Exclusive:Crown Office faces 'biggest challenge' in years due to time-bar resets, as boss issues delay warning

John Logue, the Crown Agent and chief executive of the Crown Office and Procurator Fiscal Service (COPFS), said he had “concerns” about his organisation’s ability to indict cases that risk falling foul of reset time-bars. But he stressed the Crown Office had “no choice” as he said the process would add strain to a system that is already under intense pressure.

In his first ever media interview, Mr Logue, one of Scotland’s most experienced prosecutors, said the COPFS was up against “the biggest challenge we’ve had to face for a number of years” by having to indict around 2,000 cases by the end of November.

He said the knock-on effect would raise questions about the legislation brought in to ensure the justice system had the necessary flexibility to respond to the Covid-19 pandemic.

“There's no point in us being able to solve our part of the problem by doubling the number of indictments, when the rest of the system has to cope with twice as many High Court cases, and twice as many sheriff and jury cases,” he told The Scotsman.

Across a wide-ranging interview, Mr Logue discussed the speed with which the COPFS responded to the pandemic, when it executed a 12-month plan to roll out laptops to staff in the space of a fortnight, and the evolving way in which prosecutors engage with victims.

But it is the looming time-bar issue that is clearly occupying the mind of Mr Logue and others across the COPFS. Temporary extensions to certain criminal procedures were enacted by legislation in 2020 as part of the Scottish Government’s emergency response to the pandemic. The changes extended the solemn bail and solemn remand time-limits, with the new limits maintained in the Coronavirus (Recovery and Reform) (Scotland) Act 2022.

But after November 30, those extensions will expire, with a return to pre-pandemic limits. In practice, it means the time-bar between an accused’s first appearance on petition and trial will fall back from 18 to 12 months; for those accused on remand, the time limit until their trial will be cut from 320 to 140 days. To meet the challenge, the COPFS is indicting twice as many cases to the High Court as it normally would between now and November.

“We're going to have to because the law says it has to be done,” Mr Logue said. “That's incredibly difficult. I have concerns about our ability to do it, but we have no choice, we're going to have to do it.

“The consequence for us of cases not being indicted because of the time-bar is unacceptable. The reality for us is we're going to indict them all and that's what we've set ourselves the task of doing this year. But there are conversations we are having - we've had to say to the courts, the police, the prisons and the defence that this is what the impact is going to be.”

That impact is likely to be far reaching at a time when the system is dealing with increasing numbers of serious and complex cases, while working to reduce the backlog of scheduled trials brought about by the pandemic.

If the COPFS finds itself running up against time-barred cases, prosecutors can ask for extensions on a case-by-case basis. Alternatively, if it succeeds in bringing cases to court in a timely fashion, they will join a lengthy queue of scheduled trials. Either solution, Mr Logue accepts, will only add to the workload, and even with the temporary expansion of trial court capacity, there is scant room for a stretched system to do more.

“My worry is that either because we have to go and ask for lots of extensions, which limits the ability of courts to get on with trials, or because we put more cases before the court, it will have more cases all at once,” Mr Logue said.

“The system is already at capacity, and not just the number of high courts, but the Faculty of Advocates, the number of lawyers doing criminal defence work - the system is operating at capacity. If you were to put another ten high courts in, where would you get the lawyers and judges?”

Mr Logue pointed out the criminal justice system was unique in terms of having a deadline imposed as part of its Covid-19 recovery, adding: “Parliament hasn't legislated for any other part of the public sector to work in this way, and I think there's a question there to be looked at in terms of if this is the right way to do it.” He said in hindsight, the time-bar reset should have been staggered.

“I think my view of it is that everyone looked at the situation, and was perhaps slightly optimistic,” he said. “There was maybe a bit of optimism bias in there about 2025 being four years away … my preference would have been to go back and come up with a different model. A transitional model would have been the answer to this.”

Mr Logue, who joined the COPFS as a trainee solicitor in 1994, said he was acutely aware of how the ongoing court backlogs and delays meant the organisation was dealing with more victims than ever before. He pointed to innovative new approaches such as the summary case management pilot, and the increased use of evidence by commission, as key tools in ensuring justice is delivered as quickly as possible.

“That increased challenge of workload isn’t about processing or that terrible phrase, widgets,” he stressed. “These are all cases with real victims.”