OFFICE INSPECTION - DUNDEE

16 & 17 MAY 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 Dundee. The Dundee office is part of the Tayside Area.

Methodology

Our approach to the office inspection involved 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

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 was 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 50 racial charges and charges with Section 96 racial aggravations recorded against them was 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 were 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 to 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 Dundee 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 Dundee office, in FY year 2004/05:

• 12 Section 50A(1) (a) charges were reported
• 113 Section 50A(1) (b) charge was reported
• 79 charges with Section 96 aggravations recorded against them were reported

And in 2005/06 [1]:

• 2 Section 50A(1) (a) charges were reported
• 83 Section 50A(1) (b) charges were reported
• 53 charges 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

A sample of 47 Section 50A charges (44 cases) and 25 charges (23 cases) with Section 96 aggravations recorded against them were drawn. Resulting from the general sample, therefore, a total of 67 case papers (72 charges) were subsequently requested for inspection.

In respect of the general sample, one case that was an active case was not made available by the office. This case contained one Section 50A charge and one Section 96 aggravation.

We found that 2 of the cases which appeared in the general sample were cases when a warning letter had in fact been sent to the accused. We found that policy had been largely complied with in these cases, in that circumstances merited this disposal and the case was dealt with subsequent to the policy change in June 2004. However, there was no note on the papers to indicate that the decision to deal with the case by way of warning letter had in fact been approved by the Area Procurator Fiscal as policy dictates.

In 4 of the cases we noted some concern regarding pleas that were ultimately accepted, as detailed below:

• In one case we noted that a plea of not guilty was accepted to a charge on the complaint which was a Section 50A (1) (b) charge. The accused in question had pled guilty to a charge of breach of the peace with a Section 96 aggravation and the depute dealing with the case had noted that this encapsulated the whole incident. The Section 50 A (1) (b) charge was however the more serious and should not have been dropped whilst there was sufficient evidence. There was no note of the decision having been approved by the Area Procurator Fiscal.

• In another case involving two co-accused a plea of not guilty was accepted from one accused when the co accused pled guilty. There was apparently sufficient evidence against both accused and it is unclear why this plea was accepted.

• Another case had three charges involving two accused. One of the accused featured in charge one, an assault to injury with a Section 96 aggravation and in charge three which was a Section 50A(1)(b). The other accused featured only in charge two which was a Section 50A (1)(b) charge. A plea of guilty was accepted to charge one only and both accused walked free in respect of the two Section 50A (1) (b) charges. The accused in the assault charge (with Section 96 aggravation) was fined £1,000 for this charge and the co accused walked completely free. The reason for accepting this plea was noted on the papers and included pressure of business and the fact that the assault was the most serious charge. There was no note on the papers indicating that the Area Procurator Fiscal had been consulted regarding the decision to depart from policy in relation to the plea which was accepted. This was a technical breach of policy and a pragmatic decision appears to have been taken.

• In the final case of note a plea of not guilty was accepted to a Section 50A(1)(b) charge although in the circumstances it was debatable whether there was corroboration for the charge and a plea of guilty was accepted to another charge on the complaint which was a breach of the peace with a Section 96 aggravation.

In respect of the remaining 40 Section 50A charges (37 cases) it was found that marking policy had been complied with in all instances as was policy in respect of court proceedings. We found examples of good practice such as an instruction sheet containing numerous detailed notes regarding the progress of the cases and two cases which had been referred to the Area Procurator Fiscal for discussion.

In respect of the 24 available charges (22 cases) with Section 96 aggravations recorded against them in two cases we found that the cases had been reported by the police as a Section 50A(1)(b) charge but had been changed by the marking Depute to a breach of the peace with a Section 96 aggravation. This was, in our opinion, incorrect as there was corroboration of the racial element. In all other cases we found that marking policy had been complied with, as was policy in respect of court proceedings and there were further examples of good practice such as separate police reports being "rolled together" into one case.

The Risk-Assessed Cases Request

A total of 31 charges (25 cases) were selected for inspection. Of these 25 cases 6 also contained charges that were selected as part of the general sample.

In respect of the risk-assessed cases request, 4 of these cases (4 charges) were not available for inspection as they had been destroyed, in line with Crown Office policy regarding retention of case papers [4]. We therefore examined 27 charges (21 cases).

The charges selected for inspection consisted of:

• 10 Section 50A charges recorded as being marked to receive a warning letter, 4 reported in FY 2005-06, 4 reported in FY 2004-05 and 2 reported in FY 2003-04

• 5 Section 50A charges recorded as being marked for 'no proceedings', 2 reported in FY 2005-06 and 3 reported in FY 2004-05

• One Section 50A charge recorded as being marked for prosecution in the district court, reported in FY 2004-05

• One Section 50A charge recorded as being marked to be merged, reported in FY 2005-06

• One Section 50 A charge which was selected for inspection as the offence date was 1996, reported in FY 2005-06

• 4 charges with a Section 96 aggravation attached, recorded as being marked to receive a warning letter, 3 reported in FY 2005-06 and one reported in FY 2003-04

• 7 charges with a Section 96 aggravation attached, recorded as being marked for 'no proceedings', 5 reported in FY 2005-06 and 2 reported in FY 2003-04

• One charge with a Section 96 aggravation attached, recorded as being unmarked, reported in FY 2003-04

• One charge with a Section 96 aggravation recorded against it which was marked for a fiscal fine, reported in FY 2003-04.

In respect of the 10 Section 50A charges marked to receive a warning letter we found that:

• Two cases, each containing one charge of interest, were among those destroyed in line with case paper retention policy and we can't therefore comment

• In respect of 6 of the charges (6 cases), the issue of the warning letter post dated the change in Crown Office policy and was appropriate in the circumstances of the cases. There was however no note of the cases having been referred to the Area Procurator Fiscal for approval of the decision

• In respect of 2 charges (2 cases), we took the view that the issue of the warning letter, although post policy change, was inappropriate in the circumstances of the particular offences and additionally there was no indication that these cases had been referred to the Area Procurator Fiscal.

In respect of the 5 Section 50A charges recorded as being marked for 'no proceedings' we found that:

• In respect of 2 of the charges (one case), there was no corroboration for the charges hence the correct decision was taken

• The other 3 charges (one case) which were marked for no proceedings were effectively (and correctly) merged with another charge in the case, hence again the correct decision was taken.

Of the Section 50A charge recorded as being marked for prosecution in the district court, we found that:

• This was a clear breach of policy. The case had been reported to the Procurator Fiscal by the police as a District Court custody case but clearly the marking Depute should have taken proceedings in the Sheriff Court.

Of the Section 50A charge recorded as being marked to be merged, we found that:

• Two police charges had appropriately been amalgamated into an assault charge with a Section 96 aggravation.

Of the Section 50A charge which was selected for inspection as the offence date was 1996, we found that:

• The circumstances of this charge related to a racially aggravated course of conduct over a period of time, hence was a Section 50A (1) (a) charge and the proceedings were still live.

In respect of the 4 charges with a Section 96 aggravation attached, recorded as being marked to receive a warning letter:

• In respect of 2 of the charges (2 cases), the issue of the warning letter post dated the change in Crown Office policy and was appropriate in the circumstances of the cases. There was however no note of the cases having been referred to the Area Procurator Fiscal for approval of the decision

• In respect of one charge, the decision to deal with the case by way or issue of a warning letter pre dated the relaxation of Crown Office Policy in regard to this matter in June 2004 and there was no note of referral to the Area Procurator Fiscal. Otherwise in the circumstances of the particular offences the decision to deal with the matters by issue of a warning letter would have been appropriate

• In respect of one charge (contained in one of the Section 50A cases already discussed re issue of a warning letter) we took the view that the issue of the warning letter, although post policy change, was inappropriate in the circumstances of the particular offences and additionally there was no indication that these cases had been referred to the Area Procurator Fiscal.

In respect of the 7 charges with a Section 96 aggravation attached, recorded as being marked for 'no proceedings', we found that:

• In respect of 5 charges (4 cases), the correct decision was made re no proceedings to be taken
• In respect of the other 2 charges (one case) we found that the case had been marked 'no pro age'. The offence was alleged to have occurred in April 2004 although it was not clear from the papers when the case was marked. However, as the case was reported in 2005 we take the view that the marking decision may not have been appropriate.

Of the charge with a Section 96 aggravation attached, recorded as being unmarked, we found that:

• The case in which the charge was contained was one of those destroyed in line with case paper retention policy.

Of the charge with a Section 96 aggravation recorded against it which was marked for a fiscal fine, we found that:

• The case in which the charge was contained was one of those destroyed in line with case paper retention policy.

Monitoring of Race Crime

The District Fiscal is responsible for monitoring race crime in her office and the Area Fiscal monitors all cases for the Tayside Area.

Once cases have been marked, monitoring forms (referred to as "A") (completed by the marking Depute) along with copies of the standard police reports are passed to the Area PA who inputs details of each case into the Tayside Area spreadsheet.

Cases are then passed to the District Fiscal to check for compliance with Crown Office policy on race crime. This involves reviewing marking decisions, checking police compliance and discussing issues with deputes or police when necessary. Thereafter the Form A and copy case are sent to the Area Fiscal for monitoring. Copies of recent correspondence relating to issues taken up with the police were provided.

The Area PA is responsible for gathering race crime figures for Dundee along with those from the other offices in the Area [5] (all of who input their own case details into the Area spreadsheet) and forwarding them onto the Legal and Policy Forum.

The District Fiscal advised that she does receive feedback on the office's compliance with race policy from the Area PF.

It was noted, as with many offices, that Form B of the monitoring form is not always completed and that the office could not be sure that all race crime cases are passed on for monitoring. There is currently no management information printout available from the computer system that will allow a check to be made to ensure all race crime cases have been dealt with.

Interpreters

In 3 of the cases we found that interpreters were ordered and in 5 of the cases there was reference to attempts made to meet interpreting and translation needs although there was no detail of specific interpreters being ordered. In one case which did proceed to trial a depute had made enquiries of the reporting officer as to whether there were any requirements for interpreters. There was no reply to this enquiry and when the trial proceeded it was found that one of the witnesses could not speak fluent English and the witness did not give evidence. The trial ultimately collapsed due to identification issues.

Legal members of staff note requirements for interpreters on case papers and either a member of admin. staff or a Precognition Officer will contact Alpha interpreting Services to make arrangements for an Interpreter to attend court. The office, like many others, does not keep a note of the number of interpreters ordered and the computer system cannot be interrogated to show this as a case reference or a name of accused needs to be known. The office was therefore unable to advise on the total number of interpreters ordered over the period concerned (1 January to 31 December 2005).

There are no known problems with the use of interpreters and they always complete Section 2 of the 'Interpreters Monitoring Form', which is returned to the office with the invoice for services provided.

As with many other offices, Section 1 of the monitoring form is not routinely completed by Deputes in court.

Deaths

The office provided five deaths for review where there were racial and cultural considerations (four from 2006 and one from 2004). All were found to have been dealt with appropriately and next of kin wishes were considered when deciding on what action should be taken:

• In one death a " view and grant " (i.e. no dissection took place) was instructed after considering the wishes of the family. This was performed and the body was released within one day so that the family could return the body to Pakistan.
• In another death, the police report indicated there were no religious or cultural issues and that attempts were being made to trace the family. Once the family was traced a request was made for a release document entitled a 'Furth of Scotland Notice' to be issued so as to allow the body to be transported to Portugal. The deaths unit arranged for this to be done.
• In a further death, the family did not object to a post mortem but wanted the body released as soon as possible as they wished to transport the body to Algeria for burial. In this instance the post mortem was instructed, performed, death certificate issued and the body released all on the same day.
• In another death, a fatal fire, the family wished that no post mortem was carried out. However, further enquires revealed that the fire may have been started deliberately therefore a two doctor post mortem was instructed. Given these circumstances the office took the correct action.
• In the final death reviewed there were criminal charges involved and as a result a two doctor post mortem was instructed. The family was kept advised of the situation.

Complaints Against The Police

It is the responsibility of the Area Fiscal to investigate complaints against the police which allege criminal conduct.

Two cases of complaints against the police were examined where there was a racial issue.

In one the allegation in the opinion of the Area Fiscal did not amount to a crime and it was left to the police to deal with in accordance with internal disciplinary procedures. In the other the Area Fiscal concluded there was no evidence of a crime. Both cases were investigated properly.

Employment

Latest data [6] shows that 96.3 per cent of the population in the Dundee Sheriff Court District area is from a white background. Other ethnic groups, of which Pakistani is the largest at 1.2 per cent, account for the remaining 3.7 per cent.

As at 4 May 2006, Dundee had a staff of 56, consisting of:

Legal staff

• 2 Senior Civil Servants
• 4 Principal Deputes
• 13 Procurator Fiscal Deputes
• 1 Trainee Solicitors

Administrative staff

• 7 Precognition Officers
• 1 Band E staff
• 3 Band C staff
• 2 Personal Assistants
• 22 Band B staff

Casual staff

• 1 Band B staff

Small numbers (less than 5) prevent disclosure of the exact number of staff who are from a minority ethnic background (as self-reported to Human Resources Division in COPFS via survey) in the Dundee office. However, we concluded that minority ethnic representation was in line with minority ethnic representation in the local population.

When recruiting Band B staff, efforts are made locally to reach the minority ethnic communities through advertising in the local press and the job centre. In addition to this staff attend local career fairs and there is a work shadow programme available to school leavers and university students.

Diversity Awareness

As at 1 June 2005, 100 per cent of staff in the Dundee office had attended the Departmental Diversity Awareness Programme.

Further to this the District Fiscal, two Deputes and a Precognition Officer have attended various events relating to ethnic minority groups, for example, a Women's Aid conference covering domestic abuse in black and ethnic minority groups, a conference at the Edinburgh Mosque, a multi agency course on 'Preventing and Responding to Racist Incidents - A Holistic Approach' and a Dundee Moslem Woman's Talk.

Consultation

The District Fiscal, a Depute and a Precognition Officer are members of the Tayside Area Diversity Team. In addition there are representatives from the office on the Lay Advisory Group (which is run by the police) and on REMAP (Race Equality Multi Agency Partnership). It is felt that being represented on these groups is useful as it allows a process for concerns to be voiced and practices explained. It is also beneficial in that staff are more aware of cultural issues such as prayer times and holy days.

The office also sends representatives to other events such as open days at universities and career fairs which helps reach out to students from multi cultural backgrounds.

The office also has contact with the Dundee Mosque. Staff have attended meetings with the some of the Elders who advised that they feel there is a sense of community within the area.

There are plans in place to be represented in open days at court which although are not specific to race, it is expected that members from these communities will attend. There are also plans to meet with the local Lesbian, Gay and Bisexual Group.

The District Fiscal is also a member of the Domestic Abuse Steering Group and has made contact with ethnic communities in relation to this.

Although there is currently no Racial Equality Group in Dundee we were informed that the police have plans to set up a wider diversity group.

The District Fiscal advised that she noticed a high incidence of invitation warrants being taken for Asian persons not turning up as witnesses. A number of the cases (figures not supplied) had to be marked for no further proceedings as the witnesses would not attend court. It was brought to the District Fiscal's attention by persons from such communities that they would prefer the police to warn the accused rather than charge them. The Area Fiscal advised that he was also informed at a meeting with elders from the Mosque that their members would prefer the police to warn rather than charge.

Conclusions

Overall compliance with policy on the marking and prosecution of race cases was high, the cases we highlight where in our opinion there was some breach being small compared to the overall case numbers.

All the staff had attended the Departmental Diversity Course and there was clear evidence of a high commitment by the District Fiscal and others to consult with the local community and raise the profile of the office.

Finally we would like to thank the staff for their co-operation in preparing this report and making material available to us for inspection.

[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] Crown Office Circular No 29/2001

[5] Perth, Arbroath and Forfar

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