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INSPECTORATE OF PROSECUTION IN SCOTLAND
Thematic Report on Crown Office and Procurator Fiscal
Service's Response on Race Issues
ANNEXE C
Crown Office and
Procurator Fiscal Service
LORD ADVOCATE'S GUIDELINES TO CHIEF
CONSTABLES
1. INVESTIGATION AND REPORTING OF RACIST CRIME
2. ASSESSMENT OF LANGUAGE NEEDS AND CULTURAL
SENSITIVITIES
3. DEATH REPORTS AND ASSOCIATED CRIME
REPORTS
INTRODUCTION
Lord Advocate's Guidelines dated May
2001, dealing with the investigation and reporting of
racist crime to Procurators Fiscal, have already been
issued. This consolidated guidance contains the earlier
guidelines and provides further guidance to the police in
relation to issues of reporting of racist crime, assessment
of language needs and cultural sensitivities and the
information which is required by Procurators Fiscal from
the police to ensure that liaison with bereaved relatives
takes place in a manner which is sensitive to their
religious and cultural needs.
Both the recent review of casework
conducted by the Crown Office Race Strategy Group and the
HMIC Report "Without Prejudice?" identified a number of
areas where improvements can be made in both the reporting
by the police of racist crime
and in the information provided by the police to the
Procurator Fiscal in cases:
- of racist crime;
- where victims, witnesses and/or the accused are
from an ethnic minority background and
- where the first or preferred language of the
witnesses and/or accused is not English.
These guidelines have been drafted in
light of the areas highlighted in the reviews by the Crown
and the police and also against the background of the
requirements of the Race Relations (Amendment) Act
2000.
INVESTIGATION AND REPORTING OF RACIST CRIME
Recommendation 12 of the Lawrence
Inquiry Report by Sir William MacPherson states that: -
"A racist incident is any incident
which is perceived to be racist by the victim or any
other person."
The Scottish Executive has accepted this
definition for the purposes of the reporting to, and
recording of, racist crime by the police. The definition
does not alter the onus or the standard of proof in
criminal proceedings and it remains the case that the
prosecutor requires to be satisfied that there is
sufficient evidence to proceed before criminal proceedings
in respect of allegedly racist crime may be taken against
any individual.
It is of crucial importance however that
the prosecutor is advised whether the victim or any other
person has perceived an incident to be racist.
The Lord Advocate therefore directs
that, in the investigation of crime, police officers must
ascertain the perception of the victim and witnesses as to
the motive for the crime
1. This must be fully investigated and clearly recorded.
If racism is perceived to be a factor by the victim or
witnesses this should be investigated and evidence
recorded. Police officers should bear in mind that victims
of racism may be reluctant to express their fears or
beliefs, including their belief that an incident has been
motivated by racism, and that victims reporting racism may
often be doing so against a background of previously
unreported racism. It will be necessary for officers in
such cases to make every effort to ascertain the true
perception of the victim as to the motive for the
crime.
The Procurator Fiscal should always be
advised in police reports of the perception of the victim
and witnesses as to motive. The Procurator Fiscal should
always be advised of the existence, and provided with a
copy, of a racist incident monitoring form.
Bail/Custody/Use of Undertakings
It is important to ensure that
prosecutors and courts are able to consider both requesting
and imposing appropriate special conditions of bail in
cases of repeat offending or where it appears that victims
and witnesses may be at risk.
The Lord Advocate therefore directs that
in cases of racist crime
2 accused persons should be reported in custody where
that is consistent with the Lord Advocate's Guidelines on
Bail which are already in existence. Further, where
reporting in custody is not appropriate in terms of the
existing guidelines, accused persons should be liberated
subject to an undertaking to appear at court in early
course unless there is a good reason not to proceed in this
way.
In cases of racist crime where an early
arrest is not possible the Police should ensure that an
early report is submitted to the Procurator Fiscal in order
that a consideration may be given to an application for a
Warrant to arrest.
In all cases Reporting Officers should
provide an indication of the known language and
interpreting needs of the accused.
Impact of crime on victims
As with all crime, when reporting racist
crime to Procurators Fiscal police officers should include
details of the impact of the crime on the victim. This
should include information such as: whether the victim is
in a state of fear due to the crime; whether, for example
the victim is considering moving home due to the nature of
the crime and any financial loss sustained by the victim.
Details of the impact of the crime on the victim's family
and community should also be provided where relevant.
ASSESSMENT OF LANGUAGE NEED AND CULTURAL
SENSITIVITIES
Accused persons, Victims and Witnesses
In any case where it appears that the
first language of the accused, victim or witnesses may not
be English, the accused, victim or witness should be asked
to state their "first" or preferred language should they be
called to give evidence in court in due course. The
accused, victim or witness should also be asked whether
correspondence and documentation sent to them will require
to be translated. The preference of the accused, victim or
witness should be included in the police report. The
Reporting Officer should also include an assessment as to
whether the accused, victim or witness will require the
services of an interpreter in court and to have
correspondence and relevant documentation translated by the
Procurator Fiscal.
The language and dialect required should
be specified in the police report and in the full statement
of a witness
3. If the Reporting Officer is in doubt as to whether an
interpreter is or is not required an interpreter should be
provided by the police during the investigation and the
Procurator Fiscal advised of the view of the Reporting
Officer. If, in the view of the Reporting Officer, an
interpreter will not be required, this should be
specifically stated.
In cases where an interpreter is
required for court purposes (either because of the request
of the individual concerned or the view of the Reporting
Officer) and it is necessary to ensure that religious and
cultural needs are respected, the Procurator Fiscal should
be advised of both the ethnic and religious background of
the individual who requires interpreting services.
If it has been necessary to use an
interpreter to interview the accused, victim or witnesses
the name and contact details of the interpreter used by the
police should be contained in the police report.
Instruction of Interpreters for Criminal Court
Assignments
In cases where an accused requires an
interpreter and where he or she is kept in custody pending
appearance at court or liberated on undertaking the police
should arrange for an interpreter, skilled in the language
and dialect required, to assist the accused at his or her
first court appearance.
The protocol which is contained in Annex
1 to these guidelines sets out agreed arrangements between
the Crown Office and Procurator Fiscal Service, ACPO(S) and
Scottish Court Service in relation to the instruction of
interpreters for criminal court assignments and should be
viewed as being part of these guidelines for that purpose
4.
DEATH REPORTS AND ASSOCIATED CRIME REPORTS
Liaison with Next of Kin and Bereaved
relatives
The Lord Advocate directs that in death
reports and associated crime reports the Procurator Fiscal
should be advised of the involvement and identity of the
Family Liaison Officer where such an officer has been
appointed by the police.
In deaths cases police officers should
bear in mind that while communication with the next of kin
will be appropriate, the deceased may have an extended
family or partner to whom relevant information will also
require to be communicated. The death report and any
associated crime report should clearly identify both the
next of kin
and any other appropriate individuals to whom
communications should be directed. This is to ensure that
the family of the deceased is advised of developments in
the case. In such cases the death report and associated
crime report should also specify whether the next-of-kin or
any other individual identified as an appropriate point of
contact requires interpreting or translation services. Good
practice will require appropriate liaison between
Procurators Fiscal and Senior Investigating Officers.
In cases where it appears that the
deceased's family may have specific cultural or religious
needs the death report and associated criminal report
should clearly specify both their ethnic and religious
background to ensure that liaison can take place in a
manner which is sensitive to their cultural and religious
needs.
CROWN OFFICE
JANUARY 2002
INSTRUCTION OF INTERPRETERS FOR CRIMINAL
COURT DIETS
PROTOCOL
This protocol sets out agreed
arrangements between Crown Office, Scottish Court Service
and ACPO(S) for the instruction of interpreters for
criminal court diets. It is intended to cover the
instruction of community, foreign and sign language
interpreters (and other interpreters required for those
with sensory impairment).
It is the responsibility of the police
to advise the Procurator Fiscal in the police report
whether the accused or any proposed prosecution witness
requires the services of an interpreter to give evidence in
court. The Reporting Officer should specify the language
and dialect required in the police report and should also
provide the name, designation and qualifications of any
interpreter used at the investigative stage so that the
Procurator Fiscal and the court may ensure that, so far as
possible, the same interpreter is not used at any court
diet.
It is the responsibility of the
Procurator Fiscal to engage a suitably qualified and
experienced interpreter
i, skilled in the language and dialect specified in the
police report, to assist prosecution witnesses in giving
their evidence.
It is recognised that there is limited
time available between arrest and the first appearance of
an accused person in custody.
In all cases therefore where accused
persons are appearing for the first time from custody the
police will, so far as possible, arrange,
on behalf of the court, for a suitably qualified
and experienced interpreter to appear at court to assist
the accused. The interpreter engaged for court should not
be the same interpreter who assisted the accused during the
investigation stage although it is recognised that it may
not always be possible to secure the services of a
different interpreter who has appropriate qualifications
and experience given the limited time available. The fact
that the police have engaged an interpreter for the
accused's first appearance from custody should be set out
in the police report to the Procurator Fiscal. If
difficulties arise in securing the services of an
interpreter the police should make early contact with the
Procurator Fiscal. The fee of the interpreter in such cases
will be paid by Scottish Court Service and the court will
instruct the interpreter for the accused for any continued
diets in the case.
In respect of all other criminal court
diets, both pre-trial and trial diets, it is the
responsibility of the court to engage a suitably qualified
and experienced interpreter, skilled in the language and
dialect required to assist the accused. In respect of all
other diets the Procurator Fiscal will advise the Sheriff
Clerk (or in High Court cases the Deputy Principal Clerk of
Justiciary) in writing of the language needs of the
accused, namely the language and dialect as set out in the
police report, at least 14 days prior to the scheduled
diet.
It is recognised that the role of the
interpreter in the criminal court is crucial. The
Procurator Fiscal, Scottish Court Service and the police
will ensure, so far as possible, that interpreters are
engaged through recognised interpreting services and that
interpreters engaged have appropriate qualifications and
experience.
CROWN OFFICE
JANUARY 2002
i So far as possible
interpreters engaged should have the Diploma in Public
Service Interpreting (Scottish Legal Option) and recent
experience of both consecutive and simultaneous
interpreting in the court context. It is recognised however
that there is a shortage of qualified and experienced
interpreters in some languages and that particular
difficulties may arise in relation to first appearances
from custody. On occasion it is recognised that
interpreters who do not have the preferred qualifications
and experience will require to be engaged. When this is
necessary the interpreting service involved should be asked
to provide a written assessment setting out why the
interpreter is deemed to be suitable for the proposed
work.
© Crown Copyright
Crown Office
25 Chambers Street
EDINBURGH EH1 1LA
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