Scottish Government

OFFICE INSPECTION - SELKIRK

13/14 JUNE 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 Selkirk. The Selkirk office is part of Lothian and Borders 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 Selkirk 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 Selkirk office, in FY year 2004/05:

• No Section 50A(1) (a) charges were reported
• 9 Section 50A(1) (b) charge was reported
• 1 charges with Section 96 aggravations recorded against them were reported.

And in 2005/06 [1]:

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

Given the small numbers involved, all charges reported in 2005 (12 month period) were requested for inspection. These numbered 12 50A charges (5 cases) and 8 charges (4 cases) with Section 96 aggravations recorded against them. A total of 7 case papers (20 charges) were therefore requested for inspection (2 of the cases contained both Section 50A charges and Section 96 aggravations).

In respect of the 12 Section 50A charges (5 cases) we found that Crown Office policy, in respect of marking and conduct during court proceedings, had been complied with in all cases. In one of the cases we noted that that although the charge was reported by the police and marked by the Fiscal as a section 50 A(1)(b) charge, there was some dubiety as to whether the circumstances meant that it would have been more appropriate to take up a charge in terms of religious prejudice as opposed to racial prejudice. This case however demonstrates good practice in that the Crown Office Diversity Team were consulted and after consideration of the subject matter advised that the remark was not in fact racial and a plea of not guilty was appropriately accepted. In another case involving 2 accused and a number of charges including 5 Section 50 A(1)(b) charges we found that a plea of not guilty had been accepted in respect of one of the Section 50A(1)(b) charges. In view of the overall global plea however the acceptance of the not guilty plea was probably justified in the circumstances.

In respect of the 8 charges (4 sets of case papers) with Section 96 aggravations recorded against them we found that Crown Office policy in respect of marking and conduct during court proceedings had been complied with in all cases. Again there was an example of good practice - a charge reported as a breach of the peace with a Section 96 aggravation was appropriately taken up as a section 50A (1) (b) charge. A global plea was negotiated in this particular case in which a plea of not guilty was accepted to the section 50A(1)(b) charge, however this was probably justified having regard to the overall plea.

The Risk-Assessed Cases Request

There were no charges to be requested for inspection in this regard.

Monitoring of Race Crime

The Selkirk office has two legal members of staff, a District Fiscal and a trainee solicitor. The District Fiscal tends to mark most of the cases reported to the office. If the legal trainee marked a race crime case a copy of the case would be passed to the District Fiscal for checking. At the conclusion of a case, the form B is completed and a copy case and forms are passed to the Area Fiscal for monitoring purposes. The Area Business Manager is responsible for collating and forwarding returns to the Legal and Policy Forum.

The District Fiscal advised that, although there is no specific feedback from the Area on the office's compliance with Crown Office race policy, race issues are discussed at the area management team meetings.

It was noted, as with many offices, that the District Fiscal could not be sure that all race crime cases are actually passed to him for checking although it is likely that he will see most, if not all, of Selkirk cases given that he marks the majority of cases.

No management information printouts are available from the computer system that allows a check to be made to ensure that all cases have been dealt with. We had previously been advised that new software to be added to the system would allow such information to be extracted.

Interpreters

When there is a need for an interpreter a Fiscal Officer (FO), on instructions written on the case papers, will make arrangements through Alpha Interpretation Services. The FO advises the Office Manager (OM) that this has been done via e-mail. The OM keeps a record of the e-mail and passes details to the Area Training Team who gather information on the use of interpreting services for the whole area.

Interpreters always complete Section 1 of the 'Interpreters Monitoring Form', which is returned to the office along with the invoice for services provided. The OM then passes the appropriate file to a legal member of staff to complete Section 2.

The District Fiscal advised that the majority of the cases requiring interpreters do not relate to race crime cases but were most likely to be associated with inter community arguments. Of the cases reviewed at the office only one required the services of a Mandarin interpreter.

The OM advised that office used interpreting services three times during period 1 January 2005 to 31 December 2005 and that documents were translated seven times during the same period.

No problems exist [4] with the use of interpreters except that it can be difficult getting an interpreter to court in time for custody cases due to the geographical location of the office.

Deaths

There were no deaths reported in Selkirk 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 [5] shows that 99.3 per cent of the population in the Selkirk Sheriff Court District area is from a white background. Other ethnic groups, of which those with a mixed background are the largest at 0.19 per cent, account for the remaining 0.7 per cent.

As at 1st January 2006, Selkirk had a staff of 6, consisting of:

Legal staff

• 1 District Procurator Fiscal [6]
• 1 Trainee Solicitor

Administrative staff

• 1 Office Manager (Band C)
• 3 Band B staff

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

There has been only one vacancy in the office in the past three years. This was advertised in the Scotsman paper.

Diversity Awareness

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

Consultation

Although the office is not represented on the Area Diversity Team [7] nor does any of the staff attend any other national or local groups where diversity is a topic, the District Fiscal is kept informed of race issues at area team management meetings. The police also liaise with the District Fiscal on race issues.

The District Fiscal advised that there are very few ethnic minority persons living in the area and no local ethnic minority groups relating to this. Most run their own restaurant business or work in hotels and a few are employed as doctors at the local hospital.

Conclusions

Overall compliance with Crown Office policies and procedures on race in the Selkirk Office was high, all relevant staff had received the Departmental training and awareness of the various issues seemed high.

[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] The District Fiscal indicated that on occasion interpreters arranged by the Sheriff Clerk for the accused were the incorrect language. This is outwith the scope of the inspection as it relates to the Sheriff Clerk.

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

[6] The District Fiscal also covers the Jedburgh office and divides his time roughly 3.5 to 4 days in Selkirk and the rest in Jedburgh

[7] resource implications given that the office is small