Justice 2 Committee, 14 Nov 2001

Meeting date: Wednesday, November 14, 2001

Official Report 252KB pdf

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Crown Office and Procurator Fiscal Service

I thank the witnesses for their patience. Good morning and welcome to the Justice 2 Committee. We have with us Deputy Chief Constable Kenneth McInnes, from Fife constabulary, who is representing the Association of Chief Police Officers in Scotland—which we will call ACPOS from now on—and Chief Superintendent Allan Shanks, who is president of the Association of Scottish Police Superintendents, or ASPS. We have an additional guest this morning in Jack Urquhart, who is the general secretary of the ASPS.

I welcome all three witnesses and thank both organisations for their written submissions, which have been very helpful. We will go straight to questions, if that is okay with the witnesses. If you feel, however, that the committee has not covered all the issues in its line of questioning, I will give you a chance to sum up at the end, so that everything that you wish to offer the committee as evidence is on the record.

I have a series of questions that are, in essence, about your mechanisms for managing resources in your relationship with procurators fiscal. They are not all big questions, so do not worry too much. I ask both the chief superintendent and the deputy chief constable to answer my questions.

First, have you categorised the various types of communication that you have with the Crown Office and Procurator Fiscal Service—COPFS—and do you analyse the proportion of resources that each type of communication consumes?

Do you wish me to expand on that?

No, I am quite happy to answer that question. There is no difficulty in doing such categorisation. The communications that we have with the Procurator Fiscal Service cover a range of issues, including cases in respect of criminal charges, sudden deaths, fatal accident inquiries, complaints against the police, search warrants, major inquiries, citations and other matters.

The answer to the second part of the question, on whether we have analysed the commitment of resources in respect of that, must be no. In many aspects of our role, we see ourselves as being agents of procurators fiscal. There has never been a time when we have had to question the amount of commitment that we have given to that process.

Communications exist at all levels, from electronic media to personal contact. There is some variation, depending on the areas in which different procurators fiscal operate. There is more personal communication between officers and the fiscal service in the smaller and more rural areas but, as Kenneth McInnes said, we act as agents for procurators fiscal when investigating crime. We are—on paper—very much at their direction, although in fairness the majority of investigations into more minor crimes are directed by the police and are ultimately reported to the fiscal service.

It would be difficult to work out and categorise how much time is spent on telephone calls, on personal visits, on writing reports and on e-mail correspondence with the various procurator fiscal offices. There is no direct categorisation under which we can say that X per cent of our time is spent reporting or communicating with the fiscal service.

I will move on to my second question. Are there key performance indicators—KPIs—service-level agreements or other targets that you must meet in dealing with PFS requests? Similarly, are you aware of KPIs or service-level agreements that the PFS must meet in responding to requests that you might make of it?

On performance indicators in the criminal justice system, we record at different stages statistics for analysis of the way in which cases are prepared and submitted to the PFS, and also of the way in which cases are reported to the children's reporter through fast-tracking of juveniles. A series of indicators are kept and analysed for those processes.

Do you publish the analyses?

I am unsure where the analyses are published, but they are widely acknowledged within the criminal justice system. I am sorry that I do not have a clear answer to your question.

Would it be possible to supply that information later?

I am sure that it would be.

Thank you. Superintendent?

I have nothing further to add to that.

Okay. We are getting there. Do you have a planning system and/or a methodology, such as PRINCE—projects in controlled environments—which is widely used in public services, that you use to plan and resource court work and/or the associated fiscal work?

The Scottish police service uses PRINCE II methodology for all its planning processes. I am not aware of a particular application of PRINCE II methodology in planning the way in which we provide support and communication to the PFS.

I add that most of our procedures with the PFS have evolved over the years through practice and expediency. I must say that much of our work with the PFS is reactive, so it would be difficult to legislate for every set of circumstances. We are an organisation that responds to demands from the PFS.

I have a small final question. Paragraph 11 of the ACPOS paper that is before us refers to "electronic signing of documents". Can you say how much effort or time it would save if you had the technical and legal ability to sign electronically documents that you currently exchange by e-mail and similar means?

That matter relates to case-related papers. It has arisen specifically from the monitoring arrangements that have been put in place to observe the ways in which the guidance from the Lord Advocate on the application for and grant of search warrants has been applied. Clearly, there is an issue about the time it takes to get search warrants, where they are justified. The issue of electronic signatures has come up in relation to attempts to ease the time scales for getting search warrants. I know that that has been discussed in a joint working group on development comprising ACPOS and the Crown Office. I believe that there is broad consensus that the issue could be taken forward to legislation.

The written submission from Sir Roy Cameron stated that the PFS is requesting more information in police reports. What sort of information has the PFS been requesting lately?

The issue arises from additional demands that are a particular result of the European convention on human rights. We have all assessed our procedures to ensure that we have properly fulfilled our responsibilities on human rights. The COPFS tries to ensure that it has satisfactory levels of information when decisions are made about the way in which trials are conducted, evidence is led and prosecutions are made. Naturally, that has led to more demands for clarification on a range of issues, which involves the police in more effort. That is the main reason for the increase in demands.

Is the information necessary or crucial in the marking of cases by procurators fiscal and deputes? Does providing that information place an unrealistic burden on officers?

No. I believe that the requests for information are proper responses to the needs of human rights legislation and good practice. The reasons for supplying the information are not a problem, but supplying it naturally creates additional work.

Is that view shared by officers? You might understand that it is necessary, but do police officers who deal directly with the Procurator Fiscal Service feel resentment because they are being asked for more and more information? Do officers understand fully why the information is necessary?

Chief Superintendent Shanks might be able to comment on that. From my observation, the request for more information creates in some instances a perception that there is increased demand without good cause.

Front-line officers have the clear perception that demands from the Procurator Fiscal Service are increasing for no good reason. We all subscribe to ensuring that the rights of individuals are adhered to. The Scottish justice system is rightly proud of its past treatment of offenders—it adhered to human rights principles before the introduction of human rights legislation.

Although a third of cases that are submitted are not proceeded with in court and about 15 per cent of cases are marked "no proceedings", a considerable number of requests for extra information come from the Procurator Fiscal Service. Officers perceive that those requests add nothing to the decision-making process. They are concerned because they work more, but do not get a return on or an explanation for the requests for information.

The submission from ACPOS mentions

"the unrealistic timescales for delivery of legal documents."

In a reply to one of Stewart Stevenson's questions you mentioned search warrants and time delays. Will you clarify the nature of those legal documents and how you think the time scales could be improved?

Could you draw my attention to that part of the submission?

I hoped that you would not ask me that. I think it is in section 2.

I have a point to make about time demands. As Allan Shanks said, given our responsibility as part of the criminal justice system, it is in the nature our work to supply information for the Procurator Fiscal Service. We respond to demand, which can involve fairly substantial documentation with a turnaround period of a day. That demand on forces, police officers and staff can be extensive, but they respond well. That is the nature of the work with which we are involved. I am not in a position to comment on whether demands for case preparation or papers could be made earlier.

It is clear to officers that in many matters we appear to be running up against the proverbial wire and close to end deadlines. For example, officers might receive a request to collect a document from the Procurator Fiscal Service that is to be served on the same evening or the following day, to allow due process to continue.

We accept that such procedures must be hurried at times, but the fiscal service is perceived to be leaving things to the last minute because of pressures in its environment. We receive late requests for statements and additional documentation, and witnesses are cancelled or re-cited. All that adds to police officers' burdens. We make mistakes too, and we leave things late, but the perception grows that the situation at the fiscal service is becoming more fraught.

You referred, in response to my colleague, to the number of cases that are marked "no proceedings". Your written submission says that there

"appears to be wide disparity across the country in the practice of writing-off cases as ‘No Proceedings'."

Does evidence for that exist?

It is fair to say that much of the evidence is anecdotal. My association's response is a combined response. Some comments reflect the consensus, and others reflect different experiences in Scotland.

We have found from our discussions that minor breaches of the peace in smaller and more rural areas are proceeded with because pressures on fiscal services in such areas are not great. However, in more urban environments, minor cases appear to be more readily marked "no proceedings". That leads us to think that in areas of greater demand on the fiscal service, marking cases "no proceedings" might be an expedient means of reducing the case load for courts.

I will conclude this part of the questioning and direct my question to Mr Shanks. Your association's paper says that the police are

"expected to provide analysis of evidence"

in their reports. What does that mean?

The standard police report system that is in place, which has been agreed throughout Scotland, is meant to provide a common style of report to which all police forces subscribe and whose content all fiscals understand. In my 30 years' service with the police, I have seen the police report grow from six lines of explanation about the circumstances of a case to about three pages of A4.

Officers are now expected to detail the evidence. They are required to show antecedents—background to the case—and to provide analysis of the evidence, which might say something like, "The witnesses Smith and Jones saw the accused in the bar prior to the incident and spoke to him while he was drinking heavily. The witnesses Brown and Green saw the accused lift a tumbler and threaten witness So-and-so." The evidence must be broken down to show the detailed corroboration of some elements of the charge. Some people consider that that is doing the fiscal service's job.

Many years ago—dinosaur that I am—I spoke to a procurator fiscal, who asked me why the police bothered to put so much in their reports. He was talking about the smaller police reports from days of old. He said that when somebody appeared before him from custody on a charge of breach of the peace, all that he wanted was sufficient information to explain to the sheriff or the justice the circumstances of the case, if the accused pleaded guilty. If the fiscal wanted more detailed information, he would obtain that when statements were submitted to allow the case to proceed to trial.

Last year's statistics show that more than 50 per cent of court cases were dealt with on their first appearance. Police officers must write a lot to complete extensive reports that—were there the agreement of the fiscal service—could be reduced to provision of sufficient information for the fiscal service to provide an explanation when a case went to court and the accused pleaded guilty, and for the court to make a decision on bail and other matters. Perhaps a compromise solution could be found.

I do not want to put words in your mouth. My understanding of what you are saying is that police officers might think that they are now doing the job that the procurator fiscal service did in the past.

That is the clear perception of the officers. They ask why they must do that, when they have gone through a mental analysis of evidence to ensure that there is sufficient evidence to support a person's arrest, or caution and charge. They wonder why they must bother explaining that in the report.

Before we move on, I would like to clarify what you said about late requests for information. It is important for the committee to understand whether that has been a feature of the system for as long as you can remember, or whether it is a recent phenomenon. Does it relate to a reduction in resources or is it part of the culture of the organisation?

I am not aware that late requests for information are a new phenomenon. That problem has always existed and relates to events surrounding cases that require information. The question is whether information could be requested earlier to allow it to be dealt with more systematically. I cannot think of an example to give the committee.

It is fair to say that that is not a new issue—it has not happened only in the past few years. Late requests for information have been happening for a long time. Perhaps the advent of e-mail means that we are getting more of them.

You seem to be contradicting what you said earlier, which was that the Procurator Fiscal Service seems to be under more pressure now than it was previously and that requests for information and processing of information were coming later and nearer deadlines. Have you evidence to substantiate that, or is it only anecdotal evidence that suggests that the system is under more pressure than it was? You contradicted yourself with your two statements.

I am not consciously contradicting myself. If I have done so, I apologise. There is strong anecdotal evidence. If you spoke to most operational police officers, they could give you specific examples of when they have received from the fiscal service late requests for information, having submitted reports a considerable time previously.

I will go through the process. An officer submits a charge report, which goes to the fiscal service. That results in the accused being called to a pleading diet. The accused then pleads not guilty and a request comes in for statements, which are submitted. A short time before the trial, the officer might get a request for additional information or a clarification on a point. That leaves a clear impression in the officer's mind—he or she wonders why the fiscal service did not pick that matter up earlier, because the officer must now rush around at the last minute to obtain the information to go to trial.

That is not based on evidence—it is just anecdotal.

I cannot quantify the number of late requests for information.

Subsection (xi) of section 3 of the ACPOS submission refers to

"inconsistencies in the desertion of cases and use of fiscal fines".

Could you confirm that when you say "desertion of cases" you mean cases that have been deserted and "no pro-ed", in the words of the trade. Can you provide examples of such inconsistencies, anecdotal or otherwise?

I support my colleague's points, but unfortunately the evidence is anecdotal. The reference to the matter in our written submission is to try to provide some assistance in considering areas in which the perception has developed that decisions are not clear to the observer. The silence of the Crown Office and Procurator Fiscal Service leads to those perceptions. However, there is only anecdotal evidence on the matter; I cannot support the perception with any hard evidence.

Cannot you even support it on the basis of fiscal fines?

We have never carried out comparative analysis of how fiscal fines are decided across different fiscal areas. We would do so only if we needed to show some differentiation between decisions that are made in different areas or on different types of cases. As I said, the evidence is anecdotal and the perception simply increases. Three or four paragraphs in our written submission fall into the same category. The point is that the Crown Office and Procurator Fiscal Service does not have to explain its decisions, which in itself engenders a degree of uncertainty about its decisions.

If the police were sufficiently concerned by the fact that a fiscal was not proceeding with a case, or was dealing with the matter with a fiscal fine, would not some senior member of the force phone the fiscal to ask about the thinking behind the fiscal's decision?

I refer you to our written submission, which mentions the fact that there are very strong links between the police service and the fiscal service in a number of different matters. For example, within any police area, there are regular liaison meetings between senior officers and procurators fiscal, at which concerns are usually addressed to the satisfaction of both sides. That said, it would be wrong to assume that all issues that might concern individual officers would always find their way to those high-level meetings.

Your written submission states that

"the introduction of conditional offers and fiscal fines"

has

"resulted in a decline in the reporting"

of relatively minor matters. Would you welcome greater use of conditional offers and fixed penalties?

Yes. Those are sensible ways of trying to streamline the process in the criminal justice system. However, they also have the consequences, which have been mentioned. We were simply answering the question that we were asked.

Are you aware of the collection rate in relation to conditional offers?

I do not have the figures to hand, so I cannot give you a clear answer to that question.

Are you aware that payment of the first £5 instalment in effect bars further proceedings. Have you found that to be a problem?

Not as such. Once a matter is passed to the procurator fiscal service, we play very little part in the process. As a result, officers might feel frustrated if they later discover that a case was concluded unsatisfactorily, although such information is generally not available to them. It all becomes part of the slightly mystical process that takes place when a matter leaves the police.

Mr Shanks, will you enlarge on your organisation's concerns about the working of the fiscal fines system?

There are probably two issues to address. First, we need to find out where a procurator fiscal might utilise a fiscal fine. There is certainly evidence that some fiscals are more open about the areas of legislation where they would use that option. For example, a local byelaw in one area prohibits drinking in public and the fiscal has indicated that a fine would be the first course of action in such cases. However, that still requires police officers to take considerable time to complete a full standard police report in the knowledge that—as you rightly point out—the process stops as soon as the first instalment of the fiscal fine is paid and the recovery of that money is left in abeyance.

A further issue is that, because of the use of a fiscal fine, there will be no record of previous convictions for the person. The Association of Scottish Police Superintendents would support a move towards greater use of a fixed penalty-type arrangement for minor offences. That would reduce reporting procedures for the police, allow moneys to be recovered and a punishment to be imposed and, perhaps, allow some record of conviction. However, fines recovery in that area must be taken out of the judicial process as that would impose additional burdens in respect of default warrants, for example.

Do you have any evidence of the repeated use of fiscal fines on an individual offender?

No such evidence has been given to me.

I understand that that happens, but I have no evidence for the committee. The fiscal service would recognise that that happens.

I want to follow up on fiscal fines, which are a major part of our inquiry. To use your words, there is a perception that there is more use of fiscal fines. That is not borne out in the figures, but representations have been made to me as a constituency MSP that fiscal fines are used for more serious offences, for which they should not be used. I have been given examples of repeat offenders who have been given fiscal fines and examples of offences that clearly do not fall into the category of offences for which fiscal fines should be imposed. My evidence is anecdotal, but fiscal fines are a matter of sufficient concern to the committee to be included as a key area of investigation. Any information is therefore important.

It was suggested that it is important to divide up the inconsistencies geographically and according to types of crime. Do you have any evidence that fiscal fines are being used for more serious crime?

I do not have any clear evidence that I can bring to the committee that identifies discrepancies in the use of fiscal fines. Concerns have been expressed from time to time, but I am not aware that the issue has been raised in such a way that it has led to ACPOS or any other police association analysing it in greater depth. Unfortunately, therefore, I am not in a position to provide you with such evidence.

So concerns have been raised with you.

Concerns have been expressed from time to time in normal work involving officers, victims and individuals in the community, but never in a way that has led us to consider the issue to be of particular concern.

I made the point to Mr Aitken that many issues need to be addressed by police organisations. To a large extent, fiscal fines are considered, analysed and evaluated by the fiscal service itself.

Police officers do not have a strong follow-up interest in particular cases. Their first indication that someone has gone to court and pleaded guilty is a request for statements. Our biggest contact is feedback from the victims of crime and incidents. When they hear that someone has not gone to court, they contact the police and ask why. The point was made in respect of "no proceedings" cases. Sometimes we get it in the proverbial neck if a case has been marked "no proceedings". The victim of the crime will ask the police why the case was not proceeded with, but we are not privy to the decision. Such cases cause frustration among officers. Our work in preparing cases would be reduced if there were greater understanding of the fiscals' policy in respect of "no proceedings" cases. We would have the opportunity simply to give a warning in the knowledge that the case would not be proceeded with in court.

In Edinburgh many years ago, careless driving was reported for fairly minor crashes and accidents until the procurator fiscal indicated that they would not normally proceed with a careless driving charge unless there was an injury, extensive damage or a particularly blatant type of careless driving. As a result of that policy, we managed to reduce the number of reports that we had to prepare in relation to careless driving. If that could be extended to an indication that certain types of more minor offences would be more appropriately dealt with by a warning, it would reduce the work load on the police and the Procurator Fiscal Service as they would not have to consider the reports and mark them as "no proceedings" cases.

We have heard from others that the communication at a formal level is not a great concern but I want to deal with day-to-day communication with the Procurator Fiscal Service. The ACPOS submission mentions that problems are experienced in contacting procurators fiscal out of hours. Could you expand on that?

The issue of contacting procurators fiscal outwith business hours relates to some but not all fiscal areas. Occasionally, it is difficult to contact procurators fiscal out of hours. In the worst cases, those difficulties hamper inquiries. Historically, there is an incompatibility between the Procurator Fiscal Service, which works office hours, and the police service, which works 24 hours a day. The ability to link across can be strained before the start of a working day, for example.

The inability to contact procurators fiscal outwith business hours means that it can be difficult to get search warrants. That was highlighted in the procedures that were examined and evaluated following the Lord Advocate's guidance. The Crown Office and Procurator Fiscal Service recognised that more had to be done to ensure that procurators fiscal are more accessible by senior investigating officers who are carrying out inquiries. Pilot studies were carried out in Edinburgh, Inverness, Dumfries and Stranraer to find out whether the situation would be improved by issuing new equipment to procurators fiscal, such as portable faxes and laptop computers, to enable communication by e-mail and so on.

It has been accepted by the Crown Office and Procurator Fiscal Service that there can be difficulties in accessing procurators fiscal. That is true across the range of inquiries in which police officers become involved. Clearly, there is a need for early contact in serious inquiries, in which the procurator fiscal plays an important role.

What is the procedure now? I know that there is a duty system for deaths, but, other than for that, how would you contact a procurator fiscal outwith office hours?

There would be a communication from the procurator fiscal's office that would indicate who was on call. That information would be available to senior detective officers and would be placed in the force operations room.

We have heard strong evidence from the Procurators Fiscal Society, which is concerned about day-to-day liaison with the police. I would like to pursue your suggestion that the Procurator Fiscal Service should appoint a dedicated member of staff to liaise with each police division. Do you share the concerns of the Procurators Fiscal Society that liaison is not what it should be?

There are issues that are often not addressed properly at working practitioner level, because the correct person cannot be accessed. Anything that could be done to address that problem would be helpful. In certain initiatives, the police have identified an officer to be involved with the fiscal service. The same could be done by identifying a nominated officer from the fiscal service to be involved with a police division. That would be a helpful approach.

I will ask about the management of cases going to court. The final paragraph of section 2 of the ACPOS submission suggests that

"ever increasing demand for more information, has placed a heavy demand on forces to service these needs, to the detriment of front line tasks."

The submission goes on to suggest that the task of managing legal documents and witnesses could be streamlined to be more efficient and effective. How can that be achieved? Perhaps Mr Shanks would also like to comment on that point.

In looking for processes that might assist in the management of legal documents and witnesses, it is important to recognise the fact that we are already some years down the path of electronic communication with the fiscal service. That is a significant step forward. In many ways, it has brought advantages to the police service by requiring a degree of standardisation across all fiscal offices. However, it inevitably leads to difficulties in marrying up hard copy documents with the electronic reports that are submitted to the fiscal. The fiscal could introduce arrangements to ease the way in which the police manage those documents and to ensure that papers are properly married up with the electronic version that goes to the fiscal.

After several years, the management of witnesses is still a major concern to all organisations in the police force because of the amount of police time that is spent at court, often unnecessarily. In 1992, an Accounts Commission report identified that only 2 per cent of the police time spent at court was used productively in giving evidence. Things have developed significantly since then, and the introduction of intermediate diets has certainly gone some way towards clearing away those cases that would not require witnesses to attend court. We have also entered into arrangements whereby police officers make themselves available in the police office or thereabouts so that they are on quick call if they are needed as witnesses. That goes some way towards solving the problem, but we still have the extremely complex process of trying to ensure that witnesses are brought together at a convenient time when the accused is available and—this is what interests us—when police time can be properly utilised and not wasted. We cannot afford to have police officers sitting around courts doing nothing.

I agree with Mr McInnes's comments, particularly in relation to documentation and the use of officers. It is certainly the case that officers' time spent at court is unproductive. I wonder whether there are areas in which we can make better use of joint minutes of agreement between prosecution and defence in relation to evidence that will not be contested, which would allow officers not to appear in court.

I contrast our situation, where officers regularly are cited to attend court but do not appear, with the situation in England and Wales. I am not advocating a move to a structure similar to that in England and Wales because I have great respect for the Scottish legal system. However, my colleagues in England and Wales rarely appear in court, because agreement is reached with the defence on areas of evidence. There is an opportunity to develop that side much further.

Mr Lyon also mentioned documents. Witness citations and the service of legal documents is another big issue for the police. There has been an experiment with the postal service of witness citations, which the association is keen to have expanded. The service of witness citations impacts considerably on police officers. Service of witness citations and subsequent cancellations are real issues for police officers. Anyone could come to my local police station and watch the fax machine on a Friday afternoon as it churns out cancellations for court on Monday. That places an immediate and considerable burden on the police. There is an opportunity to make greater use of the postal service in cancellation—the earlier cancellation of witnesses would avoid the need for personal contact.

Section 3 of the ACPOS submission makes recommendations about how the current process could be redesigned by introducing a fast-track system of search warrant applications, citing and countermanding of witnesses, and more joint minutes with defence agents. Have those suggestions been discussed with the Crown Office? If they have, what was the outcome of those discussions?

You would need to consider each of those ideas separately to understand how much discussion there has been and what the ideas are based on. I am happy to go through those points for you.

The initial point is about

"introducing a fast track system of search warrant applications".

We mentioned that there is a joint working group involving the Crown Office and Procurator Fiscal Service and ACPOS. That group is monitoring the pilot study of a new approach to applications for search warrants. That approach involves a fast-tracking element to ensure that procurators fiscal can be contacted quickly. The pilot studies have been relatively successful and it has been agreed that we will expand the use of the fast-tracking process throughout the country. We will also provide training to fiscals and the senior detective officers involved.

Where have those pilot studies been carried out?

In Edinburgh, Inverness, Dumfries and Stranraer.

How long have they been going on?

For the better part of the past year, as I recall—certainly between 2000 and 2001.

I turn to the second point about

"audit systems for existing arrest warrants".

That causes concerns in some areas. In one force area, some effort has been made by chief officers and the local fiscal to ensure that the fiscal plays a greater part in ensuring that arrest warrants have been properly administered. In most force areas, when the arrest warrants reach the police, the police are left to administer them. Clearly, if they are not enforced properly, issues may arise with individuals who claim that they were in a position where the warrant could have been enforced. We need to ensure a strict audit procedure. In one area of Scotland, work has been done to bring the procurator fiscal into the process and that is relevant.

My colleague has referred to the issues that are associated with our third suggestion, which was about

"making the citing and countermanding of police and civilian witnesses more efficient".

There might be long lists of 30 or 40 civilian witnesses in High Court trials. A huge demand is placed on the police if we receive an instruction from a procurator fiscal late in the afternoon that those witnesses are not required for the following day and if that is repeated two or three times in a week. We have been involved constantly in discussions with the Crown Office and Procurator Fiscal Service about where the responsibility for that lies. Until now, we have been unsuccessful in shifting the responsibility—it is a major bugbear.

The pilot scheme for postal citations has proved to be significantly successful and we are awaiting its roll-out throughout Scotland. It would appear that progress is being made.

Will you expand on that point and explain what you mean by postal citations?

As things stand, the responsibility lies with the police to deliver citations manually and to contact witnesses personally to countermand their need to attend as a witness. That is a massive responsibility and work load for the police service. In some areas that task is carried out by police officers and elsewhere it is done by support staff who carry out that role full-time. In any case, it is a big demand.

The move towards postal citations—addressing communications to witnesses through the normal postal system—has proved successful. It is hoped that that move will be rolled out throughout Scotland. There seems to be positive light and progress, but it is a major issue for us.

Allan Shanks has alluded to the suggestion that there should be more joint minutes of agreement with defence agents. Evidence to support that is anecdotal—this area falls into the category of areas where we are unaware of how the Procurator Fiscal Service reaches decisions. At times, there is a concern that, perhaps, joint minutes of agreement are not often pursued as strongly as they should be. I concede that the defence agent and the accused person need to be in agreement before that can be done.

I have covered fully in a previous answer the suggestion that the amount of time spent by police officers on court duty be reduced. Prisoner escort duty is really just an extension of that. Significant work is being carried out to review the way in which prisoner escorts are provided. At the moment, the police take on a significant burden in ensuring that accused persons appear in court and are returned to prison following trial.

For Fife constabulary, there are a number of trips between Kirkcaldy, Dunfermline and Edinburgh over the course of a day. That is a huge burden for the police to carry. A review involving the Crown Office and Procurator Fiscal Service and the courts, which is trying to identify the options for change in that area, is being carried out. For example, in England and Wales the whole system is outsourced; there are options that we can consider and work is being carried out on that.

I will stop you there, because there is a lot to get through.

I have a question on postal citations. Some of us spent part of our summer recess visiting procurator fiscal offices throughout Scotland. One of the offices that I visited was taking part in the pilot scheme for postal citations. The staff there said that there was no discernible difference between the number of people not turning up when the police had delivered the citation and the number of people not turning up when the citation had been delivered by post. When we reported back, I expressed my concern that the pilot scheme appears to have been going on for some time. Everyone says that it is relatively successful and yet it is not being rolled out throughout Scotland. Do you know of any impediments to that, or is the legal system simply not moving on as quickly as other people think it should?

I know of no impediment to taking it forward. However, I am conscious that there is a need to resolve the associated funding issues, which may have been progressed satisfactorily. If the Crown Office and Procurator Fiscal Service takes on board postal citations, I know that it will want the funding that goes with those. The police might have to release funding that is currently provided to them for that purpose. That would clearly be a difficulty. I do not know what progress has been made on the issue.

Does Chief Superintendent Shanks have anything to add to that? I had a specific question, but it was addressed in the two previous answers.

The main points have already been made.

You have answered most of the questions that I wanted to ask, which concerned the time spent by police officers in court. I am interested in some of the potential solutions to the difficulties that you have identified and in ways of making more effective use of police time. Could police officers be doing something rather than just sitting around in court waiting to be called before being sent away because they are no longer needed? Are there information technology solutions to that problem? I appreciate that Chief Superintendent Shanks admitted that he was a dinosaur. I am probably not far behind him in this respect and I cannot think of anything off the top of my head.

I can offer the committee a generalisation based on what we have already discussed. It is right for us to use the opportunity provided by a review of the Crown Office and Procurator Fiscal Service to address the issue of police time spent in court. That is very relevant. However, it would be more accurate to say that the issue concerns the whole criminal justice system. If we are to make any progress in this area, we must ensure that all players in the criminal justice system are brought round the table to identify ways forward. Unless all players are involved in the process, we cannot make significant progress. It is not fair for us to suggest that a review of the Crown Office and Procurator Fiscal Service will necessarily produce all the solutions that we are seeking.

That point is taken.

In both written submissions that we have received, it is suggested that there is a need for the Crown Office and Procurator Fiscal Service to be more attuned to local concerns and more aware of enforcement initiatives that are under way. In the ACPOS submission you say that you want to allow

"Procurators Fiscal to become more involved and play an active part in enforcement initiatives"

The ASPS submission states:

"Prosecution policies are … seldom compatible with the needs and expectations"

of local communities. How can that situation be improved? Could organisational and structural improvements be made that would address the problem?

There are ways in which the problem can be addressed, but this issue has important implications for the resourcing of the Crown Office and Procurator Fiscal Service. Like other colleagues, I am impressed by approaches that have been taken in other countries, where an element of the prosecution service is regarded as a community prosecution service. We would like fiscals to become more involved in initiatives by the police to establish priorities through consultation with the local community.

A group is currently reviewing the licensing provisions of the Civic Government (Scotland) Act 1982. Some of those provisions relate to fairly low-level offences, and the Crown Office and Procurator Fiscal Service has had difficulties prioritising them. If the service were in a position to recognise more clearly the strength of local opinion and community needs, it would be able to improve its response to the offences concerned.

Joined-up justice has to be developed. It goes beyond the police and the Crown Office and Procurator Fiscal Service. For a long time, members of the community have commented to police officers at meetings, "Why did such-and-such happen? Why was nothing taken forward on such-and-such an issue?" The Procurator Fiscal Service has, to a degree, been anonymous in its decision making. There is no openness about why it makes particular decisions. There are examples of good local liaison between commanders in the police and procurators fiscal, but such liaison has to be encouraged.

Each local authority area now has community safety groups, or community safety forums, and there is an opportunity for local fiscals to be involved in such groups. They may not necessarily attend every meeting, but they are tuned in to the priorities in the area and local policing initiatives. Those policing initiatives are arrived at following widespread consultation with community groups, elected members and interested parties, and through the use of postal surveys, to identify local people's priorities.

There is an opportunity now for the Procurator Fiscal Service to be more in tune with that and to say, "We agree that these are the priorities in the area and we will take action, and if we can't, we will explain why." We all recognise that there are priorities and actions that the fiscal service has to take, but perhaps there should be more openness and accountability so that the Procurator Fiscal Service can say, "I'm sorry we couldn't follow up on that initiative in relation to anti-social behaviour because we had other priorities in another area." Some explanation would help in that regard.

Scott Barrie referred to the fact that we have visited a number of procurator fiscal offices throughout the country. On one of those visits it was suggested to me that there is inadequate liaison between the police and fiscals when initiatives are being implemented. Is there a system whereby that can be communicated, or is there a need for improvement?

Clearly, there is room for improvement. A lot of the communication that exists is down to local personalities. If there were a structure in place such that the Procurator Fiscal Service had a positive role in relation to objectives and local strategies to deal with community issues, that would formalise the procedures.

I know of examples where local commanders and criminal investigation department heads have good liaison with their local fiscal. The local fiscal has signed up and said, "You are dealing with a housebreaking initiative. I will support that. You identify the people you are targeting and I will make sure that they are dealt with collectively by one depute to make sure that there is ownership of the issue." That has been successful, but it is not replicated throughout the country. There is an opportunity to formalise that liaison and build it into procedures so that people are linked up in a more positive way.

Over the past few years, police forces throughout the country have developed an approach to carrying out initiatives that respond to local and national priority needs. Over the piece, there have been times when the police have not involved fiscals sufficiently at the outset. We have learned quickly from that, and if that was a criticism from the Procurator Fiscal Service, it should no longer be a criticism of the eight forces.

I would like to deal with the resourcing of the Crown Office and Procurator Fiscal Service. We have had a submission from the Procurators Fiscal Society that makes bleak reading. It highlights a service under severe pressure, poor morale and an ever-increasing work load. I ask both organisations whether, in their view, the Procurator Fiscal Service is performing adequately. If not, in what other ways does that manifest itself in terms of the service's performance?

From our observations, we get an extremely good service from individuals in the Crown Office and Procurator Fiscal Service. It is a very professional service.

We have touched on areas in which there is a lack of openness in decision making. There is perhaps a need to be involved more in community issues, which would expose for us the resource implications in the Procurator Fiscal Service. We are aware that, day to day, there are heavy resource demands on the fiscal service. However, I am not sure that I am in a position to say whether the fiscal service fails to provide an adequate service. I would stop short of saying that.

I would not like to criticise the fiscal service. We have considerable professional respect for the work that it does in demanding circumstances. The fiscal service has to react to what we submit to it. As Mr McInnes says, it does a tremendous job in that respect.

However, there is scope to improve the job that the fiscal service does. For example, we sometimes find, when we try to speak to a procurator fiscal about a particular case that we have submitted, that one fiscal has marked up the papers and that we cannot get hold of someone else to make a decision on it. The person who ends up prosecuting the case in court is not necessarily the one with whom we have liaised or who has marked up the papers. We get the impression that that is down to pressure of resources and the fiscal service having to share out the work load among the different staff in the respective offices.

Do you not think that that is a management issue rather than one of resources?

I do not think that it is a management issue. It is not unusual. Out-of-hours contact was mentioned earlier. I have to say that during-hours contact is also difficult. The fiscal staff are all committed to court work. If we try to get hold of someone during office hours, perhaps to authorise a search warrant, it is difficult to get through on the phone. It is not unusual for us to go and knock on the door to see if there is anybody there.

Do you mean that it is difficult to get through to a procurator fiscal or to the fiscal service?

I can only speak from my own experience and from anecdotal comments. My experience is that, where there are more resources, there is a noticeable difference in the number of cases that proceed and perhaps a noticeable reduction in the number of difficulties that arise in cases.

I have a question on access to case files. Are you aware of any steps to consider the introduction of electronic case management, which is now widely used in business, to provide a range of people with access to cases of one sort or another?

I understand that, with such a system, cases would be marked up on electronic media and would be available for all to see. The reasoning behind particular decisions would also be available. I also understand that electronic case management would provide an audit trail of various contacts with, for example, defence agents and police officers so that, as required under the European convention on human rights, we would have a proper audit trail of decisions and processes. That would be welcome and would assist in speeding up access to that level of information.

But you do not know of anything that is happening to deliver that yet?

I am not aware of it being delivered in my area at the moment.

I think that the Crown Office and Procurator Fiscal Service already has an electronic case management system. Our point is that we do not have access to it. I am not sure that we particularly want access to it, other than to share in understanding some of the decisions that the fiscal service makes.

There is a much wider approach to the development of information technology, which is the integrated Scottish criminal justice information system—ISCJIS. It involves all the criminal justice agencies. The police have been involved right from the outset. It started off with electronic communication between the police and the Procurator Fiscal Service and has now developed to include the Scottish Prison Service and the court service. The project is making significant progress.

In the background, as I understand it, the Crown Office and Procurator Fiscal Service uses its own electronic case management system. That system is not part of the ISCJIS. We do not have access to that information.

You clearly have grave concerns about the reasoning behind cases not being proceeded with. That comes through in your evidence. The ACPOS submission highlights the need to ensure that

"case decisions are consistent with the emphasis upon securing justice, as opposed to what can be effectively managed within available resources".

That is a fundamental issue. Do you have concerns that that does not always occur and can you provide the committee with evidence to substantiate your position?

I will fail you again on that. We do not have evidence to back that up. I return to the answer I have given several times—we are not privy to the decision-making process, which means that a perception will always build up among the individual officers, the witnesses and the victims who are involved in particular cases. I fully understand the reasons for the approach that is taken and the sensitivity associated with the issues but, from time to time, that leaves us slightly concerned about the process that has been applied.

Would you go so far as to indicate that you suspect that that is why some cases are not proceeded with?

That is not how I worded it.

I just ask the question.

In the most recent year that has been accounted for, nearly 44,000 cases were marked "No proceedings". That is a significant proportion—about 15 per cent—of the cases reported to the Procurator Fiscal Service.

I know that the committee will hear representations on behalf of victims next week. It is important that the victim understands why nothing has happened in a particular case. If we could understand the decision-making philosophy or policy behind decisions, that would reduce our work load considerably and would stop us submitting cases to the fiscal service that will subsequently be marked "No proceedings". The work load of the fiscal service would also be reduced, as it would not have to examine the cases and mark them "No proceedings".

My final question is addressed to Mr Shanks. In your submission, you state:

"The limited resources of Crown Office are leading to a presumption towards early release"—

bail—

"in serious cases (including murder) in order that statutory time limits do not require to be applied."

The Solicitor General has suggested that the current 110-day rule should be re-examined. Would you favour a longer period of pre-trial detention being available in serious cases?

My personal view is that we should rightly be proud of the criminal justice process in Scotland. The 110-day rule—which has proven to be highly adequate—ensures that people who are subsequently found not guilty are detained in custody for the minimum period of time. My point of view—which I think reflects the view of my association—is that I would

not subscribe to any extension without careful consideration.

Even complex cases work adequately within the 110-day rule, provided that all the procedures are followed through. I would not subscribe to a wholesale extension.

The 110-day rule is a fundamental part of the Scottish criminal justice system. Before considering any change, we would want to consider the reasons for seeking change. We would be happy to contribute to any review.

As well as the 110-day rule, there is the Bail, Judicial Appointments etc (Scotland) Act 2000. We dealt with that act as it related to the European convention on human rights. Are you suggesting that more people may have been released on bail since the passing of that act?

The suggestion arose from comments in our association. Following the introduction of the European convention on human rights and its full application in the Scottish system, a greater number of people were released from custody prior to proceeding. The ECHR has also resulted in a greater number of people who are to appear in court not being kept in custody by the police.

The presumption has moved, perhaps rightly, towards early release and having to have greater justification for keeping someone in custody. The decision boils down to the person's capacity to reoffend, the likelihood of their interfering with witnesses prior to the case coming to court and the seriousness of the case.

If more people are being released from bail for those reasons, is that having an impact on an accused person turning up for trial? Are more of them absconding?

Bail is an issue that reaches into the wider realms of criminal justice in Scotland. We could quote a number of examples of people who have been released on bail, who reoffend and are subsequently released. It may be that the fiscal service does not have the capacity to remand that person in custody. In that case, the 110-day rule can come into play. It may be that other factors are involved. One example is the persistent housebreaker, who is caught, bailed with a condition not to reoffend, caught again and released. That is not an uncommon occurrence.

Do the police have to work to an internal deadline when preparing reports within the 110-day rule time scale?

Yes.

What would that be?

Different deadlines apply. The procurator fiscal would normally ask for full statements to be made within seven days of a person going to court. If someone is arrested on Sunday and appears in court on Monday, the procurator fiscal would be looking for full statements for the case within seven days. We have some latitude on key statements, but the deadline allows the Procurator Fiscal Service time to go through precognition and develop the indictment. It is fair to say that the deadline gives us tight time scales.

I have listened to what has been said about liaison between the police and Procurator Fiscal Service and how that plays out day to day. If additional resources were found to improve liaison and a different approach to openness was introduced, would that improve the quality of justice? If more day-to-day contact was established between the police and local procurators fiscal to ensure that the charges were right in the police report from the beginning, would that improve the quality of justice?

I believe that it would. That would be an application of resources to an area that we all regard as good practice. That would inevitably improve the quality of justice.

I agree. It would provide openness and mutual understanding between the police and the Procurator Fiscal Service. That openness would be available to members of the public—to use the oft-used phrase, justice would be seen to be done. We would be working together with common goals and we would be pulling in the same direction. It would be very welcome.

It is hard to summarise the evidence, as you have given us so much, so I will not attempt to do so.

On that last point, would it be fair to say that your concern is to tackle resources or is it to do that and tackle the culture, to make it more open? Do the two distinct areas need to be tackled?

I agree with that. We have identified the area of resourcing, but openness and accountability are also important. That goes for both sides: the police and the Procurator Fiscal Service.

The committee will consider the inquiry reports into the case of the murder of Surjit Singh Chhokar. What effect will the two reports' recommendations have on the relationship between the Crown Office, the Procurator Fiscal Service and the police?

A number of recommendations detail areas, including witness liaison. Unfortunately, those matters are being addressed elsewhere and I am not in a position to provide the committee with information at this point. The recommendation about the introduction of an inspectorate of the Crown Office and Procurator Fiscal Service is consistent with the information that we have provided to the committee today. That might open up the process by which decisions are made within the Crown Office and Procurator Fiscal Service.

I am aware that there is an action plan to deal with the recommendations of the Jandoo report. I noted with interest the Lord Advocate's announcement last week of additional financial resources for the Crown Office and Procurator Fiscal Service. We certainly welcome that announcement, which is a positive step forward in addressing some of the issues that we have discussed this morning.

Before we conclude, are there any other subjects that have not been covered that you would like to talk to the committee about?

The committee has given me an excellent opportunity to provide evidence, and I am grateful for that. As I said earlier, the review of the Crown Office and Procurator Fiscal Service is an opportunity to raise issues that relate to the criminal justice system in general—that is, all the agencies involved in the criminal justice system.

I agree. I appreciate the opportunity to speak today. As I said, we must recognise the considerable regard in which the Scottish justice system is held throughout the world. That was demonstrated following the Lockerbie trial. I see the review as an opportunity not to change the system radically, but to influence the way forward so that it becomes more open and joined up.

The committee shares your view about the need to move towards a more joined-up justice system—a view which is, I believe, shared by the Justice 1 Committee. In our budget report this year, we made strong recommendations about that. The concept is an important one, which we are debating with the Minister for Justice.

On behalf of the committee, I thank the witnesses, who have covered a range of important subjects. We have tried to take in as much as we can, but we will have the opportunity to scrutinise in detail what you have said because it will be in the Official Report. Your contribution has been very helpful to our inquiry.

We have reached the end of today's agenda. I know that today's session has been long, so I thank members for their indulgence.

I remind members that we shall next meet on the morning of Tuesday 20 November. I also remind them that I asked them to pass on details of families or other individuals from whom we should take evidence. I am keen that we hear the experiences of individual families. Unless I hear from members, I shall use my powers as convener to call people from whom I think members would want to hear. I make another plea to members to let the clerks know names as soon as possible.

Meeting closed at 12:37.