SHORT-TERM WORKING GROUP ON OUTSTANDING WARRANTS REPORT
Section 2: WARRANTS PROCESS - THE CURRENT POSITION
4. Statistics on outstanding warrants in general, and the number of apprehension warrants in particular, have attracted a good deal of attention in Parliament and in the media. The impression conveyed is that the problem reflects a general one affecting the criminal justice system, due to lack of resources, to administrative inefficiencies, or a lack of concern by the police.
5. There are a number of different sorts of warrants, that are generated in different ways and which involve different agencies in the criminal justice system. For example, the Crown Office and Procurator Fiscal Service (COPFS) is responsible for applying to the court for certain types of apprehension warrants, and for administering those warrants, including issuing them to the police for execution. But it is important to note that not all warrants are issued following an application by COPFS. There are many warrants that are issued directly by the courts, such as fines enquiry warrants, extract warrants following fines enquiry hearings and warrants in relation to breach of orders of the court. COPFS has no role in relation to the grant of these warrants and their administration.
6. This section looks at the main types of warrant.
Existing police role (excluding search warrants)
7. A warrant is a written authority, e.g. from a court, authorising certain actions. A warrant is executed by carrying out the instructions contained in the warrant. The principal warrants executed are failing to appear, and arrest either for an offence or for non-payment of fines. There are four main types of warrant enforced by the police in Scotland.
Warrant to Apprehend (or apprehension warrant).
8. These may be outstanding where the police have been unable to trace an accused person. They tend to be prioritised for enforcement (over fines and extract warrants) by the police, especially if the alleged actions of the accused are serious. The execution of all warrants enquiries is generally undertaken by operational officers who endeavour to complete the enquiries within the given timescales subject to the exigencies of duty. This often means that despite the best efforts of the officers, such enquiries are not always completed on time.
9. Apprehension warrants include warrants issued for failures of an accused to appear in any court, petition warrants, summary initiating warrants, warrants where an appeal has been refused and warrants in respect of breach of probation, community service, restriction of liberty orders, and drug treatment and testing orders.
Fines Enquiry Warrant (a particular type of apprehension warrant).
10. These are issued where an offender has been fined for committing an offence and has not paid the fine. In most cases, the court's initial response will be to issue a warning letter. If that produces no response the defaulter will be cited to a fines enquiry court, though few of those cited actually attend, leading to a warrant being issued for their arrest. The Report of the Summary Justice Review Committee chaired by Sheriff Principal McInnes "the McInnes Report" recommended that the enforcement of fines enquiry warrants be taken out of the hands of the police and transferred to a public sector agency which would be responsible for the enforcement of all fines in default across Scotland. To exemplify the scale of the task currently faced by the police the Report noted that some 21,000 fines enquiry warrants were outstanding in the Strathclyde area as at November 2003. Whilst that figure has reduced (see Fig 1 below) the Report's recommendations would greatly reduce the involvement of both police and courts in enforcing financial penalties - freeing police up for their primary task - protecting communities.
11. The Group recognise that the recommendations of the McInnes Report are significant, especially with regard to fine enforcement. Specifically, Chapter 32 of the report makes reference to Fine Enforcement and, insofar as this report is concerned, the following paragraphs are worthy of note;
"Another obvious difficulty in the current system is the extent to which police officers are tied up executing means enquiry warrants for the arrest of individuals who fail to attend court in respect of unpaid fines. The background to this problem is that large numbers of fines are not paid within the time required or instalments are not paid on time. When that happens the enforcement process kicks into action. Warrants for the arrest of those who fail to attend means enquiry courts and warrants to imprison following fine default are passed to the police for enforcement'. (Paragraph 32.25)
'From the police point of view the resources involved in executing warrants are substantial.' (Paragraph 32.26)
'The Committee notes that, because police forces regard enforcement of fines as an inefficient use of their resources, they do not give enforcement high priority. (Paragraph 32.27)
'The Committee has concluded that fine enforcement procedure should be redesigned in a way which frees up police officers for duties of a higher priority.' (Paragraph 32.28)
'Courts in Scotland are reluctant to impose sentences of imprisonment for non-payment unless there is really no alternative. Knowledge by offenders that this is the approach of the court leads a fair number of them to delay payment until the point is reached when they have the alternative of being taken to prison there and then. Getting to that point will have required the expenditure of considerable resources within the courts system and by the police.' (Paragraph 32.29)
12. As a consequence of their findings the Committee made a number of recommendations aimed at improving the collection and enforcement of fines. In particular, it recommends that fines enforcement should be administered by a single public sector organisation. Such an organisation would have new enforcement powers relieving the police of their current role in enforcing fines warrants thus freeing up police officers to undertake other duties. At the time of writing consultation on the Committee's recommendations was drawing to a close - Ministers will then consider the responses before making decisions on the way forward.
13. At the fines enquiry court (where a defaulter may be given more time to pay etc) the judge will impose a prison sentence as an alternative to the agreed payment plan. If the payment plan is not adhered to an extract warrant will be granted imposing the alternative. The police are responsible for enforcing this warrant, which entitles them to apprehend the offender who then has the choice of paying up or serving the custodial alternative.
Recall to Custody Warrants
14. Section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 provides for the licence of an offender (long-term, extended sentence or life sentence) to be revoked. This action is generally taken by the Parole Board who will recommend (in practice direct) the Scottish Ministers to revoke the licence. The Scottish Ministers may also revoke a licence without first referring the case to the Parole Board where it is expedient in the public interest to do so. When a licence is revoked this generally means that the offender is recalled to custody (unless he/she is already in custody for another matter). A warrant is obtained for the offender's return to custody and issued to the police for enforcement. 231 offenders including 28 lifers were recalled to custody in 2003.
Search warrants and other specialist warrants
15. These warrants tend to be enforced with immediate effect, or are granted several days in advance to be enforced on a particular day (or within 30 days). Search warrants may be valid for varying periods dependent on the legislative provisions under which the warrant is craved. For example a search warrant granted under Section 51 of the Betting, Gaming and Lotteries Act 1963 is valid for 14 days from the date of issue. A search warrant granted under Section 23 of the Misuse of Drugs Act 1971 is valid for one month from the date of issue. In general terms, the police will execute search warrants without undue delay and consequently these do not routinely present any difficulty. As such, backlogs of these warrants do not accumulate to any great extent.
16. Finally, in this introductory passage the Group think it appropriate to provide context with some statistics on the number of outstanding warrants that currently exist.
Table 1 OUTSTANDING WARRANTS ON 31 JULY 2004
Fines Enquiry and Extract Warrants
Lothian and Borders
Dumfries and Galloway
17. To assist in putting the data on Fines Enquiry and Extract Warrants (Fines) into context, the Scottish Court Service provided supplementary information on the number of outstanding Sheriff Court warrants extant in the Strathclyde Police force area. Of the 19,542 outstanding warrants referred to in Table 1, only 7,317 (37%) relate to Sheriff Court Fines. The remaining 63% are fines imposed by the District Court for relatively minor offences and Fixed Penalty Notices for minor Road Traffic and Parking Offences.
18. To provide additional context, the figures quoted in the following table (Table 2), which have been gathered from all forces give some idea of the number of apprehension warrants executed and received on a monthly basis.
Table 2 APPREHENSION WARRANTS - RECEIVED/EXECUTED JULY 2004
Number Of Apprehension Warrants Outstanding as of 30 June 2004
Number of Apprehension Warrants Received from Court in July 2004
Number of Apprehension Warrants Executed in July 2004
Number of Apprehension Warrants Outstanding as of 31 July 2004
Lothian and Borders*
Dumfries and Galloway
*In terms of the above table A + B - C = D. However, the figures for Lothian and Borders Police were obtained from their computerised recording system, which did not accurately reflect this formula.
Tracing the Accused
19. It is important to ensure that accurate and up to date information is contained on warrants enabling the police to execute them timeously, thus providing operational benefits by reducing the time and resources which require to be allocated to such enquiries.
20. Notwithstanding, the Group recognises that by their very nature warrants are frequently issued with out of date or insufficient information, necessitating further and often protracted enquiries by the police to identify the accused's current whereabouts. By way of background, an officer in one force was tasked with sending letters to individuals named on all outstanding means enquiry warrants within a particular geographical area, advising them of the existence of the warrant and requesting payment. Of those letters sent, 30% were returned 'not known at address'.
21. In addition, there are instances whereby apprehension warrants state 'present whereabouts unknown' as the current address for the accused cannot be ascertained. This lack of detail is a frustrating reality for all those concerned with the execution of warrants. However, difficulties in tracing individuals can be compounded by partner agencies, external to the Criminal Justice System (e.g. Department of Work & Pensions), who will provide address information for serious crime but are reluctant to assist with routine warrant enquiries.
22. The public rightly expects that personal information known to public bodies will be properly protected, but the public also expects that the proper sharing of information will take place in the appropriate circumstances. Many informal local mechanisms for the exchange of information already exist, however the Group strongly believes that external agencies should routinely seek to share information about warrant holders on a more formal basis, where this would be in the public interest. Failure to share information can delay the execution of warrants to the detriment of the community as a whole.
23. The Group acknowledges that there are legal considerations on the sharing of personal information that need to be addressed. Confidentiality, data protection legislation and sub judice rules are all recognised as factors that need to be taken into account.
24. In making the following recommendations, the Group is clear that agencies who may wish to disclose information to the police should establish their legal position, including whether there are any statutory or other restrictions on its disclosure.
25. The legacy of the nature of warrants means that despite the best efforts of the police to execute them timeously, they will often remain outstanding until sufficient information becomes available to identify the accused's current whereabouts.
1 - The police and public sector agencies should give consideration to the establishment of formal information sharing protocols / arrangements for the exchange of relevant information to better secure the execution of warrants, including routine warrants.
2 - The Scottish Executive should consider with relevant Whitehall Departments the legislative changes needed to enable criminal justice and public sector agencies to share information to better secure the execution of warrants, including routine warrants.
26. The Group considered whether there was merit in forces establishing dedicated teams to conduct warrant enquiries throughout divisions and remove this burden from operational officers. These teams would engender ownership, accountability and expertise that only dedicated resources can generate. On balance however the Group felt that the formation of short term Warrant Teams would best meet the needs of the police. The Group saw such Warrant Teams undertaking a set of initial enquiries and creating intelligence packages around the warrant. The warrant and the subsequent package would then be delegated to local or other officers or pursued by the team, depending upon their size and structure, thus enabling other operational officers to perform their core functions. Where appropriate such teams could address the additional volume of warrants needing to be executed. As always the issue of resources arises - but such short term effort has the potential to realise longer term gain - creating breathing space within which the enforcement of fines measures proposed by the McInnes Report can be introduced.
27. The appointment of Warrant Liaison Officers (as part of the Warrant Team) was also deemed appropriate. Such officers would proactively task other sections of the force to encourage warrant execution e.g. that relevant local warrants officers send a letter to all persons subject to fines enquiry warrants to advise them of the existence of the warrant in attempt to initiate the payment of fines.
3 - Forces should consider the formation of short term Warrant Teams and the appointment of dedicated Warrant Liaison Officers.
28. The handling and execution of warrants is an operational matter for the police and the responsibility of Chief Constables. Fines warrants are solely a matter for the Courts and the police. COPFS keeps outstanding warrants under constant review and Procurators Fiscal work closely with the police at an area level.
29. It is evident that forces are alert to the need to address warrants and a number of good practices are identified but addressing warrants is a matter for local prioritisation based on available resources and other competing demands. Forces do prioritise the handling of the most serious warrants first. The majority of outstanding warrants are for fine default. Only a very small minority of apprehension warrants are for serious offences. Many offenders have multiple warrants outstanding and once brought to court it is possible for outstanding warrants related to proceedings raised within that court can be dealt with in one hearing. Considerable coordination is required across all agencies to ensure that this happens, and many of the recommendations proposed in this Report will go towards supporting this. Whilst ttoo much weight should not be given to these figures they do suggest that methods of improving the position need to be identified and implemented locally according to the particular local circumstances.
Police Procedure re Warrants
30. The Group felt it was important to ascertain details of police policy and practice regarding apprehension warrants. The following paragraphs are based on responses from all 8 police forces in Scotland.
Policy and Practice
31. In general there is, not surprisingly, a degree of similarity across forces. In principle warrants are received, recorded on the Police National Computer (PNC) as well as local force databases then allocated to appropriate operational command areas for execution. Within the local command areas they are usually allocated to uniform teams for action.
32. In five forces, Dumfries and Galloway, Grampian, Lothian and Borders, Strathclyde and Tayside, warrants are received at Headquarters where they are processed and recorded before onward transmission to local command areas. In the other 3 forces, Central Scotland, Fife and Northern, the warrants go direct to local command areas for processing and allocation to teams. In Fife and Northern, Force Control Rooms however retain a role in monitoring the accuracy of warrants data held on the PNC.
33. Both Grampian and Lothian and Borders, although in principle handling initial processes and oversight from the centre, allow for a more devolved model in rural areas e.g. the Borders and West/East Lothian where a local warrants officer, based in the Divisional Intelligence Office, receives the warrants from the court and administers the process. Outwith Aberdeen, warrants are processed by local officers with a Detective Inspector/Crime Manager ensuring prioritisation. Dumfries and Galloway miss out the divisional tier in that warrants are sent to Division for action but to named officers who have responsibility for executing and recording their efforts to do so. This arrangement reflects the size of the force.
34. The police acknowledge that from time to time short-term warrants initiatives are undertaken where it is identified that numbers held are building up. In addition regular warrants initiatives are undertaken as a matter of practice, e.g. in Lothian and Borders the current shift system has an 'opportunity day' which is often used by local commanders to tackle warrants. This facilitates a pre-planned approach and allows custody centres, prosecutors and courts etc. to prepare for a larger number of individuals passing through the criminal justice system.
35. Only one example of a dedicated warrants team operating was identified viz. in the Howdenhall area of Edinburgh where the local commander decided on the need for one.
36. Other examples of good practice were offered by Grampian, Tayside, and Central Scotland Police. In both Grampian and Tayside, at Divisional Tasking and Coordinating meetings, new warrants for offenders who are targets or are persistent offenders are highlighted as a priority. Both forces also use the intranet to circulate/publicise to officers details of persistent offenders whose early arrest would help reduce the crime rate.
37. In Central, use is made of ' Steria' command and control software to manage the administration of warrants. This software is an extension of the crime recording software which has been in use for several years now. The software is based upon a tasking system where officers have a list of their current workload on a screen and can task or be tasked to carry out an enquiry in relation to each document. The Warrants, Crimefiles, Sudden Deaths, Road Accidents and soon productions are all managed via this software and all appear on the one screen, thus giving an easy to manage list of current enquiries. This is particularly useful for supervisors who can see and manage the officer's workload. The system is searchable and tracks any changes to the document giving an accurate audit trail. This tracking is particularly useful when there may be an accusation of "undue delay" and officers are encouraged to update their enquiries in real time so the entries on the document are recorded at the time.
38. Delays in the execution of warrants can be caused by human error, for example erroneous dates of birth and misspelling of subject names can result in delays in the processing and execution of warrants. The Group considered that, as well as IT systems solutions, the introduction of more robust quality control measures could iron out these creases. The introduction of "systems thinking" processes and the redesigning of existing process steps to introduce quality and enhance improvement are now being embarked upon by a range of different public sector agencies. Work is underway looking at the processes in Aberdeen Sheriff Court in relation to the handling of productions and custody management. Grampian Police are also taking forward work on their service centre operations and firearms licensing. The essence of systems thinking is to find a better way of doing things, by understanding the whole system and redesigning the system to make sure that every part of it contributes to better performance with quality built in from the start. Performance and quality are largely governed by the system and its capability to allow the work to flow, while ensuring that the system conditions (work design and job design) are positive enablers. By taking an outside-in view organisations can focus on what matters / outcomes, eliminate waste (errors, duplication,) in processes and improve quality, decision making and managers contribution, while designing relevant end to end measures to manage performance. It is noted that the Scottish Executive (Ministerial Correspondence) and the Metropolitan Police Service (Fingerprint processing) have also recorded successes via a Kaizen Blitz approach. The general view is that such processes add value and quality and have much to commend them.
Letters to lawyers
39. The Group also heard that some successes had been made when the police interrogated their prisoner processing systems to ascertain the particulars of an accused's lawyer. Once obtained a letter intimating the existence of a warrant for their client was dispatched, urging that arrangements be made for the named individual to surrender to answer the warrant. It was felt that intimation to the lawyer of the existence of an apprehension warrant may reduce the chance of a claim, under ECHR, of undue delay in executing the warrant at future court proceedings.
4 - HMIC to continue to routinely look at force procedures in relation to the execution of warrants as part of primary inspections.
5 - In the short term, ACPOS General Policing Committee should examine how forces currently execute warrants to identify and promulgate notable practices and experiences.
COPFS - ACPOS Protocol For Prioritisation of Warrants
40. The Group welcomed the work which had taken place throughout 2003, culminating in the production of an agreed protocol between COPFS and ACPOS which sets out an agreed approach to the execution of warrants by the Scottish Police Service; provides a way to record efforts made to execute warrants; and ensure proper records are kept so that the Court can be satisfied that warrants have been executed without undue delay. It is vital, in the continuing drive to deal effectively with outstanding warrants, that COPFS and ACPOS, and the SCS, (the SCS, helped draw up the protocol) ensure active adherence to the protocol. This should open channels of communication to ensure that feedback is given in relation to priority markings placed on warrants, properly reflecting the 10 prioritisation categories. The Group is of the view that the key to making this protocol work lies in these markings.
41. The Group noted that the District Courts were not party to this protocol and given the very large number of outstanding warrants which are generated from the District Court and particularly from registered fines where the accused's details can be sketchy raising further challenges for the police in execution, it is vital that further work be undertaken to incorporate the District Courts within the protocol.
42. The Group also noted that the protocol did not take account of Recall to Custody Warrants. The majority of the warrants for recall to custody are enforced promptly. However, there are a number of cases where warrants remain extant for considerable periods of time. It is appreciated that in some of these cases, the offenders may have left the area or are proving difficult to trace. As such these warrants do not present any additional issues for the police other than those previously identified in this report. However, the Group are mindful that Scottish Ministers are anxious to ensure that forces are aware of the urgency in enforcing recall warrants and consider that they should be included within the protocol.
43. Whilst the protocol deals with the approach to the execution of warrants and the record keeping, the Group felt that it could be taken further to address a whole range of Service Level Agreements between Partners in relation to the timescales for delivery, from the point when the warrant is signed by the Sheriff to its final execution and return to the Court for the appearance of the accused.
44. Reference is made later in this Report to a proposal for electronic transfer of documents but it must be accepted that this will not be achieved in the short term. The Group therefore recommends that the Scottish Executive, ACPOS, SCS, COPFS, District Courts and SPS convene a new working group to develop the protocol and Service Level Agreements to ensure fast, accurate and workable practices in relation to the whole process of warrants execution.
45. The Group also felt it worthwhile noting that statutory warrants must be executed without undue delay. Article 5(3) of the European Convention on Human Rights has been interpreted as placing an obligation to execute apprehension warrants timeously with clear implications for the prioritisation of warrants when issued. The Group considered that the introduction of the Protocol has enabled the police and its criminal justice partners to meet their obligations under the Convention.
6 - That a working group is convened to develop the protocol and Service Level Agreements to ensure fast, accurate and workable practices in relation to the whole process of warrants execution,.
46. The Group was aware that criminal justice agencies were already taking forward initiatives to come together in response to certain shared tasks including the co-location of police and PF staff. The logic for closer local working is strong and benefits can be gained from such collaboration without sacrificing local operational requirements. The Group therefore welcomed the fact that these developments will be the subject of evaluation.
7 - Proven approaches to joint working should be expanded as appropriate in local liaison.
Failure to Appear offences
47. The Group noted that, in a number of instances, individuals had been arrested on warrant on more than one occasion for the same case. There are a number of valid reasons why bail and remand are used in particular circumstances and the courts rightly take a balanced look at each case. The legislative provisions of the Criminal Procedure (Scotland) Act 1995, and the effects of the ECHR have placed all these decisions under close scrutiny.
48. A study by Strathclyde Police over the course of a two week period in July last year, illustrated a particular problem. During the period sampled, where of the 116 apprehension warrants in respect of 108 different individuals generated at a Sheriff Court, there were 30 instances where the accused had previously been arrested on a warrant in respect of the same case. Furthermore, in the same period, 36 apprehension warrants were generated at another Sheriff Court, and in 5 instances the accused had been previously arrested on warrant in respect of the same case.
49. A case study at Appendix A highlights the problem. The study details an apprehension warrant initiated in April 2002 for an accused who had committed a number of assaults on a child. It took 22 months to bring the case to conclusion, as the accused was repeatedly granted bail, even though the individual had a history of failing to appear.
50. The Group considered therefore whether certain Failure to Appear warrants should constitute an aggravation of the original offence with an additional penalty attaching to it. In this connection the Group concluded that adequate provision already exists in this area. A failure to appear constitutes a separate offence under section 150 (8) of the Criminal Procedure (Scotland) Act 1995. Furthermore it is an offence under section 27 (1)(a) of the 1995 Act for a person to fail to appear having been placed on bail in summary proceedings and section 27(7) makes it an offence to fail to appear, whilst on bail, in solemn proceedings.
51. The Group considered whether the existing tariff i.e. a maximum of 3 months imprisonment as provided for by section 150(8) of the Criminal Procedure (Scotland) Act 1995, should be raised. The Group noted that increasing the tariff to a maximum 12 months detention would bring section 150 into line with suggested increases in the maximum sentence provisions in the 1995 Act as recommended in the McInnes Report (recommendation 9). The Group considered that the section 150 offence should keep step with the proposed increases in offence tariffs elsewhere in the Criminal Procedure legislation. This is a statutory offence, and as such, primary legislation would be needed.
8 - The Scottish Executive should consider increasing the tariff attaching to section 150 of the Criminal Procedure (Scotland) Act 1995 to a maximum of 12 months.
Electronic tracking and tagging
52. The Group were aware of ongoing developments in electronic monitoring technologies, including Global Positioning Systems. Whilst mindful of the ethical, legal and practical issues involved, the Group are aware that Reliance Monitoring Services, part of the same group as the Service Provider, already has a great deal of knowledge and experience in electronic tagging and tracking, which it felt might have the potentiality to be further utilised as an effective method of control in the transportation of prisoners or as a pre-compliance requirement to better secure the personal appearance of individuals at court. The Group acknowledged that any proposals to extend tagging or to use tracking or extend tagging would have significant resource implications for those agencies involved and that before any moves were made in this area the costs of introducing such a system needed to be established and that a close analysis would have to be undertaken to weigh the complexities of the systems and kit required against the effective savings and outcomes that would be derived. Also the criteria for circumstances in which electronic tagging for the transportation of prisoners would be considered appropriate would have to be clearly defined. The Group are also clear that the tagging of prisoners attending court would not overcome the present difficulties as prisoners have been released in error as opposed to escaping. Nevertheless the Group see merit in all those agencies involved in this field considering the logistics of using these devices and the conditions under which they might be applied.
53. The Criminal Procedure (Amendment) (Scotland) Act 2004 provides that where a person has been refused bail the court, on that person's application, shall consider whether the imposition of a movement restriction condition with a remote monitoring requirement would enable the court to release that person on bail. This provision therefore only comes into play when a court has considered and rejected the option of bail on other conditions and concluded that the person should be remanded in custody. The 2004 Act also provides an additional power to enable the Sheriff Court or the High Court to impose a remote monitoring requirement as an additional condition of bail at its own discretion in a case where the person appears on indictment or petition charged with, or convicted (pre appeal) of, murder or rape and the court is granting bail subject to a movement restriction condition.
54. The Group understand that the Scottish Executive intend to introduce pilots from April 2005 to test the usefulness of electronic monitoring within the terms of the legislation in the 2004 Act. Depending on the outcome of these pilots the Group believe that the Executive should consider extending the availability of electronic monitoring.
9 - The Scottish Prison Service (SPS), with the Service Provider, should consider ways in which the systems for monitoring prisoners could be improved.
10 - The Scottish Executive should, depending on the outcome of the pilots, consider extending the availability of electronic monitoring for bail.
Local Criminal Justice Boards
55. The Group are aware that as a result of the 'Normand' report Local Criminal Justice Boards are being formed to support performance and jointly influence (such Boards are chaired by the Sheriffs Principal, with Police, COPFS, and Scottish Court Service representation) the shape and delivery of the criminal justice system. The Group consider that, with their oversight of performance, such Boards are best placed to consider and put into action strategic changes, in the longer term. Accordingly the Group believe that the issue of outstanding warrants should feature as a standing item for such Boards to consider. This will ensure a more integrated and strategic approach being introduced across the country but reflect a local perspective and/or identify any distinct local issues.
11 - Outstanding warrants should be a standing item for consideration by Local Criminal Justice Boards.
National / local performance indicators (PIs)
56. In making the last recommendation the Group considered and agreed that if accepted and warrants were to feature as a standing item for consideration by Local Criminal Justice Boards, it followed that the Boards would need to be furnished with meaningful management information. Given the complexity of the processes (e.g. differences in performance in the execution of warrants is probably due to history, geography, and other particular local circumstances) and the timescale within it was required to produce its Report the Group did not attempt to come up with an appropriate set of national and/or local performance measures in relation to the successful execution of warrants. Performance indicators are used in other areas of the criminal justice system, acting as measures of accountability and control, and helping in the process of policy evaluation. Whilst PIs have their uses the Group recognised that they can only act as a summary and that exclusive reliance on them can give a misleading view of performance. Notwithstanding the Group agreed that in principle it supported the development of appropriate PIs and that the National Criminal Justice Board was best placed to consider this issue further.
12 - In pursuance of recommendation 11, the National Criminal Justice Board should consider the development of appropriate measures of organisational performance covering the warrants process.
The Group mapped out the warrants process, identifying the critical decision-making points. Appendix B sets this out in diagrammatical form. The process is, self-evidently, a very complex one. It is a mix of legal requirement and custom and practice that have developed over the years. Each participant in the system understands its own role and the interface with other parties. The Group consider that this process, though complex, is generally administered effectively, as evidenced by the number of errors in comparison with the total number of warrants and prisoners handled.
There were, of course, a number of incidents earlier this year when prisoners were released in error. These received widespread media coverage. The Group has reviewed each of these incidents, and set them against the process mapped out in Appendix B. The problems generally arose at the point where the decision to release the prisoner is taken, rather than with the information available to inform that decision.
The Group remain of the view that most of the present process does not gives cause for concern. The following paragraphs look at steps that can be taken to avoid errors at the critical stage. There is no doubt that there would be merit in subjecting the process to a more fundamental review. Any such review would need to take great care not to introduce problems elsewhere in the system.
Personal Escort Record (PER)
57. Given the complexity of the prisoner escorting and court custody procedures, as mapped out in the chart at Appendix B, the Group recognised that effective communications was always going to be a challenge. The problems apparent with the internal and external communications between the Service Provider and the other parts of the criminal justice system, was evident from the incidents considered by the Group. There was a lack of clarity, by certain individuals, about the status of the Prisoner Escort Record form at key stages in the prisoner transfer process. Also the format of this form and the historically developed practice of continually annotating the PER to capture additional relevant information as the prisoner moved from one part of the system to another provided opportunities for confusion. In a sense, these are not new issues. In the absence of both a fully integrated IT system that is able to link different parts of the criminal justice system together, and the systematic use of e-mail and other electronic communication systems, the PER will remain the key document on which decisions are based. The processes surrounding its use need to be set out more clearly so that the opportunities for error are minimised.
58. The contract which underpins these arrangements appears to anticipate and/or recognise some of these concerns, especially the current design, format and use (or misuse) of the PER, with its clear view that the PER should be the subject of review.
59. It is recognised that, by virtue of these contractual obligations, consideration is already being given to improving and possibly augmenting the PER with up to date photographs of prisoners (at the time of writing digital imaging is being piloted by the Service Provider- with the possibility of it being rolled out elsewhere) to be prominently displayed on the front of prisoner property bags. These moves are welcomed by the Group and should continue. In this connection the Group understand that currently the police and PF reference numbers can appear on the PER for warrants but not for custody cases, as this information is not available in the initial stages. The Group consider that the inclusion of both sets of reference numbers should feature on all PER forms or on any future prisoner escort document, as a simple cross checking safeguard.
13 - (a) The Scottish Prison Service should pursue with the Service Provider a review the PER form, reflecting the views and needs of partner agencies, as required by the contract; and
(b)all parties should ensure that procedures for production and updating of the PER are agreed, documented and clearly understood
14 - The police and SPS should ensure that police and PF reference numbers should appear routinely on the PER or on any future prisoner escort document.
Conveyance of Documentation
60. The proper conveyance of prisoner paperwork has also been problematic. Difficulties with prisoner paperwork being transported separately by the police instead of with the prisoners in Service Provider vehicles have been reported. In this connection the following contract reference is relevant:
"The Service Provider shall ensure that appropriate and auditable arrangements exist and are maintained to record any transfer of Prisoners from, or to, any legal holding agency to the Service Provider, on each and every occasion that the Prisoner passes from one legal holding agency to another. Each Prisoner must be positively identified at the time of collection from any agency. The Service Provider must, as a minimum.
Be responsible for the safe keeping and transportation of official records, and other documentation;
Account for all items received and handed over;
Be responsible for the security and safe custody of each Prisoner."
61. Whilst this issue will probably be resolved with the future roll out of IT and the acceptance of electronically generated documentation, photographs, warrants etc, the Group make the following recommendations.
15 - The SPS, to pursue with the Service Provider, the development and maintenance of procedures to ensure that the PER or any future prisoner related paper-based data accompanies the prisoner at all times.
Organisational and Managerial Development
62. A difficulty that runs through the prisoner handling processes is the occasional failure in co-ordination and communication between the prisons, police offices, and courts. The dilemma exists that Service Provider staff, with short-term responsibility for the prisoner and a limited knowledge of their circumstances and the complexity of Scotland's criminal procedures, generally, has the ability to greatly increase the likelihood of prisoner being wrongly released from legal custody. Having said that the Group regard it as likely that such errors will lessen, as Service Provider staff become familiar with prisoner handling processes and more aware of Scottish criminal procedures. However the Group felt that the system would be improved if one key individual in each court bar area took on a "Gatekeeper" role and had responsibility for taking the decision on whether to release the prisoner.
16 - The SPS to pursue with the Service Provider the identification and training of a cohort of staff to undertake a "Gatekeeper" role, akin to the Duty Officer/police Sergeant that existed prior to the contract roll out. Such an officer's roles and responsibilities should be clearly defined and that it is made explicit that they are not diverted from regular prisoner escort duties or ancillary tasks.
Telephone links to on-call advice
63. The Group recognised that the transfer of prisoners throughout the criminal justice system has the potential to lead to uncertainty about responsibility for individuals in custody and their status at any given point in their journey. In most instances the documents that accompany the prisoner should provide the answer. However there will always be circumstances when the staff on the ground holding an individual in custody need timely, detailed and explicit advice to establish the legal status of a prisoner and/or the competency of the circumstances in which they are held or disposed of. The Group noted that COPFS have on-call Fiscal arrangements for all offices and the police are able to contact Fiscals for out of hour's advice and instructions. For obvious legal and contractual reasons the COPFS has no similar contact arrangements in place with the Service Provider.
64. It is not unreasonable to suggest that such advice should be made available from the Service Provider's own advisers, possibly augmented by appropriate information from Sheriff and where appropriate District Court Clerks i.e. those District Courts which routinely experience a high volume of prisoner processing. The Service Provider needs to be satisfied about the legality of their actions, not least to better identify those risks which may impact upon their continuing to detain prisoners and thereafter to decide if these risks can be mitigated, transferred or allowed for in a suitable contingency. The Group were encouragd to leand that SCS had established formal lines of communication with the SPS Monitor that allowed SCS staff to be contacted out of hours to resolve any issues about the terms of extract warrants. The Group agreed that there would be benefits in having similar arrangements with District Court Clerks in high volume courts
17 - The SPS to pursue with the Service Provider consideration of the establishment of its own on call out of hours advice.
18 - The SPS to pursue with the Service Provider consideration of the establishment of formal out of hours lines of communication, where appropriate, with District Court Clerks so that information about the continued detention of prisoners subject to e.g. extract warrants of committal are able to be conveyed in a timely, detailed and explicit manner.
Links with Procurators Fiscal
65. At present the Police National Computer (PNC) is checked for any outstanding warrants in relation to any person stopped by the police for questioning or arrested by them. They are then taken to Court to answer these warrants.
66. There are, however numerous occasions where an accused attends properly at Court without the need of any warrant being executed and is subsequently sentenced to a period of imprisonment. No check is presently made by any partner agency at that stage in relation to any outstanding warrant.
67. The only way in which the Procurator Fiscal is likely to be aware of an outstanding warrant in such circumstances is when the accused's solicitor writes in requesting that a date be arranged for his client to be brought from custody to appear on the warrant, this does not happen on every case.
68. In order to assist with the execution of such warrants and thus reduce the number outstanding ISCJIS partners should examine the possibility of the existing computer system trawling its database upon the sentence of imprisonment to identify if any outstanding warrants exist for that accused and sending an electronic intimation to the Procurator's Fiscal Office holding such warrant. The Procurator Fiscal would then be aware of the imprisonment and could arrange for the accused to be brought from custody to obtemper that warrant. This would allow for much more speedy and timeous execution and reduce the number of warrants outstanding for long periods. It would also reduce the number of occasions when local police are attempting to execute warrants at known addresses only to find the accused is not there but unbeknown to them is presently serving a custodial sentence.
19 - The ISCJIS Programme Board should examine the possibility of the existing computer system trawling its database upon the sentence of imprisonment to identify if any outstanding warrants exist for that accused and sending an electronic intimation to the Procurator's Fiscal Office holding such warrant.
Television link from court to prison or other place of detention
69. Whilst not within the terms of reference of the Group it did consider whether greater use should be made of television links between courts and prisons or other places of detention. Section 64 of the Criminal Justice (Scotland) Act 2003, which commenced on 27 June 2003, enables court proceedings to take place by television link in both summary and solemn procedure and in the High Court and the sheriff court. It allows all proceedings to be heard by means of a television link to the place of remand, committal or imprisonment of the accused. Of course the presiding judge has an overriding discretion at any stage to rule that, in the interests of justice, any proceedings are not suitable for using the TV link. This removes the need for remand prisoners to attend court for every routine hearing, thereby reducing the cost of conveying prisoners to and from court facilities and enhancing the security aspect of the remand of these prisoners. A live television link between HM Prison Barlinnie and Glasgow Sheriff Court for full committal proceedings, where the volume of prisoners in transit on a daily basis is the greatest, has operated as a pilot since October 2003. This has been replicated in Airdrie, Hamilton, and Paisley Sheriff Courts and is fully operational.
70. The Group note that SPS and the Scottish Court Service have established a working group to consider scope for further extension of the system. The Group welcome such developments but acknowledge that there are obvious resource considerations that need to take place and that any further roll out of this initiative will have court scheduling issues that will also need to be resolved.
The transfer of sheriff court proceedings
71. Again, the Group felt that dealing with multiple cases ("roll ups") and the transfer of court business was outwith the scope of the Group's review. However the Group did consider whether the operational effectiveness of the criminal justice system could be improved if cases could be transferred more easily from one Sheriffdom to another even if the crime is not connected with the Sheriffdom. The Group noted that Section 58 of the Criminal Justice (Scotland) Act 2003, which was brought into force on 27 June 2003, allows for the transfer of court business both within and outwith a sheriffdom. These relatively new arrangements for transfer outwith the sheriffdom only apply in exceptional circumstances where the "home" Sheriffdom is not in a position to handle the case.
72. It is acknowledged by the Group that the issue of transfer of proceedings between courts was fully considered by the McInnes Committee and that any further considerations in this area is on the McInnes agenda.
Electronic transfer of documents
73. The Working Group noted that the Protocol Group tasked with the establishment of the COPFS/ACPOS protocol had asked ISCJIS (circa Oct 2003) to examine the issue of electronic transfer of documents amongst the Scottish Court Service, Police, and Procurators Fiscal. The Working Group is aware that a separate multi agency group was formed over a year ago to look at the possibility of having an Electronic Search Warrant. This was to facilitate out of hours requests and was trying to take advantage of Section 8 of the Electronic Communications Act 2000 and Section 82 of the Criminal Justice (Scotland) Act 2003 i.e. modifying the common law, the Criminal Procedure (Scotland) Act 1995 and the Oaths Act 1978 so as to facilitate the electronic communication of search warrants.
74. The Working Group can see no reason why, if this can be achieved for search warrants, this facility cannot be extended to other warrants such as apprehension warrants and recommend that multi agency working group be established to consider how best to facilitate the electronic transfer of all types of warrant.
20 - A working group be established under the direction of the ISCJIS Programme Board to consider how best to facilitate the electronic transfer of all types of warrant.
75. It was important that those responsible for the care, custody and transportation of prisoners should be able to access appropriate personal information about such prisoners, including outstanding warrants, photographs and tattoos etc. In this connection it is recognised that advances in IT and the availability of integrated databases such as SCRO/PNC/SPIN would better inform such prisoner movements although it is also acknowledged that there existed obvious and valid security/confidentiality issues involved in providing Service Provider personnel with access, albeit limited, to such databases that would have to be resolved with both the ISCJIS programme board and SCRO. Notwithstanding it is acknowledged that the Service Provider is fulfilling a public service and therefore needs to be provided with appropriate information in order to carry out its duties satisfactorily. Accordingly the Group looked at the ways and means of securing appropriate PNC/SCRO accreditation for Service Provider staff.
76. As part of these deliberations the Group heard that new Criminal History System terminals would need to be installed either at all courts or at a central administration unit; it was apparent that the costs in this exercise would be prohibitive; the question of PITO allowing the Service Provider access to PNC was not certain; and the Service Provider does not have access to the PNC database in England/Wales.
77. In light of these various findings the Group consider that other options should be considered in the short term.