OFFICE INSPECTION - KIRKCALDY

12 & 13 DECEMBER 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 Kirkcaldy. The Kirkcaldy office is part of the Fife 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

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 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 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 Kirkcaldy Fiscal Office, 2005-06 and 2006-07[1]

The data extracted from the National Database revealed that in respect of the Kirkcaldy office, in financial year (FY) 2005-06:

• 3 Section 50A(1) (a) charges were reported
• 51 Section 50A(1) (b) charges were reported
• 30 charges with Section 96 aggravations recorded against them were reported

And in FY 2006-07 [1]:

• No Section 50A(1) (a) charges were reported
• 30 Section 50A(1) (b) charges were reported
• 5 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

A sample of 37 Section 50A charges (30 cases) and 14 charges (13 cases) with Section 96 aggravations recorded against them were drawn. Resulting from the general sample, therefore, a total of 42 case papers (51 charges) were subsequently requested for inspection.

In respect of the Section 50A charges, the office was unable to find 8 cases (containing 12 charges). In respect of another two cases, only copies of the cases were available for inspection hence the necessary details were not available.

In respect of the remaining 23 Section 50A charges (20 cases) we found that there was compliance with marking policy and in respect of conduct during court proceedings on all occasions. We did however find a few instances where the police had not filled in the racial incident monitoring form and this had not been pursued by the fiscal.

In respect of the charges with the Section 96 aggravations recorded against them, the office was unable to find 2 cases (containing 2 charges). In respect of the remaining 12 charges (11 cases) we found that there was compliance with marking policy and in respect of conduct during court proceedings on all occasions.

The Risk-Assessed Sample

A total of 24 charges (17 case papers) were automatically requested for inspection. These consisted of:

• 8 Section 50A charges (7 cases) recorded as being marked to receive warning letters, one reported in FY 2006-07, one reported in FY 2005-06, 3 reported in FY 2004-05 and 2 reported in FY 2003-04

• One Section 50A charge recorded as being marked 'deferred', reported in FY 2006-07

• One Section 50A charge recorded as being unmarked, reported in FY 2006-07

• One Section 50A charge marked for diversion, reported in FY 2006-07

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

• 8 charges (2 cases) with Section 96 aggravations recorded against them marked for 'no proceedings', reported in FY 2005-06

In respect of the 8 Section 50A charges (7 cases) marked to receive warning letters, the office could not find two cases (containing 3 charges). In respect therefore of the remaining 5 charges (5 cases) we found that:

• The decision to issue warning letters was correct in all cases. The Area Fiscal approves the issue of all warning letters some of which are sent by him. As in other inspections it was difficult for us to audit the trail because of the operation of the FOS system.

The office could not find the case containing the Section 50A charge recorded as being marked 'deferred'.

In respect of the Section 50A charge recorded as being marked unmarked, we found that:

• This was a FOS case and was still awaiting marking.

In respect of the Section 50A charge recorded as being marked for diversion, we found that:

• The decision to mark the case for diversion was appropriate in the circumstances.

In respect of the 5 Section 50A charges recorded as being marked for 'no proceedings', the office was unable to find one case. In respect of the remaining 4 charges, we found that:

• The decision to take no proceedings was correct in all cases.

• In two cases, there was no evidence for the racial charge
• In the other two cases, breach of the peace charges with Section 96 aggravations were taken up, with the accused pleading guilty in both cases.

In respect of the 8 charges (2 cases) with Section 96 aggravations recorded against them marked for 'no proceedings', we found that:

• None of the charges in either case was racial hence the decision to take no proceedings in all instances was correct.

Monitoring of Race Crime

The Area Fiscal is responsible for monitoring all race crime cases in the Fife area. The District Fiscal has no involvement as he has overall responsibility for all solemn work in the Area.

Deputes in initial case processing based in Kirkcaldy mark cases for the Area and complete form A of the 'Racial Incident Monitoring Form'. Form A along with the relevant case papers are then passed to the Area Fiscal for checking and monitoring on a continuous basis as when they are marked. At the conclusion of proceedings form B is completed by the court depute and the form along with the case papers are passed on in the same way.

The Area Fiscal examines the FOS (Future Office System) and also the PROMIS system to identify all reported race crime cases and checks this against the cases he has reviewed thus ensuring that all appropriate cases have been referred.

The District Fiscal advised that he does receive feedback on his office's compliance with Crown Office race crime policy at the monthly Area Management Group meetings. Issues relating to the police's compliance with the Lord Advocate's guidelines in reporting such cases are taken up by the by Area Fiscal.

The Area office is responsible for collating and forwarding race crime figures to the Area Fiscal Group (which has replaced the Legal and Policy Forum)

Interpreters

In one case examined the police had failed to give information on whether an interpreter was required and the Procurator Fiscal asked for the information. It transpired that an interpreter was required and one was cited. Interpreters were required in one other case examined. As noted in the 'Race Crime' section, there were a few cases where a racial incident monitoring form had not been filled in by the police and had not subsequently been pursued by the fiscal. In addition some forms submitted by the police were incomplete.

Fiscal Officers are responsible for ordering interpreters based on instructions written on the case papers by a Depute. During the past twelve months interpreters have been ordered on eight occasions. In addition to this there have been eight documents translated in the same period.

There is no known dissatisfaction with the use of interpreters and they always fill in their part of the interpreters monitoring form. However, in common with many offices, the second part of the monitoring form is not completed by the depute in court.

Deaths

There were no deaths reported in Kirkcaldy 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 almost 99 per cent of the population in the Kirkcaldy 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 just over one per cent.

As at 12 December 2006, Kirkcaldy had a staff of 33, consisting of:

Legal staff

• 1 Procurator Fiscal
• 1 Principal Deputes
• 7 Procurator Fiscal Deputes [5]
• 1 Trainee Solicitor

Administrative staff

• 4 Precognition Officers
• 1 Band D staff
• 1 Personal Assistants
• 14 Band B staff [6]

Casual staff

• 3 Band B staff

No members of staff are from a minority ethnic background (as self-reported to Human Resources Division in COPFS via survey) in the Kirkcaldy office. We concluded that this is not untoward given the number of staff in the office and the level of minority ethnic representation in the area.

Efforts are made locally when recruiting Band B staff to advertise vacancies within the minority ethnic communities by forwarding adverts to the Police Race Group to pass on to the various groups they have contact with.

Diversity Awareness

As at 12 December 2006, all but three newly recruited staff in the Kirkcaldy office have attended the Departmental Diversity Awareness Programme. Plans are in place for those who have not yet been on the course to attend the next one available.

Disability and Gender

The Disability Discrimination Act 2005, which comes into force in December 2006, requires the public sector to promote equality for disabled people.

The current Kirkcaldy office was opened in May 2003. With regard to access, the office is located on the second floor of the building and at the time of opening there was no lift. This has been addressed and a lift is now in place to allow access for disabled persons. We were also advised that doors have been widened allowing access for wheelchair users.

The Gender Equality Act 2006 comes into force in April 2007 and will require public authorities to demonstrate that they treat men and women fairly.

We were advised that all policies and new initiatives are discussed at the Area Management Group meetings and are implemented as required.

Consultation

The District Fiscal at Dunfermline is the Area representative for liaising with minority ethnic groups and provides feedback to all offices in the Area including Kirkcaldy.

As a member of the Black and Ethnic Equality Safety Group, which meets every two months, he was advised that the PF role is not well understood and that it would be better to meet with smaller individual groups to raise awareness and discuss their specific issues.

Meetings have taken place with local groups and information is fed back to the monthly Area Meetings. Minutes of these meetings are available on the intranet.

A shared 'open day' involving the PFO, the Sheriff Court Service and the Police is hoped to be held in the future but is still very much in the planning stage.

Conclusions

Overall, subject to the issues we highlight, there was compliance with Departmental policies on the prosecution of race crime. There were some examples of good practice as narrated.

All staff had either attended the Departmental Diversity Awareness initiative or were about so to do.

The District Procurator Fiscal was proactive in outreach initiatives

[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] One part-time (0.6)

[6] One part-time (0.5)