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The Summary Justice Review Committee: REPORT TO MINISTERS

Chapter 10: REPORTING TO THE PROCURATOR FISCAL

10.1 In considering a case, the procurator fiscal has to assess if what happened amounted to one or more crimes or offences, and if so which one(s). ⁴⁰ The police report has to be sufficiently comprehensive to enable him or her to decide if any crime or offence was committed and, if so, whether and whom to prosecute. Scottish criminal law retains the requirement for corroboration and the report must disclose whether there is corroborated evidence of each charge against each accused. The prosecutor will assess the strength of the evidence having regard to the likely reliability and credibility of the available evidence. Having established what crimes were committed and by whom, the procurator fiscal must assess their seriousness and select the appropriate course of action. In most cases, this will be prosecution in court, but there are a number of alternatives to prosecution and he or she will decide on the basis of which option would serve the public interest best. To do so, he or she must have information not only about the crimes themselves, but also any background to them, any criminal record of the accused and any other information about the circumstances of the accused or victims which may influence his or her decision. In selecting the prosecution route, he or she will choose the appropriate level of court.

10.2 If the case is being prosecuted in court, the procurator fiscal must go on to decide which charges to libel and what specification needs to be included in the charges. If in any prosecution the charges are wrong, this is likely to create difficulties in leading evidence in any trial and at worst could prevent the accused from being convicted.

10.3 Where the accused appears in court from custody, the report must include information which may be relevant to consideration of whether the prosecutor should oppose bail or agree bail subject to certain conditions being imposed, and what these conditions might be.

10.4 If the accused person pleads guilty, the procurator fiscal will base his or her narration to the court on the information provided, including information about any compensation which the accused might be ordered to pay.

10.5 The extent of the information required by procurators fiscal is reflected in the format of the reports submitted by police and other reporting agencies in Scotland. Reports by the police are submitted electronically to procurators fiscal in a standardised format known as the standard prosecution report (SPR). This format has been agreed within the Integration of Scottish Criminal Justice Information Systems (ISCJIS) structure and is designed to ensure that ISCJIS data standards and the needs of procurators fiscal are met as set out above. We understand that discussions are presently under way to have this format adopted by all agencies reporting to procurators fiscal and to secure electronic reporting by them.

10.6 The SPR format includes the following sections:

• case number (generated automatically);
• case details date of receipt of police report (generated automatically); police lead incident number; the date of the first offence;
• accused details: name, address, SCRO no. ("S no."), sex, date of birth, age, custody status, DVLA no. (if relevant);
• charge details, draft charges are generated under charge codes agreed within the ISCJIS community and include, for each charge, the date of caution and any aggravation, e.g. if the accused is allegedly in breach of bail conditions or if the offence is racially aggravated. Some aggravations are included for statistical purposes, e.g. domestic violence, which may not be apparent on the face of the charge.

• SUMMARY SECTION

• antecedents - information about accused personal and employment information, where provided to the police;
• description of locus;
• description of events;
• caution and charge/ reply details;
• analysis of evidence/ identification of accused.

• REMARKS - comments which the reporting officer considers may have a bearing on the prosecutor's decision;
• information about any productions or case related documents in the case (Productions are listed separately in a pro-forma production release note which is used to authorise their release on conclusion of proceedings);
• reporting and supervisory officer details;
• witness details (a list of potential witnesses with addresses, including leave, etc.);
• list of pending cases and previous convictions;
• other sections are included where appropriate, for example, if the offences are racially aggravated, information about the ethnic origin and interpreting requirements of the accused and/or witnesses is included; if the offender is liable to disqualification, a form is provided for the assistance of the police officer in court.

10.7 Witness statements are normally not submitted at the time of initial reporting, although they may be in complex cases or where the procurator fiscal wishes to clarify an important detail of evidence.

10.8 In our visits to the Netherlands and to England, we were shown examples of the form of report submitted by police to the relevant prosecutors in those jurisdictions. The simplicity of these reports was in sharp contrast to what is required in Scotland. In our consultation, both police officers and some procurators fiscal described the standard form of police report as being more comprehensive and longer than it need be in a large proportion of cases. It was criticised as being repetitive. Its preparation is time-consuming for police officers.

10.9 We acknowledge that the submission of reports of crime by the police to an independent prosecutor is an integral part of our system of criminal justice and provides a safeguard to those persons who may be wrongly accused. We acknowledge too that it is a matter for the Crown to direct the police as to the format and content of their reports. We consider though that the preparation of full police reports in every case for submission to the procurator fiscal with an initial report is not a good use of police time. Prosecution does not follow in a substantial proportion of police reports submitted to the procurator fiscal (35% of cases reported to the procurator fiscal in 2002-3 did not lead to prosecution, including 17% of cases in which there were no proceedings) and we consider that the resources involved in preparing these could be better targeted. We understand that a great deal of work has already been undertaken with a view to developing abbreviated reports in at least some types of case - and that a degree of local freedom will be retained to determine the relevant categories of offence. ⁴¹ While that is welcome we believe that there will be scope for abbreviated reports to be prepared in a greater range and number of cases than is presently anticipated. We recognise that police officers are not lawyers and may not fully appreciate the nuances of evidential requirements, but we consider that the provision of further training for police officers and the development of closer links between operational staff in both organisations may assist them to focus on the essential information in cases, thereby simplifying and shortening reports and reducing what appeared to us to be wasted effort. We suggest that the use of abbreviated reports be kept under review by criminal justice boards to ensure that the most effective use is made of police and COPFS resources.

10.10 We recognise that much of the additional information required in Scotland (and hence the complexity of police reports) results from the application of the corroboration rule in criminal cases. The corroboration requirement also impacts on the amount of evidence and hence number of witnesses and productions which may be required in any prosecution. That said, the principle of establishing the case against an accused with corroborated evidence is a fundamental element of our current criminal justice system and could only be reviewed in the context of a wider review of the law of evidence in all criminal cases.

Reporting Arrangements

10.11 As indicated above, police reports are now transmitted electronically to the procurator fiscal. Scotland is well ahead of many countries in the use of information technology for the management of cases and transmission of data between the various agencies involved in the process. The system is managed by ISCJIS, an umbrella system comprised of the various participants, namely the police, prosecutor, courts, SCRO and other agencies, including, for example DVLA. The system will become more sophisticated and useful once COP II ⁴² is in operation.

10.12 Each accused has a unique identifying reference number, allocated by SCRO. Each crime or offence is also allocated a unique number and is identified by a specific charge code and where applicable, aggravation. This means that cases can be tracked round the criminal justice system and regardless of what happens to the charges, individual offences and their outcomes can be identified.

Timeliness of Reporting and Commencement of Proceedings

10.13 In the past, the police aimed to report offences to the procurator fiscal within 6 to 8 weeks. That target was rarely met. We were informed that it was not uncommon to find cases reported to procurators fiscal after the passage of considerable periods of time - up to several months. This caused problems for cases subject to statutory time bars and on occasions restricted the potential to use alternatives to prosecution in these cases since by the time the period for acceptance had elapsed, the case might well be time barred. Additionally, for less serious crimes, the passage of time could mean that prosecution was no longer in the public interest.

10.14 In recent months, in response to public concern about delays in the criminal justice process and the developing approach of the courts on delay in light of the jurisprudence under the European Convention on Human Rights, the target has been reduced to 4 weeks and police forces around Scotland are tackling backlogs as a matter of priority. We address the issue of overall targets for the summary justice system in chapter 33.

Police Reports in Custody Cases

10.15 We heard concerns that in many courts the time when custody cases call in court has become later over time. Whereas it used to be common to call custody cases at 10 a.m., these cases now tend to call some time after noon, often not before 2 p.m. in some courts. The present arrangements developed in response to the variability of arrival of police reports at the fiscal's office and the consequent inconvenience caused to agents and to the courts. Ensuring that custody cases are dealt with earlier in the day would reduce the cost of detaining accused as they would be detained for a shorter time and, if sentenced to imprisonment or remanded in custody, they would be removed to prison earlier. Solicitors would not have to wait at court so long for complaints to be served and cases called. Family and friends of those in custody would spend less time awaiting their release or news that they have been remanded in custody.

10.16 The numbers of cases reported in custody are highly variable though higher numbers can be anticipated following certain events and, often, public holidays. This places acute pressure on all of the organisations involved with them.

10.17 Where an accused is detained in custody, he or she must be brought before the court on the next lawful day. To achieve this, the police report must be dictated, typed, revised and reported to the procurator fiscal as soon as possible. Most custody cases relate to more serious and sometimes more complex crimes. The proof of crime generally is becoming more complex, especially with increased reliance on scientific techniques. Summary complaints are brought only where the prosecutor is satisfied that there is a corroborated case and so, where for example forensic evidence is an element of evidence, the result of any analysis must be available (or at least there must be a certainty that it will be available for the trial) before the prosecution is commenced. Additional complications include issues of bail. In view of the limited time available for further inquiry, it is important that reports are comprehensive and accurate. Errors or omissions may prejudice any prosecution and leave victims and witnesses at risk, if, for example, issues affecting a proper consideration of the appropriateness of bail or a custody remand are unclear or incomplete.

10.18 In order to deal with custody cases as quickly as possible the arresting or reporting officers must be taken off other duties, including patrol duties, to prepare and dictate the report. Typists need to be available at unsociable hours or at weekends to type them. Case management staff or supervisors need to be available to review cases as necessary and to obtain any further information required. By the time the case gets to court, the officers involved are likely to be off-shift.

10.19 In the same way that these cases create pressure on the police, they create pressure for procurators fiscal. Procurators fiscal have arrangements whereby available staff will assist with the marking of custody reports before they go on to their other duties. However, the cover provided by staff with court duties is available for only a short time and they may have to leave the office by 9 a.m. or 9.30 a.m. depending on local court starting times. Offices have a small core of legal staff dealing with other aspects of office work who will divert their attention to any reports which arrive late. Typically, the most complex cases are more likely to arrive late. These are likely to be the very ones which require further inquiry by the procurator fiscal and delays become compounded.

10.20 We recommend that the police, procurators fiscal and courts work together closely to identify ways of speeding up the process. This is a national problem but it would be best addressed through local solutions. General practices that will lead to better performance include ensuring:

• that reports are sent to the procurator fiscal as early as possible in the day;
• that there is capacity in the procurator fiscal's office to deal with those reports before routine court business for the day commences; and
• that local criminal justice boards play an active role in monitoring performance and driving improvement in this area.

Regulatory Cases

10.21 In the responses which we received to our first order consultation and in the course of consulting COSLA we were urged to recommend improvements in the prosecution of environmental and other similar offences of a regulatory nature which arise in relation to the responsibilities of local authorities. Examples include breaches of planning legislation, trading standards, pollution and food hygiene offences. There are a number of other specialist agencies responsible for sending reports to the procurator fiscal in relation to particular offences - e.g. H.M. Customs and Excise, the Health and Safety Executive and the Scottish Environment Protection Agency. Procurators fiscal told us that all too often the reports which they received were not sufficiently well prepared to enable a prosecution to be commenced. In a number of other jurisdictions, some of which were visited by members of the Committee - notably the Netherlands - there are specialist environmental prosecutors who have built up considerable knowledge and expertise which enables them to deal effectively with such offences. While we consider that we have identified a problem which could with benefit be constructively addressed, it is a problem which at best is close to the margin of our remit. It might first be addressed in discussions between the Crown Office and Procurator Fiscal Service, COSLA and, where appropriate, other specialist reporting agencies, to identify current weaknesses and the action which would most effectively deal with them and we so recommend.

We recommend that the obligation to prepare full police reports for submission to the procurator fiscal in every case be reviewed as it is not an effective use of police time. We believe there is scope for abbreviated reports to be prepared in a range of cases and note the recommendation in the ACPOS/COPFS joint protocol on police reports on this matter. We suggest that the use of abbreviated reports be kept under review by criminal justice boards to ensure that the most effective use is made of police and COPFS resources.

We recommend that steps are taken to ensure that custody cases are dealt with earlier in the day. We recommend that the police, procurators fiscal and courts work together closely to identify ways of speeding up the process - and that their joint efforts be monitored by local criminal justice boards.

We recommend discussion between the Crown Office and Procurator Fiscal Service, COSLA and other specialist reporting agencies on what needs to be done to secure the consistently effective prosecution of environmental and other similar regulatory offences.

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