Justice Committee

Meeting date: Tuesday, December 20, 2016

Official Report 552KB pdf

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Crown Office and Procurator Fiscal Service

Item 3 is our inquiry into the role and purpose of the COPFS. This is our seventh week of evidence taking. I welcome Michelle Macleod, who is Her Majesty’s chief inspector of prosecution in Scotland, and Dawn Lewington, who is assistant inspector. I refer members to paper 3, which is the note by the clerk, and paper 4, which is a private briefing from the Scottish Parliament information centre. We also have a written submission from the chief inspector, which is much appreciated.

Ms Macleod, how long is your term of office?

It is an appointment of three years, with an option for that to be extended. I was fortunate enough to have the term extended, so I have about two and a half more years until the conclusion of my term.

Thank you. I invite questions from members.

I would like to hear more about the work that you are currently involved in, chief inspector, how you report back and how the information gets out to the public. One of my main concerns, having seen the evidence that the committee has received, is that few people seem to be aware of your work. How do you intend to tackle that problem?

I have looked at the submissions to the inquiry and listened to the evidence, and I have to accept that there seems to be an issue with awareness of the Inspectorate of Prosecution in Scotland and with the inspectorate’s profile.

We have agreement that we may look at any part of the operation of the COPFS, with the purpose of enhancing and promoting excellence in the service for the public in Scotland. I act entirely independently in preparing and publishing reports, but the Lord Advocate can require me to undertake a review or inspection in relation to a particular subject. I can also choose to undertake a review

We look at areas where we perceive there to be the most risk, in terms of reputational damage, resourcing—the committee has been discussing that this morning—and the effective prosecution of crime. We take account of a number of factors when we analyse risk, such as current trends, performance data and the views of stakeholders in the justice board and the criminal justice system generally.

We publish all our reports on our dedicated website, and there is a press release through Scottish Government comms. We get some interest in our reports, although some reports can be quite technical and legalistic, which might limit the interest that we get. For our last report into fatal accident inquiries, we interviewed 21 people from 21 organisations; in addition to COPFS staff, we interviewed defence solicitors and people from the shrieval bench.

People in certain fields are more familiar with our work than others are, and there are some surprising submissions, because we have done a lot of work with individual solicitors who work in different areas. The bar associations might not have a wide appreciation of what we do, but we try to engage with as many people in the criminal justice system as possible. Taking account of the submissions that are made, we have looked at how we can raise our profile and we have engaged with social media. We will put our reports out on social media in future. I will actively look at how I can raise the profile of the inspectorate by using that mechanism.

You asked about our current programme. We are currently working on our follow-up report on the management of time limits. When I took up my post, I introduced a rolling programme of follow-up reports—that approach has been identified as good practice for inspectorates—and we have continued with that programme.

We will embark on a follow-up report on our complaints handling and feedback report early next year. As part of that, we will look at the right of review for victims, which was introduced in July 2015. I feel that ensuring that that right has been properly implemented and that victims actually get the right that the legislation provided for fits in quite well with the complaints handling and feedback report. That work will be incorporated as a new part of the report.

Our main work, which we are scoping at present, is on the investigation and prosecution of sexual offences, which we have identified as a high-risk area. That will be the next substantive report that we embark on.

If, in undertaking investigations, you have recommendations for the COPFS, how do you work with the COPFS to ensure that those recommendations are implemented? What obligation is the COPFS under to implement the recommendations that you propose?

There is no statutory obligation, but the purpose of the inspectorate has a lot in common with the purpose of the COPFS, in that we want to improve and to drive up standards. In my time as chief inspector, I have completed four substantive reports, and all the recommendations in each of those reports have been accepted by the COPFS and the Lord Advocate. As I said, we also do follow-up reports. Following the publication of a report, the Crown Office tends to pull together an action plan, led by a senior civil servant. During the report process, I share my emerging findings and I discuss issues that we come across in the course of our inspection. I feel that that helps people to understand our final conclusions.

I have had no difficulty with the Crown Office accepting our recommendations, accepting the purpose of the recommendations or accepting what we are trying to achieve with the recommendations. That is probably not surprising, given that we both want to improve the service. If we identify a gap or a perceived risk, it would be quite dangerous for a Lord Advocate or a Crown Agent to simply fly in the face of that, unless there was another approach that they wanted to employ to remedy that mischief.

You said in your previous answer that the Lord Advocate can ask you to investigate specific areas or issues. I would be interested to hear some examples of that.

The review of sexual offences will be my next substantive report. The former Lord Advocate asked me to look at organ retention as a priority, following public concern regarding the discovery of organs that had been retained without the nearest relatives being notified—I think that there were statements made to Parliament about that. When I took up my post, he was very anxious that I took an early look at that.

Our first report was therefore on organ retention, but it did not just address the system that had been in place to ensure that procedures were robust and to avoid such a thing happening again. As part of the inspection, it became apparent that, due to medical advances, there was no need—in all but exceptional cases—to retain organs. We highlighted that fact, which meant that it is now rare and exceptional for a whole organ to be retained. We did two audits to provide more reassurance for the Lord Advocate, and those audits found only one further case in which there had been temporary retention. All the procedures had been undertaken and the families had been notified. That was our first report.

Our second report was also requested by the Lord Advocate. I have to say that, if the Lord Advocate has identified something as a risk, that generally chimes with people in the COPFS and with me. The second report was on the management of time limits. That report is now one of the drivers for us turning to look at the sexual crimes review.

I was conscious that those were technical reports that focused on process, and I decided that I would like to do a customer-focused report. There had not been an inspection of complaints handling, feedback and customer service, so I undertook that work. Following that, I undertook the fatal accident inquiries report, again in conjunction with and after discussion with the Lord Advocate. We had identified that there was no real evidence base for understanding what was causing delays in FAIs. There were a lot of anecdotal assumptions, but no evidence base, so we did a case review to give some reassurance on an evidential basis.

In light of the time limits and the increasing business in the High Court, 70 per cent of which we believe is sexual crimes, we have identified sexual offences as the next area that we want to look at, and I have instigated that work and am scoping the review at present.

We have heard of a couple of instances of the fiscal service asking you to look at something. I recognise the value of the service being able to ask you to do that, but is there a risk that, if it happens too often, your independent ability to decide your work programme could be overwhelmed?

The findings and recommendations are solely attributable to me, so I am independent in relation to the outcome of any report, even if it was the Lord Advocate who requested us to look at the issue. It is not uncommon for there to be provision for ministers to ask an inspectorate to look at significant areas of risk. The Attorney General in England and Wales can ask HM Crown Prosecution Service Inspectorate to look at particular areas, just as the cabinet secretary can ask Her Majesty’s inspectorate of constabulary in Scotland for an investigation into aspects of policing or the Scottish Police Authority’s work. Given that ministers are accountable to Parliament, it is understandable that there should be an independent body from which they can seek reassurance or an independent review of a particular aspect of the COPFS that is causing some concern, whether that is a public matter or something that has arisen from a particular case.

I agree that the balance needs to be correct. We are a small inspectorate, so we do not have the capacity to do a great number of reports. We want to pick carefully the subjects that we decide to inspect, to ensure that we achieve the greatest value for the service and for Scotland. I return to my point that, if an area is causing concern for the Lord Advocate, for key stakeholders or for the justice board, we usually find that our views coincide. I was very happy to consider all the areas that we were asked to review, as I felt that they were significant areas where we needed a proper review and examination of the subject.

I would like to follow up on some points that Mairi Evans made. I am slightly worried that you are talking about getting on social media to raise awareness. Your office has been established for 13 years. It was established in December 2003.

Yes.

11:45  

It was established to

“introduce a measure of accountability, which is essential for public confidence”.

I will pick out a few examples from the evidence that the committee has received. The Scottish Borders Rape Crisis Centre stated:

“I have no awareness of IPS.”

The Scottish Police Federation said:

“The Scottish Police Federation is not aware of the IPS and cannot comment on its resources or effectiveness.”

An individual witness to the committee said:

“I have never heard of the Inspectorate of Prosecution.”

Even more worryingly, the Sheriffs Association said:

“We do not receive information about the IPS or its practices.”

I do not believe that a Twitter handle is going to overcome the problems of being in existence for over a decade but not being known by the legal profession in which you operate.

I have been in post for three and a half years—

I am speaking about the role of the IPS, not about you as an individual.

I fully accept that. I was making the point that we have listened to some of the feedback and we will explore different ways of raising our profile. We circulate reports to everybody who contributes to them and to anyone who we think has an interest in the criminal justice arena.

Does the Sheriffs Association have an interest?

Undoubtedly. If it is not on our distribution list, that is a fault that we will look at. We had contributions from sheriffs across Scotland to our two most recent reports, on FAIs and the management of time limits. We speak to sheriffs, defence agents and, as you would expect, any stakeholder who has an interest.

As I have advised the committee, we are about to embark on the sexual offences review. We will definitely engage with and seek feedback from many of the stakeholders who have already given evidence to the committee. Although some have said that they do not have much awareness of us, we have had wide contacts. At any event that I attend, I speak to Scottish Women’s Aid and the other people there. We see Police Scotland in just about every one of our inspections in some capacity. We saw a lot of people in relation to police work when we reviewed FAIs and we have started to speak to key stakeholders and the police about the scoping of our sexual offences review.

It is disappointing that there seems to be a lack of awareness of us, and we take that seriously. We will look at whether we have the right distribution list and where we might be missing a trick. It is not just about social media. We will ensure that our reports get to the right people who can help us to raise awareness of the organisation.

You have two full-time inspectors. Why do you feel that they have to be seconded from the COPFS?

They do not necessarily have to be seconded from the COPFS. During the inspection of complaints handling and feedback, I recruited two associate inspectors. One had a police background and one had a health sector background. Clearly, for that inspection, there was less focus on legal issues and less of a requirement for inspectors to have a prosecutorial background; it was about customer focus. The associate inspectors came from a different organisational background, and that provided a very helpful perspective.

However, having secondees from the prosecution service also brings direct benefits, as they have the legal knowledge of the prosecution service. When we are looking at a subject such as the management of time limits, which is technical and legalistic and raises a lot of legal points, it is helpful to have colleagues in the team who have a prosecution background.

There are three different information technology systems in the COPFS in addition to the management information system, so having seconded deputes who know how to use the systems is very important. It allows us to interrogate the systems and it minimises the disruption to the COPFS, because we can go in and see how many cases of a particular type there are, access the files and download papers. With systems becoming much more electronic, we do not have to trouble fiscals’ offices to get hard-copy papers in most cases, although it is necessary sometimes.

The inspectorate allows the seconded people to acquire skill sets that they perhaps would not gain doing day-to-day prosecution work. They can then take that back and, I hope, enhance their development and their work in the COPFS.

Depending on the subject matter, it is not necessary for a person to be seconded, but I need a period of continuity when people come in, so it tends to be easier—

You will understand my concern that you started off by saying that people do not have to have that background and do not have to be seconded from the COPFS, yet your whole answer said how good it is that they are seconded from the COPFS. I am now wondering whether, when their period is finished, they will just be replaced by other people from the COPFS. You have spoken about the benefits, but what are the risks? They are investigating and scrutinising a body that they will return to work in, and surely that can be seen as a risk.

As I pointed out, the findings and recommendations are solely attributable to me, and I am an independent person, so—

Sorry, but you have an extremely small team. There is you, on four days a week, and you have an assistant. You have three investigators, one of whom is part time, so you have only two full-time investigators and they are from the COPFS. Although your name might be printed at the bottom of the reports, with a team that size, it would not take a genius to work out where the findings of investigations have come from.

Obviously, with a team that size, we all have to play a critical part but, at the end of the day, when I make recommendations and set out findings, if any issue is raised with them, I will discuss that with the COPFS or the Lord Advocate. As I said, it is possible to recruit associate inspectors, perhaps on a temporary basis, if the subject matter lends itself to that. For example, in more specialist areas such as economic or IT crime, I might have to recruit a financial specialist or IT expertise to help with an inspection.

Since I took up the post, I have looked at different models for staffing the inspectorate. That is why I recruited the two associate inspectors. However, it takes a bit of time for people to come in and get up to speed on how to do inspection work. If I keep turning over staff, that leads to inefficiencies. I am trying to get the right balance for a small inspectorate. We have seconded the current two inspectors for a two-year period. Once that finishes, depending on our future programme, I may look to other avenues, such as the Scottish Government, to recruit inspectors. I am aware that HMICS has a more varied background, but it has a bigger team.

That has been the pattern, but it is not fixed in stone. As I said, I have already tried different models and we will explore other possible models.

I want to continue your discussion with Mairi Evans and Stewart Stevenson about the Lord Advocate’s involvement, although my question is not so much on the issue of directing inquiries, which you have covered. Am I correct in thinking that the Lord Advocate is presented with all reports in draft form?

No. The annual report is presented in a draft form to the Lord Advocate.

Right—sorry. If he gets your annual report and sits down and reads it and does not like something in it and he says, “Would you mind taking that out?”, are you in a difficult position? Would you change something in your draft annual report, which will then be laid before Parliament, given that the Lord Advocate’s office is also your employer?

That has never happened with the three annual reports that I have done.

No, but it is useful to tease that out.

The annual report is a factual summary of the work that has been done and it is not particularly controversial.

Maybe that is why it is not controversial.

Well, it is more factual.

With our substantive reports, as I say, we try to share emerging findings with the key players when we are doing those reports and, at their conclusion, they are given to the Crown Office for any comments on factual accuracy, and only on that. I give the Crown Office a period of time to read through a report and it will advise me if it thinks that there are any issues of factual accuracy. If there are, I would obviously—

Can you understand why there could be a conception—or a misconception—that there is not enough of a division between your office and the Lord Advocate’s office? He appoints you, agrees to reappoint you and agrees your terms, and finally you present to him a draft report for him to then present to ministers and members of Parliament. He is allowed to comment on that report, although that may never have happened. The fact that you said that it was a fairly generic factual document suggests that it could go into greater detail and depth if there was more of a division between your office and the Lord Advocate’s office.

The more substantive reports, which follow an inspection that we have done, are the ones in which we make criticisms of the COPFS, identify risks and identify a need for a service improvement.

So the annual report that comes to MSPs and ministers contains no criticisms of the COPFS.

It contains a summary and a link to the reports that have a more hard-hitting purpose, in the sense that they are the reports that we hope will make a difference. The annual report is a summary of the reports that we have done. Its purpose is to inform the public and MSPs of the reports and it contains links to them and the work that we have done in the year, which is the important part. It also allows me an opportunity to explain the direction in which the inspectorate is going, and it contains factual information about the role of the inspectorate.

I can speak only from my experience and say that there is no suggestion of anyone influencing or changing any of my recommendations or findings; that has never happened.

I should say that my question is not about the current office-holders. However, it is not just me who is asking this question. The Law Society of Scotland raised a similar concern in its submission to the inquiry.

My final question is on the example that you give in paragraphs 18 and 19 of your submission. You say that you were looking at an issue that politicians and people in communities have raised: prisoners with mental health problems. You thought that it would be a good idea to look into that with HMICS. At the end of all that, you identified that there were too many difficulties in identifying a cohort of prisoners. I find it disappointing that that has been pushed aside—or that, as you say, there are significant delays. How long did the process take? Why should you and your office face those difficulties while trying to improve the justice system? It was troubling to read that.

The scoping period in which we worked with HMICS was probably about two to three months. We met substantial numbers of organisations and we looked at the issue because we were aware that it was a priority for many people in the Parliament. The justice board raised the issue with us and HMICS to see whether we could undertake some kind of inspection. I was very keen to undertake an inspection in this area, for a number of obvious reasons.

We also wanted to do it for the police, because it is a criminal justice issue. It is not just about the prosecution service and the alternatives that it can offer. It is about what happens before someone even comes into the system and what options are available to the police.

We discovered a myriad of different pilots and innovations. In terms of the fiscals, we did a short but relatively comprehensive study of diversion schemes and we looked at possible diversions. I am going slightly off-subject here, but we found that there was not a level playing field and there was a need for a more consistent approach to having diversion schemes available throughout Scotland. The provision was patchy rather than coherent.

The difficulty was that the criminal justice system in Scotland tends to be crime centric. The information that is provided in police reports is about the type of crime. We can identify that the crime was knife crime or domestic abuse, but there is less information about the offender. The system is not offender centric. At the end of the process, we produced a strategic paper to help to inform the justice board of the gaps that we had identified. We would be happy to go back and look at whether those gaps can be rectified so that we can identify a cohort and see what works, what does not work and where the advantages are.

12:00  

You say at the end of paragraph 19 that the issue of prisoners with mental health issues

“will be re-visited as part of IPS’ future work programme”,

which suggests that you have overcome some of the problems. Were there problems because you tried to do the work alongside HMICS? Why were you unable to do the joint investigation that you started off wanting to do? Will your ultimate investigation be poorer for that?

The gaps were not within our gift. The work that we identified has now been progressed by Police Scotland, which is working with other persons in the Scottish Government and the justice board to take forward some of the issues that we identified in our strategic plan.

Information about people who have mental health issues is simply not recorded systematically, and Police Scotland’s databases were not sophisticated enough to allow us to identify persons. The justice board has been talking about the issue and is considering more offender-centric methods of recording crime. That was what we flagged up. We were very disappointed. I have a paper that I can show the committee that demonstrates all the different options that we tried in order to find a robust sample.

The criminal justice board is keen for us to go back and do this—with or without HMICS, although obviously it makes more sense to do it with HMICS. Once those problems have been overcome, we will look at it. I can provide the committee with some background information on the different areas that we looked at. We were unable to get enough data to allow us to do something that would add value. At the end of the day, we want our findings to be evidence based. That was my problem—there was not enough information to allow us to make evidence-based findings.

Liam McArthur, do you have a supplementary question or is it a substantive one?

It is a supplementary on this issue. I have another question, which I will be happy to come back to.

I will bring you in after Stewart Stevenson.

I want briefly to nail down the issue of where you draw your staff from. I use my personal experience and a phrase that was written in my annual appraisal in 1971, which said:

“Mr Stevenson is excellent at solving problems, especially when he creates them.”

Does that exactly capture why it is right that we have people from the fiscal service as part of the inspectorate? They will best understand where the bodies lie.

There is an element of truth in that. You sometimes need to know the questions to ask. If you do not know something, it makes it difficult to have an in-depth examination.

It would be good if the answers were a little more brief, without curtailing anything.

I will not comment on Stewart Stevenson’s past employment appraisals.

There are lots more.

I am sure that there are.

Under the Criminal Proceedings etc (Reform) (Scotland) Act 2007, the inspector is appointed by the Lord Advocate. We have already touched on the extent to which the Lord Advocate can invite the inspector to look at particular issues and we have discussed the extent to which the relationship with the COPFS is close in terms of where you derive your staffing from. We have also touched on the lack of awareness. Does that not reinforce the point made by the Law Society of Scotland that we need more individuals involved in the inspectorate who are not procurators fiscal or employees of the COPFS?

Clearly, there are issues in the COPFS, and we will come on to those substantive issues, but at the moment no one—whether representatives of sheriffs, the Law Society of Scotland or victims’ groups—is seeing the inspectorate as the route through which those issues are best addressed.

I should probably have mentioned that the position of chief inspector is advertised nationally and is open to anybody who has the relevant qualifications and skills; you do not have to be a prosecutor to apply to be the chief inspector. The process is open and transparent, involving an assessment centre and an interview panel. Following that, a recommendation is made to the Lord Advocate so—

But what about what we have heard about the issues in relation to transparency and some of the concerns around independence? I take the point that those who will know where the bodies are buried are those with direct experience, but we have heard quite a lot of evidence in recent weeks about others who have an understanding of how the COPFS works and very clear views about how it could be made to work better but who would not necessarily suffer from the same perception, or misconception, that they have a dog in the race—that they owe some allegiance to the COPFS. They would help to address the point about independence and might also raise awareness of what the inspectorate does among the wider stakeholders from whom we have been hearing weekly during our inquiry.

As I said, it is open to anybody to apply if they have the relevant qualifications. I went through the process and was appointed, but I expect that other people were in the process who may not have come from a prosecutorial background. The process is undertaken by the Scottish Government and then, as I say, a recommendation is made.

I have alluded to some of the benefits of having been a prosecutor—you know the right questions to ask and the issues that cause difficulty and, when somebody says that High Court business is 70 per cent, you have an understanding of what that really feels like and how it can be managed.

I take the point about the level of awareness of the inspectorate’s work. As I say, we are quite a small, compact inspectorate and we do not produce as many reports as some of the other inspectorates because of that. However, we engage with stakeholders relative to the subject matter. The sexual offences review is probably one of the biggest reviews that we will do for some time. We will be engaging with a number of people who have contributed to the committee’s COPFS inquiry. We are very aware of some of the issues that have been raised in this inquiry from our other reports, so we have the benefit of taking into account, for example, the issue that arose through the complaints handling review about a lack of customer focus, which has been mentioned in submissions to the committee. We will look at victim representation and disclosure of sensitive personal records and, again, we will liaise with various stakeholders who gave evidence to the committee on that.

This is a wider-ranging subject with a lot of different facets to it. I hope that our looking at it will go some way towards heightening awareness. However, I think that having the experience and the knowledge is sometimes what enables us to get under the surface of some of the issues. I am not saying that it cannot be done by other—

I understand that there is value in having the experience and a knowledge of how it works but that does not necessarily give people confidence in the challenge function around how things can be made to work better or the option to adopt an entirely different approach to deliver the objectives.

In a sense, the concern is that you understand the mechanics and how it ought to operate because of your intimate experience of it, but you do not necessarily have an investment in making it work differently and better.

I will just point out that there is no reason why, as well as Ms Macleod answering, Ms Lewington cannot also offer her views as the assistant inspector if she wants to.

Thank you, convener.

If I may, I will briefly go back to the organ retention report. When we were looking at that issue, there was significant public concern about it. The overwhelming feedback from discussions with people was to put in place an almost overly bureaucratic system, because people were nervous about the issue and they felt that that was the best way to deal with it.

We went out and gained an objective overview of what happened. We spoke to pathologists and realised that, actually, there was no need to take organs, although that had not necessarily been highlighted within the fiscal service and with the appropriate bodies.

We turned that on its head, and the report advocated a streamlined system whereby organs would be retained only in exceptional cases, with a mandatory reconciliation between the service providers and the COPFS that addressed the particular problem. Rather than throwing paper and bureaucracy at it, we looked at the simplest possible approach.

My prosecution background did not really apply in coming up with that decision. I thought that it was the best way forward and the report was accepted in its entirety, despite it not being what was anticipated or envisaged in the first instance.

Another example is—

Can I stop you there? I am conscious of the time.

Yes—sorry.

Is the short answer to Liam McArthur’s question that you will look at widening the membership beyond the prosecution service? It certainly seems to us that some of the best evidence that we have had has been from defence solicitors, which is encouraging.

I am conscious that you have not commented yet, Ms Lewington. Would you like to add something?

I am relatively new to the inspectorate as I have been in post for only about six months, although that is against a background of being a fiscal or a depute for some 22 years. If it assists the committee at all, I can say from my personal experience that I felt quite a difference when I moved into this role. It caused me to step back and gave me more objectivity, and that came naturally.

The inspectorate has some of the same goals as the COPFS, as we all want to improve the service for the public and for staff—some of the issues that have arisen are staff issues. However, there are different functions and there is a separation. That is certainly clear to me from my experience so far.

Thank you. Ben Macpherson is next, to be followed by Rona Mackay.

The points that I was looking to raise were covered in the answer to Douglas Ross about paragraphs 18 and 19, convener. I, too, will be interested to see the background documentation on that, and I look forward to reading it.

Chief inspector, have any concerns been raised with you regarding how the Crown Office and Procurator Fiscal Service handles domestic abuse cases? Do you agree that there is a culture of zero tolerance and that there is some pressure to prosecute, perhaps including in cases where there is a lack of evidence?

We have considered domestic abuse as a possible area for inspection, but we are aware that it is already monitored by a number of parties. The Auditor General spoke about Audit Scotland’s role in looking at performance and the value for money of cases proceeding through court. I did not hear all of the Lord Advocate’s evidence this morning, but I know that he has a robust policy on domestic abuse and that if there is sufficient evidence, there is a presumption that there will be proceedings.

It is not for me to stray into policy areas. All that I would say in that regard is that prosecution policy is a legitimate tool to try to change behaviours. We have seen it work in the past with knife crime, drink driving and hate crime.

Assistant Chief Constable Higgins recently told the committee in evidence that 80 per cent of the cases that the police report to the fiscal result in a conviction. That high percentage suggests that the decision making is pretty spot on. Given the number of people who are monitoring domestic abuse, we felt that we could probably add less value in that regard than if we looked at the investigation and prosecution of sexual offences, where there are a number of issues that we would like to explore.

We have had the issue on our radar. We are conscious of all the discussions that have taken place and we have been listening to the evidence to the committee.

I do not know whether the Lord Advocate mentioned it today, but there is a prosecution code that prosecutors work to, and no case should be taken without sufficient evidence. That was borne out by some of the Lord Advocate’s evidence, and he has indicated that he is keen to place trust and faith in prosecutors.

12:15  

Are you happy with the independent review panel’s position on domestic abuse and sexual crimes?

The independent review panel is relatively new to the COPFS. As part of our discussions with the Crown Office, we look to see where it adds value and at continuous improvement. We were quite impressed by the concept of the review panel in improving the openness and transparency of decision making.

I have not sat on the review panel and I have not seen its paperwork, but we will probably see the benefit of its work when we carry out our sexual offences review and see how it works in practice.

My questions follow on quite nicely from my colleague’s question. Your submission mentions that you have recently embarked on a review of the investigation and prosecution of sexual crimes. The Crown Office is providing more services in specialist areas. First, do you intend to look at any of the other specialisms? Secondly, do you have any concerns that the increasing use of specialist courts and services dilutes the Crown Office’s core function?

There have probably been specialisms in sexual offences since the national sexual crimes unit was set up in 2009. It was one of the first areas to attract specialist criteria, and all the deputes that are required to be involved in work relating to sexual offences require accreditation, special training and so on.

The committee will be aware that the Crown Office has recently restructured—yet again. We are looking at the High Court’s work on sexual offences. The review will incorporate how the functional hubs are working under the new structures. We will also look at the governance arrangements that have come in with the new structure and at the new teams that deal with the offences. Therefore, we will look at the specialist role a bit more widely and how it adds value to cases at each stage of the proceedings.

I caught the end of the Crown Agent and Lord Advocate’s evidence. Clearly, in certain cases, having a specialist who understands the dynamics of the different aspects of domestic abuse and sexual offending is extremely important. We will look at the NSCU as part of the review to see how it fits into the wider scheme of specialisms.

On the general Procurator Fiscal Service, I have no input into the budget allocation or its prioritisation by the COPFS. All that I can do is, when I look at a particular area, to identify where I see a training or staff need or some other measure that needs to be put in place. For example, in relation to FAIs, we came across the frustration that many nearest relatives experience because there is no continuity—there is no single person to take them through the process from the beginning to the end. We made a recommendation on that, which has been accepted, and we acknowledge the resourcing implications for the COPFS.

We make comments on the resourcing of individual areas, but I have no input into the prioritisation of the overall budget. It is more Audit Scotland’s role to look at financial sustainability.

What is the timescale for the review that you have recently started?

We are about to conclude the scoping exercise, which will allow us to plan the timescales. At the moment, we are considering the sample size for the case review that we want to do. Once we have decided that, that will inform how long the review will take. I can certainly provide information on timescales to the committee once we have reached a conclusion.

Chief inspector, why have senior managers become invisible? I am referring to the comments in your annual report.

The annual report highlighted concerns, flagged up by COPFS staff, that came out of the consultation exercise in the shaping the future programme that the COPFS initiated. The concerns were about a lack of visibility of managers and about resilience. The ring fencing of sheriff and jury and summary business meant that there was less flexibility and resilience when there were particular staff shortages for a particular reason. Those things were consequences of the move to the federation structure, which started in 2012, and at the end of the consultation exercise were acknowledged by the COPFS senior management as resulting from unintended consequences of the federation process.

Obviously, the Crown Office has moved to a functional model to deal with core work. As part of that, local courts have been reintroduced, again combining sheriff and jury and summary business. It is still very early days and that still has to bed in. Obviously, we keep a watching brief on all those areas of the COPFS, but I hope that that will now allow for more resilience in the sheriff courts.

On the visibility of procurators fiscal, they are aligned with the six local sheriffdoms—there is a procurator fiscal for each sheriffdom—and that has reinstituted the link between the courts, the police and the local fiscals. Perhaps that was spread too thinly for the summary level, as the federation structure included large structures in the east and north-west, for example.

The criticisms, comments and feedback have been taken on board, and I hope that the new structure is seen as a way of addressing them.

I heard the Crown Agent allude to the fair futures programme and other issues that came out of the consultation, such as wellbeing issues that impact on the quality of life of staff. Those issues will be taken forward under the fair futures programme. We are keen to keep an eye on that. I have had discussions with the director of human resources on what workstreams are involved in that. Maybe in due course we will look at how that was developed, what outcomes were identified and how they were implemented. There may be scope for us to do something in due course. We are definitely watching how that progresses.

I asked the Auditor General this question, as well. Given all that has come out of the inquiry—a lot of has come out of it—has it changed how you will approach your inspections? The approach has been very much thematic as opposed to holistic—perhaps not under your tenure, but it certainly was before. Would you change anything about how inspections are approached?

As I said in my annual report, one of the issues is that since I took up my post things have never stopped changing. The structures have changed since 2012; they have moved on. It has sometimes been hard to make a recommendation when things have kept moving forward. However, I have alluded to the fact that, now that we have functional teams in place for sexual offences, that gives us an opportunity to look more at that structure as well as the theme of sexual offences. I hope that we will look at the new structural regime that has been put in place as well as the thematic subject matter of sexual offences.

What is the biggest challenge for the Crown Office and Procurator Fiscal Service?

One reason why we decided to look at sexual offences was that we identified that, with an increasing volume of serious crime, 70 per cent of which is sexual, global crime transcending national boundaries, and everything becoming much more complex in the management of High Court cases, there was a risk of those cases being lost in times of budgetary constraint, as we said in “Thematic Report on the Management of Time Limits”. Pre-petition work has continued to increase. When we looked at the matter in that report, cases involving sexual offences were, on average, 50 per cent of the High Court workload; they are now 70 per cent of it. We picked that issue because we think that it is a significant risk area, it is high profile, and we hope that we can identify areas in which we can make improvements.

So you will be analysing and looking behind that. That sounds like an excellent way forward. I hope that everyone will know who the inspector of prosecution is when you complete that work.

I hope so.

That completes our questioning. Ms Lewington, will you return to the service once you have completed your secondment?

It is just a two-year secondment, so yes; that is my plan.

Okay. Thank you both very much for appearing before us.

We will now have a brief suspension to let the witnesses go.

12:24 Meeting suspended.  

12:25 On resuming—