The Scottish Government

OFFICE INSPECTION - FORFAR

7 & 8 MARCH 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 Forfar. The Forfar office is part of the Tayside 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 perform 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 2003-04 and 2004-05. 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' June 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 (24 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 [1] (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 [2].

Table 1 - Racial Charges and Racial Aggravations reported to Forfar Fiscal Office, 2003-04 and 2004-05

The data extracted from the National Database revealed that in respect of the Forfar office, in financial year (FY) 2003-04:

• No Section 50A(1) (a) charges were reported
• 5 Section 50A(1) (b) charges were reported
• 2 charges with Section 96 aggravations recorded against them were reported

And in FY 2004-05:

• No Section 50A(1) (a) charges were reported
• 13 Section 50A(1) (b) charges were reported
• 23 charges with Section 96 aggravations recorded against them were reported

In relation to the following discussion of the sampling 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 11 Section 50A charges and 15 charges with Section 96 aggravations recorded against them were drawn. Resulting from the sampling exercise therefore, a total of 10 case papers (26 charges) were subsequently requested for inspection.

In respect of the general sample of 11 Section 50A charges (8 case papers), we found that there was compliance with Crown office policy in all but one case, which caused some concern.

• In one case involving two co accused it was apparent that pleas of not guilty to a section 50 A(1) (b) charge and an assault with a section 96 aggravation were accepted from one of the accused, (the other having plead guilty to the section 50 A(1) (b) charge and not featuring in the assault charge). From the case papers there would appear to be sufficient evidence in respect of the accused from whom pleas of not guilty were accepted and from the papers it could not be ascertained why this was done. It was however noted that the accused from whom the pleas of not guilty were accepted was to be (electronically) tagged in respect of other offences.

In respect of the general sample of 15 charges (2 case papers) with Section 96 aggravations recorded against them, we found that one of the cases (13 charges) was dealt with in compliance with Crown office policy but that the other case caused concern:

• This particular case involved two co-accused and three charges, one of which (charge three) was a section 50 A (1) (b) charge to which both accused plead guilty. The police had reported the first charge as an assault with a racial aggravation. This charge was taken up by the marking depute as a common law assault with no section 96 aggravation and ultimately a plea of not guilty was accepted from the accused in relation to what should have been a racially aggravated assault. From the information contained in the minutes it could not be established if there was a particular reason for this decision.

The risk-assessed sample

A total of 2 charges (2 case papers) were automatically requested for inspection. These consisted of:

• 1 charge recorded as being marked to receive a warning letter; reported in FY 2004-05
• 1 charge recorded as being marked for 'no proceedings', reported in FY 2004-05

In respect of these we found that:

Of the 1 charge recorded as being marked for a warning letter:

• The case was marked to receive a warning letter in March 2005, which was subsequent to Crown Office policy being relaxed to allow, in certain circumstances, a warning letter to be sent to an accused charged with a racial offence so long as the Area Procurator Fiscal was consulted and approved the decision. In this particular case a full report of the circumstances of the offence had been sent to the Area Procurator Fiscal who subsequently approved the sending of a warning letter.

Of the 1 charge recorded as being marked for 'no proceedings':

• The accused in this case was 15 years old and the case was appropriately referred to the Children's Reporter.

Monitoring of race crime

The District Fiscal at Arbroath is also responsible for monitoring race crime reported to the Forfar office and the Area Fiscal monitors all cases for the Tayside Area.

Once a case has been marked, the case and the form A (completed by the marking depute) is given to the District Fiscal to check for compliance with Crown Office policy on race crime. Thereafter the form A and a copy of the standard police report along with the District Fiscal's comments (if appropriate) are sent to the Area Fiscal for monitoring. On completion of the case form B is filled in by the court Depute and passed to the District Fiscal along with the case papers for checking.

It was noted, as with many offices, that the District Fiscal could not be sure that all race crime cases are actually passed to her for monitoring. No management information printouts were requested from the computer system that would allow a check to be made to ensure that all cases had been dealt with.

The District Fiscal inputs details of race crime cases onto a Tayside Area spreadsheet, which is sent to the Area PA who forwards the details onto the Legal and Policy Forum along with details relating to the other offices in the Area.

The District Fiscal advised that she would expect feedback from the area Fiscal if there were any instances of non-compliance with policy.

Interpreters

One of the cases that were inspected required interpreting services.

There were no known problems with the use of interpreters.

Legal members of staff note requirements for an interpreter on case papers and an administrative member of staff sends a letter along with the appropriate forms to the Interpreting Services.

The office does not keep a note of cases where an interpreter has been ordered and the computer system does not have an available field to record this. As a result there was no information on the actual number of times an interpreter was requested in the period concerned (1st January to 31 December 2006) [3].

The Office Manager advised that the depute in court does not complete Section 1 of the 'Interpreting Monitoring Form' and the interpreter does not always complete Section 2. It has been found in many offices that deputes do not always complete their part of the form. However, with reference to interpreters completing their part, Sections 3.2.2 and 7.6 of the ' Crown Office Interpreting and Translation Handbook - Guidance on Policy and Best Practice' clearly states that:

• ' The interpreter's fee should not be paid until the monitoring form has been received back from the interpreter''.

Deaths

There were no deaths reported in Forfar within the period concerned (1 January 2005 to 31 December 2005) where racial and cultural considerations were a feature.

Complaints Against The Police

The Procurator Fiscal deals with complaints against Police Officers which are 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 99.31 per cent of the population in the Forfar Sheriff Court District area is from a white background. Other ethnic groups, of which Chinese is the largest at 0.21 per cent, account for 0.69 per cent.

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

Legal staff

• 1 Procurator Fiscal Depute [5]

Administrative staff

• 1 Band C staff [6]
• 2 Band B staff

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 Forfar office.

There has been no recent [7] local recruitment in the Forfar office therefore no need to place advertisements for vacancies in the minority ethnic community. The District Fiscal advised that the Dundee office would deal with such.

Diversity Awareness

As at 7 March 2006, all of the staff in the Forfar office had attended the Departmental Diversity Awareness Programme.

Consultation

Both the District Fiscal and the depute based in the Arbroath office are members of the Area Diversity Team. The District Fiscal provides feedback from area diversity meetings to staff in the Forfar office.

Conclusions

Two out of ten case papers reviewed at the Forfar office were found not to comply with Crown Office policy on race crime although it was noted that in one case the accused was to be tagged (electronically) in respect of other offences.

The District Fiscal at Arbroath also covers the Forfar office. Information on diversity issues gained from her attendance at the Area Diversity Team meetings are passed on to the staff at Forfar. Our comments on the Arbroath office apply here.

[1] 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.

[2] 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

[3] Note: One payment was made to interpreting services during the period but it may relate to services provided before the period concerned.

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

[5] NB: The District Fiscal at Arbroath also covers Forfar

[6] NB: This person is also Office Manager for the Arbroath office

[7] At least since December 2004.