OFFICE INSPECTION - CUPAR

10 OCTOBER 2006

Background

In accordance with our Business Plan, we are committed to regular audits of District and Area Offices to ensure compliance with race relations, policies and strategies.

This is our report of the Procurator Fiscal's Office at Cupar. The Cupar office is part of Fife Area.

Methodology

Our approach to office inspections involves consideration of the following areas:

• Adherence to policy guidelines in relation to prosecution of racist crime
• Use of interpreters and translation issues
• Employment issues
• Consultation with communities
• Deaths involving racial and/or cultural awareness issues.
• Complaints against the police which are of a criminal nature

The following measures are taken to inform the inspection process.

Sampling of Race Charges

The Crown Office and Procurator Fiscal Service (COPFS) has a single corporate database (herein referred to as the National Database) that connects all Procurator Fiscal Offices and Crown Office units and facilitates the transfer of legal casework. An extract of data from the National Database is obtained from Management Information Division in Crown Office, containing details of all charges with a racial element reported to Fiscal Offices over the course of financial years 2004-05 and 2005-06 [1]. It is worth noting that the database is an operational one, not statistical, and hence is 'live', being constantly updated as cases progress. As such the extract is a 'snapshot' as at date of extraction (current extract relates to 'as at' December 2005).

The General Sample

We are concerned with the statutory race charges, as created by the Crime and Disorder Act 1988. A sample of Section 50A racial charges and charges with Section 96 racial aggravations recorded against them is drawn from the most recent 12 months' worth of data contained in the extract and the related case papers were requested from the office and examined by the team. Those charges are those that appear, as recorded on the database, to have been dealt with in accordance with the guidelines - this part of the sampling exercise was designed simply to be an independent check on compliance with policy.

The charges are drawn using a stratified random sampling method. For details on the sampling methodology employed, please contact Kirsty MacLean (e-mail Kirsty.maclean@scotland.gsi.gov.uk) or telephone 0141 229 6203).

The Risk-Assessed Sample

Our inspection process is partly based on risk assessment. Therefore, in addition to the general sample referred to above, all case papers containing any charges which appear, as recorded on the database, to have been dealt with in contravention of the guidelines, are specifically requested for examination. Given the potential importance of such cases and since these charges are of particular interest to us, we request the relevant case papers in relation all such charges over a longer time period than that for the general sample (a minimum of 21 months as compared to 12 months).

The contraventions of policy that can be identified from examination of the data extract are charges in respect of which a fiscal fine or warning letter have been issued, or proceedings taken in the District Court. (Note however that revised guidance from Crown Office was issued to staff on 23 June 2004, which thereafter made it possible to issue a warning letter in exceptional circumstances, with the agreement of the Area Fiscal).

Case papers are also requested which contain any charges that are recorded on the database as being unmarked (ie no decision yet taken as to how to proceed), or any charges where no proceedings have been taken (given the policy to always proceed where there is sufficient evidence). Case papers are also requested which contained any charges marked for 'merge' (this is where the marking Depute has decided to amalgamate one or more charges reported by the police, usually for sound legal reasons). Any other charges that appear to have been marked and/or dealt with in an unusual or unexpected manner (eg charges/cases which have been deserted) are also requested for inspection.

Case papers are also requested to be made available for inspection, regarding any deaths which were reported and investigated over the previous 12 month period where:

• special consideration was required, as defined in Annex 3 in Chapter 12 of the Book of Regulations [2] (racial and cultural awareness)
• the ethnicity of the deceased was in some way related to the cause of death (eg the murder of someone from a minority ethnic background).

A questionnaire covering a number of issues related to the areas for consideration (as outlined above) is sent to the office in advance of the inspection and returns are analysed to allow exploration of any issues raised in the returns, at the time of the inspection.

The composition of staff in post (numbers, grades and ethnicity) in the office is considered prior to the inspection visit. Similarly considered is the proportion of staff who have attended the Diversity Awareness Programme.

2001 Census data was obtained from the General Register Office for Scotland (GROS) showing Sheriff Court Districts (which equate to Fiscal Office area) by ethnic group, to allow us to consider the staff ethnicity information in the context of local population ethnic mix.

Race Crime

Crown Office policy on the prosecution of race crime is a robust one and the execution of the policy is closely monitored by the Department. A member of legal staff decides what course of action to take in each case, this is then checked by the District Fiscal for compliance with the Departmental policy and a copy of the case is then sent to the Area Fiscal. Responsibility for the monitoring of compliance in such cases lies with the Area Fiscal. Three-monthly reports from the Areas are considered at the Legal and Policy Forum [3].

Table 1 - Racial Charges and Racial Aggravations reported to Cupar Fiscal Office in financial year (FY) 2004/05 and 2005/06[1]

The data extracted from the National Database revealed that in respect of the Cupar office, in FY year 2004/05:

• 10 Section 50A(1) (a) charges were reported
• No Section 50A(1) (b) charges was reported
• One charge with a Section 96 aggravation recorded against it was reported.

And in 2005/06 [1]:

• 10 Section 50A(1) (a) charges were reported
• No Section 50A(1) (b) charges were reported
• One charge with a Section 96 aggravation recorded against it was reported.

In relation to the following discussion of the sampling that is carried out, please note that the number of case papers requested is not the same as number of charges drawn for sampling because a case can (and frequently does) contain more than one charge. Since the sampling is conducted at charge level, in some instances, more than one charge from a single case is selected into the sample. This meant that the number of case papers requested is lower than the number of individual charges selected.

The General Sample

Due to the small number of cases involved all relevant section 50A charges ie 7 charges (7 cases) reported in 2005 were requested. Likewise, the one charge with a Section 96 aggravation recorded against it was also requested.

All cases were marked in compliance with policy and this was followed by compliance with policy for conduct during court proceedings in all bar one case.

In that case the marking depute had taken the original police charge of a contravention of Section 50 for which there was insufficient evidence and made it into 2 breaches of the peace, one with a sectarian aggravation and one with a racial aggravation under Section 96.

There was a problem evidentially inherent in this course of action. The solution considered and minuted was to accept the sectarian aggravated breach of the peace with a narration including the comments which formed the racial aggravation. The thinking behind this was that it was considered that the comments made were not racist and could be narrated as part of the sectarian breach. This plea was taken but no account of the narration is available. The plea taken was technically a breach of policy.

The Risk-Assessed Cases Request

A total of 5 charges (5 cases) were selected for inspection. One of these cases contained a charge that was requested as part of the general sample.

The charges selected for inspection consisted of:

• Two cases marked to receive a warning letter, one reported in FY 2005-06 and one reported in FY 2004-05

• 3 charges marked for 'no proceedings', 2 reported in FY 2005-06 and one reported in FY 2004-05.

In respect of the 2 charges (2 cases) marked to receive a warning letter, we found that:

• As one of the cases marked for a warning letter had been marked in FOS we had no way of checking if this case had been confirmed as being suitable for a warning letter by the Area Fiscal as policy requires. The case concerned an elderly first offender with no previous convictions and the decision was sensible. The second case marked for a warning letter was appropriate and in accordance with policy approved by the Area Fiscal.

In respect of the 3 charges (3 cases) marked for no proceedings we found that:

• In one case the Prosecutor charged a breach of the peace with a Section 96 aggravation; however, on checking there appeared to be sufficient evidence to support a contravention of Section 50 A (1)(b) instead.
• In another case the marking depute was not wrong to prosecute both accused as there was sufficient evidence and good grounds for so doing. The difficulty lay in separating out the first accused in order that he could give evidence against the second accused for the Section 50 charge. The Depute got round that by marking the case against the first accused for no proceedings in order that the Section 50 could be pursued.
• In the third case in this category the decision to take no proceedings was correct as there was no evidence to prove that the matter was racially motivated.

Monitoring of race crime

Cupar cases are marked by the case marking team in the area office based in Kirkcaldy. The legal member of staff in charge of the area marking unit is responsible for checking compliance with case marking policy on race crime.

Given that the Cupar office is small there is only ever one member of legal staff in the office at any one time, this being the District Fiscal four days a week and a depute from Kirkcaldy one day a week. The District Fiscal at some point sees all race cases when he is performing court duties.

The Area Fiscal is responsible for monitoring compliance with Crown Office policy on race crime. The District Fiscal advised that he does not receive formal feedback from the Area relating to his office's compliance with race crime policy, however, he will be informed of individual instances of non-compliance.

The Area office is responsible for collating and forwarding race crime figures to the Legal and Policy Forum.

Interpreters

Admin staff make arrangements for interpreters to attend court based on requests written on an instruction sheet attached to case papers.

The office advised that there are no known problems with the use of interpreters.

None of the cases that were inspected required interpreting services.

Deaths

There were no deaths reported in Cupar within the past twelve months where racial and cultural considerations were a feature.

Complaints Against The Police

The Procurator Fiscal deals with complaints against Police Officers of a criminal nature and we seek to monitor those with a minority ethnic dimension.

In the relevant period no such complaints were reported.

Employment

Latest data [4] shows that 98.6 per cent of the population in the Cupar Sheriff Court District area is from a white background. Other ethnic groups, of which a mixed background is the largest at 0.34 per cent, account for the remaining 1.4 per cent.

As at 1 January 2006, Cupar had a staff of 4, consisting of:

Legal staff

• 1 District Fiscal [5]

Administrative staff

• 1 Band C staff
• 2 Band B staff [6]

There are no members of staff who are from a minority ethnic background (as self-reported to Human Resources Division in COPFS via survey) in the Cupar office.

All recruitment of staff at Band B staff is dealt with in the area office at Kirkcaldy.

Diversity Awareness

All staff in the Cupar office have attended the Departmental Diversity Awareness Programme.

Consultation

Although none of the staff at Cupar are members of the Area Diversity Team, race issues are discussed at area meetings and the District Fiscal advised that race issues are taken seriously.

The office was involved in an area experiment to hold open days. Attendance from the public was found to be so poor that the experiment was cancelled before Cupar had a chance to take their turn.

Conclusion

Overall compliance with prosecution policy on race crime was acceptable although we highlight 2 charges (out of 13) where we disagreed with the decision taken.

All staff had taken the diversity awareness training. There were no specific outreach initiatives but the minority ethnic community is very small in Cupar.

[1] At time of extraction data was only available for the first nine months of FY 2005/06 ie April to December 2005

[2] The Book of Regulations provides guidance and instruction to members of the Crown Office and Procurator Fiscal Service on the way Procurators Fiscal should be carry out their duties.

[3] The remit of the Legal and Policy Forum is: To take the lead in the development of prosecution policy and consider legal and operational issues within the Crown Office and Procurator Fiscal Service. The Forum also acts as sounding board for wider management issues and a means for all Area Fiscals to have an input into the overall management of the COPFS

[4] General Register Office for Scotland 2001 Census of Population

[5] The District Fiscal spends four days at the office and a depute from Kirkcaldy covers the other day

[6] One part-time