Scottish Government

OFFICE INSPECTION - ELGIN

29-30 JANUARY 2007

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 Elgin. The Elgin office is part of the Grampian 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 Area Fiscals Group [3].

Table 1 - Racial Charges and Racial Aggravations reported to Elgin Fiscal Office, 2005-06 and 2006-07[1]

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

• Two Section 50A(1) (a) charges were reported
• 40 Section 50A(1) (b) charges were reported
• 13 charges with Section 96 aggravations recorded against them were reported

And in FY 2006-074:

• No Section 50A(1) (a) charges were reported
• 9 Section 50A(1) (b) charges were reported
• 3 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 26 Section 50A charges (13 cases) and 9 charges (8 cases) with Section 96 aggravations recorded against them were drawn. Resulting from the general sample, therefore, a total of 21 case papers (35 charges) were subsequently requested for inspection.

One set of papers containing one charge was not available on the day.

In all cases marking policy was followed. We found cases where the Fiscal correctly changed the charge originally tendered by the Police.

In all cases policy was followed during court proceedings.

We found evidence of inappropriate pleas being rejected followed by subsequent plea or finding of guilt.

In one case we found evidence of general good practice with cases being rolled up so that all the cases reported against an accused were going to Court together.

During our inspection we found 3 cases, 2 of which contained Section 50A charges and one with a Section 96 aggravation, in respect of which no proceedings were taken. We found that the decision to take no proceedings in each case was correct.

The Risk Assessed Sample

A total of 4 charges (4 case papers) were automatically requested for inspection. These consisted of:

• One Section 50A charge recorded as being marked for 'no proceedings', reported in FY 2006-07
• Two Section 50A charges recorded as being marked to be merged, reported in FY 2005-06
• One Section 50A charge recorded as being marked to receive a warning letter, reported in FY 2004-05

In respect of the 50A charge recorded as being marked for 'no proceedings', we found that:

• The decision to take no proceedings was correct

In respect of the two Section 50A charges recorded as being marked to be merged, we found that:

• The decision to merge the charges was correct

In respect of the Section 50A charge recorded as being marked to receive a warning letter, we found that:

• The decision to issue a warning letter was correct. However, it was not clear if the Area Fiscal, in line with policy, had approved that decision. We were informed there was informal discussion on this. In future this should be formally recorded.

Monitoring of Race Crime

The Area Fiscal, based in Aberdeen, is responsible for monitoring race crime cases in the Elgin office. Parts A and B of the 'Racial Incident Monitoring Forms' are completed in Elgin and forwarded to the Area Fiscal for checking. The District Fiscal is also involved in monitoring by discussing such cases with the Depute at case marking stage.

A member of the Area Management Team is responsible for collating all race crime figures for the Grampian Area and forwarding them on to the Area Fiscals Group.

The District Fiscal indicated that she would not expect feedback on compliance with Crown Office race policy unless there was a problem.

Interpreters

None of the cases that were inspected required interpreting or translation services.

The Office Manager is responsible for ordering interpreters. Deputes detail interpretation requirements on case papers and based on these instructions the Office Manager makes the necessary arrangements.

The District Fiscal informed us that interpreters were ordered on three occasions over the past twelve months and that the 'Interpreters Monitoring Forms' were completed. No documents have been translated.

One difficulty we were advised of is that often interpreters are often unable to attend court for 10 am and as a result cases have to be delayed until they can get there.

We were informed of an occasion where an appropriate interpreter could not be found for an accused person in court (this is the responsibility of Scottish Court Service) which culminated in a case (minor road traffic) being marked for no proceedings.

Deaths

There were no deaths reported in Elgin within the past 12 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 just over 99 per cent of the population in the Elgin 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 0.9 per cent.

As at 1 January 2007, Elgin had a staff of 10, consisting of:

Legal staff

• 1 Procurator Fiscal
• 1 Procurator Fiscal Depute

Administrative staff

• 1 Office Manager
• 1 Precognition Officer
• 6 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 Elgin 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.

Efforts are made locally when recruiting Band B staff to advertise vacancies in the local paper and the local job centre.

Diversity Awareness

As at 1 March 2007 7 of the 10 staff in the Elgin office had attended the Departmental Diversity Awareness Programme. The remaining 3 include 2 new starts and 1 part time worker.

Disability and Gender

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

The Elgin office is located on the second floor of the Sheriff Court building. There is currently no access to this floor for disabled persons. To address this staff go to the ground floor to deal with enquiries from disabled persons and when there is a need to precognose a disabled witness arrangements have been made to meet with them at their own home.

We were advised that the Sheriff Clerk is investigating the possibility of installing a lift.

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.

Consultation

There are no members of staff from the Elgin office on the Area Diversity Team. However, the Grampian Area is represented in Forums in Aberdeen.

Conclusions

On our inspection we found full compliance with policy in race cases (apart from more formal recording of confirmation that the Area Fiscal approved warning letters). Examples of good practice were found.

[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 Area Fiscals Group is to meet regularly with the Management Board in order to discuss operational policy and business issues in the COPFS; to provide Area Fiscals and Crown Office Heads with opportunities to consider and advice on wider Departmental management matters, where possible, before Management Board takes the decision; to ensure that members accept a shared and collegiate achievement of its business goals and strategic priorities; and to maintain ownership of and to keep the risk register under review.

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