The Scottish Government

OFFICE INSPECTION - HADDINGTON

14 NOVEMBER 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 Haddington. The Haddington office is part of the Lothian & 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 2005-06 and 2006-07 [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' August 2006). Data relating to earlier years (2003-04 and 2004-05) that has been obtained previously is also used to supplement the risk-assessment part of our inspection process (see section below 'The Risk-Assessed Sample' for more details).

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 29 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 Haddington Fiscal Office in financial year (FY) 2005/06 and 2006/07 [1]

The data extracted from the National Database revealed that in respect of the Falkirk office, in FY year 2005/06:

• No Section 50A (1) (a) charges were reported

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

• One charge with a Section 96 aggravations recorded against it was reported.

And in 2006/07 [1]:

• No Section 50A (1) (a) charges were reported

• 22 Section 50A (1) (b) charges were reported

• 18 charges with Section 96 aggravations recorded against them were 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 numbers involved, all Section 50A charges reported within the previous 12-month period were requested (a total of 8 charges, 6 cases). Likewise, all charges with Section 96 aggravations recorded against them, a total of 5 charges (4 cases) were requested for inspection.

We were unable to inspect 2 Section 50A charges (2 cases) as due to limited office space the cases were in storage and despite being requested by the office they were not retrieved.

All of the cases inspected were marked in compliance with policy.

In only one case (in respect of 2 Section 50A charges) did we find that policy in respect of court proceedings had been breached. The plea taken in this case was a technical breach of policy only as the plea accepted included racially aggravated assaults and the plea showed a course of conduct by the accused. Good practice was otherwise shown in this case, it was a roll up of 2 cases and when it was apparent that the Police had made some error in the assessment of interpreting needs this was further explored by the Fiscal.

The Risk-Assessed Sample

A total of 6 charges (4 cases) were requested for inspection.

The charges selected for inspection consisted of:

• Two Section 50A charges marked as 'deferred', reported in FY 2005-06

• One case with 2 charges (a Section 50A charge and a Section 96 aggravation charge) marked to receive a warning letter, reported in FY 2005-06

• One Section 50A charge marked to receive a warning letter, reported in FY 2003-04

• One charge with a Section 96 aggravation recorded against it, marked to receive a warning letter, reported in FY 2003-04.

In respect of the 2 Section 50A charges (one case) marked as 'deferred', we found that:

• Marking had been done in the interim and policy had been complied with in this respect. One of the charges was reported by the Police as a contravention of Section 50 A (1) (b) but as there was only one source of evidence for the racial element this was correctly marked by the Fiscal as a charge with a section 96 aggravation attached.

In respect of the case with 2 charges (a Section 50A charge and a Section 96 aggravation charge) marked to receive a warning letter, reported in FY 2005-06, we found that:

• The decision to give the accused a warning letter was an appropriate one but the policy requires that the Area Fiscal confirm such markings and we could find no evidence of that having been done.

In respect of the Section 50A charge marked to receive a warning letter, reported in 2003-04, we found that:

• The case was not available for inspection as Departmental policy dictates that warning letters are not kept for more than 12 months. However, a copy of Police information was obtained by the Office and on that information it was apparent that there was no racial element in this case and that the police had mistakenly identified the charge as a racial one.

In respect of the charge with a Section 96 aggravation recorded against it, marked to receive a warning letter, reported in FY 2003-04, we found that:

• There was no evidence at all to substantiate any allegation of racist crime, the case being wrongly tagged as having a racial aggravation by the Police.

Monitoring of Race Crime

The Depute at Haddington marks all race cases. These are copied and forwarded to the District Fiscal in Edinburgh for checking along with part A of the 'Racial Incident Monitoring Form'. At the conclusion of proceedings, part B is completed and sent on for checking. As a result of these checks the District Fiscal will take appropriate action if necessary.

The Area Office at Edinburgh is responsible for monitoring compliance with Crown Office race policy for all offices in the Lothian and Borders Area. A computer generated management information sheet is printed and checked to ensure that all cases that should be reported actually have been and if not a request is made for this to be done. The Area Office then completes and forwards the return to the Legal and Policy Forum.

The Haddington office does receive feedback in respect of its compliance with race policy.

Interpreters

Two of the 2 cases inspected required interpreting services; these needs were met and in one case, citations were translated.

Requests for interpreters are noted on case papers by the Depute and a Fiscal Officer will make the appropriate arrangements. During the past twelve-month period interpreters have been requested on three occasions.

There are no reported difficulties with the use of interpreters and the 'Interpreting Monitoring Form' is always completed.

Deaths

There were no deaths reported in Haddington 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 99.3 per cent of the population in the Haddington Sheriff Court District area is from a white background. Other ethnic groups, of which a mixed background is the largest at 0.2 per cent, account for the remaining 0.7 per cent.

As at 14 October 2006, Haddington had a staff of 5, consisting of:

Legal staff

• 1 Procurator Fiscal Depute [5]

Administrative staff

• 1 Band C staff
• 3 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 Haddington office.

Given the low representation of minority ethnic persons living in the area and the small number of staff in the office, we concluded that it is not untoward that no members of staff are from a minority ethnic background.

The Area Office in Edinburgh deals with all job vacancies.

Diversity Awareness

All staff, except the most recent recruit, has attended the Departmental Diversity Awareness Programme. Plans are in place for the new member of staff to attend this course.

Consultation

There are no members of staff from the Haddington office on the Area Diversity Team due to lack of resources and there are no local race/diversity groups existing. The Area Office keeps the Haddington office informed of such issues and it is felt that being involved provides valuable insights into the perspectives of the other.

Conclusions

Overall compliance with the prosecution policy on race cases was high, the issues we highlight being very much in the minority.

[1] At time of extraction data was only available for the first five months of FY 2006/07 ie April to August 2006

[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] Another Depute helps out at the office two days per week

[6] One part-time