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2 CASE ANALYSIS - Review of Case Marking and Processes

As the main function of the Crown Office and Procurator Fiscal Service is the investigation and prosecution of crime a major focus for the inspection is how reports from the police and other agencies have been considered and what action taken.

As part of the Inspection process 180 recently closed cases were selected for review. The criterion was to select a number of cases relating to various different offences (ranging from minor statutory and nuisance offences to the most serious High Court matters) which would allow inspection of case marking and case processing decision-making across the full range of cases from receipt of the reports to closing off of the cases. Other than an attempt to review a variety of types of offences and disposals the selection process was essentially random and the number of cases reviewed is not intended to be statistically significant however the review process does provide a useful snapshot of the workings of the offices concerned.

The review process involved requesting the original case papers and manually reviewing these together with interrogating the related IT Systems.

Where no hard copy papers were provided review was carried out solely by interrogation of the IT systems where this was possible. In the first three heads of review "No Proceedings, Warnings and Fiscal Fines" all marking correspondence is, in the normal course of events, carried out on-line with no hard copy file being produced. There are currently a number of IT Systems on which cases are processed and data preserved. The systems work in tandem and data is shared and moved from system to system and from hard copy to IT thus data integrity is an issue of some importance.

RESULTS OF ANALYSIS:

RACE CASES

Our country wide inspection of the Service's dealings with race cases and allied issues ended in the spring of 2007 but we have continued this in the Area inspections but in a way which gives simply a snapshot rather than the statistically relevant sample used when this was the main focus of our office inspections. Our office inspection reports for the offices at Ayr and Kilmarnock can be found on our website at:

www.scotland.gov.uk/Topics/Justice/ipis

Crown Office policy on the prosecution of race crime is a robust one and the execution of the policy is closely monitored by the Department. A member of legal staff decides what course of action to take in each case, this is then checked by the District Fiscal for compliance with the Departmental policy and a copy of the case is then sent to the Area Fiscal. Responsibility for the monitoring of compliance in such cases lies with the Area Fiscal.

We requested 10 cases in total and looked at them hard copy to ascertain if Crown Office policy and practice was being followed. We requested:

• 5 cases from Ayr and these were received
• 5 from Kilmarnock and these were received

We examined the cases to see if Crown Office policy was followed in the marking and taking up of such cases and then secondly to see if Crown Office policy was followed at court to ensure there was no gap between policy and practice.

In the 5 cases received from Ayr we found a very high compliance with Crown Office policy.

• Cases were taken up which should have been
• They were taken up in the correct court
• The correct charges were used
• The racial element of cases was not negotiated away at court
• Cases were referred to Victim Information and Advice ( VIA)

In only one case were proceedings discontinued and that was due to the complainer emigrating to Australia and there was insufficient evidence as a result. One of the cases was a counter charge so we examined the associated case on line, it too had been dealt with as it should have been in terms of Crown Office policy.

In the 5 cases received from Kilmarnock we found high compliance with Crown Office policy

• Cases were taken up which should have been
• They were taken up in the correct court
• The racial element was not negotiated away at court although in one case a plea of not guilty to one charge with a racial aggravation was accepted although in the circumstance of that case we would take no issue with the plea and note that the matter had been discussed with the Area Fiscal prior to acceptance and in another 2, charges had wrongly attached racial aggravations but this was resolved when the accused pled to the appropriate racial charges
• Cases were referred to Victim Information and Advice ( VIA)

In conclusion in the 11 cases examined (10 hard copy and an associated case examined on line) we found a high degree of compliance with Crown Office policy and practice.

No Proceedings Markings

The Procurator Fiscal has discretion to mark a case reported as 'No Proceedings'. This means, as it says, there will be no action taken by the Fiscal by way of prosecution regarding the subject matter of that report. Indeed when that 'marking' is disclosed to the accused the Crown is precluded from any prosecution.

Crown Office and Procurator Fiscal Service guidelines and policy require the reasons for a 'No Proceedings' marking to be clearly minuted on each case. There are a number of approved categories of reasons for 'No Proceedings' - 12 specific and a 13th reason of 'other specified reasons… which must detail reasons why it would not be appropriate to prosecute'. In short these reasons range from there being insufficient admissible evidence available to secure a conviction to various other reasons why it would not be 'in the public interest ²' to prosecute or take other positive action against the accused (such as a Fiscal Fine or a Warning).

The following table shows the number of 'No Proceedings' cases in Ayrshire during period January 2007 to December 2007:

The number of 'No Proceedings' cases in Ayrshire account for 5.2% of the total 'No Proceedings' cases for the whole of the Crown Office and Procurator Fiscal Service.

The above table shows that 'No Proceedings' cases in Ayrshire account for 9.4% of the total reports received in the Area. This compares with a national figure of 13.3%.

A breakdown of reasons for 'No Proceedings' can be found at Appendix 1, Table 10.

Ayr

Taking the analysis from Ayr first the results were as follows:-

10 cases, in which proceedings were not taken, were selected from Ayr for inspection for this report. The cases were examined hard copy and on the IT systems.

A high degree of adherence to Crown Office and Procurator Fiscal Service policy and guidelines was found with the vast majority of the cases (8/10) being marked 'No Proceedings' in compliance with stated policy and guidelines and the correct category being stated.

The breakdown of categories of reasons for 'No Proceedings' in this sample was:

• 1 x not a crime
• 1 x mitigating circumstances
• 3 x further action disproportionate
• 3 x insufficient admissible evidence
• 2 x other

Timings:

There is an agreed protocol with the police that reports of criminal offences be submitted to the local Procurator Fiscal within 28 days of the offence or caution and charge. This was met in 7 of the cases. Of the 3 which did not meet this target 2 involved protracted enquiries and 1 was reported 3 days late.

The Crown Office and Procurator Fiscal Service target to mark and implement further action in criminal cases reported to it has recently been enhanced; with effect from April 2007. The target until the end of March 2007 was to do so in 75% of cases within 5 weeks of receipt. From April 2007 this period has been reduced to 4 weeks. 7 of the cases met the target. Of the remaining 3 cases, 1 was marked after the conclusion of an associated case and the remaining 2 cases were those involving protracted police enquiry and were marked after due consideration.

Communication With Victim/Complainer:

None of the cases were such that Crown Office and Procurator Fiscal Service guidelines would suggest intimation or communication with victim/complainer.

Other Issues:

One case related to a very serious allegation of sexual nature. The victim was a teenage girl under age of 16. The case had quite properly been marked "No Proceedings Insufficient Admissible Evidence" and that decision had been intimated to the police. There had been no referral to VIA. There are categories of cases which must be referred to VIA but arguably as there were no proceedings in this case the complainer should not be referred to VIA. This is a grey area which COPFS may wish to reconsider.

Areas to be Strengthened:

In one case it was felt that a 'No Proceedings' marking was premature. The case involved a very serious allegation, spoken to by one witness. The accused was now said to be abroad and had not been interviewed by the police. There was an indication in the police report that the accused had spoken to at least 2 witnesses about the incident. It was felt that clarification of exactly what was said should have been obtained to establish if corroboration was available.

In another case there were 2 charges. The first charge was a charge of assault upon a family member. The second charge was a charge of vandalism relating to shop premises. The complainer in the assault charge contacted the Procurator Fiscal and indicated she did not want to give evidence. She was required as a witness in the assault charge though not in respect of the vandalism charge. There appeared to be no reason not to proceed with the vandalism charge.

Kilmarnock

Taking the analysis from Kilmarnock the results were as follows:-

9 cases, in which proceedings were not taken, were selected from Kilmarnock for inspection for this report. The cases were examined hard copy and on the IT systems.

A high degree of adherence to Crown Office and Procurator Fiscal Service policy and guidelines was found with the majority of the cases (7/9) not being prosecuted in compliance with stated policy and guidelines although there were issues in some cases with the selection of the correct category.

The breakdown of categories of reasons for 'No Proceedings' in this sample was:

• 3 x insufficient admissible evidence
• 3 x further action disproportionate
• 1 x age of offence
• 1 x not a crime
• 1 x other

Timings:

There is an agreed protocol with the police that reports of criminal offences be reported to the local Procurator Fiscal within 28 days of the offence or caution and charge. In the 9 cases examined the police met the target in 6.

The COPFS target from April 2007 has been to mark 75% of cases within 4 weeks.

In the sample examined 5 cases were marked within target. Of the remaining 4, 2 were marked days late and no apparent reason could be seen to explain the delay in remaining 2 cases (approx 7 weeks from receipt in each).

Communication With Victim/Complainer:

None of the cases were such that Crown Office and Procurator Fiscal Service guidelines would suggest intimation or communication with victim/complainer.

Data Issues:

2 of the cases were marked for 'No Proceedings' but the correct marking was 'No Further Proceedings'. In 1 of the cases a Fiscal Fine had been offered, the accused indicated he had not been responsible for the offence and there was a discussion between the Depute and the solicitor. In the other case the accused had been referred to the Social Work Department for possible diversion from Prosecution. It was not possible to ascertain from the papers why the diversion had not been taken up.

1 Misuse of Drugs Act case was marked 'No proceedings age of offence', it had been reported to the Procurator Fiscal 11 months after the date of offence. The correct marking would have been 'No Proceedings Delay by Police'.

Areas to be Strengthened:

In one case the 'No Proceedings Insufficient Admissible Evidence' marking was wrong. The case related to 2 persons charged with shoplifting. There were sufficient eyewitnesses to implicate both accused in the commission of the offence. Further the police report referred to CCTV evidence but did not disclose what this was. The marking Depute did not appear to have sought clarification of this evidence.

Warnings

The Procurator Fiscal has discretion as to what form of action should be taken in cases reported. Indeed where there is sufficient evidence of both a crime and that a particular person committed it, consideration should be given as to whether court proceedings are merited in the public interest or whether some other action would be sufficient. This may take the form, in minor cases, of issuing a 'Warning' to the accused. This may be a written or personal warning although in practice personal warnings are rarely issued. This does not apply in cases reported by the Health and Safety Executive who have their own power to warn.

In the year to December 2007, 27,117 'Warnings' were issued by the Service nationally with 1,315 of these within the Ayrshire Area. Once a warning has been issued the Fiscal has waived the right to prosecute in court. This system of warning does not result in a conviction against the accused. However, the Fiscal is required to keep a local register of warnings and intimate in the warning that should a further similar report be received court proceedings will be considered.

The following table shows the number of 'Warnings' in Ayrshire during period January 2007 to December 2007:

The above table shows that 'Warnings' in Ayrshire account for 5.3% of the total reported cases received in the Area. This compares with a national figure of 7.9%.

The number of 'Warnings' in the Ayrshire Area account for 4.8% of 'Warnings' for the whole of the Crown Office and Procurator Fiscal Service.

Case Analysis:

Ayr

Taking the analysis from Ayr first the results were as follows:-

6 cases were selected for inspection for this report. 4 of the 6 cases were marked in accordance with Crown Office and Procurator Fiscal Service policy and guidelines.

Timings:

The police met the reporting target in 4 out of the 6 cases. The remaining 2 cases were reported very late, one was 14 weeks late and the other 13 weeks late, in neither case did the police provide an explanation. In one case the accused was in the army and this may have contributed to delay. The other case contained a religious prejudice aggravation and the Lord Advocate's Guidelines to the Police in relation to crimes involving religious prejudice were not followed.

In 3 out of the 6 cases the Fiscal met the COPFS target.

Communication with Victim/Complainer:

None of the cases were such that COPFS guidelines would require initiation of communication and/or intimation of the decision with the victim/complainer.

Good Practice:

In one case there was communication with police prior to a final decision being taken and in another a warning was issued to an accused where a co-accused was prosecuted and this was entirely appropriate.

Areas to be Strengthened:

In a case containing a religious prejudice aggravation we could find no evidence that COPFS policy was followed in that we could find no dealings with the case by the District Fiscal prior to the issue of a warning as is stated policy.

In another case reported under the Dangerous Dogs Act 1991 s3(1) a warning was issued despite there being insufficient evidence to prosecute.

Kilmarnock

Taking the analysis from Kilmarnock the results were as follows:-

6 cases were selected for inspection for this report. 4 of the cases were marked in accordance with Crown Office and Procurator Fiscal Service policy and guidelines.

Timings:

5 cases were reported by the police within 28 day target. 1 was reported after 15 weeks and there was no explanation for delay.

In only 3 of the cases did the Fiscal meet the COPFS target.

Communication with Victim/Complainer:

None of the cases were such that COPFS Guidelines would require initiation of correspondence and/or intimation of the decision with the victim complainer.

Areas to be Strengthened:

In one case the police report indicated that the accused spoke and understood very little English. There was nothing to indicate that the warning letter sent had been translated.

Fiscal Fines

The Procurator Fiscal may in cases where there is sufficient admissible evidence of a crime committed by a named accused person, consider action is merited in the public interest and that action stronger than a warning is required to mark the offence. In these circumstances there is statutory provision authorising the Procurator Fiscal to issue a monetary penalty by way of a 'Fiscal Fine' or Road Traffic 'Fixed Penalty'.

This is done in terms of a statutory framework provided by The Criminal Procedure (Scotland) Act 1995 for Fiscal Fines and The Road Traffic Offenders Act 1988 for road traffic Fixed Penalties. The current penalties range from £25 to £100 for Fiscal Fines and to £200 for road traffic Fixed Penalties. Where the Fiscal Fine/Fixed Penalty is unpaid, unless there are compelling reasons, the matter should be taken further and prosecuted. The type of offences which may be considered for Fiscal Fines is self-limiting in that they require to be capable of being prosecuted at the District Court in event of non-payment. The Road Traffic offences covered are detailed in the relevant legislation.

See Appendix 1, Table 9 for figures relating to Fiscal Fines in the Ayrshire Area for period January 2007 to December 2007.

Case Analysis:

Ayr

6 cases were selected for inspection for this report. These cases were chosen to provide a variety of offences and levels of Fiscal Fines/Fixed Penalty offered.

All of the cases were marked in accordance with Crown Office and Procurator Fiscal Service policy and guidelines.

Timings:

5 out of 6 cases were reported timeously by the police. There was no explanation for the 8 week delay in reporting the final case.

All of the cases were marked within the Departmental target date.

The offences disclosed in the inspection were:-

• 2 x contraventions of the drinking alcohol in public places byelaws (2)
• 1 x breach of the peace and resisting arrest
• 1 x breach of the peace
• 1 x assault
• 1 x possession of cannabis

The fines offered ranged as follows:

• 3 x £25 (1 case had 2 accused)
• 1 x £50
• 1 x £75
• 2 x £100

All of these Fiscal Fines were paid. In 2 cases we noticed that the IT system had provided decision support for the marker who had accepted this.

Kilmarnock

6 cases were selected for inspection for this report. These cases were chosen to provide a variety of offences and levels of Fiscal Fines/Fixed Penalty offered.

5 of the cases were marked in compliance with Crown Office and Procurator Fiscal Service policy and guidelines. In respect of the 6th case which contained 3 charges a Fiscal Fine of £100 was offered to the accused in respect of all 3 charges but sufficient evidence existed for only 2 of them. The offer of a Fiscal Fine was not inappropriate in respect of the first 2 charges.

Timings:

Only 2 of the 6 cases were reported by the police timeously. 1 case involved controlled drugs and this may have contributed to the delay but in the remaining 3 cases there was no explanation for the delay.

In 5 of the 6 cases the Fiscal met the Departmental target.

The offences disclosed in the inspection were possession of drugs, breaches of the peace, vandalism, assault and contraventions of the Police (Scotland) Act 1967 and the Environmental Protection Act 1990.

The fines offered ranged as follows:

• 2 x £25
• 1 x £50
• 1 x £75
• 2 x £100

All of the penalties were paid.

In one of the cases it was noted that the IT system had provided decision support for the marker who accepted this.

Areas to be Strengthened:

In one case there was insufficient evidence in respect of one of the charges.

No Further Proceedings

The Procurator Fiscal retains the duty to prosecute in the public interest throughout the course of proceedings. Where circumstances change and it is no longer in the public interest to prosecute then the Prosecutor should discontinue proceedings as appropriate. This may be by stopping the proceedings completely and marking the case as 'No Further Proceedings' or accepting a plea to some charges as current circumstances or evidence dictates.

Similarly to the 'No Proceedings' marking there are categories within this 'No Further Proceedings' marking that require to be completed on the case papers to record the reason for this final marking. There are 14 detailed categories eg Accused dead, Acceptable explanation offered ⁷ etc together with a 15th reason of 'Other' which must only be used where none of the other specified reasons apply and a specific set of circumstances apply to that particular case. With each of the categories comes a code to be inserted on the paperwork with the reason for this marking and this code is transmitted to the IT system for statistical purposes.

See Appendix 1, Table 9 for figures relating to cases where no further proceedings were taken in the Ayrshire Area for period January to December 2007 and also Table 11 for a breakdown of the cases.

Case Analysis:

Ayr

9 cases were selected under this head. The cases were selected at random and the reasons for discontinuing prosecution were as follows:-

• 1 x time barred
• 1 x failed service
• 1 x attitude of victim
• 2 x acceptable explanation
• 1 x accused in prison
• 3 x other

The decision to discontinue prosecution in 8 of the 9 cases was correct and in the 9th case this may have been the correct decision but the reasons behind the decision were not clearly minuted and this was further highlighted by the successful prosecution of a co-accused.

Areas to be Strengthened:

One case was time barred on receipt and should have been so marked, however, it was taken up then discontinued after the defence drew the issue to the attention of a member of legal staff.

There are data integrity issues with the reasons for discontinuation being wrongly recorded in 1 case and insufficiently detailed in another 2.

Kilmarnock

9 cases were selected under this head and original case papers reviewed. The cases were picked at random and the reasons for discontinuing prosecution were as follows:-

• 1 x other
• 2 x insufficient admissible evidence
• 1 x in prison
• 2 x acceptable explanation
• 1 x attitude of victim
• 1 x Crown Counsel instruction
• 1 x no reason in system

Proceedings were correctly discontinued but the reason given was not always correct:-

• In one case where the accused had died the reason recorded was "acceptable explanation" rather than "accused dead"
• In another "other" was used without further explanation and "attitude of victim" would have been more appropriate

Areas to be Strengthened:

There are data integrity issues as detailed above.

Diversion

Cases marked for an alternative to prosecution can be diverted to an appropriate scheme and these vary from location to location. The criteria for selection of people, rather than cases, suitable for diversion are agreed between the Procurator Fiscal and the body responsible for managing the diversion scheme. The accused may be diverted and the decision to prosecute put on hold pending the successful completion of diversion or the right to prosecute may be waived when the accused is diverted.

The Crown Office Book of Regulations sets down some criteria for diversion:

• Breach of Sex Offender Orders should not be considered for diversion
• No other category of crime is automatically excluded
• Generally the more serious the criminal conduct the more likely it is that prosecution rather than diversion is appropriate
• There must be sufficient evidence to prosecute before an accused is diverted
• Diversion should not be stopped mid course without good reason
• If an accused re-offends while on diversion when the decision to prosecute has been put on hold for successful completion of the diversion the Fiscal may wish to discuss terminating the diversion with the body responsible for managing the diversion scheme and terminate

The case sample we requested covered cases closed between 1 and 31 December 2007, there were only 4 diversion cases closed throughout the Area in that period and we examined all 4. One was from Ayr and 3 from Kilmarnock.

Ayr

The Ayr case related to an 18-year old male charged with being in possession of indecent images of children. Crown Counsel's instructions were sought before the accused was diverted from prosecution in such a sensitive case. The level of proposed Social Work involvement was such that diversion was considered appropriate. The decision to prosecute was deferred until reports were received from the Social Work Department on which Crown Counsel were able to mark the case for 'No Further Proceedings'.

Kilmarnock

The accused in all of the Kilmarnock cases were appropriate for diversion to Social Work Department. The decision to take no proceedings was deferred in the 3 cases and taken only after the diversions were successfully completed by the accused. One of the cases in particular involved a lot of time and effort from the member of legal staff concerned.

In Conclusion:

The accused in all of the cases reviewed were suitable for diversion and the cases were appropriately marked.

District Court - Cited Cases

The District Court is the forum for prosecution for the more minor criminal offences reported to the Procurator Fiscal which merit, in the public interest, either direct prosecution at court or prosecution at court because an alternative has failed such as a Fiscal Fine has been offered and remains unpaid.

District Courts can competently try a wide range of crimes and the magistrates have powers to impose fines up to £2,500 and/or 60 days imprisonment (regulated by the Criminal Procedure (Scotland) Act 1995 s7). This scale of sentencing power effectively self-limits the type of offence that can appropriately be tried at the District Court.

Legislation specifically prohibits a number of more serious offences being tried at the District Court eg murder, rape, assault to the fracture of a limb, housebreaking etc and in addition the Lord Advocate has formally directed that particular types of crime should as a matter of principle not be prosecuted at the District Court eg breaches of (or offences aggravated by a breach of) Sex Offenders Orders, where a Non-Harassment Order would be an appropriate disposal or cases involving a racial element etc.

Crown Office and Procurator Fiscal Service guidelines require that an alternative to prosecution be considered before court proceedings are initiated in less serious cases and that where the Procurator Fiscal marks a case for immediate prosecution at the District Court the reason for so doing is minuted (unless the reason falls within a defined category of cases not to be offered an alternative to prosecution).

See A ppendix 1, Table 15 for a breakdown of District Court cases in the Ayrshire Area for periods January to December 2006 and January to December 2007.

Case Analysis:

Ayr

10 District Court cases were selected for inspection. These cases were chosen to provide a variety of offences - both statutory and common law and otherwise the selection process was random. 9 of the cases were 2007 cases and the 10th a 2003 case which concluded in April 2004 but which was not closed in the IT system until December 2007. The case papers were unavailable for inspection and given the age of the offence and case no further review was carried out.

Of the 9 remaining cases the original case papers were reviewed and this was supplemented by an examination of the IT systems.

In all of the cases there was sufficient evidence to prosecute and all cases were appropriate for prosecution in the District Court. All of the charges were adequately drafted and where the original police charges were changed this was appropriate. Some cases had originally been marked as Fiscal Fines but when these were not paid the cases were properly taken up in the District Court.

As previously stated all prosecutions were appropriate and additionally cases complied with Crown Office and Procurator Fiscal Service guidelines and policy.

In 5 of the 9 cases examined the police reported the case within 28 days of date of offence or caution and charge. In all of the 9 cases the Fiscal marked the case within the Departmental target of 4 weeks.

In 2 of the cases pleas of guilty were tendered at the outset. 1 case was continued without plea on defence motion and a plea of not guilty was then accepted appropriately when driving documents were produced. 1 case was continued without plea on 2 occasions by the defence but this resulted in a plea of guilty and the case being resolved.

Pleas of not guilty were tendered in the 5 remaining cases. No early diets were necessary. None of the trials were set when police officers were on leave.

Preparation for Trial at Case Marking Stage:

The cases were all fully prepared for trial at the marking stage. Witnesses who were required for any subsequent trial were identified. One case involving charges under the Licensing Scotland Act 1976 had been properly identified as an advance notice trial.

In all cases the legal and other staff had taken the steps necessary to prepare the cases for trial.

Disclosure:

There has been a significant change in processes relating to the disclosure of evidence required by the Crown and there is a presumption in favour of disclosure of witness statements and previous convictions and pending cases in all cases where a trial has been fixed. There are protocols with the police concerning the submission of statements, procedures in offices for the checking of statements and the provision of statements to defence solicitors.

In the 5 relevant cases 4 were from Ayr District Court and 1 from Cumnock.

In respect of the Cumnock case:-

• The period between pleading and intermediate diet was 16 weeks and the disclosure target was not met due to late submission of the statements by the police
• The trial did not proceed at the first date set down

In respect of the 4 Ayr cases:-

• In 2 of the cases the period between pleading diet and intermediate diet was 4 weeks making the Departmental target of disclosure 28 days before the intermediate diet virtually impossible to meet
• In the remaining 2 cases the period between pleading diet and intermediate diets was 6 weeks

In respect of the 2 cases where the disclosure target was virtually impossible to meet:-

• In 1 case there was a defence motion to adjourn the trial diet due to lack of disclosure and legal aid not yet having been granted. The statements were received and disclosed prior to the new intermediate diet.
• In the 2nd case where the accused initially represented himself. The accused failed to attend at the intermediate diet and a warrant was granted. Statements were in the system 3 days before intermediate diet.

In respect of the other 2 cases there were defence motions to adjourn:-

• In 1 case the motion was unrelated to disclosure (the statements, although received too late to meet the disclosure target, were sent to the defence on receipt)
• In the 2nd case (the advance notice trial) the motion to adjourn was due to a lack of disclosure caused by late submission of the statements by the police due to an administrative error

Preparation for Trial:

Intermediate diet checklists are not used at Ayr. None of the cases were resolved at intermediate diet stage.

In 2 cases warrants were taken when the accused failed to appear at the intermediate diet but both pled guilty at the next appearance.

In 1 case the accused pled guilty at an adjourned trial date. In the remaining 2 cases the accused were acquitted after trial.

A great deal of effort had gone into preparing these cases for trial.

It is anticipated that the Summary Justice Reform introduced by the Criminal Procedure Reform etc (Scotland) Act 2007 will have a marked effect on the number and type of cases being prosecuted at the District Courts.

Warrants:

The 2 warrants taken were appropriately dealt with, one by way of invite and one by execution and the service of a failure to appear complaint to which the accused pled guilty.

Good Practice:

The cases were well prepared and considerable effort expended in preparing them for trial.

Areas to be Strengthened:

The discovery of the 2003 case in the sample may be a one off.

Kilmarnock

9 District Court cases were selected for inspection. These cases were chosen to provide a variety of offences - both statutory and common law, otherwise the selection process was random. 9 original sets of hard copy papers were recovered and review supplemented by examination of the IT systems.

In all of the cases there was a sufficiency of evidence to justify prosecuting the accused with the charge or charges on the complaint. The charges were all adequately drafted and the police charges were changed where appropriate. All of the cases were appropriate for prosecution in the District Court.

All of the cases were marked in compliance with Crown Office and Procurator Fiscal Service policy and guidelines.

In 3 of the 9 cases examined the police reported the case within 28 days of date of offence or caution and charge.

In 7 of the cases the Fiscal marked the cases within Departmental target of 4 weeks.

In 6 of the cases pleas of guilty were tendered at outset or after being continued without plea at defence request.

Pleas of not guilty were tendered in 2 cases. In the remaining case 1 accused pled guilty and the other not guilty. The accused who pled guilty was sentenced at the pleading diet stage.

No early diets were necessary.

Preparation for Trial at Case Marking Stage:

The cases were all fully prepared for trial at the case marking stage and all witnesses who were required for any subsequent trial were identified.

Disclosure:

In the 3 relevant cases:-

• In 1 case the target was not met due to circumstances out with the control of the Fiscal
• In 1 case the target was not met due to the statements being received late from the police
• In the remaining case disclosure requirements were timeously met.

Preparation for Trial:

Intermediate diet checklists are not used at Kilmarnock. At intermediate diet -

• In 1 case a plea of not guilty was accepted, the co-accused had pled guilty at the outset and been sentenced. In this case the Depute had instructed that the co-accused be cited as a witness and this had not been done.
• In the remaining 2 cases the accused failed to appear and warrants taken for their arrest. Both cases were fully prepared for trial.

Warrants:

Warrants were taken in 2 cases:-

• In 1 case the accused was invited to attend and did so. He was found not guilty at a subsequent trial diet.
• There is considerable confusion about the procedural history of the 2nd warrant. The accused appears to have been invited to answer the warrant twice and there is some confusion as to whether the warrant was passed to the police for execution. The accused eventually pled guilty.

Areas to be Strengthened:

It is essential that minutes on papers are acted upon and that proper minutes are kept on the papers and recorded on the IT systems.

Summary Sheriff Court Cases

The Sheriff Summary courts can competently try a wide range of crimes with a few excluded by statute such as murder, rape and treason. The maximum sentences available to the court are of a fine up to the prescribed sum of £10,000 and up to 12 months imprisonment.

See Appendix 1, table 14 for a breakdown of Sheriff Court cases in the Ayrshire Area for periods January to December 2006 and January to December 2007.

Case Analysis:

A mix of custody and cited cases (cases which did not start off with the accused in custody) were reviewed from each office.

Ayr

25 cases were selected, 10 were cases where the accused had been kept in custody by the police pending appearance in court. 15 cases were cited or non custody cases. All of the cases had been reported by the Police.

Custody Cases

Of the 10 custody cases examined opposition to bail was made in 7 cases and granted in 5 of the 7. In the remaining 3 cases bail was not opposed. None of the decisions made by the court were appealed. Special conditions of bail were sought and imposed in 3 cases.

Acceptable pleas of guilty were tendered at outset in 2 cases.

Arrangements were made for 2 accused to be examined by Community Psychiatric Nurses before appearing in court.

In all bar 1 the cases examined had an appropriate bail marking. However in the remaining case the decision to prosecute was perhaps inappropriate. The person concerned shouted and swore at 2 police officers who came to her home after she had threatened suicide. It may have been more appropriate for the police to have considered trying to have her sectioned under the civil provisions of the Mental Health (Scotland) Act 1982 or after she had been seen by the community psychiatric nurse to release her from custody and take no further proceedings. On being seen by the Community Psychiatric Nurse the accused was reported to feel suicidal at times but had no plans to commit suicide and there was current psychiatric involvement. The case proceeded and bail was opposed and allowed by the Sheriff. A plea of not guilty was subsequently accepted as part of negotiations involving another case.

Marking:

In one case the police had libelled the wrong statutory charge of pursuing a racially aggravated course of conduct {contravention of Section 50 (A)(1)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995} but the incident complained of was a single one and the appropriate charge would have been of acting in a manner which was racially aggravated {contravention of Section 50 (A)(1)(b)}. The charge was left unaltered by the marking Depute, the case proceeded to court, trial, conviction and admonition. The mistake was unnoticed throughout until the case was referred to Crown Office to consider an appeal against an unduly lenient sentence, which was not taken.

In another case there was insufficient evidence to prosecute. The accused was said in the police report to have been a Thai National. The report indicated that she spoke little English. She was stopped at Prestwick Airport entering UK. She was charged with having a false identity document namely a false Malaysian passport.

The report indicated that she was interviewed at some length by witnesses who elected not to caution her as there was not an interpreter present. She made admissions that she had purchased the passport. There was no evidence that the passport was false and the admissions obtained would almost certainly have been held to be inadmissible. The report indicated that the police would arrange for an interpreter to be present for court the next day.

The Depute's minutes indicate a plea of guilty was tendered albeit no interpreter was in fact there. The person was remanded in custody for reports and the Sheriff clerk was asked by the Fiscal's Office to arrange for an interpreter for the post conviction appearance.

In 2 of the 10 cases minor stylistic changes were made to the police charges.

Preparation for Trial at Case Marking Stage:

All preparation for trial was instructed at case marking stage.

Disclosure and Preparation for Intermediate and Trial Diets.

Of the 2 cases where bail was refused the 7 day disclosure target was met in 1. The 7 day target was impossible in the other case as the intermediate diet was fixed 4 days after the appearance from custody.

Of the 6 cases where bail was allowed the 28 day disclosure target was met in only 1.

In 4 cases the police failed to submit full statements in time to allow the target to be met. In the final case the police did submit statements timeously and it was not clear why the Procurator Fiscal failed to meet target.

Intermediate diet checklists are not used in Ayr.

At Intermediate Diet:

In respect of the 8 cases:-

• In 1 case the accused failed to appear and a warrant was taken
• In 3 cases pleas of guilty were tendered
• In 4 cases pleas of not guilty were tendered. Pleas of not guilty were accepted in 2 of these cases as part of negotiations including other cases.
• 2 cases were continued to trial

The pleas accepted were reasonable and the intermediate diets fully prepared.

At Trial:

Of the 2 cases reaching the trial diet

• 1 case pled guilty
• 1 case was adjourned due to lack of court time, the case proceeded to trial at a later date and the accused found guilty

Referral to Victim Information and Advice:

Of the 10 cases examined 3 cases were referred to VIA. The referrals made were appropriate.

Warrants:

A warrant was taken for 1 accused at intermediate diet, his solicitor later advised that the accused was in prison. Arrangements were made to have him brought from custody and a plea of guilty was tendered.

Best Practice:

1 case involved a child witness. All the appropriate procedures were followed and notices prepared and served. No special measures were required and the accused pled guilty.

Areas to be Strengthened:

In the race case referred to above there is the issue detailed there and additionally further information was requested from the police but there was no sign of a response in the case papers. Examination of the IT system showed that a replies had been sent but there was nothing to indicate that these replies had been considered by the Fiscal.

Cited Cases

Marking:

All of the 15 cited cases for Ayr Sheriff Court were reported by the Police. 12 of the cases were marked appropriately in terms of Crown Office and Procurator Fiscal Service policy and guidelines. In the remaining 3 cases -

• In 2 cases there was insufficient evidence and both cases got so far as trial diets
• In the 3rd case one charge (one case) in a roll up of 3 cases did not have sufficient evidence. However in all other aspects this roll up of cases was an example of good practice.

In 3 cases no changes were required to the draft charges submitted in the police report. In 4 cases changes were made which were minor or stylistic. In the remaining 8 more substantial changes were made.

In general the charges were well drafted and in all cases the appropriate forum, the Sheriff Court was chosen.

Preparation for Trial at Case Marking Stage:

Cases were front loaded and prepared for trial at the case marking stage. None of the cases required consideration of special measures for vulnerable witnesses at the case marking stage.

At the pleading diets (including continued pleading diets)

• 12 x pleas of not guilty were entered
• 1 x plea of guilty
• 1 x initiating warrant leading to a plea of not guilty
• 1x partial plea of guilty necessitating a trial

None of the cases required an early trial diet. In all of the cases consideration was given to police leave when the trial dates were set.

Disclosure:

In the 14 relevant cases the disclosure target was met in 5 cases. In 2 cases the police appeared to have submitted the statements late. In only 1 of the 9 cases where the disclosure target was missed was there a successful motion to adjourn by the defence and the reason was not connected to the late disclosure.

Preparation for Intermediate Diets:

Ayr does not use intermediate diet checklists. 12 of the 14 cases were fully prepared for trial by the intermediate diet. Of the remaining 2 cases - in 1 there were missing witnesses and in the other there was an issue with the CCTV.

At Intermediate Diet:

10 of the cases were continued to trial, acceptable pleas of guilty tendered in 2 cases and in the remaining 2 cases warrants were taken for accused who failed to appear. Both the warrants cases resulted in failure to appear complaints to which the accused pled guilty but maintained their not guilty pleas to the substantive complaints.

Preparation for Trial:

12 cases were continued for trial and of them 2 as previously stated were fatally flawed the other 10 were fully prepared for trial.

In both of the flawed cases the depute at court correctly did not seek a conviction.

Referrals to Victim Information and Advice:

VIA (Victim Information and Advice) is part of Crown Office and Procurator Fiscal Service and has 3 main functions:

• To provide information to certain victims, witnesses and bereaved next of kin about the criminal justice system
• To keep victims, witnesses and bereaved next of kin informed about the progress of cases
• To advise on and facilitate referral to other agencies for specialist support and counselling as required

None of the cases in this sample required to be sent to VIA.

Good Practice:

Cases were well prepared for trial which on occasion required considerable effort. One case was a roll up of 3 cases which is best practice. In that case and in another juveniles involved were appropriately sent to the Reporter. Witness warrants were appropriately taken in the other case when the trial had to be adjourned due to the non-appearance of the witnesses who were correctly invited to answer the warrants. We found evidence of auditing of marking in cases and inappropriate pleas being rejected.

Areas to be Strengthened:

As previously mentioned there were issues with the sufficiency of evidence in 2 cases and a roll-up case where there was insufficient evidence for one of the cases rolled in.

In one case the review of a warrant taken was perhaps not as thorough as it should have been.

In some sets of papers minutes were not initialled or dated.

Kilmarnock

Custody Cases

12 cases were selected, 1 of which was an undertaking which pled guilty at the outset. All cases were reported by the police.

Of the 11 custody case cases opposition to bail was marked in 8 and bail was not opposed in the remaining 3. 1 of the cases where bail was opposed pled guilty at the outset.

Bail was refused by the Sheriff in 3 of the remaining 7 cases where bail was opposed. Of these 3 cases the refusal of bail was appealed in 2. 1 of these appeals was successful and special bail conditions imposed on the accused.

In the 4 cases where bail was opposed and allowed by the Sheriff special conditions were imposed on 2 of the accused. In both these cases the Crown had sought the special conditions.

All the cases examined had an appropriate bail marking.

Marking:

All the 12 cases reviewed proceeded on reports received from the police. The police reports contained draft charges. In 1 case a bail aggravation was deleted by the marking Depute. In another case a charge under the Firearms Act 1968 was added by the marking Depute.

In a number of cases minor stylistic changes had been made.

All of the cases were marked in accordance with Crown Office and Procurator Fiscal Service policy and guidelines on bail.

Preparation for Trial at Case Marking Stage:

All preparation for trial was instructed at case marking stage. In one of the cases where bail was allowed by the court an early diet was fixed and the accused was subject to a bail curfew.

Disclosure and Preparation for Intermediate and Trial Diets:

Of the 3 cases where bail was initially refused (bail later being granted on appeal for 1 case) and custody trial diets set, the disclosure target of 7 days before intermediate diet was met in 1. The police did not submit statements timeously in the other 2 cases.

In the case where an early diet was fixed as the accused was subject to curfew the disclosure target was met.

Of the 6 remaining cases where bail was allowed the disclosure target of 28 days before intermediate diet was met in only 1. Of the 5 remaining cases where the disclosure target was not met in 4 cases this was due to late timing of submission of the full statements by the police. In 1 of these cases however it was noted that statements were in system for 14 days before being issued to defence. In the remaining case the statements were received from the police 30 days before intermediate diet but were not issued to defence until 5 days after receipt so the target was not met.

Intermediate diet checklists are not used in Kilmarnock.

At Intermediate Diet:

In respect of the 10 cases:-

• In 3 cases pleas of guilty were tendered
• In 1 case the intermediate diet was continued for Disclosure to be made
• 6 cases were continued to the trial diet

2 of the cases required special measures for child witnesses and appropriate applications for screens had been made.

In all cases appropriate witnesses had been marked for citing but it could not be established from papers available if all witnesses had been cited and executions returned. However, examination of IT system showed that in most cases the system was being updated when witnesses were cited.

Joint minutes of agreement of evidence had been entered into in 2 cases.

At the Trial Diet:

7 cases proceeded to trial diets. 4 pled guilty and 3 were found not guilty.

Referral to Victim Information And Advice:

There was VIA involvement in 2 cases which was entirely appropriate.

Warrants:

In 1 case 2 witnesses failed to attend at trial diet and warrants were sought and granted. The trial was adjourned. Each witness was invited to attend court to answer the warrant and did so. Each also attended the subsequent trial diet.

Best Practice:

We found the following examples of creative working -

• In 1 case the accused who had learning difficulties was assisted by an appropriate adult at all stages of proceedings
• In another case involving Victim Information and Advice there were child witnesses and the Crown obtained agreement when the accused appeared from custody that identification was not an issue in the case so there was no need to have the children attend an identification parade

Cited Cases

12 cases were selected; none of the accused were reported from custody. All of the cases were reported by the police.

Marking

All of the police reports contained draft charges. In 5 cases no change was required by the marking Depute. In 3 cases the changes required were only minor and/or stylistic. In 2 cases the changes were more substantial and required to make the complaints more appropriate for court.

In 10 cases all of the charges were marked in accordance with Crown Office and Procurator Fiscal Service policy. In 1 case there was insufficient evidence in respect of the first charge on the complaint, in another there was only one charge on the complaint and there was insufficient evidence on which to proceed but the case was prosecuted.

In 10 of the cases the charges were well drafted, in 1 further case the charge was well drafted but lacked corroboration and in the last case the lack of corroboration only affected one of the 4 charges on the complaint. In both of the cases where concerns exist about sufficiency the accused pled guilty to the charges concerned.

The correct forum was picked in all cases.

We note that the cases were "front loaded" making preparation work for staff handling the papers next time easier.

Preparation for Trial at Case Marking Stage:

Generally cases were well prepared at the case marking stage with the marking depute having an eye to the eventual trial. Generally all preparation for trial was instructed at this stage.

In 11 of the 12 cases there was no need for special measures to enable witnesses to testify. In one case there was a child witness and that testimony was correctly identified as being capable of agreement at an early stage and efforts made to achieve this started before the pleading diet called, the evidence was eventually agreed by the defence meaning that the child did not have to attend. An appropriate plea was tendered at the trial diet.

Disclosure and Preparation for Intermediate and Trial Diet:

In 7 cases not guilty pleas were entered and trial and intermediate diets were fixed. In 1 case a plea of guilty was tendered, this was later withdrawn and a plea of not guilty entered and trial and intermediate diets appropriately fixed. In the 9th case a defence motion for continuation of the pleading diet resulted in an acceptable and reasonable plea. In the 10th a plea of not guilty to one charge and guilty to a second was recorded as not acceptable and trial and deferred sentence set down. This course was reasonable. In the 11th case the accused pled guilty at the pleading diet and we have recorded our reservations about the sufficiency of evidence in this case above. In the 12th and final case a plea was offered and accepted at the pleading diet. This plea would have been reasonable but for our reservation about the sufficiency of the first charge as detailed above.

After the pleading diet, in the 9 relevant cases witnesses were cited, full statements requested and necessary follow up work done. Attempts were made to agree evidence in at least 2 cases.

In the 9 cases where disclosure was required

• The target was met in 4 cases
• In 1 case the statements were received late from the police
• In 1 case the statements were received so close to the date to disclose that the target, while possible to achieve, was missed
• In 3 cases the target was missed

In one of the cases where the Disclosure requirements were met additional information was later disclosed to the defence.

The Kilmarnock Office does not use intermediate diet checklists but in 8 of the 9 cases the case was fully prepared at intermediate diet stage. 1 case appears to have been fully prepared but the wrong plea minuted resulting in witnesses wrongly being countermanded; this appears to have been rectified in time for the trial diet.

At the intermediate diet

• 1 case resolved by plea of guilty
• 1 case referred to above was wrongly recorded as a plea of guilty but the trial proceeded at the original date set
• In 5 cases the plea of not guilty was maintained
• In 2 cases the accused failed to appear and warrants were taken (a plea of guilty on arrest in 1 case and a trial and acquittal in the other)

At Trial:

The case against the accused in one case was found not proven. The accused in 2 cases were found guilty. The accused pled guilty in 2 cases. The accused in 1 case was found not guilty. In the case referred to above where a trial took place after a warrant had been executed an acquittal was obtained.

Referral to Victim Information and Advice:

Of the 12 cases examined 2 were referred to VIA, both cases were appropriately referred.

• 1 case was the child witness case previously referred to
• The other case was a fatal Section 3 of the Road Traffic Act 1988 (careless driving)

Warrants:

In 2 cases warrants were taken prior to conviction (or acquittal in 1 case) and these were properly reviewed.

3 warrants were taken post conviction.

Good Practice:

Cases were generally well prepared and the majority of the preparatory work done at the case marking stage, cases requiring advance notice were marked as such.

The only vulnerable witness case examined was well prepared with very early attempts to agree evidence resulting in the child not having to come to court, the case was marked for advance notice, there were good minutes of reasons in the case, communication with the child's mother about how he could best testify, good assistance given to the Depute by the Procurator Fiscal and a reasonable plea negotiated.

In 1 case it appeared that the defence had tried to persuade the Crown to abandon the prosecution and this was rightly refused.

Areas to be Strengthened:

As detailed above - in one case there appeared to be insufficient evidence to prosecute the accused yet this was done and in another case there was insufficient evidence to prove one of the charges. Both charges resulted in convictions.

Domestic Abuse Cases

Crown Office has a robust policy in cases of domestic abuse. The salient points are as follows -

• If there is sufficient evidence in domestic abuse cases involving violence against the victim there is a presumption in favour of prosecution
• Prosecutions will take place in the Sheriff or High Court
• Where the accused is reported by the police in custody or by way of undertaking the Procurator Fiscal will, if appropriate, oppose bail
• If bail is not opposed consideration will be given as to whether it is appropriate to seek additional bail conditions in respect of the residence of the accused or contacting the victim or particular witnesses
• All domestic abuse cases are referred to Victim Information and Advice
• If the accused is granted bail the Procurator Fiscal will seek an early trial diet and in solemn cases any investigations will be expedited
• If there are reasonable grounds to suspect and accused has broken or is likely to break any bail condition the accused can be arrested and a review of bail sought. The conduct giving rise to the arrest does not have to be corroborated.
• All breaches of bail will be viewed seriously
• On receipt of any new information about the conduct of the accused towards the victim or any other material change in circumstances the Procurator Fiscal will consider the accused's bail status and seek a bail review where to do so is necessary for the protection of the victim
• Victims of domestic abuse can sometimes be reluctant to pursue a prosecution and where this occurs it is COPFS policy that the Procurator Fiscal consider the particular circumstances of the case carefully and may meet the victim or ask to police to explore, sensitively the reasons for the retraction or reluctance.
• The final decision to continue or discontinue proceedings is for the prosecutor alone. In cases involving violence, or where there is a history of violence, the presumption is in favour of continuing the prosecution.
• Any decision to discontinue proceedings will only be taken by a senior member of the legal staff
• Where a child is an essential witness in a domestic abuse case the Procurator Fiscal must give careful consideration to the interests of the child and the policy is that the Fiscal must balance the seriousness of the offence and risk posed by the offender with the effect on the child of giving evidence

We looked at the high risk categories of domestic abuse cases closed December 2007 and reviewed all the cases in those categories. 21 cases were reviewed.

We found the following:-

Cases dealt with by way of a warning:

There were 4 such cases throughout the area, 3 from Ayr and 1 from Kilmarnock. At first blush these cases looked as though Crown Office policy may have been contravened but review of the cases found in each case the decision to issue a warning was appropriate in all the circumstances of that case.

Cases marked for no proceedings on the ground of insufficient evidence:

6 cases from Ayr were reviewed and all cases were marked in accordance with policy as there was insufficient admissible evidence to proceed. We looked at a 7th case related to one of the ones picked for review where there had been a counter claim and we found that this was correctly marked for no proceedings.

We looked at 4 cases from Kilmarnock and all of the cases were marked in accordance with policy as there was insufficient admissible evidence to proceed. One of those cases was correctly marked for no proceedings but concerned the breach of a bail order set by the court in another case and this could have been used to review the accused's bail on the original case perhaps even to have him remanded. Our review of the connected, original case was limited to an examination of the IT systems but we could find no evidence of the case we originally reviewed having been used in that way.

Cases marked for no proceedings on the ground of there being mitigating circumstances:

We reviewed 3 such Ayr cases. In 2 of the cases this was the correct decision. In one of the 2 cases there were attempts made to divert the accused appropriately from prosecution and she seems to have been accepted but there is no further record of the diversion and the case was eventually marked for no proceedings on the basis of mitigating circumstances. We would not take issue with either decision to divert or mark for no proceedings. Either course of action would have been appropriate in the circumstances of this case.

The third case was a prima facie breach of policy. The complainer wanted no proceedings and it may be that this has influenced the decision maker. In cases involving violence, as this one did, the presumption where the victim becomes reluctant is in favour of continuing the prosecution.

Cases marked for no proceedings due to the behaviour complained of not being a crime:

One case from Kilmarnock was reviewed and it was correctly marked as not being a crime against one accused and taken up, again correctly against the second accused and accused one being appropriately referred to Victim Information and Advice.

Cases marked for no proceedings on the ground that further action would be disproportionate:

One case from Kilmarnock was reviewed and we found this had correctly been marked for no proceedings and although we would take no issue with the category chosen of further action disproportionate it may even have been appropriate to choose the category - not a crime.

Cases marked for no proceedings - other:

1 case from Ayr was examined also as part of our general sample and we are of the view that at best this case has been marked for no proceedings prematurely. Further enquiries would have been required to confirm corroboration existed in the most serious charge and it may be that extradition procedures would have at least required some consideration

Cases marked for no proceedings due to being time barred on receipt by the Procurator Fiscal:

1 such case was reviewed from the Ayr Office and the offence under the Communications Act 2003, Section 127 was indeed time barred on receipt.

Solemn Cases

In serious cases (solemn cases) the case goes through an extra stage of investigation called precognition and this means that the Fiscal or a member of the Fiscal's staff may see witnesses as well as instruct and oversee any other further investigation required by the case. The case will then be reported to Crown Office for a further layer of checking and instructions on how to proceed.

Proceedings in solemn cases in the High Court or Sheriff and Jury courts are taken in the name of the Lord Advocate. The Solicitor General for Scotland and Crown Counsel assist the Lord Advocate in issuing instruction in serious cases and prosecuting in the High Court. Crown Counsel is the collective name for the Lord Advocate's Deputes, Advocate Deputes.

Serious cases are split as follows:

• Cases where the likely sentence is likely to be more than 5 years imprisonment are prosecuted by Crown Counsel in the High Court and
• Cases likely to attract a sentence of 5 years and less are prosecuted in the Sheriff and Jury Courts by Procurators Fiscal

Solemn cases start, in the main by the accused appearing first on Petition in the Sheriff court. The case is then prepared for court by the Procurator Fiscal by precognition, a process that requires 'prompt, thorough and effective investigation of a reported case…. ⁸'. Crown Office and Procurator Fiscal Service in its stated key objectives commits to "give priority to prosecution of serious crime, including drug trafficking… ⁹". There are specific Crown Office and Procurator Fiscal Service guidelines and policies setting out standard procedures that require to be followed to achieve this aim.

There are in general more onerous duties of investigation and preparation in High Court cases than in other cases.

See Appendix 1, Table 2 for figures relating to cases placed on petition in the Ayrshire Area for periods January to December 2006 and January to December 2007 and Table 4 for a breakdown of number of cases placed on petition per month during period January to December 2007.

Sheriff and Jury Cases

10 Sheriff and Jury cases were requested, 5 from Ayr and 5 from Kilmarnock.

Performance Against Departmental Targets:

We examined Area performance against targets for the periods April 2006 - March 2007 and April 2007 - December 2007.

Crown Office and Procurator Fiscal Service has set targets for processing of cases either in accordance with statutory time limits or in some cases to deliver justice with appropriate speed. The targets for Sheriff and Jury Courts are to indict 100% of custody cases where the accused has been remanded in custody pending trial within 80 days of the accused's appearance at court for committal for trial and Ayrshire meets that target.

In bail cases the Departmental targets in bail cases are to indict 80% of cases within 9 months and 60% within 8 months and Ayrshire meets the target.

Ayr

All of the cases started of with the accused being reported by the police with the accused in custody.

• 1 case was an accelerated plea of guilty by Section 76 procedure
• 2 cases pled, 1 at a continued first diet and the other at trial
• 2 cases went to trial and the accused were acquitted

Marking:

All of the cases were marked in compliance with Crown Office and Procurator Fiscal Service policy and guidance. All cases were appropriate for petition procedure.

Judicial Examination:

None of the cases were such that would necessitate a judicial examination and none were carried out.

Custody Cases:

In 4 of the 5 cases bail was opposed at the first calling of the case. Bail was refused by the court in all 4. In the remaining case bail was not opposed but special conditions were attached. At the stage of full committal bail was appropriately opposed in all 4 cases and the accused remanded in custody by the court. The issue of bail/custody was properly addressed by the marker in all of the cases at both stages.

Precognition Process:

It is expected that a Solemn Legal Manager of at least Principal Depute grade will give detailed guidance to precognoscers. This appears to happen in Ayr.

Disclosure:

In the 4 relevant cases the Disclosure target was met in 1 case and missed by days in the remaining 3. There seems to have been no problems caused by this.

In the 1 appropriate case previous convictions and outstanding cases for civilian witnesses were provided to the defence with the service of the indictment.

Good Practice:

3 of the 4 cases were appropriately prepared for court:-

• 2 were suitable for putting together without seeing any witnesses and this was done
• 1 had appropriate witnesses being seen

In all 4 cases a proactive approach was taken to attempt to negotiate pleas.

Areas to be Strengthened:

In 1 case which involved an allegation of domestic abuse towards an ex partner and her new partner neither witness was precognosced. In that same case the plea taken at the trial seemed rather soft as both assaults were negotiated out with the accused pleading only to the breach of the peace and possession of the knife with which he allegedly attempted to strike his former partner and her new partner. There was no explanation noted for this.

Kilmarnock

We received 3 of the cases requested from Kilmarnock hard copy; the other 2 sets could not be removed from the office as there were probation reviews outstanding. We received a 4th case and our examination of the hard copy papers in each case was supplemented by interrogation of the IT systems. In 2 of the cases the accused were reported from custody, in another petition warrants were required and in the 4th case the accused had been released to appear at court on undertaking.

• 1 case pled at the first diet
• 2 cases pled at continued first diet
• 1 case pled at the trial

Marking:

All of the cases were marked in compliance with Crown Office and Procurator Fiscal Service policy and guidance. All cases were appropriate for petition procedure.

Judicial Examination:

None of the cases were such that would necessitate a judicial examination and none were carried out.

Custody Cases:

In 2 of the 4 cases bail was opposed at the first calling of the case. In the remaining 2 case bail was not opposed and was granted by the court. At the stage of full committal bail was to be opposed in both cases and the accused were remanded in custody. The issues of custody and bail were properly addressed by the marker in all cases at all stages.

Precognition Process:

It is expected that a Solemn Legal Manager of at least Principal Depute grade will give detailed guidance to precognoscers. This happened in 3 of the cases and the 4th was prepared in its entirety by the Principal Depute.

Disclosure:

The target was met in 2 cases and missed in 2. Of the 2 cases where the target was missed -

• 1 case had 2 accused who appeared in court on different days and the statements were issued for 1 accused timeously but the other missed the target by a week. The accused had been bailed in this case.
• 1 bail case missed the target by 3 weeks over the Christmas and New Year holiday periods.

It could not be ascertained if previous convictions and outstanding cases for civilian witnesses were provided to the defence with the service of the indictment in the 2 relevant cases.

Good Practice:

Members of legal staff appear to be proactive in the pursuit of early resolution of cases. 2 cases were suitable for minimal precognition and this was done.

Areas to be Strengthened:

1 of the case involved assaults with civilian witnesses and these witnesses were not precognosced. Another case, which was not one of particular difficulty, was prepared for court by the legal manager rather than a precognoscers and this may indicate pressure on resources.

High Court Cases

The High Court in Scotland is the highest court for criminal proceedings and sits permanently in Edinburgh and Glasgow and regularly elsewhere throughout the country - including in Kilmarnock.

The most serious cases must be prosecuted at the High Court - these are defined by statute (including as would be expected murder and rape), cases where there is a likelihood the sentencing powers available to the High Court are required ie a sentence higher than that available at Sheriff and Jury level (maximum of 5 years imprisonment) or the offence is of such a nature that public policy requires the case be treated with this gravity.

Performance against Departmental Targets:

Crown Office and Procurator Fiscal Service has set targets for processing of cases either in accordance with statutory time limits or in many cases exceeding these time limits to deliver justice with appropriate speed. The targets for High Court cases are currently to indict custody cases (ie where the accused has been remanded in custody pending trial) within 80 days of the accused's appearance at court for committal for trial; and where the accused is liberated on bail to indict all cases within 10 months of the accused's first appearance on petition. These 2 targets are essentially in accordance with legislative requirements and an enhanced target to indict 80% of the bail cases within 9 months of first appearance.

We looked at the statistics for the periods April 2006 - March 2007 and April 2007 - December 2007 and found that the Area met the targets for indicting custody High Court cases. For the same periods in respect of the bail cases we found that the Area met the target to indict in 80% of the cases within 9 months of first appearance but in the period April - December 2007 this target was missed.

Case Review:

6 High Court cases were selected at random, 3 from Ayr and 3 from Kilmarnock.

Ayr

The 3 cases were requested hard copy which we received, although in one case we received only part of the hard copy papers. The examination was supplemented by interrogation of the IT systems. All of the cases involved serious assaults which endangered life. All of the cases were custody cases.

Marking:

In the case where the papers were incomplete it could not be ascertained what if any change had been made to the original police charges. In the other 2 cases changes were made. In those 2 cases the charges were well drafted.

Bail/Custody

At first appearance we found in respect of the 2 cases where we had complete papers that bail was opposed appropriately and all 4 accused remanded in custody. In respect of the other case bail was opposed and refused in respect of one of the accused, for the remaining 2 accused bail was granted with special conditions attached.

At full committal in respect of the 4 accused remanded in custody in the 2 cases for which we had full papers bail was appropriately opposed and the court refused bail in respect of 3 of the accused (both cases ending up as custody cases). In respect of the 4th person for whom bail was granted special conditions were attached.

Judicial Examination:

No judicial examinations were carried out and this was appropriate.

Intimation to Crown Office:

Procedure has been set in place for local offices to intimate to Crown Office notice of potential High Court trials in order that High Court diary issues may be resolved at an early stage (court facilities required, location of court, any special requirements for equipment or accommodating witness or other needs) and indeed that Legal Aid for High Court preparation becomes available for the defence.

The cases were all reported to Crown Office in time to allow indicting within the custody time limit.

Precognition Process:

Crown Office and Procurator Fiscal Service guidelines instructs that, at a minimum, in all High Court precognitions the Reporting Officer should be interviewed and envisages that the complainer and other eyewitness and essential witnesses be precognosced unless there are compelling reasons to do otherwise.

These cases were all well prepared.

Disclosure:

Crown Office and Procurator Fiscal Service has committed to disclose statements held by it to the defence within 28 days of the accused's 1st appearance at court in High Court cases. This was done in all 3 cases.

Communication with Agents:

In the 2 cases where we had full hard copy papers attempts were made to resolve the cases by contacting the solicitor.

Victim Information and Advice ( VIA) Involvement:

All of the cases were referred to VIA and all were suitable.

Preparation for Trial:

These cases were all well prepared. 1 pled guilty at the preliminary hearing, 1 at a continued preliminary hearing and 1 at trial. Reasonable pleas were accepted.

Good Practice:

In 2 of the cases good instructions were given to the precognoscers and the Police investigating. 1 of the case was large and complex and was prepared by 2 members of staff; this case required a great deal of work from the staff involved. Witnesses were precognosced in all of the cases.

Kilmarnock

The 3 cases were requested hard copy which we received for 2 cases (in one of these cases only part of the papers was received), the 3rd case had to remain in the Kilmarnock office to enable staff there to deal with outstanding issues.

The 2 cases received were examined hard copy and this was supplemented by interrogation of the IT systems. The 3rd case was looked at in Kilmarnock and this was supplemented by interrogation of the IT systems. The 3rd case eventually amounted to a roll up of 3 separate police reports.

Marking:

Minor changes to the original police charges were made in all 3 main cases.

Bail/Custody:

At first appearance in all cases bail was marked to be opposed, which was in line with Crown Office policy. At full committal the accused were remanded in custody and in one case the accused was released on appeal with an electronic tag and a psychiatric assessment placing him as low risk. The case which was a roll up of 3 cases involved 2 petitions and the accused was remanded throughout the case despite bail having to be granted in respect of the first petition in order to comply with the law on time bars.

Judicial Examination:

In the one case where this was appropriate it was carried out.

Intimation to Crown Office:

The cases were reported in time to be indicted within the statutory time limits.

Precognition Process:

The witnesses were precognosced in all cases. All cases were well prepared although the guidance for precognoscers could not be found in one case. In the roll up case a great deal of work had gone into the preparation of the case.

Disclosure:

Statements were disclosed to the defence within 28 days in all of the cases.

Victim Information and Advice ( VIA) Involvement:

All of the cases were referred to VIA appropriately and one case required extensive contact with the next of kin who was appropriately referred to Victim Support and another person connected to the deceased. Another case, however, caused concern in the support given to the witnesses as the trial approached. Contact was good before and after by letter but in the run up to the trial concerns were raised that the families did not receive the sympathetic hearing required from VIA.

Preparation for Trial:

All cases went to trial and the accused convicted.

Good Practice:

The cases were well prepared with witnesses being precognosced. A great deal of thought and consideration went into the effective prosecution of the 3 case roll up. As previously stated one of the cases required and received extensive support from VIA but in the roll up of 3 cases concerns exist about the attitude and helpfulness of VIA in the run up to the trial.

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