The Scottish Government

OFFICE INSPECTION - STORNOWAY

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 Stornoway The Stornoway office is part of the Highlands and Islands 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

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 was 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 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 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(unless the District Fiscal has "marked" the case) 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 Stornoway Fiscal Office, 2004-05 and 2005-061

The data extracted from the National Database revealed that in respect of the Stornoway 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:

• 1 Section 50A(1) (a) charges were reported
• 17 Section 50A(1) (b) charges were reported
• 4 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

In respect of the general sample of 14 Section 50A charges (12 case papers), we found that:

• 1 case containing 2 charges was in fact marked "no proceedings" for both charges. This was on the basis that there was insufficient reliable evidence.
• 1 case containing 1 charge was also marked "no proceedings" and this was on the basis that there was insufficient evidence
• In the remaining 11 charges (10 case papers) we found that policy had been complied with.
• In respect of the 2 charges (2 case papers) with section 96 aggravations recorded against them we found that:
• 1 case containing 1 charge was in fact marked "no proceedings" as there was insufficient evidence to proceed.
• The other case involved a very minor assault where the final charge did not contain a section 96 aggravation. The case was ultimately marked "no further proceedings" due to a culmination of matters including two essential witnesses being out of the country for a substantial period of time and also having indicated that they wished the matter behind them.

The risk-assessed sample

A total of 6 charges (6 case papers) were automatically requested for inspection. These consisted of:

• 1 section 50 A (1) (b) charge marked for a Fiscal Fine
• 2 section 50 A (1) (b) charges marked "no proceedings"
• 1 section 50 A (1) (a) charge marked "no proceedings"
• 2 charges with a section 96 aggravation against them marked "no proceedings

In respect of these 6 charges we found that:

• In one s50 A (1)(a) charge the form of abuse arguably did not constitute recognised racial abuse and the Fiscal had effectively marked the racial charge "no proceedings" and had proceeded on the basis of a common law breach of the peace for which he issued a fiscal fine. This would appear to be appropriate action in the particular circumstances of this case.
• In one section 50 A (1) (b) charge which appeared to be marked "no proceedings" we found that in fact the charge was appropriately merged into another section 50 A (1) (b) charge on the same complaint and proceeded according to policy.
• In the other section 50 A (1) (b) charge marked "no proceedings" we noted that the content of the charge did not constitute racially aggravated abuse as the accused was asking the complainer whether he "came from the Scottish Isles or the British Isles"
• The section 50 A (1) (a) charge did not constitute racial abuse as the accused was making reference to his own nationality only.
• In one charge with a section 96 aggravation against it which was marked "no proceedings" we found that in fact there was a section 50 A (1) (b) charge in the complaint which covered the same set of circumstances.
• In the other charge with section 96 aggravation against marked "no proceedings" we also found that the circumstances were adequately incorporated into a section 50 A (1) (b) charge on the complaint.

Monitoring of race crime

The Stornoway office has two members of staff, a District Procurator Fiscal and an Office Manager. The District Fiscal marks 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 will mark these.

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 (a member of the Area Diversity team) 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 policy are brought to the attention of the Area Fiscal to allow discussion to take place with the District Fiscal.

Interpreters

When there is a need for an interpreter the Office Manager (on instructions written on the case papers) or the District Fiscal (by reviewing the police report) will make arrangements through Alpha Interpretation Services.

One of the cases reviewed had required a Bengali interpreter but this was cancelled before the court date due to the case not proceeding.

There have been occasions when local persons have been asked to act as interpreters, for example on a Monday custody court where, due to the geographical location of the office, there would not be time for an interpreter to travel to Stornoway from the mainland.

The District Fiscal advised that there are no problems with the use of interpreters.

Deaths

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

Complaints Against The Police

The Area Procurator Fiscal (at Inverness) deals with complaints against Police Officers of a criminal nature alleged to have been committed on duty 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 Stornoway Sheriff Court District area is from a white background. Other ethnic groups, of which Pakistani is the largest at 0.15 per cent, account for 0.7 per cent.

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

Legal staff

• 1 District Procurator Fiscal (Band F)

Administrative staff

• 1 Office Manager (Band B)

Neither of the two staff members are from a minority ethnic background (as self-reported to Human Resources Division in COPFS via survey) in the Stornoway 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.

The District Fiscal attends the local Community Wellbeing Forum, which has an ethnic minority remit included.

Conclusions

The Stornoway office is small and somewhat remote and the Island itself has a very small ethnic population. We found that most of the cases reviewed related to abuse of complainers with a white British (English) origin. We were able to review all of the requested papers and found that nevertheless the Stornoway office showed a high level compliance with Crown Office policy relating to race crime.

[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