The Scottish Government

OFFICE INSPECTION - LOCHMADDY

4 & 5 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 Lochmaddy. The Lochmaddy office is part of Highlands and Islands 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 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 (e.g. 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 (e.g. 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 Lochmaddy Fiscal Office, 2004-05 and 2005-06 1

The data extracted from the National Database revealed that in respect of the Lochmaddy office, in financial year (FY) 2004-05:

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

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

• No charges with Section 96 aggravations recorded against them were reported

And in FY 2005-06 1:

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

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

• 1 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

There were no cases requested from the Lochmaddy Office requested in terms of a general sample.

The risk-assessed sample

Only one case (one charge) was automatically requested from the Lochmaddy Office for inspection. This was a case where a Fiscal Fine had been sent to an accused charged by the police with a racially aggravated breach of the peace. The case had been marked by the District Fiscal and involved a breach of the peace where there was a large scale disturbance. The issue of the fiscal fine to the accused was a breach of Crown Office policy. The policy had been relaxed on 23 June 2004 to allow the issue of warning letters to accused in certain racial cases where approval of the area fiscal had been given, the relaxation of the policy however did not extend to issuing fiscal fines. The district fiscal at Lochmaddy had obviously given careful consideration to the facts of the case and decided to issue the fiscal fine (which he now appreciates is contrary to policy) on the basis of the following;

The case involved a fight amongst twenty to thirty persons and did not appear to be racially motivated. A number of locals and soldiers were involved in the incident which was of a "public disorder" nature. There was no civilain complaint of racial abuse but police witnesses to the incident had heard one of the accused shout racist abuse and reported the offence as a breach of the peace with a section 96 aggravation. The police reported seven of those involved in the incident to the fiscal and all were sent fiscal fines. The fiscal did not wish to differentiate between six of the accused and the one who had shouted the racist term (which was in short compass and not directed at a particular individual) in so far as six accused would have been sent fiscal fines and one would have been prosecuted in the Sheriff Court.

Monitoring of race crime

The District Fiscal based at Stornoway also covers Lochmaddy and spends one week out of four at the Lochmaddy office. He is responsible for marking all race crime cases reported to the office except where there may be a conflict of interest (i.e. someone he may know) and the Area office at Inverness marks those.

At the time of the inspection forms A and B (racial monitoring forms) were not used but the District Fiscal advised that he will complete them for all appropriate cases in the future.

The District Fiscal at Inverness is responsible for monitoring compliance with case marking policy concerning racial crime and this is done by checking marking instructions on the IT system. He is also responsible for collating and forwarding the required information in relation to race crime to the Crown Office Legal and Policy Forum.

Deviations from the policy are brought to the attention of the Area Fiscal to allow discussion to take place with the District Fiscal.

Interpreters

Interpreting services were not required in Lochmaddy during calendar year 1 January to 31 December 2005. When there is a need for an interpreter either the District Fiscal or the Office Manager will make arrangements through Alpha Interpretation Services.

The District Fiscal advised that there are no problems with the use of interpreters except if there is a requirement for an interpreter for a Monday custody court. Given the geographical location of the office it would be difficult to get someone in time for the morning court. The solution would be to delay the hearing until an interpreter could get there.

Deaths

There were no deaths reported in Lochmaddy 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 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 99.5 per cent of the population in the Lochmaddy Sheriff Court District area is from a white background. Other ethnic groups, of which a Mixed Background is the largest at 0.19 per cent, account for 0.5 per cent.

As at 1st January 2006, Lochmaddy had a staff of 2, consisting of:

Legal staff

• 1 District Procurator Fiscal (Band F) - one week in four only

Administrative staff

• 1 Office Manager (Band B)

No members of staff are from a minority ethnic background (as self-reported to Human Resources Division in COPFS via survey) in the Lochmaddy office.

There has been no need to recruit Band B staff at the office since before year 2000.

Diversity Awareness

Both members of staff at the office have attended the Departmental Diversity Awareness Programme.

Consultation

Given the lack of resources and the geographical location of the office neither the District Fiscal nor the Office Manager are members of the Area Diversity Team although the Area office does provide information if there are any issues they need to be aware of.

Conclusions

Although the one case requested from the Lochmaddy office did involve the issue of a fiscal fine which was contrary to policy it would appear that the case involved unusual circumstances where the incident was not racially motivated and there was no specific complainer.

[1] At time of extraction data was only available for the first nine months of FY 2005-06 i.e. 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