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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 over 250 recently closed cases (all closed on the IT system in April 2007 were selected for review. The criteria 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. 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:

We commend the Area for the way they sent the files for review.

Specialities of the Aberdeen Area

Given the importance of the oil and fishing industries to the Area we looked at both oil and gas and fisheries cases. The results of the analyses are as follows:-

OIL AND GAS CASES

The importance of oil and gas production to the economy goes without saying.

Exploration of the North Sea began in the sixties and the pace of development was rapid. Early accidents heightened concern about safety reaching a low point in 1988 when the Piper Alpha disaster claimed 167 lives. These concerns continue to the present day recently leading to the proposed establishment of a dedicated "oil and gas academy" at Portlethen near Aberdeen with the aim of driving up safety standards.

Accidents in the North Sea can lead to prosecutions and Fatal Accident Inquiries. Aberdeen has been described as the oil capital of the UK with all the major companies having offices in the city. This inevitably catapults the office of the Procurator Fiscal at Aberdeen into the limelight and subjects its work to close international scrutiny.

Responsibility for investigating accidents in the North Sea rests primarily with the Health and Safety Executive while the Department of Business Efficiency and Regulatory Reform (formerly the Department of Trade and Industry) is concerned with pollution and discharges. Both organisations can and do report cases to the Procurator Fiscal for consideration of prosecution. During our inspection process the Health and Safety Executive published a report revealing that almost 60% of North Sea oil platforms had problems which oil companies should have addressed.

The Procurator Fiscal's Office in Aberdeen in response to concerns and the very specialised and technical nature of the work created a specialist post of "oil and gas Depute" to provide a source of in house expertise in the investigation and where appropriate prosecution of such incidents. This post was created after the Piper Alpha disaster and has continued since.

We were keen to establish with the various reporting agencies how well these arrangements were currently operating. Consequently the relevant personnel in both the Health and Safety Executive and Department of Business Efficiency and Regulatory Reform were contacted for their views.

Both were very supportive of the current arrangements. The Health and Safety Executive commented on the very positive communication and liaison arrangements, an open door policy, irrespective of the time of day. One example quoted was helpful advice obtained on New Year's Day about an off shore incident.

Advice supplied was described as very helpful. Joint training was arranged on a regular basis with the Procurator Fiscal participating in seminars for safety inspectors with legal issues being discussed. Although unlike in the situation with the police the Procurator Fiscal has no powers of direction relations are such that any request from the Procurator Fiscal is actioned.

Meetings regularly take place involving the Procurator Fiscal, the Health and Safety Executive, the Police and the Coastguard Agency. Early discussion of possible problems is therefore the norm. The need to explain technical matters in layman's terms is found to be a useful exercise for safety staff more used to technology than the law courts.

Similarly feedback from the Department of Business Efficiency and Regulatory Reform was very positive. 8 cases had been reported to the Procurator Fiscal in recent years, 4 of them in the last year. Once a report has been submitted to the Procurator Fiscal he convenes a meeting with the relevant personnel to discuss the case. Again good communication and easy access were commented on. Possible pleas were subject to discussion between the parties and the acceptability probed.

Again there was very positive feedback on training with the Procurator Fiscal providing input to training courses run by the Department. Again mirroring the situation with the Health and Safety Executive there was willingness on the part of the Department to carry out further enquiries at the request of the Procurator Fiscal. Having one point of contact was favourably commented on.

Probably as a result of early discussion most cases are taken up by the Procurator Fiscal who usually deals with them personally in court, the majority pleading guilty. Before one trial the Procurator Fiscal suggested the inspectors attended court to see another case and how the court operated. There was a high degree of satisfaction with the outcomes.

The views of the current holder of the "oil and gas" Depute post were also sought. He repeated the comments from the agencies particularly the benefit of early discussion of cases and the need to "translate" as it were technical expressions into layman's terms. This makes for easier presentation in court. The benefit of participating in training was also similarly commented on with a knock on bonus of better performance in court. The big issue was frequently the choice of accused because of the extent of sub contracting which takes place in the industry.

Disclosure which looms large as a problem elsewhere in the criminal justice system was not seen as a problem. The main reason for this was the legal requirement on operators to supply information so very little extraneous material is used which would be beyond the knowledge of potential accused. Full Disclosure is, however, made. The bulk of the prosecutions were for infringements of the Health and Safety at Work legislation and the Procurator Fiscal seeks information on 3 issues -

• What went wrong
• Whose job was it to prevent it
• What could have prevented it

Once that is available the task of framing charges becomes easier.

Examination of casework is an important part of the inspection process and 2 relevant cases were selected for scrutiny.

One involved a fatality at sea which resulted in a prosecution and a plea of guilty. A substantial fine was imposed on the company concerned and this was favourably commented on by the Health and Safety Inspector. A good practice feature of the case was the regular and speedy communication by the Procurator Fiscal with the deceased's family keeping them informed of developments. This included after the prosecution communicating with them on their views as to whether there should be a Fatal Accident Inquiry.

In the second case examined 2 men were badly injured in an accident on an oil rig. Again there was a prosecution and a plea of guilty. A fine close to the maximum possible limit was imposed. There was good evidence of communication between the Procurator Fiscal and the Health and Safety inspector on possible lines of defence and acceptable pleas. As with the previous case there was good communication with the 2 victims advising them of the outcome and the fact they would not be required to attend court and give evidence.

Conclusion

We take a risk based approach to inspection and the handling of such cases is a high risk activity for the prosecution service. The potential for damaging outcomes and comment is high. The very favourable comments received and the provision of a dedicated member of staff to this task has reduced this risk and the office is to be commended on the successful handling of such cases.

FISHERY CASES

In addition to the being the home of the UK Oil and Gas Industry Grampian is also home to the UK Fishery Industry.

This presents, as with oil and gas, particular sensitivities in the prosecution of associated offences.

The conservation of North Sea fishing stocks has been at the centre of political and economic argument for some time. The Grampian area accounts for 60% of the whole UK fish catch. Restrictions on catch have been imposed by the European Community Common Fisheries Policy and these have an inevitable detrimental effect on the Scottish Fishing Industry.

In response to the particular demands of prosecuting such cases the Grampian Area Fiscal has appointed a "specialist" prosecutor to deal with such cases. This enables the reporting agency (The Scottish Fisheries Protection Agency) to have a single point of contact for their cases and the opportunity to build a special relationship.

It also provides an opportunity to build expertise and share experience. At the time of inspection the particular Depute Fiscal was based in Banff but dealt with all East Coast fishery cases even those outwith the apparent jurisdiction of the Grampian Area. The legislation allows such cases to be prosecuted at Banff or indeed any Sheriff Court even though they originate beyond its jurisdiction. Another spin off benefit is that the local Sheriff sitting at Banff also develops experience of the relevant law which can be very technical at times.

The biggest UK port for white fish is Peterhead followed by Aberdeen and Fraserburgh. Some traditional fishing ports have atrophied in recent years such as Banff itself although Macduff has a few regular boats. The Grampian specialist prosecutor deals with about 80% of all fishery prosecutions for Scotland. It is, therefore, of particular importance.

The views of both the specialist prosecutor and the reporting agency were sought as to how the present arrangements worked in practice. There was unanimity on both sides that these worked well. The prosecutor reported that such cases were investigated to a high standard and comprehensive reports submitted (not always the same thing). The reporting agency indicated it was satisfied with the way its cases were dealt with while inevitably there wasn't complete agreement on particular issues.

We take an evidence based approach to inspection and requested approximately 2 year's worth of cases which were examined. Twenty three such cases were looked at. What was immediately apparent was the high standard of reporting and the equally high standard of consideration by the Fiscal. Also evident was the good communication between the parties.

Most of the offences were centred on conservation measures such as the number of dredges, the size or weight of fish landed, time at sea, fishing in prohibited areas, failures to communicate "effort" reports (relating to catch details by species to enable UK fishery authorities to know the amount of fish by species taken from within and outwith cod recovery zones), false records of where fish were caught to the more prosaic failure to provide a suitable boarding ladder (surprisingly common).

A particular feature of the prosecutions was the high guilty plea rate (12 out of the 23 examined). There was evidence of specialist defence lawyers getting involved in such cases and obvious understanding of the issues both evidential and substantive between the parties.

In one case a prosecution was discontinued when after consultation with the reporting agency it was accepted that the "wrong" article was alleged to have been contravened. The consultation was extensive and even included those responsible for the legislation. There was also a test case on "tolerance" levels on the weight of the catch, there being a material difference in approach in England. Crown Office was also consulted in one such case and an appeal lodged although subsequently abandoned.

What was clear from our examination of the cases was that every effort was made to deal with these and none were given up without a fight and good reason.

Conclusion

It was obvious that the prosecution of such cases was to a very high standard and there were close links between investigators and the prosecutor, always a good sign in our experience. We became aware that the particular Depute was leaving the Prosecution Service and hope a suitable dedicated replacement is appointed.

GENERAL CASE EXAMINATION

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 Aberdeen, Banff, Elgin and Peterhead 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 11 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 Aberdeen and these were received
• 2 from Banff and these were received
• 2 from Elgin which were received
• 2 from Peterhead of which 1 was 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.

Of the 10 cases received 4 were marked for no proceedings which we found to be the correct decision. One may have been a technical breach of policy as the sufficiency was arguable but the circumstances of the offence and the offender were such that the no proceedings marking was appropriate.

In the remaining 6 cases we found

• 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

We found one possible technical breach of policy in a complaint containing a charge of breach of the peace and a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995 - the offence of acting in a racially aggravated manner. The case was resolved by the Fiscal accepting the breach of the peace only but the racial element of the second charge was added by including a Section 96 aggravation which adds the racial element to the charge.

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 ⁴' 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 Grampian during period October 2006 to September 2007:

The number of 'No Proceedings' cases in the Grampian Area 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 Grampian account for 10.2% of total reported cases received in the Area. This compares with a national figure of 13.8%. (See Appendix 1, Table 10 for a breakdown of 'No Proceedings' cases)

Case Analysis:

The cases were chosen to provide a variety of types of offence and reason for taking no proceedings, otherwise the selection of cases was random.

We set out our findings office by office.

Aberdeen

8 cases, in which proceedings were not taken, were selected for inspection for this report. We received papers for 7 cases.

There was an examination of all 8 cases; the case for which we had no papers was subjected to a limited examination on the IT systems only. The other 7 cases were examined hard copy and on the IT systems.

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

• 4 x other
• 2 x insufficient admissible evidence
• 2 x delay by Police or Reporting Agency

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.

In the 7 cases for which we had papers the police met this target in 4 cases.

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. In 5 of the 7 cases where we had papers the Fiscal met this target.

In 2 cases the Fiscal made further enquiries and in another the charges were already time barred before the police reported the case.

In General:

We did not receive papers for one of the cases which we requested, but examination of the IT systems found that it had been wrongly recorded as having been marked 'No Proceedings' and indeed the case had been reported to Crown Office and indicted. The accused pled guilty to one of the charges on the indictment and was sentenced to 3 years imprisonment.

In another case we had been forwarded papers and made a check on the IT systems but some of the paperwork was missing so it was not possible to do a full audit of this case. It was clear that there had been communication with Crown Office and the case eventually marked for 'No Proceedings' after that.

Communication with Victim/Complainer:

None of the 7 cases for which we had papers were such that Crown Office and Procurator Fiscal Service guidelines would suggest initiation of communication and/or intimation of the decision with the victim/complainer.

Good Practice:

Cases which should appropriately be marked for 'No Proceedings' were so marked.

For example:

• The difficult, but in our view correct, decision was taken in one case where child witnesses would have been required to prove driving offences. Further enquiries were required and carried out in that case to explore other ways of proving the charge.
• In another case it was appropriate to mark the case for 'No Proceedings' for a number of reasons and this was done.
• A high degree of adherence to Crown Office and Procurator Fiscal Service policy and guidelines was found with all cases being marked 'No Proceedings' in compliance with stated policy and guidelines.

Areas to be Strengthened:

Data integrity requires constant care - in one case we found that it had been marked for 'No Proceedings' on the basis of a delay by the police, the reason recorded should more correctly have been that it was time barred.

Banff

As there was no existing hardcopy record we asked for 5 cases to be printed off with any correspondence and the marking record. Banff was unable to provide hard copy of the 5 cases.

The examination of the 5 cases requested has therefore been limited to an interrogation of the relevant IT systems.

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

• 2 x other
• 1 x insufficient admissible evidence
• 1 x mitigating circumstances and
• 1 x further action disproportionate

One of the cases examined we can make no comment on, as there were no papers available and no sign of the case on 2 of the 3 Departmental IT systems.

Timings:

In the 4 cases fully examined the police submitted all of the cases timeously. The Fiscal marked them within days.

Communication with Victim/Complainer:

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

Good Practice:

The cases examined were all very quickly marked. All cases were appropriately marked and the correct category of no proceedings marking selected. We found in 3 of the cases that the marker could probably have prosecuted the accused but made the difficult and, in our view correct decision in the public interest not to take proceedings.

Elgin

5 cases, in which proceedings were not taken, were selected for inspection for this report. We received all of the cases requested.

There was an examination of the hard copy cases supplemented, where appropriate, with interrogation of the IT systems.

The breakdown of categories of reasons for 'No Proceedings' was as follows:

• 2 x other
• 2 x insufficient admissible evidence
• 1 x delay by Police or Reporting Agency

A high degree of adherence to Crown Office and Procurator Fiscal Service policy and guidelines was found with all cases being marked 'No Proceedings' in compliance with stated policy and guidelines and the correct category being stated.

In the one case where further information was required before a decision was made these further enquiries were carried out.

Timings:

The police reported timeously in 2 of the 5 cases.

All cases in this sample were subject to the 4 week target which was met.

Communication with Victim/Complainer:

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

Peterhead

5 cases were selected for inspection and received.

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

• 1 x other
• 2 x insufficient admissible evidence
• 1 x age of offence
• 1 x civil remedy more appropriate

Timings

In 3 out of 4 cases the police submitted the cases timeously, the fourth case missed by a few days. The local authority reported the 5th case. The Fiscal only met the Departmental target in one of the 5 cases.

Areas to be Strengthened:

In one case alleging physical abuse and ill treatment of children the marking was 'No Proceedings'. While we would not argue with the marking the accused still lived with one child and it may have been suitable to either refer at least that child to the relevant authorities or to ensure that the relevant authorities were aware of the information.

In one case it may have been appropriate to seek more information from the police. However, as this was a small office it may be that the information was already in the knowledge of the marker.

In one case the marking on the papers was 'No Further Proceedings' and this had been incorrectly put into the system as 'No Proceedings'.

In one case the reason given for marking 'No Proceedings' was given as other, while we would not argue with the decision to take no proceedings the decision would have been more properly recorded as mitigating circumstances.

Stonehaven

5 cases in which proceedings were not taken were selected for inspection. We received all of the cases requested.

The breakdown of categories of reasons for taking 'No Proceedings' was as follows:

• 2 x other
• 1 x insufficient admissible evidence
• 1 x delay by Police or Reporting Agency
• 1 x further action disproportionate

Timings:

In 3 of the cases the police met the agreed target. However although one case technically met the target almost 10 months had elapsed since the commission of the offence so it was, correctly marked for 'No Proceedings' on the basis of the delay by the police. In the remaining 2 cases the target was missed by the police.

The Fiscal met the Departmental target in 3 of the cases and narrowly missed the target in the other 2.

In general:

All of the cases were correctly marked for 'No Proceedings'. In 4 of the cases the reason for this was correctly recorded but in one case the case should have been recorded as 'No Further Proceedings', failed service. It was entirely proper in that case to discontinue proceedings.

Communication with Victim/Complainer:

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

Good Practice:

We found in one case that proceedings were not taken due to the age of the witnesses and the fact that the accused had since been sentenced on a number of cases.

Areas to be Strengthened:

We found in the case referred to above which should correctly have been recorded as no further proceedings rather than no proceedings that the entry was wrong both on the national data base and wrongly entered on the Departmental IT system PROMIS. This is a data integrity issue only as it was proper to discontinue this prosecution in light of the circumstances.

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.

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 Grampian during period October 2006 to September 2007:

The number of 'Warnings in the Grampian Area account for 4.1% of 'Warnings' for the whole of the Crown Office and Procurator Fiscal Service.

The above table shows that 'Warnings' in Grampian account for 4.8% of the total reported cases received in the Area. This compares with a national figure of 8.3%. (See Appendix 1, Table 9 for a breakdown of 'Warnings')

Case Analysis:

Again the results of the analysis are set out office by office.

Aberdeen

8 cases were selected from Aberdeen for inspection for this report.

Timings:

The police met the reporting target in 4 of the 8 cases. 3 out 4 of the cases where the police did not meet the target were drugs cases where it does take time for the suspected objects to be analysed. In 7 of the 8 cases the Fiscal met the target.

Communication with Victim/Complainer:

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

Good Practice:

In one case an accused was given a warning letter which was consistent with Crown Office and Procurator Fiscal Service policy and guidelines and where a co-accused was prosecuted. Correspondence between the accused and the Fiscal resolved the case early.

Areas to be Strengthened:

One case was an unusual candidate for to receive a warning letter as the accused had a substantial record and an analogous previous conviction.

Banff

As there was no existing hardcopy record we asked for 4 cases to be printed off with any correspondence and the marking record. Banff was unable to supply hard copy of the cases requested.

The examination of the 4 cases requested has therefore been done by interrogation of the relevant IT systems.

All of the cases were appropriate for receipt of a warning letter.

Timings:

All four cases were submitted timeously by the police and marked within a few days by the Fiscal.

Communication with Victim/Complainer

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

Good Practice:

All four cases may not at first blush have seemed immediate candidates for warning letters but full consideration of all the facts of the case by the marker and an appropriate use of common sense and discretion resulted in sensible use of this marking.

Elgin

5 cases were selected from Elgin for inspection for this part of the report.

We found compliance with Crown Office and Procurator Fiscal Service policy and guidelines in all cases.

Timings:

The police reported only one of the five cases timeously. The Fiscal met the Departmental target in all cases.

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:

We found appropriate and imaginative use of warning letters in Elgin office.

Peterhead

5 cases were selected for inspection. 4 cases were appropriately marked.

Timings:

The police submitted all of the cases within the agreed timescales. In 4 of the 5 cases the Fiscal met the Departmental target.

Communication with Victim/Complainer:

4 of the 5 cases were such that Crown Office and Procurator Fiscal Service guidelines would not require initiation of communication and/or intimation of the decision with the victim/complainer.

Areas to be Strengthened:

In one case there was arguably a breach of policy. This case was a domestic breach of the peace and assault. Departmental policy in domestic abuse cases involving violence against the victim gives rise to a presumption in favour of prosecution. In this case a warning letter was served on the accused while he was in custody having spent a long weekend there. The reasons given for departing from Crown Office and Procurator Fiscal Service policy was that the long weekend spent in the cells was sufficient and the complainer had a drink problem. Additionally we could find no evidence of any communication with the complainer.

Stonehaven

5 cases were selected from Stonehaven for inspection for this report. All were suitable for the issue of a warning letter.

Timings:

The police reported 4 of the 5 cases timeously. The remaining case was a drugs case. The Fiscal met the Departmental target in one of the cases. We noticed that 2 of the 5 cases were marked on a Saturday by a member of staff at a grade at which we understand overtime would not be paid.

Communication with Victim/Complainer:

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

In one case a child was involved and we would have liked to see the child concerned referred to the Reporter but we note the case was referred to VIA.

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 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 Grampian Area for period October 2006 to September 2007.

Case Analysis:

The findings of the analyses are set out office by office.

Aberdeen

8 (9 accused) cases were selected for inspection from Aberdeen for this report. These cases were chosen to provide a variety of offences and levels of Fiscal Fines/Fixed Penalty offered.

Timings:

In 3 of the 8 cases the police reported timeously, in 2 of the 5 remaining cases the charges concerned drugs which take time to be analysed. In 7 of the 8 cases the Fiscal met the Departmental target.

The offences disclosed in the inspection were Misuse of Drugs Act offences (2), assault (2) speeding, not wearing a seatbelt, theft and breach of the peace.

The fines offered ranged as follows:

• 1 x £60 and 3 penalty points
• 1 x £30
• 1 x £25
• 2 x £50
• 3 x £75 (2 cases)
• 1 x £100

In all of the cases bar one the penalties/fines were paid, in respect of the remaining accused we were unable to ascertain from the IT system whether the penalty had been paid.

In 2 cases we noticed that the IT system had provided decision support for the marker who had accepted this.

Areas to be Strengthened:

In one case we noticed that the offer of a Fixed Penalty may arguably have been a deviation from policy, however the decision was one which could be argued on the basis that the Fiscal Fine was appropriate for the co-accused.

In another case a Fiscal Fine was offered which was not a breach of policy but still arguably unsuitable as it was an unprovoked attack where the complainer required dental work and the accused had previous convictions.

Banff

We requested 5 cases, Banff was unable to supply these in hard copy.

The examination of the 5 cases requested was carried out by an interrogation of the relevant IT systems.

The 5 cases were chosen to provide a variety of offences and levels of Fiscal Fines/Fixed Penalty offered.

The cases inspected displayed full adherence to Crown Office and Procurator Fiscal Service policy and guidelines relating to this marking. All cases were appropriately marked as Fiscal Fine/Fixed Penalty and the level of fine was within the appropriate range. Records indicate that all the fines were paid and further action was not required in any case.

Timings:

4 of the 5 cases were submitted by the police within the agreed time protocol. In the remaining case the police were unable to caution and charge the accused due to him working offshore.

In 3 of the 4 cases the Fiscal actioned the cases meeting the 4-week target for taking and implementing decisions.

The sample contained:

• 4 x motoring offences
• 1 x statutory offence

The 5 cases involved a total of 5 accused. The fines offered were as follows:

• 1 x £200
• 3 x £60
• 1 x £25

All of the penalties were paid by the accused who have the right not to pay should they disagree with either the evidence that they committed the alleged offence or the level of penalty offered.

Elgin

5 cases were selected for inspection; these cases were chosen to provide a variety of offences and levels of Fiscal Fine/Fixed Penalty.

Timings:

In 2 of the 5 cases the police reported the case within the agreed timescale. In all of the cases the Fiscal met the Departmental target.

The offences in the cases examined were:

• 2 x breach of the peace
• 2 x assault
• 1 x possession of controlled drugs

The fines offered ranged as follows:

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

All of the fines were paid.

Areas to be Strengthened:

In one case we did have reservations about the accused having been issued with a fiscal fine due to a recent similar conviction and a recent Fiscal Fine for a similar charge.

Peterhead

5 cases were selected for inspection from Peterhead. These cases were chosen to provide a variety of offences and level of Fiscal Fines/Fixed Penalty.

In all cases there was full adherence to Crown Office and Procurator Fiscal Service policy and guidelines relating to this marking. All cases were appropriately marked as Fiscal Fine/Fixed Penalty and the level of fine was within the appropriate range. All fines were paid and further action was not required.

Timings:

3 of the 5 cases were submitted within the agreed time protocol and one was missed due to the police being unsuccessful in tracing the accused. In all of the cases the Fiscal met the Departmental target.

The sample contained:

• 2 x motoring offences
• 2 x common law offences
• 1 x minor statutory offence

These 5 cases involved a total of 10 accused; one case had 6 accused. Fines were offered to 5 of the 10 accused and the fines offered ranged as follows:

• 2 x £25
• 1 x £200
• 1 x £30
• 1 x £75

All of the fines offered were paid by the accused who have the right not to pay should they disagree either with the evidence that they committed the alleged offence or the level of penalty offered.

Good Practice:

The Fiscal processed all of the cases in a few days. All cases were properly marked for this alternative and with an appropriate level of penalty. The offences have accordingly been dealt with without the necessity for court proceedings.

In one case a multiplicity of diversions were used with young offenders, referral to the Reporter, Social Work Diversion and Fiscal Fine.

Stonehaven

We were unable to find sufficient Stonehaven Fiscal Fines and Fixed Penalties to sample.

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 are taken in the Grampian Area for period October 2006 to September 2007 and also Table 11 for a breakdown of the cases.

Case Analysis:

The findings of the analyses are set out office by office.

Aberdeen

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

• 4 x other
• 1 x failed service
• 2 x warrant withdrawn

In approximately half of the cases the wrong reason for discontinuing the prosecution was recorded on the national database.

In one case we were unable to ascertain why proceedings had been discontinued and in another due to the file having been weeded we could not ascertain the reason for marking the case for no further proceedings although we did glean from the IT system that the Fiscal had been given background information on the accused which had caused the change of heart.

In another case an accused was invited to appear to answer a warrant, she failed to do so and instead of the warrant being passed to the police it was marked for no further proceedings on the basis of time bar, which was patently not the case. In another an accused was invited to answer a warrant 3 times before the case was marked for 'No Further Proceedings' without any attempt being made to execute the warrant. However, arguably the case would have been better dealt with by a warning letter in the first instance.

One case was marked appropriately for 'No Further Proceedings' as the accused had been sentenced to a substantial sentence of imprisonment saving the necessity of further court proceedings. There is an argument, however, that the case should never have been taken up in the first place due to his imprisonment.

Areas to be Strengthened:

There are data integrity issues with the wrong reasons for discontinuation being recorded and one case marked 'No Proceedings' showing up as if proceedings had started and been discontinued. The marker has to accurately record reasons on the papers and this should be reflected in what is recorded on the IT systems.

Banff

5 cases were selected under this head and original case papers were forwarded in 3 of the cases. The cases were picked at random and the reasons for discontinuing proceedings were as follows:

• 2 x other
• 1 x failed service
• 1 x warrant withdrawn
• 1 x civil remedy more appropriate

A full review of the cases for which we had no papers was not possible.

In relation to the 2 cases where papers were not provided by the Banff Office, interrogation of the IT system revealed:

• One case appeared to be correctly marked for 'No Further Proceedings' as failed alternative with the correct category of 'No Proceedings' marking being selected.
• The second case was a case which had initially and correctly been marked for 'No Proceedings'. This case was incorrectly chosen as proceedings having been commenced then discontinued.

One of the cases seemed a little unusual in that it was a warrant for breach of probation, which was eventually withdrawn by the Fiscal on 6 June 2007 due to delay in execution as notification dated 23 May 2006 advised the accused was in prison. Ordinarily there would have been communication with the Sheriff Clerk's Office prior to such action but no sign of this could be found.

In the 2 remaining cases the decision to take no further proceedings complied with Crown Office and Procurator Fiscal Service policy and guidance. In 1 case the correct category of 'No Further Proceedings' was selected and in the second the reason recorded on the national database is wrong.

Good Practice:

Account was taken of mitigating factors resulting in a termination of proceedings and a fixed penalty offer being appropriately and correctly offered in the circumstances in one case. In another proceedings were halted when further information from the witnesses came to light. These prevented further and unnecessary court proceedings.

Areas to be Strengthened:

The oversight of warrants may need to be looked at in light of the above and contact established with the Sheriff Clerk for cases like this. Data integrity was a minor issue in one case.

Elgin

5 cases were selected under this heading. Original case papers were recovered in all 5. The cases were picked at random and the reasons for discontinuing prosecution were as follows:

• 3 x other
• 1 x attitude of victim
• 1 x failed service

Proceedings were correctly discontinued in all cases and an appropriate reason for this recorded.

Communications with Victim/Complainer:

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

Good Practice:

Commonsense and compassion were exhibited in at least 2 of the decisions to take no further proceedings. In one case the decision to take no further proceedings appeared to be taken against a background of pleas of guilty in other cases including a Sheriff and Jury case.

Peterhead

5 cases were selected under this head from Peterhead. Original case papers were recovered in 3 out of the 5 cases; consequently full review of 2 cases was not possible but the examination of the copy case was supplemented by interrogation of the IT systems. The cases were chosen to provide a variety of types and gravity of offence; the selection was random.

In the 3 cases fully reviewed the decision to take no further proceedings complied with Crown Office and Procurator Fiscal Service policy and guidance. In 2 of the cases the correct category of no further proceedings was selected and one case we had reservations about the case being taken up in the first place.

In one of the cases where the papers could not be found the case is recorded on the system as no further proceedings 'other'. This was a serious case of alleged harassment of a Crown witness who was terrified of the accused and we are unable, due to lack of information, to come to any view on whether that decision was correct.

In the second case where the papers could not be found the case started on petition and the accused committed for further examination and then fully committed. The case from the outset seemed evidentially quite thin. The case would appear to have been allocated for precognition but the case had not been precognosced. The person to whom the case was allocated appears to have been off sick long term and when the case was reviewed it was rather elderly and after discussion by legal staff the decision was taken to mark the case for 'No Further Proceedings' without reference to Crown Office which is contrary to Crown Office policy.

Good Practice:

In the 3 cases fully reviewed the Fiscal had properly taken the decision to take 'No Further Proceedings'.

Areas to be Strengthened:

The case referred to above, which was marked for 'No Further Proceedings', after the accused had been fully committed was done without reference to Crown Office contrary to policy.

Stonehaven

5 cases were selected at random under this head. We only received 2 sets of papers. The examination of the hard copies was supplemented, where appropriate with interrogation of the IT systems and the 3 sets of cases for which we had no papers were examined via the IT systems.

The breakdown of categories of reasons for discontinuing proceedings were as follows:

• 1 x other
• 1 x warrant withdrawn
• 1 x age of offence - which is a no proceedings marking rather than a no further proceedings marking
• 2 x no proceedings - civil remedy more appropriate which is, again a no proceedings marking rather than a no further proceedings marking

The 2 cases we did have hard copy were cases which had been taken up and then were marked for 'No Further Proceedings'. In one of the cases proceedings were discontinued after a warrant had been taken, the accused invited to attend and then fail to attend at court. The other case had a wrongly recorded reason for discontinuing proceedings.

The cases for which we had no papers were examined by interrogation of the IT systems and we found that 2 of the cases, marked - 'no proceedings, civil remedy more appropriate' - were correctly marked. The remaining case was marked for 'no further proceedings, other' - after the accused failed, for a reason we cannot ascertain, to answer the complaint in court. At the stage when the case was considered again proceedings would have been time barred.

DIVERSION

In all of our inspection work we take a risk assessed approach.

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 for 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

Cases involving children are always a priority for all agencies. Diversion of child protection cases could be a high risk area.

See Appendix 1, Table 9 for figures relating to diverted cases in the Grampian Area for period October 2006 to September 2007.

We requested an extract of one year's social work diversions from the Elgin Office. There were 38 such cases. 9 of them were driver diversions so that left 29 cases. We specifically looked for cases involving children. As there was no way of finding out which of the cases had child witnesses we selected 10 cases which detailed the charge of contravening Section 12 of the Children and Young Persons Act 1937 which covers the ill treatment of children by any person having parental responsibilities of a child under 16 years. We asked for all 10 cases and received printouts which we examined supplemented by interrogation of the IT systems.

Each case individually was suitable for diversion and in each case there was sufficient evidence to prosecute the accused. All of the cases bar one were also reported by the police to the Children's Reporter for consideration. The exception involved a 15-year old who was 3 months off her 16th birthday.

One accused, however accounted for 3 of the cases and she was reported by the police on 3 occasions. All of the charges she faced concerned her being very drunk at home with her small children. The first case was eminently suitable for diversion, the second (3 months after she had been diverted for the first case) was diverted and we would not argue with that but a third case was reported (occurring 4 months after the second diversion) and that was also marked suitable for diversion one day and closed as completed the next. It might have been wiser, given the continuing offending, to either take proceedings or discuss the case again with the social workers involved.

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 Section 7). 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 Appendix 1, Table 15 for a breakdown of District Court cases in the Grampian Area for periods October 2005 to September 2006 and October 2006 to September 2007.

The results of the analyses are set out office by office.

Aberdeen District

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. 10 original sets of hard copy papers were recovered and reviewed supplemented by examination of the IT systems.

In all of the cases there was sufficient evidence to justify prosecuting the accused with the charge or charges on the complaint. The charges were all adequately drafted and police charges changed where appropriate, rolled up in one case and a charge added in another.

All of the cases were appropriate for prosecution in the District Court. Some cases had originally been marked as Fiscal Fines/Fixed Penalty but when these were not paid the cases were properly taken up in the District Court.

One case had been marked suitable for diversion which it seemed to be but when diversion failed the accused was prosecuted as is appropriate.

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

In 6 of the 10 cases the police reported the case within 28 days of offence or caution and charge. In 8 of the 10 cases the Fiscal marked the case within the Departmental target time of 5 or 4 weeks.

In 4 of the cases guilty pleas were tendered either at first calling, a continued calling or when answering a warrant after continued callings without plea.

None of the remaining cases required an early trial diet. None of the trials were set for dates 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.

• All witnesses who were required for any subsequent trial were identified.
• In all of the 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 for civilian witnesses in all cases where a trial has been fixed. There are protocols agreed with the police concerning the submission of statements, procedures in offices for checking of statements and the provision of statements to defence solicitors. We discuss Disclosure in more detail later.

We have received information that Disclosure generally was causing problems for Aberdeen.

• In 3 of the 6 cases witness statements were made available to the defence at the correct time, all were cases where the accused was at liberty in respect of the case so that is 28 days before the intermediate diet
• In one of the remaining 3 cases Disclosure was late
• In the remaining 2 cases we could find no evidence of Disclosure having been made although we saw minutes in one of the cases that Disclosure was to be made

Preparation for Trial:

At intermediate diet only one case resolved by way of an acceptable plea. Any follow up work required after intermediate diet was done in all 5 remaining cases.

• In one case a plea of not guilty was accepted as the accused was serving 9 months imprisonment. It was reasonable to discontinue the case on that basis.
• Two cases resolved by acceptable pleas at the trial diet
• In one case after trial the accused was found guilty
• Another case was a plea of guilty after the issue of legality of a search established by a trial within a trial

It is anticipated that the Summary Justice Reform, which is being 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.

Good Practice:

A lot of effort has gone into preparing these cases appropriately. In one case considerable pressure was brought to bear by the defence to have a case dropped and this was resisted successfully.

Areas to be Strengthened:

The failure to disclose timeously is an issue.

Banff

5 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 was random. 5 original sets of hard copy papers were recovered and reviewed.

In all cases there was sufficient evidence to prosecute the accused. All cases were appropriately marked for prosecution in the District Court. In 2 of the cases the police missed their reporting target. In all cases the Fiscal took action within the Crown Office target.

All charges were competent and would be resilient to legal challenge.

In 4 of the 5 cases the accused pled guilty at the pleading diet, or in one case at a continued pleading diet.

Preparation for Trial at Case Marking Stage:

All cases were properly prepared for trial even though in 4 of the 5 cases there was early resolution.

Disclosure:

In the one case going to trial Disclosure was made but it was later than current policy indicated.

Preparation for Trial:

Attempts were made to try to agree evidence for the trial and the trial was fully prepared.

Good Practice:

All the cases resulted in pleas, 4 at an early stage meaning that witnesses were not inconvenienced. The pleas accepted in all 5 cases were reasonable. In one case there was a clear minute on the papers for the Court Depute in respect of factors to be taken into account in plea negotiation.

Elgin

5 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. 5 original sets of hard copy papers were recovered and reviewed supplemented by examination of the IT systems.

In all of the cases there was sufficient evidence to justify prosecuting the accused with the charge or charges on the complaint. The charges were all adequately drafted and police charges did not require to be changed.

All of the cases were appropriate for prosecution in the District Court. Some cases had originally been marked as Fiscal Fines/Fixed Penalty but when these were not paid the cases were properly taken up in the District Court. The 2 cases remaining were speeders and in one case the speed was such that on Crown Office and Procurator Fiscal guidance the case would go straight to court.

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

None of the cases were custody cases.

In 3 of the cases guilty pleas were tendered either at first calling or at a continued calling.

Neither of the remaining cases required an early trial diet. In the one relevant case the trial date was not set for a date when Police Officers were on leave.

Preparation for Trial at Case Marking Stage:

The cases were all prepared, at least in part, for trial at the marking stage and in all cases the witnesses who were required for any subsequent trial were identified.

Disclosure:

In the 2 relevant cases Disclosure was made but in one case it was later than current policy indicated.

Preparation for Trial:

Both cases were fully prepared at the intermediate diet. In only one case was any follow up work required after intermediate diet and this was done.

One case resulted in an appropriate plea at the trial and the other resulted in a finding of guilt after trial.

It is anticipated that the Summary Justice Reform, which is being 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.

Noted:

In one case we noted that the police did not include the officers who cautioned and charged the accused as witnesses, the list of witness comprised solely of the 2 civilians. The officers were not essential to the proof of the case but this is a most unusual occurrence.

Peterhead

5 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. 5 original sets of hard copy papers were recovered and reviewed.

In all cases there was sufficient evidence to prosecute the accused. 4 of the 5 cases were appropriately marked for prosecution in the District Court. The 5th case was one, which arguably would have been more appropriate for the Sheriff Court as there was a child witness and charges under Section 41 of the Police (Scotland) Act 1967.

In 4 of the 5 cases the police reported the cases within 28 days and in 4 out of 5 cases the Fiscal took action within the Crown Office target. In one case the target was missed by both.

All complaints contained charges, which were competent and would be resilient to legal challenge on competency or relevancy.

Preparation for Trial at Case Marking Stage:

• In all cases the witnesses who would be required for any trial were identified
• In all appropriate cases (2 out of the 5) attempts were made to agree evidence
• In the only appropriate case instructions were provided re service of statutory certificates

Disclosure:

In all cases where a not guilty plea was tendered (3 out of 5) the Disclosure requirements were met.

Preparation for Trial:

3 of the 5 cases pled not guilty and were fully prepared for intermediate diet.

In only one case was there a motion to adjourn and that was by the Defence.

One case pled at intermediate diet and the remaining 2 pled guilty at the trial diet. The pleas accepted were all reasonable.

Good Practice:

In one case where a plea of guilty contained an explanation inconsistent with the plea the case was continued without plea for clarification resulting in a plea of not guilty at the continued diet.

Stonehaven

5 cases were selected for inspection. The cases were picked at random but all were statutory charges concerning speeding or vehicle maintenance.

In all of the cases there was sufficient evidence to justify prosecuting the accused with the charge on the compliant. The charges were all adequately drafted and none of the police charges required to be changed.

All of the cases were appropriate for prosecution in the District Court. Generally the reasons for taking proceedings in the District Court were not minuted but the reasons were obvious.

In one case the police reported within the agreed time. In 4 of the cases the Fiscal took action within the Departmental target of 5 or 4 weeks.

Preparation for Trial at Case Marking Stage:

This was done in all cases at the case marking stage.

Disclosure:

This was not an issue as all accused pled guilty by letter at the first opportunity.

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 (£5,000 until December 2007 when it rose to £10,000) and up to 12 months imprisonment.

See Appendix 1, Table 14 for a breakdown of Sheriff Court cases in the Grampian Area for periods October 2005 to September 2006 and October 2006 to September 2007.

Case Analysis:

The results of the analyses are set out office by office.

Aberdeen

19 cases were selected. 9 were cases where accused had been kept in custody by the police pending appearance in court. 10 cases were non custody cases. All cases were reported by the police.

Custody Cases:

Of the 9 custody cases examined opposition to bail was marked in 8 and refused in 8. None of the decisions were appealed. In the final case, a case of domestic abuse bail was not opposed but special conditions were sought and imposed.

All of the cases examined had an appropriate bail marking.

Marking:

All the 19 cases reviewed proceeded on reports received by the police. The police reports contain draft charges.

In 11 cases no changes were made. In 2 cases bail aggravations were added by the marking Depute having been omitted by the police. In 6 cases the marking Depute had added or deleted charges or had decided not to proceed against all accused.

In the 2 cases where decisions not to proceed against all accused was made 1 case was marked 'no proceedings' against 1 of 2 accused. In the other case which involved 4 accused and multiple charges of dishonesty proceedings were taken against 2 accused only, the other 2 being used as witnesses.

In 18 of the 19 cases examined the marking was in compliance with Crown Office policy.

It was felt however that in 1 case reported as a custody, that solemn proceedings would have been more appropriate. The case related to a shoplifter who having been challenged and detained by staff attempted to strike one of the staff with an uncapped syringe. The police report narrated "repeatedly". In our opinion it may have merited solemn proceedings.

Preparation for Trial at Case Marking Stage:

All preparation for trial was instructed at case marking stage. Other than custodies no cases were identified where early diets should have been sought.

Disclosure and Preparation for Intermediate and Trial Diet:

Of the 9 custody cases examined 8 resulted in pleas of "not guilty".

Of the 10 reported cases examined 6 resulted in pleas of "not guilty".

Of these 14 cases the Disclosure requirements were clearly met in 12.

In 1 of the remaining cases the full statements had not been submitted timeously by the police and therefore the requirement could not be met.

In the other case a Disclosure package had been sent timeously to the defence but at a subsequent intermediate diet a minute on the papers indicated that a statement had not been disclosed.

Intermediate diet checklists are used but all were weeded out when cases were closed and none were therefore available for examination.

Of the intermediate diets fixed 2 were continued to a further intermediate diet, 1 at defence request, the other was minuted as "Disclosure not made".

None of the cases examined required special measures such as screens or CCTV.

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. Returned executions had been weeded from the papers and the appropriate field in PROMIS was not always completed to show that an execution of service had been returned.

There is a system operating at Aberdeen Sheriff Court relating to citation of police officers ( COAS). There are 2 COAS operators at the court who are employed by the police. They work part time so that not every court is covered. They pull up leave dates and training course dates for police witnesses so that unsuitable trial dates can be avoided. When the Deputes do their court minutes it should be stated on the minute whether a COAS operator was in court. If a COAS operator was in court the police witnesses will be cited from the court, if the COAS operator was not in court the Aberdeen office cites the police witnesses personally. The COAS system is in operation at Aberdeen District Court but it is operated by the Clerk to the District Court.

At The Trial Diet:

Of the 9 custody cases examined

• 1 pled guilty at outset
• 3 pled guilty at intermediate diet
• 1 pled guilty at a continued intermediate diet
• 3 pled guilty at trial diet
• 1 pled not guilty at trial diet and was found not guilty

The last case referred to involved an allegation of domestic abuse. The complainer had twice written to the Procurator Fiscal asking that charges be dropped.

Of the 10 non-custody cases examined

• 4 pled guilty at the outset. However 1 was subsequently allowed to withdraw that plea and enter pleas of not guilty. This procedure was not opposed by the Crown.
• 1 pled guilty at intermediate diet stage.
• 1 failed to appear at intermediate diet stage. A warrant was sought, granted, and accused subsequently pled guilty when warrant was executed.
• 1 pled guilty at trial diet.
• 1 was deserted pro loco et tempore by the Crown at the trial diet after witnesses failed to attend. Proceedings were then re-raised by the Crown but ultimately abandoned when witnesses again failed to attend at a trial diet.
• In 2 cases pleas of not guilty were accepted by the Crown at the trial diet. In one of these cases the decision was taken by the trial Depute after viewing video evidence. In the other case the decision was taken by the trial Depute and the reason being minuted as "doubtful sufficiency".

Referral to Victim Information and Advice:

Of the 19 cases examined 5 had been referred to VIA. All were appropriate referrals.

• 2 were cases of domestic abuse
• 1 was a breach of bail conditions in a domestic abuse case
• 1 case involved child witnesses
• 1 related to the conduct of the accused towards the new boyfriend of his former partner

All these cases were reported as custodies.

Good Practice:

We found all pleas of guilty accepted were reasonable and appropriate.

In all but 1 of the cases examined the cases were appropriately marked and prosecuted in terms of Crown Office guidelines.

Areas to be Strengthened:

Nothing specific was identified from the case papers identified. Heavy reliance required to be placed on FOS, SOS, and PROMIS to follow audit trails.

Banff

9 cases were selected for inspection. All the cases were reported by the police. 4 were reported as custody cases.

Custody Cases:

Of the custody cases reviewed bail was opposed in 2. Both pled guilty at the outset. Bail was not opposed in the 2 other cases although special conditions were sought and imposed in 1. In each case the bail marking was appropriate.

Marking:

All 9 cases examined were reported by the police. In 1 case a bail aggravation was deleted by the marking Fiscal. In another a charge of dangerous driving had been altered stylistically by the marking Fiscal to include more specification.

One case involved an adult and child accused. It had been marked in accordance with Crown Office Regulations and Lord Advocate's Guidelines.

Full preparation was carried out at case marking stage. The necessary instructions were marked on the backing sheets of the police reports by the marking Fiscal but case instructions sheets and minute sheets generated in FOS were not printed off and associated with papers. No cases were identified where early diets or special measures were required.

Disclosure and Preparation for Intermediate Diets:

Of the 9 cases examined pleas of not guilty were entered in 5 and intermediate and trial diets fixed.

The Disclosure requirements appear to have been met in each of these cases.

In each case the police statements had been received timeously.

We were informed that intermediate diet checklists were not used in Banff office.

It was not clear from the case papers that all witnesses had been cited in each case as executions of citation had been weeded out and the appropriate PROMIS fields had not been updated. There were however no minutes on the case papers reviewed indicating that there were any problems with witnesses and in no cases did the Crown seek a continued intermediate diet.

In one case an intermediate diet was continued on defence motion as legal aid had not been granted.

In 1 case a certificate of accuracy had been sought from the police and timeously served. It was minuted after the intermediate diet that the execution of service should be chased up. It was with the papers when inspected. In the same case there had been agreement of evidence although this had not affected the number of witnesses called.

None of the cases examined required special measures (eg Screens or CCTV).

Preparation for Trial:

At the intermediate diets 4 cases pled guilty.

The remaining case was continued to trial. The charge was libelled under Section 2 of Road Traffic Act 1988 (dangerous driving). This mirrored the charge contained in the police report. The police report narrated however that the accused had been charged with a contravention of Section 2 with an alternative charge of speeding. The Fiscal proceeded only on the Section 2 charge. At the trial diet it was minuted that a plea of guilty to speeding had been offered.

The plea which was accepted was to a contravention of Section 3 of Road Traffic Act 1988 (careless or inconsiderate driving). This charge is an implied alternative to Section 2. The libel under Section 2 had contained a reference to "numerous parked vehicles and pedestrians at the locus". The Section 2 libel then appeared to proceed on more than simply grossly excessive speed. This may explain why an alternative charge of speeding was not included by marking Fiscal. It was not minuted on papers why the plea to Section 3 was accepted at the trial diet.

The Road Traffic Guidance Manual states at Para 3.58.1.3 dangerous driving.

"If a plea to Sec 3 would be acceptable that is the charge which should be proceeded with."

Referral to Victim Information and Advice:

None of the cases examined had been referred to VIA. It was not considered appropriate to refer any of the cases examined.

Good Practice:

With one possible exception that we found all of the cases were appropriately marked and all pleas of guilty accepted were appropriate.

Areas to be Strengthened:

Although minute sheets and court instruction sheets were completed in FOS they were not printed off or associated with case papers.

Elgin

9 cases were selected from Elgin Office. All cases were reported by the police. 4 were cases where police had kept the accused in custody pending appearance at court. One had been released by the police on an undertaking to appear at court. 4 were cases reported by the police where accused were not in custody.

Custody Cases:

Of the 4 custody cases opposition to bail was marked in 3 cases. Bail was not opposed in the last case. In 2 of the cases where bail was opposed the accused pled guilty. In the case where bail was not opposed the accused the accused pled guilty. In the remaining case where bail was opposed the accused was remanded in custody. He then appealed the Sheriff's decision unsuccessfully. At a subsequent trial diet 2 witnesses failed to attend and the accused was then liberated on bail.

The accused released on an undertaking pled guilty at the outset.

All the bail instructions were appropriate.

Case Marking:

All 9 cases examined proceeded on reports received from the police. In 2 cases charges included by the police had been deleted. These deletions were appropriate and all cases were marked in accordance with Crown Office guidelines and policy.

Preparation for Trial at Case Marking Stage:

Full preparation for all cases had been carried out at case marking stage.

Disclosure and Preparation for Intermediate and Trial Diets:

In 5 out of 9 cases pleas of not guilty were tendered and intermediate and trial diets fixed.

In 1 case the Disclosure requirements were clearly met.

In 1 case it could not be ascertained from the papers or an interrogation of the IT systems if the Disclosure requirements were complied with. There was nothing minuted at intermediate diet to suggest that the requirements were not met.

In 2 cases the requirements were not met as police did not submit full statements timeously.

In the remaining case full statements were submitted timeously but a solicitor was not instructed until after intermediate diet and no request for Disclosure was made until the solicitor was instructed.

Intermediate diet checklists are not used in the Elgin office.

In 3 cases it was clear from papers or PROMIS that all witnesses were cited. In 2 cases it could not be confirmed from papers or PROMIS that all witnesses had been cited but there was nothing in the intermediate diet minutes to indicate any problems with witnesses.

In all cases examined pre-trial preparation was carried out. In no cases were special measures required. In 1 case the accused pled guilty at a continued intermediate diet after copy tachographs had been disclosed to the defence.

4 cases were continued to trial diet. In 2 cases follow up work was required after the intermediate diets namely requesting defence statements and this was done.

Trial Diets:

1 accused pled guilty at the trial diet, now being represented by a solicitor. 1 trial required to be adjourned as witnesses failed to attend, the accused was liberated on bail. 1 trial required to be adjourned due to lack of court time and 1 accused pled guilty.

Referrals to Victim Information and Advice:

Of the 9 cases examined 1 was referred to VIA. This was a racial abuse case and the referral was appropriate.

Warrants:

In 1 case a warrant was granted at a diet of deferred sentence. The warrant was issued to the police within 3 days and executed within 7 days.

In one case where warrants were granted for witnesses both persons were given an opportunity to attend court to answer the warrants. The invitation letters were sent to the police to deliver but each was returned by the police marked "unserved due to volume of calls and lack of staff". It was not clear from the papers what steps were thereafter taken to ensure their attendance but trial did proceed on the subsequent date.

Good Practice:

All cases were marked in accordance with Crown Office policy and guidelines and all pleas of guilty accepted were appropriate.

Peterhead

10 cases were examined. 5 were cases where police had kept accused in custody to appear in court, 5 were reported cases. All cases were reported by the police.

Custody Cases:

It was clear from the papers that in 1 custody case bail was opposed. The accused pled guilty. It was clear that in 2 cases bail was not opposed. In the remaining 2 cases it was not clear from papers examined if bail had been opposed. Bail was granted in these 4 cases.

Marking:

All of the cases examined were reported by the police and the reports contained draft charges. In 3 cases minor changes had been made by marking Fiscal. All cases were appropriate for prosecution in the Sheriff Court.

Preparation for Trial At Case Marking Stage:

Generally the cases were well prepared for intermediate and trial diets.

One case examined was a copy and it was not possible to obtain all the information required despite supplementing the inspection with interrogation of the IT systems.

Those witnesses who would be required were identified in all cases except the one referred to above where it was not possible to confirm this.

Where possible witnesses were highlighted if it appeared evidence could be agreed. Instructions were provided in respect of service of a forensic science reporting in the one relevant case. Police leave was taken into account.

The need for special measures was of relevance in 2 cases. One case was the copy case previously referred to. Inspection of information available about the copy case could not confirm if special measures had been considered at marking stage.

In the other case special measures had actively been considered by the marker who put in place steps to enable special measures to be considered further if appropriate.

Of the 10 cases examined 3 pled guilty at the outset and 1 pled guilty at a continued without plea diet.

Of the 6 cases where intermediate diets were fixed Disclosure was clearly met in 5. The remaining case was the copy case and it was not clear if Disclosure had been met.

Peterhead do not use intermediate diet checklists, however, cases were generally well prepared.

Preparation for Trial:

4 cases were continued to trial diets. In all appropriate cases attempts were made to have evidence of witnesses agreed. In 1 case a plea was agreed before the trial and witnesses were countermanded. One case was a racial case and it pled guilty at trial diet. The remaining cases went to trial and the accused in one case was found not guilty and the other was found guilty.

Victim Information and Advice:

3 cases were referred to VIA. All referrals were appropriate.

Good Practice:

Cases were generally well prepared for intermediate and trial diets. All marking was in terms of Crown Office policy and guidelines. All pleas of guilty accepted were appropriate.

Stonehaven

8 Sheriff summary court cases were examined. 3 were cases where the accused had been kept in custody by the police, 5 were reported cases. All the cases were reported by the police.

Custody Cases:

Of the 3 custody cases 2 were marked that bail was not opposed but that special conditions should be sought. Both these cases pled guilty at the outset. In the third case bail was opposed but was allowed with special conditions. The decision was not appealed. In each case the bail instruction was appropriate.

Marking:

All 8 cases reviewed proceeded upon reports received from the police. The police reports contain draft charges. The police charges were changed in 4 cases. Bail aggravations were added in 2 cases and charges deleted in 2 cases. All cases were marked in accordance with Crown Office policy and guidelines.

Preparation for Trial at Case Marking Stage:

Full preparation had been instructed in all cases at case marking stage. One case was identified where an early diet should have been sought. The case involved a child witness who was the victim. An early diet had not been sought.

Disclosure and Preparation for Intermediate and Trial Diets:

Of the 8 cases examined 4 pled not guilty and intermediate diets and trial diets were fixed. Disclosure requirements were met later than policy indicated in all 4 cases.

Intermediate diet checklists are used at Stonehaven but had been weeded out and were therefore not available for examination. It was not possible to confirm if all witnesses had been cited by the intermediate diet as not all fields had been completed in PROMIS but of those cases where an intermediate diet had taken place only 1 appeared to have identified any witness difficulties.

One case was examined where the victim of an assault was a 13-year old child. The case had been identified as an advance notice trial and both VIA and the Witness Service had been involved. There had been a pre-court visit but no application for screens/ CCTV had been made. It was not apparent from the papers if such a measure had been considered.

Trial Diet:

At the intermediate diets 2 of the 4 cases pled guilty. 1 pled not guilty and was continued to trial diet. In the remaining case the trial diet was discharged as Disclosure had not been made, a further intermediate and trial diet was fixed.

These 2 cases proceeded to trial.

Referral to Victim Information and Advice:

2 cases were referred to VIA. 1 case involved a child witness. 1 case involved domestic abuse.

It was considered that it might have been appropriate to refer a third case to VIA. This case involved an incident between neighbours. The accused had been the subject of numerous complaints to the police and housing authority. The police report indicated that witnesses suffered verbal abuse almost daily.

It was narrated that one witness hardly ever left her house to garden or hang out washing and was considering seeking medical help because of her anxiety. She described herself as a prisoner in her own home. It was felt that this case may have been appropriate for referral.

Good Practice:

We found that all pleas of guilty accepted were appropriate and reasonable and that all cases bar 1 were prosecuted in accordance with Crown Office policy and guidelines.

The exception was a Polish national charged with having no insurance under Section 143 of Road Traffic Act 1988. The police report made reference to the Immigration Act 1971 and submitted a form 96, a Deportation Notice with the police report. The court minute on the papers indicated that the accused pled guilty at the pleading diet and the Deportation Notice was served on accused. Service of the Deportation Notice is considered to have been inappropriate as while a court may recommend deportation where a person is convicted of an offence punishable by imprisonment driving without insurance does not carry a sentence of imprisonment.

Areas to be Strengthened:

The Disclosure policy was not met timeously for any of the trials.

There was one case identified and already referred to which possibly should have been referred to VIA.

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 Grampian Area for periods October 2005 to September 2006 and October 2006 to September 2007 and Table 4 for a breakdown of number of cases placed on petition per month during period October 2006 to September 2007.

SHERIFF AND JURY CASES

Area Performance against Departmental Targets in Sheriff and Jury Cases:

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. We looked at Crown Office statistical information for the periods April 2006 to March 2007 and April 2007 to September 2007 and found that Grampian met that target.

In bail cases the Departmental targets in are to indict 80% of cases within 9 months and 60% within 8 months ¹⁰. Again we found that Grampian met these targets.

See Appendix 2 and 3 for details of achievement towards targets.

Case Analysis:

We set out our findings office by office.

Aberdeen

6 cases were requested from Aberdeen Office. We examined the hard copy papers sent us and the IT systems. In one case the papers were missing and the examination was limited to what was contained in the IT systems. One of the cases requested was not a Sheriff and Jury case.

Of the 5 remaining one pled at a third First Diet, one pled at First Diet, the case for which we had no papers appears to have pled at the trial diet, one pled prior to First Diet and one case was a Section 76 plea. This meant that in all cases no witnesses had to come to court to testify.

Marking:

The police charges in all of the cases were changed. None of the charges required major revision. All of the charges on the petitions were well drafted and the petitions complied with Crown Office policy and guidelines.

Custody:

All 5 were custody cases. Bail was opposed in 4 of the cases at first appearance. In one of those cases bail was opposed for one and the co-accused allowed bail. This was appropriate. In one case the court allowed bail despite opposition by the prosecutor. In the 5th case the decision to allow bail was reasonable in the circumstances. In one particularity sensitive case the marking Depute had minuted very full and detailed reasons and instructions. All of these decisions were in accordance with Crown Office policy and guidelines.

3 cases reached the full committal stage and the accused were remanded throughout, bail being appropriately opposed. In 2 cases we could find no evidence of statements arriving in sufficient time to allow adequate preparation and decision making in respect of full committal.

We could find no evidence of appeals against the refusal of bail being made by the defence in any of the cases.

Judicial Examination:

No judicial examinations were carried out, they would not have been appropriate.

Precognition Process:

It is expected that a solemn legal manager of at least Principal Depute grade will give detailed guidance to precognoscers. The duties laid down on these managers are onerous.

We found

• In one case the complainer seems to have been precognosced but the precognition statement not put in the precognition. This case would have benefited from all the civilian witnesses being precognonsced and an identification parade being run.
• In another no witnesses were seen but in the circumstances of the case we would not criticise this.
• Another case was precognosced with the precognition of the complainer being sensitively carried out over 2 days.
• 2 cases in which, arguably the civilian witnesses could/should have been seen.

Disclosure:

In 3 of the cases the Disclosure was made timeously and in the other 2 it was slightly later than policy indicated.

Performance against Departmental Targets:

All 5 cases were reported to Crown Office timeously.

One bail case was indicted at less than 3 months. In another bail case the case was indicted at over 5 months. The remaining case was the one for which we had no papers and this was a custody throughout and we are unable to comment further.

The 2 remaining cases were indicted in accordance with the statutory custody time limits.

Victim Information and Advice:

2 cases were appropriately forwarded to VIA and in one case there was some communication and in the other there was good contact throughout with plenty of contact with witnesses in a particularly sensitive case. In this case there was imaginative use of a teacher as an appropriate support person for a child who was prepared to testify through the live link, a court visit was carried out and there were discussions between VIA and the police about arranging a police escort to court for the complainer.

Forum:

In all cases the forum was appropriate. In the case for which we had no papers it was more difficult to assess as there may, on the information we had, have been at least an argument for putting the case in the High Court as the accused had a High Court conviction for violence.

At Court:

In 4 of the 5 cases the pleas accepted were reasonable, in the fifth case the pleas accepted appear, in our opinion, to be on the soft side.

Good Practice:

In 2 cases we found that outstanding cases against the accused had been rolled into the one case.

Sensitivity was shown to the needs of accused and witnesses in 2 cases.

Areas to be Strengthened:

One case reviewed had the papers for another with it, as the case concerned the accused whose case we were reviewing we looked at that too and found that it originally had been marked, inappropriately for the District Court and then, more correctly as it was an assault with a weapon, placed on petition. By then it was too late to roll the 2 cases together as the accused had been remanded in custody in the second case reported by the police. When the second case was reported by the police it slipped through as the marking Depute would only see that the accused had already been bailed at the District Court. When the case wrongly initiated at the District Court was eventually reported to Crown Office with the accused in custody there is no reference to the other case.

Banff

We requested one Sheriff and Jury case from Banff. We examined the hard copy papers sent to us and the IT systems. Two of the three accused pled at the first diet, in advance of the trial meaning that witnesses could be advised in advance that they did not have to come to court.

Marking:

The Fiscal did amend the police charge adding, appropriately "to severe injury" but the charge on the petition, while competent, is a little clumsy with the locus being "at outside the County Hotel". The complainer is correctly designed as being care of Grampian Police, Banff.

Custody:

The police had kept the 3 accused in custody. Bail was not opposed when the accused appeared in court and given the facts of the case and the previous good character of 2 of the accused and relative good character of the 3rd we consider that this decision was appropriate.

Court Process and Judicial Examination:

There was no judicial examination carried out in this case and we agree with this decision.

We might have expected an additional condition of bail for an identification parade to be held.

Precognition Process:

It is expected that a solemn legal manager of at least Principal Depute grade will give detailed guidance to precognoscers. The duties laid down on these managers are onerous. We could find no actual evidence of this having been done.

This was a case reliant on the evidence of eyewitnesses yet none were precognosced. One attempt was made to see the complainer who called the day before the appointment to say that he had only recently returned home from travelling and had insufficient notice of the precognition appointment. In the precognition itself there is simply at note on the observations page "complainer failed to attend at precognition". There is no mention in the narrative of the facts in the precognition or in any addition to his police statement that the complainer required surgery to insert a metal plate and wire in his jaw after the assault. This information was found in a subject sheet in the correspondence file.

The countersignatory made no changes.

Disclosure:

Initial Disclosure was made although slightly later than the 28 days expected. Additionally we found further information was disclosed later.

Performance against Departmental Targets:

The case was reported to Crown Office aged 8 months plus and indicted to meet the target of issuing within 9 months of the first appearance on petition.

Victim Information and Advice:

We found the case had been referred to VIA as was appropriate and a note that a letter was sent to the complainer on the same day the accused appeared in court. We found no sign of further contact.

Forum:

The recommendation by the precognoscer for Sheriff and Jury proceedings was appropriate. This was accepted by Crown Counsel.

At Court:

A plea was negotiated in advance of the first diet which meant that witnesses did not have to appear in court. All 3 accused pled not guilty to charge one which was primarily included for evidential reasons. The main charge, assault was pled to by 2 out of the 3 accused which is not, in our view unreasonable, one pled guilty to injury and the other to severe injury again with which we find no fault. However it would appear that the indictment was amended to read "body" instead of "head" and the plea accepted on that basis. This struck us as a little unusual as the injury suffered by the complainer was a broken jaw which required surgery. Both accused were sentenced to 180 hours community service.

Areas to be Strengthened:

It may have been advisable to rearrange the complainer's appointment for precognition after his contact advising that he had insufficient notice due to having been travelling.

Any guidance given to the precognoscer should be able to be viewed by any reviewer.

The acceptance of the plea of an assault being on the body when the injury is a facial one seems a little out of the ordinary.

Elgin

We requested and received 2 cases from Elgin. These hard copies were examined supplemented, where necessary by interrogation of the IT systems.

Marking:

In both cases the Fiscal appropriately raised proceedings by way of petition warrant and invited the accused to attend rather than execute the warrant.

Both cases were marked in compliance with Crown Office and Procurator Fiscal Service policy and guidelines. In both cases minor changes were made to the police charges. The petitions were well drafted.

Both cases were appropriately eventually indicted for trial before a Sheriff and jury.

Judicial Examination:

In neither case were judicial examinations carried out. In neither case would they have been appropriate.

Custody Cases:

The accused in both cases were reported by the police after being liberated.

Precognition Process:

It is expected that a Solemn Legal Manager of at least Principal Depute grade will give detailed guidance to precognoscers. Both cases were read and countersigned by a legal manager as is expected but we could find no evidence of the guidance issued to the precognoscers in these cases. In one case no witnesses were precognosced and it may have been of benefit to see the wife of the accused and 2 of the neighbours. In the other case the complainer was seen and an attempt made to see another witness.

Disclosure:

In both cases Disclosure was made but it was later than policy indicated albeit in one case it was less than 2 weeks late.

Performance against Departmental Targets:

Both cases were bail cases indicted timeously.

Crown Office also has internal targets for reporting precognitions to Crown Office. Both cases were reported to Crown Office timeously.

The one case which should have been referred to VIA was but it does not appear that the complainer was kept advised throughout.

One case resulted in a slightly accelerated plea of guilty and the second in a plea at an adjourned first diet. This meant that none of the witnesses had to come to court.

The pleas in both cases were appropriate.

Good Practice:

The cases were carefully considered.

Peterhead

The case papers could not be found and this inspection proceeded on an examination of the original police report and petition supplemented by interrogation of the IT systems.

Marking:

The original petition contained 8 charges of historical sexual abuse.

Judicial Examination:

It would not appear that the accused was judicially examined and there would have been no particular need to do so in this case.

Precognition Process:

This case was precognosced by a senior member of legal staff. The witnesses were precognosced.

Disclosure:

We were unable to form any view on this.

Performance against Departmental Targets:

We have been unable to ascertain whether Departmental targets were met in the investigation and reporting of this case. We are also unable to ascertain the full history of the case's court diets. The case appears to have been adjourned on numerous occasions on defence motion to investigate the complainer's psychiatric state; this is not uncommon in such cases.

Victim Information and Advice:

We noted that Victim Information and Advice advised the witnesses that the accused had appealed and when the appeal was abandoned.

Good Practice:

Considerable efforts were made by the precognoscer to keep the witnesses informed, this included, apart from precognition, meetings and offers to meet at appropriate junctures and letters containing appropriate and full information. The tone of the letters was nice including a particularly difficult one to a complainer who was not, after investigation, to be used as a witness.

Instructions were given to the police about lines of enquiry and in order to anticipate the defence.

The precognoscer appeared proactively to assist witnesses and defence.

Stonehaven

Two cases were requested from Stonehaven. One case was an early plea of guilty intimated by the accused tendering a Section 76 letter less than 2 weeks after full committal. The second case resolved by way of an acceptable plea at first diet. This meant that a full trial requiring the attendance of witnesses was avoided in both cases and in the Section 76 case witnesses did not require to be precognosced.

Both sets of case papers were reviewed as was the information contained on the Departmental IT systems.

Marking:

Both cases were marked in accordance with Crown Office policy and guidelines. In one case further specification was added to the police charges.

Judicial Examination:

No judicial examinations were carried out. No judicial examinations were required.

Custody Cases:

In the early plea the accused was remanded in custody throughout which was appropriate on the information available to the Fiscal.

In the second the accused was invited to answer a warrant and was granted bail with a special condition not to approach the complainer attached and this was appropriate on the information available.

Precognition Process:

It is expected that a Solemn Legal Manager of at least Principal Depute grade will give detailed guidance to precognoscers. The early plea was dealt with throughout by a Principal Depute and in the other case a Principal Depute was the countersigning officer. We could find no evidence of guidance being given by the Principal Depute to the precognoscer either in the papers or the IT system but that does not mean to say it did not happen as there seems to have been some purging of the IT systems on that case.

Disclosure:

In the case resolved by Section 76 letter Disclosure was made with a note that some statements were awaited.

In the case resolved at first diet Disclosure was made but it was just over a week later than policy indicated. The police had been chased up about the information and the period covered the festive season.

Performance against Departmental Targets:

Crown Office also has internal targets for reporting precognitions to Crown Office. Both cases were reported and indicted timeously.

Good Practice:

Careful consideration was given to the prosecution of the case which pled at first diet. Diplomatic communication with the police was in evidence. A decision was made not to use child witnesses as sufficient other evidence was available; this was in our view the correct decision in these circumstances. The case was referred to VIA and there was communication with the complainer and the child witnesses.

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 Aberdeen.

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 ¹¹. These 2 targets are essentially in accordance with legislative requirements and Crown Office has an enhanced target to indict 80% of the bail cases within 9 months of first appearance. We looked at Crown Office statistical information for April 2006 to March 2007 and April 2007 to September 2007 and found that Grampian met these targets (see Appendices 2 and 3).

Case Review:

We asked for the last 5 closed cases which we received hard copy at least in part for all cases. The examination was supplemented by interrogation of the IT systems. All cases originated from the Aberdeen office. We received

• 2 Rape cases one of which was a roll up of 2 cases
• 1 case containing contraventions of Section 170 (2) of the Customs and Excise Management Act 1979 - being concerned in the importation of controlled drugs and contrary to Section 4 (3) (b) of the Misuse of Drugs Act being concerned in the supply of controlled drugs
• 1 Murder with ancillary charges
• 1 case containing charges under the Misuse of Drugs Act 1971, attempted murder and others which was a roll up of 3 cases

All of the accused were reported in custody by the police.

Marking:

In all bar one case the police charges were changed at the stage of preparation of the petition. In the majority of charges the changes were relatively minor.

The cases were all marked in accordance with Crown Office policy and practice. All of the charges were suitable.

Bail/Custody:

At first appearance we found in:-

• 1 ca