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INSPECTORATE OF PROSECUTION IN SCOTLAND
Thematic Report on Crown Office and Procurator Fiscal
Service's Response on Race Issues
CHAPTER 5
CONSULTATION
The Crown Office and Procurator Fiscal Service is
Scotland's sole national prosecution service. Its stated
main aim is to provide an independent modern prosecution
service for the 21
st century - committed to professional
excellence, pursuing cases fairly and consistently in the
public interest and being responsive to
public needs.
The Department stresses that it acts in "the public
interest". One aspect of this is that the prosecutor may
have to take a wider view than that purely of the victim or
witness and can and must on occasions act against the
wishes of victims and witnesses. Domestic abuse cases can
for example fall into this category where the victim may
wish to withdraw the complaint.
"If there is the will and genuine commitment to people
it will bear results. Is there that commitment?"
(Minority ethnic focus group member, Aberdeen,
31 August 2004)
However, this begs the question of how the public
interest can be gauged. The prosecution code contains a
number of pointers which would indicate desirability of a
prosecution in the public interest including obvious
factors such as the seriousness of the offence and impact
on the victim.
At the extremes the prosecution decision is relatively
straightforward, clearly no one would suggest that it would
not be in the public interest to prosecute murders, rapes
etc. However the situation becomes more difficult at the
margins.
This chapter will look at ways in which the Department
tries to contact and engage with the public it serves.
As stated elsewhere a robust prosecution policy on
racist crime was put in place following the commencement of
the Crime and Disorder Act 1998. Uniquely this was after
consultation with the Commission for Racial Equality.
We highlighted the views of a number of individual
victims and witnesses in our Chapter on Race Crime and the
support for the hard line taken by the Department.
A number of devices have been put in place to try and
forge links with the community, these include -
The Race (now Diversity) Strategy Group
This Group was set up in July 2000 under the
Chairmanship of the then Solicitor General Neil Davidson,
QC with the following remit:-
"To develop the Departmental strategy for race issues
and to ensure, oversee and monitor its implementation,
including the commitments in the Strategic Plan for
2000-2003."
The Race Strategy Group also monitors the work of the
Race Team. The Race Team (now Diversity Team) was set up to
develop and support the implementation of the Race Equality
Action Plan (REAP) as required by the Race Relations
(Amendment) Act 2000. It forms part of the Crown Office
Policy Unit. It also provides guidance and advice to the
Area Diversity Resource Teams and acts as a link between
them (in the field) and the Crown Office (at the centre).
It is also responsible for delivering the Department's
Diversity Awareness Programme and provides the secretariat
for the Equality Advisory Group.
"You must give people a way to express their concerns."
(Minority ethnic focus group member, Glasgow, 9
August 2004)
The Race Relations (Amendment) Act 2000 came into force
on 2 April 2001. The Act introduced a general duty on all
public authorities to promote race equality. It requires
all public authorities to take
active steps to meet the new requirements. It gives
the Commission for Racial Equality a central role in
developing and monitoring equality standards and practices.
The duty to promote race equality is imposed by Section 2
and states that "such bodies in carrying out its functions
shall have due regard to the need -
(a) to eliminate unlawful racial discrimination and
(b) to promote equality of opportunity and good
relations between persons of different racial groups".
This is the
general duty imposed by the Act and it is incumbent
on the Lord Advocate and Solicitor General as Law Officers.
As a result of the operation of the Scotland Act 1998 this
duty also extends to the office of Procurator Fiscal and
Procurator Fiscal Depute.
The general duty requires public authorities to be
pro-active in promoting racial equality. This duty
was taken seriously by Crown Office and Procurator Fiscal
Service (as it had to be) and is reflected in the work of
the Race (now Diversity) Strategy Group and the
establishment of first Regional and latterly Area Resource
Teams.
"The challenge is engaging and being equal with every
community."
(Crown Office and Procurator Fiscal Service
Manager, September 2004)
The general duty was added to by the creation of
specific duties to promote race equality to be
imposed on all public bodies to which the general duty
applied. These have been imposed by secondary legislation
and set out in more detail the action public authorities
are required to take in order to comply with the general
duty to promote race equality.
The Race Relations (Specific Duties Order) Scotland 2002
imposes the following specific duties -
- that public authorities prepare and publish a Race
Equality Scheme by 30 November 2002 setting out how
they intend to meet their obligations under the general
duty and any other proposed specific duties to promote
race equality which are relevant to their work;
- that public authorities assess which of their
functions and policies are relevant to the general duty
with regular subsequent reviews (presently
3-yearly);
- that public authorities set out their arrangements
for assessing and consulting on the impact on the
promotion of race equality of policies it is proposing
for adoption;
- that public authorities set out their arrangements
for monitoring for any adverse impact on the promotion
of race equality of policies it has adopted or is
proposing for adoption;
- that public authorities set out their arrangements
for publishing the results of assessments, consultation
and monitoring;
- that public authorities set out their arrangements
for ensuring that minorities have access to information
and to services they provide;
- that public authorities set out their arrangements
for training staff on issues relevant to the duty to
promote race equality.
The obligation to produce the Race Equality Scheme rests
on Scottish Ministers collectively. The Scottish Executive
published an overarching Racial Equality Scheme. The Crown
Office and Procurator Fiscal Service published a detailed
Race Equality Action Plan to guide the work of the
Department on race equality matters (covering the period
November 2002 - November 2005).
The Commission for Racial Equality has produced a number
of useful guidance documents and a Code of Practice.
As stated the Diversity Strategy Group has as one of its
core functions the monitoring of the Race Equality Action
Plan. The Group meets every quarter and does not have a
fixed agenda. Its membership includes in addition to the
Solicitor General who chairs the meeting, the Crown Agent,
Chief Executive, Deputy Crown Agent, Head of Policy, Area
Procurator Fiscal (Glasgow) and representatives of the Race
Team. Members of the Human Resources Department and Press
Office also usually attend.
The Diversity Strategy Group in renaming itself was in
line with developments elsewhere in aligning race, gender
and disability issues contained in the Government's white
paper "Fairness for All". A Diversity Action Plan 2004-2005
was prepared. This was a commitment within the Crown Office
and Procurator Fiscal Service Race Equality Plan.
One of the principal tasks of the Diversity Strategy
Group is to evaluate how well the Department has performed
in meeting its public commitments in the Race Equality
Action Plan and to consider the extent to which performance
and experience has impacted on years 2 and 3 and to outline
recommendations for year 4.
The Crown Office is part of the Scottish Executive-wide
Race Equality Scheme Implementation Group (RESIG). This was
set up to assist the Departments in producing valid Race
Equality Schemes and to monitor progress. The Crown Office
REAP has received favourable comment in this forum.
The first year of the Race Equality Action Plan was an
opportunity to put in place competent mechanisms and
systems that would ensure existing and developing policies
build in an impact assessment tool to determine how
successful or otherwise they have been. This is a difficult
area and one which the Commission for Racial Equality has
been working on. In conjunction with the Home Office Racial
Equality Unit the Commission for Racial Equality has been
developing a framework for carrying out a Race Equality
Impact Assessment (REIA). The guidance on this was made
available on a website commencing in August 2004. As well
as the guidance the website includes important statistical
data, links to relevant and other publications and a list
of useful contacts.
One of the stated aims of the Commission for Racial
Equality in creating the website is to help senior managers
use it as a tool to improve their baseline performance and
compliance with their duties under the Act. One reason for
its creation was frequent requests to the Commission for
Racial Equality from authorities about further support,
advice and guidance on conducting impact assessments.
Given its importance as a central plank of the race
equality strategy of Crown Office the Race Equality Action
Plan is considered in a separate chapter.
As indicated elsewhere we have included in this report
the specific areas of complaint in the Jandoo report to see
how the Department reacted to these strictures and the
action taken in the meantime to meet the criticism.
In addition to that we have devoted a whole Chapter to
Race Crime which although not at the centre of the Jandoo
report is clearly at the centre of the Crown Office's
response on race issues.
The Diversity Strategy Group has an important function
in monitoring centrally the operation of the Race Equality
Action Plan. Much of the day-to-day work is done by the
Race Team which is widely respected and dedicated to its
task.
Impact assessment could be said to be at the heart of
much of the thrust of the 2000 Act and was seen to be a
difficult area.
Guidance from the Commission for Racial Equality
indicated that all policies should be screened for
relevance to the statutory general duty to promote race
equality.
"We've had the Race Relations Act since 1976 and a lot
of things did not happen."
(Minority ethnic focus group member, Glasgow, 9
September 2004)
This screening process should help to identify if the
policy could lead to differential impact on different
groups, whether groups may have particular needs, or if the
policy could provide an opportunity to promote good race
relations.
"They've taken away the temporary posts and that was
one of the vehicles for getting ethnic minority people into
the job. This disproportionately affects the ethnic
minorities."
(Minority ethnic focus group member, Glasgow, 14
October 2004)
The Race Team in order to assist in this process
produced a guide to diversity proofing of policy and
practice.
In describing this the Department emphasises that it is
important to remember that the commitment to race equality
and to the wider diversity agenda is very much the long
term and not to be viewed simply as a 3-year project
plan.
"The guiding principle behind the "proofing" of existing
and future policies is that they should be "proofed", not
only for considerations of race but also for other aspects
of diversity including sexual orientation, gender, age,
disability, religious belief, mental impairment and any
other minority group that may have an interest in the
particular policy area under consideration."
(Crown Office Diversity Proofing Guidance)
Although this particular impetus stems from the Race
Relations (Amendment) Act 2000 it sits well with a
Department which is committed to prosecution and making
decisions "in the public interest". These are specific ways
of assessing, gauging and allowing perceived interest to
frame policies. The stated aim is to ensure that the
Department is taking into consideration and where
reasonable meeting the needs of all individuals from all
parts of society. It gives as an example in the case of
people from the minority ethnic groups effective systems of
provision of interpreting and translation services and also
ensuring that staff are aware of Departmental racial and
cultural awareness guidance material.
The Equality Advisory Group
In the Race Equality Action Plan in the section dealing
with consultation and impact of policy in addition to the
various consultations with the Commission for Racial
Equality and Race Equality Councils mentioned therein there
is also a commitment to establish an Equality Advisory
Group. This is to provide advice and assistance to the
Department in the development of policy and in particular
to provide it with an assessment of the likely impact of
its proposed policies on race equality. The plan was to
establish this group initially as a pilot for one year to
be created during the first year of the plan.
The formal remit of this group, which met for the first
time in June 2003, was to provide independent expert advice
to the Crown Office and Procurator Fiscal Service on
- the impact or likely impact of its existing and
future policies on equality issues;
- any racial, religious and cultural issues which
arise in criminal cases and in particular the likely
liaison needs of bereaved relatives from a minority
ethnic or religious community.
"Be aware of our cultural differences."
(Minority ethnic focus group member, Glasgow, 9
August 2004)
Its membership is drawn from a selection of people with
an interest and experience of race equality matters
including academics with an interest in this area and
people working in race equality organisations.
The creation of the Equality Advisory Group has been an
attempt to introduce another measure of public scrutiny
into policy development and provide a forum for feedback on
the likely impact of policies.
At the time of writing this report the Group had met 6
times commencing on 6 June 2003, it aims to meet quarterly.
The first meeting was attended by the Solicitor General
(Elish Angiolini, QC). The secretariat is provided by the
Crown Office Race Team (now Diversity Team).
It was the intention over the first 12 months for the
group to concentrate on racial issues and then broaden its
focus to include other diversity issues such as disability,
age, gender, sexual orientation and religion. It was
intended to review the work of the group annually and that
membership would last for approximately 2 years. Initially
there were 6 non-Crown Office members and 3 Crown Office
members including the Head of Policy, an Area Fiscal and
Head of the Diversity Team. A member of the Inspectorate
Team was present at most of the meetings.
The creation of the Equality Advisory Group was issued
to the press in May 2003 by way of a news release which
emphasised that the views of members of Scotland's minority
ethnic communities were vital to the development of race
policy at the Crown Office.
In the press statement the Solicitor General,
emphasising the importance of input from minority ethnic
communities in developing race equality policy, said
"
This is a long-term initiative for the
Department and one that we are firmly committed to see
through to fruition. There are no easy answers and no room
for shortcuts. We are actively looking to engage with those
who have a genuine interest in this area. We welcome
comment and constructive feedback. Our development is
dependant on taking note and responding to issues of public
concern wherever possible."
Over the course of the past 18 months the group has
considered a number of topics including
- Diversity training for staff;
- The provision of interpreters and
translations;
- Racially motivated crime;
- Hate crime;
- Impact assessment;
- Diversity proofing;
- Crown Office internal staff Fair Treatment
Policy;
- Video Identification Parades (VIPER);
- Driver Improvement Scheme (a new diversion scheme
for dealing with "careless" drivers (S3 of the Road
Traffic Act 1988);
- Recruitment;
- Deaths Manual (this is advice and instructions
given to Crown Office staff centrally);
- Forensic Pathology (this was a leaflet for
relatives of deceased persons);
- Figures on police compliance with the Lord
Advocate's Guidelines on race crime.
In line with its commitment to review itself after one
year a discussion paper was issued for the meeting on 14
May 2004 on the future direction of the group and inviting
members to consider whether it would be appropriate and
timely to look at its remit, structure and performance
during its first year.
There was acknowledgement that there was a time
implication in referring policy material to the group and
heavy demands made on members' time. The Fair Treatment
Policy was a good example of both of these problems being a
somewhat complex and lengthy document. A greater steer as
to what parts of new policy might usefully be considered
was suggested as was expanding the group although too large
a group was deemed to be unhelpful. Two new members agreed
to join the group, one from the Equalities Network and one
from a disability training background.
The group as stated is examining its own working
practices and future direction. It has probably been most
concerned with the Diversity Awareness rollout to staff and
the effectiveness of that including feedback from the
organisers and trainers and also has been active in the
area of race and hate crime. Although its existence and
minutes of its meetings are posted on the Crown Office
Intranet it is probably fair to say that it has not as yet
been used as extensively as hoped by Fiscals "in the field"
as opposed to central policy staff. This is likely to
develop and Fiscals are encouraged to refer policy issues
to it. This may necessitate different working practices in
the future and possible use of sub-groups to study issues
and report back to the main group.
Its existence was commented favourably on in the first
annual report of the Scottish Executive on its Race
Equality Scheme. In its report it quotes the creation of
the group as an example of good practice and states that
the group brings independent views on policies from experts
and explores how Departments can engage with them. The
membership it states was deliberately chosen to include
constructive critics and to be an independent body to
provide constructive criticism.
It is clearly a worthwhile initiative and it is expected
that it will continue to develop and assist the Department
in formulating policies and assessing their impact on
minority ethnic and other communities.
Area Resource Teams
Area Resource Teams (which replaced Regional Resource
Teams) were established in 2002.
Their remit and role was
To implement the Departmental strategy on race issues
wherever relevant within the Area context and in particular
have regard to:-
- The monitoring of prosecution
policy on racist crime (including the quality of police
reports submitted in line with the Lord Advocate's
Guidelines);
- Racial Equality Training at Area
level (including Area induction training);
- Recruitment issues (including a
programme of positive action in liaison with the
Departmental Human Resources Division);
- Issues of translation and
interpreting (including the implementation and
monitoring of Departmental guidance);
- The need to establish and maintain
positive relationships with minority ethnic communities
and organisations (such as Racial Equality Councils)
and
- The need to participate in local
MARIM (Multi-Agency Racist Incident Monitoring) and
community safety groups.
The previous Regional Resource Teams had fulfilled
similar functions, the Department recognising that the
people involved were committed to improving policy and
practice in this area frequently in their own unpaid
time.
"People are enthusiastic and volunteer in their own
time."
(Crown Office and Procurator Fiscal Service
Manager, September 2004)
The new Area Resource Teams came into being as a result
of the restructuring of the Procurator Fiscal Service.
Instructions from Crown Office were issued in September
2002 requiring each Area Fiscal to establish an Area
Resource Team. Adjoining areas were encouraged to join up
for meetings to share good practice and ideas. The previous
Regional Teams had consisted of staff at different levels
both legal and administrative. The work of the Area Teams
was seen as key to achieving the Department's
diversity/equality objectives and an essential part of the
overall restructuring exercise. Area Fiscals were
encouraged to take stock of their inheritance and decide
how to deliver the requirements of the Departmental race
strategy in their area.
"You have to find a way of supporting community groups
and outreach work."
(Minority ethnic focus group member, Aberdeen,
August 2004)
The actual composition of the new teams was left to the
discretion of the Area Fiscals and acknowledgement was made
of the fact that the work could be time-consuming. A mix of
both legal and administrative staff was encouraged and it
was considered important to ask representatives of the
relevant Racial Equality Council to form part of the team
or at least to attend the meetings. The Area Fiscal and the
Area Business Manager were encouraged to be part of the
team. Crown Office would keep a central register of
members.
Quarterly reports were to be submitted to the Race
Strategy Group a week in advance of scheduled quarterly
meetings chaired by the Solicitor General with a senior
member of each team expected to be present to "speak" to
the area report. A style of report was issued outlining the
areas to be covered by the report, these included:-
This included the monitoring of race cases and the Law
Officers made it clear they expected the Area Fiscals to
take personal responsibility for this monitoring and to see
police reports after the initial marking stage and at the
conclusion of the case. This was to ensure that both the
police had complied with the Lord Advocate's Guidelines and
that prosecutors also complied with their instructions.
A style of monitoring form previously used by some
Regional Fiscals was advocated as a useful tool.
Areas were reminded that there would be central
monitoring of compliance in this area (referred to in our
Chapter on Race Crime).
The quarterly reports were to include a return on recent
and proposed training at Area level outlining the racial
equality components.
Area Teams were encouraged to continue "outreach" work
eg attending careers fairs and visiting schools etc. This
was described as a "key" role for Area Teams. This was seen
as important not only for recruitment purposes but for
regaining the trust of minority ethnic communities.
- Interpreting and Translating
Areas were encouraged to strengthen links with local
interpreting services and use of Language Line (installed
in all offices).
Areas were expected to report on relations with Racial
Equality Councils and MARIM groups. The report was to cover
other networking initiatives.
A guidance pack was prepared by the Crown Office Race
Team which was a consolidation of ideas and included
speeches, PowerPoint presentations and guidance on how to
run induction programmes. This has been made available to
all on the Crown Office Intranet.
Much good work was seen to be done by the Area Resource
Teams including an array of sponsored events. For example
the Glasgow office sponsored an event targeted at ladies
from a minority ethnic background on 12 November 2003 which
was well received.
With 11 Areas spread over the whole of Scotland it was
not feasible to visit all and a questionnaire was sent out
to all Area Fiscals asking for feedback on a number of
areas. The responses indicate that:-
- All Areas used both legal and administrative staff
for the Teams, minority ethnic staff were not
specifically targeted;
- In 7 cases wider diversity issues were considered,
only 4 Areas limiting themselves to race;
- Minutes were kept in all cases, usually sent to
team members and in some cases put in common
folders;
- 6 Areas had "specialist" race Deputes;
- 3 Areas had members particularly trained in the
race arena eg by attending the University of Paisley
course on Race Equality;
- The Area Fiscal accepted responsibility for
collating the race crime statistics but only 2 said
they read all the cases;
- Failures on the part of the police to comply with
the Lord Advocate's Guidelines would be brought to
their attention in 10 cases, curiously in one case no
referral would be made although our question prompted a
change of view;
- 7 Areas had sponsored specific events;
- 8 Areas had links to other ethnic minority groups
in the local community.
Overall the Area Resource Teams were and are a major
outreach initiative. In Strathclyde the 4 Area Fiscals had
the benefit of secondees from the West of Scotland Racial
Equality Council who assisted with the work of their
groups. This was the most "formal" arrangement but other
more informal arrangements existed elsewhere.
"You have to have meetings in the ethnic minority
communities and say what you do."
(Minority ethnic focus group member, Aberdeen,
August 2004)
Our only concern was with maintaining the momentum. It
was not always clear that Areas understood fully their
obligations to monitor race cases and there was a danger of
slippage. We would have made recommendations for
maintaining the momentum but the Crown Office itself
decided in October 2004 to make changes. The national
(quarterly) team meetings would no longer take place. This
function was to be taken over by the Legal and Policy Forum
and the Management Board on a 3-monthly basis.
The Legal and Policy Forum consists of the Chief
Executive, Crown Agent, all 11 Area Fiscals and other
senior management figures. Its remit is to take the lead in
the development of prosecution policy and consider legal
and operational issues within COPFS. It meets monthly at
different locations around the country.
The Management Board consists of the Chief Executive,
Crown Agent, 3 of the principal Area Fiscals and other
senior COPFS staff and deals with overall strategy. It also
meets monthly.
Reports from these would be considered at 6-monthly
meetings of the Diversity Strategy Group (formerly the Race
Strategy Group). This will continue to be chaired by the
Solicitor General. It cannot be over-emphasised that this
steer from one of the Law Officers sends a signal to the
Department of the continuing importance of this work. It
was acknowledged that it was difficult for various reasons
to maintain the quarterly national meetings.
The Legal and Policy Forum and the Management Board
would assume this mantle. The Legal and Policy Forum would
have reports from Areas as a standing agenda item. The
emphasis at the Management Board would be on strategic
diversity issues relating to the workforce, Human Resources
policy, training and development, accommodation and estates
issues. Both groups would have responsibility for
monitoring the Race Equality Action Plan (REAP).
The proposed use of the Legal and Policy Forum and the
Management Board as places for assessing diversity
performance and testing policy and strategy is intended to
allow reports from them to inform the Diversity Strategy
Group in its higher strategic function. The Chief Executive
and/or Crown Agent would report on a 6-monthly basis to the
Diversity Strategy Group.
The Inspectorate is committed in terms of the Jandoo
Action Plan to regularly "audit" Area and District Offices
for compliance with policy and guidance and this will
afford an opportunity to revisit this area of work and
monitor progress on the new system.
Recommendation 11
We would, however, recommend that the
guidance on the collection of race crime statistics be
beefed up to make it clear who is expected to read
reports and submit statistics.
Conclusion
As stated in the section on Area Resource Teams the
Diversity Strategy Group is changing. It was the Jandoo
Report which prompted the creation of the then Race
Strategy Group. This could be seen as (quite properly) an
emergency reaction to deal with a major problem and
inevitably as time has gone by the focus has shifted. The
Jandoo recommendations have been included in the
Department's Race Equality Action Plan and compliance
monitored. The Department feels it is time now for the
Diversity Strategy Group to focus on the practical aspects
of proving the Department's compliance with diversity
matters. The emphasis generally has shifted from systems to
results.
The Legal and Policy Forum and the Management Board will
now be the places for assessing Departmental diversity
performance and testing policy and strategy. The shift from
systems to results means that the work of the Legal and
Policy Forum and the Management Board will be essentially
evidence gathering while the Diversity Strategy Group will
concentrate on oversight and higher level consideration of
strategy.
This change was taking place as we went "to press". The
Inspectorate will be interested to see how this
develops.
Overall so far as outreach initiatives are concerned the
Department has in our view gone to considerable lengths to
address the perception of a remote organisation detached
from the public it serves and not accountable for its
actions.
The importance of leadership from the top both at senior
management and ministerial level cannot be over-emphasised
and has been frequently commented on to us in the course of
preparing this report. The Department has been in the van
of new initiatives in creating Area Resource Teams and the
Equality Advisory Group. Although we have some detailed
comments on the operation of these they represent a
considerable investment by the Department in trying to
re-establish itself in the minds of the public. It is clear
to us that there is a considerable appetite for more
information about what the Department does and how it
operates (this of course is not limited to the minority
ethnic communities) and the more it can raise its profile
the better the overall perception will be.
"It is an important commitment to speak to the
community."
(Minority ethnic focus group member, Glasgow, 9
August 2004)
Recommendation 12
That the Department heightens its public
profile, nationally and at local level.
Our main concern is that so much of the current work is
down to the willingness of a cross-section of staff to give
of their time to do this. It would, we feel, be helpful if
instead of an "add on" that this contact function including
attending schools, local events etc could become the work
of a group of individuals who could in this way augment the
work of the Area Resource Teams. This would lead to better
integration of this work.
Our overall view is that while inevitably much of this
is work in progress nevertheless the Department has made
significant strides in improving itself and keeping in
touch with the diverse public it serves.
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