Chapter 4 Diversity/Equality Issues
176. The Inspectorate of Prosecution looked at the response of the Crown Office and Procurator Fiscal Service on race issues in our first report at www.scotland.gov.uk/Topics/Justice/ipis/reps. We looked in particular at the provision of interpreting and translation services to those who do not speak English as a first language. As we mentioned there the various criminal justice partners (ie the Police, Scottish Court Service, Crown Office and Procurator Fiscal Service, the Scottish Legal Aid Board and the Law Society of Scotland) have formed a working group to deal with interpreting/translation issues - the Working Group for Interpreting and Translation Provision in the Criminal Justice System in Scotland ( WGIT).
177. One of the aims of WGIT is "to consider, assess and offer recommendations on a co-ordinated approach towards the instruction of interpreters within the criminal justice system, including a joint protocol on monitoring and vetting, minimum standards and a code of practice including conditions of employment". It is a good example of a "joined up" approach to dealing with problems in the criminal justice system.
178. Additionally Crown Office and Procurator Fiscal Service is a member of the Scottish Executive established Translation, Interpreting and Communications Support Group ( TICS).
179. The prosecution of race crime is a high priority for the Crown Office and Procurator Fiscal Service. A robust policy of having a presumption in favour of prosecuting race crimes where the evidence is sufficient has been put in place and a system of monitoring established. Our office inspections monitor the implementation of this policy and (reports on our website above) and its importance is reflected in the fact that the Victim Information and Advice categories include "victims in cases with a racial aggravation and cases where it is known to the Procurator Fiscal that the victim perceives the offences to be racially motivated" (this latter point covers the "Lawrence" definition accepted in Scotland by the Scottish Executive).
180. In addition the Victim Information and Advice categories include cases involving "vulnerable witnesses" ie (among others) those who have physical disabilities, suffer from mental health problems, are asylum seekers or have language difficulties. The referral form used by Victim Information and Advice staff to refer witnesses to the Witness Service (see Annex 4) includes a section on additional support measures/provisions. This is the opportunity to relay information on such matters as non-English speaking or a victim with a disability or a special need. This in turn depends on Victim Information and Advice having accurate information about these matters and can itself depend on what is contained in the Standard Police Report ( SPR) which is the report (in electronic form) given by the Police to the Procurator Fiscal. In accordance with agreements between Crown Office and Procurator Fiscal Service and the Police (as represented by the Association of Chief Officers of Police, Scotland - ACPOS) this report should include details of any known disability or special need. In addition in accordance with instructions given by the Lord Advocate to the Police on reporting of race crime the report should indicate whether or not any victim/witness is not an English speaker and any additional cultural issues which might arise.
181. In summary cases (ie those tried without a jury) in particular this Standard Police Report is vital and frequently the only source of information on victims/witnesses given to the Procurator Fiscal as victims/witnesses are not usually seen by Crown Office and Procurator Fiscal Service staff. Principal witnesses will usually be seen in solemn cases (ie those tried by jury in the High Court or Sheriff Court) which gives a second opportunity as it were to be aware of any particular needs.
182. Police compliance with the Lord Advocate's Guidelines on race crime is monitored by Crown Office and Procurator Fiscal Service and shows an improving picture. We did receive some evidence, however, that information on disability or special needs can be more sketchy and parties can be surprised to learn of the additional needs sometimes only on court days.
183. Support for witnesses who may have difficulty in seeing, hearing or because of mobility problems should be routinely available. The Disability Discrimination Act 1995 imposes a proactive duty to make services accessible rather than simply a duty to react to a particular need. It is nevertheless important that those responsible for the care of witnesses at court have as much prior knowledge of individual needs as possible. Again we cannot emphasise too strongly the importance of the Police Report containing adequate detail as this is the "trigger" for subsequent action by Crown Office and Procurator Fiscal Service, Victim Information and Advice and the Witness Service.
184. The Scottish Court Service has carried out an audit of all its property to assess how its buildings etc affect court users with a physical disability and to identify changes required to comply with the Act. The need for training has also been reviewed. It supplies information in Braille, in large type and on audio tapes. Victim Information and Advice provides information in large print or audio. The Witness Service can provide information in Braille.
185. So far as language needs are concerned the responsibility for providing an interpreter for non-English speaking accused lies with the Scottish Court Service (since April 2002). In custody cases (those where the accused appears in court on the first court day after arrest) the Police arrange for the interpreter on behalf of the Scottish Court Service. In other cases Crown Office and Procurator Fiscal Service staff have the duty of advising the court of the need to bring an interpreter for an accused person.
186. So far as victim/witnesses are concerned the responsibility for arranging for an interpreter lies with Crown Office and Procurator Fiscal Service.
"Because they arranged an interpreter for me......I could speak in my own language and understand clearly." (Witness, Paisley, 2004)
187. For defence witnesses the responsibility lies with the defence. We feel it is vital for the Witness Service to know when an interpreter is required as it enables them to use the interpreter to convey messages about the service they can offer to the non-English speaking witness.
"It puts everyone at their ease if you speak to them. The interpreter is the only lifeline for them. Most of the time they cannot talk at all not even to ask where the toilets are. You can speak to them with a member of the Witness Service and that is them doing their job." (Interpreter, Glasgow, 2004)
188. In one meeting we had with Witness Service staff they indicated that while they did not have many such cases in their particular court nevertheless there could be problems. Usually either Victim Information and Advice or the Procurator Fiscal would bring such cases to their attention but this was not always the case. In addition although there was a screen in court advising of existence of the Witness Service with information about it, it was only in English. They indicated that they had no particular procedure in place to deal with witnesses from an ethnic minority and felt their knowledge in this area was limited.
189. Scottish Court Service is about to engage in developing a language plan and as part of that there will be an examination of provisions for guidance material, court signage etc. This will involve examining what other language requirements may exist.
190. Witness Service staff indicated that if interpreters were present they would actively seek them out but were not aware of any system in place for the Witness Service being made aware that an interpreter was involved in a case and not surprisingly asked for advance notice.
"I think that when an interpreter is involved they try to take the case first, it's much better than it was 3 years ago. Three years ago they did not keep you informed." (Interpreter, Glasgow, 2004)
"I have had mostly positive experiences in court, the only occasion which, I won't say was negative, was sometimes you don't know the order, you don't know whether the witness is there, or whether the accused is there." (Interpreter, Glasgow, 2004)
191. It seems sensible that where an interpreter has been asked to attend that the Witness Service should be able to make use of this to explain their functions to the witness. If this means the contract between Crown Office and Procurator Fiscal Service and the Interpreting Agency requires amending then we would suggest that this be done. It is of even more importance to a non-English speaking witness to be offered the support the Witness Service can supply.
192. In relation to disability the Witness Service staff in one court reported that there was no system in place for them being alerted that a witness was disabled and they had to rely on Victim Information and Advice (or Crown Office and Procurator Fiscal Service) staff being aware that a witness was disabled and secondly and just as importantly communicating that information to them in advance of the trial. Although this was only one particular court we feel that it is likely to be a difficulty across the whole country.
193. The service which can be offered by the Witness Service is only as good as the information it receives. In turn the information supplied by Crown Office and Procurator Fiscal Service and Victim Information and Advice to the Witness Service is dependant on the quality of information input by the Police. Provided the requisite information is supplied in the Police Report the various steps should be in place to provide for any special needs of victims and witnesses.