Sex crime cases warning as Scottish courts face years of chaos to catch up with 30,000 hearings backlog

HM Inspectorate of Prosecution in Scotland has called for action while finding in August that there were "unacceptable delays" in some sexual crime cases, with some Crown Office staff choosing to re-set key dates in cases to “mask the true journey time of cases”.

Laura Paton, Her Majesty's Chief Inspector of Prosecution in Scotland suggests that the Crown Office and Procurator Fiscal Service (COPFS) needs an injection of finance as it also meets further new challenges in its new role investigating deaths during the coronavirus pandemic.

By August 2020, the backlog of high court and sheriff and jury cases was 750 and 1,800 respectively, and the backlog of summary cases was 26,000.

The Scottish Courts and Tribunal Service (SCTS) has said that the average waiting period for trials has doubled to 12 months in the high court, 15 months in sheriff solemn cases and six months in sheriff summary hearings.

Ms Paton has warned that the backlog "continues to grow" because while police recorded crime and the number of cases reported to the procurator fiscal initially fell during the lockdown period, they were returning to almost pre-pandemic levels from May 2020.

It has come after criminal courts closed to all but essential business in March 2020 and jury trials were suspended. The Crown Office and Procurator Fiscal Service (COPFS), however, continued to process newly reported cases as well as those already in the system.

She said: "Modelling has shown that it may be several years before the backlogs are addressed. This will have significant consequences for victims, witnesses and the accused in cases awaiting trial and risks damaging public confidence in the criminal justice system.

"It will also have significant consequences for the work of COPFS for some time to come. A key issue will be the ability and capacity of the service to maintain a high standard of communication and engagement with victims and witnesses in newly reported cases as well as those who have been awaiting the conclusion of their cases for a prolonged period of time."

It comes alongside a critical follow-up HM Inspectorate of Prosecution in Scotland review of the investigation and prosecution of sexual crime in Scotland after a 2017 study stated the inspectorate was “concerned about the length of time taken to investigate and prosecute sexual crime cases, particularly those subject to pre-petition investigation” and recommended ways to reduce the journey time of cases. The August follow-up review continued to raise delay concerns while acknowledging that sexual crime had continued to rise, increasing by eight per cent between 2017-18 and 2018-19. Since 2009/10 the volume of sexual crime doubled and accounted for five per cent of all recorded crime.

Ms Paton has warned that on top of handling the overall case backlog, there will be "further significant demand" on the resources of COPFS over its role in the investigation of deaths in Scotland - in the wake of the coronavirus pandemic.

In May, the Lord Advocate directed that people who had died and may have contracted the virus in the course of their employment and those involving residents who contracted the virus in care homes, should be reported to the Crown.

A dedicated unit has had to be established within COPFS to investigate such deaths.

And she said further financial support will be required to help COPFS meet "the significant, additional challenges" resulting from the pandemic.

She warned: "COPFS is one component in a wider criminal justice system and it is essential that the system in its entirety works effectively - this includes policing, prosecution, defence, courts, prisons, criminal justice social work and the voluntary sector. Improvements and investment in one area will not produce the desired outcome if not matched system-wide."

She said that as revealed in the follow-up review of the investigation and prosecution of sexual crime, for example, while COPFS can "strive to cut the journey time of cases, the full benefits of its efforts will not be realised if court time is not available for those cases to proceed timeously to trial".

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The inspectorate reviewed 50 High Court sexual crime cases, randomly selected between September 1, 2018 and February 28, 2019. Overall, it found “considerable progress” had been made in relation to implementing 2017 recommendations – eight had been achieved, three were in progress and one was no longer relevant due to changes to working practices.

But, despite this it found “delays still occur and there is still scope for improving communication with victims”.

Ms Paton said they revisited cases in July, this year to assess the impact of the Covid-19 pandemic.

"In short, the suspension of jury trials as part of the initial response to the pandemic resulted in significant delays to cases that were ready for trial. We noted the serious impact that delays have on victims, witnesses and the accused."

Ms Paton's analysis said there had already been concerns in the August review at the number of sexual crime victims that "disengaged" at various stages throughout the investigation and prosecution process which suggested that "more could be done to provide the necessary information and support to victims".

"We found there was scope to improve communication with victims, including in relation to its frequency, clarity and tailoring towards individual needs, and we noted that cases involving particularly vulnerable victims, such as children, could be progressed more quickly," she said.

The inspectorate found that, in applying key performance indicators (KPIs), there had been “a few cases” where it had been exceeded or was almost due and “staff chose to re-set it using the date of, for example, committal for further examination, rather than the date of the police report”.

“This included cases where several months had passed between these two dates,” it found.

“While the desire to set only achievable KPIs is understandable, the effect of this is to mask the true journey time of these cases, as seen from the perspective of victims, witnesses and accused persons.

“This risks these cases not coming to the attention of senior managers who should be in a position to address the factors that have caused the initial delay. COPFS should consider how it manages these cases so that problems can be identified, cases expedited, and realistic reporting and indicting dates set.”

The report found “unacceptable delays” in two cases when making an initial decision as to what action should be taken, following receipt of a police report.

It found that out of nine cases subject to pre-petition investigation – “only two investigations were completed within the target timeframe”. And only six out of 12 cases had met target dates for reporting the case to Crown Counsel.

Further, of 11 cases where new indicting KPIs applied – with target dates designed to expedite and priories cases for indictment – these were only met in one case. When further enquiries took longer than the four weeks allocated to them, it found on average this had stretched out to nine weeks.

The report also noted that the COVID-19 pandemic had exacerbated delays to sexual crime cases, which could have a “significant impact on parties involved in the case”, finding 16 of the cases it was investigating “had already been subject to delay prior to COVID-19”.

Worryingly, the inspectorate said: “We could not find a record in all cases of victims and victims having been updated about the impact of COVID-19 pandemic on their case.

“We recognise that during the early lockdown period, VIA [Victim Information and Advice Service] staff will have faced significant challenges in delivering their service as they switched to working from home and developed new working practices.

“It is our view that contact should be made with all victims in post-indictment sexual crime cases to provide them with an update about the status of their case and the impact of COVID-19 on the justice system, even if the exact impact of COVID-19 delays on their individual case is not yet known.

“Since we revisited the post-indictment cases, COPFS has advised that all victims will be updated in line with the preference each expressed when their victim strategy was carried out, and a letter will also be sent to all victims regarding the impact of COVID-19.”

On delays to cases, HM Chief Inspector of Prosecution in Scotland Laura Paton said this may have “a serious impact on victims, witnesses and the accused”.

“Delays risk victims and witnesses disengaging from the criminal justice process and risk them losing confidence in the criminal justice system,” she said.

The Inspectorate has said that the Crown Office should ensure that the victim strategy is initiated within a "reasonable time" in all cases and that it should work with the police to ensure that processes for communicating with victims and witnesses "take account of their individual circumstances and needs".

It should also work with Police Scotland to ensure that a police victim strategy is submitted in all appropriate cases and in accordance with "agreed timescales".

The Scottish government said in September that it understood the impact trial delays had on victims, witnesses and accused, and said it had pledged £5.5m to establish the remote jury centres.

It was confirmed two weeks ago that Scotland's prosecutors were were on the verge of strike action, adding to concerns about how the justice system would recover from the coronavirus crisis.

The FDA trade union launched a ballot for industrial action over a long-running pay dispute which centres on Crown Office lawyers being paid less than their counterparts in the Scottish Government.

The union believes the indicative ballot will see its members vote in favour of the action, with around 500 procurator fiscals potentially walking out early next year.

A Scottish Government spokesman said: “We understand the impact trial delays have on victims, witnesses and accused, and have provided £12 million to the SCTS for remote High Court and Sheriff jury centres to restore pre-Covid court capacity, on top of £3 million to develop court technology.

“With the introduction of remote jury centres, High Court evidence-led trials are 17% higher than the average monthly pre-Covid level and the latest figures show that evidence led summary trials are now 85% of the average monthly pre-Covid levels.

“Many administrations are experiencing the impact of COVID-19 on court volumes. Figures from England and Wales show outstanding workloads in the Crown Court rose from over 39,300 cases pre-Covid to just over 53,000 by November. Outstanding workloads in the Magistrates Court rose from over 407,000 pre-Covid to nearly 480,000 by November.

“We continue to work with partners, including victims groups, the Scottish courts and prosecution services, and the legal profession, to identify the best possible way to deal with the backlog. This includes optimising the use of the physical court estate within the prevailing public health requirements, increased use of digital technology and additional support to organisations supporting victims.

“A new structure, led by a Criminal Justice Board, has been established to co-ordinate recovery activity, including in the criminal courts. This board meets every two weeks to direct and monitor progress and ensure a whole system overview of the work underway.”

“The Justice Secretary has had productive meetings with SCTS and the Finance Secretary and these will continue in the run up to the Budget.”

A COPFS spokesman said that the Lord Advocate had welcomed Ms Paton's report "which recognises the remarkable efforts of the Crown Office & Procurator Fiscal Service over the past year".

The spokesman added: "Scotland's independent prosecution service is contributing to a system-wide response to the very significant challenges imposed on the justice sector by the pandemic."