S5M-05982 Crown Office and Procurator Fiscal Service

The Presiding Officer (Ken Macintosh): The next item of business is a debate on motion S5M-05982, in the name of Margaret Mitchell, on behalf of the Justice Committee, on the committee’s inquiry into the role and purpose of the Crown Office and Procurator Fiscal Service.

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Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

In many ways, our prosecution service works similarly to how prosecution has operated for centuries, but society, and the crimes committed by some in it, have changed.

In my spare time, I am studying the life of John McFeat, who was found guilty of housebreaking and the theft of a coat and a bottle of whisky on the night of 22 to 23 August 1830. The court papers show that the 17-year-old young man had left home after falling out with his father, a chair maker at 36 Leith Walk, after he had refused to give him money for clothes.

McFeat had stayed in lodgings with some other young people for about a week. The precognitions—17 of them—show a young man obviously at a loose end and perhaps egged on by his peers. He broke into the house of his father’s neighbour to obtain drink and stole a coat opportunistically. He and his friends appear to have been larking about on Calton hill and then retired to their lodgings to consume the whisky.

His trial, on 11 November 1830, saw 41 jurors summoned. His guilt was quickly determined—perhaps more rapidly than justice today might demand—and he was transported to New South Wales for seven years. He never returned to Scotland, so that was one Scottish crime wave dealt with.

The story could be reflected in similar activities carried out by similarly bored young people today, and the response—involving police, fiscal, prosecutor, court, witnesses and the method of prosecution—has changed surprisingly little, but today there is scrutiny of a different order, and properly so. The focus is more on reform of the criminal, not merely on punishment, and on supporting all those who are affected by the crime. For the COPFS, there are complexities that were not present in the 1830s, and the arrangements for the accused to have access to legal advice are also much wider. As far as I can see, Mr McFeat had no such advice.

How are we doing? The number of crimes has fallen to the lowest level in 40 years, and our prosecutors make a substantial contribution to that, as do police, societal change, prisons and many other things. At a time of change, staff in the system feel under pressure. Cases are becoming more complex, there is closer attention to process in order to deliver efficiency, which inevitably removes what might be thought of as slack time. Such changes are not always welcome.

Let me address the subject of change. Oliver Mundell argued at some length against change, so I point him to what is now known as the Hawthorne effect. Over an extended period, changes were made in one part of a Western Electric Company factory in Cicero, Illinois, while the other part remained unchanged. After every change, productivity rose and absenteeism dropped. At the end of the trials, the factory was returned to its previous state while the researchers considered their findings—and productivity rose again. It was concluded that the process of change, rather than the nature of the change itself, was the source of benefit to the employee and the company. The Hawthorne effect is now also described as the observer effect and derives simply from taking an interest in people. Well-managed change is good.

The convener referred to court delays. Unhelpfully, perhaps, she failed to develop all the sources of such delays—in particular, that defence counsel can also come to court unable to proceed. Like the prosecution, its difficulty can lie with reluctant witnesses.

Some parts of the system are startlingly efficient. As a member of a predecessor Justice Committee, I visited Glasgow sheriff court on a Monday. We saw an astonishing 50-plus cases moved on in the course of an hour. Was that efficient? Very. Was it effective? Rather less obviously. There seemed to be no novice offenders and engaging the whole panoply of the sheriff court seemed overkill.

The reform of which we heard during the inquiry was, among other things, focused on making better use of court time, which I welcome. In turn, that should create more space for preparation by all involved. I welcome in particular a planned reduction in the use of temporary staff.

In his book “The Mythical Man-Month”, Professor Fred P Brooks posed the question: how do you make a project later? The answer is: add staff. The reason for that is that there is a cost to existing staff of integrating new staff into the team, providing them with knowledge of the local operation and methods and pushing them forward to be fully productive team members. It is not simply that external training is required; the existing team members carry a burden. A reduction in staff churn takes two burdens off the system. There is less time wasted on integration and a larger proportion of the time that staff spend in the service is productive. A further benefit that can be derived comes from staff seeing a task through to its completion. Time taken picking up and putting down items of work is wasted time.

The convener is correct when she points to frustration in delivering improved computer support across the public sector. There was the London Ambulance Service failure under the Tories in the early 1990s and the Scottish Qualifications Authority computer failures under the Labour and Liberal Democrat Administration in the 2000s, and members on the SNP benches have had our failures too. However, the private sector can and does find it difficult to make computer changes too.

Douglas Ross raised court closures as a source of difficulty, but the system appears to be more efficient since the closures. There have been higher throughputs without a corresponding increase in the resource being required to achieve them.

Douglas Ross: Will the member take an intervention?

Stewart Stevenson: In one moment.

Although we heard from some deputes that they felt constrained by the existence of a central unit for marking, others pointed out that it was not a new process and that they did not feel constrained.

Douglas Ross: The member said that I said X, Y and Z about court closures. Will he accept that I was quoting evidence from the bar associations, which highlighted the impact that they see on courts around the north-east of Scotland and the central belt, and that they believe that court closures are having a direct impact on the service that we are providing in Scotland?

Stewart Stevenson: That is a useful clarification and I accept what the member says, but we also heard balancing views.

Rear-admiral Grace Hopper of the US Navy, who retired aged 80 as the oldest-ever regular member of the navy, said that we should act first and apologise later. She means that we should assume that we have the power, and accept that we will be held to account for how we use it, until we are told that we do not.

Mr Ross also rightly spoke of witnesses’ frustrations about delays. I welcome the programme of reform, one of whose outcomes must be to serve the interests of all those who contribute to the delivery of justice. In the early 1980s, I served as a juror in Linlithgow sheriff court in a two-day trial of two accused, each facing seven charges. It was a relatively simple case compared to child abuse, domestic abuse and financial crime—I genuinely wonder how we can help juries make decisions that they will feel more comfortable about in those more complex cases.

We took no evidence from jurors, because what goes on behind the jury room door is secret. For the solemn cases—the most serious—jurors are an important part of the system. In 1830 George Sutherland, a painter and glazier, John McDonald, an innkeeper, and Joseph Astley, a chemist, were jurors in John McFeat’s trial. A similar diversity prevails today.

We saw that support for witnesses today far exceeds that given even 20 years ago. Without witnesses, there can be no trial. Also, where victims could once have been almost invisible, we now have support for them.

The inquiry has been of value in throwing light on a vital part of our criminal justice system and in enabling us on the Justice Committee to hold all responsible for making the system work in future. My understanding—and, I suspect, others’—has been extended and my preparation for my committee role enhanced.

I thank all involved in delivering justice in Scotland. While the optimist in me hopes for an end to the need for any criminal justice system, the realist in me knows that we shall continue to depend on it for time immemorial.

Liam McArthur made a plea for no sentences of under a year. In 1830, no sentences were longer than a year, because if someone was guilty of something worthy of incarceration for longer than a year, they were either taken out and hung or sent to Australia.

I welcome the report and hope that it is a useful contribution to the debate.

The Deputy Presiding Officer: I was listening, Mr Stevenson, but I do not know whether you were advocating such a change in penal policy.

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