The Scottish Government

OFFICE INSPECTION - FALKIRK

24 & 25 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 Falkirk. The Falkirk office is part of the Central 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 Falkirk 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 Falkirk office, in FY year 2004/05:

• 5 Section 50A (1) (a) charges were reported
• 117 Section 50A (1) (b) charges were reported
• 30 charges with Section 96 aggravations recorded against them were reported.

And in 2005/06 [1]:

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

• 13 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

A sample of 51 Section 50A charges (45 cases) and 16 charges (12 cases) with Section 96 aggravations recorded against them were drawn. Resulting from the general sample, therefore, a total of 57 case papers (67 charges) were subsequently requested for inspection.

In respect of the 51 Section 50A charges (45 cases) we found that that there was compliance with marking policy in respect of all charges except one, which was incorrectly proceeded with as a Section 50A (1) (b) when there was no corroboration for the charge.

We found that with 6 Section 50A charges had, in the interim, been marked for no proceedings. In all cases the decision to do so was correct and was due to insufficient evidence.

In one case, however, a warning letter had subsequently been issued. While the decision to issue a warning letter was correct, there was no indication on the papers that the decision had been approved by the Area Procurator Fiscal.

There was compliance in respect of conduct during court proceedings in all relevant cases except two. In the first case, it was questionable whether a plea of not guilty to the charge should have been accepted as it appeared there was a sufficiency of evidence. In the second case, the decision to abandon proceedings may have been taken a little prematurely.

In respect of the 16 charges (12 cases) with Section 96 aggravations recorded against them we found that marking policy was complied with in respect of 14 out of the 16 charges (9 cases). In respect of two charges (2 cases) it appeared that Section 50A (1) (b) charges as reported by the police were changed by the Fiscal to breach of the peace charges with Section 96 aggravations attached when there was in fact corroboration of the race element in both instances.

We found compliance in respect of conduct during court proceedings in respect of all relevant cases except one. In the first case a plea of not guilty was mistakenly accepted to the racial charge in the case.

The Risk-Assessed Sample

A total of 25 charges (16 cases) were selected for inspection. Six of these 25 cases also contained charges that were selected as part of the general sample. The 25 charges selected consisted of:

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

• One Section 50A charge recorded as being marked to receive a fiscal fine, reported in FY 2003-04

• 3 Section 50A charges (one case) recorded as being marked 'deferred', reported in FY 2005-06

• 17 Section 50A charges (10 cases) recorded as being marked for 'no proceedings', reported in FY 2005-06

• One charge with a Section 96 aggravation recorded against it, marked for 'no proceedings', reported in FY 2005-06.

The office was unable to find one case, containing the charge that had been marked to receive a fiscal fine.

In respect of the 3 Section 50A charges recorded as being marked to receive a warning letter we found that:

• In all instances the decision to issue a warning letter was correct. In two out of 3 cases, however, it appeared that the decision was not approved by the Area Procurator Fiscal. Additionally, with regards one of these cases the decision to issue the warning letter was made prior to the relaxation of policy.

In respect of the 3 Section 50A charges (one case) recorded as being marked 'deferred', we found that:

• The deferred marking was correct and the case is being kept under review with a view to raising the case again if and when further evidence comes to light.

In respect of the 17 Section 50A charges (10 cases) recorded as being marked for 'no proceedings', we found that:

• The decision to take no proceedings was correct in all instances. In 9 out of the 10 cases there was insufficient evidence (mostly no corroboration) for the charges. In the other case, the police had overcharged and the fiscal subsequently took up the correct charges. Good practice was evident re two cases which were part of roll-ups.

In respect of the one charge with a Section 96 aggravation recorded against it, marked for 'no proceedings', we found that:

• The decision to take no proceedings was correct.

Monitoring of Race Crime

The formal monitoring exercise relating to race crime is undertaken by the Area Fiscal for Central Area on a random selection basis [4]. At District level there are audits in place in respect of all no proceeding decisions and the standard arrangements for case preparation. The District Fiscal advised that the requirements for monitoring have been reconsidered by the Crown Office Race Team and revised guidance is awaited.

At initial case processing stage, Deputes in the Falkirk office complete monitoring form 'A' which is passed to the Area Fiscal along with copy case papers. A manual search of the PROMIS (ie IT) system is carried out by a member of the Area Team at the end of each month to ensure that all monitoring forms have been received. Outstanding forms are requested from District Offices. At the conclusion of a case the court depute completes monitoring form 'B' and forwards it to the Area Fiscal. Cases are tracked to their conclusion and if the monitoring form`B' is not received in the Area Office then this is requested from District Offices.

As a result of the monitoring exercise it has not been necessary for the Area Fiscal to feedback in respect of non-compliance to the Falkirk office. If necessary the type of feedback provided to staff would depend on the nature of the issue identified.

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

Interpreters

Fiscal Officers are responsible for ordering interpreters based on instructions written on case papers either by a legal member of staff or a precognition officer. Occasionally the instruction will come from Victim Information and Advice.

During the period September 2005 to August 2006, interpreters were ordered on 57 occasions although many of these were cancelled before trial due to pleas being accepted before court date. During period January 2006 to August 2006, 4 documents were translated.

There are no reported problems with the use of interpreters and they always complete their section of the 'Interpreters Monitoring Form' which is sent to the Area Fiscal for review.

23 of the cases we inspected required interpreting services and in all instances these needs were met. In one set of case papers we found a checklist of good practice points for use when ordering/using interpreters.

Deaths

There were no deaths reported in Falkirk 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 [5] shows that almost 99 per cent of the population in the Falkirk Sheriff Court District area is from a white background. Other ethnic groups, of which Pakistani is the largest at 0.5 per cent, account for the remaining one per cent.

As at 1 January 2006, Falkirk had a staff of 32, consisting of:

Legal staff

• One member of the Senior Civil Service
• One Principal Depute
• 6 Procurator Fiscal Depute
• 3 Precognition Officers

Administrative staff

• 2 Band D staff
• One Band C staff
• One Personal Assistant
• 15 Band B staff

Casual staff

• 2 Band B staff

Small numbers (less than 5) prevent disclosure of the exact number of staff who are from a minority ethnic background in the Falkirk office. However, we concluded that minority ethnic representation was in line with minority ethnic representation in the local population.

Diversity Awareness

As at 24 October 2006, 100 per cent of staff in the Falkirk office had attended the Departmental Diversity Awareness Programme.

One member of staff from the Area Team has attended a course on Professional Practice in Race Equality at Paisley University.

Consultation

Two legal members of staff from the Falkirk office are members of the Area Diversity Team and another is on the departmental focus group on 'Promoting Equality for people with Disabilities.

The Area has established a multi-agency race group which is chaired by the Area Fiscal. There is representation from COPFS (including VIA), Central Scotland Police, Scottish Court Service, Victim Support, Central Scotland Racial Equality Council and the Reporter to the Children's Panel. The Area Fiscal is also a member of the Central Scotland Police Lay Advisors Group which is a forum for obtaining views from representatives of local minority groups.

In addition to the above the Area Fiscal attends the Central Scotland Racial Equality Council AGM and both the Area Fiscal and Area Business Manager attend the national COPFS Diversity Group. The Area Business Manager is also the area representative of the Forth Valley RAHMAS (Racist Attacks Harassment Multi Agency Strategy) Group and as a result is also a member of the following subgroups: Electronic and third party reporting; Case Conferences; Monitoring and Evaluation; Safer Business and he also chairs the Information Sharing Group.

Issues raised and discussed at these groups are fed back to staff at the Falkirk office and it is felt that being involved in such groups is invaluable in establishing good relations with Criminal Justice Partners, the voluntary sector and representatives of minority communities. It has provided opportunities to explain the role of the COPFS, the Criminal Justice System process and has helped promote confidence in the system within the wider minority community.

As a result of being in contact with these groups staff have attended various minority community events and community participation has been encouraged in Court Open Days. The Area and District Fiscals also hoped to attend the Mosque, however, the person with whom arrangements are made has not been available so far.

Conclusions

Compliance in the Falkirk office with policy on the prosecution of race cases is very high especially given the comparatively high number of such reports reflected in our overall sample size of 92 charges. The cases we take some issue with are very much in the minority.

Good monitoring arrangements are in place and translation/interpreting needs well met.

The Central Area is proactive in outreach initiatives and all staff have attended the Departmental Diversity Awareness Programme.

[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] As advised by Crown Office

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