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The aim of this inspection was to assess how effectively and efficiently prosecution witnesses are cited to give evidence in the sheriff court. This includes members of the public who have been the victim of a crime or who have witnessed a crime, as well as police and professional witnesses.
The inspection has been carried out jointly by HM Inspectorate of Prosecution in Scotland (IPS) and HM Inspectorate of Constabulary in Scotland (HMICS), which has allowed us to consider the citation process from both a prosecution and policing perspective.
Additional
Key findings
- Email citation of witnesses has been a competent method of citation since 2007, but COPFS only uses this for Police Scotland witnesses. Email citation is witnesses’ preferred method of citation.
- Personal service of citation by a police officer was the normal method of citation until the late 1990s. While postal citation has increased so that it is now the most common method of citation, there remains a significant role for and consequent impact on Police Scotland in serving personal citations.
- Summary case management has significantly reduced the number of witnesses, including police witnesses, requiring to be cited or re-cited to court. While this has reduced the number of personal citations required to be served on witnesses by police officers, it does not address all issues within the citation process.
- Summary case management and body-worn video footage, while reducing citation of witnesses and improving the quality of citation decisions, also places additional pressures on operational staff in COPFS and Police Scotland who are involved in reporting and marking of cases.
Outcomes
- The current citation process leads to negative experiences of the justice system for civilian, police and professional witnesses. While Summary Case Management has successfully decreased the number of witnesses cited, there has been a lack of focus on the experience of the citation process for those who remain cited to attend court.
- While there are situations in which witnesses are cited shortly before a trial, the majority of witness citations are issued or served with adequate notice of the trial.
- Repeated citation or ‘churn’ in the system is a continuing source of frustration for all witnesses.
- Being cited to attend court as a witness has significant impacts on members of the public, as well as for police officers when this clashes with periods of rest, annual leave or nightshift. There is considerable disquiet among police officers about this issue.
- The citation of police officers who are rostered for nightshift creates particular challenges for Police Scotland in maintaining adequate operational cover levels on those shifts.
- Professional witnesses are also impacted by the citation process. Medical witnesses, for example, often have to arrange locum cover to ensure that their patients are seen.
- Forensic scientists are cited too often, with insufficient consideration of legislative provisions that mean, often, only one witness need be cited. The citation process for forensic scientists is inefficient and poorly managed by both COPFS and the Scottish Police Authority (SPA).
- The current citation process does not sufficiently take account of witnesses who face additional barriers to accessing the justice system, including those who do not have English as a first language, or those with additional support needs.
- COPFS and Police Scotland do not adequately monitor performance data on the citation process in a manner that allows for accurate identification of issues, demand forecasting, or service improvement opportunities.
- COPFS cannot quantify the cost of the citation process in terms of postal and associated costs, or the labour costs of processing citations.
- Police Scotland cannot accurately quantify the costs of serving personal citations or related costs such as investigation into witness whereabouts.
- Police Scotland does not collect comprehensive data on the organisational resource and fiscal impact of attending court, any subsequent backfill and other associated costs incurred as a result. The only identifiable financial cost to Police Scotland in the citation process is the overtime costs that may be incurred when officers attend court during their annual leave or rest days.
- Of the current targets COPFS has in relation to citations, many are inconsistent or not measured, and some are unachievable.
- COPFS and Police Scotland cannot quantify failure demand costs caused by the citation process.
- A change in the length of time for witnesses to respond to postal citations has led to a decrease in the number of personal citations issued.
Direction
- The citation process has remained largely unchanged since 1996. Neither COPFS nor Police Scotland has a defined vision or strategies for the citation process.
- Staff at all levels of COPFS and Police Scotland are aware of failings in the current citation process and are clear that there is a need for modernisation.
- There is an absence of effective leadership and governance of the citation process within COPFS, with no effective oversight or control. This is mirrored in Police Scotland with a lack of effective oversight of the citation process until very recently.
- Police Scotland’s absence of strategy for the delivery of legal documents has resulted in differences of practice across the country, including police officers dedicated to service of citations, officers on modified duties serving citations and officers serving citations alongside other duties.
- COPFS is undertaking a process aimed at improving its management structures and governance. This represents an opportunity to address issues identified in respect of inadequate leadership and governance of the citation process.
- There is a lack of effective structured liaison between COPFS and Police Scotland that allows for identification of failure in the citation process, or as a mechanism for improvement of this process. Local liaison between the two organisations allows for some degree of communication on citation but this tends to be reactive and is inconsistent in approach and delivery.
- COPFS and Police Scotland do not have adequate mechanisms to take account of the needs of victims and witnesses in the citation process.
- There is a lack of understanding of roles between COPFS and Police Scotland. Staff in both organisations often failed to fully understand either how their role operated as part of the wider citation process or the interdependency between COPFS and Police Scotland. This lack of knowledge has contributed to negative perceptions between staff in each organisation. There is a need for relevant training and awareness raising in both COPFS and Police Scotland.
- Service of citations is viewed operationally as a low organisational priority by Police Scotland, despite the consequences of failed service of citations having an impact on Police Scotland, as well as the wider justice system.
Delivery
- There are gaps in guidance to COPFS administrative staff on the processing of citations and ancillary processes. COPFS should do more to ensure staff are aware of and follow guidance, and monitor compliance.
- Specialist units within COPFS face significant challenges in citing witnesses, due to IT systems that are not fit for purpose, and an absence of guidance.
- The ‘Lord Advocate’s guidelines to chief constables on the citation of witnesses’, does not reflect operational reality and should be updated.
- Police Scotland’s guidance on the service of legal documents and on the citation process needs improvement to ensure consistency.
- Information for the public about the citation process is inadequate; both COPFS and Police Scotland websites offer little practical guidance.
- Training for COPFS administrative staff on the citation processes tends to be peer-to-peer, which causes inconsistency of practice. Training for police officers on the citation process, including on the completion of the Standard Prosecution Report (SPR) is insufficient in terms of content, timing and frequency.
- When taking a statement, police officers do not consistently advise witnesses that they may have to attend court as a witness.
- Continued significant improvements to the SPR are crucial in improving the citation process, including the provision of email addresses of witnesses, witness availability, full details of which police witnesses seized physical evidence, and improved use of ‘non-witness’ as a description.
- There is significant concern across Police Scotland and COPFS that both the major staffing reduction in case management units (which act as a quality assurance check prior to the submission of SPRs) and a move instead towards direct reporting will have a negative impact on the citation process.
- There was limited evidence of ‘over-citing’; in general, COPFS legal staff carefully consider which witnesses need to be cited at the first point witnesses are to be cited.
- A reduction in liaison officers embedded in COPFS offices has the potential to hamper communication between COPFS and Police Scotland on citation issues.
- COPFS has insufficient quality assurance checks and a lack of focus on learning from mistakes during the citation process. There is an absence of feedback between COPFS and Police Scotland about recurring issues. Pressure of time is often cited as an impediment to this.
- Agreement of evidence, which would reduce citation and impact on witnesses, is often dealt with too late in proceedings. While there are judicial practice notes that address the agreement of evidence, there remains inconsistent judicial practice regarding enforcement of the practice notes.
- Significant reforms introduced in 2017 to ensure effective scheduling of sheriff and jury trials and thereby increase certainty for witnesses, are no longer being applied in some areas. This has a negative impact on witnesses as they do not have certainty about what date(s) they require to attend court.
- The sheriff and jury witness engagement process has become ineffective, with many COPFS offices not using the system at all and some sheriff and jury deputes entirely unaware of the process.
- In summary cases, COPFS has no system to take account of unavailability of witnesses in scheduling trials with the Scottish Courts and Tribunals Service (SCTS), other than that of police officers. Where this information is proactively supplied, it is not routinely taken into consideration.
- A digital scheduling application has been developed jointly by Police Scotland and COPFS to identify the most appropriate dates for police witness attendance. However, the application is not used routinely, and its benefits are not always being realised.
- Formal citation documents that threaten arrest or punishment are inconsistent with trauma-informed principles.
- It is difficult for police officers to identify which personal citations are for child witnesses to enable them to deliver such citations in a trauma-informed manner.
- Sheriff and jury citations do not make clear to witnesses how many days they may need to be available at court. This is often a source of significant upset and practical impact to witnesses.
- The current practice is to issue formal citations to witnesses to attend court to give evidence but, in most situations, there would be no legal difficulty in issuing witnesses with a ‘notice of trial date’ letter which is more trauma-informed.
- Citations tend to be issued promptly after a trial is assigned and the automated cite procedure in summary cases is generally an effective system. A lack of an automated system in sheriff and jury cases leads to significant divergence in practice. COPFS is working to address differing practices.
- The automated citation procedure can re-cite witnesses in summary part-heard trials before COPFS administration staff identify those witnesses that have already given their evidence in court. This is often due to COPFS backlogs.
- In general, Police Scotland tends to receive personal citations with adequate time for service to be effected.
- When officers have a specific role to serve citations, the process is more effective and efficient.
- Service of personal citation in rural areas presents significant resource challenges to Police Scotland. When Police Scotland telephone witnesses in advance of service of citations, this works well and improves witness engagement.
- COPFS staff do not routinely telephone witnesses to remedy potential citation issues.
- On-demand citations are poorly managed by COPFS. It is not possible to quantify the extent of their use, and they are difficult to track on electronic systems.
- COPFS processes for reviewing the progress of citations are confused and inadequate. There is a lack of sufficient guidance on what, when and how this should be conducted.
- There is no central COPFS guidance on how the citation process should be managed in summary cases to take account of the removal of intermediate diets. These were a key and timely point in ensuring the effectiveness of the citation process and their removal represents a significant risk.
- In sheriff and jury procedure, a lack of court diet between citation issue and the trial often leads to cases not being actively managed for months at a time.
- Adding execution of service return dates to personal citations is ineffective and a cause of confusion.
- COPFS can learn of address changes for witnesses in various ways. These changes are not always shared or recorded properly, and often a lack of appreciation of the wider justice system means that these are not properly handled.
- COPFS has no single repository to record all communications with witnesses. Essential information is currently being stored in an area of COPFS systems that is not accessed by most staff. This leads to important decisions about the management of prosecutions often being made in ignorance of key information.
- The process for sheriff and jury ‘sitting’ management which relies upon telephone calls to witnesses in the days leading up to the trials is inefficient, with many witnesses cited to a balloting day on which there is no reasonable prospect that they will give evidence.
- The COPFS witness management team plays an integral role in the citation process but its existence and purpose is poorly understood by other COPFS staff. An absence of effective communication between the witness management team and wider COPFS leads to inefficiency, failures in the citation process and a lack of service improvement.
- COPFS citation systems do not always capture information about deceased witnesses, which can be due to ineffective use by COPFS staff. This means that deceased witnesses can be re-cited, which causes considerable distress to next of kin.
- Failures in obtaining witness availability and subsequent court scheduling increases the number of witnesses seeking excusal once a citation is issued. Responding to excusals is an onerous process for COPFS staff and often cannot be achieved without defence agreement.
- Excusal requests are very poorly managed by COPFS. This has a significant detrimental impact on all categories of witnesses.
- Excusal requests are not given adequate priority by COPFS, and witnesses often have to wait months for a decision or do not receive a response at all. Contributing factors to poor response times to excusal requests include a lack of resource, and an absence of monitoring or key performance indicators.
- Targets for responding to witness excusals are not widely known within COPFS and are not measurable, or even achievable. Current COPFS IT systems cannot adequately monitor the process.
- Failures in the excusal process significantly undermines confidence in COPFS and the justice system for all types of witness.
- COPFS resourcing issues and related backlogs lead to delays in processing countermands, which has a significant impact on witnesses.
- A key issue within the citation process is that witnesses can receive a further citation for a new trial date before being countermanded for the original trial date.
- COPFS does not always instruct Police Scotland to stop making efforts to serve personal citations when witnesses are no longer required.
- COPFS does not routinely consider why trials are adjourned to take account of any failure in the citation process, or identify opportunities for service improvement.
- When a trial is adjourned there is often insufficient regard given to witness availability when a new trial is assigned.
- SCTS, COPFS and Police Scotland do not keep records of the witnesses who gave evidence in summary cases, which would allow for analysis to inform service improvement.
- Many witnesses who attend court do not give evidence. Repeated citation or ‘churn’ has significant negative impacts on witnesses.
- COPFS, SCTS and Police Scotland have an agreement that allows for police witnesses to be on ‘standby’ at a local police office when they are cited to court. However, there is inconsistency of practice by Police Scotland as to what duties should be allocated to such officers when on standby.
- COPFS IT systems are not fit for purpose and hamper the effective management of the citation process.
- Police officers can use handheld devices to update the Legal Document Database (LDD) system on efforts to serve citations in real time, with that information transferred to COPFS.
- There is inconsistent use of the LDD to record service and efforts to serve personal citations by police officers. This is exacerbated when citations are allocated to officers whose role is not dedicated to the service of citations.
- Instead of using the LDD system, some officers record efforts of service on the physical paper citation. The return of unserved physical citations and executions of service to COPFS is done in batches, which builds in delay to the process.
- Due to Police Scotland data retention policies, information in the LDD system is ordinarily deleted every three months, which is often less than the time the case takes to conclude. This can inhibit the citation process.
- The COPFS digital Witness Gateway provides services that include allowing witnesses to update their address or availability and to see key information about a case. Unfortunately, use of the system by witnesses remains low.
- To assist Police Scotland with staffing levels on nightshifts, COPFS has engaged in initiatives to review cases to allow for countermand of police officers. While beneficial to Police Scotland, there is a risk that prosecutions are weakened or with the number of charges against an accused reduced. Such initiatives are also resource intensive for COPFS.
- There is significant learning to be gained from the approach to witness citation in other jurisdictions, such as increased digitalisation.