The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 12: BETTER COMMUNICATION BETWEEN PROCURATORS FISCAL
AND POLICE AT AN EARLY STAGE
12.1 If a decision is going to be taken eventually that there should not be a prosecution in a particular case, where possible that decision should be taken as soon as possible after the alleged offender has been charged. In Scotland the two functions of police and prosecution are substantially separate. There is not currently a strong culture of close co-operation between COPFS and the police during the early stages of less serious cases, though there is in serious cases; in less serious cases there may be no process overlap. We consider that it would be of benefit if they came closer together and if their processes overlapped more frequently, at least to the extent of more frequent discussion. It is more an end to end arrangement at present. The Committee thinks that there should be better communication and closer co-operation between COPFS and the police in relation to less serious cases so as to avoid unproductive or unnecessary work being carried out by the police and to reduce the numbers of reports submitted to procurators fiscal by the police of cases which are not likely to result in a prosecution.
12.2 The police report cases to the procurator fiscal, as they are required by statute to do. But procurators fiscal mark quite large numbers of cases reported to them, particularly in some areas, as "no proceedings". The range is from 25% of reported cases to 6%, with a total of 51,343 marked "no proceedings" out of 310,968 cases reported in 2002-3. Other cases reported to the procurator fiscal by the police may result in the offer of a fixed penalty by a procurator fiscal, a written warning by the procurator fiscal or a fiscal fine. Yet other cases may be diverted to other alternatives to prosecution. If a case is not to be prosecuted, either because it is regarded as too trivial, because there is never likely to be enough evidence to prove the charge or because the offender will be offered one of these alternatives to prosecution, that decision should be taken at the earliest possible stage and should, where possible, be taken in time to avoid the need to prepare a full police report. If it is, a substantial proportion of the significant amount of police time currently required to prepare a full report, much or all of the time required to check that report and the time required by the procurator fiscal to consider that report will be saved. Where a report, especially a full report, has been prepared by the police in most such cases, more work will have been done by the police than was really necessary. It is a waste of police time and resources to prepare full reports of cases which are likely to be marked "no proceedings", for example.
12.3 While we believe that it is for COPFS on the one hand and the police on the other to work out the best ways of co-operating with each other in order to save time and effort, we recommend that consideration be given to evaluating the costs and benefits of different arrangements for closer co-operation with a view to increasing early decision taking - ranging from co-location of procurators fiscal in police offices (perhaps part-time in some larger offices), through access to a duty procurator fiscal by the police by e-mail and telephone, to regular meetings between procurators fiscal and police (not just at senior level) for discussion of particular problems which have arisen, together with the development of (probably local) guidelines, e.g. as to when not to report particular offences, when warnings should be issued by the police and when abbreviated reports should be submitted.
12.4 Even in the context of clear local guidance from procurators fiscal to police as to how different cases should be handled there will always be cases on the borderline in relation to which a quick early discussion between the police and the procurator fiscal could save a good deal of later work for both. Protocols which cover most cases need to be complemented by better communication about more difficult cases. Rather than the police completing a report and then passing to the procurator fiscal information which may be in excess of what is required - or indeed fall short of what is required - it would be beneficial for there to be more scope for discussion at an early stage.
12.5 We consider that this culture change would have wider benefits. Procurators fiscal often commented to us about the quality of reports and other information they receive from the police. They saw the solution to that particular problem as better training for the police. While we would agree that better training would be likely to have a beneficial effect, we consider that better communication with a procurator fiscal would be much more likely to give police officers a clear idea of what procurators fiscal needed. So the benefit would go wider than the individual case under discussion.
12.6 As a minimum we believe that there should be local arrangements whereby the police can contact a duty procurator fiscal - preferably by phone though possibly by e-mail - for advice and receive a response within an agreed target time. Similarly, the police need to be so structured so that, when a procurator fiscal seeks further information about a report to inform the prosecution decision, it is clear how the police will handle the question and the time frame within which the procurator fiscal can expect an answer.
12.7 The Committee also considered physical co-location of police and procurators fiscal as a route to better communication. This is not uncommon in other jurisdictions, and is being introduced as a matter of policy in England and Wales following the Glidewell Report. 47
12.8 The Committee also recognised, however, that the policy rationale for the changes south of border reflect a different position to that in Scotland. One of the key reasons for co-location in England is to improve case preparation and help to eliminate the problem of the reduction by the Crown Prosecution Service of charges preferred by the police in the light of the evidence, causing widespread disillusion to victims. The Glidewell changes were partly intended to begin the process of shifting responsibility for charging from police to the Crown Prosecution Service - and the Committee noted with interest that England has taken a further significant step in that direction, enabling charging by the prosecutor in terms of Section 29 of the Criminal Justice Act 2003. In Scotland the procurator fiscal, not the police, determines what charges should be brought. There are many other differences between England and Wales on the one hand and Scotland on the other, not least in the extent to which use is currently made of IT to transmit information between the police and the prosecution, that use being currently much greater in Scotland.
12.9 In Scotland better communication is required not because the roles of police and procurators fiscal are changing, but it is required to speed up case handling in general and, in particular, given the extension of alternatives to prosecution envisaged by this report, to support the more sophisticated and much earlier decision making required.
12.10 In this context physical co-location is recognised to be less essential than what one might call electronic co-location - being able to get in touch readily and informally with a clear contact in the other organisation.
12.11 Nonetheless, there may be circumstances in which physical co-location would be useful, and the Committee looked at the two obvious options - location of a procurator fiscal in a police station, and location of a police officer in a procurator fiscal's office.
12.12 Given the differences in scale of operation, locating a fiscal in a police station, even part time, will only be practicable in limited circumstances. If a fiscal were to be located in each sub-divisional office covered by the fiscal service in Glasgow this would occupy 15 out of a total of 87 or so legally qualified staff, or a multiple of that number if procurators fiscal were required outwith normal office hours. But in the busiest police stations a part-time procurator fiscal might be able to look at the evidence in cases presented, take a decision there and then as to whether no further proceedings will be taken, whether alternatives to prosecution will be appropriate or whether prosecution should go ahead. The procurator fiscal could also consider some of these reports in draft where the police have doubts as to whether the information provided will be adequate to meet requirements of the procurator fiscal in taking a decision on how to proceed.
12.13 In the setting up of any such arrangements, care would need to be taken so to define them as to avoid potential problems which COPFS identified to us. They were concerned that such an arrangement would encourage the police to pass on their decision taking function to the procurator fiscal more generally, and that the procurator fiscal would be under pressure to adopt a prosecution policy of which police in that police station would approve. They might, for example, come under pressure to reduce or eliminate the number of cases which would be marked no further proceedings.
12.14 While both police and procurators fiscal guard their independence fiercely, we recognise any co-location would have to be designed as to avoid these difficulties.
12.15 Co-location in the other direction - putting police officers in procurator fiscals' offices - was more generally supported where it would be cost effective. The proposal is not new: there used to be police officers attached to some fiscal offices but many have been withdrawn. There is co-location in the Dumfries and Galloway Constabulary area. The police officer would act as a liaison officer between the procurators fiscal in that office and individual police officers at all levels. It is easier for a police officer to find his or her way round police systems and track down the information required. Our consultation suggested that a liaison police officer might well offer considerable advantages in terms of efficiency and effectiveness over the current process of the procurator fiscal tapping in to the police system through a variety of routes.
12.16 This arrangement would probably not be cost effective in small fiscal offices but might well justify the costs involved in larger offices. The Committee has not had the opportunity to conduct a cost/benefit exercise to demonstrate what size of office would justify such co-location, and the best way forward may be to pilot the idea and evaluate the outcome. Support for this idea came from many police officers and procurators fiscal, including at senior levels and we recommend that the Executive should seek a local area or areas willing to pilot this approach and to test how well it works in practice.
We recommend that the police and COPFS should put in place arrangements for better communication and closer co-operation between them in relation to less serious cases.
We recommend that the police and COPFS try out various different local arrangements for improved informal communication, to enable decisions to be taken as early as possible on whether and how a case should be taken forward and to improve standards of case preparation. An example of such an arrangement would be the location of a procurator fiscal in a main police station.
We recommend that the Executive should pilot the co-location of police officers in COPFS offices.