OFFICE INSPECTION - EDINBURGH
28/29 MARCH, 4/25 APRIL 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 Edinburgh. The Edinburgh office is part of Lothian and Borders 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 Edinburgh Fiscal Office in financial year (FY) 2004/05 and 2005/06 [1]
| 2004/05 | 2005/6 [1] |
Section 50A(1) (a) charges | 16 | 14 |
Section 50A(1) (b) charges | 315 | 298 |
Section 96 aggravations | 199 | 147 |
The data extracted from the National Database revealed that in respect of the Campbeltown office, in FY year 2004/05:
16 Section 50A(1) (a) charges were reported
315 Section 50A(1) (b) charge was reported
199 charges with Section 96 aggravations recorded against them were reported
And in 2005/06 [1]:
14 Section 50A(1) (a) charges were reported
298 Section 50A(1) (b) charges were reported
147 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 80 Section 50A charges (78 case papers) and 34 charges (34 case papers) with Section 96 aggravations recorded against them was drawn.
In respect of the general sample, the office was unable to find 9 cases - 2 cases contained both a Section 50A and a Section 96 aggravation, making a total of 11 charges in the 9 cases. 6 cases each contained only one Section 50A charge and one case contained one Section 96 aggravation.
In respect, therefore, of the sample of 80 Section 50A charges, with regard to the 72 charges (70 cases) that were available for inspection, we found that marking policy had been complied with in respect of 69 charges (67 cases). In a further two cases, Section 50A (1) (a) charges which had been (incorrectly) reported by the police had been taken up by the fiscal (there was evidence only to support a Section 50A (1) (b) charge in each case). One case was subsequently abandoned and in the other, a plea of not guilty had to be accepted due to the lack of evidence for the Section 50A (1) (a) charges. In one further case, it could not be ascertained whether marking policy had been complied with as the relevant parts of the case papers were missing. Of the 58 relevant cases, we found compliance with policy in respect of conduct during court proceedings in all cases except the one case where we could not ascertain due to the relevant parts of the papers being missing.
In respect of the sample of 34 charges with Section 96 aggravations recorded against them, with regard to the 31 charges (31 cases) that were available for inspection, we found that marking policy was complied with in respect of 29 charges (29 cases). In respect of the other 2 charges (2 cases), in both cases, the police had correctly reported charges with Section 96 aggravations recorded against them but the charge brought against the accused by the fiscal did not have the aggravation attached, in either case. Of the 21 relevant cases, we found compliance with policy in respect of court proceedings in all cases.
The Risk-Assessed Cases Request
A total of 53 charges (40 cases) were selected for inspection. Of these 40 cases 11 also contained charges that were selected as part of the general sample.
In respect of the risk-assessed cases request, 2 cases (each containing one charge of interest) could not be found.
The charges selected for inspection consisted of:
In respect of the 53 charges (40 cases papers) that were automatically selected for inspection, we found that:
Of the 7 50A charges recorded as being marked for 'no proceedings':
2 charges (one case) were part of a solemn case. Crown Counsel had given instruction that no proceedings were to be taken in respect of the 2 Section 50A charges on the petition, but that they should be taken up on summary proceedings. However, this was not followed up by the office due to an administrative error and the charges were never brought. The Area Procurator Fiscal has subsequently advised us that the case has now been passed to the District Fiscal to alert her to the difficulties in this case and to identify any systemic improvements to prevent a possible recurrence
Of the 11 50A charges recorded as being marked to be 'merged' with one or more other charge(s):
In respect of one charge, the decision to merge the 50A charge was incorrect. A Section 50A charge was merged with a breach of the peace charge with a Section 96 aggravation attached, when there appeared to be corroboration for the Section 50A charge
In respect of another charge, again the decision to merge was correct - there was no corroboration for a Section 50A charge, so the Fiscal correctly took up an assault charge with a Section 96 aggravation attached
Of the 14 50A charges recorded as being marked to receive a warning letter:
Of the 7 charges reported in FY 2005-06:
In respect of another charge, the decision was correct insofar as the warning letter was issued after the policy change, but there was no apparent authorisation from/approval by, the Area Fiscal
Of the 5 charges reported in FY 2004-05:
In respect of another two charges (separate cases), the decision to issue a warning letter was correct, having been after the date of policy change and approved by the Area Fiscal, in each case
In another case, the charge, which was recorded as having a warning letter issued against it, was actually correctly marked for 'no proceedings'.
And of the 2 charges reported in FY 2003-04:
Of the charge with a Section 96 aggravation recorded against it, marked to receive a fiscal fine:
Of the 7 charges with Section 96 aggravations recorded against them, marked for no proceedings:
In respect of 3 charges (separate cases), in each instance the Section 96 aggravation was not needed on the charge, having been added mistakenly to a Section 50A charge on the police report - the Section 50A charge was taken up in each case and hence the decision to take no proceedings in respect of the Section 96 aggravations was correct
In respect of another charge, the decision to take no proceedings was correct - the Section 96 aggravation was taken off an assault charge, the assault charge then being taken up along with a Section 50A charge.
Of the 13 charges with Section 96 aggravations recorded against them, marked to be merged with one or more other charge (s):
In respect of one charge, an assault charge with a Section 96 aggravation was incorrectly merged with a Section 50A charge and the Section 50A charge alone was taken up. Due to lack of corroboration, the 50A charge was not proved; however there was a possibility that the assault with Section 96 would have proved. Despite the fact that the decision to merge was incorrect, a racial element was maintained.
Monitoring of race crime
In respect of the District Office, marking of race cases is monitored by both the District and Area Procurator Fiscals. A copy of the case with marking is sent to the District Fiscal to be checked for compliance. The District Fiscal then forwards the material to the Area Procurator Fiscal. The Area Procurator Fiscal monitors the marking at Area office level - a copy of the case with marking and monitoring Form A is sent to him, to be checked for compliance. If there any issues re compliance, feedback is given and appropriate action is taken by the District Fiscal and/or Area Procurator Fiscal.
The Area Procurator Fiscal's PA collates information from both the District and Area offices for reporting to the Legal and Policy Forum (LPF). Deputes send copy cases and monitoring Forms A/B to the Area PA, who then extracts the relevant data and produces the LPF return. A GIP is run to ensure that all cases that should be reported have been.
Interpreters
Eight of the cases we inspected required interpreting services - these had been met in 5 cases, while in one case, it was noted that an interpreter was needed but the trial had not yet taken place. In a further 2 cases, the police had noted that an interpreter was required for court but we could find no mention of such in the Fiscal papers, although the trial date was some way off in respect of one case and in the other, a trial date had not been set (a warrant had been issue for the accused).
Any Fiscal Officer who has received the appropriate training can order an interpreter for court. The office is not aware of any problems having been experienced, other than a difficulty in obtaining a sign language interpreter in one case. Procedures are in place to ensure that the interpreters' monitoring forms A and B are completed; regular reminders are sent to relevant staff.
The office reported making 31 requests for an interpreter during the period 1 January to 31 December 2005. Documents have been translated 4 times over the same period and while this latter information is not held centrally, the office informed us that steps are being taken to record this on an Area basis.
In respect of advising the relevant person of a need for an interpreter, a Depute will mark on the case papers or add a case note to FOS (the police report in SPR) that an interpreter is required. Occasionally the police will contact the office after the case has been reported to advise of the need for an interpreter, where the SPR does not record this. On rare occasions a witness will request an interpreter.
Deaths
To extract data relating to deaths from the computer system a name or a reference number needs to be known. Given that more than 1000 deaths are reported to the Edinburgh Deaths Unit per annum the office was unable to look out papers relating to the period concerned (1 January to 31 December 2005). They did, however, look through current deaths and found one where race was a consideration, the review of which is as follows:
- Death of a lady who was of the Jewish faith and there was a requirement that she should be buried without a post mortem dissection. These wishes were considered and the ` view and grant ` procedure was followed where there is no actual dissection. The deceased's body was released for burial on that day.
The Depute in the Deaths Unit advised that all such deaths are given equal consideration of faiths and relatives wishes. The police will flag up any such issues and appropriate steps will be taken.
There have been no deaths where the ethnicity of the deceased was in some way related to the cause of death.
Complaints Against The Police
Two sets of papers were made available involving complaints against the Police from members of an ethnic minority.
Both complaints were properly investigated by the Area Procurator Fiscal. No proceedings were instructed in respect of either complaint. One of the complaints had been referred to Crown Counsel for their instructions and the decision had been made to take no proceedings.
In one case an interpreter had been used to take a statement from the complainer.
Employment
Latest data [4] shows that 96.4 per cent of the population in the Edinburgh Sheriff Court District area is from a white background. Other ethnic groups, of which Pakistani is the largest at 0.8 per cent, account for 3.6 per cent.
As at 1 January 2006, Edinburgh had a staff of 157, consisting of:
Legal staff
Administrative staff
1 Band F/G staff
1 Band E staff
8 Band D staff
7 Band C staff
3 Personal Assistants
73 Band B staff
Casual staff
- 4 Band D staff
9 Band B staff
Six members of staff are from a minority ethnic background (as self-reported to Human Resources Division in COPFS via survey) in the Edinburgh office. We concluded that minority ethnic representation in the office was in line with minority ethnic representation in the local population.
Diversity Awareness
As at 1 June 2005, 80 per cent of relevant staff at the Edinburgh office have attended the Departmental Diversity Awareness Programme, with the other 20 per cent having re-scheduled to attend at a later date.
Consultation
Edinburgh (as an Area) has an Area Diversity Team and 5 members of the Edinburgh Office are on the team.
In addition the Office is represented on various local and national groups where race issues may be a factor including Lesbian, Gay, Bisexual and Transgender, Older Persons, Interfaith, Disability and Women's Equality. The Area Fiscal believes this provides greater awareness from both perspectives and gives an opportunity for feedback on issues of concern such as marking policy, attendance at court etc.
Additionally the Office has participated in a number of events including an Open Day at the City Chambers, Linknet Monitoring, an Office Open Day and attendance at the Mosque.
Conclusions
Given the volume of cases examined (our biggest to date) compliance with policy on the prosecution of race crime was very high, the cases we mention being very much the exception.
Interpreting and translation needs seemed well catered for and arrangements were in hand for the staff who had not yet participated in the Departmental Diversity Training to do so.
Efforts were being made to reach into the local community and raise awareness of and the profile of the Procurator Fiscal's Office.
Finally we would like to record our thanks to the staff for their co-operation in assisting with the inspection process.
[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