OFFICE INSPECTION - PETERHEAD

12 SEPTEMBER 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 Peterhead. The Peterhead office is part of the Grampian 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 Peterhead 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 Peterhead office, in FY year 2004/05:

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

And in 2005/06 [1]:

• No Section 50A (1) (a) charges were reported
• 12 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

Due to the small numbers of cases involved, all 13 Section 50A charges (10 case papers) reported in 2005 were requested for inspection. Likewise, the one charge with a Section 96 aggravation recorded against it was also requested.

In respect of the 13 Section 50A charges and one charge with a Section 96 aggravation recorded against it, we found:

• One of the cases with 2 charges had in fact been marked "no proceedings". This case had however been referred to the District Fiscal by the original marking depute who recommended no proceedings in view of the various factors attaching to the case and the views of the reporting officer. This was clearly well considered and with due regard to the instructions in the Book of Regulations.
• There was another case where a view was taken that it was inappropriate to proceed in the absence of a complainer. The case was marked "no proceedings - insufficient evidence" and had clearly been considered by the District Fiscal and the marking depute, both of whom agreed that on the basis of the Dundee FC appeal case (Martin v Bott 2005) there was no breach of the peace as no one was alarmed or upset. This case however involved very unpleasant racial abuse which was shouted by the accused in the presence of four police officers, one of whom was from an ethnic minority background. The police officers perceived the motive for the incident as being racial/retaliatory (retaliatory in that it was suspected that the subject of the abuse had assaulted the accused) and it might have been appropriate to consider proceeding with a breach of the peace charge with a section 96 aggravation and invite the court to regard the conduct in the circumstances as amounting to a breach of the peace.
• In another case which involved a complaint in relation to the possibly racially inflammatory content of an article contained within a local newspaper, there was an example of prudent practice in that Crown Counsel's instructions were sought regarding prosecution and the somewhat sensitive matter was appropriately dealt with.
• We found that one case had been deserted "pro loco et tempore" as the complainer had left the country. There were however two police officers present when the complainer was racially abused by the accused and it might have been appropriate to consider re-raising the case as a breach of the peace with a section 96 aggravation on the basis of the police evidence alone in a similar fashion to the case referred to above.
• In a case involving two accused a plea of not guilty to the section 50A(1) (b) charge was accepted from both accused at trial. This was because of evidential difficulties.
• In all other charges we found that Crown Office policy had been complied with.

The Risk-Assessed Sample

Only one case containing one charge was requested as part of the risk-assessed sample and this was due to the fact that a warning letter had been issued. On review of this case it was found that the accused had committed the offence when he was 15 years old and was within one month of his 16th birthday. Discussions had taken place with the Children's Reporter who did not wish to deal with the case and the District Fiscal decided to send the accused a warning letter given that his sixteenth birthday was 9 days away.

Monitoring of Race Crime

The District Fiscal is responsible for checking the marking and conduct of court proceedings in race crime cases at the Peterhead office. This involves reviewing cases from time to time and acting on feedback, which is received from the Area office.

The Area Fiscal, based in Aberdeen is responsible for ensuring Crown Office policy on race crime is complied with and provides feedback to the office, which includes chasing up forms that have not been sent to them for monitoring purposes.

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

Interpreters

In the past twelve months 40 or more interpreters have been ordered to attend court. The exact numbers could not be confirmed as no diary is kept and requests for interpreters are noted on individual case papers. We were advised that the majority of interpreters required were for Eastern Europeans languages.

The office reported no problems with the use of interpreters and the 'Interpreting Monitoring Form' is always completed and sent to the office along with the invoice for services provided.

None of the cases that were inspected required interpreting services.

Deaths

There were no deaths reported in Peterhead 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 99.4 per cent of the population in the Peterhead Sheriff Court District area is from a white background. Other ethnic groups, of which Chinese is the largest at 0.2 per cent, account for the remaining 0.6 per cent.

At the time of the visit, Peterhead had a staff of 9, consisting of:

Legal staff

• 1 Procurator Fiscal (Band F)
• 1 Procurator Fiscal Depute (Band E Legal)

Administrative staff

• 1 Precognition Officers (Band D)
• 1 Band C staff
• 5 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 Peterhead office.

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

Diversity Awareness

All staff in the Peterhead office had attended the Departmental Diversity Awareness Programme.

Consultation

None of the staff at Peterhead are members of the Area Diversity Team [5] nor do they currently attend any other national or local groups where diversity is a topic. The District Fiscal used to attend Aberdeenshire Safety Partnership meetings where race matters were a standing item on the agenda.

The District Fiscal is kept informed of race issues by the Area office.

Conclusions

Overall compliance with race case prosecution policy was high. We suggest a different approach might have been taken in 2 out of the 15 charges examined although there was no actual breach of policy.

All staff had 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] General Register Office for Scotland 2001 Census of Population

[5] Resource implications given that the office is small