Justice 1 Committee and Justice 2 Committee (Joint Meeting), 19 Sep 2001

Meeting date: Wednesday, September 19, 2001

Official Report 149KB pdf

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Crown Office and Procurator Fiscal Service

I propose to allow questioning of the Lord Advocate for half an hour, until about ten o' clock. After that we will question the Minister for Justice for the same length of time. I am trying to create a bit of a break between this meeting and the meeting of the Justice 2 Committee, which, it is proposed, will take place at 11 o'clock. I trust that what I propose is okay with members.

I invite the Lord Advocate to make an introductory statement, if he wishes. We will then go straight to questions.

I will make a short introductory statement if that is appropriate, but I do not want to take up too much time. I would like as much time for questions as possible. I hope that my statement has already been circulated to members.

It has.

Perhaps I could just give a shorter version of my written statement, if that is convenient. The rest could be taken as read, or whatever is thought to be appropriate.

That will be fine.

It seems to be appropriate to start by marking the fact that we meet just eight days after the terrible events in the United States. Our thoughts are obviously with those who have been killed and injured. As Lord Advocate, and because of the special relationship that we have with the Americans, I have sent appropriate messages to the Attorney General of the United States and Bob Mueller, who is the director of the Federal Bureau of Investigation. Mr Mueller is well known to the Lockerbie prosecution team because of his work on that case in the early days.

We have a lot of friends in the United States, particularly in the terrorism and violent crime section of the United States Department of Justice, but also in the Office for Victims of Crime and in other agencies in the United States. We have been in touch with those people and we appreciate the anguish that they feel as a result of the terrorist attack. We also know that they are going to be exceptionally busy over the next weeks, months and even years. Members should be aware that the people in the Crown Office and Procurator Fiscal Service who work closely with their American colleagues are as affected by the tragedy as anyone else. The Americans know that if there is anything that we can do to help, we will do it.

We can learn lessons from the experience of the Lockerbie trial. I am happy to go into some of those lessons. The international community recognises that what we managed at Camp Zeist, irrespective of the result of the trial, was a remarkable achievement. I also want to record that we received two special achievement awards for our work in the Lockerbie trial from the International Association of Prosecutors at their conference in Sydney. I hope that members share some of the pride that I feel in those awards. Internationally, Scottish prosecution is highly regarded and, in many respects, envied.

Nevertheless, I am all too aware that we face significant challenges in Scotland. We have seen the balance of offences continue to shift towards the more resource-demanding serious end of the scale. Although the total number of cases that are reported to the Procurator Fiscal has remained fairly static over the last five years and the number of summary prosecutions has fallen, the clear perception is that our work load is getting heavier.

We have, during the financial year 2000-2001, recruited additional staff including 21 lawyers to meet the increased work load. Funding increased with the spending review 2000, which provided £22.5 million of new money over the next three years to meet the priorities, which are drugs offences, racially motivated and sexual offences and crimes of violence.

We are conducting a recruitment process for precognition officers, who will continue to contribute to serious cases for prosecution. We are making progress with efforts to ensure that the needs of victims and witnesses are properly met and, as planned, new victim liaison offices are being piloted in Aberdeen and Hamilton. We shall digest the lessons that we learn from that and apply them in extending the service to all regions. We are on track to meet our commitment to have a victim liaison officer in each region by next spring.

I am aware that the Justice 2 Committee, in its inquiry, has been looking at the resources of the Crown Office and Procurator Fiscal Service. We have also been addressing that matter. In particular, I have been concerned to ensure the effectiveness of resource planning and management within the department. The current arrangements were developed following departmental management reviews in the early and mid-1990s. However, we need to ensure that we have the right systems and management skills for the 21st century, to meet the new pressures on the department and to suit the new devolved arrangements.

Accordingly, after discussion with the department's senior management, and in consultation with the rest of the Executive, I have commissioned and announce today a major review of the planning, allocation and management of resources in the department. The objective is to ensure that we have robust systems and appropriate management skills to allow the department's resource needs to be assessed accurately.

We need to ensure that the department's resources are deployed and managed efficiently and effectively. The review will start in October and will report to the Crown Agent and me. I attach considerable significance to the review and will take a particular interest in its outcome and the implementation of recommendations as appropriate. I expect the review to help to inform the department's involvement in next year's spending review.

I recognise that the Crown Office and Procurator Fiscal Service is under greater scrutiny than it has been at any time in its history. The Justice 2 Committee is conducting an inquiry into the Crown Office and Procurator Fiscal Service, which I welcome. I know that the committee has been impressed and enlightened by face-to-face discussions with staff, but concerned by some of the comments that it has heard.

I share much of that concern. However, the organisation is undergoing profound change. We have coped well with some of the challenges, such as Lockerbie and the introduction of the European convention on human rights. The continued rise in serious crime, the growing complexity of cases, the introduction of new technology, the needs of victims and witnesses and the demand for greater openness are but a few of the other challenges that we face.

I want a service that is professional, independent, efficient, well resourced, well managed and has the confidence of the community. That is not only my objective, but the objective of the staff in the service.

Thank you. That was helpful.

As the Lord Advocate said, the Justice 2 Committee is conducting an inquiry into the Crown Office and Procurator Fiscal Service, so I do not want questions to go too deeply into the terms of that inquiry, although I will allow some latitude.

I am mindful of the Justice 2 Committee's inquiry. I will ask the Lord Advocate and his team two questions: one on the children's panel service and one on—dare I say it—fishing policy. The department has produced detailed guidelines for the children's panel service on the prosecution of children and on the policy that children should be kept out of court, as far as possible. How well is that policy being followed? How achievable is that goal? How effective is the approach?

My question on fishing policy is simple. Given that European regulations change rapidly and are implemented differently by member states, do the Lord Advocate and his team have any comment on how easy it is to keep up to date with regulations and therefore to prosecute in sheriff courts?

Children's panels are a matter for the minister who is responsible for children. Prosecution of crime depends on the age of the child involved. For my part, there is a strong presumption that children will be diverted into the children's panel system. Guidelines exist that set out when the Lord Advocate's personal intervention is necessary during consideration of the prosecution of children. Those guidelines are working well. We consider the prosecution of children only in the most serious cases, but the decision depends on the age of the child. The older the child, the more likely we are to take action, in some cases.

I have been reminded that we have a close relationship with the Scottish Executive solicitors office. That is working well, too. I have no evidence that guidelines are not being adhered to. On my department's interest, I am happy that the prosecution of children is being dealt with appropriately and sensitively.

Tavish Scott also asked about fishing policy and European Union regulations. I am aware that EU regulations offer their own complexities, not only in fishing, but in other matters. It can sometimes be difficult, particularly for lawyers from Scottish and English jurisdictions, to cope with EU regulations. The procurators fiscal who deal with such cases build up experience in EU fishing cases and receive support from others, usually in fishing communities, who can give guidance to those who are less experienced.

I suspect that Tavish Scott's interest is prompted by his constituency and constituents who are trying to make a livelihood by fishing and are trying to cope with EU regulations. Interpreting EU regulations for such people is a matter for advice from solicitors in individual cases and from Government departments generally. My department cannot offer advice, for obvious reasons. Tavish Scott will understand the point that I make. We rely on experienced procurators fiscal in the prosecution of fishing cases.

How quickly can those regulations change and to what extent must fiscals keep up to date with change?

Off the top of my head, I cannot give an estimate, but I could make inquiries about that and get back to you, if that is all right.

Thank you.

An issue that the public have with the Procurator Fiscal Service concerns victims of crime not knowing how their cases are progressing. On fatal accident inquiries, has any consideration been given not so much to instructing as to advising PFs and PF deputes to interface more effectively with the public on the conduct of cases and on the reasons why some actions have not been taken?

As the member knows, victim liaison offices are being piloted in Aberdeen and Hamilton. That is a major initiative that will offer such information and support. It will cover cases in which people have died and in which the procurator fiscal is involved.

When a death is the subject of an investigation, depute fiscals always attempt to meet the family of the deceased. Depute fiscals spend much time doing what Scott Barrie talked about. I hope that victim liaison offices will enhance that part of the service. A lot of work is done to try to allow the next of kin at least to understand the processes and why actions are taken or not taken.

With fatal accident inquiries, one of the questions that is always asked at face-to-face meetings is whether the family wants a fatal accident inquiry to be considered. However, if the family does not want a fatal accident inquiry, that is not a decisive factor because issues of public interest might transcend the interests of the family. Unfortunately, it is sometimes necessary to begin a fatal accident inquiry in the face of family opposition. Equally, if a family wants a fatal accident inquiry when it is clear that there is nothing to investigate, the family's desire will not be decisive. The interests of the family are a factor that we take into account and in appropriate cases are a strong or decisive factor in our decision on whether there should be a fatal accident inquiry.

I know of people who have been cited as witnesses or who are to attend cases as victims, but who find, either when they attend court or close to the hearing, that the case has been rescheduled or has moved on, which causes inconvenience. Your annual report states that the regional procurator fiscal in Glasgow was trying to come to an agreement with the Scottish Court Service to alleviate that type of problem. Will you comment on what progress has been made on that and on whether there are similar problems in courts throughout the country and similar intentions to reach agreements?

I am conscious that police constabularies are keen to set up local initiatives, particularly in connection with drugs issues. Those initiatives can have an impact on the number of cases with which local procurators fiscal must deal. Will you comment on what type of liaison there is between the police and the procurator fiscal prior to the setting up of such initiatives? How do local procurators fiscal redistribute their resources to deal with those local police initiatives?

Those questions are important and raise particular issues. On the inconvenience to witnesses, I am conscious of the problems that some courts encounter. Glasgow has a problem with the number of summary trials that are arranged for each day. The SCS wants to ensure that targets are met and that courts keep up with particular cases. The results of that are twofold. First, a lot of cases are adjourned because there is no way to get through them all. Secondly, there is a knock-on impact on our staff in Glasgow, because members of staff sometimes go into court armed with a load of files for trials that are set for that day, but which have no prospect of going ahead. That causes stress to our staff, so we have taken the matter up with the sheriff clerk. I wrote to the sheriff principal about the issue and the result was the setting up of a working group to try to address and alleviate the problem.

There are two factors. One is the inconvenience to the victims, the accused and people who are cited who come along and find that cases have been adjourned. The other is the inconvenience to our staff, who find themselves overburdened. There are ways to address those problems and that is being done. I hope that that answers Michael Matheson's first question adequately.

On local initiatives by police, in almost every case there are good working relationships between local police commanders and procurators fiscal. There are regular meetings—although how they are set up depends on the area—at which operational issues are discussed. In the ordinary course of events, procurators fiscal expect to be told about those initiatives, but I cannot say whether that happens in every case.

Michael Matheson is right that there is a knock-on effect. For example, if there is a successful initiative on drugs or knives one would expect a lot more police reports on that topic. One problem—although it is a good thing—is that the police are becoming more effective and their detection rates are going up. The Scottish Drug Enforcement Agency is having a positive impact on the reporting of cases, but that has a knock-on effect.

That is one of the reasons for a review of the allocation of resources. We must build in provision for anticipating—as far as possible—changes in reporting rates and in the types of cases that arise. We must have a degree of flexibility so that we can pinpoint areas in which there might be particular pressures and try to alleviate those pressures before they build up to unmanageable proportions.

One of the actions that can be taken during the process is plea adjustment. Given that procurators fiscal act in the interests of the general public, rather than that of individuals, how much discussion would you expect with the victim or the victim's family in cases that involve a plea adjustment?

That depends on the type of case. If a procurator fiscal has a dozen cases with which to deal, there is little prospect of a discussion about plea adjustment with a victim in a summary case. When more serious cases such as sexual offences are being dealt with in the High Court, a genuine attempt is made to discuss the possible acceptance of a plea. However, the views of the victim will not and could not be decisive in such a situation. Part of the consideration in serious sexual offences, in particular when children are involved, is whether it is better to accept a plea and to avoid the trauma for a witness giving evidence. That is the type of thing that might be gauged from a face-to-face interview.

We are always conscious of the victims, in particular in serious cases, and we attempt to discuss the matter with them. That is not always possible or effective, because the victim does not always agree with our decision, but an effort is made.

Your annual report states that you have undertaken a survey among the staff in the Crown Office and Procurator Fiscal Service, which indicated problems of stress, pressure on the staff and low morale. What strategy are you putting in place to deal with that? Are there certain groups of staff in your service who feel particularly undervalued or who are suffering from stress and pressure?

A stress survey highlighted issues of low morale. After the senior management team discussed the matter, a more thorough stress audit was agreed with the trade unions to attempt to pinpoint where and why the stresses were occurring. That audit continues and we have received advice on its results.

On particular staff feeling under pressure, it would be invidious for me to pick out people who might be under more stress than others. Low morale is more of an issue in certain offices than it is in others, and depute procurators fiscal have raised issues about pay and pay comparability. Part of the offer that was made—and that will be followed through—is a study of pay in comparable grades in other areas of public service. I hope that that will address the problem.

As far as other stress issues are concerned, it appears from my discussions that the issues are complex. Part of the problem is work load, but there is also a feeling among staff that they are not valued. Such a feeling stems not just from the service itself, but from an image of the Crown Office and Procurator Fiscal Service in the press that has had a knock-on effect on staff. I have noticed that effect myself. I am very keen to tackle the issue.

My point develops the Lord Advocate's comments and raises issues of perception and reality. Last year in Grampian and the Highlands and Islands, 17,000 cases were dealt with through summary disposal, but a substantially lower number of individuals were up for trial. Often in our community, a backlog of outstanding cases for summary disposal is built up. One of the difficulties that the public perceive—and which they express most commonly as "Ach well, they'll just get a pat on the head and let aff"—is that the cases are dealt with individually instead of being brought together in a single diet. If people appear initially in one sheriff court, it is subsequently impossible to consolidate—even within one area—the outstanding cases against an individual into one diet in one sheriff court. Will the Lord Advocate comment on the benefits of consolidating cases into a single diet, especially from the point of view of appropriate sentencing and dealing with the backlog of cases efficiently?

When a procurator fiscal's office receives a police report, one of the first questions that is asked is whether there are any other outstanding cases or reports. If there are, the next question is whether there will be any consolidation or not. Sometimes consolidation is appropriate, sometimes it is not. For example, consolidation is probably inappropriate if wholly different characters of criminal offences are alleged against an individual. Also, in certain instances, the individual has the right to ask for the separation of trials. However, where a report of two housebreakings is received and another report of three housebreakings has still to be dealt with, the appropriate question is whether we can consolidate all five cases.

Although sentencing is a matter for the judge or sheriff, they will take into account an individual's criminal record, which might include a long list of previous convictions for—say—housebreaking.

What about consolidating cases that are heard in separate sheriff courts? Once someone has appeared in a particular sheriff court, is there any way that offences can be consolidated into a diet at another court?

Yes. The new information technology system—which we call the future office system—will help to identify such cases by immediately flagging up to a depute looking at the computer screen whether there are any outstanding cases against a particular individual. Instead of having to go away and look through a separate system, the depute will be able to find out such information there and then. As a result, consolidation should be much easier.

I still have three members to call and we are running out of time. If those members are prepared to be brief, I will ensure that they get priority when the Minister for Justice appears.

The Lord Advocate should be congratulated on the international achievement awards that he has received. Is he receiving sufficient international co-operation and support from senior law officers throughout Europe and further afield on matters such as the prevention of international fraud, prevention of serious drugs trafficking and, of course, prevention of terrorism?

Yes. There are a number of answers to that question and I do not want to take up too much time. One of the great lessons of the Lockerbie prosecution was that when investigators and prosecutors act together, a case can be put together. Lockerbie showed us that we need international co-operation, because it not only allows us to ask for advice and support through letters of request, but allows investigators to visit another country—no doubt with investigators from that country—and put questions to witnesses.

A body called Eurojust has been set up under the European Union. Although it is in its nascent stage, its intention is to provide support to individual prosecutors; to have a network of contacts; and to have an exchange of evidence. Someone involved in Eurojust recently told me of one of its particular successes: under the organisation's auspices, someone from Germany spoke to someone from Spain and found out about another connection in Italy. They were then able to bring everything together and start to mount a prosecution.

There are other questions about the wider international stage. For example, are the right structures in place? Perhaps we could consider further international co-operation. We are active members of the IAP, which is an important body for promoting such co-operation. The structures are beginning to be put in place at a European level.

I wish to ask a further question on this morning's news that the European Union has been quick off the mark to see what steps should be taken in reaction to last week's events. The justice committees are beginning to get their heads round what Eurojust is about and the role of the European Union. We have some concerns about the legal basis on which member states are marching ahead on mutual recognition of each other's legal systems, albeit that they are doing so for the greater good. Would some of the issues be better dealt with by international treaties, given that some of the countries that you would wish to co-operate with are not members of the European Union?

That is one reason why I said that more could be done. At the European level we are doing well with Eurojust, although more probably could be done at the international level. We have to consider whether we can put in place structures to assist international prosecution. That view arises from my experience of the Lockerbie trial and does not represent anybody else's view. You asked the question, so we have to ask whether more could be done, and also strengthen mutual legal assistance, which is a formal and bureaucratic process.

We will return to that subject another time.

On our attitude to Europe, two and a half years after the importation of the ECHR provisions into Scots law, we seem still to be having resource difficulties. Is the Lord Advocate in a position to quantify those difficulties, bearing it in mind that a great deal of time, even in the summary courts, is devoted to debating so-called devolution issues? Will he also comment on the fact that there are now so many High Court adjournments—which on the street are felt to be a result of the fact that under ECHR regulations most accused persons are admitted to bail—that the pressures and disciplines of the 110-day rule are being diluted?

Adjournments in the High Court are a problem, but they are not due to ECHR issues; they are due to the continuing pressure on the High Court. For example, the number of indictments in the past four months is up 7 per cent on the equivalent period last year. That produces pressures, with cases remaining in the system and not being dealt with.

Adjournments in the High Court, which are a real problem, are not due to ECHR problems. Challenges are heard under the ECHR, but they are fewer than one might have expected, given experience in other countries, in particular Canada and New Zealand. The Crown Office and Procurator Fiscal Service is now used to dealing with such cases. They are part of the everyday system and human rights issues are now at the forefront not only of defence, but of prosecution.

I am not in a position to quantify the difficulties in hours or days—I do not think the information is available. I am not in a position to quantify in man-hours the resources that are used by the prosecution in dealing with ECHR challenges.

I will address the more mundane topic of the difficulty in raising prosecutions against people who breach planning or pollution regulations. There is a perception among developers and some businesses with a lot of pollution potential that they can breach regulations with impunity. Is there a formal or informal mechanism to protect time to prosecute such offences?

I challenge the view that people can do those things with impunity. I used to be a planning lawyer, so I know a little bit about it. I am aware that we sometimes get complaints about non-prosecution. The people who report such offences to us do not regularly report all sorts of cases, as the police do; they do so irregularly. We must ensure that when they put a case together they are aware of our requirements. We encourage an on-going dialogue with bodies such as the Scottish Environment Protection Agency, to ensure that we get it right.

We must also ensure that procurators fiscal are trained to deal with such issues when they arise, in the same way as some of them get experience of dealing with fishing cases. I hope that the use of information technology will assist in that. It will allow for greater information to be passed around the service and will enable people to build up experience and share it with others.

I would not like it to be thought that there was any relaxation of the requirements on the prosecution in relation to certain offences because it was inconvenient or the offences did not seem to be as serious. We should bear it in mind that a range of planning enforcement measures are available to local authorities and that they may be more effective in dealing with certain issues. For example, in a case of building without permission, it is more effective to tell the guy to rectify the situation by taking the building down than it is to prosecute.

But the person might say, "Well, I am not taking it down."

A time comes when prosecution has to be seriously considered, but it comes down to enforcement. Prosecution should not be seen as the first call. If you talk to people who are involved in the sector you will find that they want to ensure that when prosecution is considered, it is effective, because it is the last call.

The point I am trying to get at is that, as you say, we need to ensure that a procurator fiscal attaches priority to the matter. That type of case is competing for time with serious offences. Is there a mechanism to ensure that there is some protected time for that type of case?

It would be difficult to have protected time for such cases, but fiscals must recognise that when they are reported it is often because other enforcement measures have not worked. They must discuss with the reporting agency whether they can take a prosecution, whether the evidence is there to take a prosecution and whether it is in a form that can enable a prosecution to go ahead. That is often an issue.

I am afraid that we will have to end the discussion. I thank the Lord Advocate and Andrew Normand and Dr Alasdair Brown for attending. I am sure that both the Justice 1 Committee and the Justice 2 Committee will return to many of the subjects later in the year.