Specialist areas of law require the reassurance of a specialist undertaking the review. There is a correlation between victims not being notified of decisions not to prosecute or to discontinue proceedings and delays in VRRs being submitted. The optimum approach would be to notify all victims of decisions not to prosecute. There was a commitment in the Response and Information Unit (RIU) to conduct full and thorough reviews and responses were generally empathetic. In the majority of the 57 applications reviewed, efforts had been made to respond to all issues raised and where there was fault or poor service, it was generally acknowledged, often with an apology. 70% (40) of the responses were issued more than 20 working days after receipt of the application. ~ 7 ~ Recommendations Recommendations 1 and 2 COPFS should provide guidance on the factors to be considered and the approach to be taken to conducting VRRs – it should be supplemented by workshop training for the core participants involved in such reviews. COPFS should ensure that the factors taken into account and the reasons for the initial decision and the outcome of the review are recorded in a consistent and standardised manner. Recommendation 3 COPFS should ensure that reviews, involving specialist areas of law, including sexual crimes, are conducted by a prosecutor with the relevant specialist skills and expertise regardless of whether the offence(s) is likely to be prosecuted at solemn or summary level. Recommendation 4 COPFS should clarify who is responsible for notifying victims of any decision to discontinue proceedings in summary cases that do not fall within the VIA remit and reinforce and embed existing policies regarding notification of decisions not to prosecute and to discontinue proceedings. Recommendations 5 and 6 COPFS should work towards a system of notifying all victims of decisions not to prosecute, whether through the use of IT solutions or otherwise. COPFS should undertake a review of the VIA remit to assess whether it remains appropriate following the prosecution policy review. Recommendation 7 COPFS should undertake a review to identify all summary offences, involving victims and a statutory time limit, where there is no suitable alternative charge, with a view to extending notification of decisions not to prosecute to such offences.
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