SCOTS prosecutors have come under fire for the “misguided” practice of pausing criminal cases to “mask the reality” of how it was meeting targets on time taken for deciding on criminal prosecutions.
A shocking analysis from the criminal prosecution watchdog revealed “significant concerns” that wings of the Crown Office had been resetting cases to show that it was meeting targets for investigation and prosecution of cases.
The practices “undermined” the purpose of performance management and “misled” the public as to how quickly decisions in criminal complaints were made.
The practice has been revealed in an investigation which revealed “misleading” claims that one wing of the Crown Office had a typically 91% success rate in meeting targets for the prosecutions of on-duty police officers.
It reveals “significant concerns” that the Crown Office had been resetting criminal cases while stating it was successful in meeting a 12-week target over deciding on prosecutions over the past six years.
HM Inspectorate of Prosecution in Scotland (HMIPS) says that it its probe found that it was actually taking up to a year-and-half to decide on prosecutions – with an average time of 18 weeks.
A “lack of clear rules and the absence of robust scrutiny” contributed to what inspectors described as “the inappropriate use of target freezing”.
The resetting of key targets dates also led to “unacceptable” delays in progressing sexual crime cases which “mask the true journey time of theseunti cases” according to a separate criminal prosecution watchdog analysis last year.
It was 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 the KPI 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 the two dates.
The details emerged as the HMIPS gathered evidence for the purpose of an inspection between December 2020 and May 2021, which included interviewing almost 40 COPFS personnel, reviewing relevant documentation and data, and observing meetings Latest figures show that in 2020/21 of 277 criminal complaints received about on duty officers, just 257 were closed with no action taken and just ten resulted in prosecution.
Last year the Crown Office were considering whether to bring criminal charges against three police officers alleged to have covered up complaints against a colleague later jailed for a catalogue of sexual abuse.
There were claims that high ranking officers in the Borders failed to act on complaints of misconduct over a three-year period against a former sergeant, Kevin Storey, now 53.
In April, the Crown Office was pondering the results of a second police investigation.
Storey was jailed for nine years at the High Court in Edinburgh in 2014 for sex offences against women including rape, attempted rape and indecent assault.
In 2017 the Crown Office’s Criminal Allegations Against the Police Division ordered two separate inquiries into an alleged cover-up, one to be conducted by Police Scotland and the other by the Police Investigations and Review Commissioner (PIRC).
After concerns that Police Scotland was being too slow, Merseyside police became the investigating force.
In May 2018 the PIRC recommended that charges should be brought against a superintendent, chief inspector and a sergeant who served with Storey.
The Crown Office has now said that after “full and careful consideration of the facts and circumstances of this case”, Crown counsel instructed that there should be no criminal proceedings. The decision was subject to review and the Crown counsel said the original decision not to prosecute was reasonable.
HIMPS carried out a review of 80 cases of on-duty police crimes and found that the average time to prosecute was in direct conflict with official figures over how the Crown Office is meeting targets.
It said that Crown Office’s Criminal Allegations Against the Police Division (CAAPD) official records showed that over recent years it had largely met the 12-week target.
But it said that the target was based on “flawed data” and warned that “there is a lack of robust and accurate management information about CAAPD’s work”.
HIMPS said: “Failing to deal with criminal complaints in a timely manner has an impact on all those involved. Delays in the investigation may result in evidence being lost or its quality reducing over time and a failure to conduct an adequate investigation.
“Delays in the investigation, as well as delays once proceedings have been initiated, also risk the complainer losing confidence in the system for handling criminal allegations against the police and potentially disengaging from the process.”
HIMPS said that until April 1, this year, CAAPD was able to report better performance because it was resetting cases and ignored the time taken while a case was frozen in official calculations.
CAAPD had carried out this “freeze” in 41 (51%) of the 80 cases HIMPS reviewed.
The Crown Office had said that targets were generally frozen when further information from the professional standards department or PIRC was needed before the investigation could be concluded and a decision made.
As the length of time taken to gather the information was outwith CAAPD’s control, the target would be frozen on the day the information was requested, and unfrozen on the day it was received.
In the case review, the length of time for which targets were frozen varied from case to case, depending on the extent of the further information requested. In some cases, the target was frozen more than once.
But the inspectors said it had found several examples of target freezing being conducted inappropriately. In some cases they were frozen for “no discernible reason” and when no further work was being instructed.
In one reviewed case, the target was frozen for over a year while the police professional standards department was instructed to carry out further enquiries. Added to the time CAAPD considered the case before instructing those enquiries, 67 weeks passed before inquiries were complete and the 12-week target reset. The “actual journey time” ended up at almost 74 weeks.
And the inspectors found rather than case times being restarted when information was received – it was actually reset from zero, giving prosecutors another 12 weeks to reach its conclusion.
In one case, there was seen to be very little if any work done for 10 weeks before additional information was requested from the professional standards department. This request resulted in the target being re-set and the previous 10 weeks being wiped out for target purposes.
“Reporting compliance rates of 90% and above against a 12-week target has given a misleading impression of the time taken to decide whether proceedings should be initiated in cases involving criminal allegations against the police,” the inspectorate has said.
While since 2015/16 the 12-week target was reached typically 91% of the time, prosecution scrutineers said that this level of performance was “at odds” with perceptions of the time taken for the CAAPD to make decisions.
The watchdog’s on-duty case review told a different story.
The complainer was advised of the outcome of their criminal complaint within 12 weeks in only 32 (40%) of the 80 cases studied.
A further two cases appeared to have been concluded within 12 weeks but HIMPS said it could not be said to be intarget as in neither case was there any evidence that the complainer had been informed of the outcome. In 30 of the 41 cases, CAAPD decided to take no action, and only two of the 39 cases reported to Crown counsel, were concluded within 12 weeks.
The inspectors said they were concerned that there were no business rules or guidance on the freezing or re-setting of targets. There was also a failure to routinely record the reasons why a target was being frozen.
HMIPS said it was “concerned that CAAPD had developed an unhealthy and misguided approach to managing its targets which failed to understand the purpose of performance management”.
It said: “The freezing and re-setting of targets and the failure to administratively close cases when they were concluded had allowed CAAPD to report consistently good performance over the years. However, this masked the reality of what was happening in the unit, undermined the purpose of performance management and misled senior managers, law officers, stakeholders and the public as to how quickly decisions in criminal complaints against the police were made.”
HMIPS said the practice of freezing targets was raised by the head of CAAPD in March 2020, shortly after his appointment. A ban on freezing targets has now been brought in and was retrospectively applied from April 1, over a year later.
The watchdog urged the Crown Office to review its processes and its training for CAAPD staff to ensure that it meets its “disclosure obligations” in related cases. It also recommended that prosecutors should consider setting target timescales for reporting agencies to submit investigation reports regarding criminal allegations against the police. And it said that the Crown Office should work with those agencies to consider how best to monitor compliance with those targets.
A Crown Office spokesman said: “The Crown is committed to the fair and effective investigation of reports of criminal allegations against the police and to making decisions on prosecutions in a timely manner.
“The HMIPS report rightly recognises that the public should be reassured by the robust scrutiny which is applied by prosecutors to on-duty criminal allegations against the police.
“Before the inspection steps had already been taken to end the practice of freezing targets within the Criminal Allegations Against the Police Division.
“The practice ceased in April 2021, meaning it will not have an impact on target performance in this reporting year.
“The freezing of targets was an administrative exercise and had no impact on the investigation or outcome of any cases.
“COPFS will carefully consider all the recommendations and make changes, where appropriate, to implement them.”