Justice Committee

Meeting date: Tuesday, December 20, 2016

Official Report 552KB pdf

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Draft Budget Scrutiny 2017-18

Agenda item 2 is draft budget scrutiny 2017-18. I welcome to the committee the Rt Hon James Wolffe QC, the Lord Advocate, and David Harvie, the Crown Agent and chief executive of the Crown Office and Procurator Fiscal Service. This is the first time that either of you has appeared before the committee and we very much look forward to working with you during this session of Parliament.

I refer members to paper 1, which is a note from the clerk, and paper 2, which is the Scottish Parliament information centre briefing. The Crown Agent has also made a written submission to the committee’s current COPFS inquiry, parts of which are relevant to this morning’s session. Thank you for that.

I believe that the Lord Advocate would like to make a short opening statement.

Thank you for inviting me to give evidence and for permitting me to make some preliminary remarks, conscious as I am that this is my first appearance before the committee as Lord Advocate. I look forward very much to working with you during this session of Parliament and my period in office.

Your inquiry into the work of the prosecution service is, from my point of view, timely. I look forward to coming back to the committee in January to discuss in more detail the evidence that you have received. I understand that the purpose of today’s meeting is budget scrutiny. As you have indicated, convener, I am here with the Crown Agent, who is the chief executive and accountable officer of the service.

I would like to make a few observations to set the discussion about the budget in context. First, the media regularly report on high-profile prosecutions that have been brought to a successful conclusion. Those cases that attract public and media attention are only the most visible part of the work of the service, which day in and day out across Scotland successfully prosecutes crime and secures the fair and effective administration of the criminal law.

It is important that I say that at this, my first appearance before the committee, because I know that some of the evidence that you have received has reflected negatively on the service. I take seriously the issues that have been raised in the evidence before you, but the starting point for addressing the work of the service should be that the Crown Office and Procurator Fiscal Service is an organisation that, day in and day out, fulfils its basic, fundamental, public responsibilities as the prosecutor of crime in Scotland, and does so effectively.

The second point that I want to make at the outset is that the organisation has, over the past 15 years, shown a remarkable capacity for change. It was at the forefront of recognising the needs of victims of crime. It has adjusted rapidly to significant developments in the law and it embraces the potential of technological advance and procedural reform. The service had already identified some of the issues that had been raised in the evidence before you, and we would be glad to address specific issues that you want to raise with us, but what the evidence taken as a whole really demonstrates is the case for reform of the criminal justice system.

You will be aware that we are at an unusual moment where significant reform across the justice system is in prospect. I believe that we would fail the people whom we serve if we were not to grasp the opportunities of that moment. I am certainly committed—I know that the Crown Agent is, too—to working with all the agencies involved as we seek to create a justice system that reflects the needs of 21st century Scotland.

Finally, I will make just a brief observation about the budget. I have to take a realistic view about the pressures on public sector funding. The revenue and capital budgets of the service are the same in cash terms as last year; that is the basis on which the service has undertaken its forward financial planning. You will no doubt wish in a moment to look in detail at the budget figures, but I make it clear to the committee at the outset that with that budget allocation the service will continue to prosecute crime in the year ahead effectively, rigorously and in the public interest.

Thank you. I remind members that this evidence session is on the 2017-18 Crown Office and Procurator Fiscal Service budget, and I emphasise that it is not about the wider issues raised during our current inquiry. Obviously there will be a slight overlap and I will allow a little bit of latitude on that, but in general the session is about the budget. The Lord Advocate will attend early in the new year to answer questions about issues related to our inquiry. With that, I open the session to questions from members.

Thank you, convener, and good morning Mr Harvie and Lord Advocate. My first question is for the Lord Advocate. Your submission through Mr Harvie states that

“to protect his constitutional independence, the Lord Advocate deals directly with the Cabinet Secretary for Finance”.

When you go into those meetings, are you the Crown Office’s representative in the Scottish Government or the Scottish Government’s representative in the Crown Office?

The short answer is that I am the Lord Advocate, and as Lord Advocate I am the head of the prosecution system in Scotland. I exercise that function independently both by statute and for constitutional reasons. I go into those discussions as the Lord Advocate with my responsibilities as Lord Advocate in my mind.

But you have dual responsibilities as a member of the Government and the head of the Crown Office. When you are dealing on financial terms with a fellow member of the Government, which priority do you lead with? Is it for the Crown Office within the Scottish Government or as a Scottish Government member on behalf of the Crown Office?

It is, perhaps, artificial to seek to divide up my different functions. I go into those discussions as the independent head of the system of prosecution in Scotland, as I go into any discussions as Lord Advocate. I have to be realistic about the public financial circumstances that we live in, as the head of any public service in Scotland has to be in the current environment. However, my responsibility is to prosecute crime in Scotland effectively, rigorously, fairly and independently.

If you cannot differentiate in the way that I am asking you to do, which of the following two statements would you agree with most? As you come out of that meeting with the Cabinet Secretary for Finance and the Constitution, would you agree more with the Scottish criminal bar association, which said that it is “absolutely astonishing” that the Scottish Government should cut the Crown Office budget, or would you agree with Derek Mackay that

“it is a sound settlement for the service”?—[Official Report, 15 December 2016; c 61.]

The first thing to be clear about is that the service will receive the same cash funding for the revenue and capital budgets as it received last year.

I will come on to that.

I know that you will want to look in detail at that proposition and I understand that.

Those are two quite stark responses from different sides. The Scottish Government minister said that it is a “sound settlement” for your service, yet the Scottish criminal bar association said that it is “absolutely astonishing” that there should be cuts to the budget. Which one do you think is more accurate?

It is a settlement that is consistent with the forward financial planning of the service and within which I am confident that we will continue to prosecute crime effectively in Scotland in the coming year. It is a settlement that I am advised is, broadly speaking, consistent with the settlement for other justice agencies. It is a settlement that enables me in the forthcoming financial year to fulfil my public responsibilities.

I would like clarity on this, because there is some confusion. Do you agree with the Cabinet Secretary for Finance and the Constitution that it is a “sound settlement” or with the Scottish criminal bar association, which says that it is “absolutely astonishing” that there should be cuts to the COPFS budget?

It is a sound settlement for the service on the basis that I have just described. For the reason that I mentioned, to describe it as a cut in the way that Mr Ross articulated it is not the full picture.

Is there a real-terms reduction in your budget?

There is a real-terms reduction.

Do you think that that is a sound settlement?

It is, because we have secured in revenue and capital terms the same cash as last year.

There is an important point that I know you will want to discuss, and it may be that the Crown Agent will be better placed than I am to discuss the detail. An apparent reduction of £1.4 million is, as I understand it, a change in the allowance made for depreciation. It does not affect the cash that is available for the running of the service.

I will come on to that if I can.

If we look at your level 3 funding, staff costs in 2016-17, for example, were £73.4 million; in 2017-18, they will be £72.3 million. That is a real-terms reduction in staff costs. Office costs remain at the same cash level, so that is a real-terms reduction. I think that you have just touched on the centrally managed costs, but if that is not the case I would be interested in more information.

The headline figures in table 14.2, which is the level 2 spending, show a £4 million reduction. I know that that has been explained in Mr Harvie’s submission, but in relation to the level 3 funding I would be interested in whether you accept that there is a real-terms decrease in the funding available, for example for staff costs.

It would perhaps be more sensible for Mr Harvie to respond.

If I take it hierarchically, in terms of the initial position in relation to the £4 million and then my assessment in relation to the £1.7 million and then drill down to staffing—

I would rather that you started with staffing, because I will come on to the other issues. Staffing was my question in this case. Is there a real-terms reduction from last year’s budget to this year’s budget in the amount of money that you can spend on staffing—yes or no?

From our perspective, we have a real-terms reduction on the revenue budget of around £1.4 million. Our estimate is that 50 per cent of that real-terms cut in revenue will have to be achieved by non-staff costs and 50 per cent by staffing costs.

So the answer is yes?

Yes. I am trying to give more detail.

That is useful. To get a clear answer for the record, is there a reduction in the amount of money that the Crown Office will be able to spend on staff in this “sound settlement” delivered by the Scottish Government? Those are its words and not mine.

We will have a £1.4 million cut in revenue.

And 50 per cent of that—

We are planning for 50 per cent savings on staff costs and 50 per cent on non-staff costs.

This question may be more for the Lord Advocate. Given the evidence that the committee has received in its inquiry, do you think that it is sensible to be going forward with a reduction in staff costs at a time when we have been told by numerous witnesses, almost unanimously, that you need more resources?

No one has questioned the ability of your staff. Indeed, that has been praised time and time again. However, it has been said at almost every session that they are underresourced. Therefore, if you are going to implement a cut in the staffing budget, does that not raise concerns for the future of the service this year?

It is important not to look at the future of the prosecution service in isolation from the wider criminal justice system. As I said a moment ago, we are looking at systemic change that is likely to alter the system in ways that will make it much more acceptable from the perspective of witnesses, victims and accused persons. It is a mistake to think that one solves challenges and difficulties simply by putting additional resources into them rather than by looking—

10:15  

That may be your opinion. However, what I was trying to get across in my question was the opinion of numerous committee witnesses that more resources are required. If you do not feel that more resources are required, we will hear that from you in January. However, all these witnesses at an important inquiry—you said that it was very timeous and that you were very interested in the outcomes—are telling us that we need more resources. People at the coalface are telling us that, yet this budget settlement from the Scottish Government—which was, presumably, agreed in consultation with you—sees a reduction in the amount of money that you can spend on the staff within that service. I am not sure how you can marry up those two statements.

There are two reasons. First, the service has planned for the coming year on the basis of the assumption or the scenario of the same cash in revenue and capital terms and that is the settlement that we have achieved.

Secondly, in terms of specific areas of challenge for the service, I am interested in looking at ways in which we can perform the various functions that we have to perform more effectively by looking at procedural changes—changes in how we do things. I am interested in the very real potential for changes in the justice system across the piece, of which the Crown Office is only one part. All that has implications for resourcing. It is not correct that the only way to solve a problem is simply to apply more resources to it.

Can I just make this clear, Mr Ross? If I am satisfied, exercising my responsibility as Lord Advocate, that in order to fulfil the fundamental functions of the service I require additional funding from the Government, I will not hesitate to ask for it—

But you have not asked for it in this settlement.

I can give an example from the period of my predecessor’s office, when he sought and was given additional funding, which at that time was required specifically to deal with a series of significant cases.

If I am faced with a specific demand—a specific need—that requires more funding and I am satisfied that, in the exercise of my public responsibilities, I need more funding for that purpose, I will ask for it.

I worry that we have a scenario in which you have to go cap in hand to the Scottish Government asking for more money rather than saying that you need more money at this time, when you go into your discussions with the Cabinet Secretary for Finance and the Constitution as the independent head of the Crown Office to get a “sound settlement”, as the cabinet secretary described it in Parliament. You have reiterated a similar view today, yet when Fiona Eadie of the FDA came to this committee to give evidence, she said:

“I fully expect our senior manager to give evidence to the Parliament and say that he can probably just about manage to deliver the same service again with the same money next year.”

She then went on to say:

“However, if the committee wants to see the sorts of improvements that we have spoken about today and the standard of service that we all want to deliver and that the people of Scotland expect, additional resources are required.”—[Official Report, Justice Committee, 15 November 2016; c 41.]

I am not sure that Fiona Eadie, the people in the FDA union, or anyone who has watched the committee’s evidence sessions or experienced the issues that have been raised with the committee in the court system up and down the country will take much comfort from your answer today.

Would I like to have more money? There is no head of any public service in Scotland who would not like to have more by way of resources. Can I deliver a prosecution service that fundamentally does the job that it is there to do—to prosecute crime effectively, rigorously and fairly—with the settlement that we have achieved? I believe that I can.

I was very pleased to hear Mr Ross acknowledge the evidence that the committee has received about the quality of the staff in the service. I was also pleased to read that evidence myself. It vindicates what I have been saying since my first day in office to emphasise my trust and confidence in the staff up and down Scotland who prosecute on my authority.

I will ask another question now so that Mr Harvie can answer my points together, because the convener will not give me much more leeway. Your submission refers to the £950,000 that was transferred in-year this year for the violence against women initiative. That funding will also be provided during 2017-18. If you know that now, why is it not included in the budget figures that have been presented to Parliament?

The amount was not included last year in the budget figures for the initial position either, because it was received in-year. We normally get that money in September or October. There is a line in the justice budget for it and a commitment that it will be delivered.

You were comparing the 2016-17 draft budget with the actual budget. Surely that funding is known for the 2017-18 draft budget, too, yet it is being included after the draft budget settlement.

The funding has received the same treatment as it did last year, when we presented it—

That is my question—why should it receive the same treatment as it did last year? Why can it not just go in? If you know that you will get that £950,000 of funding, why is it not in the budget?

The funding could equally be presented in that way, but we have presented it consistently, in the same way as we did last year, as it is funding that arrives during the year rather than funding that we start the year with.

How often have you received that funding?

This will be the third and final year of the funding commitment.

Stewart Stevenson has a supplementary—

I am sorry—I think that Mr Harvie wants to answer my earlier question.

There is also the matter of how we spend money. It may assist the committee to understand the choices that are being made, regardless of what funding we have available for staffing. For the number of legal staff, the up-to-date figure is 533. The high point in the entirety of the service was in 2009-10, when we had 547 legal staff, so we are about 14 away from the all-time high. The number has been growing each year for the past three or four years.

On decisions in relation to front-line staff, the figure for our core staff grades of depute and senior depute was 285 in 2009, and now it is 354. Within the envelope that is available to us, choices are being made to ensure that we invest in staff who are in the courts.

Stewart Stevenson has a supplementary question.

My question is on a narrow technical point that relates to where Mr Ross started his questioning, which was on the relationship between the Lord Advocate and the Government. The Scotland Act 1998 provides for the appointment of members of the Government. Section 45 provides for the appointment of a First Minister, while section 47 is on the appointment of the people whom we now describe as cabinet secretaries but whom the act describes as ministers. The people who are appointed under section 49, whom the act describes as junior ministers, are not members of the Government. At no point does the act, in its provisions for the appointment of members of the Government, include the Lord Advocate. Am I correct in assuming that, in legal terms, you are an adviser to the Scottish Government as well as being head of the prosecution service, but you are not a member of the Scottish Government?

That is, in fact, incorrect. By statute, the law officers are members of the Scottish Government, in the same way as the Attorney General in England and Wales is a member of the United Kingdom Government. The Lord Advocate exercises what are known as retained functions as head of the system of prosecution and investigation of deaths. The Lord Advocate exercised those functions long before devolution, over many centuries. They are exercised by statute and constitutionally, independently of any other person. Those are the particular functions that we are here to discuss today.

So you are a man of two hats and two brains—and you leave some of them outside the door when you meet the Government as a member of the Government.

I am clear that, as head of the system of prosecution, and when I exercise my retained functions, the responsibilities rest with me alone.

Thank you for that clarification.

I thank the witnesses for their written evidence and opening remarks. I am glad that the Lord Advocate has picked up the clear message that the committee got, which is that there is no criticism whatever of the staff, whose high standards are appreciated.

I have a few questions for Mr Harvie. I pick up on Mr Ross’s point that the settlement of just under £1 million for the violence against women initiative is recurring. The paragraph in your submission that talks about that money concludes by saying:

“This means that whilst it looks as though our cash budget has decreased and expenditure on staff costs has reduced, in fact it has not.”

Will you address that?

That is in cash terms. In real terms, there is undoubtedly a decrease in revenue and a small decrease in capital. The submission refers to an overall figure of £4 million, and reference was also made to the depreciation sum. The reality is that we calculate that the real-terms impact on the funding that is available to the service is approximately £1.5 million in revenue and £100,000 in capital.

I was going to ask about your reference to “our expected depreciation profile”.

You say that you have been reviewing your medium-term financial strategy. Regardless of the settlement’s merits, is it in the scope of what you had considered?

It is within the scope of the various projections that we considered.

You also say:

“Some 7.5% of our budget is currently spent on mortuary and pathology costs.”

I do not know whether that is a misprint, because the figure seems astonishing. Is it correct?

Yes—it is millions of pounds.

You go on to talk about opportunities to reduce those costs. Are the Christie principles of collaborative working being fully examined in that regard?

They are being examined, which is why we highlighted in the submission that there will be opportunities in relation to that service provision.

I do not know whether you are aware that a petition has been brought to the Parliament by a woman in Moray who is concerned about mortuary facilities. You might be able to look at opportunities in that regard.

All such factors are part of our consideration of how we deal with contracts.

You also say:

“We have just appointed a new Director of Procurement”,

in the context of the re-letting of contracts and improving contract management, and you say that a telecoms contract has recently been re-let. What have the savings been from that?

We expect the new telecoms contract to save in excess of 15 per cent. It will also deal with the difficulties with the 08 number that the committee heard about from other witnesses. There will be an 03 number, which will enable members of the public and solicitors who have mobile packages to use their free minutes and so on and which will have the same overall cost as an 01 or 02 number.

Finally, you say:

“we expect that overall staff numbers will start to reduce”.

Will that include fiscal deputes?

It might, but we will seek to avoid that where possible. As I said to Mr Ross, choices are available to us about the staff profile. There have been quite dramatic changes in the past. In 2009, there were 39 senior civil servants in the organisation; the number is now down to 24—I use that simply for illustration. We must assess our options in the context of what demand might be and how we can best deal with it.

I am pleased that there will be no compulsory redundancies and that you hope to achieve savings through the digitisation of processes and through sheriff and jury reform.

I will ask about your long-term financial planning. Your submission talks about the medium term, but the Auditor General for Scotland emphasised the benefits of long-term financial planning. How realistic is it for you to do that at this stage?

10:30  

We are engaging in that exercise, which has been fruitful. I noted with interest the Auditor General’s evidence. It is fair to say that, having embarked on the exercise, we have found it extremely beneficial. We have had extremely significant assistance and advice from the Auditor General’s office and from our internal auditors and non-executives.

As part of the financial sustainability plan, a number of assumptions and risks and so on were identified for a variety of scenarios. We have tested them robustly, including with the internal and external auditors and with the non-executives, all of whom were positive about the approach that we are taking and have contributed to those exercises. We feel that we are in a significantly more robust position in the medium and long term.

When the committee took evidence from the Auditor General, there was debate about whether the value of such an approach reduces the further out we look. That is fair, but the key is continually to revisit the issue. I regard the approach as a really positive development that has certainly assisted us greatly in scenario planning. We will constantly revisit that in the months and years to come.

Liam McArthur wants to continue that line of questioning.

You have heard from a number of members about the evidence that we have received on the quality of the work that is done in the service. However, a constant refrain has been about the problems that are created by having such a large number of staff on short-term contracts. The Auditor General made the point that, to derive the most benefit from your investment in training and all the rest of it, that does not seem to be a sound strategy, albeit that she recognised that, as has been suggested in the evidence, some level of short-term contracts will probably be required to manage peaks and flows. Will you talk through in a little more detail what precisely is envisaged in workforce planning to allow you to move more staff away from short-term contracts?

That is a key development and, in a strange way, it was quite encouraging to hear that evidence because, as the Lord Advocate touched on, a number of the things that came out in evidence were matters that we had already identified and were working through. The workforce strategy recognised that the balance between permanent and fixed-term staff was a significant issue, for a variety of reasons. You rightly identify that one is to do with training and retraining costs, but a separate point is about the sense of cohesion in teams and about people knowing that those who they are working with will be there in the long term and that it is worth while not only training them but investing time and improving the culture.

I am personally determined that the balance will change dramatically. People will comment on the timing, but that is completely coincidental—it is just that the product of the planning is coming to fruition. I sent out a message earlier this week—in advance of Christmas, as was my intention—that indicated two things. The first related to the quite large percentage of staff who are on temporary promotion, which is an issue. In the first quarter of the next financial year, we will seek to address that by identifying the posts that are demonstrably permanent and seeking to fill them permanently at that grade. Separately and in addition, a similar exercise requires to be conducted in relation to administrative and legal staff. That is coming to fruition and we envisage that it will enable us to recruit, on a competitive basis, a significant number of permanent staff from within the existing pool.

I welcome what you say, because it goes some way towards addressing the concerns that we have heard in recent weeks. However, you talk about a dramatic change. How are you accommodating that against the backdrop of staff costs reducing in the next financial year, which Mr Ross explored with you? I presume that it will put additional stress on your staff budget, even if it gives you greater predictability.

It gives greater predictability. One benefit of the approach that we have taken is that it has given us an opportunity to scenario plan when we have the sort of settlement that we have. The reality is that we are already paying for the people, if you like, and they are making a significant contribution. The issue is about the impact that committing to making them permanent would have in the medium to longer term.

We have looked through the numbers of people who leave the service for other reasons, such as retirement or getting jobs elsewhere. The term “natural wastage” is used; it is a horrendous term, but you know what I mean. Given the figure for natural departures, if we made significant proportions of the temporary staff permanent, we would still be able to flex in accordance with the pressures that we have identified this year.

I am looking at the budget profile over recent years. We heard from the Auditor General a criticism—in the way that only she can provide it—that such work really should have been done a number of years back. Why are we seeing the decision to move to more permanent contracts and greater stability in the service now, when there is not a great deal of change in the budget? I presume that such decisions could have been taken two to three years ago at least.

Some changes have been made to the budget that have helped to inform the decision. There are also points about decisions having to be made. For example, there was additional funding a couple of years ago that has now been baselined in the budget and which gives us greater certainty. Beyond that, there is no doubt that we have reached a critical point at which this has become an issue. On the back of workforce planning, we have far greater confidence that we can now address the issue proactively, which is what we will do in the first quarter of the year.

Concern about the implications of the move to centralised marking has come up routinely in evidence. One argument in favour of it is the additional level of expertise that can be brought to bear in a more centralised system and another is the efficiencies that it can create in the service. The concerns that we have heard clearly show—to my mind—that what is in place at the moment appears not to be working. What is your view on the efficiencies—the savings—that the system allows you to generate within the budget? What would the financial implications be of going back to a system in which there is more localised input or marking?

I will make an introductory comment and let the Crown Agent deal with the more operational aspects of the question.

My view is that it is not acceptable today to have anything other than national standards and national criteria for a national prosecution service. National case-marking arrangements allow us to secure consistency in marking decisions across the country. The Crown Agent is better placed than I am to speak to the matter, but it is fair to say that marking being done away from the local area is not a new phenomenon, but it has become systematised in the national case-marking arrangements. The arrangements and systems that are in place can accommodate particular needs and local variations, but by approaching marking on a national basis, we can address the need for local variation systematically, if I can put it that way.

Does that not kick against the fact that individual judges and justices of the peace have always, and always will, come at issues from particular perspectives that will influence their conclusions? Even with national marking, there will still be variability in what courts conclude, if not necessarily in the measures that are applied. There is concern that there is a lack of understanding of the options that are available in particular cases because they have been centrally marked.

My understanding is that the systems that are in place can accommodate that and can provide the relevant information during marking. I am making the more fundamental point that it seems to be right for the national prosecution service to approach criminality consistently across Scotland. It is important that I say that—

We will come back to the issue in January, but the budgetary elements are relevant.

We will come back to the matter in January; we welcome the opportunity to discuss it in more detail then.

A fundamental point needs to be made at the start. There was not a binary situation in which individual cases were being marked in 40-odd offices across the country, then all of a sudden were being marked in national hubs. The reality is that centralised marking has existed in the service in a variety of forms for many years. Under the previous federation structure, on which I think the committee has heard some evidence, there were federation hubs, so the model that was created was a logical extension of that.

In some of the evidence, there has been a misconception that all of a sudden, as a result of the creation of national initial case processing, there was a loss of local contact. I will be happy to go into that in more detail in January, but NICP was carefully developed to ensure that localism is protected. There is a preponderance of diversion schemes across the country. That is a matter that we could helpfully discuss with the committee in January in the context of development of a national marking hub, taking into account what is available in local areas and the extent to which there is an issue with availability of options in particular areas.

From our perspective, one of the key benefits in terms of efficiencies is that we have an identifiable group of people who can be trained intensively when a change of policy is introduced—in relation to the prosecution policy review, for example. That targeted group of individuals will be responsible for the vast bulk of marking, which means that there will be no need to train larger numbers of staff so intensively. There are a variety of efficiencies, which relate not only to staff numbers but to the on-going costs of supporting that model.

As the committee has heard in evidence, NICP staff have done extraordinarily well with the new model, but we are not insisting that the model as currently defined cannot be refined. A beneficial aspect of the inquiry has been that it has looked at evidence on that, which will be fed in to improve the approach further.

The specific point that has been made in evidence is that central marking would dispose of a case in a certain way—it might involve payment of a fixed-penalty fine. The person might appear in court several times thereafter, having not paid that fixed-penalty fine, when local disposals, of which there was no awareness as a result of the case’s having been centrally marked, would more effectively have dealt with the situation. The budgetary position—the financial implication—is that people are turning up unnecessarily time and again at local courts because cases have not been dealt with properly. It has been indicated to the committee that that is because of lack of knowledge of referrals that could have been made. Have you taken that on board?

I heard that evidence and I have also seen the supporting evidence. Evidence was given that there is decreased use of diversion schemes, but when the supporting evidence was submitted it did not demonstrate that there had been a decrease—it suggested that the knowledge was still there. I think that it was the Sacro evidence that showed that the number of available options appears to have increased. Again, we can explore that in further detail in January.

On the availability of diversion schemes, I know that prosecutors across the country are, like me, enthused about suitable diversion schemes as a constructive way of dealing with criminality to avoid repetition. On when penalties are awarded, it has been suggested that people are getting repeated fixed-penalty notices or fiscal fines, however we have information on the figures that might assist the committee and which I am happy to provide. It is probably best that I do not go into the detail just now, but I think that we can provide the committee with some reassurance on the use of fixed-penalty notices or fiscal fines and the recovery rate.

10:45  

Does the amount of unpaid fines cause you any concern?

Eric McQueen previously gave evidence to the committee and said that the recovery rate is about 80 per cent. I think that the figure for court fines is slightly higher. Forgive me, but I do not have the evidence to hand.

What about in monetary terms?

In monetary terms?

How much is not collected?

It is 20 per cent, but I do not know what the monetary figure is.

Are we going into millions of pounds?

I do not know. I do not have the figure here, but I will get it for you.

That would be good to see. The figure of 80 per cent sounds good but, if there are millions being unpaid, that is money that could be going into the system.

Good morning. I apologise for my voice and will try not to croak too much. I have a further question about the savings that you plan to make from staff costs. Given that the huge legislative changes in the past few years have affected the way in which the Crown Office works, and that further legislative changes will also have an impact, are you confident that there will be no impact from the size of the savings that you have to make on the service that you provide, and that you will be able, within your budget, to train and support properly the staff that you have to carry out the services that they are expected to provide? Also, given that there will be an increase in specialist services and specialist courts, which adds another dimension, are you confident that you have enough budget—in the light of the savings that you will have to make?

I will make a couple of high-level observations, then ask the Crown Agent to comment specifically. The first point to make is that the service has absorbed remarkable changes over the course of my professional lifetime. I was an advocate depute when the service was dealing with the arrival of disclosure and the effects of the Salduz and Cadder cases. The service was at the forefront of recognising the needs of victims of crime and responding to them. It is therefore a service that has, in my professional lifetime, embraced and absorbed significant change. I have every reason to be confident that it will go on being able to adapt to change and to deal with the challenges that face it. That is a general observation about the capacity of the organisation and its approach to the changing environment.

Mary Fee is absolutely right that the world is becoming more specialist. Within the COPFS there are now specialist units that deal with a variety of different aspects of criminality. I think that Scotland was at the forefront in relation to sexual offending in setting up the national sex crimes unit. Specialism is something that the service has shown itself to be comfortable with, if I can put it that way.

As we look forward to future legislative change, we will have to judge each set of proposals on its own merits. There will be changes that will impose demands on the service. Particularly if one considers the broader potential for criminal justice reform and the work that is being done in the Scottish Courts and Tribunals Service’s evidence and procedure review, there might be might be changes that will have benefits for the public at large and which might alter the kind of work that the service needs to do. It is difficult to give a short answer to the question, other than to say that the service has shown itself to be able to absorb changes in the external environment and changes in legislation, and that I have confidence that it will continue to do so.

The Crown Agent might wish to add his own remarks.

I agree with Mary Fee about the importance of training. It might assist the committee if I say that we have increased by 75 per cent since 2011 the amount of money that we spend on training across a range of topics—not only in the specialisms to which the Lord Advocate referred but in other matters, including development of our managers and leaders in the organisation. We are investing in training.

On forthcoming legislation, we are in discussion with Scottish Government officials on preparation of the financial memorandum to the forthcoming domestic abuse bill, for example.

Is the budget for training increasing while the budget for staff costs is decreasing?

We have managed to increase the training budget by 75 per cent during the course of the five-year period that I mentioned. However, you will recall that we were also able to increase staff numbers in that period. In the context of the budget constraints that we have had to deal with over the past several years, we have been able to make some positive choices in relation to investing in training and staff, and we now have more than 1,600 full-time-equivalent staff. Again, if you look at the pattern over the past three to five years you will see that that is an increase that we have managed to achieve even in the context of the constraints to which we have been subject. It is about making intelligent choices with what is available to us.

My question has more or less been covered—it follows on from Mary Fee’s question. You have identified that you need to live within your current financial circumstances, and the funding cuts that are coming from the Westminster Government are well documented. On specialist areas, are you confident that you will be able to continue to develop the domestic violence agenda and continue to prosecute in the way that you have over the past period?

The short answer is yes. [Laughter.] I can elaborate on that for you.

Please do.

I am conscious that you might wish to discuss with us a number of issues that have been raised in the course of the evidence that you have taken during the inquiry—

I should have said that I am talking specifically about the funding that you get in relation to violence against women. Is it enough to maintain the current standard of prosecution?

As the Crown Agent said, we expect to have the same funding transferred in-year to support the work on violence against women. That is specific funding that is directed at ensuring that those cases are dealt with as expeditiously as possible. The figures support the view that the funding has been successful in that regard. I have no reason to believe that we will not continue to be able to do that.

I will expand on that and give a little more detail. We have funding for another year. It might assist the committee if I mention some of the tangible benefits that have resulted from the £2.4 million of funding each year to the COPFS and to the Scottish Courts and Tribunals Service. Part of the funding is allocated to the courts service; part of it is allocated to the COPFS, which has enabled us to recruit additional prosecutors and administrative staff to work specifically on violence against women.

Our efforts have involved a lot of excellent joint work with the courts service. The net result is that in the first two years the number of outstanding sheriff court trials dropped from 23,500 to 16,900, and in the JP courts the number dropped from 11,800 to just over 9,000—a collective reduction of just under 9,500 trials. In terms of courts that would not otherwise have been able to run during that period, there were 647 extra justice of the peace courts and more than 1,100 extra sheriff courts. Those are examples of what £2.4 million buys.

I will follow up on that without, I hope, straying too much into questions that may be more appropriate for our next panel. Will the focus on domestic violence—as well as the focus that you have just mentioned—help to reduce domestic violence and lead to a cultural change? I know that we are talking about the long term, but will that reduce the number of people who go to court for such offences, because we will have changed behaviour and attitudes towards those offences?

You are focusing very much on a policy question, which is for me to respond to. There are two or three points to make. First, domestic violence is an area of criminality that, for far too long, was not taken sufficiently seriously by the criminal justice system. Secondly, when I or the service prosecute a domestic abuse case, we prosecute it because a crime has been committed. I take the view that, where there is sufficient evidence in law, it is correct that there should be a strong presumption in favour of prosecuting such offending. That is because of the impact that that offending has on victims and other family members, particularly children. As you alluded to, it is also because, against the background of the way such offending was historically dealt with, it is important that the criminal justice system sends out a clear message about what is acceptable and, more important, what is not acceptable in today’s Scotland.

I will press you a little bit more on that, Lord Advocate. You say that cases are dealt with expeditiously and that there is a strong presumption in favour of prosecution. Surely that cannot be the case when, as the defence agents have said, there is a perception that the prioritisation of domestic abuse cases in the context of scarce resources has meant that money has sometimes been wasted on cases with little prospect of conviction at the expense of other summary cases. Clearly, if that were the case, that would not be in anyone’s interests. That would not make sense financially; it certainly would not make sense in emotional terms for the victim, the witnesses or, indeed, anyone involved.

All that is correct, if that were the case, convener. I want to be very clear. First, a prosecution should not be brought in relation to any case unless there is sufficient evidence in law. There have been suggestions in at least one witness’s evidence that that basic proposition is not one that is being adhered to. My starting point is that the strong presumption for prosecution presupposes that there is sufficient evidence in law.

11:00  

The second point that I would like to make is that, if one looks at the statistics on the domestic abuse cases that went to trial last year, one can see that a conviction was secured in 80 per cent of those cases. I do not think that it will be lost on the committee that those are cases that may be inherently difficult to prosecute. They are cases where, for reasons that will be intelligible, complainants who might initially engage with the system might become unwilling, or less willing, to give evidence.

Notwithstanding the difficulties in those particular types of cases, last year convictions were secured in 80 per cent of such cases that went to trial. That does not suggest to me that the kind of problem that you describe is causing the kind of systemic difficulties that the question that you asked, convener, might convey.

There will probably be more questions on that in January. My question was meant to look at the budgetary expense of summary cases, which brings me on to churn. Do you accept that there is churn in court and that it comes at a cost? How do we address it?

I certainly accept that, particularly in summary cases, there is churn. There are a variety of reasons for it. The fundamental answer is to look at systemic reform. I commend a reading of the Scottish Court Service’s “Evidence and Procedure Review Report” which sets out the vision that the court service has for summary justice reform. The Crown Office is actively engaged in that work with other criminal justice partners.

I will put to you what Derek Ogg, from the Faculty of Advocates, suggested, which is that the decision to make less use of precognitions, based on the lack of resources, could actually prolong cases, thus wasting resources.

There has been a change in the approach to precognition. It followed from the radical changes in the law on disclosure. The current policy is what is called purpose-driven precognition. In other words, rather than a precognition process in which the Crown Office interviews witnesses who have already given police statements, the decision to precognosce a witness should be based on the view that there is a particular need to precognosce a witness in addition to the police statements that have already been obtained and which are available to the accused and their defence agents.

Again, that is something that we will pursue in January. Is there a certain art to precognition that the police do not always have?

That might be something to pursue further in January. I understand the point that is being made, but if the question is whether the change was driven by financial considerations, I can say only that it predated my time. The Crown Agent may be able to say more about it, but my understanding is that it was a deliberate policy decision taken against the background of the radical change in practice that followed from the changes in the law of disclosure.

Mr Harvie, in answering, perhaps you could address whether, even if the decision was not taken for financial reasons, it is having a financial impact now.

It was not taken for financial reasons. As the Lord Advocate said, it was taken in relation to changes in disclosure law. Also, for good or bad, it reflected the realities of the way in which trials are conducted these days, particularly by what is colloquially known as trial by statement. Witness positions are now traditionally crystallised in police statements that can be put to witnesses, which precognitions cannot. One of the key issues was ensuring that we obtempered our very onerous and important disclosure obligations in a way that enabled the defence to have all the material and in a format that enabled them to put that to witnesses.

There were all sorts of positive reasons for going down the route that we have described. It is not an abandonment of precognition; it is about more focused precognition where we think that that precognition will add value. For example, in serious sexual offending cases, it is highly likely, if not nearly always the case, that that individual would be precognosced.

So far as the cost and the impact are concerned, those are completely intangible, because the way in which a trial is conducted has changed so dramatically since disclosure and particularly since the provision of those police statements. The value or otherwise of what a precognition may or may not have added is speculative.

I will put to you something quite tangible that we all saw when we went to the sheriff court, which was that many of the procurators fiscal did not have the information in front of them and were not prepared. Having precognitions would greatly help them to come to court, in the first instance, totally prepared with all the information that they need and therefore avoid the churn.

If you are talking about sheriff summary cases, there never was any precognition of witnesses in those. In sheriff and jury cases, there was some limited precognition; and, in High Court cases, traditionally, there was significantly more precognition.

In terms of perception and understanding about what was available, certainly when I started as a depute 20 years ago, when I was prosecuting in the summary courts I had the police report and such police statements as were available, and that remains the position in the summary courts.

I have a very brief supplementary question on churn, which the convener raised. I wonder whether it is possible to put a figure on the amount of resource that churn wastes. I apologise if there is something in our papers that I have not picked up, but is it possible to put a figure on that?

I am certainly going to pass that question to the Crown Agent.

The best figure that I have heard for the overall system is the £10 million in the Audit Scotland report on the working of the sheriff courts, which I think was published at the tail end of 2015.

I am talking specifically about churn, because that wastes a lot of time. Is that figure for churn?

That was the figure that Audit Scotland attributed to it; it was £10 million per annum for the entirety of the system.

Good morning. One of the common themes that has come up in the evidence that we have taken, particularly from victims of crime, has been the importance of support for victims and witnesses.

I was interested to see, in table 7.13 of the draft budget, that the budget for support for victims and witnesses will nearly triple to £15.8 million—an increase of £10.4 million. It is my understanding that some of that money will be allocated to third sector organisations that do such important work in that field, but I wondered whether you could comment on what impact you think that that increase will make to the service.

I will let the Crown Agent answer that, but perhaps I will introduce his response by affirming the importance, which you allude to, of providing appropriate support to victims.

My view is that, as prosecutors, we cannot do our job unless we give confidence to victims that they will be enabled to speak up through the justice system; that is an important part of the work that prosecutors do. We cannot provide all the support that victims need, because our primary obligation is to prosecute crime. That is perhaps an issue that we may have to come back to when we return to the committee in January. With that by way of a policy introduction, perhaps the Crown Agent can answer the specifics of the question.

First, I want to record my thanks to the VIA staff, who regularly deal with victims and witnesses in incredibly distressing circumstances. It is a particularly challenging role in the organisation.

I echo the Lord Advocate’s point, to take a system-wide perspective, that we want any individual who is involved in the system, whether as a witness, a victim or an accused, to be able to give of their best throughout the entire process. It is important that there are mechanisms in place to provide support for people in what I think we would all accept is an alien environment for many individuals.

However, as the Lord Advocate said, we need to address some issues at a system level. I would welcome discussion with the committee about the role of VIA and the role of the prosecutor in providing a level of support. That should include discussion of what level of support should be given and the extent to which support is required to be available consistently—I use that word advisedly—across the country to ensure that individuals who find themselves in the system are assisted to give of their best.

Just for information, with regard to the level of commitment from the COPFS in the area of support and advice, the committee will know that VIA is relatively new in the history of the COPFS. It was introduced only in 2004, and at that stage it was innovative and was one of the first initiatives in the world through which a prosecution service was offering a level of support, advice and information to victims. Of the 1,600 full-time equivalent staff in the COPFS, 103 or 104—approximately one in 16—are VIA support staff who engage in that activity on our behalf.

We are making specific choices about how we use funds. For example, we have been able to increase the head count for staff in bands C and D, who support victims through more serious criminality.

To be clear, will the extra funding go partially towards the recruitment of more VIA staff to support that work, or are those decisions still to be made?

No—the extra funding that is identified in other budget lines does not come to the COPFS. That will be for other service providers. That is why I am talking about the role of VIA in relation to the role of other service providers, and about the level of support that it would be appropriate constitutionally for a prosecution service to offer, while acknowledging beyond those parameters the understandable and legitimate expectations around the needs of victims and witnesses.

It is encouraging that that funding will be available, but it will not come directly to the COPFS. However, I hope that we will benefit, as everyone in society will benefit from investment in ensuring that individuals feel more supported as they go through that alien process.

That is understood—thank you for clarifying that point. I look forward to discussing in the new year the policy and the systemic potential for providing greater support for witnesses and victims.

You have answered my original question, Lord Advocate—it was on the conviction rates for domestic abuse cases, and I thank you for providing the figure.

Following on from Ben Macpherson’s line of questioning, I have a question about VIA and what you have said in evidence today. I have spoken to victims who have been through the service, and I can only imagine how disorientating it must be to try to navigate the system. Reports on VIA have not always been the most positive.

You said that the implementation of the 60 recommendations is under way; I am not expecting you to outline all the recommendations now. Nevertheless, which areas are you looking at in that regard, and how is the implementation progressing?

11:15  

The implementation is phased, and further recommendations will require to be implemented during the next calendar year.

One of the first elements is highlighted in the evidence. As part of our move back towards sheriffdom-focused local court delivery, a reframing of the VIA structure was required to accommodate that. Perhaps more significantly in light of recent legislative changes, the number of referrals that VIA has dealt with has gone up quite dramatically. That is referred to in the additional information that we provided to the committee at an earlier stage. Members will recall a series of fact sheets. Rather than going over the additional challenges that VIA faces, I refer members to those fact sheets for the details.

The approach involved identifying ways in which the processes could be simplified in order to accommodate the increase in demand for particular types of interaction while ensuring that those who require personal levels of support maintain them. It is about striking a balance between ensuring that matters to do with those who are deemed vulnerable and are therefore entitled to support, for example, are dealt with as expeditiously and effectively as possible and ensuring that there is a focus on those who require additional support.

Okay. Thank you very much. I have more questions about that, but it would probably be more appropriate to ask them in the next session.

I will bring in Rona Mackay before Douglas Ross to cover an aspect that we have not fully covered.

The presentation of Crown Office funding in the draft budget includes a breakdown by type of activity, such as staff costs. Can you provide us with a breakdown by area of work—by summary cases, solemn cases and case marking, for example? Can you highlight the funding that has been allotted to those areas?

We will be able to do that in more detail. The latest headline figures that we have for actual spend as opposed to projected spend are for 2014-15. I can give members the broad figures now, if that would help, but perhaps the convener would prefer us to follow up that question in writing.

It would be helpful if you did that.

An answer in writing would be fine.

We are getting to the end of the session, so questions and answers should be brief, please.

I have two final questions, the first of which is about the estate. You say in your submission that, of the non-staff costs, the estate cost is the highest. The only mention of the estate in the budget document relates to incorporating the carbon management plan in the estates strategy. You say in your submission that savings will be made there. By what percentage and value will you reduce your estate? Can you give further examples? I presume that you have not just targeted areas outwith the central belt, although your submission mentions only Dundee, Aberdeen and Perth. What is happening elsewhere in the country?

A number of options develop as each year progresses. For example, when there are lease breaks over the next four to five years, there will be opportunities to discuss and have choices about whether those leases should be renegotiated, whether a different venue should be identified and what the footprint requirement will be. We will seek to take those opportunities as we go along. Perth is the classic example of that. The estate and staff numbers footprint in Perth does not need to be as big as it currently is.

Have you set a target for the money that you should save in that period, or for the percentage of your estate that will be reduced?

I have not set a target because I have asked for an analysis of the options. The estate choices will be informed by some of the staffing choices, as well. That means that we will have a richer picture of information. However, I have not set a specific target for savings attached to the estate yet.

Finally, I have a question for the Lord Advocate about his direct dealings with the Cabinet Secretary for Finance and the Constitution on the budget. Obviously, we are very interested in our inquiry into the COPFS, and I think that you have both mentioned how interested you have been in it. Our evidence has received widespread publicity. What direct emphasis did you or the cabinet secretary place on the evidence that we have received in the inquiry when you discussed reducing the real-terms budget for the COPFS?

I do not think that it would be appropriate for me to go into the detail of discussions that I have with the cabinet secretary, although I can say that he is well aware of the inquiry.

In my opening questions, I alluded to evidence highlighting concerns over resources. Can you say whether that evidence was fully explored before the cabinet secretary, in direct dealings with you, took the decision to reduce the budget for the Crown Office and Procurator Fiscal Service in real terms?

As I said, I do not think that it would be right for me to go into the discussions that I have with the cabinet secretary.

I have just a tiny wee point. It appeared to be suggested that fines come back to benefit the justice system. I cannot quite recall where they go. Am I correct in saying that they go to the Treasury?

Fines go to the Treasury but other items go to other places.

I realise that the proceeds of crime, for example, are covered by a different jurisdiction and that a capped amount is retained in Scotland. Whether fines are paid is quite immaterial to funding for the criminal justice system in Scotland. That is all that I wanted to know—thank you.

I realised that as soon as you said it, having looked at the matter in some detail and having seen the figure for outstanding fines, which is not insubstantial. I suppose that the point is that there is a continuing churn with non-payment, and there is certainly a cost attached to that.

There are only two more questions—they are related—that we have not covered yet.

The committee has been told that the preparation of court cases is not a job that can be done in normal office hours, with prosecutors regularly taking work home to avoid being ill prepared. Are you aware of that situation? Can you also address the staff organisations’ concerns about the impact of work pressures on staff morale and sickness levels? What is being done about that? It clearly has a huge cost implication as well as an emotional implication.

Conscious as I am of the pressure of time, I will make a couple of observations and will let the Crown Agent answer in detail.

I reiterate the point that a number of people have made about the quality of the staff at the Crown Office. I trust in the judgment and professionalism of all the staff who prosecute on my behalf, although I recognise that the work of a prosecutor is challenging—it is a challenging job.

On morale, I was heartened to see that, in the most recent civil service survey of the Crown Office, all the numbers are moving in the right direction, although there is still work to be done. For example, 56 per cent of staff reported that they have an acceptable workload, which is a 15 per cent improvement on the previous survey and only 2 per cent below the civil service average. Although one would like to see that figure rise, it is going firmly in the right direction.

When was the previous survey carried out? What timeframe are we talking about?

I think that we are talking about a one-year timeframe.

Furthermore, 67 per cent of staff reported that they have a good work-life balance, which is up 11 per cent from last year and is the same as the civil service average, and 60 per cent of staff reported that they wanted to stay working for the COPFS for at least the next three years, which is up 6 per cent, 17 per cent above the civil service average and 9 per cent above the figure for civil service high performers. Those figures are encouraging.

However, every person in the fiscal service has a story to tell. The percentages may be encouraging, but do you accept that there is still an issue to be addressed?

Of course, and one of the jobs that I have as the new head of the service is to reinforce to staff the value that I place on the work that they do, the trust that I have in them and the importance of the professionalism and dedication that they show. I do not know whether the Crown Agent would like to add anything.

Do you have anything to add, Mr Harvie?

Quite a lot of detail has been given, so it is difficult to add to that. In so far as I can do so, however, I add that the other thing to bear in mind is that we can partly address the matter at a system level. For example, if we look across the sheriff courts, we see that, in October, the number of appointments or places that prosecutors had to be on any given day varied between 85 and 120. We are working alongside the Scottish Courts and Tribunals Service to try to prevent peaks in demand, which create an impact and put pressure on the entirety of the system, including on prosecutors.

The other way that we are seeking to mitigate that—I refer back to an answer that I gave earlier—is to focus on those who appear in the courts most regularly. If we look back at the figures for deputes and senior deputes, we see that they were 285 in 2009, but they are 354 in 2016, which is an increase of 69. We are trying to make choices to allow as much flexibility as is possible within the constraints that are applied.

And you are always mindful of work-life balance.

Absolutely. It was encouraging to see those results in the survey, but I am all too conscious that they represent just a step on a journey and that there is a considerable way to go. Perhaps, when we next meet, we will have an opportunity to discuss in more detail the fair futures work that we are doing, particularly in and around wellbeing. The most recent staff absence figures showed a slight drop, which is encouraging, but I take nothing from that. The figures are still far too high.

Okay. Thank you very much. We have had a comprehensive discussion. We look forward to seeing you again in January.

I suspend the meeting to allow a change of witnesses.

11:27 Meeting suspended.  

11:31 On resuming—