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Partners in Crime - Solving and Reassuring
A Thematic Inspection of Crime Management in Scotland

chapter 6: criminal justice issues

6.1 Reporting Offenders to Crown Office Procurator Fiscal Service (COPFS)/ Scottish Children Reporters Agency (SCRA)

The police in Scotland do not, of course, decide whether or not a prosecution against an alleged offender is warranted. The role of the police, once in possession of a sufficiency of evidence to identify the offender is to report the facts to the Procurator Fiscal or, in certain offences committed by a child, the SCRA. In the case of adult offenders it is then the responsibility of the Procurator Fiscal to determine what further action, if any, should be taken.

In principle, beyond very minor matters where there is generally no specific victim, police officers today exercise little discretion in determining that a detected offence should not be reported to the Procurator Fiscal. Some specific examples do exist including allegations of careless driving at road accidents where no injury or significant damage has occurred. The present situation has evolved from a more flexible situation, still operating in the 1980s, when senior police managers took responsibility for concluding many matters by way of a formal police warning letter.

The method of communication between police and prosecutor has remained essentially unchanged for many years i.e. a formatted report outlining the accused person, the alleged offence(s), a summary of the facts and evidence, lists of relevant witnesses and productions and a schedule of the accused person's previous convictions, if any.

Most of this information is produced by the officer responsible for the preparation of the report, with only lists of convictions drawn from other sources, principally the Scottish Criminal Records Office criminal history system which is networked throughout all Scottish Police Forces, or for road traffic convictions, from Driver and Vehicle Licensing Agency (DVLA).

It has always been the case that Procurators Fiscal opted not to proceed further with a certain number of these reports from police and other reporting agencies including Trading Standards, Department for Work and Pensions, Vehicle Licensing Agency and TV Licensing Agency etc. It has also been the case that in many instances, police officers reporting the cases to the Procurator Fiscal could reasonably predict the likelihood of further action being taken. In recent years, wider options have become available to the prosecutor. These include referral from prosecution schemes and Fiscal's fines. Notwithstanding these developments, a significant number of cases reported by the police to the procurator fiscal still result in a decision not to further proceed.

Recording and tracking the history of a criminal case is undertaken by the Scottish Criminal Record Office criminal history system. In the past this tracking was achieved through a process of forwarding written updates to one of the few input bureaux around Scotland. There the information was entered in the data system and became available to all authorised users. In practice this relied on informal arrangements and in recent years, attempts to modernise this process have centred on a new Scottish Executive driven project - the Integration of Scottish Criminal Justice Information Systems (ISCJIS).

6.2 Integration of Scottish Criminal Justice Information System (ISCJIS)

Developing since its inception in 1992, the concept of ISCJIS is that a person's criminal record will reflect up to date information from the point of detection by the police. The significant changes to the previous process include making all partners in the Criminal Justice system responsible for updating the data at their own part of the process (this remains an aspirational aspect and during the transitional period, police forces are still inputting, amending or auditing data for other partners, either in respect of pre-ISCJIS cases or for partners who are not yet on-line) and transference of reports from police to COPFS through secure electronic channels.

There is a suggestion that police staff are currently spending disproportionate time auditing and correcting entries entered by other agencies. The essence of the system is that each agency has responsibility for the data it enters, editing would transfer that responsibility. It is essential that police staff make use of the proper processes to draw to attention errors, rather than taking responsibility for editing entries.

6.3 Delays in Reporting Cases to the Procurator Fiscal

Initial responses to the HMIC protocol did not indicate forces were currently having problems in the reporting of cases to procurators fiscal. However, in the course of the inspection a number of procedural anomalies were identified and considerable public, media and political interest emerged when it was reported that no proceedings had been taken in over 17,000 cases apparently largely due to delays in reporting by the police.

Indeed, one press report ³⁰ quoted a representative of the Scottish Police Federation as saying:

'Officers were tearing their hair out. At one stage they were told not to dictate cases until 4 months after the incident had taken place. Cases were being dumped on the fiscal in what was essentially an electronic skip and they were plucking cases out from that.'

In the course of inspection, HMIC has established that, although backlogs were in evidence elsewhere in 2002, these comments related specifically to the situation within one Division of a Scottish Force during the second half of 2002.

At that time the ability to submit police reports timeously to COPFS & SCRA was restricted by:

• an increasingly inadequate voicebank system on which items for typing were dictated (now replaced)
• an increasing number of detected crimes and offences
• staff shortages (now addressed)
• amended guidelines and conventions for completing the Standard Prosecution Report which increased the time taken to complete it
• one-off delays requested by COPFS as they rolled out a new operating system to their offices.

Forces are currently required to submit reports to COPFS within a maximum of 28 days from charge of the accused (or last accused if more than one). Shorter timescales apply to a range of reports, including:

• people in custody
• people undertaken to appear at court on specific dates
• people for whom apprehension warrants were sought
• people charged with racist crime
• people charged following domestic related incidents
• people charged with football related violence
• offences involving children as victims or offenders
• persons arrested in relation to any operational initiative
• any other matter that the reporting officer or a supervisor considered to be appropriate for prioritisation.

This was intended to ensure that such cases would, as always, be prepared for submission to COPFS/SCRA within one working day of arrest/charge.

Dealing with Delays in the Affected Division

To improve submission timescales within the area highlighted in the press report, extra local funding was made available to the typing function and a structure was put in place to effectively manage the pending work.

A local divisional office systems management decision indicated that in order to manage the backlog, any remaining cases would be typed in order of occurrence. This was to be achieved by advising officers not to dictate 'non-prioritised' cases unless the offence had been committed after a certain date. There were in fact two dates, one for common law offences such as Breach of the Peace and a second, shorter time delay for Statutory Offences. This separation reflected the fact that, in general, statutory offences incorporate a fixed time limit for judicial proceedings to commence. (Indeed, direction existed that any case threatening to challenge timebar timescales should be transferred to priority status.)

The necessary information was cascaded by written memo, updated weekly, to the 'briefing register' in each operational office. Regrettable as this situation was, in the circumstances HMIC is of the opinion that this was a pragmatic and reasoned decision in the face of a fundamental incapacity to cope more rapidly with work volumes at that time. It was a case of trying to manage a typing backlog in a rational manner.

Divisional managers believe the most extreme delays were reflected during July 2002 when routine Common Law cases were restricted to 3 months and Statutory Offences, to 2 months.

Federation officials are of the opinion that the most extreme delays in relation to Common Law actually reached 4 months. However, HMIC has been unable to obtain any supporting documentation in respect of this.

In the event management activities undertaken reduced these particular backlogs which, by Spring 2003, had been eliminated. In addition, at the time of this study, an internal force review of case management was being conducted to ensure all relevant problems had been addressed and resolved.

However, this situation emphasises the need to match administrative infrastructure with operational and processual requirements and demonstrates the sensitivities of systems to overloading if processes are not resourced and co-ordinated.

Despite the obvious address to this historical situation, HMIC noted that at present no consistent process exists to determine how successful each force is in relation to the targets, situations being monitored at a very local level by police and COPFS. HMIC has learned that when a backlog of cases occurs at any one location, local action is taken to resolve this. The action may be temporary extra resources to tackle the part of the process creating the backlog or it may be something more radical like a representative of COPFS attending police offices, reviewing detected cases still be to submitted to COPFS and offering advice as to which cases should be prioritised for submission.

HMIC also notes that the actual timescale for submission is also being debated by partners in the Criminal Justice process. One option being considered is for a fixed percentage of all cases to be submitted within 28 days and a further percentage of cases within a further 7 days. However HMIC considers other factors can also impact on efficiency in the management of police reports.

6.4 The Effectiveness of ISCJIS - Strategic Implications

During the inspection HMIC sought to determine the current effectiveness of 'ISCJIS'.

HMIC found universal support for the concept of the integration of Information Systems and also standardisation of wording of many common elements in police reports. Some concerns were raised but these related essentially to either the technical capabilities and constraints of the electronic transfer of data or to the strategic issues already raised.

HMIC did find, at operational level, some confusion as to the exact nature of ISCJIS. Each agency continues to own its internal electronic communications systems. ISCJIS simply delivers the links between agencies. It is not designed to address any internal communications issues within agencies. This leads to the conclusion that rather than being the vehicle to create a co-ordinated criminal justice strategy, ISCJIS, appears to have the status of an IT project rather than part of a strategic driver to integrate appropriate criminal justice processes. As a result problems associated with internal systems in partner agencies are often seen, erroneously, as a failure on the part of ISCJIS.

Indeed, examples were offered as to where the protocols applicable within ISCJIS were viewed as potentially preventing appropriate initiatives from continuing for no clear benefit to the criminal justice process. In one case, reference was made to a force's previous ability to prepare a single schedule of persons who had allegedly committed an identical offence, normally involving road traffic issues. Notwithstanding the present conditional offers of fixed penalty, any person being reported to COPFS today requires to be the subject of a standard prosecution report, the preparation of which can remove an operational police officer from visibility and reassurance duties for a period of time.

While this can be met with the legitimate comment that the scheduling and combining of offenders is not ISCJIS compliant, HMIC identifies a distinct likelihood that, in that regard, ISCJIS, can be interpreted as driving the Criminal Justice Strategy rather than supporting it by creating solutions to optimise overall effectiveness or resources.

Further, as it currently stands, as a very large project with a sub-committees structure, each with a degree of empowerment, effective change control is essential. Otherwise, changes within one sub-committee could produce unanticipated collateral impacts upon other areas of the project. Not all stakeholders consider the present change control to be totally effective and it is important that all users have confidence in the process.

With an increasing number of agencies accessing and updating the criminal history system of SCRO, quality control and standardisation appear to be important issues. HMIC is therefore surprised to note that members of non-police agencies do not attend any national common training event before being authorised to access the system. HMIC also notes that currently police forces undertake auditing and updates on behalf of other agencies. Whilst this may be in pursuit of quality, it has the potential to impact upon police reporting processes. It has been agreed that police will, for example, input details of persons reported to the Procurator Fiscal on behalf of TV Licensing Authority. The service level agreement is that the information will be entered within 24 hours of receipt of the data from TVLA. This priority seems odd given the history of delays in the processing of police reports and the requirement to prioritise the TV Licence work to this degree may be worthy or re-examination.

HMIC recommends Scottish Executive and ACPOS review where ISCJIS sits within the wider Criminal Justice Strategy and look at the existing ISCJIS protocols to establish if they reflect the priorities of such a strategy (recommendation 18).

6.5 Impact of ISCJIS on Reporting Procedures

Backlogs of cases to be reported are not a new entity in Scotland. One significant change however, following the introduction of ISCJIS, is a perceived lack of flexibility in how such events can be tackled. This perception is a product of the drive for standardisation both in content and in process that has developed in the past decade. All Scottish forces are enthusiastic about the benefits of standardisation of product however, in the course of inspection, HMIC questioned if the product was producing Best Value and addressing the wider public interest overall.

In general, all reports concerning alleged offenders are typed to a standard format and forwarded electronically to the Procurator Fiscal. It is the experience of some users that the requirements of this communication system and the specific rules and conventions underpinning the standardisation of reports have sometimes proven to be counterproductive or inadequate for the task. Overloads of the electronic transfer systems, more prevalent in urban police areas with high report volumes, and absolute rejection criteria for apparently minor matters including an erroneous punctuation mark, can result in system crashes and associated frustrations. The content and layout of the Scottish Standard Prosecution Report has developed since its inception. It is designed to deliver all the needs of the prosecutor however prosecutors regularly require to seek clarification or amplification of facts from reporting officers. This suggests that format and structure alone do not necessarily guarantee quality.

Initiatives to tackle this issue are in evidence throughout Scotland. Some forces have created effective electronic on-line help and guidance to reporting officers. Although this principle is to be commended, in at least one force officers can only access this on-line help when they are personally typing the report which can sometimes be a lengthy and complicated document. Although the Procurators Fiscal served by that Force receive all reports on time, this is potentially at the cost of police visibility and public reassurance, another area recently inspected by HMIC ³¹. That said, HMIC considers the concept of on-line help to be the effective vision of the future but, as alluded to elsewhere in this report, it is suggested such help be made available from a much earlier stage in the investigative process

One force, which also provides officers with on-line guidance on what information is relevant when completing certain documents for the Procurator Fiscal, has located a case manager within the Fiscal's office. Working independently of the Fiscal's staff, the officer is however available to problem solve and identify recurring concerns. The officer is also empowered to establish solutions, which are commonly in the form of improved on-line help and guidance, targeting actual areas of difficulty. Although the initiative is in its infancy, early indications are very positive with speedier, less bureaucratic resolutions to real time issues and effective longer term reductions in common and recurring problems.

Despite initiatives designed to improve co-ordination between police and prosecutor, difficulties in achieving set timescales for reporting cases continue to arise. This can be a simple matter of logistics. As outlined in Section 6.3 certain categories of new cases are prioritised for typing and submission each day. Other cases therefore queue for attention. Each day all priority cases are cleared before attention turns to the queue of other cases.

Depending on the make-up of solved crime in a particular police area, non-prioritised cases can wait a considerable time for typing and submission to the Procurator Fiscal. This can create a false impression about overall submission timescales. For example, when an average police submission timescale is recorded as 30 days, the reality is a sizeable proportion of cases have actually been submitted within one day with the remainder (non-prioritised cases) following some weeks later.

6.6 Potential for Change

The police report to COPFS/SCRA is an independent element of the process undertaken by the police. The efficiency of the overall process is likely to be significantly improved when that report is an automatically generated product of the data collated from the moment the incident was made known to the police. Some forces are already pursuing policies in that general direction by integrating databases and applications but, until all forces implement the earlier recommendation of creating a crime report structure that, amongst other things, provides explicitly what the Procurator Fiscal requires, an element of duplication of effort will continue to exist.

HMIC notes that discussions are already underway to enable short 'bullet-point' summaries to be used in place of full narrative in appropriate cases. This would reduce both the time taken to complete reports and the size of the data being transmitted. HMIC also acknowledges a range of other ongoing activities designed to refine the case preparation and submission process.

That said, HMIC would welcome ongoing dialogue between Scottish Executive, COPFS and ACPOS to ensure guidelines for completion of the Standard Prosecution Reports reflect that what is delivered is proportionate and relevant to the case. In addition HMIC considers there is scope for a future joint inspection with COPFS Inspectorate on the efficiency of reporting systems.

As mentioned earlier, the current IT systems supporting ISCJIS can be on occasions unreliable if faced with large volumes of work. One solution is obviously to increase the capacity of the system, and HMIC suggests that the Scottish Executive considers if short term increases in the technical capacity of transferring data between police and COPFS would provide justifiable improvements to the process (suggestion 6). However, it is also valuable to look beyond present volumes and establish if more effective improvements are available.

6.7 Adult Police Warning Scheme

Some parties in the Criminal Justice system accept that, in some cases, it may be appropriate to formalise police discretion in respect of certain less serious offences. HMIC is pleased to note that ACPOS are currently formally reviewing a previously suggested Adult Police Warning Scheme with a view to stopping certain cases before they become an unnecessary bureaucracy on the police and other agencies. HMIC supports these deliberations but notes the view that there is a need not only to cut unnecessary bureaucracy but also to impact on offending behaviour.

For that reason HMIC considers that conditions appropriate for ACPOS adopting an Adult Police Warning Scheme would include:

a) the range of offences suitable for warning are agreed in advance by the Procurator Fiscal

b) the warnings are recorded (perhaps on SCRO) to avoid any person collecting a large number of warnings within separate Scottish force areas

c) in certain cases, the offending behaviour is addressed by some action which may range from counselling to restorative justice.

Whilst such a scheme would often provide an enhancement to the outcome currently applied, unless such a scheme was subject of full consultation with those who promote victim's interests, there is a danger of a warning scheme being perceived as a less effective outcome than at present.

In terms of efficiency, such a warning scheme would save police time and effort currently spent on report production but HMIC accepts this may be offset against any new implications involved in administering warnings.

In addition to potentially fully removing some cases from the process through a police warning system, HMIC questions the need for every case, ranging from the most straightforward and less-serious to the most complex and serious, requiring to incorporate exactly the same information. Four specific items of evidence are relevant to this matter.

6.8 Noteworthy Developments

• During a visit to Warwickshire where one-stop justice pilot projects are being established with the support of significant sums of government funding, HMIC was impressed with the concept of supplying only the documentation that was truly required for that particular case, .e.g. if the police custody sergeant was of the professional judgement that the offender was likely to plead guilty to the less-serious charge at the first opportunity, the sergeant was authorised to secure only the minimum information required for that matter. However if the Sergeant considered an accused person was unlikely to admit the allegation or the offence involved was a very serious one, the sergeant secured a full and detailed report including all relevant appendices. Early indications are that the judgement of the custody sergeant is correct sufficiently often to make this an effective and efficient system.
• An ongoing experiment within one Scottish force consists of reports in respect of all alleged child offenders being submitted to the local office of SCRA within one day by the forwarding of a copy of the Police Crime Report with brief additional information relating to the caution and charge included within the text of the report. This system can be seen to have significant advantages to both the police and the Justice system, however, with the pending implementation of the ISCJIS infrastructure to the Childrens Reporter, there is a concern that this initiative will no longer be compliant and any current advantages to the overall criminal justice system will be lost.
• Another initiative within a Scottish force consists of a senior member of COPFS attending a police office and reviewing cases considered to be less serious before they are typed. Police are advised which cases should be prioritised based on the likelihood of prosecution being initiated. This example of close interaction with the procurator fiscal in decisions of police reporting further demonstrates the potential which may arise from a more 'joined up' approach in this area.
• Similar effective police/prosecutor interaction was witnessed when the project team visited the Swedish Police Service. Further details are contained in a case study which follows. (at para 6.10)

6.9 Fixed Penalty Offers for Minor Offences - the ASPS View

In October 2000, during the Home Office consultation process on the role of fixed penalties in reducing public order, the Association of Scottish Police Superintendents advanced the view that it would be appropriate in Scotland for minor offences to be dealt with by way of fixed penalty notice. ASPS highlighted the time consuming bureaucracy which was necessary to process offenders engaged in minor 'quality of life' offences, and in the enforcement of warrants in relation to the non-payment of fines. The Association proposed a Conditional Offer of Fixed Penalty Scheme for such minor offences, backed by a civil power to recover unpaid fixed penalties from defaulters through arrestment of wages or benefits. They were not proposing an 'on-the-spot' fines system but the issue of a notice at the point of release of a person following arrest.

HMIC is of the view that this proposal is worthy or further consideration as a means of dealing with the high volume of such minor offences without the administrative burdens which apply when processing offenders through the normal prosecution channels.

HMIC believes the future Scottish criminal justice strategy must take maximum advantage of this existing evidence of Best Practice and endeavour to eliminate what is patently inefficient effort within police reporting procedures.

6.10 Case Study - Swedish Police & Criminal Justice System

The Constitutional set up of Sweden is very similar to that of Scotland and it was for that reason that HMIC visited the country to observe its Police and Criminal Justice system in operation.

Sweden has a national Police service. Police officers do not receive payment during initial training and must pay accommodation costs to police academies. Like members of other public sector organisations, police officers retire at age 65.

The country's police service is divided into 21 areas of varying sizes each having between 88 and 4350 officers, giving a total number of 16,400 officers to Police the population of 8.8 million.

Sitting above the areas is the National Criminal Investigation Department (NCID) that deals with serious and organised crime throughout the country and as such can be seen to deal with the equivalent of Scottish serious NIM level 2 crime.

There is no formal mechanism in place for deciding who will deal with individual cases, with a consensus being reached between areas and the NCID about who will lead on a particular investigation. If circumstances dictate officers are taken from area to form a task force to tackle a particular crime or series of crimes.

The relationship between the Police and the Prosecutor in Sweden has many constitutional and practical similarities to the situation in Scotland. The Prosecutor in Sweden notionally oversees all criminal investigations. Indeed the police have no powers to conduct investigations unless sanctioned to do so by the Prosecutor in respect of every individual crime. This is achieved by an administrative process and only in more serious investigations is there a close working involvement between investigator and prosecutor.

To satisfy the constitutional requirement for a prosecutor to authorise investigation into every reported crime, a duty prosecutor is to be found within every main police office outwith standard working hours. The practice has evolved that the prosecutor locates him or herself in the case preparation section with the result that 16 hours a day and 24 hours at weekends, informal advice and liaison is ongoing in respect of investigations and reports proposed for formal submission.

To some extent the actual product of this informal liaison reflects a similarity to the initiative earlier referred to in Scotland where a police officer is located within a fiscal's office.

In Sweden, the system is very well received by both Police officers and Prosecutors alike, with the inputs supplied by the Prosecutor in investigations considered to be of a great benefit. This coupled with the fact that the courts sit 7 days a week until 10pm and are empowered to use innovative sentencing options, provides a competent judicial system.

It is also worthy of note that police investigative training includes shared tuition sessions with prosecutors.

The use of fixed penalty notices for minor offences is widespread and there are currently moves to expand their use to cover less serious volume crime such as theft by shoplifting.

The importance of preventing and reducing crime rather than detecting it, is very pronounced in Sweden. Detection rates do not feature as an indicator of performance but issues surrounding victimisation and police visibility are very high on the agenda.

The Swedish constitutional interpretation of Human Rights legislation and guidance has resulted in a decision that technology such as public-space CCTV and ANPR is inappropriate. It was therefore considered interesting to note the police intelligence database links directly into the National Tax and Social Security database giving investigators access to the personal data held by other agencies.

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