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INSPECTORATE OF PROSECUTION IN SCOTLAND
Thematic Report on Crown Office and Procurator Fiscal
Service's Response on Race Issues
CHAPTER 1
BACKGROUND
Crown Office and Procurator Fiscal Service (COPFS) is
the sole prosecuting authority in Scotland and also
investigates sudden deaths and complaints against the
police which are of a criminal nature.
Additionally the Crown is
ultimus haeres, or the "ultimate heir" and the
following property falls to the Crown and its
administration to COPFS, through the office of the Queen's
and Lord Treasurer's Remembrancer -
- the estate of persons dying without leaving a will
and with no traceable blood relatives;
- the net assets of dissolved companies and other
organisations which are no longer operating;
- treasure trove - essentially portable antiquities
which have been taken out of the ground.
The area of COPFS work that is most well known by the
public is in the investigation and prosecution of
crime.
Even here however the role of the Crown Office and
Procurator Fiscal Service is one which is probably not well
understood by the public. It would appear that the
different responsibilities of the component parts of the
justice system are not widely and publicly understood.
Crown Office and Procurator Fiscal Service
(COPFS)
COPFS is a Department of the Scottish Executive, the
ministerial head is the Lord Advocate whose position is
protected by the Scotland Act 1998 Sections 48 and 29.
Although the Lord Advocate's appointment is political
decisions taken by him in respect of prosecutions and
deaths are taken independently and he is not subject in
that regard to the normal rule of collective ministerial
decisions. At ministerial level the Solicitor General for
Scotland assists him.
The Civil Service head of the Department is the Chief
Executive who is the accountable officer and whose
principal role is the corporate leadership of the
Department. The Crown Agent is the principal advisor on
prosecution policy and is head of the profession and
assists him. (At the time of writing the two posts have
been conjoined.)
The Department was restructured in 2002 following a
review of its management and organisation (the Price/Dyer
review) and now consists of 11 Areas (previously six
Regions) each headed by an Area Procurator Fiscal who
reports to the Chief Executive. The Area Procurator Fiscal
is responsible for the quality and timeliness of legal
decision-making in their area and this is especially true
in the case of race crime. The Areas are divided into
District Offices headed up by a District Procurator Fiscal
and legal and administrative staff. The 11 Areas match the
main police areas replicating similar changes in England to
the Crown Prosecution Service.
Procurators Fiscal receive reports in relation to crimes
(approximately 300,000 per year) and sudden deaths
(approximately 14,000) from the police and a range of other
reporting agencies including the Health and Safety
Executive, Inland Revenue and local authorities. The
Department is responsible for making decisions about and
bringing prosecutions for almost all criminal offences both
under statute and at common law. Private prosecutions are
rare.
In general terms Procurators Fiscal have responsibility
for the investigation of any crime within their
jurisdiction.
While the Procurator Fiscal has authority to direct and
control investigations carried out by the police there is
no related power to direct and control the investigation
and reporting of crimes by the non-police reporting
agencies.
The modern, practical reality of the relationship
between the police and COPFS is such that the vast majority
of criminal offences are initially detected, investigated
and reported by the police without any initial involvement
from COPFS.
It is the duty of COPFS to ensure that all evidence
relevant to a crime investigated is secured, including
evidence favourable to an accused person.
Serious cases are further investigated through a process
undertaken by the Fiscal or a member of legal or
precognition staff called "precognition" and the final
decision on prosecution is made at Crown Office.
When representing the Department in court the Fiscal
represents the public interest, he or she does not
exclusively represent the interests say of a victim or the
relative of the deceased but the whole of the public
interest and that includes the interests of the
accused.
Sentence is a matter for the court and not for the
Fiscal and the Fiscal would not generally make any comment
to the court on this with limited exceptions.
Traditionally the Crown was generally not concerned with
sentence at all and it is only in relatively recent times
that the Crown has obtained the ability to appeal against a
sentence that is
unduly lenient (and not just lenient) or inappropriate. That
right is used sparingly and only after Crown Counsel's
instructions obtained. Crown Counsel are appointed by the
Lord Advocate to assist him. Traditionally Crown Counsel
have been recruited from the ranks of the Scottish Bar but
some solicitors (with a right of audience to appear in the
High Court) have recently been appointed, including
Departmental personnel. They are also referred to as
Advocate Deputes.
The Appeal Court recognises that sentence is essentially
a matter for the sentencing judge or sheriff. A sentence
will be held by the court to be unduly lenient only if it
falls outside the range of sentences which a sentencing
judge, applying his mind to all the relevant factors, could
reasonably have considered to be appropriate.
When a trial judge has heard evidence he is, in general
held to be in a better position than the Appeal Court to
determine the appropriate sentence.
The decision on whether or not to prosecute and in what
form is of course an important one and taken by the
Procurator Fiscal and not by the police or other reporting
agency. In serious cases the Procurator Fiscal is obliged
to report the case to Crown Office, which is the
Departmental headquarters where Crown Counsel consider such
cases.
In deciding whether or not to prosecute the Procurator
Fiscal must first assess whether there is sufficient
evidence to justify proceedings. In Scotland generally
corroboration or evidence from two sources is required
before a case can proceed. A single uncorroborated
complainer, no matter how credible, is insufficient. If
there is sufficient evidence the Procurator Fiscal must
then consider what action should be taken having regard to
the perceived public interest. This is especially the case
in relation to race crime and we will return to that in
more detail in Chapter Two.
Prosecution in court is not the only option where there
is sufficient evidence; recent years have seen a
considerable growth in alternatives to prosecution
including fiscal fines, conditional offers, diversion and
warnings. There is no Scottish equivalent of the English
test of the probability of conviction but the Department
has produced a prosecution code that sets out the criteria
for decision-making.
The current practice is not to give reasons for
decisions not to proceed with a case. Historically this was
based on a number of considerations including the fact that
statements to the Fiscal are confidential and it would not
be fair to the accused to have a form of trial outwith the
court process. However, the Department is currently
reviewing policy in this area and a change of approach is
possible.
The Historical Perspective
As far back as 1989 it had been agreed that liaison
between Community Relations Councils (as Race Equality
Councils were then called) and the Procurator Fiscal was
appropriate. The then Lord Advocate, keen to foster good
working relationships with the Community Relations
Councils, welcomed approaches to and discussions with the
Procurators Fiscal by representatives of Community
Relations Councils and similar bodies.
The Department's first training on racial and cultural
awareness took place in the autumn of 1995. This was
organised internally with the co-operation of the
Commission for Racial Equality (CRE). Attendance was
voluntary and designed for all levels of staff. There was
no cascading of the training. The seminar was launched by
the then Lord Advocate, Andrew Hardie and addressed by the
Head of Community Involvement of Lothian and Borders
Police, by Dr Jogee of the Commission for Racial Equality
in Scotland, by Dr Robert Shiels at that time attached to
Crown Office Policy Group and representatives of the then
existing Racial Equality Councils. Delegates from the
Commission for Racial Equality and Racial Equality Councils
attended and participated in syndicate discussions which
were based around case studies.
Additionally in 1995 the Judicial Studies Board paper on
body language and cross-cultural communication was issued
to all legal and precognition staff. The paper sets out key
areas where cultural differences can lead to
miscommunication and misunderstandings in court.
This was followed by a course for interpreters in early
1996 and since then members of Crown Office Policy Group
have been regularly involved in providing training for
interpreters.
At this time, however, the Crown Office did not have a
developed policy on racial awareness although commitment to
one was beginning to emerge. When Lord Hardie became Lord
Advocate in 1997 he signed up to the leadership challenge,
an initiative developed by the Commission for Racial
Equality which invited those in positions of influence and
authority in all areas of Scottish society to take an
individual and personal lead in promoting the principles of
racial equality, creating a climate for change and
effecting change with the goal of eradicating racial
discrimination. This was a significant move supported by
the ministerial head of the Department.
In January 1998 Crown Office and Scottish Court Service
published a joint statement on Crown witnesses. It
committed both Departments to treating witnesses with
courtesy in giving a prompt response to their inquiries
including requests for information about case progress and
disposal. It also required both organisations to treat all
witnesses fairly and give consideration to their interests
whatever their race, sex, religion, age or any special
need.
Crown Office practice and policy guidance to the Service
is by way of a Book of Regulations, which is regularly
updated, and by the issue of Crown Office Circulars. In May
1998 Chapters 12 and 13 of this book, which deal with
deaths and public inquiries, were revised and an annexe was
included which contained information on religious and
cultural requirements for various ethnic groups, which
needed to be borne in mind by Fiscals when investigating
deaths. During the summer of 1998 awareness raising
seminars dealing with these chapters were held in Glasgow
and Edinburgh for members of the Senior Civil Service.
As a result of a review and consolidation of existing
policy guidance by Crown Office Policy Group in 1997/8 the
Judicial Studies Board paper on body language and
cross-cultural communication was re-issued to all legal and
precognition staff in COPFS in August 1998. It sets out key
areas where cultural differences can lead to
miscommunication and misunderstandings in court.
In the meantime Parliament created new significant
statutory provisions in the Crime and Disorder Act 1998.
This created the statutory offences of racially aggravated
harassment and racially aggravated behaviour. These came
into force on 30 September 1998 by inserting Section 50(A)
into the Criminal Law (Consolidation) (Scotland) Act 1995.
We will return to this later.
By the late 1980s concern had been expressed by the
Commission for Racial Equality about the little, if any,
resort made to legislative provisions in cases where racial
prejudice was apparently a factor.
Traditionally the general view in Crown Office was that
such incidents could be better dealt with by the common law
and that care would always be taken to bring to the
attention of the court circumstances tending to suggest
that racial prejudice, or indeed religious bigotry or
similar prejudice, was a factor in the particular case.
Until 29 September 1998 there was no stated policy
specifically on the subject of cases involving racial
prejudice.
Prior to the enactment of the 1998 Act the Department
consulted with the Commission for Racial Equality on what
guidance should be issued to Fiscals. At that time the Lord
Advocate Lord Hardie sent a draft of his intended
guidelines to the CRE. This was the first time that a Lord
Advocate had gone out to consultation in this manner. The
guidelines took into account the comments of the
Commission.
This guidance to Fiscals was issued on 29 September 1998
and again this will be dealt with later in more detail in
our report, but a firm policy was adopted in the
prosecution of these new offences. Lord Hardie repeatedly
made the nature of the guidance public in speeches.
The Report of the Stephen Lawrence Inquiry
Following the Stephen Lawrence murder in England, Sir
William MacPherson reported to the Home Secretary in
February 1999 with a large number of recommendations.
Recommendations 33 and 34 which were respectively a
presumption in favour of prosecution and also that care
should be taken to preserve any evidence of racial
motivation when pleas were agreed, were accepted by Lord
Hardie. Appropriate guidance was issued to Fiscals
following that on 6 April 1999.
The MacPherson Report was discussed at a Senior Civil
Service Seminar (consisting of all the Senior Civil Servant
Fiscals in Scotland and Crown Office staff) in April
1999.
The definition of "institutional racism" is a difficult
one for most organisations to understand and take on board
but Lord Hardie's position, stated publicly, was that
criminal justice agencies must assume that institutional
racism exists or risk complacency.
Lord Hardie commissioned an action plan on race matters
from Crown Office Policy Group which was completed in June
1999. This pre-dated the first of the Chhokar trials. The
plan covered prosecution and also investigations of deaths,
training, recruitment and retention and external
relations.
There then followed a rollout of racial and cultural
awareness training which started in September 1999.
Training was to be cascaded through the then six Regions
and all Regions were invited to seek input from Racial
Equality Councils and other local community groups and this
training was rolled out to the whole of the Service between
September 1999 and May 2000. It included a cultural
awareness guide. This guide gives a description of cultural
aspects relating to Buddhists, Chinese, Hindus, Jews,
Muslims, and Sikhs including details of religious beliefs,
diet, naming systems and customs following death. It also
contains contact details for the Commission for Racial
Equality and Racial Equality Councils as well as local
community and religious groups.
Internal debriefing indicated that the training had
received a mixed reaction. It was felt by some that certain
stereotypes were being reinforced. Evaluation forms were
completed and then analysed by Crown Office staff. The
results of that analysis indicated that some staff felt the
training was helpful and they could benefit from more
training. Some commented that they wished the training more
focussed on their jobs and how it should impact on the
individual. This initial training tried to cover all staff
in one session which was fine for an introductory training
session but needed to be reviewed.
The Department accepted that lessons had to be learned
from this initial training and that there had been
criticism that there was no consistency in the training
across the Service and questions had been raised about how
much of the training should be cascaded on a local basis
and how much be delivered by a dedicated team visiting
offices around the country. The training which had been
delivered involved local offices contacting local Racial
Equality Councils to assist in providing the training. This
had the benefit in reflecting local differences in ethnic
populations eg in Aberdeen there was a large Chinese
community whereas other areas of the country had
considerable Asian populations.
Crown Office staff were also included in this rollout of
training and a number of Advocate Deputes also attended.
The book prepared by the Judicial Studies Board in England
was circulated to Advocate Deputes.
Mainstreaming
Crown Office and Procurator Fiscal Service also
recognised the need to mainstream anti-racist training and
this was taken forward by including appropriate content
within existing training courses notably the core course
for new legal staff and the precognition core course.
The in-house view was that this initial training was
successful in achieving the overall aim of raising
awareness of the issues.
Additionally, to meet the recognised need for
mainstreaming anti-racist training the Race Strategy Group,
chaired by the Solicitor General, commissioned work by
Rowena Arshad of Edinburgh University to assist in
determining the appropriate content of mainstreamed
anti-racist training. This was recognised as a first step
and that the commitment required to be ongoing.
A follow up report was submitted to COPFS in August 2002
and the current Diversity Awareness Programme was
created.
We will return to the question of training later in our
Chapter on Employment.
A number of strategic devices were used to take matters
forward including the creation of the Race Team, Race
Strategy Group, Equality Advisory Group and Area Race
Resource Teams. These will be discussed in subsequent
chapters.
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