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Aggravated Trespass – Criminal Justice & Public Order Act 1994 (R008988)

Aggravated Trespass – Criminal Justice & Public Order Act 1994  (R008988)

Thank you for your e-mail of 7 November 2014 to the Crown Office and Procurator Fiscal Service (COPFS) National Enquiry Point. Due to the nature of your request it has been treated as a request for information under the Freedom of Information (Scotland) Act 2002 (FOISA). In particular, you have requested the following information:

 

  1. Can you please advise and provide all details, including all records and all forms of correspondence including email, transcripts and minutes of meetings, how many people have been formally charged and the cases considered by COPFS, with the offence of aggravated trespass under the Criminal Justice and Public Order Act 1994, and in what circumstances since 1 January 2004?
  2. Can you please advise and provide all details, including all records and all forms of correspondence including email, transcripts and minutes of meetings, how many cases have proceedings begun with the offence of aggravated trespass under the Criminal Justice and Public Order Act 1994, and in what circumstances since 1 January 2004?
  3. Can you please advise and provide all details, including all records and all forms of correspondence including email, transcripts and minutes of meetings, how many cases has the decision not to proceed been taken in cases of the offence of aggravated trespass under the Criminal Justice and Public Order Act 1994, and in what circumstances since 1 January 2004?
  4. Can you please advise and provide all details, including all records and all forms of correspondence including email, transcripts and minutes of meetings, how many people have been found guilty of the offence of aggravated trespass under the Criminal Justice and Public Order Act 1994, and in what circumstances since 1 January 2004?
  5. Can you please advise and provide all details, including all records and all forms of correspondence including email, transcripts and minutes of meetings, how many people have been found not guilty of the offence of aggravated trespass under the Criminal Justice and Public Order Act 1994, and in what circumstances since 1 January 2004? 
  6. Can you please advise and provide all details, including all records and all forms of correspondence including email, transcripts and minutes of meetings, how many people have been found not proven of the offence of aggravated trespass under the Criminal Justice and Public Order Act 1994, and in what circumstances since 1 January 2004?

It may assist to explain that COPFS uses a live operational case management system, specifically designed to receive criminal and death reports from the police and other specialist reporting agencies and to manage the cases for prosecution purposes.  The information held on the system is structured for these operational needs, rather than for statistical reporting or research purposes.

The requested information about the numbers of cases reported, what action was taken by COPFS and what the decision of the court was in those cases in which court proceedings were taken is contained in Annex A.

The information provided has been collated on the basis of all charges reported to COPFS in financial years 2005/6 until 2013/14. 

You also ask for information about the circumstances of the cases which were reported to the Procurator Fiscal, the cases in which the decision has been taken by the Procurator Fiscal to take court proceedings, the decision has been taken by the Procurator Fiscal to take no action and the circumstances of cases in which, in court proceedings, an accused was found guilty, not guilty and not proven. You ask for all details, including all records and all forms of correspondence including email, transcripts and minutes of meetings, relating to the circumstances of these cases.

By way of background, in Scotland the police report incidents of alleged criminality to the Procurator Fiscal. The Procurator Fiscal, as the independent prosecution authority, decides whether action can be taken in respect of a criminal allegation reported to him based on whether there is sufficient admissible, corroborated, credible evidence, in law, of a crime having been committed. If the Procurator Fiscal concludes that there is sufficient evidence, they will consider what action, if any, should be taken in the public interest.

Even when there is sufficient evidence to prosecute an individual, the Procurator Fiscal has a duty to consider whether or not criminal proceedings are in the overall public interest. I attach below a link to the COPFS Prosecution Code:

Pages 6 – 8 of the Prosecution Code outline the various factors that are to be considered by the Procurator Fiscal in determining whether it is in the public interest to prosecute an accused person.

In relation to questions 4, 5 and 6, accused persons are found guilty, not guilty or not proven in court by a Sheriff, Jury, Stipendiary Magistrate or Justice of the Peace. COPFS has no role in the decision making in court and holds no information about the reasons upon the basis of which the decision is made by the Sheriff, Jury, Stipendiary Magistrate or Justice of the Peace. Therefore COPFS therefore does not hold the information about the circumstances leading to a finding of guilt or otherwise as a result of court proceedings, in terms of section 17 of FOISA.

In relation to questions 1, 2 and 3, I can advise that COPFS makes decisions on whether to start court proceedings or take no action on the basis of reports from the police, witness statements and internal correspondence between COPFS and the police. Each case will be considered on its own merits. 

In many instances the reasons why the Procurator Fiscal has decided to take no action or to commence court proceedings are not written down, and in all such instances COPFS holds no information in terms of section 17 of FOISA.

While we endeavour to provide information where possible, Section 34(1)(a) and (b) of FOISA is likely to apply to information COPFS does hold for all these cases, such as police reports, witness statements and correspondence between the police and COPFS:

34 Investigations by Scottish public authorities and proceedings arising out of such investigations

(1)Information is exempt information if it has at any time been held by a Scottish public authority for the purposes of—
(a)an investigation which the authority has a duty to conduct to ascertain whether a person—
(i)should be prosecuted for an offence; or
(ii)prosecuted for an offence is guilty of it;
(b)an investigation, conducted by the authority, which in the circumstances may lead to a decision by the authority to make a report to the procurator fiscal to enable it to be determined whether criminal proceedings should be instituted; or
(c)criminal proceedings instituted in consequence of a report made by the authority to the procurator fiscal.

This exemption is non-absolute and I have therefore considered whether the public interest nonetheless favours disclosure of the information.  There is a strong public interest in maintaining the confidentiality of information and the courts have traditionally placed great emphasis on assertions on confidentiality in relation to information submitted to the Procurator Fiscal.  This ensures that the agencies responsible for the investigation of alleged crimes or the investigation of a cause of death can report to the Procurator Fiscal in a manner which is free and frank. 

Additionally, all of the information you have requested is exempt under s38(1)(b) of FOISA in that it contains the personal details of third parties, the release of which would be contrary to Schedule 1 of the Data Protection Act 1998.  This is an absolute exemption and accordingly I do not require to apply the public interest test in relation to it.

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