Chamber and committees

Court Backlogs, Victim Support, Discontinuations and Evidence by Commission

Letter from the Lord Advocate to the Convener, Criminal Justice Committee, 20 January 2022

Dear Convener,

Thank you once again for the opportunity to give evidence on 22 December 2021 and for your subsequent letter dated 6 January 2022.

You have asked for some additional information in relation to four matters: court backlogs, victim support, discontinuations, and evidence by commission.

Court Backlogs and Victim Support

As discussed with the Committee on 22 December 2021 there is, rightly, public concern over the numbers of rapes, sexual offences, and crimes of violence against women and girls, as well as over the response to that offending from the criminal justice system, against the background of court delays associated with the Covid-19 pandemic.

Before the Covid-19 pandemic, the volume of serious sexual offences cases indicted and awaiting trial was significant. There has been a clear and obvious
upward trend in those cases, which doubled in the two years up to March 2020, when trials were suspended.

The pandemic has had significant consequences for the justice system, with increased delays in cases calling for trial and uncertainty over whether trials will proceed on a given day causing anxiety and distress to victims and witnesses. There is a particular impact in the High Court, where around 70% of cases indicted and awaiting trial relate to serious sexual offending.

Though the proportion of sexual offence indictments awaiting trial in Sheriff and Jury cases is lower, at just under 10%, Sheriff solemn trials are likely to be affected by the pandemic for longer, until well into the latter part of this decade. The situation impacts disproportionately on female victims and witnesses. You have also asked me about domestic abuse cases. The number of domestic abuse cases reported in the year to March 2021 increased by 9% compared to the previous year. As you will be aware, the majority of prosecutions for domestic abuse are at Sheriff summary level where there has been a marked increase in cases awaiting trial since the start of the pandemic. Again, women and girl complainers are most affected by the increase in the time taken to resolve these cases.

There is a responsibility on all partners across the criminal justice system to do what we can to address those profound challenges and I am committed to ensuring that the part of the criminal justice system for which I have responsibility will do everything that it can to make improvements for the people it serves. Throughout the Covid-19 pandemic the Crown Office and Procurator Fiscal Service (COPFS) has worked with other criminal justice agencies and the Scottish Government in the Recover, Renew, Transform (RRT) programme to operate courts safely during the pandemic restrictions, reduce backlogs and implement transformational reform as the pandemic recedes.

Scotland’s prosecutors will work with justice partners as we strive to ensure that victims are treated with dignity and respect and the Crown Office and Procurator Fiscal Service is committed to working with partners to transform the way that the criminal justice system deals with these cases.

As part of that commitment, as I explained to the committee, I have commissioned two major initiatives that I am confident will deliver long-term improvements to the experience of victims and witnesses.

As the committee is aware, I have asked Susanne Tanner QC to conduct a full review of how prosecutors deal with reports of sexual offences. The review will consider the views of victims and agencies from across the criminal justice system and will build on the existing specialist approach that prosecutors take to sexual offences cases and the expertise that they have in that work. I will be happy to share with the committee the key themes which emerge from the review, in due course.

On the support offered to victims and witnesses, you have asked for detail of the proportion of the budget that is spent on support for victims and victim information services. We do not allocate a specific proportion of our budget to this work. Rather, as the Crown Agent outlined at the session on 22nd December 2021, resources are dedicated to VIA in light of our ongoing assessment of the need to do so. I do not feel that it would not be meaningful to provide you with VIA staff costs as a percentage of the overall COPFS staff budget. This would not inform any assessment of the support offered by COPFS to victims and witnesses. Staff from across the organisation, including the Deputy Crown Agents, dedicate time, often a great deal of time, engaging with victims and witnesses; and working on issues affecting victims and witnesses and on the development of policy in this area.

We recognise that the changing profile of prosecution casework and the backlog that has been created by the pandemic have placed huge pressures on the VIA staff. Accordingly, as I indicated to the Committee, I have asked Deputy Crown Agent Lindsey Miller to lead a review of that work to ensure that VIA can continue to deliver the high levels of service to victims and witnesses that it currently provides. Although that is a long-term programme of work, any measures that are identified by the review that could assist in the delivery of victim information services will be put in place in the interim while the review is on-going.

I would also like to reaffirm my commitment to working with partners in relation to the implementation of the Lord Justice Clerk’s review on improving the management of sexual offence cases which will deliver significant improvements in relation to the prosecution of cases involving rape, other sexual offences. Prosecutors are also contributing to different aspects of cross-system work on changes to procedure in summary cases which are designed to resolve cases, which are capable of resolution, at an earlier stage, and to proceed to trial only in cases where this is necessary.

Discontinuations

You have asked how many cases in which prosecutions were either discontinued or no prosecution was commenced in the first place related to cases involving rape, other sexual offences, and domestic abuse. I can advise that, in 2021-21, 32,574 cases were closed having been marked no action or no further action. Of these, 3,676 related to sexual or domestic abuse cases (11.3%).

You are also interested in the percentage of complainers in sexual or domestic abuse cases who were notified of those decisions and how were they notified. The COPFS database is an operational one and we do not hold statistical information in relation to notifications or the mode of notification.

The starting point for considering victim notification is the Victims and Witnesses (Scotland) Act 2014. Section 1 of the 2014 Act requires named persons, including the Lord Advocate, to have regard to specified general principles when carrying out their functions with regard to victims and witnesses. The first principle is that a victim or witness should be able to obtain information in relation to what is happening in an investigation or proceedings. COPFS complies with this legal obligation. We will advise all victims in all cases of any decision to take no action or no further action in all cases on request.

In addition, COPFS proactively notifies victims of decisions not to prosecute in all solemn cases and all summary cases falling with the specified case remit of the VIA service. All cases with a sexual offence or domestic abuse victim fall within the remit of the VIA service. COPFS proactively notifies victims of decisions to discontinue prosecutions in all categories of cases including cases with a sexual offence or domestic abuse victim. The mode of notification is normally by letter but may be adapted, e.g., a telephone call or meeting dependent on victim preferences and case circumstances.

Evidence by Commissioner

You have asked what the barriers to the wider use of pre-recorded complainers’ evidence in serious sexual assault cases and what are COPFS’s plans for further use.

The use of pre-recorded complainers’ evidence must be considered within wider criminal justice system demand and would require a system wide response rather than a COPFS specific response.

The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 (the 2019 Act) introduced a rule that the evidence of many child witnesses, firstly in High Court
cases, should be recorded in advance of trial. During Parliament’s consideration of the 2019 Act, the then Lord Advocate emphasised the importance of implementing the provisions of the Act incrementally in High Court and then Sheriff and Jury cases. This gradual implementation was, and remains, essential to ensure that the criminal justice system can adjust to a substantially different way of taking evidence from a large number of witnesses.

Since January 2020, the evidence of many child witnesses in High Court cases is pre-recorded and, as a consequence, many child witnesses have not required to
give evidence in court in the most serious cases. Confirmation of timescales for implementation of the 2019 Act in relation to Sheriff and Jury cases is awaited. Accordingly, careful consideration will require to be given by the Scottish Government and criminal justice partners as to whether implementation of the Lord Justice Clerk’s recommendation, that the evidence of complainers in serious sexual offences cases should be recorded in advance of trial, before or after implementation of the 2019 Act for child witnesses in Sheriff and Jury cases.

It is my view that there should also be careful consideration of whether legislation, that provides complainers in serious sexual offences cases with an automatic right to the use of the special measures which facilitate pre-recorded evidence, should be brought forward. At present, there is not an automatic right and complainers cannot be provided with certainty about this issue until the Court has adjudicated on the matter.

At the same time, it will be important that COPFS, Police Scotland and Scottish Government have the opportunity to analyse the results of the ongoing pilot, testing the use of pre-recorded evidence in serious sexual offences cases and implement the learning from that pilot. The pilot is due to conclude in May 2022. Of vital importance is the creation of the necessary infrastructure to ensure that there is capacity in the criminal justice system to meet the increased demands that will be created by greater use of pre-recorded evidence. This will require investment to train sufficient numbers of police officers in visually recording evidence, to create sufficient numbers of appropriate venues to host Evidence by
Commissioner hearings and to recruit and train sufficient numbers of prosecutors and court staff needed to conduct the additional hearings and analyse the additional evidence.

You ask about the extension of pre-recorded evidence to summary cases. In summary cases, the special measures which facilitate the pre-recording of evidence are available and prosecutors can apply to the Court for those measures when the particular circumstances of an individual witness are such that those measures are appropriate.

Careful consideration would require to be given by the Scottish Government and criminal justice partners before any extension of pre-recorded evidence to summary cases as a matter of routine. Summary criminal cases are much different from solemn cases. Child and vulnerable witnesses in summary cases have the benefit of existing special measures designed for the summary case process. One of the key benefits of pre-recording evidence in solemn cases is that a witness does not require to give evidence in the presence of a jury. Summary cases proceed before a Justice of the Peace or Sheriff sitting alone. A key benefit of pre recorded evidence is to take the evidence of witnesses far earlier in the process than taking it during a trial. Summary cases are, however, intended to proceed much more quickly than solemn cases and thus any benefit is reduced. Finally, the volume of summary cases, and therefore potentially qualifying child and vulnerable witnesses, is significantly greater than solemn cases. Considering domestic abuse cases alone, in 2020-21, 30,727 charges with a domestic abuse identifier were prosecuted in court and 80% of those charges were prosecuted in the Sheriff summary court. To pre-record the evidence of all of the complainers in those charges would have a significant system impact.

Plea Negotiation

Finally, I would like to clarify a matter discussed at the evidence session in connection with prosecutors accepting pleas of guilty from accused persons. I indicated to the Committee that pleas offered by accused persons which a prosecutor intends to accept, and which would result in no further proceedings being taken on other charges, should be explained to the victim in advance of the case calling in court. I should clarify that this practice is my expectation in High Court cases.

It is not possible, particularly in summary courts, to do this as a matter of standard practice. Pleas of guilty may, for example, be offered as a busy summary court with multiple cases is underway and where the victim is not in attendance. Advance notification in every case would not be possible without significant criminal procedure reform. However, as above, all cases involving sexual offence or domestic abuse complainers are within the remit of VIA and victims will be notified of the case outcome.

I hope you find this additional information of assistance.

The Right Honourable Dorothy Bain QC

Lord Advocate