Scottish Government

OFFICE INSPECTION - DUNFERMLINE

29 NOVEMBER 2005

Background

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 Dunfermline. The Dunfermline office is part of the Fife Area.

Methodology

Our approach to the office inspections 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.

The following measures were 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 2003-04 and 2004-05. 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 was a 'snapshot' as at June 2005.

A sample of Section 50 racial charges and charges with Section 96 racial aggravations recorded against them was drawn from the data for 2004-05 and the related case papers were requested from the office and examined by the team. The charges in the sample drawn were charges that appeared, 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).

Additionally all case papers containing any charges which appeared, as recorded on the database, to have been dealt with in contravention to the guidelines, were specifically requested for examination. Since these charges were of particular interest to us, we requested the relevant case papers in relation any such charges from both 2003-04 and 2004-05.

The contraventions of policy that can be identified from examination of the data extract from the database are charges in respect of which a fiscal fine had been issued, or a warning letter. (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 were also automatically requested which contained any charges that were recorded on the database as being unmarked, or any charges where no proceedings had been taken due to a delay by any agency. Case papers were also requested which contained any charges marked for 'merge'. (A charge marked for 'merge' is one where the circumstances relating to two or more separate charges actually provide the same facts to prove a single charge (usually more serious) and hence the marking Depute deems it appropriate to prosecute only the one charge.)

Similarly, charges reported to the Fiscal Office in 2004-05 that were recorded as being marked for no proceedings were specifically requested for examination, because the way in which the coding system employed by the National Database operates does not allow for recording of reason for a marking of 'no proceedings' at charge level.

Case papers were also requested to be made available on the day of inspection, regarding any deaths which were reported and investigated over a 12 month period where:

• special consideration was required, as defined in Annexe 3 in Chapter 12 of the Book of Regulations (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) was sent to the office in advance of the inspection and returns were analysed to allow exploration of any issues raised in the returns, on the day of the inspection.

The composition of staff in post (numbers, grades and ethnicity) in the office was considered prior to the inspection visit. Similarly considered was the proportion of staff that had 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 racist 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.

Table 1 - Racial Charges and Racial Aggravations reported to Dunfermline Fiscal Office, 2003-04 and 2004-05

The data extracted from the National Database revealed that in respect of the Dunfermline office, in financial year (FY) 2003-04:

• 3 Section 50A(1) (a) charges were reported

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

• 35 charges with Section 96 aggravations recorded against them were reported

And in FY 2004-05:

• 1 Section 50A(1) (a) charges were reported

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

• 26 charges with Section 96 aggravations recorded against them were reported

A total of 24 charges (20 case papers) were automatically requested for inspection. These consisted of:

• 5 charges recorded as being marked to receive a warning letter; one reported in FY 2003-04 and the other 4 reported in FY 2004-05

• One charge recorded as being marked for 'diversion' (to Social Work services), reported in FY 2003-04

• 10 charges recorded as being marked for 'no proceedings', reported in FY 2004-05

• One charge recorded as being unmarked, reported in FY 2004-05

• 2 charges recorded as being marked to be 'merged', reported in FY 2004-05

• 2 charges with a Section 96 aggravation recorded against them, recorded as being marked to receive a warning letter; one reported in FY 2003-04 and one reported in FY 2004-05

• 3 charges with a Section 96 aggravation recorded against them, recorded as being marked for 'no proceedings', reported in FY 2004-05

A sample of 37 Section 50A charges and 15 charges with Section 96 aggravations recorded against them were drawn, in addition to the 24 charges which were automatically selected. Resulting from the sampling exercise therefore, a total of 54 case papers (76 charges) were subsequently requested for inspection.

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 was conducted at charge level, in some instances, more than one charge from a single case was selected into the sample. This meant that the number of case papers requested was lower than the number of individual charges selected.

In respect of the 24 charges (20 case papers) that were automatically selected (as detailed above) we found that:

Of the 5 charges recorded as being marked for a warning letter:

• All were found to be appropriate in the particular circumstances of each case. In 2 of the charges it was clear from the papers that referral had been made to the district fiscal who approved the decision. In the remaining 3 charges it could not be assessed from the papers whether referral to the district or area fiscal had been made.

Of the charge recorded as being marked for Social Work Diversion:

• There was a domestic background to this case in that the complainer and the accused had been in a relationship for a number of years. The marking was found to be appropriate in the circumstances (however it is not clear from the papers whether the Area Fiscal approved this in line with policy).

Of the 10 charges recorded as being marked for 'no proceedings':

• 6 did not have corroboration to the charge and were found to be appropriately marked (of these 6 charges, 3 charges had been appropriately changed by the marking Depute to breach of the peace with Section 96 aggravations).

• 2 charges did not have a racial element and one charge had insufficient evidence.

• One charge was a Section 50A(1) (a) charge which was recorded as being marked for 'no proceedings' as the marking Depute had instead libelled two section 50A(1) (b) charges. Whilst this course of action is not strictly speaking a breach of policy, it is not thought to be an appropriate marking decision.

Of the charge recorded as being unmarked, this has now been marked no proceedings due to delay.

• This charge was indeed unmarked at the time of inspection. The last marking had been made in May 2005, to the effect that the Depute wished to discuss the case with the Procurator Fiscal.

Of the 2 charges recorded as being marked to be 'merged':

• The marking was found to be appropriate as ultimately there had been two offences charged at two separate loci (4 charges in total) , which the Depute appropriately libelled as two breach of the peace charges (with Section 96 aggravation), one at each locus. The only issue of concern was that ultimately a plea of guilty to only one of the charges was accepted with deletion of the racist remarks and Section 96 aggravation as the Depute in court was incorrectly of the view that the Section 96 aggravation would not be proved, as there was no corroboration (which of course is not required for the Section 96 aggravation).

Of the 2 charges with a Section 96 aggravation recorded as being marked to receive a warning letter:

• In one charge it was found that the complainer did not want to have proceedings taken against the accused and only wanted him warned. This was appropriate in the circumstances although it could not be determined from the papers whether there had been discussion with the District or Area Fiscal.

• In the other case, it was found upon inspection that this case was not a race case at all but in fact a shoplifting case.

Of the 3 charges with a Section 96 aggravation recorded against them, marked for 'no proceedings:

• One charge related to a police report where it was not clear that there had been an actual assault. There was insufficient evidence to prove the substantive charge and therefore the case was appropriately marked "no proceedings"
• 2 charges were within a case which also had a section 50A(1)(b) libelled against the accused (to which the accused pled guilty) and where there may arguably have been a sufficiency for the section 96 aggravations.

In respect of the 36 cases (42 charges) which were randomly selected for inspection, 2 case papers could not be found and therefore 34 cases (40 charges) were examined. It was found that departmental policy had largely been complied with. Further, it was found that marking Deputes were correctly identifying charges libelled as common law breaches of the peace by Police which were in fact racially motivated or aggravated offences and the charges were changed accordingly. There were a number of charges libelled by the Police as section 50 A(1)(b) charges where in fact there no corroboration of the racial element. Marking Deputes were correctly changing these charges to section 96 aggravations.

It was observed also that in some of the cases reported by the police which involved a section 50A(1) (b) charge, the police had also libelled a breach of the peace charge which effectively covered the same set of circumstances. This breach of the peace charge was superfluous and was correctly not taken up by the marking Deputes. It was further observed that cases were "rolled up"(separate police reports in respect of an accused containing similar charges were put together in to one complaint) where appropriate which is of course good practise.

One randomly sampled case involved a section 50A(1) (b) charge where the narrative of the police report indicated that there were two sources of evidence of the racial abuse, whereas at trial it became apparent from the terms of the witness statements that there was only one source of evidence of the racial abuse and therefore the section 50A(1) (b) charge would not prove. The Depute in court simply accepted not guilty to the charge and it appears from the papers that there was no motion to amend the charge.

In a case involving a section 96 aggravation, the papers were marked "no further proceedings". As only a copy report was available for inspection, there was no detailed note explaining why this decision had been reached. The terms of the police report suggested that whilst the police had heard the racial abuse, the apparent complainer had not and it is presumed that it was in view of this that the decision was made to mark the case (no further proceedings".

With the exception of 2 cases where no specific marking could be found on case papers a check revealed that all other appropriate cases had been referred to Victim Information and Advice Division (VIA).

VIA has only been present in the Dunfermline office since November 2004 therefore cases before this date would not have been referred. The Future Office System used by the Crown Office and Procurator Fiscal Service has a mandatory field for which an option in reference to VIA has to be selected, therefore the risk of cases not being referred to VIA should be minimal.

Monitoring of race crime

At present the Dunfermline office do not use the monitoring forms properly. The PF became aware of this through chairing the Area Diversity Team. Measures are being taken to address this.

The Area PF physically checks all papers that fall into the 'race crime' category for compliance with guidelines.

Interpreters

The Dunfermline office orders interpreters through ALPHA Interpreting Services. The quality of interpreting is good.

Only 8 cases reviewed required the need for translation services. In all cases the translation needs were met appropriately. Further, there were 2 cases where there appeared to be no information contained in the police report as to whether an interpreter was required, but interpreters were ultimately arranged by the PF office.

Deaths

There was one death reported in Dunfermline within the period concerned (1 July 2004 to 30 June 2005) where racial and cultural considerations were a feature.

The family did not want a post mortem to be carried out and requested a burial as soon as possible. The family GP was not prepared to issue a death certificate so given the circumstances the PF approached pathologists at Dundee University where a death certificate was issued after examination of the medical records of the deceased and an external, non invasive examination by one of the pathologists. This was carried out at Dundee University [1] enabling the body to be released on the same day.

It was noted that the family asked the police to pass on their gratitude to the PF in dealing with the matter.

Employment

Latest data [2] shows that 99 per cent of the population in the Dunfermline Sheriff Court District area is from a white background. Other ethnic groups, of which Pakistani is the largest at 0.4 per cent, account for the remaining one per cent.

As at 1st October 2005, Dunfermline had a staff of 21, consisting of:

Legal staff

• 1 Procurator Fiscal

• 1 Principal Depute

• 4 Procurator Fiscal Deputes

Administrative staff

• 1 Precognition Officer

• 3 Band C staff

• 1 Personal Assistant

• 9 Band B staff

Casual staff

• 1 Band B staff

Small numbers (less than 5) prevent disclosure of the exact number of staff who are from a minority ethnic background (as self-reported to Human Resources Division in COPFS via survey) in the Dunfermline office, as at 1st May 2005. However, we concluded that minority ethnic representation in the office was in line with minority ethnic representation in the local population.

As at 1 June 2005, 88 per cent of staff in the Dunfermline office had attended the Departmental Diversity Awareness Programme. All members of staff who have not yet attended have re-scheduled for a later date.

Consultation

The Dunfermline office, as part of the Fife Area, is currently building up relations and communications with ethnic minority groups. The Fife Area Diversity Team was set up in January 2005 and they are currently working on an Action Plan. They currently have contact with the following:

· Black Minority Ethnic Safety Group - A VIA Officer keeps a spreadsheet of cases referred to her and the PF reports specific figures to this group.

· FRAE (Fairness Racial Awareness and Equality) Fife - have a network with the various ethnic minority communities.

The Area PF for Fife Area often has meetings with local communities. They have also been approached by schools to provide advice and are looking to reach into the Business Community.

Conclusions

The Dunfermline office has a high level of compliance with Departmental policy relating to case marking and court proceedings regarding race crime.

Almost all of the cases that should have been referred to VIA were done so in accordance with Departmental guidelines thus allowing victims and witnesses to obtain additional support and information. There were only two sets of papars where it could not clearly be ascertained from the papers that a referral to VIA had been made. This can be reasonably inferred.

The office is contributing to progress towards completing the Fife Area Diversity Team's Action Plan and efforts are being made to reach more ethnic minority groups and business communities.

[1] This was the nearest place that such an examination could take place.

[2] General Register Office for Scotland 2001 Census of Population