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CRIMINAL JUSTICE SYSTEM OBJECTIVES REVIEW
PROPOSALS FOR THE INTEGRATION OF AIMS, OBJECTIVES AND TARGETS IN THE SCOTTISH CRIMINAL JUSTICE SYSTEM
PART II: THE CRIMINAL JUSTICE SYSTEM IN SCOTLAND
3 THE CRIMINAL JUSTICE SYSTEM IN SCOTLAND
DEFINING THE CRIMINAL JUSTICE SYSTEM
3.1 This Review is concerned with the "principal agencies which make up the criminal justice system in Scotland". As has been noted above, [ Paragraph 1.3.] for the purposes of this exercise the 'principal agencies' are the police, prosecution and court services.
3.2 The expression 'Criminal Justice System' (CJS) is an expression that is in common use, but it may be asked if there is common understanding of what exactly it describes. It is useful, therefore, at this stage to consider that question of the definition or meaning of the expression 'Criminal Justice System', both in terms of the use of the word 'system' and as regards the range of activities or agencies included within it.
3.3 There are many dictionary definitions of 'system'. These include:
- "A group or combination of interrelated, interdependent, or interacting elements forming a collective entity" (Collins Concise Dictionary).
- "An organisation forming a network especially for distributing something or serving a common purpose" (Merriam-Webster's Collegiate Dictionary).
- "An arrangement of many parts which work together" (Chambers Essential Dictionary).
3.4 On the basis of these definitions, therefore, the CJS could be said to be a collective entity, serving a common purpose, whose many elements should work together.
3.5 More eminent commentators than I have questioned the use of the word 'system' in the expression 'Criminal Justice System'. Lord Justice Auld, for example, in referring to the criminal justice system in England and Wales suggested that the use of the word is 'misleading' and commented - "there is no 'system' worthy of the name, only a criminal justice process to which a number of different government departments and agencies and others make separate and sometimes conflicting contributions." [ Lord Justice Auld, Review of the Criminal Courts of England and Wales , Chapter 8, para. 1.]
3.6 The comment is also relevant in the Scottish context where the 'system' consists of a collection of government departments and agencies, local authority bodies and joint bodies. As will be seen, there are real doubts about the extent to which the parts of the system form a collective entity, serving a common purpose, working effectively together. That is perhaps not entirely surprising, having regard to the separate responsibilities of the different parts of the system and, in particular, the independence of key parts. There is no doubt that independence of various players in the criminal justice system is fundamental to justice, but while independence should be protected it need not prevent effective joint working and it should not be an excuse for lack of co-operation. Similarly, while the fact that some organisations in the CJS have other non-CJS responsibilities also needs to be recognised, again that should not prevent inter-agency co-operation in the CJS.
3.7 As to the composition of the 'criminal justice system', the 'principal agencies' for the purposes of this Review are the police, prosecution and courts, but the system goes wider than that. As is acknowledged in the other UK jurisdictions it also covers the agencies or services that are responsible for the sentence part of the process, and the range of activities covered includes prevention (or contributing to that) as well as processing actual cases. The 'criminal justice system' in Scotland does not, however, include the Children's Hearing system for dealing with child offenders. That is essentially a welfare-based system, although there has been a recent tendency to view it as a juvenile justice system, so far at least as its work in dealing with child offenders is concerned.
3.8 It is thought useful to include here a brief description of the 'principal agencies' or elements of the CJS in Scotland, for the purposes of this Review. The Chapter also briefly describes the role and responsibilities of other agencies working within the wider CJS in Scotland.
THE PRINCIPAL AGENCIES
Police
3.9 There are eight regional Police Forces in Scotland, whose force areas reflect former Regional Council boundaries. In addition to the eight forces there are a number of Common Police Services that operate within the CJS. These include the Scottish Criminal Records Office (SCRO), which administers the National Fingerprint Identification Service, and provides a Criminal History System, Disclosure Information Service and Stolen Property Database. The Scottish Drug Enforcement Agency (SDEA) was formally established in 2001 to combat drug trafficking and other serious and organised crime in Scotland. The Association of Chief Police Officers in Scotland (ACPOS), which consists of the Chief Constables of the Scottish forces, acts as a representative, consultative, advisory and co-ordinating body for the police in Scotland. Also pertaining to the Scottish CJS are the British Transport Police (the national police force for the railways), the Ministry of Defence Police (which polices the MoD estate and community) and the UK Atomic Energy Authority Constabulary (which provides security for nuclear material).
3.10 A Chief Constable heads each individual Scottish force. The Chief Constable of a force has operational independence. Policing policies and resources are determined by a tripartite arrangement involving each Chief Constable, the relevant local Police Authority or Joint Police Board, and Scottish Ministers.
Police Duties
3.11 The functions and responsibilities of the police are defined by statute - namely the Police (Scotland) Act 1967, as amended. The main duties of constables are set out in section 17, as follows:
- To guard, patrol and watch so as to prevent the commission of offences, to preserve order, and to protect life and property.
- Where an offence has been committed… to take all such lawful measures, and make such reports to the appropriate prosecutor, as may be necessary for the purpose of bringing the offender with all due speed to justice.
- To serve and execute when required any warrant, citation or deliverance issued, or process duly endorsed, by a Lord Commissioner of Justiciary, Sheriff or Justice of the Peace, being a warrant, citation, deliverance or process relating to any criminal proceeding.
- To attend any court of law for the purpose of giving evidence.
3.12 Section 17 also provides that performance by a constable of his functions is subject to the direction of the appropriate Chief Constable. However, the Chief Constable is required to comply with all lawful instructions from the relevant Sheriff Principal and in relation to the investigation of offences the Chief Constable is required to comply with such lawful instructions as he may receive from the appropriate prosecutor.
3.13 In recent years HM Chief Inspectors of Constabulary in Scotland have raised questions about the definition of police duties and responsibilities in the 1967 Act. For example, it is suggested that "it is questionable if the parameters of the 1967 Act accurately reflect the actual responsibilities and expectations of 21 st century policing." [ HMCIC, Annual Report 2001-2002, page ix.] Certainly, police activities in recent years appear to have been extended to incorporate various non-CJS duties.
3.14 As noted, the work of the police is subject to inspection by HM Inspectorate of Constabulary in Scotland.
Prosecution
3.15 The Crown Office and Procurator Fiscal Service (COPFS) is the public prosecution service for Scotland. It is a Department of the Scottish Executive and is headed by the Lord Advocate, assisted by the Solicitor General for Scotland, who are the Scottish Law Officers and members of the Scottish Executive. The Lord Advocate's independence from the Executive or any other person is preserved in section 48 of the Scotland Act 1998. Section 29 of the same Act protects the Lord Advocate's role as head of the system of prosecution and deaths investigation in Scotland.
3.16 COPFS comprises a headquarters at the Crown Office and a network of 48 Procurator Fiscal's Offices which until recently were organised into six Regions, coterminous with the six Sheriffdoms in Scotland. As a result of internal management changes arising from the Pryce/Dyer Report on the Planning, Allocation and Management of Resources within the COPFS, the Procurator Fiscal Service (PFS) has been restructured into 11 geographical Areas, each headed by a legally qualified Area Procurator Fiscal who holds a commission from the Lord Advocate and is supported by a complement of legal and managerial staff.
COPFS Duties
3.17 There is no single statutory statement of the duties and responsibilities of the COPFS as the public prosecution service in Scotland. These rest in many respects on long-established custom and practice, deriving from the role and authority of the Lord Advocate.
3.18 Procurators Fiscal receive reports of crime from the police and many other reporting bodies for consideration of proceedings. Decisions on whether to prosecute or to take alternative action or no action are made on evidential and public interest grounds.
3.19 The COPFS is effectively the sole prosecuting agency in Scotland, responsible for conducting prosecutions at all level of courts. Procurators Fiscal also have powers to adopt alternatives to prosecution, including issuing 'Fiscal Fines' and road traffic offence conditional offers of fixed penalties, and referring accused persons for social work and other interventions. As has been noted, the police in Scotland are subject to the direction of the public prosecutor in relation to investigation of crime. Additionally, the Lord Advocate has statutory authority to direct police as to the reporting of cases. [ Criminal Procedure (Scotland) Act 1995, Section 12.]
3.20 In pursuance of their duties Procurators Fiscal and staff of the Crown Office have frequent contact with the police and the courts, as well as with solicitors and counsel representing accused persons.
3.21 While CJS responsibilities account for most of the work of the COPFS the Department is also responsible for the investigation of sudden and accidental deaths, which may often fall outwith the scope of the criminal justice process.
3.22 The work of the PFS has recently been subject to inspection and review by the department's Quality and Practice Review Unit, but that unit has lately been disbanded pending the creation of an independent inspectorate.
COURTS AND JUDICIARY
Scottish Court Service
3.23 The SCS is an Executive Agency of the Scottish Executive Justice Department, established in 1995. The Chief Executive of the SCS is accountable to the Minister for Justice. The SCS is divided into three operational areas, comprising the Supreme Courts, the Sheriff Courts, and Agency Headquarters.
SCS Duties
3.24 The responsibilities, accountability and aim and objectives of the SCS were set out in a Framework Document in April 1995. The Secretary of State for Scotland described the task of the Service at that time as being "in a very full sense…working for justice". The principal task of the Service is currently stated as being "to provide the administrative, organisational and technical services required to support the judiciary in the delivery of justice". [ SCS Corporate Plan 2002-2005, page 2.] The Service is responsible for managing the court estate and providing the staff and systems required to administer the courts and give effect to judicial decisions. CJS activities of SCS staff include preparing the court programme and managing the allocation of judicial time; citing and managing jurors; assisting with witnesses attending court; documenting the outcome of court hearings, preparing the necessary orders and intimations and recovering financial penalties.
3.25 Court staff may be in contact with a wide range of CJS agencies, including most frequently the COPFS.
3.26 A significant amount of the work of the SCS relates to civil justice matters, and therefore falls outwith the remit of this Review.
Supreme Courts
3.27 The Supreme Courts comprise the Court of Session and the High Court of Justiciary (respectively, the supreme civil and criminal courts in Scotland), plus the Accountant of Court's Office and the Office of the Public Guardian. As a trial court, the High Court sits in cities and large towns throughout Scotland. As an appeal court the High Court sits in Parliament House in Edinburgh. There are a total of 32 Lord Commissioners of Justiciary (legally qualified and salaried High Court judges), including the two most senior (the Lord Justice General and the Lord Justice Clerk). A Review of the High Court by the Hon. Lord Bonomy has been in progress since November 2001.
Sheriff Courts
3.28 There are 49 Sheriff Courts located in six Sheriffdoms. Each Sheriffdom is headed by a Sheriff Principal who, under Section 15 of the Sheriff Courts (Scotland) Act 1971, is charged with securing "the speedy and efficient disposal of business in the Sheriff Courts of that Sheriffdom." To those ends Sheriffs Principal "may give such instructions of an administrative nature as appear to him to be necessary or expedient", to Sheriffs and court staff. Typically, administrative instructions relate to the number of court sittings to be held in each Sheriff Court and the type of business to be disposed of. Under Section 9 of the 1971 Act, Sheriffs Principal may be given "directions of an administrative nature" by Scottish Ministers, though in practice these are agreed following consultation.
3.29 Each Sheriff Court has one or more Sheriffs, who are legally qualified and salaried judges. Sheriffs preside over both solemn courts and summary courts. The work and operation of the latter are currently being considered by the Review of Summary Justice in Scotland, chaired by Sheriff Principal McInnes.
3.30 The Sheriffs Association is a membership body for Sheriffs, frequently used as a consultative forum through which the views of Sheriffs on legislative and policy proposals are made known.
District Courts
3.31 District Courts in their present form were established by the District Courts (Scotland) Act 1975. They deal with minor summary offences. With the exception of Glasgow, where salaried Stipendiary Magistrates sit with the powers of a Sheriff, the judiciary in the District Courts consists of lay Justices of the Peace (JPs). Justices are supported by legally qualified Clerks who are local authority employees.
3.32 There is no national court service or central administration for the District Courts. Each District Court is an independent entity, operated by the relevant local authority. The District Courts Association is a membership organisation for JPs and Clerks. It has no statutory basis or executive authority, and cannot bind local authorities in matters of policy and practice, but it is influential in organising training for JPs and Clerks and disseminating good practice. The work of District Courts is also presently being considered by the McInnes Review.
OTHER MAIN CJS AGENCIES
3.33 As has been noted, this Review is not examining the sentence part of the criminal process. Sentence/disposal agencies represent another important part of the CJS in Scotland.
SENTENCE/DISPOSAL AGENCIES
The Scottish Prison Service
3.34 The Scottish Prison Service (SPS) is an Executive Agency of the Scottish Executive, accountable to the Minister for Justice. It was set up in 1993 with the responsibility of keeping in custody prisoners on remand, awaiting sentence and serving sentences, and presenting the first two categories of prisoner for trial or sentence in court. [ The Criminal Justice (Scotland) Bill presently before the Scottish Parliament makes provision in clause 61 for prisoner escort duties to be transferred to civilians termed "police custody and security officers", however.] The agency Framework Document indicates that the SPS is also required to provide for prisoners "the physical necessities of life", physical and mental health care, advice and help with personal problems, work, education, skill training, exercise and recreation, and opportunities to practice religion.
Criminal Justice Social Work Services
3.35 Although Criminal Justice Social Work (CJSW) services often only become involved in cases at the sentencing stage, when required to provide Social Enquiry or other Reports, they may be involved in diversions from prosecution and the provision of bail information.
3.36 CJSW services are very largely provided by local authorities, although other bodies also play a part - such as Safeguarding Communities, Reducing Offending (SACRO). SACRO is a charitable organisation that provides CJSW services for offenders, involving diversion, mediation and alternatives to custody. Amongst its clients are a number of local authority CJSW departments. After the creation of unitary authorities in 1995 a number of geographically adjacent authorities formed eight partnerships or consortia to provide CJSW services, with a further three mainland authorities and each of the Islands Councils providing CJSW services unilaterally. There is therefore no national service or central administration. However, the Criminal Justice Services Standing Committee of the Association of Directors of Social Work (ADSW) can express views on behalf of CJSW practitioners.
3.37 Over the last ten years, national standards and 100% funding by the Scottish Executive Justice Department have been introduced for CJSW services, with a current focus on moving towards service accreditation. CJSW service providers are inspected periodically by the Social Work Services Inspectorate, which publishes annual reports on social work services (including CJSW) and undertakes thematic inspections.
OTHER CJS PLAYERS/INTERESTS
Defence Representatives
3.38 Almost all representation of accused persons in Scotland is by private practitioner solicitors and advocates. A small number of accused persons are represented by the Public Defence Solicitors' Office in Edinburgh, for which the Scottish Legal Board (SLAB) has responsibility.
3.39 Defence representation is therefore generally not carried out by any agency in the system. The Law Society of Scotland and the Faculty of Advocates are the main membership bodies for solicitors and advocates and they have criminal law committees or groups. There are also local bar associations of varying size for solicitors who are court practitioners.
Scottish Legal Aid Board
3.40 SLAB is a Non-Departmental Public Body, whose functions are set out in the Legal Aid (Scotland) Act 1986. It is accountable to the Minister for Justice. The SLAB Corporate Plan for 2002-2003 includes a mission statement: "to develop and deliver appropriate access to quality legal assistance for those eligible, in a cost-effective manner".
VICTIMS
Victim Support Scotland
3.41 Victim Support Scotland (VSS) is a voluntary organisation with charitable status. VSS provides practical and emotional support to victims of crime, witnesses and others affected by crime, who are referred to it by statutory agencies (normally, in the first instance, the police). The support offered includes help in understanding criminal justice procedures, including giving evidence in court.
COPFS Victim Information and Advice Service
3.42 This new service (VIA), which is part of COPFS, has only recently been rolled out throughout Scotland. Its main purposes are to supply information to victims, next-of-kin and some witnesses, to advise these people on the progress of cases that affect them, and facilitate referral to other specialist agencies.
'JUVENILE JUSTICE'
Scottish Children's Reporter Administration (SCRA)
3.43 SCRA is a Non-Departmental Public Body, established by the Local Government etc. (Scotland) Act 1994. It is accountable to the Minister for Education and Young People. It is a national service, whose responsibilities include dealing with cases of child offenders. The SCRA Corporate Plan for 2002-2003 includes a statement of fundamental purpose: "to pursue with care and creativity the best interests of children, within the framework of Scotland's child welfare and justice systems." The agency decides whether to place alleged child offenders before Children's Hearings of local Children's Panels for consideration of compulsory measures of care and its responsibilities include leading evidence in court in support of such referrals. It has contacts with the police, the PFS and the courts.
POLICY
Scottish Executive Justice Department
3.44 The Scottish Executive Justice Department has the policy lead for all CJS matters with the exception of youth crime. It covers a wide range of responsibilities, including substantial involvement in dealing with police matters (e.g. Common Police Services), and it is the 'parent' department for executive agencies such as the SCS and the SPS.
COPFS
3.45 COPFS is responsible for development and implementation of prosecution policy.
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